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Petitioner: Messrs AL-RAHAM TRAVELS AND TOURS (PVT) LTD and others VS Respondent: MINISTRY OF JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Javaid Iqbal, Tasaddaq Hussain Jillani, Shakirullah Jan Title:Messrs AL-RAHAM TRAVELS AND TOURS (PVT) LTD and others vs MINISTRY OF
JUDGMENT
Reported As: 2011 SCMR 1621 Result: Appeals allowed Judgment JUDGMENT KHILJI ARIF HUSSAIN, J.---We have disposed of the above captioned civil petitions, by means of a short order passed by us, at the conclusion of hearing on 7-7-2011. For ease of reference, the said short order reads as under:-- "For the reasons to be recorded separately, these petitions are converted into appeals and accepted. It is, however, directed that the future Hajj Policy qua next season must be formulated well in time and made public which should be transparent and in accordance with the settled norms of justice. All the applications submitted in the Ministry of Religious Affairs, Government of Pakistan, Islamabad shall be decided in accordance with law, on their own merits and policy framed by the Government from time to time for next year. All the above captioned CMAs are disposed of accordingly". 2. The petitioners, Tour Operators, and the Federal Government in these petitions have impugned the judgment of a learned Division Bench of Lahore High Court, Lahore, passed in various writ petitions by a short order dated 6-6-2011, operative part wherefrom is reproduced hereinbelow:-- "Therefore, it is held that the respondents are duty bound to solicit, receive, consider and decide all the applications for allocation of HGOs quota for Hajj 2011 filed by the petitioners or others who are qualified in terms of the criteria reproduced above. The respondents are also under a duty to
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ensure competitive selection of HGOs for the Hajj 2011 fairly, transparently, and in accordance with law without imposing any extraneous conditions on the eligibility of qualified persons to compete in such selection. As a result the conditions imposed in the Hajj Police 2011 limiting the selection of HGOs of Hajj 2011 to the persons rendering service during the last Hajj 2010 or in the ones during the immediately preceding years is declared as illegal, without lawful authority and of no legal effect. All the petitions are disposed of accordingly". 3. In the detailed reasons, dated 23-6-2011, recorded by the learned High Court, the Ministry of Religious Affairs, Government of Pakistan, Islamabad [hereinafter referred to as 'the Ministry was directed to receive applications from the petitioners and the other interested persons, who intend to get themselves enrolled as Hajj Group Organizers [hereinafter referred to as the HGOsJ, if they otherwise fulfil the criteria laid down in Hajj Policy; 2011 and their names be enlisted as the HGOs and further to apply the policy uniformly, while allocating quota to the HGOs and that the seats reserved for private sector would be distributed amongst the HGOs enrolled with the Ministry fairly and according to the merit. 4. Brief facts necessary for disposal of the listed petitions are that the Ministry announced Hajj Policy-2011, wherein it was mentioned that no fresh enrolment of HGOs will be made, and the already enrolled HGOs with the Ministry for Hajj Policy, 2010 shall continue in 2011 with the same quota. On the directions of the Prime Minister of Pakistan to formulate a new Hajj Policy, the Ministry formulated Hajj 2011 after consultation with all the stakeholders, by modifying the previous Hajj Policy-2010, in the light of the recent agreement/undertaking, concluded between the Ministry of Hajj, Kingdom of Saudi Arabia [hereinafter referred to as 'the MoH]and the Ministry of Religious Affairs, Government of Pakistan [hereinafter referred to as 'the MoRA] The salient features of the same, for the purpose of deciding these petitions, are reproduced herein below:- "HAJJ POLICY AND PLAN FOR HAJJ-2011 (i) (ii) 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. (iii) . (iv) The applications under Government scheme will be invited from 15th April to 10th May, 2011 through designated banks. (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. (xviii) Hujjaj Mohafiz Scheme based on the concept of `Takaful' will be launched with the contribution of Rs,400 non-refundable by each Hajj for compensation due to death/accident during Hajj. PAKISTAN'S HUJJAJ QUOTA: (i) Pursuant to the decision of the Foreign Minister's of Organization of Islamic Conference in the year 1987, the percentage of pilgrims was fixed in the ratio of 1000 per one mission Muslim inhabitants of the concerned countries. The criterion for determining the total as well as the Muslim population has been standardized by Saudi authorities on the basis of United Nation population statistics. As per United Nations estimates (State of World Population Report, 2010), the population of Pakistan is 184.8 Million out of which 97% is the Muslim population which comes to 179.256 Million. (ii) In view of the above, the case was submitted to the Saudi authorities for consideration and was raised by the Pakistan delegation under the leadership of the Minister for Religious Affairs on 10th March, 2011. Resultantly, the quota of Pakistani Hujjaj has been enhanced from the last year 159,647 (2010) to 179,256 for the year 2011 with a net increase of 19,609 pilgrims. HAD SCHEME 2011:
