Delhi High Court Quashes Order Barring Tour Operator From Applying For Haj Group Operator Registration, Orders Refund Of Forfeited Security

Al Sudais Haj and Umrah Service, the operator, submitted an online application on 20.01.2019 for being selected as an HGO. The Union of India issued a communication on 03 April 2019 pointing out various defects which had been noticed in the application.

The operator on 08.04.2019 wrote to the authorities admitting that it had not earned any revenues from Haj operations in the previous years and that the receipts which had been shown in the ITRs were from Umrah operations only. The petitioner also enclosed a CA certificate as well as its latest ITR and Tax Audit Report and projected those documents as having been downloaded from the official portal of the Income Tax Department.

On 20.05.2019, Union of India notified the list of eligible HGOs as well as those who had been found to be ineligible. The name of the petitioner figured in the latter.

The authorities held that there was an evident discrepancy in the two ITR copies which had been submitted by the petitioner on two separate occasions with one disclosing gross receipts from Haj while the other showing gross receipts from Umrah. It further noted that the acknowledgement number on both those returns were identical and since the authenticity of the two documents could not be established, the petitioner has been found ineligible for registration and allocation of quota for Haj 2019.

On 23 May 2019, the petitioner made a representation to the authorities asserting that due to oversight and typographical mistakes, the ITR had shown “Gross Receipts from Haj” instead of “Gross receipts from Umrah”. Regarding the same, he also submitted the rectification granted by the Income Tax Department.

The Apex committee, constituted by the Ministry of Minority Affairs, not only proceeded to reject the representation made by the petitioner, it further said that the petitioner appeared to have indulged in “fudging of documents and thus misleading the Government authorities for securing Haj quota”. Accordingly, it recommended the debarment of the petitioner for a period of five years besides forfeiture of its security deposit of Rs. 25 lakhs.

The respondents passed the impugned order dated 27 January 2021 by which the petitioner was blacklisted from applying for HGO for 5 years and its security deposit of Rs. 25 lakhs was forfeited.

Justice Yashwant Varma observed that while examining grievances raised by the applicants, the said Committee could not have possibly visited the representee with penalties far greater or in excess of those that the original authority may have chosen to impose.

“The adoption of such a recourse would amount to recognizing the Apex Committee as being empowered to enhance any punishment that the original authority may have chosen to impose. In fact, if the action of the Apex Committee were to be accorded a judicial imprimatur, it would amount to recognizing a power inhering in it to independently impose and inflict penalties even though the original authority may have refrained from doing so,” it said

The court said the committee which is constituted merely as an avenue for redressal of grievances cannot be recognised to be vested with such a power. It said the action of the Apex Committee in proceeding to frame peremptory recommendations for the debarment of the petitioner as well as for forfeiture of the security deposit cannot possibly be sustained.

The court also ruled that the petitioner had not derived any benefit from the inaccurate disclosures. Even if the contents of the letter dated 08 April 2019 were to be taken into account, those would clearly suggest that the petitioner had accepted the fact that it had not earned any revenues from Haj operations, the court observed. 

"The Court also takes into consideration the undisputed fact that in the absence of the petitioner having been selected as an HGO in the past, it could not have possibly been recognized to have obtained revenues from those operations," Justice Varma said.

The court said the petitioner has already undergone the entire period of debarment during the pendency of these proceedings before this Court.

"While it would not be possible for the Court to turn the clock around, it must be held that the unsustainable order of blacklisting would not operate so as to render the petitioner disqualified in case it was to apply for enlistment as an HGO in the future years. For reasons aforenoted, the additional punishment of forfeiture of security deposit also clearly appears to be disproportionate and arbitrary,” it added.

Case Title: Al Sudais Haj and Umrah Service v. Union of India & Anr.

Citation: 2023 LiveLaw (Del) 99

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