IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :- Hon’ble Justice Amrita Sinha WPA 21705 of 2024 With CAN 1 of 2024 Simplex Infrastructures Limited Vs.

State of West Bengal & Anr.

For the writ petitioner :- Mr. Jishnu Saha, Sr. Adv.

Mr. Saumya Tandon, Adv.

Mr. Arjun Basra, Adv.

Mr. Aishwarya Kr. Awasthi For State :- Mr. Biswabrata Basu Mallick, AGP.

Ms. Parna Roy Chowdhury, Adv.

Hearing concluded on :- 12.02.2025 Judgment on :- 25.03.2025 Amrita Sinha, J.:-

1. The petitioner participated in a bidding process floated by the Superintending Engineer State Highway Circle no. IV in the year 2011 and emerged as the L1 bidder. Work order was issued to the petitioner on 14th February, 2011 and the work was to be completed within a period of four years. The Notice Inviting Tender contained a provision for arbitration under Clause 25 of WBF No. 2911 ii.

2. After completion of the work certain dispute arose and the petitioner applied for invoking the provision for arbitration for settlement of the disputes. The prayer of the petitioner stood rejected by communication dated 12th July, 2023 on the ground that though the Notice Inviting Tender contained the arbitration clause but due to the implementation of the notification of the State being no. 558/SPW dated 13th December, 2011 published in the Kolkata Gazette Extraordinary on

15th December, 2011, the provision for arbitration stood omitted.

3. Rejection of the request for arbitration for settlement of the disputes is impugned in the instant writ petition. It has been submitted that the petitioner was never intimated as regards the omission of the provision for arbitration. The Notice Inviting Tender clearly prescribed the said provision. The authority could not have changed the terms and conditions relying on which the petitioner submitted its bid. The same will amount to changing the rules of the game after the game started, which is impermissible in law.

4. In support of the aforesaid submission the petitioner relies upon the judgment delivered by the Hon’ble Supreme Court in the matter of Union of India vs. Vertex Broadcasting Company Private Limited & Ors. reported in (2015) 16 SCC 198.

5. Learned advocate for the State respondents rely on the notification omitting the arbitration clause and submits that, at this stage the same cannot be invoked by the petitioner for resolution of the dispute. It has been submitted that it is not believable that the petitioner was not aware of the omission of the arbitration clause. The petitioner did not challenge the omission when it was initially notified in the official gazette.

6. It has been submitted that as the omission of the arbitration clause was published in the official gazette, the petitioner cannot be permitted to take the plea that the same was not within its knowledge or the same was not communicated separately. The moment the notification is gazetted, it has to be taken that it has been widely published and the petitioner cannot claim benefit citing ignorance of the same. There is no requirement of giving separate information.

7. The State has also sought to raise an issue with regard to the maintainability of the writ petition on the score that whether the petitioner was aware of the omission of the arbitration clause or not is a disputed fact. The petitioner stresses on the fact that the omission was not made known, whereas; the State contends that by virtue of the publication in the official gazette, the fact ought to have been known to the petitioner. Disputed question of fact ought not to be resolved before the writ court.

8. Learned advocate for the State relies on the decision delivered by the Hon’ble Supreme Court in the matter of Kerala State Electricity Board & Anr. Vs. Kurien E.Kalathil & Ors. reported in (2000) 6 SCC 293, and in the matter of Union of India & Ors. vs. Puna Hinda reported in (2021) 10 SCC 690. Reliance has also been placed on the judgment delivered by the Hon’ble Division Bench o