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(i) There shall no balloting this year due to increase in quota and applicants would be considered successful on the principle of "first come first serve" to give advantage to those who apply first but are left out due to balloting. (ii) ............................................................ (iii) During 2011, 179,256 pilgrims shall perform Hajj as agreed between the Saudi Ministry of Hajj Affairs and Ministry of Religious Affairs. Out of the total allocation of Pakistan Hajj quota, 50% would be allocated to Government Hajj Scheme and 50% to Private Scheme i,e, Hajj Group Organizers (HGOs). However, Ministry of Religious Affairs reserves the right to readjust the share of pilgrims to government and private schemes as per requirements. 5. In the policy work plan of Hajj, 2011 was also annexed which provided month wise activities/different tasks to be performed by the Government of Pakistan and the HGOs, for the smooth performance of the Hajj. 6. Prior to the framing of said policy, a meeting was held between the representatives of the MoRA and the MoH, wherein it was concluded that pursuant to the decision of the Foreign Ministers' of the Islamic Conference Organization States for the year 1987 regarding the percentage of pilgrims which was fixed in the ratio of 1000 pilgrims per every one million of the inhabitants of the concerned countries, in view of the limited legal area of Holy site (Mashai'r) and the area of Holy Mina, and due to inability to accommodate the huge number of pilgrims without proper planning, regulation and specification. Of their number, keeping in view the official Islamic statistics for the Pakistani Muslims was fixed as 179210 out of which arrangement of 89605 pilgrims would be made through the tourism companies under the supervision of Pakistani Hajj Mission. Despite the request for grant of 700 visas for the representatives of the Tour Operators to enter Saudi Arabia in the beginning of the month of Rajab (May, 2011) till the end of Ramadan (August, 2011) for the completion of arrangements of accommodation and transport for their Hujjaj coming under the supervision of the Tour Operators at Makkah Mukarramah and Madina Munawarrah and to obtain the Barcode for the pilgrims, both the countries agreed to grant 650 visas to the Tour Operators with detail instructions to the HGOs, to be followed by them on the arrival of Hujjaj. The said schedule for Tour Operators reads as under:-- "(8) SCHEDULE FOR TOUR OPERATOR (A) Mid of Ramadhan:---The last date for the representatives of companies and tourist agencies (tour Operator) to approach the Saudi Embassies to obtain the visas for visiting to Saudi Arabia for registration and making services, (with the concerned Tawafa Establishments and the National Ext. Of Adilla and the Integrated Agencies Office) and the transport (with the Transport Syndicate) and accommodation agreements. (B) From 1st of Rajab to the middle of Shawal: which is the time fixed for the Tour Operator to approach the Ministry of Hajj and the Moasasah Tawafa to finalize the registration and receiving the Munazim card. (C) From 1st Rajab to the 25 of Shawal. Tour Operator to verify and attest accommodation agreements of Hujjaj at Makkah Mukarramah and Madinah Munawarrah. (D) From 1st Rajab to the end of Shawal: Time for approval of organizers files and issuance of stickers and visas order. (E) The 25th of Dho-alqae'dah every year is determined as latest date for obtaining Hajj visas from the Saudi embassies/consulates. (f) The ministry of foreign affairs and ministry Hajj hold themselves free of all responsibilities resulting due to noncompliance with the above mentioned schedules." 7. It was further decided that affixation of visa stamps for pilgrims under private scheme would be undertaken from 15th of Ramadan (15th August, 2011), visas for the Chief Executive of the HGOs were to be processed and completed by 3rd June, 2011 to 15th of September, 2011. The HGOs were
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required to submit the passports along with boarding cards of the HGOs to the Ministry by 22-8- 2011 and to submit flight schedules by 10-8-2011. 8. The Ministry on 19-4-2011, in terms of clauses 19 and 20 of Hajj Policy-2011, has issued criteria for enrolment of the HGOs, which criteria is being challenged through the listed petitions. The said criteria read as under:-- "CRITERIA FOR NEW ENROLMENT ' OF HAJJ GROUP ORGANIZERS (HGOs). (1) In determining the criteria for enrolment of new Hajj Group Organizers, the Ministry of Religious Affairs shall consider all relevant factor, including but not limited to the following :-- (i) Be a private limited tourism company duly incorporated with Securities and Exchange Commission of Pakistan (SECP). (ii) Have a paid up capital of rupees twenty (20) million. (iii) Have five years verifiable documented experience in Tourism Umrah Ziarat. (iv) Hold an IATA membership. (v) Has not been convicted/involved in 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 Umrah/Ziarat. (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 report of the last three years duly audited by a reputable chartered company. 