IN THE HIGH COURT AT CALCUTTA

(Constitutional Writ Jurisdiction)

APPELLATE SIDE

Present:

The Hon’ble Justice Krishna Rao

W.P.A. No. 3307 of 2026

With

CAN No. 1 of 2026

With

CAN No. 2 of 2026

The Braithwaite Burn and Jessop Construction Company

Vs.

Union of India & Ors.

Mr. Soumya Majumder, Sr. Adv.

Mrs. Sharmistha Ghosh

Ms. Sanjukta Dutta

Mr. Ranit Ray

....For the petitioner.

Mr. Sukumar Bhattacharyya

Ms. Garima Raijada

Ms. Oindrila Chatterjee

Ms. Puja Sonkar

….For the respondents.

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Hearing Concluded On : 27.03.2026

Judgment on : 07.04.2026

Krishna Rao, J.:

1. The petitioner has filed the present writ petition challenging the notice

dated 9

th February, 2026 wherein the respondents have given 48 hours’

notice to the petitioner in terms of Clause 62 of the Standard General

Conditions of Contract (SGCC) to commence works /to make good the

progress of works, failing which and on expiry of the above said period,

the contract will be rescinded and the work under contract will be

carried out independently without the participation of the petitioner

and the Security Deposit of the petitioner shall be forfeited and

Performance Guarantee shall also be encashed.

2. As per E-Tender notice dated 28

th April, 2025 for construction of ROB

comprising Bow String Girder between Bahirkhand-Tarakeswar at Km

34/4-5 in Seoraphuli, Tarakeswar (SHE-TAK) line and other ancillary

works in connection with elimination of LC on 23/A in Howrah Division

under the Eastern Railway, the petitioner has participated in the said

tender process. The tender of the petitioner was accepted for a total

sum of Rs. 67,60,66,602.82/-. The petitioner has deposited a sum of

Rs. 38,54,900/- as Earnest Money and is retained as initial Security

Deposit in the form of Bank Guarantee and a sum of Rs. 3,38,03,330/-

is submitted as Performance Guarantee. Letter of Acceptance was

issued to the petitioner on 26

th September, 2025.

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3. As per the Notice Inviting Tender and the Letter of Acceptance, the work

is to be completed within a period of 18 months. On receipt of Letter of

Acceptance, the petitioner has taken all necessary steps to mobilize

men, machineries and infrastructure at the project site to complete the

work within the stipulated time.

4. Mr. Soumya Majumder, Learned Senior Advocate representing the

petitioner submits that on 23

rd October, 2025, a kick off meeting was

held in presence of the respondent authorities wherein the petitioner

has given a power point presentation showing the plan of execution and

had further sought assistance for detailed drawing of pile as well as

other sub structure along with removal of infringement like pipeline, HT

and LT power lines etc. He submits that the respondent authorities

assured that a coordination meeting will be planned with the State

officials and WBPDCL to remove the identified infringements.

5. Mr. Mazumder submits that further meeting was held on 18

th

November, 2025, enumerating the status report with details of work

done and also requested for rescheduling the meeting. On 24

th October,

2025, drawings in connection with the construction were handed over

to the petitioner. On 7

th November, 2025 and 21

st November, 2025,

notices were served to the petitioner informing the petitioner that the

petitioner has not mobilized men, plant and machineries. The petitioner

has sent detailed reply to the respondents indicating the steps taken by

the petitioner. On 27

th November, 2025, a kick off meeting was held

between the petitioner and the respondent authorities.

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6. Mr. Mazumder submits that during execution of the work, the

petitioner encountered several impediment necessitating removal or

taking effective steps to carry out the work i.e. Environment and forest

clearance, 75 Electricity poles/overhead lines, Gas pipelines, 120 Side

trees, 208 shop rooms, 2 temples and Health Care Centre. He submits

that the petitioner has already initiated additional resources, including

mobilization of manpower and supervisory staffs at site.

