Ruby Tour Services Pvt. Ltd. vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.638 OF 2018

RUBY TOUR SERVICES PVT. LTD. ... PETITIONER

VERSUS

UNION OF INDIA ... RESPONDENT

WITH

WRIT PETITION (C) NO.646 OF 2018

M/S. NAWAB TRAVELS PRIVATE LIMITED ... PETITIONER

VERSUS

UNION OF INDIA ... RESPONDENT

AND

WRIT PETITION (C) NO.668 OF 2018

M/S. HIBA EXPORTS INDIA ... PETITIONER

VERSUS

UNION OF INDIA ... RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

Signature Not Verified Digitally signed by SUSHIL KUMAR RAKHEJA Date: 2018.07.30

These three writ petitions under Article 32 of the 16:44:49 IST Reason:

2

Constitution of India have been filed by three Private

Tour Operators (PTOs) challenging the communications

dated 31.05.2018 issued by the Ministry of Minority

Affairs rejecting their applications submitted for

registration of PTOs for Haj 2018. The applications of

petitioners have been rejected for not fulfilling few

conditions as enumerated in Annexure A of PTO Policy

for Haj 2018.

2. The Haj Pilgrimage by Muslims all over the world

has been treated as of utmost religious importance and

Muslims all over the world have been going for Haj

Pilgrimage to Makkah and Madina for last several

centuries. Until year 2002, the Saudi Arabian

Government was directly allotting visas for Haj to the

private tour operators and separately allotting quota

of visas for the Haj pilgrims travelling through the

Haj Committee of India. Thereafter the Saudi

Government started allotting one single quota of Haj

visas to the Government of India, who in turn would

allot part of the said quota to the PTOs and retained 3

part of the said quota for itself for allotment through

the Haj Committee of India.

3. The policy for allotment of quota to the private

tour operators has been issued by the Government of

India from time to time. The Policy for registration

of private tour operators for Haj 2013 came for

consideration before this Court and this Court after

elaborate consideration approved the Haj Policy­2013

with certain modifications. This Court by its judgment

dated 16.04.2013 in Union of India Vs. Rafique Shaikh

Bhikan, (2013) 4 SCC 699, approved the Haj Policy 2013,

Appendix I of the judgment contained the policy for

registration of private tour operators – Haj 2013, the

terms and conditions for registration of Private Tour

Operators (PTOs) for Haj 2013 in Annexure­A, in

Annexure­B other important instructions/guidelines for

Haj 2013 and in Annexure­C application for registration

as Private Tour Operators (PTOs). The policy was

initially directed to remain valid for five years,

i.e., 2013­2017. The Government of India has extended

the said policy for the year 2018. The proceeding for 4

formulation of fresh policy for the next five years,

i.e., 2019 onwards is in process, we, however, in the

present writ petitions are only concerned with the Haj

Policy of 2018.

4. After 2013 also, there has been various subsequent

decisions by this Court while considering Haj Policy

for subsequent years, which shall be noticed by us

little later. The Government of India (Ministry of

Minority Affairs) vide its circular dated 09.12.2017

issued policy for Private Tour Operators for Haj 2018.

The applications were invited on or before 05.01.2018.

Annexure A to the policy was “Terms and Conditions for

Registration of Private Tour Operators (PTOs) for Haj­

2018”. Annexure B contained “Other Important

Instructions/Guidelines for Haj­2018. Annexue C

contained “Application for Registration as Private Tour

Operator (PTO)” ­ Haj 2018. All the petitioners in

pursuance of the said circular has submitted their

applications for registration for Haj­2018. After

certain queries, separate communication dated

31.05.2018 has been issued to petitioners refusing 5

registration of them as Private Tour Operators for Haj­

2018, which communication has been challenged.

5. The prayers made in all the writ petitions being

identical, it is sufficient to notice the prayers made

in the Writ Petition (C) No. 638 of 2018. which are to

the following effect:­

“(a) Declare that the order dated 31.05.2018 by the respondent is illegal and unconstitutional and consequentially, issue Mandamus to the respondent to register petitioner as a PTO for Haj 2018 and allot appropriate quota;

(b) Alternatively, 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, 2019;

(c) Issue a Writ, order or direction in the nature of Mandamus commanding and directing the respondent to pay compensation to the petitioner for the loss occurred to it by not granting registration for Haj 2018;

6

(d) Pass such other and further orders as this Hon'ble Court may think fit in the interest of justice and equity.”

