REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.631 OF 2016

UNITED AIR TRAVEL SERVICES Through ITS PROPRIETOR A.D.M. ANWAR KHAN           ….PETITIONER

Versus

UNION OF INDIA Through SECRETARY (MINISTRY OF EXTERNAL AFFAIRS)         ….RESPONDENT

WITH

Writ Petition (Civil) No.636 of /2016

Writ Petition (Civil) No. 634 of 2016

Writ Petition (Civil) No. 934 of 2016

Writ Petition (Civil) No. 941 of 2016

Writ Petition (Civil) No. 938 of 2016

Writ Petition (Civil) No. 11 of 2017

Writ Petition (Civil) No. 94 of 2017

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J U D G M E N T

SANJAY KISHAN KAUL, J.

1. A  batch  of  writ  petitions  raises  the  issue  of  Private  Tour

Operators (for short ‘PTOs’) who are, inter alia conducting the travel

business  for  Hajj and  Umrah being  disqualified  for  grant  of

registration for the year 2016 for the Hajj pilgrimage.  The prayer is for

quashing the identical communications dated 27.7.2016 issued by the

respondent rejecting the application of the petitioners for registration

and allocation of quota for the Hajj 2016 on the ground that they have

not complied with certain clauses of the policy for the PTOs as laid

down by this Court.

2. The issue relating to the Hajj policy and the registration of these

PTOs has resulted in two judicial  pronouncements by this  Court  in

Union of India v. Rafique Shaikh Bhikan1 and Al Ismail Haj Tour v.

Union of India2.  The policy presented on behalf of the Government

was approved by this Court with slight modifications and was annexed

as  Appendix-I  to  the  order  in  Union  of  India  v.  Rafique  Shaikh

1(2013) 4 SCC 699 2(2016) 15 SCC 246

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Bhikan3 case referred to aforesaid to be called as ‘Policy for Private

Tour Operators for hajj 2013 – 2017’.  The policy was to remain valid

for a period of five years and was not to be questioned in any court or

authority.  The petitioners were all eligible to be qualified as PTOs for

the year 2015 for  Hajj  pilgrimage but in the process of draw of lots

dated 7.8.2015, luck did not  favour them and they thus did not get

quota.  The relevant extract of the policy is as under:

“Appendix I

Ministry of External Affairs

(Gulf and Haj Division)

***

Registration of Private Tour Operators — Haj 2013

The Government of Saudi Arabia has notified that Private Tour Operators (PTOs) registered with the Government of India and involved in the preparation of the Haj Pilgrimage will be eligible for grant of Haj group visas subject to fulfilment of other terms and conditions as laid down by the Saudi Authorities.

2. Applications are invited from eligible PTOs for registration for Haj 2013. The eligibility criteria are at Annexures A and B. The  applications  must  be  submitted  in  the  prescribed  format (Annexure C) directly to MEA or any other agency appointed by it.

3(supra)

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3. It  is  to be noted that  the Government of  Saudi Arabia has stipulated  that  effective  Haj  2013,  a  PTO should  facilitate  at least  150  pilgrims.  Accordingly,  the  PTO  Policy  has  been reframed. For registration and allotment of quota of Haj seats for Haj 2013, interested PTOs may apply under the following two categories:

Category I PTOs registered with MEA and facilitated Hajis at least for 7 Haj operations or more.

Category II PTOs registered with MEA and facilitated Hajis for at least for 1 to 6 Haj operations and PTOs which have facilitated at least 50 umrah pilgrims in a year for any five years.

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:

(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.

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5. This Policy is expected to remain valid for five years 2013- 2017 unless there are substantive developments which affect it. The allocation of seats to qualified PTOs in each category will be done every year on the basis of the overall quota of PTO seats specified in the Annual India-Saudi Arabia Haj Agreement and the number of qualified PTOs remaining in each category.  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 take a minimum of 150 Hajis or are unable to do so, need not apply.

6.  Last  date  for  receipt  of  applications  which  should  be addressed to the MEA or any other agency appointed by it.

(emphasis supplied)

3. In  terms  of  the  aforesaid  policy  since  the  qualified  PTOs

exceeded 90, a draw of lots was held.  Further, since the petitioners

were not successful in the draw of lots, they were entitled, under clause

4(b) of the policy aforesaid, to be allocated 150 seats in the ensuing

year without Qurrah if they remain qualified as PTOs.  We may note at

this  stage  that  as  per  the  submissions  advanced,  in  view of  certain

changes in the policy of the Saudi Government, the number of seats to

be allocated for 2016 would have been 50.

