IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06..08..2008 C O R A M The Honourable Mr. A.K. Ganguly, Chief Justice and The Honourable Mr. Justice F.M. Ibrahim Kalifulla Writ Appeal Nos.866 to 868 of 2008 1. The Government of India, Rep. by its 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, South Block, New Delhi. .. Appellants versus 1. M/s. Zahrat Makkah Haj Services, Rep. by its Proprietor Shamsudeen Farook, .. 1st Respondent 72, Neela East Street, Nagapatinam. In W.A.No.866/2008 Al Manasik Haj Tours and Travels, Rep. by its Proprietor Dr. Syed Jalalullah, 86, Ponnappa Street, Near Jumma Masjid, .. 1st Respondent Purasawalkam, Chennai-84. in W.A.No.867/2008 Moulana Umra & Haj Organizer, Rep. by its Proprietor Mrs. K.M. Asma, 21, K. Musthaffa Street, Pudupet, .. 1st Respondent Attur P.O., Salem District. in W.A.No.868/2008 2. The Haj Committee of India (CHC), Rep. by its Chairman, Haj House, 7-A, M.R.A. Marg, Palton Road, Mumbai. https://hcservices.ecourts.gov.in/hcservices/ 3. All India Haj Umrah Tour Organisers Association, Rep. by its Chairman, GL-7/2, Ashok Estate, Barakhambha Road, Cannaught Palace, ..2nd & 3rd Respondent New Delhi-110 001. in W.A.No.866/2008 and 2nd respondent and nil in WA Nos 867 & 868 of 2008 All India Haj Umrah Tour Organisers Association, Rep. by its Chairman, P.O. Box No.17377, Second Floor, Halima Manzil, .. 3rd Respondent 4th Gavthan Lane, Opp. P.O. Andheri (West), in W.A.Nos.867 Mumbai-400 058. and 868 of 2008 - - - - - Prayer : Writ Appeals filed under Clause 15 of the Letters Patent against the common order of a learned single Judge of this Court dated 8.7.2008 made in W.P. No.37914, 37331 of 2007 and 584 of 2008 to issue writ of Certiorarified Mandamus calling for the records petitioners the proceedings of the 4th respondent in No.M.Haj/1184/10/2007 dated 13.11.2007 and quash the same and consequently direct the 2nd respondent herein to allot pilgrims quota to the petitioner herein for Haj 2008 and fourth coming years (WP 37914/2007)WP 37331/07 and 584/08 respectively. - - - - - For Appellants : Mr. M. Ravindran, Addl. Solicitor General of India. For Mr.D.Seenivasan, CCSC For Respondents-1 : Mr. R. Muthukumarasamy, Senior Counsel in W.As.866 & 867/2008 for Mr. S. Thirumavalavan For Respondent-1 : Mr. M.K. Hidayatullah in W.A.868/2008 - - - - - J U D G M E N T ( Delivered by The Honourable the Chief Justice ) Heard the learned counsel for the parties. These writ appeals have been filed by the Government of India, Ministry of External Affairs impugning a common order passed by a learned Judge of the writ court dated 8.7.2008. By the said common order, the learned https://hcservices.ecourts.gov.in/hcservices/ Judge disposed of three writ petitions, being W.P. Nos.37914 and 37331 of 2007 and 584 of 2008 filed by the petitioners challenging an order dated 13.11.2007 passed by the appellants herein. The order dated 13.11.2007 was passed by the Deputy Secretary to Government (Haj), Ministry of External Affairs and was addressed to the writ petitioners who had applied for registration as Private Tour Operators (PTO) in connection with Hajj Pilgrimage. By the said order, the Deputy Secretary (Haj) communicated to the writ petitioners that their applications for registration as PTOs and allotment of quota for the Hajj Pilgrimage – 2007 could not be considered favourably. It may be noted that none of the petitioners had made the application for the Hajj Pilgrimage – 2008 and all the applications were for the Hajj Pilgrimage – 2007. But these writ petitions have been filed to quash the said order dated 13.11.2007 and for a direction on the respondents to register them as PTOs and allot pilgrims quota for the Hajj Pilgrimage – 2008. But the fact remains that no petition in connection with Hajj Pilgrimage – 2008 was made by the petitioners for the consideration of the respondents. The learned Judge of the writ court, however, after considering the rival contentions, was pleased to pass the following directions :- "In the result, all the writ petitions are disposed of with a direction to the 2nd respondent to consider the applications of the petitioners and to register their names if they have satisfied all the other legal requirements. Their request should not be rejected at any cost on the ground that they are new PTOs and for paucity of quota. As indicated above, after registering the names of these petitioners and similarly placed persons, the claim of all such registered PTOs, either old PTOs or new PTOs, should be considered alike while allotting the quota to them. No costs. Consequently, connected miscellaneous petitions are closed." 