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Petitioner: Hajj Organizers Association of Pakistan & others VS Respondent: Federation of Pakistan & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title:Hajj Organizers Association of Pakistan & others vs Federation of Pakistan
& others Case No.: Suit No.866 of 2017 Date of Judgment:2017-06-16 Reported As: 2017 SHC 248 Result: Application Dismissed Judgment Muhammad Ali Mazhar , J: To all intents and purposes, this suit for declaration, mandatory and perman ent injunction has been brought to challenge and contest the reduction in the quota of Private Hajj Sector/organizers from 50% to 40% of Pakistan?s allocated quota. The plaintif fs postulate and predicate that this curtailment is illegal, arbitrary and mala fide and in violation of fundamental rights of the plaintif fs. 2. Mr.Abid Shahid Zuberi, the learned counsel for the plaintiffs argued that the plaintiff No.1 is an association, representing 742 quota holders of "Hajj Group Organizers". (hereinafter referred to as HGOs) which has been recognized by the Superior Courts. At this moment in time, the curtailment in quota has been made through a letter dated 22.3.2017 written by the defendant No.7 to the Minister for Hajj and Umrah, Royal Kingdom of Saudi Arabia. He further contended that rights of HGOs are fully protected under the Memorandum of Understanding dated 4.7.2013 which has been upheld by the apex court in C.P.Nos.1270, 1308 and 1309/2014 and in C.P.Nos.1180, 1265 and 1297/2016. Through the MoU, vested rights have been created in favour of the plaintiffs which cannot be taken away. He further pointed out that in the year 2007 on denial of quota to new entrants, some travel agents approached to the Lahore High Court however the judgment passed by the Lahore High Court was challenged in the apex in CPLA Nos.565 to 570/2007. The Supreme Court formed a Committee and directed the defendant No.1 to issue a comprehensive Haj policy. He added that Hajj Policy 2017 stresses upon building a strong partnership with private Sector (HGOs) for the provision of better services and quality logistic arrangements to the entire satisfaction of Hujjaj as well as Government of Pakistan and Saudi Arabia. Learned counsel also pointed out that each HGO has to sign service provider ?s agreement with certain mandatory conditions. It is also provided in the service agreement that service provider will offer up to 03 packages to the intending pilgrims and the details of additional facilities and amount charges against each facility and in case of any violation, 10% quota will be cancelled for the next year .
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3. He further argued that 2013 policy was based on matrix system which excluded new entrants as a result of construction work of Haram Sharif. The Lahore High Court in WP.No.7253/2013 sought a report from Competition Commission but said directions were impugned in the Supreme Court. Eventually the apex court disposed of the matters vide judgment reported in PLD 2014 SC 1 and laid down the law and guidelines for future Hajj Policies. The MoU dated 4.7.2013 expressly provides that any change in quota due to extraordinary circumstances shall be without prejudice to the original quota of the members of the plaintif f No.1. The learned counsel further contended that in the year 2016 also quota was curtailed and a constitution petition was filed in this court which was dismissed nonetheless the order was challenged in the apex court which pleased to restore the 50% quota of H.G.Os for the Haj year 2016. The learned counsel further augmented that due to certain mandatory conditions, it is not possible to match the Government Hajj package by the HGOs. He referred to the minutes of second meeting of Hajj Policy Formulation Committee, 2017 and pointed out that in the first meeting out of 05 members of the Committee 03 members agreed bifurcation of quota in the ratio of 60:40 to provide facility to low income citizen of the country to perform Hajj under economic package. The representative of Ministry of Law and CCP opined that according to MoU signed between Ministry and HOAP in the year 2013 after restoration of quota will have to be distributed equally , however , the minutes do show that after majority vote of ratio 3:2, it was decided to recommend ratio of 60:40 between the Government and Private Scheme for Hajj Policy and Plan 2017. 