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Petitioner: Messrs MEERUB TRAVEL (PVT.) LTD. VS Respondent: MINISTRY OF RELIGIOUS AFFAIRS JUDGMENT
Court Name: Lahore High Court Judge(s): Ijaz Ahmad Chaudhry, Umar Ata Bandial, Sh. Azmat Saeed Title:Messrs MEERUB TRAVEL (PVT.) LTD. vs MINISTRY OF RELIGIOUS AFFAIRS
JUDGMENT
Reported As: 2011 YLR 2429 Result: Order accordingly Judgment JUDGMENT IJAZ AHMAD CHAUDHRY, C.J.---Through this single judgment we propose to dispose of this petition as well As Writ Petitions Nos.9563, 9564, 9565, 10547, 10333, 11413, 10592, 11691, 11734, 11976, 12358, 12359, '11833, 12574, 12573, 12602, 12601, 12600, 12599, 12598, 12574, 12573, 12572, 10955, 12585, 12586, 12583, 12584, 12582, 12521, 12503, 12498, 12493, 12489, 12477, 12463; 12439, 12437, 12434, 12433, 12425, 12398, 12393, 12392, 12391, 12390, 8597, 11630, 11663, 10986, 11735, 11752, 11845, 11885, 11917, 11995, 12103, 12119, 12120, 12139, 12179, 12183, 12184, 12185, 9988, 9974, 10110, 10166, 10273, 10391, 10392, 10395, 10548, 10806, 10649, 11039, 11093, 11140, 11155, 9290, 9868, 10591, 10708, 11639, 10956, 11886, 12100, 12102, 12101, 11181 and 11121 of 2011 as having stemmed out of the same policy viz. In pith and substance in all the petitions Hajj Policy, 2011 in general and the restraint on enrolment of fresh Hajj Group Organizers (HGOs) in the year 2011, in particular, have been challenged.{{TABLE}} 2. Shorn of unnecessary details, the facts, forming background of these petitions, are that pursuant to the instructions issued by Saudi Government, private sector was involved in the Hajj arrangements. First, in the year 2006 Ministry of Religious Affairs, Hajj, Zakat, Ushr introduced a policy for registration of HGOs. The said policy was given were publicity in the National Press and applications were invited from the prospective candidates for enrolment as HGOs. Besides other conditions, it was necessary for the applicant either to be a private or public limited company, duly registered with the Securities and Exchange Commission of.Pakistan,. Having paid up capital of at least 3 millions with minimum experience of three years as Hajj or Umrah tour organizer. Pursuant to the said policy certain companies were registered as HGOs. The said number heaped up in the following years.
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Most of the petitioners in these petitions have been avowing for their registration as HGOs since the year 2006 but their request in this regard has not been acceded to by the concerned authority on one pretext or the other. The petitioners were made shuttle cock to get themselves registered as HGOs inasmuch as on the one hand the Ministry of Religious Affairs was putting of their registration as Manazim under different Hajj Policies being issued each year' since 2006 on baseless excuses and on the other they were trying their luck before the Superior Judiciary by filing different petitions before this court as well as before the Hon'ble Supreme Court of Pakistan. Besides other matters, Writ Petitions Nos. 11035 of 2006 and 10733 of 2006 were filed before this Court which were disposed of vide order dated 28-11-2006 with a direction to the Ministry of Religious Affairs to, formulate, and implement a clear and unambiguous policy for private Hajj Organizers before the next Hajj. Aggrieved by the said order the concerned persons filed I.C.A. No. 357 of 2006 which was partly allowed by a Division Bench of this Court. As the prayer of the appellants in the I.C.A was not accepted in totality, they filed civil petitions for leave to appeal before the Hon'ble Supreme Court. In addition thereto Ministry of Religious Affairs and others also challenged the order passed in the ICA by this court before the Hon'ble Supreme Court of Pakistan. The leave was granted in all the matters and the petitions were _ converted into appeals. While finally hearing these appeals, the Hon'ble Supreme Court vide order dated 28-7=2009 directed the Ministry of Religious Affairs Zakat and Ushr to enlist names of the resfondents as is HGOs. Being encouraged by the order dated 28-7-2009 passed by the Hon'ble Supreme Court of Pakistan the petitioners applied for their registration as HGOs for Hajj 2010 but the respondents declined their request after lingering on the same for a considerable period. Thereafter, besides other petitions Writ Petitions Nos.9950 of 2010 and 12908 of 2010 were filed before this Hon'ble Court for registration of HGOs. The said petitions were dismissed by this Court vide order dated 30-6-2010 against which the aggrieved persons filed I.C.A. No.483 of 2010 which too was dismissed by a Division Bench of this court vide order dated 5-8-2010 whereafter the aggrieved persons challenged the order of this court passed in -I.C.A. Before the Hon'ble Supreme Court of Pakistan by virtue of C.P.L.A. No.1908 of 2010. However, in view of the fact that Hajj arrangements by that time were finalized and there was no scope for participation in case the petitioners were registered as HGOs, they opted to withdraw the said Civil Petition for Leave to Appeal. 