UNITED AIR TRAVEL SERVICES THROUGH ITS PROPRIETOR A.D.M. ANWAR KHAN versus UNION OF INDIA THROUGH SECRETARY (MINISTRY OF EXTERNAL AFFAIRS) on 7 May 2018

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SUPREME COURT REPORTS

[2018] 5 S.C.R.

AUNITED AIR TRAVEL SERVICES THROUGH ITSPROPRIETOR A.D.M. ANWAR KHAN

v.

UNION OF INDIA THROUGH SECRETARY (MINISTRY OFEXTERNAL AFFAIRS)

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(Writ Petition (Civil) No. 631 of 2016 etc.)

MAY 07, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

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CHaj: Haj pilgrimage – Grant of registration for –Disqualification – Private Tour Operators-PTOs conducting travelbusiness for Hajj and Umrah – Application by the petitioners forregistration and allocation of quota for the Hajj 2016 – Rejectionof, on the ground of non-compliance with certain clauses of thepolicy for the PTOs – Thereafter, policy for Private Tour OperatorsDfor hajj 2013-2017’ – Petitioners were all eligible to be qualifiedas PTOs for the year 2015 for Hajj pilgrimage – Since qualifiedPTOs exceeded 90, draw of lots held but petitioners did not getquota – Thereafter, since petitioners were not successful in the drawof lots, they were entitled, under clause 4(b) of the policy, to beEallocated 150 seats in the ensuing year without Qurrah if theyremain qualified as PTOs – Subsequently, in view of certain changesin the policy, 50 seats to be allocated for 2016 – On 29.4.2016,publication of norms for registration of PTOs for Hajj 2016 by theMinistry of External Affairs – Persons like the petitioners who hadqualified for the year 2015 but were not successful in the draw ofFlots would have the benefit of exemption – However, rejection lettersintimating non-allocation of quota to private tour operators fornon-compliance of the clauses – Held: Respondent’s plea that thereasons were wrongly communicated in the rejection letter, isunsustainable – Thus, the letters of rejection are quashed – WithGpassage of time certain reliefs have become infructuous – Timeperiod for conducting Hajj tours for 2016 as well as 2017 is over– In three writ petitions, petitioners sought compensation asalternative plea for the loss accrued – Same principle to be appliedin all the cases – In view of the mindless action of the respondentsin rejecting the eligibility of the petitioners for 2016 on the groundsH

on which they were exempted, petitioners entitled to damages inpublic law – Thus, the petitioners awarded compensation ofRs.5 lakh per petitioner.

Allowing the writ petitions, the Court

HELD: 1.1 The passage of time has made certain reliefsinfructuous. The time period for conducting Hajj tours for 2016as well as 2017 is over. Thus, even the alternative relief prayedfor 2017 has become infructuous. In three writ petitions, there isa specific alternative plea for compensation to the petitioners forthe loss accrued due to non-grant of registration for the Hajj of2016. While there is no such specific plea in the other writpetitions, given the identical situation, the same principle oughtto be applied in all these cases. The petitioners cannot be leftremediless. The mindless action of the respondents in rejectingthe eligibility of the petitioners for the year 2016 on the verygrounds on which they were exempted necessitates that thepetitioners 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. [Para 13] [706-G-H; 707-A-C]

1.2 In the facts of the instant case, the arbitrariness andillegality of the action of the authority is writ large. The petitionershave been 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 issuch patent arbitrariness and illegality, there is consequentviolation of the principles enshrined under Article 14 of theConstitution of India. The facts of the instant case are, thus,giving rise to the satisfaction of parameters as a fit case for grantof compensation. [Para 16] [708-D-E]

1.3 On a conspectus of the facts including the number ofpilgrims 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. There is no quantification based ABCD

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Aon actual loss, but then the award is in the nature of damages inpublic law. [Para 17] [708-F]

1.4 The amount for each of the petitioners be remitted bythe respondents within the stipulated period failing which theamount would carry interest @ 15 per cent per annum apart fromBany other remedy available to the petitioners. [Para 18] [708-G]

