:1 * 36 + IN THE HIGH COURT OF DELHI AT NEW DELHI w.P.(c) 691812010 ALIF TRAVELS PVT LTD versus U}{ION OF INDIA LA]]BAIK TOURS & TRAVELS VETSTIS VCTSUS UNION OF INDIA Through Mr. Ravi Gupta, Senior Advocate rvith Ms. Nilofar Quereshi, Mr. Khushi Mohd. Advocates ..... Respondent Through Mr. Rajesh Katyal with Mr. Ashok Singh, Advocate along with Mr. A.M. Khan, Adrnn. Officer (FIaj), MoEA, Govt. of India. with w.P.(c) 69r9t20to ..... Petitioner U \/ ..... Petitioner UNIOhT OI] INDIA And 38 w.P.(c) 6e20t2010 TINII-ED TRAVEL SERVICE Tlrough Mr. Ravi Gupta, Senior Adr,ocate with Ms. Nilofar Quereshi, Mr. Khushi Mohd, Advocates ..... Respoudent Through Mr. Rajesh Katyal with lv{r. Asirok Singh, Advocate along rvith Mr. A.lvI. I(han, Adrnn. Officer (HE), MoEA, Govt. of India. ..... Petiti<lner Tlrough Mr. Ravi Gupta, Senior Advocate r,vith Ms. Nilofar (ltrereshi, lvk. Khushi Mohd. Advocates ..... Respondent Through Mr. Rajesh Katyal with Mr. Ashok Singh, Advocate along with Mr. A,M. Kltan, Adrnn. Officer (FIaj), MoEA, Govt. of India. L1/P (Civil) Nos. 6978, 6979 & 6920/2010 Paae 7 of 70 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified CORAM: JUSTICE S. MURALIDHAR ORDER 2r.10.2010 wp (civil) 6918/2010 & CM APPLS 13911/2010, 13912/2010 wP (civil) 6919/2010 & CM APPLS 13900/2010. 13899/2010 wP (civil) 6920/2010 & CM APPLS 13901/2010. 13902/2010 1. These three petitions are by Private Tour Operators (PTOs) regisiered as such rn'ith the Ministry of External Affairs (MEA), Governrnent of India for the Haj Pilgrimages during the years previons to 2010. Each of thern lrad been issued notices asking for their explanation in regard to complaints received against them in connection with the Haj Pilgrirnage 2009, The Petitioners replied to the notices but did not hear thereafter from tlie MEA. In fact, the secnrity deposited for FIaj pilgrimage-2O09 was retumed and applications made by each of them for FIaj pilgrirnage-2010 were accepteci. They learnt that their nalnes figured in the list of 615 PTOs furnished by the MEA to the Sr.rpreme Cout when it passed ar order on 21" Septenrber )010 upholding the FIaj Policy for 2010. According to the Petitioners the Suprerne Court was inforrned by the MEA that the quota for the Haj Pilgrirrrage 2010 had already been distributed arnong the said 615 PTOs. However, rtone of, the Petitioners was in fact allotted any quota for the Haj 2010. 2, Apprehending that they may have been blacklisted, although no suclt order \,vas comrnunicated to them till then, the Petitiorrers filed these t .l- petitions on 7u' October 2010 seeking a stay o1'the blacklisting process or the blacl<listing order if any passed and for a tnandamus to the MEA to allol. thern quotas for the Haj 2010. 3. At the hearing on 8tr' October 2010, one of the points urged by Nts.Nilofar WP (civil) Nos.6978, 6919 & 6920/2010 Poge 2 ol 70 ),) Quereshi, learned cottnsel for the Petitioners was that none of tL ( rem was[4 commllnicated any order by the MEA purportedly blacklisting them. it was insisted that their narnes figrrred in the list of 615 PTOs handed over to the Supreme Court at the hearing on 21't Septernber 2010 and that the Suprerne Court was infbrrned that the quota for Haj 2010 was being distributed arnong t]rem. Cotrntering this, it was stated by Mr.Rajesh Katyal, the learnect counsel for the MEA who appeared on 8u' October 2010 on advance notice, that at the hearingon2l't September 2010, a separate list of 13 PTOs had been sliorvn to the Supreme Court and the MEA had infor,rned the Suprenre Court that those 13 PTOs, v,,hich inclu<ied the tlrree pelitioners, Jrad been droppecl. Mr. I(atyal addeci that the narnes had becn dropped on the orders cf the cornpetent authority on complaints received against tlie petitioners abclut transfer of pilgrirns from one PTO to another and solne other factors, Since rhe order dated 21" September 2010 of the Supreme Court did not record airy such production of a list of 13 PTCs by the lvIEA, this Court rvanted to know if by then orders had treen passed blacklisting the Petitioners and ivhetber such orcldrs had beel c.orurnunicated to each of the petitioners. Ccunsci for the MEA sought tinre to seek instructions on this aspect and tire oase lvas adjourned to today. 