Gujarat High Court
Prisha Overseas Pvt. Ltd. vs The Secretary Ministry Of Shipping on 16 December, 2020
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/18181/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18181 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 18181 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 18181 of 2019
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PRISHA OVERSEAS PVT. LTD.
Versus
THE SECRETARY MINISTRY OF SHIPPING
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Appearance:
for the Petitioner(s) No. 4,5,6,7
JAY A MEHTA(9088) for the Petitioner(s) No. 1,2,3
DS AFF.NOT FILED (R)(71) for the Respondent(s) No. 4,5
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,2,3
MR DHAVAL D VYAS(3225) for the Respondent(s) No. 6
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CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 16/12/2020
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. The Civil Application No.1 of 2020 has been filed by Mr. N.M.Kapadia, the learned counsel appearing for the applicants seeking to be impleaded as one of the party respondents in the main matter.
2. The Civil Application No.3 of 2020 has been filed by the applicants - original petitioners with a prayer to quash and set aside the impugned Trade Circular dated 29.04.2020.
3. In the wake of few important developments, which have taken place during the pendency of this litigation, we are of the view that we should take up the main matter itself and dispose of the same. Page 1 of 7 Downloaded on : Sat Dec 19 00:13:33 IST 2020 C/SCA/18181/2019 ORDER
4. The Special Civil Application No.18181 of 2019 has been filed with the following prayers:
"(A) Your Lordships may be pleased to issue a writ order or direction in the nature of a writ of mandamus and or Prohibition and or any other appropriate writ, order or direction, quashing and setting aside and hold and declare the impugned DGS Order No.04/2019 dtd 12-9-2019 (Annexure-A) as grossly illegal, ultra vires & unconstitutional and violative of the fundamental rights of the petitioners and accordingly quash and set aside the same, as ultravires the Constitution of India and declare the same to be beyond the rule making power and authority and in mala fide exercise of power.
(B) Pending admission hearing and till final disposal of present petition, this Hon'ble Court may be pleased to stay the implementation, execution and operation of the DGS order dtd 12-
9-2019, issued by the Respondent No.2 till the final disposal of the petition and permit the export of livestock as per the regular formalities already being followed till date;
(C) Your Lordships be pleased to pending the issuance of notice and further process in the matter grant ex parte ad interim relief in terms of prayer B above.
(D) This Hon'ble Court may be pleased to direct the Respondent Authorities i.e. the Customs, The DG Shipping office Jamnagar and Gandhidham and the Mercantile Marine Department to permit export of the livestock through Tuna Port through the regular selling vessels at the Deendayal Port Trust on the regular documents and as being exported till date, based on the same formalities without insisting on implementation of the DGS order dtd 12-9-2019;
(E) This Hon'ble Court may be pleased to award the costs throughout."
5. On 25.10.2019, the Coordinate Bench of this Court passed the Page 2 of 7 Downloaded on : Sat Dec 19 00:13:33 IST 2020 C/SCA/18181/2019 ORDER following order:-
1. In this matter, notice and notice as to interim relief was issued on 16.10.2019, making it returnable on 22.10.2019.
2. What is subject matter of challenge in the present petition is the order dated 12.09.2019 issued by the Director General of Shipping, Mumbai, respondent No.2 herein, laying down guidelines for transportation of livestock by sea (AnnexureI to the impugned order).
3. On 22.10.2019, the learned senior standing counsel was called upon to ascertain as to in exercise of which powers the impugned order dated 12.09.2019 has been made.
4. Subsequently, an affidavit dated 24.10.2019 has been submitted on behalf of the respondents No.1 to 3. However, the entire affidavit in reply is totally silent as regards the nature of powers exercised by the respondent No.2. Reference has been made to Article 51 of the Constitution of India as well as to preamble of the Merchant Shipping Act, 1958 and to certain paragraphs of the International Maritime Organisation's Resolution MEPC.295 adopted on 07th July, 2017 and more particularly, Chapter 7.2 of the Code. It is stated therein that the guidelines, as per AnnexureI to the impugned order, shall be complied by all kinds of vessels engaged in the transportation of livestock, including sailing vessels. Reference has been made to the preamble of the Merchant Shipping Act, 1958 to submit that a joint reading of the preamble with Article 51(c) of the Constitution of India, and paragraphs No.1, 2, 7, 8 and 9 of the impugned order, would clearly indicate that the impugned order is passed with a view to show the highest respect to international treaties and recommendations / suggestions / guidelines made by way of various annexures to the same. It is further stated therein that India, being a signatory to the aforesaid treaty and also being an emerging super power, is expected by the international community that the international treaties to which India is a signatory, may not just remain on papers, but there must be something to show that India has done something in furtherance of what has been prescribed by way of the treaty / convention and therefore, keeping the aforesaid object in mind and in view of the various provisions of different international resolutions and international codes, as stated in paragraphs No.7, 8 and 9 of the impugned order, the respondent No.2 has issued the guidelines.
5. While reference is being made to the provisions of Article 51(c) of the Constitution of India, preamble of the Merchant Shipping Act, 1958 and to certain paragraphs of the international resolutions, the learned senior standing counsel is not in a position to point out the statutory powers in exercise of which such guidelines have been issued.Page 3 of 7 Downloaded on : Sat Dec 19 00:13:33 IST 2020 C/SCA/18181/2019 ORDER
6. Section 7 of the Merchant Shipping Act, 1958 reads as under:
"7. Director General of Shipping.
