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TMI Blog2012 (11) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... 56 having its registered office at "IMECO House", Budge Trunk Road, Dakghar, Maheshtala, Kolkata-700141 with its workshop situated at Kharagpur. The respondent no.1 was a company incorporated under the Companies Act, 1956 as a public sector undertaking for manufacturing Rail Coaches, spare parts and Mining Equipments. The Government of India owned 54% of total equity shares and balance 46% was held by public, financial institutions, foreign institutional investors, bank and employees. The respondent no.1 had been designated as "Mini Ratna Category-II" and plays a privotal role and the service core sectors like, defence, rail, power, mining and infrastructure. In other words, the respondent no.1 is a state within the meaning of Article 12 of the Constitution of India having deep and pervasive control of the respondent no.2 on it. With the objective of increasing passenger carrying capacities it had been decided by the respondent no.3 that the additional Berths(Meddle berths) should be provided on longitudinal side of existing AC 3-Tier Rail Coaches and Sleeper Class Rail Coaches. The above decision was communicated to all General Managers, All India Railways by the competent autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contractor(includes the berths and mountings already manufactured but not fitted) till the issue of notification regarding the change in policy might be done by the railways and the contract be foreclosed following the due procedure. It had further been noted by the above communication that based on such quantification, payments to the contracting agency might be released for the work already done till the issue of notification regarding the change in policy. The above communication was issued with concurrence of the Finance Director of Ministry of Railway. The above communication is quoted below: "The General Managers All Indian Railways. ICF, Chennal, RCF, Kapurthala The Director General RDSO, Lucknow Sub. : Provision of longitudinal middle berths in coaches - policy review Ref. : (i) Board's letter No. 2001/M (C )/137/10 Vol. II Pt. II dated 25.04.2007 (ii) Board's letter No. 2007/M ( C) /137/9 Pt. Dated 18.02.2009 Further to the Board's letter dated 18.02.2009 cited as reference (ii) as above, the following clarification is given as some of the zonal Railways have raised certain doubts regarding implementation of the above policy review. (i) The quantification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs, wherein it was clearly indicated that payments are to be released to the contractors for all such berths which had been fitted on the coaches as also for those which had been manufactured till the date of notification of Board guidelines i.e. 30.03.2009, even if the same were not fitted in the coaches. Reports from various quarters indicate that the comprehensive quantification of the berths manufactured and consequent payments on this account have still not been reconciled/released on many of the Railways. Railways were once again advised vide Board's letter No. 2010/M (C)/142/2 dated 13.05.2010 to communicate the fund requirements to meet this liability. Some of the Railways have communicated that they are still to come to a conclusive figure and that the bills raised by some contractors are under dispute and subject to reconciliation. Considering that policy directives were issued more than a year back and such berths have been physically removed from the coaches, it is once again requested for an early reconciliation and settlement of the pending bills. Action taken in this context may kindly be advised. (Arvind Nautiyal) Dir. Mech. Engg. (Chg.) Railway Board." Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settlement of material cost for the balance quantity of material available at the firm's vendor shop is as follows: I. Retro fitment of longitudinal middle berths in SCN coaches. Material cost for 1 coach set Rs. 1,10,070 Material cost for 425 coach sets Rs. 1,10,070 x 425 = Rs. 4,67,79,750 II. Retro fitment of longitudinal middle berths in ACCN coaches. Material cost for 1 coach set Rs. 1,02,400 Material cost for 86 coach sets Rs. 1,02,400 x 86 = Rs. 88,06,400 Total financial implication for settling material cost for GSCN & ACCN coaches under allocation 23-2131-03 = 4,67,79,750 + 88,06,400 = 5,55,86,150/- When the issue is once settled, the consignments are to be disposed and this huge quantity of such berths are not required for this division this can be better utilized on at work. In this connection Railway Board letter No. 2007/M (C)/137/9Pt. dated 30.03.2009 may please be referred. Hence, it is requested to CME that kindly advised the disposal of the berths including the mountings which is to be accepted form the vendors as per the Railway board directives. Additional fund of Rs. 5,56 cores is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation dated June, 20, 2011, February 4, 2012 and February 8, 2012. In the meantime, the Senior Divisional Mechanical Engineer, Southern Railway disclosed under its communication dated October 31, 2011 on the basis of an application under Right to Information Act, 2005 that the payment in connection with retrenchment of longitudinal of Middle Berth in AC 3-Tier and Sleeper Coaches would be released on specific direction by the Headquarters and subject to providing fund in the current year. At the very outset, a preliminary objection with regard to the