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. 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 2017 was allowed by the DB of this Court by judgment dated 18th January, 2018. On the basis of the above judgment, a separate writ petition filed by the present Petitioner i.e. W.P. (C) No.2254 of 2017 was allowed by the DB of this Court by judgment dated 18th January, 2018. Paras 4 and 5 of the said judgment, which are relevant for the present purpose, read as under: " 4. In view of the aforesaid facts and circumstances of the case and for the reasons given in the JUDGMENT dated 29.11.2016 passed in W.P.(C) No.3066 of 2016, we allow this writ petition to the extent that the Circular dated 17.9.2013 is quashed insofar as it relates to the case of the petitioner and the petitioner shall be permitted to carry on the business in terms of the agreement ignoring the direction issued in the aforesaid Circular dated 17.9.2013. 5. It is further directed that the lapsed rakes to which the petitioner may be found entitled to in view of the quashing of the Circular dated 17.9.2013, may be permitted to utilize by the petitioner within the period of agreement, and since the agreement is to expire shortly, the petitioner may file an application for extension of time for use of the lapsed rakes, which application shall be considered by opposite party No.2-Chief Operation Manager (COM ), South Eastern Railway, in accordance with law by a reasoned and speaking order and, if necessary, grant some reasonable time for use of the lapsed rakes." (emphasis supplied) 9. It should be noted here that against a similar order passed by the DB of this Court on 22nd December, 2016 in W.P.(C) No.22376 of 2016 (Gimpex Limited v. Union of India), the Railways preferred a special leave petition i.e. SLP (C) No.29423 of 2017 before the Supreme Court. The said SLP was dismissed in limine by the Supreme Court of India on 22nd November, 2017. 10. In the case at hand, the Petitioner on 30th January, 2018 made an application to the Opposite Party No.2 (COM) setting out the details of the WIS rakes in which the Petitioner had invested and prayed for extension of the expiry period of the said rakes to enable a reasonable period of utilization by way of loading of the lapsed WIS rakes. 11. The Petitioner states that as of that date the total number of lapsed rakes was 1351. 11. The Petitioner states that as of that date the total number of lapsed rakes was 1351. This was based on the information obtained from the SER by way of an application under the Right to Information Act, 2005 (RTI Act). In response to the Petitioners application dated 30th January 2018, the Railways wrote to the Petitioner on 3rd April, 2018 asking the Petitioner to provide the details of the orders/indents placed by the Petitioner after 17th September, 2013 which were refused by the Railways on account of the circular dated 17th September, 2013 "so that the Railway may proceed for compliance of the Hon'ble High Court's directive." 12. The Petitioner wrote a further letter dated 13th April, 2018 to the COM pointing out that during the currency of the quashed circular dated 17th September 2013 the Petitioner was barred from placing any indents for supply of the rakes. It was, therefore, out of context to ask about the number of indents lapsed. What was relevant was how many rakes were there that could not be indented or loaded on account of the circular. 13. It was again pointed out by the Petitioner that the number of rakes that could not be loaded under the WIS, and had lapsed, was 1351. It was requested that in respect of the said 1351 lapsed WIS rakes, the Petitioner should be allowed "to place the indents in accordance with the loading capacity of the loading terminal" and to extend the validity and the expiry date of WIS rakes for their utilization in loading. 14. On 25th April, 2018 the Principal COM, SER passed a detailed speaking order holding that since the Petitioner had failed to identify the specific number of rakes that had lapsed 'only on account of third party assignment' and that, therefore there was nothing to show that the lapsing of 1351 rakes was due to the Railway Board circular dated 17th September 2013. It was accordingly held that the prayer of the Petitioner to utilize the 1351 lapsed rakes was not 'tenable'. As a result, the further issue regarding extension of time for the use of such rakes was held to not require further discussion. 15. It was accordingly held that the prayer of the Petitioner to utilize the 1351 lapsed rakes was not 'tenable'. As a result, the further issue regarding extension of time for the use of such rakes was held to not require further discussion. 15. In response to the above order, the Petitioner wrote to the Opposite Party No.2 (COM) on 29th May, 2018 pointing out that the order was contrary to the directions of this Court in its judgment dated 18th January 2018. It was inter alia pointed out that there was a ban on third party booking as a result of the Railway Board circular of 17th September, 2013. 