The principles of damages in public law have to, however, satisfy certain tests. In Nilabati Behera v. State of Orissa5 , it was observed that public law proceedings serve a different purpose than private law proceedings. In that context, it was observed as under: “The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting ‘compensation’ in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.631 OF 2016

UNITED AIR TRAVEL SERVICES

Through ITS PROPRIETOR

A.D.M. ANWAR KHAN ….PETITIONER

Versus

UNION OF INDIA

Through SECRETARY

(MINISTRY OF EXTERNAL AFFAIRS) ….RESPONDENT

WITH

Writ Petition (Civil) No.636 of /2016

Writ Petition (Civil) No. 634 of 2016

Writ Petition (Civil) No. 934 of 2016

Writ Petition (Civil) No. 941 of 2016

Writ Petition (Civil) No. 938 of 2016

Writ Petition (Civil) No. 11 of 2017

Writ Petition (Civil) No. 94 of 2017

1

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. A batch of writ petitions raises the issue of Private Tour

Operators (for short ‘PTOs’) who are, inter alia conducting the travel

business for Hajj and Umrah being disqualified for grant of

registration for the year 2016 for the Hajj pilgrimage. The prayer is for

quashing the identical communications dated 27.7.2016 issued by the

respondent rejecting the application of the petitioners for registration

and allocation of quota for the Hajj 2016 on the ground that they have

not complied with certain clauses of the policy for the PTOs as laid

down by this Court.

2. The issue relating to the Hajj policy and the registration of these

PTOs has resulted in two judicial pronouncements by this Court in

Union of India v. Rafique Shaikh Bhikan1

and Al Ismail Haj Tour v.

Union of India2

. The policy presented on behalf of the Government

was approved by this Court with slight modifications and was annexed

as Appendix-I to the order in Union of India v. Rafique Shaikh

1(2013) 4 SCC 699

2(2016) 15 SCC 246

2

Bhikan3

case referred to aforesaid to be called as ‘Policy for Private

Tour Operators for hajj 2013 – 2017’. The policy was to remain valid

for a period of five years and was not to be questioned in any court or

authority. The petitioners were all eligible to be qualified as PTOs for

the year 2015 for Hajj pilgrimage but in the process of draw of lots

dated 7.8.2015, luck did not favour them and they thus did not get

quota. The relevant extract of the policy is as under:

“Appendix I

Ministry of External Affairs

(Gulf and Haj Division)

***

Registration of Private Tour Operators — Haj 2013

The Government of Saudi Arabia has notified that Private Tour

Operators (PTOs) registered with the Government of India and

involved in the preparation of the Haj Pilgrimage will be eligible

for grant of Haj group visas subject to fulfilment of other terms

and conditions as laid down by the Saudi Authorities.

2. Applications are invited from eligible PTOs for registration

for Haj 2013. The eligibility criteria are at Annexures A and B.

The applications must be submitted in the prescribed format

(Annexure C) directly to MEA or any other agency appointed by

it.

3(supra)

3

3. It is to be noted that the Government of Saudi Arabia has

stipulated that effective Haj 2013, a PTO should facilitate at

least 150 pilgrims. Accordingly, the PTO Policy has been

reframed. For registration and allotment of quota of Haj seats for

Haj 2013, interested PTOs may apply under the following two

categories:

Category I PTOs registered with MEA and facilitated Hajis

at least for 7 Haj operations or more.

Category II PTOs registered with MEA and facilitated Hajis

for at least for 1 to 6 Haj operations and PTOs

which have facilitated at least 50 umrah pilgrims

in a year for any five years.

4. 70% of the overall quota of seats will be allocated to eligible

PTOs under Category 3(I) and 30% to eligible PTOs under

Category 3(II). Distribution of seats among qualified PTOs will

be done as follows:

(a) 70% of the Haj 2013 PTO seats (31,500) will be allocated to

eligible PTOs under Category 3(I) at the rate of 150 seats per

PTO. In case the number of PTOs exceeds 210, the allocation of

seats will be done on draw of lots. If the number of qualified

PTOs is less than 210, each PTO will be allocated 150 seats and

surplus seats, if any, will be distributed equally among them.

(b) 30% of Haj 2013 PTO seats (9000) will be allocated to

eligible PTOs under Category 3(II) at the rate of 150 seats per

qualified PTO. If the number of qualified PTOs exceeds 90, the

allocation of seats will be done by draw of lots. In case the

number of PTOs is less than 90, each PTO will be allocated 150

seats. Balance seats, if any, will be transferred to Category I and

distributed equally among them. A qualified PTO which fails to

get selected under the draw of lots in any year will be allocated

150 seats in the ensuing year without qurrah if it remains a

qualified PTO.

4

5. This Policy is expected to remain valid for five years 2013-

2017 unless there are substantive developments which affect it.

The allocation of seats to qualified PTOs in each category will

be done every year on the basis of the overall quota of PTO seats

specified in the Annual India-Saudi Arabia Haj Agreement and

the number of qualified PTOs remaining in each category. The

policy envisages cross-category upward movement of PTOs

from Category II to Category I. A qualified PTO shall remain

qualified unless it is otherwise disqualified either by the

Government of India or by the Government of Saudi Arabia for

valid reasons. It is to be noted that the PTOs who do not wish to

take a minimum of 150 Hajis or are unable to do so, need not

apply.

