Delhi High Court stays the suspension of Haj Group Organizers and allows Haj Pilgrims to travel to Saudi Arabia

Delhi High Court stays the suspension of Haj Group Organizers and allows Haj Pilgrims to travel to Saudi Arabia

The Hon’ble Delhi High Court recently passed an interim order staying the comments by respondent by which they suspended the Registration Certificate and Quota of Haj Group Organiser (HGO) allocated to petitioner’s travel agency, by holding therein pilgrims right to go to Haj under Article 25 of Constitution of India.

BRIEF FACTS OF THE CASE

The petitioner submitted/uploaded the application for registration and allocation of Quota for Haj- 2023 on the E-Haj portal of the respondent. The respondent declared the list of eligible and ineligible HGOs for Haj-2023 on its website on 5th May 2023. The petitioner was placed in the said list of eligible/qualified HGOs. The respondent, accordingly, sent the respective Registration Certificate to the petitioner and also allocated respective Haj Quota seats to the petitioners.

The respondent on 25th May 2023 issued the consolidated list of allocation of Haj Quota for Haj-2023 and published a comment against the name of the petitioners, which read as “Registration Certificate & Quota Kept in abeyance till finalization of proceedings in complaint related matter” Subsequently, vide email dated 26th May, 2023 the respondent sent a “Show Cause Notice” in relation to a complaint against the petitioner and asked the petitioner to reply to the same within 3 days on the ground of the alleged defaults committed by the petitioner. The petitioner sent his reply to show cause notice.

CONTENTION OF PETITIONER

Learned counsel appearing on behalf of petitioner submitted that the action of the respondent of withholding of Registration Certificate and allocation of Haj quota post the scrutiny of the petitioner‟s application and declaration of petitioner as eligible HGO, when the petitioner has already taken booking from the Pilgrims and the pilgrims have paid in advance for the same, is completely arbitrary and in blatant violation of the fundamental rights of the petitioner, as well as the rights of the pilgrims, as enshrined under Articles 14,19 & 21 of the Constitution of India.

Learned counsel further submitted that the action of the respondent is extremely detrimental to the interest of Pilgrims who have booked seats with petitioner for Haj- 2023. It is stated that if the Registration Certificate and quota of the petitioners are not restored then the once-in-a-lifetime opportunity to undertake Haj for the Pilgrims booked will be ruined and they may not be able to go for Haj this year, as almost all seats are booked for Haj-2023.

CONTENTION OF THE STATE

Per contra, learned senior panel counsel for the respondent vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that in the case of the petitioners/HGOs, their respective registration has been ordered to be kept in abeyance due to their wilful misrepresentation and misreporting of facts to the Ministry, based on which they were registered as HGOs in the first place. It is submitted that the Ministry shall have the right to suspend/cancel the registration in case of non-compliance of any of the terms and conditions.

HON’BLE COURT OBSERVATIONS

Hon’ble Mr. Justice Chandra Dhari Singh after perusing the records, hearing the parties observed and going through Haj Policy 2023 observed that “registration of the HGOs is an absolute right rather than a privileged right that is bestowed upon the concerned HGO based on the fulfilment of certain conditions as laid out under the Policy. Therefore, the offer made by the HGOs to the pilgrims is subject to certain pre-conditions for the grant of registration and is amenable to the fulfilment of the requisite conditions, the non-compliance of which empowers the Ministry to suspend/cancel the registration as well as for blacklisting the company.”

Hon’ble court further while explaining the importance of Haj for pilgrims observed that :-

“21. Upon having considered the arguments and contentions of the parties, this Court is of the prima facie opinion that although restrictions and conditions to the issuance of the Registration Certificate as well as to the Quota allotted to the petitioners/HGOs may be imposed, the same should not be held against the pilgrims who, in good faith, registered with the petitioners/HGOs to undertake the pilgrimage. This Court is of the view that such an action would defeat the purpose of the current Haj Policy and is in derogation of Article 25 of the Constitution of India. Article 25 of the Constitution of India guarantees the freedom of conscience and the freedom to profess, practice and propagate religion to all citizens. Haj Pilgrimage and the ceremonies involved therein fall within the ambit of a religious practice, which is protected by the Constitution of India. Religious freedoms are one of the most cherished rights guaranteed and enshrined under the Constitution in line with the vision of the founding fathers of the Modern Indian Republic” (emphasis added)

The Hon’ble court also placed reliance on Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1

Further, his lordship placed reliance on Aishat Shifa v. State of Karnataka (SLP (Civil) No. 5236/2022) wherein the apex court have explained 5 duties for a Muslim according to Holy Quran which is reproduced below :-

“Still further, five duties have been laid down for the Muslims by the Prophet, the same are reproduced as under: “(i) Kalma :- It is the duty of every Muslim to recite kalma. Kalma implies certain Hymns proclaiming the unity of God accepting Mohammed as the Prophet. (ii) Namaz :- Every Muslim must say prayers (Namaz) five times a day and on every Friday he must offer his afternoon prayer at the Mosque. (iii) Zakat :- It is the duty of every Muslim to offer Zakat or charity to the poor and needy. (iv) Ramzan :- The most pious duty of every Muslim is to observe fasts in the holy month of „Ramzan‟. (v) Haj :- Every Muslim, should go for Haj or pilgrimage to Mecca at least once in his lifetime.”

The Hon’ble court before staying the comments published in consolidated list and allowing the respondents to proceed with the investigation against the petitioner observed that :-

“25. In the present petition, the Court is at this stage is primarily concerned with the pilgrims who intend to travel on Haj Pilgrimage and have paid in advance to the petitioners for the same. Travelling to Haj is not merely a holiday but is a medium of practicing their religion and faith which is a fundamental right. This Court being the protector of the right of the pilgrims shall take the necessary steps in this regard.

26. ……………. X
27. The respondents shall ensure that the pilgrims who have been affected by the defaults on the part of the petitioner, do not suffer and are able to undertake the Haj Pilgrimage without any obstruction.”

Case Title :- Benzy Tour and Travels Pvt. Ltd. Vs. Union of India

Case no. :- W.P. (C) no. 6265/2023

Order date :- 07.06.2023