Holding

The rejection letters are quashed and the petitioners are entitled to Rs 5 lakh compensation each as damages in public law.

Summary

The petitioners, private tour operators (PTOs) who had qualified for the 2015 Hajj quota but missed out in the draw of lots, applied for registration and allocation of quota for the 2016 Hajj. The Ministry of External Affairs rejected their applications on the ground of non‑compliance with clauses (vii), (x), (xi) and (xii) of Annexure‑A, although the 2016 policy expressly exempted qualified PTOs from those clauses. The Supreme Court held that the rejection letters were based on grounds that were legally inapplicable and therefore quashed them. Since the time for conducting the 2016 and 2017 Hajj tours had elapsed, the court could not grant the quota but awarded each petitioner Rs 5 lakh as damages in public law for the loss caused by the arbitrary and illegal action of the respondents. The amount was to be paid within two months, with interest of 15% per annum if delayed, and the writ petitions were allowed.

Issues considered

The validity of the rejection letters issued by the Ministry of External Affairs on the basis of non‑compliance with clauses that were exempted for the petitioners.
Whether the petitioners are entitled to compensation for loss suffered due to the illegal denial of registration and quota.
Whether reliefs such as allocation of quota are infructuous due to the lapse of time.
The scope for awarding damages in public law under Articles 32 and 14 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 32

Subjects

Hajj pilgrimagePrivate Tour OperatorsRegistrationQuota allocationCompensationDamages in public lawArticle 14Article 32ArbitrarinessIllegal actionDraw of lots

Judgment

698 [2018]
SUPREME COURT 5 S.C.R. 698
REPORTS [2018] 5 S.C.R.

A UNITED AIR TRAVEL SERVICES THROUGH ITS
PROPRIETOR A.D.M. ANWAR KHAN
v.
UNION OF INDIA THROUGH SECRETARY (MINISTRY OF
EXTERNAL AFFAIRS)
B
(Writ Petition (Civil) No. 631 of 2016 etc.)
MAY 07, 2018
[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

C Haj: Haj pilgrimage – Grant of registration for –
Disqualification – Private Tour Operators-PTOs conducting travel
business for Hajj and Umrah – Application by the petitioners for
registration and allocation of quota for the Hajj 2016 – Rejection
of, on the ground of non-compliance with certain clauses of the
policy for the PTOs – Thereafter, policy for Private Tour Operators
D
for hajj 2013-2017’ – Petitioners were all eligible to be qualified
as PTOs for the year 2015 for Hajj pilgrimage – Since qualified
PTOs exceeded 90, draw of lots held but petitioners did not get
quota – Thereafter, since petitioners were not successful in the draw
of lots, they were entitled, under clause 4(b) of the policy, to be
E allocated 150 seats in the ensuing year without Qurrah if they
remain qualified as PTOs – Subsequently, in view of certain changes
in the policy, 50 seats to be allocated for 2016 – On 29.4.2016,
publication of norms for registration of PTOs for Hajj 2016 by the
Ministry of External Affairs – Persons like the petitioners who had
qualified for the year 2015 but were not successful in the draw of
F
lots would have the benefit of exemption – However, rejection letters
intimating non-allocation of quota to private tour operators for
non-compliance of the clauses – Held: Respondent’s plea that the
reasons were wrongly communicated in the rejection letter, is
unsustainable – Thus, the letters of rejection are quashed – With
G passage of time certain reliefs have become infructuous – Time
period for conducting Hajj tours for 2016 as well as 2017 is over
– In three writ petitions, petitioners sought compensation as
alternative plea for the loss accrued – Same principle to be applied
in all the cases – In view of the mindless action of the respondents
in rejecting the eligibility of the petitioners for 2016 on the grounds
H
698
UNITED AIR TRAVEL SERVICES v. UNION OF INDIA 699

on which they were exempted, petitioners entitled to damages in A
public law – Thus, the petitioners awarded compensation of
Rs.5 lakh per petitioner.

