(2016) 15 SCC 248
Order dated 7-8-2014
(Before Ranjan Gogoi and M.Y. Eqbal, JJ.)
SLP (C) No. 20743 of 2014
1. Heard Mr Neeraj Kishan Kaul, learned Additional Solicitor General appearing for the petitioners and Mr K.V. Viswanathan, learned Senior Counsel appearing on behalf of the caveator respondents and perused the relevant material.
2. It is not necessary for us to go into the merits of the controversy for the reason that Mr K.V. Viswanathan, learned Senior Counsel appearing for the respondent Association representing the Private Tour Operators (PTOs) had made a statement, on instructions received from the General Secretary of the respondent Association who is present in Court, that for the present year its members, who are qualified Tour Operators under the Haj Policy of 2013, would be complying with the requirement of the Circular dated 28-4-2014 insofar as turnover of Rs 1 crore for the year 2012-2013 is concerned. This, however, would be without prejudice to their rights in the future. Subject to the above and upon compliance with all other requirements under the Circular dated 28-4-2014, the cases of the members of the Association for release of quota be considered within the time-frame as laid down.
3. Mr Neeraj Kishan Kaul, learned Additional Solicitor General has raised an issue as to whether the Bombay High Court would have been competent to decide the matter in view of the order dated 16-4-2013 passed by this Court in Union of India v. Rafique Shaikh Bhikan (2013) 4 SCC 699. The aforesaid contention would be considered as and when necessary in an appropriate case.
4. The special leave petition is disposed of in the above terms.
(2016) 15 SCC 249 (1)
Order dated 12-5-2015
(Before Ranjan Gogoi and M.Y. Eqbal, JJ.)
IAs Nos. 33 and 36 of 2015 in SLP (C) No. 28609 of 2011
IA No. 33 of 2015 in SLP (C) No. 28609 of 2011
5. Looking into the statement made in Para 13 of the present application for clarification of Court's earlier order dated 16-4-2013 (2013) 4 SCC 699 and after hearing the learned counsel for the parties, we clarify the said order to mean that for future Haj years documents will be provided by PTOs for the corresponding future years in the following manner:
For Haj 2015
-
Documents of FY 2012-2013 (i.e. Haj 2012) or 2013-2014 (i.e. Haj 2013)
For Haj 2016
-
Documents of FY 2013-2014 (i.e. Haj 2013) or 2014-2015 (i.e. Haj 2014)
For Haj 2017
-
Documents of FY 2014-2015 (i.e. Haj 2014) or 2015-2016 (i.e. Haj 2015)
6. The application is disposed of in the above terms.
IA No. 36 of 2015 in SLP (C) No. 28609 of 2011
7. In view of the order dated 12-5-2015 passed by this Court in IA No. 33 of 2015 in Special Leave Petition (Civil) No. 28609 of 2011, no orders are called for in this application. IA No. 36 of 2015 is disposed of accordingly.
(2016) 15 SCC 249 (2)
Order dated 23-7-2015
(Before Ranjan Gogoi and N.V. Ramana, JJ.)
Writ Petitions (Civil) No. 344 of 2015 with Nos. 352-56, 358, 361-63, 366, 395, 403, 405, 408, 410, 412-13, 415 of 2015
8. The writ petitions are not being entertained any further. This is on the sole ground that though disqualified way back in August 2014, the writ petitions have been filed in June 2015 and were posted before the Court on 8-7-2015. The final list of PTOs for Haj 2015 has to be finalised by 31-7-2015 so that the Haj pilgrims can avail of the services and go for the pilgrimage. There is no explanation why the petitioners have come to the Court after a long gap of ten months. In such circumstances, we refuse an adjudication to the petitioners on merits. However, this order would not come in the way of the petitioners being considered on the basis of the required documents for Haj 2016 along with other applicants. We also make it clear that in the event any of the petitioners are found ineligible for Haj 2016, such ineligibility will be recorded in the reasoned order which will be made available to the aggrieved persons.
9. The writ petitions are disposed of in the above terms.
(2016) 15 SCC 250
Judgment dated 18-5-2016
(Before Abhay Manohar Sapre and Ashok Bhushan, JJ.)
