Supreme Court of India
UNION OF INDIAversusRAFIQUE SHAIKH BHIKAN & ORS.
- Citation
- 2013 INSC 257
- Decided
- 16 April 2013
- Disposal
- Disposed off
- Bench
- AFTAB ALAM
Holding
The Supreme Court directed that the Hajj policy be framed for a five‑year period with specific directives on schedule, accommodation, air‑fares, grievance redressal, and PTO registration, and dismissed the petition challenging the government's policies.
Summary
The Union of India challenged a Bombay High Court order directing the release of 800 Hajj seats to private tour operators (PTOs). The Supreme Court treated the matter as a public interest litigation and examined the entire Hajj policy framework. It held that the annual framing of the Hajj policy was ad‑hoc and mandated a five‑year policy (2013‑2017) to be posted on the MEA website for public comment. The Court directed strict adherence to a time‑bound Hajj schedule, the creation of a committee to secure long‑term accommodation in Saudi Arabia, the invitation of tenders for air‑fares, and the establishment of a dedicated grievance redressal cell. It also approved a balanced PTO registration policy, clarified that pilgrims may perform Hajj multiple times, and affirmed the constitutionality of the government's restrictions. Consequently, the special leave petition was dismissed, leaving the government's Hajj policies in force.
Issues considered
- Whether the Hajj policy should be framed annually or on a multi‑year basis
- Whether the Hajj process must be conducted on a strict time‑bound schedule
- How to secure long‑term accommodation for Indian pilgrims in Saudi Arabia
- Whether the government should invite tenders for air‑fares for Hajj travel
- How grievance redressal for Hajj matters should be structured
- Whether the Private Tour Operators (PTO) policy is fair, reasonable and non‑monopolistic
- Constitutionality of the restriction that a pilgrim may perform Hajj through the Haj Committee only once
Legislation cited
- Constitution of Indias. Art. 14, s. Art. 25
Subjects
Hajj policyPrivate Tour OperatorsAccommodationAir fareGrievance redressalConstitutional lawPublic interest litigationPolicy frameworkTime‑bound process
Judgment
[2013] 5 S.C.R. 428
A UNION OF INDIA & ORS.
v.
RAFIQUE SHAIKH BHIKAN & ORS.
Petition for Special Leave to
APPEAL (CIVIL) N0.28609/2011
B APRIL 16, 2013
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.)
Hajj policy - Policy for Haj Committee of India Pilgrims
C - Held: Practice of framing Hajj Policy on annual basis is ad-
hoc and unsatisfactory - Requirement of a policy framework
for five years - Proposed Hajj Policy 2013 - 2017 be posted
on the website of the Ministry of External Affairs (MEA) inviting
objections, comments and suggestions - Final policy to
D remain valid and operative for five years upto Hajj 2017 and
may be amended only in case of any change in
arrangements with the Kingdom of Saudi Arabia as per the
agreement entered into between the two countries every year.
E Hajj policy - Lady pilgrims - Held: Hajj Policy to pay
attention to special needs of the lady pilgrims.
Hajj policy - Time bound conduct of Hajj process - Held:
Time schedule with regard to the hajj process as fixed by the
Haj Committee of India to be strictly adhered to - No authority
F or court to interfere in the process of submission of
applications, scrutiny and allotment of seats by the Haj
Committees, in case the interference would lead to disturbing
the time schedule.
G Hajj policy - Accommodation in Saudi Arabia -
Committee constituted by Supreme Court to make
arrangements for the pilgrims' accommodation in Saudi
Arabia on a long term basis - Committee expected to make
arrangements for stay of Indian pilgrims in Saudi Arabia by
H 428
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 429
BHIKAN & ORS.
taking accommodations on lease for a term not less than five A
years before the commencement of Hajj 2013.
Hajj policy - Air Fare - Government of India to invite
tenders from the three Saudi Airlines and all the Indian
registered Airlines besides any other airlines that may be 8
eligible under the Saudi Policy.
Hajj policy - Grievance redressal - Held: At present a
Joint Secretary in the Ministry of External Affairs is in-charge
of Gulf and Hajj - But both the Gulf and the Hajj involve huge
responsibilities - Government of India to give responsibility C
of the Hajj alone to an Officer of the level of the Joint
Secretary - Hajj cell to also have a permanent and effective
grievance redressal mechanism - An officer of the level of
Deputy Secretary to be made in-charge of dealing with all
grievances concerning Hajj received from any of the Haji D
Committees or any individual or group of individuals -
Central Government advised to constitute a high powered
committee to review the functioning of the Haj Committee of
India, the State Haj Committees and the Union Territory Haj
Committees and to consider the· suggestions or grievances E
made by those Committees with a view to improving their
performance.
Hajj policy - Policy for Private Tour Operators (PTOs) -
Held: Classification of PTOs to categories 1 & 2 fair and F
reasonable and strikes a proper balance between needs of
the pilgrims and also making provision for new entrants on a
calibrated basis - Policy, approved after modifications by
Supreme Court - Approved policy to be called Policy for
Private Tour Operators for Hajj 2013-2017 - It shall remain
valid for five years and shall not be questioned before any G
court or authority.
The instant special leave petition was filed by the
Union of India against' the judgment passed by the
Bombay High Court by which the Government was H
430 SUPREME COURT REPORTS [2013] 5 S.C.R.
A directed to release 800 seats from the Government quota
in favour of the writ petitioners [a group of Private Tour
Operators (PTOs)] under the Government's PTO Policy
for Hajj 2011.
