Stereo. H C J D A 38. Judgment Sheet IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT W.P.No.13332 of 2014 JUDGMENT M/S Alzair Travel & Tours etc. VERSUS Federation of Pakistan etc. Date of hearing: 14.07.2014, 11.07.2014, 07.07.2014, 04.07.2014, 30.06.2014, 27.06.2014, 26.06.2014. Petitioner by: M/S Muhammad Azhar Siddique, S.S. Paracaha, M. Irfan, Muneer Ahmad and Shabbir Ismail, Advocates. Respondent by: M/S Muhammad Javed Kasuri and Nasar Ahmad, Deputy Attorney Generals for Pakistan. M/S Muzamil Akhtar Shabir and Muqtedir Akhtar Shabir, Advocates for Competition Commission of Pakistan. M/S Aitezaz Ahsan and Farhan Shahzad, Advocates for HOAP. Saeed Ahmad Malik, Director Hajj, Lahore in person. ----------------------------------- Muhammad Khalid Mehmood Khan, J. The petitioners are the private limited companies registered under the Companies Ordinance, 1984 and are engaged in the business of Hajj/Umra as tour operators. All the petitioners are registered with the respondent No.2 as well. 2. In the earlier round of litigation, the matter was finally decided by the Hon’ble Supreme Court of Pakistan in the case of Dossani Travels Pvt. Ltd. and others versus Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 Supreme Court 1). The Hon’ble Supreme Court of Pakistan while setting-aside the judgment of this Court has held that it is not the function of the High Court to exercise W.P.No.13332 of 2014 2 jurisdiction under Article 199 of the Constitution for interfering in the policy making domain of the Executive, the High Court is bound to follow the principle of trichotomy of powers being foundational principle of the Constitution of Islamic Republic of Pakistan, 1973. The Hon’ble Supreme Court of Pakistan however opined that the High Court under Article 199 of the Constitution can annul an order or a policy framed by the Executive, if it is violative of the Constitution, law or is product of mala fides. The Hon’ble Supreme Court of Pakistan further directed the Ministry of Religious Affairs, Government of Pakistan as under:(i) (ii) (iii) (iv) (v) 3. The Hajj Policy should be framed, announced and placed on the website of MORA preferably within six weeks of the arrival of last flight of Hajis from KSA under intimation to the Registrar of this Court. This of course would be subject to any policy decision of the Saudi Government regarding allocation of Hajj quota for Pakistan; The Hajj Policy should be framed by a Committee headed by the Secretary, Ministry of Religious Affairs (MORA); a nominee of the Competition Commission of Pakistan; a nominee of the Secretary, Ministry of Foreign Affairs, Government of Pakistan; a nominee of the Secretary Ministry of Law and Justice Division and Parliamentary Affairs; and a nominee of the Attorney General for Pakistan; The credentials of each applicant/HGO should be examined and decision taken on merit; While framed the Hajj Policy, the MORA should be guided, inter alia, by the recommendations made by the Competition Commission of Pakistan to which reference has been made in Para 8 above; and The MORA should constantly monitor the working and performance of each HGO during Hajj and this assessment should form basis for further improvements in Hajj Policy for next year’s Hajj”. The petitioners’ grievance is that respondent No.2 while preparing the Hajj Policy-2014 violated the guidelines settled by the Hon’ble Supreme Court of Pakistan and has allotted quota of 15,000 pilgrims to HGOs who allegedly were functional in Hajj-2013. Learned counsel submits that the petitioners are also engaged in the W.P.No.13332 of 2014 3 business which the members of HGOs are doing and as such the exclusion of the petitioners from the allotment of Hajj quota alone is sufficient to establish the mala fide of respondent-government. Learned counsel submits that the respondents have failed to up-load the draft Hajj Policy-2014 as ordered by the Hon’ble Supreme Court of Pakistan and on the petitioners’ repeated requests and letters draft Hajj Policy was uploaded on 03.02.2014 on website. The petitioners filed objections against the draft policy; the respondents on 28.05.2014 without deciding the petitioners’ objections finalized the Hajj Policy, 2014 whereby the petitioners were excluded from the allotment of Hajj quota for the year 2014. Further the Government has surrendered 15,000 pilgrims quota from its