6. As noted above, the applications of petitioners

were rejected due to non­compliance of various

conditions as enumerated in Annexure A. Application of

petitioner in Writ Petition (C) No. 638 of 2018 has

been rejected for non­compliance of Clause (iv) and

Clause (xi). Application of petitioner in Writ Petition

(C) No. 646 of 2018 has been rejected for non­

compliance of Clause (xii), whereas application of

petitioner in Writ Petition (C) No. 668 of 2018 has

been rejected for non­compliance of Clause (xi). Thus,

it is sufficient to notice Clause (iv), Clause (xi) and

Clause (xii) of Annexure A for deciding these writ

petitions, which are to the following effect:­

Clause(iv) Minimum Annual Turnover of INR One Crore or more from Haj and Umrah operations during any of the two preceding financial years along with Balance Sheet and Profit & Loss Account­duly audited by the Statutory Auditors, Tax Audit Report and Income Tax Return (ITR).

Clause (xi) Contract for hiring of buildings for 7

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

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

7. Now, we proceed to notice the facts of each writ

petition.

Writ Petition (C) No. 638 of 2018 – Ruby Tour Services Pvt. Ltd. Vs. Union of India

8. The petitioner was a qualified Private Tour

Operator from 2002 to 2015 and 2017 and was so

registered with the Government of India. After issue

of Haj Policy­2013, the respondent had released the

list of qualified Private Tour Operators for the Haj­

2013, in which name of petitioner was included at Sl.

No.224 of qualified Private Tour Operators under

Category I. In the year 2014, 2015, petitioner's name

was included in the List of eligible Private Tour

Operators. Petitioner conducted services for Haj­2015

without any complaint. By press release dated 8

29.04.2016, applications were invited from eligible

Private Tour Operators for registration of Haj – 2016

in response to which, petitioner applied. The

respondent vide communication dated 26.07.2016 rejected

the application of the petitioner for Haj­2016.

Petitioner filed a Writ Petition (C) No. 623 of 2016

against the rejection of its application for Haj­2016,

in which notice was issued by this Court on 08.08.2016.

The respondent after the scrutiny of the application

and documents submitted by the petitioner, found the

petitioner eligible to conduct Haj Pilgrimage for 2017

and accordingly issued certificate of registration and

allotted quota of 105 pilgrims. The Writ Petition (C)

No. 623 of 2016 filed by the petitioner has been

dismissed as infructuous. In pursuance of Circular

dated 09.12.2017 inviting applications, petitioner

submitted an application along with supporting

documents. Fourteen queries were raised by the

respondent through e­mail dated 25.03.2018 raising

different objections. Petitioner vide its letter dated

05.04.2018 submitted reply to all the queries raised. 9

9. In query No. 11 regarding turn over details,

following was communicated:

“PTO attached Turnover Certificate of 2.16 cr. of ruby tour and travels and have mentioned that the documents explaining the same have been attached on page 50­52 of the Application File but there are no such documents on record which explain the turnover of 2.16 cr.”

10. Petitioner had replied the said query in its reply

as follows:­

“The Turnover Certificate of INR 2.16CR is attached herewith for your kind perusal. The omission error of Page No. 50­52 is highly regrettable.”

11. With regard to non­compliance of Clause(xi) of

Annexure­A, the Government noticed the reply dated

05.04.2018 but has refused to register citing technical

advice from empanelled Chartered Accountant Firms. It

is useful to refer to Paragraphs 2 to 5 of the letter

dated 31.05.2018, which contains the consideration by

the Government of India:­ 10

“2. As per Clause (iv) of Annexure A of PTO Policy, the said PTO was required to submit the turnover certificate. On scrutiny of the documents submitted by the PTO, it has been found that PTO is not fulfilling the clause(iv) of Annexure A of PTO Policy for Haj 2018. The PTO was requested to clarify the followings:­

“PTO attached Turnover Certificate of 2.16 cr. of Ruby Tour and Travels and have mentioned that the documents explaining the same have been attached on page 50­52 of the Application File but there are no such documents on record which explain the turnover of 2.16 cr.”

