Bombay High Court
Hind Offshore Private Limited vs Union Of India Th. Ministry Of Petroleum ... on 27 March, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally
signed by
PRASHANT
PRASHANT VILAS 27-WPL-6075-2024.DOC
VILAS RANE
RANE Date:
2024.03.29
20:47:23
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 6075 OF 2024
Hind Offshore Pvt. Ltd. ... Petitioner
Versus
The Union of India & Ors. ... Respondents
Dr. Virendra Tulzapurkar, Sr. Advocate a/w Mr. Amrut Joshi, Yagad
Udwadia, Mr. Nitin Parkhe and Mr. Jacob Kadantot, for the Petitioner.
Mr. Y. R. Mishra, for Respondent / UOI.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 27 March 2024
_______________________
P.C.
1. We have heard learned counsel for the parties on admission of this
petition and on the interim prayers. This petition under Article 226 of the
Constitution inter alia assails the detention orders dated 8 May 2023, 22 May
2023 and 3 June 2023, issued by respondent No.3 whereby the petitioner's
vessels (accommodation barges) which are non-self propelled vessels stand
detained. The detention is stated to be on account of non-compliance by the
petitioner of a general order being order dated 20 October 2022 issued by the
Director General of Shipping, Mumbai (DGS order XX of 2023) which is also
impugned by the petitioner. By such order norms for Certification inter alia of
Offshore vessels, accommodation barges, while operating in Indian Exclusive
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Economic Zone, has been set out. The application of such order is to self-
propelled as well as non-self-propelled vessels irrespective of their size (GT) or
the propulsion power (KW) as set out in para 3 of the said order. The
petitioner has contended that the requirements under the said order and more
particularly under clause "9" - Requirement of Crew Boat and Clause "B"-
Requirement for Non-self-propelled accommodation barge, as set out in
paragraph 11 and para 12 along with the other requirements under the said
order, is being foisted arbitrarily on the petitioner.
2. The primary contention as urged on behalf of the petitioner is that the
impugned order dated 20 October 2022 is not applicable to the petitioner's
vessels, firstly on the ground that the said order is issued under the Merchant
Shipping Act, 1958 (for short the "1958 Act") which is clear from paragraph
30 of the said order, as the 1958 Act is not applicable to the vessels of the
petitioner as the petitioner's vessels are registered under the Coasting Vessels
Act, 1838 (for short the "1838 Act"). It is the petitioner's case that the vessels
being non-propelled barges are used as accommodation barges at the offshore
sites of the ONGC as contracted with the petitioner.
3. Dr. Tulzapurkar, learned senior counsel for the petitioner has submitted
that although the Merchant Shipping Act, 1958 was enacted and brought into
force with effect from 30 October 1958, however, the 1838 Act was not
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repealed in regard to the continuation of registration of vessels under the 1838
Act, as it was repealed only to the extent as set out in the Schedule to the 1958
Act, namely "Insofar as it applies to sea-going ships fitted with mechanical
means of propulsion and to sailing vessels", and not in regard to the vessels of
the nature with which the petitioner is concerned in the present proceedings.
4. It is next submitted that the 1958 Act under Section 2 provides for
application of the Act to stipulate that it inter alia applies to any vessel which is
registered in India. An "Indian ship" is defined under Section 3 (18), Section 3
2 (45) defines "ship" and Section 3 (55) defines "vessels". Such relevant
provisions of the 1958 Act read thus:
Merchant Shipping Act, 1958
"[Section 2. Application of Act. - (1) Unless otherwise expressly
provided, the provisions of this Act which apply to -
(a) any vessel which is registered in India; or
(b) any vessel which is required by this Act to be so registered; or
(c) any other vessel which is owned wholly by by persons to each of
whom any of the descriptions specified in clause (a) or in clause (b) or
in clause shall so apply wherever the vessel may be.
(2) Unless otherwise expressly provided, the provisions of this Ac
which apply to vessels other than those referred to in sub-section (1)
shall so apply only while any such vessel is within India including the
territorial waters thereof.]
[Section 3. Definitions. - In this Act, unless the context otherwise
requires, -
.....