7. Mr. Mazumder submits that all of a sudden on 29

th December, 2025,

the respondents have issued a show cause notice to the petitioner

under Clause 62 of the Standard General Conditions of Contract and

on receipt of the same, the petitioner has replied the same to the

respondents on 5

th January, 2026, informing about the hindrances

which were required to be removed by the respondents to enable the

petitioner to commence the work. The petitioner also requested for

providing drawings for the test pile and specification of the location of

such test pile. The petitioner also requested the respondents for a

encumbrance free work site at the allocated work place.

8. Mr. Mazumder submits that without considering the request of the

petitioner, the respondents have issued the impugned notice. He

submits that for a major infrastructure work, 48 hours’ for “whole

work” is unreasonable, especially without considering the issues of site

constraints, approvals, environment clearance etc. which are within the

domain of the respondents.

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9. Mr. Sukumar Bhattacharyya, Learned Advocate representing the

respondents submits that the writ petition filed by the petitioner is not

maintainable. He submits that under Clause 63 of the Contract, there

is a provision of Arbitration but the petitioner has filed the present writ

petition. He submits that the petitioner has violated the provisions of

Clause 7 of the Contract by subletting the contract work to the third

party which is not permissible without the consent of the respondent

authorities.

10. Mr. Bhattacharyya submits that as per Clause 63.2.14 of the GCC, the

parties shall not approach any Court of Law for settlement of such

disputes or differences unless and attempt has first been made by the

parties to settle such disputes or differences through DAB and Arbitral

Tribunal. He has relied upon the judgment in the case of State of

Kerala and Others Vs. M.K. Jose reported in (2015) 9 SCC 433 and

submits that a writ court should ordinarily not entertain a writ petition,

if there is a breach of contract involving disputed questions of fact.

11. Mr. Bhattacharyya submits that the petitioner has consistently

breached multiple mandatory provisions of the GCC and has failed to

adhere its contractual obligations. He submits that as per Site Order

and the Instruction Register Book maintained by the Railways, it was

specifically instructed the petitioner to commence preliminary activities

but the petitioner has not complied with any instructions.

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12. Mr. Bhattacharyya submits that instant project does not fall within the

ambit of Environmental or Forest clearance requirements under

applicable law and contractual stipulations. He submits that Clause

17(A)(ii) has not applicable in the instant case. He submits that the

trees in the vicinity of the project site fall within the jurisdiction of the

Public Works Department and necessary coordination and actions have

already been undertaken by the competent authorities in accordance

with law. He submits that there is no impediment to execution of the

project on account of environmental or forest clearance.

13. Mr. Bhattacharyya submits that the programme and planning

documents dated 18

th November, 2025, as alleged by the petitioner is

not received by the office of the respondent authorities. He submits that

the petitioner was required to commence the work within 15 days from

the date of the Letter of Acceptance but even after completion of five

months from the date of issuance of letter of acceptance, the project

remained at a “planning stage” and no meaningful mobilization of

manpower, machineries, materials or site infrastructure is undertaken

by the petitioner.

14. The impugned notice issued by the respondents dated 9

th February,

2026, is under Clause 62 of the Standard General Conditions of

Contract. Clause 62 deals with Determination of Contract owing to

Default of Contractor. Clause 63 provides for Settlement of Dispute–

Indian Railway Arbitration and Conciliation Rules. The impugned order

is issued under Clause 62 of the SGCC. The value of the contract is

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more than 50 crores, thus Clause 63.2 is applicable in the present

case. As per Clause 63.2.14, “the parties shall not approach any Court

of Law for settlement of such disputes or differences unless an attempt

has first made by the parties to settle such disputes or differences

through DAB and Arbitral Tribunal”.

15. As per the case of the petitioner, during the course of execution of the

work under contract, the petitioner encountered several impediments to

take effective steps to carry out the work namely (i) Environmental and

Forest Clearance, (ii) 75 Electric poles/ overhead lines, (iii) Gas

Pipelines, (iv) 120 Side trees (v) 208 rooms (including hutments and

shops) (vi) 2 temples and (vii) Health Care Centre.