3. As per Clause (xi) of Annexure A of PTO Policy, the said PTO was required to submit rental receipts and a copy of lease deed, duly signed with the Saudi owners. On scrutiny of the documents submitted by the PTO, it has been found that PTO is not fulfilling the clause (xi) of Annexure A. The PTO was requested to clarify the followings:­

“In the invoice copy of Makkah 2 invoice dated 17/08/2015 there is a 11

condition that PTO should send the payment on or before 25/07/2015 which is prima facie not possible as that date has already passed.

Moreover payment made on 19/08/2015 but receipt for the same issued on 24/07/2015. Hence the authenticity of the Receipt cannot be established.”

4. The said PTO in its reply clarified as under:

“The Turnover Certificate of INR 2.16CR is attached herewith for your kind perusal. The omission error of Page No. 50­52 is highly regrettable.”

"In the Invoice copy of Makkah 2 Invoice dated 17/08/2015, the supplier has erroneously typed the wrong sending date as 25/07/2015 instead of 25/08/2015, and also the receipt issued date as 24/07/2015, instead of 24/08/2015. We regret the oversight by supplier and hereby attach the swift copy along with Invoice and Bank Statement details to authenticate the same. The 12

Tashree agreement dated 17.08.2015 also authenticates the transaction done in August 2015”.

5. As per the technical advice received from the empanelled Chartered Accountant Firms and on scrutiny of the clarification/reply of the PTO, it has been observed that the PTO Applicant's turnover is less than Rs.1 crore from Haj and Umrah operations as required under Clause (iv) of Annexure A of PTO Policy 2018. It is further observed that the receipt of accommodation is dated prior to the date of Payment (as authenticated from the Bank Statement and Foreign exchange Purchase Invoices). Hence the Receipts lack authenticity. The requirements of Clause (iv) and (xi) of Annexure A of PTO Policy 2018 are not complied.”

12. The petitioner has filed additional documents to

support its reply given on 05.04.2018. Counter

Affidavit has also been filed by the respondent.

Writ Petition (C) No. 646 of 2018 – M/s. Nawab Travels Private Limited Vs. Union of India 13

13. The petitioner had been found eligible for the

years 2002, 2006­I, 2006­II, 2007 to 2010 and during

each period, registration certificate was issued to the

petitioner and Haj quotas were also allotted. In

response to the circular dated 09.12.2017 inviting

applications for Private Tour Operators for Haj­2018,

petitioner also submitted an application. Certain

clarifications were sought through online PTO portal.

Petitioner submitted its clarification on 04.04.2018.

By communication dated 31.05.2018, the petitioner's

application was refused to register on the ground of

non­fulfillment of Clause (xii) of Annexure A. It is

useful to extract Paras 2, 3 and 4 of the communication

dated 31.05.2018, which is to the following effect:­

“2. As per Clause (xii) of Annexure A of PTO Policy, the said PTO was required to submit the copy of Munazzim card and Haj visa pages of the passport of the owner/proprietor. On scrutiny of the documents submitted by the PTO, it has been found that PTO is not fulfilling the Clause (xii) of Annexure A. The PTO was sent the following observation:­ 14

“Copies of Munazzim Card and visa copy are not legible.”

3. The said PTO in its reply clarified as under:

“It is hereby clarified that the Munazzim Card and Haj Visa is issued in the name of Tour Assistant. We have deputed Mr. Abdur Razzaque Chand Mia as Tour Assistant for Haj 2010. We have already submitted a drafted letter providing details of Tour Assistant along with the Application for Registration of PTO for Haj 2018 vide Page No. 199, we are again submitting self­attested copy of the same for your kind perusal.”

4. As per the technical advice received from the empanelled Chartered Accountant Firms and on scrutiny of the clarification/reply of the PTO it has been observed that the copies of Munazim Card and Haj Visa pages copy provided in the Physical file and uploaded on the portal were not completely legible. A difference was found in the name and Passport No. as per Munazim Card and Visa Copy. Other details were not legible. Copies of Munazzim 15

Card and Visa Copy are not attached in the clarification. The same is required under Clause (xii) of Annexure A of PTO Policy 2018. Hence, the copy of Munazzim card and Haj Visa pages of the passport of the owner/proprietor as required under Clause (xii) of Annexure A of PTO Policy for Haj 2018 is not complied.”

