FEDERATION HAJ PTOS OF INDIA versus UNION OF INDIA
[2019] 2 S.C.R. 627, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Arguments
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FEDERATION HAJ PTOS OF INDIA
v.
UNION OF INDIA
Writ Petition (Civil) No. 4 of 2019
FEBRUARY 04, 2019
[A. K. SIKRI, S. ABDUL NAZEER AND M. R. SHAH, JJ.]
Haj Pilgrimage :
Haj policy for 2019-23 – Grievance of the petitioner was
that some of their vital suggestions, were not incorporated while
finalising the Haj policy – Petitioner contended that while fixing
the criteria of experience-cum-financial strength, the respondent
had given more emphasis on the financial aspects thereby sidelining
the aspect of experience – Held: Public authorities must have liberty
and freedom in framing policies – It is well accepted principle that
in complex social, economic and commercial matters, decisions have
to be taken by governmental authorities keeping in view several
factors and it is not possible for the courts to consider completing
claims and to conclude which way balance tilts – In instant case,
Haj Policy for 2019-23 is based on data collected and complied in
the study by IIT-Delhi, an expert body – Further, views of the
stakeholders, including petitioners, were invited and duly considered
– Ministry has considered both experience and financial strengths,
as recommended in the IIT Delhi study itself – Financial strength is
important because when the pilgrims travel, the Private Tour
Operators (PTOs) are required to make all arrangements for
transportation, air travel, boarding and lodging, local
transportation and provision of guide etc. – Also, views of the
petitioners were not only considered but accommodated to the extent
possible and permissible – Thus, difficult to agree with the petitioners
– Administrative Law – Policy decision.
Administrative Law – Policy decision – Haj policy for 2019-
23 – Scope of judicial review – Held: The scope of judicial review
is very limited in such matters – It is only when a particular policy
decision is found to be against a statute or it offends any of the
provisions of the Constitution or it is manifestly arbitrary, capricious
or mala fide, the court would interfere with such policy decisions –
In instant case, no such case was made out.
[2019] 2 S.C.R. 627
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Disposing of the writ petitions, the Court
HELD: 1. The Haj Policy for 2019-23 is based on data
collected and compiled in the study by IIT Delhi, an expert body.
Further, views of the stakeholders, including the petitioners, were
invited and duly considered.  The respondent has categorically
submitted that the aforesaid demand of the petitioners is not based
on any factual data, whereas the decision taken by the Ministry
is based on data collected and compiled in the study by IIT Delhi.
Secondly, the petitioners’ suggestion is only to take experience
into account, whereas the Ministry has considered both
experience and financial strength, as recommended in the IIT
Delhi study itself.  It is submitted that where 1,75,000 people
embark upon a pilgrimage, financial strength of the (Private Tour
Operator) PTO is of utmost importance and cannot be overlooked.
Financial strength is important because when the pilgrims travel
to Saudi Arabia, the PTOs are required to make all arrangements
for transportation, air travel, boarding and lodging, local
transportation and provision of guide, etc.  It is submitted that
the Ministry cannot afford to take any chance on this aspect as
the lack of adequate financial strength of the PTOs may result in
the pilgrims becoming stranded in a foreign country or facing
other hardships. [Para 16][638-D-F]
2.  Additionally, it is submitted by the respondent that if
the
suggestion of the petitioners is accepted, there would be eleven
sub-categories amongst Category-I, inasmuch as what is sought
by them is allocation of seats on a pro-rata basis depending on
the number of years of experience.  This would result in major
structural changes, which is not advisable and cannot be accepted.
