All Kerala Houseboat Owners ... vs The Director Of Ports
2021 Latest Caselaw 11286 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

 THURSDAY, THE 08TH DAY OF APRIL 2021/18TH CHAITHRA, 1943

                   WP(C).No.21608 OF 2018(A)

PETITIONER:

              ALL KERALA HOUSEBOAT OWNERS ASSOCIATION
              REG.NO.A 489/2001, FISHING POINT,
              ALAPPUZHA -13 REPRESENTED BY ITS
              GENERAL SECRETARY, VIJAYAN K.

              BY ADVS.
              SRI.P.K.IBRAHIM
              SMT.K.P.AMBIKA
              SRI.A.L.NAVANEETH KRISHNAN
              SRI.K.THOMAS ALIAS

RESPONDENTS:

       1      THE DIRECTOR OF PORTS
              OFFICE OF THE DIRECTORATE OF PORTS,
              NEAR VALIYATHURA BRIDGE, VALLAKADAVU P.O.,
              THIRUVANANTHAPURAM- 695 008.

ADDL. 2       THE GOVERNMENT OF KERALA,
              DEPARTMENT OF FISHERIES AND PORTS,
              REPRESENTED BY ITS SECRETARY,
              THIRUVANANTHAPURAM.

              (ADDL.R2 IS SUO MOTU IMPLEADDED AS PER ORDER
              DATED 19/12/2018)

ADDL   3      THE KERALA MARITIME BOARD,
              BAZAR P.O., ALAPPUZHA, PIN-688 012,
              REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.

              (ADDL R3 IS IMPLEADED AS PER ORDER DATED 24-02-
              2020 IN IA 1/2019)

              R1-R2 BY SENIOR G.P. SRI.K.V.MANOJ KUMAR
              ADDL.R3 BY ADV. SRI.K.P.SUDHEER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-04-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.21608/2018
                                    :2 :