4. It is also apparent from the Press Release of 7.8.2015 giving the

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list  of  PTOs  who  have  qualified  but  did  not  get  quota,  that  the

petitioners figured in the said list.

5. On 29.4.2016,  the  Ministry  of  External  Affairs  published  the

norms for registration of PTOs for Hajj 2016.  Para 3 of this reads as

under:

“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. The aforesaid,  thus,  provided that  persons  like the petitioners

who had qualified for the year 2015 but were not successful in the

draw  of  lots  would  have  the  benefit  of  exemption  of  terms  and

conditions contained in clauses (vii), (x), (xi) and (xii) of Annexure A.

7. For  purposes  of  completion  of  record,  we  enumerate

hereinbelow the said clauses of Annexure A:

“ANNEXURE-A Terms and Conditions for Registration of

Private Tour Operators (PTOs) for Haj-2016

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Each PTO should establish that it is a genuine and established Tour  Operator  having  experience  in  sending  tourists/pilgrims abroad for which it should produce the following documents:

Sl. No. Terms and Conditions vii Proof  of  payment  made  through  banking  (Bank

Statement)  or  other  authorized  channels  towards purchase of  tickets and hiring of  accommodation in Makkah/Madinah  for  the  financial  year  2013-14 (Haj2013) or 2014-15 (Haj 2014). Payments towards purchase  of  tickets,  hiring  of  accommodation  for pilgrims  in  Makkah/Madinah,  by  any  other  means, would not be accepted.

x Copies of Registration Certificate issued to the PTO in support their aim-wise and PTO-wise.

xi Contract  for  hiring  of  buildings  for  pilgrims  and “Tasreeh”  together  with  English  translations  PTO category wise.  (Please  enclose rental  receipts  and a copy of lease deed, duly signed with the Saudi owners for Haj.

xii Copy of Munazzim Card and relevant Haj visa pages of the Passport of the Proprietor/Owner.

8. The  petitioners,  however,  faced  identical  rejection  letters  of

26.7.2016 (sent through e-mail dated 27.7.2016), the contents of which

are as under: “Subject: Intimation regarding non-allocation of quota to Private Tour Operators (PTOs) for Haj-2016.

Dear Sirs,

This has reference to your application regarding registration for Haj 2016.

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2. On scrutiny of your application submitted for Haj-2016, your firm has not been found eligible for registration and allocation of quota for Haj 2016 on the following grounds:

PTO has not complied with clause vii, x, xi and xii of Annexure A of PTO.

Policy as laid down by Hon’ble Supreme Court for any one of the Haj year.

3. Your ineligibility for registration and allocation of quota for Haj 2016, however, does not prejudice your right to debar you from applying for registration for Haj 2017 on the basis of the required conditions for Haj 2017.”

9. A bare perusal of the aforesaid letter would show that the reason

cited for disqualification was non-compliance of the very clauses of

which exemption had been granted to the petitioners.

10. Learned  Additional  Solicitor  General  appearing  for  the

respondents  could  not  dispute  the  aforesaid  position  but  sought  to

canvas that the reasons were wrongly communicated in the rejection

letter, and there was actually, some other reason for the rejection.  The

aforesaid  plea  can  hardly  be  countenanced  in  view  of  the  reasons

referred to and communicated.

11. Learned counsel for the petitioner has, thus, rightly drawn our

attention  to  the  Constitution  Bench  judgment  of  this  Court  in

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Mohinder Singh Gill  v.  Anr.  v.  The Chief  Election Commissioner,

New Delhi & Ors.4 to submit that such a plea cannot be accepted.  We

may note  that  this  is  a  well  settled  legal  position  in  many judicial

pronouncements of this Court, but it is not necessary to revert to the

same.  In para 8 of the aforesaid judgment, V.R. Krishna Iyer, J, in his

inimitable style states as under:

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must  be  judged  by  the  reasons  so  mentioned  and  cannot  be supplemented  by  fresh  reasons  in  the  shape  of  affidavit  or otherwise. Otherwise, an order bad inthe beginning may, by the time it comes to Court on account of a challenge, get validated by additional  grounds later  brought  out.   We may here  draw attention to the observations of Bose, J. in Gordhandas Bhanji:

“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently  given  by  the  officer  making  the  order  of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the  actings  and  conduct  of  those  to  whom  they  are addressed  and  must  be  construed  objectively  with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older.”  

12. The  aforesaid  legal  position,  thus,  makes  the  stand  of  the

4(1978) 1 SCC 405

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respondent unsustainable,  resulting in the quashing of the impugned

letters of rejection.