3..Like previous years, Hajj Policy 2011 has been announced by the Ministry of Religious Affairs, salient features whereof read as follows (i) Pakistan Hujjaj quota has been increased from 159,647 to 179,256. Hajj Scheme 2011 shall be implemented through Government Hajj Scheme and Private Sector i.e. Hajj Group Organizers (HGOs) with proportionate share of around 50:50 (i.e) There shall be no balloting this year under Government Hajj Scheme and applicants will be considered successful on the principle of "first come first serve". (iv) The applications under Government Scheme will be invited from 15th April to 10th May, 2011 through designated banks. (v) Under the Government Hajj Scheme, there will be two categories of accommodation i.e. Green Category within 200 meters without transport with a rental ceiling of Saudi Rayal (SR) 4000 per pilgrim and White Category beyond 2000 meters with transport with a rental ceiling of SR. 3600 per pilgrim. (vi) The rent in Makkah Mukarramah will be charged on actual basis from pilgrims and at Madinah Munawwarah at a flat rate of SR.4501- per pilgrim. (vii) PIA has agreed for airfare Rs.72,000 for truth zone and Rs.84,000 for north zone. (viii)Hajj dues of White category will be Rs. 200,847 for south zone and Rs.212,847 for north zone.
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(ix) Hajj dues of Green category will be Rs. 210,047 for south zone and Rs. 222,047 for north zone. (x) Hujjaj will be airlifted by the national airlines of both countries in equal share, in pursuance of the revised Air Service Agreement (ASA) between Government of Pakistan and Kingdom of Saudi Arabia. (xi) 15% of the total seats under Government Scheme will be reserved for hardship cases, pilgrims recommended and funded by charitable institutions and Labour/low paid Employees of different organizations/coiporate entities under corporate social responsibility etc. Balance number of seats, if any, will be allocated to late corners at an enhanced package a 5% of the Green category to till the resource gap for welfare activities. (xii) A broad based Accommodation Hiring Committee comprising five members will hire the accommodation in Makah Mukarramah and Madinah Munawwarah. (xiii)Hujjaj under Government Scheme will not be required to pay any amount on account of Personal Exchange Quota (PEQ) and same will be arranged by them from open market through banks or foreign exchange companies. (xiv) There shall be no fresh enrolment of HGOs in the year 2011. HGOs already enrolled with MORA in the year 2010 shall continue in 2011 with the same quota. (xv) HGOs will offer only two packages i.e. Economy and executive. (xvi) For the welfare services, Medical Hajj Mission will be increased from 260 (2010) to 540 (2011). 230 khuddam ul Hujjaj to be drawn" from Armed Forces, Civil Armed Forces and Pakistan Boys Scouts and number of Local Khuddam ul Hujjaj to be increased from 250 (2010) to 900 (2011) subject to availability of resources. (xvii) A comprehensive awareness campaign and training to the intending pilgrims will be launched. (xviii) Hujjaj Mohafiz Scheme based on the concept of "Takaful" will be launched with the contribution of Rs. 400 non-refundable by each Haji for compensation due to death/accident during Hajj. (xix) There will be a committee of Parliamentarians called "Hall Advisory Committee" to advise on policy, planning and management of Hajj operation 2011 in Pakistan as well as in KSA. (xx) Any person who has performed Hajj during the last five years will not be eligible except Mehram, Group Leader or undertaking Haje-badal. (xxi) International Machine Readable Passport, Computerized National Identity Card and medical certificate. (xxii) All pilgrims (Male/Female) to affix - a Pakistan flag sticker on their "Ahrams" for identification. Every female pilgrim to carry at least two "Abayas" preferably of black colour. (xxiii) Pilgrims to ensure that their luggage is labelled bearing Name, Nationality, Passport Number, Air Carrier, Building and Flight Numbers. (xxi v) Monitoring and supervision mechanism for Haji operation in Pakistan and KSA shall be strengthened. (xxv) The new Policy 2011 shall be valid. For the three years subject to adjustment to be made by Ministry of Religious Affairs and on account of Saudi "Taleemat" from time to time. (xxvi) The policy will he implemented in accordance with the proposed Work Besides these features, Hajj Plan has also been issued. According to clause 19(1) of Part 3 of the Hajj Plan 2011, restriction on new enrolment of HGOs for Hajj 2011 has been imposed. 4. Aggrieved by clause 19(I) of Part 3 of Hajj Plan. 2011. Mentioned supra, whereby a ban has been imposed on enrolment of new HGOs under Hajj 2011, the petitioners have moved these petitions inter alia with the prayer that the Ministry of Religious Affairs be directed to enroll them as Hajj Group Organizers under Hajj Policy 2011 and they be allotted quota as per their entitlement.