                           JUDGMENT

~~~~~~~~~

Dated this the 8th day of April, 2021

The petitioner, a registered Association of

Houseboat Owners in Kerala, has filed this writ petition

seeking to command the 1st respondent-Director of Ports to

ensure compliance of the provisions of the Inland Vessels

Act, 1917 and the Kerala Inland Vessels Rules, 2010 by

confiscating Houseboats operating illegally in Vembanad

Lake and Punnamada Kayal without the survey, the

registration and consent to operate from the competent

authorities. Certain incidental reliefs are also sought in the

writ petition.

2. The petitioner states that a number of

houseboats, without registration and consent from the

competent authorities, are operating in Vembanad Lake and

Punnamada Kayal. The names of houseboats illegally WP(C) No.21608/2018

operating are well known to the officials. Such boats can be

confiscated. However, the respondents are keeping their

eyes shut due to political compulsions. Such unauthorised

houseboats are polluting the Vembanad Lake and

Punnamada Kayal. About 25% of the houseboats directly

discharge their organic waste and sewage into the water

body. These boats are functioning without consent from the

Pollution Control Board. Though stop memos are issued on

some of the unauthorised houseboats, the memos are not

enforced.

3. Aggrieved by the inaction of the 1 st respondent,

the petitioner filed W.P.(C) No.10646 of 2018. By Ext.P1

judgment, this Court directed the 1st respondent to consider

the representation of the petitioner in accordance with law

and take a decision at the earliest. A hearing was

conducted by the 1st respondent. And in the hearing, the

petitioner submitted that the Director of Ports being the

implementing agency for implementation of the Kerala Inland

Vessel Rules, 2010, is liable to ensure that no houseboats WP(C) No.21608/2018

without registration and consent from the competent

authorities are operating in Vembanad Lake and

Punnamada Kayal. The 1st respondent expressed his

inability to do anything more due to shortage of staff to seize

the illegally operating vessels and absence of yard to keep

large number of boats illegally operating, on being seized.

4. The learned counsel for the petitioner submitted

that Section 19A of the Inland Vessels Act, 1917 prohibits

the use of an Inland vessel for any voyage or any service

without a certificate of registration granted under the Act.

An Inland Vessel cannot be registered without a survey

before service. The Rules require that pollution control

devices for sewage treatment and disposal should be

installed and solid waste processing, disposal and sound

pollution control measures should be ensured. However,

these rules are not enforced.

5. The learned counsel for the petitioner further

pointed out that Rule 138 of the Kerala Inland Vessels Rules

provides for an Advisory Committee to advise the owners, WP(C) No.21608/2018

agents, charterers of Inland vessels, on questions affecting

the interest of the passengers and shippers of the goods.

The Advisory Committee has decided that all vessels should

display registration numbers. The Advisory Committee also

decided not to grant new registration of vessels in Alleppey

Port except on replacement basis.

6. Due to the heavy Inland traffic in Alleppey District,

the Advisory Committee decided that permissions for new

reconstruction will be given only for applications received up

to 31.12.2013. However, boats registered in other districts

are allowed in Alappuzha, defeating the measures taken for

reducing Inland Water Traffic. There are 713 licensed boats

in Alappuzha. There are only two common effluent

treatment plants for houseboats. The houseboat owners

had made a demand for a third effluent treatment plant. The

demand is not met. The 1st respondent is therefore

compellable to enforce the provisions of law and curb the

menace of unauthorised houseboats in Vembanad Lake and

Punnamada Kayal, so as to reduce Inland water traffic and WP(C) No.21608/2018

consequential pollution of the lake/kayal.

7. The 1st respondent filed a counter affidavit and

defended the writ petition. The 1 st respondent pointed out

that the all Inland vessels were brought under the jurisdiction

of the Director of Ports only in the year 2010. Till that

period, the Chief Inspector of Boats, Irrigation and Water

Resources Department was the Controlling Authority. After

the implementation of the Kerala Inland Vessels Rules,

2010, only five new posts were created in the Department of

Ports for administration and implementation of the rules.

There is a dire shortage of staff in the Department for

effective implementation of the Rules.

8. Nevertheless, the 1st respondent has issued stop

memos on those houseboats which are found to be plying

without licence. At present, there is no place for mooring the

seized boats. The 1st respondent issued letter to all ports of

registries to make necessary arrangements for mooring the

seized boats under the jurisdiction. The District Collector

was also required to allot suitable place for mooring the WP(C) No.21608/2018

seized boats, as per Ext.R1(a) letter.

9. The 1st respondent stated that Rule 143 of the

Rules contemplates establishment of Enforcement Wing. So