Though the special leave petition was on a very
8
limited issue, the Supreme Court decided to treat the case
as a public interest litigation and to examine some of the
major issues concerning the Hajj Policy of the
Government of India. In the past two years, the Supreme
C Court passed orders on a number of issues concerning
the Government Hajj Policy.
While re-iterating and confirming its earlier orders/
directions, some other important issues in the Hajj Policy
of the Government of India, viz. i) Policy for Haj
D Committee of India Pilgrims; ii) time bound conduct of hajj
process; iii) accommodation in Saudi Arabia; iv) Air Fare;
v) Grievance redressal and vi) Policy for Private Tour
Operators were now dealt with by the Supreme Court.
Disposing of the Special Leave Petition, the Court
E
HELD: 1. Policy for Haj Committee of India Pilgrims
(Policy in regard to pilgrims going for hajj through the Haj
Committee of India in distinction to those going through
private tour operators): The practice of framing Hajj
F Policy on an annual basis is quite ad-hoc and
unsatisfactory and must be replaced by a policy
framework made for a period of five years. It is
accordingly, directed that the Hajj Policy that is to be
framed this year would be for a period of five years and
G would be called the Hajj Policy 2013 - 2017. The proposed
Hajj Policy will be posted on the website of the MEA
inviting objections, comments and suggestions within
one month from the date it is made available on the
website. The policy would be given the final shape after
H taking into account any objections, comments or
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 431
BHIKAN & ORS.
suggestions that may be worthy of acceptance within a A
further period of one month. The final policy so framed
shall remain valid and operative for a period of five years
upto hajj 2017 and may be amended only in case of any
change in the arrangements with the Kingdom of Saudi
Arabia as per the agreement entered into between the B
two countries every year. The next five year policy will be
similarly framed, keeping in view any problems that might
have been encountered in following the previous policy
and taking into account any improvements, innovations
and technological advances in order to add content and c
quality to the succeeding policy and to make it perform
better than the previous policy. It is further directed that
the Hajj Policy should pay attention to special needs of
the lady pilgrims and it should be aimed at making the
pilgrimage for lady pilgrims as smooth and trouble-free
0
as possible. [Paras 8 and 9] [436-H; 347-A-F]
2. Time bound conduct of hajj process: It is directed
that the time schedule with regard to the hajj process as
fixed by the Haj Committee of India should be strictly
adhered to and no authority or court should interfere in E
the process of submission of applications, scrutiny and
allotment of seats by the Haj Committees, in case the
interference would lead to disturbing the time schedule.
This direction is made keeping in view that in appropriate
cases individual interest must yield to the larger good and F
in the larger interest. [Paras 12, 13] [438-E-G]
Mridu/ Dharv. Union of)ndia (2005) 2 SCC 65: 2005 (1)
SCR 380 - relied on.
3. Accommodation in Saudi Arabia: A Committee G
comprising of i) Joint Secretary, Gulf and Hajj, Convenor;
ii) Consul General of India in Jeddah; iii) Chairman of the
Haj Committee of India; iv) Mr. Najeeb Jung, Vice
Chancellor, Jamia Milia lslamia; v) Mrs. Syedda Hamid,
Member, Planning Commission of India and vi) Mr. Haris H
432 SUPREME COURT REPORTS [2013] 5 S.C.R.
A Beeran, Counsel for the MEA is directed to be constituted
by the Supreme Court to make arrangements for the
pilgrims' accommodation in Saudi Arabia on a long term
basis. The expenses incurred by the non-official members
of the Committee in participating in the Committee's work
B will be borne by the Central Government. The Committee
is expected to make arrangements for stay of the Indian
pilgrims in Saudi Arabia by taking accommodations on
lease for a term not less than five years before the
commencement of hajj 2013. The Joint Secretary Gulf and
C Hajj is directed to give information in regard to the
formation of the Committee for making long term
arrangement for accotnmodations in Saudi Arabia to each
of its members so that the Committee may start its work
without delay. [Paras 15, 16, 17 and 36] [439-C, D-G, H;
D 440-A-B; 444-E-F]
4. Air Fare: The air fare charged by the Haj Committee
is much higher than the fare charged by private tour
operators. The Government of India is directed to invite
tenders from the three Saudi Airlines and all the Indian
E registered Airlines besides any other airlines that may be
eligible under the Saudi Policy. [Paras 18-19] [440-C, E-F]
5. Grievance redressal: At present a Joint Secretary
in the Ministry of External Affairs is in-charge of Gulf and
F Hajj. But both the Gulf and the Hajj involve huge
responsibilities and it would be better if the responsibility
of hajj alone is assigned to a single Officer. Therefore, the
Government of India is advised to give the responsibility
of the hajj alone to an Officer of the level of the Joint
Secretary. In any event, the hajj cell should also have a
G permanent and effective grievance redressal mechanism
and an officer of the level of Deputy Secretary should be
made in-charge of dealing with all grievances concerning
hajj received from any of the Haj Committees or any
individual or group of individuals. At present the PTOs are ~
H
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 433
BHIKAN & ORS.
