Al Lsmail Haj Tour Vs Union of India

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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 425 OF 2016 ETC.

AL ISMAIL HAJ TOUR … Petitioner

Versus

UNION OF INDIA … Respondent

WITH

WRIT PETITION (CIVIL) NO. 426 OF 2016

WRIT PETITION (CIVIL) NO. 427 OF 2016

WRIT PETITION (CIVIL) NO. 428 OF 2016

WRIT PETITION (CIVIL) NO. 429 OF 2016

WRIT PETITION (CIVIL) NO. 430 OF 2016

WRIT PETITION (CIVIL) NO. 431 OF 2016

WRIT PETITION (CIVIL) NO. 433 OF 2016

WRIT PETITION (CIVIL) NO. 435 OF 2016

WRIT PETITION (CIVIL) NO. 437 OF 2016

WRIT PETITION (CIVIL) NO. 438 OF 2016

WRIT PETITION (CIVIL) NO. 440 OF 2016

WRIT PETITION (CIVIL) NO. 441 OF 2016

WRIT PETITION (CIVIL) NO. 444 OF 2016

WRIT PETITION (CIVIL) NO. 447 OF 2016

WRIT PETITION (CIVIL) NO. 449 OF 2016

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WRIT PETITION (CIVIL) NO. 450 OF 2016

WRIT PETITION (CIVIL) NO. 451 OF 2016

WRIT PETITION (CIVIL) NO. 452 OF 2016

WRIT PETITION (CIVIL) NO. 457 OF 2016

WRIT PETITION (CIVIL) NO. 456 OF 2016

WRIT PETITION (CIVIL) NO. 455 OF 2016

WRIT PETITION (CIVIL) NO. 458 OF 2016

WRIT PETITION (CIVIL) NO. 460 OF 2016

WRIT PETITION (CIVIL) NO. 461 OF 2016

WRIT PETITION (CIVIL) NO. 462 OF 2016

WRIT PETITION (CIVIL) NO. 463 OF 2016

WRIT PETITION (CIVIL) NO. 465 OF 2016

WRIT PETITION (CIVIL) NO. 466 OF 2016

WRIT PETITION (CIVIL) NO. 467 OF 2016

WRIT PETITION (CIVIL) NO. 468 OF 2016

WRIT PETITION (CIVIL) NO. 473 OF 2016

WRIT PETITION (CIVIL) NO. 474 OF 2016

WRIT PETITION (CIVIL) NO. 479 OF 2016

WRIT PETITION (CIVIL) NO. 480 OF 2016

WRIT PETITION (CIVIL) NO. 481 OF 2016

WRIT PETITION (CIVIL) NO. 487 OF 2016

WRIT PETITION (CIVIL) NO. 488 OF 2016

WRIT PETITION (CIVIL) NO. 491 OF 2016

WRIT PETITION (CIVIL) NO. 494 OF 2016

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WRIT PETITION (CIVIL) NO. 495 OF 2016

WRIT PETITION (CIVIL) NO. 496 OF 2016

WRIT PETITION (CIVIL) NO. 498 OF 2016

WRIT PETITION (CIVIL) NO. 500 OF 2016

WRIT PETITION (CIVIL) NO. 501 OF 2016

WRIT PETITION (CIVIL) NO. 503 OF 2016

WRIT PETITION (CIVIL) NO. 504 OF 2016

WRIT PETITION (CIVIL) NO. 505 OF 2016

WRIT PETITION (CIVIL) NO. 511 OF 2016

WRIT PETITION (CIVIL) NO. 371 OF 2016

WRIT PETITION (CIVIL) NO. 542 OF 2016

WRIT PETITION (CIVIL) NO. 544 OF 2016

WRIT PETITION (CIVIL) NO. 543 OF 2016

WRIT PETITION (CIVIL) NO. 545 OF 2016

WRIT PETITION (CIVIL) NO. 546 OF 2016

WRIT PETITION (CIVIL) NO. 548 OF 2016

WRIT PETITION (CIVIL) NO. 550 OF 2016

WRIT PETITION (CIVIL) NO. 552 OF 2016

WRIT PETITION (CIVIL) NO. 553 OF 2016

WRIT PETITION (CIVIL) NO. 554 OF 2016

WRIT PETITION (CIVIL) NO. 555 OF 2016

WRIT PETITION (CIVIL) NO. 556 OF 2016

WRIT PETITION (CIVIL) NO. 541 OF 2016

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J U D G M E N T

Chelameswar, J.

1. This Court by its judgment in Union of India & Others v.

Rafique Shaikh Bhikan & Others (2013) 4 SCC 699 (hereinafter

Rafique Shaikh Bhikan, 2013), approved a policy (with some

modification) framed by Government of India for the registration of

Private Tour Operators (“PTOs”) for HAJ 2013 (hereafter referred to

as “APPROVED POLICY”). This Court opined that such a policy

“avoids creation of any monopoly and makes provision for entry of fresh

players”.

2. The modified and APPROVED POLICY is appended to the

judgment as Appendix-‘I’1. It can be seen from the said judgment

that though the policy as framed by the Government of India was

meant only for one year i.e. for Haj 2013, this Court directed that it

would be the “Policy for Private Tour Operators for Haj 2013-17” - valid for

five years.

1 Para 27. Having heard the Attorney General and the counsel appearing for the different private tour operators, we approve the policy presented by the Attorney General with some slight modifications. The policy, approved after modifications by this Court, is enclosed as Appendix I and forms part of this order. The approved policy will be called “Policy for Private Tour Operators for Haj, 2013-2017”. It shall remain valid for five years and shall not be questioned before any court or authority.

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3. Under the APPROVED POLICY, the PTOs were categorised into

two groups. Category-I consists of PTOs who were registered with

the Ministry of External Affairs and facilitated Hajis at least for 7 or

more years by conducting Haj tour operations. The second category

consists of two classes of PTOs. Class-I consists of PTOs who had

facilitated Hajis for less than 7 years and Class-II consists of the

PTOs who had facilitated at least 50 umrah pilgrims in a year for

any five years.

4. Obviously, the requisite experience for a PTO to be categorized

in one of the abovementioned two categories must be anterior to Haj

2013. It is to be noticed that though the APPROVED POLICY

stipulated “experience of conducting a Haj operation” for 7 years for Category-I

and 5 years experience of conducting “umrah operation” in second class

of Category-II, the Scheme did not stipulate that those years should

be consecutive years, or that they should be the immediate past 7

years or 5 years, as the case may be. The consequences of

classification are also specified in para 4 of the Scheme;

“4. 70% of the overall quota of seats will be allocated to eligible PTOs under Category 3(I) and 30% to eligible PTOs under Category 3(II). Distribution of seats among qualified PTOs will be done as follows:

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(a) 70% of the Haj 2013 PTO seats (31,500) will be allocated to eligible PTOs under Category 3(I) at the rate of 150 seats per PTO. In case the number of PTOs exceeds 210, the allocation of seats will be done on draw of lots. If the number of qualified PTOs is less than 210, each PTO will be allocated 150 seats and surplus seats, if any, will be distributed equally among them.

(b) 30% of Haj 2013 PTO seats (9000) will be allocated to eligible PTOs under Category 3(II) at the rate of 150 seats per qualified PTO. If the number of qualified PTOs exceeds 90, the allocation of seats will be done by draw of lots. In case the number of PTOs is less than 90, each PTO will be allocated 150 seats. Balance seats, if any, will be transferred to Category I and distributed equally among them. A qualified PTO which fails to get selected under the draw of lots in any year will be allocated 150 seats in the ensuing year without qurrah if it remains a qualified PTO.

5. There is no separate scheme or statute regulating the PTOs

conducting umrah operations. However, we are informed by the

learned Additional Solicitor General that the Government of Saudi

Arabia would not permit any pilgrim for umrah through a PTO

unless such PTO has a contract with one of the agencies authorized

by the Government of Saudi Arabia for the purpose. We are

informed that as of today there are some 48 such agencies in Saudi

Arabia. We are informed at the bar by the learned Additional

Solicitor General that existence of such a restriction emanates from

the law of Saudi Arabia and the Government of India’s knowledge of

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such restriction is based on the information provided by the

Diplomatic Mission of the Government of India at Saudi Arabia.

6. There are three annexures to the above scheme. Annexure-A

specifies the conditions required to be satisfied by a PTO and

prescribes the documents which are required to be produced to

establish the facts necessary to prove that the PTO satisfies the

conditions for registration of Private Tour Operators (PTO) for Haj

20132.

7. For the purpose of the present controversy, we are concerned

with only stipulations (iv) and (vii) which read as follows:- “(iv) Minimum annual turnover of INR one crore during the financial year 2010-2011 or 2011-2012 along with balance sheet and profit and loss account – duly audited by the statutory auditors, tax audit report and income tax return (ITR) for financial years 2010-2011 and 2011-2012.

(vii) Proof of payment made through banking or other authorised channels towards purchase of tickets and hiring of accommodation in Makkah/Madinah. Payments towards purchase of tickets, hiring of accommodation for pilgrims in Makkah/Madinah, by any other means, would not be accepted.”

8. This batch of writ petitions are filed by the PTOs falling either

under Category-I or one of the two classes of Category-II. We take

three writ petitions as representative cases of the entire batch i.e.

2 Each PTO should establish that it is a genuine and established tour operator having experience in sending tourists/pilgrims abroad for which he should produce the following documents

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Writ Petition (C) No. 425 of 2016, Writ Petition (C) No. 441 of 2016

and Writ Petition (C) No. 501 of 2016.

9. The petitioner in Writ Petition (C) No. 425 of 2016 claims to be

a PTO who is duly registered with the Ministry of External Affairs

and was allotted a quota of Hajis for the years 2009 to 2011 and

also in the year 2015 (in all, four years).

10. The petitioner in Writ Petition(C) No. 441 of 2016 claims to be

“a registered PTO since 2003 to 2012 and also for the year 2015”, but it is not very

clear from the writ petition whether petitioner was allotted any

quota in any one of those years, except a vague statement at para

4.243 of the writ petition.

11. Coming to Writ Petition (C) No. 501 of 2016, the petitioner

apparently belongs to the Class II of the Category-II i.e. somebody

who claims experience of having conducted umrah programme for

five years and seeks registration for conducting Haj programme for

the year 2016.

12. The prayers in these three writ petitions, insofar as they are

relevant, read as follows:- Prayer in Writ Petition (C) No. 425 of 2016

3 4.24 - That on 1.08.2015, the respondent after scrutinizing the application submitted by the petitioner selected the petitioner as a PTO for Hajj 2015 and the “Certificate of Registration of Private Tour Operators for Hajj 2015” was issued by the respondent to the petitioner. The petitioner conducted service for hajj 2015 without any complaint.

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“(a) Issue a Writ, order or direction in the nature of Mandamus Commanding and directing the Respondents restore paragraph 1 of Press Release dated 06.05.2016 by withdrawing second para of para 2 of Press Release dated 21.05.2016;

(b) Issue a Writ, order or direction in the nature of Mandamus Commanding and directing the Respondents to exempt the Petitioner to furnish documents required under clause (vii), (x), (xi) & (xii) of Annexure A of the PTO Policy for Haj-2013 and Haj-2014.”

Prayer in Writ Petition (Civil) No. 441 of 2016 (a) Issue a Writ, order or direction in the nature of Mandamus

Commanding and directing the respondent to grant Registration to the petitioner as PTO for conducting Haj Tour, 2016;”

And insofar as, the third Writ Petition i.e. Writ Petition (C) No.

501 of 2016 is concerned, the relevant prayers are prayers (a), (b)

and (c). Prayers (a) and (b) are similar prayers to the prayer in the

Writ Petition (C) No. 425 of 2016, and prayer (c) is as follows:- “(c) Issue a Writ, direction or order in the nature of Mandamus commanding and directing the Respondent not to seek copy of contract which the Respondent has sought vide paragraph 4 of press release dated 06.05.2016, as per Annexure P-2”

13. The background in which the present litigation arises is as

follows: The Ministry of External Affairs (MEA) issued a clarification

dated 8th May 2013 by which a PTO seeking registration for

consideration of allotment of quota for Haj programme is required to

furnish documents; “As regards Clause (vii) of Annexure A to PTO Haj Policy, 2013, it is clarified that the PTOs will have to submit the documents required under Clause (vii) of Annexure A to PTO Haj Policy, 2013 for a period of at least three years.”

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14. Some of the PTOs challenged the said document on the

ground that such a clarification was unwarranted and does not find

any support from the text of stipulation no. (vii). Their case is that

in view of the fact that stipulation no. (iv) of Annexure ‘A’ prescribes

a condition that a PTO seeking registration should have a minimum

annual turnover of Rs.1 crore “during the financial year 2010-2011 or

2011-12” and calls upon the PTOs to submit balance sheet and profit

and loss account duly audited and other documents specified

therein for the abovementioned two financial years, stipulation no.

(vii) also must be understood in the light of stipulation no.(iv), and

resultantly, the PTO is obligated to furnish the documents referred

to therein only for 2 years. This Court accepted the submission of

the petitioner in Jeddah Travels & Jeddah Hajj Group v. Union

of India4 and directed that the case of the petitioner be considered

in accordance with the decision of this Court.

4 (2014) 14 SCC 378 Para 8 (Hereinafter, Jeddah Travels). “8. Clause (vii) of Annexure A referred to above not having stipulated any period of time during which the

requirement contemplated thereunder is required to be satisfied by a private tour operator and Clause (iv) which relates to the turnover of a tour operator being confined to a period of one year out of the two available calendar years mentioned thereunder and both the clauses being relatable to a determination of the suitability of a tour operator from a similar perspective, the requirement under Clause (vii) can be reasonably understood in the light of what is contained in Clause (iv) i.e. Financial Years 2010-2011 or 2011-2012. Admittedly, the private tour operators before us have been disqualified by taking into account periods of time other than what is mentioned above. That apart, if the Government of India was of the view that Clause (vii) had to be understood with reference to a period of three years, really, this Court ought to have been approached for an appropriate clarification.”

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15. Thereafter, a number of press releases came to be issued,

significant of them are on 29.04.20165, 21.05.20156, 06.05.2016

and 21.05.2016. 16. MEA issued another Press Release dated 21.05.2015. From

the said Press Note, it appears that number of PTOs who

approached this Court challenging the MEA’s clarification dated

5 2. The lists of the PTOs under category I & II who were qualified for Haj-2015 may be seen at Annexure I, II & III of the Press Releases of 31.7.2015 and 7.8.2015 available at the Ministry’s Website www.mea.gov.in (Link: Haj 2015- (i) Press Release for PTOs for Haj 2015 dated 31.7.2015, (ii) List of PTOs qualified for allocation of quota for Haj 2015 dated 31.7.2015 and (iii) List of qualified PTOs who did not get quota for Haj 2015 due to draw of lots dated 7.8.2015). The PTOs who still remain eligible as per this list may apply for registration for Haj 2016 as per the laid down guidelines Further, in compliance of Hon’ble Supreme Court order on the Writ Petition No.344/2015 dated 23.7.2015, 19 PTOs as per enclosed list at Annexure-X may also apply for registration following the laid down guidelines. These lists are subject to any further order/directions of Hon’ble Supreme Court.

3. All the terms and conditions laid down in Annexure A & B will also apply on PTOs that qualify under Category-II by virtue of facilitating a minimum of 50 Umrah pilgrims in a year for any 5 years, but with the exception of the terms and conditions contained under Clause (vii), (x), (xi) and (xii) of Annexure A. In addition, these PTOs are also required to submit the proof of payment made through banking or any other authorised channels towards purchase of tickets and hiring of accommodation in Makkah and Madinah in respect of Umrah pilgrims facilitated by them in support of their claim.

6 Para 2. The PTOs who have been qualified for registration for Haj-2015, is enclosed at Annex- A.

Para 3. In addition, the Hon ble Supreme Court, vide its judgment dated 7th August, 2014 in the writ‟ petitions filed by 22 PTOs, has directed the Ministry that Clause (vii) of Annexure A of the PTOs Policy should be read with Clause (iv). The Hon ble Court directed the Ministry to do self-correction in this regard. Therefore, the‟ documents of the non-qualified PTOs for minimum annual turnover of Rs.1 Crore or above and purchase of air tickets and hiring of accommodation for Haj pilgrims through banking or other authorised channels for the year 2010-11 (Haj 2010) or 2011-12 (Haj 2011) needed to be re-verified, in addition to other documents as indicated in Annexure A and B of the PTOs Policy.

Para 4. In order to comply the directions of the Hon ble Supreme Court, the documents of those PTOs who‟ were given opportunity for personal hearing but were not considered qualified during 2013, have been re-verified with the assistance of the Chartered Accountant Firm, M/S S.P. Chopra & Co, hired through bidding process. The documents like Annual Turnover of Rs. 1 crore or more, Minimum Capital of Rs. 15 Lakh and documents regarding transaction through proper banking channel for purchase of air tickets for the Haj pilgrims and hiring of accommodation for them in Makkah/Madinah pertaining to the year 2010-11(Haj-2010) or 2011-12 (Haj 2011) of the PTOs were verified. As a result, 73 more PTOs (20 under Category-I and 53 under Category-II) have been qualified for registration for Haj 2015. A list of the PTOs qualified for registration after re-verification of the documents is enclosed at Annexure B. Thus, a total of 615 PTOs (253 under Category-I and 362 under Category-II) have been qualified for registration for Haj 2015.”

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08.03.2013 was 22. Further, in purported compliance with the

direction of this Court given in Jeddah Travels (supra),

Government examined and found 73 more PTOs (20 under

Category-I and 53 under Category-II) to have been qualified for

registration for Haj 2015, apart from various other PTOs who had

otherwise been found qualified. It appears from the said Press Note

that a total number of 615 PTOs (253 under Category-I and 362

under Category-II) were found to have been qualified for registration

for Haj 2015. It is stated in the said Press Note as follows: “9. This policy will remain valid from 2015 to 2017 for registration purpose for the new private tour operators who wish to be registered with the Ministry on the basis of Umrah pilgrims taken by them as per details mentioned in Para 6 above. The policy will not be changed unless there are substantive developments which affect it. The policy envisages cross category upward movement of PTOs from Category-II to Category-I. A qualified PTO shall remain qualified for registration purpose till Haj-2017 unless it is otherwise disqualified either by Government of India or by Government of Saudi Arabia for valid reasons. The allocation of seats to the PTOs qualified for registration in each category, will be done every year on the basis of the overall quota of seats for PTOs specified in the Annual India-Saudi Arabia Bilateral Haj Agreement and the number of qualified PTOs in each category.”

17. This Court passed an Order dated 18.05.2016 in a batch of

writ petitions similar to the ones on hand, the operative portion of

which reads as follows:-

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“8) In the light of aforesaid discussion and keeping in view the statement made by the Additional Solicitor General on behalf of the respondent-Union of India, we dispose of these writ petitions finally by granting liberty to each writ petitioner to make a fresh application with all the necessary details with the documents as prescribed for grant of permission to take the pilgrims for Hajj for the year 2016 on or before 27.05.2016 to the prescribed authority.

9) On such application (s) being made, the concerned authority would examine, consider and decide each such application on its merit strictly in accordance with law and keeping in view the law laid down in the decisions of this Court in Union of India & Ors. vs. Rafique Shaikh Bhikan & Ors., 2013 (4) SCC 699, Order dated 07.08.2014 passed in Special Leave Petition (C) No. 20743/2014 entitled Union of India & Ors. vs. All India Haj Umrah Tour Organizers Association & Ors., Order dated 07.08.2014 passed in Writ Petition (civil) No. 480/2014 etc. etc. entitled Jeddah Travels & Jeddah Hajj Group vs. Union of India, Order dated 12.05.2015 passed in I.A. No. 33 of 2015 in Special Leave Petition (C) No. 28609/2011 entitled Union of India vs. Rafique Sheikh Bhikan and Others and Order dated 23.07.2015 in W.P. (civil) No. 344/2015 entitled Alban Hajj Umrah Service vs. Union of India.

10) Let the applications be decided by the concerned authority by passing a reasoned order on each application on or before 29.06.2016 and the order so passed be communicated to each applicant (writ petitioner) immediately.”

18. We are of the opinion that it is not necessary to examine in

detail the content of these various press releases issued by the

MEA. They only indicate the Government of India’s understanding

of the APPROVED POLICY (as interpreted by orders of this Court in

Jeddah Travels (supra)). These press notes are professedly meant

to be clarificatory of the APPROVED POLICY. But they created

more confusion than really clarifying the APPROVED POLICY.

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19. The net result emerging from these various Press Notes and

the orders of this Court is that as a matter of fact some of the PTOs

(falling under either category I or II) who should have been

registered by the Ministry of External Affairs for consideration of

their cases for allotment of Haj quota for the year 2014 were

wrongly denied registration and, therefore, they were not allotted

any quota in that year.

20. The ultimate question in this batch of matters is – what are

the documents which are required to be submitted for registration

as a PTO qualified for being considered for allotment of quota for

Haj 2016?

21. There is no dispute between the parties regarding the

obligation of a PTO to furnish various documents referred to in

various stipulations of Annexure ‘A’ of the APPROVED POLICY. The

dispute revolves only around the stipulation (vii). It is the common

understanding of the Government of India and Petitioners/PTOs

insofar as stipulation no. (iv) is concerned, though the text of the

stipulation speaks about submission of balance sheet and profit

and loss account for the years 2010-2011 and 2011-2012, that

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stipulation is to be understood as the balance sheet and profit and

loss account pertaining to the years 2013-2014 and 2014-2015 for

the purpose of registration for the HAJ 2016.

22. On the only contentious stipulation that is stipulation no. (vii),

according to the Government of India, when the APPROVED POLICY

imposes an obligation on a PTO seeking registration to produce

proof of the payments (made through banking or other authorized

channels) towards purchase of tickets and hiring of accommodation

in Makkah/Madinah, obviously such an obligation is with reference

to the two years preceding HAJ 2016 in view of the orders of this

Court in Jeddah Travels (supra).

