JUDGMENT : (Bhargav D. Karia, J.) 1. Heard learned advocate Mr.Premal S. Rachh for the petitioner, learned advocate Mr.Hirak Shah for learned advocate Mr.Nikunt K. Raval for the respondent No.1 and learned advocate Mr.G.H.Virk for the respondent Nos.4 and 5. 2. Rule, returnable forthwith. Learned advocate Mr.Hirak Shah and learned advocate Mr.G.H.Virk waive service of notice of rule for and on behalf of the respective respondents. 3. Having regard to the controversy in narrow compass, with the consent of the learned advocates for the parties, the petition is taken up for hearing. 4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : “(A) YOUR LORDSHIPS be pleased to issue writ of Mandamus or any other appropriate writ, order or direction to quash and set aside the impugned communication dated __.03.2020 (Annexed at Annexure ‘A’) issued by respondent no.1 as being illegal, arbitrary, unjust, unreasonable, violative of Art.14 and 19 of the Constitution of India; (B) YOUR LORDSHIPS be pleased to direct respondent no.4 and 5 to issue No Due Certificate (NDC) in relation to subject vessel MSV Safina Al-Miraz to the Petitioner and permit the Petitioner to shfit the Vessel from Salaya Port to Okha Port forthwith; IN ALTERNATIVE YOUR LORDSHIPS be pleased to direct respondent no. 1 and 2 to refund the amount paid by the Petitioner towards e-auction of MSV Safina Al-Miraz alongwith amount incurred by the Petitioner towards repairing of the Vessel, with interest at the rate that may be deem fit by this Hon’ble Court in the interest of justice and equity. (C) YOUR LORDSHIPS be pleased to award the cost to be paid to the Petitioner from the respondent authorities, in the interest of justice and equity; (D) YOUR LORDSHIPS be pleased to grant any other and further relief deemed just and proper in the interest of justice.” 5.1. The brief facts of the case are that the petitioner who is engaged in marine parts supplies, dealing in purchase of vessel etc. The brief facts of the case are that the petitioner who is engaged in marine parts supplies, dealing in purchase of vessel etc. registered under the Goods and Service Tax Act at Okha Port applied for auction held by the respondent No.3 for sale of the vessel confiscated under Section 115 of the Customs Act, 1962 (for short ‘the Act’) pursuant to the E-auction notice dated 23rd February, 2018 for sale of the vessel bearing registration- MSV Safina Al-Miraz (BDI 1331)(herein after referred to as the ‘vessel’). 5.2. The petitioner was declared as a successful buyer and delivery order dated 05.03.2018 was issued by the respondent No.2- MSTC limited who held the auction on behalf of the respondent Nos.1 and 3. 5.3. The petitioner made full payment along with the GST and purchase invoice as well as the receipt dated 10.03.2018 for payment were also produced by the petitioner before the respondent No.1-Commissioner of Customs and accordingly, by communication dated 06.04.2018, the respondent No.1 directed the respondent No.5-Port Officer to release the vessel after submission of various required documents. Accordingly, the respondent No.3- Superintendent of Customs by communication dated 12.04.2018 asked the petitioner to provide the documents with regard to GST registration, challan, GST invoice etc. The petitioner in compliance of the such communication submitted the documents as required by the respondent No.3. 5.4. It is the case of the petitioner that though the petitioner has purchased the vessel in auction which was confiscated by the respondent No.1, the petitioner also issued a public notice dated 11.05.2018 published in local daily news paper dated 15.05.2018 inviting objections from the interesting persons, if any, with regard to ownership, occupation and possession of the subject vessel. However, no objections were received by the petitioner. The petitioner thereafter approached the respondent No.4-Gujarat Maritime Board (for short ‘the GMB’) for shifting the vessel from Salaya Port to Okha Port, however, the respondent No.4 declined to issue the No Due Certificate for shifting the vessel informing the petitioner that the subject vessel is mortgaged with the GMB in view of the loan advanced to the original owner of the vessel. 5.5. 5.5. It is the case of the petitioner that on inquiry made by the petitioner, a copy of the mortgaged agreement executed in respect of the subject vessel was provided to the petitioner and by communication dated 08.05.2017, the GMB also intimated to the respondent No.1 authority about such mortgaged. 5.6. The petitioner thereafter made an application dated 03.09.2019 before the respondent No.1 with regard to denial by the GMB to issue the ‘No Due Certificate’. The respondent No.1 by letter issued in March, 2020 informed the petitioner that there is no obligation on part of the respondent- Commissioner of Customs as the vessel was transferred to the petitioner. Being aggrieved, the petitioner has approached this Court with the aforesaid prayers. 6. Learned advocate Mr.Premal Rachh for the petitioner submitted that the petitioner is a bona-fide purchaser of the vessel and in absence of any outstanding dues quantified by the respondent-GMB as well as in view of the provisions of Section 126 of the Act, when the vessel is confiscated by the Customs Authority under Section 115 of the Act, the same would vest in the Central Government free from encumbrance if the respondent No.4-GMB was not justified in denying the ‘No Due Certificate’ to the petitioner for shifting the vessel from Salaya Port to Okha Port. 7. On the other hand, learned advocate Mr.Hirak Shah for the respondent No.1 referred to and relied upon the averments made in the affidavit-in-reply wherein it is stated that as per the provisions of Section 126 of the Act once any goods are confiscated by the Customs, ownership of the goods vests in Central Government and in accordance with the rules and regulations of the Act, the subject vessel was e-auctioned via MSTC. It was therefore submitted that the once the vessel is transferred to the petitioner, the respondent Nos.2 and 3 have no role to play for the purpose of issuing ‘No Due Certificate’ as the same is required to be issued by the GMB authority for shifting the vessel from Salaya Port to Okha Port. 8. Learned advocate Mr.G.H.Virk for the respondent No.4-GMB submitted that the GMB has already informed the Assistant Commissioner of Customs by letter dated 8th May, 2017 with regard to the mortgage on the subject vessel for the loan availed by the original purchaser from the GMB and along with the instrument of mortgage. 