JUDGMENT : Pushpendra Singh Bhati, J. 1. The instant writ petitions have been preferred claiming the following reliefs: “i. by an appropriate writ, order or direction the respondents no.1 to 3 may be directed to not deduct the labour cess at source as per the circular dated 9.7.2010 (Ann.3) to the tender of the petitioner dated 29.6.2009 (Ann.2). ii. Any other appropriate order which this Hon’ble Court deems fit just and proper in the facts and circumstances of the case may kindly be passed in favor of the petitioner. iii. Cost be allowed to the petitioner.” 2. Brief facts of the case are that the petitioner is a Partner of M/s. Syed Luqman & Sons, Jodhpur, and the said Firm being a registered ‘AA’ Class PWD Contractor, was engaged in execution of the contract works, so awarded to it, relating to Government, Semi Government & Sub-contractors etc. 3. The bone of contention in the present case is that a Short- term Tender Information No.03/2009-10 dated 17.06.2009 (in short, ‘Tender in question’) was issued by the respondents in connection with construction of 48 Nos. LSQ Quarters in Police Line, Daijar, Jodhpur (Block ‘B’), as per which, the tender forms were to be submitted from 29.06.2009 to 03.07.2009. Upon being successful in the said tender process, the petitioner was awarded the contract for the said work. But at the time of final payment, the petitioner was subjected to deduction of Rs.1,99,554/- on account of Labour Cess under Section 3 of the Building and Other Construction Workers’ Welfare Cess Act, 1996 (hereinafter referred to as ‘Act of 1996’) and under Section 7 of the Building and Other Construction Workers’ Welfare Cess Rules, 1998 framed under the Act of 1996. 4. Learned counsel for the petitioner submitted that such deduction of Labour Cess, as impugned herein, was stated to have been made in pursuance of the Circular dated 09.07.2010 issued by the Government of Rajasthan, Labour & Employment Department. He further submitted that this was despite the fact that the said Circular dated 09.07.2010 clarified the position regarding collection of Cess under Section 3 of the Act of 1996 and Registration of Establishment under Section 7 of the Building and Other Constructions Workers’ (Regulation of Employment and Condition of Service) Act, 1996, by taking the cut off date as 27.07.2009 for the purpose of levy & collection of Cess. He further submitted that the said Circular, as reflected therein, received approval of the Finance Department, Government of Rajasthan on 30.06.2010, and admittedly, in the present case, the tender was accepted and work order was executed on 30.06.2010 i.e. prior to the said cut off date. 4.1. Learned counsel also submitted that the respondent authorities, vide Annexure-4 which is dated 14.11.2011, in a similar case, have arrived at a conclusion that the deduction of the Labour Cess under the Act of 1996 became applicable for the tenders, which were received/opened after 30.06.2010, whereas the tender in the present case, the Tender Forms were opened on 29.06.2009 and the work order was executed prior to 30.06.2010, and thus, the levy & collection of the Labour Cess was to be effected accordingly, and not in the manner as done in the present case by the respondents. 4.2. Learned Counsel further submitted that the impugned action on the part of the respondents is not sustainable in the eyes of law, on yet another ground, that the work in question, in pursuance of the Tender Process initiated on 29.06.2009, was to be completed by June, 2010 and that neither any circular nor any Act can become part of the contract after signing of the same and completion of the work thereunder, more particularly, in violation of the law on the subject i.e. the Indian Contract Act. 5. On the other hand, Mr. Rajesh Panwar, learned Senior Counsel assisted by Ms. Minal Singhvi, opposed the aforesaid limited contentions raised on behalf of the petitioner. 5.1. Learned Senior Counsel submitted that the Act of 1996 was enacted with a view of augmenting the resources of the Building and Other Construction Workers’ Welfare Boards constituted under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. He further submitted that the Act of 1996 and the Rules framed thereunder are to ensure that the Cess is collected at source from the bills of the contractors to whom payments are made by the owner. In short, the burden of Cess is passed on from the owner to the Contractor. 5.2. He further submitted that the Act of 1996 and the Rules framed thereunder are to ensure that the Cess is collected at source from the bills of the contractors to whom payments are made by the owner. In short, the burden of Cess is passed on from the owner to the Contractor. 5.2. Learned Senior Counsel also submitted that the Cess became payable from the date of passing of the Act of 1996; in other words, the word ‘cess’ is applicable from the year 1996, when the said Act was passed; hence, it would be wrong to say that the Cess became applicable only for the work of Tender received/opened after 30.06.2010. 