FEDERATION HAJ PTOS OF INDIA versus UNION OF INDIA on 4 February 2019

[2019] 2 S.C.R. 627

FEDERATION HAJ PTOS OF INDIA

v.

UNION OF INDIA

Writ Petition (Civil) No. 4 of 2019FEBRUARY 04, 2019

[A. K. SIKRI, S. ABDUL NAZEER AND M. R. SHAH, JJ.]

Haj Pilgrimage :

Haj policy for 2019-23 – Grievance of the petitioner wasthat some of their vital suggestions, were not incorporated whilefinalising the Haj policy – Petitioner contended that while fixingthe criteria of experience-cum-financial strength, the respondenthad given more emphasis on the financial aspects thereby sideliningthe aspect of experience – Held: Public authorities must have libertyand freedom in framing policies – It is well accepted principle thatin complex social, economic and commercial matters, decisions haveto be taken by governmental authorities keeping in view severalfactors and it is not possible for the courts to consider completingclaims and to conclude which way balance tilts – In instant case,Haj Policy for 2019-23 is based on data collected and complied inthe study by IIT-Delhi, an expert body – Further, views of thestakeholders, 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 isimportant because when the pilgrims travel, the Private TourOperators (PTOs) are required to make all arrangements fortransportation, air travel, boarding and lodging, localtransportation and provision of guide etc. – Also, views of thepetitioners were not only considered but accommodated to the extentpossible 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 reviewis very limited in such matters – It is only when a particular policydecision is found to be against a statute or it offends any of theprovisions of the Constitution or it is manifestly arbitrary, capriciousor mala fide, the court would interfere with such policy decisions –In instant case, no such case was made out.

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ADisposing of the writ petitions, the Court HELD: 1. The Haj Policy for 2019-23 is based on datacollected and compiled in the study by IIT Delhi, an expert body.Further, views of the stakeholders, including the petitioners, wereinvited and duly considered. The respondent has categoricallyBsubmitted that the aforesaid demand of the petitioners is not basedon any factual data, whereas the decision taken by the Ministryis based on data collected and compiled in the study by IIT Delhi.Secondly, the petitioners’ suggestion is only to take experienceinto account, whereas the Ministry has considered bothexperience and financial strength, as recommended in the IITCDelhi study itself. It is submitted that where 1,75,000 peopleembark upon a pilgrimage, financial strength of the (Private TourOperator) PTO is of utmost importance and cannot be overlooked.Financial strength is important because when the pilgrims travelto Saudi Arabia, the PTOs are required to make all arrangements Dfor transportation, air travel, boarding and lodging, localtransportation and provision of guide, etc. It is submitted thatthe Ministry cannot afford to take any chance on this aspect asthe lack of adequate financial strength of the PTOs may result inthe pilgrims becoming stranded in a foreign country or facingother hardships. [Para 16][638-D-F]E

2. Additionally, it is submitted by the respondent that if thesuggestion of the petitioners is accepted, there would be elevensub-categories amongst Category-I, inasmuch as what is soughtby them is allocation of seats on a pro-rata basis depending onthe number of years of experience. This would result in majorFstructural changes, which is not advisable and cannot be accepted.[Para 17][638-G]

3. Going by the aforesaid considerations, the respondenthas carved out the categories of (Haj Group Organisers) HGOson the parameters of experience as well as financial strength ofGHGOs. Such a decision is based on policy considerations. Itcannot be said that this decision is manifestly arbitrary orunreasonable. It is settled law that policy decisions of theExecutive are best left to it and a court cannot be propelled intothe unchartered ocean of Government policy. Public authorities AB

must have liberty and freedom in framing the policies. It is wellaccepted principle that in complex social, economic andcommercial matters, decisions have to be taken by governmentalauthorities keeping in view several factors and it is not possiblefor the courts to consider competing claims and to conclude whichway the balance tilts. Courts are ill-equipped to substitute theirdecisions. It is not within the realm of the courts to go into theissue as to whether there could have been a better policy and onthat parameters direct the Executive to formulate, change,vary and/or modify the policy which appears better to thecourt. Such an exercise is impermissible in policy matters.[Para 18][639-A-D]