2. Assailing the order of the learned Judge of the writ court, the learned Additional Solicitor General of India submitted that the learned single Judge, while passing the said order, has not considered very many vital aspects of the matter relating to organisation of Hajj Pilgrimage. The learned Additional Solicitor General submitted that organisation of the Hajj pilgrimage is based on a bilateral agreement between two sovereign countries, viz. India and the Kingdom of Saudi Arabia and various steps are required to be taken for an orderly organisation of the said pilgrimage and in this matter, the Government of India has always expressed its deep concern and involvement. He further submitted that after the order was passed by the learned single Judge, some subsequent events have taken place in the form of an information posted on the website of the https://hcservices.ecourts.gov.in/hcservices/ Ministry of Hajj, Kingdom of Saudi Arabia on 3.8.2008. From the said information, it appears that the the Ministry of Hajj, Kingdom of Saudi Arabia has imposed a three year moratorium on accepting any new applications from tourist companies and other agencies abroad for granting approved status as organisers of pilgrimages. The exact communication posted on the website is reproduced hereunder :- "Ministry of Hajj declares three year moratorium on the appointment of any new travel agencies abroad The Ministry of Hajj has made it clear that, for a period of three years (starting August 2007), it will not accept any new applications from tourist companies and other agencies abroad for approved status as organisers of pilgrimages. This decision has been prompted by the need to control the number of pilgrims each year for safety reasons, to avoid problems with crowd control and to avoid excessive congestion on the roads around the Holy Places. It is also the case that the Ministry and its branches in Makkah Al-Mukarramah and the Jeddah Governorate have been inundated with applications from tourist companies, agencies and charitable societies seeking new licences for the right to organise pilgrim travel from outside the Kingdom." Along with the said communication, the Ministry of Hajj has also enclosed a list of the travel agents in India which was approved by the Ministry of Hajj and who can apply for Hajj Visas. 3. It is common ground that the names of the writ petitioners did not figure in the said list of PTOs approved by the Ministry of Hajj, Kingdom of Saudi Arabia. Learned Additional Solicitor General has produced before this Court a communication dated 4.8.2008 received from the Indian Consul General, Jeddah to the effect that the aforesaid information posted on the website of the Ministry of Hajj, Kingdom of Saudi Arabia was also verified by the Vice Consul (Haj), who visited the Ministry of Hajj in Jeddah and to the effect that the said information posted on the website is correct. The said documents were made available to the learned counsel appearing for the writ petitioners and they have not disputed its correctness. 4. It is common knowledge that several lakhs of people every year go on a pilgrimage to the holy cities of Makkah and Madinah as fulfillment of their life desire and as a pious obligation. On an average, more than twenty lakh pilgrims assemble in the holy cities on such occasion. Therefore, elaborate arrangements are required to be made for providing them accommodation, proper health care and https://hcservices.ecourts.gov.in/hcservices/ other basic amenities and also other arrangements for their visa and travel are required to be made. It is a huge affair. 5. This whole exercise receives very important consideration from the Governments of both countries and is governed by a bilateral agreement between the Government of India and the Kingdom of Saudi Arabia. This year, the number of pilgrims who are going on the Hajj Pilgrimage from India is about 1,60,491 and out of that, the number of pilgrims managed by the Hajj Committee of India is 1,10,000 and the remaining 50,491 pilgrims are managed by the PTOs. These PTOs must have adequate experience in managing these pilgrims in a foreign country, considering various requirements of the pilgrimage. Therefore, these PTOs are to be registered with the Government of India first and then, they are to be approved by the Kingdom of Saudi Arabia. The list of such approved PTOs from India, which does not include the petitioners, has been circulated by the recent communication by the Ministry of Hajj, Kingdom of Saudi Arabia and a ban has been imposed by the Kingdom of Saudi Arabia on further addition to the said list for a period of three years from 2007. In that view of the matter, it is difficult for this Court to accept the concluding directions given by the learned Judge of the writ court on a matter which is so sensitive and is of vital importance for the prestige and international honour of both these countries. It is an accepted position that each and every pilgrim is taken individual care of and it is a major concern of both these countries to ensure that they are not subjected to any kind of harassment or any inconvenience, and every effort is taken by the Government of India to ensure that the pilgrims who go from India are extended proper accommodation and toilet facilities and other logistic support in the midst of such huge number of more than twenty lakh pilgrims who come to the holy cities from all over the world. Therefore, in order to ensure that, the Government of India takes special care to find out which PTOs are to be registered. So, the learned Additional Solicitor General submits, and in our view rightly, that there are various matters which are to be considered by the Government before allowing the plea for registration of new PTOs. Apart from that, it appears that no application has been made by the petitioners for registration as PTOs for the Hajj Pilgrimage – 2008 and all the applications were made for the Hajj Pilgrimage–2007. In that view of the matter, the directions given by the learned Judge of the writ court cannot be sustained. This Court, therefore, is constrained to hold that the learned Judge did not have the benefit of considering the latest communication of the Ministry of Hajj, Kingdom of Saudi Arabia and as such, obviously came to an erroneous decision. The said decision cannot be sustained and is accordingly set aside. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned Additional Solicitor General appearing for the appellants has, however, admitted that the applications of the writ petitioners for registration as PTOs will be considered in the light of the latest clarification issued by the Ministry of Hajj, Kingdom of Saudi Arabia and in accordance with a fair procedure, but such consideration can only be made after the Hajj Pilgrimage–2008 is over. This Court has been assured that if on such consideration it is found that the writ petitioners are entitled to registration as PTOs in the light of the stand of the Ministry of Hajj, Kingdom of Saudi Arabia at the relevant point of time, such consideration shall be made. 7. With these observations, these writ appeals are allowed. The order of the learned single Judge is set aside to the extent indicated above. There shall be no order as to costs. Consequently, M.P. Nos.1, 2, 2, 1 and 1 of 2008 are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ab To 1) The Chairman, Haj Committee of India (CHC), Haj House, 7-A, M.R.A. Marg, Palton Road, Mumbai. 2) The Secretary to Government, Government of India, Ministry of External affairs, South Block, New Delhi. 3) The Joint Secretary (Gulf & Haj) Ministry of External affairs, South Block, New Delhi. 4) The Deputy Secretary to Government (Haj) Ministry of External affairs, South Block, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 5) The Chairman, Haj Committee of India (CHC) Haj House, 7-A, M.R.A. Marg, Palton Road, Mumbai. 6) The Chairman,All India Haj Umran Tour, Organisers Association, P.O.B.No.17377, II Floor, halima Manzil, 4th Gavthan Lane, Opp. P.O. Andheri (West), Mumbai 400 058. 7) All India Haj Umrah Tour, Organisers Association, GL 7/2, Ashok Estate, Barakambha Road, Connaught Place, New Delhi 110 001. + 3 CCs To Mr.S. Thiruvalavan, Advocate SR NO.43044 + 1 CC To Mr.Hidayathullah, Advocate SR NO.43119 + 1 CC To Mr.D.Sreenivasan, Advocate SR NO.43024 W.A. Nos.866 to 868 of 2008 SSV (CO) TP/08.08.08 https://hcservices.ecourts.gov.in/hcservices/