TaxTMI 
TaxTMI 
2012 (11) TMI 127
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....ompany within the meaning of companies Act, 1956 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 M....
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...., 2009 that quantification of the work had already done by 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 ....
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....ines issued vide Board's letter dated 30.03.2009 referred to above regarding discontinuance of the scheme of longitudinal middle berths, 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....
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.... GSCN coaches and 86 ACCN coach sets with indication of manufacturing date prior to the foreclosure date and the material is readily available at the firm's vendor's shop. The financial implication for the 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)/137/9P....
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....ntract for retrenchment of the above berths in railway coaches. It was followed by reminders dated June 14, 2011, and June 28, 2011. The petitioner company also submitted its representation dated May 3, 2011 to the respondent no.1 for settlement of its above claim the above representation was followed by 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. A....
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....t of presence of all the parties. The decisions of A. V.D' Costa Vs. B. C. Patael, reported in AIR 1955 SC 412, Durga Prasanna Gupta Vs. State of West Bengal, reported in AIR 1972 Cal 378, State of Bihar Vs. Barakar Engineering & Foundry Works Ltd., reported in AIR 1972 SC 378, State of Orissa Vs. Goenka Investment & Mining Industries 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 bot....
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....cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction." In view of the above settled principles of law the first preliminary objection with regard to the territorial jurisdiction cannot be sustained in law. Regarding 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 relevan....
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....ailable in the present writ application to apply the above decision in this case. In the matter of Musaraf Hossain Khan (supra) it was held by the Hon'ble Supreme Court that only such High Court within whose jurisdiction the order of subordinate court has been passed would have the jurisdiction to entertain an application under article 227 of the Constitution 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 n....