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4. The scope of judicial review is very limited in suchmatters. It is only when a particular policy decision is found tobe against a statute or it offends any of the provisions of theConstitution or it is manifestly arbitrary, capricious or mala fide,the court would interfere with such policy decisions. No suchcase is made out. On the contrary, views of the petitioners havenot only been considered but accommodated to the extent possibleand permissible. [Para 19][639-F]

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Maharashtra State Board of Secondary & HigherSecondary Education v. Paritosh Bhupeshkumar Sheth(1984) 4 SCC 27 : [1985] 1 SCR 29 ; State of MadhyaPradesh v. Nandlan Jaiswal (1986) 4 SCC 566 : [1987]1 SCR 1; Benett Coleman & Co. v. Union of IndiaMaharashtra State (1972) 2 SCC 788 : [1973] 2 SCR757 – relied on.

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Union of India and Others v. Rafique Shaikh Bhikanand Another (2013) 4 SCC 699 : [2013] 5 SCR 428;Union of India and Others v. Rafique Shaikh Bhikanand Another (2012) 6 SCC 265 : [2012] 5 SCR 715 –referred to.

Case Law Reference

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[2013] 5 SCR 428[2012] 5 SCR 715[1973] 2 SCR 757[1985] 1 SCR 29 [1987] 1 SCR 1

ACIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 4of 2019

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIAWITH

W.P.(C) Nos. 26, 33 and 93 of 2019.B

ANS Nadkarni, ASG, Salman Khurshid, Sr. Adv., Gaurav Agrawal,George Thomas, Ms. Monica Haseja, Ms. Mitali Chauhan, Ms. RoshniW. Anand, Ms. Gargi Srivastava, Sulaiman Mohd. Khan, (Mohd.) AinulAnsari, Ms. Taiba Khan, Kripa Shankar Prasad, Sunil Khatwani,Pardeep Jatav, Santosh Krishnan, Bhuvan Mishra, Ms. Suhasini Sen,CSumit Goel, Raj Bahadur Yadav, Mrs. Anil Katiyar, Advs. for theappearing 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 theDFederation/Association of the Private Tour Operators (PTOs)/ Haj GroupOrganisers (HGOs) who have taken up the cause on behalf of theirmembers, namely, various PTOs/HGOs. Other two writ petitions arefiled by the PTOs themselves. The issue raised in all these petitions iscommon. For this reason these petitions were clubbed together andcounsel for all the parties were heard. We now proceed to decide theEcontroversy by this common judgment.

2. For Muslims, place of birth of Hazrat Muhammed, i.e. SaudiArabia, is the most sacred place. Visiting that place is pilgrimage forMuslim community, which is known as performing ‘Haj’. It is the desireof every person of Muslim faith, living anywhere in this world, to visitFSaudi Arabia for performing Haj, which is normally during the last monthof the Islamic calendar being eleven days shorter than the Gregoriancalendar since the dates cannot be fixed in the latter. As the number ofpilgrims during this period is unbounded, the Kingdom of Saudi Arabiahas regulated and restricted, in public interest and for the safety of theGpilgrims themselves, the number of persons who can visit Saudi Arabiaand perform Haj, from time to time. In the process, number of personsfrom each country to visit Saudi Arabia has also been restricted. Towardsthis end, a bilateral agreement is signed between the Government ofIndia and the Kingdom of Saudi Arabia whereby the latter Governmentassigns a fixed number of pilgrims that are permitted to visit and performHHaj. Since the share of Indian pilgrims is limited by numbers, based on such a bilateral agreement, the Government of India also formulates itsHaj Policy for smooth operations, particularly keeping in mind the interestof these pilgrims (who are known as Hajjis). This Haj Policy, inter alia,provides for eligibility and registrations of PTOs and HGOs as well whoact as tour operators for these pilgrims. Purpose is to ensure completepackage from the start of journey from defined places in India to SaudiArabia, their arrangements for stay and performance of Haj and theirsmooth and safe return back to India. Out of the overall number ofpilgrims, relatively small portion is assigned for PTOs and the rest of thepilgrims are taken care of by the Haj Committee of India.