[Para 17][638-G]
3. Going by the aforesaid considerations, the respondent
has carved out the categories of (Haj Group Organisers) HGOs
on the parameters of experience as well as financial strength of
HGOs.  Such a decision is based on policy considerations.  It
cannot be said that this decision is manifestly arbitrary or
unreasonable.  It is settled law that policy decisions of the
Executive are best left to it and a court cannot be propelled into
the unchartered ocean of Government policy.  Public authorities
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must have liberty and freedom in framing the policies.  It is well
accepted principle that in complex social, economic and
commercial matters, decisions have to be taken by governmental
authorities keeping in view several factors and it is not possible
for the courts to consider competing claims and to conclude which
way the balance tilts.  Courts are ill-equipped to substitute their
decisions. It is not within the realm of the courts to go into the
issue as to whether there could have been a better policy and on
that parameters direct the Executive to formulate, change,
vary and/or modify the policy which appears better to the
court.  Such an exercise is impermissible in policy matters.
[Para 18][639-A-D]
4. The scope of judicial review is very limited in such
matters.  It is only when a particular policy decision is found to
be against a statute or it offends any of the provisions of the
Constitution or it is manifestly arbitrary, capricious or mala fide,
the court would interfere with such policy decisions.  No such
case is made out.  On the contrary, views of the petitioners have
not only been considered but accommodated to the extent possible
and permissible. [Para 19][639-F]
Maharashtra State Board of Secondary & Higher
Secondary Education v. Paritosh Bhupeshkumar Sheth
(1984) 4 SCC 27 : [1985] 1 SCR  29 ; State of Madhya
Pradesh v. Nandlan Jaiswal (1986) 4 SCC 566 : [1987]
1 SCR  1; Benett Coleman & Co. v. Union of India
Maharashtra State (1972) 2
SCC 788 : [1973] 2 SCR
757  – relied on.
Union of India and Others v. Rafique Shaikh Bhikan
and Another (2013) 4 SCC 699 : [2013] 5 SCR 428;
Union of India and Others v. Rafique Shaikh Bhikan
and Another (2012) 6 SCC 265 : [2012] 5 SCR 715 –
referred to.
Case Law Reference
[2013] 5 SCR 428
referred to
Para 5
[2012] 5 SCR 715
referred to
Para 13
[1973] 2 SCR 757
relied on
Para 18
[1985] 1 SCR  29 
relied on
Para 19
[1987] 1 SCR  1 
relied on
Para 20
FEDERATION HAJ PTOS OF INDIA v. UNION OF INDIA
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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 4
of 2019
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
WITH
W.P.(C) Nos. 26, 33 and 93 of 2019.
ANS Nadkarni, ASG, Salman Khurshid, Sr. Adv., Gaurav Agrawal,
George Thomas, Ms. Monica Haseja, Ms. Mitali Chauhan,  Ms. Roshni
W. Anand, Ms. Gargi Srivastava, Sulaiman Mohd. Khan, (Mohd.) Ainul
Ansari, Ms. Taiba Khan, Kripa Shankar Prasad,  Sunil Khatwani,
Pardeep Jatav, Santosh Krishnan, Bhuvan Mishra, Ms. Suhasini Sen,
Sumit Goel,  Raj Bahadur Yadav, Mrs. Anil Katiyar, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
A. K. SIKRI, J.
1. Petitioners in Writ Petition (Civil) Nos. 4 and 33 of 2019 are the
Federation/Association of the Private Tour Operators (PTOs)/ Haj Group
Organisers (HGOs) who have taken up the cause on behalf of their
members, namely, various PTOs/HGOs.  Other two writ petitions are
filed by the PTOs themselves.  The issue raised in all these petitions is
common.  For this reason these petitions were clubbed together and
counsel for all the parties were heard.  We now proceed to decide the
controversy by this common judgment.