Writ Petitions No. 239 of 2016 with Nos. 831, 844-45 of 2015, 64, 70-72, 166, 211, 246, 262-63, 279-80, 286, 310, 317-20, 325, 328, 344, 360, 362-64 and 368-69 of 2016
The Judgment of the Court was delivered by
Abhay Manohar Sapre, J.— This decision shall dispose of all the writ petitions because as stated by the learned counsel appearing for the parties, all these writ petitions essentially involve common issues.
11. These writ petitions are filed by the writ petitioners under Article 32 of the Constitution of India for claiming the following reliefs:
“(a) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to accept application for registration and issue registration certificate as PTO under Category II for conducting Haj Tour, 2016;
(b) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to consider the right of first registration to the petitioner for conducting Haj Tour, 2016-2017;
(c) Pass such other and further orders as this Hon'ble Court may think fit in the interest of justice and equity.”
12. The writ petitioners are Private Tour Operators (PTOs) who are sending pilgrims for Haj. According to them, they are duly registered and qualified Tour Operators who have so far undertaken several tours for Haj successfully in the past and there is nothing against any of them, which may debar them from undertaking the similar tour this year also which is essentially a tour for the benefit of pilgrims going for Haj.
13. It appears from the reading of the writ petitions that these writ petitioners have a grievance based on some kind of apprehension that their applications, if made or those which are pending with the authorities for grant of permission to undertake Haj Yatra for the current year 2016, are likely to be rejected or would be rejected thereby making their apprehension a reality and grievance infructuous. It is essentially with this kind of apprehension asserted in the writ petitions, these writ petitions are filed for grant of the aforementioned reliefs.
14. Shri Neeraj Kishan Kaul, learned Additional Solicitor General appearing for the respondent Union of India at the very outset fairly made a statement that so far no decision has been taken on any of the applications made by these PTOs (writ petitioners) by the authorities. The learned counsel also stated that let each writ petitioner make a fresh application for grant of permission with necessary details and documents as prescribed latest by 27-5-2016 to the authorities concerned and each such application once made would be examined, considered and decided in accordance with law on its individual merits by the authorities concerned and reasoned order would be passed on each such application latest by 29-6-2016 under intimation to each applicant.
15. Though the learned counsel for the writ petitioners and the learned Additional Solicitor General argued the matter with reference to previous orders passed by this Court on the issues sought to be raised, we are not inclined to go into any of these questions because as mentioned above, it is not necessary to go into it at all in the light of the statement made by the learned Additional Solicitor General. We, therefore, express no opinion on any of the issues.
16. The learned counsel appearing in three writ petitions, namely, Writ Petitions Nos. 262, 263 and 364 of 2016, however, made attempt to urge that the cases of these three writ petitions involve some different point. We have heard the learned counsel and find that at this stage it is not necessary to go into the merits of writ petitions.
17. In the light of the 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 Haj for the year 2016 on or before 27-5-2016 to the prescribed authority.
18. On such application(s) being made, the authority concerned 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 v. Rafique Shaikh Bhikan (2013) 4 SCC 699, order dated 7-8-2014 passed in Union of India v. All India Haj Umrah Tour Organizers Assn., order dated 7-8-2014 passed in Jeddah Travels & Jeddah Hajj Group v. Union of India (2014) 14 SCC 378, order dated 12-5-2015 passed in Union of India v. Rafique Shaikh Bhikan and order dated 23-7-2015 in Alban Hajj Umrah Service v. Union of India.
19. Let the applications be decided by the authority concerned by passing a reasoned order on each application on or before 29-6-2016 and the order so passed be communicated to each applicant (writ petitioner) immediately.
20. The writ petitions are disposed of.
(2016) 15 SCC 252
Judgment dated 8-7-2016
(Before Jasti Chelameswar and Abhay Manohar Sapre, JJ.)
Writ Petitions (Civil) No. 425 of 2016 with Nos. 371, 426-31, 433, 435, 437-38, 440-41, 444, 447, 449-52, 455-58, 460-63, 465-68, 473-74, 479-81, 487-88, 491, 494-96, 498, 500-501, 503-505, 511, 541-46, 548, 550, 552-56 of 2016
The Judgment of the Court was delivered by
Jasti Chelameswar, J.— This Court by its judgment in Union of India v. Rafique Shaikh Bhikan (2013) 4 SCC 699 (hereinafter Rafique Shaikh Bhikan, 2013), approved a policy (with some modification) framed by the Government of India for the registration of Private Tour Operators (PTOs) for Haj, 2013 (hereinafter 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”.