3. The Haj Policy, which is formulated by the Government ofIndia from time to time, lays down various eligibility conditions forregistration for ferrying pilgrims for Haj. It has, however, been noticedthat PTOs/HGOs normally feel aggrieved by one or the other conditionsfor registrations in such Haj Policies. Similar kind of dispute has nowarisen in respect of HGOs Policy 2019-2023 dated December 20, 2018(hereinafter referred to as ‘Haj Policy’) captioned as ‘Policy for HajGroup Organisers for Haj 2019-23 – Registration and allocationof Haj quota for Haj – 2019’.

4. We may mention at this stage that before formulating a particularHaj Policy the Government of India normally invites suggestions/improvements from the PTOs/HGOs. In respect of the aforesaid HajPolicy as well, such suggestions were invited which were given by theFederation and Association of these PTOs/HGOs. However, thepetitioners still felt aggrieved by some of the eligibility conditions andother provisions contained in this Haj Policy.

5. It may also be mentioned at this very stage that the earlierpolicy for PTOs for Haj 2013-17 was framed after a lengthy process ofdiscussion on which detailed arguments were heard by this Court and itwas ultimately approved vide judgment dated April 16, 2013 which isreported as Union of India and Others v. Rafique Shaikh Bhikanand Another[1]. It remained valid for five years and thereafter the PTOPolicy was reviewed by a Haj Policy Review Committee constituted forthe purpose and they suggested new framework for Haj 2018-22.Meanwhile, during the pendency of the finalisation of the recommendationfor next five year Policy, previous Haj Policy for PTOs was extendedfor Haj 2018 as well. The Government assigned the work of formulation AB

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Aof next five year Policy to Indian Institute of Technology (IIT), Delhi.Accordingly, IIT Delhi suggested a new Policy for PTOs/HGOs and thedraft Policy was placed in public domain vide Press Release datedNovember 16, 2018 on the website of the Ministry of Minority Affairs(MoMA) for any suggestions/comments for improvement of the draftPolicy to be submitted by November 30, 2018 to the Ministry. In theBdraft Policy for PTOs for Haj 2019-23, several simplifications andmodifications were made over the previous Policy. The following nineeligibility conditions required in the previous Policy have been removedin the new Policy:

(i) To simplify the financial criteria for assessment, reduce theCrequirements and to remove any discretion due to varying accountingdefinitions. Requirement of Minimum Capital employed was removed.

(ii) To reduce the documentation for filing application, requirementfor assessing eligibility and to simplify the application process.Requirement of furnishing proof of payment for accommodation/air travelD(for the registered HGOs of 2013-17) was removed.

For reducing the requirements for assessing eligibility, lessdocumentation and simplified application process and also to reduce thechances of error in the application process leading to rejection, followingcriteria has been removed:

E(iii) Requirement of giving employees details.(iv) Requirement of giving details of Maktab No. and serviceprovider.

(v) Requirement of giving details of arrival/departure of pilgrims.

(vi) Requirement of furnishing details of transport arrangement inFKSA.(vii) Requirement of furnishing details of orientation/training ofpilgrims.

(viii) Requirement of furnishing details of local correspondentcompany in KSA.G(ix) To remove ambiguity and duplicity in the HGO policy and tomake the application process simple. Annexure of application formatwas removed.

6. Further, following seven provisions of the Terms and Conditionshave 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 unnecessaryharassment, the provision for PTOs involved in court cases/adverse policereport has been simplified. Now only PTOs involved in heinous crimesand Haj related court cases will be barred.

(ii) To give relief given to the small PTOs, the requirement ofoffice area has been lowered. This has also reduced financial burdenon the HGOs for purchasing/hiring large offices.

(iii) The requirement of layout plan has been simplified. Now thePTOs need not run around State/District authorities for validating thelayout plan of offices.

