1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION NO. 179/2009 IN WRIT PETITION NO. 111/2003 Salgaocar Mining Industries Pvt. Ltd. ...... Applicant. V/s. State of Goa and others. ....... Respondents. Mr. M. S. Sonak, Advocate for the applicant. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.1 to 3. Mr. S. D. Lotlikar, Senior Advocate with Ms. J. John, Advocate for respondent No.5. AND MISC. CIVIL APPLICATION NO. 612/2009 IN WRIT PETITION NO.46/2009 The State of Goa through Chief Secretary and another. .......... Applicants. V/s. The River Princess Hatao Manch through its convenor and 2 others. .......... Respondents. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for the applicants. Mr. Nigel Da Costa Frias, Advocate for respondent No.1. 2 Mr. Joseph Vaz, Central Govt. Standing Counsel for respondent No.2. Mr. S. D. Lotlikar, Senior Advocate with Ms. J. John, Advocate for respondent No.3. CORAM :- S.B. DESHMUKH & U. D. SALVI, JJ. DATE :- OCTOBER 06, 2009. ORAL ORDER : (Per S.B. DESHMUKH, J.) 1. We have heard learned Counsel appearing for the respective parties, including the learned Advocate General. This Misc. Civil Application No. 612/2009 is filed on behalf of the State of Goa through the Chief Secretary and the Director of Tourism. In this application, there are three respondents. The prayer made in this application is to permit the State Government to commence the tendering process, with a rider that no work order would be issued without specific orders of this Court. This misc. civil application has been filed on April 3, 2009. 2. Civil Application No. 179/2009, in Writ Petition No. 111/2003 has been filed by Salgaocar Mining Industries Pvt. Ltd., 3 against 5 respondents. Amongst these five respondents, respondent no. 1 is the State of Goa, respondent No.2 is the Director of Tourism and Competent Authority, respondent No.3 is the Hon'ble Minister of Tourism, respondent No.4 is the Village Panchayat of Candolim and the respondent No.5 is Jaisu Shipping Co. Pvt. Ltd. In this civil application, the applicant prays for affording an opportunity to remove the vessel “M.V. River Princess” by cutting/ dismantling the same and taking away the sections seawards to any authroized ship breaking yard. This application seems to have been filed by the applicant on 20.8.2009. 3. The River Princess Hatao Manch, is respondent No.1 in Civil Misc. Application No. 612/2009. We are recording few facts which are not in serious dispute, as follows : i) Writ Petition No.46/2009 has been filed by The River Princess Hatao Manch and pending disposal in this Court. In this writ petition, writ of mandamus is sought, commanding the respondents to forthwith take action for removal of the vessel M.V. River Princess, grounded on the Candolim-Sinquerim shore within time limit, to be determined by this Court. This 4 petition seems to have been filed in the month of January, 2009. This writ petition is in the interest of public at large. Petitioner Association in this writ petition seems to have been formed by the citizens of Candolim-Sinquerim Villages of Bardez Taluka. Apart from the State of Goa, the Director of Tourism, the Director of Department of Science, Technology & Environment, are party respondents. Union of India is also respondent No. 4 and Jaisu Shipping Co. Pvt. Ltd, is respondent No.5. On 28.1.2009, this Court, after hearing the learned Counsel for the parties, passed an order. This order is on record. We are not repeating what is stated in this order. Suffice it to notice that pendency of the appeal under the provisions of the Arbitration Act is taken into account. Liberty was granted to the learned Advocate General to move the Hon'ble the Chief Justice, as reflected from the said order. ii) Writ Petition No.111/2003 is filed by Salgaocar Mining Industries Pvt. Ltd., (“Salgaocar Mining” for short). In this writ petition, apart from the State of Goa and Director of Tourism, respondent No.4 is one Crosschem International Limited. This writ petition No.111/03 seeks various releifs from this Court. 5 However, the main prayer in this writ petition seems to be a declaration that the Goa Tourist Places (Protection and Maintenance) Act, 2001 as ultra vires the Constitution of India, illegal, unconstitutional, null and void. It has been also prayed that holding so, this Act may be struck down. This petition has been amended from time to time with the leave of this Court. This petition appears to have been filed in this Court somewhere in 2003. iii)Learned Division Bench of this Court passed an interim order on 12.3.2003 in Writ Petition No.111/03. This Court, further, after hearing the parties, passed a detailed order on April 29, 2003. Paragraph 47 of this order is material at this stage to be noticed. We are reproducing, herein below the said para only for the purpose of reference. “ 47. The Authorities must be permitted to use all possible means of removing the vessel as expeditiously as possible in view of the damage that has been already caused by it and further damage which is bound to be caused by it remaining where it is. It was submitted that the bids pursuant to the tender have not been accepted. Even assuming this to be so it is always open to the authorities to issue 6 a fresh tender or alter the terms of the tender or remove the vessel in any other manner.” iv) While declining interim relief, by a detailed order this Court has issued Rule and/or admitted the Writ Petition No. 111/2003. The writ petition pends for final hearing. v) In view of the interim order passed by this Court and more specifically para 47 thereof, it is not necessary to refer to the factual aspect which has given rise to all these proceedings and some other proceedings which