IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WA.No. 628 of 2007() -------------------- AGAINST THE JUDGEMENT IN OP.13586/2002 Dated 03/01/2007 .................... APPELLANT(S): RESPONDENTS 1 TO 4 IN O.P. ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, ERNAKULAM. 3. THE CHIEF IONSPECTOR OF BOATS, OFFICE OF THE CHIEF INSPECTOR OF BOATS, IRRIGATION DEPARTMENT, KAKKANAD. 4. THE CANAL OFFICER, ERNAKULAM. BY GOVERNMENT PLEADER SRI.T.B.HOOD. RESPONDENT(S): PETITIONER & RESPONDENTS 5 & 6 IN THE O.P. --------------------------------------------------------------------------------------------- 1. SHAHI SHIPPING LTD., KOCHI, G.V.IYER ROAD, W/ISLAND,KOCHI - 3, REPRESENTED BY BRANCH MANAGER, T.J.ABRAHAM. 2. THE DEPUTY CONSERVATOR, COCHIN PORT TRUST, W/ISLAND, KOCHI - 3. WA 628/07 - 2 - 3. M/S. ROM MARITIME LIMITED, HAVING ITS REGISTERED OFFICE AT 103, PANCHAVADI APARTMENTS, AMBADIPALAM ROAD, JANATHA P.O., VITTILLA, COCHIN - 19, REPRESENTED BY ITS MANAGING DIRECTOR - SRI.BENNY ROHAL, IMPLEADED AS PER ORDER DT. 17-01-2006. ADV. SRI.N.D.PREMACHANDRAN FOR R1 SRI.E.K.NANDAKUMAR FOR R2 SRI.A.K.JAYASANKAR NAMBIAR FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Raman, Ag.C.J. & Thottathil B.Radhakrishnan, J. = = = = = = = = = = = = = = = = = = = = = = = = W.A.No.628 of 2007 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of February, 2010. JUDGMENT P.R.Raman, Ag.C.J. 1.This writ appeal arises from the judgment of the learned single Judge in O.P.No.13586 of 2002 dated 3.1.2007. First respondent in this writ appeal filed the writ petition for quashing Exts.P13, P17, P21 and P22 and to restrain respondents 2, 3 & 4 from further proceeding against them and their vessels pursuant to the directions contained in Exts.P13, P17, P21 and P22 and for a declaration that respondents 2, 3 & 4 have no right or authority to insist or direct the writ petitioner to take further licence from the 3rd respondent for their vessels BBS Bhilai, MV Timblo and MV Screevani and other consequential reliefs. 2.The first respondent writ petitioner is a WA628/2007 -: 2 :- shipping company having its registered office at Bombay and having branches, among other places, at Cochin, Willingdon Island. They are the owners of a fleet of vessels comprising of mini bulk carriers, general cargo carriers, petrol carriers, water supply carriers etc. The FACT, Udyogamandal invited tenders from experienced transport contractors for transportation of bulk raw materials like sulphur and rock phosphate by self propelled barges from Cochin Port, Willingdon Island to FACT Cochin, Ambalamedu and Udyogamandal Division. Ultimately, the contract was awarded to the first respondent writ petitioner. He brought the vessels to Willingdon Island for transportation of the raw materials. It is contended on behalf of the first respondent that he brought the barges from Bombay to Cochin which were registered and licensed by the Mercantile Marine Board, Bombay as they were being used in Bombay. The licences issued are Exts.P1, P2 and P3. They also obtained Exts.P4, P5 and P6 certificates from the Mercantile Marine Department, Bombay for the purpose of bringing these vessels WA628/2007 -: 3 :- from Bombay to Cochin. The certificate is to prove the seaworthiness of the vessels. After reaching Cochin, they also took out registration and licences under the Cochin Harbour Craft Rules for the purpose of undertaking transportation of raw materials from Cochin Port to Udyogamandal and Cochin Divisions of the FACT. They are Exts.P7, P8 and P9. The third respondent in the writ petition, the Chief Inspector of Boats took the stand that the writ petitioner is liable to take out licences under the Cochin Public Canal and Backwaters Navigation Act, 1092 without which he cannot use the barges for transportation work in the canals and backwaters in Kerala. The learned single Judge after referring to Exts.P10, P11 and P12 found that the Government of Kerala have agreed that once registration and licence under the Cochin Harbour Craft Rules have been obtained for a particular vessel, for plying the vessels within the public canals and backwaters, no separate registration or licence is required under any other Act. Based on this agreement, reliefs were molded and declaration WA628/2007 -: 4 :- as sought for was granted and respondents 2 to 4 in the writ petition were directed not to obstruct in any way the use of the writ petitioner's barges for such transport of raw materials in accordance with the contract. 3.The contract period has already run out and at present, the first respondent is not engaged in transportation of any raw materials from Cochin Port Trust to FACT. 4.The question that was raised in this writ appeal is as to whether a licence under the Public Canal and Backwaters Navigation Act, 1092 is required for plying vessels through the State canals or a licence under the Cochin Harbour Craft Rules, 1947 issued by the second respondent will be sufficient or not. This question, however, is not considered with reference to the statutory provisions under the respective enactments. True, that the learned single Judge considered the agreement and it is contended by the learned Government Pleader that WA628/2007 -: 5 :- even the interpretation placed on the agreement is not correct. Be that as it may, an agreement between parties unless it is enabled by the provisions of law cannot override the provisions of the Act. Whether, in such circumstances, a licence is actually required as contended by the appellant in terms of the provisions contained in the Cochin Public Canal and Backwaters Navigation Act, 1092 and whether the Inland Vessels Act, 1917 has overriding effect are matters which neither the parties had argued nor considered by the learned single Judge and further, at the time of consideration of the writ petition, both sides agreed that the agreement is still in force and the learned single Judge observed that if that be so, respondents 2, 3 and 4 cannot take a stand contrary to the same by insisting that the petitioner should take out licences. Therefore, there was no consideration of the legal questions involved with reference to the provisions contained in the respective enactments and in the light of the changed circumstances that the writ petitioner has WA628/2007 -: 6 :- already worked out his contract and nothing remains for him now to be done, the question has become academic as far as the present case is concerned. The declaration as given in the judgment under appeal is vacated and left open for the limited purpose of considering the same as and when arises in future. But we make it clear that the direction issued by the learned single Judge not to proceed further against the writ petitioner will remain in force and binding as between the parties in the present case and we do not find any ground to interfere with such direction in the factual situations as noted above. The writ appeal is thus disposed of. Sd/- P.R.Raman, Ag.Chief Justice Sd/- Thottathil B.Radhakrishnan, Judge. Sha/0802 -true copy- P.S.to Judge.