4. While referring to the judgment of the apex court passed in Civil Petition Nos.1180, 1265 & 1297/2016, the learned counsel contended that though Government has exclusive powers to review and reframe the Hajj Policy, but he made much emphasis that this should have been done keeping in view the latest developments and expediencies subject to guidelines given by the apex court in Dossani case. Thenceforth he quoted Hajj Policy-2013, 2016 & 2017 and asserted that the quota of HGOs is allocated with the concept of public private partnership to provide competition in the market and even in Hajj Policy 2017 the quota has been allocated on the same concept with multiple Hajj packages under strict monitoring regime to provide choice and competition in the market. He dispelled the impression gives birth to the Hajj Policy 2017 that on persistent demand of general public to perform Hajj under Government Scheme, 50% quota of the HGOs has been reduced to 40%. Furthermore, he shown me the copies of Crl.M.A. Nos.620, 621 and 622 of 2017 filed in hon'ble Supreme Court in Criminal Original Petition No.65/2016, Criminal Original Petition No.95/2016 and Criminal Original Petition No.67/2016 respectively. Learned counsel also produced a copy of order passed by hon'ble Supreme Court on 21.4.2017 on various applications moved for non-compliance of the judgments of the apex court dated 27.8.2013 and 21.7.2014 passed in Civil Appeal No.800-L of 2013 and C.P. Nos.1270 of 2014. The arguments advanced by the learned counsel are reproduced in paragraph 7 of the order. He in the apex court,while addressing arguments likewise opposed the reduction from 50% to 40% being violative of MoU but it is clearly reflecting from the order of apex court rendered in HOAP?s case on 3.5.2016 that the said judgment do not stand in the way of the Government in framing a just, fair and lawful Hajj policy. The apex court copiously pointed out this case (order dated 3.5.2016) may not be cited as a precedent which would debar the Government from exercising their exclusive powers to review/reframe the Hajj Policy every year keeping in view the latest development and expediencies which would be subject to the guidelines given in the Dossani case. So far as the order of apex court dated 21.4.2017 is concerned, he argued that it is only in relation to the contempt proceedings in which while taking a lenient view the apex court granted opportunity to the alleged contemnors to review their decision and reframe their policy. Learned counsel argued that basically in the above case the defendants in clear violation and defiance of the dictum laid down by the apex court avoiding to grant quota to the non-quota holder HGOs. However against this order the Secretary, Ministry of Religious Affairs and Inter-Faith Harmony has filed Intra Court Appeal under Section 19 of the Contempt of Court Ordinance 2003 which is pending. The purpose of placing this arguments was to demonstrate that last judgment of the apex court has no effect on the reduction of 10% quota and this court in this suit can independently decide as to whether 10% reduction in quota of HGOs is without lawful justification or not. In support of his line of arguments, he cited following judicial precedents: Dossani Travels (Pvt) Ltd versus Travels Shop (Pvt) Ltd, reported in PLD 2014 S.C 1, Supreme Court unreported judgment in Civil Petition No.1270/2014 (Federation of Pakistan vs. Muhammad Arif), Civil
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Petition No.1308/2014 (Federation of Pakistan vs. M/s. Alzair Travels & Tours (Pvt.) Limited), Civil Petition No.1309/2014 (HOAP vs. M/s. Alzair Travels & Tours), Civil Petition No.1180/2016 (Hajj Organizers Association of Pakistan vs. Federation of Pakistan), Civil Petition No. 1265/2016 (Al-Qasim Hajj & Umrah Services (Pvt.) Ltd. vs. Federation of Pakistan), Civil Petition 1297/2016 (Jabal-e-Noor Travel & Tours (Pvt.) Ltd vs. Federation of Pakistan) and PLD 1969 S.C. 599 (Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore & Others), 1998 SCMR 1404 (Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan), 1986 SCMR 916 (Federation of Pakistan & others v. Ch. Muhammad Aslam & others), PLD 1990 S.C. 1092 (Aman Ullah Khan & others v. The Federal Government of Pakistan), 2002 SCMR 510 (Federation of Pakistan v. Ammar Textile Mills (Pvt.) Limited), 2002 SCMR 772 (Mumtaz Ali Bohio v. Federal Public Service Commission) and 1986 SCMR 1917 (Al-Samrez Enterprise v. The Federation of Pakistan). 5. The learned DAG, Mr.Sohail Mahmud for the defendant No.1,2 and 7 argued that the Ministry under Rule 2 (iii) Schedule II, 27 (1) of Rule of Business 1973 is duty bound to manage pilgrimage and in this regard planning, management and operation of pilgrimage is being regulated every year through Hajj Policy duly approved by the Federal Cabinet/Prime Minister of Pakistan. The current Policy has been framed by the Committee constituted by the Supreme Court. The Hajj quota allocated to Pakistan is not in the name of plaintiffs but it is the prerogative of Government to distribute the Hajj quota between public and private sector. As far as MoU is concerned it was concluded in 2013 and its operation has been honoured by the defendant Ministry in 2014. The plaintiffs cannot claim allocation of Hajj quota as of right. The letter under reference regarding bifurcation of Hajj quota is part of bilateral negotiation between two countries based on recommendations of majority vote by the Hajj Formulation Committee constituted by hon?ble Supreme Court. The Supreme Court vide its judgment reported in PLD 2014 SC 1 has empowered the defendant