14. Counter Affidavit has been filed by the respondent.

Petitioner has also filed additional documents to

support his reply.

Writ Petition (C) No. 668 of 2018 – M/s. Hiba Exports India Vs. Union of India

15. The petitioner – a sole proprietor is carrying on

the business of recruitment for deployment of Indian

workers with foreign employers, who is license holder

for last 20 years from Government of India. The

petitioner firm also provided Haj services to the

pilgrims for the year 2002, 2009, 2010 and 2011. In

response to registration of Private Tour Operators­Haj

2013, petitioner also submitted its application. After

response to the explanations called for from the

petitioner and submission of clarifications by 16

petitioner vide letter dated 30.07.2013, petitioner was

included in the List issued on 07.01.2014. For the

year 2014 and 2015, petitioner's name was not included

as a qualified Private Tour Operator. Petitioner had

also filed Writ Petition (C) No. 413 of 2015, in

response to registration for Haj 2016, petitioner

submitted application and his name was included in the

list of private tour operators issued on 29.04.2016.

Although, petitioner was included in the list of

Private Tour Operators for the draw of lots as per

Press Release dated 29.04.2016 but unfortunately was

not granted quota due to draw of lots. Petitioner was

thus eligible for quota of Haj Pilgrimage for 2017 even

without draw of lots. In response to application for

Haj­2018, petitioner submitted its application,

objections were raised by communication dated

25.03.2018, which were duly replied. The application

of the petitioner for registration for Haj­2018 has

been rejected by communication dated 31.05.2018. In

Paras 2 and 3 of the communication, following has been

stated:­ 17

“2. As per Clause (xi) of Annexure A of PTO Policy, the said PTO was required to submit rental receipts and a copy of lease deed, duly signed with the Saudi owners. As per the technical advice received from the empanelled Chartered Accountant Firms and on scrutiny of the clarification/reply of the PTO the following has been observed:

“The PTO has not submitted Rental receipt of SAR 22500/­ for contract No. 705522 entered with Ali M.A. Jabullah (Amjadus Salam) and Rental Receipt of SAR 75000/­ for Contract No.213351 entered with Zaid A.A. Abid for hiring of accommodation for pilgrims, instead submitted with reply of the query Receipt Voucher No.0006 for SAR 200000/­ issued by Muttawiffy Hujjaj South Asia Establishment and Receipt Voucher No.49812 which is in Arabic and no translation of the same has been submitted. Hence PTO has not complied with the requirement of Clause (xi) of Annexure A of PTO Policy” 18

4. In view of the deficiencies mentioned in Para 2 above, M/s. Hiba Exports India, D 60/4 FIRST FLOOR NEAR GREEN PARK, METRO STATION GATE NO.1 YUSUF SARAI, NEW DELHI­110016 has not been found eligible for registration and allocation of quota for Haj 2018.”

16. We have heard Shri Santosh Krishnan, learned

counsel appearing for the petitioner in first two writ

petitions. We have also heard learned counsel

appearing in Writ Petition (C) No.668 of 2018. Shri

K.K. Venugopal learned Attorney General and Ms. Pinky

Anand, learned Additional Solicitor General have been

heard for the respondent.

17. Shri Santosh Krishnan, learned counsel for the

petitioner assailing the order dated 31.05.2018 of the

respondent in Writ Petition No.638 of 2018 submits that

the two reasons given in the order dated 31.05.2018

have no basis. The petitioner had fully complied with

Clause (iv) of Annexure A since it has filed all

relevant documents showing turnover of Rs.2.16 crore

during the financial year 2015­16. He refers pages 6 to

27 of additional documents filed in the writ petition 19

attacking on the averments made in the counter­

affidavit that the PTO did not submit its own balance­

sheet but submitted the balance­sheet of Ruby Tours &

Travels. It is submitted that till Haj 2015, the

petitioner herein was conducting the service as a

Proprietorship Firm under the name Ruby Tours &

Travels. However, from Haj 2017 the entity Type was

changed to Private Limited Company and this fact having

been accepted by all authorities including the

respondent for Haj 2017, the ground was no longer

available to reject the registration by the respondent

for Haj 2018. Coming to the second reason that

violation of Clause (xi), the petitioner submitted all

documents including the Contract for hiring of

buildings and rent receipts, proof of payment through

authorised channel and invoices from the owner,

however, due to a typographical error by the building

owner at Saudi Arabia, date of receipt is mentioned as

25.07.2015 instead of 25.08.2015 and date of payment is

mentioned as 24.07.2015 instead of 20.08.2015. A Bank

statement and soft copy would show that payment was

actually made on 25.08.2015.