quota in favour of Hajj Organizers Association of Pakistan (HOAP) who were allegedly functioning in 2013. Learned counsel submits that Hajj quota of 910 pilgrims was allotted to 19 newly enrolled companies without ascertaining their entitlement on merit on the lame excuse that it was the order of the Hon’ble Supreme Court of Pakistan. Learned counsel thus prayed that:“(i) (ii) (iii) the allocation of 50 % Hajj Quota and 15,000 under the name of Memorandum of Understanding again to existing HGOs, already registered AND also the distribution of Hajj Quota in the ratio of 50 % by the MoRA for Government Hajj Scheme, consequently 100 % Hajj Quota be allotted to qualified HGOs, whether existing of new entrants, for collection/charging of 50 % Hajj Quota at Government Rates and the rest at the rates decided by the HGOs on the directions of the MoRA; its application for the purpose of allocation of quota to all selected HGO (s), as set out in Hajj Policy-2014; the criteria laid down for the purpose of allocation of Hajj Quota to the existing HGO (s) without fulfilling the conditions as set-out in Paragraph (s) 19 read 21 of the Hajj Policy, 2012 and the deletion of the subject conditions in Hajj Policy2014 including but not limited to exclusion of tax defaulters, bank defaulters and management dispute, etc., etc.,”. W.P.No.13332 of 2014 4. 4 Notices were issued to respondents; respondents Nos.1 to 6 & 8 filed reply and opposed the petitioners and stated that Hajj Policy2014 was placed before the Prime Minister of Pakistan on 01.04.2014 and the Prime Minister of Pakistan on 08.04.2014 approved the Hajj Policy-2014; the Hajj Policy-2014 is based on agreement between the Government of Pakistan and Kingdom of Saudi Arabia; two governments entered into an agreement whereby it was agreed that after deduction of 20 % of the allotted quota to Government of Pakistan in 2014 the Government of Pakistan can send 1,43,368 total pilgrims, out of which 57348 will be sent by the Government of Pakistan through its own resources and 86020 will be sent through private tour operators and 1790 will be the administrative and medical staff. The quota of 15,000 pilgrims is allotted to private tour operators on the basis of Memorandum of Understanding dated 04.07.2013 entered into between the Ministry of Religious Affairs and Hajj Organizers Association of Pakistan (HOAP) and witnessth by the four Federal Ministers; as no additional quota was available to the respondent-government, that is the reason the petitioners were not invited for the allotment of pilgrims quota for the year 2014; HOAP filed application under Order 1 Rule 10 CPC bearing C.M.No.1503/2014 praying that they are necessary and proper party being the beneficiary of the disputed quota of 15,000 pilgrims. The petitioners have not seriously opposed the acceptance of said application. The Hajj Organizers Association of Pakistan (HOAP) is the beneficiary of disputed quota, hence, any order passed may effect them, thus, they are necessary and proper party to the petition and as such C.M.No.1503/20-14 is allowed and HOAP are impleaded as party to the petition as respondent No.18. 5. Learned counsel for respondent No.18 (HOAP) argued that the petitioners’ credentials have already been scrutinized in earlier litigation by MORA; this Court has no jurisdiction to entertain the constitutional petition; the respondent-government borrowed 15,000 pilgrims in 2013 from HOAP and to compensate the members of respondent No.18 the MOU was entered into between the Ministry of W.P.No.13332 of 2014 5 Religious Affairs as well as HOAP; the said MOU was duly executed by four Federal Ministers; as per MOU, the respondent-government was bound to allocate 15,000 pilgrims out of its 50 % quota to HOAP as per the MOU dated 04.07.2013, Hajj Policy-2014 as well as the agreement dated 20.01.2014 between two governments is based on MOU dated 04.07.2013. Learned counsel submits that the petition is without any substance and is liable to be dismissed. 