# HALLIBURTON OFFSHORE SERVICES INC & ANR v. PRINCIPAL OFFICER OF MERCANTILE MARINE DEPARTMENT & ORS

- **Citation:** [2017] 6 S.C.R. 764
- **Court:** Supreme Court of India
- **Decided:** 2017-04-20
- **Case number:** Civil Appeal No. 5428 of2017
- **Bench:** Dipak Misra, R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/halliburton-offshore-services-inc-anr-v-principal-officer-of-mercantile-marine-32031
- **Pages:** 49

## Headnote

Merchant Shipping Act, 1958 - s.40 - Interpretation of -
C Provisional certificate for ships becoming Indian ships abroad -
Requirements to get a Provisional Certificate of Registry (PCOR)
uls.40 and its effect after expiry of six months - Held: Per Dipak
Misra, J.: Requirement for grant of registration dnd provisional
registration is the same S.40 has to be read with the preceding
provisions contained in s.34 onwards till s.41 - The report of
D
surveyor and ownership are extremely significant - Conditions
precedent to get a provisional certificate are that the surveyor has
to see that the ship is completely built and thereafter being satisfied
with regard to tonnage and other aspects, then give requisite
certificate to make it sea going-According to s.40(2) the provisional
E
certificate shall be for six months or until the arrival of the ship at
the port, where there is a registrar, whichever first happens - Once
either of the events happens, the certificate of registration ceases
to have effect - Thus, period of six months time is mandatory - Per
R.Banumathi, J.: Title/ownership is very vital for Registration of
ships - As per r.12 authorised officer on production of satisfactory
F proof of ownership grant the provisional certificate of Indian registry
- Statutory mandates for permanent registry, uls.34 of the Act are
to be satisfied even for obtaining the provisional certificate of
registry uls.40 - Six months' time prescribed u/s.40 and sub-section
(2) of s.40 as a validity period for PCOR, is only to ensure that a
G ship in abroad, becoming Indian ship is able to travel and get itself
permanently registered at the port of registry in India - Six months
time is accepted as reasonable period for bringing the ship to the
port of registry in India and complete other formalities requisite for
final registration - Provisional certificate of registry will cease to
have effect after six months of date of issuance or until the arrival
H of the ship at a port where there is registrar whichever first happens
764
HALLIBURTON OFFSHORE SERVICES INC v. PRINCIPAL
765
OFFICER OF MERCANTILE MARINE DEPT.
- PCOR cannot be renewed nor its validity can be extended beyond A
six months - Merchant Shipping (Registration of Indian Ships) Rules,
1960 - r.12 - Interpretation of Statutes.
Interpreting the provisions of the Act, the Court
Per Dipak Misra, J.
HELD: 1. The issue relating to law inasmuch as it is
B
fundamentally required to be dealt with what are the requirements
to get a PCOR under Section 40 of the Merchant Shipping Act,
1958. On a perusal of statutory provisions, the Rules and the
instructions, it is abundantly clear that requirement for grant of
registration and provisional registration is the same. The c
Surveyor's report and the ownership are extremely significant.
The language employed in various rules and the instructions
clearly lay down that the certificate of survey has to convey that
the ship was built. There is distinction between "being complete"
and "complete" or "was built" and, therefore, unless the ship is
completely built and ready sea-going, the owner cannot apply for D
provisional registration certificate.
[Paras 2, 39) [770-B; 787H; 788-A, BJ
2, Section 40(2) of the said Act has another aspect. It
stipulates the provisional certificate shall be for six months or
until the arrival of the ship at the port, wherever there is a
registrar, whichever first happens. Once either of the events
happens, the certificate of registration ceases to have effect. Thus
understood, the period of six months time is mandatory. The
peremptory facet clearly conveys that the ship has to be
completely built and ready for sailing into the sea. Section 3(41)
defines "sea-going" which means in relation to a vessel, which
proceeds to sea beyond inland water or beyond waters declared
to be smooth or partially smooth waters by the Central
Government by notification in the Official Gazette. [Para 40) [788C-D]
3.1 The legislative intendment, the

## Text

_Characters 0–39,417 of 108,514. This is a partial read: ask again with offset=39417 for what follows._

[2017) 6 S.C.R. 764
A
HALLIBURTON OFFSHORE SERVICES INC & ANR.
B
v.
PRINCIPAL OFFICER OF MERCANTILE MARINE
DEPARTMENT & ORS.