required to submit their applications before the Haj A
Committee of India where the applications are scrutinized
before those are taken up for registration with the
Ministry of External Affairs. However, the Haj Committee
has no concern with the Private Tour Operators or their
business. The Ministry of External Affairs is directed to B
receive the applications from the PTOs directly or through
any other appropriate agency. The Central Government
is also advised to constitute a high powered committee
to review the functioning of the Haj Committee of India,
the State Haj Committees and the Union Territory Haj c
Committees and to consider the suggestions or
grievances made by those Committees with a view to
improving their performance. [Paras 20, 21 and 22] [440-
F-H; 441-A-C, D, F-G]
6. Policy for Private Tour Operators (PTOs): The D
Attorney General presented the policy for registration of
Private Tour Operators - Hajj 2013. The policy appears
to have been framed with great care and application of
mind. It is framed in light of the stipulation made by the
Saudi Government that a Private Tour Operator should be E
allotted a quota of not less than 150 tickets. Further, the
policy presented before the Court accommodates most
of the suggestions that were made to the Attorney
General by counsel representing the different Private Tour
Operators over the past months. Most importantly it F
avoids creation of any monopoly and makes provision for
entry of fresh players. The classification of PTOs to
categories I & 2 is fair and reasonable and strikes a proper
balance between the needs of the pilgrims and also
making provision for new entrants on a caliberated basis. G
The policy, approved after modifications by this Court, is
enclosed as Appendix-I and forms part of this order. The
approved policy will be called Policy for Private Tour
Operators for hajj 2013~2017. It shall remain valid for five
years and shall not be questioned before any court or H
434 SUPREME COURT REPORTS [2013] 5 S.C.R.
A authority. [Paras 23, 24, 26 and 28] [441-G-H; 442-A-B, E-
H; 443-A]
7. The decision of the Government of India that a
person can perform hajj through the Haj Committee only
B once in a lifetime was sought to be assailed. However, it
needs to be made clear that the restriction is not on the
performance of hajj as such and any person having gone
through the Haj Committee may perform hajj as many
times as he may like or may be permitted by the Saudi
C Government, through Private Tour Operators and by his
own means. The decision of the Government of India is
not only legal and constitutional, but also fair and
reasonable. [Paras 29, 31] [443-B-C, G]
Case Law Reference:
D 2005 (1) SCR 380 relied on Para 11
CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
28609 of 2011.
From the Judgment & Order dated 05.10.2011 of the High
E Court of Judicature at Bombay in Writ Petition (L) No. 1945 of
2011.
WITH
T.C.(C) Nos. 90, 91 of 2012, W.P.(C) Nos. 330, 336 of 2012
F & T.C.(C) Nos. 92, 94 & 93 of 2012.
Goolam E. Vahanvati, A.G., Huzefa Ahmadi, lndu Malhotra,
Dr. Rajeev Dhawan, R. Venkataramani, Colin Gonsalves,
Dushyant Dave, Ejaz Maqbool, Mrigank Prabhakar, Rohan
Sharma, Haris Beeran, Mohd. Nizamuddin Pasha, Amer
G Musthaq Salim, B.K. Prasad, Tarique Siddiqui, Anas Tanvir
Siddiqui, lrshad Hanif, Rajshekhar Rao, Chandra Bhushan Jha,
Ananda Handa, H.S. Mohamed Rafi, Kush, Nishta Shakil
Ahmad Syed, Mohd. Parvez Dabas, Shuaib-uddin, B.V.
Deepak (for T.T.K. Deepak & Co.) Ramesh Babu M.R., K.K.
H Mani, Abhishek Krishna, Dave, Boby Augustine, Pravin Satale,
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 435
BHIKAN & ORS.
Rajiv Shankar Dvivedi, C. Paramasivam, P. Ramesh, Rakesh A
K. Sharma, Ainu! Ansari, Chandra Bhushan Prasad, M.Z.
Chaudhary, Nilofar Qureshi, Khushi Mohd., Rehnuma, Manju
Jana, R. Nedumaran, Vinay Navare (for Abha R. Sharma),
Yanmi, Jyoti Mendiratta, Khalid Arshad, Tarun Gupta,
Sudhanshu S. Choudhary, Anil Katiyar, Gaurav Agarwal, B
Sridhar Potaraju, Nikhil Goel, lrshad Ahmad, Puja Sharma, Dr.
Vipin Gupta, Vikash Singh, Neeraj Shekhar, Suddarshan Rajan,
C.N. Sree Kumar, P. George Giri, Praveen Agrawal, Abhijeet
Sinha, P. Narasimhan, Usha Nandini V., V.N. Raghupathy, V.
Ramasubramanian, Ranjan Mukherjee, Shiv Sagar Tiwari, c
Renjith B., K.A. Qureshi, Ananga Bhattacharyya for the
appearing parties.
The Judgment of the Court was delivered by
AFTAB ALAM,J. 1. This special leave petition was filed D
by the Union of India against the judgment and order passed
by the Bombay High Court by which the Government was
directed to release 800 seats from the Government quota in
favour of the writ petitioners (a group of private tour operators)
'under the Government's PTO Policy for hajj 2011. Though the E
special leave petition was on a very limited issue, this Court
by order dated February 17, 2012 decided to treat the case
as a public interest litigation and to examine some of the major
issues concerning the Hajj Policy of the Government of India.
2. In the past two years this Court has passed orders on F
a number of issues concerning the Government Hajj Policy. By
order dated May 8, 2012, the Court dealt with the issues of Hajj
Subsidy and the Goodwill Hajj Delegation and passed
necessary directions in that regard. The directions on those
issues are reiterated and confirmed and directed to be followed G
strictly.
3. By the same order, the Court also approved the
Government's PTO Policy for Hajj 2012.
