Hajj E Betullah Haj Umrah Tour Corporation v. Union of India

11. A perusal of the abovementioned table shows that there is a change in the HGO Policy for Haj-2023. The Apex Court in

12. The Apex Court in Federation Haj PTOS of India v. Union of India, (2020) 18 SCC 527, while considering the Policy of categorisation of HGOs has observed as under:

because when the pilgrims travel to Saudi Arabia, the PTOs are required to make all arrangements for transportation, air travel, boarding and lodging, local transportation and provision of guide, etc. It is submitted that the Ministry cannot afford to take any chance on this aspect as the lack of adequate financial strength of the PTOs may result in the pilgrims becoming stranded in a foreign country or facing other hardships.

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

18. Going by the aforesaid considerations, the respondent has carved out the categories of HGOs on the parameters of experience as well as financial strength of HGOs. Such a decision is based on policy considerations. It cannot be said that this decision is manifestly arbitrary or unreasonable. It is settled law that policy decisions of the executive are best left to it and a court cannot be propelled into the unchartered ocean of government policy (see Bennett Coleman & Co. v. Union of India [Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788] ). Public authorities must have liberty and freedom in framing the policies. It is well-accepted principle that in complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors and it is not possible for the courts to consider competing claims and to conclude which way the balance tilts. Courts are illequipped to substitute their decisions. It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the executive to formulate, change, vary and/or modify the policy which appears better to the court. Such an exercise is impermissible in policy matters. In Bennett Coleman case [Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788], the Court explained this principle in the following manner: (SCC p. 834, para 125)

19. The scope of judicial review is very limited in such matters. It is only when a particular policy decision is found to be against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the Court would interfere with such policy decisions. No such case is made out. On the contrary, views of the petitioners have not only been considered but accommodated to the extent possible and permissible. We may, at this junction, recall the following observations from the judgment in Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27]: (SCC p. 42, para 16) “16. … The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned 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 provisions of the parent enactment or in violation of any of the limitation imposed by the Constitution.”

20. We may also usefully refer to the judgment in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566]. In this judgment, licence to run a liquor shop granted in favour of A was challenged as arbitrary and unreasonable. The Supreme Court held that there was no fundamental right in a citizen to carry on trade or business in liquor. However, the State was bound to act in accordance with law and not according to its sweet will or in an arbitrary manner and it could not escape the rigour of Article 14. Therefore, the contention that Article 14 would have no application in a case where the licence to manufacture or sell liquor was to be granted by the State Government was negatived by the Supreme Court. The Court, however, observed: (SCC p. 605, para 34)

"

13. A perusal of the abovementioned Judgment shows that the Apex Court has upheld the categorization of HGOs on the basis of the turnover and experience. This Court, therefore, cannot interfere with the policy decision taken by the Respondents in fixing the categorization of HGO.

14. The question which arises for consideration is as to whether the Petitioner has acquired any vested right and as to whether there is any direction by this Court or by the Apex Court to the Respondents that the Petitioner has to be placed in Category-I HGO. The answer to the question has to be only an emphatic No. For this purpose, it is necessary to quote the Order dated 13.05.2022, passed by the Apex Court in W.P.(C) 333/2022 which reads as under: "In both these writ petitions, the petitioners have sought for a writ of mandamus or for any other writ or order directing the respondent to upgrade the petitioners to Category-1 as per the Policy of HGOs for Haj-2019-23. Learned counsel for the petitioners submits that the upgradation of the petitioners to Category-1 and allocation of Haj quota may be considered by the respondent for the Haj-2022 itself. We are not inclined to accept this submission, as the petitioners have approached this Court at the last minute. However, we direct the respondent to consider upgradation of the petitioners to Category-1 as per the policy for HGOs for Haj-2023 onwards. With these observations, writ petitions are disposed of. Pending application(s), if any, shall also stand disposed of. "

15. After the said Order, the HGO Policy for Haj 2023 was passed on 14.03.2023 and the categorization of HGOs has been laid down as under: "i. Category-1 - HGOs having experience of minimum

3 Haj and an annual turnover of Rs. 5 crore or more from Haj and/ or Umrah operations in any of the preceding two years (excluding 2020 and 2021 which were hit by COVID pandemic). They should also fulfill other terms and conditions for being eligible as an HGO (Annexure-I). 70% of the total quota will be reserved for category-1 HGOs. ii. Category-2 - HGOs having experience of upto 2 Haj and/or at least 3 Umrah with an annual turnover of Rs.1.[5] crore or more from Haj and/or Umrah operations in any of the preceding two years (excluding 2020 and 2021 which were hit by COVID pandemic) are covered under this category."

