Jsw Steel Ltd. v. the Board of Trustees of the Mumbai Port Trust Mumbai & Ors.
Order
Ahsanuddin Amanullah and Prashant Kumar Mishra, JJ.
Leave granted. Heard learned senior counsel/counsel for the parties.
BACKGROUND:
2. The appellant is aggrieved by the Impugned Order, by which Writ
Petition No.2127/1996 filed by it before the High Court was disposed
of. The High Court noted that the said writ petition principally sought
the following reliefs:
‘(a) That this Hon’ble Court be pleased to issue a Writ
of prohibition or a writ in the nature of prohibition or any
other appropriate writ, order or direction under Article 226
of the Constitution of India, prohibiting the Respondents
from insisting upon the Petitioners to remove the wreck of
SATYAM or take any steps in that behalf and/or to deposit
any amounts as costs of such wreck removal;
(b) For a permanent injunction restraining the Respondents,
their servants and agents from taking any steps against the
Petitioners and preventing the Petitioners from availing of
the services of the Mumbai Port Trust and its waters for the
purpose of safely transitting their barges containing iron ore
being moved from the mother vessel to Dharamtar jetty;’
3. The writ petition has been disposed of by the High Court in the
following terms:
‘(i) We permit the Respondent No.1 Mumbai Port Trust
to withdraw the amount deposited in this Court by the
Petitioner alongwith accrued interest without prejudice to
the rights and contentions of the parties;
(ii) Inasmuch there are disputed facts involved and since
the Petition is now rendered infructuous, it could be open
for the Petitioner to file a suit against the Respondents
for refund/recovery of Rs.70,00,000/- alongwith accrued
interest, if so advised. The remedies of the Respondent
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No.1 Mumbai Port Trust to recover further amounts, if any,
are also kept open;
(iii) The Writ Petition and the Notice of Motion are disposed
of in the aforesaid terms. There shall be no order as to
costs.’
SUBMISSIONS:
4. Learned senior counsel for the appellant submits that the crux of the
issue is as to whether the appellant is liable to pay the charges for
removal of the wreck of a barge (‘Satyam’) belonging to respondent
no.3 (M/s Shivam Engineers) which capsized while ferrying iron ore
from the ship of the appellant to the port concerned. Learned counsel
drew the attention of this Court to the Notice/Communication dated
19.04.1995 issued by the then Deputy Conservator of respondent
no.1, which specifically states that power under Section 14(1) 1 of
the Indian Ports Act, 1908 2 was being exercised and the appellant
(in its then avatar as ‘M/s Nippon Denro Ispat Ltd.’) was called upon
‘to deposit a sum Rs.70 lakhs 3 as adequate security to ensure that
the said wreck has been raised or removed within the stipulated
period’.4 It was submitted that though the appellant had deposited
the amount, the question was as to whether it was liable since
Section 14(1) of the Act places liability on the owner of the vessel
concerned and, admittedly, in the present position, the owner of the
vessel was respondent no.3 and not the appellant. It was further
1 ‘14. Raising or removal of wreck impeding navigation within limits of port.—(1) If any vessel is
wrecked, standard or sunk in any port in such a manner as to impede or likely to impede any navigation
thereof, the conservator shall give notice to the owner of the vessel to raise, remove or destroy the
vessel within such period as may be specified in the notice and to furnish such adequate security to the
satisfaction of the conservator to ensure that the vessel shall be raised, removed or destroyed within the
said period:
Provided that the conservator may extend such period to such further period as he may consider
necessary having regard to the circumstances of such case and the extent of its impediment to
navigation.
xxx’
2 Hereinafter referred to as the ‘Act’.
3 Under Section 14(3) of the Act, which reads as under:
‘(3) The expenses and further sum aforesaid shall be payable to the conservator out of the sale-proceeds
of the property, and the balance shall be paid to the person entitled to the property recovered, or, if no
such person appears and claims the balance, shall be held in deposit for payment, without interest, to
any person thereafter establishing his right thereto:
Provided that the person makes his claim within three years from the date of the sale.’
4 The stipulated period was 30 days.
JSW Steel Ltd. v.
The Board of Trustees of the Mumbai Port Trust Mumbai & Ors.
contended that the High Court disposed of the writ petition on the
erroneous presumption that it has become infructuous and that the
parties (appellant and respondent no.1 inter-se) have the remedy to
recover further amount(s), which was kept open. It was submitted
that once the law is clear as to on whom the liability for the wreckage
or its removal lies, the appellant could not be saddled with the cost
therefor. Lastly, it was urged that the further direction in favour of
respondent no.1 to encash Rs.70 lakhs (alongwith accrued interest),
deposited by the appellant pursuant to earlier order(s) of the High
Court, is totally unjustified in law.