6. Learned Deputy Attorney General for Pakistan have adopted the arguments of learned counsel for respondent No.18 and submitted that in the year 2013, the respondent-government booked 15,000 pilgrims more than its allocated quota of 50 % and to save the pilgrims from any disturbance, the respondent-government decided to offer 15,000 pilgrims quota to private tour operators to HOAP in the Hajj of 2014; the agreement between government of Pakistan and Kingdom of Saudi Arabia thus clearly finds mentioned that in the year 2014 the total quota allocated to Government of Pakistan is 1,79,210 Hajis and after the deduction of 20 % due to expansion of Haram Sharif in 1435 Hijri the total allocated quota was reduced to 1,43,368, out of which the Government of Pakistan will send 57348 Hajjis whereas the private tour operators will arrange for 86020 Hajis. Learned DAGs thus submit that the Hajj Policy-2014 is based on the agreement between the government of Pakistan and Kingdom of Saudi Arabia, the MOU dated 04.07.2013 between MORA and HOAP. 7. Heard. Record perused. 8. The first argument of learned counsel for the petitioners is that the Hon’ble Supreme Court of Pakistan directed the respondentgovernment that Hajj Policy be framed well in time in such a manner which is fair, just, inspires confidence and evokes minimum criticism. It is also imperative that the Hajj Policy for the next year should be announced at the earliest after the conclusion of Hajj and the Hajj Policy should be framed, announced and placed on the website of MORA preferably within six weeks from the arrival of last flight of Hajis from KSA. The draft policy when was uploaded although not as W.P.No.13332 of 2014 6 directed by the Hon’ble Supreme Court of Pakistan, the petitioners filed objections against the said policy; the respondents without deciding the petitioners’ objections finalized the Hajj Policy-2014, hence, on 07.07.2014 Ministry of Religious Affairs (MORA) was directed to decide the petitioners’ objections within three days. Respondent No.2 on the direction of this Court decided the petitioners’ objection repeating the same grounds which the learned DAGs have argued before this Court. 9. It is an admitted fact that every year Hajj tour operators initiate litigation against the respondents on one ground or the other. The Hon’ble Supreme Court of Pakistan finally settled the guidelines for framing Hajj Policy vide judgment Dossani Travels (supra). The guidelines settled by the Hon’ble Supreme Court of Pakistan for framing Hajj Policy to the respondent-government are as under:(i) (ii) (iii) (iv) (v) The Hajj Policy should be framed, announced and placed on the website of MORA preferably within six weeks of the arrival of last flight of Hajis from KSA under intimation to the Registrar of this Court. This of course would be subject to any policy decision of the Saudi Government regarding allocation of Hajj quota for Pakistan; The Hajj Policy should be framed by a Committee headed by the Secretary, Ministry of Religious Affairs (MORA); a nominee of the Competition Commission of Pakistan; a nominee of the Secretary, Ministry of Foreign Affairs, Government of Pakistan; a nominee of the Secretary Ministry of Law and Justice Division and Parliamentary Affairs; and a nominee of the Attorney General for Pakistan; The credentials of each applicant/HGO should be examined and decision taken on merit; While framed the Hajj Policy, the MORA should be guided, inter alia, by the recommendations made by the Competition Commission of Pakistan to which reference has been made in Para 8 above; and The MORA should constantly monitor the working and performance of each HGO during Hajj and this assessment should form basis for further improvements in Hajj Policy for next year’s Hajj”. W.P.No.13332 of 2014 7 10. The Hon’ble Supreme Court of Pakistan has specifically held that the High Court is not enjoying the jurisdiction to interfere in the policy matters of the Executive as it is against the principle of trichotomy of powers, the foundational principle of the Constitution of Islamic Republic of Pakistan. However, the High Court in its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan can annul an “order” or a “Policy” framed by the Executive, if it is violative of the “Constitution”, “law” or is “product of mala fides”. 