(Civil Appeal No. 5428 of2017)
APRIL 20, 2017
[DIPAK MISRA AND R. BANUMATHI, JJ.J
Merchant Shipping Act, 1958 - s.40 - Interpretation of -
C Provisional certificate for ships becoming Indian ships abroad -
Requirements to get a Provisional Certificate of Registry (PCOR)
uls.40 and its effect after expiry of six months - Held: Per Dipak
Misra, J.: Requirement for grant of registration dnd provisional
registration is the same S.40 has to be read with the preceding
provisions contained in s.34 onwards till s.41 - The report of
D
surveyor and ownership are extremely significant - Conditions
precedent to get a provisional certificate are that the surveyor has
to see that the ship is completely built and thereafter being satisfied
with regard to tonnage and other aspects, then give requisite
certificate to make it sea going-According to s.40(2) the provisional
E
certificate shall be for six months or until the arrival of the ship at
the port, where there is a registrar, whichever first happens - Once
either of the events happens, the certificate of registration ceases
to have effect - Thus, period of six months time is mandatory - Per
R.Banumathi, J.: Title/ownership is very vital for Registration of
ships - As per r.12 authorised officer on production of satisfactory
F proof of ownership grant the provisional certificate of Indian registry
- Statutory mandates for permanent registry, uls.34 of the Act are
to be satisfied even for obtaining the provisional certificate of
registry uls.40 - Six months' time prescribed u/s.40 and sub-section
(2) of s.40 as a validity period for PCOR, is only to ensure that a
G ship in abroad, becoming Indian ship is able to travel and get itself
permanently registered at the port of registry in India - Six months
time is accepted as reasonable period for bringing the ship to the
port of registry in India and complete other formalities requisite for
final registration - Provisional certificate of registry will cease to
have effect after six months of date of issuance or until the arrival
H of the ship at a port where there is registrar whichever first happens
764
HALLIBURTON OFFSHORE SERVICES INC v. PRINCIPAL
765
OFFICER OF MERCANTILE MARINE DEPT.
- PCOR cannot be renewed nor its validity can be extended beyond A
six months - Merchant Shipping (Registration of Indian Ships) Rules,
1960 - r.12 - Interpretation of Statutes.
Interpreting the provisions of the Act, the Court
Per Dipak Misra, J.
HELD: 1. The issue relating to law inasmuch as it is
B
fundamentally required to be dealt with what are the requirements
to get a PCOR under Section 40 of the Merchant Shipping Act,
1958. On a perusal of statutory provisions, the Rules and the
instructions, it is abundantly clear that requirement for grant of
registration and provisional registration is the same. The c
Surveyor's report and the ownership are extremely significant.
The language employed in various rules and the instructions
clearly lay down that the certificate of survey has to convey that
the ship was built. There is distinction between "being complete"
and "complete" or "was built" and, therefore, unless the ship is
completely built and ready sea-going, the owner cannot apply for D
provisional registration certificate.
[Paras 2, 39) [770-B; 787H; 788-A, BJ
2, Section 40(2) of the said Act has another aspect. It
stipulates the provisional certificate shall be for six months or
until the arrival of the ship at the port, wherever there is a
registrar, whichever first happens. Once either of the events
happens, the certificate of registration ceases to have effect. Thus
understood, the period of six months time is mandatory. The
peremptory facet clearly conveys that the ship has to be
completely built and ready for sailing into the sea. Section 3(41)
defines "sea-going" which means in relation to a vessel, which
proceeds to sea beyond inland water or beyond waters declared
to be smooth or partially smooth waters by the Central
Government by notification in the Official Gazette. [Para 40) [788C-D]
3.1 The legislative intendment, the rules framed by the
department and the instructions which have been issued from
time to time clearly support the interpretation that the ship has
E
F
G
to be completely built and ready for sea-going. If it cannot comply
with Section 40 within six months, that is, arriving at the port
where there is a registrar, the validity of PCOR shall cease to
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766
SUPREME COURT REPORTS
[2017) 6 S.C.R.
A exist. The words "shall cease to have effect" mean that it will
have no validity in the eyes of law and, in fact, the document
would be absolutely null and void. Section 40 has a mandate
inherent in it and it has to be viewed from the holistic perspective.