16. The Petitioner approached this Court by filing W.P.(C) 4467/2023 seeking for a direction to the Respondents to consider the representation of the Petitioner for upgradation to Category-I HGO and this Court, after quoting the aforementioned portion of the Order passed by the Apex Court and the Policy decision dated 14.03.2023, has held as under:

their case(s) before the Government. It is ultimately the Government which has to take the appropriate policy decision in the light of the representation which may be made by the petitioners. By directing the Government to consider the representation at the earliest, the Writ Petitions are disposed of. Pending applications also stand disposed of."

11. A perusal of the above order would show that the Supreme Court has clearly held that the Union Government has to take an appropriate policy decision in respect of these Haj tour operators and consider their representations. However, the new policy has not been interfered with.

12. A perusal of the chronology of events that have transpired would show that the Petitioner was clearly eligible for Category 1 upgradation last year, owing to the turnover. However, the same was not granted. The Supreme Court vide order dated 13th May, 2022 had directed the Respondent to consider upgradation of the Petitioner to Category-1. Moreover, the policy which was prevalent last year was to continue till 2023. In the present case, the Petitioner appears to have been put to a disadvantage despite the fact that as recorded in the order dated 13th May, 2022, the Petitioner may have been able to qualify, if the policy was not changed midway.

13. The Court is of the opinion that, in these circumstances, the representation of the Petitioner deserves consideration as per the order of the Supreme Court dated 13th May, 2022. Accordingly, let a decision be taken on the representation of the Petitioner on or before 17th April, 2023 by the competent authority. The remedies, if any, of the Petitioner in respect of the said decision are left open."

17. A perusal of the abovementioned Orders does not show that there is any direction from any Court to categorize the Petitioner as Category-I HGO. In terms of the directions of this Court, the Respondent gave a communication to the Petitioner on 01.05.2023. Relevant portion of the said letter reads as under:

18. This letter does not create any vested right to the Petitioner to be categorized as a Category-I HGO. The categorization of the Petitioner was to be done on the basis of the Policy decision taken on 14.03.2023. The letter is dated 01.05.2023 and, therefore, the Petitioner's case has been considered in accordance with the Policy of the Government existing on the day the case of the Petitioner was considered.

19. In State of Kerala v. B. Six Holiday Resorts (P) Ltd., (2010) 5 SCC 186, while considering a question of similar nature has observed as under:

in the present situation is the question. ***

36. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16-9-2005 not to grant L-52 licence, no licence could have been granted after the said date.”

18. We may in this context refer to some earlier decisions laying down the principle that applications for licences have to be considered with reference to the law prevailing on the date of consideration.

19. In State of T.N. v. Hind Stone [(1981) 2 SCC 205] this Court considered the validity of government action in keeping applications pending for long and then rejecting them by applying a rule subsequently made. This Court while holding that such action is not open to challenge observed: (SCC pp. 219-20, para 13)

application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.”

20. We may next refer to the decision in Union of India v. Indian Charge Chrome [(1999) 7 SCC 314] wherein this Court held: (SCC p. 327, para 17)

21. The applicant contended that it had a vested right because of the several time-bound orders of the High Court and those orders were deliberately flouted by the Excise Authorities. An identical contention was rejected by this Court while considering the issue with reference to sanction of a licence under the Building Rules in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. [(2004) 1 SCC 663] This Court held: (SCC pp. 679-80, paras 36-37)

which the expression „vest‟ is generally used. What we can understand from the claim of a „vested right‟ set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a „legitimate‟ or „settled expectation‟ to obtain the sanction. In our considered opinion, such „settled expectation‟, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such „settled expectation‟ has been rendered impossible of fulfilment due to change in law. The claim based on the alleged „vested right‟ or „settled expectation‟ cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules….”" (emphasis supplied)

20. In view of the law laid down by the Apex Court, the case of the Petitioner was considered on the basis of the Policy of the year 2023 and the categorization of the Petitioner and placing the Petitioner in Category-II is only on the basis of categorization which existed on the date when the decision was taken and this Court, therefore, does not find any infirmity with the decision of the Respondent.

21. Accordingly, the Writ Petition is dismissed along with the pending applications, if any.

SUBRAMONIUM PRASAD, J APRIL 10, 2024