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Petitioner: DOSSANI TRAVELS PVT. LTD and others VS Respondent: Messrs TRAVELS SHOP (PVT) LTD
Court Name: Supreme Court of Pakistan Judge(s): Amir Hani Muslim, Tasaddaq Hussain Jillani Title:DOSSANI TRAVELS PVT. LTD and others vs Messrs TRAVELS SHOP (PVT) LTD.
JUDGMENT
Court, Islamabad in W.P. No,2939 of 2013C.M.As. No,289-L and 5477 of 2013 Date of Judgment:2013-08-27 Reported As: PLD 2014 Supreme Court 1 Result: Appeal allowed Judgment JUDGMENT Civil Appeals Nos. 800-L and 802-L of 2013 TASSADUQ HUSSAIN JILLANI, J.---Through these appeals, by leave of the Court, the appellants have challenged the order dated 24-6-2013 vide which a learned Judge of the Lahore High Court vide an interim order in pending writ petitions directed that Ministry of Religious Affairs, Government of Pakistan (hereinafter to be referred to as the "MORA") should invite top 60 enrolled Hajj Group Operators (hereinafter to be referred to as the "HGO/HGOs") and 4 other HGOs which were given Hujjaj quota in the Hajj of 2012 for specifying the details of their respective packages and the price for a Haji; that the name of those companies should be displayed at the MORA (Ministry of Religious Affairs) website; that they be given seven days notice in writing as also by email for the bidding process; that the remaining quota for Hajj 2013 (which was retrieved from 19 HGOs on account of poor performance during the preceding Hajj) be allocated through a bidding process; that the candidates who would offer packages satisfying the requirements laid down in the impugned order and lowest bids should be given quota license of 50 Hujjaj each at a tithe. It was further directed that 20% cut on the allocation of Hujjaj quota as directed by the Kingdom of Saudi Arabia authorities (hereinafter to be referred to as the "KSA") would not apply to those HGOs who have been given quota through such bidding process.
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2. The appellantscase is that they are well reputed companies owned and run by Pakistani citizens; that they are providing complete services to the pilgrims for Hajj and Umra for many years and to the entire satisfaction of MORA; that they were granted Hajj quota in 2012 in accord with the Hajj Policy strictly on merit and in terms of the order passed by the learned High Court dated 4-10-2012 in Writ Petition No,18155 of 2012; that they were allocated a quota of 48 Hujjaj the said year and they organized successful Hajj for clients in 2012; that on account of their good performance they were allocated quota for 48 Hujjaj as per the Hajj Policy of 2013; that a "Hajj Recognition Letter 2013" was also issued to them whereafter they started booking Hujjaj, pilgrims who intended to perform Hajj 2013; that they gave passports, I.D. Cards and other documents pursuant to which requisite number of accommodation was rented at Makkah and Madina; rent deeds were executed with Saudi citizens; that to their utter surprise, they were informed through Letter No, F(1)/2013 HJO-14066 dated 27-6-2013 that the impugned order has been passed directing the petitioners in the said writ petition to participate in the auction to be conducted by MORA for purposes of allocation of quota of Hujjaj afresh; that the order passed by the learned High Court was arbitrary; against the law declared and cannot be sustained. Leave was granted by this Court vide order dated 30-7-2013 inter alia to consider:-- (i) whether the learned High Court sitting in Constitutional jurisdiction under Article199 of the Constitution could interfere in the Policy Making Domain of the Executive? (ii) whether the Hajj Policy announced by Ministry of Religious Affairs was violative of any law or rules to warrant interference? (iii) whether the Hajj Policy announced for the year 2013 was reflective of lack of transparency or malice? (iv) whether the impugned order passed is violative of the law laid down by this Court in Al- Raham Travels and Tours (Pvt.) Ltd., v. Ministry of Religious Affairs, Hajj, Zakat and Ushr (PLD 2011 SC 1621)? And (v) whether the petitioners could be condemned unheard? 3. Learned counsel for the appellants reiterated the submissions made at the leave granting stage. 