IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 17946 of 2010(P) ---------------------------------------- PETITIONER(S): ------------------------- 1. AL AMEEN HAJ GROUP, PANCHAYATH SHOPPING COMPLEX, VALANCHERY P.O., MALAPPURAM DISTRICT, KERALA-676 552, REPRESENTED BY ITS PROPRIETOR MR.MOHAMED ABDULRAHIMAN HAJI. 2. SWAFA HAJJ SANGAM-KOOTTANAD MUNEERUL ISLAM MADRASSA BUILDING NO.1/577 KOOTTANAD-PALAKKAD DISTRICT KERALA, REPRESENTED BY ITS PROPRIETOR MR.P.YOOSUF IBRAHIM. 3. AL-BAITH HAJJ UMRA SERVICE TC 46/1508 (27) S.F.TOWER, MANCAUD P.O., TRIVANDRUM, KERALA-695 009, REPRESENTED BY ITS PROPRIETOR MR.SHAMNAD.P. 4. ARABIAN TRAVELS AND HAJJ GROUP THOPPIL BUILDING, NEAR BUS STAND, KOTTAKKAL-MALAPPURAM DISTRICT, KERALA REPRESENTED BY ITS PROPRIETOR MR.UMMER KARUTHEDATH. 5. SHARAFIYYA TRAVELS, HAJJ & UMRA, NEAR BUS STAND, KOTTAKKAL-676 503, MALAPPURAM DISTRICT, KERALA, INDIA, REPRESENTED BY ITS PROPRIETOR MR.O.SHIHABUDHEEN. 6. AL AMANA HAJ GROUP, ALAMABA TOURS & TRAVELS, CHELRAI, THENHIPALAM-673 636, REPRESENTED BY ITS PROPRIETOR MR.SAIDALAVI FAIZY M. Kss ..2/- ...2.... WPC.NO.17946/2010 P 7. THAQWA TOURS & TRAVELS, ANAKKARA, PALAKKAD DISTRICT, KERALA, REPRESENTED BY ITS PROPRIETOR MR.MOHAMMED BASHEER CHOLALYIL. 8. AL RAHMA HAJ GROUP ZAM-ZAM BUILDING, KOZHIKODE ROAD, VALANCHERY, MALAPPURAM DISTRICT, PIN-676 552, REPRESENTED BY ITS PROPRIETOR MR.V.ABBAS ALI. 9. AL-HAMD HAJ & UMRA SERVICE, ATHANIKAL BUILDING, NADAPARAMBU, KARAMBATHUR P.O.,PALAKKAD- 679 305, REP.BY ITS PROPRIETOR MR.C.ABDUNNASIR. 10. MAMPURAM HAJJ UMRAH SERVICE & TRAVELS VENNIYUR P.O., MALAPPURAM DISTRICT REPRESENTED BY ITS PROPRIETOR MR.N.M.ALIKKUTTY MUSLIYAR. 11. AL-IMDAD HAJJ GROUP M.I.BUILDING, NEAR JAMIYA IMDADIYA ARABIC COLLEGE, PERUMATHURA, THIRUVANANTHAPURAM KERALA-695 303, REPRESENTED BY ITS PROPRIETOR MR.ABDUL LATHEEF MOULAVI ULLATTY. 12. AL-ABRAR HAJJ & UMRAH SERVICE, NANDI (VIA) KOILANDY P.O., KATALUR, KOZHIKKODU DISTRICT, KERALA-673 529, REPRESENTED BY ITS PROPRIETOR MR.SAYYID MUHAMMED SALEEM KOYATHANGAL. 13. MABROOR HAJJ GROUP, DARVESH COMPLEX MASJIO ROAD, UPPALA, KASARGOD DISTRICT, REPRESENTED BY ITS PRORPRIETOR MR.YOUSUF HAJI KUNJIPPA. 14. AL NAJAH TRAVELS AND HAJ UMRA SERVICE, NEAR GOVT.HOSPITAL, KOTHAMANGALAM ALIF PLAZA COMPLEX, REPRESENTED BY ITS PROPRIETOR MR.V.B.SULAIMAN. Kss ..3/- ..3.... WPC.NO.17946/2010 P 15. MARHABA HAJJ & UMRA SERVICE KALAPPADAN BUILDING, OPP.STADIUM COMPLEX, DOWNHILL P.O., MALAPPURAM DISTRICT REPRESENTED BY ITS PROPRIETOR MR.ABDULLA K.P. 16. JAMATH COUNCIL HAJ AND UMRA SERVICE DWARAKA NEAR WEST PALACE MASJID, BEACH ROAD, ALAPUZHA, REPRESENTED BY ITS PROPRIETOR A. NAZEER. 17. BHARATH TOURS & TRAVELS BHARATH HAJJ & UMRA SERVICE, BHARATH TOWER, OPP.TALUK OFFICE, KOLLAM-1, REPRESENTED BY ITS PROPRIETOR MR.SHAJAHAN.Y. 18. HAJJ SABEEL, BARAKATH COMPLEX, VADAKKEVILA P.O., KOLLAM, REPRESENTED BY ITS PROPRIETOR MR.MOHAMMED FAROOQ. 19. AL-NOOR HAJJ UMRA TRAVEL & SERVICE CHALAVARH, PULIYANAM KUNNU P.O., PALAKKAD, REPRESENTED BY ITS PROPRIETOR KUNJU MOHAMMED, 20. M.I.C.HAJJ CELL MARKZ SOUTH KALAMASSERY CHANGAMPUZHA NAGAR P.O., KOCHI, KERALA REPRESENTED BY ITS PROPRIETOR MR.ALIKUNJU MOULAVI 21. MALHAR HAJJ UMRAH SERVICE, AL-BUKHARI COMPOUND, HOSANGADI, MANJESHWAR, KASARAGOD-671323, REPRESENTED BY ITS PROPRIETOR MR.SAYYID ABDU RAHIMAN SHAHEER THANGAL. BY ADVS. SRI.DEVAN RAMACHANDRAN, SRI.SUMESH KUMAR, SRI.ANEESH K.M., SRI.M.V. JOY. Kss ..4/- ...4.... WPC.NO.17946/2010 P RESPONDENT(S): --------------------------- 1. THE GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT IN THE MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, NEW DELHI. 2. THE JOINT SECRETARY (GULF AND HAJ) MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, NEW DELHI. 3. THE DEPUTY SECRETARY (HAJ) MINISTRY OF EXTERNAL AFFAIRS, AKABR BHAVAN, CHANAKYAPURI, NEW DELHI. 4. HAJ COMMITTEE OF INDIA (CHC) REPRESENTED BY ITS CHAIRMAN, HAJ HOUSE, 7-A, M.R.A.MARG, PALTON ROAD, MUMBAI. *ADDL.R5 IMPLEADED: R5. M/S. ALL INDIA HAJ UMRAH TOUR ORGANIZERS ASSOCIATION, REP. BY ITS AUTHORIZED SIGNATORY, DR. JALALULLAH, 71/73, CHAKLA STREET, 2ND FLOOR, OPP.WOOLCO TEXTILES, MUMBAI - 400 003. (*ADDL.R5 IMPLEADED AS PER ORDER DTD. 17/08/2010 IN I.A.11360/10) R1 TO R3 BY ADV. SRI. T.P.M.IBRAHIM KHAN, ASST.S.G. OF INDIA BY ADV. SMT.P.A.REZIYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/09/2010 ALONG WITH WPC.NO.18814 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17946/2010 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN WPC.NO.21095/2009. P2: COPY OF THE PRESS RELEASE MADE BY THE GOVERNMENT OF INDIA. P3: COPY OF THE ALLOCATION OF SEATS TO THE VARIOUS PTOs IN 2009. P4: COPY OF THE NOTIFICATION CALLING FOR APPLICATION FOR REGISTRATION OF PTOs FOR THE YEAR 2010. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE POLICIES FOR REGISTRATION OF PRIVATE TOUR OPERATORS FOR HAJ 2009. R1(B): COPY OF THE POLICIES FOR REGISTRATION OF PRIVATE TOUR OPERATORS HAJ 2010. /TRUE COPY/ P.S.TO JUDGE Kss 'CR' C.N.RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NOS:17946, 18814, 19035, 19104,18934, 21585 & 26223 OF 2010 ----------------------------------------------------------- Dated this the 13th September, 2010. JUDGMENT Ramachandran Nair, J. The prayer in all these writ petitions filed by few Private Tour Operators is for direction to the respondents to consider them also for allotment of Haj Pilgrim Quota for 'Haj 2010' under the quota allotted to Private Tour Operators (hereinafter called as 'PTOS'). 2. We have heard counsel appearing for the petitioners and Mr. T.P.M.Ibrahim Khan, Assistant Solicitor General appearing for the respondents. 3. As in last year the pilgrim quota allotted to India by the Government of Saudi Arabia is 1,60,491. Out of this 1,15,000 pilgrims are handled by the Haj Committee constituted under the Haj Committee Act, 2002 and balance 45,491are to be provided all facilities through PTOS. Until 2008 only 288 tour operators were registered by the Ministry and they were being allotted Haj Quota on an exclusive basis. Since applications filed by other tour WPC 17946/2010 etc. 2 operators were not responded to by the Ministry, several PTOS before the commencement of Haj season 2009 approached various High Courts in the country for appropriate directions to the respondents to consider allotment of Haj Quota to them as well. The writ petitions were disposed of by High Courts directing respondents to consider allotment of quota to all eligible PTOS in 2009 itself. Even though judgments of Madras High Court are produced, we feel it sufficient to refer to one of the orders produced i.e SLP 20130/2008 which is against judgment of the Madras High Court in W.A.867/2008. The Hon'ble Supreme Court closed the SLP recording the submission on behalf of the respondents that the case of the applicants will be considered based on clarifications issued by Government in their favour. Pursuant to orders of various High Courts and the Hon'ble Supreme Court, the Government of India issued Ext.P2 policy and based on it a list allotting quota to all eligible PTOS for Haj 2009 was issued which is produced as Ext.P3 in WP(C) 17946/2010. Based on the previous year's policy and allotment of Haj quota for 2009, under Exts.P2 and P3 petitioners made applications for registering them as eligible PTOS and for allotment of Haj quota for 2010. When Haj WPC 17946/2010 etc. 3 policy 2010 was announced it is seen that fresh PTOS will not be considered and therefore, the petitioners approached this Court challenging the said policy as creating monopoly for already registered PTOS and pray for directions to respondents to consider them also for allotment of Haj quota 2010. The learned Single Judge after being satisfied about the prima facie case established by the petitioners directed the Government first to entertain their applications and later by interim orders directed respondents to consider them for allotment of quota for Haj 2010 against which respondents filed separate writ appeals. While admitting the Writ Appeals both sides agreed to argue the writ petitions on merits and, therefore, we felt that the issue should be finally settled in the writ petitions itself and consequently all the writ petitions were posted and heard together. Since the issue raised and the prayer sought for are one and the same in all the cases we proceed to dispose of the writ petitions by this common judgment. 4. The contention of the petitioners is that based on policy decision taken by the Ministry for Haj 2009 produced as Ext.P2 the Government vide Ext.P3 allotted 50 each pilgrims to all the new 296 eligible applicants who applied for allotment of Haj quota 2009. WPC 17946/2010 etc. 4 This is over and above the allotments made to 288 PTOS already enrolled who were being given Haj quota every year including 2009. It is seen from Ext.P3 that old operators were allotted large number of pilgrims while the new entrants that is from serial Nos: 289 to 583 who were applying for two to three years prior to 2009 were allotted a uniform number of 50 pilgrims. The petitioners' contention is that the decision of the Government in Haj Policy 2010 produced as Ext.P4 debarring new applicants for being considered for allotment of Haj quota 2010 is contrary to the 2009 policy which was framed based on the decision of the various High Courts and the Hon'ble Supreme Court in the same matter. The petitioners have also produced the list of previous year's allottees who are facing enquiry and according to them many will be black listed or debarred and so much so petitioners could even be considered for allotment of pilgrims for Haj 2010 in those vacancies, i.e without increasing the number of PTOS from 2009. However, Assistant Solicitor General appearing for respondents contended that Ext.P4 is a policy decision taken by the Government to consider the performance of those PTOS who are allotted quota for Haj during 2009 this year also and then to consider the case of WPC 17946/2010 etc. 5 new applicants along with them for Haj 2011 and so much so for current year 2010 there is no propopsal for allotment of quota to new PTOS. 5. On going through Ext.P2 which is a policy decision taken by the Government during 2009 we notice that it is framed accepting the decisions of various High Courts and the Hon'ble Supreme Court that equitable and fair allocation of Haj quota should be done among all eligible PTOS including new applicants. Based on Ext.P2 policy decision, the respondents enrolled and made allotment in 2009 to as many as 296 PTOS along with the 288 who are already being allotted Haj quota every year including 2009. It is seen from Ext.P3 allotment made during 2009 that several old operators are getting large number of quota, for example, serial No:53 got 480 while serial Nos: 59, 92, 93 and 94 were allotted 411 each for that year. Similarly serial Nos: 60 and 61 got 377 each. The petitioners have made an allegation that several registered PTOS are group concerns and the real beneficiaries are common and in terms of real beneficiaries the allotment runs into thousands whereas new entrants in 2009 who are 296 got uniform allotment of 50 only. According to petitioners the allotments hitherto made WPC 17946/2010 etc. 6 create several monopolies which are group companies and if this is corrected there is slot for more number of PTOS for allotment. We find force in this contention because on the face of it there is no justification for maintaining disparity in the matter of allotment to various PTOS previously registered and the consequence is inequitable distribution of Government assigned work among private operators. The petitioners claim is 'equitable distribution in quota - allotment' which is accepted by the Government in principle in Ext.P2 policy itself which was at least partly implemented while allotting quota for Haj 2009. The present policy which is Ext.P4 is a complete reversal of Ext.P2 policy adopted during 2009 which as already stated was framed based on several judgments of High Courts and Hon'ble Supreme Court. It is to be seen that petitioners are similarly placed like the new PTOS who were given allotment in 2009 because petitioners have also been applying for the last two to three years and hence eligible to be considered going by Ext.P2 policy. 6. Assistant Solicitor General appearing for respondents submitted that at present around 600 are already in the list and any increase will upset the allotment and will cause difficulty in WPC 17946/2010 etc. 7 handling and processing the applications and the Saudi Government authorities also may raise objection if delay is caused on account of processing of large number of applications. However, it is to be noted that Government has not fixed any upper ceiling limit of PTOS and during the year 2009 they entrolled all eligible PTOS who have made applications for two to three years previously and each one of them was allotted a minimum quota of 50. Since in the first place Government has not fixed any limit for the number of PTOS eligible for allotment, petitioners request to be considered cannot be rejected on that ground. Secondly the list containing complaints pending enquiry produced before us show that large number of PTOS who were allotted quota in 2009 are facing enquiry pursuant to complaints from various corners including that of pilgrims. The Assistant Solicitor General also admitted that complaints are received but he is not sure whether proceedings could be finalised against all those involved before allotment of quota for this season. In any case, if at least some of them are found ineligible or black listed, the quota allotted to them in 2009 could be allotted to new applicants who before us are only 38 in numbers. We are told that though cases are pending in some WPC 17946/2010 etc. 8 other Courts like Madras and Jabalpur the applicants involved are only very few. Considering the small number of new applicants who are before this Court and other High Courts requesting to consider them for eligibility for registration and for allotment of quota for Haj 2010 we feel under 2009 policy they are entitled to be considered along with others. Further we find force in the contention of the petitioners that some of the PTOS are enjoying extensive facility in as much as they are getting allotment of around 500 in some cases and around 400 in the case of some others and there are several others who are above 150 and 200 etc. In the course of allotment respondents should consider whether the registered PTOS are related persons and if real beneficiaries are common in several PTOS, allotments should be made keeping in mind number of actual beneficiaries and not the number of applicant PTOS. We are of the view that the decision taken by the Government vide Ext.P4 to the extent of exclusion of new entrants for allotment of Haj quota 2010 is against Ext.P2 policy which is the policy decision taken by the Government based on several judgments and after considering the opinion of Hon'ble Mr.Justice Arijith Pasayat, Retired Judge, Supreme Court of India which is WPC 17946/2010 etc. 9 stated in Ext.P2. In our view Ext.P2 should be the consistent policy that Government should follow for all years to come and so much so Ext.P4 to the extent of exclusion of new operators should not be enforced. So far as the Haj quota allotment for India by Saudi Government remains the same as in 2009 and private PTOS are also allotted 45,491 pilgrims for this year also, we see no reason why the policy taken for 2009 should be given a go bye and for the Government to adopt a new policy debarring new entrants for being considered for allotment of Haj quota. There is nothing wrong in Government limiting the maximum number of eligible PTOS for allotment at any time because otherwise in the course of time the agents and representatives of PTOS may even outnumber the pilgrims! However, this could be achieved on a rational basis by making allotment on a rotation basis so that those operating one year can be kept out in the next year. Further number of allotment also should be such as to make the business viable. We also direct the Government to prohibit transfer of allotments by PTOS. 7. We therefore allow the writ petitions by declaring Ext.P4 to the extent of exclusion from Haj 2010 as illegal and arbitrary of new PTOS and by directing the respondents to consider the WPC 17946/2010 etc. 10 eligibility of the petitioners based on their applications already submitted and register such of them eligible for Haj quota allotment 2010 and to allot quota to them for Haj 2010 based on the norms adopted along with others. In the case of petitioners whose applications have been returned by the respondents they should forward the applications again along with copy of this judgment for respondents to consider the same. Immediately on receipt of the judgment respondents should process the matter and take decision without further delay. C.N.RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj WPC 17946/2010 etc. 11