11. The Hon’ble Supreme Court of Pakistan decided the parameters of mala fide as under:“It was at that stage that the respondent writ petitioners challenged the Hajj Policy, inter alia, on the ground that the same was discriminatory and based on mala fide. However, neither in the entire body of the constitution petition filed before the learned High Court nor in the arguments addressed before this Court, any specific incidence of mala fide was pointed out;, there was no allegation that appellants were given quota on account of any connection with some individual of political influence or any official in the MORA; or that any individual in the said Ministry had allotted the quota for personal gain. Mala fide is a question of fact and has to be specific and not vague in absence of which an order passed or policy framed by the competent authority cannot be annulled on this ground alone. In Dr. Akhtar Hassan Khan v. Federation of Pakistan (2012 SCMR 455), dilating on mala fide as a ground for judicial review, this Court at page 486 held as follows:-"The allegations of mala fides and of the impugned exercise being collusive are questions of fact requiring factual inquiry. It is by now a well established principle of judicial review of administrative action that in absence of some unrebutable material on record qua mala fides, the Court would not 'annul the order of Executive Authority which otherwise does not reflect any illegality or jurisdictional defect. In Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 15.1), this Court was called upon to dilate upon the mala fides as a ground for exercise of power of judicial review of administrative action and the Court observed as follows: "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the' action cannot be challenged merely upon a vague W.P.No.13332 of 2014 8 allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of malr fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. "Mala fides" literally means "in bad faith ". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. " 12. For deciding the present issue, this Court has to see whether the Hajj Policy-2014 is violative of the Constitution, law or is product of mala fides and if it is established that the Policy is in violation of the Constitution, law or is mala fide, this Court can interfere in the matter in its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. 13. The argument of learned DAGs as well as learned counsel for respondent No.18 is that on 04.07.2013 the Ministry of Religious Affairs (MORA) and Hajj Organizers Association of Pakistan (HOAP) entered into the Memorandum of Understanding in the year 2013; as the Kingdom of Saudi Arabia suddenly reduced 20 % Hajj Quota due to expansion of Harm Sharif, but the Government of Pakistan before the reduction of quota has made arrangements for Hajj more than the reduced quota, in the year 2013, the allocated quota of pilgrims was 50-50 between government of Pakistan and HOAP. As per the reduction formula of KSA 10 % quota of both the parties was to be reduced but due to unavoidable circumstances the Government utilized the quota more than its entitlement. To avoid any disturbance to Hajjis, the Government of Pakistan entered into Memorandum of Understanding with HOAP assuring them that in the year 2014 the Government will reduce their quota of 15,000 pilgrims for the year 2014 and will allow HOAP to book these 15,000 pilgrims in addition to its approved quota. 14. The perusal of Memorandum of Understanding did not support the argument of learned counsel for the respondents. It is nowhere W.P.No.13332 of 2014 9 mentioned that this MOU is being entered into between the parties due to the reason that the Government of Pakistan has booked Hajjis more than their allocated quota. It starts with the following words:“whereas both the parties have mutually agreed and resolved” 15. Learned DAGs have pointed out clause-d of MOU which is read as under:“The change in the quota necessitated by the extraordinary circumstances shall be without prejudice to the original quota of Hajj Organizers in 2013 before announcement of reduction or revision”. The clause referred did not give impression or establish that the Memorandum of Understanding was entered due to the fact that the Government of Pakistan borrowed 15,000 pilgrims quota from HOAP. Further, the agreement between the Government of Pakistan and Kingdom of Saudi Arabia also not finds mentioned this fact. The agreement with KSA shows that the Government of Pakistan agreed to send 57348 pilgrims through its resources and 86020 through private tour operators, out of the allocated quota of 143368 pilgrims. Hajj Policy-2014 also did not find mentioned the mutual understanding of MORA and HOAP. It is nowhere mentioned in the agreement between