Interpretation of the provision in any other manner would dilute
B
the legislative intendment. [Para 42] [788-G-H; 789-A-B]
3.2 In the case at hand, the provision is plain, clear and
unambiguous. Section 40 does not come all of a sudden. It has a
host of preceding provisions. Therefore, it has to be read with
the preceding provisions contained in Section 34 onwards till
Section 41. The said Chapter is a complete Code. The schematic
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effect is that precautions have to be taken. Tbough surveyors
have been chosen, they have to be extremely careful to see that
the ship is completely built and thereafter being satisfied with
regard to tonnage and other aspects, give the requisite certificate
to make it sea-going. These are the conditions precedent to get
D a provisional certificate. [Para 43] [789-C-E]
E
F
Per R. Banumathi, J. (concurring):
HELD: 1. The Law point is not yet ·clearly laid down,
specifically on the requisites for obtaining a Provisional certificate
of registry (PCOR) prescribed under Section 40 of the M.S. Act,
1958 and its effect after expiry of six months. Title/ownership is
very vital for Registration of Indian Ships. 'Ownership' is central
to the scheme for registration under the M.S. Act. For registration
of a vessel the ownership is the first thing to be determined. In
case of a second hand acquisition of a vessel by the intended
Indian owner for registration in India (gaining Indian Flag), an
'lnstr11ment of sale' of the vessel (as per Section 30 of Act)
executed by the seller in favour of the Indian buyer and
acceptance of the same as per applicable Rules of the losing Flag,
is required. As per Rule 12, the authorised officer on production
of satisfactory proof of ownership grants the provisional certificate
G of Indian registry, which means that the ownership of the ship is
to be satisfactorily established. Therefore, in order to apply for
PCOR, as per the scheme of the Act, there is no concept of
prospective ownership. Equally, for obtaining PCOR, there is no
question of 'partially built' or 'almost built' ship. The statutory
mandates for permanent registry, under Section 34 of the Act are
H
to be satisfied even for obtaining the provisional certificate of
HALLIBURTON OFFSHORE SERVICES INC v. PRINCIPAL.
767
OFFICER OF MERCANTILE MARINE DEPT.
registry under Section 40. The language of Section 40 makes it A
clear that the Provisional certificate of registry issued "shall have
the effect of a certificate of registry until the expiration of six months
from its date ...•.. " Since the PCOR shall have the same effect as
that of certificate of registry issued under Section 34 of the Act,
the essentials that are required for permanent registration (in
case of a new ship) like (i) application for registry; (ii) builder's B
certificate; and (iii) survey and measurement and all other
requirements as stipulated under Sections 23 to 32 are to be
strictly complied with. This could be said so even more firmly, in
the light of important link established between the ship and the
flag state, by virtue of registration. [Paras 3, 43] [790-C; 810-EC
H; 811-A-B]
2. The provisions relating to registration and safety of the
ships goes to the very heart of the statute and failure on part of
the authorities to strictly comply with the same may lead to
disastrous consequences, gravely affecting national interest. SubD
section (2) of Section 40 of the Act lays down one such mandate
which needs to be strictly complied with. If one considers Section
40 and sub-section (2) of Section 40, objectively, six months' time
prescribed as a validity period for PCOR, is only to ensure that a
ship in abroad, becoming Indian ship is able to travel and get
itself permanently registered at the port of registry in India. Six
E
months' time is accepted as a reasonable period for bringing the
ship to the port of registry in India and complete other formalities
of obtaining various compliance certificates requisite for final
registration. This is made explicit by the second part of subsection (2) of Section 40 which provides, " ..... or until the arrival
F
of the ship at a port where there is a registrar whichever first
happens, and on either of those events happening shall cease to
have effect". Section 40 and sub-section (2) of Section 40, the
time of six months is stipulated only to enable the ships in abroad
becoming Indian ships to travel on the high seas with the Indian
registration/Indian flag unto complete statutory certificates G
requisite for final registration are obtained, though in that course,
the vessel may voyage to ports of other countries. [Para 45] [811D-G]
3. As per sub-section (2) of Section 40, the provisional
certificate issued under Section 40 shall have the effect of a final
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[2017) 6 S.C.R.
A certificate of registry and it shall cease to have effect on expiration
of six months from its date or on the arrival of the ship at the
port. The clause says nothing more; there is no provision for
renewal or extension of the provisional certificate contained either
in Section 40 itself or in any other provision of the Act. The
B
necessary corollary is that the legislature intended to limit the
validity of the provisional certificate of registration, obtained
under Section 40 to six months or till the time the ship arrives at
the port. It seems more logical in the light of purpose of issuing
a provisional certificate of registration, which is to enable an Indian
national to bring the ship built abroad to the Indian port for
C
completion of other requisites of obtaining statutory certificates
for final registration. [Para 46] [811-H; 812-A-C]
4. The intention of the legislature is clear and unambiguous
in limiting the validity of provisional certificate of registration
and not providing any provision for renewal of the certificate.
D The only remedy which can probably be resorted to in case of
expiration of provisional certificate is applying for a fresh
provisional certificate of registry which may be considered by
the authorities independently on its own merits. If the phnlse,
"shall cease to have effect" in sub-section (2) of Section 40 is not
E
F
interpreted in its letter and spirit and if the provisional certificate
is renewed again and again, the provisional certificate of
registration will continue to have the effect of final certificate of
registration for an indefinite period. This will frustrate the very
purpose of granting a PCOR. Thus, the Provisional certificate of
registry cannot be renewed nor its validity can be extended beyond
six months. [Para 47] (812-C-E)
In the Judgment of Dipak Misra, J.