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(18) "Indian Ship" means a ship registered as such under this Act and
includes any ship registered at any port in India at the
commencement of this Act which is recognised as an Indian ship
under the proviso to sub-section (2) of section22;
(39) "sailing vessel", means any description of vessel provided with sufficient
sail area for navigation under sails alone, whether or not fitted with
mechanical means of propulsion, and includes a rowing boat or canoe but
does not include a pleasure craft;
(45) "ship" does not include a sailing vessel;
(55) "vessel" includes any ship, boat,sailing vessel, or other description of
vessel used in navigation;"
5. It is the petitioner's contention that the petitioner's vessels do not fall
under the definition of an Indian Ship as defined under Section 3 (18)
inasmuch as it is not a vessel which is registered at any port in India at the
commencement of the 1958 Act, or falling within the proviso to sub-section
(2) of Section 22 which provides for any ship registered at the commencement
of the 1958 Act at any port in India under any enactment repealed by the 1958
Act so as to be deemed to be registered under the 1958 Act to be regarded as an
Indian Ship. Section 22 of the 1958 Act can also be noted which reads thus:-
"Section 22. Obligation to register.- (1) Every Indian ship, unless it is
a ship which does not exceed fifteen tons net and is employed solely
in navigation on the coasts of India, shall be registered under this Act.
(2) No ship required by sub-section (1) to be registered shall be
recognised as an Indian ship unless she has been registered under this
Act:
Provided that any ship registered at the commencement of this Act at
any port in India under any enactment repealed by this Act, shall be
deemed to have been registered under this Act and shall be recognised
as an Indian ship.
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(3) A ship required by this Act to be registered may be detained until
the master of the ship, if so required, produces a certificate of registry
in respect of the ship."
6. Dr. Tulzapurkar has next drawn our attention to Part IX of the 1958 Act
providing for "Safety", and more particularly, Section 288 thereunder, which
provides for 'power to make rules as to life saving appliances', which includes
under sub-section (2)(f) thereof, securing of boats, life-rafts, life-jackets, life-
buoys and buoyant apparatus.
7. Our attention is also drawn to part XIV of the 1958 Act which provides
for "Control of Indian ships and Ships Engaged in Coasting Trade", under
which falls Section 405 providing for application of the said part to sea-going
ships, fitted with mechanical means of propulsion. Section 405 to Section 407
are relevant in the context of the impugned order dated 20 October 2022
which reads thus:
"405. Application of Part.― This Part applies only to sea-going ships fitted
with mechanical means of propulsion of not less than one hundred and fifty
tons gross, but the Central Government may, by notification in the Official
Gazette, fix any lower tonnage for the purposes of this Part.
406. Indian ships and Chartered ships to be licensed.― (1) No Indian ship
and no other ship chartered by a citizen of India or a company 4 [or a co-
operative Society] shall be taken to sea from a port or place within or outside
India except under a licence granted by the Director-General under this
section:
Provided that the Central Government, if it is of opinion that it is
necessary or expedient in the public interest so to do, may, by notification in
the Official Gazette, exempt any class of shipschartered by a citizen of India
or a company 1 [or a co-operative Society] from the provisions of this sub-
section.
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(2) A licence granted under this section may be-
(a) a general licence;
(b) a licence for the whole or any part of the coasting trade of India; or
(c) a licence for a specified period or voyage.
(3) A licence granted under this section shall be in such form and shall
be valid for such period as may be prescribed, and shall be subject to such
conditions as may be specified by the Director-General.
407. Licensing of ships for coasting trade.― (1) No ship other than an
Indian ship or a ship chartered by a citizen of India 1 [or a company or a co-
operative society which satisfies the requirements specified in clause (b) or, as
the case may be, clause (c) of section 21], shall engage in the coasting trade of
India except under a licence granted by the Director-General under this
section.
(2) A licence granted under this section may be for a specified period or
voyage and shall be subject to such conditions as may be specified by the
Director-General.
(3) The Central Government may, by general or special order, direct
that the provisions of sub-section (1) shall not apply in respect of any part of
the coasting trade of India or shall apply subject to such conditions and
restrictions as may be specified in the order."
8. Dr. Tulzapurkar has submitted that the order dated 20 October 2022 in
clause 30 makes a reference to the provisions of Section 406 (3) and Section
407 (3) in relation to the Indian ships and Chartered ships, to be licensed
which can be applicable only to the sea-going ships fitted with mechanical
means of propulsion, as Section 405 would ordain. Clause 30 of the impugned
order dated 20 October 2022 reads thus:
"DIRECTORATE GENERAL OF SHIPPING, MUMBAI
DGS Order : 20 of 2022
Dated 20 October 2022
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Sub : Certification of Offshore vessels, accommodation barges. Etc,
while operating in India Exclusive Economic Zone-reg.
