The main legal point established in the judgment is that the Railways were directed to permit the Petitioner to utilize the lapsed rakes by extending their expiry period, as the circular dated 17th September 2013 had been quashed in a previous judgment.

JUDGMENT

Dr. S. Muralidhar, CJ. - This is the second round of litigation involving the Petitioner on the one hand and the Opposite Party Nos.1 to 3 - South Eastern Railway (SER/Railways) on the other concerning the disputes arising out of the Wagon Investment Scheme (WIS) introduced in the Railway budget of 2005-06.

2. In the first round of litigation, the Petitioner had filed W.P. (C) No.2254 of 2017 which was disposed by a Division Bench (DB) of this Court on 18th January, 2018. In terms of the said judgment, representations dated 30th January, 2018 and 13th April, 2018 were made by the Petitioner to the Railways which were rejected by the impugned order dated 24th April, 2018 passed by the Chief Operations Manager (COM), SER (Opposite Party No.2). Accordingly, the present writ petition has been filed.

3. The background facts are that in the Railway budget 2005-06, a new scheme called 'WIS' was introduced. The objective of the WIS was to encourage Public Private Partnership (PPP) for procurement of wagons to meet the anticipated incremental freight traffic of the later years. WIS envisaged that the customers investing in Railway Wagons will be assured of the supply of a guaranteed number of rakes (each rake containing 59 wagons) every month based on the number of rakes procured and the turn round of the type of wagons with 10% concession in freight. In addition, two bonus rakes per month would be supplied, without freight concession for the types of wagons indicated under para 7.9 of the WIS. The guaranteed rakes were in addition to the normal supply of rakes to the investors during the previous financial years.

4. Pursuant to the WIS which was introduced on 26th February, 2005, the Petitioner is said to have invested Rs.74 crores for the procurement/purchase of five rakes. Between 29th March 2006 and 29th January 2008 the Petitioner signed five separate agreements, on each in respect of five rakes.

5. On 17th September, 2013 a circular was issued by the Railway Board on the subject of admissibility of WIS benefits to third parties for movement to their consignments in WIS rakes. The Railway Board sought to interpret the word 'assign' as being relevant only when a company which is the investor is assigned to some other owner in the case of its liquidation/merger as a result of which its assets stand transferred to some other entities. The Railways took the stand that the investor owner cannot 'assign' the rakes of WIS to a third party.

6. The above circular was challenged in a numbers of writ petitions by some of the investors in the WIS, including the present Petitioner. In W.P.(C) No.3066 of 2016 filed by Shyam Metalics & Energy Limited, a DB of this Court by judgment dated 29th November, 2016 quashed the circular on the ground that the word 'assigned' is nowhere used in the WIS and that the circular had been issued under a wrong impression. It was held that the circular dated 17th September, 2013 "does not relate to the agreement or the scheme in question and has to be ignored while interpreting the scheme or the agreement between the Petitioner and the Opposite Parties while considering the question of using wagons by the Petitioner as per the agreement between the parties".

7. Significantly, in para 12 of the said judgment, the DB observed as under:

"12. It may also be stated that in the present case, though the Arbitration clause is provided for in the Scheme as well as the agreement, but as there is no question of dispute or difference between the parties relating to any matter arising out of the agreement, and further that we are of the opinion that the Circular itself does not apply to the present case, we would not be inclined to relegate the parties to the Arbitrator under the aforesaid clause."

8. On the basis of the above judgment, a separate writ petition filed by the present Petitioner i.e. W.P. (C) No.2254 of 201