AL ISMAIL HAJ TOUR Vs. UNION OF INDIA

Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Civil), 425 of 2016, Judgment Date: Jul 08, 2016

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

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

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

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.

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:

(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 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 2013[2].

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. 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 4.24[3]
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

“(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

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.”

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
India[4] and directed that the case of the petitioner be considered in
accordance with the decision of this Court.

Thereafter, a number of press releases came to be issued, significant of
them are on 29.04.2016[5], 21.05.2015[6], 06.05.2016 and 21.05.2016.

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 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:-

“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.

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
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 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 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 2002[7], after the
Government of Saudi 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 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 required[8].
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 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 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 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 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 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
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 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.

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

-----------------------
[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.

[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

[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.

[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.”

[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.”

[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-

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.

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.

[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.

-----------------------
27

Back to Judgments