Excellent Ship Builders vs The Administrator, Union Territory
2025 Latest Caselaw 4464 Ker

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

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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

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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

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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

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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)

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.