20 18. Learned counsel further submitted that there has

been no application of mind by the respondent while

refusing registration. The respondent has mechanically

followed the advice given by Chartered Accountant

Firms. The rejection was premised on the technical

advice received from the empanelled Chartered

Accountant Firms which itself shows non­application of

mind by the respondent.

19. Shri K.K. Venugopal, learned Attorney General,

refuting the above submissions contends that order

rejecting registration has been issued considering the

objections raised, clarifications/replies submitted and

documents submitted by the petitioner. He submitted

that the documents for turnover submitted by the

petitioner were the documents of Proprietorship Firm

that is Ruby Tours & Travels whereas registration was

applied for Haj by the Private Limited Company and no

documents have been submitted that Proprietorship Firm

has been converted into Private Limited Company. The

petitioner which is a Private Limited Company cannot

rely on turnover of Proprietorship Firm. It is 21

submitted that decision was arrived after application

of mind and the rejection having been based on valid

reason this Court shall not substitute its own decision

with that of department. On submission pertaining to

second ground, it is contended that PTO’s application

that there was a typographical error, cannot be

submitted since typographical error was not only in

one document but in the various documents submitted by

the PTO which fact itself raises question of

credibility of the PTO.

20. We have gone through the rival submissions and

perused the records of Writ Petition No.638 of 2018.

21. For turnover the petitioner has placed reliance on

certificate of Chartered Accountants dated 02.01.2018

as Annexure P­18. The certificate reads:

“To whomsoever it may concern

This is to certify that the Ruby Tours & Travels (Prop. Nazir Ahmed Shaikh) having its office at 7/8, Ground Floor, 2421 East Street Galleria, East Street Camp, Pune­411001 had doing the business of Haj Tours.

This is also to certify that Ruby Tours 22

& Travels is having Haj turnover of Rs.2.16 Crore during the financial year 2015­16.

This is on the basis of information, explanations & records produced before me.

For A S Gholkar & Co.

Chartered Accountants

Amit S. Gholkar (Proprietor)

Place: Pune Date: 02/01/2018 Certificate No.ASG/2017­18/068.”

22. The petitioner has applied quota as Private Limited

Company which fact is not disputed. Objection was

raised by query dated 25.03.2018 that all documents

were submitted for Private Limited Company but

previous quota including 2015 were allotted to

proprietor. The Type of entity is changed. After

considering the reply ultimately order dated 31.05.2018

stated that PTO’s turnover is less than Rs.1 crore as

required under Clause (iv). In the counter­affidavit as

well as in the oral submissions, the aforesaid ground

was relied on behalf of the respondents for rejection. 23

The petitioner has filed rejoinder­affidavit to the

counter­affidavit in which petitioner submits that till

Haj 2015 petitioner was conducting service as a

Proprietorship Firm under the name Ruby Tours &

Travels, however, from Haj 2017 the entity Type was

changed to Private Limited Company. The PTO who has

applied for registration is admittedly a Private

Limited Company and the turnover which is relied was of

a Proprietorship Firm. It is not the case that the

Company having incorporated after the Proprietor

business was closed. It is not a case of conversion of

Proprietorship Firm into Company. No documents have

been submitted that Proprietorship Firm sold its entire

business to the Company. It is also relevant to point

out that when the petitioner had applied for

registration for Haj 2016, the objection was raised by

letter dated 07.06.2016 of the respondent where

following was stated:

“2(vi). In the application form the PTO has mentioned it is a proprietorship firm but as per documents provided it is a private limited company. Further, the names of all directors are also not disclosed.” 24

