Vishnu Engineering Corporation vs Kolkata Port Trust

Dipankar Datta, J.—The petitioners are the owners of MTRYSON, an oil tanker (hereafter the said vessel). They intended to break the said vessel at a dock of the Kolkata Port Trust (hereafter the KoPT); however, their request has not been accepted by the KoPT. Accordingly, prayers have been made for prohibiting the KoPT to obstruct breaking of the said vessel at the dock, commanding the KoPT to grant sanction for commencement of ship breaking activities as well as for direction on the KoPT to issue necessary instructions to its concerned departments to allow the petitioners break the said vessel. I have heard Mr. Saha, learned advocate for the petitioners and Mr. Kar, learned advocate for the KoPT at length. The only question that arises for a decision on this writ petition is whether the petitioners'' legal rights have been infringed by the KoPT or not.

For the purpose of deciding the fate of the writ petition, it would be necessary to trace the genesis of the dispute. It is noticed that:

a) The said vessel at the material time was owned by M/s. Vivada Inland Waterways Limited (hereafter Vivada). By its letter dated February 12, 2013 addressed to the Deputy Dock Manager (Shipping) of the KoPT, Vivada requested for allotment of berth at dock No. 19 from February 12, 2013 for hot work repair, the likely duration whereof would be around 3 to 5 days. It was further conveyed thereby that should the said vessel require huge repairs, Vivada would consider selling the same for demolition/scrap. Vivada enclosed with the said letter various documents including copy of ''Gas Free Certificate for Man Entry.

b) The ''Gas Free Certificate for Man Entry'' referred to in the said letter is a certificate dated February 11, 2013 issued at 16.30 hours by the Deputy Controller of Explosives, East Circle, Kolkata, in favour of Vivada in pursuance of Rule 43(c) of the Petroleum Rules, 2002. The footnote stipulated that the certificate is valid for 48 hours from the time of issue and only if the conditions are remaining unchanged.

c) Another certificate i.e. ''Gas Free Certificate for Hot Work'' dated February 13, 2013 issued at 15.30 hours by the same officer of the Explosives Department in respect of the said vessel, valid for 48 hours from the time of issue and only if conditions are remaining unchanged, is also on record.

d) Prior to Vivada seeking permission from the KoPT for berthing of the said vessel for repairs, the first petitioner on February 7, 2013 had confirmed to Vivada regarding purchase of the said vessel for valuable consideration. A day later, the first petitioner represented to the Director, Marine Department of the KoPT (hereafter the Director) that it had purchased the said vessel for demolition at a dock of the KoPT and enclosed the copy of the memorandum of agreement for reference. In the very letter, the first petitioner observed that the owner of the said vessel would provide it with ''Gas Free Certificate for Man Entry'' and ''Gas Free Certificate for Hot Work'' from the Explosives Department and prayed for permission to allow the said vessel to be brought at the dock at the earliest. Importantly, licence was issued by the KoPT to the first petitioner for ship breaking as per its bylaws valid from February 11, 2013 to February 10, 2014.

e) Be that as it may, the petitioners to buttress their claim seek to draw support from an endorsement made by the Superintendent (Permit and Licence) of the KoPT on a copy of their letter dated February 18, 2013. By the said letter, the petitioner had requested to arrange issuance of daily dock permits for 130 men and for 8 lorries for access to dock No. 19 to facilitate the process of dismantling and the Superintendent had, by the said endorsement, directed issuance of daily permits. According to the petitioners, they had paid the appropriate fees for obtaining permission; and licence having been issued after the Dock Master (Port) had approved the application for issuance of daily dock permit, there could be no reason to stall the process of breaking of the said vessel.

f) The immediate cause of action for moving the writ petition appears in paragraph 15 thereof, wherein it is pleaded that to the petitioners'' utter shock and disbelief, the Director had called them on February 22, 2013 and ordered removal of the said vessel from the dock allegedly on the ground that the same is an oil tanker and cannot be permitted to be broken without the prior certification from the Explosives Department. The petitioners, before the Director, had relied upon the decisions of the Supreme Court reported in Research Foundation for Science Technology and Natural Resources Policy Vs. Union of India (UOI) and Another, , but in a most illegal and arbitrary manner, the Director insisted on removal of the said vessel from the dock. Such insistence of the Director prompted the petitioners to approach the Court with the instant writ petition seeking relief as noticed above.