two Governments that Government of Pakistan entered into an understanding with HOAP and as such the KSA is enhancing the quota of HOAP, if the respondent-government was itself agreed with KSA for reduction of its quota and enhancement of quota of HOAP. Under heading 7 of Hajj Scheme 2014 the policy provides as under:(I) (II) As a policy, there shall be NO free Hajj. For Hajj 2014, there shall be two schemes i.e. “Government Hajj Scheme” for those applicants who intend to perform Hajj under Government arrangements and “Private Hajj Scheme” for those who want to make their Hajj arrangements through Hajj Group Organizers (HGOs) in accordance with Service Provider Agreement between HGOs and Ministry. W.P.No.13332 of 2014 10 (III) Out of the total Hajj quota of 143,368, 50 % would be allocated to Government Hajj Scheme which provides an economic package with reasonable facilities for the pilgrims while balance 50 % would be allocated to Private Scheme i.e. Hajj Group Organizers (HGOs) on the concept of ‘public private partnership’ to provide choice and competition in the market. In accordance with the Memorandum of Understanding (MOU) concluded between the Ministry and Hajj Organizers Association of Pakistan (HOAP) on 14-07-2013, the Ministry would allocate a quota of 15,000 pilgrims of Government Scheme to Private Scheme on prorate basis to HGOs functional in Hajj, 2013. (IV) Ministry of Religious Affairs & Interfaith Harmony reserves the right to re-adjust the share of pilgrims to government and private schemes as expedient. (V) Applications for Hajj-2014 under Government Scheme would be invited in March 2014. (VI) Applications for Government Hajj Scheme will be invited on the principle of “First come, First serve” basis. (VII) The criteria for determining the eligibility of applicants will be time and date of deposit of Hajj dues with the application form, duly complete in all respect, in the designated banks. (VIII) Under the Government Hajj Scheme, shared accommodation @ 4 square meters per haji will be provided with a rental ceiling of SR.3000 per pilgrim. (IX) Shuttle transport will be provided to pilgrims accommodated in buildings beyond two kilometers, except two days before and after Hajj. (X) An amount of Rs.14,500 (SR 500), nonrefundable, would be charged from the pilgrims, who opt for qurbani arrangements through OPAP, in addition to the regular package as qurbani dues. The qurbani coupon would be purchased from Islamic Development Bank and will be delivered to the pilgrims before Mina movement. (XI) 5 % of the total seats under Govt. Hajj Scheme would be reserved and approved by the Ministry, subject to availability:i) Hardship and broken family cases. ii) Pilgrims recommended and fully funded by charitable organizations such as Shaikh Rashid Bin Said Al-Maktoum Hajj W.P.No.13332 of 2014 iii) iv) 16. 11 Foundation, sponsored by United Arab Emirates etc. Public sector/corporate organizations recommending their employees with full funding in labour/low paid categories under their Corporate Social Responsibility. Applicants belonging to far-flung/rural areas including Gilgit Baltistan and Balochistan etc. due to lack of access to the means of communication”. Clause -7 (III) of Hajj Policy, 2014 provides that out of Hajj quota of 143,368, 50 % would be allocated to Government Hajj Scheme which provides an economic package with reasonable facilities for the pilgrims while balance 50 % would be allocated to Private Scheme i.e. Hajj Group Organizers (HGOs) on the concept of public private partnership to provide choice and competition in the market. In accordance with the Memorandum of Understanding concluded between the Ministry and Hajj Organizers Association of Pakistan (HOAP) on 14.07.2013 (in fact the MOU is dated 04.07.2013), the Ministry would allocate a quota of 15,000 pilgrims of Government scheme to private scheme on prorate basis to HGOs functional in Hajj 2013. The argument of learned counsel for the respondents that 15,000 quota of pilgrims is in lieu of borrowed Hajjis. But Hajj Policy only finds mentioned that MOU was agreed to be entered into between MORA and HOAP, hence the fact of 15000 borrowed Hajjis in 2013 is not established on record. Now the question arose the signatories of the MOU is the HOAP who may be the representative body of Hajj Tour Operators but the other tour operators who fulfill the