22. The modified and Approved Policy is appended to the judgment as Appendix ‘I’ 2013-2017”. It shall remain valid for five years and shall not be questioned before any court or authority.” [Rafique Shaikh Bhikan case, (2013) 4 SCC 699. 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, 2013-2017”—valid for five years.
23. Under the Approved Policy, 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 PTOs who had facilitated at least 50 umrah pilgrims in a year for any five years.
24. Obviously, the requisite experience for a PTO to be categorised 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.
25. There is no separate scheme or statute regulating 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 authorised 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.
26. 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.
27. 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.”
28. This batch of writ petitions are filed by 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.
29. 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).
30. 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 the petitioner was allotted any quota in any one of those years, except a vague statement at Para 4.24 4.24. That on 1-8-2015, 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 of the writ petition.
31. Coming to Writ Petition (C) No. 501 of 2016, the petitioner apparently belongs to Class II of 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.
32. 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 Para 1 of Press Release dated 6-5-2016 by withdrawing second para of Para 2 of Press Release dated 21-5-2016;
(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 Clauses (vii), (x), (xi) & (xii) of Annexure A of the PTO Policy for Haj, 2013 and Haj, 2014.”
Prayer in Writ Petition (Civil) No. 441 of 2016
“(a) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent to grant registration to the petitioner as PTO for conducting Haj Tour, 2016;”
And insofar as 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 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 Para 4 of Press Release dated 6-5-2016, as per Annexure P-2.”
33. The background in which the present litigation arises is as follows: the Ministry of External Affairs (MEA) issued a clarification dated 8-5-2013 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 the PTO Haj Policy, 2013, it is clarified that PTOs will have to submit the documents required under Clause (vii) of Annexure A to the PTO Haj Policy, 2013 for a period of at least three years.”
34. Some of PTOs challenged the said document dated 8-5-2013 on the ground that such a clarification was unwarranted and does not find any support from the text of stipulation (vii). Their case is that in view of the fact that stipulation (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 2011-2012” and calls upon PTOs to submit balance sheet and profit and loss account duly audited and other documents specified therein for the abovementioned two financial years, stipulation (vii) also must be understood in the light of stipulation (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 (2014) 14 SCC 378, 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 and directed that the case of the petitioner be considered in accordance with the decision of this Court.
35. Thereafter, a number of press releases came to be issued, significant of them are on 29-4-2016 2015 may be seen at Annexures I, Haj 2015- (i) Press Release for PTOs for Haj, 2015 dated 31-7-2015, 2015 dated 31-7-2015, 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, 21-5-2015 2015, (2014) 14 SCC 378) in the writ petitions filed by 22 PTOs, 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 2010-2011 (Haj, 2010) or 2011-2012 (Haj, 2011) needed to be re-verified, the documents of those PTOs who were given opportunity for personal hearing but were not considered qualified during 2013, minimum capital of Rs 15 lakhs 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 2010-2011 (Haj, 2010) or 2011-2012 (Haj, 2011) of PTOs were verified. As a result, 2015. A list of PTOs qualified for registration after reverification of the documents is enclosed at Annexure B. Thus, 2015.”, 6-5-2016 and 21-5-2016.
36. MEA issued another Press Release dated 21-5-2015. From the said Press Note, it appears that number of PTOs who approached this Court challenging MEA's clarification dated 8-3-2013 was 22. Further, in purported compliance with the direction of this Court given in Jeddah Travels (2014) 14 SCC 378, the 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 CategoryI 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 the Government of India or by the Government of Saudi Arabia for valid reasons. The allocation of seats to 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.”
(emphasis supplied)
37. This Court passed an order dated 18-5-2016 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 the 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 27-5-2016 to the prescribed authority.
9. On such application(s) being made, the authority concerned 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 v. Rafique Shaikh Bhikan (2013) 4 SCC 699, order dated 7-8-2014 passed in Union of India v. All India Haj Umrah Tour Organizers Assn., order dated 7-8-2014 passed in Jeddah Travels & Jeddah Hajj Group v. Union of India (2014) 14 SCC 378, order dated 12-5-2015 passed in Union of India v. Rafique Shaikh Bhikan and order dated 23-7-2015 in Alban Hajj Umrah Service v. Union of India.