we have not referred to. vi) In Writ Petition No.111/03, it has been pleaded in para 4(c) that during the monsoon, on 6th June, 2000, the Aguada Bay and the Panaji Port (among other places) were struck by unusually stormy winds and an extremely heavy ocean swell of strong force. These forces of the nature caused the River Princess to break anchor and set her adrift uncontrolled. The vessel's drifting speed grew in velocity and momentum due to the high winds and powerful ocean currents until, finally, the vessel ran aground in shallow waters at Sinquerim/Candolim at a distance of about 200 to 300 metres from the shoreline. Thus, from these pleadings, it appears that it was a natural 7 calamity on account of which River Princess vessel seems to have grounded at the place. This fact is not being disputed by any of the parties to the litigation. These two civil applications are pending in this Court vii)In view of the order passed by this Court in Writ Petition No. 111/03, and while declining to grant interim relief, this Court made some observations in para 47 of the order, which we have reproduced in the foregoing para. viii)For refloating and towing away the vessel, initially the contract stated to have been given to Crosschem International Limited, respondent No.4 in the Writ Petition. It has been reported that said Crosschem International Limited could not complete the task assigned to it. It abandoned the same and, thereafter, it was given to M/s. Jaisu Shipping Co. Pvt. Ltd. respondent No.5 in Writ Petition No.111/03 and respondent No.3 in Civil Application No.612/2009. ix) It is also stated that there is an agreement/contract amongst the State Government and Jaisu Shipping Co. Pvt. Ltd. for refloating and towing away the vessel from the place where it is grounded on 6.6.2000. 8 x) Apart from these proceedings, we may notice one more proceedings, i.e. Arbitration Application No.7/09 (new) and Civil Misc. Application No. 110/2008 (old), which was filed in the Court of learned District and Sessions Judge, South Goa, at Margao. This was filed by M/s. Jaisu Shipping Co. Pvt. Ltd. In this application, State of Goa was the sole respondent. This application appears to have been considered and decided by the learned District and Sessions Judge, Margao vide Judgment dated 29th April, 2009. Operative part of the Judgment of the learned District Judge, is relevant for our purpose, which we reproduce herein below : “The application is allowed in terms, namely by restraining the respondents from any manner whatsoever causing interference with or impediment to the work of the petitioners vis-a- vis the reflotation of the vessel undertaken by them under the Agreement dated 5.1.2007 and/or terminating the same; and from making any demand on the petitioners and/or taking away by way of damages or otherwise, taking any action in furtherance of the show cause notice dated 5.6.2008 and from adopting any measures or steps to award the work to any 9 other person or entity until the reflotation of the vessel in question and pending the determination of the issues arising between the parties which are arbitrable before the Arbitral Tribunal. The petitioners are also secured by an order of mandatory injunction directing the respondents to reimburse the amount of Rs.5,50,00,000/- having earlier come to a conclusion that the Performance Guarantee was wrongly appropriated by the respondents in encashing the same.” xi) Factually, it is not in dispute that the orders passed by the learned District Judge, Margao has been challenged by the State Government by filing an appeal, being Appeal from Order No.39/09. This appeal is pending before the learned Single Bench of this Court. It has been stated across the Bar that there is no interim relief granted by this Court. However, the fact remains that the appeal is pending before the learned Single Bench of this Court and there is no final adjudication amongst the parties i.e. State of Goa and M/s. Jaisu Shipping Co. Pvt. Ltd. xii)On the background of these facts, these two civil applications 10 are filed in this Court. Apart from the litigating parties for their rights i.e. Jaisu Shipping Co. Pvt. Ltd.; State of Goa and Salgaocar Mining, one more important section of the Society is also required to be taken notice of. This section, i.e. the public at large, in fact, is before this Court in Writ Petition No. 46/09, Public Interest petition. 4. It is unfortunate that on account of pendency of legal proceeding referred to in foregoing paras, no effective step could be taken to refloat and tow away the vessel in question. Final adjudication of the legal proceedings may take its own time but in all this indefinite period of time, environment, ecology suffers and ultimately the public at large is at the receiving end. Common person is not aware as to when and within how many years River Princess either would be refloated and/or towed away from their seashore and/or split, cut into pieces and removed away from the shore, where the said vessel is grounded on 6.6.2000. No human being has a control over a natural calamity. Time of over 9 years has elapsed since the grounding of the vessel at the shore of Candolim-Sinquerim. That is one of the reasons we are considering these two civil applications 11 within the framework of the provisions of law and keeping in mind the submissions made on behalf of the litigating parties. 5. Legal rights of Jaisu Shipping Co. Pvt. Ltd.; State of Goa and Salgaocar Mining, would be crystallized finally and while handing down the orders in Writ Petition No.111/03 and Appeal from Order No.39/09. This period of time again is indefinite. But, then, the litigating parties have to wait till that time. Apart from deciding legal rights of the litigating parties, we consider that the public interest litigation i.e. Writ Petition No.46/09 may end after resolution of legal rights of the litigating parties. 