maintainability of this writ application was raised by the respondent nos.2 and 4 on behalf of the respondents. According to Mr. Swapan Banerjee, learned advocate appearing for the respondent nos.2 to 4, the execution involved in this writ application arise outside the territorial jurisdiction of this High Court. According to him, the office of the respondent authority was lying and situated outside the territorial jurisdiction of this High Court and the work under reference was also executed outside the territorial jurisdiction of this High Court. According to Mr. Banerjee the contract was also terminated outside the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries Pvt. Ltd., reported in 1983(1) CHN 354, The Chairman & Managing Director, Punjab National Bank & Ors. Vs. Dilip Kumar De, reported in 1987(1) CLJ 354, N. K. Chakrabarty Vs. Council for the Indian School Certificate Examination & Ors., reported in CAL LT 1999(1) HC 42, Kusum Ingots & Alloys Ltd. Vs. Union of India, reported in 2004(6) SCC 254, Bharumal Udhomal & ors. Vs. Sakhawatmal Veshomal & Ors., reported in AIR 1956 Bom 111, State of Punjab Vs. A. K. Raha, reported in AIR 1964 Cal 418, S. P. Consolidated Engineering Co. Ltd. Vs. Union of India, reported in AIR 1966 Cal 259, Omlica Industries Vs. CCE reported in (2007) 6 SCC 769, Monghibai Vs. Cooverji Umersey, reported in 66 IA 210 in support of his submissions made by Mr. Mukherjee with regard to the maintainability of this writ application. Having heard the learned counsel appearing for both the parties at length and having considered the facts and circumstances of this case the preliminary objections raised by the respondent nos.2 to 4 is taken up for considering. Admittedly, the power conferred by clause 1 of Article 226 of the Constitution of India may be exercised by any High Court exercising jurisdiction in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the second preliminary objection of maintainability of the claim of the petitioner company against the union of India, I find that admittedly, the claim of the petitioner company was against the respondent no.1. Admittedly, the respondent company was an instrumentality of the state. Admittedly, for supply longitudinal middle berth in 3-tier railway coaches run within the jurisdiction of Southern Railway the above respondent entered into a contract for supply of the aforesaid middle berths in longitudinal side of Railway Coaches with the respondent no.1. Therefore, all parties are present before this court. It is a settled principles of law that if all parties are present before the court in a suit the same is maintainable. Reference may be made to the decision of the Monghibai Vs. Cooverji Umersey, reported in 66 I.A. 210 and the relevant portions of above decision are quoted below. "It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property, and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs, if they will consent, or as co-defendants if they will not. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India. Therefore, the above decision does not held the respondent nos.2 to 4 in any way. In the matter of M/s. Kusum Ingots(supra) in the doctrine of forum convenience was the issue for examination. That issue is absent in the instant writ application. With regard to the merits of the present case, admittedly, the respondent no.1 entered into a contract with the Southern Railway for applying fitment of longitudinal middle berth in sleeper class Railway coaches. It is not in dispute that the respondent no.1 entered into a contract with the petitioner company. It is reveled from the materials on record that during the progress of the above work, the above contract was cancelled on the basis of a policy adopted by the Railway Board. Therefore, the petitioner company admittedly acted upon the assurance given by the respondent no.1 investing its fund for manufacturing longitudinal middle class berths. It is also an admitted position that that above work was cancelled on the basis of the decision of the Railway Board without any fault or laches on the part of the petitioner company or the respondent no.1. By virtue of the communication dated March 13, 2009 issued by the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and if such an estoppel does not fly in the face of any statutory prohibition, absence of power and authority of the promisor and is otherwise not opposed to public interest, and also when equity in favour of the promisee does not outweigh equity in favour of the promisor entitling the latter to legally get out of the promise." Since the respondent no.1, being an instrumentality of the State acted on the basis of the promise held by the Southern Eastern Railway. It has been held hereinabove that all the parties before this court this is an application under article 226 of the Constitution of India can be disposed of commanding the concerned respondents to release its fund for payment of the claim of the petitioner company. I, therefore, direct the competent authority of the Southern Railway to release the fund allotted to it for payment towards the fitment of longitudinal berths in its Sleeper Class Railway Coaches on the basis of the claim of the respondent no.1 in its favour so far as the claim under reference is concerned within a period of two months from date. The respondent no.1 is directed to release the above amount in favour of the petitioner company within a month fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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