Allowing the writ petitions, the Court

HELD: 1.1 The passage of time has made certain reliefs B
infructuous. The time period for conducting Hajj tours for 2016
as well as 2017 is over. Thus, even the alternative relief prayed
for 2017 has become infructuous. In three writ petitions, there is
a specific alternative plea for compensation to the petitioners for
the loss accrued due to non-grant of registration for the Hajj of
C
2016. While there is no such specific plea in the other writ
petitions, given the identical situation, the same principle ought
to be applied in all these cases. The petitioners cannot be left
remediless. The mindless action of the respondents in rejecting
the eligibility of the petitioners for the year 2016 on the very
grounds on which they were exempted necessitates that the D
petitioners should be entitled to damages in public law so that
they are compensated, at least, to some extent for not having
been able to carry on with their business on account of illegal
action of the respondents. [Para 13] [706-G-H; 707-A-C]

1.2 In the facts of the instant case, the arbitrariness and E
illegality of the action of the authority is writ large. The petitioners
have been deprived of their right to secure the quota on a patently
wrongful order passed for reasons, which did not apply to them
and for conditions, which had been specifically exempted. What
could be a greater arbitrariness and illegality? Where there is F
such patent arbitrariness and illegality, there is consequent
violation of the principles enshrined under Article 14 of the
Constitution of India. The facts of the instant case are, thus,
giving rise to the satisfaction of parameters as a fit case for grant
of compensation. [Para 16] [708-D-E]
G
1.3 On a conspectus of the facts including the number of
pilgrims for whom the petitioners would have been entitled to
arrange the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner
would be adequate compensation for the loss suffered by them
and sub-serve the ends of justice. There is no quantification based
H
700 SUPREME COURT REPORTS [2018] 5 S.C.R.

A on actual loss, but then the award is in the nature of damages in
public law. [Para 17] [708-F]
1.4 The amount for each of the petitioners be remitted by
the respondents within the stipulated period failing which the
amount would carry interest @ 15 per cent per annum apart from
B any other remedy available to the petitioners. [Para 18] [708-G]
Union of India v. Rafique Shaikh Bhikan (2013) 4 SCC
699 : [2013] 5 SCR 428 ; Al Ismail Haj Tour v. Union
of India (2016) 15 SCC 246 ; Mohinder Singh Gill &
Anr. v. The Chief Election Commissioner, New Delhi &
C Ors. (1978) 1 SCC 405 : [1978] 2 SCR 272 ; Nilabati
Behera v. State of Orissa (1993) 2 SCC 746 : [1993] 2
SCR 581 ; Common Cause, a Registered Society v.
Union of India (1999) 6 SCC 667 : [1999] 3 SCR
1279 ; N. Nagendra Rao & Co. v. State of A.P. (1994) 6
D SCC 205 : [1994] 3 Suppl. SCR 144 – referred to.
Case Law Reference
[2013] 5 SCR 428 referred to Para 2
(2016) 15 SCC 246 referred to Para 2
E
[1978] 2 SCR 272 referred to Para 11
[1993] 2 SCR 581 referred to Para 14
[1999] 3 SCR 1279 referred to Para 15

F [1994] 3 Suppl. SCR 144 referred to Para 15
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 631 of 2016.
Under Article 32 of the Constitution of India.
G WITH
Writ Petition (Civil) Nos. 636, 634, 934, 941 & 938 of 2016
Writ Petition (Civil) Nos. 11 & 94 of 2017.

H
UNITED AIR TRAVEL SERVICES v. UNION OF INDIA 701

Ms. Pinky Anand, ASG, B. Adinarayana Rao, A. K. Panda, A
Sr. Advs, G. Balaji, Romy Chacko, Santosh Krishnan, Sayid Marzook
Bafaki, Sulaiman Mohd. Khan, Ms. Taiba Khan, Mohit Prasad, Chandra
Bhushan Prasad, Inamul Haq, Mohd. Ainul Ansari, Kripa Shankar Prasad,
Sunil Khatwani, Rajat Bhardwaj, Manoj Kumar Goyal, Pradeep Jatav,
Sunil Kumar Verma, Harshad V. Hameed, Dileep Poolakkot, Ms. Ashly
B
Harshad, Ms. Usha Nandini. V, Bhuvan Mishra, Sachin Sharma, Amit
Sharma, Vinay Kr. Yadav, Hemant Arya, Sumit Teterwal, Ms. Snidha
Mehra, Amit Mishra, Sumit Goel, Arun Kumar, Mrs. Anil Katiyar, Amit
Pratap Singh, Raj Bahadur Yadav, B. Krishna Prasad, Mukesh Kumar
Maroria, Shreekant N. Terdal, Gaurav Sharma, Mrs. Priya Puri,
S. Gowthaman, Advs. for the appearing parties. C
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J. 1. A batch of writ petitions raises
the issue of Private Tour Operators (for short ‘PTOs’) who are, inter
alia conducting the travel business for Hajj and Umrah being disqualified D
for grant of registration for the year 2016 for the Hajj pilgrimage. The
prayer is for quashing the identical communications dated 27.7.2016
issued by the respondent rejecting the application of the petitioners for
registration and allocation of quota for the Hajj 2016 on the ground that
they have not complied with certain clauses of the policy for the PTOs
as laid down by this Court. E
2. The issue relating to the Hajj policy and the registration of
these PTOs has resulted in two judicial pronouncements by this Court in
Union of India v. Rafique Shaikh Bhikan1 and Al Ismail Haj Tour v.
Union of India2. The policy presented on behalf of the Government
was approved by this Court with slight modifications and was annexed F
as Appendix-I to the order in Union of India v. Rafique Shaikh Bhikan3
case referred to aforesaid to be called as ‘Policy for Private Tour
Operators for hajj 2013 – 2017’. The policy was to remain valid for a
period of five years and was not to be questioned in any court or authority.
The petitioners were all eligible to be qualified as PTOs for the year G
2015 for Hajj pilgrimage but in the process of draw of lots dated 7.8.2015,
luck did not favour them and they thus did not get quota. The relevant
extract of the policy is as under:
1
(2013) 4 SCC 699
2
(2016) 15 SCC 246
3
(supra) H
702 SUPREME COURT REPORTS [2018] 5 S.C.R.