4. Learned counsel for the respondents Mr. A.K. Dogar, Senior Advocate Supreme Court submitted:- - (i) that the appellants had an alternate remedy of challenging the letter issued to them to participate in the bidding process vide letter dated 27-6-2013 issued by the MORA and instead of offering the bid, they challenged the order of the High Court before this Court which is not tenable in law; (ii) that vide the impugned order the bidding process was carried out transparently and 19 persons were allocated quota; (iii) that the so-called third party evaluation in the selection process for Hujjaj carried out by the MORA cannot be sustained as the said selection had been set aside by the High Court vide order dated 5-7-2013 (in C.M. No, 1837 of 2013 in Writ Petition No,7253 of 2013), a copy of the order is at Page 376 of C.M.A. 286-L of 2013; (iv) that if any policy framed by the government is in conflict with any provision of law or is violative of fundamental rights, the same can be called in question before the High Court under Article 199 of the Constitution and the order passed does not reflect any jurisdictional defect to warrant interference by this Court. In support of the submissions made, he relied on AL-RAHAM Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Ushr (2011 SCMR 1621 at page 1642); (v) that every citizen has been granted freedom of free business and profession under Article 18 of the Constitution and the Hajj Policy insofar as it limits the grant of quota to a class of citizens and excludes the respondent-writ petitioners is violative of Article 18(b) of the Constitution. In support of
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the submissions made, he relied on Arshad Mehmood v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore PLD 2005 SC 193 at 231 and 233. (Para 7 at Page 197); (vi) that the selection process of HGOs through open auction as directed by the High Court vide the impugned order is in accord with the command of the Constitution in particular Article 18. Reference was made by learned counsel to a judgment of this Court in Shaukat Ali v. Government of Pakistan (PLD 1997 SC 342 at 346); (vii) that the classification of HGOs in terms of the services/ facilities provided to Hujjaj at Macca and Madina into blue, green and white accommodation is discriminatory and violative of Article 25 of the Constitution which has rightly been annulled by the High Court. The classification of this kind is in derogation to the tenets of Islam. Reference was made to The State v. Zulfiqar Ali Bhutto (PLD 1978 Lahore 523, 663); (viii)that the appellants and petitioners were put on notice by MORA vide letter dated 27-6-2013 and it is not open for them to contend that they have been condemned unheard. Reliance was placed by learned counsel on AL-RAHAM Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Ushr (2011 SCMR 1621 and 1641, Paras 44 and 45). 5. Messrs Nek Nawaz Khan Awan, learned counsel for applicants (in C.M.A. No, 5378 of 2013), Waseem Majid Malik, learned counsel for applicants (in C.M.A. 278-L of 2013) and Saeed Ullah Khan, learned counsel for applicants (in C.M.A. 285-L of 2013) adopted the arguments of Mr. A.K.Dogar, Sr. Advocate Supreme Court. 6. Mr. Azhar Siddique, ASC who was representing 29 respondents (in C.M.As., Nos.5328 to 5333 of 2013) at the outset adopted the arguments of Mr. A.K.Dogar, Sr. Advocate Supreme Court. In addition to this he submitted:-- (i) that the appellants have not approached this Court with clean hands; (ii) that they were only allowed provisional quota in terms of order dated 4-10-2012 pursuant to the order passed in Writ Petition No, 18156 of 2012; (iii) that some of the appellants went to the High Court and challenged the impugned order (Writ Petition No, 2939 of 2013) and they are not entitled to seek any relief by this Court; (iv) that MORA overstepped its jurisdiction in appointing chartered accountants and it is violative of the order of the High Court which has been placed on record at Page 376 in C.M. No, 286-L of 2013); (v) that the Hajj Policy insofar as it dedicates 60% of quota to government and remaining to private HGOs is bad in law and violative of Article 18 of the Constitution; (vi) that Hajj being a sacred duty in Islam, the State should have arranged for Hajj at a more inexpensive rate and the impugned order has addressed the plight of millions who could not afford to perform Hajj on account of the expenses involved. 7. Mr. Abdul Hayee Gillani, learned Additional Attorney General for Pakistan submitted that allocation of Hajj quota to 19 companies is in accord with the Hajj Policy 2013; that there were 720 companies in all and the quota allotted to the above mentioned 19 companies was retrieved from old companies on account of their, poor performance in the preceding year; that MORA registered 227 new companies in 2012 pursuant to the observation/direction made Eby this Court in Messrs Al- Raham Travels and Tours (Pvt.) Ltd.,, v. Ministry of Religious Affairs, Hajj, Zakat and Ushr (2011 SCMR 1621); that in 2013 it was decided by MORA not to register new companies (Hajj Policy Para.18(ii); that MORA carried out due scrutiny/ evaluation of the existing HGQs in a transparent manner and the quota allotted is based after the said exercise has been carried out and in the light of a third party evaluation i,e, by chartered accountants. 