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REPORTABLE IN THE SUPREME COURT OF INDIA

                                                  CIVIL APPELLATE JURISDICTION                    

SPECIAL     LEAVE     PETITION     (CIVIL)     NO.28609     OF     2011   

UNION OF INDIA & ORS.                             PETITIONER  (S)

VERSUS

RAFIQUE SHAIKH BHIKAN & ANR.                       RESPONDENT(S)

WITH

SPECIAL     LEAVE     PETITION     (CIVIL)     NOS.33190-33217     OF     2011   

RAFIQUE SHEIKH BHIKAN ETC. PETITIONER (S)

VERSUS

GOVERNMENT OF INDIA & ORS. RESPONDENT(S)  

WITH

TRANSFER     PETITION     (CIVIL)     NO.191     OF     2012   

MOHAMMAD SHAMS RABBANI PETITIONER (S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT (S)

WITH

TRANSFER     PETITION     (CIVIL)     NO.192     OF     2012   

MUBARAK HUSSAIN PETITIONER (S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT (S)

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WITH

TRANSFER     PETITION     (CIVIL)     NO.196     OF     2012   

HAJI ABDUL SALEEM KOOKA PETITIONER (S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT (S)

WITH

TRANSFER     PETITION     (CIVIL)     NO.197     OF     2012   

MOHAMMAD EMAD UDDIN PETITIONER (S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT (S)

WITH

TRANSFER     PETITION     (CIVIL)     NO.198     OF     2012   

MOHD. ASLAM PETITIONER (S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT (S)

AND

TRANSFER     PETITION     (CIVIL)     NO.199     OF     2012   

SYED INTESAR MEHDI PETITIONER (S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT (S)

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O     R     D     E     R   

Aftab     Alam,     J.   

SLP     (CIVIL)     NO.28609/2011      

This special leave petition has been filed by the Union of  

India against an order passed by Bombay High Court on October  

5, 2011 in a batch of writ petitions challenging the Government of  

India 2011 Haj Policy that required a private operator/travel  

agent to have “minimum office area of 250 sq. ft.” as one of the  

eligibility conditions for registration for ferrying pilgrims for Hajj.  

The High Court rejected the challenge but gave directions to the  

Government of India to allocate certain seats to some of the writ  

petitioners from the eight hundred seats from the Central  

Government quota that had not been allocated to anyone till the  

time of passing of the order by the court. Aggrieved by the  

directions given by the High Court, the Union of India filed this  

special leave petition and by order dated October 14, 2011 this  

Court stayed the operation of the directions given by the High  

Court. In any event, by the time the matter came before this  

Court, the directions could not be acted upon as there was very  

little time left for the commencement of Hajj for that year.   

By a subsequent order dated February 17, 2012 this Court  

declared its intent to examine the Haj policy of the Government  

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in all its aspects and not to limit the matter to the issue of Private  

Tour Operators (PTOs).  

As directed by the Court, the Government of India has filed  

its affidavit enclosing, among other documents, its Haj Policy for  

the year 2012 (2012 Haj Policy). A number of intervention  

petitions are filed in which many issues are raised; IAs are also  

filed in very large numbers on behalf of private operators/ travel  

agents (either individually or through associations) in which  

objections are raised against one or the other condition for  

eligibility for registration as PTOs for ferrying Hajj pilgrims.

By this interim order, we propose to deal with some of the  

issues arising from the 2012 Haj Policy on a priority basis leaving  

others to be dealt with in due course.

THE     PTOs   

The dispute between private operators/travel agents and  

the Government of India for registration as PTO for carrying Hajj  

Pilgrims is of a recent origin but is tending to become an annual  

feature.  It is, therefore, necessary to address the issue and to  

conclusively resolve it.  

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  

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that are permitted to visit Saudi Arabia for performing Hajj. Out of  

the overall number, a relatively small portion is specified for the  

PTOs and the rest for the Haj Committee of India. Before 2002,  

the PTOs were allocated Hajj seats directly by the Kingdom of  

Saudi Arabia and there was, therefore, no involvement of the  

Government of India in the allocation of any Hajj quota to the  

PTOs.  After Hajj 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 Hajj.  For registration of a private  

operator/travel agent as PTO, the Government of India frames  

policy laying down conditions subject to which registration would  

be given.  It further frames a policy for allocation of quotas to the  

registered PTOs from the overall number of pilgrims assigned to  

PTOs in the bilateral agreement with the Kingdom of Saudi  

Arabia.  As noted above, this arrangement began from 2002  

when the Kingdom of Saudi Arabia made it mandatory for the  

PTO to come through their respective Governments. Initially,  

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there were not many private operators/travel agents coming  

forward to claim any share in the seats allocated in the bilateral  

agreements for the PTOs but around the year 2006 more and  

more private operators/travel agents started claiming allocation  

from the Hajj seats reserved for PTOs. It appears that it took  

three or four years for the people in this line of business to realize  

that this was the opening up of a new highly lucrative commercial  

venture. It is, thus, to be seen that though for the past four or  

five years the number of pilgrims reserved for PTOs in the  

bilateral agreement has slightly gone down, there has been a  

large increase in the number of registered PTOs and an even  

larger increase in the number of applications for registration as  

PTOs.  This would be evident from the following chart:-

Sl. No. Haj Year Number of  PTOs

Total seats for  PTOs

1 2005 239 35,960 2 2006 I 277 45,455 3 2006 II 293 46,930 4 2007 297 47,000 5 2008 298 47,080 6 2009 615(*) 47,405 7 2010 602(**) 45,637 8 2011 567(***) 45,441 9 2012 - 45,000

(* comprising 297 old PTOs and 315 new ones)

(** 13 PTOs were disqualified in 2010 because of adverse reports  

on them)

(*** excluding Duplication of one PTO).  

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It is stated in the affidavit filed by the Union of India that for  

Hajj 2011, 1322 applications were received from private  

operators/travel agents, out of which, only 567 were found  

eligible and the 45,491 seats were distributed to them as per the  

PTO policy for Haj 2011.  Some of the private operators/travel  

agents who failed to get registration approached the Bombay  

High Court in a batch of Writ Petitions in which the High Court  

passed the order from which this special leave petition arises.  

From these facts, it is not difficult to deduce that the dispute  

between the private operators/travel agents and the Government  

of India in regard to registration as PTOs arises from a conflict of  

object and purpose.  For most of the private operators/travel  

agents registration as PTOs is mainly a question of more  

profitable business. Under the bilateral agreement no PTO can be  

given a quota of less than fifty pilgrims. Normally, a quota of fifty  

pilgrims would mean, on an average and by conservative  

standards, a profit of rupees thirty five to fifty lakhs. This in turn  

means that any private operator/travel agent, successful in  

getting registered as a PTO with the Government of India would  

easily earn rupees thirty five to fifty lakhs in one and a half to two  

months and may then relax comfortably for the rest of the year  

without any great deal of business from any other source. For the  

Government of India, on the other hand the registration of the  

PTOs, is for the purpose to ensure a comfortable, smooth and  

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trouble-free journey, stay and performance of Hajj by the pilgrims  

going through the PTOs.

The pilgrim is actually the person behind all this  

arrangement. For many of the pilgrims Hajj is once in a life time  

pilgrimage and they undertake the pilgrimage by taking out the  

savings made over a life time, in many cases especially for this  

purpose. Hajj consists of a number of parts and each one of them  

has to be performed in a rigid, tight and time-bound schedule. In  

case due to any mismanagement in the arrangements regarding  

the journey to Saudi Arabia or stay or traveling inside Saudi  

Arabia any of the parts is  not performed or performed improperly  

then the pilgrim loses not only his life savings but more  

importantly he loses the Hajj. It is not unknown that on landing in  

Saudi Arabia a pilgrim finds himself abandoned and completely  

stranded.

It is, thus, clear that in making selection for registration of  

PTOs the primary object and purpose of the exercise cannot be  

lost sight of. The object of registering PTOs is not to distribute the  

Hajj seats to them for making business profits but to ensure that  

the pilgrim may be able to perform his religious duty without  

undergoing any difficulty, harassment or suffering. A reasonable  

profit to the PTO is only incidental to the main object.

In Prem Printing Press v. Bihar State Text Book Publishing  

Corporation Ltd. & Ors., 2001 (4) PLJR 311 relating to the grant of  

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contract for printing of text books by the Bihar State Text Book  

Publishing Corporation Ltd., coming up before Patna High Court  

one of us (Aftab Alam J.) considered question of the importance of  

the work and its objective in granting contracts by statutory  

bodies and made the following observations:

“3. During the past three decades a substantial  amount of case law has accumulated on the question  of award of government contracts and a lawyer with  sufficient skills may without difficulty press into ser- vice certain observations from the earlier decisions in  any dispute relating to the award of government con- tracts. But while hearing learned arguments from  the counsel appearing for the parties I was un- able to keep out of my mind for a moment the  fact that the contract in dispute was for printing  of school text books for the academic year 2001  and though two out of the three parts of the  year is already over, the school children are yet  to receive the books intended for them. While  lengthy arguments were advanced on the plea of up- holding the rights-of the individual and much reliance  was placed on a number of Supreme Court decisions, I  was unable to relinquish the thought that the con- tract for printing of school text books for a par- ticular academic year was basically different  from and could not be viewed in the same way as a  contract for ten years for extraction of resin from  forests (Kasturi Lal; (1980) 4 SCC 1) or the contract for  the supply of fresh milk for the Military Farms (Har- minder Singh Arora; (1986) 3 SCC 247) or the contract  for allotment of damaged stocks of rice (Food Corpora- tion of India; A.I.R. 1993 SC 1601) or the grant of li- cence for the operation of 'Cellular Mobile Telephone  Service' (Tata Cellular: A.I.R. 1996 SC 11) or the con- tract for publication of telephone directories of Ma- hanagar Telephone Nigam Limited (Sterling Com- puters Ltd; A.I.R. 1996 SC 51) or the contract for de- velopment and exploration of oil fields (Centre for Pub- lic Interest Litigation; A.I.R. 2001 SC 80). 4. To my mind, upholding of individual rights  and the enforcement of the individual's rights  

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by the intervention of the writ court is un- doubtedly important but in doing so the court  must not over look the damage that might be  caused to a larger public cause, as in this case.  Speaking for myself I would not have entertained this  writ petition and thrown it out at the very threshold,  indeed leaving it open for the Petitioner to claim dam- ages by bringing an action against the Corporation be- fore a Civil Court. Such a course would not have  rendered the Petitioner remediless and at the same  time it would also have saved this Court from finding  itself in a position where it may be seen as causing ob- struction in the expeditious and timely supply of text  books to school children.”

                 (emphasis  added)

In another case Ranjit Kumar Ghosh v. State of Bihar and  

Others [2004 (3) BLJR 2242] dealing with the purchase of  

indelible ink by the Election Commission for proper conduct of  

election Aftab Alam J. (once again as a judge of Patna High Court)  

made the following observations:-

“15. What was observed in the case of printing of  text-books applies with greater force to this case.  Democracy is basic to and inseparable from our  constitutional scheme. The survival of democracy  depends upon proper conduct of elections and the  importance of indelible ink is quite obvious for the  proper conduct of elections. The purchase of indelible  ink therefore cannot be taken in the same way as the  purchase of other common materials such as office  furniture, stationary and other articles of ordinary use  by the Election Commission. Putting the purchase of  indelible ink at par with the other regular purchases  would throw the field open to private players and one  predictable out-come of it would be that the purchase  of indelible ink would inevitably get embroiled in Court  cases. On each occasion one or the other of the  unsuccessful tenders would drag the dispute with  regard to the grant of the supply order to Court. This  

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would be at a time when elections are very near and  all the resources and attention of the Election  Commission should be focussed on holding the  elections properly. At that stage a notice from the  Court to meet the objections of the unsuccessful  tenders in the matter of purchase of ink would  naturally have a debilitating effect on the Commission  and it may also be reflected in the conduct of elections  by it. Such a situation, the Court would like to avoid at  all costs.

16. What is discussed above are important  considerations in the matter of purchase of indelible  ink for holding elections. Nevertheless, this Court  should have put aside these considerations,  howsoever, weighty, had it been satisfied that the  present arrangement for the purchase of the ink was  tainted with arbitrariness or unreasonableness or it  had the slightest tinge of mala fide but on an over all  examination of the matter the Court feels satisfied  that the arrangement does not suffer from any of  those vices. The arrangement was evolved by the  Election Commission, with the aid of Government  controlled agencies when the constitutional republic of  India was only twelve years old and when no private  trader might have come forward to help the  commission in its work on his expenses. The  Commission has stuck to the arrangement that was  evolved forty years ago. The arrangement does not  confer any material benefits upon anyone and it does  not lead to the profiteering by any individual person,  inasmuch as, M/s. Mysore Paints and Varnishes Ltd. is  a Government concern. In these circumstances, the  purchase of indelible ink by the Commission from the  Government owned company cannot be described as  distribution of any largess by the State.” In Tata Cellular v. Union of India (1994) 6 SCC 651, a three  

Judge Bench of this Court in paragraph 70 of the judgment made  

the following observations:-

“It cannot be denied that the principles of judicial  review would apply to the exercise of contractual  powers by Government bodies in order to prevent  arbitrariness or favouritism.  However, it must be  clearly stated that there are inherent limitations in  

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exercise of that power of judicial review.  Government  is the guardian of the finances of the State.  It is  expected to protect the financial interest of the State.  The right to refuse the lowest or any other tender is  always available to the Government.  But, the  principles laid down in Article 14 of the Constitution  have to be kept in view while accepting or refusing a  tender.  There can be no question of  infringement of Article 14 if the Government  tries to get the best person or the best  quotation.  The right to choose cannot be  considered to be an arbitrary power.  Of course,  if the said power is exercised for any collateral  purpose the exercise of that power will be  struck down.”  

     (emphasis added)

In a more recent decision in Union of India and another v.  

International Trading Co. and another (2003) 5 SCC 437, relating  

to the renewal of the permit granted under the provisions of the  

Maritime Zones of India (Regulation of Fishing by Foreign Vessels)  

Act, 1981, while reversing the decision of the High Court, this  

Court, in paragraphs 22 and 23 of the judgment, held and  

observed as follows:-

“22. If the State acts within the bounds of  reasonableness, it would be legitimate to take into  consideration the national priorities and adopt trade  policies.  As noted above, the ultimate test is whether  on the touchstone of reasonableness the policy  decision comes out unscathed.  

23. Reasonableness of restriction is to be  determined in an objective manner and from the  standpoint of interests of the general public and  not from the standpoint of the interests of  persons upon whom the restrictions have been  imposed or upon abstract consideration.  A  restriction cannot be said to be unreasonable  merely because in a given case, it operates  harshly.  In determining whether there is any  

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unfairness involved; the nature of the right  alleged to have been infringed, the underlying  purpose of the restriction imposed, the extent  and urgency of the evil sought to be remedied  thereby, the disproportion of the imposition, the  prevailing condition at the relevant time, enter  into judicial verdict.  The reasonableness of the  legitimate expectation has to be determined with  respect to the circumstances relating to the trade or  business in question.  Canalisation of a particular  business in favour of even a specified individual is  reasonable where the interests of the country are  concerned or where the business affects the economy  of the country.  (See Parbhani Transport Coop. Society  Ltd. v. Regional Transport Authority, AIR 1960 SC 801,  Shree Meenakshi Mills Ltd. v. Union of India (1974) 1  SCC 468, Hari Chand Sarda v. Mizo District Council,  AIR 1967 SC 829 and Krishnan Kakkanth v. Govt. of  Kerala, (1997) 9 SCC 495.”

      (emphasis added)

Seen in the light of the aforesaid decisions, no objection can  

be taken to high standards and stringent conditions being set up  

for registration as PTOs and the court’s interference would be  

called for only if it is shown that any condition(s) was purely  

subjective or designed to exclude any individual or group of  

private operators/travel agents, i.e., bordering on malice.

After this rather long preface, we now proceed to examine  

the conditions laid down for registration of PTOs in the 2012 Haj  

Policy.  

First of all a young lady appearing-in-person, stated before  

us that she worked as a private operator/travel agent and she  

was aggrieved by clause 4 of the press release for registration of  

Private Tour Operators –  Hajj 2012, that put a restriction over  

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more than one member of a family getting registration as PTO.  

Clause 4 of the press release reads as under:-

“4. In case more than one member of a family  applies which includes wife and dependent children,  only one member of such family will be eligible for  registration for Hajj-2012.”

The lady submitted that though her husband was also in the  

same business but she worked as private operator/travel agent  

separately and independently from her husband.  She further  

submitted that simply because her husband was also in the same  

business, there was no reason to deny her registration as PTO.

In response to the lady’s apprehension, the learned  

Attorney General in his most amiable manner assured the lady  

and the Court that in case more than one member of a family  

satisfied the eligibility conditions and one of them was a woman,  

she would be given preference for registration to the exclusion of  

others and if there was no woman, preference would be given to  

the member of the family who was oldest in the business.   

In regard to clause 4, another objection was raised that it  

does not define “family”  comprehensively and the Court was  

asked to give direction for a comprehensive definition of the term  

“family”. There is no substance in the objection and we find that  

there is sufficient clarity as to what means “family”.  In case  

anyone makes a complaint that in the process of registration  

he/she was eliminated arbitrarily and in a mala fide way by  

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abusing the restrictive provision of clause 4, that complaint may  

be examined on its own merits.  

Minimum     requirement     of     250     sq.     ft.     office     area     (carpet)   

A number of individuals and groups joined in the objection  

against the condition that requires a minimum office area  

(carpet) of 250 sq. ft. and submitted that the condition was  

arbitrary and was aimed at excluding the smaller operators.  It  

was submitted that the requirement of having such a large area  

for office was quite harsh especially for a place like Mumbai.  

This condition must also be viewed keeping the interest of  

the pilgrim as paramount. Learned Attorney General submitted  

that according to the Saudi Regulations, a PTO must be allotted a  

minimum of 50 pilgrims. He further pointed out that Hajj is a  

pilgrimage on foreign soil and it comprises a number of rituals.  

Since a majority of the pilgrims would be going for Hajj for the  

first time, the PTO needs to extensively brief the pilgrims about  

the rituals and the procedure to be followed during Hajj. Separate  

classes for briefing the pilgrims need to be conducted by the PTO.  

Individual agreements are required to be made with the pilgrims  

by the PTO for which the pilgrims need to visit the office of the  

PTO. All logistics including ticketing, accommodation, visa  

processing etc. has to be made by the PTO for which they need  

the presence of pilgrims.  Further, this condition is laid down to  

make sure that only genuine operators approach the Ministry for  

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Hajj quota, i.e. those who have a proper and well maintained  

office and who are genuinely interested in taking the pilgrims to  

Saudi Arabia. The condition was further meant to scrutinize the  

PTOs who sell their quota to other PTOs.  The Attorney General  

stated that during the 2010 Hajj, the Ministry got complaints from  

various quarters regarding black marketing of seats by some of  

the PTOs. It was informed that some of the PTOs after getting  

registration and allocation of seats instead of carrying the  

pilgrims themselves sold the seats to other PTOs. The Ministry  

decided to take action against such unscrupulous PTOs but it  

found that many of them had no offices at all. The addresses  

furnished by them were fake and they were all fly by night  

operators. A genuine PTO should be having an office with a  

reasonable area. The condition is provided to protect the  

interests of the pilgrims.   

On a consideration of submissions made on behalf the  

parties, we see no arbitrariness and unreasonableness in the  

requirement of a minimum office area (carpet) of 250 sq. feet.  

Annual     turnover     of     Rs.1     crore  .

Many objections were raised against the requirement to  

furnish documents showing minimum annual turnover of Rs.1  

crore for the years 2009-2010 or 2010-2011.  

Mr. N. Rao, senior advocate appearing for a group of private  

operators/ travel agents, in course of his submissions, admitted  

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that the turnover on the basis of a quota of 50 Hajj pilgrims alone  

would not be less than Rs.75 lakhs. This means that if a private  

operator/travel agent is asking for a readymade business  

package worth Rs.75 lakhs in turn over he/she should at least  

show a turn over of rupees one crore from his own business.  

Seen, thus, the turn over fixed in the Government policy appears  

to be a modest figure.  

Security     deposit     of     Rs.25     lakhs   

What is stated above in regard to the annual turnover would  

equally apply in respect of the refundable security deposit of  

Rs.25 Lakhs.

In addition, the learned Attorney General pointed out that  

in case any unforeseen situation arises during Hajj, the PTO  

should be financially sound enough to face it.  The Attorney  

General further informed the Court that it was often seen in the  

past that PTOs left the pilgrims in Kingdom of Saudi Arabia and  

what is worse left them unattended even while hospitalised in  

Kingdom of Saudi Arabia. There were instances when pilgrims  

who met with an accident during their stay in Kingdom of Saudi  

Arabia were not given any medical aid or any kind of help or  

assistance. In many cases the PTOs did not provide even the  

promised facilities and this condition was, therefore, necessary to  

keep them under a check.

 We see no unreasonableness in the condition.  

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Court     cases   

The learned Attorney General clarified that a court case  

against a private operator/travel agent that would disqualify  

him/her for registration did not mean a case instituted by him/her  

for enforcement of any constitutional or legal rights. The court  

case that might render a private operator/travel agent ineligible  

for registration means a case instituted against the private  

operator/travel agent as an accused or in regard to some liability  

against him.

On-line     applications      

It may be recorded here that the learned Attorney General  

accepted one of the suggestions made by Mr. P.S. Narasimha,  

learned senior counsel appearing for a group of private operators/  

travel agents, that applications may be made on-line, subject to  

the condition that the on-line application must be complete in all  

respects.

On hearing all sides on the conditions for registration, we  

are satisfied that none of the conditions can be said to be  

arbitrary or unreasonable and the conditions prescribed in the  

Government of India 2012 Haj Policy do not warrant any  

interference by this Court. The 2012 Haj Policy for registration of  

PTO as contained in Annexure P5 to the affidavit filed on behalf of  

the Union of India is, accordingly, approved for the 2012 Hajj.  

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The grant of approval to Annexure P5, however, is not to say  

that there is no scope for improvement in the policy of  

registration for PTOs. We feel that there is a serious omission in  

the policy in that it does not require the applicants for registration  

to disclose the kind of arrangements they proposed to offer to the  

pilgrims and the charges they would levy from the pilgrims. We  

realize that at the stage of applying for registration the applicant  

may give only a basic idea of the standard of arrangements and  

an approximate quotation of charges but even that would provide  

some check against fixing inflated and arbitrary prices on seats  

once registration is granted.  

We would further like to point out that there is another way  

of looking at the process of registration. The Government of India  

has presently adopted an open ended approach under which any  

private operator/travel agent who satisfies the conditions in the  

Haj Policy is found eligible and granted registration. Now, it is  

undeniable that the number of PTOs cannot exceed 900, because  

in that case the number of seats allotted to each of them would  

go below 50, which is impermissible under the bilateral  

agreement. In other words, there is an inbuilt ceiling on the  

number of PTOs. If that be so, why cannot the ceiling be put on a  

more manageable number such as 600 to 700 and selection be  

made from the applicants on a competitive basis applying a  

uniform criteria.

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THE     HAJJ     SUBSIDY   

As regards the Hajj subsidy, from the figures for the past  

19 years given in the affidavit filed by the Union of India, it  

appears that the amount of subsidy has been increasing every  

year. This is on account of increase both in the number of  

pilgrims and the travel cost/air fare.  In the year 1994, the  

number of pilgrims going for Hajj from India was as low as 21035;  

in 2011, the number of pilgrims increased to 125000. In the year  

1994, the cost of travel per pilgrim was only Rs.17000.00; in the  

year 2011, it went up to Rs.54800.00. As a result, the total Hajj  

subsidy that was Rs.10.51 crores in the year 1994 swelled up to  

Rs.685 crores in the year 2011.

The Union of India has justified the grant of subsidy  

stating, in paragraph 21 of the affidavit, as follows:

“The Ministry of Civil Aviation floats a tender to  select an airline to get a competitive fare to ferry the  Haj pilgrims.  For the year 2010, the fare per pilgrim  was Rs.47,675/- and in 2011 was Rs.54,800/-.  The  higher fares charged by the Airlines during the Haj  period vis-à-vis other times of the year is due to  regulations imposed by the Saudi Arabian Authorities  during the Haj period.  The norm is that the Airline  should carry pilgrims to Jeddah and return with zero  load and vice versa. This forces the Airlines to increase  the fares, which otherwise come to around Rs.25,000/.  Therefore, the Government thought it fit to collect a  reasonable fare from the pilgrim and the additional  fare charged because of the Haj specific logistics is  paid by the Government to the airline. The  Government also decided not to pass on and burden  the additional amount charged by the airline, purely  on logistics, to the pilgrims.  During the Haj of 2011,  each pilgrim was charged Rs.16,000/- towards airfare  

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and the additional amount of Rs.38,000/- per Haji is  what is termed “subsidy”.  It is submitted that the  subsidy is given only to those pilgrims who go through  the Haj Committee of India.”  

It is further stated in paragraph 24 that the grant of Hajj  

subsidy by the Government of India was challenged before this  

Court in a petition under Article 32 of the Constitution of India  

registered as Writ Petition (Civil) No.1 of 2007 (Prafull v. Union of  

India). This Court by a reasoned judgment and order dated  

January 28, 2011, dismissed the writ petition upholding the  

constitutional validity of the Haj Committee Act, 2002 and the  

grant of subsidy by the Government of India in the air fare of the  

pilgrims.

From the statement made in paragraph 21 of the affidavit,  

as quoted above, it is clear that the Government of India has no  

control on the cost of travel for Hajj. The air fare to Jeddah for  

traveling for Hajj is increased by airlines to more than double as a  

result of the regulations imposed by the Saudi Arabian  

Authorities. It is illustratively stated in the affidavit that in the  

year 2011, the air fare for Hajj was Rs.58,800/- though the normal  

air fare to and from Jeddah should have been around Rs.25,000/.  