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5. The resume of the arguments advanced on behalf of the petitioners is that the concept of Hajj Group Organizers was introduced for the first time in the year 2005 and the criteria for enrolment of Hajj Groups Organizers laid down by the Government at that time bore only three conditions viz. The candidates/applicants were required to be limited companies, the paid-up capital of the company was fixed as three millions and the companies were required to deposit pay order amounting to Rs.50,000; that later on the controversy between different limited companies and the Government of Pakistan erupted on the issue or enrolment which remained subject-matter of writ petitions, I.C.As. Before this Court in different years and lastly in the year 2009 the Hon'ble Supreme Court of 'Pakistan while disposing of Civil Appeals Nos.759 to 767 of 2008 and other allied matters directed the Government to register the names of the respondents and send the same to Saudi Government for allocation of quota; that pursuant to the order passed by the Hon'ble Supreme Court the Ministry of Religious Affairs only enrolled.Those who were party in the petitions before the Hon'ble Supreme Court but unfortunately the petitioners are still running from pillar to post for their registration as HGOs despise the fact that their case is on same footing from all corners with those who have been enrolled as HGOs pursuant to the order of the. Hon'ble Supreme Court; that the order of Hon'ble Supreme Court is still holding the field but the respondents with mala fide intention have not complied with the same; that besides the order of the Hon'ble Supreme Court, the Sindh High Court has also directed the respondents for formulating uniform standard for allocation of quota to the HGOs and policy for enrolment of the selection for HGOs; that the respondents have been taking divergent stances at different occasions during the pendency of previous litigation on the pretext of some agreement between the Government of Pakistan and the Government of Saudi Arbia inasmuch as no agreement, prohibiting the new companies to be registered as HGOs for allocation of Hajj quota during or in the next year, is available between the two brethren countries; that the respondents have not annexed any document with their Report and Parawise comments tending to manifest that Saudi Government has ever laid down any criteria or imposed any condition upon the limited companies working in Pakistan to render their services to the persons who intend to parform Hajj through Private Hajj Operators/HGOs; that the condition of non-enrolment of new HGOs under Hajj Policy 2011 is aimed to establish monopoly in this specific field which speaks volumes about the non-transparent procedure adopted by the Ministry of Religious Affairs towards the registration of HGOs; that the basic concept and purpose to involve the private sector is to provide maximum facilities to the pilgrims within a reasonable budget but in view of the monopoly established by the blue eyed persons of those who are at the helm of affairs in the Ministry of Religious Affairs the said purpose cannot be achieved rather open competition amongst different groups would prove to be a healthy sign in this regard; that the Government has imposed.Ban on registration of fresh HGOs on the pretext that Saudi Government has asked to curtail the number of HGOs, however, the said stance of the respondents is nothing but mere assertion as nothing in black and white has been produced before this Court to show that such instructions were ever issued by the Kingdom of Saudi Arabia; that Hajj Policy, 2011 is based on the notions of the high-ups working in the Ministry of Religious Affairs and the same is also violative of Articles, 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973; that even otherwise the policy is subordinate legislation which is not binding upon the courts and the jurisdiction of the courts of law cannot be ousted merely on the ground that the matter relates to policy decisions rather in appropriate cases while exercising the power of judicial review the court should-interfere with such policies which otherwise are repugnant to the mandate given in the Constitution. 6. Conversely the arguments put forth on behalf of the respondents can be summed up in the words that the present petitions are not maintainable being hit by the principle of old res judicata inasmuch as earlier petitions tiled by certain petitioners herein were dismissed by this Court; that
