IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.08.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.Nos.13106, 13136, 15241, 16981 17087, 17351, 17937, 17946 and 17972 of 2010 & connected miscellaneous petitions 1. M/s. Y Son & Co., Hajji Tours and Travels, 44/8, Jeenis Road, Saidapet, Chennai 600 015. ... Petitioner in W.P.No.13106 of 2010 2. M/s. Nagore Shariff Haj Service, Rep. by its Managing Partner, No.2, Thalaimattu Street, Nagore Shariff, Nagapattinam District – 611 002. .... Petitioner in W.P.No.13136 of 2010 3. Al-Arafah Haj Service, Rep. by its Proprietor, No.1/635/1 V.O.C. Street, Perumbakkam, Chennai – 600 100. .... Petitioner in W.P.No.15241 of 2010 4. M/s. Y Son & Co., Hajji Tours and Travels, 44/8, Jeenis Road, Saidapet, Chennai 600 015. ... Petitioner in W.P.No.16981 of 2010 5. Al-Aadhil Haj Service, Rep. by its Proprietor, No.61/123, Thoppai Mudhali Street, Royapuram, Chennai – 600 013. ... Petitioner in W.P.No.17087 of 2010 6. M/s. Nagore Shariff Haj Service, Rep. by its Managing Partner, No.2, Thalaimattu Street, Nagore Shariff, Nagapattinam District – 611 002. .... Petitioner in W.P.No.17351 of 2010 https://hcservices.ecourts.gov.in/hcservices/ 7. Al-Arafah Haj Service, Rep. by its Proprietor, No.1/635/1 V.O.C. Street, Perumbakkam, Chennai – 600 100. .... Petitioner in W.P.No.17937 of 2010 8. M/s. Aman Haj Service, No.2, Dargah Street, Tirupattur – 635 601. Vellore District. .... Petitioner in W.P.No.17946 of 2010 9. Al-Aadhil Haj Service, Rep. by its Proprietor, No.61/123, Thoppai Mudhali Street, Royapuram, Chennai – 600 013. .... Petitioner in W.P.No.17972 of 2010 Versus 1. Government of India, Rep. by its Secretary to Government, Ministry of External Affairs, South Block, New Delhi. 2. Additional Secretary to Government (Gulf & Haj) Ministry of External Affairs, South Block, New Delhi. 3. Deputy Secretary to Government, Director of Haj, Ministry of External Affairs, Akbar Bhavan, Chanakyapuri, New Delhi. 4. Haj Committee of India (CHC) Rep. by its Chairman / CEO 7A MRA Marg., Mumbai 400 001. ... Respondents 1 to 4 in all the writ petitions. 5. M/s. All India Haj Umrah Tour Organizers Association, Rep. by its Authorised Signatory, 71/73, Chakla Street, Second Floor, Opp Woolco Textiles, Mumbai 400 003. ... Respondent No.5 in W.P.No.13106 of 2010 (R-5 impleaded as per the order dated 13.08.2010 in M.P.No.3 of 2010 in W.P.No.13106 of 2010) https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.Nos.13106, 13136, 17087, of 2010 : Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the files relating to Haj- 2010 notification dated 01.06.2010 issued by the respondents and quash the clause "The Policy for allocation of the Haj quota to PTOs for Haj-2010 provides that only those PTOs who were registered and allotted a quota during Haj-2009 may apply for registration and allotment of quota for Haj-2010. The registration and allotment of Haj quota to new applicants will be considered next year i.e. before Haj-2011 after evaluating the performance of those new PTOs who were allotted the quota in 2009 and (if eligible) in 2010" in the Haj-2010 Notification and consequently direct the respondents herein to grant allotment of 100 pilgrims quota to the petitioner for Haj-2010 and for the forthcoming years on par with the Old Private Tour Operators. PRAYER in W.P.No.15241 of 2010 : Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the files relating to Haj-2010 notification dated 01.06.2010 issued by the respondents and quash the clause "The Policy for allocation of the Haj quota to PTOs for Haj-2010 provides that only those PTOs who were registered and allotted a quota during Haj-2009 may apply for registration and allotment of quota for Haj-2010. The registration and allotment of Haj quota to new applicants will be considered next year i.e. before Haj-2011 after evaluating the performance of those new PTOs who were allotted the quota in 2009 and (if eligible) in 2010" in the Haj- 2010 Notification and consequently direct the respondents herein to grant allotment of 50 pilgrims quota to the petitioner for Haj-2010 and for the forthcoming years on par with the Old Private Tour Operators. PRAYER in W.P.No.16981 of 2010 : Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the