In the same paragraph, it is also stated that for the Hajj of 2011,  

each pilgrim was charged Rs.16,000/- towards air fare. In other  

words, what was charged from the pilgrims is slightly less than  

2/3rd of the otherwise normal fare. We see no justification for  

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charging from the pilgrims an amount that is much lower than  

even the normal air fare for a return journey to Jeddah.

As regards the difference between the normal air fare and  

increased fare, we appreciate the intent of the Government of  

India to provide subsidy to cover the additional burden resulting  

from the stringent regulation imposed by the Saudi Arabian  

Authorities. We also take note of the fact that the grant of  

subsidy has been found to be constitutionally valid by this Court.  

We are also not oblivious of the fact that in many other purely  

religious events there are direct and indirect deployment of state  

funds and state resources. Nevertheless, we are of the view that  

Hajj subsidy is something that is best done away with.

This Court has no claim to speak on behalf of all the Muslims  

of the country and it will be presumptuous for us to try to tell the  

Muslims what is for them a good or bad religious practice.  

Nevertheless, we have no doubt that a very large majority of  

Muslims applying to the Haj Committee for going to Hajj would  

not be aware of the economics of their pilgrimage and if all the  

facts are made known a good many of the pilgrims would not be  

very comfortable in the knowledge that their Hajj is funded to a  

substantial extent by the Government. We remind ourselves that  

the holy Quran in verse 97 in Surah 3, Al-e-Imran ordains as  

under:  

   “ 97. In it are manifest signs (for example), the  

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Maqam (place) of Ibrahim (Abraham); whosoever  enters it, he attains security. And Hajj (pilgrimage to  Makkah) to the House (Ka’bah) is a duty that mankind  owes to Allah, those who can afford the expenses  (for one’s conveyance, provision and residence);  and whoever disbelieves [i.e. denies Hajj (pilgrimage  to Makkah), then he is a disbeliever of Allah], then  Allah stands not in need of any of the Alamin  (mankind, jinn and all that exists).”1 We, therefore, direct the Central Government to  

progressively reduce the amount of subsidy so as to completely  

1 The Noble Qur’an (English Translation of the meaning and commentary) published by  The Ministry of Islamic Affairs, Endowments, Da’wah and Guidance of the Kingdom of  Saudi Arabia which supervises King Fahd Complex For The Printing of The Holy Qur’an in  Madinah Munawwarah.

On being asked the meaning of the word “Al Sabeel’ occurring in the verse, the Prophet is reported to  have said, ‘provisions for journey and the means of transport’ (Bulughul Muram by Ibne Hajr, 667 &  713: Jassas Razi, Ahkam-ul-Quran, Darul-Kitab-ul-Arabi Vol. 2 Page 23: also in Tafseer Ibne Kaseer  published by Tameer-e-Insaniyat, Urdu Bazar, Lahore , Vol. 1  Pages 458-459).

On being asked when Hajj becomes obligatory, the Prophet is reported to have said when the  provisions of journey and the mode of transport are available.  (Tirmizi 813).

It is related that people from Yaman used to come for pilgrimage without any provisions with them,  saying that they were people trusting in God and when they came to Makkah, they resorted to  begging: The holy Qur’an   thus addressed this issue in Verse 197 Surah 2. Al-Baqarah (Bukhari,  1523).

197. The Hajj (pilgrimage) is (in) the well-known (lunar year) months (i.e. the 10th month, the  11th month and the first ten days of the 12th month of the Islamic calendar, i.e. two months  and ten days). So whosoever intends to perform Hajj therein (by assuming Ihram), then he  should not have sexual relations (with his wife), nor commit sin, nor dispute unjustly  during the Hajj.  And whatever good you do, (be sure) Allah knows it. And take a  provision (with you) for the journey, but the best provision is At-Taqwa (piety,  righteousness).  So fear Me, O men of understanding!   

Hajj is obligatory when one has control over expenses of traveling and mode of transport whether  as owner or on hire.  Borrowing or using the means owned by someone else is impermissible.  If  someone offers gift for going for Hajj one is within rights to accept or reject the offer. The  expenses of traveling and mode of transport means that one should have, besides a house for  residence, clothes, household articles, sufficient money for traveling to Makkah and for coming  back;  if there are any loans, to repay them and to leave behind sufficient money for expenses on  those dependent upon him. (Fatawa-e-alamgiri edited and corrected by Abdul Latif Hasan Abdul Rehman Darul Kutubul Ilmiya  Beirut, Lebanon 2000 Vol. 1   Page 240).  

See also: the Religion of Islam by Maulana Mohammad Ali S. Chand and Company Pages 525-526.

See also:  Kitab-ul-Fiqh by Abdul Rehman Al Jazeeri translated by Mr. Manzoor Ahsan Abbassi,  published by Mehqama Auqaf Punjab, Lahore, 1977 Pages 1034-1035.

See also: Qamusool Fiqh by Khalid Saifulla Rehmani, Kutubkhana Naiyeemya Deoband 206, Vol. 3  Pages 195-196.   

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eliminate it within a period of 10 years from today.  

The subsidy money may be more profitably used for  

upliftment of the community in education and other indices of  

social development.  