23. The learned Addtl. Solicitor General submitted that they are

not only bound by the orders of this Court in Rafique Shaikh

Bhikan, 2013 (supra) and Jeddah Travels (supra) but also are

under a constitutional duty to be satisfied that an applicant (PTO

for registration for Haj 2016 programme) has the necessary ability

and capacity (financial and infrastructural) to conduct such a

programme because the safety and comfort of the Haj pilgrims

eventually depends upon the ability and the capacity of the PTOs.

It is submitted that some of the PTOs did not in the past really

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provide the necessary services which they ought to have provided to

the pilgrims. Past performance of the PTOs is one of the factors by

which the Government of India makes an assessment of the

capacity of the PTOs under the APPROVED POLICY. The past

performance of a PTO is to be assessed on the basis of the

documentary evidence indicated in stipulation no. (vii). Such

evidence proves the facts that PTOs after having secured the

allotment of quota did in fact conduct Haj programme by actually

purchasing tickets and providing appropriate accommodation for

the pilgrims in Makkah/Madinah. Therefore, any PTO seeking

consideration for allotment of a quota for Haj 2016 must necessarily

supply the documents for the years of 2014 and 2015 Haj.

24. On the other hand, the learned counsel for the petitioners

argued that some of the petitioners who were otherwise eligible to

be considered for allotment of quota for Haj 2014 were wrongly

denied registration and consequently they did not get any quota.

Therefore, calling upon them to produce proof of the fact that they

had made appropriate arrangement for that particular year is not

only illogical but would be asking them to perform an impossibility,

apart from being an arbitrary exercise of power. Therefore, their

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cases must be considered without insisting upon the documents for

the years 2013-2014 and 2014-2015.

25. In our opinion, stipulation no. (vii) does not impose a

substantive obligation on a PTO seeking consideration for allotment

of quota by the Government of India for Haj programme of any

particular year. It only incorporates a rule of evidence to establish

the fact whether a particular PTO had in fact conducted Haj

programme in the past.

26. PTOs had been in existence and conducting Haj operations

without any intervention by the Government of India even prior to

the coming into existence of the APPROVED POLICY under the

orders of this Court in Rafique Shaikh Bhikan, 2013 (supra). It

is a different matter as to how well they had conducted the Haj

programmes. Sometime in 20027, after the Government of Saudi 7 Union of India and Others etc. v. Rafique Shaikh Bhikan and Another etc. (2012) 6 SCC 265. In this judgment, the following paragraphs are to be noted-

5. In order to clearly understand the context in which the dispute arises a few facts are required to be taken into account. Under a bilateral agreement signed between the Government of India and the Kingdom of Saudi Arabia every year, the latter Government assigns a fixed number of pilgrims that are permitted to visit Saudi Arabia for performing Haj. Out of the overall number, a relatively small portion is specified for the PTOs and the rest for the Haj Committee of India.

6. Before 2002, the PTOs were allocated Haj seats directly by the Kingdom of Saudi Arabia and there was, therefore, no involvement of the Government of India in the allocation of any Haj quota to the PTOs. After Haj 2001, the Kingdom of Saudi Arabia made it mandatory for the PTOs to come through their respective Governments. From 2002, therefore, the Government of India was obliged to evolve a system under which private operators/travel agents would be registered as PTOs and following the registration would be allocated quotas from the overall number of pilgrims specified for PTOs. It is, thus, to be seen that a private operator/travel agent needs first to get registered as PTO and it would then get a fixed number of pilgrims for carrying for Haj.

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Arabia decided that only those PTOs which are approved by the

Government of India could be given ‘Group Visas’ to perform Haj

operations, this whole process of the Government of India

considering allotment of quota to PTOs started because the

Government is under a constitutional obligation to consider the

cases of all the eligible PTOs without discrimination.

27. To decide upon the eligibility of PTOs, certain criteria was

required. Therefore, the APPROVED POLICY stipulated that those

PTOs who had conducted at least 7 Haj operations or more would

be considered in Category-I and PTOs who had conducted less than

7 Haj operations would be treated as Category-II PTOs. The

consequence of the division of PTOs into two categories is that the

total number of Visas to be provided by the Government of Saudi

Arabia for the pilgrims going through PTOs would be distributed

among the two categories in the ratio indicated in para 4 which is

already taken note of. PTOs which had conducted greater number

of Haj programmes would get a larger chunk of visas. To determine

whether a particular PTO falls either under Category-I or

Category-II, some evidence to establish the number of tours

conducted by such a PTO prior to the formation of the scheme is

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required. The best proof, as rightly identified by the Government (in

stipulation no. (vii) of Annexure ‘A’), is the evidence of payments for

the air tickets and hiring of accommodation through banking or

other authorized channels

28. We must note it here that stipulation (vii) is relevant only for

those PTOs, who are seeking registration either under Category I or

Category II as PTOs eligible for consideration for allotment of quotas

for Haj Programme for the first time. When an application is

received from any PTO for the first time, as was rightly contended

by the learned Additional Solicitor General before this Court in the

Jeddah Travels (supra), the proof by documents specified in

stipulation (vii) is required8. Unfortunately, the said submission was

rejected by this Court. With respect we may say that we are

unable to agree with the conclusion of this Court in Jeddah

Travels (supra) in this regard.