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decisions regarding arrangements of Hajj cannot be taken by the Government of Pakistan independently rather the policy is formulated in consultation with the Saudi Government and in such scenario, Ministry of Religious Affairs cannot relax the terms and conditions of the Hajj Policy, 2011; that Hajj Policy 20.11 has been implemented after approval by the Cabinet, therefore, it is not open for the petitioners to challenge the same before this Court by virtue of constitutional petition; that Hajj Policy 2011 was prepared after detailed analysis and consultation with all the stake- holders, therefore; vires thereof are not open to interference by this court; that Hajj Policy 2011 is a result of different agreements between the Government of Pakistan and Kingdom of Saudi Arabia, therefore, it cannot be revisited at this stage as the same would tantamount to violate the terms and conditions of the said agreements; that Hajj arrangements are time bounded proceedings and in case of any impediment in the were of decision in favour of the petitioners, the Hajj process is bound to suffer; that the fundamental rights of the petitioners have been protected only within the countries and when the' matter pertains to any foreign country the same cannot, come into force; that the petitioners were heard pursuant to the applications filed by them for their enrolment as HGOs and after affording an opportunity 'of personal hearing their requests were turned down on the ground that the do not fulfil the criteria laid down for the said purpose; that the petitioners have asserted that they are already dealing in providing Hajj and Umrah services, the. Said -stance of the petitioners entails penal action against them for the reason that they are indulging in such business without permission of the competent authority; that HGOs are registered according to requirement in the relevant years and no person can claim his enrolment as HGOs as of right; that there is no denying the fact that every citizen has a right to earn bread and butter through the profession of his choice but in certain professions skill and experience are of paramount consideration and in the instant matter the petitioners are seeking their enrolment as HGOs just on the ground that they are registered with Securities and Exchange Commission of Pakistan; that number of complaints were received from the public regarding substandard arrangements during Hajj 2010 by the HGOs and to eliminate the possibility of repetition of such exercise during Hajj 2011 registration of enrolment of new HGOs has been banned due to inexperience and lack of skill in the relevant field; that the Hajj Policy is formulated under the agreement with the Saudi Government, therefore, same cannot be challenged in constitutional petitions before this Court as this Court has no jurisdiction to give verdict regarding any matter pertaining to the foreign country; that the petitioners themselves have admitted that due to finalization of Hajj arrangements they withdrew their petitions from the Hon'ble -Supreme Court of Pakistan and in view of the fact that the Government has already taken certain, measures towards Hajj arrangements it would not be fair to interfere with Hajj Policy 2011 at this belated stage; that the petitioners' case_ is _quite distinguishable from those who were enrolled as HGOs under the order of Hon'ble Supreme Court and even otherwise the said order' was confined to the persons who were party in those appeals and the effect thereof cannot be stretched just to facilitate other persons alien to those proceedings; that the petitioners have not been discriminated in any manner whatsoever as no other person has been enrolled as HGO in the year 2011; that as the petitioners have not been registered with the Ministry of Religious Affairs, the respondents are not aware about their integrity and competency in the relevant field and in absence of such information it would be dangerous to enroll such persons as HGOs as after registration they indulge in illegal activities of facilitating the persons to slip away during Hajj process who not only bring bad name to the persons who are involved in the business of HGOs but also badly affect the reputation of the country at international level; that the purpose of criteria laid down for enrolment of HGOs is to introduce such persons who have sufficient experience and expertise in the relevant field proof positive whereof is that the registered HGOs have been divided under six categories according. To which, seats are allocated to them on the basis of experience and their past performance; that this being policy decision
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cannot be challenged in writ jurisdiction and that in case, Hajj Policy 2011 is interfered at this stage, the, Hajj arrangements would suffer a serious set back for the reason that the Ministry shall have to re-launch the Hajj process. 7. In view of the importance of the matter, we have given our anxious consideration to the arguments put forth by the learned counsel for the parties in support of their respective versions and have also gone through the, entire record with extreme care and caution to arrive at a just and fair conclusion. Firstly, taking up the objection of respondent that this being a policy decision cannot be interfered with by this Court in its constitutional jurisdiction, we are of the view that though ordinarily this court rarely interfere with the policy decisions while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, however, when a public functionary ex facie, acts in an unjust and oppressive manner this Court can exercise its constitutional jurisdiction to grant relief to an aggrieved party keeping in view the circumstances of each case. In this scenario the objection of the respondent qua the maintainability of these petitions before this Court is hereby spurned. 