TaxTMI 
TaxTMI 
2012 (5) TMI 858
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....rvam Ritam Khare, Abdul Karim 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 tim....
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....ified 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 th....
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....ually 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 Saudi Arabia any of the parts is not performed or performed improperly then the pilgrim loses not only his life savings but more importantly he loses the Hajj. It is not unknown that on landing in Saudi Arabia a pilgrim finds himself abandoned and completely stranded. 10. It is, thus, clear that in making selection for registration of PTOs the primary object and purpose of the exercise cannot be lost sight of. The object of registering PTOs is not to distribute the Hajj seats to them for making business profits but to ensure that the pilgrim may be able to perform his religious duty without undergoing any difficulty, harassment or suffering. A reasonable profit to the PTO is only incidental to the main object. 11. ....
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....sed 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 causing obstruction in the expeditious and timely supply of text books to school children. (emphasis added) 12. In another case Ranjit Kumar Ghosh v. State of Bihar and Ors. 2004 (3) BLJR 2242 dealing with the purchase of indelible ink by the Election Commission for proper conduct of election Aftab Alam J. (once again as a judge of Patna High Court) made the following observations: 15. What was observed in the case of printing of text-books applies with greater force to this case. Democracy is basic to and inseparable from our constitutional scheme. The survival of democracy depends upon proper conduct of elections and the importance of indelible ink is quite obvious for the proper conduct of elections. The purchase of indel....
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....t 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 financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. (emphasis added) 13. In a more recent decision in Union of India and Anr. v. international Trading Company and Anr. (2003) 5 SCC 437, relating to the renewal of the permit granted under t....
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....st 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 and dependent children, only one member of such family will be eligible for registration for Hajj-2012. 17. The lady submitted that though her husband was also in the same business but she worked as private operator/travel agent separately and independently from her husband. She further submitted that simply because her husband was also in the same business, there was no reason to deny her registration as PTO. 18. In response to the lady's apprehension, the learned Attorney General in his most amiable manner assured the lady and the Court that in case more than one member of a family satisfied the eligibility conditions and one of them was a woman, she would be given preference for registration to the exclusion of others and if there was no woman, pre....
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....rketing 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 with a reasonable area. The condition is provided to protect the interests of the pilgrims. 22. On a consideration of submissions made on behalf the parties, we see no arbitrariness and unreasonableness in the requirement of a minimum office area (carpet) of 250 sq. feet. Annual turnover of Rs. 1 crore. 23. Many objections were raised against the requirement to furnish documents showing minimum annual turnover of Rs. 1 crore for the years 2009-2010 or 2010-2011. 24. Mr. N. Rao, senior advocate appearing for a group of private operators/ travel agents, in course of his submissions, admitted that the turnover on the basis of a quota of 50 Hajj pilgrims alone would not be less than Rs. 75 lakhs. This means that if a private operator/travel ag....
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....e 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 the charges they would levy from the pilgrims. We realize that at the stage of applying for registration the applicant may give only a basic idea of the standard of arrangements and an approximate quotation of charges but even that would provide some check against fixing inflated and arbitrary prices on seats once registration is granted. 32. We would further like to point out that there is another way of looking at the process of registration. The Government of India has presently adopted an open ended approach under which any private operator/travel agent who satisfies the conditions in the Haj Policy is found eligible and granted registration. Now, it is undeniable that the number of PTOs cannot exceed 900, because in that case the number of seats allotted to each of them would go be....
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....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 of India in the air fare of the pilgrims. 36. From the statement made in paragraph 21 of the affidavit, as quoted above, it is clear that the Government of India has no control on the cost of travel for Hajj. The air fare to Jeddah for traveling for Hajj is increased by airlines to more than double as a result of the Regulations imposed by the Saudi Arabian Authorities. It is illustratively stated in the affidavit that in the year 2011, the air fare for Hajj was Rs. 58,800/- though the normal air fare to and from Jeddah should have been around Rs. 25,000/. In the same paragraph, it is also stated that for the Hajj of 2011, each pilgrim was charged Rs. 16,000/- towards air fare. In other words, what was charged from the pilgrims is slightly less than 2/3rd of the otherwise normal fare. We se....
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....ilgrims 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 the Government of India should bear this in mind. They will also be well advised to invite and take into account suggestions from private operators/ travel agents for preparing the PTO policy for the future. THE GOODWILL HAJJ DELEGATION 42. The issue of the Goodwill Hajj Delegation raises two questions; one in regard to the reasonableness and justification for sending an official delegation on the occasion of Hajj and the other about its composition and the manner in which people are nominated as members of the official delegation. In the affidavit of the Union of India, it is stated that the Goodwill Delegation was first sent to Saudi Arabia in the year 1967 and since then the delegation is being sent every year. The primary purpose of the delegation, according to the affidavit, is "to convey goodwil....
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....l 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 the Constitution. 46. Now coming back to the reasonableness and justification for sending an official Goodwill Delegation for Hajj, it is noted above that the first such delegation was sent in the year 1967. The sending of the Goodwill Hajj Delegation from India for the first time in the year 1967 was not by accident or chance and those whose memory goes back to that year would recall the circumstances in which the official Goodwill Delegation on the occasion of Hajj was first sent to the Kingdom of Saudi Arabia. It is no secret that after the 1965 war Pakistan tried to use even the Hajj pilgrimage for anti-India propaganda and the purpose of sending the Goodwill Delegation was to meet the anti-India propaganda. 47. The reason for which the delegation was first sent has long ceased to exist and Pakistan is no l....
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....f 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 Hajj the leader may, in consultation with the Indian Ambassador and Consul General, constitute a group of ten Indians from among the very large number of Indian pilgrims who are there at their own expense. It is to be kept in mind that over a lakh and fifty thousand pilgrims go for Hajj paying for their own expenses. The Indian Ambassador in Saudi Arabia and perhaps more than him, the Consul General at Jeddah would know about the arrival of many distinguished, learned and important Muslims among them and with the assistance of the Ambassador and the Consul General, the leader of the two member official team would be able to form a far more appropriate and representative Indian team from amongst them than a motley delegation whose members are selected on irrelevant considerations. 50. In this interim order we have primari....
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....s 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) Nos. 33190-33217 of 2011 59. In view of the order passed in SLP(C) No. 28609/2011, these special leave petitions have become infructuous and are disposed of as such. IAs by private operators. 60. In view of the order passed in SLP(C) No. 28609/2011, all interlocutory applications filed by private operators/travel agents raising objections to the Government of India 2012 Haj Policy stand disposed of. TP(C) Nos. 191/2012, 192/2012, 196/2012, 197/2012, 198/2012, 199/2012. 61. In view of the order passed in SLP(C) No. 28609/2011, the transfer petitions are rendered infructuous and stand disposed of accordingly. [1] The Noble Qur'an (English Translation of the meaning and commentary) published by The Ministry of Islamic Affairs, Endowments, Da'wah and Guidance of the Kingdom of Saudi Arabia which supervises King Fahd Complex For The Pri....