M/S Calicut Hajj Group v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **WP(C).No.15351 of 2019** ## **PETITIONER/S:** **M/S. CALICUT HAJJ GROUP, KARUVANPOYIL P.O., KODUVALLY, KOZHIKODE DISTRICT, REPRESENTED BY ITS PROPRIETOR, MR. MUHAMMED ALI JAUHAR.K.K., AGED 27 YEARS, S/O. USSAIN HAJJI.K.K., KARANTHOOR KANDIYIL P.O., KARUVANPOYIL, KODUVALLY, KOZHIKODE DISTRICT-673572.** **BY ADVS. SRI.M.MUHAMMED SHAFI SMT.T.RASINI SRI.HARIS BEERAN** ## **RESPONDENT/S:** **UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF MINORITY AFFAIRS (HAJJ DIVISION), NEW DELHI - 110 001.** **BY SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.15351 of 2019 2 ## **JUDGMENT** This writ petition is filed by the petitioner, who is engaged in the field of Hajj and Umra services for the past 10 years, seeking to quash Ext.P8 communication dated 25.05.2019 issued by the respondent, whereby the application submitted by the petitioner was found not eligible for registration and allocation of quota for Haj 2019. Brief material facts for the disposal of the writ petition are as follows: 2. M/s. Calicut Hajj Group is a proprietary concern established by late Ussain Hajji, father of Muhammed Ali Jauhar K.K., representing the petitioner firm. Case of the petitioner is that, the proprietary concern was in existence for the last 10 years and has attained a good reputation in the field of Hajj and Umra services, and the proprietary concern is a registered travel agent (Private Tour Operator) since 2009, with the Ministry of Minority Affairs, having registered office at Karuvanpoyil, Kozhikode District. Petitioner firm has been permitted to operate during the Hajj pilgrim season from the year 2009, and continuously sent pilgrims for four years, evident from Ext.P1 certificate of registration. During the Hajj2018, though the petitioner was found eligible, they W.P.(C) No.15351 of 2019 3 were denied their chance in the draw of lots, evident from Ext.P2 copy of the screenshot published in the website. Unfortunately, Mr. Ussain Hajji died due to old age illness on 28.03.2018, evident from Ext.P3 Death certificate. 3. Case of the petitioner is that, the present proprietor has been assisting the deceased proprietor for the last about 7 years, and he was put in charge of the proprietor of the petitioner firm by the family members, evident from Ext.P4 Power of Attorney. Accordingly, the proprietary concern on 20.01.2019 submitted an application for registration and allocation of Hajj quota Hajj Group Owners (hereinafter referred to as HGO), for Haj-2019 through online, evident from Ext.P5. On 03.04.2019, the respondent intimated certain defects in the application and the prominent among them is that, petitioner has not submitted GST registration certificate in the name of the present proprietor as the name of the proprietor in GST registration certificate is shown as 'Karanthoor Kandiyil Ussain' and thus petitioner has not complied with Clause 3 of Annexure-I of HGO Haj Policy for Haj2019, evident from Ext.P6. Thereupon, petitioner submitted a detailed explanation regarding the W.P.(C) No.15351 of 2019 4 objection, evident from Ext.P7. However, the respondent as per Ext.P8 issued an order stating that petitioner has not been found eligible for registration and allocation of quota for Haj-2019. 4. It is the case of the petitioner that the communication submitted by the petitioner and explanations offered has been given a go-by by the respondent and has not appreciated in its true spirit. It was thereupon, petitioner again submitted Ext.P9 representation dated 23.05.2019, seeking to consider the application submitted by the petitioner. Petitioner has also produced travel documents showing the experience of the present proprietor, evident from Ext.P10 dated 24.05.2019. Anyhow, it did not achieve any fruitful results, which persuaded the petitioner to file this writ petition. 5. A detailed statement is filed by the respondent, refuting the allegations and claims and demands raised by the petitioner, and also justifying the stand adopted in Ext.P8 order. Primarily, it is pointed out that, Haj Policy 2019-2023 dated 20.12.2018 produced as Annexure-R1(a) was challenged before the apex court by filing W.P.(C) No.04/2019 titled as ' _Federation of Haj PTOs of India v. Union of India_ ' and W.P.(C) No.15351 of 2019 5 3 other connected writ petitions of Associations of PTOs/HGOs and individuals and the Policy was upheld by the apex court and noted that, only after due examination of the issues raised/suggestions made on the PTO Policy, that the final Policy for HGOs was approved by the Competent Authority in the Ministry and circulated on 20.12.2018. The sum and substance of the contention advanced by the respondent is that, the conditions contained under the Policy were found to be in order by the apex court. 6. It is also pointed out that, deficiencies were pointed out in the application submitted by the petitioner consequent to the discrepancy in the names contained under the registration certificate and other allied vital documents with that of Ussain Hajji, and therefore, the application submitted by the petitioner was found to be defective in all respects. It is further pointed out that, the HGO has not submitted Receipt for hiring of accommodation for pilgrims at Makkah and Madinah duly signed by owner (Owner for Makkah accommodation - Nasir Abdullah Ahmad Ali Khuzai and Owner for Madinah accommodation - Abdullah Asad Hussain Rais for Madinah) for SAR 16,666/- and 25,000/respectively, instead, submitted Receipt issued by W.P.