Haj; Al Ismail Haj Tour Vs. Union of India [Supreme Court of India, 08-07-2016]

Haj – Approved Policy – Private Tour Operators (PTOs) – 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?

Held, 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 fulfillment of other relevant stipulations under the scheme. Ultimately, documents specified in stipulation (vii) not only go to prove a fact that a PTO had in fact conducted a Haj programme in a particular year, but also prove that the PTO has necessary information and contacts in Saudi Arabia to organize an appropriate accommodation both at Makkah/Madinah.

Private Tour Operators (PTOs)

AIR 2016 SC 3863 : JT 2016 (6) SC 442 : 2016 (6) Scale 444 : 2016 All SCR 1433 : 2016 AIR (SCW) 3863 : 2016 (5) AIR Bom.R 727 : 2016 (6) Recent Apex Judgments (R.A.J.) 528 : 2016 (4) J.C.R. 203

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

(J. Chelameswar) and (Abhay Manohar Sapre) JJ.

July 8, 2016

WRIT PETITION (CIVIL) NO. 425 OF 2016 ETC.

AL ISMAIL HAJ TOUR … Petitioner

Versus

UNION OF INDIA … Respondent

WITH WRIT PETITION (CIVIL) NO. 426 OF 2016 WRIT PETITION (CIVIL) NO. 427 OF 2016 WRIT PETITION (CIVIL) NO. 428 OF 2016 WRIT PETITION (CIVIL) NO. 429 OF 2016 WRIT PETITION (CIVIL) NO. 430 OF 2016 WRIT PETITION (CIVIL) NO. 431 OF 2016 WRIT PETITION (CIVIL) NO. 433 OF 2016 WRIT PETITION (CIVIL) NO. 435 OF 2016 WRIT PETITION (CIVIL) NO. 437 OF 2016 WRIT PETITION (CIVIL) NO. 438 OF 2016 WRIT PETITION (CIVIL) NO. 440 OF 2016 WRIT PETITION (CIVIL) NO. 441 OF 2016 WRIT PETITION (CIVIL) NO. 444 OF 2016 WRIT PETITION (CIVIL) NO. 447 OF 2016 WRIT PETITION (CIVIL) NO. 449 OF 2016 WRIT PETITION (CIVIL) NO. 450 OF 2016 WRIT PETITION (CIVIL) NO. 451 OF 2016 WRIT PETITION (CIVIL) NO. 452 OF 2016 WRIT PETITION (CIVIL) NO. 457 OF 2016 WRIT PETITION (CIVIL) NO. 456 OF 2016 WRIT PETITION (CIVIL) NO. 455 OF 2016 WRIT PETITION (CIVIL) NO. 458 OF 2016 WRIT PETITION (CIVIL) NO. 460 OF 2016 WRIT PETITION (CIVIL) NO. 461 OF 2016 WRIT PETITION (CIVIL) NO. 462 OF 2016 WRIT PETITION (CIVIL) NO. 463 OF 2016 WRIT PETITION (CIVIL) NO. 465 OF 2016 WRIT PETITION (CIVIL) NO. 466 OF 2016 WRIT PETITION (CIVIL) NO. 467 OF 2016 WRIT PETITION (CIVIL) NO. 468 OF 2016 WRIT PETITION (CIVIL) NO. 473 OF 2016 WRIT PETITION (CIVIL) NO. 474 OF 2016 WRIT PETITION (CIVIL) NO. 479 OF 2016 WRIT PETITION (CIVIL) NO. 480 OF 2016 WRIT PETITION (CIVIL) NO. 481 OF 2016 WRIT PETITION (CIVIL) NO. 487 OF 2016 WRIT PETITION (CIVIL) NO. 488 OF 2016 WRIT PETITION (CIVIL) NO. 491 OF 2016 WRIT PETITION (CIVIL) NO. 494 OF 2016 WRIT PETITION (CIVIL) NO. 495 OF 2016 WRIT PETITION (CIVIL) NO. 496 OF 2016 WRIT PETITION (CIVIL) NO. 498 OF 2016 WRIT PETITION (CIVIL) NO. 500 OF 2016 WRIT PETITION (CIVIL) NO. 501 OF 2016 WRIT PETITION (CIVIL) NO. 503 OF 2016 WRIT PETITION (CIVIL) NO. 504 OF 2016 WRIT PETITION (CIVIL) NO. 505 OF 2016 WRIT PETITION (CIVIL) NO. 511 OF 2016 WRIT PETITION (CIVIL) NO. 371 OF 2016 WRIT PETITION (CIVIL) NO. 542 OF 2016 WRIT PETITION (CIVIL) NO. 544 OF 2016 WRIT PETITION (CIVIL) NO. 543 OF 2016 WRIT PETITION (CIVIL) NO. 545 OF 2016 WRIT PETITION (CIVIL) NO. 546 OF 2016 WRIT PETITION (CIVIL) NO. 548 OF 2016 WRIT PETITION (CIVIL) NO. 550 OF 2016 WRIT PETITION (CIVIL) NO. 552 OF 2016 WRIT PETITION (CIVIL) NO. 553 OF 2016 WRIT PETITION (CIVIL) NO. 554 OF 2016 WRIT PETITION (CIVIL) NO. 555 OF 2016 WRIT PETITION (CIVIL) NO. 556 OF 2016 WRIT PETITION (CIVIL) NO. 541 OF 2016