4. By order dated July 23, 2012, the Court dealt with the H
436 SUPREME COURT REPORTS [2013] 5 S.C.R.
A quota of pilgrims that the Central Government kept reserved for
allotment at its discretion and made directions in that regard.
Those directions too are reiterated, confirmed and directed to
be followed strictly.
5. By order dated July 27, 2012, the Court_ p_ointed out to
8
the Attorney General that the PTO Policy for hajj 2012 did not
allow the entry of anyone without past experience and asked
him to ensure that future PTO policies should have sufficient
room for the entry of fresh PTOs every year.
C 6. We now propose to deal with some other important
issues in the Hajj Policy of the Government of India.
7. Mr. Huzefa Ahmadi, senior advocate, who was
appointed as Amicus Curiae by order dated July 23, 2012, has
0 painstakingly collected detailed information from the Haj
Committee of India and the Haj Committees of different States.
After scrutinizing the collected information with discernment he
presented for consideration the following issues that need to
be addressed by the Court:
E (i) Policy for Haj Committee of India Pilgrims.
(ii) Time bound conduct of hajj process.
(iii) Accommodation in Saudi Arabia.
F (iv) Air Fare
(v) Grievance redressal
(vi) Policy for Private Tour Operators.
G We propose to take up all the issues in seriatim.
(i). Policy for Haj Committee of India Pilgrims.
8. This relates to the policy in regard to pilgrims going for
H hajj through the Haj Committee of India (in distinction to those
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 437
BHIKAN & ORS. [AFTAB ALAM, J.]
going through private tour operators). We accept the suggestion A
of the Amicus and hold that the practice of framing Hajj Policy
on an annual basis is quite ad-hoc and unsatisfactory and must
be replaced by a policy framework made for a period of five
years. We, accordingly, direct that the Hajj Policy that is to be
framed this year would be for a period of five years and would B
be called the Hajj Policy 2013 - 2017. The proposed Hajj Policy
will be posted on the website of the MEA inviting objections,
comments and suggestions within one month from the date it
is made available on the website. The policy would be given
the final shape after taking into account any objections, c
comments or suggestions that may be worthy of acceptance
within a further period of one month. The final policy so framed
shall remain valid and operative for a period of five years upto
hajj 2017 and may be amended only,in case of any change in
the arrangements with the Kingdom of Saudi Arabia as per the 0
agreement entered into between the two countries every year.
The next five year policy will be similarly framed, keeping in view
any problems that might have been encountered in following the
previous policy and taking into account any improvements,
innovations and technological advances in order to add content E
and quality to the succeeding policy and to make it perform
better than the previous policy.
9. We further direct that the Hajj Policy should pay attention
to special needs of the lady pilgrims and it should be aimed at
making the pilgrimage for lady pilgrims as smooth and trouble- F
free as possible.
10. Mr. E.N.S. Anam, who addressed us in course of
hearing of the matter, seems to have some positive and
constructive ideas that deserve to be taken into consideration. G
Mr. Attorney General helpfully stated that he would ask Mr. Haris
Beeran to arrange a meeting between Mr. Anam and the
concerned officer in the MEA so that Mr. Anam's suggestions
may be taken into consideration in the preparation of the draft
Hajj Policy 2013 - 2017.
H
438 SUPREME COURT REPORTS [2013] 5 S.C.R.
A (ii). Time bound conduct of hajj process.
11. Mr. Ahmadi submitted that the entire hajj process must
be completed in a time bound manner with permissible grace
periods where practicable. He submitted that the schedule for
making applications, scrutiny etc. should be published in
8
. advance with firm cut off dates in the Hajj Policy itself so that
the public at large is informed, well in advance, about those
dates which should be treated as inflexible and should not be
extended at any cost. Mr. Ahmadi further submitted that in order
to complete the hajj process satisfactorily and effectively while
C dealing with applications running into lakhs it was imperative
to adhere to the fixed time schedule, as in the case of
admission to medical courses. He invited our attention to a
decision of this Court in Mridul Dharv. Union of lndia 1• In that
decision this Court fixed a time schedule for post graduate and
D super specialty course admissions (vide paragraph 31 of the
judgment) and in paragraph 35 of the judgment directed for
complete adherence to the time schedule for grant of admission
for post graduate courses.
E 12. We accept the submission of Amicus and direct that
the time schedule with regard to the hajj process as fixed by
the Haj Committee of India should be strictly adhered to and
no authority or court should interfere in the process of
submission of applications, scrutiny and allotment of seats by
F the Haj Committees, in case the interference would lead to
disturbing the time schedule.
13. This direction is made keeping in view that in
appropriate cases individual interest must yield to the larger
good and in the larger interest.
G
(iii). Accommodation in Saudi Arabia.
14. Mr. Ahmadi submitted that the arrangement of
H 1. c2005} 2 sec 65.
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 439
BHIKAN & ORS. [AFTAB ALAM, J.]
accommodation of pilgrims in Saudi Arabia made on an annual A
basis is both expensive and inconvenient for the pilgrims and
the arrangement for accommodation must be made on a long
term basis, at least for a period of five years, if not for ten or
more years. Mr. Ahmadi further submitted that though the
proposal in that regard was made long ago, nothing tangible s
has been achieved so far. He, therefore, requested the Court
to constitute a Committee to make arrangements for the
pilgrims' accommodation in Saudi Arabia on a long term basis.