16. When no response was received, the present writ petition was filed on 5th June, 2018. On the very first date of listing of the petition i.e. 27th June, 2018 counsel for the Opposite Party Railways sought time to file counter affidavit. It was ultimately filed only on 31st August 2018. A preliminary objection was raised that since the petition involved disputes questions of fact and there was an arbitration clause in the agreement, the Petitioner ought to have invoked the said clause for adjudication of the dispute. The other major contention was that the term of the five separate agreements in terms of the WIS, that were entered into between the Petitioner and the Railways, had already expired on the completion of the respective 10-year periods for which they had been entered. 17. On merits, the stand of the Railways was as under: ".....The Petitioner was supplied with 1928 rakes against 2206 indents placed, whereas its entitlement as claimed was 6482. 278 indents were cancelled for various reasons. For want of eligible indent not placed by the petitioner the Railway cannot be blamed. Therefore the lapse of 2843 rakes is not on account of Railways or violation of the WIS Agreement. It is the admitted position is that the indents placed by the Petitioner was 2206 out of which 278 indents were cancelled for various reasons and the indents eligible for supply was 1928. With this position the Petitioner's claim that 1351 indents have lapsed because of the alleged intervening circular dated 17.9.2013 is completely misleading. When the indents were not placed the allegation of the Petitioner in this regard is baseless. With this position the Petitioner's claim that 1351 indents have lapsed because of the alleged intervening circular dated 17.9.2013 is completely misleading. When the indents were not placed the allegation of the Petitioner in this regard is baseless. As stated above 3rd party assignment is not permissible under the WIS nor the Petitioner placed indents for 3rd party during the course of the WIS Agreement." 18. According to the Railways, the Petitioner did not produce any evidence to the effect that indents had been cancelled because of the circular dated 17th September, 2013. The Petitioner also did not supply any documents to prove that it had placed indents in the first place in respect of the said 1351 rakes in terms of the WIS policy. The Railways contended that on scrutiny of records it was found that no indents had been cancelled on account of the said circular and also there was no provision for third party assignment. The Railways, therefore, defended the impugned order stating that it was in compliance with the directions issued by this Court in its judgment dated 18th January, 2018. 19. The Petitioner filed a rejoinder on 28th November, 2018. It was reiterated that it was only on account of the circular dated 17th September, 2013 that the Petitioner was barred from placing any indent and therefore, the Petitioner could not avail the facility of loading of the rakes in terms of the WIS agreement. Inter alia the Petitioner pointed out that other WIS customers who had filed similar writ petitions as the Petitioner and had succeeded before this Court had been allowed third party assignments by the SER. It was pointed out in the rejoinder affidavit as under: "7.....In one such instance WIS customer M/s Sara International Pvt. Ltd. which has its loading station at Jaroli under CKP division, South Eastern railway was allowed to load iron ore fines from Jaroli under third party assignment where consignor was M/s. Ujala Minerals and consignee was also M/s Ujala Minerals." 20. The relevant documents in support of the above averments were enclosed with the rejoinder affidavit as Annexure-12. 21. This Court has heard the submissions of Mr. Pitambar Acharya, learned Senior Advocate appearing for the Petitioner and Mr. A.K. Mishra, learned counsel appearing for the Opposite Parties (Railways). The parties have also filed their respective written note of arguments. 22. The relevant documents in support of the above averments were enclosed with the rejoinder affidavit as Annexure-12. 21. This Court has heard the submissions of Mr. Pitambar Acharya, learned Senior Advocate appearing for the Petitioner and Mr. A.K. Mishra, learned counsel appearing for the Opposite Parties (Railways). The parties have also filed their respective written note of arguments. 22. To begin with, the Court finds no merit in the preliminary objection raised by the Railways that the agreements in question have already come to an end and therefore, the prayers cannot be entertained. Further the contention that there is an arbitration clause in each of the agreements which ought to be invoked, is also without merit. These pleas were available when the order dated 18th January 2018 was passed by this Court in the first round. There was an implicit rejection of such pleas by this Court in the said order, even assuming they were raised then. Accordingly, they cannot be permitted to be raised now to frustrate the said order dated 18th January 2018 which has attained finality. 