Kerala High Court
Excellent Ship Builders vs The Administrator, Union Territory on 25 February, 2025
WP(C)Nos.6178 & 16039/2011 1
2025:KER:15525
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 25TH DAY OF FEBRUARY 2025/6TH PHALGUNA, 1946
WP(C) NO.6178 OF 2011
PETITIONER:
ESSAR SHIPPING PORTS AND LOGISTICS LTD.
LIMITED, REGISTERED OFFICE AT ADMINISTRATIVE,
BUILDING, ESSAR REFINERY COMPLEX, OKHA HIGHWAY,
(SH-25), TALUKA KHAMBHALIA, DISTRICT JAMNAGAR,,
361 305, GUJARAT, REPRESENTED BY ITS VICE
PRESIDENT, P.RAMESH
BY ADVS.
SANEER P.M.
TONY GEORGE KANNANTHANAM(K/696/1989)
BIBIN B. THOMAS(K/004038/2023)
OORMILA K. UNNIKRISHNAN(K/000909/2024)
RESPONDENTS:
1 MR.S.THIRUNAVUKARASU : (DELETED)
CONSERVATOR OF FORESTS AND CHIEF WILD LIFE
WARDEN, ADMINISTRATION OF THE UNION TERRITORY OF
LAKSHADWEEP, DEPARTMENT OF ENVIRONMENT AND
FORESTS, KAVARATTI-682 555.
(THE NAME MR.S.THIRUNAVUKARASU IS DELETED FROM
THE CAUSE TITLE AS PER ORDER DATED 08/10/2018 IN
IA.NO.02/2018 IN W.P.(C) NO.6178/2011)
2 THE ADMINISTRATOR
UNION TERRITORY OF LAKSHADWEEP,
KAVARATTI-682 555.
WP(C)Nos.6178 & 16039/2011 2
2025:KER:15525
BY ADVS.
SRI.SAJITH KUMAR V., SC, LAKSHADWEEP
ADMINISTRATION
K.S.PRENJITH KUMAR, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25.02.2025, ALONG WITH WP(C).16039/2011, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos.6178 & 16039/2011 3
2025:KER:15525
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 25TH DAY OF FEBRUARY 2025/6TH PHALGUNA, 1946
WP(C) NO. 16039 OF 2011
PETITIONER:
EXCELLENT SHIP BUILDERS
BAPSON TOWER, THEVARA,COCHIN-682015,
ERNAKULAM DISTRICT,
REPRESENTED BY IT'S MANAGING PARTNER,
SANTHOSH KUMAR.S.
BY ADVS.
SRI.C.A.MAJEED
SRI.K.H.ASIF
RESPONDENTS:
1 THE ADMINISTRATOR, UNION TERRITORY OF
LAKSHADWEEP,KAVARATHI-682555.
2 MEMBER SECRETARY, LPCC, DEPARTMENT OF
SCIENCE AND TECHNOLOGY, UNION TERRITORY OF
LAKSHADWEEP,KAVARATTI-682555.
3 MS.ESSAR SHIPPING, PORTS LOGISTICS
11,K.K.MARG,MAHALAKSHMI,MUMBAI-400034.
BY ADVS.
SRI.SAJITH KUMAR V., SC, LAKSHADWEEP
ADMINISTRATION
SRI.P.BENNY THOMAS
WP(C)Nos.6178 & 16039/2011 4
2025:KER:15525
SRI.K.JOHN MATHAI
SRI.E.K.NANDAKUMAR
SRI.K.S.PRENJITH KUMAR, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25.02.2025, ALONG WITH WP(C).6178/2011, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos.6178 & 16039/2011 5
2025:KER:15525
'C.R.'
JUDGMENT
[WP(C) Nos.6178/2011, 16039/2011] These two Writ Petitions concern the same subject matter and raise common questions for consideration. Hence, they are considered and disposed of together.
Brief facts:
2. On 15.08.2010, at around 07:15 P.M., Indian flag General cargo vessel MV NAND APARAJITHA, bearing IMO No. 9082075, ran aground off Kavaratti island in the Union Territory of Lakshadweep. As discernible from the report submitted by the Indian Register of Shipping (IRS) dated 22.11.2010 (produced as Ext.P3 in W.P.(C) No.16039 of 2011), the vessel had sailed from Beypore to Lakshadweep Islands with a special voyage permission and a Short-Term Statutory certificate valid until 19.08.2010. She had on board 1373 tonnes of cargo comprising of building materials as well as a quantity of 20.79 KL HSD as bunker/fuel. Due to the grounding, serious environmental pollution and damage to the coral WP(C)Nos.6178 & 16039/2011 6 2025:KER:15525 atoll were apprehended. Bunker oil from the vessel was transferred to shore with the help of the Coast Guard and all other potential pollutant oils including stern tube oil, hydraulic oil and oil sludge were thus transferred. The discharge of cargo, viz., solidified cement in bags lying within the two holds of the vessel commenced and it was being carried out even while the IRS inspection was done on 20.11.2010, i.e., around three months after the incident.
Though 14 years have elapsed, the vessel MV NAND APARAJITHA, or whatever is left of her, still continues to remain on the ecologically fragile coral atoll along the Kavaratti island, awaiting removal. To date, no comprehensive environmental impact or damage assessment has been carried out with respect to the said incident mainly on the premise that any such assessment will have to wait the removal of the vessel.