29. Be that as it may, but once the PTO is registered either under

Category I or Category II insisting upon the PTO to produce proof

8 6. Shri Neeraj Kishan Kaul, learned Additional Solicitor General has vehemently contended that the requirement under the order of the Court dated 16-4-2013 [F/N : Union of India v. Rafique Shaikh Bhikan (2013) 4 SCC 699], is really for a seven year period, which is evident from a reading of Appendix I, which is to be found in para 36 of the aforesaid order of this Court.

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for each subsequent year or to produce documents contemplated

under stipulation (vii) in our opinion is not supported either by the

text of the APPROVED POLICY or logic.

30. The scheme was not confined only to Haj 2013 and made

applicable till 2017 (by orders of this Court). There is always a

possibility of some new PTOs who were qualified to fall under

Category-II in 2013 to acquire a qualification to fall in Category-I in

a subsequent year. For example, a PTO who successfully

conducted 6 Haj operations prior to 2013 would fall under

Category-II for the purpose of allotment of quota in Haj 2013. If it

did in fact secure a quota for Haj 2013 and did in fact conduct Haj

operations for 2013 successfully, for a Haj operation for any

subsequent year during the currency of the APPROVED POLICY a

PTO would be entitled to be considered as a Category-I PTO as by

then it had conducted 7 Haj operations. Similarly, the PTOs who

facilitated 50 umrah pilgrims in a year for any five years prior to

2013 would be eligible for being considered in Category-II and for

allotment of quota of Haj 2013 and if it is successful in securing the

quota and in conducting Haj operations, in any subsequent years, it

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would be entitled to be considered for quota under Class-I of

Category-II as a PTO who has conducted one Haj operation.

31. We have already noticed the relevant portion of the

APPROVED POLICY which dealt with the categorization of the PTOs.

The APPROVED POLICY did not stipulate a condition that

experience of having conducted 7 Haj programmes is an experience

of 7 consecutive years etc. Therefore, if a PTO is once registered in

any one of the years, either as a Category-I or Category-II PTO, to

call upon such PTOs to furnish the documents contemplated under

stipulation no. (vii) for every subsequent year, in our opinion, would

not be in tune with the text of the APPROVED POLICY. We are

conscious of the fact that some PTOs who had successfully

undertaken a number of Haj programmes may subsequently

derelict their responsibility to the pilgrims. The Government of

India has ample power under the APPROVED POLICY to deregister

such PTOs. This aspect is amply born out of the text of the policy

itself. Para 5 of the Policy insofar as it is relevant reads as follows:

“5. … The policy envisages cross-category upward movement of PTOs from Category II to Category I. A qualified PTO shall remain qualified unless it is otherwise disqualified either by the Government of India or by the Government of Saudi Arabia for valid reasons. It is to be noted that the PTOs who do not wish to

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take a minimum of 150 Hajis or are unable to do so, need not apply.”

32. Therefore, in our opinion, understanding of the Government of

India that even those PTOs who had been registered either in

Category-I or Category-II would also be required to furnish the

documents specified in stipulation no. (vii) every year when they are

seeking consideration for allotment of quota of Haj pilgrims is

wholly illogical and contrary to the text of the APPROVED POLICY.

A registration for PTO once made under the scheme should be valid

till 2017, subject to fulfillment of other relevant stipulations under

the scheme.

33. Ultimately, documents specified in stipulation (vii) not only go

to prove a fact that a PTO had in fact conducted a Haj programme

in a particular year, but also prove that the PTO has necessary

information and contacts in Saudi Arabia to organize an

appropriate accommodation both at Makkah/Madinah.

34. Another submission of the learned Additional Solicitor General

is required to be examined at this stage. The submission is that in

the absence of such documents for the minimum two preceding

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years relevant to the Haj programme in consideration the

Government would have no means of assessing the continued

ability and capacity of the PTO to undertake a Haj operation and

therefore, the Government should be permitted to insist upon the

production of such documents.