6. While opposing Civil Application filed on behalf of the State of Goa i.e. Misc. Civil Application No.612/2009, learned Senior Advocate Mr. Lotlikar submits that around 28.00 crores, in substance Jaisu Shipping Co. Pvt. Ltd., has invested, which claims ownership and/or right to refloat and take away the said vessel. On behalf of the company and while addressing this Court in Civil Application No. 179/2009, Mr. Sonak, learned Advocate highlighted the challenges made in Writ Petition No.111/03. He claims ownership of the said 12 vessel. We make it clear that we have recorded these submissions of learned Senior Advocate Shri Lotlikar and Advocate Shri Sonak since, during the course of their arguments, they advanced submissions before the Court. However, we are making it clear that we are not deciding ownership of the vessel as claimed by Jaisu Shipping Co. Pvt. Ltd., and/or Salgaocar Mining. We are also refraining ourself from making any observations. 7. Jaisu Shipping Co. Pvt. Ltd., and Salgaocar Mining are also at dispute i.e. on the point of cutting the said vessel into pieces and taking it away from the place where it is grounded on 6.6.2000. Learned Advocate Shri Sonak submits that since the beginning, cutting into pieces option was proposed by the applicant. In Civil Application No.179/2009 he claims precedence of undertaking such exercise. Mr. Lotlikar, learned Senior Advocate, during the course of his submissions on this point, submits that re floating and towing away the vessel was the contract awarded to Jaisu Shipping Co. Pvt. Ltd. and in fact has taken some steps and made an expenditure of Rs.28.00 crores. According to Shri Lotlikar, Jaisu Shipping Co. Pvt. Ltd. is entitled, in law, to refloat and tow the vessel. In that case, his submission is that 13 remuneration of the ownership of the vessel is in favour of Jaisu Shipping Co. Pvt. Ltd. Out of two options, first one that refloating and towing away the vessel is running into legal wrangle and proceedings, as we have referred to herein above. Exercise of this option may take its own time. Second option to cut into pieces the said vessel from the place where it is grounded is also in dispute and questioned by Salgaocar Mining. 8. In our view, tendering process may take its own time. According to learned Advocate General, taking into consideration the task to be performed, stakes involved, global tenders are required to invited. Such process of global tendering may require some procedure to be gone into, in accordance with the provisions of law and some time-frame. Legal right of the State Government is objected, virtually by both of them i.e. Jaisu Shipping Co. Pvt. Ltd., as also Salgaocar Mining. To save time and start with tender process, Government needs to be permitted. Such commencement is more imperative, in our opinion, in view of the order passed by the learned District Judge in Arbitration Application No.6/09 (new), Civil Misc. Application No.110/2008(old). The said order is appealed against and an appeal is 14 pending before the learned Single Bench of this Court. We appreciate the difficulty of the State Government. But, then, we are also not inclined to grant a blanket permission in favour of the State Government. However, it is also clear from the prayers itself that the State Government also does not seek permission from this Court for issuing orders for cutting or splitting the vessel in favour of any specific party or in favour of a particular party. While parting with this order, we may record the submission of the learned Advocate Shri Sonak that there is collusion amongst the State Government and Jaisu Shipping Co. Pvt. Ltd.. Since we are not finally allowing the application of the State Government i.e. Misc. Civil Application No.612/2009 and in view of we what we have stated in the foregoing paras, we are not making any observations on this submission of learned Advocate Shri Sonak at this time and while passing order in this civil application. 9. Misc. Civil Application No.179/2009, in the background of these facts and in view of what we have stated in the foregoing paras, cannot be finally disposed of by us, at this stage. Resultantly, the Misc. Civil Application No.179/2009 needs to be kept pending, with leave in 15 favour of the applicant to move this Court at an appropriate stage. 10. In this view of the matter, Civil Application No. 612/2009 is allowed in terms of prayer clause (a). However, we are making it abundantly clear that this order may not be read by any of the litigating parties, permitting the State Government to proceed with tendering process as if the two parties, namely Jaisu Shipping Co. Pvt. Ltd., and/or Salgaocar Mining have no objection. The State Government is permitted to proceed with the commencement of the tender process. However no work order shall be issued by the State without leave of this Court. Misc. Civil Application No. 612/2009 is allowed in the above terms and disposed off. We are also granting leave in favour of the litigating parties i.e. the State of Goa, Jaisu Shipping Co. Pvt. Ltd., and Salgaocar Mining to move this Court, as well as the Petitioner in Writ Petition No. 46/2009 to move this Court for early hearing of these two main writ petitions i.e. Writ Petitions No.111/2003 and 46/2009. 16 This order should also not be read to mean that permission is given to cut, split and take away the pieces of the vessel. Authenticated copy of this order is permitted to the parties on their demand and as per usual procedure. S.B. DESHMUKH, J. U. D. SALVI, J. ssm.