(l) The Central Government may, by notification in the Official Gazette, appoint a person to be the Director General of Shipping for the purpose of exercising or discharging the powers, authority or duties conferred or imposed upon the Director General by or under this Act, (2) The Central Government may, by general or special order, direct that any power, authority or jurisdiction exercisable by it under or in relation to any such provisions of this Act as may be specified in the order shall, subject to such conditions and restrictions as may be so specified, be exercisable also by the Director General or by such other officer as may be specified in the order.
(3) The Director General may, by general or special order, and with the previous approval of the Central Government, direct that any power or authority conferred upon or delegated to, and any duty imposed upon, the Director General by or under this Act may, subject to such conditions and restrictions as he may think fit to impose, be exercised or discharged also by such officer or other authority as he may specify in this behalf.
6.1 From the above provision, it is apparent that the Director General of Shipping may exercise such powers as are conferred upon him in terms of section 7 of the said Act. However, the learned senior standing counsel is not in a position to point out as to which powers have been conferred upon the respondent No.2 so as to enable him to issue the impugned order dated 12.09.2019 as well as to take action in terms of the International Maritime Organisation's Resolution, which finds reference in the affidavit-in-reply.
7. In view of the above, stand over to 13.11.2019. By way of ad-interim relief, the petitioner is permitted to export livestock from the sailing vessels from Tuna Port in Kutch District without insisting for the implementation of the impugned order dated 12.11.2019 issued by the respondent No.2. Direct service is permitted today."
6. It appears that by way of ad-interim relief, the Coordinate Bench permitted the petitioners to export the livestock from the sailing vessel from Tuna Port in Kachchh District without insisting for the implementation of the impugned order dated 12.11.2019. It appears that such ad-interim relief was granted by the Coordinate Bench considering the power exercised by the Director General of Shipping Page 4 of 7 Downloaded on : Sat Dec 19 00:13:33 IST 2020 C/SCA/18181/2019 ORDER under Section 7 of the Merchant Shipping Act, 1958. The Coordinate Bench in para 6.1 has observed that, the Director General of Shipping in exercise of his power in terms of the Section 7 of the Act could not have passed the impugned order dated 12.09.2019 as well as the action in terms of the International Maritime Organization's Resolution.
7. At this point of time, we need not now adjudicate the question as regards the power of the authority under Section 7 of the Act as the Central Government in exercise of its powers conferred by Clause (w) of Section 262 and Clause (s) of Sub-section (2) of the Section 435 read with Section 457 of the Merchant Shipping Act, 1958 (44 of 1958) has notified the Merchant Shipping (Conditions for Carriage of Livestock) Rules, 2020, vide the Notification GSR-453 (E) dated 17.07.2020. It also appears that the Central Government in exercise of its power conferred by Section 434 of the Act, 1958 has issued one another Notification vide No.502378 (E) dated 17.07.2020 directing that the Rules framed under clause (w) of Section 262 of the Act, which do not expressly apply to the sailing vessel, shall also apply to the sailing vessel with immediate effect.
8. Thus, in view of the above, The Merchant Shipping (Conditions for Carriage of Livestock) Rules, 2020 could be now said to be applicable to the vessels including the sailing vessels engaged for the purpose of transportation of livestock w.e.f 17.07.2020 in accordance with the terms and conditions/requirements specified under the said Rules.
9. We have heard Mr. Hasit Dave, the learned counsel appearing for the Page 5 of 7 Downloaded on : Sat Dec 19 00:13:33 IST 2020 C/SCA/18181/2019 ORDER writ applicants, Mr. Devang Vyas, the learned Additional Solicitor General of India assisted by Mr. Dhaval Vyas, the learned Standing Counsel appearing for the Union of India and Mr. N.M.Kapadia, the learned counsel appearing for the applicant in Civil Application No.1 of 2020, whose clients seeking to be impleaded as the party respondents in the main matter.
10. In the wake of the developments as noted above, no further adjudication of this writ application is necessary. The petitioners would now be governed by the Rules, which have come into force.
11. At this stage, Mr. Hasit Dave, the learned counsel appearing for the writ applicants invited the attention of this Court to the Trade Circular dated 29.04.2020 (at Annexure-G in Civil Application No.3 of 2020). According to Mr. Dave, on the strength of the Trade Circular referred to above, handling of the livestock at Tuna Port has been suspended since 30.04.2020 till further orders. This decision appears to have been taken to eliminate any chances of spread of COVID-19. According to Mr. Dave, till this date, handling of livestock has not been opened.
12. We may also observe that, so far as the Trade Circular is concerned, the legality and validity of the same has been upheld by this very Bench vide order dated 11.05.2020 passed in Civil Application No.2 of 2020. However, Mr. Dave would submit that much time has lapsed since then and the authority should now reconsider the issue for the purpose of handling of livestock. We may only say that the Traffic Manager of the Deendayal Port Trust may take appropriate decision in Page 6 of 7 Downloaded on : Sat Dec 19 00:13:33 IST 2020 C/SCA/18181/2019 ORDER accordance with law having regard to the conditions prevailing in the said area. We do not express any opinion in this regard. At this stage, Mr. Dave makes a request to observe that, if the sailor prefers any application, the same may be considered in accordance with the law by the office of the Director General of Shipping. It is needless to say that, if any such application is filed by the Sailor, the same may be considered in accordance with law.
13. In view of the above discussion, the Writ Application as well as connected Civil Applications are disposed of. Ad-interim relief, if any, stands vacated.
(J. B. PARDIWALA, J) (ILESH J. VORA,J) JYOTI V. JANI/SUCHIT Page 7 of 7 Downloaded on : Sat Dec 19 00:13:33 IST 2020