3. The Conservator of Forests and Chief Wild Life Warden, Department of Environment & Forests, Kavaratti, had issued a show cause notice dated 15.10.2010 to the owner of the vessel inter alia calling on them to remove the vessel that was causing WP(C)Nos.6178 & 16039/2011 7 2025:KER:15525 damage to the corals and associated fauna as well as to explain why action should not be initiated against the owner under Section 51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Act of 1972'). The said show cause notice was followed up by Chief Wild Life Warden with another notice dated 25.10.2010, to the vessel's owner, inter alia requiring them to remove the vessel from the territorial waters of the Union Territory of Lakshadweep within 14 days or to face legal proceedings under Section 51 of the Act of 1972.
4. W.P.(C) No.6178 of 2011 is filed by the owner of the vessel MV NAND APARAJITHA seeking to quash the above- mentioned notices issued by the Chief Wild Life Warden (produced as Exts.P1 and P3 in the said W.P.(C)] inter alia contending that the said notices are not legally sustainable and that the provisions of the Act of 1972 which had been invoked have no applicability to the incident involving MV NAND APARAJITHA. The legality of the notices is also challenged on the ground that the same had been issued without affording the petitioner an opportunity of being WP(C)Nos.6178 & 16039/2011 8 2025:KER:15525 heard. It is alleged that while issuing the said notices, the fact that the petitioner as the owner of MV NAND APARAJITHA had taken all immediate steps to prevent marine pollution and to remove the vessel had been overlooked. This Court admitted W.P.(C) No.6178 of 2011 and had granted an interim stay of Exts.P1 and P3 notices, which is still in force.
5. A counter affidavit has been filed by respondents 1 and 2 in W.P.(C) No.6178 of 2011 controverting the averments in the Writ Petition. It is submitted that Exts.P1 and P3 notices had been validly issued and that the petitioner, being the owner of the vessel, is liable for causing damage to the environment by willfully refusing to remove the stranded vessel from the ecologically fragile coral atoll and deliberately letting it remain there for a long period of time, thus causing damage to the environment. An interlocutory application numbered as I.A.No.1 of 2018 was also filed in the said Writ Petition by the Chief Wildlife Warden producing a copy of the proposal submitted by the National Institute of Oceanography suggesting that a comprehensive study to scientifically assess the WP(C)Nos.6178 & 16039/2011 9 2025:KER:15525 possible impacts of removal of the grounded vessel has to be carried out. I.A.No.3 of 2018 was also filed seeking a direction to the owner of the vessel to pay the cost of such a feasibility study for the removal of the grounded vessel and its impact on the ecology and environment. The owner of the vessel has filed a counter affidavit in the said I.As, refuting any liability and contending that it is the duty of the 2nd respondent Administrator to remove the vessel which is now a wreck. A reply has been filed to the said counter affidavit by the Administrator of the Lakshadweep Administration.
6. W.P.(C) No.16039 of 2011 is filed by a partnership firm engaged in the business of ship repairs, technical and allied services, shipbreaking and scrap removal. They claim to have been entrusted with the task of removing the cargo in MV NAND APARAJITHA by its owner. Ext.P1 agreement is produced as evidencing the same. It is contended that reports had been filed by M/s.Smit Singapore PTE Ltd., (Ext.P2) a marine service provider and the surveyors of the Indian Register of Shipping (IRS) (Ext.P3) WP(C)Nos.6178 & 16039/2011 10 2025:KER:15525 after site inspection stating that it is technically impossible to refloat the grounded vessel and the same will have to be cut and removed. The petitioner had submitted Ext.P4 proposal of wreck removal dated 24.12.2010 to the 1 st respondent i.e., the Administrator of Union Territory of Lakshadweep. However, the 1 st respondent proceeded to issue orders for salvage of the wreck for third parties, allegedly in contravention of the mandatory notification which ought to be published under Rule 7 of The Merchant Shipping (Wrecks and Salvage) Rules, 1974 (hereinafter referred to as 'the Rules of 1974') and other relevant provisions. Petitioner has submitted Ext.P8 request dated 23.03.2011 to the 1 st respondent seeking permission for cutting and removing the wreck of MV NAND APARAJITHA. They have further followed it up with Ext.P9 letter detailing the hearing in PLP No.1 of 2011 preferred by the petitioner before the Lok Adalat. It is submitted that since there was no response from the respondents, the petitioner has filed W.P.(C) No.16039 of 2011 seeking the issuance of a writ of mandamus to the 1st respondent to award the salvage operations to WP(C)Nos.6178 & 16039/2011 11 2025:KER:15525 the petitioner as per law and to direct the 1 st respondent to comply with the provisions of the Rules of 1974. No counter affidavit has been filed in W.P.(C) No.16039 of 2011.
7. Sri.Kurian George Kannanthanam, Senior Advocate, instructed by M/s.Menon and Pai, Advocates appeared for the petitioner in W.P.(C) No.6178 of 2011. Sri.Asif K.H., Advocate appeared for the petitioner in W.P.(C) No.16039 of 2011 and Sri.Prenjith Kumar, learned Central Government Counsel for the respondents in both matters.