6. Last date for receipt of applications which should be

addressed to the MEA or any other agency appointed by it.

(emphasis supplied)

3. In terms of the aforesaid policy since the qualified PTOs

exceeded 90, a draw of lots was held. Further, since the petitioners

were not successful in the draw of lots, they were entitled, under clause

4(b) of the policy aforesaid, to be allocated 150 seats in the ensuing

year without Qurrah if they remain qualified as PTOs. We may note at

this stage that as per the submissions advanced, in view of certain

changes in the policy of the Saudi Government, the number of seats to

be allocated for 2016 would have been 50.

4. It is also apparent from the Press Release of 7.8.2015 giving the

5

list of PTOs who have qualified but did not get quota, that the

petitioners figured in the said list.

5. On 29.4.2016, the Ministry of External Affairs published the

norms for registration of PTOs for Hajj 2016. Para 3 of this reads as

under:

“3. All the terms and conditions laid down in Annexure A & B

will also apply on PTOs that qualify under Category-II by virtue

of facilitating a minimum of 50 Umrah pilgrims in a year for any

5 years, but with the exception of the terms and conditions

contained under Clause (vii), (x), (xi) and (xii) of Annexure A.

In addition, these PTOs are also required to submit the proof of

payment made through banking or any other authorised channels

towards purchase of tickets and hiring of accommodation in

Makkah and Madinah in respect of Umrah pilgrims facilitated

by them in support of their claim.”

6. The aforesaid, thus, provided that persons like the petitioners

who had qualified for the year 2015 but were not successful in the

draw of lots would have the benefit of exemption of terms and

conditions contained in clauses (vii), (x), (xi) and (xii) of Annexure A.

7. For purposes of completion of record, we enumerate

hereinbelow the said clauses of Annexure A:

“ANNEXURE-A

Terms and Conditions for Registration of

Private Tour Operators (PTOs) for Haj-2016

6

Each PTO should establish that it is a genuine and established

Tour Operator having experience in sending tourists/pilgrims

abroad for which it should produce the following documents:

Sl. No. Terms and Conditions

vii Proof of payment made through banking (Bank

Statement) or other authorized channels towards

purchase of tickets and hiring of accommodation in

Makkah/Madinah for the financial year 2013-14

(Haj2013) or 2014-15 (Haj 2014). Payments towards

purchase of tickets, hiring of accommodation for

pilgrims in Makkah/Madinah, by any other means,

would not be accepted.

x Copies of Registration Certificate issued to the PTO

in support their aim-wise and PTO-wise.

xi Contract for hiring of buildings for pilgrims and

“Tasreeh” together with English translations PTO

category wise. (Please enclose rental receipts and a

copy of lease deed, duly signed with the Saudi owners

for Haj.

xii Copy of Munazzim Card and relevant Haj visa pages

of the Passport of the Proprietor/Owner.

8. The petitioners, however, faced identical rejection letters of

26.7.2016 (sent through e-mail dated 27.7.2016), the contents of which

are as under:

“Subject: Intimation regarding non-allocation of quota to Private

Tour Operators (PTOs) for Haj-2016.

Dear Sirs,

This has reference to your application regarding registration for

Haj 2016.

7

2. On scrutiny of your application submitted for Haj-2016, your

firm has not been found eligible for registration and allocation of

quota for Haj 2016 on the following grounds:

PTO has not complied with clause vii, x, xi and xii of Annexure

A of PTO.

Policy as laid down by Hon’ble Supreme Court for any one of

the Haj year.

3. Your ineligibility for registration and allocation of quota for

Haj 2016, however, does not prejudice your right to debar you

from applying for registration for Haj 2017 on the basis of the

required conditions for Haj 2017.”

9. A bare perusal of the aforesaid letter would show that the reason

cited for disqualification was non-compliance of the very clauses of

which exemption had been granted to the petitioners.

10. Learned Additional Solicitor General appearing for the

respondents could not dispute the aforesaid position but sought to

canvas that the reasons were wrongly communicated in the rejection

letter, and there was actually, some other reason for the rejection. The

aforesaid plea can hardly be countenanced in view of the reasons

referred to and communicated.

11. Learned counsel for the petitioner has, thus, rightly drawn our

attention to the Constitution Bench judgment of this Court in

8

Mohinder Singh Gill v. Anr. v. The Chief Election Commissioner,

New Delhi & Ors.4

to submit that such a plea cannot be accepted. We

may note that this is a well settled legal position in many judicial

pronouncements of this Court, but it is not necessary to revert to the

same. In para 8 of the aforesaid judgment, V.R. Krishna Iyer, J, in his

inimitable style states as under:

“8. The second equally relevant matter is that when a statutory

functionary makes an order based on certain grounds, its validity

must be judged by the reasons so mentioned and cannot be

supplemented by fresh reasons in the shape of affidavit or

otherwise. Otherwise, an order bad inthe beginning may, by the

time it comes to Court on account of a challenge, get validated

by additional grounds later brought out. We may here draw

attention to the observations of Bose, J. in Gordhandas Bhanji:

“Public orders, publicly made, in exercise of a statutory

authority cannot be construed in the light of explanations

subsequently given by the officer making the order of

what he meant, or of what was in his mind, or what he

intended to do. Public orders made by public authorities

are meant to have public effect and are intended to affect

the actings and conduct of those to whom they are

addressed and must be construed objectively with

reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow

older.”