(iv) Provision for the new entrants and the documentaryrequirements were given in detail to remove ambiguity and improvedtransparency. Uniform system of assessment for new PTOs.

(v) The Annexures of the HGO Policy have been simplified tosimplify the application process (only one Annexure describing theeligibility conditions and another Annexure regarding important instructionsand guidelines).

(vi) To remove ambiguity, the requirement of agreement/receiptof accommodation clarified.

(vii) To remove ambiguity, requirement of Affidavit/declarationclarified wherever mentioned in the previous policy were clarified in thedraft policy.

7. Comments were received from more than 180 individual PTOsand the PTO Associations, including Indian Federation Haj PTOs ofIndia and jointly by other PTO Associations. All the issues raised by thePTOs and their Associations were examined in the Ministry. Thesesuggestions/comments were considered in the Ministry in consultationwith the IIT Delhi. Taking into consideration the suggestions/commentsreceived on the draft Policy, twelve changes/modifications were madein the draft Policy and final Policy was circulated on December 20,2018. The changes/modifications in the final Policy vis-a-vis draft Policyare as under:

(i) HGOs renamed as Haj Group Organisers (HGO) – This hasgiven a separate identity to the Haj PTOs and distinguished them fromgeneral tour operators.

(ii) Amount of security deposit reduced to Rs.30 lakhs forCategory-I HGOs and Rs.35 lakhs for Category-I* HGOs – reduced A

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Afinancial burden on the HGOs by Rs. 5 lakh for Category-I HGOs andRs. 10 lakhs for Category-I* HGOs.

(iii) Distribution formula modified to ensure allocation of minimumnumber of seats during each year of the Policy period to Category-I*,Category-I and Category-II HGOs – this gives allocation of minimumBassured seats to each category during each of the years of the Policyperiod. PTOs may plan for the long term arrangements in Saudi Arabiaon the basis of minimum assured allocation of seats.

(iv) It has been ensured that higher category HGO gets morequota than a lower category HGO – this is to ensure that a reasonabledifference is maintained among different category of PTOs. To safeguardCminimum 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 seatsto any of the Cat-1*, Cat-1 and Cat-2 HGOs, the surplusseats will first be distributed among the HGOs in thatDcategory. If there is shortfall in more than one category,surplus seats will first be distributed to Cat-1*, Cat-1 andCat-2 HGOs in order of priority. Only after fulfilling theminimum earmarked seats in all categories, to the extentpossible, the surplus seats, if any, will be distributed as perstage-II.”

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(v) In case of surplus seats generated after allocation of Category-II HGOs, the available seats will be allocated to Category-I* andCategory-I respectively subject to their upper limits – this will enablehigher category PTOs to get more quota.

(vi) Mid-term review of the policy after two years – this willFprovide an opportunity to review the policy mid way instead of aftercompletion of five years and make mid term corrections within the broadpolicy framework.

(vii) Requirement of submission of proof of payment foraccommodation/air travel clarified for the registered HGOs of 2013 toG2017. The HGOs registered during previous policy period are dispensedwith submission of these documents – simplified the documents andapplication process.

(viii) Annual turnover criteria clarified. Only one year documentsare required now – removed ambiguity and reduced the documentation.

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(ix) The time for reporting of HGOs to CGI Jeddah after theirarrival 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 submitdetails of umrah pilgrims has been clarified – removed ambiguity andconfusion and HGOs.

(xi) Director of a company has been added as Munazzim of theHGO – expanded the ambit of Munazzim of HGOs to include Directorof a company.

(xii) Disclosure statement under point 3 of Annexure-II madeelaborate with provision for furnishing details of arrangements made inSaudi 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/suggestionsmade on the PTO Policy, that the final Policy for HGOs was approvedby the competent authority in the Ministry and circulated on December20, 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 whilefinalising the Haj Policy.