15. The learned Attorney General informed the Court that
a Committee was already constituted for the purpose of C
securing accommodations on a long term basis. However, the
Committee alluded to by the Attorney General consists only of
Government officials and apparently it has not been able to do
any thing so far. We feel that a Committee with some non-
official members may be more effective in this regard. We, D
accordingly, constitute a committee of the following persons:
(i) Joint Secretary, Gulf and Hajj, Convenor;
(ii) Consul General of India in Jeddah;
E
(iii) Chairman of the Haj Committee of India;
(iv) Mr. Najeeb Jung, Vice Chancellor, Jamia Milia
lslamia;
F
(v) Mrs. Syedda Hamid, Member, Planning
Commission of India;
(vi) Mr. Haris Beeran, Counsel for the MEA;
16. We are informed that the position of the Chairman, Haj G
Committee of India, is at present vacant. We direct that the rest
of the Committee shall start their work without awaiting the
appointment of the Chairman, Haj Committee of India and the
Chairman would join the Committee as and when someone is
appointed to that office. The expenses incurred by the non- H
440 SUPREME COURT REPORTS [2013) 5 S.C.R.
A official members of the Committee in participating in the
Committee's work will be borne by the Central Government.
17. We expect the Committee to make arrangements for
stay of the Indian pilgrims in Saudi Arabia by taking
accommodations on lease for a term not less than five years
8
before the commencement of hajj 2013.
(iv). Air Fare.
18. Mr. Ahmadi stated that admittedly the air fare charged
c by the Haj Committee Was much higher than the fare charged
by private tour operators. He submitted that the best fare could
be secured by putting out a global tender. The ·Attorney
General, however, pointed out that in view of the constraints of
the agreement signed between the Government of India and
0 the Kingdom of Saudi Arabia and the official policy of the Saudi
Government, a global tender may not be possible. On this issue
there is need to find a middle course and on hearing the
Amicus and the learned Attorney General, we think that the
Government of India can make a beginning in this regard by
E inviting tenders from the three Saudi Airlines and all the lndiari
registered Airlines besides any other airlines that may be
eligible under the Saudi Policy.
19. We, direct! accordingly.
F (v). Grievance redressal.
20. We are informed that at present a Joint Secretary in
the Ministry of External Affairs is in-charge of Gulf and Hall. We
acknowledge that the concerned officer is doing commendable
work. But both the Gulf and the Hall involve huge responsibilities
G and it would be better if the responsibility of hajj alone is
assigned to a single Officer. We, therefore, advise the
Government of India to give the responsibility of the hall alone
to an Officer of the level of the Joint Secretary. In any event,
H
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH- .. 441
BHIKAN & ORS. [AFTAB ALAM, J.]
the hajj cell should also have a permanent and effective A
grievance redressal mechanism and an officer of the level of
Deputy Secretary should be made in-charge of dealing with all
grievances concerning hajj received from any of the Haj
Committees or any individual or group of individuals.
B
21. Mr. Ahmadi submitted that at present the PTOs are
required to submit their applications before the Haj Committee
of India where the applications are scrutinized before those are
taken up for registration with the Ministry of External Affairs. He
submitted that the Haj Committee has no concern with the
Private Tour Operators or their business. The Haj Committee C
is itself burdened with lakhs of applications and it should be
relieved of the responsibility of receiving applications from the
PTOs. We think the submission made by the Amicus is
reasonable. We accept the submission and direct the Ministry
of External Affairs to receive the applications from the PTOs D
directly or through any other appropriate agency.
22. Mr. Ahmadi submitted that despite having been
provided with very inadequate resources and facilities both the
Central Haj Committee and the Haj Committees at the State E
level are discharging their responsibilities in a highly
commendable manner. We endorse the compliments paid by
the Amicus to the Haj Committees and expect them to work
with greater sincerity and efficiency. We also advise the Central
Government to constitute a high powered committee to review F
the functioning of the Haj Committee of India, the State Haj
Committees and the Union Territory Haj Committees and to
consider the suggestions or grievances made by those
Committees with a view to improving their performance.
(vi). Policy for Private Tour Operators (PTOs) G
23. The Attorney General presented before us the policy
for registration of Private Tour Operators - Hall 2013.
24. The policy appears to have been framed with great H
\
442 SUPREME COURT REPORTS [2013] 5 S.C.R.
A care and application of mind. It is framed in light of the
stipulation made by the Saudi Government that a Private Tour
Operator should be allotted a quota of not less than 150 tickets.
Further, the policy presented before the Court accommodates
most of the suggestions that were made to the Attorney General
B by counsel representing the different Private Tour Operators
over the past months. Most importantly it avoids creation of any
monopoly and makes provision for entry of fresh players.
25. Here it may be stated ~hat the certain provisions in the
C policy that tend to relax the eligibility criteria for the PTOs were
strongly opposed by one Sangam Travels (I.A. No. 25 of 2013
and I.A. No. 29 of 2013). It was stated on behalf of the applicant
that in paragraph 3 of the PTO policy, category II, that makes
facilitating 50 Umrah pilgrims in a year for any five years as
one of the eligibility criterion is quite illegal. We have heard Mr.
D Rafi, counsel appearing for the applicant and we have
considered the submissions carefully.
26. We are of the view that the classification of PTOs to
categories I & 2 is fair and reasonable and strikes a proper
E balance between the needs of the pilgrims and also making
provision for new entrants on a caliberated basis. This fully
meets with our approval. We, thus, find no merit in the
submissions and the IAs are rejected.