A “Appendix I
Ministry of External Affairs
(Gulf and Haj Division)
***
B Registration of Private Tour Operators — Haj 2013
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 Haj Pilgrimage will be eligible
for grant of Haj group visas subject to fulfilment of other terms
and conditions as laid down by the Saudi Authorities.
C
2. Applications are invited from eligible PTOs for registration for
Haj 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 agency appointed by it.

D 3. It is to be noted that the Government of Saudi Arabia has
stipulated that effective Haj 2013, a PTO should facilitate at least
150 pilgrims. Accordingly, the PTO Policy has been reframed.
For registration and allotment of quota of Haj seats for Haj 2013,
interested PTOs may apply under the following two categories:

E Category I PTOs registered with MEA and facilitated Hajis at least for
7 Haj operations or more.
Category II PTOs registered with MEA and facilitated Hajis for at least
for 1 to 6 Haj operations and PTOs which have facilitated
at least 50 umrah pilgrims in a year for any five years.

F 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
G 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.
H
UNITED AIR TRAVEL SERVICES v. UNION OF INDIA 703
[SANJAY KISHAN KAUL, J.]

(b) 30% of Haj 2013 PTO seats (9000) will be allocated to A
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
B
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. This Policy is expected to remain valid for five years 2013-
2017 unless there are substantive developments which affect it. C
The allocation of seats to qualified PTOs in each category will be
done every year on the basis of the overall quota of PTO seats
specified in the Annual India-Saudi Arabia Haj Agreement and
the number of qualified PTOs remaining in each category. The
policy envisages cross-category upward movement of PTOs from D
Category II to Category I. A qualified PTO shall remain qualified
unless it is otherwise disqualified either by the Government of
India or by the Government of Saudi Arabia for valid reasons. It
is to be noted that the PTOs who do not wish to take a minimum
of 150 Hajis or are unable to do so, need not apply.
least for E
6. Last date for receipt of applications which should be addressed
r at least to the MEA or any other agency appointed by it.
acilitated
rs. (emphasis supplied)
3. In terms of the aforesaid policy since the qualified PTOs
exceeded 90, a draw of lots was held. Further, since the petitioners F
were not successful in the draw of lots, they were entitled, under clause
4(b) of the policy aforesaid, to be allocated 150 seats in the ensuing year
without Qurrah if they remain qualified as PTOs. We may note at this
stage that as per the submissions advanced, in view of certain changes
in the policy of the Saudi Government, the number of seats to be allocated G
for 2016 would have been 50.
4. It is also apparent from the Press Release of 7.8.2015 giving
the list of PTOs who have qualified but did not get quota, that the
petitioners figured in the said list.
H
704 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 5. On 29.4.2016, the Ministry of External Affairs published the
norms for registration of PTOs for Hajj 2016. Para 3 of this reads as
under:
“3. All the terms and conditions laid down in Annexure A & B will
also apply on PTOs that qualify under Category-II by virtue of
B facilitating a minimum of 50 Umrah pilgrims in a year for any 5
years, but with the exception of the terms and conditions
contained under Clause (vii), (x), (xi) and (xii) of Annexure A. In
addition, these PTOs are also required to submit the proof of
payment made through banking or any other authorised channels
towards purchase of tickets and hiring of accommodation in
C Makkah and Madinah in respect of Umrah pilgrims facilitated by
them in support of their claim.”
6. The aforesaid, thus, provided that persons like the petitioners
who had qualified for the year 2015 but were not successful in the draw
of lots would have the benefit of exemption of terms and conditions
D contained in clauses (vii), (x), (xi) and (xii) of Annexure A.
7. For purposes of completion of record, we enumerate
hereinbelow the said clauses of Annexure A:
“ANNEXURE-A
E Terms and Conditions for Registration of
Private Tour Operators (PTOs) for Haj-2016
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 following documents:
F
Sl. Terms and Conditions
No.
vii Proof of payment made through banking (Bank Statement) or
other authorized channels towards purchase of tickets and
hiring of accommodation in Makkah/Madinah for the financial
G year 2013-14 (Haj2013) or 2014-15 (Haj 2014). Payments
towards purchase of tickets, hiring of accommodation for
pilgrims in Makkah/Madinah, by any other means, would not
be accepted.
x Copies of Registration Certificate issued to the PTO in support
their aim-wise and PTO-wise.
H
UNITED AIR TRAVEL SERVICES v. UNION OF INDIA 705
[SANJAY KISHAN KAUL, J.]