16. A kick off meeting was held on 23

rd October, 2025, with respect to the

contract work wherein in Clause 6 detailed plan for fixing of agencies

for various activities like piling etc. girders (Railway span) and other

works were discussed. The same was circulated by a letter dated 25

th

November, 2025. In the said meeting, the petitioner has informed about

the progress of the works and plan for execution of the work. The

petitioner has also requested for providing the following assistance:

“B. Assistance asked by the agency M/s.

BBJ:-

1. Detailed drawing of Pile and other sub-

structure along with the requisite co-ordinates

of proposed construction to be provided. In

response, Railway handed over the requisite

drawings to the agency on 24.10.25.

2. Removal of infringements like pipe line, HT &

LT power lines along with the encroachments.

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C. CE/Con/RSP intimated during the meeting that

a co-ordination meeting with State officials and

WBPDCL is planned shortly to remove identified

infringements. He also requested the agency

send their representatives also to be part of the

said meeting.”

17. On 18

th November, 2025, the petitioner has submitted Status Report

with the request for rescheduling of the meeting and raised several

points for consideration. The respondents have denied about receipt of

such representation of the petitioner on 18

th November, 2025. The

petitioner has also not shown any documents to prove that the letter

dated 18

th November, 2025, was served upon the respondents. On 21

st

November, 2025, the respondents have again issued notice to the

petitioner requesting the petitioner for sufficient mobilization at the

earliest, failing which necessary action shall be initiated. The petitioner

has submitted reply to the notices dated 7

th November, 2025 and 21

st

November, 2025 on 24

th November, 2025.

18. On 29

th December, 2025, a notice under Clause 62 of the Standard

General Conditions of Contract was issued to the petitioner directing

the petitioner to make necessary arrangements for progress of the work

within 7 days, failing which an action as provided in Clause 62 of the

SGCC by terminating the Contract and complete the balance work

without the participation of the petitioner will be taken. In reply to the

notice under Clause 62, the petitioner again requested for handing over

the encumbrances free work site for planning and execution. On 9

th

February, 2026, again a notice under Clause 62 was issued to the

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petitioner by giving 48 hours’ to commence the work and to make good

progress of the work but inspite of commencing the work, the petitioner

has filed the present application.

19. Letter of Acceptance was issued to the petitioner on 26

th September,

2025. As per the drawings approved by the respondents for the said

work, the Road Over Bridge is to be constructed by the Railway over the

West Bengal Public Works Department Roads. There are shops,

hutments, residential buildings and temples alongside the 9 meter wide

Public Works Department Road. Beyond the line of such existing

construction of buildings, there is no land provided by the Railways to

park the equipments and machineries of the contractor. The proposed

construction of Piers coincides with HP gas pipelines over the stretch.

The respondents have made out a case that the trees in the vicinity of

the project site fall within the jurisdiction of the Public Works

Department and necessary coordination and action have been

undertaken by the respondents to ensure that all statutory and

administrative requirements have been duly complied with and there is

no impediment of execution of the project on account of environmental

or forest clearance. Form the said stand of the respondents, it is clear

that the Railway authorities are in coordination with the Public Works

Department but admittedly neither they have placed any order nor

permission from the Forest Department or from the Public Works

Department to remove the trees by the petitioner.

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20. In Clause 3.3 of the SGCC provides that forest and environmental

clearances pertaining to the work commensurate with the progress of

work /agreed programme, will be obtained by Engineer and in the event

of any delay in securing respective clearances leading to delay in

execution of work, the Contractor shall be entitled to extension of time

period. The Railway authorities stated that they have ensured that all

statutory and administrative requirements have been duly complied

with but no communication is made to the petitioner that the Public

Works Department or the Forest Authorities have no objection for

removal of the trees or the said authorities have undertaken to remove

the said trees.