Union of India v. Rafique Shaikh Bhikan (2013) 4 SCC699 : [2013] 5 SCR 428 ; Al Ismail Haj Tour v. Unionof India (2016) 15 SCC 246 ; Mohinder Singh Gill &Anr. v. The Chief Election Commissioner, New Delhi &COrs. (1978) 1 SCC 405 : [1978] 2 SCR 272 ; NilabatiBehera v. State of Orissa (1993) 2 SCC 746 : [1993] 2SCR 581 ; Common Cause, a Registered Society v.Union of India (1999) 6 SCC 667 : [1999] 3 SCR1279 ; N. Nagendra Rao & Co. v. State of A.P. (1994) 6DSCC 205 : [1994] 3 Suppl. SCR 144 – referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 631 of 2016.

Under Article 32 of the Constitution of India.

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WITH

Writ Petition (Civil) Nos. 636, 634, 934, 941 & 938 of 2016

Writ Petition (Civil) Nos. 11 & 94 of 2017.

Ms. Pinky Anand, ASG, B. Adinarayana Rao, A. K. Panda,Sr. Advs, G. Balaji, Romy Chacko, Santosh Krishnan, Sayid MarzookBafaki, Sulaiman Mohd. Khan, Ms. Taiba Khan, Mohit Prasad, ChandraBhushan Prasad, Inamul Haq, Mohd. Ainul Ansari, Kripa Shankar Prasad,Sunil Khatwani, Rajat Bhardwaj, Manoj Kumar Goyal, Pradeep Jatav,Sunil Kumar Verma, Harshad V. Hameed, Dileep Poolakkot, Ms. AshlyHarshad, Ms. Usha Nandini. V, Bhuvan Mishra, Sachin Sharma, AmitSharma, Vinay Kr. Yadav, Hemant Arya, Sumit Teterwal, Ms. SnidhaMehra, Amit Mishra, Sumit Goel, Arun Kumar, Mrs. Anil Katiyar, AmitPratap Singh, Raj Bahadur Yadav, B. Krishna Prasad, Mukesh KumarMaroria, Shreekant N. Terdal, Gaurav Sharma, Mrs. Priya Puri,S. Gowthaman, Advs. for the appearing parties.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J. 1. A batch of writ petitions raisesthe issue of Private Tour Operators (for short ‘PTOs’) who are, interalia conducting the travel business for Hajj and Umrah being disqualifiedfor grant of registration for the year 2016 for the Hajj pilgrimage. Theprayer is for quashing the identical communications dated 27.7.2016issued by the respondent rejecting the application of the petitioners forregistration and allocation of quota for the Hajj 2016 on the ground thatthey have not complied with certain clauses of the policy for the PTOsas laid down by this Court.

2. The issue relating to the Hajj policy and the registration ofthese PTOs has resulted in two judicial pronouncements by this Court inUnion of India v. Rafique Shaikh Bhikan[1] and Al Ismail Haj Tour v.Union of India[2]. The policy presented on behalf of the Governmentwas approved by this Court with slight modifications and was annexedas Appendix-I to the order in Union of India v. Rafique Shaikh Bhikan[3]case referred to aforesaid to be called as ‘Policy for Private TourOperators for hajj 2013 – 2017’. The policy was to remain valid for aperiod of five years and was not to be questioned in any court or authority.The petitioners were all eligible to be qualified as PTOs for the year2015 for Hajj pilgrimage but in the process of draw of lots dated 7.8.2015,luck did not favour them and they thus did not get quota. The relevantextract of the policy is as under:

1 (2013) 4 SCC 699

2 (2016) 15 SCC 246

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“Appendix I

Ministry of External Affairs

(Gulf and Haj Division)

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Registration of Private Tour Operators — Haj 2013

The Government of Saudi Arabia has notified that Private TourOperators (PTOs) registered with the Government of India andinvolved in the preparation of the Haj Pilgrimage will be eligiblefor grant of Haj group visas subject to fulfilment of other termsand conditions as laid down by the Saudi Authorities.

2. Applications are invited from eligible PTOs for registration forHaj 2013. The eligibility criteria are at Annexures A and B. Theapplications must be submitted in the prescribed format (AnnexureC) directly to MEA or any other agency appointed by it.