far, an Enforcement Wing has not been constituted.

Proposal for Enforcement Wing has been made to the

Government and the same is under consideration. A

meeting of Ministers of different portfolios, Government

Secretaries and the Officials of different Departments

chaired by the Chief Minister was held on 07.06.2018 to

discuss the issues involved. In the said meeting, decision

was taken to complete the process of registration of all the

boats operating without proper certificates before

31.12.2018. These boats include:-

(i) the boats which earlier had CIB registration but has not obtained registration under Kerala Inland Vessels Rules.

(ii) those boats who were given temporary registration.

(iii) All boats who has participated in the adalath conducted and has given application but in which the surveys were not WP(C) No.21608/2018

completed.

(iv) for those boats that had applied on line, who were not registered for want for necessary certificates but has been constructed in accordance with guide lines issued by the Government and

(v) also those boats which had illegally constructed the upper deck and structure after getting the KIB licences, provided they regularize the illegal construction in accordance with the conditions laid down by the Government.

In the meeting, it was noted that Survey for the registration of

these boats has been completed and report has been

forwarded to the Chief Minister.

10. The 1st respondent further submitted that the

registration process of a vessel begin with initial survey

conducted during the construction of vessel. The Chief

Surveyor issues a Survey Certificate for registration after

the initial survey. Thereafter, Insurance Certificate,

Pollution Control Board Clearance Certificate and Crew

Certificate will have to be submitted with the registering

authority for grant of registration. Annual survey is WP(C) No.21608/2018

conducted every year to inspect the hull of vessels,

firefighting equipments, life saving appliances, crew

certificates, etc. as required under the Rules. If the vessel

possesses all valid certificates, a certificate of survey is

issued every year.

11. The sewage treatment plants are owned by the

DTPC and run by the Houseboat Owners' Association. The

Government has given administrative sanction as per

Ext.R1(e), to purchase a sewage collection barge to collect

the sewage from houseboats. The 1st respondent has taken

all possible measures to control pollution that are caused by

the plying of boats in Vembanad Lake.

12. The Senior Government Pleader filed a statement

dated 29.02.2020. It is stated therein that the Government

constituted a Committee with Revenue Officials including

the District Collector, Superintendent of Police and Officers

of Port Department to conduct survey regarding the boats

plying in the lake and also to find out unauthorised

operations of houseboats. The Government want to see WP(C) No.21608/2018

that illegal operations are stopped. The Statement proceeds

to disclose further Governmental actions taken in this

regard, which are as follows:-

● The Chief Executive Officer, Kerala Maritime Board is directed to form task force with multiple teams considering officials of Police, Revenue, Inland Waterways and Pollution Control Board to legible inspection of registered house boats to ensure that they are following all relevant rules and these inspections shall be completed within 15 days.

● The Chief Executive Officer, Kerala Maritime Board is further directed to initiate a special task to identify unregistered house boats and Shikkaras and other motorized boats and steps be taken to register eligible vessels within one month and take action against the others as per the Kerala Inland Vessels Rules and to furnish a report to the Government within 20 days.

● It was further directed to ensure that Online Web Portal of Inland Vessels is launched within one month.

● The Online tracking mechanism (similar to those house boats by the Fisheries Department), of house boats is also to be put in place within three months.

● Directions were also issued to conduct training sessions for house boat owners and staffs.

● The Chief Executive Officer, Kerala Maritime Board is directed to have discussion with District Administration, State Pollution Control Board, District WP(C) No.21608/2018

Tourism Promotion Council and other concerned agencies to implement the comprehensive waste discharge systems for house boats.

● The Registering Authority is directed to take assistance from the District Police Chief for custody and storage of illegal house boats and to deal as per provisions of Cr.P.C.

● Media campaign to make awareness among the tourists to not use unregistered house boats etc. is decided to be implemented with the help of District Tourism Promotion Council.

13. The 3rd respondent-Kerala Maritime Board filed a

counter affidavit. The 3rd respondent stated that during the

pendency of the above writ petition, Kerala Maritime Board

Act, 2017 was enacted to provide for the constitution of the

Kerala Maritime Board for non-major ports in the State and

to vest administration, control and management of such

ports with the Board.

14. The Kerala Maritime Board invited Expression of

Interest from General Public and the land has been