Sanjeev Coke Manufacturing Company v. Afls Bharat
·Coking Coal Limited and another (1983) 1 SCC 147 :
(1983] 1 SCR 1000; Yogendra Kumar Jaiswal and
G
others v. State of Bihar and others (2016) 3 SCC 183;
Ponds India Ltd. v. Collector of Central Excise, Madras
(1997) 2 SCC 577 : (1997] 1 SCR 541 - referred to.
[1983] 1 SCR 1000
H
(2016) 3 sec 183
Case Law Reference
referred to
referred to
Para 25 ·
Para 25
HALLIBURTON OFFSHORE SERVICES INC v. PRINCIPAL
769
OFFICER OF MERCANTILE MARINE DEPT.
[1997] 1 SCR 541
referred to
Para 42
In the Judgment of R. Banumathi, J.
Maritime Flag and International Law, 1978 Edition by
Mr. Nagendra Singh, issued under the auspices of the
Maritime Law Association of India and the Indian
Society of International Law and published by
Thomson Press (India) Limited; The Geneva
Convention on the High Seas(1958); United Nations
Convention on the Law of the Seas (UNCLOS) -
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5428
of2017.
From the Judgment and Order dated 25 .07.2016 of the High Court
of Judicature at Bombay in Writ Petition No. 1668 of 2016.
A
B
c
Kapil Sibal, Sr. Adv., Dinesh Chandra Pandey, Dhritiman
Bhattacharyya, Nizam Pasha, Piyush Sharma, Ms. Deeti Ojha, Raghav
D
Tankha, Tushar Sharma, Advs. for the Appellants.
Mukul Rohatgi, AG., Ajit Kumar Sinha, C. A. Sundaram, Ajay
Kumar Jha, Dr. Abhishek Manu Singhvi, Shyam Divan, Sr. Advs., Ajay
Sharma, Ajay Kumar Singh, Ms. Meenakshi Grover, Gurmeet Singh
Makker, D. S. Mahra, Piyush Sharma, K. R. Sasiprabhu, Krishnayan
Sen, Ankit Jain, Prashant Asher, Gaurav Nair, Naishad Bhatia, Brenda.n
E
Pereira, Varun Singh, Mahesh Aggarwal, Ad vs. for the Respondents.
The Judgments of the Court were delivered by
DIPAK MISRA, J. I. Leave granted.
2. The assail in the present appeal, by special leave, is to the
judgment and order dated 25.07.2016 passed by the High Court of F
Judicature at Bombay in Writ Petition No. 1668of2016 whereby it has
quashed the order dated 13.04.2016 passed by the Principal Officer,
Mercantile Marine Department, the first respondent herein, revoking
the Provisional Certificate of Registration (PCOR) dated 16.10.2015
issued in respect of"Vessel Sita Devi" on the basis of materials coming
G
to its notice. It is necessary to state here that the 4th respondent, Oil
and Natural Gas Corporation Limited (ONGC) had issued a tender inviting
competitive bids for the charter hire of a stimulation vessel for Mumbai
Offshore for three years on the terms and conditions set out in the tender.
One of the terms and conditions basically related to get a PCOR. For
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[2017] 6 S.C.R.
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the present, I am not concerned with the tender conditions and compliance
thereof, for this Court though heard the learned counsel appearing for
the parties on facts as well as on law, but at the subsequent stage, it was
thought apposite that the Court should answer the issue relating to law
inasmuch as it is fundamentally required to be dealt with what are the
B
c
requirements to get a PCOR under Section 40 of the Merchant Shipping
Act, 1958 (for brevity, "the Act"). Therefore, I shall advert to the law in
that regard and answer the same and, thereafter the controversy shall
be dealt with on the basis of the judgment presently rendered and other
facts, ifrequired.
3. For the determination of the issue, I have heard Shri Kapil
Sibal, learned senior counsel for the appellants, Shri Mukul Rohatgi,
learned Attorney General for India and ShriAjit Kumar Sinha, learned
senior counsel for the Union of India, Shri C.A. Sundaram, learned senior
counsel for the respondent No. 5 and Dr. Abhishek Manu Singh vi, learned
senior counsel for respondent No. 7. It is worthy to mention that Shri
D
Mukul Rohatgi has also addressed the Court on behalf of ONGC.
4. To appreciate the controversy in proper perspective, it is
necessitous to appreciate and interpret certain provisions of the Act
commencing from Section 2 to Section 41. I shall also refer to other
provisions of the Act as my attention has been drawn to some of them
E
for scrutinizing the marrows of Section 40 of the Act and not merely to
dissect it. I also make it clear that the provisions which are required to
be focussed from Section 2 to Section 41 shall only be delved upon.
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G
H
5. Prior to referring to the provisions, I think it pertinent to refer to
statement of objects and reasons. It reads as follows:-
"An Act to foster the development and ensure the efficient
maintenance of an Indian Mercantile marine in a manner best
suited to serve the national interests and for that purpose to
established a National Shipping Board to provide for the
registration, certification, safety and security of Indian ships and
generally to amend and consolidate the law relating to merchant
shipping."