8. During the survey of the documents, appended with these petitions, we have noted that the petitioners have called in question the vires of the Hajj Policy 2011 in general, and the restriction on enrolment of fresh HGOs in particular. A survey of Hajj Policy and Plan for Hajj 2011 makes it crystal clear that besides other issues, criterion for enrolment of new HGOs has been provided under Clause 19(I) Part-III of Hajj Plan 2011 which reads as under:-- any criminal/civil administrative offence, particularly an offence relating to dishonesty, fraud/ forgery, financial/ investment/ business crime misconduct or other criminal acts or been involved in any acts of misfeasance or serious misconduct. (vi) Has not been associated with any illegal activity especially illegal deposit taking. (vii)Has not been blacklisted by the KSA or any other foreign government in connection with Tourism Affairs including Urnrah/ Zia rat. (viii)Has not been declared defaulter by any bank or financial institution in connection with payment of loan or taxes in the capacity of individual as director/chief executive or company as a whole. (ix) Audit reports of the last three years duly audited by a reputable chartered company. (x) All directors should hold National Income Tax Number. B (i) Be a private limited Company duly incorporated with Securities and Exchange Commission of Pakistan (SECP). (ii) Have a paid-up capital of rupees twenty (20) million. (i.e) Have five years verifiable/ documented experience in Tourism/ Umrah/Ziarat. (iv) Hold an IATA membership. (v) Has not been convicted/involved in (xi) All the new HGOs shall deposit non-refundable Rs. 5 lac in Pilgrim Welfare Fund, as processing fee. (xii) The quota allocation for Hujjaj shall not be claimed as a right." Strangely enough, under clause 19(II) of the Hajj Plan 2011 it has been mentioned that "there shall be.No new enrolment of HGOs for Hajj 2011." In this behalf, an attempt was made by the learned Deputy Attorney General to contend that such restriction was necessitated by the agreement between the Government of Pakistan and the Royal Kingdom of Saudi Arabia. He also presented to this Court copy of the document relied upon in this behalf, i.e,, the Minutes of the International Agreement between Government of Pakistan and the Royal Kingdom of Saudi. Arabia. The said document has been placed on record and after examination in Court, was sealed. The learned counsel for the respondents and the learned Deputy Attorney General for Pakistan were
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unable to show any restriction on the enrolment of new HGOs In the Minutes of the International Agreement. Thus, it is beyond the comprehension of man of prudent mind that if no enrolment of new HGOs was to be made then why the criteria quoted above was laid down in Hajj Policy 2011. The said sub-clause seems to have been crept in surreptitiously due to the efforts of the persons who have already established their hegemony by creating a monopoly in the field of HGOs. The efforts of the persons at the helm of the affairs of Ministry of Religious Affairs right from inception till the filing of report and pare-were comments in these petitions are aimed to safeguard their blue-eyed persons by avoiding enrolment of new FIGOs as in such eventuality the hegemony being maintained by the HGOs already enrolled with the Ministry of Religious Affairs under the umbrella of high-ups of the said Ministry was bound to be scrambled. Just to put a safety wall round the illegal benefits given to their favorites the respondents are using Hajj Policy 2011 as a device. We have no hesitation in our mind to hold that the restriction imposed on enrolment of new HGOs to prevent competition was resit' t of mala fide on the part of the concerned authorities. 9, Insofa as the objection of ti respondents that the petitions are hit by the principle of res judicata is concerned, suffice it to observe that the same is not tenable in view of the fact that no petition has ever been dismissed against the Hajj Policy 2011. The petitions mentioned by the respondents in their report and parawise comments pertain to Hajj Policy 2010: Since these petitions have been filed against Hajj Policy 2011 total fresh cause of action has arisen in favour of- the petitioners, therefore, respondents have no cheeks to challenge their maintainability on the ground that the same are hit by the principle of res judicata. 10. According to Article 18 of Constitution of Islamic Republic of Pakistan, 1973, no enactment can be enacted and policy…
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