8. One of the arguments raised before the learned High Court which finds specific mention in the grounds urged in the body of the writ petition (bearing No, 7253 of 2013) was that in the earlier round of litigation (Writ Petition No, 18091 of 2012), the learned High Court vide order dated 1-10-2012 had called for comments from the Competition Commission and the Commission had made
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elaborate recommendations but the MORA has not complied with those recommendations. Mr.Shahzad Ahmed, Joint Secretary, Ministry of Religious Affairs was specifically confronted with the above recommendations. On Court query, he submitted that some of the recommendations of the Competition Commission have already been complied with and in formulating the next Hajj Policy, the MORA would examine those recommendations with a view to comply with those as far as possible. Those recommendations were as follows: "F. RECOM M ENDATIONS 58. Keeping in view the background and the findings, MORA may consider the following two set of suggestions. These suggestions, if implemented, can address the competition and transparency issues that have been raised. The first set of suggestions assumes that the MORA continues with the quota system in place. The second set of suggestions allow for the possibility of free competition within the overall quota allocated for the HGO Scheme. 59. In case MORA wants to continue with the quota allocation policy to HGO's it is recommended as follows: (a) Currently MORA is allocating Hajj quota only based on Hajj operations performed. Such criteria provide undue advantage to the HGOs who have performed maximum number of Hajj operations, whereas it places the new entrants and the HGOs who have performed lesser number of hajj operations at a competitive disadvantage. The allocation of quota should be decided, in addition to experience, on various qualitative variables which inter alia includes:- (i) Past performance of Hall or Umrah or Ziyarat Operations, (ii) Economy of financial packages offered, (iii) Quality of management and services provided, and (iv) The financial strength of the HGOs. Weight-age should be allocated to these variables in a manner which does not give undue consideration to experience only. (b) MORA shall also allocate a specific percentage of hajj quotas to the new entrants to encourage entry of new players in the market and such quota may be allocated based on the separate criteria. (c) MORA shall ensure that the HGOs to whom the quota is allocated, should perform the Hall operations on their own and this fact should also be verified from their financial statement. In case, any HGO continues with such practices, MORA should consider it for blacklisting for an appropriate period. (d) All the variables mentioned above should be evaluated by a third party, preferably a chartered accountancy firm approved by ICAP, to ensure transparency of the process. (e) MORA should consider forming a panel, whose responsibility will be to monitor all the HGOs. All the complaints against the HGOs shall also be reviewed by that panel. The recommendations and the finding of that panel shall be taken into account when allocating the quota to the HGOs. The panel shall be completely independent to ensure transparency of the process. 60. In the event that MORA would like to consider opening up the market for competition, as has been done in some other jurisdictions, here are some suggestions it should consider. (a) MORA could enlist/approve/license HGO's that meet the criteria as recommended in the previous paragraph and then allow them to offer services to first come basis to intending pilgrims. Such a system would allow the market, most importantly the intending pilgrims, to decide which HGO they prefer. The enlistment/ license could be reviewed based on the feedback received from the market. (b) In order to avoid multiple bookings for the same space, MORA should setup an electronic real- time system of booking spaces for the hajj. An appropriate comparison would be with the airline ticket booking system used by airlines and their agents. The intending pilgrims could be identified using their computerized identity card number.