A
xi Contract for hiring of buildings for pilgrims and “Tasreeh”
together with English translations PTO category wise. (Please
enclose rental receipts and a copy of lease deed, duly signed
with the Saudi owners for Haj.
xii Copy of Munazzim Card and relevant Haj visa pages of the
Passport of the Proprietor/Owner.
B
8. The petitioners, however, faced identical rejection letters of
26.7.2016 (sent through e-mail dated 27.7.2016), the contents of which
are as under:
“Subject: Intimation regarding non-allocation of quota to Private
C
Tour Operators (PTOs) for Haj-2016.
Dear Sirs,
This has reference to your application regarding registration for
Haj 2016.
2. On scrutiny of your application submitted for Haj-2016, your D
firm has not been found eligible for registration and allocation of
quota for Haj 2016 on the following grounds:
PTO has not complied with clause vii, x, xi and xii of Annexure A
of PTO.
E
Policy as laid down by Hon’ble Supreme Court for any one of the
Haj year.
3. Your ineligibility for registration and allocation of quota for Haj
2016, however, does not prejudice your right to debar you from
applying for registration for Haj 2017 on the basis of the required F
conditions for Haj 2017.”
9. A bare perusal of the aforesaid letter would show that the
ment) or reason cited for disqualification was non-compliance of the very clauses
ets and of which exemption had been granted to the petitioners.
inancial
ayments 10. Learned Additional Solicitor General appearing for the G
ion for respondents could not dispute the aforesaid position but sought to canvas
ould not that the reasons were wrongly communicated in the rejection letter, and
there was actually, some other reason for the rejection. The aforesaid
support
plea can hardly be countenanced in view of the reasons referred to and
communicated.
H
706 SUPREME COURT REPORTS [2018] 5 S.C.R.

A 11. Learned counsel for the petitioner has, thus, rightly drawn our
attention to the Constitution Bench judgment of this Court in Mohinder
Singh Gill v. Anr. v. The Chief Election Commissioner, New Delhi
& Ors.4 to submit that such a plea cannot be accepted. We may note
that this is a well settled legal position in many judicial pronouncements
of this Court, but it is not necessary to revert to the same. In para 8 of
B
the aforesaid judgment, V.R. Krishna Iyer, J, in his inimitable style states
as under:

“8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity
C must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning may, by the
time it comes to Court on account of a challenge, get validated by
additional grounds later brought out. We may here draw attention
to the observations of Bose, J. in Gordhandas Bhanji:
D
“Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do.
E Public orders made by public authorities are meant to have
public effect and are intended to affect the actings and conduct
of those to whom they are addressed and must be construed
objectively with reference to the language used in the order
itself.

F Orders are not like old wine becoming better as they grow
older.”