10. In the first three writ petitions, notice was issued on January11, 2019, returnable on January 16, 2019. On January 16, 2019, thefollowing order was passed:

“Mr. A.N.S. Nadkarni, learned Additional Solicitor Generalof India, has very fairly stated that the Government is opento the suggestions which can be made by the petitioner-Federation. For this purpose, the Hon’ble Minister is readyto give hearing to the representation(s) of the Federationon 17.01.2019 at 11:00 a.m.

We are happy to note that the parties are maintaining that itshall not be treated as an adversarial litigation and if somesuitable formula is devised, which is acceptable to all theparties, that would be an ideal thing.

List on 23.01.2019.”

11. Pursuant to the said order, representatives of the Federationand Association met the Hon’ble Minister on January 17, 2019 bringingto his notice their grievances which are raised in these writ petitions.

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ADuring the course of hearing, this Court was informed that therepresentative of the HGO associations submitted before the Hon’bleMinister that they have devised a new formula for distribution of seats.Three petitioner associations submitted their written representations tothe Chair. The representations contained eight proposals/suggestions.After deliberations, the representatives of HGO associations prioritisedBtheir three proposals/suggestions as under:(i) The total quota of 50,000 seats allocated to HGOs may bedistributed without any condition, i.e. without imposing the condition tocharge 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 ofCtheir experience with turnover of Rs.1 crore and Rs.2 crore for Category-II and Category-I HGOs respectively. 50 seats may be distributed toeach 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 receiptDof accommodation.

After due examination of the feasibility of the aforesaid proposal,the respondent has agreed with suggestions (i) and (iii). However, it didnot find suggestion (ii) to be feasible.

12. In view of the above, very limited controversy pertaining toEsuggestion (ii) above now remains to be resolved.

13. Mr. Salman Khurshid, learned senior counsel appearing inone of these petitions, insisted that suggestion (ii) mentioned above shouldhave 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 turnoverFof Rs.2 crores and Rs.1 crore respectively. It was emphasised by him,which was also the argument of the other counsel who represented thepetitioners in the other writ petitions, that fixation of turnover of Rs. 5crores/Rs. 3 crores is exceptionally high. It is contended that for achievingsuch a turnover, HGOs may fix very high rates of package for pilgrimsGwhich may not be in the interest of the pilgrims. They relied upon thefollowing discussion contained in Union of India and Others v. RafiqueShaikh Bhikan and Another[2] wherein this Court emphasised that themain purpose of Haj Policy was to ensure that pilgrims may be able to 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 andthey undertake the pilgrimage by taking out the savings madeover a lifetime, in many cases especially for this purpose. Hajconsists of a number of parts and each one of them has to beperformed in a rigid, tight and time-bound schedule. In case dueto any mismanagement in the arrangements regarding the journeyto Saudi Arabia or stay or travelling inside Saudi Arabia any of theparts is not performed or performed improperly then the pilgrimloses not only his life savings but more importantly he loses theHaj. It is not unknown that on landing in Saudi Arabia a pilgrimfinds himself abandoned and completely stranded.

12. It is, thus, clear that in making selection for the registration ofPTOs the primary object and purpose of the exercise cannot belost sight of. The object of registering PTOs is not to distributethe Haj seats to them for making business profits but to ensurethat the pilgrim may be able to perform his religious duty withoutundergoing any difficulty, harassment or suffering. A reasonableprofit 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 requirementto furnish documents showing minimum annual turnover ofRs. 1 crore for the years 2009-2010 or 2010-11.

26. Mr. N. Rao, Senior Advocate appearing for a group ofprivate operators/travel agents, in the course of hissubmissions, admitted that the turnover on the basis of aquota of 50 Haj pilgrims alone would not be less than Rs.75lakhs. This means that if a private operator/travel agent isasking for a readymade business package worth Rs.75 lakhsin turnover he/she should at least show a turnover of rupeesone crore from his own business. Seen, thus, the turnoverfixed in the Government policy appears to be a modestfigure.”