12. The aforesaid legal position, thus, makes the stand of the

4(1978) 1 SCC 405

9

respondent unsustainable, resulting in the quashing of the impugned

letters of rejection.

13. The question, however, rises what relief can be granted in such a

situation. The passage of time has made certain reliefs infructuous.

The time period for conducting Hajj tours for 2016 as well as 2017 is

over. Thus, even the alternative relief prayed for 2017 has become

infructuous. In three of the writ petitions, i.e., WP (C) Nos.631/2016;

634/2016 & 636/2016, there is a specific alternative plea for

compensation to the petitioners for the loss accrued due to non-grant of

registration for the Hajj of 2016. While there is no such specific plea

in the other writ petitions, given the identical situation, we are of the

view that the same principle ought to be applied in all these cases. The

petitioners cannot be left remediless. The mindless action of the

respondents in rejecting the eligibility of the petitioners for the year

2016 on the very grounds on which they were exempted necessitates

that the petitioners should be entitled to damages in public law so that

they are compensated, at least, to some extent for not having been able

to carry on with their business on account of illegal action of the

respondents.

10

14. The principles of damages in public law have to, however,

satisfy certain tests. In Nilabati Behera v. State of Orissa5

, it was

observed that public law proceedings serve a different purpose than

private law proceedings. In that context, it was observed as under:

“The purpose of public law is not only to civilize public power

but also to assure the citizen that they live under a legal system

which aims to protect their interests and preserve their rights.

Therefore, when the court molds the relief by granting

‘compensation’ in proceedings under Articles 32 or 226 of the

Constitution seeking enforcement or protection of fundamental

rights, it does so under the public law by way of penalising the

wrongdoer and fixing the liability for the public wrong on the

State which has failed in its public duty to protect the

fundamental rights of the citizen. The payment of compensation

in such cases is not to be understood, as it is generally

understood in a civil action for damages under the private law

but in the broader sense of providing relief by an order of

making ‘monetary amends’ under the public law for the wrong

done due to breach of public duty, of not protecting the

fundamental rights of the citizen. The compensation is in the

nature of ‘exemplary damages’ awarded against the wrong doer

for the breach of its public law duty and is independent of the

rights available to the aggrieved party to claim compensation

under the private law in an action based on tort, through a suit

instituted in a court of competent jurisdiction or/and prosecute

the offender under the penal law.”

It was also emphasized that it is a sound policy to punish the

wrongdoer and it is in that spirit that the courts have molded the relief

5 (1993) 2 SCC 746

11

by granting compensation in exercise of writ jurisdiction. The

objective is to ensure that public bodies or officials do not act

unlawfully. Since the issue is one of enforcement of public duties, the

remedy would be available under public law notwithstanding that

damages are claimed in those proceedings.

15. The aforesaid aspect was, once again, emphasized in Common

Cause, a Registered Society v. Union of India6

. We may also usefully

refer to N. Nagendra Rao & Co. v. State of A.P.7

qua the proposition

that the determination of vicarious liability of the State being linked

with the negligence of its officer is nothing new if they can be sued

personally for which there is no dearth of authority.

16. In the facts of the present case, the arbitrariness and illegality of

the action of the authority is writ large. The petitioners have been

deprived of their right to secure the quota on a patently wrongful order

passed for reasons, which did not apply to them and for conditions,

which had been specifically exempted. What could be a greater

arbitrariness and illegality? Where there is such patent arbitrariness

and illegality, there is consequent violation of the principles enshrined

6 (1999) 6 SCC 667

7 (1994) 6 SCC 205

12

under Article 14 of the Constitution of India. The facts of the present

case are, thus, undoubtedly giving rise to the satisfaction of parameters

as a fit case for grant of compensation.

17. On a conspectus of the aforesaid facts including the number of

pilgrims for whom the petitioners would have been entitled to arrange

the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be

adequate compensation for the loss suffered by them and sub-serve the

ends of justice. We are conscious of the fact that there is no

quantification based on actual loss, but then the award by us is in the

nature of damages in public law.

18. The amount for each of the petitioners be remitted by the

respondents within two months from the date of this order failing

which the amount would carry interest @ 15 per cent per annum apart

from any other remedy available to the petitioners. It will be open to

the respondents to recover the amount of damages and costs from the

delinquent officers responsible for passing such unsustainable orders.

13

19. The writ petitions are allowed in the aforesaid terms with costs

quantified at Rs.10,000 per petition.

..….….…………………….J.

[J. Chelameswar]

………………………………J.

[Sanjay Kishan Kaul]

New Delhi.

May 07, 2018.

14