21. The respondents have also not specified in their report whether the

shops, hutments, residential buildings and temples alongside with the

work site has been removed so as enable the petitioner to execute the

work as per terms of contract. Before issuance of Tender of the said

work, the Executive Director, Civil Engineering (B&S)-II, Railway Board

by a letter dated 14

th May, 2024, informed the General Managers,

Indian Railways that the Division should have contracts to execute

works of utility/ fixed structures shifting in advance so that the civil

work of Road Over Bridge and Road Under Bridge can be started

without any delay. The respondents herein without complying with the

same awarded the work and till date no steps have been taken for

clearance of the site. The only contention made by the respondents that

the trees in the vicinity of the project site fall within the jurisdiction of

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Public Works Department and necessary coordination and action have

undertaken by the authorities but it is admitted that the trees have not

been removed and other obstructions have not been cleared. On the

other hand, the respondents have time to time issued notices to the

petitioner for progress of the work.

22. The respondents have taken another issue that the petitioner has

engaged its execution partner for carrying out project work to

strengthen the site execution and ensure adherence to time line which

is in violation of Clause 7 of the GCC April 2022 which prohibits

assignments or subletting of the contract or any part thereof. The

petitioner in his reply dated 5

th January, 2026, stated that the

petitioner has engaged their partner for carrying out the project work to

strengthen site execution and ensure adherence to the timelines. The

impugned notice is not issued to the petitioner on the ground that the

petitioner has engaged its partner in violation of Clause 7 of the GCC.

The impugned notice is only on the issue that the petitioner has not

made progress of the work. Clause 7 of the GCC is assignment or

subletting of contract but in the reply dated 5

th January, 2026, the

petitioner has intimated the respondents that the petitioner has

engaged its execution partner for carrying out the project works

strength and has not assigned or sublet the project to any third party.

23. In reply to the show cause notice dated 29

th December, 2025, the

petitioner by a reply dated 5

th January, 2026, has informed the

respondents that the petitioner has already mobilized the resources,

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site office has been established, electrical connection from WBSEDCL is

in advance stage, two staffs have been posted permanently at the site

apart from the regular visit of Project-in-Charge and support of survey

team, design team and other technical experts etc. In the said reply, the

petitioner has further informed the respondents that electricity poles/

overhead lines, gas pipelines, side trees and other encroachments are

required to be removed from the site to enable the petitioner to

commence the work.

24. The respondents have issued the impugned notice to the petitioner on

the allegation that the petitioner has not made progress of the work but

have not considered the reply of the petitioner. Even the respondents

have not dealt with the reply submitted by the petitioner on 5

th

January, 2026.

25. The respondents have relied upon the judgment in the case of M.K.

Jose (supra), the Hon’ble Supreme Court held that:

“12. As the factual narration would reveal,

the respondent has been invoking the jurisdiction of

the High Court under Article 226 of the Constitution

on various occasions challenging every action

which pertain to extension of time, denial of revised

estimate by the State Government and many other

facets of that nature and the High Court, we must

say, has been generously passing orders for

consideration by the appropriate authority, for

grant of opportunity of being heard to the contractor

and to consider his representation in accordance

with law. This kind of orders in a contractual

matter, in our considered view, is ill-conceived.

They not only convert the controversy to a

disturbing labyrinth, but encourage frivolous

litigation. The competent authority might have

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mentioned that more than 50% work remained to

be done but that should not have prompted the

Appellate Bench hearing the intra-court appeal to

appoint a Commission of two advocates and

granting them liberty to take assistance of a

competent engineer. As the Report would show, the

Commission of two advocates have taken

assistance of a retired Assistant Executive

Engineer and submitted the Report. Though, the

learned counsel for the State had not objected to

the same, yet we really fail to fathom how a writ

jurisdiction can be extended to cause a roving

enquiry through a Commission and rely on the

facts collected without granting opportunity to the

State to file objections to the same and in the

ultimate eventuate, cancel the order of termination

of contract. What precisely was the quantum of

work done and whether there had been a breach

by the owner or the contractor, are required to be

gone into by the appropriate legal forum.