3. It is to be noted that the Government of Saudi Arabia hasstipulated that effective Haj 2013, a PTO should facilitate at least150 pilgrims. Accordingly, the PTO Policy has been reframed.For registration and allotment of quota of Haj seats for Haj 2013,interested PTOs may apply under the following two categories:

Category IPTOs registered with MEA and facilitated Hajis at least for 7 Haj operations or more. Category II PTOs registered with MEA and facilitated Hajis for at least for 1 to 6 Haj operations and PTOs which have facilitated at least 50 umrah pilgrims in a year for any five years.

4. 70% of the overall quota of seats will be allocated to eligiblePTOs under Category 3(I) and 30% to eligible PTOs underCategory 3(II). Distribution of seats among qualified PTOs willbe done as follows:

(a) 70% of the Haj 2013 PTO seats (31,500) will be allocated toeligible PTOs under Category 3(I) at the rate of 150 seats perPTO. In case the number of PTOs exceeds 210, the allocation ofseats will be done on draw of lots. If the number of qualifiedPTOs is less than 210, each PTO will be allocated 150 seats andsurplus seats, if any, will be distributed equally among them.

r at least acilitated rs.

UNITED AIR TRAVEL SERVICES v. UNION OF INDIA[SANJAY KISHAN KAUL, J.]

(b) 30% of Haj 2013 PTO seats (9000) will be allocated toAeligible PTOs under Category 3(II) at the rate of 150 seats perqualified PTO. If the number of qualified PTOs exceeds 90, theallocation of seats will be done by draw of lots. In case thenumber of PTOs is less than 90, each PTO will be allocated 150seats. Balance seats, if any, will be transferred to Category I andBdistributed equally among them. A qualified PTO which fails toget selected under the draw of lots in any year will be allocated150 seats in the ensuing year without qurrah if it remains aqualified PTO.

5. This Policy is expected to remain valid for five years 2013-2017 unless there are substantive developments which affect it.The allocation of seats to qualified PTOs in each category will bedone every year on the basis of the overall quota of PTO seatsspecified in the Annual India-Saudi Arabia Haj Agreement andthe number of qualified PTOs remaining in each category. The-policy envisages crosscategory upward movement of PTOs fromCategory II to Category I. A qualified PTO shall remain qualifiedunless it is otherwise disqualified either by the Government ofIndia or by the Government of Saudi Arabia for valid reasons.Itis to be noted that the PTOs who do not wish to take a minimumof 150 Hajis or are unable to do so, need not apply.

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6. Last date for receipt of applications which should be addressedto the MEA or any other agency appointed by it.

(emphasis supplied)

3. In terms of the aforesaid policy since the qualified PTOsexceeded 90, a draw of lots was held. Further, since the petitionerswere not successful in the draw of lots, they were entitled, under clause4(b) of the policy aforesaid, to be allocated 150 seats in the ensuing yearwithout Qurrah if they remain qualified as PTOs. We may note at thisstage that as per the submissions advanced, in view of certain changesin the policy of the Saudi Government, the number of seats to be allocatedfor 2016 would have been 50.

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4. It is also apparent from the Press Release of 7.8.2015 givingthe list of PTOs who have qualified but did not get quota, that thepetitioners figured in the said list.

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A5. On 29.4.2016, the Ministry of External Affairs published thenorms for registration of PTOs for Hajj 2016. Para 3 of this reads asunder:

“3. All the terms and conditions laid down in Annexure A & B willalso apply on PTOs that qualify under Category-II by virtue ofBfacilitating a minimum of 50 Umrah pilgrims in a year for any 5years, but with the exception of the terms and conditionscontained under Clause (vii), (x), (xi) and (xii) of Annexure A. Inaddition, these PTOs are also required to submit the proof ofpayment made through banking or any other authorised channelstowards purchase of tickets and hiring of accommodation inCMakkah and Madinah in respect of Umrah pilgrims facilitated bythem in support of their claim.”

6. The aforesaid, thus, provided that persons like the petitionerswho had qualified for the year 2015 but were not successful in the drawof lots would have the benefit of exemption of terms and conditionsDcontained in clauses (vii), (x), (xi) and (xii) of Annexure A.

