Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(SC) 453

SUPREME COURT OF INDIA
Sanjay Kishan Kaul, J. Chelameswar, JJ.
United Air Travel Services Through Its Proprietor A.D.M. Anwar Khan – Petitioner
Versus
Union of India Through Secretary (Ministry of External Affairs) – Respondent
Writ Petition (Civil) No.631 of 2016 With Writ Petition (Civil) No.636 of 2016, Writ Petition (Civil) No. 634 of 2016, Writ Petition (Civil) No. 934 of 2016, Writ Petition (Civil) No. 941 of 2016, Writ Petition (Civil) No. 938 of 2016, Writ Petition (Civil) No. 11 of 2017, Writ Petition (Civil) No. 94 of 2017
Decided On : 07-05-2018

Advocates Appeared:
For the Petitioner: Sulaiman Mohd. Khan, Mohd. Ainul Ansari, Taiba Khan, Mohit Prasad, Kripa Shanikar Prasad, Sunil Khatwani, Pardeep Jatav, Inamul Haque, Manoj Kumar Goyal, Sayid Marzook Bafaki, Chandra Bhushan Prasad and Rajat Bhardwaj, Advs.
For the Respondent: Priya Puri, Ranjay Kr. Dubey, Mr. Mukesh Kumar Maroria and B. Krishna Prasad, Advs.

IMPORTANT POINT
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

Headnote:(a) Administration of justice – Petitioners granted exemption from certain clauses of PTO policy norms – Disqualified separately from operating as PTO for non-compliance of those very clauses from which they were exempted – Contention that reason wrongly given, actual reason being something else – Unsustainable – Impugned letter of rejection quashed. (Para 12)
       (1978) 1 SCC 405 – Relied upon
       (2013) 4 SCC 699; (2016) 15 SCC 246 – Referred
       (b) Administration of justice – Public law – Damages – Respondents rejecting eligibility of petitioners mindlessly on the very grounds on which they were exempted – Violation of Article 14, Constitution of India – The wrongdoer must be punished – Held, petitioners entitled to damages. (Para 13, 16)
       (1993) 2 SCC 746; (1999) 6 SCC 667; (1994) 6 SCC 205 – Relied upon
       Facts of the case:
       A batch of writ petitions raises the issue of Private Tour Operators ('PTOs') who are, inter alia conducting the travel business for Hajj and Umrah being disqualified for grant of registration for the year 2016 for the Hajj pilgrimage.
       In terms of the PTO policy approved by Supreme Court, since the qualified PTOs exceeded 90, a draw of lots was held. Further, since the petitioners were not successful in the draw of lots, they were entitled, under clause 4(b) of the policy aforesaid, to be allocated 150 seats in the ensuing year without Qurrah if they remain qualified as PTOs. In view of certain changes in the policy of the Saudi Government, the number of seats to be allocated for 2016 would have been 50.
       The Press Release of 7.8.2015 gave the list of PTOs who have qualified but did not get quota, and the petitioners figured in the said list.
       Petitioners were disqualified for non-compliance of the very clauses of the norms of which exemption had been granted to them.
       Finding of the Court:
       Petitioners are entitled to damages.
       Result : Writ petitions allowed.

JUDGMENT

Sanjay Kishan Kaul, J.

A batch of writ petitions raises the issue of Private Tour Operators (for short 'PTOs') who are, inter alia conducting the travel business for Hajj and Umrah being disqualified for grant of registration for the year 2016 for the Hajj pilgrimage. The prayer is for quashing the identical communications dated 27.7.2016 issued by the respondent rejecting the application of the petitioners for registration and allocation of quota for the Hajj 2016 on the ground that they have not complied with certain clauses of the policy for the PTOs as laid down by this Court.

2. The issue relating to the Hajj policy and the registration of these PTOs has resulted in two judicial pronouncements by this Court in Union of India v. Rafique Shaikh Bhikan, (2013) 4 SCC 699 and Al Ismail Haj Tour v. Union of India, (2016) 15 SCC 246. The policy presented on behalf of the Government was approved by this Court with slight modifications and was annexed as Appendix-I to the order in Union of India v. Rafique Shaikh Bhikan, (supra) case referred to aforesaid to be called as 'Policy for Private Tour Operators for hajj 2013 - 2017'. The policy was to remain valid for a period of five years and was not to be questioned in any court or authority. The petitioners were all eligible to be qualified as PTOs for the year 2015 for Hajj pilgrimage but in the process of draw of lots dated 7.8.2015, luck did not favour them and they thus did not get quota. The relevant extract of the policy is as under:

"Appendix I
Ministry of External Affairs
(Gulf and Haj Division)
***
Registration of Private Tour Operators - Haj 2013

The Government of Saudi Arabia has notified that Private Tour Operators (PTOs) registered with the Government of India and involved in the preparation of the Haj Pilgrimage will be eligible for grant of Haj group visas subject to fulfilment of other terms and conditions as laid down by the Saudi Authorities.
2. Applications are invited from eligible PTOs for registration for Haj 2013. The eligibility criteria are at Annexures A and B. The applications must be submitted in the prescribed format (Annexure C) directly to MEA or any other agency appointed by it.
3. It is to be noted that the Government of Saudi Arabia has stipulated that effective Haj 2013, a PTO should facilitate at least 150 pilgrims. Accordingly, the PTO Policy has been reframed. For registration and allotment of quota of Haj seats for Haj 2013, interested PTOs may apply under the following two categories:

Category I

PTOs registered with MEA and facilitated Hajis at least for 7 Haj operations or more.

Category II

PTOs registered with MEA and facilitated Hajis for at least for 1 to 6 Haj operations and PTOs which have facilitated at least 50 umrah pilgrims in a year for any five years.

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

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Category I	PTOs registered with MEA and facilitated Hajis at least for 7 Haj operations or more.
Category II	PTOs registered with MEA and facilitated Hajis for at least for 1 to 6 Haj operations and PTOs which have facilitated at least 50 umrah pilgrims in a year for any five years.

2018 Supreme(SC) 453

IMPORTANT POINTWhen a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

Cases Referred (6)

IMPORTANT POINT
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.