Before leaving the issue of Hajj subsidy, we would like to  

point out that as the subsidy is progressively reduced and is  

finally eliminated, it is likely that more and more pilgrims would  

like to go for Hajj through PTOs.  In that eventuality the need may  

arise for a substantial increase in the quota for the PTOs and the  

concerned authorities would then also be required to make a  

more nuanced policy for registration of PTOs and allocation of  

quotas of pilgrims to them.  For formulating the PTO policy for the  

coming years, the concerned authorities in the Government of  

India should bear this in mind. They will also be well advised to  

invite and take into account suggestions from private operators/  

travel agents for preparing the PTO policy for the future.  

THE     GOODWILL     HAJJ     DELEGATION   

The issue of the Goodwill Hajj Delegation raises two  

questions; one in regard to the reasonableness and justification  

for sending an official delegation on the occasion of Hajj and the  

other about its composition and the manner in which people are  

nominated as members of the official delegation. In the affidavit  

of the Union of India, it is stated that the Goodwill Delegation was  

first sent to Saudi Arabia in the year 1967 and since then the  

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delegation is being sent every year. The primary purpose of the  

delegation, according to the affidavit, is “to convey goodwill on  

the auspicious occasion of Hajj to the Government of Saudi  

Arabia as well as to the Indian Pilgrims”. It is further stated that  

the delegation interacts with the Hajj pilgrims from India,  

understands their issues and takes up the same with the Saudi  

Arabian authorities. The delegation addresses these issues in  

their meeting with the Minister of Hajj, Saudi Arabia and the  

Governor of Makkah.  The delegation also has regular meetings  

with the Indian Hajj mission and the Hajj authorities of Saudi  

Arabia. A report is submitted to the Government about the  

conduct of Hajj and recommendations for a better Hajj in the  

ensuing year.

In the affidavit, it is further stated that a similar but much  

smaller delegation comprising no more than five to eight  

members is sent by Bangladesh. The Bangladesh delegation  

usually consists of Minister of Hajj, Secretary (Hajj), people  

working in the Islamic Organizations and one or two standing  

members of Parliamentary Committee relating to Hajj/Religious  

Affairs. The number of Hajj pilgrims from Bangladesh in the year  

2011 was one lakh fifty thousands.  Pakistan does not send any  

official Hajj Delegation.

As to the size of the delegation and the manner of  

nomination of its members, from the affidavit it appears that in  

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1967 the Goodwill Delegation consisted of three members. Till  

1973, there was no material increase in its size and till 1987 the  

number of its members remained under ten. Thereafter, the  

delegation started steadily increasing in size and in 1997 the  

Goodwill Delegation was of 31 members. In the year 2005, there  

were 36 members in the delegation and in the year 2010 the  

number of its members was 30. In the year 2011, the number  

was marginally reduced to 27.   

In pursuance of our direction, the affidavit also gives a list of  

the members of the Goodwill Hajj Delegation for the years 2002  

to 2011. The affidavit does not disclose any criteria or guidelines  

on the basis of which persons are selected for being included in  

the Goodwill Delegation. From the list of the members of the  

Goodwill Delegation for a period of 10 years no rational basis is  

discernible for selecting members for the delegation. The list  

shows a disparate group of persons randomly put together from  

various professions and walks of life. What is more surprising is  

that there are some people who were able to go as member of  

the Goodwill Delegation more than once, some even three or four  

times. In the absence of a reasonable basis the nomination to the  

Goodwill Delegation evidently works on patronage and granting  

of favours. On the basis of the materials brought to our notice we  

have no doubt that the way people are nominated as members of  

the Goodwill Delegation is in complete violation of Article 14 of  

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the Constitution.  

            Now coming back to the reasonableness and  

justification for sending an official Goodwill Delegation for Hajj, it  

is noted above that the first such delegation was sent in the year  

1967. The sending of the Goodwill Hajj Delegation from India for  

the first time in the year 1967 was not by accident or chance and  

those whose memory goes back to that year would recall the  

circumstances in which the official Goodwill Delegation on the  

occasion of Hajj was first sent to the Kingdom of Saudi Arabia. It  

is no secret that after the 1965 war Pakistan tried to use even the  

Hajj pilgrimage for anti-India propaganda and the purpose of  

sending the Goodwill Delegation was to meet the anti-India  

propaganda.  

The reason for which the delegation was first sent has long  

ceased to exist and Pakistan is no longer sending any official  

Goodwill Hajj Delegation to Saudi Arabia. It may, however, be  

contended that with the passage of time the purpose of the  

delegation has changed in the changed circumstances the  

delegation serves other objects and purpose. As a matter of fact  

in the affidavit filed by the Union of India the sending of the  

Goodwill Hajj Delegation is justified on two other counts (1) to  

convey goodwill to the Government of Saudi Arabia as well as to  

the Indian pilgrims and (2) to oversee and facilitate reason the  

arrangements made for pilgrims that go for Hajj through the Haj  

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Committees. Dealing first with the second reason, we are  

constrained to say that it appears quite unconvincing. In the  

earlier paragraph of the affidavit of the Union of India, it is stated  

that Hajj is one of the most complex organizational tasks  

undertaken by Government of India outside its borders. It is  

further stated that all arrangements for the Hajj of pilgrims are  

coordinated by the Consulate General of India, Jeddah and the  

Embassy of India, Riyadh.  Haj Committee of India, established  

under the Haj Committee Act, 2002 is responsible for making the  

arrangements for pilgrims performing Hajj through them.  It is,  

thus, to be noted that the making of arrangements for the  

pilgrims is the duty and responsibility of Haj Committee of India,  

a statutory body constituted under an Act of the Parliament. The  

arrangements are further over seen by the Consulate General of  

India, Jeddah and the Embassy of India, Riyadh. The  

arrangements are, thus, looked after by competent professional  

people and any intervention by a disparate group of persons  

themselves going to Saudi Arabia for the first time is bound to  

create more confusion than being of any help in making any  

proper arrangements for the ordinary pilgrims numbering over  

125,000.  We are unable to accept the second reason given as  

justification for sending the Goodwill Hajj Delegation.  

