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TMI Blog2012 (5) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... Ansari, Pradhuman Gohil, Vikas Singh, Satish Agarwala, P. George Giri, Praveen Agarwal, S.A. Syed, C.N. Sreekumar, E.M.S. Anam, P. Narasimhan, Jayasree Narasimhan and Samina, Advs. ORDER Aftab Alam, J. SLP (CIVIL) No. 28609/2011 1. This special leave petition has been filed by the Union of India against an order passed by Bombay High Court on October 5, 2011 in a batch of writ petitions challenging the Government of India 2011 Haj Policy that required a private operator/travel agent to have minimum office area of 250 sq. ft. as one of the eligibility conditions for registration for ferrying pilgrims for Hajj. The High Court rejected the challenge but gave directions to the Government of India to allocate certain seats to some of the writ Petitioners from the eight hundred seats from the Central Government quota that had not been allocated to anyone till the time of passing of the order by the court. Aggrieved by the directions given by the High Court, the Union of India filed this special leave petition and by order dated October 14, 2011 this Court stayed the operation of the directions given by the High Court. In any event, by the time the matter came be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for PTOs. It is, thus, to be seen that a private operator/travel agent needs first to get registered as PTO and it would then get a fixed number of pilgrims for carrying for Hajj. For registration of a private operator/travel agent as PTO, the Government of India frames policy laying down conditions subject to which registration would be given. It further frames a policy for allocation of quotas to the registered PTOs from the overall number of pilgrims assigned to PTOs in the bilateral agreement with the Kingdom of Saudi Arabia. As noted above, this arrangement began from 2002 when the Kingdom of Saudi Arabia made it mandatory for the PTO to come through their respective Governments. Initially, there were not many private operators/travel agents coming forward to claim any share in the seats allocated in the bilateral agreements for the PTOs but around the year 2006 more and more private operators/travel agents started claiming allocation from the Hajj seats reserved for PTOs. It appears that it took three or four years for the people in this line of business to realize that this was the opening up of a new highly lucrative commercial venture. It is, thus, to be seen that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y pilgrims. Normally, a quota of fifty pilgrims would mean, on an average and by conservative standards, a profit of rupees thirty five to fifty lakhs. This in turn means that any private operator/travel agent, successful in getting registered as a PTO with the Government of India would easily earn rupees thirty five to fifty lakhs in one and a half to two months and may then relax comfortably for the rest of the year without any great deal of business from any other source. For the Government of India, on the other hand the registration of the PTOs, is for the purpose to ensure a comfortable, smooth and trouble-free journey, stay and performance of Hajj by the pilgrims going through the PTOs. 9. The pilgrim is actually the person behind all this arrangement. For many of the pilgrims Hajj is once in a life time pilgrimage and they undertake the pilgrimage by taking out the savings made over a life time, in many cases especially for this purpose. Hajj consists of a number of parts and each one of them has to be performed in a rigid, tight and time-bound schedule. In case due to any mismanagement in the arrangements regarding the journey to Saudi Arabia or stay or traveling inside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 247) or the contract for allotment of damaged stocks of rice (Food Corporation of India; A.I.R. 1993 SC 1601) or the grant of licence for the operation of 'Cellular Mobile Telephone Service' (Tata Cellular: A.I.R. 1996 SC 11) or the contract for publication of telephone directories of Mahanagar Telephone Nigam Limited (Sterling Computers Ltd; A.I.R. 1996 SC 51) or the contract for development and exploration of oil fields (Centre for Public Interest Litigation; : A.I.R. 2001 SC 80). 4. To my mind, upholding of individual rights and the enforcement of the individual's rights by the intervention of the writ court is undoubtedly important but in doing so the court must not over look the damage that might be caused to a larger public cause, as in this case . Speaking for myself I would not have entertained this writ petition and thrown it out at the very threshold, indeed leaving it open for the Petitioner to claim damages by bringing an action against the Corporation before a Civil Court. Such a course would not have rendered the Petitioner remediless and at the same time it would also have saved this Court from finding itself in a position where it may be seen as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment controlled agencies when the constitutional republic of India was only twelve years old and when no private trader might have come forward to help the commission in its work on his expenses. The