identified and an agreement of lease was executed for more

seized boats. Steps are being taken to appoint security

personnel in the said land. CCTV installation, lighting, WP(C) No.21608/2018

temporary jetty, etc. are also under progress. The Maritime

Board conducted surprise inspections and found that 66

vessels are operating without valid documents and out of the

said 66 vessels, 54 vessels are unregistered vessels.

Action has been taken against unregistered vessels.

Inspection was also conducted by the Officials of the

Maritime Board and the police. The 3 rd respondent stated

that the Board has taken the following decisions to

implement Kerala Inland Vessels Rules, 2010:-

● The Chief Executive Officer, Kerala Maritime Board will form task force with multiple team including officials of Police. The above team will ensure that the House Boats are following the rules and regulations properly. This task will be completed within a month.

● All unregistered House Boats and shikkaras/Motor Boats will be identified and steps will be taken to register eligible vessels within one month.

● An online Web Portal of Inland Vessels will be launched within one month which will give warning if the registered vessel is operating without validating documents.

● An online GPS tracking mechanism of House Boats will be put in place within 3 months.

WP(C) No.21608/2018

● All House Boats shikkaras/Motor Boats will be installed with bar coded number plates and given separate colours marking on both sides to identify unauthorised boats.

● Refresher training programmes will be arranged by Kerala Maritime Academy for boat owners and cooks.

● A comprehensive waste management will be implemented for House Boats with the help of Revenue, Tourism and Pollution Control Board. ● The custody and storage of illegal House Boats will be dealt as per the provisions of Cr.PC and law of the land with the help of District Collector and Police Chief.

● Media campaign will be given to public to use registered House Boats in safety point of view.

15. Amendment to the existing Kerala Inland Vessel

Rules has been drafted with more stringent fine, jail term

and detention of the vessels and has been forwarded to the

Kerala Inland Vessel Rules Advisory Committee members,

for their opinion. As directed by the Board, the Port Officer

invited Expression of Interest for establishment of detaining

yard on 14.08.2020. The Port Officer has received

applications from four interested persons and selection of

detaining yard is under process.

WP(C) No.21608/2018

16. Heard the learned counsel for the petitioner,

learned Government Pleader representing 1 st and additional

2nd respondent and the learned Standing Counsel appearing

for the additional 3rd respondent.

17. The grievance of the petitioner is as regards

unauthorised plying of houseboats without registration,

survey and pollution control devices. During the pendency of

this writ petition, the Kerala Maritime Board Act, 2017 was

enacted, as per which the administration, control and

management of non-major ports in Kerala vests with the

Kerala Maritime Board. Therefore, on and from 02.05.2019,

it is for the Maritime Board to take decisions in the matter.

18. The Maritime Board has decided that the Chief

Executive Officer will form task force with multiple teams

including officials of police to ensure that the houseboats

are following rules and regulations properly. All unregistered

houseboats and Shikkaras/Motor boats will be identified and

steps will be taken for their registration. Only GPS tracking

mechanism will be put in the houseboats. Barcode number WP(C) No.21608/2018

plates with separate colours will be installed on houseboats.

A comprehensive Waste Management System will be

implemented with the help of Revenue, Tourism and

Pollution Control Board. The custody and the storage of

illegal houseboats will be dealt with under the provisions of

the Code of Criminal Procedure with the help of District

Collector and Police Chief.

19. If the aforesaid decision of the Kerala Maritime

Board are implemented, the grievance of the petitioner will

stand redressed. The major problem faced by the 1 st

respondent-Director of Ports and now by the Kerala

Maritime Board in the matter of enforcement of the Inland

Vessels Act, 1917 and the Kerala Inland Vessels Rules,

2010 is the non-availability of detaining yard for mooring the

seized vessels. The additional statement dated 10.10.2020

filed by the Standing Counsel for the additional 3 rd

respondent would show that Expression of Interest is

already invited for setting up of detaining yard and four

applications have been received from interested persons. WP(C) No.21608/2018

Those applications are under process. The concrete steps

taken by the Board in this regard are stated in paragraph 8

of the counter affidavit dated 28.02.2020 filed by the Board.

In the facts and circumstances of the case, the

writ petition is disposed of directing the 3 rd respondent to

finalise the steps taken for establishing a detaining yard

within a period of six months and implement the decisions

taken by the Board as disclosed in paragraph 8 of their

counter affidavit (paragraph 14 hereinabove), without further

delay.

Sd/-

N. NAGARESH, JUDGE

aks/03.04.2021 WP(C) No.21608/2018