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A15. It was submitted that in the instant Policy, while fixing thecriteria of experience-cum-financial strength, the respondent had givenmore emphasis on the financial aspects thereby sidelining the aspect ofexperience. 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 lessBthan Rs.5 crores. It was further argued that this Court in its aforesaidjudgment, as can be seen from paragraphs 25 and 26 cited above, hadapplied the doctrine of proportionality, which was given a go-by. It wasemphasised that since the quota is in the hands of the Government andonly limited seats are allotted to each PTOs/ HGOs, it is difficult to have Ca turnover of Rs.5 crores without hiking the cost for pilgrims.

Ca turnover of Rs.5 crores without hiking the cost for pilgrims.

16. From the events mentioned above, particularly those that ledto formulating the Haj Policy for 2019-23, it is apparent that the Policy isbased on data collected and compiled in the study by IIT Delhi, an expertbody. Further, views of the stakeholders, including the petitioners, wereDinvited and duly considered. The respondent has categorically submittedthat the aforesaid demand of the petitioners is not based on any factualdata, whereas the decision taken by the Ministry is based on data collectedand compiled in the study by IIT Delhi. Secondly, the petitioners’suggestion is only to take experience into account, whereas the Ministryhas considered both experience and financial strength, as recommendedEin the IIT Delhi study itself. It is submitted that where 1,75,000 peopleembark upon a pilgrimage, financial strength of the PTO is of utmostimportance and cannot be overlooked. Financial strength is importantbecause when the pilgrims travel to Saudi Arabia, the PTOs are requiredto make all arrangements for transportation, air travel, boarding andFlodging, local transportation and provision of guide, etc. It is submittedthat the Ministry cannot afford to take any chance on this aspect as thelack of adequate financial strength of the PTOs may result in the pilgrimsbecoming stranded in a foreign country or facing other hardships.

17. Additionally, it is submitted by the respondent that if thesuggestion of the petitioners is accepted, there would be eleven sub-Gcategories amongst Category-I, inasmuch as what is sought by them isallocation of seats on a pro-rata basis depending on the number of yearsof experience. This would result in major structural changes, which isnot advisable and cannot be accepted.

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18. Going by the aforesaid considerations, the respondent hascarved out the categories of HGOs on the parameters of experience aswell as financial strength of HGOs. Such a decision is based on policyconsiderations. It cannot be said that this decision is manifestly arbitraryor unreasonable. It is settled law that policy decisions of the Executiveare best left to it and a court cannot be propelled into the uncharteredocean of Government policy {See Benett Coleman & Co. v. Union ofIndia[3]}. Public authorities must have liberty and freedom in framingthe policies. It is well accepted principle that in complex social, economicand commercial matters, decisions have to be taken by governmentalauthorities keeping in view several factors and it is not possible for thecourts to consider competing claims and to conclude which way thebalance tilts. Courts are ill-equipped to substitute their decisions. It isnot within the realm of the courts to go into the issue as to whether therecould have been a better policy and on that parameters direct theExecutive to formulate, change, vary and/or modify the policy whichappears better to the court. Such an exercise is impermissible in policymatters. In Bennett Coleman’s case, the Court explained this principlein the following manner:

“The argument of the petitioners that Government should haveaccorded greater priority to the import of newsprint to supply theneed of all newspaper proprietor to the maximum extent is a matterrelating to the policy of import and this Court cannot be propelledinto the unchartered ocean of governmental policy.”

19. The scope of judicial review is very limited in such matters. Itis only when a particular policy decision is found to be against a statuteor it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the court would interfere with suchpolicy decisions. No such case is made out. On the contrary, views ofthe petitioners have not only been considered but accommodated to theextent possible and permissible. We may, at this junction, recall thefollowing observations from the judgment in Maharashtra State Boardof Secondary & Higher Secondary Education v. ParitoshBhupeshkumar Sheth[4]:

“16... The Court cannot sit in judgment over the wisdom of thepolicy evolved by the Legislature and the subordinate regulation- 3 (1972) 2 SCC 788

