Delhi High Court: A Single Judge bench of Chandra Dhari Singh, J.* opined that the Court was primarily concerned with the pilgrims who intended to travel on Haj Pilgrimage and had paid in advance to the petitioners for the same as travelling to Haj was not merely a holiday but was a medium of practicing their religion and faith, which was a fundamental right. Thus, this Court, being the protector of the rights of the pilgrims, should take the necessary steps in this regard. Thus, to ensure that the pilgrims were not obstructed from completing their journey and undertake Haj, the comments in the consolidated list of allocation of Haj Quota for HAJ-2023 issued on 25-5-2023 by the respondent which read as “Registration Certificate & Quota Kept in abeyance till finalization of proceedings in complaint related matter” was stayed by the Court.
Background
The instant application was filed challenging the suspension of the Registration Certificate and Quota of the Haj Group Organizer (‘HGOs’) as published on 25-5-2023 of the petitioner in the Consolidated List of Allocation of Haj quota for Haj-2023 and the Show Cause Notice subsequently issued against the petitioner on 26-5-2023 by the respondent.
The petitioner submitted that the action of the respondent of withholding of Registration Certificate and allocation of Haj quota post the scrutiny of the petitioner’s application and declaration of petitioner as eligible HGO, when the petitioner had already taken booking from the Pilgrims and the pilgrims had paid in advance for the same, was completely arbitrary and in blatant violation of the fundamental rights of the petitioner, as well as the rights of the pilgrims, as enshrined under Articles 14, 19 and 21 of the Constitution.
Analysis, Law, and Decision
The Court noted that the Registration and allocation of Haj Quota to private tour operators was subject to certain terms and conditions for registration as HGOs and if the registration of HGOs was not found to be complying with the HGO Policy, it was liable to be cancelled. The Court opined that “registration of the HGOs was an absolute right rather than a privileged right that was bestowed upon the concerned HGO based on the fulfilment of certain conditions as laid out under the Policy. Therefore, the offer made by the HGOs to the pilgrims was subject to certain pre-conditions for the grant of registration and was amenable to the fulfilment of the requisite conditions, the non-compliance of which empowered the Ministry to suspend/cancel the registration as well as for blacklisting the company ”.
The Court noted that the conditions provided that the HGOs should abide by the policy for HGOs for Haj-2023 read with the Circular, issued by the Ministry of Minority Affairs (‘Ministry’), and would be held responsible for non-compliance with any of the terms and conditions of registration with Ministry at any stage. It was also stated therein that the Ministry would have the right to suspend/cancel the registration in case of non-compliance with any of the terms and conditions. It had also been provided therein that as per the provisions of Circular, if any discrepancy was found in the documents submitted by the HGO, at any stage, and/or if any complaint was received against the HGO regarding misleading documents/submission for Haj, 2023/tax evasion, appropriate penal action would be taken against the concerned HGO, including forfeiture of the security deposit and debarment for a period of 10 years or more.
The Court noted that in the present case, it had been alleged that there had been a gross misrepresentation of facts by the petitioner HGOs, which had come to light during the visit of a team of officials from the respondent to the office premises of the petitioner HGO. It had also been stated on record that the Government was contemplating serious penal action, which would include blacklisting and cancelling of registration of the HGO. It was further submitted by the respondent that the Government was not willing to take the risk of placing these pilgrims’ fate in the hands of these non-compliant HGO.
The Court opined that although restrictions and conditions to the issuance of the Registration Certificate as well as to the Quota allotted to the petitioners/HGOs might be imposed, the same should not be held against the pilgrims who, in good faith, registered with the petitioners/HGOs to undertake the pilgrimage as such an action would defeat the purpose of the current Haj Policy and was in derogation of Article 25 of the Constitution. The Court further opined that “Article 25 of the Constitution of India guaranteed the freedom of conscience and the freedom to profess, practice and propagate religion to all citizens. The Haj Pilgrimage and the ceremonies involved therein fall within the ambit of a religious practice, which was protected by the Constitution. Religious freedoms were one of the most cherished rights guaranteed and enshrined under the Constitution in line with the vision of the founding fathers of the Modern Indian Republic. The religious freedom of the person was guaranteed by the Constitution of India under Article 25”.
The Court relied on Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1, wherein the right under Article 25 of the Constitution was discussed. The Court opined that an alternative must be sought and put into effect so that with the law taking its course, the same should not become a hurdle for the noble-intentioned citizens of this country who were seeking to undertake the Haj. The Court further relied on Union of India v. Rafique Shaikh Bhikan, (2012) 6 SCC 265 wherein this Court emphasized that the main purpose of the Haj Policy was to ensure that pilgrims must be able to perform their pilgrimage duty without undertaking any difficulty, harassment, or suffering.
The Court opined that at this stage, this Court was primarily concerned with the pilgrims who intended to travel on Haj Pilgrimage and had paid in advance to the petitioners for the same as travelling to Haj was not merely a holiday but was a medium of practicing their religion and faith, which was a fundamental right. Thus, this Court, being the protector of the rights of the pilgrims, should take the necessary steps in this regard and therefore, to ensure that the pilgrims were not obstructed from completing their journey and undertake Haj, the comments in the consolidated list of allocation of Haj Quota for HAJ-2023 issued on 25-5-2023 by the respondent which read as “Registration Certificate & Quota Kept in abeyance till finalization of proceedings in complaint related matter” was stayed by the Court.
The Court disposed of the application and directed the respondents to ensure that the pilgrims affected by the petitioner’s defaults did not suffer and could undertake the Haj Pilgrimage without obstruction.
The matter would next be listed on 3-8-2023 before the Roster Bench.
[Akbar Travel and Tours v. Union of India, 2023 SCC OnLine Del 3565, Order dated 7-6-2023]
Advocates who appeared in this case :
For the Petitioners: Sandeep Sethi, Senior Advocate; Raghav Anand, Aphune K. Kero, Advocates
For the Respondent: Farman Ali, SPC; Kritagya K. Kait, GP; Kaushal Jeet Kait, I. Jamal, Jatin Yadav, Advocates
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