(C) No.15351 of 2019 6 Mohammed Salih Mir Alam (Muttawiff) for SAR 2,67,022/-, a party other than the contracting party (Owner) and for the amount other than contract amount. In response to the observation made, HGO has clarified that an amount of SAR 267022 is transferred to Mohammed Salih Mir Alam who is muttawiff (service provider) towards accommodation in Makkah and Madinah and other related services. 7. It is further stated that, on examination of the reply and documents submitted by the HGO, it was found that the HGO had not provided Receipt for hiring of accommodation for pilgrims at Makkah and Madinah. Likewise, other discrepancies and infirmities were found out, disabling the petitioner for registration. It was thereupon that Ext.P8 is issued. It is also pointed out that, in the vital documents, the name of Ussain Hajji K.K. is remaining and unless and until the defects are rectified, the registration cannot be granted to the petitioner. 8. I have heard learned counsel for the petitioner and the learned ASGI appearing for the respondent and perused the pleadings and the documents on record. W.P.(C) No.15351 of 2019 7 9. The paramount contention advanced by learned counsel for the petitioner is that, consequent to the death of Ussain Hajji K.K., petitioner became the proprietor of M/s. Calicut Hajj Group, which was carrying on Hajj and Umra services for the last ten years without any default and to the utmost satisfaction of the authorities. Therefore, the case projected by the petitioner is that, all the registration and other documents were issued in favour of the proprietary concern and merely because the proprietor is changed, that cannot be made disadvantageous to the petitioner to get registration for the Haj-2019. 10. On the other hand, learned counsel for the respondent pointed out the defects as are stated in the statement filed by the respondent and contended that petitioner's application remains defective and all the documents produced by the petitioner are different than that of the proprietor, and therefore, the rejection of the registration as per Ext.P8 is in accordance with law. 11. Evaluating the situation, I am of the considered opinion that, in Ext.P8 order passed by the authorities, the details are clearly provided as to why W.P.(C) No.15351 of 2019 8 the application submitted by the petitioner cannot be considered. Admittedly, there are vital deficiencies and defects in the application, consequent to the death of the proprietor Ussain Hajji and non-inclusion of the present representative of M/s. Calicut Hajj Group viz., Muhammed Ali Jauhar K.K. It may be true, petitioner who is son of the earlier proprietor has stepped into the business concern of his father, but that is not the issue to be taken into account while considering the application for registration. It is an admitted fact that all the documents required for processing the application for registration and other vital documents are remaining in the name of Ussain Hajji. Therefore, petitioner ought to have taken necessary steps by producing relevant documents to establish that petitioner is the person entitled to succeed to the business conducted by his father, late Ussain Hajji. There is no case for the petitioner that petitioner has undertaken any such exercise, enabling the respondent to process the application for registration for HGO services in accordance with law. 12. In that view of the matter, I am of the considered opinion that, there is no arbitrariness or illegality in Ext.P8 order, justifying interference of W.P.(C) No.15351 of 2019 9 this Court exercising the power of judicial review under Article 226 of the Constitution of India. Anyhow, if the petitioner makes proper application along with necessary documents for establishing that he is presently the proprietor of the petitioner proprietary concern, then I do not think the respondent will not hesitate to consider the said application in accordance with law, at the earliest possible time. The writ petition is disposed of with the aforesaid observation. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/25.06.2019 W.P.(C) No.15351 of 2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF PTO FOR HAJ 2009. EXHIBIT P2 TRUE COPY OF THE SCREENSHOT PUBLISHED IN THE WEBSITE OF THE RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ALONG WITH LEGAL HEIRSHIP CERTIFICATE. EXHIBIT P4 TRUE COPY OF THE POWER OF ATTORNEY. EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 20.1.2019. EXHIBIT P6 TRUE COPY OF THE PRINT OUT OF THE OBJECTIONS DATED 3.4.2019. EXHIBIT P7 TRUE COPY OF THE EXPLANATION SUBMITTED ON 8.4.2019. EXHIBIT P8 TRUE COPY OF THE COMMUNICATION BEARING NO.15/14/2019-HAJ-MOMA DATED 20.5.2019. EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 23.5.2019. EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 24.5.2019. EXHIBIT P11 TRUE COPY OF THE CONDITIONS PRESCRIBED FOR REGISTRATION OF PTO FOR THE YEAR 2018 DATED 9.12.2017. EXHIBIT P12 TRUE COPY OF THE CONDITIONS PRESCRIBED FOR REGISTRATION OF HGO FOR THE YEAR 2019 DATED 20.12.18. RESPONDENTS' ANNEXURES: ANNEXURE-R1(A) TRUE COPY OF THE HAJ POLICY 2019-2023 DATED 20.12.2018. ANNEXURE-R1(B) TRUE COPY OF SUPREME COURT OF INDIA JUDGMENT DATED 04.02.2019 IN W.P.(C) NO.4 OF 2019 IN THE MATTER OF FEDERATION OF HAJ PTOS OF INDIA VS. UOI.** **//TRUE COPY// P.S. TO JUDGE** **St/-** W.P.(C) No.15351 of 2019 11