35. This argument is to be rejected for one reason under para 4(b)

of the APPROVED POLICY, it is stipulated that “a qualified PTO which

fails to get selected under the draw of lots in any year will be allocated 150

seats in the ensuing year without umrah, if it remains a qualified PTO”,

obviously such a PTO would not be able to produce such

documents with reference to that year when it failed to secure

allotment of quota for Haj. Therefore, the assessment of its ability

on the basis of its previous year performance as is sought to be

argued by the learned Additional Solicitor General is not possible in

such cases. Still the Government is obliged under the APPROVED

POLICY to grant a quota to such PTOs.

36. Lastly, it is argued by the learned Additional Solicitor General

based on the decision of this Court in Union of India and Others

etc. v. Rafique Shaikh Bhikan and Another etc. (2012) 6 SCC

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265, that this Court may not interfere with the policy of the

Government unless it is demonstrated before us that “the condition(s)

was purely subjective or designed to exclude any individual or group of private

operators/travel agents i.e. bordering on malice.”

37. We reject the submission as the statement relied upon by the

learned Additional Solicitor General is not an exhaustive statement

of law on the subject, when it is demonstrated that the

administrative action of the Government of India is inconsistent

with the text of the law (APPROVED POLICY in this case) or that the

government is making an irrational application of the law, this

Court is bound to interfere.

38. It is submitted by the learned ASG that the prime

consideration in this matter should not be the individual rights of

these PTOs whose only motive is to secure economic benefits from

the allotment of Haj quota, but the safety and comfort of the Haj

pilgrims. Government of India must have the necessary freedom to

make its own assessment regarding the suitability of the PTO in

this regard. We do not dispute the proposition, the text of the

scheme itself makes it abundantly clear that any PTO once qualified

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shall “remain qualified unless it is otherwise disqualified…. by the

Government of India… for valid reasons.” Therefore, it is always

open to the Government to disqualify any registered PTO for

subsequent year, if there is rational complaint against the service

rendered by that PTO in any previous year from any one of the

pilgrims of that year or any other legally tenable information or

material which calls for disqualification of such a PTO.

39. We are left with the writ petitions of those PTOs who are

seeking consideration for allotment of quota for haj 2016 in the

category-II Class I. Their claim is that earlier that is in 2015 for the

year 2015 they were allotted a quota on the ground that they were

PTOs falling under Class-II of Category-II, i.e. PTOs which had the

experience of having conducted five (5) umrah operations prior to

2015. The learned Additional Solicitor General submitted that

under the laws of Saudi Arabia PTOs are not permitted to conduct

umrah operations unless they have a clear contract with one of the

agencies duly authorised by Government of Saudi Arabia for the

purpose of conducting umrah operations and some of these PTOs

did not have any such contract. According to the learned ASG the

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petitioner PTOs were only sub-contractors under some PTOs which

were already classified as PTOs falling under Category-I or Class-I

of Category-II. They did not have any independent contract for

conducting umrah operations, however, by some oversight some of

them had been granted registration and quota under Class-I of

Category-II for the year 2015. The learned ASG submitted that it

does not create any right in favour of such PTOs.

40. Whatever be the basis on which quota was allotted to these

PTOs for haj 2015, the fact remains that if anyone of those PTOs

did in fact, conduct a haj programme pursuant to the quota they

would be entitled for being considered even for 2016 unless there is

any other good ground for not considering their cases such as

inefficient or bad service rendered to the pilgrimage during 2015 haj

programme, their claims now cannot be rejected. If the respondent

decides to de-register such PTOs on any ground tenable in law, it is

open for the respondent to de-register after giving reasonable

opportunity to such PTOs but until such de-registration takes place

their cases must be considered for allotment of quota for haj 2016 if

they are otherwise eligible.

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41. It is a settled principle of international law that a law of a

foreign country is a pure question of fact insofar as municipal

courts are concerned, we do not see any reason to doubt the

statement, the Government of India and therefore, we do not see

any reason to grant any relief for those PTOs.

42. All these writ petitions are disposed of directing the

respondents to consider the cases of all the PTOs for allotment of

quota in the light of these orders insofar as stipulation (vii) of

Annexure A is concerned subject to the fact that PTOs are otherwise

eligible in accordance with the approved scheme.

Taken on board.

In view of the order passed in W.P.(C)No.425/2016 , this

petition also stands disposed of.

….………………………….J. (J. Chelameswar)

…….……………………….J. (Abhay Manohar Sapre)

New Delhi; July 8, 2016

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AL LSMAIL HAJ TOUR Vs UNION OF INDIA

AL LSMAIL HAJ TOUR Vs UNION OF INDIA