27. On other aspects of the PTO policy we have heard,
F apart from the Attorney General, counsel appearing for many
Private Tour Operators represented before the Court and in
particular Mr. Dushyant Dave, senior advocate appearing for
Rafique Shaikh Bhikan (Respondent No.1 }.
G 28. Having heard the Attorney General and the counsel
appearing for the different Private Tour Operators, we approve
the policy presented by the Attorney General with some slight
modifications. The policy, approved after modifications by this
Court, is enclosed as Appendix-I and forms part of this order.
H The approved policy will be called Policy for Private Tour
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 443
BHIKAN & ORS. [AFTAB ALAM, J.]
Operators for hajj 2013-2017. It shall remain valid for five years A
and shall not be questioned before any court or authority.
29. Before concluding the order, we may state that some
parties appearing in-person and some through lawyers also
sought to assail before us the decision of the Government of
8
India that a person can perform hajj through the Haj
Committee only once in a lifetime. It needs to be made clear
that the restriction is not on the performance of hajj as such and
any person having gone through the Haj Committee may
perform hajj as many times as he may like or may be permitted
by the Saudi Government, through Private Tour Operators and C
by his own means. Mr. Beeran, learned counsel appearing for
the MEA, submitted that the decision has been relaxed and
exceptions are made out in two cases. He submitted that
having regard to the difficulties faced by some lady pilgrims in
findings Mehrams who had not done Hajj before, "repeaters" D
are allowed to come in as Mehrams, subject to the condition
that they would not be entitled to hajj travel subsidy provided
by the Government of India. Similarly, keeping in view the
problems encountered by pHgrims over 70 years of age in
finding specified relatives to accompany them who had not E
done hajj before, "repeaters" were permitted in their case also
subject to the condition that they would not be entitled to the
hajj travel subsidy provided by the Government of India.
30. However, the decision of the Government was assailed F
on a number of grounds, even invoking Articles 25 and 14 of
the Constitution of India.
31. We are, prima facie, satisfied that the decision of the
Government of India is not only legal and constitutional, but also
fair and reasonable. We find no substance in any of the grounds G
challenging the Government's decision. :
32. We have dealt with all the major issues concerning the
Haji Policy of the Government of India. No useful purpose will
be served by keeping this matter pending any further. We, H
444 SUPREME COURT REPORTS [2013) 5 S.C.R.
A accordingly, dispose of the special leave petition and close the
proceedings.
33. Before putting down the records of the case, however,
we would like to state that this Court is indebted to Mr. Goolam
E. Vahanvati, the learned Attorney General. It was with his help
8
and cooperation that this Court was able to deal with the issues
under consideration to our fullest satisfaction.
34. We would also like to put on record our appreciation
for the assistance received from Mr. Huzefa Ahmadi, the
C learned amicus curiae, Mr. Haris Beeran, counsel appearing
for the MEA and Mr. Khalid Arshad, learned counsel appearing
for the Central Haj Committee. We are also thankful to Mr.
Dushyant Dave, Mr. Fakhruddin, Mr. Colin Gonsalves, Mr. R.
Venkataramani and all other counsel representing the different
D private parties.
35. With the disposal of this Special Leave Petition, all
other connected matters, including transferred cases and
intervention applications and IAs, are disposed of.
E 36. We direct the Joint Secretary Gulf and Hajj to give
information in regard to the formation of the Committee for
making long term arrangement for accommodations in Saudi
Arabia to each of its members so that the Committee may start
its work without delay.
F
B.B.B. Matters disposed of.
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 445
BHIKAN & ORS.
Appendix A
MINISTRY OF EXTERNAL AFFAIRS
(GULF & HAJ DIVISION)
***
Registration of Private Tour Operators - Haj 2013 B
The Government of Saudi Arabia has notified that Private
Tour Operators (PTOs) registered with the Government of India
and involved in the preparation of the Hajj Pilgrimage will be
eligible for grant of Hajj group visas subject to fulfillment of other
terms and conditions as laid down by the Saudi Authorities. c
2. Applications are invited from eligible PTOs for
registration for Hajj - 2013. The Eligibility Criteria are at
Annexures A and B. The applications must be submitted in the
prescribed format (Annexure-C) directly to [MEA or any other D
agency appointed by it]
3. It is to be noted that Government of Saudi Arabia has
stipulated that effective Hajj 2013, a PTO should facilitate at
least 150 pilgrims. Accordingly, the PTO Policy has been
reframed. For registration and allotment of quota of Hajj seats E
for Hajj 2013, interested PTOs may apply under the following
two categories:
Category I PTOs registered with MEA and facilitated
Hajjis at least for 7 Hajj operations or more. F
.
Category II PTOs registered with MEA and facilitated
Hajjis for at least for 1 to 6 Hajj operations and
PTOs which have facilitated at least 50 Umrah
oilarims in a vear for anv five vears.
G
4. 70% of the overall quota of seats will be allocated to
eligible PTOs under Category 3 (I) and 30% to eligible PTOs
under Category 3 (II). Distribution of seats among qualified
PTOs will be done as follows: H
446 SUPREME COURT REPORTS [2013] 5 S.C.R.
A (a) 70% of the Hajj 2013 PTO seats (31,500) will be
allocated to eligible PTOs under category 3(1) at the
rate of 150 per PTO. In case the number of PTOs
exceeds 210, the allocation of seats will be done
on draw of lots. If the number of qualified PTOs is
B less than 210, e11ch PTO will be allocated 150 seats
and surplus seats, if any, will be distributed equally
among them.