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 27/03/2018 IN WPC NO.10646/2018.

EXHIBIT P2 TRUE COPY OF THE ORDER NO. B3-2419/2018 DATED 19/05/2018 OF THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 12/03/2018 MARKED AS EXT.P6 IN WPC NO.10642/2018.

EXHIBIT P4 TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE ADVISORY BOARD MEETING AT AGENDA NO.7 HELD ON 06/09/2013.

EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 20/09/2016 OF THE WORKSHOP ALONG WITH THE LIST OF PERSONS PRESENT IN THE WORKSHOP.

EXHIBIT P6            PHOTOGRAPH OF      ONE OF THE    HOUSE BOAT
                      OPERATING           ILLEGALLY        WITHOUT
                      REGISTRATION.

EXHIBIT P7            TRUE COPY OF THE REPRESENTATION.

EXHIBIT P8            TRUE COPY OF THE PETITION TO THE CHIEF
                      REGISTERING AUTHORITY.

EXHIBIT P9(A)         TRUE COPY OF THE APPLICATION UNDER RTI
                      ACT DATED 12/07/2017.

EXHIBIT P9(B)         TRUE   COPY        OF   THE   REPLY    DATED
                      07/08/2017.

EXHIBIT P10           TRUE   COPY    OF   THE       LETTER   DATED
                      13/02/2019    ADDRESSED       TO   THE   1ST
                      RESPONDENT.

EXHIBIT P11           TRUE COPY OF THE ORDER DATED 08/02/2019
                      OF THE 1ST RESPONDENT.
 WP(C) No.21608/2018



EXHIBIT P12           TRUE COPY OF THE REPORT APPEARED IN
                      MALAYALA    MANORAMA  DAILY    DATED
                      24/01/2020.

EXHIBIT P13           TRUE COPY OF THE REPRESENTATION DATED
                      29/01/2020  SUBMITTED  TO   THE   2ND
                      RESPONDENT.

RESPONDENTS' EXHIBITS:

EXHIBIT R3(a)         TRUE COPY OF G.O.(P) NO.20/2019/F&PD

DATED 2/5/2019 ISSUED BY GOVERNMENT OF KERALA, DEPARTMENT OF FISHERIES AND POST

EXHIBIT R3(b) TRUE COPY OF AGREEMENT OF LEASE DATED 1/11/2019 EXECUTED BETWEEN THE OWNERS OF LAND AND THE REGISTERING AUTHORITY, KERALA INLAND VESSELS RULES, 2010, KERALA MARITIME BOARD

EXHIBIT R3(c) TRUE COPY OF REPORT DATED 21/1/2019 SUBMITTED BEFORE THE DISTRICT COLLECTOR

EXHIBIT R3(d) TRUE COPY OF REPORT DATED 31/1/2019 SUBMITTED BEFORE THE DISTRICT COLLECTOR.

EXHIBIT R3(e)         TRUE COPY OF REPORT DATED 28/2/2019
                      SUBMITTED     BEFORE      THE     DEPUTY

SUPERINTENDENT OF POLICE, ALAPPUZHA

EXHIBIT R3(f) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 3/6/2019

EXHIBIT R3(g) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 18/11/2019

EXHIBIT R3(h) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 19/11/2019

EXHIBIT R3(i) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 20/11/2019

EXHIBIT R3(j) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 5/12/2019 WP(C) No.21608/2018

EXHIBIT R3(k) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 06/12/2019

EXHIBIT R3(l) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 27/1/2020

EXHIBIT R3(m) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 28/1/2020

EXHIBIT R3(n) TRUE COPY OF KIV SURPRISE INSPECTION REPORT DATED 27/2/2020

EXHIBIT R3(o) TRUE COPY OF PRESS RELEASE ALONG WITH A COVERING LETTER DATED 6/2/2020 OF THE PORT OFFICER

EXHIBIT R1(a) A COPY OF THE LETTER DATED 28/07/2015 TO THE DISTRICT COLLECTOR, ALAPPUZHA.

EXHIBIT R1(b) A COPY OF THE PROPOSAL MADE BY THE DIRECTOR OF PORTS TO THE GOVERNMENT DATED 29/03/2016.

EXHIBIT R1(c) A COPY OF THE REMINDER DATED 21/06/2016.

EXHIBIT R1(d) A COPY OF THE MINUTES OF THE MEETING HELD ON 07/06/2018.

EXHIBIT R1(e) A COPY OF THE GO(RT) NO. 438/2018/P&PD DATED 12/06/2018.

EXHIBIT R1(f) A COPY OF THE LETTER DATED 18/09/2018.

ANNEXURE R1(a) TRUE COPY OF THE NOTICE OF EXPRESSION OF INTEREST DATED 15/05/2019.

ANNEXURE R1(b) TRUE COPY OF THE AGREEMENT DATED 01/11/2019 BETWEEN THE REGISTERING AUTHORITY AND THE LAND OWNERS.

ANNEXURE R1(c) TRUE COPY OF THE GO(RT) NO.82/2020/F & PD DATED 14/02/2020.

ANNEXURE R3(a)        TRUE COPY OF ORDER NO.B1-689/2020 DATED
                      22/02/2020   OF   THE  CHIEF    EXECUTIVE
                      OFFICER, KERALA MARITIME BOARD.
 WP(C) No.21608/2018




ANNEXURE R3(b)        TRUE COPY OF LETTER DATED 20/02/2020

ISSUED BY PORT OFFICER, ALAPPUZHA TO THE DISTRICT COLLECTOR, ALAPPUZHA.

ANNEXURE R3(c) TRUE COPY OF LETTER DATED 20/02/2020 ISSUED BY PORT OFFICER, ALAPPUZHA TO THE DISTRICT POLICE CHIEF, ALAPPUZHA.

ANNEXURE R3(d) TRUE COPY OF DETENTION ORDER ALONG WITH NOTICE DATED 27/02/2020 ISSUED BY REGISTERING AUTHORITY.

ANNEXURE R3(e) TRUE COPY OF DETENTION ORDER ALONG WITH NOTICE DATED 27/02/2020 ISSUED BY REGISTERING AUTHORITY.

ANNEXURE R3(f) TRUE COPY OF DETENTION ORDER ALONG WITH NOTICE DATED 27/02/2020 ISSUED BY REGISTERING AUTHORITY.

ANNEXURE R3(g) TRUE COPY OF LETTER NO.B3-5166/2018-2 DATED 11/08/2020 ISSUED BY CHIEF EXECUTIVE OFFICER, KERALA MARITIME BOARD TO THE PORT OFFICER, ALAPPUZHA.

ANNEXURE R3(h) TRUE COPY OF LETTER OF INTEREST NO.A5-

3948/2018 DATED 14/08/2020 ISSUED BY PORT OFFICER, ALAPPUZHA.

ANNEXURE R3(i) TRUE COPY OF REQUEST SUBMITTED BY THE PORT OFFICER, ALAPPUZHA TO THE DISTRICT GOVERNMENT PLEADER, ALAPPUZHA.

ANNEXURE R3(j) TRUE COPY OF LETTER DATED 28/09/2020 ISSUED BY PORT OFFICER, ALAPPUZHA TO THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT (BUILDINGS), ALAPPUZHA.

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