2. For Muslims, place of birth of Hazrat Muhammed, i.e. Saudi
Arabia, is the most sacred place. Visiting that place is pilgrimage for
Muslim community, which is known as performing ‘Haj’.  It is the desire
of every person of Muslim faith, living anywhere in this world,
to visit
Saudi Arabia for performing Haj, which is normally during the last month
of the Islamic calendar being eleven days shorter than the Gregorian
calendar since the dates cannot be fixed in the latter.  As the number of
pilgrims during this period is unbounded, the Kingdom of Saudi Arabia
has regulated and restricted, in public interest and for the safety of the
pilgrims themselves, the number of persons who can visit Saudi Arabia
and perform Haj, from time to time.  In the process, number of persons
from each country to visit Saudi Arabia has also been restricted.  Towards
this end, a bilateral agreement is signed between the Government of
India and the Kingdom of Saudi Arabia whereby the latter Government
assigns a fixed number of pilgrims that are permitted to visit and perform
Haj.  Since the share of Indian pilgrims is limited by numbers, based on
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such a bilateral agreement, the Government of India also formulates its
Haj Policy for smooth operations, particularly keeping in mind the interest
of these pilgrims (who are known as Hajjis).  This Haj Policy, inter alia,
provides for eligibility and registrations of PTOs and HGOs as well who
act as tour operators for these pilgrims.  Purpose is to ensure complete
package from the start of journey from defined places in India to Saudi
Arabia, their arrangements for stay and performance of Haj and their
smooth and safe return back to India.  Out of the overall number of
pilgrims, relatively small portion is assigned for PTOs and the rest of the
pilgrims are taken care of by the Haj Committee of India.
3. The Haj Policy, which is formulated by the Government of
India from time to time, lays down various eligibility conditions for
registration for ferrying pilgrims for Haj.  It has, however, been noticed
that PTOs/HGOs normally feel aggrieved by one or the other conditions
for registrations in such Haj Policies.  Similar kind of dispute has now
arisen in respect of HGOs Policy 2019-2023 dated December 20, 2018
(hereinafter referred to as ‘Haj Policy’) captioned as ‘Policy for Haj
Group Organisers for Haj 2019-23 – Registration and allocation
of Haj quota for Haj – 2019’.
4. We may mention at this stage that before formulating a particular
Haj Policy the Government of India normally invites suggestions/
improvements from the PTOs/HGOs.  In respect of the
aforesaid Haj
Policy as well, such suggestions were invited which were given by the
Federation and Association of these PTOs/HGOs. However, the
petitioners still felt aggrieved by some of the eligibility conditions and
other provisions contained in this Haj Policy.
5. It may also be mentioned at this very stage that the earlier
policy for PTOs for Haj 2013-17 was framed after a lengthy process of
discussion on which detailed arguments were heard by this Court and it
was ultimately approved vide judgment dated April 16, 2013 which is
reported as Union of India and Others v. Rafique Shaikh Bhikan
and Another1.  It remained valid for five years and thereafter the PTO
Policy was reviewed by a Haj Policy Review Committee constituted for
the purpose and they suggested new framework for Haj 2018-22.
Meanwhile, during the pendency of the finalisation of the recommendation
for next five year Policy, previous Haj Policy for PTOs was extended
for Haj 2018 as well.  The Government assigned the work of formulation
1 (2013) 4 SCC 699
FEDERATION HAJ PTOS OF INDIA v. UNION OF INDIA
[A. K. SIKRI, J.]
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of next five year Policy to Indian Institute of Technology (IIT), Delhi.
Accordingly, IIT Delhi suggested a new Policy for PTOs/HGOs and the
draft Policy was placed in public domain vide Press Release dated
November 16, 2018 on the website of the Ministry of Minority Affairs
(MoMA) for any suggestions/comments for improvement of the draft
Policy to be submitted by November 30, 2018 to the Ministry.  In the
draft Policy for PTOs for Haj 2019-23, several simplifications and
modifications were made over the previous Policy.  The following nine
eligibility conditions required in the previous Policy have been removed
in the new Policy:
(i) To simplify the financial criteria for assessment, reduce the
requirements and to remove any discretion due to varying accounting
definitions.  Requirement of Minimum Capital employed was removed.
(ii) To reduce the documentation for filing application, requirement
for assessing eligibility and to simplify the application process.
Requirement of furnishing proof of payment for accommodation/air travel
(for the registered HGOs of 2013-17) was removed.
For reducing the requirements for assessing eligibility, less
documentation and simplified application process and also to reduce the
chances of error in the application process leading to rejection, following
criteria has been removed:
(iii) Requirement of giving employees details.
(iv) Requirement of giving
details of Maktab No. and service
provider.
(v) Requirement of giving details of arrival/departure of pilgrims.
(vi) Requirement of furnishing details of transport arrangement in
KSA.
(vii) Requirement of furnishing details of orientation/training of
pilgrims.
(viii) Requirement of furnishing details of local correspondent
company in KSA.
(ix) To remove ambiguity and duplicity in the HGO policy and to
make the application process simple.  Annexure of application format
was removed.
6. Further, following seven provisions of the Terms and Conditions
have been simplified/clarified at the stage of draft Policy:
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(i) To give relief to the PTOs and to save them from unnecessary
harassment, the provision for PTOs involved in court cases/adverse police
report has been simplified. Now only PTOs involved in heinous crimes
and Haj related court cases will be barred.
(ii) To give relief given to the small PTOs, the requirement of
office area has been lowered.  This has also reduced financial burden
on the HGOs for purchasing/hiring large offices.
(iii) The requirement of layout plan has been simplified.  Now the
PTOs need not run around State/District authorities for validating the
layout plan of offices.
(iv) Provision for the new entrants and the documentary
requirements were given in detail to remove ambiguity and improved
transparency.  Uniform system of assessment for new PTOs.
(v) The Annexures of the HGO Policy have been simplified to
simplify the application process (only one Annexure describing the
eligibility conditions and another Annexure regarding important instructions
and guidelines).
(vi) To remove ambiguity, the requirement of agreement/receipt
of accommodation clarified.
(vii) To remove ambiguity, requirement of Affidavit/declaration
clarified wherever mentioned in the previous policy were clarified in the
draft policy.
7.  Comments were received from more than 180 individual PTOs
and the PTO Associations, including Indian Federation Haj PTOs of
India and jointly by other PTO Associations.  All the issues raised by the
PTOs and their Associations were
examined in the Ministry.  These
suggestions/comments were considered in the Ministry in consultation
with the IIT Delhi.  Taking into consideration the suggestions/comments
received on the draft Policy, twelve changes/modifications were made
in the draft Policy and final Policy was circulated on December 20,
2018.  The changes/modifications in the final Policy vis-a-vis draft Policy
are as under:
(i) HGOs renamed as Haj Group Organisers (HGO) – This has
given a separate identity to the Haj PTOs and distinguished them from
general tour operators.
(ii)  Amount of security deposit reduced to Rs.30 lakhs for
Category-I HGOs and Rs.35 lakhs for Category-I* HGOs – reduced
FEDERATION HAJ PTOS OF INDIA v. UNION OF INDIA
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financial burden on the HGOs by Rs. 5 lakh for Category-I HGOs and
Rs. 10 lakhs for Category-I* HGOs.
(iii) Distribution formula modified to ensure allocation of minimum
number of seats during each year of the Policy period to Category-I*,
Category-I and Category-II HGOs – this gives allocation of minimum
assured seats to each category during each of the years of the Policy
period.  PTOs may plan for the long term arrangements in Saudi Arabia
on the basis of minimum assured allocation of seats.
(iv) It has been ensured that higher category HGO gets more
quota than a lower category HGO – this is to ensure that a reasonable
difference is maintained among different category of PTOs.  To safeguard
minimum allocation of seats to Category-I*, Category-I and Category-
II HGOs, the following proviso was added below Stage-I:
“In case of non-allocation of minimum 70, 60 and 50 seats
to any of the Cat-1*, Cat-1 and Cat-2 HGOs, the surplus
seats will first be distributed among the HGOs in that
category.  If there is shortfall in more than one category,
surplus seats will first be distributed to Cat-1*, Cat-1 and
Cat-2 HGOs in order of priority.  Only after fulfilling the
minimum earmarked seats in all categories, to the extent
possible, the surplus seats, if any, will be distributed as per
stage-II.”
(v) In case of surplus seats generated after allocation of Category-
II HGOs, the available seats
will be allocated to Category-I* and
Category-I respectively subject to their upper limits – this will enable
higher category PTOs to get more quota.
(vi) Mid-term review of the policy after two years – this will
provide an opportunity to review the policy mid way instead of after
completion of five years and make mid term corrections within the broad
policy framework.
(vii) Requirement of submission of proof of payment for
accommodation/air travel clarified for the registered HGOs of 2013 to
2017.  The HGOs registered during previous policy period are dispensed
with submission of these documents – simplified the documents and
application process.
(viii) Annual turnover criteria clarified.  Only one year documents
are required now – removed ambiguity and reduced the documentation.
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(ix) The time for reporting of HGOs to CGI Jeddah after their
arrival in Saudi Arabia has been increased to 48 hours – relief to HGOs.
The time of reporting has been doubled from 24 hours to 48 hours.
(x) The year for which the new entrants are required to submit
details of umrah pilgrims has been clarified – removed ambiguity and
confusion and HGOs.
(xi) Director of a company has been added as Munazzim of the
HGO – expanded the ambit of Munazzim of HGOs to include Director
of a company.
(xii) Disclosure statement under point 3 of Annexure-II made
elaborate with provision for furnishing details of arrangements made in
Saudi Arabia, package cost and the agreement signed with the pilgrims
– this will improve transparency in the HGO business.
8. It is only after due examination of the issues raised/suggestions
made on the PTO Policy, that the final Policy for HGOs was approved
by the competent authority in the Ministry and circulated on December
20, 2018.  Thereafter, final Policy was announced, as mentioned above.
9. Grievance of the petitioners is that some of their vital suggestions,
though quite reasonable and justified, have not been incorporated while
finalising the Haj Policy.
10. In the first three writ petitions, notice was issued on January
11, 2019, returnable on January 16, 2019.  On January 16, 2019, the
following order was passed:
“Mr. A.N.S. Nadkarni, learned Additional Solicitor General
of India, has very fairly stated that the Government is
open
to the suggestions which can be made by the petitioner-
Federation.  For this purpose, the Hon’ble Minister is ready
to give hearing to the representation(s) of the Federation
on 17.01.2019 at 11:00 a.m.
We are happy to note that the parties are maintaining that it
shall not be treated as an adversarial litigation and if some
suitable formula is devised, which is acceptable to all the
parties, that would be an ideal thing.
List on 23.01.2019.”
11. Pursuant to the said order, representatives of the Federation
and Association met the Hon’ble Minister on January 17, 2019 bringing
to his notice their grievances which are raised in these writ petitions.
FEDERATION HAJ PTOS OF INDIA v. UNION OF INDIA
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During the course of hearing, this Court was informed that the
representative of the HGO associations submitted before the Hon’ble
Minister that they have devised a new formula for distribution of seats.
Three petitioner associations submitted their written representations to
the Chair. The representations contained eight proposals/suggestions.
After deliberations, the representatives of HGO associations prioritised
their three proposals/suggestions as under:
(i) The total quota of 50,000 seats allocated to HGOs may be
distributed without any condition, i.e. without imposing the condition to
charge additional seats over and above 45,000 seats at the rate of HcoI.
(ii) The HGOs may be divided in two categories on the basis of
their experience with turnover of Rs.1 crore and Rs.2 crore for Category-
II and Category-I HGOs respectively.  50 seats may be distributed to
each eligible HGO and the remaining seats may be distributed to Category-
I HGOs on pro-rata basis on the basis of number of years of experience.
(iii) IBAN receipts may be accepted as valid document for receipt
of accommodation.
After due examination of the feasibility of the aforesaid proposal,
the respondent has agreed with suggestions (i) and (iii). However, it did
not find suggestion (ii) to be feasible.
12. In view of the above, very limited controversy pertaining to
suggestion (ii) above now remains to be resolved.
13.
Mr. Salman Khurshid, learned senior counsel appearing in
one of these petitions, insisted that suggestion (ii) mentioned above should
have been accepted. According to him, Category-I* and Category I,
eligibility for which is turnover of Rs.5 crores and Rs.3 crores respectively,
is unreasonable. Instead, there should be only two categories with turnover
of Rs.2 crores and Rs.1 crore respectively.  It was emphasised by him,
which was also the argument of the other counsel who represented the
petitioners in the other writ petitions, that fixation of turnover of Rs. 5
crores/Rs. 3 crores is exceptionally high.  It is contended that for achieving
such a turnover, HGOs may fix very high rates of package for pilgrims
which may not be in the interest of the pilgrims.  They relied upon the
following discussion contained in Union of India and Others v. Rafique
Shaikh Bhikan and Another2 wherein this Court emphasised that the
main purpose of Haj Policy was to ensure that pilgrims may be able to
2 (2012) 6 SCC 265
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perform their pilgrimage duty without undertaking any difficulty,
harassment or suffering:
“11.  The pilgrim is actually the person behind all this arrangement.
For many of the pilgrims Haj is once in a lifetime pilgrimage and
they undertake the pilgrimage by taking out the savings made
over a lifetime, in many cases especially for this purpose.  Haj
consists of a number of parts and each one of them has to be
performed in a rigid, tight and time-bound schedule.  In case due
to any mismanagement in the arrangements regarding the journey
to Saudi Arabia or stay or travelling inside Saudi Arabia any of the
parts is not performed or performed improperly then the pilgrim
loses not only his life savings but more importantly he loses the
Haj.  It is not unknown that on landing in Saudi Arabia a pilgrim
finds himself abandoned and completely stranded.
12.  It is, thus, clear that in making selection for the registration of
PTOs the primary object and purpose of the exercise cannot be
lost sight of.  The object of registering PTOs is not to distribute
the Haj seats to them for making business profits but to ensure
that the pilgrim may be able to perform his religious duty without
undergoing any difficulty, harassment or suffering.  A reasonable
profit to the PTO is only incidental to the main object.”
14. They also referred to the following passages from that judgment,
as per which annual turnover of Rs. 1 crore only was fixed:
“Annual turnover of Rs. 1 crore
25.
Many objections were raised against the requirement
to furnish documents showing minimum annual turnover of
Rs. 1 crore for the years 2009-2010 or 2010-11.
26.  Mr. N. Rao, Senior Advocate appearing for a group of
private operators/travel agents, in the course of his
submissions, admitted that the turnover on the basis of a
quota of 50 Haj pilgrims alone would not be less than Rs.75
lakhs.  This means that if a private operator/travel agent is
asking for a readymade business package worth Rs.75 lakhs
in turnover he/she should at least show a turnover of rupees
one crore from his own business.  Seen, thus, the turnover
fixed in the Government policy appears to be a modest
figure.”
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15. It was submitted that in the instant Policy, while fixing the
criteria of experience-cum-financial strength, the respondent had given
more emphasis on the financial aspects thereby sidelining the aspect of
experience.  It was pointed out that many members of these Federation/
Association had experience of fourteen to seventeen Haj operations.
However, they were not given Category-I* as their turnover was less
than Rs.5 crores.  It was further argued that this Court in its aforesaid
judgment, as can be seen from paragraphs 25 and 26 cited above, had
applied the doctrine of proportionality, which was given a go-by.  It was
emphasised that since the quota is in the hands of the Government and
only limited seats are allotted to each PTOs/ HGOs, it is difficult to have
a turnover of Rs.5 crores without hiking the cost for pilgrims.
16. From the events mentioned above, particularly those that led
to formulating the Haj Policy for 2019-23, it is apparent that the Policy is
based on data collected and compiled in the study by IIT Delhi, an expert
body.  Further, views of the stakeholders, including the petitioners, were
invited and duly considered.  The respondent has categorically submitted
that the aforesaid demand of the petitioners is not based on any factual
data, whereas the decision taken by the Ministry is based on data collected
and compiled in the study by IIT Delhi.  Secondly, the
petitioners’
suggestion is only to take experience into account, whereas the Ministry
has considered both experience and financial strength, as recommended
in the IIT Delhi study itself.  It is submitted that where 1,75,000 people
embark upon a pilgrimage, financial strength of the PTO is of utmost
importance and cannot be overlooked.  Financial strength is important
because when the pilgrims travel to Saudi Arabia, the PTOs are required
to make all arrangements for transportation, air travel, boarding and
lodging, local transportation and provision of guide, etc.  It is submitted
that the Ministry cannot afford to take any chance on this aspect as the
lack of adequate financial strength of the PTOs may result in the pilgrims
becoming stranded in a foreign country or facing other hardships.
17. Additionally, it is submitted by the respondent that if the
suggestion of the petitioners is accepted, there would be eleven sub-
categories amongst Category-I, inasmuch as what is sought by them is
allocation of seats on a pro-rata basis depending on the number of years
of experience.  This would result in major structural changes, which is
not advisable and cannot be accepted.
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18. Going by the aforesaid considerations, the respondent has
carved out the categories of HGOs on the parameters of experience as
well as financial strength of HGOs.  Such a decision is based on policy
considerations.  It cannot be said that this decision is manifestly arbitrary
or unreasonable.  It is settled law that policy decisions of the Executive
are best left to it and a court cannot be propelled into the unchartered
ocean of Government policy {See Benett Coleman & Co. v. Union of
India3}.  Public authorities must have liberty and freedom in framing
the policies.  It is well accepted principle that in complex social, economic
and commercial matters, decisions have to be taken by governmental
authorities keeping in view several factors and it is not possible for the
courts to consider competing claims and to conclude which way the
balance tilts.  Courts are ill-equipped to substitute their decisions. It is
not within the realm of the courts to go into the issue as to whether there
could have been a better policy and on that parameters direct the
Executive to formulate, change, vary and/or modify the policy which
appears better to the court.  Such an exercise is impermissible in policy
matters.  In Bennett Coleman’s case, the Court explained this principle
in the following manner:
“The argument of the petitioners that Government should have
accorded greater priority to the import of newsprint to supply the
need of all newspaper proprietor to the
maximum extent is a matter
relating to the policy of import and this Court cannot be propelled
into the unchartered ocean of governmental policy.”
19. The scope of judicial review is very limited in such matters.  It
is only when a particular policy decision is found to be against a statute
or it offends any of the provisions of the Constitution or it is manifestly
arbitrary, capricious or mala fide, the court would interfere with such
policy decisions.  No such case is made out.  On the contrary, views of
the petitioners have not only been considered but accommodated to the
extent possible and permissible.  We may, at this junction, recall the
following observations from the judgment in Maharashtra State Board
of Secondary & Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth4:
“16...  The Court cannot sit in judgment over the wisdom of the
policy evolved by the Legislature and the subordinate regulation-
3 (1972) 2 SCC 788
4 (1984) 4 SCC 27
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making body.  It may be a wise policy which will fully effectuate
the purpose of the enactment or it may be lacking in effectiveness
and hence calling for revision and improvement. But any
drawbacks in the policy incorporated in a rule or regulation will
not render it ultra vires and the Court cannot strike it down on the
ground that in its opinion, it is not a wise or prudent policy, but is
even a foolish one, and that it will not really serve to effectuate
the purposes of the Act.  The Legislature and its delegate are the
sole repositories of the power to decide what policy should be
pursued in relation to matters covered by the Act and there is no
scope for interference by the Court unless the particular provision
impugned before it can be said to suffer from any legal infirmity,
in the sense of its being wholly beyond the scope of the regulation-
making power or its being inconsistent with any of the provisions
of the parent enactment or in violation of any of the limitation
imposed by the Constitution.”
20. We may also usefully refer to the judgment in State of Madhya
Pradesh v. Nandlan Jaiswal5.  In this judgment, licence to run a liquor
shop granted in favour of A was challenged as arbitrary and unreasonable.
The Supreme Court held that there was no fundamental right in a citizen
to carry on trade or business in liquor.  However, the State was bound to
act in accordance with law
and not according to its sweet will or in an
arbitrary manner and it could not escape the rigour of Article 14.
Therefore, the contention that Article 14 would have no application in a
case where the licence to manufacture or sell liquor was to be granted
by the State Government was negatived by the Supreme Court. The
Court, however, observed:
“But, while considering the applicability of Article 14 in such a
case, we must bear in mind that, having regard to the nature of
the trade or business, the Court would be slow to interfere with
the policy laid down by the State Government for grant of licences
for manufacture and sale of liquor.  The Court would, in view of
the inherently pernicious nature of the commodity allow a large
measure of latitude to the State Government in determining its
policy of regulating, manufacture and trade in liquor.  Moreover,
the grant of licences for manufacture and sale of liquor would
essentially be a matter of economic policy where the Court would
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hesitate to intervene and strike down what the State Government
had done, unless it appears to be plainly arbitrary, irrational or
mala fide.”
21. It is not necessary to multiply the cases as the aforesaid principle
can be said to be cast in stone.  It is, therefore, difficult to agree to the
aforesaid argument of the petitioners.
22. In Writ Petition (Civil) No. 93 of 2019, the petitioner has made
an alternate submission as well, which is based on the facts of its case.
It is pointed out that in 2017-18 this petitioner was fully capable and, in a
position, to earn turnover of more than Rs.3 crores but was prevented
from operating any Haj services on account of respondent’s willful neglect
in registering the petitioner as Category-I PTO for that year.  The
petitioner filed Writ Petition (Civil) No. 508 of 2017, which was allowed
by this Court vide orders dated May 08, 2018 in the following manner:
“We have heard the learned counsel appearing on behalf of the
parties.
Respondent sought to dispute the receipt of the application
sent by the petitioner by post for Category I registration.  However,
with the rejoinder the petitioner has filed the proof of having sent
such an application by courier service.  To this aspect, despite
time taken, there is no rebuttal.
Result of the aforesaid is that the petitioner has to be treated
as having been duly applied for registration under Category I in
2017 which was wrongfully denied to him on account of the
application
not being taken up.  For any further consideration of
Registration in Category I, this period has, thus, to be counted in
favour of the petitioner.
Insofar as year 2018 is concerned, the petitioner has already
applied and learned counsel for the respondent states that the
application of the petitioner shall be duly considered as he meets
the requirement of number of years of providing service for
consideration under Category I.
His statement is taken on record.
The writ petition is disposed of in the above terms.”
23. It is argued that this direction was meant to ensure that for
future years, the petitioner is deemed to have completed the Haj 2017.
However, since it was prevented from any Haj turnover for the year
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2017, because of the fault of the respondent, the petitioner would not be
able to meet the requirement of turnover for the year 2017.  It is further
mentioned that for the Financial Year 2018, the petitioner has already
come close to crossing the turnover threshold of Rs.3 crores despite the
Financial Year not having expired.  Therefore, turnover of Financial Year
2018 be taken into consideration for assigning category to the petitioner.
24. Insofar as this prayer of the petitioner is concerned, we find
that there is a merit in the contention of the petitioner that as far as
turnover for the year 2017 is concerned, the petitioner should not be
made to suffer.  Therefore, the petitioner’s case be considered by the
competent authority having regard to the aforesaid peculiar facts and
circumstances and necessary orders passed thereon within a period of
one week.
25. All the writ petitions are disposed of in the aforesaid terms.
Ankit Gyan
Writ petitions disposed of.