23. Thus, the petitioner was well aware of the

objections raised by the respondent under Clause (iv)

regarding turnover relied by the petitioner being of

different entity. The position ought to have been

explained by the petitioner by submitting all relevant

documents including conversion of Proprietorship Firm

into Private Limited Company with transfer of its

assets and liabilities. The fact that turnover of

different entity was relied, the decision rejecting the

registration cannot be said to be perverse or based on

no material. Learned counsel for the petitioner laid

much emphasis that for the Haj 2017 when the petitioner

was granted registration, it was not open to respondent

to raise objections again. Learned Attorney General

submitted that there are large number of applications

every year and there being time constraint in

verification of the application if in the event a PTO

is ineligible which escaped notice of the respondent in

a particular year there cannot be estoppel on the

Government to raise issue of ineligibility in the

subsequent year. We find substance in the submission of 25

the learned Attorney General. The Government cannot be

estopped to raise issue of ineligibility in case it

escaped its notice in any earlier order. We, thus, do

not find any infirmity in the ground taken in the order

dated 31.05.2018 in refusing registration due to non­

compliance of Clause (iv). We having upheld the order

dated 31.05.2018, it is not necessary for us to

consider the rival submissions with regard to non­

compliance of Clause (xi).

24. The submission of the learned counsel for the

petitioner that report of Chartered Accountant Firms

empanelled by the respondent has been mechanically

considered also cannot be accepted. The objections were

raised after scrutiny of the application to which reply

was submitted by the petitioner. In the event the

Government received the assistance from a Chartered

Accountant Firm no exception can be taken to such

assistance provided it is proved that there is no non­

application of mind by the Government on the relevant

facts and documents. In the present case order dated

31.05.2018 refers to the objections raised, 26

clarifications/replies submitted by the petitioner. The

technical advice received from the empanelled Chartered

Accountant Firms has also been relied to support its

conclusion in which no infirmity can be found. We,

thus, are of the view that there are no grounds for

interfering in the order dated 31.05.2018 in Writ

Petition No.638 of 2018 which writ petition deserves to

be dismissed. The writ petition is accordingly

dismissed.

25. Now coming to the Writ Petition (C) No. 646 of

2018. Mr. Santosh Krishnan, learned counsel for the

petitioner with emphasis and clarity submits that

reasons given in the Order dated 31.05.2018 for

refusing registration is trivial and non­existent. He

submits that copies of Munazzim card and Visa copy were

duly submitted and the error pointed out in the name of

Mr. Abdur Razzaque as Abdul Razzaque in Munazzim card

being insignificant and trivial, ought not to have been

relied by the respondent to reject the claim. It is

further submitted that typographical error in passport

number as contained in the Munazzim Card was also to be 27

ignored since the copy of the passport with correct

number was already submitted and it was not the case of

the respondent that any other person apart from Abdur

Razzaque was tour Assistant of the petitioner.

26. Ms. Pinky Anand, learned Additional Solicitor

General refuting the submissions contended that the

name as per translation duly attested by the Director

of PTO showed the name as Abdul and there was

difference in passport number in the Munazzim Card,

which showed passport No. as F­83847646 whereas the

correct passport number is F­8384646. It is submitted

that rejection was on valid ground.

27. We have considered the submissions of the learned

counsel for the parties and have perused the records.

28. The Munazzim Card and Haj Visa is issued in the

name of tour assistant by the Saudi Authorities.

Details of tour assistants were already submitted at

Page No. 199 of the application, which was re­submitted

alongwith clarification of the petitioner. In the 28

translated copy as is the case of the respondent,

attested by the Director of the PTO, the name of Abdur

Razzaque was shown as Abdul Razzaque. The Munazzim

Card is issued by the Saudi Authorities and the mention

of word “l” in place of “r” at the end of the name

Abdur is on account of difference in pronounciation of

the name by the Saudi Authorities, which does not go to

the root of the matter since it is not the case of the

respondent that the tour assistant was any other person

except the one who was authorised by the petitioner.

Further, the photocopy of the passport of Abdur

Razzaque Chand Mia was submitted by the petitioner

alongwith photograph and other details. Correct number

of passport i.e. F­8384646 is also submitted to the

respondent. Photocopy of the visa issued by the Saudi

Authorities is also brought on the record alongwith

additional documents which mentions correct passport

number i.e. F­8384646. In the Munazzim Card issued by

authorities, it is also brought on record before us

that passport number mentioned is F­83847646. The digit

“7” has been mentioned additionally in the passport

number, which is an obvious mistake. We are of the 29

view that the reliance on aforesaid two grounds which

are too trivial and insignificant, cannot be said to be

any valid ground for rejection of the claim. Moreover

when the same tour assistant with the same passport

number has conducted the Haj services for the year

2010, the respondent's authorities while considering

the case of the PTO for registration have to advert to

the substance of the matter and substance of the reply

submitted by the PTO need to be gone into. In event of

PTO fulfills other conditions, rejection of claim on

trivial and non­substantial grounds cannot be

countenance. We are of the view that rejection of

registration of the PTO for Haj­2018 in the present

case cannot be supported and deserves to be set aside.

29. Now, we come to the question of relief, which is to

be granted to the petitioner, in view of our above

decision that rejection of claim of petitioner for Haj­

2018 was unfounded. Learned counsel for the petitioner

has placed reliance on the judgment of this Court in

Jeddah Travels and Jeddah Hajj Group Vs. Union of 30

India, (2014) 14 SCC 378, where this Court laid down

following in Paragrpah 7:­

“7. Having considered the contentions advanced on behalf of the rival parties, we are of the view that the petitioners who had approached the Court well in time cannot be denied the benefit of an adjudication as urged by the learned ASG. The time­frame still available, in our considered view, is adequate to enforce the rights of the petitioners if they are found so entitled. ”

30. Learned counsel submits that since the petitioner

has filed this petition on 04.06.2018, which was the

date for allocation of Haj quota to the eligible PTOs,

petitioner is entitled for relief. Shri Santosh

Krishnan submitted that even if the quota is allotted

to all the PTOs, the number of passengers allotted to

each PTO may be reduced by one, which may be re­

allotted to petitioner and another eligible person.

This Court in United Air Travels Services Through its

Proprietor A.D.M. Anwar Khan vs. Union of India through

Secretary (Ministry of External Affairs), (2018) 7 31

SCALE 1: AIR 2018 SC 2264 decided on 07.05.2018 came to

consider the question of relief to be granted to PTO,

whose application for grant of registration for Haj

Pilgrimage – 2016 was rejected. In the present writ

petition, one of the reliefs claimed by the petitioner

is for grant of compensation. In Prayer C, following

has been prayed:­

“(c) Issue a Writ, order or direction in the nature of Mandamus commanding and directing the respondent to pay compensation to the petitioner for the loss occurred to it by not granting registration for Haj 2018;”

31. This Court in United Air Travel Services (supra)

considered the question of grant of relief and has laid

down following in Paragraphs 13 to 18:­

“13. The question, however, rises what relief can be granted in such a situation. The passage of time has made certain reliefs infructuous. The time period for conducting Hajj tours for 2016 as well as 2017 is over. Thus, even the alternative relief prayed for 2017 has become infructuous. In three of the writ petitions, i.e., WP (C) Nos.631/2016; 634/2016 & 636/2016, there is a specific 32

alternative plea for compensation to the petitioners for the loss accrued due to non­ grant of registration for the Hajj of 2016. While there is no such specific plea in the other writ petitions, given the identical situation, we are of the view that the same principle ought to be applied in all these cases. The petitioners cannot be left remediless. The mindless action of the respondents in rejecting the eligibility of the petitioners for the year 2016 on the very grounds on which they were exempted necessitates that the petitioners should be entitled to damages in public law so that they are compensated, at least, to some extent for not having been able to carry on with their business on account of illegal action of the respondents.

14. The principles of damages in public law have to, however, satisfy certain tests. In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, it was observed that public law proceedings serve a different purpose than private law proceedings. In that context, it was observed as under:

“The purpose of public law is not only to civilize public power but also to assure the citizen that they 33

live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting ‘compensation’ in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrong doer for the breach of its public law duty 34

and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

It was also emphasized that it is a sound policy to punish the wrongdoer and it is in that spirit that the courts have molded the relief by granting compensation in exercise of writ jurisdiction. The objective is to ensure that public bodies or officials do not act unlawfully. Since the issue is one of enforcement of public duties, the remedy would be available under public law notwithstanding that damages are claimed in those proceedings.

