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The sole question which falls for consideration in this writ petition is whether a factory under construction and in the process of being established, is excluded from the purview of Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, ("BOCW Act" for short).

2. Shri L.Nageswar Rao, learned senior counsel appearing for the petitioner submits that the petitioner company is engaged in construction of an Independent Power Plant for generation of 2400 M.W. of Thermal Power at Bhurkamunda in the district of Jharsuguda, for which it has obtained necessary approval of the layout plans and specifications and requisite permission from the concerned authority to carry out such constructions, as provided under Section 6 of the Factories Act, 1948, read with Rule 3 of the Orissa Factories Rules, 1950. Accordingly, it is submitted that as the construction activities carried on by the petitioner are for the purpose of establishment of its Independent Power Plant, which constitutes a factory, as defined under the Factories Act and the petitioner having obtained necessary permission from the concerned authority for carrying out such constructions, as required under the Factories Act and the Orissa Factories Rules, the provisions of BOCW Act and the Building and Other Construction Workers' Welfare Cess Act,1996 ("Cess Act" for short) are not applicable to the petitioner's establishment.

7. On a reading of the statement of objects and reasons of the BOCW Act, it is seen that the said enactment was intended to provide safety, health and welfare measures for more than 8.5 million workers engaged throughout the country in building and other construction works. It was observed that these workers were one of the most numerous and vulnerable segments of the unorganised labour in India and their work was casual in nature, temporary relationship between employer and employee, uncertain working hours, lack of basic amenities and inadequacy of welfare facilities. In the absence of adequate statutory provisions, the requisite information regarding the number and nature of accidents was also not forthcoming and in absence of such information, it was difficult to fix responsibility or to take any corrective action. In order to overcome these anomalies, the BOCW Act was enacted to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.

10. Chapter V of the BOCW Act provides for constitution and functioning of Building and Other Construction Workers' Welfare Boards and Section 24 of the Act provides for constitution of Building and Other Construction Workers' Welfare Fund and its application.

11. Chapter IX of the BOCW Act makes special provisions regarding responsibility of employers (Section 44); responsibility for payment of wages and compensation (Section 45); and the notice of commencement of building or other construction work (Section 46), which obligates the employer to send written notice to inspector having jurisdiction in the area where proposed building or other construction work is to be executed at least thirty days before the commencement of any building or other construction work information of particulars which find mention under Section 46.

12. Section 62 of the BOCW Act empowers the State Government to frame rules for carrying out the provisions of the Act, after consultation with the expert committee, in pursuance of which, the State of Orissa has framed the Orissa Building and Other Construction Workers (Regulation of Employment and Condition of Service) Rules, 2002.

13. To provide for levy and collection of a cess on the cost of construction incurred by employers with a view to augmenting the resources of the Welfare Boards constituted by the State Governments under the BOCW Act, the Parliament enacted the Cess Act, wherein Section 3 provides for levy and collection of cess, which reads as under: