IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 WA.No. 1803 of 2010 ------------------------ AGAINST THE ORDER IN IA 10866/2010 IN WPC.3000/2010 Dated 17/09/2010 .................... APPELLANTS/RESPONDENTS 2 AND 3 ----------------------------------------- 1. COCHIN PORT TRUST,WILLINGDON ISLAND, COCHIN,REPRESENTEDBY ITS CHAIRMAN. 2. DEPUTY CONSERVATOR,COCHIN PORT TRUST, WILLINGDON ISLAND,COCHIN. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.E.K.NANDAKUMAR RESPONDENTS/PETITIONER AND RESPONDENTS 1,4 AND 5 ------------------------------------------------------------------ 1. LAXMI CRANES & TRAILERS(P),BLDG.NO VII/ 602 A,KUNDANNOOR JUNCTION,MARADU, COCHIN-682304. 2. UNION OF INDIA,REPRESENTED BY ITS SECRETARY,MINISTRY OF SHIPPING, NEW DELHI-100001. 3. COMMISSIONER OF CUSTOMS,WILLINGDON ISLAND,COCHIN-682003. 4. DEA SHIPPING & FORWARDING,MAJURO STREET 4020,MARSHAL ISLAND. ADV. SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCISE FOR R3 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR R2 & R4 SRI.BECHU KURIAN THOMAS FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 1803 of 2010 ------------------------------------------ Dated this the 16th day of November, 2010 JUDGMENT J.Chelameswar, C.J. Pursuant to an order dated 18th October, 2010, a communication dated 26.10.2010 from the Ministry of Shipping, Government of India in the Mercantile Marine Department is placed before the Court along with the latter of the Commandant, District Law Officer on behalf of the District Commander, Headquarters, No.4 Coast Guard District, Fort Cochi. The letter of the Commandant referred to above informs the Assistant Solicitor General (in substance) that the Coast Guard does not have the expertise on the question which is referred to them. Thereafter the Assistant Solicitor General requested the Mercantile Marine Department to examine the matter. The relevant portion of the communication dated 26.10.2010 reads as follows: W.A.No.1803 of 2010 - 2 - “Please refer to your letters dated 20.10.2010 & 26.10.2010 seeking expert opinion for using a dump barge in anchored position for the purpose of salvage operation of the sunken vessel M.V. Maria. S.A meeting was convened in the office of the undersigned on 25th October 2010 to find out the views of the stakeholders viz.Cochin Port Trust, Commander D.P.Yadav, Indian Coast Guard and M/s.Laxmi Cranes & Trailer(p) Cochin, However, the representative of the Cochin Port Trust was not present in the meeting. As the area of salvage operation falls beyond smooth & partially smooth waters, any vessel engaged for salvage operation shall be a sea going vessel registered under Indian Merchant Shipping Act, 1958, as amended and holding valid statutory certificates under the said Act. As a 'dump barge' is not fitted with propulsion system, it does not comply with the Indian Merchant Shipping Act, 1958. As the area of salvage operation is beyond smooth & partially smooth waters, a dump barge cannot be safely anchored and will cause threat to the port channel situated within 500 meters. Further, a vessel without self propulsion cannot anchor safely following the anchoring procedures. Over and above, as the area of salvage operation falls in the outer roads of the Cochin Port Trust, it is discretion of the Deputy Conservator, Cochin Port Trust to decide on the issue as per Rule 17 of the 'Cochin Harbour Crafts Rules'.” 2. Sri.Bechu Kurian Thomas, learned counsel for the first respondent submitted that in view of the long line of authoritative pronouncements commencing from Haji W.A.No.1803 of 2010 - 3 - Mohammed Ekramul Haq v. the State of West Bengal (AIR 1959 SC 488), Madan Gopal Kakkad v. Naval Dubey and another [(1992) 3 SCC 204], State of H.P. v. Jailal and others [(1999) 7 SCC 280] and Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1] an expert opinion is required to be supported by scientific reasons in support of the conclusion arrived at in the judgment and in view of the fact that the communication dated 26.10.2010 does not contain any such scientific reasoning, the opinion contained therein should be discarded. We see substantial force in the submission made by the learned counsel for the first respondent. 3. However, if the submission of the counsel for the first respondent is accepted, we have no further material on record after discarding the above mentioned opinion dated 26.10.2010 except the assertions and counter assertions made by the parties to the writ appeal. 