12. The aforesaid legal position, thus, makes the stand of the
respondent unsustainable, resulting in the quashing of the impugned letters
of rejection.
G
13. The question, however, rises what relief can be granted in
such a situation. The passage of time has made certain reliefs infructuous.
The time period for conducting Hajj tours for 2016 as well as 2017 is
over. Thus, even the alternative relief prayed for 2017 has become
H 4
(1978) 1 SCC 405
UNITED AIR TRAVEL SERVICES v. UNION OF INDIA 707
[SANJAY KISHAN KAUL, J.]

infructuous. In three of the writ petitions, i.e., WP (C) Nos.631/2016; A
634/2016 & 636/2016, there is a specific alternative plea for compensation
to the petitioners for the loss accrued due to non-grant of registration for
the Hajj of 2016. While there is no such specific plea in the other writ
petitions, given the identical situation, we are of the view that the same
principle ought to be applied in all these cases. The petitioners cannot
B
be left remediless. The mindless action of the respondents in rejecting
the eligibility of the petitioners for the year 2016 on the very grounds on
which they were exempted necessitates that the petitioners should be
entitled to damages in public law so that they are compensated, at least,
to some extent for not having been able to carry on with their business
on account of illegal action of the respondents. C

14. The principles of damages in public law have to, however,
satisfy certain tests. In Nilabati Behera v. State of Orissa5, it was
observed that public law proceedings serve a different purpose than
private law proceedings. In that context, it was observed as under:
D
“The purpose of public law is not only to civilize public power but
also to assure the citizen that they live under a legal system which
aims to protect their interests and preserve their rights. Therefore,
when the court molds the relief by granting ‘compensation’ in
proceedings under Articles 32 or 226 of the Constitution seeking
E
enforcement or protection of fundamental rights, it does so under
the public law by way of penalising the wrongdoer and fixing the
liability for the public wrong on the State which has failed in its
public duty to protect the fundamental rights of the citizen. The
payment of compensation in such cases is not to be understood,
as it is generally understood in a civil action for damages under F
the private law but in the broader sense of providing relief by an
order of making ‘monetary amends’ under the public law for the
wrong done due to breach of public duty, of not protecting the
fundamental rights of the citizen. The compensation is in the nature
of ‘exemplary damages’ awarded against the wrong doer for the
breach of its public law duty and is independent of the rights G
available to the aggrieved party to claim compensation under the
private law in an action based on tort, through a suit instituted in a
court of competent jurisdiction or/and prosecute the offender under
the penal law.”
5
(1993) 2 SCC 746
H
708 SUPREME COURT REPORTS [2018] 5 S.C.R.

A It was also emphasized that it is a sound policy to punish the
wrongdoer and it is in that spirit that the courts have molded the relief by
granting compensation in exercise of writ jurisdiction. The objective is to
ensure that public bodies or officials do not act unlawfully. Since the
issue is one of enforcement of public duties, the remedy would be
available under public law notwithstanding that damages are claimed in
B
those proceedings.

15. The aforesaid aspect was, once again, emphasized in Common
Cause, a Registered Society v. Union of India6. We may also usefully
refer to N. Nagendra Rao & Co. v. State of A.P.7 qua the proposition
C that the determination of vicarious liability of the State being linked with
the negligence of its officer is nothing new if they can be sued personally
for which there is no dearth of authority.

16. In the facts of the present case, the arbitrariness and illegality
of the action of the authority is writ large. The petitioners have been
D deprived of their right to secure the quota on a patently wrongful order
passed for reasons, which did not apply to them and for conditions, which
had been specifically exempted. What could be a greater arbitrariness
and illegality? Where there is such patent arbitrariness and illegality,
there is consequent violation of the principles enshrined under Article 14
E of the Constitution of India. The facts of the present case are, thus,
undoubtedly giving rise to the satisfaction of parameters as a fit case for
grant of compensation.

17. On a conspectus of the aforesaid facts including the number
of pilgrims for whom the petitioners would have been entitled to arrange
F the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be
adequate compensation for the loss suffered by them and sub-serve the
ends of justice. We are conscious of the fact that there is no quantification
based on actual loss, but then the award by us is in the nature of damages
in public law.
G 18. The amount for each of the petitioners be remitted by the
respondents within two months from the date of this order failing which
the amount would carry interest @ 15 per cent per annum apart from
any other remedy available to the petitioners. It will be open to the
6
(1999) 6 SCC 667
H 7
(1994) 6 SCC 205
UNITED AIR TRAVEL SERVICES v. UNION OF INDIA 709
[SANJAY KISHAN KAUL, J.]

respondents to recover the amount of damages and costs from the A
delinquent officers responsible for passing such unsustainable orders.

19. The writ petitions are allowed in the aforesaid terms with
costs quantified at Rs.10,000 per petition.
B
Nidhi Jain Petitions allowed.

C

D

E

F

G

H