9. On 7-5-2011, the Ministry issued schedule of the events with regard to the documents of Hujjaj travelling through the HGOs for the performance of Hajj, 2011 which reads as under:-- "Subject: SCHEDULE FOR HGO The competent authority has approved the following schedule of events with regard to document of Hujjaj travelling -through HGOs for Hajj, 2011:-- S. #Events Date 1 Reception of Enrolment Forms 5th May, 2011 2 Scrutiny of Forms 6th to 9th May, 2011 3 Preparation of Data base of FIGOs 11th to 13th May, 2011 4 Finalization of allocation of quota to the HGOs13th to 14th May, 2011 5 Issuance of offer letters to HGOs 14th May, 2011 6 Issuance of Hajj Application Forms to HGOs 14th May, 2011 7Collection of filled Hajj Application Forms and return of earnest money draft.15th June, 2011 8 Issuance of Recognition Letters to the HGOs 20th June, 2011 9 Collection of passports 1st August, 2011 ' This issue with the approval of Secretary Religious Affairs. Sd/ (Muhammad Nasir Khan) Section Officer (HP-II)"
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10. The petitioners filed petitions before Lahore High Court, Lahore, with almost the same prayers, one of which is reproduced hereinbelow:-- "In the light of above submissions, it is most respectfully prayed that the respondents may kindly be directed to issue the enrolment form and format of affidavit to the petitioner for HAJJ GROUP ORGANIZERS (HGO) and the petitioner be registered permanently as HGO in the Hajj Ministry. ' It is further prayed that the ban imposed for fresh enrolment may very graciously be declared as illegal and unlawful and discriminatory and are liable to struck down/waived from the Hajj Policy 2011 and the respondents may be directed to issue the quota of pilgrims of minimum slab of 100 as per Saudi Taalimaat annunciated in the Hajj Policy 2010 and respondents be directed to give equal opportunity to all participants (HGOs) in Hajj Policy, 2011. ' Any other relief which this honourable Court deems fit and proper may also be awarded to the petitioner." 11. The High Court after hearing the parties, accepted the writ petitions and declared the restriction imposed on new enrolment for Hajj Policy-2011, to be in conflict with the provisions of Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan 1973; directed the Ministry to receive the applications from the petitioners and all other persons, who intended to get themselves enrolled as the HGOs, if they otherwise fulfil the criteria laid down in the Hajj Policy-2011; and that their names be enlisted as the HGOs. The Ministry was also directed to apply the policy uniformly, while allocating the quota to the HGOs and to distribute the seats reserved for private sector amongst the HGOs enrolled with the Ministry fairly and according to the merits. Hence, these petitions. 12. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court, representing the petitioners in Civil Petitions Nos;923 and 976 of 2011, has submitted that the petitioners have got themselves registered with the Ministry as the HGOs, in the year 2006, and since then the Ministry is observing their performance and is allocating quota in view of their performance, while de-listed the nineteen (19) HGOs on receiving complaints about their poor performance; and that the Hajj quota allocated for current year was allocated some time in May, 2010 and at present no quota is left to be distributed, even if some new HGO is registered on the basis of the criteria laid down in pursuance of Hajj Policy-2011. He has argued that the petitioners have already transferred a sum of Rs,26 billion to Saudi Arabia on behalf of the Hujjaj registered with them and steps for making arrangements of accommodation and other allied matters have almost finalized; and that the Ministry by a reasonable classification allocated quota keeping in view the capacity and performance of the each HGO. Learned counsel has contended that the impugned judgment is nullity in the eyes of law, as the same has been passed in violation of the principle of audi altrem palterm; that the HGOs are supposed to submit the passports of Hujjaj by 17th of July, 2011 and any interference in the process already undertaken by the registered HGOs within the timeframe given to them by the host country will seriously prejudice the interests of the innocent pilgrims; and that the possibility cannot be ruled out that at the end of the day, the pilgrims who were to perform their Hajj through the HGOs will be deprived of their right to the performance of Hajj. He has further contended that the High Court interfered with the policy framed by the Ministry on the basis of guidelines given by the Saudi Government, whereas the High Court cannot interfere with the policy matters in exercise of powers in its writ jurisdiction. He has added that the petitioners are corporate bodies, thus do not come under the definition of "Citizens" as provided in Article 25 of the Constitution and the High Court has committed an error of law while sticking down the policy, framed by the Ministry, being the violative of Article 25 of the Constitution. He further adds that even if there is an allegation of mala fide, a question of fact, on the part of the Ministry, the same can only be decided by recording evidence. In support of his contentions, the learned counsel has relied upon the cases of Asad Khan Mengal and others v. Muhammad Afzal Shouq and others (2010 PLC (C.S.) 532); Federation of Pakistan v. Muhammad Sadiq (PLD 2007 Supreme Court 133);