records of the fourth respondent pertaining to HC-PTO/2010/2411 dated 21.07.2010 and quash the same and consequently direct the respondents herein to grant allotment of 100 pilgrims quota to the petitioner for Haj-2010 and for the forthcoming years on par with the Old Private Tour Operators. PRAYER in W.P.No.17937 of 2010 : Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the records of the fourth respondent pertaining to HC-PTO/2010/2495 dated 26.07.2010, and quash the same and consequently direct the respondents herein to grant allotment of 100 pilgrims quota to the petitioner for Haj-2010 and for the forthcoming years on par with the Old Private Tour Operators. https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.No.17946 of 2010 : Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the proceedings of the respondents made in Haj-2010 notification dt 01.06.2010 more particularly the clause "The Policy for allocation of the Haj quota to PRO s for Haj-2010 provides that only those PTO s who were registered and allotted a quota during Haj-2009 may apply for registration and allotment of quota for Haj-2010 the registration and allotment of Haj Quota to new applicants will be considered next year i.e. before Haj-2011 after evaluating the performance of those new PTO s who were allotted the quota in 2009 and (if eligible) in 2010 and the order of the 4th respondent made in HC-PTO/2010/2497 dated 26.7.2010 and quash the same consequently direct the respondents to allot 100 pilgrims quota for Haj-2010 for the forthcoming years. PRAYER in W.P.No.17351 of 2010 : Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the records of the fourth respondent pertaining to HC-PTO/2010/2501 dated 26.07.2010, and quash the same and consequently direct the respondents herein to grant allotment of 200 pilgrims quota to the petitioner for Haj-2010 and for the forthcoming years on par with the Old Private Tour Operators. PRAYER in W.P.No.17972 of 2010 : Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the records of the fourth respondent pertaining to HC-PTO/2010/2494 dated 26.07.2010, and quash the same and consequently direct the respondents herein to grant allotment of 100 pilgrims quota to the petitioner for Haj-2010 and for the forthcoming years on par with the Old Private Tour Operators. For Petitioner in all the WPs' : Mr.S.Thirumavalavan For Respondents 1-3 in W.P.Nos. 13106, 13136, 15241, 16981 17087, 17351, 17937, 17946 of 2010 : Mr.M.Ravindran, Additional Solicitor General of India For Mr.J.Ravindran, Assistant Solicitor General of India For Respondent - 4 W.PNos. 13106, 13136, 15241, 16981 17087, 17351, 17937, 17946 and 17972 of 2010 : Mr.Muniruddin Sheriff https://hcservices.ecourts.gov.in/hcservices/ For Respondent – 5 in W.P.No.13106 of 2010 : Mr.S.Pattabiraman For Respondents 1 - 3 in W.P.No.17972 of 2010 : Mr.Achuthan, Standing Counsel for Central Government - - - C O M M O N O R D E R The petitioners are all private tour operators, who intend to organise Haj-pilgrims, for the year 2010 to the Holy places viz., Makkah and Madhina in Saudi Arabia. The Haj- pilgrimage of Indian Muslims are presently governed by the Haj Committee Act, 2002. 2. Prior to 2005, private tour operators straight-away registered with the Government of Saudi Arabia and organised Haj- pilgrimage. That is, prior to 2005, the Saudi Arabia straight away allotted the number of pilgrims that could be handled by the private tour operators. 3. From the year 2005, the Saudi Government does not deal with the private tour operators on its own, in respect of India and Pakistan. The Government of Saudi Arabia allots the Haj quota for every year. The Government of Saudi Arabia also determines the number of pilgrims to be taken care of by the Central Haj committee, a statutory committee under the Haj Committees Act, 2002. The remaining number of pilgrims are allotted to private tour operators. The Haj quota for the year 2010 as allotted by the Saudi Government is 1,60,491 pilgrims and among them, 1,15,000 pilgrims are to be taken care of by the Central Haj committee and the remaining 45,491 pilgrims are to be allotted to private tour operators. 4. From the year 2005 onwards, the private tour operators have to get allotment of pilgrims only from the Government of India and they could not get allotments straight away from the Saudi Arabia. 5. The private tour operators have to make application every year to the Central Haj Committee, a Nodal Agency, who processing the applications of private tour operators, on behalf of the Ministry of External Affairs, Government of India. The private tour operator, who intends to organise Haj pilgrimage, has to enclose a demand draft or Fixed Deposit Receipt for https://hcservices.ecourts.gov.in/hcservices/ Rs.2,00,000/- in favour of Central Haj Committee along with the application. The aforesaid amount of Rs.2,00,000/- is for sending upto 100 pilgrims. The aforesaid amount of Rs.2,00,000/- is a refundable deposit and the refund could take place during the March of every succeeding year. Further, the applicant has to take another Demand draft for Rs.500/- towards processing charges. Unless, the applications are registered, no private tour operator could conduct Haj pilgrimage. 6. After processing the application, if the application is in order and the third respondent is satisfied that the private tour operator is eligible to conduct Haj pilgrimage, the third respondent has to register the application and to allot the number of pilgrims. This is the first step. 7. After allotment of pilgrims, the private tour operator has to seek pre Haj VISA from the Saudi Consulate for him. This is the second step. 8. After getting the pre Haj Visa from the Saudi Consulate, the private tour operator shall go to Saudi Arabia to register the details of pilgrims with the Ministry of Haj at Makkah. This is the third step. 9. After the registration of the details of pilgrims, as stated above, the private tour operator has to enter into an agreement with one of the 24 approved agencies by the Government of Saudi Arabia relating to Haj pilgrimage. This Agency shall take care of the pilgrims, once those pilgrims arrive at Saudi Arabia. This is the fourth step. 10. Thereafter, the private tour operator shall book for boarding, lodging and transport facilities at Makkah and Madhina. This is the fifth step. 11. Finally, the private tour operator has to move the Ministry of Haj at Makkah for the issuance of pilgrims' passes, after completing the aforesaid formalities. The Ministry of Haj would issue pilgrim passes. 12. The private tour operator has to obtain VISA for each pilgrim from the Saudi Consulate and the private tour operator has to deposit the passes before the Consulate. Each pass contains the details of private tour operator through whom the pilgrims undertake their travel to Saudi Arabia. 13. As stated above, after 2005, the allotment of pilgrims to private tour operators, entirely lies with the Government of India. This has resulted in the large number of private tour operators making their applications to send their Haj https://hcservices.ecourts.gov.in/hcservices/ pilgrims. But, the Government of India took a decision that only existing operators alone could be permitted to undertake the Haj pilgrimage. However, the petitioner states that contrary to their own alleged policy decision, the Government of India permitted some new private tour operators who are their favoured persons. The new private tour operators approached various Courts, in the years 2006, 2007, 2008 as well as 2009. Up to the year 2008, existing private operators were around 300. However, in the year 2009, though the policy of the Government of India was not to permit any new private tour operators, the Government of India, ultimately permitted 296 new operators by their order dated 31.08.2009. 14. This year also, the Government of India issued a notification repeating the earlier stand. That is, notification dated 01.06.2010 viz., Haj 2010 notification issued by the first respondent, states that the existing private tour operators alone could be permitted to undertake Haj pilgrimage. The said notification is challenged in all these writ petitions. 15. The fourth respondent passed orders dated 21.07.2010 and 26.07.2010, stating that new private tour operators could not be permitted to undertake Haj pilgrims for the year 2010, in response to the application of the petitioner. In W.P.No.16981 of 2010, the order dated 21.07.2010 was questioned and in W.P.Nos.17937, 17946, 17351 and 17972 of 2010, the individual orders dated 26.07.2010 were put to challenge. 16. Notice of motion was ordered on 24.06.2010. 17. In W.P.No.13106 of 2010, All India Haj Organizer Association was impleaded pursuant to the order in M.P.No.3 of 2010 in W.P.No.13106 of 2010. The said Association is the Association of private tour operators, who support the cause of new private tour operators. 18. Heard Mr.S.Thirumavalavan, learned counsel for the petitioner in all the writ petitions; Mr.M.Ravindran, learned Additional Solicitor General of India, for the respondents 1 to 3 in W.P.Nos.13106, 13136, 15241, 16981, 17087, 17351, 17937 and 17946 of 2010; Mr.Muniruddin Sheriff, learned counsel for the fourth respondent in W.P.Nos.13106, 13136, 15241, 16981, 17087, 17351, 17937, 17946 and 17972 of 2010; Mr.S.Pattabiraman, learned counsel for the fifth respondent in W.P.No.13106 of 2010 and Mr.R.Achuthan learned Standing Counsel for the Central Government, for the respondents 1 to 3 in W.P.No.17972 of 2010. 19. The learned counsel for the petitioners submit that now the entire responsibility of allotting the Haj pilgrims lies with the Government of India. The Government of India should act https://hcservices.ecourts.gov.in/hcservices/ fairly and reasonably, by distributing of Haj pilgrims to the private tour operators, in an equitable manner, without showing any discrimination. The learned counsel also submits that the Government of India could not say that the allotment should be confined only to the existing private tour operators. 20. According to the learned counsel for the petitioner, such a policy is opposed to the Liberal Economic Policy, that is being adhered to by the Government of India. 21. The learned counsel further submits that while 296 new private tour operators were permitted in the year 2009, allotting each 50 pilgrims, to each of the new private tour operator, proportionately reducing the share of the existing tour operator, the same could be done for this year also. The learned counsel further submits that these petitioners have made applications every year from the year 2008. According to him, every applicant remitted a sum of Rs.2,00,000/- as deposit. But, they were not allotted any pilgrims. In these process, they are made to suffer heavy financial loss. 22. On the other hand, the learned Additional Solicitor General submits that the policy of the Government is not to entertain any new private tour operators. According to him, this is the same policy from 2006 onwards. However, the learned ASG admits that 296 new private tour operators were allotted in the year 2009. 23. I have considered the submissions made on either side. 24. As rightly contended by the learned counsel for the petitioners, after 2005 the allotment of pilgrims to private tour operators lies solely with the Government of India. Earlier, the private tour operators directly approached the Government of Saudi Arabia and got the allotment of pilgrims. But, after 2005, the Government of Saudi Arabia allotted the total number pilgrims to be handled by the Central Haj Committee, Government of India, as well the private tour operators. Thus, after 2005, the Government of India has to make allocation of Haj pilgrims for every year. But, the Government of India has taken a decision every year that the existing operators alone could be permitted to take Haj pilgrims. 25. As rightly contended by the learned counsel for the petitioners, the said policy is not inconsonance with the Liberalized Economic Policy of the Government of India. It is a different matter, if a particular private tour operator has no potential to conduct the tour operation and he is denied permission on that ground. The Government frequently should lay https://hcservices.ecourts.gov.in/hcservices/ down certain guidelines for eligibility of tour operators. But, they could not say that only existing operators alone could participate in the Haj pilgrimage. In fact, the Government of India, the first respondent, has issued an order, dated 31.08.2009, registering 296 new private operators allotting each of the new operator 50 Haj pilgrims and proportionate reduction was made to the existing private tour operators. From the said order, it is clear that the Government of India passed the said order pursuant to the various orders of the High Courts. The said order is extracted here-under:- "Pursuant to the orders passed by the Hon'ble High Court, Mumbai in Writ Petition No.6273 of 2009 and Hon'ble High Court of Kerala in Writ Petition No.21095 of 2009 and connected cases, a meeting of all the associations of Private Tour Operators was called by the Ministry on 06.08.2009 in order to provide them an opportunity of hearing by the Government of India pertaining to the decision for allotment of Haj pilgrims quota to PTOs for Haj- 2009. However, on the request of some of the associations, the meeting was postponed to 10.08.2009. In the meeting held on 10.08.2009 in South Block, New Delhi attended by the representatives of all the associations and some individual PTOs, the Government gave the PTOs a patient hearing in order to learn their point of views. Further, as per the decision delivered in the W.P.(C) 21095 of 2009 and connected cased by the Hon'ble High Cout of Kerala, the Government granted three days time to those PTOs whose applications were found defective. After hearing the vies of the associations and adopting the above procedure, the Government of India has now decided the following policy for allocation of PTOs quota for the year 2009. It has been decided to allot a quota of 50 seats each to 177 (one hundred and seventeen) new and eligible PTOs who have been continuously applying for three years or more until 2008, and a quota of 50 seats each of 179 (one hundred seventy nine) new and eligible PTOs who have been continuously applying for two years or more until 2008. It is reiterated that these "new" PTOs are those who were not allotted any quota in the proceeding years. https://hcservices.ecourts.gov.in/hcservices/ The above quota of 14800, allotted to the new PTOs, will be made available by effecting a cut on pro-rata basis from the quota of the 288 existing PTOs subject to the mandatory condition that no PTO receives less than 50 seats." That is, though the first respondent announced a similar policy in the year 2009 also, the first respondent allotted pilgrims to 296 new private tour operators. 26. The petitioners state that though these petitioners applied during 2008 and 2009, their applications were not considered and no order was passed. It is categorically pleaded in the affidavits filed in support of the writ petitions, but the same were not contradicted by the respondents. While 296 new private operators were permitted during the year 2009, it is not known as to why these petitioners were not permitted. 27. The learned counsel for the petitioner further submits that no order was passed either accepting their request or rejecting their request, while, the first respondent allotted 296 operators in the year 2009. 28. In these circumstances, I am of the considered view that the impugned clause in the notification has to be quashed and the same is quashed. The third respondent is directed to consider the applications of the petitioners made through the fourth respondent and pass appropriate orders on merits and in accordance with law within a period of three weeks from today. The Consequential orders dated 21.07.2010 and 26.07.2010 passed by the fourth respondent are also quashed. 29. In fine, the writ petitions are allowed on the above terms. No costs. Consequently connected miscellaneous petitions are also closed. r n s Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government, Government of India, Ministry of External Affairs, South Block, New Delhi. 2. The Additional Secretary to Government (Gulf & Haj) Ministry of External Affairs, South Block, New Delhi. 3. The Deputy Secretary to Government, Director of Haj, Ministry of External Affairs, Akbar Bhavan, Chanakyapuri, New Delhi. 4. The Chairman / CEO Haj Committee of India (CHC) 7A MRA Marg., Mumbai 400 001. + 1 cc to Mr. J. Ravindran, Advocate SR No.64212 + 10 ccs to Mr. S. Thirumavalavan, Advocate SR No.64075 + 1 cc to Mr. M. Muniruddin Sheriff, Advocate SR No.63919 + 1 cc to Mr. R. Achuthan, Advocate SR No.63921 W.P.Nos.13106, 13136, 15241, 16981, 17087, 17351, 17937, 17946 and 17972 of 2010 SSN(CO) SR/31.8.2010 https://hcservices.ecourts.gov.in/hcservices/