(b) 30% of Hajj 2013 PTO seats (9,000) will be
allocated to eligible PTOs under category 3(11) at
c the rate of 150 seats per qualified PTO. If the
number of qualified PTOs exceeds 90, the
allocation of seats will be done by draw of lots. In
case the number of PTOs is less than 90, each PTO
will be allocated 150 seats. Balance seats, if any,
D will be transferred to Category I and distributed
equally among them. A qualified PTO which fails to
get selected under the draw of lots in any year will
be allocated 150 seats in the ensuing year without
Qurrah if it remains a qualified PTO.
E 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 be done every year bn the basis of the overall
quota of PTO seats specified in the annual India - Saudi Arabia
F Hajj Agreement and the number of qualified PTOs remaining
in each category. The policy envisages cross category upward
movement of PTOs from Category II to Category I. A qualified
PTO shall remain qualified unless it is otherwise disqualified
either by Government of India or by Government of Saudi
G Arabia for valid reasons. It is to be noted that the PTOs who
do not wish to take a minimum of 150 Hajjis or are unable to
do so, need not apply.
6. Last date for receipt of applications which should be
addressed to [the MEA or any other agency appointed by it]
H
***
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 447
BH!KAN & ORS.
ANNEXURE-A A
Terms and Conditions for Registration of
Private Tour Operators (PTOs) for Haj-2013
Each PTO should establish that it is a genuine and
established Tour Operator having experience in sending
tourists/pilgrims abroad for which it should produce the B
following documents:
S.No Terms and Conditions
I All documents must be in the name of the applicant
PTO and must be dated prior to the last date for c
submission of the application .
.
Ii PTO must sign an agreement with each pilgrim
indicating the services to be provided to the pilgrim
and charges payable. Services should include inter-
alia medical insurance, type of accommodation, D
transport facility, duration of stay of the pilgrims in
Saudi Arabia, etc.). A copy of model agreement to
be signed with the pilgrims must be attached with
the aoolication.
E
Iii Details of registration for service tax.
Iv Minimum Annual Turnover of INR One Crore during
the financial year 2010-11 or 2011-12 along with
Balance Sheet and Profit & Loss Account -duly
audited by the Statutory Auditors, Tax Audit Report F
· and Income Tax Return (ITR) for financial years
2010-11and2011-12.
v Minimum office area of 250 Sq.ft. (Carpet area).
(Supporting documents -drawing/lay out plan
approved by the competent authority of the State G
Government/Union Territory). Lay out plan certified
by Chartered Engineers/Architects will also be
accepted.
Vi Minimum capital of Rs. 15 lacs as on March 31,
2012 or March 31, 2013, duly supported by the H
448 SUPREME COURT REPORTS [2013) 5 S.C.R.
A latest Balance Sheet- audited by the Statutory
Auditors and Audit Report.
Vii Proof of payment made .through banking or other
authorized channels towards purchase of tickets
and hiring of accommodation in Makkah/Madinah.
B Payments towards purchase of tickets, hiring of
accommodation for pilgrims in Makkah/Madinah, by
any other means, would not be accepted.
Viii PAN Card details ( PAN Card in the name of
Proprietor will be accepted provided the PTO is a
c Proprietor concern)
Ix PTO with adverse Police report or involved in
criminal court cases will not be c considered at all.
D x Copies of registration Certificate issued to the PTO
in support of their claim year wise and PTO
category wise.
Xi Contract for hiring of buildings for pilgrims and
"Tasreeh" together with English translations PTO
E
category wise. (Please enclose rental receipts and
a copy of lease deed, duly signed with the Saudi
owners).
Xii Copy of Munazzim Card and relevant Hajj visa
F pages of the Passport of the Proprietor/Owner.
Xiii A security deposit of Rs. 25 lacs ( Rs. Twenty five
lacs only) in the form of Fixed Deposits with a
Nationalised Bank valid till February 28, 2014, in
favour of HCOI, Mumbai.
G
Xiv A Demand Draft of INR 5000/- ( R$. Five Thousand
or;ily) in favour of Haj 1Committee of India, payable
at Mumbai- to be submitted along with the
application as non refundable fee.
H ***
UNION OF iNDIA & ORS. v. RAFIQUE SHAIKH 449
BHIKAN & ORS.
ANNEXURE- B A
OTHER IMPORTANT INSTRUCTIONS! GUIDELINES
FOR HAJ-2013
I Application must be in the prescribed Performa
(Annexure-C) and all documents must be serially B
numbered. An index must be provided at the top
of the applications indicating details of documents
enclosed.
Ii Applications that furnish wrong information or c
suppress any relevant information will be summarily
rejected and the applicant PTO will be blacklisted
and its security deposit forfeited, provided that
blacklisting will not be ordered unless an
opportunity to show cause against such blacklisting D
is given to the PTO concerned.
Iii PTOs must furnish full information about their
pilgrims to the CGI (Consulate General of India),
Jeddah and also upload it on the website of CGI-
www.jeddah.com before departure of pilgrims to E
Saudi Arabia.
Iv PTO must ensure vaccination and other medical
checks as per requirement of the Government of
Saudi Arabia. Details are available on HCOl's F
website www.hajcommittee.com. All Pilgrims must
carry health cards.
v PTO should be fully responsible for the stay,
transportation and payment of compulsory charges
G
to the Authorities in Saudi Arabia. PTO should
honour all terms & conditions of the contract signed
with the pilgrims and ensure that none of them is
left stranded.