7. For purposes of completion of record, we enumeratehereinbelow the said clauses of Annexure A:

“ANNEXURE-A

E Terms and Conditions for Registration of Private Tour Operators (PTOs) for Haj-2016

Each PTO should establish that it is a genuine and establishedTour Operator having experience in sending tourists/pilgrimsabroad for which it should produce the following documents:

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Sl. Terms and ConditionsNo. vii Proof of payment made through banking (Bank Statement) or other authorized channels towards purchase of tickets and hiring of accommodation in Makkah/Madinah for the financial Gyear 2013-14 (Haj2013) or 2014-15 (Haj 2014). Payments towards purchase of tickets, hiring of accommodation for pilgrims in Makkah/Madinah, by any other means, would not be accepted. x Copies of Registration Certificate issued to the PTO in support their aim-wise and PTO-wise. H

ment) or ets and inancial ayments ion for ould not support xiContract 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 for Haj.

xii Copy of Munazzim Card and relevant Haj visa pages of the Passport of the Proprietor/Owner.

8. The petitioners, however, faced identical rejection letters of26.7.2016 (sent through e-mail dated 27.7.2016), the contents of whichare as under:

“Subject: Intimation regarding non-allocation of quota to PrivateTour Operators (PTOs) for Haj-2016.

Dear Sirs,

This has reference to your application regarding registration forHaj 2016.

2. On scrutiny of your application submitted for Haj-2016, yourfirm has not been found eligible for registration and allocation ofquota for Haj 2016 on the following grounds:

PTO has not complied with clause vii, x, xi and xii of Annexure Aof PTO.

Policy as laid down by Hon’ble Supreme Court for any one of theHaj year.

3. Your ineligibility for registration and allocation of quota for Haj2016, however, does not prejudice your right to debar you fromapplying for registration for Haj 2017 on the basis of the requiredconditions for Haj 2017.”

9. A bare perusal of the aforesaid letter would show that thereason cited for disqualification was non-compliance of the very clausesof which exemption had been granted to the petitioners.

10. Learned Additional Solicitor General appearing for therespondents could not dispute the aforesaid position but sought to canvasthat the reasons were wrongly communicated in the rejection letter, andthere was actually, some other reason for the rejection. The aforesaidplea can hardly be countenanced in view of the reasons referred to andcommunicated.

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A11. Learned counsel for the petitioner has, thus, rightly drawn ourattention to the Constitution Bench judgment of this Court in MohinderSingh Gill v. Anr. v. The Chief Election Commissioner, New Delhi& Ors.[4] to submit that such a plea cannot be accepted. We may notethat this is a well settled legal position in many judicial pronouncementsof this Court, but it is not necessary to revert to the same. In para 8 ofBthe aforesaid judgment, V.R. Krishna Iyer, J, in his inimitable style statesas under:

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“8. The second equally relevant matter is that when a statutoryfunctionary makes an order based on certain grounds, its validitymust be judged by the reasons so mentioned and cannot besupplemented by fresh reasons in the shape of affidavit orotherwise. Otherwise, an order bad in the beginning may, by thetime it comes to Court on account of a challenge, get validated byadditional grounds later brought out. We may here draw attentionto the observations of Bose, J. in Gordhandas Bhanji:

“Public orders, publicly made, in exercise of a statutoryauthority cannot be construed in the light of explanationssubsequently given by the officer making the order of what hemeant, or of what was in his mind, or what he intended to do.Public orders made by public authorities are meant to havepublic effect and are intended to affect the actings and conductof those to whom they are addressed and must be construedobjectively with reference to the language used in the orderitself.

FOrders are not like old wine becoming better as they growolder.”

