2023 (6) TMI 839 - HC - Indian Laws

Rejection of application filed by the petitioner by Respondent for allocation of quota to the Haj Group Organizers (HGOs) for Haj 2023 in contravention of the Policy - Compliance with GST law and submission of proof of payment of GSt - violation of the Principles of Natural Justice, equity and good conscience - violation of Article 14 and Article 19(1)(g) of the Constitution of India - HELD THAT - As is evident, the Registration and allocation of Haj Quota to private tour operators is subject to certain terms and conditions for registration as HGOs. The registration of HGOs not found to be complying with the HGO Policy is liable to be cancelled. In the instant petition, it has been alleged that the registration of the petitioner has been suspended due to their wilful misrepresentation and misreporting of facts to the Ministry, based on which they were registered as HGOs in the first place. The attention of this Court has also been drawn to the conditions as applicable to the registration certificate. The registration of the HGOs is an absolute right rather than a privileged right that is bestowed upon the concerned HGO based on the fulfilment of certain conditions as laid out under the Policy. Therefore, the offer made by the HGOs to the pilgrims is subject to certain pre-conditions for the grant of registration and is amenable to the fulfilment of the requisite conditions, the non-compliance of which empowers the Ministry to suspend/cancel the registration as well as for blacklisting the company - The conditions inter alia provide that the HGOs will abide by the policy for HGOs for Haj-2023 read with Circular No .15/28/20022-Haj- MoMA dated 14th March 2023 and will be held responsible for noncompliance with any of the terms and conditions of registration with MoMA at any stage. It is also stated therein that the Ministry shall have the right to suspend/ cancel the registration in case of non-compliance with any of the terms and conditions. In the instant case, it has been alleged that there has been a gross misrepresentation of facts by the petitioner HGOs, which has come to light during the visit of a team of officials from the respondent to the office premises of the petitioner HGO - As per the bilateral agreement entered into between the Government of India and the KSA, for Haj 2023, a total quota of 1,75,025 pilgrims (1,40,000 pilgrims for HCoI and 35,025 pilgrims for the HGOs) has been allocated by the KSA to India. This Court is of the prima facie opinion that although restrictions and conditions to the issuance of the Registration Certificate as well as to the Quota allotted to the petitioners/HGOs may be imposed, the same should not be held against the pilgrims who, in good faith, registered with the petitioners/HGOs to undertake the pilgrimage. This Court is of the view that such an action would defeat the purpose of the current Haj Policy and is in derogation of Article 25 of the Constitution of India. Article 25 of the Constitution of India guarantees the freedom of conscience and the freedom to profess, practice and propagate religion to all citizens. Haj Pilgrimage and the ceremonies involved therein fall within the ambit of a religious practice, which is protected by the Constitution of India. Religious freedoms are one of the most cherished rights guaranteed and enshrined under the Constitution in line with the vision of the founding fathers of the Modern Indian Republic. The Haj pilgrimage is undertaken by thousands of pilgrims from India annually. In order to enable the Indian Muslims willing to undertake the Haj pilgrimage, every year a bilateral treaty is executed between India and the Kingdom of Saudi Arabia. In terms of the said agreement, a quota of some pilgrims is allotted to India. The pilgrimage can be undertaken from India only either through the Haj Committee of India (the Haj Committee) or the HGOs - The majority of Haj pilgrims are taken care of by the Haj Committee, and only a limited number of pilgrims can undertake the Haj pilgrimage through HGOs as per the quota of the respective HGO. This Court refers to the judgment of Union of India and Others v. Rafique Shaikh Bhikan and Another 2012 (5) TMI 858 - SUPREME COURT wherein this Court emphasized that the main purpose of the Haj Policy was to ensure that pilgrims must be able to perform their pilgrimage duty without undertaking any difficulty, harassment or suffering. In the present petition, the Court is at this stage is primarily concerned with the pilgrims who intend to travel on Haj Pilgrimage and have paid in advance to the petitioners for the same. Travelling to Haj is not merely a holiday but is a medium of practicing their religion and faith which is a fundamental right. This Court being the protector of the right of the pilgrims shall take the necessary steps in this regard - Accordingly, to ensure that the pilgrims are not obstructed from completing their journey and undertake Haj, the comments in the consolidated list of allocation of Haj Quota for HAJ-2023 issued on 25th May, 2023 by the respondent which reads as Registration Certificate Quota Kept in abeyance till finalization of proceedings in complaint related matter is stayed. Petition disposed off.

Summary

Issues Involved:
1. Rejection of the petitioner's application for allocation of Haj quota.
2. Alleged misrepresentation and non-compliance by the petitioner.
3. Rights of pilgrims affected by the petitioner's non-compliance.

Summary:

Issue 1: Rejection of Application for Haj Quota
The petitioner challenged the respondent's rejection of their application for Haj 2023 quota allocation, arguing it violated the Principles of Natural Justice, equity, good conscience, and Articles 14 and 19(1)(g) of the Constitution of India. The petitioner claimed compliance with the policy dated 14th March 2023 and submitted necessary documents, including GST payment proof. Despite this, the respondent rejected the application on 19th May 2023, citing non-compliance with GST payment requirements.

Issue 2: Alleged Misrepresentation and Non-Compliance
The respondent argued that the petitioner's registration was suspended due to wilful misrepresentation and non-compliance with the HGO Policy. The Ministry reserved the right to suspend/cancel registration if any discrepancies or complaints were found, including tax evasion. The respondent highlighted the importance of ensuring only compliant and verified HGOs are registered, as per the bilateral agreement with the Kingdom of Saudi Arabia (KSA).

Issue 3: Rights of Pilgrims Affected by Petitioner's Non-Compliance
The court emphasized that while restrictions on registration and quota allocation are valid, they should not adversely affect pilgrims who registered in good faith. The court highlighted the constitutional protection of religious freedom under Article 25, referencing the judgment in Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala. The court stressed that the Haj pilgrimage is a fundamental religious duty for Muslims and must be facilitated without undue hindrance.

Conclusion:
The court stayed the respondent's decision to keep the petitioner's registration and quota in abeyance, ensuring that pilgrims affected by the petitioner's defaults can undertake the Haj pilgrimage without obstruction. The respondents were directed to proceed with the investigation related to the show cause notice issued to the petitioner. The writ petition was disposed of accordingly.