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Chairman, Joint Administration Committee v. Raza Hassan (1999 SCMR 965); Abdul Sattar Chughtai Malik v. Pakistan Bar Council (PLD 2007 Lahore 170); Delhi Cloth & Gen Mills v. Chief Commr. (AIR 1964 Punjab 492); and Vithal Yeshwant v. Shikandarkhan (AIR 1963 Supreme Court 385). 13. Mr. Ahmar Bilal Soofi, learned Advocate Supreme Court appearing for the petitioners in Civil Petition No, 933 of 2001, has submitted that agreement between the MoRA and the MoH is an international agreement, providing stepwise deadline by which every HGO has to undertake different tasks and if the impugned judgment is not set aside, then it will become impossible for the HGOs to achieve the given target. He has contended that even if the understanding between both the governments/countries is termed as Memorandum of Understanding (MoU), it is to be read as an agreement between two sovereign countries; that the government has to make necessary arrangements for smooth performance of Hajj by the pilgrims; and that keeping in view the large number of Hujjaj, it has been decided that the Government will undertake burden of 50% Hujjaj, whereas the remaining 50% Hujjaj will be performing Hajj through the HGOs. 14. Dr. Babar Awan, learned Senior Advocate Supreme Court for the MoRA, has vehemently argued that in the impugned judgment, some observations have been made by the High Court without any basis, and particularly he has referred to an observation that the respondents (petitioners before us) under the shelter of said instructions after enrolment of their kith and kin have shut the doors for the new entrants just to create monopoly and to avoid creation of atmosphere of healthy competition. He has contended that the only allegation of mala fide made in the petition is to the effect that enrolling and giving quota and allowing to work as HGOs in Hajj-2011 to only those HGOs, which were enrolled with the Ministry in previous years and not allowing any new HGO, no matter whether it is more competitive and better in facilities and performance amounts to discriminate the petitioners illegal, unconstitutional and malafidely. He has further contended that the Ministry has not enrolled any new HGO under Hajj Policy-2011, except the HGOs already enlisted under the orders of this Court; and that 2276 applications of the HGOs in addition to the already enrolled HGOs are in pipeline and the Ministry will take decision thereon immediately after completion of Hajj for the year 2011. He has added that it was not possible to decide all applications in such a short span of time and that it has been decided not to enlist any new HGO for the Hajj 2011, He has also contended that Article 18 of the Constitution is subject to the qualifications in terms of clause (c) thereof which provides that the Federal Government or the Provincial Governments can carry out any trade, business, industry or service, to the exclusion, complete or partial, of other persons. The learned counsel submits that in order to provide services to the pilgrims and to facilitate them, the Government of Pakistan has decided to perform such services through public private partnership to the extent of 50% of the total number of Hujjaj, intended to perform Hajj. He submits that the Hajj Policy-2011 has already been acted upon and respective quota has already been allocated to the enrolled HGOs, looking to their performance some time in May, 2011; that the Hajj Policy-2011 has been framed for future three years and in order to ensure continuity and transparency, ban on new enrolment has been imposed only for Hajj Season-2011 and thereafter, the applications submitted by any Tour Operator for getting it registered as HGO with the Ministry will be processed and decided in a transparent manner, keeping in view the criteria laid down for the purpose. He adds that the Government has no intention to deprive anyone, who otherwise meets the criteria given in the policy. He further adds that the writ jurisdiction of the High Court in policy matters is to be exercised rarely. He has emphasized that the only object kept by the Ministry while framing the policy before it is the welfare of the Hujjaj and for this reason it had not called upon about 2500 HGOs who had applied for enrolment to deposit a sum of Rs,500,000 each through which substantial revenue can be generated. Supporting his contentions, he relies upon Pakcom Limited v. Federation of Pakistan (PLD 2011 Supreme Court 44).