5.3. Learned Senior Counsel further submitted that the Circular dated 09.07.2010 was sufficient in its intention, inasmuch as thereby “For levy and collection of cess, the date 27 th July 2009, on which the Board has been notified and come into existence, shall be taken as cut off date”. As per learned Senior Counsel, the deduction in question is to be made as per the date fixed by the Government for the said purpose and that as per the contract, the stipulated date of completion of the work was 30.06.2010, and thus, the contention of the petitioner that the action of the respondents in levying & collecting the Labour Cess in question suffers from legal infirmity, is not worthy of any acceptance, in the given facts and circumstances. 5.4. As against the argument advanced on behalf of the petitioner on the basis of Annexure-4, which is dated 14.11.2011, learned Senior Counsel submitted that as is apparent on the face of it, the same was merely a letter addressed by the Financial Adviser, PWD, Jaipur to the Superintending Engineer, PWD, NH Circle, Jodhpur, and that the Financial Adviser was not empowered to change the date applicable for levy & collection of the Cess in question. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. This Court, after examining the limited issue submitted by learned counsel for the parties, finds that the petitioner who is a ‘AA’ Class PWD Contractor, engaged in execution of contract works, pertaining to Government, Semi Government & Sub- Contractors, has completed the work for the respondents in pursuance of the Tender in question dated 17.06.2009 (with date of opening of Tender Forms, alongwith requisite fee, as 29.06.2009 & closing of Tender forms as 03.07.2009; date of opening of Tender as 08.07.2009; work completion period as 11 months). 8. The limited question raised for adjudication by both the parties, is that the levy & collection of the Labour Cess for a Tender process initiated on 29.06.2009 would be applicable in the present case from the date of Circular i.e.09.07.2010, or the date prescribed in such Circular, which is 27.07.2009, or the date mentioned in Annexure-4 dated 14.11.2011, which is one of the orders which reflects that the deduction of the Labour Cess under the Act of 1996 and the Rules framed thereunder for the Tenders received/opened after 30.06.2010 or from the date of coming into force of the Act of 1996. 9. This Court observes that the Government of Rajasthan approved the Cess in question in accordance with Section 3 of the Act of 1996 and Registration of Establishment under Section 7 of the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996. 10. At this juncture, this Court considers it appropriate to reproduce the relevant part of the circular dated 09.07.2010, as hereunder: “It is therefore, directed that cess may be deducted on all such running projects in the State of Rajasthan under your jurisdiction and the same may be deposited in Budget Head 0230-Labour & Employment-800-Other Receipts-(06) cess for welfare of building and other constructions workers (welfare cess) through challan under intimation to the Cess Collector and Assessing Officer of respective jurisdiction. For levy and collection of cess, the date 27 th July 2009, on which date the Board has been notified and come into existence, shall be taken as cut off date.” 10.1. For levy and collection of cess, the date 27 th July 2009, on which date the Board has been notified and come into existence, shall be taken as cut off date.” 10.1. Relevant portion of the Annexure-4 dated 14.11.2011 is also reproduced as hereunder: “In this connection deduction of Labour Cess under the above Act became applicable for the work of tenders received/opened after 30-06-2010” 11. This Court considers it appropriate to go with the Circular dated 09.07.2010. As per the factual matrix of the present case, the Tender Process was initiated on 29.06.2009, while as per the Circular dated 09.07.2010, for levy & collection of Cess, the date i.e. 27.07.2009, on which the Board has been notified and came into existence, was to be taken as the cut off date, and therefore, there cannot be a retrospective applicability of the Cess in question and the said Circular will have to be strictly followed. Thus, going strictly by the Circular, no retrospective application of the Cess in question, for the Tender process initiated on 29.06.2009, other than the date (27.07.2009) stipulated in the Circular, can be provided. 12. In view of the above, the present writ petitions are allowed and accordingly, the impugned deduction of the Labour Cess, arising out of the Tender process in question initiated on 29.06.2009 and worked upon by the petitioner, is quashed and set aside. All pending applications stand disposed of.