Learned advocate representing the parties have referred the Court to various statutory provisions as well as the decisions of the Supreme Court (supra) in support of their respective arguments.

Having considered the factual matrix vis-a-vis the statutory provisions governing the field, this Court finds no reason to hold that the KoPT overstepped its limit and infringed the petitioners'' legal rights. For the reasons following, I am inclined to hold that the Director was justified in what he did.

Ship breaking facilities at Kolkata Port was reopened for dismantling of vessels with effect from January 21, 2013. It is the stand of the KoPT in its affidavit-in-opposition that although temporary suspension of ship breaking activities was lifted and with effect from January 21, 2013 ship breaking activities have been allowed to commence, breaking of oil tankers is beyond the purview of such resumption and it was as far back as in 2003 that an oil tanker was permitted to be broken at the Kolkata port. Mr. Kar also contended that a policy decision has been taken by the KoPT not to allow breaking of oil tankers and that the endorsement of the superintendent on which the petitioners are relying to obtain orders from this Court is of no relevance having regard to such policy decision and non-compliance of statutory provisions by the petitioners. Despite the fact that the policy decision taken by the KoPT to the effect that oil tankers shall not be allowed to be broken and/or dismantled at Kolkata port has not been notified, as correctly contended by Mr. Saha, this Court is in agreement with Mr. Kar that no application for permission to break the said vessel was made in terms of Rule 135 of the Calcutta Port Rules to the Director with the necessary documents and, therefore, the endorsement of the superintendent is of no worth. This Court is also in agreement with Mr. Kar that as on February 8, 2013 when the first petitioner made the application before the Director, it did not have the licence to break ships. It is also not in dispute that the first petitioner became the owner of the said vessel as late as on February 18, 2013, as it appears from the letter of Vivada of even date addressed to the Harbour Master (Port). Also, the ''Gas Free Certificates for Hot Work and Man Entry'' issued by the Explosives Department in favour of Vivada on February 11, 2013 had expired and, therefore, the petitioners had not in their possession the certificates that they were required to obtain under Rule 43A of the Petroleum Rules, 2002.

The statutory provisions relating to breaking of an oil tanker not having been complied with by the petitioners, the contention urged on their behalf that the Director, acted illegally, unreasonably and in an arbitrary manner by insisting them to remove the said vessel has to be overruled.

The decisions of the Supreme Court have been looked into. Primarily the Supreme Court was dealing with the problem that arose because of an unfortunate incident at Alang port in Gujarat. The decisions did not impose any obligation on the KoPT to allow facilities for breaking of an oil tanker and, thus, the same are of no assistance to the petitioners.

The petitioners are, therefore, not entitled to relief as claimed in the writ petition. The writ petition, accordingly, stands dismissed. However, this Order of dismissal shall not preclude the petitioner to apply for permission before the Director, for breaking the said vessel with requisite documents. This Court expresses hope and trust that if such an application is made, the same shall be considered and disposed of in accordance with law at an early date. This liberty is granted to the petitioners having regard to the fact that the so called policy decision of the KoPT not to grant permission to break/dismantle oil tankers has not been notified and there being no indication in the letter dated January 21, 2013 issued by the Director that reopening of ship breaking facilities at Kolkata port would be confined to ships other than oil tankers, it would be unreasonable to read the same as one that does not extend to breaking of oil tankers.

Urgent photostat certified copy of this judgment and Order, if applied, may be furnished to the applicant at an early date.