6. Section 2 deals with application of the Act. It is as follows:-
"Section 2. Application of Act.-(!) Unless otherwise expressly
provided, the provisions of this Act which apply to-
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER
771
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]
(a) any vessel which is registered in India; or
A
(b) any vessel which is required by this Act to be so registered; or
. ( c) any other vessel which is owned wholly by persons to each of
whom apy of the descriptions specified in clause (a} or in clause
. (b) or in clause (c ), as the case may be, of section 2.1 applies,
· shall so ajJply wherever tqe vessel may be. ·
B
(2) Unless otherwise expressly provided, the provisions of this
Act which apply to vessels other than those referred to in subsection ( 1) shall so apply only while any such vessel is within
India, including the territorial waters thereof."
7. Section 3 is the dictionary provision. Sub-section (23) defines
"owner" as follows:-
"(23) "owner" means-
(a) in relation to a ship, the person to whom the ship or a share in
c
~~~~p;
D
(b) in relation to a sailing vessel, the person to whom the sailing
vessel belongs;"
8. Sub-section (35) defines "registrar" means the registrar referred
to in Section 24. Sub-section (39) defines ''sailing vessels" as under:-
"(39) "sailing vessel'', means any description of vessel provided
with sufficient sail area for navigation under sails alone, whether
or not fitted with mechanical means of propulsion, and includes.a
rowing boat or canoe but does not i)1clude a pleasure craft;"
9. Sub-section (41) defines "sea-going" in relation to a vessel. It
reads as follows:-
"(41) "sea-going", in relation to a vessel, means a vessel proceeding
to sea beyond inland waters or beyond waters declared to be
smooth or partially smooth waters by the Central Government by
notification in the Official Gazette;" ·
10. Sub-section ( 45) defines "ship" does not include a sailing vessel.
Sub-section (55) defines "vessel" in the following terms:-
"(55) "vessel" includes any ship, boat, sailing vessel, or other
description of vessel used in navigation;"
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11. I have referred to the aforesaid definitions as the learned
counsel for the parties have differently placed interpretation on the words
used in the statute. Part II deals with National Shipping Board and Part
III deals with General Administration. For the present, I am concerned
with Section 9 that occurs in Part III. Section 9 is extracted below:-
B
"Section 9. Surveyors. (I) The Central Government may, by
notification in the Official Gazette, appoint at such ports as it may
consider necessary as many persons as it may think fit to be
surveyors for the purposes of this Act.
IA. Without prejudice to the provisions of sub-section (1), the
c
Central Government, in the case of cargo ships, may, by
notification in the Official Gazette authorise any person or body
of persons, on such terms and conditions as may be specified
therein, to be surveyor or surveyors for the purposes of this Act.
(2) The surveyors may be nautical surveyors, ship surveyors or
D
engineer and ship surveyors.
(3) At any port at which no surveyor appointed under this section
is available, the Central Government may, by notification in the
Official Gazette, appoint any qualified person to perform the
functions of a surveyor under this Act.
E
(4) All acts done under this Act by a principal officer of the
Mercantile Marine Department or a person appointed under subsection (3) relating to matters within the competence of a surveyor
shall have the same effect as if done by a surveyor for the purposes
of this Act."
F
12. Part V deals with Registration of Indian Ships. Section 20
provides that Part V applies only to sea-going ships fitted with mechanical
means of propulsion. Section 21 provides for the purposes of the Act, a
ship shall not be deemed to be an Indian ship unless owned wholly by
persons to each of whom the descriptions mentioned therein applies.
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Section 22 provides obligation for registration to the Indian ships. The
said provision, being significant, is reproduced below:-
"Section 22. Obligation to register.-
(!) Every Indian ship, unless it is a ship which does not exceed
fifteen tons net and is employed solely in navigation on the coasts
H
of India, shall be registered under this Act.
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER
773
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]
(2) No ship required by sub-section (1) to be registered shall be
A
recognised as an Indian ship unless she has been registered under
this Act:
Provided that any ship registered at the commencement of
this Act at any port in India under any enactment repealed by this
Act, shall be deemed to have been registered under this Act and
B
shall be recognised as an Indian ship.
(3) A ship required by this Act to be registered may be detained
until the master of the ship, if so required, produces a certificate
of registry in respect of the ship.
Explanation.-For the purposes of this section, "ship" does not
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include a fishing vessel".
13. Section 23 to Section 33 come under the heading Procedure
for Registration. Section 23(1) provides for that the ports of Bombay,
Calcutta and Madras and such other ports in India as the Central
Government may, by notification in the Official Gazette, declare to be
D
ports of registry under this Act shall be such ports where registration
can be made. Sub-section (2) stipulates that the port at which the Indian
ship is registered for the time being under the Act shall be deemed to be
a port of registry and port to which she belongs. Section 24 deals with
Registrars of Indian Ships. Section 25 states about the Register book.