13. A writ court should ordinarily not

entertain a writ petition, if there is a breach of

contract involving disputed questions of fact. The

present case clearly indicates that the factual

disputes are involved.”

26. In the case of Indsil Hydro Power and Manganese Limited Vs. State

of Kerala and Others reported in (2020) 16 SCC 276, the Hon’ble

Supreme Court held that:

“43. The order of the State Government dated

7-2-2001 shows that there was no deliberate act or

default on the part of KSEB. Indeed, it has not been

seriously disputed that at the material time, there

were agitations on the part of the farmers and

certain other circumstances which caused delay in

the construction of the transmission lines. However

as significant as these reasons are, it should not

lead to a situation where a private investor who

has acted upon the policy of the State Government

being left in the lurch as a result of supervening

circumstances which have resulted in the power

not being evacuated into the grid due to the non-

commissioning of the transmission lines at the

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material time by KSEB. It is imperative that

contractual obligations entered into by the State

have legal sanctity. A legal regime where the

sanctity of contracts is respected and commercial

contracts are enforced is essential to the

maintenance of the rule of law. Trade and

commerce can be freely conducted in a stable legal

order which provides remedies for enforcement.

45. We are in agreement with the view of the

State Government, as accepted by the High Court,

that the appellant was not entitled to the grant of

deemed generation status as a matter of right.

Similarly, the concessional power tariff which is

applicable for a period of five years from 1994 to

1999 was extended until 20-8-2000. This is

undoubtedly a matter of policy and the High Court

was justified in coming to the conclusion that it is

not open to the Court to foist a particular measure

of policy on the State. In what manner the State

should remedy the grievance of the private investor

is something which should be duly considered by

the State Government within the available

framework of law and its own policy.

46. To facilitate this exercise, we are of the

view that it would be appropriate if both the State

Government and KSEB together re-visit the entire

matter afresh and take an appropriate decision in

accordance with law preferably within a period of

four months from the receipt of a certified copy of

this order. The appellant would be at liberty to

supplement its earlier representations with

whatever, in addition, it may wish to submit before

the State Government within a period of one month

of the receipt of a certified copy of this order.”

27. Clause 63.2 of the SGCC provides for Dispute Adjudication Board

(DAB). Clause 63.2.14 provides that in terms of the contract that the

parties shall not approach any Court of Law for settlement of such

disputes unless an attempt has first been made by the parties to settle

such disputes or differences through DAB and Arbitral Tribunal.

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28. In the present case also there is a dispute with regard to the work

awarded to the petitioner. In one hand, the petitioner claims that the

petitioner has already commences the works and one the other hand,

the respondents have denied the same and issued the impugned notice.

29. In view of the above, this Court finds that the parties have raised

disputed question of facts and in the Standard General Conditions of

Contract, a specific provisions have been provided for settlement of

dispute, thus the writ petition in disposed of by giving liberty to the

petitioner to raise its all dispute to the respondent no. 4 within a week

from date and if the respondent no. 4 failed to settle the dispute to refer

the matter to the Dispute Adjudication Board in terms of Clause 63.2.1

for settlement. It is submitted by the petitioner that there is no Dispute

Adjudication Board is constituted. If no DAB is constituted and if the

respondent no.4 failed to settle the dispute, the respondent no. 4 shall

immediately refer the matter for Arbitration. Till the respondent no. 4 is

decided the dispute raised by the petitioner, if any, the interim order

shall continue.

30. WPA No. 3307 of 2026 along with CAN No.1 of 2026 and CAN No.2

of 2026 are accordingly disposed of.

Parties shall be entitled to act on the basis of a server copy of the

Judgment placed on the official website of the Court.

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Urgent Xerox certified photocopies of this judgment, if applied for,

be given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)