8. The learned Senior Counsel appearing for the owner of the vessel submitted that grounding of the vessel MV NAND APARAJITHA was a marine accident/ casualty and a force majure incident. It had occurred due to inclement weather conditions, severe lashing of waves and strong and unexpected changes in currents in the sea around Kavaratti Island. Heavy wind swells and dragging of the anchor had caused severe damage to the vessel and had led to her grounding. In spite of adverse weather conditions, the owner had mobilized contractors, labour and WP(C)Nos.6178 & 16039/2011 12 2025:KER:15525 infrastructure to remove the cargo on board the vessel. Steps were taken by the owner to remove the entire oil from the vessel and pollution was thus successfully prevented. Difficulties caused by the weather conditions and severe damage sustained prevented the removal of the vessel by repairing the same. The vessel had become a wreck beyond repair and could be removed only by cutting and dismantling. It is contended that Ext.P1 show cause notice in W.P.(C) No.6178 of 2011 issued by the Chief Wildlife Warden calling on the petitioner/ owner of the vessel to remove the vessel out of the territorial waters of the UTL of Lakshadweep within 7 days or to face legal action under Section 51 of the Act of 1972 is illegal and unsustainable. No offence had been committed by the owner of the vessel under the Act of 1972. Section 29 of the Act of 1972 is not applicable to the incident involving MV NAND APARAJITHA. All possible steps had been taken by the owner to remove the vessel by discharging the cargo after prioritising safety concerns and further time was required for removing the vessel. Though the petitioner as the owner had pointed out the said WP(C)Nos.6178 & 16039/2011 13 2025:KER:15525 aspects in Ext.P2 reply issued to the Chief Wildlife Warden and had requested a personal hearing, no such personal hearing was afforded. Petitioner had assured that they will present before the authorities all records, documents and correspondence to substantiate their actions to fully satisfy the authorities regarding the complete compliance by them of all statutory and other obligations in the said respect. In spite of the above, the respondents had without affording any such hearing, mechanically issued Ext.P3 notice reiterating that penal action will be initiated against the Chairman and Managing Director of the petitioner unless steps are taken to remove the vessel within 14 days. Petitioner had followed up on the matter with Exts.P4, and P5 letters dated 02.11.2010 and 11.11.2010 respectively. It is contended that the said letters would reveal that the petitioner was diligently making all efforts to carry out the cargo discharge operations and effect removal of the vessel. Labourers were engaged and they had liaisoned with several contractors and technical experts including salvage consultants for discharging the WP(C)Nos.6178 & 16039/2011 14 2025:KER:15525 cargo. It is contended that an opportunity to be heard before initiating any coercive steps was rejected by the respondents and they had proceeded with pre-conceived notions. The time period prescribed by the respondents in Exts.P1 and P3 were impractical and revealed the utter disregard of the fundamental realities. It is further contended by the learned Senior Counsel that the condition of the vessel even at the relevant time was such that the same could only be cut and removed from the location and that various wreck buyers and ship breakers had approached the petitioner after submitting cutting plans to the Lakshadweep Administration. The 2nd respondent Administrator is the Receiver of wrecks and the appropriate statutory authority to take any action with respect to the wreck. There has been no environmental damage and there is no ground or reason to issue Exts.P1 and P3 notices against the petitioner. Reliance is also placed on Ext.P6 which is a statement dated 06.12.2010 made by the then Minister of State for Environment and Forests in the Parliament mentioning that there is no damage to the corals in Kavaratti Island due to the grounding of WP(C)Nos.6178 & 16039/2011 15 2025:KER:15525 the vessel. It is further submitted that though Ext.P7 request was made by the petitioner to permit them to carry out an impact study in the area surrounding the grounded vessel, the same was denied by the 1st respondent vide Ext.P8 letter stating that the petitioner ought to first comply with the direction to remove the stranded vessel and its cargo within the extended time and only then would the granting of permission for an impact assessment study be considered. The said reply, it is submitted reveals the lack of bonafides on the part of the respondents in issuing Exts.P1 and P3 notices. It is further contended by the learned Senior Counsel that Section 29 of the Act of 1972 with respect to 'Destruction in a sanctuary' is not at all applicable to the facts and circumstances of the case involving MV NAND APARAJITHA. The area wherein the vessel grounded has not been declared as a 'sanctuary' as defined under Section 2 (26) of the Act of 1972. It is also contended that there is no 'wildlife' or any 'habitat' or 'wild animal' or 'specified plant' as envisaged under the Act of 1972 within the area along Kavaratti Island where MV NAND APARAJITHA had WP(C)Nos.6178 & 16039/2011 16 2025:KER:15525 grounded. Hence the Act of 1972 has no application or relevance and the provisions of the same cannot be invoked. Section 29 and Section 51 regarding penalties, which are seen invoked in Exts.P1 and P3 are not applicable. The vessel got grounded consequent to an accident which is a force majeure situation and there is no deliberate attempt or intention or mens rea to cause damage or to attract a penalty. Since the vessel was brought in with the permission and knowledge of the concerned authorities under the 2nd respondent, the 1st respondent cannot allege that the petitioner had in any manner destroyed the habitat. Exts.P1 and P3 have been issued by the 1st respondent without jurisdiction and the same is vitiated by malafides. They are non-speaking orders and have been issued without hearing the petitioner. They are hence issued violating the principles of natural justice. It is contended that Exts.P1 and P3 had been issued only to harass the petitioner. Directions to remove the wreck ought to have been issued to the 2nd respondent, who is the Receiver of wrecks and is hence legally bound to take action and not upon the petitioner Company which is WP(C)Nos.6178 & 16039/2011 17 2025:KER:15525 totally innocent of any legal violations. The learned Senior Advocate thus submitted that the W.P.(C) be allowed and Exts.P1 and P3 notices be quashed.