23. The facts not in dispute are that the judgment of this Court in the five writ petitions challenging the Railway Board circular dated 17th September 2013, have attained finality. Therefore it is no longer open to the Railways to contend that the circular dated 17th September, 2013 will govern the applications filed by the Petitioner "for extension of time to use of the lapsed rakes". The Railways also cannot continue to contend that third party assignments are not permissible in terms of the WIS. 24. As far as the number of the lapsed rakes is concerned, again there appears to be no dispute that as far as the Petitioner is concerned, it stood at 1351. The Petitioner has enclosed with the petition the information in this regard provided by the Railways itself under the RTI Act in a tabular form as under: QUESTION ANSWER 1.a) Please provide the following details pertaining to WIS rakes of M/s Bagadia Brothers Pvt. Ltd. Since April 2006 to August 2016. 1.a) The information regarding details of WIS loading from Jaroli station from April' 2006 to August' 2016 are furnished in Annex-'A'. 1.b) From April, 2006 to August' 2016, total cumulative no. of rakes lapsed, total rakes lapsed with eligibility of 10% of freight rebate and total rakes lapsed from September' 2013. 1.a) The information regarding details of WIS loading from Jaroli station from April' 2006 to August' 2016 are furnished in Annex-'A'. 1.b) From April, 2006 to August' 2016, total cumulative no. of rakes lapsed, total rakes lapsed with eligibility of 10% of freight rebate and total rakes lapsed from September' 2013. 1.b) From April' 2006 to August' 2016, total cumulative no. of rakes lapsed in 2843. Total rakes lapsed with eligibility of 10% freight rebate is 1741. Total rakes lapsed after September' 2013 is 1351. 25. Interestingly, the Railways have in their reply in the present petition, not disputed the above facts. In response to para 6 of the writ petition where a detailed reference is made to the 1351 lapsed rakes, the Railways in para 12 of their reply while not disputing the above facts, have only kept harping on the fact that the Petitioner had placed indents only for 2206 rakes of which 1928 were found eligible and 278 were cancelled for the reasons other than the circular dated 17th September, 2013. 26. Further, there is no specific denial by the Railways of the Petitioners averments in para 10 of the writ petition that on account of Railway Board's circular dated 17th September, 2013 the Petitioner was barred from placing the indents for supply of rakes involving assignment to third parties. Likewise there is no specific denial of the Petitioners assertion in para 11 of the writ petition that it was prevented by the Railways from placing indents in view of the restrictions imposed by the circular dated 17th September 2013, as is evident from the information supplied to the Petitioner. 27. Nevertheless, in order to examine the tenability of the stand of the Railways in the present writ petition, the Court has perused the pleadings in the earlier writ petition W.P.(C) No.2254 of 2017 and the order dated 18th January 2018 passed by the DB of this Court. The memorandum of the petition in W.P.(C) No. 2254 of 2017 contained specific averments by the Petitioner in paras 19, 28, 29, 30 and 31 that it was unable to place indent for third party bookings in view of the circular dated 17th September, 2013. The memorandum of the petition in W.P.(C) No. 2254 of 2017 contained specific averments by the Petitioner in paras 19, 28, 29, 30 and 31 that it was unable to place indent for third party bookings in view of the circular dated 17th September, 2013. Except contending that the agreements do not permit assignments in favour of third parties, there does not appear to be any specific denial by the Railways of the above averment of the Petitioner about its inability to place indents on account of the circular dated 17th September, 2013. In its reply to W.P.(C) No.2254 of 2017 the Railways sought to justify its interpretation of the word 'assign' so as to prevent assignment of the benefits of the WIS rakes to third parties. The said interpretation was expressly negatived by this Court. 28. In the judgment dated 29th November 2016 in W.P. (C) No.3066 of 2016 (Shyam Metalics & Energy Ltd. v. Union of India), this Court had while quashing the said circular dated 17th September 2013 held that the Petitioner in that case should be permitted to carry on the business in terms of the agreement ignoring the direction issued in the circular dated 17th September, 2013. Likewise, as far as the present Petitioner is concerned, this Court in its order dated 18th January 2018 in W.P.(C) No.2254 of 2017 noted at the outset that learned counsel for the parties did not dispute the fact of the case of the Petitioner was similar to the fact in W.P.