.....
30. The operations of the vessels and permissions thereto shall be
subject to meeting the above conditions as may be applicable, as per
section 406 (3) and section 407 (3) of the Merchant Shipping Act,
1958."
(emphasis supplied)
9. It is hence submitted that the impugned order dated 20 October 2022 is
clearly inapplicable to the petitioner's vessel which is neither registered under
the 1958 Act nor is it a vessel fitted with mechanical means of propulsion, as
Section 405 would ordain. It is thus submitted that the impugned detention is
wholly without jurisdiction and is ex facie illegal.
10. Dr. Tulzapurkar would also submit that in fact the respondents in the
reply affidavit have clearly admitted that the respondents would not have
jurisdiction to bring the petitioner's vessel under the 1958 Act and
consequentially under the purview of impugned order dated 20 October 2022,
unless the legislative lacuna in the 1958 Act is filled, so as to cover the vessels
which stand registered under Coasting Vessels Act, 1838. In this regard, our
attention is drawn to the reply affidavit filed on behalf of the respondents
where the respondents have stated as under :
"Therefore, despite the absence of explicit provisions empowering the
Respondent No.3 under the MS Act or CV Act, the Respondent
continues fulfill the requirements of the constitution towards India's
obligations under international conventions and treaties to which it is a
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party, fulfilling the objects and the purposes of the MS Act, i.e., safety
of ships and life at sea and prevention of marine pollution. MS Act
sections on Safety Constitution, Load line Conventions, Tonnage
Conventions, MARPOL etc. may please be referred, where applicability
is not restricted due to absence of propulsion."
11. Dr. Tulzapurkar would next submit that as a result of the detention
order the petitioner is not in a position to execute the ONGC contracts for
which the vessels / barges in question were deployed. Also the crew cannot be
given work and a huge liability is being incurred on account of the impugned
orders. Apart from this, the vessels are rendered of no utility. It is submitted
that on account of such illegal order and detention the petitioner is suffering a
serious prejudice. It is also submitted that in respect of certain vessels not of
Indian origin, respondent No.3 has not foisted compliance of such condition
on such vessels. Hence, the action of the respondents is patently
discriminatory and selective in victimizing the petitioner. It is submitted that
a strong prima facie case has been made out by the petitioner for grant of
interim reliefs.
12. It is hence submitted by Dr. Tulzapurkar that such stand of the
respondents clearly goes to show that the impugned order dated 20 October
2022 is certainly not applicable to the petitioner's vessel for the reason that the
1958 Act itself is not applicable to the petitioner's vessels.
13. On the other hand Mr. Mishra, learned counsel for the respondents in
opposing the admission of the petition, as also interim reliefs as prayed for by
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the petitioner, would submit that the impugned order dated 20 October 2022
is issued in public interest. It is his submission that it is issued to safeguard the
vessels / barges and those deployed thereon in discharging the Offshore
contracts. It is submitted that in case of emergencies arising from any natural
calamities like cyclone, an utmost necessity of safety measures was felt as
required under the international conventions, hence, it was appropriate for
respondent No.3 to direct the petitioner to comply the impugned order and on
failure of such compliance, the vessels were rightly detained. It is submitted
that in fact the petitioner had given an assurance that the petitioner would
comply with the requirements of the impugned order, for such reason the
petitioner cannot maintain such challenge as made in the writ petition. It is
next submitted that once the order dated 20 October 2022 and the
consequent detention orders have been issued in public interest, the petitioner
cannot raise a challenge questioning the action of the respondents. In support
of such contention, reliance is placed on the decision of the Supreme Court in
Rattan Chand Hira Chand Vs. Askar Nawaz Jung (dead) by Lrs and Ors. 1.
However Mr. Mishra is not in a position to point out to us as to how the
respondents would have jurisdiction to detain the vessels of the petitioner, by
applying the impugned order dated 20 October 2022 and by applying the
provisions of the Merchant Shipping Act, 1958.