4. The core issue before this Court is whether the learned Judge of this Court was justified in interfering with the W.A.No.1803 of 2010 - 4 - condition imposed by the appellants. The background facts are stated in the order dated 18th October, 2010 which reads as follows: “This appeal is preferred by the second respondent in I.A. No.10866 of 2010 in W.P.(C)No.3000 of 2010, aggrieved by an order dated 17.08.2010. The above mentioned I.A. is filed by the petitioner in the said Writ Petition, seeking enlargement of time fixed by this Court in interim order dated 03.02.2010. For the purpose of present order, the full factual details of the case may not be necessary, therefore we are stating only to the extent they are necessary. A foreign ship sank within the port area of Cochin Port on 30.06.2007. As per Section 14 of the Indian Ports Act, 1908, if any vessel is wrecked or sunk in any port, “conservator” of the port can call upon the owner of the vessel either to raise or remove the vessel. Such a notice was issued in the instant case subject to some conditions. Complaining that the conditions imposed were onerous, W.P.(C) 22117 of 2007 was filed earlier by the owner of the ship and this Court permitted the salvage to proceed in terms of an interim order in that Writ Petition. 2. Later, W.P.(C) No.3000 of 2010 was filed by the 1st respondent, wherein an interim order was passed on 03.02.2010, whereby the writ petitioner was permitted to complete salvage operations of the wreck within a specified period, subject to the conditions specified in the interim order. For various reasons, which are not relevant at this juncture, the salvage operations could not be completed within the stipulated period. Hence the I.A. 10866 of 2010 for extension of time. 3. The first respondent in the process employed a 'dump barge' for the purpose of the salvage operations. We understand, dump barge is a flat bottomed board and in the instant case such a barge is mounted with a crane for the purpose of salvage operations. It also appears W.A.No.1803 of 2010 - 5 - from the pleadings before us that, the appellants are insisting for self propelled barge, whereas the barge employed by the first respondent is towed by tugboats. 4. The appellants are agreeable for granting of time as sought for by the first respondent. However, they are insisting that the first respondent to use either a self propelled barge instead of 'dump barge' or else to keep a tug as stand-by. The first respondent is aggrieved by the imposition of such a condition, on the ground that they had already secured a 'dump barge' at a heavy cost. Employing a self propelled barge or keeping tug as stand by, for the entire period of salvage operations, would be highly uneconomic. 5. On the other hand, the appellants submit that the condition imposed by the appellants is reasonable in the interests of administration of the port area, as in the absence of suitable tug, the dump barge, if it drifts during the course of the salvage operations would cause further hindrance to the activities of the Port Trust. It will also cause great delay to the movement of vessels and inconvenience to the shipping channel, resulting a substantial economic loss to all concerned, which is avoidable by employment of appropriate tugs.” 5. Therefore, the question is whether the use of dump barge is likely to cause any impediment to the operations of the appellants and whether the appellants' directions to the first respondent to use either a barge with self propulsion facility or keep a tug as standby throughout the salvage operations are reasonable instructions issued by the appellants. Having regard to the nature of the questions we must confess that the courts lack of expertise in deciding such questions. Therefore the W.A.No.1803 of 2010 - 6 - normal rule of prudence requires that the court should not interfere with the decisions taken by the authorities which entitled them to take such a decision. The fact that the appellants are entitled to impose conditions regarding the activity of any vessel within the port area is not disputed. In the circumstances, we are of the opinion that the learned Judge erred in interfering with the directions issued by the appellants. The writ appeal is therefore required to be allowed and the same is allowed, in the circumstances, without any order as to costs. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns