RUBY TOUR SERVICES PVT. LTD. versus UNION OF INDIA on 30 July 2018

[2018] 7 S.C.R. 1169

RUBY TOUR SERVICES PVT. LTD.

v.

UNION OF INDIA

(Writ Petition (C) No. 638 of 2018)

JULY 30, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Haj Pilgrimage – Allocation of visas for Haj pilgrimage toPrivate Tour Operators (PTOs) – On facts, applications forregistration by PTOs for Haj Pilgrimage-2018 – However, refusalof registration by the Government for Haj Pilgrimage -2018 on theground of non-compliance of the various conditions in the HajPolicy – Rejection of first application for non-submission of minimumannual turnover certificate of Rs. 1 crore – Document for turnoverof different entity submitted – PTO who applied for registration is aprivate limited company and document for turnover relied on wasof proprietorship firm – Rejection of second application for non-submission of legible copies of Munazzim card and Haj visa pagesof the passport of owner/proprietor – Rejection of third applicationfor non-submission of rental receipts and copy of lease deed dulysigned with the Saudi owners, rental receipt issued by party withwhom no contract for accommodation of PTOs was entered into –Writ petition by PTOs seeking issuance of mandamus to theGovernment to register petitioner as PTO for Haj Pilgrimage -2018and allot appropriate quota – Held: As regards the first application,the petitioner being aware, ought to have submitted all relevantdocuments including conversion of proprietorship firm into privatelimited company with transfer of its assets and liabilities – Since theturnover of different entity was relied, the decision rejecting theregistration not perverse – Further, the Government cannot beestopped to raise issue of ineligibility in case it escaped its notice inany earlier order – Thus, there is no infirmity in the ground takenwhile refusing registration – As regards the second application,grounds are too trivial and insignificant, and cannot be said to beany valid ground for rejection of the claim – Rejection of registrationof PTO for Haj Pilgrimage-2018 set aside and petitioner entitled tocompensation of Rs. 5 lakhs – As regards the third application,

A

B

C

DE

F

G

H

Aalthough the rejection of the claim of the petitioner clearly mentionsabout the mismatch and stated that receipt voucher has been issuedby entity with whom the contract for accommodation was not enteredinto, but no proper explanation in the writ petition has been given,thus, petitioner not entitled to any relief.

BDisposing of the Writ Petitions, the CourtHELD: 1.1 In Writ Petition No.638 of 2018, the petitionerwas well aware of the objections raised by the respondent underClause (iv) regarding turnover relied by the petitioner being ofdifferent entity. The position ought to have been explained byCthe petitioner by submitting all relevant documents includingconversion of Proprietorship Firm into Private Limited Companywith transfer of its assets and liabilities. The fact that turnover ofdifferent entity was relied, the decision rejecting the registrationcannot be said to be perverse or based on no material. Thepetitioner laid much emphasis that for the Haj 2017 when theDpetitioner was granted registration, it was not open to respondentto raise objections again. The submission that there are largenumber of applications every year and there being time constraintin verification of the application if in the event a PTO is ineligiblewhich escaped notice of the respondent in a particular year thereEcannot be estoppel on the Government to raise issue of ineligibilityin the subsequent year, is accepted. The Government cannot beestopped to raise issue of ineligibility in case it escaped its noticein any earlier order. There is no infirmity in the ground taken inthe order dated 31.05.2018 in refusing registration due to non-compliance of Clause (iv). [Para 23] [1183-F-H; 1184-A-B]F

1.2 The submission that report of Chartered AccountantFirms empanelled by the respondent has been mechanicallyconsidered cannot be accepted. The objections were raised afterscrutiny of the application to which reply was submitted by thepetitioner. In the event the Government received the assistanceGfrom a Chartered Accountant Firm no exception can be taken tosuch assistance provided it is proved that there is no non-application of mind by the Government on the relevant facts anddocuments. In the present case order dated 31.05.2018 refers tothe objections raised, clarifications/replies submitted by theHpetitioner. The technical advice received from the empanelled Chartered Accountant Firms has also been relied to support itsconclusion in which no infirmity can be found. Thus, there are nogrounds for interfering in the order in W.P. No.638 of 2018.[Para 24][1184-C-E]

2.1 As regards, Writ Petition No.646 of 2018, the MunazzimCard and Haj Visa is issued in the name of tour assistant by theSaudi Authorities. Details of tour assistants were alreadysubmitted at Page No. 199 of the application, which was re-submitted alongwith clarification of the petitioner. In the translatedcopy as is the case of the respondent, attested by the Director ofthe PTO, the name of Abdur Razzaque was shown as AbdulRazzaque. The Munazzim Card is issued by the Saudi Authoritiesand the mention of word “l” in place of “r” at the end of the nameAbdur is on account of difference in pronounciation of the nameby the Saudi Authorities, which does not go to the root of thematter since it is not the case of the respondent that the tourassistant was any other person except the one who was authorisedby the petitioner. Further, the photocopy of the passport of AbdurRazzaque Chand Mia was submitted by the petitioner alongwithphotograph and other details. Correct number of passport i.e. F-8384646 is also submitted to the respondent. Photocopy of thevisa issued by the Saudi Authorities is also brought on the recordalongwith additional documents which mentions correct passportnumber i.e. F-8384646. In the Munazzim Card issued byauthorities, it is also brought on record that passport numbermentioned is F-83847646. The digit “7” has been mentionedadditionally in the passport number, which is an obvious mistake.The reliance on said two grounds which are too trivial andinsignificant, cannot be said to be any valid ground for rejectionof the claim. Moreover when the same tour assistant with thesame passport number has conducted the Haj services for theyear 2010, the respondent’s authorities while considering thecase of the PTO for registration have to advert to the substanceof the matter and substance of the reply submitted by the PTOneed to be gone into. In event of PTO fulfills other conditions,rejection of claim on trivial and non-substantial grounds cannotbe countenanced. The rejection of registration of the PTO forHaj-2018 in the instant case cannot be supported and deservesto be set aside. [Para 28] [1185-C-H; 1186-A]

A

BC

DE

F

G

H

A

2.2 The petitioner is entitled for same compensation of Rs.5lakh, which is adequate compensation for the loss suffered bythe petitioner and shall subserve the justice. It is further directedthat the said amount be paid within two months from this date,failing which the amount would carry simple interest @ 15 percent per annum. [Para 32] [1189-C]

B

3. As regards Writ Petition No.668 of 2018, although therejection of the claim of the petitioner in the writ petition, clearlymentions about the mismatch and stated that receipt voucherhas been issued by entity with whom the contract foraccommodation was not entered into, but no proper explanationCin the writ petition has been given. The writ petition onlyreiterates what was stated in the reply dated 31.03.2018 withoutexplaining the objection raised by the respondent. There wasvalid reason for the respondent to refuse registration to thepetitioner when the objection was raised, which was notDsatisfactorily replied by the petitioner. The petitioner is notentitled for any relief. [Para 34][1189-G-H; 1190-A, B]

Union of India v. Rafique Shaikh Bhikan (2013) 4 SCC699 : [2013] 5 SCR 428 ; Jeddah Travels and JeddahHajj Group v.. Union of India (2014) 14 SCC 378 ;United Air Travels Services Through its ProprietorA.D.M. Anwar Khan v. Union of India throughSecretary (Ministry of External Affairs) (2018) 7SCALE 1: AIR 2018 SC 2264 ; Nilabati Behera v. Stateof Orissa (1993) 2 SCC 746 : [1993] 2 SCR 581 ;Common Cause, a Registered Society v. Union of India(1999) 6 SCC 667 : [1999] 3 SCR 1279 ; N. NagendraRao & Co. v. State of A.P. (1994) 6 SCC 205 : [1994] 3Suppl. SCR 144 – referred to.

E

F

G

[1999] 3 SCR 1279 referred toPara 31[1994] 3 Suppl. SCR 144 referred toPara 31

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 638 of 2018.

Under Article 32 of the Constitution of India WITH

Writ Petition (Civil) Nos. 646 and 668 of 2018.

K. K. Venugopal, AG, Ms. Pinky Anand, ASG, Sanjay Hegde,Sr. Adv., Sulaiman Mohd. Khan, Ms. Taiba Khan, Rajat Bhardwaj,Santosh Krishnan, Zulfiker Ali P. S, Faisal M. Aboobacker, LakshmiSree Puthenpurackal, Ainul Ansari, Kripa Shankar Prasad, Harshad V.Hameed, Dileep Poolakkot, Ms. Ashly Harshad, Bhuvan Mishra, HemantArya, Ms. Shradha Deshmukh, R. Bala, Ms. Aarti Sharma, Raj BahadurYadav, Sumit Goel, Mrs. Anil Katiyar, R. Balasubramanian, Vinay Kr.Yadav, Advs. for the appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. These three writ petitions under Article32 of the Constitution of India have been filed by three Private TourOperators (PTOs) challenging the communications dated 31.05.2018issued by the Ministry of Minority Affairs rejecting their applicationssubmitted for registration of PTOs for Haj 2018. The applications ofpetitioners have been rejected for not fulfilling few conditions asenumerated in Annexure A of PTO Policy for Haj 2018.

2. The Haj Pilgrimage by Muslims all over the world has beentreated as of utmost religious importance and Muslims all over the worldhave been going for Haj Pilgrimage to Makkah and Madina for lastseveral centuries. Until year 2002, the Saudi Arabian Government wasdirectly allotting visas for Haj to the private tour operators and separatelyallotting quota of visas for the Haj pilgrims travelling through the HajCommittee of India. Thereafter the Saudi Government started allottingone single quota of Haj visas to the Government of India, who in turnwould allot part of the said quota to the PTOs and retained part of thesaid quota for itself for allotment through the Haj Committee of India.

A

B

CD

E

F

G

A

B

CD

E

F

G

A3. The policy for allotment of quota to the private tour operatorshas been issued by the Government of India from time to time. ThePolicy for registration of private tour operators for Haj 2013 came forconsideration before this Court and this Court after elaborateconsideration approved the Haj Policy-2013 with certain modifications.This Court by its judgment dated 16.04.2013 in Union of India Vs.BRafique Shaikh Bhikan, (2013) 4 SCC 699, approved the Haj Policy2013, Appendix I of the judgment contained the policy for registration ofprivate tour operators – Haj 2013, the terms and conditions for registrationof Private Tour Operators (PTOs) for Haj 2013 in Annexure-A, inAnnexure-B other important instructions/guidelines for Haj 2013 and inCAnnexure-C application for registration as Private Tour Operators(PTOs). The policy was initially directed to remain valid for five years,i.e., 2013-2017. The Government of India has extended the said policyfor the year 2018. The proceeding for formulation of fresh policy forthe next five years, i.e., 2019 onwards is in process, we, however, in thepresent writ petitions are only concerned with the Haj Policy of 2018.D

4. After 2013 also, there has been various subsequent decisionsby this Court while considering Haj Policy for subsequent years, whichshall be noticed by us little later. The Government of India (Ministry ofMinority Affairs) vide its circular dated 09.12.2017 issued policy forPrivate Tour Operators for Haj 2018. The applications were invited onEor before 05.01.2018. Annexure A to the policy was “Terms andConditions for Registration of Private Tour Operators (PTOs) for Haj-2018”. Annexure B contained “Other Important Instructions/Guidelinesfor Haj-2018. Annexue C contained “Application for Registration asPrivate Tour Operator (PTO)” - Haj 2018. All the petitioners in pursuanceFof the said circular has submitted their applications for registration forHaj-2018. After certain queries, separate communication dated31.05.2018 has been issued to petitioners refusing registration of themas Private Tour Operators for Haj-2018, which communication has beenchallenged.

G5. The prayers made in all the writ petitions being identical, it issufficient to notice the prayers made in the Writ Petition (C) No. 638 of2018. which are to the following effect:- “(a) Declare that the order dated 31.05.2018 by the respondentis illegal and unconstitutional and consequentially, issue Mandamus H

to the respondent to register petitioner as a PTO for Haj 2018 andallot appropriate quota; (b) Alternatively, Issue a Writ, order or direction in the nature ofMandamus commanding and directing the respondent to grantregistration to the petitioner as PTO for conducting Haj Tour,2019;

(c) Issue a Writ, order or direction in the nature of Mandamuscommanding and directing the respondent to pay compensation tothe petitioner for the loss occurred to it by not granting registrationfor Haj 2018; (d) Pass such other and further orders as this Hon’ble Court maythink fit in the interest of justice and equity.”

6. As noted above, the applications of petitioners were rejecteddue to non-compliance of various conditions as enumerated in AnnexureA. Application of petitioner in Writ Petition (C) No. 638 of 2018 hasbeen rejected for non-compliance of Clause (iv) and Clause (xi).Application of petitioner in Writ Petition (C) No. 646 of 2018 has beenrejected for non-compliance of Clause (xii), whereas application ofpetitioner in Writ Petition (C) No. 668 of 2018 has been rejected fornon-compliance of Clause (xi). Thus, it is sufficient to notice Clause(iv), Clause (xi) and Clause (xii) of Annexure A for deciding these writpetitions, which are to the following effect:-

Clause(iv) Minimum Annual Turnover of INR One Crore or more from Haj and Umrah operations during any of the two preceding financial years along with Balance Sheet and Profit & Loss Account-duly audited by the Statutory Auditors, Tax Audit Report and Income Tax Return (ITR). Clause (xi) Contract for hiring of buildings for pilgrims and “Tasreeh” together with English translations PTO category wise. (Please enclose rental receipts and a copy of lease deed, duly signed with the Saudi owners). Clause (xii) Copy of Munazzim Card and relevant Haj visa pages of the Passport of the Proprietor/Owner.

A

B

C

D

E

F

G

1176SUPREME COURT REPORTS

A7. Now, we proceed to notice the facts of each writ petition.–Writ Petition (C) No. 638 of 2018 Ruby Tour ServicesPvt. Ltd. Vs. Union of India

8. The petitioner was a qualified Private Tour Operator from 2002Bto 2015 and 2017 and was so registered with the Government of India.After issue of Haj Policy-2013, the respondent had released the list ofqualified Private Tour Operators for the Haj-2013, in which name ofpetitioner was included at Sl. No.224 of qualified Private Tour Operatorsunder Category I. In the year 2014, 2015, petitioner’s name was includedin the List of eligible Private Tour Operators. Petitioner conducted servicesCfor Haj-2015 without any complaint. By press release dated 29.04.2016,applications were invited from eligible Private Tour Operators forregistration of Haj – 2016 in response to which, petitioner applied. Therespondent vide communication dated 26.07.2016 rejected the applicationof the petitioner for Haj-2016. Petitioner filed a Writ Petition (C)DNo. 623 of 2016 against the rejection of its application for Haj-2016, inwhich notice was issued by this Court on 08.08.2016. The respondentafter the scrutiny of the application and documents submitted by thepetitioner, found the petitioner eligible to conduct Haj Pilgrimage for 2017and accordingly issued certificate of registration and allotted quota of105 pilgrims. The Writ Petition (C) No. 623 of 2016 filed by the petitionerEhas been dismissed as infructuous. In pursuance of Circular dated09.12.2017 inviting applications, petitioner submitted an application alongwith supporting documents. Fourteen queries were raised by therespondent through e-mail dated 25.03.2018 raising different objections.Petitioner vide its letter dated 05.04.2018 submitted reply to all the queriesFraised.

9. In query No. 11 regarding turn over details, following wascommunicated:

“PTO attached Turnover Certificate of 2.16 cr. of ruby tour andGtravels and have mentioned that the documents explaining thesame have been attached on page 50-52 of the Application Filebut there are no such documents on record which explain theturnover of 2.16 cr.”

H

10. Petitioner had replied the said query in its reply as follows:-“The Turnover Certificate of INR 2.16CR is attached herewithfor your kind perusal. The omission error of Page No. 50-52 ishighly regrettable.”

11. With regard to non-compliance of Clause(xi) of Annexure-A,the Government noticed the reply dated 05.04.2018 but has refused toregister citing technical advice from empanelled Chartered AccountantFirms. It is useful to refer to Paragraphs 2 to 5 of the letter dated31.05.2018, which contains the consideration by the Government ofIndia:- “2. As per Clause (iv) of Annexure A of PTO Policy, the saidPTO was required to submit the turnover certificate. On scrutinyof the documents submitted by the PTO, it has been found thatPTO is not fulfilling the clause(iv) of Annexure A of PTO Policyfor Haj 2018. The PTO was requested to clarify the followings:- “PTO attached Turnover Certificate of 2.16 cr. of Ruby Tourand Travels and have mentioned that the documents explainingthe same have been attached on page 50-52 of the ApplicationFile but there are no such documents on record which explain the turnover of 2.16 cr.”

3. As per Clause (xi) of Annexure A of PTO Policy, the said PTOwas required to submit rental receipts and a copy of lease deed,duly signed with the Saudi owners. On scrutiny of the documentssubmitted by the PTO, it has been found that PTO is not fulfillingthe clause (xi) of Annexure A. The PTO was requested to clarifythe followings:- “In the invoice copy of Makkah 2 invoice dated 17/08/2015there is a condition that PTO should send the payment on orbefore 25/07/2015 which is prima facie not possible as thatdate has already passed. Moreover payment made on 19/08/2015 but receipt for the same issued on 24/07/2015. Hencethe authenticity of the Receipt cannot be established.”

4. The said PTO in its reply clarified as under:

“The Turnover Certificate of INR 2.16CR is attached herewithfor your kind perusal. The omission error of Page No. 50-52is highly regrettable.”

A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

A

“In the Invoice copy of Makkah 2 Invoice dated 17/08/2015,the supplier has erroneously typed the wrong sending date as25/07/2015 instead of 25/08/2015, and also the receipt issueddate as 24/07/2015, instead of 24/08/2015. We regret theoversight by supplier and hereby attach the swift copy alongwith Invoice and Bank Statement details to authenticate thesame. The Tashree agreement dated 17.08.2015 alsoauthenticates the transaction done in August 2015”.

B

5. As per the technical advice received from the empanelledChartered Accountant Firms and on scrutiny of the clarification/reply of the PTO, it has been observed that the PTO Applicant’sturnover is less than Rs.1 crore from Haj and Umrah operationsas required under Clause (iv) of Annexure A of PTO Policy 2018.It is further observed that the receipt of accommodation is datedprior to the date of Payment (as authenticated from the BankStatement and Foreign exchange Purchase Invoices). Hence theReceipts lack authenticity. The requirements of Clause (iv) and(xi) of Annexure A of PTO Policy 2018 are not complied.”

C

D

12. The petitioner has filed additional documents to support itsreply given on 05.04.2018. Counter Affidavit has also been filed by therespondent.

E

Writ Petition (C) No. 646 of 2018 – M/s. Nawab TravelsPrivate Limited Vs. Union of India

13. The petitioner had been found eligible for the years 2002,2006-I, 2006-II, 2007 to 2010 and during each period, registrationcertificate was issued to the petitioner and Haj quotas were also allotted.FIn response to the circular dated 09.12.2017 inviting applications forPrivate Tour Operators for Haj-2018, petitioner also submitted anapplication. Certain clarifications were sought through online PTO portal.Petitioner submitted its clarification on 04.04.2018. By communicationdated 31.05.2018, the petitioner’s application was refused to register onGthe ground of non-fulfillment of Clause (xii) of Annexure A. It is usefulto extract Paras 2, 3 and 4 of the communication dated 31.05.2018,which is to the following effect:- “2. As per Clause (xii) of Annexure A of PTO Policy, the saidPTO was required to submit the copy of Munazzim card and Haj H

RUBY TOUR SERVICES PVT. LTD. v. UNION OF INDIA[ASHOK BHUSHAN, J.]

visa pages of the passport of the owner/proprietor. On scrutinyof the documents submitted by the PTO, it has been found thatPTO is not fulfilling the Clause (xii) of Annexure A. The PTOwas sent the following observation:- “Copies of Munazzim Card and visa copy are not legible.”

3. The said PTO in its reply clarified as under:

“It is hereby clarified that the Munazzim Card and Haj Visa isissued in the name of Tour Assistant. We have deputedMr. Abdur Razzaque Chand Mia as Tour Assistant for Haj2010. We have already submitted a drafted letter providingdetails of Tour Assistant along with the Application forRegistration of PTO for Haj 2018 vide Page No. 199, we areagain submitting self-attested copy of the same for your kindperusal.”

4. As per the technical advice received from the empanelledChartered Accountant Firms and on scrutiny of the clarification/reply of the PTO it has been observed that the copies of MunazimCard and Haj Visa pages copy provided in the Physical file anduploaded on the portal were not completely legible. A differencewas found in the name and Passport No. as per Munazim Cardand Visa Copy. Other details were not legible. Copies of MunazzimCard and Visa Copy are not attached in the clarification. Thesame is required under Clause (xii) of Annexure A of PTO Policy2018. Hence, the copy of Munazzim card and Haj Visa pages ofthe passport of the owner/proprietor as required under Clause(xii) of Annexure A of PTO Policy for Haj 2018 is not complied.”

14. Counter Affidavit has been filed by the respondent. Petitionerhas also filed additional documents to support his reply.

–Writ Petition (C) No. 668 of 2018 M/s. Hiba Exports IndiaVs. Union of India

15. The petitioner – a sole proprietor is carrying on the businessof recruitment for deployment of Indian workers with foreign employers,who is license holder for last 20 years from Government of India. Thepetitioner firm also provided Haj services to the pilgrims for the year2002, 2009, 2010 and 2011. In response to registration of Private Tour A

B

C

DE

F

G

H

AOperators-Haj 2013, petitioner also submitted its application. Afterresponse to the explanations called for from the petitioner and submissionof clarifications by petitioner vide letter dated 30.07.2013, petitioner wasincluded in the List issued on 07.01.2014. For the year 2014 and 2015,petitioner’s name was not included as a qualified Private Tour Operator.Petitioner had also filed Writ Petition (C) No. 413 of 2015, in response toBregistration for Haj 2016, petitioner submitted application and his namewas included in the list of private tour operators issued on 29.04.2016.Although, petitioner was included in the list of Private Tour Operatorsfor the draw of lots as per Press Release dated 29.04.2016 butunfortunately was not granted quota due to draw of lots. Petitioner wasCthus eligible for quota of Haj Pilgrimage for 2017 even without draw oflots. In response to application for Haj-2018, petitioner submitted itsapplication, objections were raised by communication dated 25.03.2018,which were duly replied. The application of the petitioner for registrationfor Haj-2018 has been rejected by communication dated 31.05.2018. InParas 2 and 3 of the communication, following has been stated:-D“2. As per Clause (xi) of Annexure A of PTO Policy, the saidPTO was required to submit rental receipts and a copy of leasedeed, duly signed with the Saudi owners. As per the technicaladvice received from the empanelled Chartered Accountant Firmsand on scrutiny of the clarification/reply of the PTO the followingEhas been observed:

“The PTO has not submitted Rental receipt of SAR 22500/-for contract No. 705522 entered with Ali M.A. Jabullah(Amjadus Salam) and Rental Receipt of SAR 75000/- forContract No.213351 entered with Zaid A.A. Abid for hiring ofFaccommodation for pilgrims, instead submitted with reply ofthe query Receipt Voucher No.0006 for SAR 200000/- issuedby Muttawiffy Hujjaj South Asia Establishment and ReceiptVoucher No.49812 which is in Arabic and no translation of thesame has been submitted. Hence PTO has not complied withGthe requirement of Clause (xi) of Annexure A of PTO Policy”

4. In view of the deficiencies mentioned in Para 2 above, M/s.Hiba Exports India, D 60/4 FIRST FLOOR NEAR GREENPARK, METRO STATION GATE NO.1 YUSUF SARAI, NEWDELHI-110016 has not been found eligible for registration andHallocation of quota for Haj 2018.”

16. We have heard Shri Santosh Krishnan, learned counselappearing for the petitioner in first two writ petitions. We have alsoheard learned counsel appearing in Writ Petition (C) No.668 of 2018.Shri K.K. Venugopal learned Attorney General and Ms. Pinky Anand,learned Additional Solicitor General have been heard for the respondent.

17. Shri Santosh Krishnan, learned counsel for the petitionerassailing the order dated 31.05.2018 of the respondent in Writ PetitionNo.638 of 2018 submits that the two reasons given in the order dated31.05.2018 have no basis. The petitioner had fully complied with Clause(iv) of Annexure A since it has filed all relevant documents showingturnover of Rs.2.16 crore during the financial year 2015-16. He referspages 6 to 27 of additional documents filed in the writ petition attackingon the averments made in the counter-affidavit that the PTO did notsubmit its own balance-sheet but submitted the balance-sheet of RubyTours & Travels. It is submitted that till Haj 2015, the petitioner hereinwas conducting the service as a Proprietorship Firm under the nameRuby Tours & Travels. However, from Haj 2017 the entity Type waschanged to Private Limited Company and this fact having been acceptedby all authorities including the respondent for Haj 2017, the ground wasno longer available to reject the registration by the respondent for Haj2018. Coming to the second reason that violation of Clause (xi), thepetitioner submitted all documents including the Contract for hiring ofbuildings and rent receipts, proof of payment through authorised channeland invoices from the owner, however, due to a typographical error bythe building owner at Saudi Arabia, date of receipt is mentioned as25.07.2015 instead of 25.08.2015 and date of payment is mentioned as24.07.2015 instead of 20.08.2015. A Bank statement and soft copy wouldshow that payment was actually made on 25.08.2015.

18. Learned counsel further submitted that there has been noapplication of mind by the respondent while refusing registration. Therespondent has mechanically followed the advice given by CharteredAccountant Firms. The rejection was premised on the technical advicereceived from the empanelled Chartered Accountant Firms which itselfshows non-application of mind by the respondent.

19. Shri K.K. Venugopal, learned Attorney General, refuting theabove submissions contends that order rejecting registration has beenissued considering the objections raised, clarifications/replies submittedand documents submitted by the petitioner. He submitted that the A

B

C

D

E

F

G

H

Adocuments for turnover submitted by the petitioner were the documentsof Proprietorship Firm that is Ruby Tours & Travels whereas registrationwas applied for Haj by the Private Limited Company and no documentshave been submitted that Proprietorship Firm has been converted intoPrivate Limited Company. The petitioner which is a Private LimitedCompany cannot rely on turnover of Proprietorship Firm. It is submittedBthat decision was arrived after application of mind and the rejectionhaving been based on valid reason this Court shall not substitute its owndecision with that of department. On submission pertaining to secondground, it is contended that PTO’s application that there was atypographical error, cannot be submitted since typographical error wasCnot only in one document but in the various documents submitted by thePTO which fact itself raises question of credibility of the PTO.20. We have gone through the rival submissions and perused therecords of Writ Petition No.638 of 2018.

21. For turnover the petitioner has placed reliance on certificateDof Chartered Accountants dated 02.01.2018 as Annexure P-18. Thecertificate reads:

“To whomsoever it may concern

This is to certify that the Ruby Tours & Travels (Prop.Nazir Ahmed Shaikh) having its office at 7/8, Ground Floor,E2421 East Street Galleria, East Street Camp, Pune-411001had doing the business of Haj Tours.

This is also to certify that Ruby Tours & Travels is havingHaj turnover of Rs.2.16 Crore during the financial year 2015-16.

F

This is on the basis of information, explanations & recordsproduced before me.

For A S Gholkar & Co.

Chartered Accountants

GAmit S. Gholkar(Proprietor)Place: PuneDate: 02/01/2018

HCertificate No.ASG/2017-18/068.”

22. The petitioner has applied quota as Private Limited Companywhich fact is not disputed. Objection was raised by query dated25.03.2018 that all documents were submitted for Private LimitedCompany but previous quota including 2015 were allotted to proprietor.The Type of entity is changed. After considering the reply ultimatelyorder dated 31.05.2018 stated that PTO’s turnover is less than Rs.1crore as required under Clause (iv). In the counter-affidavit as well as inthe oral submissions, the aforesaid ground was relied on behalf of therespondents for rejection. The petitioner has filed rejoinder-affidavit tothe counter-affidavit in which petitioner submits that till Haj 2015 petitionerwas conducting service as a Proprietorship Firm under the name RubyTours & Travels, however, from Haj 2017 the entity Type was changedto Private Limited Company. The PTO who has applied for registrationis admittedly a Private Limited Company and the turnover which is reliedwas of a Proprietorship Firm. It is not the case that the Company havingincorporated after the Proprietor business was closed. It is not a case ofconversion of Proprietorship Firm into Company. No documents havebeen submitted that Proprietorship Firm sold its entire business to theCompany. It is also relevant to point out that when the petitioner hadapplied for registration for Haj 2016, the objection was raised by letterdated 07.06.2016 of the respondent where following was stated:

“2(vi). In the application form the PTO has mentioned it is aproprietorship firm but as per documents provided it is aprivate limited company. Further, the names of all directorsare also not disclosed.”

23. Thus, the petitioner was well aware of the objections raisedby the respondent under Clause (iv) regarding turnover relied by thepetitioner being of different entity. The position ought to have beenexplained by the petitioner by submitting all relevant documents includingconversion of Proprietorship Firm into Private Limited Company withtransfer of its assets and liabilities. The fact that turnover of differententity was relied, the decision rejecting the registration cannot be said tobe perverse or based on no material. Learned counsel for the petitionerlaid much emphasis that for the Haj 2017 when the petitioner was grantedregistration, it was not open to respondent to raise objections again.Learned Attorney General submitted that there are large number ofapplications every year and there being time constraint in verification ofthe application if in the event a PTO is ineligible which escaped notice of AB

C

D

E

F

G

H

Athe respondent in a particular year there cannot be estoppel on theGovernment to raise issue of ineligibility in the subsequent year. We findsubstance in the submission of the learned Attorney General. TheGovernment cannot be estopped to raise issue of ineligibility in case itescaped its notice in any earlier order. We, thus, do not find any infirmityin the ground taken in the order dated 31.05.2018 in refusing registrationBdue to non-compliance of Clause (iv). We having upheld the order dated31.05.2018, it is not necessary for us to consider the rival submissionswith regard to non-compliance of Clause (xi).

24. The submission of the learned counsel for the petitioner thatreport of Chartered Accountant Firms empanelled by the respondentChas been mechanically considered also cannot be accepted. Theobjections were raised after scrutiny of the application to which replywas submitted by the petitioner. In the event the Government receivedthe assistance from a Chartered Accountant Firm no exception can betaken to such assistance provided it is proved that there is no non-Dapplication of mind by the Government on the relevant facts anddocuments. In the present case order dated 31.05.2018 refers to theobjections raised, clarifications/replies submitted by the petitioner. Thetechnical advice received from the empanelled Chartered AccountantFirms has also been relied to support its conclusion in which no infirmitycan be found. We, thus, are of the view that there are no grounds forEinterfering in the order dated 31.05.2018 in Writ Petition No.638 of 2018which writ petition deserves to be dismissed. The writ petition isaccordingly dismissed.

25. Now coming to the Writ Petition (C) No. 646 of 2018.Mr. Santosh Krishnan, learned counsel for the petitioner with emphasisFand clarity submits that reasons given in the Order dated 31.05.2018 forrefusing registration is trivial and non-existent. He submits that copiesof Munazzim card and Visa copy were duly submitted and the errorpointed out in the name of Mr. Abdur Razzaque as Abdul Razzaque inMunazzim card being insignificant and trivial, ought not to have beenGrelied by the respondent to reject the claim. It is further submitted thattypographical error in passport number as contained in the MunazzimCard was also to be ignored since the copy of the passport with correctnumber was already submitted and it was not the case of the respondentthat any other person apart from Abdur Razzaque was tour Assistant ofthe petitioner.H

26. Ms. Pinky Anand, learned Additional Solicitor General refutingthe submissions contended that the name as per translation duly attestedby the Director of PTO showed the name as Abdul and there wasdifference in passport number in the Munazzim Card, which showedpassport No. as F-83847646 whereas the correct passport number isF-8384646. It is submitted that rejection was on valid ground.

27. We have considered the submissions of the learned counselfor the parties and have perused the records.

28. The Munazzim Card and Haj Visa is issued in the name oftour assistant by the Saudi Authorities. Details of tour assistants werealready submitted at Page No. 199 of the application, which was re-submitted alongwith clarification of the petitioner. In the translated copyas is the case of the respondent, attested by the Director of the PTO,the name of Abdur Razzaque was shown as Abdul Razzaque. TheMunazzim Card is issued by the Saudi Authorities and the mention ofword “l” in place of “r” at the end of the name Abdur is on account ofdifference in pronounciation of the name by the Saudi Authorities, whichdoes not go to the root of the matter since it is not the case of therespondent that the tour assistant was any other person except the onewho was authorised by the petitioner. Further, the photocopy of thepassport of Abdur Razzaque Chand Mia was submitted by the petitioneralongwith photograph and other details. Correct number of passport i.e.F-8384646 is also submitted to the respondent. Photocopy of the visaissued by the Saudi Authorities is also brought on the record alongwithadditional documents which mentions correct passport number i.e.F-8384646. In the Munazzim Card issued by authorities, it is also broughton record before us that passport number mentioned is F-83847646.The digit “7” has been mentioned additionally in the passport number,which is an obvious mistake. We are of the view that the reliance onaforesaid two grounds which are too trivial and insignificant, cannot besaid to be any valid ground for rejection of the claim. Moreover whenthe same tour assistant with the same passport number has conductedthe Haj services for the year 2010, the respondent’s authorities whileconsidering the case of the PTO for registration have to advert to thesubstance of the matter and substance of the reply submitted by thePTO need to be gone into. In event of PTO fulfills other conditions,rejection of claim on trivial and non-substantial grounds cannot becountenance. We are of the view that rejection of registration of the A

B

C

D

E

F

G

H

APTO for Haj-2018 in the present case cannot be supported and deservesto be set aside.

29. Now, we come to the question of relief, which is to be grantedto the petitioner, in view of our above decision that rejection of claim ofpetitioner for Haj-2018 was unfounded. Learned counsel for the petitionerBhas placed reliance on the judgment of this Court in Jeddah Travelsand Jeddah Hajj Group Vs. Union of India, (2014) 14 SCC 378,where this Court laid down following in Paragrpah 7:- “7. Having considered the contentions advanced on behalf of therival parties, we are of the view that the petitioners who hadCapproached the Court well in time cannot be denied the benefit ofan adjudication as urged by the learned ASG. The time-frame stillavailable, in our considered view, is adequate to enforce the rightsof the petitioners if they are found so entitled. “

30. Learned counsel submits that since the petitioner has filed thisDpetition on 04.06.2018, which was the date for allocation of Haj quota tothe eligible PTOs, petitioner is entitled for relief. Shri Santosh Krishnansubmitted that even if the quota is allotted to all the PTOs, the number ofpassengers allotted to each PTO may be reduced by one, which may bere-allotted to petitioner and another eligible person. This Court in UnitedAir Travels Services Through its Proprietor A.D.M. Anwar KhanEvs. Union of India through Secretary (Ministry of External Affairs),(2018) 7 SCALE 1: AIR 2018 SC 2264 decided on 07.05.2018 cameto consider the question of relief to be granted to PTO, whose applicationfor grant of registration for Haj Pilgrimage – 2016 was rejected. In thepresent writ petition, one of the reliefs claimed by the petitioner is forFgrant of compensation. In Prayer C, following has been prayed:- “(c) Issue a Writ, order or direction in the nature of Mandamuscommanding and directing the respondent to pay compensation tothe petitioner for the loss occurred to it by not granting registrationfor Haj 2018;”

G31. This Court in United Air Travel Services (supra) consideredthe question of grant of relief and has laid down following in Paragraphs13 to 18:- “13. The question, however, rises what relief can be granted insuch a situation. The passage of time has made certain reliefsH

infructuous. The time period for conducting Hajj tours for 2016 aswell as 2017 is over. Thus, even the alternative relief prayed for2017 has become infructuous. In three of the writ petitions, i.e.,WP (C) Nos.631/2016; 634/2016 & 636/2016, there is a specificalternative plea for compensation to the petitioners for the lossaccrued due to non-grant of registration for the Hajj of 2016.While there is no such specific plea in the other writ petitions,given the identical situation, we are of the view that the sameprinciple ought to be applied in all these cases. The petitionerscannot be left remediless. The mindless action of the respondentsin rejecting the eligibility of the petitioners for the year 2016 onthe very grounds on which they were exempted necessitates thatthe petitioners should be entitled to damages in public law so thatthey are compensated, at least, to some extent for not havingbeen able to carry on with their business on account of illegalaction of the respondents.

14. The principles of damages in public law have to, however,satisfy certain tests. In Nilabati Behera v. State of Orissa, (1993)2 SCC 746, it was observed that public law proceedings serve adifferent purpose than private law proceedings. In that context, itwas observed as under:

“The purpose of public law is not only to civilize public powerbut also to assure the citizen that they live under a legal systemwhich aims to protect their interests and preserve their rights.Therefore, when the court molds the relief by granting‘compensation’ in proceedings under Articles 32 or 226 of theConstitution seeking enforcement or protection of fundamentalrights, it does so under the public law by way of penalising thewrongdoer and fixing the liability for the public wrong on theState which has failed in its public duty to protect thefundamental rights of the citizen. The payment of compensationin such cases is not to be understood, as it is generallyunderstood in a civil action for damages under the private lawbut in the broader sense of providing relief by an order of making‘monetary amends’ under the public law for the wrong donedue to breach of public duty, of not protecting the fundamentalrights of the citizen. The compensation is in the nature of‘exemplary damages’ awarded against the wrong doer for the

AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

breach of its public law duty and is independent of the rightsavailable to the aggrieved party to claim compensation underthe private law in an action based on tort, through a suit institutedin a court of competent jurisdiction or/and prosecute the offenderunder the penal law.”

It was also emphasized that it is a sound policy to punish thewrongdoer and it is in that spirit that the courts have molded therelief by granting compensation in exercise of writ jurisdiction.The objective is to ensure that public bodies or officials do not actunlawfully. Since the issue is one of enforcement of public duties,the remedy would be available under public law notwithstandingthat damages are claimed in those proceedings.

15. The aforesaid aspect was, once again, emphasized in CommonCause, a Registered Society v. Union of India, (1999) 6 SCC667. We may also usefully refer to N. Nagendra Rao & Co. v.State of A.P., (1994) 6 SCC 205 qua the proposition that thedetermination of vicarious liability of the State being linked withthe negligence of its officer is nothing new if they can be suedpersonally for which there is no dearth of authority.

16. In the facts of the present case, the arbitrariness and illegalityof the action of the authority is writ large. The petitioners havebeen deprived of their right to secure the quota on a patentlywrongful order passed for reasons, which did not apply to themand for conditions, which had been specifically exempted. Whatcould be a greater arbitrariness and illegality? Where there is suchpatent arbitrariness and illegality, there is consequent violation ofthe principles enshrined under Article 14 of the Constitution ofIndia. The facts of the present case are, thus, undoubtedly givingrise to the satisfaction of parameters as a fit case for grant ofcompensation.

17. On a conspectus of the aforesaid facts including the numberof pilgrims for whom the petitioners would have been entitled toarrange the Hajj pilgrimage, an amount of Rs.5 lakh per petitionerwould be adequate compensation for the loss suffered by themand sub-serve the ends of justice. We are conscious of the factthat there is no quantification based on actual loss, but then theaward by us is in the nature of damages in public law.

18. The amount for each of the petitioners be remitted by therespondents within two months from the date of this order failingwhich the amount would carry interest @ 15 per cent per annumapart from any other remedy available to the petitioners. It will beopen to the respondents to recover the amount of damages andcosts from the delinquent officers responsible for passing suchunsustainable orders.”

32. We are of the view that petitioner is also entitled for samecompensation of Rs.5 lakh, which is adequate compensation for the losssuffered by the petitioner and shall subserve the justice. We furtherdirect that the aforesaid amount be paid within two months from thisdate, failing which the amount would carry simple interest @ 15 percent per annum. The Writ Petition (C) No. 646 of 20185 is allowed tothe above extent.

33. Now we come to the last writ petition being Writ Petition (C)No. 668 of 2018. Learned counsel for the petitioner in support of theabove petition submits that although the petitioner has submittednecessary details including rental receipts, which is reflected in theirreply dated 31.03.2018 but the claim has been rejected with theobservation that petitioner has not submitted that rental receipts and thereceipts and vouchers submitted by the petitioner were issued byMuttawiffy Hujjaj South Asia Establishment, which was not rental receiptwith regard to contract entered with Ali M.A. Jabullah and Zaid A.A.Abid for hiring of accommodation for pilgrims. Petitioner submitted thatreceipts having been again submitted alongwith the reply dated31.03.2018, the rejection was uncalled for. Ms. Pinky Anand, learnedAdditional Solicitor General refuting the submission contends thatMuttawiffy Hujjaj South Asia Establishment was not the party who hadprovided accommodation to PTOs. Since the accommodation contractat Madina was entered with different persons and further no properreply has been given to the petitioner except again relying on the saidreceipts.

34. We have considered the above submissions of the parties andhave perused the records. Although the rejection of the claim of thepetitioner clearly mentions about the above mismatch and stated thatreceipt voucher has been issued by entity with whom the contract foraccommodation was not entered into, but no proper explanation in thewrit petition has been given. The writ petition only reiterates what was AB

C

D

E

F

G

H

Astated in the reply dated 31.03.2018 without explaining the objectionraised by the respondent. We are satisfied that there was valid reasonfor the respondent to refuse registration to the petitioner when the objectionwas raised, which was not satisfactorily replied by the petitioner. Weare of the view that petitioner in this writ petition is not entitled for anyrelief and the petition deserves to be dismissed.B

35. In result, Writ Petition (C) No. 638 of 2018 - Ruby Tour ServicesPvt. Ltd. Vs. Union of India and Writ Petition (C) No. 668 of 2018 -M/s. Hiba Exports India Vs. Union of India are dismissed. Writ Petition(C) No. 646 of 2018 - M/s. Nawab Travels Private Limited Vs. Unionof India is allowed with a direction to the respondent to pay compensationCof Rs.5 lakh within a period of two months from today, failing which thepetitioner shall be entitled to claim simple interest @ 15 per cent perannum. Parties shall bear their own costs.

DNidhi Jain

Writ Petitions disposed of.

E

F

G

H