Ministry to regulate the Hajj operation as per Hajj policy. He further contended that the allocation of Hajj quota is not inherent right of the plaintiffs to claim but this quota to the private sector is being allocated on yearly basis as per current Hajj Policy. It was further averred that this court on the same issue dismissed the case of plaintiffs in C.P.No.896/2016 vide order dated 15.4.2016 by upholding the decision of defendant Ministry regarding distribution of hajj quota between Government and private scheme at ratio of 60:40 and the honorable Supreme Court in the appeal of plaintif fs in C.P.No.1 180/2016 upheld the prerogative of government under paragraph 18 of the judgment to review/reframe the Haj policy keeping in view the latest developments and expediencies which would be subject to the guidelines given in the Dossani case 6. The learned D.A.G. also relied on the order passed by the apex court on miscellaneous applications filed in Criminal Original Petition No.59/2016 and some other similar petitions. He pointed out figures of applications received in previous years and argued that in the year 2017 "338696" applications have been received which shows manifold increase. He further pointed out that in the year 2016 50% quota of HGOs came to "71368" hujjaj but after restoration of 20% quota by Saudi Arabia their present 40% quota is equivalent to "71684" which is more than 50% of their previous quota. The Government retained 60% quota i.e. "107556" Hujjaj keeping in view the latest development and expediencies and it is clear from the judgment of the apex court that the Government policy cannot be strike down unless it is mala fide or arbitrary, the plaintiffs have failed to make out any case of mala fide nor any particular instance has been quoted in the plaint to demonstrate any mala fide or malice on the part of the defendants. It was further avowed that the Secretary, Ministry of Religious Affairs and Inter-Faith Harmony filed Intra Court Appeal against the judgment dated 21.4.2017 in relation to paragraph 15 of the judgment which is relevant to the observation made for non-quota holder HGOs those were denied quota due to non-availability of surplus quota available to the Government of Pakistan. So far as the other findings are concerned, learned counsel DAG argued that even in this judgment too no restriction has been imposed on framing the Hajj Policy by the Government and right of Government to frame Hajj Policy is duly protected in view of the dictum laid down in the Dossani case. He further argued that 2d meeting of the Hajj Policy Formulation Committee was convened on 10.3.2017 where the decision was taken to curtail the HGOs quota from 50% to 40% as majority decision whereas the letter written by defendant No.7 to the Minister for Hajj and Umrah, Royal Kingdom of Saudin
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Arabia on 22.3.2017, which is much after taking the decision by Hajj Policy Formation Committee with regard to the reduction in 10% quota of HGOs. 7. He further argued that the defendant Ministry formulated Hajj Policy 2017 and before doing so, the Committee discussed the MoU, performance of Government Hajj scheme, increased number of applicants under Govt. Hajj Scheme, consistent demand of General Public for increase of quota in Govt. Scheme and resolutions of three provincial assemblies i.e. Punjab, KPK and Baluchistan, recommended with majority vote for increase of Government Hajj quota to accommodate more Hujjaj from low income group for performing Hajj at economical rates as compared to Hajj packages of private sector whereas the plaintiffs? interest is business oriented to serve privileged class which does not constitute 50% of country population. The plaintiffs have no justification to snatch lawful right of common people to perform Hajj at economical Hajj package as compared to expensive Hajj packages introduced and announced by the plaintiffs. 8. At some point, a number of Intervenors approached and filed applications under Order 1 Rule 10 CPC for impleading them as party to this suit. In the case of Jiand Rai vs. Abid Esbhani, reported in SBLR 2010 Sindh 1526, I have discussed in detail the nictitates and nitty-gritties of Order 1 Rule 10 C.P.C and held that the necessary party is one who ought to have been joined and in whose absence no effective adjudication could take place or decree passed while proper party is the party whose presence is necessary before the Court in order to completely and effectually adjudicate upon and settled all questions involved in the suit. Only those persons are necessary and proper parties to the proceedings whose interest were challenged in suit and without their presence the suit could not be decided on merits. If a dispute in a suit could be effectually be adjudicated in absence of a person such person is not necessary party to be impleaded in the suit. The provision does not mean that any person who had any distant or indirect relationship or connection with either the plaintiff or