4. Thereafter it appears that on 13th October 2010 eactr of the Petitioners received by Speed Post iclentical orders dated 5tr' October 2010 irrfbrrning thern tlrat they have been."dropped fiorn the list of relsteled PTOs for Ha.j. 20i0." These orclers werc dispatchecl on i2u'October 2010 and receivecl by each of them on 13t1'October 2010. Each of the Petitioners has filed separate applications seeking the. quashing of the said blacklisting orders I Poge 3 of 70 WP (Civil) Nos.6978,6979 & 6920/?.070 subsequently cornrnnnicated and seeking in the rreanwhile for the stay of those orders. An additional affidavit has also been filed by each petitiondr to place on record the list of PTOs to whom quotas were distributed for the Haj Pilglirnage 2009, which list included the narnes of the Petitioners. It is reiterated that since the sarne list was to operate for Haj 2OIO,which policy was accepted by the Supreme Court, the decision to blacklist the Petitioners after was irr any event wholly arbitrary and unjustified. 5. Mr. Ravi Gupta, learned Senior counsel for the Petitioners, while reiterating the submissions made before, pointed out that the blacklisting letter was dispatched only oo 12"' October 2010four days after the'previorts healing of the petitions. In the letter sent to IWs. Alif Traveis P\rt. Ltd. (ATPL) the Petitioner in W.P. (C) No. 6918 of 2010 the date has been origilraliy typed as 29tl'June 2010. Thereafter the words "2glfr June" has been scored out and "5th Oct" written beneath it by hand. It is subrnitted that ttre shorv cause notice issuecl to ATPL was also on 29tl'June 2010. According to the Petitioners this shor,r'ed that the decision to blacklist ATPL and the other hvo Petitiollers was a pre-deterrnined one. It is further subrnitted that none of tlre orders dated 5tL October 2010 give reasons why the Petitioners were being blacklisted. 6. Appearing fcr tire MEA, I\4r. Rajesh Katyal, learned counsel initially sutrruitted'tlrat he rvas uot aware if the Petitioners had been blacklisted but refened to the order datecl 2l't September 2010 of the Supreme Court and stated that the entire quota for the Haj 2010 stood distributed. Fie was .howev'er unabie to show ally recorcl rega: ding the list of 13 PTOs WP (Civil) Nos.6978, 6979 & 6920/2070 Page 4 of 70 purportedly shown to the Supreme Court, which included the names of the. . 1/ Petitioners. b 7. This Cout finds on a penrsal of the order dated 21" September 2010 passed by Suprerne Court in Special Leave Petition (Civil) No. 27032 of 2010 (Governntent af Indis v. Al Ameen Haj Group & Ors) that it malces no meution of sttch list of 13 PTOs, rvho were dropped for the Haj 2010, being shown to the Supreme Court. Clause I of the operative directions issued by the Supreme Court records that the PTOs who already stand identified are approxirnately 615 "and they have been selected by the Govt. of India and specified numbers of pilgrirns are also being distributed arnongst tbem giving them a specific nntnber." Clearly therefore at thjs stage the three petitioners, who were in the list of 615 PTOs, were in the reckoning for being allotted a quota each for the Haj Pilgrirnage 2010. 8. Secondly, the letters blacklisting the Petitioners are eaclr dated 5tl'October 2010. This puts paid to the contention of the MEA that even as ou 21" Septenrber 2010 th.ey nere clropped fi'orn the list of PTOs. It must be added that the original one of the letters dated 5'r'October 2010 addressed to ATPL (the date on which has been corrected from 29fl'June to 5il' October) as well the original of the cover in which it was dispatched by Speed Post was shorvn to Mr. A.M. Khan, Adrnn. Officer (Haj) MEA, who rvas present in Ccurt. He contjrmed that tlre signatrue on the letter u,as of tlte Under Secretary to the Government of lndia and that it lrad incleecl been dispatchecl on t2u'October 2010. Therefore prior to being deprived of the quota for Hai 2010, the three Petitioners were not communicated any order of btacklisting. WP (Civil) Nos. 6978, 6979 & 6920/2070 Page 5 of 70 7t 9. Learned counsel for the MEA sought to argrre that, in keeping with the normal practice the names of those PTOs who had been allotted pilgrirns for Haj 2010 \,vas on the MEA's website. Those PTOs whose narnes did not find place in the said list would automatically presume that they have been blacklisted. Therefbre, there was no need to separately cotnmunicate a blackiistjng order to each such PTO. 10. Both as a factual and legal proposition, this subrnission is nntenable. No PTO is possibly going to 'presume' that it has been blacklisted unless an order to that effect is cornmnnicated to such PTO. A blacklisting order has adve-rse civil consequences atiecting the reputation of the errtity blacklisietl. It has to be only by a written order giving the reasons for such blacklisting. The procedure in alriving at such deoision has to be in compliance rvith the principles of natural justice. The order containing the reasons has to be cornnrunioated to the affected PTO. Any deviation frotn any of these iegal imperatives will render the order wlnerable to invalidation. 1 1. Factually, the MEA itself has considered it necessary to cornmttnicate, albeit after the petitions were heard by this court, the blacklisting orders to the petitioners. The MEA has not proceeded on the footing that the peti.tioners should already have knor,vn of such blacklisting. With there being nothing to show that there was any list of 13 PIOs slrcirvn to the Suprene Court r.vhi<;h inc,luded the Petitioners, the inescapable cottclusion is that no blacklisting order against each of them was passed prior to 50'October 2010 and factrially no snch orcler was colnmunicated till 13th Octcrber 2010. 'Ihe WP (civil) Nos.6978, 6919 & 692A/2010 Page 6 of 70 \r. Petitioners \^/ere part of the list of the PTOs who had qttotas for Haj 2009 | " and in keeping with the policy for 2010 were in line for allotments for Haj 2010. Therefore, the decision to drop the Petitioners frorn the list of PTOs to wlrom quotas for the Haj 2010 were to be distributed, even before any blacklisting order was passed, rnnch less comtnunicated to each of them, was a pre,detennined one r,vhich cannot be said to be either just or reasonable. 12. Turning to the blacklisting orders dated 5u' October 2010, they simply state that the explanation offered by each Petitioner to the notice issued by the MEA based on tbe cornplaints received against them was not found satisfactory and therefore they were being dropped from the list of PTOs for the Haj 2010. It must be recalled at this stage that as regards the Petitioners ir:r \,Vrit Petition (Civil) Nos. 6918 of 2010 & 6920 of 2010, the allegation agaiust them was that they had transferred their pilgrirns to IWs. Labbaik 'fours & Travels, the Petitioner in Writ Petition (Civil) 6919 of 2010 and that l.his was irnperrnissible and violative of the tenns and conditions upon whic.h allotrnents had been made to them for Haj 2009. All three Petitioners replied to the notices Cenying such allegation. IWs. Labbaik Tours & Travels denied having any connection with other two Petitioners. 13. The communication dated 5'r' October 2010 from the MEA to the Petitioner ATPL reads as under: "No. IWlIaj/lI $BAD010 .To The Proprietor, M/s. Alif Travels Pvt. Ltd. 101, Aliash Deep, 26, Barkhamba Road ' New Delhi - 1 10 001. WP (civil) Nos.6918, 6919 & 6920/2010 5d'oct 2olo Page 7 of 70 rlr\ i Subject: Complaints received from pilgrims regarding ) deficiency of services during Hai - 2009. Sir, Reference our previons correspondence on the abcve mentioned subjcct. The undersigned is directed to inform yotl that clarification given by you on the cornplaints received against your company was coltsidered by the competent authorities in the Ministry and was not founcl satisfactory. Therefore, your company has been dropped from the list of registered PTOs for l{aj-2010' Yours taithfully, sd/- Under SecretarY to the Gorut. of . lnCia" 14. The letters to the other two Petitioners is iclentically wordeC anti date,J 5'r' October'2010.Ihat the llle number does not correspond rvith tLre miinber in the (shorv cause) notice issued to A.TPL is not of much significartce. As regards the letter sent to ATPL, the scoring out of the originally typed date of 29tl' June altcl its substitution by ink with "5il' Oct" cloes create solne suspicion, although in the other two cases the rJate is typed as 5til October. Nevertheless, r,r,hat is significant is tlrat in each of three cotntntlnicatioirs clated 5t1' Octob er 2010,uo reasons for the blacklisting are given. Thete is nothing to indicate rvhy the expianation offered by each of the Petitioners \,vas not found satisfactory. The sentence that tlie bxplanation of tlie Petitioners is not "satisfactory" js the MEA's conch.rsion, and not tire rsasons. 'IJre letters hardly satisfy the requirement of an orcler, having adverse civil consequences for the person against whom it is rnade. having to WP (Civil) Nos.6978, 6919 & 6920/2070 Page 8 of 70 reflect the rnind of the decision maker. In this connection, it would be usefil to recall the observations of this Court in Mekaster Tracling Corp. v. [Jnion of Indiu 106 (2003) DLT 573 where this Court quashed the blacklisting order by observing that "passing the order in such a slip shod manner r,vhich has the serious effect of blacklisting the petitioner for a long periocl of 5 years is certainll' not an act of good adrninistration". It observed that "the aforesaid summation cannot. be called as 'reasons' in support of the order. It can, at best, be tenned as conclusion. Apart from this conclusion there is nothiug in the order to jndicate any supportive reason". This Court pointed cirt that the link betareen the rnaterial on rvhich conc.lusions are based atid the actual conclusion had to be found. 'ilf that has remained at tire hack of the urind.of the authority passing the order, and has not surtaced on tbe records of th.e case, the ingredients of a reasoned order are not met". Furtlier it rvas emphasized that the reas<lns for arriving at the conclnsions "should be discemible from the order itself. It is trite law that when aurthority has ornjtted to give reasons in the impugned order such rr deficiency cannot bQ sr"rpplied by the State by adducing sufficient ground therefor rvhen tlie validity of the order is challenged". 15. Having being issued a priot notice and having received a repl.v.- in respouse thereto, it was jncumbent upon the Respondent to pass individual reasoned orders in each case giving the reasons why such PTO rvas being blacklistecl. On the other hancl the irnpugrred orders are inscrutable for iheir reasons, They have bcen passed in a rnechanical way giving the reader no occasion to discern the reasorrs flol the conclusion. This is yet another reason why the impugned blacklisting orders cannot be sustained in larv: 7 WP (Civil) Nos. 6918, 6979 & 6920/2070 Page 9 ol 7O t\ \,/ 16. Accordingly each of the orders dated 5il'October 2010 passed by the MEA dropping each of the Petitioners from the list of PTOs for Haj 2010 is hereby set aside. 17. Atl earnest plea was rnade by Mt. Gupta, learned Senior counsel for the Petitioners that a consequential order must be passed directing the MEA to' rvithdraw the excess qnota of pilgrims allotted to the Haj Cornrnittee and re- distribute thern among the Petitioners. With the Haj 2010 already nnderway and bookings of pilgrims having already been rnade, it will not be possible for tfiis Court to issue any such mandamus of that nafttre. For any loss suffered by the Petitioners on account of the impugned blacklisting ordet's, whjch have been set aside by this order, they can avail of appropriate rernedies ava.ilable to them in accordance with law. It is nevertheless ctarified that this order will not preclude the' Petitioners from rnaking representations to the MEA to consider thern for allotrnent of pilgrims, if any renrain to tre allotted, even for Haj 2010. Strch representation u,hen made rvill be considered bv the MEA on merits and in accordance r,vith law. 18. The writ petitions are allowed in the above terms. The pending appiications are disposed of. \\-? S. MTTRALIDHAR, J. ocroBER 21, 2010 rk WP (Civil) Nos.6978, 6979 & 6920/2070 Poge 70 of 70