9. Per contra, the learned Central Government Counsel contended that the Writ Petition filed by the owner of the vessel is not maintainable and is fit to be dismissed. Ext.P1 is only a show cause notice and not a charge sheet. A show cause notice cannot be sought to be quashed by invoking writ jurisdiction. As regards Ext.P3 is concerned, it is issued in furtherance of Ext.P1 and was validly issued under law. The presence of the vessel on the reef was unauthorised and was a serious threat to the ecologically fragile environment of the islands. Ext.R1(b) report dated 29.11.2010 submitted by the Ship Surveyor of the Mercantile Marine Department (MMD) had concluded that it was technically possible to remove/ salvage MV NAND APARAJITHA from her then position by planning and deployment of appropriate salvage techniques and precautionary measures by a professional salvage agency. It had also been reported therein that there is no WP(C)Nos.6178 & 16039/2011 18 2025:KER:15525 unreasonable risk factor involved in salvaging the vessel for further disposal action. It was stated that time was a critical factor for the salvage of the vessel since the condition of the inner longitudinal bulkhead (port side) is deteriorating fast and its collapse will make the salvage operation extremely difficult. It was also reported that immediate measures are to be taken to strengthen the bulkhead and to arrest ingress of water and propagation of small cracks that had formed on the same. It is subsequent to the said report that Ext.P8 was issued to the petitioner calling upon them to comply with the removal of the vessel within the extended time limit. However, the petitioner failed to take any steps to salvage the vessel. The nonfeasance and misfeasance on the part of the petitioner by refusing to comply with the directions issued by the competent authorities is clearly established. It had been very clearly pointed out to the petitioner that the sinking of the vessel in the territorial waters of Lakshadweep would be looked upon as a very serious and deliberate attempt to pollute the drinking water source of the people of Kavaratty and that legal action will be WP(C)Nos.6178 & 16039/2011 19 2025:KER:15525 initiated based on expert assessment of such damages. The petitioner had been assured with all possible help from the Administration in removing the standard vessel from the coral reef. However, there was total negligence on the part of the petitioner to comply with the directions of the Administration to remove the vessel from the site. Ext.P1 showcause notice was issued in public interest as the entire population of Kavaratty Island depends on seawater for their use. The presence of any residual fuel and other effluent in the vessel would cause a serious threat to the aquatic organisms and to the environment in general. A great disaster would have occasioned if the incident caused damage the coral reef habitat and the petitioner was informed by the letter dated 24.11.2010 to comply with the directions within the extended time period. It was also stated that after such removal of the vessel by the petitioner, an impact study assessment permission will have to be carried out. However, the petitioner by indulging in pointless correspondence deliberately delayed the removal of the ship thus making any worthwhile action impossible due to efflux of time. The WP(C)Nos.6178 & 16039/2011 20 2025:KER:15525 petitioner had willfully neglected to take steps on time and as had been pointed out by the ship surveyor of the Mercantile Marine Department, led to total collapse and damage of the vessel on the pristine and ecologically fragile coral reefs. Petitioner had been specifically informed at that point of time that the vessel had not been accepted as a wreck and it was still salvageable during the relevant time. This was clearly mentioned in the report dated 29.11.2010 submitted by the Ship surveyor Cum Dy. DG, Chennai of the Mercantile Marine Department. Since the ship was grounded in an ecologically sensitive area and the life forms and habitat for the scheduled wildlife and other supporting organisms, the Chief Wildlife Warden has the authority and jurisdiction to issue notices as envisaged in law. The contention of the petitioner that the Act of 1972 is not applicable to the area where M.V.NAND APARAJITHA was grounded is incorrect. Part K of Schedule I of the Act of 1972, specifically enumerates various categories of corals. Coral reefs fall within the category of protected species under the Act of 1972. Reef-building corals are classified under Schedule I of the Act of WP(C)Nos.6178 & 16039/2011 21 2025:KER:15525 1972. Lagoon along Kavaratti Island is home to other endangered marine animals closely associated with coral reefs classified under various schedules of the Act of 1972 as well as to many marine species in Part I, amphibians and reptiles including turtles in Part II, 8 species of fishes in Part IIA and many crustaceans in part IV. By failing to comply with the directions of the Administration to remove the grounded vessel M.V.NAND APARAJITHA, the petitioner has put the entire ecosystem and associated fauna listed in various schedules of the Act of 1972 under threat. As a result, the petitioner had violated Section 29 of the Act of 1972 and is liable to be proceeded against in the said respect. Exts.P1 and P3 issued to the petitioner are thus valid and legal.
10. The learned counsel for the petitioner in W.P.(C) No.16039 of 2011 submitted that as per Rule 7 of the Rules of 1974, it was mandatory for the Receiver of wrecks to publish a notification regarding wreck as provided under Section 397 of the Merchant Shipping Act, 1958 (hereinafter referred to as 'the Act of 1958') and that the said duty has not been complied with by the 1 st WP(C)Nos.6178 & 16039/2011 22 2025:KER:15525 respondent in the said Writ Petition ie., the Administrator. The Rules of 1974 also stipulate the procedure for the sale of a wreck and the procedure for a salvage reward. It is contended that without proper publication, a Receiver of a wreck cannot take any steps under the Rules of 1974.
11. Per contra, the learned Central Government Counsel contended that the petitioner in W.P.(C) No.16039 of 2011 has no locus or right to seek a prayer that the salvage operations should be awarded to them. The said Writ Petition had been filed without any bonafides and only to support the cause of the owner of the vessel M.V.NAND APARAJITHA to assist them in shifting the burden of removing the wreck onto the UTL Administration. It has been very specifically stated by the IRS in its report that it was technically possible to remove the vessel during the relevant time when Exts.P1 and P3 notices in W.P.(C)No.6178 of 2011 were issued by the Chief Wildlife Warden calling on the owner to remove the vessel. Salvage by the owner was clearly feasible at the said point of time. However, no steps were taken by the owner and the WP(C)Nos.6178 & 16039/2011 23 2025:KER:15525 purported agreement entered into with the petitioner in W.P.(C) No.16039 of 2011 is only a charade. W.P.(C) No.16039 of 2011 is not maintainable in law and is only to be dismissed, submits the learned Central Government Counsel.