8. Learned advocate Mr.G.H.Virk for the respondent No.4-GMB submitted that the GMB has already informed the Assistant Commissioner of Customs by letter dated 8th May, 2017 with regard to the mortgage on the subject vessel for the loan availed by the original purchaser from the GMB and along with the instrument of mortgage. It was submitted that as per Section 4 of the Admiralty Act, such mortgage on the vessel would be a maritime claim and therefore in view of the decision of the Hon’ble Apex Court in case of O.Konavalov Versus Commander, Coast Guard Region and others reported in (2006) 4 SCC 620 , such maritime claim would be liable to be recovered irrespective of the confiscation made by the custom authority and such maritime claim would be liable to be paid to the GMB. Reliance was placed to the observations made in paragraph Nos.28 and 50 of the said decision to submit that the principle of vesting cannot be expanded to the point of extinction of the maritime lien. It was therefore submitted that the GMB was justified in declining to issue ‘No Due Certificate’ in view of the such position of law. In the alternative, it was submitted that the right of GMB to recover the dues from the original owner may be protected. 9. Considering the above submissions, it would be germane to refer to the provisions of Sections 115 and 126 of the Act which read as under : “115. In the alternative, it was submitted that the right of GMB to recover the dues from the original owner may be protected. 9. Considering the above submissions, it would be germane to refer to the provisions of Sections 115 and 126 of the Act which read as under : “115. Confiscation of conveyances: (1)The following conveyances shall be liable to confiscation:- (a) any vessel which is or has been within the Indian customs waters, any aircraft which is or has been in India, or any vehicle which is or has been in a customs area, while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods; (b) any conveyance from which the whole or any part of the goods is thrown overboard, staved or destroyed so as to prevent seizure by an officer of customs; (c) any conveyance which having been required to stop or land under section 106 fails to do so, except for good and sufficient cause; (d) any conveyance from which any warehoused goods cleared for exportation, or any other goods cleared for exportation under a claim for drawback, are unloaded, without the permission of the proper officer; (e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods. (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal : Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market-price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. 126. On confiscation, property to vest in Central Government : (1) When any goods are confiscated under this Act, such goods shall thereupon vest in the Central Government. 126. On confiscation, property to vest in Central Government : (1) When any goods are confiscated under this Act, such goods shall thereupon vest in the Central Government. (2) The officer adjudging confiscation shall take and hold possession of the confiscated goods.” 10. It is not in dispute that the subject vessel was confiscated by the respondent Nos.1 and 3 as per the provisions of the Customs Act and therefore in accordance with the provisions of Section 126 of the Act, the subject vessel would vest in the Central Government. Once such subject vessel vests in the Central Government, the mortgage of the respondent No.4-GMB would come to an end and therefore the respondent No.4-GMB is required to issue the ‘No Due Certificate’ qua the subject vessel which was auctioned to the petitioner by the Customs Authority in accordance with law. 11. With regard to the reliance placed by the learned advocate for the respondent No.4-GMB in the decision of the Supreme Court in case of O.Konavalov (Supra) is concerned, the said decision is rendered under the Maritime Laws under the provisions of the Merchant Shipping Act, 1958 in relation to the pre-existing right of the crewmen vis-a-vis Section 115 read with Section 126 of the Customs Act. The Hon’ble Apex Court in the facts of the said case applied the principles enshrined in Article 21 to a foreigner for holding that confiscation by the Government of Vessel cannot extinguish the pre-existing rights of the crewmen as India has become signatory to various international conventions honouring the social, political, civil and economic rights of human beings. It was further held that India has travelled very far from 1950 and the Courts have given way to dynamic constructive approach in the aspect of social justice while referring to international conventions, etc. Therefore, reliance placed on the said decision would not be applicable in the facts of the case as there is no quantification from the amount recoverable by the respondent No.4-GMB from the owner of the vessel which was confiscated by the customs under the provisions of the Custom Act. Therefore, reliance placed on the said decision would not be applicable in the facts of the case as there is no quantification from the amount recoverable by the respondent No.4-GMB from the owner of the vessel which was confiscated by the customs under the provisions of the Custom Act. Moreover, the reliance placed on the provisions of the Admiralty (Jurisdiction and Settlement Maritime Claims) Act, 2017 to submit that maritime claim means mortgage or charge of the same nature on a vessel with regard to exercise of jurisdiction by the High Court under said Act to hear and determine such question on maritime claim against the vessel. Therefore, the judgment rendered by the Apex Court vis-a-vis the pre-existing rights of the crewmen of the vessel would not apply to the facts of the present case. 12. In view of the above, the petition is allowed. The respondent No.4-GMB is directed to issue No Due Certificate to the petitioner so as to enable the petitioner to shift the vessel from Salaya Port to Okha Port. Rule is made absolute to the aforesaid extent. No orders as to cost. Direct service is permitted.