1 (1991) 3 SCC 67
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14. Having heard learned counsel for the parties and having perused the
record, we are of the prima facie opinion that ex facie the provisions of 1958
Act are not applicable to the petitioner's vessels which are subject matter of the
impugned detention orders. This, considering the clear provisions of the
Merchant Shipping Act, 1958 which we have referred hereinabove, and more
particularly on a cumulative reading of Section 2 read with provision of Section
3 (18) and 3 (45) which defines "Indian ship" and "ship" respectively, as also
the provisions of Section 405 and 406 as sought to be applied under Clause 30
of the impugned order. The reason being that it is not in dispute that the
vessels / barges of the petitioner are of the category which are fitted with
mechanical means of propulsion as Section 405 would ordain. It appears that
even the rule making power as conferred by Section 288 of the 1958 Act
applies to the rules to be made prescribing life saving appliances to be carried
by every "Indian ship" going to the sea from any port or place in India. Thus,
necessarily no rules can be framed under Section 288 in regard to a ship or
vessel which is not of the category of an Indian ship as defined under Section 3
(18) of the 1958 Act. We thus find substance in the contention of Dr.
Tulzapurkar that the vessels / barges of the petitioner are not "Indian ships"
within the meaning of Section 3 (18), as also within the proviso below sub-
section (2) of Section 22.
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15. This apart the impugned order dated 20 October 2022 categorically
provides in paragraph 30 that the operations for the vessels and permission
thereto shall be subject to meeting the conditions as may be applicable as
Section 406(3) and 407(3) of the 1958 Act would applicable. These provisions
which we have noted hereinabove, explicitly make it clear, that the said
provisions cannot be applied de-hors the provisions of Section 405 which
applies to Part XIV of the 1958 Act, under which Section 406 and 407 would
fall, to the sea going ships fitted with mechanical means of propulsion. It is not
the case of the respondents that the vessels / barges of the petitioner are of the
category as falling under Section 405 of the Act. We are thus not in agreement
with the contentions as urged by Mr. Mishra when he contends that the
impugned order nonetheless would apply to the petitioner's vessels.
16. It is hence clear that the respondent No.3 had no jurisdiction to detain
the petitioner's vessel under the impugned order dated 20 October 2022,
which indubitably has its origin under the 1958 Act, and would have
applicability to the vessels covered only under the 1958 Act.
17. We may also observe that the decisions on which reliance is placed by
Mr. Mishra are also not applicable in the facts of the case when, in law
respondent No.3 has no jurisdiction to include the petitioner's vessels under
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the impugned order dated 20 October 2022. These are decisions which are on
subject matters totally alien to the case in hand.
18. We may observe that the measures as sought to be imposed on the
petitioner as a consequence of the general direction as issued under the
impugned order dated 20 October 2022 may be in the larger interest of the
vessels and for benefit of the persons deployed thereon, however, when the
impugned order is sought to be imposed on the petitioner, it can be imposed
only if the law would permit the applicability of the said order to the category
of vessels belonging to the petitioner and not otherwise. In our prima facie
opinion, the provisions of the 1958 Act depicts a position of non-applicability
of the said order to the petitioner's vessels, in such event there would be no
jurisdiction with respondent No.3 to foist the impugned order qua the
petitioner's vessels and for the non-compliance detain these vessels.
19. Thus, the petitioner has made out a strong prima facie case for admission
of the petition and for grant of interim reliefs. In our opinion, if interim reliefs
are not granted to the petitioner, the petitioner would certainly suffer a serious
prejudice on foisting of such conditions as contained in the impugned order, in
the midst of the vessels being deployed.
20. We accordingly pass the following order :-
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ORDER
1. Rule. Respondents waive service.
2. Pending the hearing and final disposal of this petition there shall be interim orders in the following terms.
(i) The impugned order dated 20 October 2022 (Exhibit "L") in its application to the petitioner's detained barges / vessels shall remain stayed.
(ii) The impugned detention orders dated 8 May 2023, 22 May 2023 and 3 June 2023 shall also remain stayed.
(iii) As a consequence of the interim orders in terms of
(i) and (ii) above, the respondents shall release the petitioner's vessels which be permitted to be used for the contract in questions and as the law would permit.
(iv) The consequential demands as raised against the petitioner at Exhibit "T" dated 13 July 2023 and 14 July 2023 shall also remain stayed.
3. Parties to act on authenticated copy of this Order. (FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.) Page 13 of 13 27 March, 2024 Kiran Kawre ::: Uploaded on - 29/03/2024 ::: Downloaded on - 14/04/2024 10:05:25 :::