Vi PTO should provide good quality Identity card, H
(
450 SUPREME COURT REPORTS [2013) 5 S.C.R.
A indicating name of the pilgrim and of the PTO,
Passport number and place of stay in Makkah/
Madinah, to each pilgrim to be worn around the
neck whenever they leave the building.
B Vii PTO should ensure that baggage of all their
pilgrims are cleared before they leave the Hajj
Terminals in India/Saudi Arabia.
Viii If a pilgrim sent by a PTO is found begging in
Saudi Arabia or declared Fuqra by Saudi
c Authorities, the PTO will be blacklisted permanently
and its security deposit forfeited.
be Selling of Hajj quota seats to any other PTO is
strictly prohibited. In case of receipt of any
D complaint against any PTO indulging in such
activity, the PTO would be blacklisted permanently.
x It may kindly be noted that only one member of the
family would be eligible for registration for Haj-
E
2013. Hence, only one member of family should
apply for registration. Family will include wife and
dependent children. In case more than one
member of a family satisfy the eligibility conditions
and if one of them is a lady, the lady would be given
F preference for registration to the exclusion of
others and if there is no lady, preference would be
given to the member who is the oldest in the
business for registration - Haj-2013. No applicant
can apply in more than one PTO in his/her capacity
G as Director/Partner/ Proprietor.
Xi PTO must submit only one application. If it is found
that a PTO has submitted more than one
application in different names, all such applications
H would be rejected and all such PTOs would be
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 451
BHIKAN & ORS.
blacklisted and their security deposit would be A
forfeited.
Xii Without prejudice to the foregoing, all claims,
disputes and differences shall be subject to the
jurisdictions of the Courts in New Delhi/ Mumbai.
B
Xiii All the terms and conditions laid down in Annexures
A & B will also apply on PTOs ·that qualify under
Category-II by virtue of facilitating a minimum of 50
Umrah pilgrims in a year for any five years, but with c
the exception of the terms and conditions contained
under clauses (vii), (x), (xi), xii of Annexure-A. In
addition, these PTOs are also required to submit
the proof of payment made through banking or any
other authorized Channels towards purchase of D
tickets and hiring of accommodation in Makkah
and Madina in respect of Umrah pilgrims facilitated
by them in support of their claim.
***
E
F
G
H
452 SUPREME COURT REPORTS [2013] 5 S.C.R.
A ANNEXURE - C
Hajj 2013 - Application for Registration as Private
Tour Operator (PTO)
1. Name of Private Tour Operator
B
2. Address of firm/ telephone, fax, e-mail and
website address
(if there has been any change in address since
Hall - 2012 it may also be indicated)
c 3. Name of the firm's representatives along with
contact details who would be present in the
kingdom of Saudi Arabia during Haj-2013.
4. Number of employees (permanent as well as
D seasonal with break up), Number of computers,
and other office equipment.
5. Area of Office (Please attach supporting
documents with photographs)
E 6. Whether the office is designated specifically for
the Hall/ Umrah or any other business is also
carried out from that premises.
7. (i)Whether earlier registered with Ministry of
External Affairs? Yes/No
F
(ii) If Yes, then enclose copy of certificates and
copies of "Tasreeh" in support of their claim year
wise.
G 8. (i) Whether member of any Association of Hajj
PTOs? If so provide details. Yes/No
(ii) Also indicate whether application is submitted
'
through an Association.
H
UNION OF INDIA & ORS. v. RAFIQUE SHAIKH 453
BHIKAN & ORS.
9. PTOs should enclose copies of contracts for A
buildings hired for pilgrims, "Tasreeh" with a
certified English translation, IATA receipts,
details of tickets, and payments made towards
purchase of tickets through banking channel in
support of their claim. B
(New Applicants are required to submit the
number of Umrah pilgrims facilitated during last
five years with supporting documents - purchase
of air - tickets, hiring of accommodation in
Makkah and Medinah and proof of payments c
made through banking channels for this purpose)
10. Details of, Fixed Deposit Receipt (FDR) -
original to be enclosed. In case application is
D
through one of the Associations, indicate the
details of fixed deposit receipts submitted to the
Association.
11. Details of bank draft for Rs. 5000/- in favour of
Hajj Committee of India, payable at Mumbai as E
non-refundable processing fee.
12. Maktab number and the name of the service
provider in Saudi Arabia
(in case of previously registered PTOs). F
13. likely date of arrival of pilgrims in Kingdom of
Saudi Arabia.
14. Likely date of departure of pilgrim-s from
Kingdom of Saudi Arabia. G
15. Type of Transport agreement/arrangements to
be made for Pilgrims
(Coupon rate and route).
H
454 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 16; Arrangements for providing Orientation/ Training
programmes.
17. Name, address and telephone numbers of local
correspondent Company in the Kingdom of
Saudi Arabia.
B
18. (a) Whether the PTO has its branches in other
places:
(b) if yes, please provide details:
c (c) Have these branches also applied for
registration separately?
If yes, please provide details.
21. Whether any case/complaint is registered
against the PTO with police authorities. Please
D provide complete details. If there is no such
case/complaint, please attach an affidavit in
support of the claim.
(Seal and signature of the authorized person of the
· E Company)
***
F
G
H
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