J U D G M E N T

Chelameswar, J.

1. This Court by its judgment in

Union of India & Others v. Rafique Shaikh Bhikan & Others (2013) 4 SCC 699

(hereinafter Rafique Shaikh Bhikan, 2013), approved a policy (with some modification) framed by Government of India for the registration of Private Tour Operators (“PTOs”) for HAJ 2013 (hereafter referred to as “APPROVED POLICY”). This Court opined that such a policy “avoids creation of any monopoly and makes provision for entry of fresh players”.

2. The modified and APPROVED POLICY is appended to the judgment as Appendix-‘I’1 . It can be seen from the said judgment that though the policy as framed by the Government of India was meant only for one year i.e. for Haj 2013, this Court directed that it would be the “Policy for Private Tour Operators for Haj 2013-17” – valid for five years.


1Para 27. 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. The approved policy will be called “Policy for Private Tour Operators for Haj, 2013-2017”. It shall remain valid for five years and shall not be questioned before any court or authority.


3. Under the APPROVED POLICY, the PTOs were categorised into two groups. Category-I consists of PTOs who were registered with the Ministry of External Affairs and facilitated Hajis at least for 7 or more years by conducting Haj tour operations. The second category consists of two classes of PTOs. Class-I consists of PTOs who had facilitated Hajis for less than 7 years and Class-II consists of the PTOs who had facilitated at least 50 umrah pilgrims in a year for any five years.

4. Obviously, the requisite experience for a PTO to be categorized in one of the abovementioned two categories must be anterior to Haj 2013. It is to be noticed that though the APPROVED POLICY stipulated “experience of conducting a Haj operation” for 7 years for Category-I and 5 years experience of conducting “umrah operation” in second class of Category-II, the Scheme did not stipulate that those years should be consecutive years, or that they should be the immediate past 7 years or 5 years, as the case may be. The consequences of classification are also specified in para 4 of the Scheme;

“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:

(a) 70% of the Haj 2013 PTO seats (31,500) will be allocated to eligible PTOs under Category 3(I) at the rate of 150 seats 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 less than 210, each PTO will be allocated 150 seats and surplus seats, if any, will be distributed equally among them.

(b) 30% of Haj 2013 PTO seats (9000) will be allocated to eligible PTOs under Category 3(II) at 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, 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.

5. There is no separate scheme or statute regulating the PTOs conducting umrah operations. However, we are informed by the learned Additional Solicitor General that the Government of Saudi Arabia would not permit any pilgrim for umrah through a PTO unless such PTO has a contract with one of the agencies authorized by the Government of Saudi Arabia for the purpose. We are informed that as of today there are some 48 such agencies in Saudi Arabia. We are informed at the bar by the learned Additional Solicitor General that existence of such a restriction emanates from the law of Saudi Arabia and the Government of India’s knowledge of 6 Page 7 such restriction is based on the information provided by the Diplomatic Mission of the Government of India at Saudi Arabia.

6. There are three annexures to the above scheme. Annexure-A specifies the conditions required to be satisfied by a PTO and prescribes the documents which are required to be produced to establish the facts necessary to prove that the PTO satisfies the conditions for registration of Private Tour Operators (PTO) for Haj 20132.