(C) No.3066 of 2016. Then in paragraph 3 of the judgment dated 18th January 2018 this Court recorded as under: "3. Although several prayers have been made in the writ petition, the petitioner is limiting its prayer to the quashing of the Circular dated 17.9.2013 and to permit the petitioner to use the lapsed rakes to which the petitioner may be found entitled to if the Circular dated 17.9.2013 was not in existence, and for which, if necessary, the opposite party may extend the time for using the lapsed rakes." 29. Thereafter, the Court proceeded to quash the same circular and issued an identical direction that the Petitioner "should be permitted to carry on the business in terms of the agreement ignoring the direction issued in the aforementioned circular dated 17th September, 2013." Further, the operative portion of the order dated 18th January 2018 reads as under: "5. Thereafter, the Court proceeded to quash the same circular and issued an identical direction that the Petitioner "should be permitted to carry on the business in terms of the agreement ignoring the direction issued in the aforementioned circular dated 17th September, 2013." Further, the operative portion of the order dated 18th January 2018 reads as under: "5. It is further directed that the lapsed rakes to which the petitioner may be found entitled to in view of the quashing of the Circular dated 17.9.2013, may be permitted to utilize by the petitioner within the period of agreement, and since the agreement is to expire shortly, the petitioner may file an application for extension of time for use of the lapsed rakes, which application shall be considered by opposite party No.2-Chief Operation Manager (COM ), South Eastern Railway, in accordance with law by a reasoned and speaking order and, if necessary, grant some reasonable time for use of the lapsed rakes." 30. In the impugned order dated 24th April 2018, which is assailed in the present petition, the COM has identified two issues which according to him were required to be addressed as under: '(i) Whether there is any instance of lapsed rakes to which the Petitioner is entitled in view of quashing of Railway Board's Circular No.2006/TC (FM)/4/25/Pt. I dated 17.9.2013? (ii) Whether an extension of time for the lapsed rakes can be permitted to the Petitioner since the Petitioner WIS Agreement has expired?' 31. In the considered view of the Court, the above two issues appear to be framed in a manner that run contrary to the directions issued by this Court in its judgment dated 18th January, 2018. The fact that there were 1351 lapsed rakes stands admitted by the Railways in its reply under the RTI Act. This is not denied in the impugned order of the COM but is sought to be brushed aside by saying that "merely mentioning the numbers of lapsed rakes after September 2013 does not lead to the conclusion that this total number of 1351 rakes had lapsed only due to on account of third party assignment." Once the Railways have themselves admitted that the lapsed rakes were 1351, there was no question of further investigating whether such lapsing was only on account of third party assignment. That is not the direction issued by this Court. 32. That is not the direction issued by this Court. 32. Once it was clear that there were lapsed rakes, the Railways had to permit the Petitioner to utilize those lapsed rakes by extending the time for that purpose. In other words, this Court did not link the issue of the entitlement of the Petitioner to the lapsed rakes, to the Petitioner having to demonstrate that it had placed indents in respect of such lapsed rakes. With the judgment dated 18th January 2018 passed by this Court having attained finality, it is not possible to accept the plea of the Railways that no third party assignments are permissible under the WIS and further that the Petitioner must show that it had been prevented from placing indents on that score. The Railways cannot be permitted to frustrate the benefit granted to the Petitioner under the WIS in terms of this Courts judgment dated 18th January 2018. In other words, the Court cannot permit the Railways to subvert the mandamus issued to it by this Court in the judgment dated 18th January 2018 to consider the Petitioner's case for extension of time for utilization of the lapsed rakes keeping aside totally the circular dated 17th September, 2013. 33. The impugned order of the COM betrays the refusal by the Railways to accept the fact that the circular dated 17th September 2013 has in fact been quashed by this Court, which decision has been affirmed by the Supreme Court of India. Both in the impugned order as well as the reply filed, it sought to be reiterated that the third party assignment was not permissible under the WIS. This stand in fact has been categorically rejected by this Court in the earlier round of litigation. There is also no categorical denial either in the reply filed in the earlier petition or to the present one that the circular dated 17th September 2013 had in fact prevented the Petitioner from placing indents. 