criteria and requirement of law are equally entitled to share the quota. The MORA while deciding the petitioners’ objection stated that “The committee considered the MOU a sovereign commitment with HOAP duly signed by secretary of this Ministry and endorsed by four sitting Ministers of different portfolios i.e. Senator Ishaq Dar, Senator Pervez Rasheed, Sardar Muhammad Yousaf and Pir Amin ul Hasnat Shah”. The perusal of MOU shows that the Cabinet has not constituted such committee for giving any assurance or execution of MOU comprising of four Federal Ministers. W.P.No.13332 of 2014 12 Further the four ministers only witnessth the MOU but no one is in a position to explain why the four Federal Ministers witnessth the MOU that too without the authority on the part of the Cabinet. The Hajj Policy-2014 only finds mentioned that HGOs functional in Hajj-2013 will only be entitled for the allocation of quota of 15,000 Hajis in addition to the quota already granted by Kingdom of Saudi Arabia to them. HOAP may be the Organizers whose members are the tour operators but by incorporating an organization or becoming members of the same organization, the association is not entitled to enter into an agreement in exclusion of non-members who are in the same business. In Hajj Policy 2014, the respondent-Government has declined even to offer a single seat of pilgrim to the petitioners or all other tour operators who are in the said business but are not the members of HOAP. The MOU relied upon by the respondents is not supporting the respondents’ stance; the entire Hajj Policy-2014 did not find mentioned a single word that in the year 2013 seats of 15,000 pilgrims were borrowed from the tour operators and the KSA has to grant quota of 15000 in addition to agreed formula of 50-50. The HOAP is already enjoying 50 % quota which is not a public private partnership but it purely for the benefit of tour operators who are minting money by providing facilities of Hajj in better hotels or places of residences. 17. There is a huge financial difference between the expenses of Hajj through private tour operators and government of Pakistan; the Government of Pakistan is charging Rs.272,000/- from Per Haji whereas respondents tour operators are charging even more than Rs.1.000 Million per Hajji. Hajj is a sacred duty for the Muslims and it is the bounded duty of the of the Government as well as the private operators to assist the Muslims in the performance of Hajj and not to burden them to that extent which becomes impossible for a Muslim to perform this sacred duty. The Government should cater maximum number of Hajjis by sending them for Hajj. It is interesting to note that we are Muslim State but our Muslim State is not providing any subsidy or financial assistance to Hajjis whereas a secular country India is repeatedly providing different financial facilities to Muslims W.P.No.13332 of 2014 13 for performing Hajj including subsidy in fare and other expenses. The respondent-government thus has wrongly allotted 15,000 pilgrims quota to respondents under the garb of MOU dated 04.07.2013, if the Government was unable to cater these 15,000, the Government was bound to offer the said quota to all the tour operators who intend to apply or have applied for the allocation of quota, the government should have also fixed the maximum expenses which the private tours operators can only recover. 18. The upshot of the above discussion is that Hajj Policy-2014 to the extent of grant of quota of 15,000 pilgrims to the Private Hajj Tour Operators as per list of 2013 is declared without lawful authority as the same is against law. The respondent-Government should, in the first instance, will utilize the quota so released itself and if the respondent-Government is unable to perform its duty due to any reason this quota of 15000 pilgrims will be offered to all the registered tour operators of MORA. 19. This petition is allowed in the above-said terms. C.M.Nos.2 to 13 ,1434,1435,1466,1467,1504,1547,1562, 1698, 1699, 1325,1326, 1941, 1977,1978 of 2014 20. As the main writ petition has been disposed of, these applications have become infructuous, the same are accordingly disposed of. (Muhammad Khalid Mehmood Khan) Judge Announced in open Court on 15.07.2014. (Muhammad Khalid Mehmood Khan) Judge APPROVED FOR REPORTING Najum*
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