12. The aforesaid legal position, thus, makes the stand of therespondent unsustainable, resulting in the quashing of the impugned lettersof rejection.G

13. The question, however, rises what relief can be granted insuch a situation. The passage of time has made certain reliefs infructuous.The time period for conducting Hajj tours for 2016 as well as 2017 isover. Thus, even the alternative relief prayed for 2017 has become H 4(1978) 1 SCC 405

infructuous. In three of the writ petitions, i.e., WP (C) Nos.631/2016;634/2016 & 636/2016, there is a specific alternative plea for compensationto the petitioners for the loss accrued due to non-grant of registration forthe Hajj of 2016. While there is no such specific plea in the other writpetitions, given the identical situation, we are of the view that the sameprinciple ought to be applied in all these cases. The petitioners cannotbe left remediless. The mindless action of the respondents in rejectingthe eligibility of the petitioners for the year 2016 on the very grounds onwhich they were exempted necessitates that the petitioners should beentitled to damages in public law so that they are compensated, at least,to some extent for not having been able to carry on with their businesson account of illegal action of the respondents.

14. The principles of damages in public law have to, however,satisfy certain tests. In Nilabati Behera v. State of Orissa[5], it wasobserved that public law proceedings serve a different purpose thanprivate law proceedings. In that context, it was observed as under:

“The purpose of public law is not only to civilize public power butalso to assure the citizen that they live under a legal system whichaims to protect their interests and preserve their rights. Therefore,when the court molds the relief by granting ‘compensation’ inproceedings under Articles 32 or 226 of the Constitution seekingenforcement or protection of fundamental rights, it does so underthe public law by way of penalising the wrongdoer and fixing theliability for the public wrong on the State which has failed in itspublic duty to protect the fundamental rights of the citizen. Thepayment of compensation in such cases is not to be understood,as it is generally understood in a civil action for damages underthe private law but in the broader sense of providing relief by anorder of making ‘monetary amends’ under the public law for thewrong done due to breach of public duty, of not protecting thefundamental rights of the citizen. The compensation is in the natureof ‘exemplary damages’ awarded against the wrong doer for thebreach of its public law duty and is independent of the rightsavailable to the aggrieved party to claim compensation under theprivate law in an action based on tort, through a suit instituted in acourt of competent jurisdiction or/and prosecute the offender underthe penal law.” 5 (1993) 2 SCC 746

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AIt was also emphasized that it is a sound policy to punish thewrongdoer and it is in that spirit that the courts have molded the relief bygranting compensation in exercise of writ jurisdiction. The objective is toensure that public bodies or officials do not act unlawfully. Since theissue is one of enforcement of public duties, the remedy would beavailable under public law notwithstanding that damages are claimed inBthose proceedings.

15. The aforesaid aspect was, once again, emphasized in CommonCause, a Registered Society v. Union of India[6]. We may also usefullyrefer to N. Nagendra Rao & Co. v. State of A.P.[7 ]qua the propositionCthat the determination of vicarious liability of the State being linked withthe negligence of its officer is nothing new if they can be sued personallyfor 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 have beenDdeprived of their right to secure the quota on a patently wrongful orderpassed for reasons, which did not apply to them and for conditions, whichhad been specifically exempted. What could be a greater arbitrarinessand illegality? Where there is such patent arbitrariness and illegality,there is consequent violation of the principles enshrined under Article 14Eof the Constitution of India. The facts of the present case are, thus,undoubtedly giving rise to the satisfaction of parameters as a fit case forgrant of compensation.

17. On a conspectus of the aforesaid facts including the numberof pilgrims for whom the petitioners would have been entitled to arrangeFthe Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would beadequate compensation for the loss suffered by them and sub-serve theends of justice. We are conscious of the fact that there is no quantificationbased on actual loss, but then the award by us is in the nature of damagesin public law.

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18. The amount for each of the petitioners be remitted by therespondents within two months from the date of this order failing whichthe amount would carry interest @ 15 per cent per annum apart fromany other remedy available to the petitioners. It will be open to the 6 (1999) 6 SCC 667H 7 (1994) 6 SCC 205

UNITED AIR TRAVEL SERVICES v. UNION OF INDIA[SANJAY KISHAN KAUL, J.]

respondents to recover the amount of damages and costs from thedelinquent officers responsible for passing such unsustainable orders.

19. The writ petitions are allowed in the aforesaid terms withcosts quantified at Rs.10,000 per petition.

Nidhi Jain

Petitions allowed.

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