sanjiv_ail Started The Discussion:
Are B&OCW(RE&CS) Act 1996 and Building and Other Construction Workers Welfare Cess Act also applicable on the Building and construction work which are covered under the Factories Act 1948.
As per Sec. 2(d) of the Act it clearly provides that it dose not include building and other construction work to which the provisions of the Factories Act 1948 apply,
But in Gurgaon the officials of Factories department are insisting to deposit the cess to such type of constructions also before considering the application for occupancy certificate,
1. Are any new notifications or amendments issued to cover the premises which are presently covered under the Factories Act ?
2. That can state over ride the provisions of Central Act ?
Pls ask them for the demand in writing & incase as you contend Factories Act application provides for an exemption ,you can get stay from the High Court by moving a Writ.Oral demand is of no avail & may be to instill fear in the Industry.
With kind regards,
VS Rajan Associates,
Advocates & Notaries,
No.27, Ist Floor, Singapore Plaza,
No.164, Linghi Chetty Street,
Chennai – 600 001.
Off : 044-42620864, 044-65874684
Mobile : 98401 42164,
The building being constructed will not turn into a factory unless one of the ingradient of Factories Act, 1948 i.e. the 'manufacturing process' within the meaning of section 2(k) of the Act is present. Hence, you wud appreciate that the Factories Act, 1948 will come into play only when some manufacturing process starts in the building.
The parliament, in its very wisdom, has not applied the BOCW Act to the factories as the Factories Act, 1948 contains provisions regarding health, safety, welfare and workering hours of the workers and the same provisions are also incorporated in the Act and Rules under BOCW. The provisions might clash.
For these reasons the BOCW Act would be applicable on a building being erected which has not yet turned into a factory. Hence, the Labour Authorities are justfied in asking cess under the BOCW Welfare Cess Act.
This means that all the construction activities of factory building will be covered under the cess provisions, as approval of factory premises will only be received from factory department after its completion.
In our case we have made some construction for expansion of existing storage wharehouse and admin block, for the same the drawings were already approved by CIF, Chandigarh.
To my understanding if the drawings and final completion is being certified by Factories Dept., under factories act, then the provisions of cess and subjected act shall not apply.
In such case what is the meaning and relavance of exemption of any building and other construction work to which the provisions of the Factories Act 1948 apply. Which type of construction the B&OCW(RE&CS) Act 1996 in Sec. 2(d) of the Act refer which are exempt.
Again the logic is same. Please read definition of 'factory' given in section 2(m) of the Factories Act, 1948.
Section 6 of the Factories Act deals with approval, licencing and registration of the factories. Under section 6(1)(e), no licence can be granted to you unless you give a notice as specified in section 7. Pls also read Explanation to section 6(3) of the Act. According to section 7, the occupier has to give notice of at least fifteen days before he begins to occupy or use the premises as a factory.
Hence, unless you start manufacturing process, it cannot be a factory.
Secondly, while errecting a building, you may have employed about 20 workers but you may be running factory with 100 or more workers. The situation can be vice-versa. The factory fee depends on the power-load being used and the number of workers employed in a factory and not in the construction of the same.
"building or other construction work" means the construction, alteration, repairs, maintenance or demolition of or in relation to, buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works (including storm water drainage works), generation, transmission and distribution of power, waterworks (including channels for distribution of water), oil and gas installations, electric lines, wireless, radio, television, telephone, telegraph and overseas communications, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aqueducts, pipelines, towers, cooling towers, transmission towers and such other work as may be specified in this behalf by the appropriate Government, by notification but does not include any building or any construction work to which the provisions of the Factory Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), apply;
If the factory act is in force already, the BOCW ACT is not applicable and at the same time,if the construction of new factory is taking place where the factory licence is not obtained for the same, BOCW ACT is applicable.
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