defendant ought to be joined as a party to the proceedings. However the minutiae of Intervenors applications are as follows: CMA No.7874/2017: This application has been filed by 15 non-quota holders Hajj group operators (HGOs) registered in the year 2012. During course of hearing their learned counsel himself pointed out that hon?ble Supreme Court has already given some directions in the order passed on contempt applications in Crl. Orig. Petition No.59/2015 so after arguing at some length, the learned counsel decided not to press this application. Application is dismissed as withdrawn. CMA No.8042/2017. M/s. Urooj Aviation Services (Pvt.) Ltd. & others filed this application under Order VII Rule 10 CPC with the prayer that the plaint may be returned back to the plaintif f to file it in a proper jurisdiction. Presently , the said applicants are not party to the suit. I have heard the arguments on injunction application and in order to save the time in such an important issue of Hajj, I prefer to defer this application to be decided subsequently . Office is directed to issue notice of this application to the plaintiffs. CMA No.8021/2017. This application under Order 1 Rule 10 C.P.C has been preferred by Pasban Pakistan through its Director Public Issues for impleading them as party to the proceedings. Their learned counsel argued that this applicant wants to become party in the larger public interest to safeguard 10% quota curtailed from HGOs quota and allocated to general public in addition to 50% quota so that the poor people of this country may perform Hajj on government Haj package. He argued that MORA has right to alter quota in best interest of public demand. It is choice of public how to utilize Hajj quota without consent of Hajj traders/business community . Hajj Policy 2017 has been formulated rightfully to maintain 60% quota under the Government Scheme. At least 18000 Hujjaj have been put on waiting list till decision of the injunction application in this suit. He argued that the Hajj quota is Government/public property . The Haj package under the government was Rs.262,232/- in the year 2014, while Rs.261941/- in the year 2015 and for this year (2017) Rs.270,000/- while the minimum Hajj package of HGO starts from Rs.480,000/-. Besides various other facilities, MORA also provid es Takaful (Insurance) to the affected Hujjaj within the economy package including 540 Doctors with Ambulance for welfare of Government Hujjaj and proper Hajj monitoring system and day to day complaint redress system i.e. free toll cell number , mobile SMS service and on line complaint registration
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portal. Since this Intervenor approached to assist this court in the larger public interest so they have been provided ample opportunity of hearing but they are not proper or necessary party in whose absence the court may not be able to decide the case but at best may be classified as proforma party or their role may be ruminated and reckoned as whistleblower . In fact they support learned DAG. who vigorously reinforced the act of reducing 10% quota bona fide and kosher . The assistance rendered to me will be considered in the order passed on the injunction application. The application is disposed of accordingly . CMA No.8386/2017 & CMA No.8387/2017. These two applications have also been preferred under Order 1 Rule 10 CPC by M/s. Mars Hajj & Umrah Services (Pvt.) Ltd. and M/s. National Tourism Management Services (Pvt.) Ltd. Though their learned counsel argued that these Intervenors want to become party to provide proper help and assistance to this court but when their learned counsel was confronted that the issue primarily relates to the reduction of 10% quota of HGOs and the plaintif fs in fact have approached this court to save the reduction of 10% quota across the board, the learned counsel on this premise preferred not to press both these applications. The applications are dismissed as not pressed. CMA No.7281/2017. This application has been filed by Muhammad Bashir son of Muhammad Fareed for self and on behalf of his other family members on the ground that despite being declared successful his name has been kept on the waiting list till decision of the injunction application in this suit. He stated that packages announced by the private Hajj operators are much expensive than Government Hajj scheme. Mere keeping any individual on waiting list by the Government on 10% reduced quota from HGOs quota under Government Hajj scheme does not make him entitle to become party to the proceedings particularly when the official defendants have already fought out the matter by tooth and nail to look after the interest of all such Hujjaj of Government scheme on waiting list. So in my view the presence of this Intervenor is not necessary to decide the lis. Application is disposed of in the above terms. CMA No.6605/2017. This application has been filed by M/s. Urooj Aviation Services (Pvt.) Ltd. and 27 other Hajj Tour Operators. Again this application is under