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(c) Moreover, in order to discourage fake bookings and to discourage middlemen appropriate safeguards, including meaningful penalties, time lines and ban on transferring of booking, should be implemented in the system. 61. The above recommendations are made in order to ensure that the competitiveness and transparency in the Hajj Sector is achieved by providing a level playing field to all the concerned undertakings." 9. In the written statement filed by the Secretary MORA dated 30-7-2013, it was submitted that:- (i) That number of writ petitions are pending before different High Courts throughout Pakistan against the Ministry of Religious Affairs on different issues with regard to allocation of revised quota to private HGOs and redistribution of the quota of 19 retrieved from different HGOs for their bad performance during the Hajj-2012. Writ Petition No, 7253/13 titled Travel Shop v. FOP etc. Is pending in the Lahore High Court, Lahore in which bidding process was initiated and 19 companies were qualified by the Lahore High Court, Lahore through its order dated 22-7-2013 and MORA was directed to issue quota to these qualified HGOs. The next date in the subject case has been fixed on 1-8-2013. (ii) That aggrieved by the proceedings of the Lahore High Court, Lahore, certain qualified HGOs challenged the proceedings and actions of MORA done in compliance with order of the Lahore High Court, Lahore in Writ Petition No, 7253/13 before the Peshawar High Court in Writ Petition No, 1771-P/13 and the Peshawar High Court was pleased to suspend the qualified list placed on the Website of MORA and the redistribution process started by the MORA as a result of 20% cut imposed by the Kingdom of Saudi Arabia. The next date in the subject case has been fixed on 6- 8-2013. (iii) That Sindh High Court at Karachi was pleased to pass an order dated 25-7-2013 in Suit No, 796/13 titled as Universal Travels v. FOP. The order also addresses the distribution of quota amongst the HGOs after upholding the policy decision of the Federation to reallocate the revised quota in the ratio of 60:40 between the Government and Private scheme. It however, laid operational restrictions on MORA such that the process in compliance with the orders of Sindh High Court would be completed by 4th September, 2013; whereas, first flight is scheduled on 8-9- 2013 and leaves little to no room in organizing Hajj pilgrims both in Pakistan in KSA. (iv) That the order provides for MORA to seek clarification on the methodology imposed. (v) That if orders of Sindh High Court are complied with or implemented by MORA, then the orders passed by different High Courtd cannot be complied with or implemented by MORA, hence all these writ petitions necessitate the intervention of this august Court to pass an order for consolidation of all the cases pending in the different High Courts. (vi) That particularly, in the presence of the orders of Sindh High Court, timely Hajj operation cannot be ensured and, therefore, the restriction imposed in the aforesaid order may be relaxed and the said suit may also be consolidated and the record of the suit may be requisitioned for appropriate order giving a fair chance to MORA to operate smoothly for Hajj operation 2013 within the prescribed limitation of time which has already lapsed. It is, therefore, most respectfully prayed that all the cases pending before the different High Courts throughout Pakistan be combined and consolidated for passing an appropriate order such that the Hajj October, 2013 is organized timely and smoothly in the public interest. Dated: 30-7-2013 Sd/- Shahid Khan, Secretary, M/o Religious Affairs Government of Pakistan Islamabad.
