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2024 Supreme(Online)(DEL) 21081
HIGH COURT OF DELHI
Subramonium Prasad, J
MG TOURS AND TRAVELS – Appellant
Versus
UNION OF INDIA – Respondent
W.P.(C)-16471/2022
Mr. Santhosh Krishnan, Ms. Sonam Anand, Ms. Deepshikha Sansanwal, Mr. Kirtiman Singh, Mr. Waize Ali Noor, Ms. Shreya V. Mehra, Ms. Vidhi Jain, Mr. Kartik, Mr. Aditya Singh, Mr. Sumit Goel
Experience of a sole proprietor does not transfer to partners upon reconstitution of a proprietorship into a partnership, as a proprietorship is not a separate legal entity.
Headnote:(A) Haj Policy 2019-2023 - Eligibility criteria for Haj Group Organizers (HGOs) - The petitioner, a partnership firm, was found ineligible for registration as an HGO for Haj 2022-2023 due to lack of requisite experience after the death of the original proprietor - The court emphasized that the experience of a sole proprietor does not transfer to new partners upon reconstitution of the firm. (Paras 1, 19, 25, 26)
(B) Legal identity of proprietorship - The court reiterated that a proprietorship is not a separate legal entity and its experience cannot be inherited by a partnership formed after the proprietor's death. (Paras 20, 23)
Facts of the case:
The petitioner firm, originally a sole proprietorship, was reconstituted into a partnership after the death of the original proprietor. The firm applied for registration as an HGO but was found ineligible due to the new partners lacking requisite experience.
Findings of Court:
The court upheld the impugned order declaring the petitioner ineligible, stating that the experience of the original proprietor could not be transferred to the new partners.
Issues: Whether the experience of a sole proprietor can be transferred to partners after the reconstitution of a proprietorship into a partnership.
Ratio Decidendi: The court ruled that the experience garnered by a sole proprietor does not carry over to a partnership formed after the proprietor's death, affirming that a proprietorship is not a separate legal entity.
Result: Writ petition disposed of.
1. The Petitioner has approached this Court challenging the Order dated 23.05.2022 passed by the Respondent No.1/MoMA, Haj Division whereby the Petitioner were found ineligible for registration as a Haj Organizer/HGO for Haj, 2022-2023.
2. The facts in brief leading to the filing of the instant writ petition are as follows:
- i.
- The Petitioner was established as a sole proprietorship by one Mokshedur Tarafder. The proprietorship firm was engaged in business of providing Haj tours to pilgrims and was registered as an HGO for the following Haj i.e., Haj 2005, Haj, 2006, Haj, 2007, Haj, 2008, Haj, 2009, Haj, 2010, Haj, 2011, Haj, 2014, Haj, 2015, Haj, 2016, Haj, 2017, Haj, 2018.
- ii.
- A new 5 year policy for Haj titled “Policy for Haj Group Organiser for Haj 2019-23” was issued by the Ministry of Minority Affairs, Haj Division on 20.12.2018. Pursuant to which the Petitioner firm made its application as a Category I Haj Group Organizer under the HGO Policy 2019-2023. The Petitioner was subsequently recognised as a Category I Haj Group Organizer for Haj, 2019 by the Respondents on 20.05.2019. iii.
- Due to the advent of the COVID-19 pandemic, Haj tours were suspended by the Kingdom of Saudi Arabia due to which Haj tours were not undertaken by any HGOs registered under the HGO Policy 2019-2023.
- iv.
- The proprietorship firm was reconstituted on 01.04.2020 from a Sole-Proprietorship firm to a partnership firm with the Son of the original proprietor Ghalib Tarafder being inducted as a new partner. The conversion of the firm was intimated to the respondents by the petitioner vide email dated 21.10.2020. v.
- However, Mokshuk Tarafder, the original proprietor/partner of the petitioner firm died due to Covid-19 on 06.11.2021 pursuant to which Samsum Nehar, wife of the original proprietor and the mother of the surviving partner was inducted into the partnership. The respondents thereafter communicated the death of Mokshuk Tarafder and the reconstitution of the partnership to the respondent vide email dated 14.01.2022. vi.
- In the year 2022, the Kingdom of Saudi Arabia started accepting Haj Pilgrims pursuant to which a circular was issued by the Respondents to all registered HGOs under the 2019-23 Policy to express their willingness for participating in Haj,
2022. The interested HGOs were required to submit relevant documents confirming their eligibility under the said policy and subsequent allocation of pilgrims to the HGO. A circular dated 18.05.2022 was also issued by the Respondents whereby additional clarifications were provided vis-à-vis Haj policy 2019-23.
vii.
The Petitioner firm thereafter sent its willingness to operate as an HGO for Haj, 2022 along with supporting documents mentioned under annexure-I under 2019-23 Policy.
Subsequently, the Respondents sought clarifications from the Petitioner regarding its prior experience of conducting Haj and it was also intimated to the Petitioner firm that neither of the partners of the firm fulfill the eligibility criteria as required under the 2019-23 Policy. An undertaking was submitted by the Petitioner to the Respondents providing the required clarifications, pursuant to which the Impugned Order finding the Petitioner ineligible for registration as an HGO for Haj, 2022 was passed by the Respondents.
3. Notice was issued in the writ petition 01.12.2022. Counter affidavit has been filed by the Respondents.
4. During the pendency of the writ petition, a new policy titled “Registration of Haj Group Organisers (HGOs) for Haj-2023-registration and allocation of quota for Haj-2023” was issued by the Respondents whereby all HGOs regardless of their registration under the previous policy of 2019-23 were required to register a fresh as an HGO. Pursuant to the new policy being announced, this Court on 20.03.2023 allowed the Petitioner to file an application for registration as an HGO for Haj, 2023 and the Respondents were directed to file a status report after examining