12. I have heard the learned counsel for the parties at length. The incident involving MV NAND APARAJITHA prima facie fits the description of a 'shipping casualty' as defined under Section 358 of the Act of 1958. The relevant Section reads as follows:
"358. Shipping casualties and report thereof.― (1) For the purpose of investigations and inquiries under this Part, a shipping casualty shall be deemed to occur when―
(a) on or near the coasts of India, any ship is lost, abandoned, stranded or materially damaged;
(b) on or near the coasts of India, any ship causes loss or material damage to any othership;
(c) any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coasts of India;
(d) in any place, any such loss, abandonment, stranding, material damage or casualty as above mentioned occurs to or on board any Indian ship, and any competent witness thereof is found in India;
(e) any Indian ship is lost or is supposed to have been lost, and any evidence is obtainable in India as to the circumstances under which she proceeded to sea or was last heard of."
It is not discernible whether an inquiry as envisaged under Section WP(C)Nos.6178 & 16039/2011 24 2025:KER:15525 358 of the Act of 1958 had been carried out by the Director General of Shipping and the Mercantile Marine Department. The circumstances leading to the said incident right from the issuance of the special voyage permission and a short-term statutory certificate which was valid only until 19.08.2010 to the vessel to sail to the ecologically fragile and environmentally sensitive Lakshadweep islands appears fit to have been enquired into especially since the matter involves the ecological safety of the Lakshadweep islands which constitutes a fragile ecosystem.
13. Be that as it may, the principal challenge put forth by the owner of the vessel in W.P.(C) No.6178 of 2011 is regarding Exts.P1 and P3 notices issued by the Chief Wild Life Warden under the Act of 1972. It has been contended that no such notices could have been issued to the owner of the vessel with respect to the stranding of MV NAND APARAJITHA on the coral islands of Kavaratti since none of the provisions of the Act of 1972 would apply to the corals, if any, in the grounded area. It hence becomes relevant to examine whether the protection of the marine WP(C)Nos.6178 & 16039/2011 25 2025:KER:15525 environment and marine flora and fauna is covered under the Act of 1972 and whether the respondent Chief Wild Life Warden is competent to take steps towards protection thereof. As regards the contention based on Ext.P6 statement of the minister that there are no corals in the area where the vessel got grounded, the same is not prima facie reliable. Further the lagoon around Kavaratti island is a single uninterrupted stretch of marine ecosystem and pollution in all part could impact the marine flora and fauna on the entire lagoon or atoll surrounding the island.
14. Section 2 (36) of the Act of 1972 defines "wild animal" to mean any animal specified in Schedule I or Schedule II and found wild in nature; and Section 2 (37) defines "wildlife" to include any animal, aquatic or land vegetation which forms part of any habitat. The term "habitat" has been defined in Section 2 (15), so as to include land, water or vegetation which is the natural home of any wild animal or specified plant. Corals have been specifically included in Part K of Schedule I of the Act of 1972. Seascapes have been specifically included in the declaration and management WP(C)Nos.6178 & 16039/2011 26 2025:KER:15525 of a conservation reserve as envisaged in Section 36 A of the Act of 1972. Marine flora and fauna like sea ferns, sea horses, sea anemones, sea cucumbers, sea pens, and sea turtles, are all referred to and included in the Schedule to the Act of 1972. Kavaratti Island, which is a coral island is known for its coral reefs, lagoon and endemic marine habitat comprising of varied flora and fauna. Hence the contention that there is no coral wild life in the grounded area and that the Act of 1972 had no applicability cannot be countenanced. Corals along with other marine flora and fauna are covered by the provisions of the Act of 1972 and the Chief Wild Life Warden being the competent authority under the Act of 1972 has the power and jurisdiction to intervene as envisaged under Section 29 of the Act of 1972 to ensure that no person destroys any wildlife from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever. Further, under Section 33 of the Act of 1972, the Chief Wild Life Warden has the power to take such steps as will ensure the security of 'wild animals' in the 'sanctuary' and the preservation of the sanctuary WP(C)Nos.6178 & 16039/2011 27 2025:KER:15525 and wild animals therein and to take such measures, in the interests of 'wildlife', as he may consider necessary for the improvement of any 'habitat'. Section 51 of the Act of 1972 also stipulate penalties for contravention of any provision thereof.
15. It could thus be seen that marine life, marine flora and fauna including corals are very well covered by the scheme of the Act of 1972. Thus Ext.P1 showcause notice and Ext.P3 notice of direction issued by the Chief Wild Life Warden cannot be termed as beyond his power to issue or to be ultra-vires his jurisdiction. The facts and circumstances arising from the stranding of the vessel MV NAND APARAJITHA and the potential harm and danger to the marine flora and fauna ensuing therefrom were valid reasons for issuance of Exts.P1 and P3 notices. As regards the alleged lack of hearing, taking note of the nature and purport of the notices and the very circumstances in which the said notices were issued, the contention that there was no pre-decisional hearing is devoid of merits. If quick action is necessitated in the interest of the general public and if it is impractical to conduct a hearing before the WP(C)Nos.6178 & 16039/2011 28 2025:KER:15525 decision, in such circumstances, a post-decisional hearing would suffice to meet the mandates of law. The urgency and imminency of the threat to the natural environment emanating from the grounding of the vessel with tonnes of pollutants necessitated the speedy issuance of Exts.P1 and P3 notices. The said notices cannot be termed to be illegal for want of a pre-decisional hearing. The contention put forth by the petitioner based on a statement said to have been made by the Minister in the Parliament that no damage has been occasioned to the corals of Kavaratti and hence there was no need to issue Exts.P1 and P3 notices under the Act of 1972 cannot be countenanced also for the reason that the report submitted by the National Institute of Oceanography had suggested that a comprehensive study to scientifically assess the possible impacts of removal of the grounded vessel has to be carried out. To sum up, the contentions put forth in W.P.(C) No. 6178 of 2011 to quash Exts.P1 and P3 notices are not legally sustainable.
