Registration of Private Tour Operators for HAJ once made should be valid till 2017: SC [Read Judgment]

The Supreme Court of India has held that a registration for Private Tour Operators (PTOs) once made under the Government scheme should be valid till 2017, subject to fulfilment of other relevant stipulations under the scheme.

The Bench of Justices J.Chelameswar and Abhay Manohar Sapre was considering a batch of Writ Petitions filed by Private Tour Operators (PTOs) challenging some new stipulations introduced by the Government in the Scheme.

The Supreme Court in the Case of Union of India & Others v.Rafique Shaikh Bhikan & Others (2013) 4 SCC 699 had approved the Government’s PTO Policy for Haj (with some modification) for the registration of Private Tour Operators for HAJ 2013.

The question in the present batch of matters was – what are the documents which are required to be submitted for registration as a PTO qualified for being considered for allotment of quota for Haj 2016?

There is no dispute between the parties regarding the obligation of a PTO to furnish various documents referred to in various stipulations of Annexure ‘A’ of the APPROVED POLICY. The dispute revolves only around the stipulation (vii). It is the common understanding of the Government of India and Petitioners/PTOs insofar as stipulation no. (iv) is concerned, though the text of the stipulation speaks about submission of balance sheet and profit and loss account for the years 2010-2011 and 2011-2012, that stipulation is to be understood as the balance sheet and profit and loss account pertaining to the years 2013-2014 and 2014-2015 for the purpose of registration for the HAJ 2016. On the only contentious stipulation that is stipulation no. (vii), according to the Government of India, when the APPROVED POLICY imposes an obligation on a PTO seeking registration to produce proof of the payments (made through banking or other authorized channels) towards purchase of tickets and hiring of accommodation in Makkah/Madinah, obviously such an obligation is with reference to the two years preceding HAJ 2016.

The Government has contended that past performance of the PTOs is one of the factors by which the Government of India makes an assessment of the capacity of the PTOs under the APPROVED POLICY. The past performance of a PTO is to be assessed on the basis of the documentary evidence indicated in stipulation no. (vii). Such evidence proves the facts that PTOs after having secured the allotment of quota did in fact conduct Haj programme by actually purchasing tickets and providing appropriate accommodation for the pilgrims in Makkah/Madinah. Therefore, any PTO seeking consideration for allotment of a quota for Haj 2016 must necessarily supply the documents for the years of 2014 and 2015 Haj.

The petitioners argued that some of the petitioners who were otherwise eligible to be considered for allotment of quota for Haj 2014 were wrongly denied registration and consequently they did not get any quota. Therefore, calling upon them to produce proof of the fact that they had made appropriate arrangement for that particular year is not only illogical but would be asking them to perform an impossibility, apart from being an arbitrary exercise of power. Therefore, their cases must be considered without insisting upon the documents for the years 2013-2014 and 2014-2015.

The Bench has opined that stipulation no. (vii) does not impose a substantive obligation on a PTO seeking consideration for allotment of quota by the Government of India for Haj programme of any particular year. It only incorporates a rule of evidence to establish the fact whether a particular PTO had in fact conducted Haj programme in the past.

The Court held that once the PTO is registered either under Category I or Category II insisting upon the PTO to produce proof for each subsequent year or to produce documents contemplated under stipulation (vii) in our opinion is not supported either by the text of the APPROVED POLICY or logic.

The Court has clarified that the understanding of the Government of India that even those PTOs who had been registered either in Category-I or Category-II would also be required to furnish the documents specified in stipulation no. (vii) every year when they are seeking consideration for allotment of quota of Haj pilgrims is wholly illogical and contrary to the text of the APPROVED POLICY. A registration for PTO once made under the scheme should be valid till 2017, subject to fulfilment of other relevant stipulations under the scheme.

To the Government’s argument that the prime consideration in this matter should not be the individual rights of these PTOs whose only motive is to secure economic benefits from the allotment of Haj quota, but the safety and comfort of the Haj pilgrims and Government of India must have the necessary freedom to make its own assessment regarding the suitability of the PTO in this regard, the Court has replied as follows:

“We do not dispute the proposition, the text of the scheme itself makes it abundantly clear that any PTO once qualified shall “remain qualified unless it is otherwise disqualified…. by the Government of India… for valid reasons.” Therefore, it is always open to the Government to disqualify any registered PTO for subsequent year, if there is rational complaint against the service rendered by that PTO in any previous year from any one of the pilgrims of that year or any other legally tenable information or material which calls for disqualification of such a PTO”

The Bench has clarified that ,

“Whatever be the basis on which quota was allotted to these PTOs for haj 2015, the fact remains that if anyone of those PTOs did in fact, conduct a haj programme pursuant to the quota they would be entitled for being considered even for 2016 unless there is any other good ground for not considering their cases such as inefficient or bad service rendered to the pilgrimage during 2015 haj programme, their claims now cannot be rejected. If the respondent decides to de-register such PTOs on any ground tenable in law, it is open for the respondent to de-register after giving reasonable opportunity to such PTOs but until such de-registration takes place their cases must be considered for allotment of quota for haj 2016 if they are otherwise eligible”.

Finally the Court has disposed of the Petitions directing Government to consider the cases of all the PTOs for allotment of quota in the light of these orders insofar as stipulation (vii) is concerned subject to the fact that PTOs are otherwise eligible in accordance with the approved scheme.

Read the Judgment Here