E
The said provision reads as follows:-
"Section 25. Register book-Every registrar shall keep a book
to be called the register book and entries in that book shall be
made in accordance with the following provisions:-=-
(a) the property in a ship shall be divided into ten shares;
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(b) subject to the provisions of this Act with respect to joint owners
or owners by transmission, not more than ten individuals shall be
entitled to be registered at the same time as owners of any one
ship; but this rule shall not affect the beneficial interest of any
number of persons represented by or claiming under or through
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any registered owner or joint owner;
( c) a person shall not be entitled to be registered as owner of a
fractional part of a share in a ship; but any number of persons not
exceeding five may be registered as joint owners of a ship or of
any share or shares therein;
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[2017] 6 S.C.R:
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(d) joint owners shall be considered as constituting one person
and shall not be entitled to dispose in severalty of any interest in a
ship or any share therein in respect of which they are registered;
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(e) a company or a co-operative society may be registered as
owner by its name."
On a perusal of the aforesaid provision, it is quite clear the property
in a ship has to be divided into ten shares and also deals with who can
own a ship.
14. Section 26 provides for an application to be submitted for the
registry oflndian ship. Section 27( l) stipulates that the owner of every
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Indian ship in respect of which an application for registry is made shall
cause such ship to be surveyed by a surveyor and the tonnage of the
ship ascertained in the prescribed manner. Sub-section (2) of the said
provision mandates that the surveyor shall grant certificate specifying
the ship's tonnage and build and such other particulars descriptive of the
D
identity of the ship to be prescribed and the certificate of the surveyor
shall be delivered to the registrar before such registry.
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15. Section 28 deals with Marking of ship. I think it appropriate to
reproduce the said provision:-
"Section 28. Marking of ship.-(1) The owner of an Indian
ship who applies for registry under this Act shall, before registry,
cause her to be marked permanently and conspicuously in the
prescribed manner and to the satisfaction of the registrar and any
ship not so marked may be detained by the registrar.
(2) Subject to any other provision contained in this Act and to the
provisions of any rules made thereunder, the owner and the master
of an Indian ship shall take all reasonable steps to ensure that the
ship remains marked as required by this section, and the said owner
or master shall not cause or permit any alterations of such marks
to be made except in the event of any of the particulars thereby
denoted being altered in the manner provided in this Act or except
to evade capture by the enemy or by a foreign ship of war in the
exercise of some belligerent right."
The aforesaid provision lays stress on the marking of ship that
brings identity to the ship.
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER
775
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]
16. Section 29 deals with declaration of ownership on registry. It
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lays down that a person shall not be registered as the owner of an Indian
ship or of a share therein until he or, in the case of a company, or a cooperative society the person authorized by the Act to make declarations
on its behalf has made and signed a declaration of ownership in the
prescribed form referring to the ship as described in the certificate of B
the surveyor. The said provision requires that -the declarations should
contain certain particulars. Sub-sections 29(a) to (e) deal with such
particulars. They read as follows:-
"( a) a statement whether he is or is not a citizen of India; or in the
case of a company, or a co-operative society, whether the company c
or a co-operative society, satisfies the requirements specified in
clause (b) or, as the case may be, clause ( c) of section 21;
(b) a statement of the time when and the place where the ship
was built or ifthe ship is built outside India and the time and place
of building is not known, a statement to that effect; and in addition,
in the case of a ship previously registered outside India, a statement
D
of the name by which she was so registered;
( c) the name of her master;
( d) the number of shares in the ship in respect of which he or the
company, or the co-operative society], as the case may be, claims
E
to be registered as owner; and
( e) a declaration that the particulars stated arc true to the best of
his knowledge and belief."
·
The aforesaid provision commands that a statement with regard
to time and place where the ship was built has to be made. It is
F
imperative.
17. Section 30 provides for evidence on first registry. It requires
that on the first registry, of an Indian ship certain evidence have to be
produced in addition to the declaration of ownership. Sub-section (b) of
tiie said Section requires that in the case of a ship built outside India, the
G
same evidence as in the case of a ship built in India unless the declarant
who makes the declaration of ownership declares that the time and place
of her building are not known to him or that the builder's certificate
cannot be produced and in that event, it shall be required only the
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instrument of sale under which the ship or a share therein has become
vested in the applicant for registry.
B
c
D
18. Section 31 deals with the entry of particulars in register book.
It is necessary to extract the said Section:-
"Section 31. Entry of particulars in register book. -As soon
as the requirements of this Act preliminary to registry have been
complied with, the registrar shall enter in the register book the
following particulars in respect of the ship:-
(a) the name of the ship and the name of the port to which she
belongs;
(aa) the ship identification number;
(b) the details contained in the surveyor's certificate;
( c) the particulars respecting her origin stated in the declaration
of ownership; and
(d) the name and description of her registered owner or owners,
and, if there are more owners than one, the number of shares
owned by each of them."