16. It is the common refrain in both the Writ Petitions that WP(C)Nos.6178 & 16039/2011 29 2025:KER:15525 since the vessel has got grounded and had become a wreck, the removal of the same was the sole lookout and obligation of the 2 nd respondent Administrator as he is the Receiver of wrecks as envisaged under the Act of 1958. Before proceeding to examine the legal correctness and sustainability of such a contention, it is to be noted at the outset that owner of a vessel involved in a shipping casualty that had the potential to substantially pollute and damage the environment cannot be heard to contend that since the law envisages a statutory authority viz., a Receiver of wrecks to take charge of the potential pollutant i.e., the relevant wreck, no notice can be issued to such an owner regarding the incident and that the owner is totally absolved from any liability arising out of the incident. The polluter pays principle is by now well-entrenched in Indian environmental jurisprudence and the owner shall continue to remain responsible for the costs, causes and damages arising out of the incident that could possibly be attributed to him under law. [See Indian Council For Enviro-Legal Action v. Union of India and others [(2011) 8 SCC 161] Vellore Citizens' Welfare Forum WP(C)Nos.6178 & 16039/2011 30 2025:KER:15525 v. Union of India and others [AIR 1996 SC 2715] Sterlite Industries (India) Ltd. v. Union of India and others [(2013) 4 SCC 575] Lg Polymers (India) Pvt. Ltd. v. Andhra Pradesh Pollution Control Board and others [(2020) 6 SCC 619]. Based on the said dictum as settled in the precedents laid down by the Hon'ble Supreme Court, the prayer sought vide I.A.No.3 of 2018 to hold the owner of the vessel liable to pay the cost of a feasibility study regarding the removal of the grounded vessel and its impact on the ecology and environment of Kavaratti Island, as proposed by the National Institute of Oceanography has to be termed as valid and legally justified.
17. Now I proceed to consider the contention raised in W.P. (C) No.16039 of 2011 regarding the role of a Receiver of the maritime wrecks. The Act of 1958 defines 'wreck' in an inclusive manner so as to take in both 'goods' and 'vessels' [Section 3 (58)]. The definition from its very wording cannot be construed as exhaustive as to what constitutes a wreck. But, it mandates that for being treated as a wreck, goods or vessels, are to be found either WP(C)Nos.6178 & 16039/2011 31 2025:KER:15525 in the 'sea' or in 'tidal waters' or on 'shores'.The term 'goods' has been left nebulous and the Act of 1958 has not attempted to qualify or confine it to maritime property. So it has to be construed in the wide sense as used in the common parlance. But as to constitute a wreck under the Act of 1958, goods have to be those that had been cast into the sea which then sinks and remains underwater or which have been cast or fallen into the sea and remains floating on the surface, which are sunk in the sea, but are attached to a floating object in order that they may be found again or those which have been thrown away or abandoned. The term 'vessel', under the Act of 1958 includes any ship, boat, sailing vessel or other description of vessel used in navigation [Section 3 (55)] which has been abandoned without hope or intention of recovery. Thus abandonment is a prerequisite for a vessel to be treated as a wreck. This leaves a question whether a vessel that is about, or may reasonably be expected, to sink or to strand, where effective measures to assist the vessel in danger are not already being taken can be termed as a wreck under the Indian law. The WP(C)Nos.6178 & 16039/2011 32 2025:KER:15525 insistence on total abandonment without even a hope or intention of recovery clearly shows that a stranded vessel or a vessel that is reasonably expected to sink cannot be termed as a wreck under the Act of 1958. This is a conundrum which has serious practical implications as is witnessed in the case at hand. The provisions in the Act of 1958 proceeds to deal with wrecks as a property of value and not as a liability. If abandoned, it may partake the nature of res nullis and then the liabilities arising therefrom will have to be considered. The case at hand is a classic instance of the same. The Act of 1958 provides that the Central Government may appoint a Receiver to receive and take possession of the wreck and to perform such duties as envisaged in the Act [Section 391]. This provision ensures that wreck does not remain unaccounted for or as res nullis and the mischief arising therefrom is handled by an authority specifically constituted for the said purpose. Apparently for administrative convenience, the Receiver thus appointed has been empowered to delegate his powers to any person if so required [Section 391(2)]. The Act of 1958 taking cue from the WP(C)Nos.6178 & 16039/2011 33 2025:KER:15525 English legislation mandates that the Receiver of wreck within whose limits the place is situated shall upon request from the Master of the vessel stranded or in distress and upon being acquainted with the circumstances forthwith proceed to the place and upon arrival shall take command of the situation and take steps for the preservation of the vessel, its cargo and equipment and the lives of the persons on board. For the said purpose, he has the right to take command of all persons present, to assign such duties and such directions to each person as he thinks fit [Section 392]. It is relevant to note that a vessel in distress and which has been taken command of by a Receiver is not a 'wreck' in the sense it has been defined in the Act of 1958. Under the Act of 1958 for a vessel to be a wreck, it has to be abandoned without hope or intention of recovery. There has to be a positive act of abandonment so as to constitute a wreck and to empower the Receiver to meddle with the same, without which, the service rendered by the Receiver to a vessel in distress at the most could only be treated as a salvage act, which may or may not entitle him WP(C)Nos.6178 & 16039/2011 34 2025:KER:15525 to claim salvage contribution. The statute also confers on the Receiver certain powers incidental to and necessary for effective performance of his duties like power to pass over adjoining land for the purpose of rendering assistance [Section 393], power to suppress plunder and disorder by force [Section 394], power to investigate into relevant aspects leading to the wreck like the occasion for wrecking [Section 396], power to make immediate sale of wreck [Section 398], power to move the Magistrate for issuance of search warrant where wreck is concealed [Section 401] etc. When a vessel is rendered a wreck along the Indian coast threatening the navigation as well as the coastal environment, the situation throws up numerous legal issues. Under the Act of 1958 so as to constitute a wreck there has to be valid abandonment. A decision to abandon a vessel by its Master as the representative of the owner will be a well thought out decision and after once having abandoned, the owner would be reluctant to claim the wreck in so far as expenses for removal may overweigh the value of the recovered wreck. So the