Commission has stuck to the arrangement that was evolved forty years ago. The arrangement does not confer any material benefits upon anyone and it does not lead to the profiteering by any individual person, inasmuch as, M/s. Mysore Paints and Varnishes Ltd. is a Government concern. In these circumstances, the purchase of indelible ink by the Commission from the Government owned company cannot be described as distribution of any largess by the State. In Tata Cellular v. Union of India (1994) 6 SCC 651, a three Judge Bench of this Court in paragraph 70 of the judgment made the following observations: It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Authority AIR 1960 SC 801, Shree Meenakshi Mills Ltd. v. Union of India (1974) 1 SCC 468, Hari Chand Sarda v. Mizo District Council AIR 1967 SC 829 and Krishnan Kakkanth v. Govt. of Kerala, (1997) 9 SCC 495. (emphasis added) 14. Seen in the light of the aforesaid decisions, no objection can be taken to high standards and stringent conditions being set up for registration as PTOs and the court's interference would be called for only if it is shown that any condition(s) was purely subjective or designed to exclude any individual or group of private operators/travel agents, i.e., bordering on malice. 15. After this rather long preface, we now proceed to examine the conditions laid down for registration of PTOs in the 2012 Haj Policy. 16. First of all a young lady appearing-in-person, stated before us that she worked as a private operator/travel agent and she was aggrieved by Clause 4 of the press release for registration of Private Tour Operators - Hajj 2012, that put a restriction over more than one member of a family getting registration as PTO. Clause 4 of the press release reads as under: 4. In case more than one member of a family applies which includes wife ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the PTO. Individual agreements are required to be made with the pilgrims by the PTO for which the pilgrims need to visit the office of the PTO. All logistics including ticketing, accommodation, visa processing etc. has to be made by the PTO for which they need the presence of pilgrims. Further, this condition is laid down to make sure that only genuine operators approach the Ministry for Hajj quota, i.e. those who have a proper and well maintained office and who are genuinely interested in taking the pilgrims to Saudi Arabia. The condition was further meant to scrutinize the PTOs who sell their quota to other PTOs. The Attorney General stated that during the 2010 Hajj, the Ministry got complaints from various quarters regarding black marketing of seats by some of the PTOs. It was informed that some of the PTOs after getting registration and allocation of seats instead of carrying the pilgrims themselves sold the seats to other PTOs. The Ministry decided to take action against such unscrupulous PTOs but it found that many of them had no offices at all. The addresses furnished by them were fake and they were all fly by night operators. A genuine PTO should be having an office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused or in regard to some liability against him. On-line applications 29. It may be recorded here that the learned Attorney General accepted one of the suggestions made by Mr. P.S. Narasimha, learned senior counsel appearing for a group of private operators/ travel agents, that applications may be made on-line, subject to the condition that the on-line application must be complete in all respects. 30. On hearing all sides on the conditions for registration, we are satisfied that none of the conditions can be said to be arbitrary or unreasonable and the conditions prescribed in the Government of India 2012 Haj Policy do not warrant any interference by this Court. The 2012 Haj Policy for registration of PTO as contained in Annexure P5 to the affidavit filed on behalf of the Union of India is, accordingly, approved for the 2012 Hajj. 31. The grant of approval to Annexure P5, however, is not to say that there is no scope for improvement in the policy of registration for PTOs. We feel that there is a serious omission in the policy in that it does not require the applicants for registration to disclose the kind of arrangements they proposed to offer to the pilgrims and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ero load and vice versa. This forces the Airlines to increase the fares, which otherwise come to around Rs. 25,000/. Therefore, the Government thought it fit to collect a reasonable fare from the pilgrim and the additional fare charged because of the Haj specific logistics is paid by the Government to the airline. The Government also decided not to pass on and burden the additional amount charged by the airline, purely on logistics, to the pilgrims. During the Haj of 2011, each pilgrim was charged Rs. 16,000/- towards airfare and the additional amount of Rs. 38,000/- per Haji is what is termed subsidy . It is submitted that the subsidy is given only to those pilgrims who go through the Haj Committee of India. 