Order 1 Rule 10 CPC for impleading them as necessar y party in this suit. The learned counsel argued that the applicants are Hajj Group Organizers (HGOs) and they are fully satisfied with the relevant criteria, the applicants were enrolled with the Ministry of Religious Affairs & Inter-Faith Harmony (MORA) and non- quota holders HGOs. Basically , the applicants want to be impleaded for the grant of quota to them but here the controversy is altogether different. At present I am not dealing with any issue of past or new entrants in the field or non-quota holders HGOs but issue is only related to 10% reduction in HGOs quota in 2017 so in my view neither the applicants are necessary party nor proper party in whose absence the court may not be able to decide the lis. The application is dismissed. 9. Heard the arguments. Seeing as plenteous reliance has been placed on the instrument of MoU dated 4.7.2013 executed between MoRA and HOAP for readjustment of Hajj quota for the Hajj 2013 and the learned counsel for the plaintif f accentuated that MoU is still in the field with its binding effect so for the ease of reference, I would like to first reproduce the terms and conditions of MoU as under:- "Subject: MEMORANDUM OF UNDERST ANDING This Memorandum of Understanding is signed between the Ministry of Religious Affairs and Hajj Organizers Association of Pakistan (HOAP) for the adjustment of Hajj Quota for Hajj 2013 on 4th July 2013 at Islamabad. Whereas both parties have mutually agreed and resolved that:- (a) The current reduced allocation of the quota of Private Hajj Group would be increased by 3000 pilgrims for Hajj 2013 (b) For Hajj 2014, the quota granted to Pakistan shall be distributed equally between the private and public sector with an additionality of 12000 pilgrims in the private sector and corresponding reduction in the public sector.
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(c) The restriction on the Hajj Group Organizers on change in point of departure shall be relaxed for Hajj 2013 to facilitate inter regional accommodation between the members of HOAP. The deadline in the private Hajj Group Organizers fixed earlier 20th July 2013 shall be extended to 30th Ramazan, 1434 subject to concurrence by Saudi authorities. (d) The change in quota necessitated by the extraordinary circumstances shall be without prejudice to the original quota of Hajj group Organizers in 2013 before announcement of reduction or revision. (e) The distribution of additional 3000 and the subsequent 12000 next year shall be on pro-rata basis amongst all Hajj Group Organizers. (f) That HOAP would facilitate through their Hajj Group Organizers on other Provinces the Hajj Group Organizers of Karachi to fulfill their contractual liabilities for Hajj 2013, and assured to provide a quota upto 5000 with mutual arrangements." 10. In fact the reduction was made in overall quota by the Government of Saudi Arabia on account of ongoing expansion work hence MoRA was compelled to reduce quota of HOAP members from 50% to 40%. However, in clause (a) it was provided that the current reduced allocation of the quota of Private Hajj Group would be increased by 3000 pilgrims for Hajj 2013. Much emphasis were also made on clause (d) of MoU that change in quota necessitated by the extraordinary circumstances shall be without prejudice to the original quota of Hajj 2013 before announcement of reduction or revision. One can see the preamble of this MoU that it was basically executed between the said parties for readjustment of Hajj quota for Hajj 2013 without mentioning its tenure or currency. Though in clause (d) the change in quota said to be without prejudice to the original quota in 2013, but this covenant does not mean that the MoU has ultimate and or everlasting/eternal effect in view thereof Government has given up or renounced their rights to diminish the quota for all future Hajj policies keeping in view the expediencies and conveniences. 11. Before moving frontward, I would like to refer to the erstwhile dictum laid down in the case of Dossani Travels Pvt. Ltd vs. Messrs Travels Shop (Pvt) Ltd. reported in PLD 2014 S.C. 1 disposed of by the apex court on 27.8.2013. The civil appeals were filed against the order dated 24.6.2013 passed by the Lahore High Court and as an interim measure MORA was directed to invite top 60 enrolled Hajj Group Operators for specifying the details of their respective packages and the price for a Hajj. It was further directed that Hajj quota be allocated through bidding process and the candidates who would offer packages satisfying the requirements should be given quota of 50 Hujjaj each at a time. The hon'ble Supreme Court observed that the performance of Hajj is a sacred duty for Muslims but the quota allocated to Government of Pakistan by the Saudi Government is limited and within that limited quota it allocates a certain portion to private HGOs. In paragraph 8 of the judgment the hon'ble Supreme Court has also reproduced…
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