Coming now to the first reason, that is, to convey goodwill  

to the Government of Saudi Arabia as well as to the Indian  

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pilgrims, we fully appreciate the idea of the people of India  

extending their goodwill to the Kingdom of Saudi Arabia on the  

auspicious occasion of Hajj but we completely fail to see how  

even that purpose can be served by sending such a large,  

unwieldy, amorphous and randomly selected delegation.  

On a careful consideration of the issue we are quite clear  

that the present practice of sending Goodwill Hajj Delegation  

must come to stop. If the Government of India wishes to send a  

message of goodwill to the Kingdom of Saudi Arabia on the  

occasion of Hajj it may send a leader and a deputy leader and if  

there be any need to present any group from India for any formal  

event in the course of Hajj the leader may, in consultation with  

the Indian Ambassador and Consul General, constitute a group of  

ten Indians from among the very large number of Indian pilgrims  

who are there at their own expense. It is to be kept in mind that  

over a lakh and fifty thousand pilgrims go for Hajj paying for their  

own expenses. The Indian Ambassador in Saudi Arabia and  

perhaps more than him, the Consul General at Jeddah would  

know about the arrival of many distinguished, learned and  

important Muslims among them and with the assistance of the  

Ambassador and the Consul General, the leader of the two  

member official team would be able to form a far more  

appropriate and representative Indian team from amongst them  

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than a motley delegation whose members are selected on  

irrelevant considerations.

In this interim order we have primarily dealt with the issues  

of PTOs, Hajj Subsidy and the Goodwill Hajj Delegation. There are  

other issues which we propose to deal with in due course.  

In the affidavit filed on behalf of the Union of India, it is  

stated that from the overall number of 1,70,000 pilgrims fixed  

under the bilateral agreement, the Government of India sets  

apart a quota of 11,000 seats to be reserved for the following  

categories:-

“(i) Khadim-ul-Hujjaj (to assist Pilgrims in Saudi  Arabia) selected by the State Haj  Committees (300)

(ii) Mehram (women who get selected in the  Qurrah but must have an accompanying  male member as per Saudi Law) (400)

(iii) The community of Bohras (2,500) (iv) States/ Union Territories on special  

consideration e.g., Jammu and Kashmir  (1,500) and Lakshadweep (239)

(v) States/Union Territories with Hajj  applications in excess of Quota (2,500),

(vi) Haj Committee of India (500) and (vii) Government of India (3,061)”

We would like to know in greater detail how the special quotas  

under the heads (i) to (vii) are allocated.  It may be noted that in  

paragraph 8 of the affidavit it is stated that the quota of  

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Government of India (3061 for this year) is allocated to  

unselected/waitlisted applicants before the Haj Committees on  

recommendation by dignitaries and eminent persons. We have  

some initial reservations on allocation of seats on  

recommendation by dignitaries and eminent persons.    

We direct the Union of India to file further affidavit stating  

in greater detail the way the quota of 11,000 seats is being  

allocated for 2012 Hajj.  

We would also like to know in greater detail the procedure  

followed by the Haj Committee of India and the state Haj  

committees in making selection for sending pilgrims for Hajj. We  

would specially like to examine the functioning of the Haj  

Committees of the States where the number of applicants  

exceed the quota allotted for the state.  

We direct the Haj Committee of India to file a detailed  

affidavit giving full details of the process of selection of pilgrims  

from the applications made to the State Haj Committees.  The  

affidavit should also give details of the charges realized from  

the pilgrims and the facilities made available to them.

Haj Committees of the States of Maharashtra, Kerala and  

Karnataka are directed to be impleaded as respondents.  Let  

notice go to them with a direction to file affidavits giving details  

of the selection process and stating stage wise how selections  

are being made for sending pilgrims for the 2012 Hajj, what  

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amounts are charged from each pilgrim and what facilities are  

provided to them.   

The affidavits, as directed above, must be filed within two  

months from today.  

Put up on July 23, 2012.  

SLP(C)     Nos.     33190-33217     of     2011   

In view of the order passed in SLP(C) No.28609/2011,  

these special leave petitions have become infructuous and are  

disposed of as such.  

IAs     by     private     operators  .

In view of the order passed in SLP(C) No.28609/2011, all  

interlocutory applications filed by private operators/travel  

agents raising objections to the Government of India 2012 Haj  

Policy stand disposed of.

TP(C)     Nos.191/2012,     192/2012,     196/2012,     197/2012,    

198/2012,     199/2012  .  

In view of the order passed in SLP(C) No.28609/2011, the  

transfer petitions are rendered infructuous and stand disposed  

of accordingly.  

………………………………….……J. (Aftab Alam)

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…………………………………….…J. (Ranjana Prakash  

Desai) New Delhi; May 08, 2012.  

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