34. The stand of the Railways that the benefits under the WIS cannot be assigned to third parties appears to contrary to the stand taken by the Railways as far as M/s. Sara International Private Limited, an identically placed party, is concerned. 34. The stand of the Railways that the benefits under the WIS cannot be assigned to third parties appears to contrary to the stand taken by the Railways as far as M/s. Sara International Private Limited, an identically placed party, is concerned. The explanation offered in the written submissions that in the writ petition filed by M/s Sara International Private Limited (W.P.(C) No.28478 of 2013), there was an interim order operating, does not explain how the Petitioner, which is identically placed as M/s Sara International Private Limited, can be discriminated against merely because the documents pertaining to M/s Sara International Private Limited showing third party assignment related to a period "prior to final disposal of the case." 35. Apart from the above, a careful perusal of various clauses of the WIS reveals that there was an assurance held out by the Railways to the investor in the WIS that there would be a "guaranteed supply" of rakes some with freight concession, and two bonus rakes without such freight concession for the purpose of the carriage of the goods. The stand of the Railways that the scheme did not permit third party assignment of the benefits under the WIS was negatived by this Court in the first round of litigation. That was the crux of the circular dated 17th September 2013 which was set aside by this Court. There was in fact no prohibition in the WIS against the extension of the benefits thereunder to third parties whose goods would be transported. 36. The spirit of the scheme of the WIS appears to be that the investors would buy wagons directly from the wagon manufacturers and hand them over to the Railways which would then induct the wagons and utilize them for transporting the public goods by charging normal freight. In lieu of the above, the Railways would ensure guaranteed supply to the investor of a certain number of rakes with freight concession and some bonus rakes without such concession for the period of such agreement i.e. ten years at the end of which, the Railways would become the absolute owner of the wagons. The investor therefore continues as the owner of the wagons till such time the Railways becomes their absolute owner. If the intention was to encourage PPP, then clearly the object was to also to ensure that the investor gets a return on such investment. The investor therefore continues as the owner of the wagons till such time the Railways becomes their absolute owner. If the intention was to encourage PPP, then clearly the object was to also to ensure that the investor gets a return on such investment. The Railways in fact continue to collect 90% of the freight revenue by the utilization of such wagons, whereas the investor gets only 10% and that too for a period of ten years. 37. Reverting to the facts on hand, the lapsing of the rakes arose as a result of the circular dated 17th September 2013. It is not in dispute that between the date of the said circular and August 2016, the rakes lapsed with the eligibility of 10% freight was 1741 and the total rakes lapsed after September 2013 was 1351. There appears to be no justification on the part of the Railways to insist that the Petitioner should further demonstrate that the lapsing of 1351 rakes was on account of the rejection of indents placed for them by the Petitioner under the WIS. The fact remains that the Petitioner was prevented from placing the indents in respect thereof as a result of the circular dated 17th September 2013 and the said 1351 lapsed rakes became available to the Petitioner only pursuant to the order dated 18th January 2018 of this Court. 38. For the aforementioned reasons, the Court is unable to accept the reasoning in the impugned order dated 24th April, 2018 passed by the COM rejecting the prayer of the Petitioner for extension of time to utilize the 1351 lapsed rakes. 39. Accordingly, the impugned order dated 24th April 2018 passed by the COM is hereby quashed. A direction is issued to the Railways to issue necessary orders not later than 1st July 2021, and to allow the Petitioner to use the 1351 lapsed rakes by extending their expiry period by a reasonable time in terms of the WIS and the agreement executed between the parties. 40. The writ petition is allowed in the above terms but, in the circumstances, with no order as to costs. 41. 40. The writ petition is allowed in the above terms but, in the circumstances, with no order as to costs. 41. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Courts website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Courts Notice No.4587, dated 25th March, 2020 as modified by Courts Notice No.4798, dated 15th April, 2021.