19. The said provision, as is demonstrable, requires the particulars
contained in the surveyor's certificate, the ship identification number
E
and the name of the ship and name of the port to which it belongs, etc.
F
Section 32 enumerates that the documents, namely, the surveyor's
certificate, the builder's certificate, any instrument of sale by which the
ship was previously sold and all.declarations of ownership to be retained
by the registrar in his custody on the registry of a ship.
20. Section 34 to Section 41 come under the heading "Certificate
of registry". The grant of certificate of registry is controlled by Section
34. It stipulates that on completion of the registry of an Indian ship, the
registrar shall grant a certificate of registry containing the particulars
respecting her as entered in the register book with the name of her
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master. Section 35 provides for custody and use of certificate. Section
36 deals with power to grant new certificate when original certificate is
defaced, lost, etc. Section 37 makes provision for endorsement on
certificate of change of master. Section 38 similarly deals with
endorsement on certificate of change of ownership.
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER
777
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]
21. Section 40, which is the provision that calls for interpretation,
A
is extracted below:-
"Section 40. Provisional certificate for ships becoming Indian
ships abroad.-( 1) If at any port outside India a ship becomes
entitled to be registered as an Indian ship, the Indian consular
officer there may grant to her master on his application a provisional
B
certificate containing such particulars as may be prescribed in
relation to the ship and shall forward a copy of the certificate at
the first convenient opportunity to the Director General.
(2) Such a provisional certificate shall have the effect of a
certificate of registry until the expiration of six months from its c
date or until the arrival of the ship at a port where there is a
registrar whichever first happens, and on either of those events
happening shall cease to have effect."
22. The question that arises for consideration in the interpretative
process of the aforesaid provision basically pertains to requirements for
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grant of provisional certificate for ships becoming Indian ships abroad.
On a careful scrutiny of the said provision, it is discernible that any port
outside can be a port to grant the provisjonal registration certificate. In
this context, Section 23 becomes relevaht, for apart from domestic ports,
the Central Government has been conferred the power by Parliament to
issue notification in the official gazette to declare the ports of registry
under this Act. Sub-section (1) of Section 40 provides that if at any port
that has been notified to register an Indian ship then the Indian Consular
Officer is empowered to grant to the master of the ship, who is entitled
to be registered as an Indian ship on an application being made, a
provisional certificate containing such particulars as may be prescribed
in relation to the ship and forward the copy of the certificate at the first
convenient opportunity to the Director General. The key words of this
provision are "entitled to be registered".
E
F
23. Sub-section (2) of Section 40 provides that a provisional
certificate shall have the effect of a certificate of registry until the
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expiration of six months from its date or until the arrival of the ship at a
port where there is a registrar whichever first happens, and on either of
those events happening shall cease to have effect. Thus a provisional
certificate has a maximum life span of six months. The submission on
behalf of the appellants is that a ship has to be a completely built ship
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and it has to be fully compliant with the necessary documents as provided
in the rules and the circulars. The Union of India had taken a different
stand before the High Court. The affidavit filed by the Union of India
before the High Court is quite different.
24. The stand taken by the department before the High Court
B
need not detain me as my obligation is to interpret the provision regard
being had to the language employed by the legislature. Mr. Mukul Rohtagi,
learned Attorney General appearing for the Union of India as well as for
ONGC would contend that Section 40 has to be understood in the context.
Similar submissions have been advanced by Mr. Ajit Kumar Sinha, learned
c senior counsel appearing for the Union of India. The argument by them
is that sub-section (2) has to be interpreted with a purpose. It is urged
by them that a provisional certificate is granted to the master on certain
particulars being furnished and the said certificate remains in force for
six months so that it is to be ready and travel to the identified port or a
port in India. The submission of Mr. Rohatgi and Mr. Sinha is that from
D
the language employed, it cannot be construed that it refers to a ship
which is built completely or ready for delivery.
25. At this junction, I think it appropriate to state that when a
legislation is made by Parliament, it is the duty of the courts to interpret
it and this Court is the final interpreter. It is because no one is a
E
spokesman for the Parliament. In this regard, a passage from Sanjeev
Coke Manufacturing Company v. Mis Bharat Coking Coal Limited
and another1 would be quite instructive:-
"25 .... Once a statute leaves Parliament House, the Court is the
only authentic voice which may echo (interpret) the Parliament.
p
This the court will do with reference to the language of the statute
and other permissible aids .... "
Similar view has been expressed in Yogendra Kumar Jaiswa/
and others v. State of Bihar and others2.