vessel in many cases will remain an WP(C)Nos.6178 & 16039/2011 35 2025:KER:15525 unclaimed wreck and if it is a threat to the environment the task of removal might fall on the shoulders of the State. The Act of 1958 mandates that any person finding and taking possession of a wreck shall as soon as practicable, if he is the owner of the wreck give notice thereof to the Receiver stating the distinguishing marks and if he is not the owner deliver the same to the Receiver [Section 395]. The Receiver in turn after taking possession of the wreck should publish a notification containing the description of the wreck and time and place where it was found [Section 397]. With reference to the claims of the owner of the wreck, the statute mandates that if the owner is able to establish his claim over the wreck to the satisfaction of the Receiver within one year of the wreck coming into the possession of the Receiver, he shall be entitled to have the wreck or the proceeds thereof delivered to him upon his paying the salvage and other charges [Section 399 (1)]. Obviously the Receiver's satisfaction has to be objectively arrived at after due process of law and complying with the principles of natural justice. If the owner of the wreck does not appear and claim WP(C)Nos.6178 & 16039/2011 36 2025:KER:15525 the balance of the proceeds within one year from the date of sale, the said balance shall become the property of the Central Government [Section 399 (3)]. The provisions of the Act of 1958 are further supplemented by the Rules of 1974 which further elaborates on the procedure to be observed on finding a wreck, action to be taken on taking possession of the wreck, sale of unclaimed wreck, procedure for sale of a wreck etc. The same Rules of 1974 in Part III concerning salvage stipulates that where any vessel to which salvage services have been rendered constitutes a wreck, the owner thereof, if he claims the wreck, should be afforded an opportunity to settle all matters relating to salvage charges between him and the salvor. In any such case, the delivery of the wreck to the owner shall be withheld until the Receiver is satisfied that all claims relating to salvage charges have been settled to the satisfaction of the parties concerned. It can thus be noted that the legal provisions as they stand now fail to address the larger question of compulsory wreck removal from ecologically sensitive areas and from navigable waters. When the WP(C)Nos.6178 & 16039/2011 37 2025:KER:15525 owner of the vessel finds that the expenses to be incurred for retrieving or salvaging his vessel which has stranded or ran aground, would far outweigh the value of the vessel, the attempt would shift the burden of managing, removing and neutralising the harms emanating from the wreck on to the Receiver of wrecks. As far as the petitioner in W.P.(C) No.16039 of 2011 is concerned, they are not the owner's of the vessel. No legal right accrues on them to demand that they be awarded the salvage operations of MV NAND APARAJITHA. Similarly, no locus is revealed in the said petitioner to seek a direction against the Administrator of the UTL to take steps under the Rules of 1974.
18. In this context, it may be worthwhile to examine the Nairobi International Convention on the Removal of Wrecks, 2007. The said Convention provides a detailed framework for dealing with wrecks and defines a wreck-related hazard as a "danger or impediment to navigation" or a condition or threat that "may reasonably be expected to result in major harmful consequences to the marine environment or damage to the coastline or related WP(C)Nos.6178 & 16039/2011 38 2025:KER:15525 interests of one or more States." Articles in the Convention cover the criteria for determining the hazard posed by wrecks as well as environmental criteria such as damage likely to result from the release into the marine environment of cargo or oil. Measures to facilitate the removal of wrecks, including rights and obligations to remove hazardous ships and wrecks are set out in the Convention. Circumstances when the ship owner is responsible for removing the wreck, when can a State intervene, the liability of the owner for the costs of locating, marking and removing ships and wrecks, the duty of the registered ship owner to maintain compulsory insurance or other financial security to cover liability under the Convention and provisions for settlement of disputes are all incorporated in the Convention. The 2007 Convention thus makes the ship owners financially liable and requires them to take out insurance or provide other financial security to cover the costs of wreck removal. It provides States with a right of direct action against insurers. It also enables State parties to voluntarily extend the Convention's scope to their territorial seas. The Convention thus provides a legal basis WP(C)Nos.6178 & 16039/2011 39 2025:KER:15525 for the States to remove from their coastal waters wrecks that may pose a hazard to navigation or to marine and coastal environments. The present lacunae in the Indian law relating to the handling and removal of wrecks enable unscrupulous vessel owners to go scot- free and the public exchequer to be burdened with the task of meeting the huge expenses for wreck removal. With a long and ecologically fragile coastline bordering international navigation routes and the recent increase in shipping casualities, it is high time that Indian law concerning maritime wrecks is appropriately amended to meet the felt necessities of the times. Till then the following dictum laid down by the Hon'ble Supreme Court in M.V.Elisabeth and others v. Harwan Investment and Trading Pvt. Ltd. [AIR 1993 SC 1014] in the context of International Convention relating to the arrest of Seagoing Ships, 1952 (Brussels Convention) assumes relevance:
"...The provisions of these Conventions are the result of international unification and development of the maritime laws of the world, and can, therefore, be regarded as the international common law or transnational law rooted in and evolved out of the general principles of national laws, which, in the absence of specific statutory provisions, can be WP(C)Nos.6178 & 16039/2011 40 2025:KER:15525 adopted and adapted by courts to supplement and complement national statutes on the subject. In the absence of a general maritime code, these principles aid the courts in filling up the lacunae in the Merchant Shipping Act and other enactments concerning shipping. (Emphasis added) Conclusion:
In view of the above discussion, Exts.P1 and P3 issued by the Conservator of Forests and Chief Wild Life Warden, Kavaratti are valid and legal. Exts.P1 and P3 do not suffer from any perversity, error of jurisdiction, material irregularity or violation of natural justice. The prayer to quash Exts.P1 and P3 is hence not sustainable in law. W.P.(C) No.6178 of 2011 is hence dismissed. All interlocutory applications and orders issued therein shall stand closed. The respondents shall be free to proceed in accordance with law after affording prior notice and reasonable opportunity of being heard to all concerned. For the reasons stated herein above, W.P.(C) No.16039 of 2011 is dismissed. No costs.