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10. Yet another report was submitted about the arrangements made by the MORA on 19-8-2013 in connection with Hajj 2013 wherein it was averred as follows:-- "The Ministry of Religious Affairs readjusted share of Government and Private Hall Scheme in the ratio of 60:40 of reduced quota in June, 2013, consequent upon reduction of 20% Hajj quota by Saudi Government across the board. Accordingly revised quota of enrolled HGOs was notified which was challenged by few HGOs in the High Court of Sindh, Karachi. The Honorable High Court of Sindh in its order dated 25-7-2013 and 29-7-2013 in Suit No, 796/2013 and 895/2013 respectively, upheld the decision of the Government regarding adjustment of Hajj quota in the ratio of 60:40% between Government and Private Hajj Scheme. However, honorable High Court issued directions vide above referred orders for receipt of applications and their uploading on the website within a specific time frame. The petitioners in Sindh High Court Suit No, referred to above also filed CMA in the Honorable Supreme Court, Lahore Registry, Lahore which was fixed on 12-8-2013 and thereafter on 19-8-2013. The Ministry of Religious Affairs fixed last date of Ramadan as cutoff date for receipt of applications from the enrolled HGOs in accordance with revised quota allocation. A meeting of petitioners companies in the Sindh High Court, thereafter, was convened in the Ministry on 14-8- 2013 which was also attended by their representative body i,e, Hajj Organizer Association of Pakistan (HOAP). After marathon deliberations a consensus agreement was reached and documented where in petitioners companies were allocated additional quota of 527 on pro rata basis with the understanding that petitioners companies would withdraw all pending litigation against Ministry. Copy of the agreement is attached for kind perusal. Further in the light of this agreement the Ministry has revised quota allocation to enrolled HGOs including 19 new companies which were allocated quota in accordance with the provision of Hajj Policy-2013 and as per directions of the Honorable Supreme Court interim orders dated 30-7-2013. The final list of 734 companies has been uploaded on the website of respondent Ministry on 17-8-2013. (Sd.) On behalf of the respondent Ministry Farid Islam Khattak Deputy Secretary Ministry of Religious Affairs Government of Pakistan Islamabad." 11. We have given careful consideration to the facts and circumstances of these cases as also to the submissions made by learned counsel for the parties. 12. The stance of MORA before the High Court and this Court has been that there was mismanagement during Hajj 2010 which was taken note of by this Court in (Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963); that in the light of the directions/ observations given by this Court, structural changes were incorporated in the Hajj Policy 2011 and the process for further improvement of Hajj Policy continued up to framing of the current Hajj Policy, 2013. The salient features of the Hajj Policy appear to be as follows:-- (i) The applications were received on first come first serve basis; (ii) MORA offered three categories of accommodation and the expense was worked out accordingly; (iii) The share of Government and Private Schemes was fixed initially as 50:50 i,e, 18605 for each scheme. However on account of reduction of Hajj quota by the Saudi Government, the share of Government and Private Scheme was readjusted to 60:40; (iv) The Cabinet approved the scheme on 20-2-2013 and recognition letters were accordingly issued;
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(v) HGOs were selected and quota was allocated from amongst the companies already registered with MORA. Their past performance and evaluation report by Chartered Accountants were taken into account during selection; and (vi) The quota retrieved from 19 companies on account of their poor performance in Hajj 2012 was allotted to registered 19 HGOs under the Hajj Policy after due scrutiny of their credentials by the Chartered Accountants. 13. The respondent-writ petitioners had sought judicial review of Hajj Policy by invoking Article 199 of the Constitution, inter alia on the ground that the said policy was violative of the Fundamental Rights enshrined in Articles 18 and 25 of the Constitution. 14. We judges are mere mortals but the functions we perform have divine attributes. By the nature of our calling, we dispense justice under the law and provide relief. However, "justice" in its generic sense is a relative concept and unless regulated by law, the dispensation, notwithstanding the noble intent would be rather subjective. While exercising powers under Article 199(1) of the Constitution, Courts should always keep in view the following three parameters of their jurisdiction:- (i) A High Court is the apex court in the province or in the case of Islamabad, of the capital territory, but they are the creatures of the Constitution and they have only that jurisdiction which has been conferred by the Constitution or under any law for the time being in force. Article 175(2) specifically mandates, "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." (ii) The power of the High Court under Article 199 is "subject to the Constitution" and it can make any of the following orders, "if it is satisfied that no other adequate remedy is available," (i) "directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order---- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II." (Fundamental Rights as interpreted by the Supreme Court of Pakistan). (iii) The ambit and scope of the power of High Court under Article 199 of the Constitution is not as wide, as of the Supreme Court under Article 187 of the Constitution to pass any order or issue any direction or decrees for doing "complete, justice". 15. In the cases in hand, the learned High Court had inter alia to address the basic question whether the relief claimed was a Fundamental Right and whether the Hajj Policy was violative of the said right. A reference to those provisions/Fundamental Rights violation of which was alleged would be in order:--…
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