26. At this juncture, I may refer to the relevant rules of the
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Merchant Shipping (Registration oflndian Ships) Rules, 1960 (for short,
'the Rules'). Rule 11 provides that on completion of the preliminaries to
registry, the registrar shall enter the particulars of the ship in the register
book and issue to the owners a certificate of registry.
1 (1983) 1 sec 147
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2 (2016) 3 sec 183
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER
779
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]
27. Rule 12 which provides to acquisition of ship abroad. It is as
A
follows:-
"( 1) If any ship is built or acquired out oflndia and becomes the
property of persons qualified to own an Indian ship, the owner cir
master of the ship shall apply to the Indian Consular Officer at
the nearest port for the issue of a.provisional certificate of Indian
B
registry and such officer may, on.production of satisfactory proof
of ownership, grant the same to the owner or master."
28. Rule 38 provides for Forms. The said Rule, being relevant, is
extracted below:-
"Forms-Every application, certificate, advertisement, declaration,
C
return report or any other documents referred to in these rules
shall, if a form therefore has been prescribed in Schedule I to
these rules, be in the appropriate form."
29. The Schedule I to Rule 38 gave description of Forms and
registry Form number. Registry Form No. 14 deals with provisional
certificate of Indian Registry. Registry Form No. 17 deals with certificate
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of survey. Registry Form No. 14 reads as follows:-
"Provisional Certificate oflndian Registry
(Merchant Shipping Act, 19 58, Sections 40( 1))
Expiry on or before the ...... day of .... 19 ... .
Issued by the Government of India
Name of Ship (a)
Where and when Built
Steam or Motor
how propelled
Ship,
Number of Decks ...... Framework and description of ship
Number of Masts .......... Number of bulkheads
Rigged .................. .
Steam ............... .
Stem ............ Number of water ballast tanks and Their capacity
in tons.
Build ....
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Measurements
Feet
Tenths
Metres
Length from the
fore part of stem
to the aft side
Of the head of
B
the stern post
''
Main breadth to
outside
of
plating
c
Depth
m hold
from
tonnage
deck to celling
amidships
Length of engine
D
room
Number of engines ................... .
Combined Horse Power ................... .
Name and address of engine maker ............... .
E
Particulars of Tonnage
Gross Tonnage
No. of Cubic
Deductions
No.
of
tons
meters
allowed
tons
Under
tonnage
On account of
deck
space
or
space required
spaces
between
for
propelling
decks
power
F
Turret or trunk
On account of
spaces
provided
by
way
of crew
accommodatio
n as follows:
Forecastle
G
Bridee soace
Poop or break
(Number
of
seamen
or
apprentices for
whom
ace om modatio
ns
certified
H
...... )
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER
781
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]
Side houses
Deck houses
Chart houses
Spaces
for
machinery
and
light and air
Excess
of
Other deductions:
hatchways
Gross
tonnage
Total
Deductions, as per
contra
Register
tonnage
Note 1: The tonnage of the engine room spaces below the upper
deck is ... Tons and the tonnage of the total spaces framed in
above the upper deck for propelling machinery and for light and
air is .... tons.
A
B
c
D
Note 2 : The undermentioned spaces above the upper deck are
not included in the cubical contents forming the ship's register
tonnageNote 3: The location and tonnage of the boatswains store rooms
are as follows ...................... ..
1. That the ship, the description of which is prefixed to this my
Provisional Certificate, has been duly surveyed, and that the above
description is true (b)
2. That. ........ of ......... is Master of the said Ship.
3. That the person or persons whose names are hereunder written
purchased at ...... on the ........ day of ..... 19 ...
Or
3. That the Ship was built at ............ On account of the persons
or persons whose names are hereunder written.
Name, Residence and
Occupation of the owner
Number of Tenth Shares
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A Dated at ....... the ........ day of. ...... one thousand nine hundred and
B
c
D
E
F
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......... Indian Consul."
[emphasis supplied]
30. Registry Form No. 17 deals with surveyor certificates requires
the surveyor to address the following aspects:-
Name of Ship
Port
of intended Name and Official
Registry
Number if there has
been
any
former
registry
Whether Indian or Whether a Where
When
Name
Foreign Built
Steam
or built
Built
and
Motor
address
Ship; how
of
propelled
Builders
Number of Decks
Length from fore part Meters
of stem, to the aft side
of the head of the stem
post/fore side of ruder
stock
Number of Masts
Main breadth to outside
of plating
Rigged
Depth m hold from
tonnage deck to ceiling
amidships
Stem
Depth in hold from
upper deck to ceiling
amidships, in the case
of two
decks
and
upwards
Stem
Depth
from top of
upper deck at
side
amidships to bottom of
keel
.
Build
Round
beam
on
upper/deck
Framework
and Length of engine-room
description of ship
(if anv)
Number
of
Bulkheads
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER
783
OF MERCANTILE MARINE DEPT.