5. Per contra, learned counsel for respondent no.1 submits that the
High Court has merely closed the issue as 20 years had passed. It
was submitted that the wreckage has already been cleared. Learned
counsel also advanced that the right of the appellant has been
safeguarded, inasmuch as, it has the right to move a suit, where
the dues, if any, against the parties concerned can be thrashed out.
DECISION:
6. Having considered the matter, we find merit in the submissions put
forth by the appellant. The way the High Court approached the issue
appears to be erroneous for the simple reason that the lis was very
much alive, as a pure question of law stood raised i.e., on whom the
liability for clearing the wreckage was to be fastened. The Impugned
Order has not dealt with this fundamental issue. When on a purely
legal issue, the appellant raised a legal objection, and also deposited
the amount demanded by respondent no.1 in the High Court, in our
considered view, the High Court was required to answer the question
of law. In this analysis, no exercise was required involving disputed
factual questions. Moreover, the efflux of time is a result of systemic
delay, not due to any laches on the part of the appellant.
7. Our view on the aspects of (a) lapse of time alone not being a ground
to close the matter, and (b) adjudicating a petition under Article 226
when it does not really involve a disputed factual setting, finds support
from the decisions of this Court, extracted below:
B S Hari Commandant v Union of India, (2023) 13 SCC 779:
‘51. Article 226 of the Constitution is a succour to remedy
injustice, and any limit on exercise of such power, is
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only self-imposed. Gainful reference can be made to,
amongst others, A.V. Venkateswaran v. Ramchand Sobhraj
Wadhwani [A.V. Venkateswaran v. Ramchand Sobhraj
Wadhwani, 1961 SCC OnLine SC 16: (1962) 1 SCR 753:
AIR 1961 SC 1506] and U.P. State Sugar Corpn. Ltd. v.
Kamal Swaroop Tandon [U.P. State Sugar Corpn. Ltd. v.
Kamal Swaroop Tandon, (2008) 2 SCC 41: (2008) 1 SCC
(L&S) 352]. The High Courts, under the constitutional
scheme, are endowed with the ability to issue prerogative
writs to safeguard rights of citizens. For exactly this reason,
this Court has never laid down any straitjacket principles
that can be said to have “cribbed, cabined and confined”
[to borrow the term employed by the Hon. Bhagwati, J.
(as he then was) in E.P. Royappa v. State of T.N. [E.P.
Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC
(L&S) 165] ], the extraordinary powers vested under Articles
226 or 227 of the Constitution. Adjudged on the anvil of
Nawab Shaqafath Ali Khan [Nawab Shaqafath Ali Khan v.
Nawab Imdad Jah Bahadur, (2009) 5 SCC 162: (2009) 2
SCC (Civ) 421], this was a fit case for the High Court to
have examined the matter threadbare, more so, when it
did not involve navigating a factual minefield. ’
(emphasis supplied)
Union Territory of Ladakh v Jammu and Kashmir National Conference,
2023 SCC OnLine SC 1140:
‘32. The Court would categorically emphasize that no
litigant should have even an iota of doubt or an impression
(rather, a misimpression) that just because of systemic
delay or the matter not being taken up by the Courts
resulting in efflux of time the cause would be defeated,
and the Court would be rendered helpless to ensure
justice to the party concerned… ’
(emphasis supplied)
8. In the above circumstances, we are unable to sustain the order
impugned. Accordingly, the same is set aside. WP No.2127/1996 is
revived. The matter is remanded to the High Court to consider all
JSW Steel Ltd. v.
The Board of Trustees of the Mumbai Port Trust Mumbai & Ors.
issues on merits as raised in the writ petition. As the monies deposited
by the appellant are stated to have already been withdrawn by
respondent no.1, were the appellant to eventually succeed in the writ
petition, the appellant would be suitably compensated on this score.
9. Having regard to the fact that the writ petition is of the year 1996,
we request the High Court to give priority to the matter and dispose
it of as expeditiously as possible. Our request is to be construed in
line with Tirupati Balaji Developers (P) Ltd. v State of Bihar, (2004)
5 SCC 1. Parties are not precluded from raising any question(s) of
law and fact.
10. The appeal stands allowed in the afore-mentioned terms.
11. I.A. Diary No.40046/2024 (seeking impleadment) stands disposed of
with the observation that it shall be open to the applicant/proposed
respondent to make such prayer before the High Court, which may
consider the same as per law. Remaining I.A.s stand closed forthwith,
in view of the appeal itself being allowed.
Result of the case: Appeal allowed.
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