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15. Ch. Aitezaz Ahsan, learned Senior Advocate Supreme Court, representing the petitioners in Civil Petition No,950 of 2011, has argued that the HGOs have been enrolled under the directions of this Court, passed in different petitions; that the policy of getting the HGOs enrolled was introduced some time in the year 2005; and that the duly enrolled HGOs have entered into an agreement with the 3rd parties for providing accommodations at Makkah Mukarramah and Maddina Monawarrah to the Hujjaj and for that a huge sum of money has been transmitted by them to the host country, He has drawn our attention to a judgment of Lahore High Court, Lahore, passed in Writ Petition No,13877 of 2010 titled as "Messrs Al-Hardety Flight Center (Pvt.) Ltd. And 2 others v. Federation of Pakistan and 5 others" to contend that while dealing with the question relating to the Fundamental Rights, enshrined in Article 18 of the Constitution, the High Court has non-suited the respondents on the same grounds, which have been agitated and answered through the judgment impugned herein. He adds that the petitioners have been condemned unheard; that Article 25 of the Constitutiqn is not applicable to a company; that the principle of equality applies only to the equally placed persons and since the respondents are not the enrolled HGOs, therefore, there is no question of violation of the said Article; that most of the jobs had already been completed by the HGOs in terms of the deadline fixed by the Ministry as well as by the Saudi Government, on the basis of quota allocated to them; and that the principle of promissory estoppel fully attracts to the facts and circumstances of the case in hand. He further adds that a considerable amount taken from the prospective pilgrims has been transmitted, which is irreversible and any order passed to upset the acts already undertaken by the HGOs will seriously prejudice to the interests of the Hujjaj, who are not present before this Court. 16. Mr. M. Ikram Chaudhry, learned Senior Advocate Supreme Court, appearing for the petitioners in Civil Petition No,976 of 2011, has contended that the HGOs have been registered on the basis of criteria laid down by the authorities concerned; that the HGOs have been allocated quota keeping in view their capacity and previous performance; that the petitioners have been condemned unheard, as they were not present before the High Court; and that the quota was allocated only to the responsible HGOs much before the judgment passed by the High Court, impugned in the present proceedings. 17. On the other hand, Mr. M. Azhar Siddiqui, learned Advocate Supreme Court for the respondents in Civil Petition No,923 of 2011, has submitted that firstly the quota was allocated to the HGOs at the time of General Zia regime. In response to the objection raised by learned counsel for the petitioners that the petitioners have been condemned unheard, the learned counsel contends that a good number of HGOs have filed applications and, appeared before the High Court, which after providing them proper opportunity of hearing passed the impugned judgment. Further contends that the Ministry, while allocating quota also put the registered HGOs on notice to the effect that the same is subject to the orders passed by the High Court and the petitioners despite having notice of the pendency of the matter before the Court have decided not to surface, therefore, at this stage, they cannot be allowed to question the validity of the well reasoned judgment on this ground. 18. In reply to the contention of petitioners' learned counsel qua…
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