15. The aforesaid aspect was, once again, emphasized in Common Cause, a Registered Society v. Union of India, (1999) 6 SCC 667. We may also usefully refer to N. Nagendra Rao & Co. v. State of A.P., (1994) 6 SCC 205 qua the proposition that the determination of vicarious liability of the State being linked with the negligence of its officer is nothing 35

new if they can be sued personally for which there is no dearth of authority.

16. In the facts of the present case, the arbitrariness and illegality of the action of the authority is writ large. The petitioners have been deprived of their right to secure the quota on a patently wrongful order passed for reasons, which did not apply to them and for conditions, which had been specifically exempted. What could be a greater arbitrariness and illegality? Where there is such patent arbitrariness and illegality, there is consequent violation of the principles enshrined under Article 14 of the Constitution of India. The facts of the present case are, thus, undoubtedly giving rise to the satisfaction of parameters as a fit case for grant of compensation.

17. On a conspectus of the aforesaid facts including the number of pilgrims for whom the petitioners would have been entitled to arrange the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be adequate compensation for the loss suffered by them and sub­serve the ends of justice. We are conscious of the fact that there is no quantification based on actual loss, but then 36

the award by us is in the nature of damages in public law.

18. The amount for each of the petitioners be remitted by the respondents within two months from the date of this order failing which the amount would carry interest @ 15 per cent per annum apart from any other remedy available to the petitioners. It will be open to the respondents to recover the amount of damages and costs from the delinquent officers responsible for passing such unsustainable orders.”

32. We are of the view that petitioner is also

entitled for same compensation of Rs.5 lakh, which is

adequate compensation for the loss suffered by the

petitioner and shall subserve the justice. We further

direct that the aforesaid amount be paid within two

months from this date, failing which the amount would

carry simple interest @ 15 per cent per annum. The

Writ Petition (C) No. 646 of 20185 is allowed to the

above extent.

37

33. Now we come to the last writ petition being Writ

Petition (C) No. 668 of 2018. Learned counsel for the

petitioner in support of the above petition submits

that although the petitioner has submitted necessary

details including rental receipts, which is reflected

in their reply dated 31.03.2018 but the claim has been

rejected with the observation that petitioner has not

submitted that rental receipts and the receipts and

vouchers submitted by the petitioner were issued by

Muttawiffy Hujjaj South Asia Establishment, which was

not rental receipt with regard to contract entered with

Ali M.A. Jabullah and Zaid A.A. Abid for hiring of

accommodation for pilgrims. Petitioner submitted that

receipts having been again submitted alongwith the

reply dated 31.03.2018, the rejection was uncalled for.

Ms. Pinky Anand, learned Additional Solicitor General

refuting the submission contends that Muttawiffy Hujjaj

South Asia Establishment was not the party who had

provided accommodation to PTOs. Since the

accommodation contract at Madina was entered with

different persons and further no proper reply has been 38

given to the petitioner except again relying on the

said receipts.

34. We have considered the above submissions of the

parties and have perused the records. Although the

rejection of the claim of the petitioner clearly

mentions about the above mismatch and stated that

receipt voucher has been issued by entity with whom the

contract for accommodation was not entered into, but no

proper explanation in the writ petition has been given.

The writ petition only reiterates what was stated in

the reply dated 31.03.2018 without explaining the

objection raised by the respondent. We are satisfied

that there was valid reason for the respondent to

refuse registration to the petitioner when the

objection was raised, which was not satisfactorily

replied by the petitioner. We are of the view that

petitioner in this writ petition is not entitled for

any relief and the petition deserves to be dismissed.

35. In result, Writ Petition (C) No. 638 of 2018 ­ Ruby

Tour Services Pvt. Ltd. Vs. Union of India and Writ 39

Petition (C) No. 668 of 2018 ­ M/s. Hiba Exports India

Vs. Union of India are dismissed. Writ Petition (C) No.

646 of 2018 ­ M/s. Nawab Travels Private Limited Vs.

Union of India is allowed with a direction to the

respondent to pay compensation of Rs.5 lakh within a

period of two months from today, failing which the

petitioner shall be entitled to claim simple interest @

15 per cent per annum. Parties shall bear their own

costs.

.............................J. ( A.K. SIKRI )

...............................J. ( ASHOK BHUSHAN )

NEW DELHI, JULY 30, 2018.