10. Let the applications be decided by the authority concerned by passing a reasoned order on each application on or before 29-6-2016 and the order so passed be communicated to each applicant (writ petitioner) immediately.”
38. We are of the opinion that it is not necessary to examine in detail the content of these various press releases issued by MEA. They only indicate the Government of India's understanding of the Approved Policy (as interpreted by orders of this Court in Jeddah Travels (2014) 14 SCC 378). These press notes are professedly meant to be clarificatory of the Approved Policy. But they created more confusion than really clarifying the Approved Policy.
39. The net result emerging from these various Press Notes and the orders of this Court is that as a matter of fact some of 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.
40. 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?
41. 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 stipulation (vii). It is the common understanding of the Government of India and petitioners/PTOs insofar as stipulation (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 Haj, 2016.
42. On the only contentious stipulation, that is, stipulation (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 authorised 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 (2014) 14 SCC 378.
43. The learned Additional Solicitor General submitted that they are not only bound by the orders of this Court in Rafique Shaikh Bhikan, 2013 (2013) 4 SCC 699 and Jeddah Travels (2014) 14 SCC 378 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 PTOs. It is submitted that some of PTOs did not in the past really provide the necessary services which they ought to have provided to the pilgrims. Past performance of PTOs is one of the factors by which the Government of India makes an assessment of the capacity of 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 (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.
44. 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.
45. In our opinion, stipulation (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.
46. 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 (2013) 4 SCC 699. It is a different matter as to how well they had conducted the Haj programmes. Sometime in 2002 (2012) 6 SCC 265 , (2012) 3 SCC (Civ) 509. In this judgment, a relatively small portion is specified for PTOs and the rest for the Haj Committee of India.____________________________(footnote 14 contd.)6. Before 2002, 2001, the Kingdom of Saudi Arabia made it mandatory for PTOs to come through their respective Governments. From 2002, 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.
47. To decide upon the eligibility of PTOs, certain criteria were 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 (vii) of Annexure ‘A’), is the evidence of payments for the air tickets and hiring of accommodation through banking or other authorised channels.
48. 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 Jeddah Travels (2014) 14 SCC 378, the proof by documents specified in stipulation (vii) is required (2013) 4 SCC 699] is really for a seven year period. 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 (2014) 14 SCC 378 in this regard.
49. 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.
50. 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, 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.
51. We have already noticed the relevant portion of the Approved Policy which dealt with the categorisation of 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 (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 PTOs who do not wish to take a minimum of 150 Hajis or are unable to do so, need not apply.”
(emphasis supplied)
52. 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 (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 fulfilment of other relevant stipulations under the scheme.
53. 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 organise an appropriate accommodation both at Makkah/Madinah.
54. 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.
55. 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.
56. Lastly, it is argued by the learned Additional Solicitor General based on the decision of this Court in Union of India v. Rafique Shaikh Bhikan (2012) 6 SCC 265 , (2012) 3 SCC (Civ) 509. In this judgment, a relatively small portion is specified for PTOs and the rest for the Haj Committee of India.____________________________(footnote 14 contd.)6. Before 2002, 2001, the Kingdom of Saudi Arabia made it mandatory for PTOs to come through their respective Governments. From 2002 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”.
57. 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.
58. 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. The 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.
59. We are left with the writ petitions of those PTOs who are seeking consideration for allotment of quota for Haj, 2016 in 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 the 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.
60. Whatever be the basis on which quota was allotted to these PTOs for Haj, 2015, the fact remains that if any one 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 deregister such PTOs on any ground tenable in law, it is open for the respondent to deregister after giving reasonable opportunity to such PTOs but until such deregistration takes place their cases must be considered for allotment of quota for Haj, 2016 if they are otherwise eligible.
61. 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.
62. All these writ petitions are disposed of directing the respondents to consider the cases of all 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.
Writ Petition (C) No. 559 of 2016
63. Taken on Board. In view of the order passed in WP (C) No. 425 of 2016, this petition also stands disposed of.