4 (1984) 4 SCC 27

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Amaking body. It may be a wise policy which will fully effectuatethe purpose of the enactment or it may be lacking in effectivenessand hence calling for revision and improvement. But anydrawbacks in the policy incorporated in a rule or regulation willnot render it ultra vires and the Court cannot strike it down on theground that in its opinion, it is not a wise or prudent policy, but isBeven a foolish one, and that it will not really serve to effectuatethe purposes of the Act. The Legislature and its delegate are thesole repositories of the power to decide what policy should bepursued in relation to matters covered by the Act and there is noscope for interference by the Court unless the particular provisionCimpugned 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 provisionsof the parent enactment or in violation of any of the limitationimposed by the Constitution.”D20. We may also usefully refer to the judgment in State of MadhyaPradesh v. Nandlan Jaiswal[5]. In this judgment, licence to run a liquorshop granted in favour of A was challenged as arbitrary and unreasonable.The Supreme Court held that there was no fundamental right in a citizento carry on trade or business in liquor. However, the State was bound toact in accordance with law and not according to its sweet will or in anEarbitrary manner and it could not escape the rigour of Article 14.Therefore, the contention that Article 14 would have no application in acase where the licence to manufacture or sell liquor was to be grantedby the State Government was negatived by the Supreme Court. TheCourt, however, observed:F“But, while considering the applicability of Article 14 in such acase, we must bear in mind that, having regard to the nature ofthe trade or business, the Court would be slow to interfere withthe policy laid down by the State Government for grant of licencesfor manufacture and sale of liquor. The Court would, in view ofthe inherently pernicious nature of the commodity allow a largeGmeasure of latitude to the State Government in determining itspolicy of regulating, manufacture and trade in liquor. Moreover,the grant of licences for manufacture and sale of liquor wouldessentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Governmenthad done, unless it appears to be plainly arbitrary, irrational ormala fide.”

21. It is not necessary to multiply the cases as the aforesaid principlecan be said to be cast in stone. It is, therefore, difficult to agree to theaforesaid argument of the petitioners.

22. In Writ Petition (Civil) No. 93 of 2019, the petitioner has madean 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 aposition, to earn turnover of more than Rs.3 crores but was preventedfrom operating any Haj services on account of respondent’s willful neglectin registering the petitioner as Category-I PTO for that year. Thepetitioner filed Writ Petition (Civil) No. 508 of 2017, which was allowedby this Court vide orders dated May 08, 2018 in the following manner:“We have heard the learned counsel appearing on behalf of theparties.

Respondent sought to dispute the receipt of the applicationsent by the petitioner by post for Category I registration. However,with the rejoinder the petitioner has filed the proof of having sentsuch an application by courier service. To this aspect, despitetime taken, there is no rebuttal.

Result of the aforesaid is that the petitioner has to be treatedas having been duly applied for registration under Category I in2017 which was wrongfully denied to him on account of theapplication not being taken up. For any further consideration ofRegistration in Category I, this period has, thus, to be counted infavour of the petitioner.

Insofar as year 2018 is concerned, the petitioner has alreadyapplied and learned counsel for the respondent states that theapplication of the petitioner shall be duly considered as he meetsthe requirement of number of years of providing service forconsideration 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 forfuture years, the petitioner is deemed to have completed the Haj 2017.However, since it was prevented from any Haj turnover for the year A

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A2017, because of the fault of the respondent, the petitioner would not beable to meet the requirement of turnover for the year 2017. It is furthermentioned that for the Financial Year 2018, the petitioner has alreadycome close to crossing the turnover threshold of Rs.3 crores despite theFinancial Year not having expired. Therefore, turnover of Financial Year2018 be taken into consideration for assigning category to the petitioner.B

24. Insofar as this prayer of the petitioner is concerned, we findthat there is a merit in the contention of the petitioner that as far asturnover for the year 2017 is concerned, the petitioner should not bemade to suffer. Therefore, the petitioner’s case be considered by thecompetent authority having regard to the aforesaid peculiar facts andCcircumstances and necessary orders passed thereon within a period ofone week.

25. All the writ petitions are disposed of in the aforesaid terms.

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Ankit Gyan

Writ petitions disposed of.

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