Sd/-
SYAM KUMAR V.M. JUDGE csl WP(C)Nos.6178 & 16039/2011 41 2025:KER:15525 APPENDIX OF WP(C) 16039/2011 PETITIONER EXHIBITS EXT.P1 COPY OF THE AGREEMENT DATED 03.11.2010 ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT EXT.P2 COPY OF THE INSPECTION REPORT OF M/S.SMIT SINGAPORE PTE LTD.
EXT.P3 COPY OF THE INSPECTION REPORT OF SURVEYORS TO INDIAN REGISTER OF SHIPPING EXT.P4 COPY OF THE PROPOSAL FOR THE WRECK REMOVAL DATED 24.12.2010 SUBMITTED BY THE PETITIONER EXT.P5 COPY OF THE MERCHANT SHIPPING (WRECK AND SALVAGE) RULES, 1974 EXT.P6 COPY OF THE PLP NO.1 OF 2011 DATED 17.01.2011 FILED BY THE PETITIONER EXT.P7 COPY OF THE NOTICE ISSUED BY THE LOK ADALAT IN PLP NO.1 OF 2011 DATED 24.02.2011 EXT.P8 COPY OF THE REQUEST DATED 23.03.2011 SUBMITTED TO TEH 1ST RESPONDENT EXT.P9 COPY OF THE LETTER DATED 23.03.2011 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.
EXT.P10 COPY OF THE REMINDER DATED 21.04.2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT EXT.P11 COPY OF THE REQUEST DATED 06.05.2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT EXT.P12 COPY OF THE LETTER DATED 11.05.2011 ISSUED WP(C)Nos.6178 & 16039/2011 42 2025:KER:15525 BY THE 2ND RESPONDENT TO THE PETITIONER EXT.P13 COPY OF THE REQUEST DATED 12.05.2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT EXT.P14 COPY OF THE LETTER DATED 13.06.2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXT.P15 COPY OF TEH NOTICE DATED 02.06.2011 SCHEDULING THE HEARING OF PLP NO.1 OF 2011 BY THE LOK ADALAT TO THE PETITIONER EXT.P16 A TRUE COPY OF THE DRAFT TERMS OF WORK ARRANGEMENT PURSUANT TO MEDIATION PROCEEDINGS DATED 19-09-2022.
WP(C)Nos.6178 & 16039/2011 43
2025:KER:15525 APPENDIX OF WP(C) 6178/2011 PETITIONER EXHIBITS EXT.P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 15- 10-2010 ISSUED BY THE RESPONDENT TO THE PETITIONER.
EXT.P2 COPY OF THE REPLY DATED 22.10.2010 ISSUED BY THE PETITIOENR TO THE RESPONDENT EXT.P3 COPY OF THE NOTICE DATED 25.10.2010 ISSUED BY THE RESPONDENT UPON THE PETITIONER EXT.P4 COPY OF THE REPLY ISSUED BY THE PETITIONER DATED 2.11.2010 TO THE RESPONDENT EXT.P5 COPY OF THE REPLY DATED 11.11.2010 ISSUED BY THE PETITIONER TO THE RESPONDENT EXT.P6 COPY OF THE STATEMENT MADE BY THE MINISTER OF STATE FOR ENVIRONMENT AND FORESTS IN LOK SABHA DATED 06.12.2010 EXT.P7 COPY OF THE REQUEST MADE BY THE PETITIONER DATED 27.10.2010 TO THE RESPONDENT.
EXT.P8 COPY OF THE LETTER DATED 24.11.2010 BY THE RESPONDENT TO THE PETITIONER RESPONDENTS' EXHIBITS EXT.R1(a) COPY OF THE LETTER DATED 10.11.2010 SENT BY ESSAR LOGISTICS EXT.R1(b) COPY OF THE REPORT DATED 29.11.2010 OF SRI.AJI VASUDEVAN, MMD SHIP SURVEYOR CUM DEPUTY DGI, CHENNAI.
EXT.R1(c) COPY OF THE PROPOSAL SUBMITTED BY THE NATIONAL INSTITUTE OF OCEANOGRAPHY ALONG WITH THE COVERING LETTER ISSUED BY THE SENIOR PRINCIPAL SCIENTIST.