35. It is further stated in paragraph 24 that the grant of Hajj subsidy by the Government of India was challenged before this Court in a petition under Article 32 of the Constitution of India registered as Writ Petition (Civil) No. 1 of 2007 Prafull v. Union of India. This Court by a reasoned judgment and order dated January 28, 2011, dismissed the writ petition upholding the constitutional validity of the Haj Committee Act, 2002 and the grant of subsidy by the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;bah) is a duty that mankind owes to Allah, those who can afford the expenses (for one's conveyance, provision and residence); and whoever disbelieves [i.e. denies Hajj (pilgrimage to Makkah), then he is a disbeliever of Allah], then Allah stands not in need of any of the Alamin (mankind, jinn and all that exists). [1] 39. We, therefore, direct the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of 10 years from today. 40. The subsidy money may be more profitably used for upliftment of the community in education and other indices of social development. 41. Before leaving the issue of Hajj subsidy, we would like to point out that as the subsidy is progressively reduced and is finally eliminated, it is likely that more and more pilgrims would like to go for Hajj through PTOs. In that eventuality the need may arise for a substantial increase in the quota for the PTOs and the concerned authorities would then also be required to make a more nuanced policy for registration of PTOs and allocation of quotas of pilgrims to them. For formulating the PTO policy for the coming years, the concerned authorities in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2005, there were 36 members in the delegation and in the year 2010 the number of its members was 30. In the year 2011, the number was marginally reduced to 27. 45. In pursuance of our direction, the affidavit also gives a list of the members of the Goodwill Hajj Delegation for the years 2002 to 2011. The affidavit does not disclose any criteria or guidelines on the basis of which persons are selected for being included in the Goodwill Delegation. From the list of the members of the Goodwill Delegation for a period of 10 years no rational basis is discernible for selecting members for the delegation. The list shows a disparate group of persons randomly put together from various professions and walks of life. What is more surprising is that there are some people who were able to go as member of the Goodwill Delegation more than once, some even three or four times. In the absence of a reasonable basis the nomination to the Goodwill Delegation evidently works on patronage and granting of favours. On the basis of the materials brought to our notice we have no doubt that the way people are nominated as members of the Goodwill Delegation is in complete violation of Article 14 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessional people and any intervention by a disparate group of persons themselves going to Saudi Arabia for the first time is bound to create more confusion than being of any help in making any proper arrangements for the ordinary pilgrims numbering over 125,000. We are unable to accept the second reason given as justification for sending the Goodwill Hajj Delegation. 48. Coming now to the first reason, that is, to convey goodwill to the Government of Saudi Arabia as well as to the Indian pilgrims, we fully appreciate the idea of the people of India extending their goodwill to the Kingdom of Saudi Arabia on the auspicious occasion of Hajj but we completely fail to see how even that purpose can be served by sending such a large, unwieldy, amorphous and randomly selected delegation. 49. On a careful consideration of the issue we are quite clear that the present practice of sending Goodwill Hajj Delegation must come to stop. If the Government of India wishes to send a message of goodwill to the Kingdom of Saudi Arabia on the occasion of Hajj it may send a leader and a deputy leader and if there be any need to present any group from India for any formal event in the course of Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated for 2012 Hajj. 54. We would also like to know in greater detail the procedure followed by the Haj Committee of India and the state Haj committees in making selection for sending pilgrims for Hajj. We would specially like to examine the functioning of the Haj Committees of the States where the number of applicants exceed the quota allotted for the state. 55. We direct the Haj Committee of India to file a detailed affidavit giving full details of the process of selection of pilgrims from the applications made to the State Haj Committees. The affidavit should also give details of the charges realized from the pilgrims and the facilities made available to them. 56. Haj Committees of the States of Maharashtra, Kerala and Karnataka are directed to be impleaded as Respondents. Let notice go to them with a direction to file affidavits giving details of the selection process and stating stage wise how selections are being made for sending pilgrims for the 2012 Hajj, what amounts are charged from each pilgrim and what facilities are provided to them. 57. The affidavits, as directed above, must be filed within two months from today. 58. Put up on July 23, 2012. SLP (C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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