13. The question, however, rises what relief can be granted in such a

situation.  The passage of time has made certain reliefs infructuous.

The time period for conducting Hajj tours for 2016 as well as 2017 is

over.  Thus,  even the alternative relief prayed for 2017 has become

infructuous.  In three of the writ petitions, i.e., WP (C) Nos.631/2016;

634/2016  &  636/2016,  there  is  a  specific  alternative  plea  for

compensation to the petitioners for the loss accrued due to non-grant of

registration for the Hajj of 2016.  While there is no such specific plea

in the other writ petitions, given the identical situation, we are of the

view that the same principle ought to be applied in all these cases.  The

petitioners  cannot  be  left  remediless.   The  mindless  action  of  the

respondents in rejecting the eligibility of the petitioners for the year

2016 on the very grounds on which they were exempted necessitates

that the petitioners should be entitled to damages in public law so that

they are compensated, at least, to some extent for not having been able

to  carry  on  with  their  business  on  account  of  illegal  action  of  the

respondents.

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14. The  principles  of  damages  in  public  law  have  to,  however,

satisfy  certain  tests.  In  Nilabati  Behera  v.  State  of  Orissa5,  it  was

observed that public law proceedings serve a different  purpose than

private law proceedings.  In that context, it was observed as under:

“The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which  aims to protect their interests and preserve their rights. Therefore,  when  the  court  molds  the  relief  by  granting ‘compensation’ in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State  which  has  failed  in  its  public  duty  to  protect  the fundamental rights of the citizen.  The payment of compensation in  such  cases  is  not  to  be  understood,  as  it  is  generally understood in a civil action for damages under the private law but  in  the  broader  sense  of  providing  relief  by  an  order  of making ‘monetary amends’ under the public law for the wrong done  due  to  breach  of  public  duty,  of  not  protecting  the fundamental  rights  of  the citizen.  The compensation  is  in  the nature of ‘exemplary damages’ awarded against the wrong doer for the breach of its public law duty and is independent of the rights  available  to  the  aggrieved party to  claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

It was also emphasized that it is a sound policy to punish the

wrongdoer and it is in that spirit that the courts have molded the relief

5 (1993) 2 SCC 746

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by  granting  compensation  in  exercise  of  writ  jurisdiction.   The

objective  is  to  ensure  that  public  bodies  or  officials  do  not  act

unlawfully.  Since the issue is one of enforcement of public duties, the

remedy  would  be  available  under  public  law  notwithstanding  that

damages are claimed in those proceedings.

15. The aforesaid aspect was, once again, emphasized in  Common

Cause, a Registered Society v. Union of India6.  We may also usefully

refer to N. Nagendra Rao & Co. v. State of A.P.7 qua the proposition

that the determination of vicarious liability of the State being linked

with the negligence of its officer is nothing new if they can be sued

personally for which there is no dearth of authority.

16. In the facts of the present case, the arbitrariness and illegality of

the action of  the authority is writ  large.   The petitioners have been

deprived of their right to secure the quota on a patently wrongful order

passed for reasons, which did not apply to them and for conditions,

which  had  been  specifically  exempted.   What  could  be  a  greater

arbitrariness and illegality?  Where there is such patent arbitrariness

and illegality, there is consequent violation of the principles enshrined

6 (1999) 6 SCC 667 7 (1994) 6 SCC 205

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under Article 14 of the Constitution of India.  The facts of the present

case are, thus, undoubtedly giving rise to the satisfaction of parameters

as a fit case for grant of compensation.

17. On a conspectus of the aforesaid facts including the number of

pilgrims for whom the petitioners would have been entitled to arrange

the  Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be

adequate compensation for the loss suffered by them and sub-serve the

ends  of  justice.   We  are  conscious  of  the  fact  that  there  is  no

quantification based on actual loss, but then the award by us is in the

nature of damages in public law.

18. The  amount  for  each  of  the  petitioners  be  remitted  by  the

respondents  within  two  months  from  the  date  of  this  order  failing

which the amount would carry interest @ 15 per cent per annum apart

from any other remedy available to the petitioners.  It will be open to

the respondents to recover the amount of damages and costs from the

delinquent officers responsible for passing such unsustainable orders.

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19. The writ petitions are allowed in the aforesaid terms with costs

quantified at Rs.10,000 per petition.

..….….…………………….J.     [J. Chelameswar]

              ...……………………………J.         [Sanjay Kishan Kaul]

New Delhi. May 07, 2018.

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