Case Law Details
AL Amanath Haj Services India Pvt. Ltd. Vs Union of India (Delhi High Court)
Delhi High Court held that disqualification of Haj Group Organization merely on the basis of uncertainty in respect of the amount of GST to be paid is unjust.
Facts- The Haj Policy 2023 was announced by the Ministry of Minority Affairs (Haj Division) on 14th March, 2023. As per the said Policy, HGOs were categorized into Category 1 and Category 2 depending upon their experience and turnover.
Applications were called by the Ministry in terms of the Policy and a list of eligible and ineligible HGOs were declared on 5th May, 2023. Thereafter, several writ petitions were filed before this Court by HGOs which were rendered ineligible or whose names were not found in the declared list on the ground that the reasons for declaring the Petitioners ineligible were not communicated by the Ministry.
Considering the submissions made by the said HGOs, directions were issued by the Court vide order dated 9th May, 2023. In terms of the said order, the reasons for ineligibility are stated to have been communicated by the Ministry to various ineligible HGOs who were given time till 12th May, 2023 to remove the deficiencies. However, even thereafter a large number of HGOs have been declared ineligible, which has led to the filing of the present writ petitions.
It has been observed by the Court that in a large number of matters, the main deficiency relates to alleged non-payment of GST.
Conclusion- The Court has perused the relevant clause in the 2023 Haj Policy. The same would reveal that while GST registration is mandatory and payment of GST is also mandatory. If there is any uncertainty in respect of the amount of GST to be paid, the same would be an issue which would have to be considered by the GST authorities and, in the opinion of the Court, cannot operate as a disqualification of the abovementioned Petitioner HGOs.
So long as the HGOs have a GST registration and have an explanation for the manner in which they have calculated and deposited GST prior to them filing of the application for allotment of quotas, disqualifying them would be unjust.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. This hearing has been done through hybrid mode.
2. These are petitions relating to various Haj Group Organizers (HGOs) and allotment of quota for Haj pilgrimage 2023. This Court has been hearing these matters from time to time.
3. The Haj Policy 2023 was announced by the Ministry of Minority Affairs (Haj Division) on 14th March, 2023. As per the said Policy, HGOs were categorized into Category 1 and Category 2 depending upon their experience and turnover.
4. Applications were called by the Ministry in terms of the Policy and a list of eligible and ineligible HGOs were declared on 5th May, 2023. Thereafter, several writ petitions were filed before this Court by HGOs which were rendered ineligible or whose names were not found in the declared list on the ground that the reasons for declaring the Petitioners ineligible were not communicated by the Ministry.
5. Considering the submissions made by the said HGOs, directions were issued by the Court vide order dated 9th May, 2023 to the following effect:
“9. Considering the fact that the reasons for declaring the Petitioners have not been communicated to the Petitioners, the opportunity to make representations by 8th May 2023 at 5pm is of no consequence, as there is no basis for filing a representation. Accordingly, the following directions are issued:-
i) Let the Ministry communicate the reasons for ineligibility to the Petitioners on or before 10th May, 2023 by 6:00 pm.
ii) The Petitioners who are aggrieved by the reasons which are communicated to them are free to make their respective representations to the Ministry by 12th May, 2023 midnight, as also remove deficiencies, through the e-mail address mentioned in the public notice.
iii) The representations shall be decided by the Ministry and shall be communicated to the Petitioners through email by 6 pm on 19th May, 2023.
iv) In case any of Petitioners are found eligible, their candidature shall be considered for the allotment of the remaining visas in accordance with the Ministry’s Policy.”
6. In terms of the above order, the reasons for ineligibility are stated to have been communicated by the Ministry to various ineligible HGOs who were given time till 12th May, 2023 to remove the deficiencies. However, even thereafter a large number of HGOs have been declared ineligible, which has led to the filing of the present writ petitions. The said petitions have also been heard by this Court along with the previously filed petitions over the last three hearings.
7. counsels for the parties were directed to prepare a chart as to the reasons for ineligibility of the HGOs and the said charts have been perused by the Court. Charts have been filed by both sides.
W.P.(C) 6495/2023 & CM APPLs. 27734-35/2023
W.P.(C) 6496/2023 & CM APPLs. 27738-39/2023
8. In these two petitions, as per the letter dated 10th May, 2023, the deficiency leading to the Petitioners being rendered ineligible, is that the original hard copy of the FDR and the demand draft have not been submitted in terms of the Policy.
9. Today, after hearing submissions of the ld. Counsel it is clear that the hard copy of the FDR has been handed over to the Ministry along with demand draft. In both these matters, this fact is confirmed by the officials who are present in Court.
10. Accordingly, let the quota be allocated to Petitioners- Harmain Tour and Travel and Hasnain Tours and Travels in terms of the Haj Policy 2023.
11. The present petitions, along with all pending applications, are disposed of.
12. The next date of hearing in these matters stands cancelled.
P.(C) 7120/2023 & CM APPLs. 27750-52/2023
13. In this case, the application of the Petitioner – Al Muqaddas Tours and Travels for allotment of quota has been rejected by the Ministry on 19th May, 2023 on the ground that the earlier proprietor of the Petitioner firm has passed away, the existing experience of the Petitioner firm cannot be taken into account for the allocation of quota as per the Haj Policy, 2023.
14. A perusal of the facts of the present case would show that as per the Haj Policy, 2023, Al Muqaddas Tours and Travels is a category-2 HGO and has been organizing Haj and Umrah for the last 20 years.
15. Al Muqaddas Tours and Travels was started by Late Fakih Abdul Rashid Hajatay in 1991 as a sole proprietorship. It is stated that since 2006, the three sons of late Mr. Hajatay are working in the firm. Unfortunately, Mr. Hajatay passed away during Covid-19 in September, 2020. The firm is stated to have continued to do business and after the death of Mr. Hajatay, the firm has been converted from a proprietor firm to a partnership firm. The same has been notified to the Ministry vide letter dated 6th May, 2023. Currently, the sons of late Mr. Hajatay’s are partners in the firm.
16. It is noticed that the Petitioner was found to be one of the eligible HGOs selected for Haj 2022 vide a list issued by the Ministry in May 2022.
Considering the fact that the Petitioner was declared as eligible HGO last year, the submission of the Ministry that the existing experience of the Petitioner cannot be taken into account would no longer be tenable for disqualifying the Al Muqaddas Tours and Travels.
17. Accordingly, the writ petition is allowed. The Petitioner shall be allotted the quota as per the Policy.
18. The present petition, along with all pending applications, is disposed of.
W.P.(C) 7255/2023 & CM APPLs. 28247/2023, 28248/2023
19. The present petition has been filed by the Petitioner – Federation Haj PTOs of India seeking issuance of directions to the Ministry of Minority Affairs (Haj Division) to issue the list of allocation of Haj quota to HGOs for Haj-2023.
20. Since the said list of allocation of quota has already been declared in terms of the order dated 24th May, 2023 passed by this Court, the present petition is infructuous and is accordingly disposed of. All pending applications are also disposed of.
W.P.(C) 7336/2023 & CM APPL.28528/2023
W.P.(C) 7345/2023 & CM APPL. 28543/2023
W.P.(C) 7095/2023 & CM APPLs. 27614-16/2023
W.P.(C) 7098/2023 & CM APPL. 27623/202
3 W.P.(C) 7099/2023 & CM APPL. 27626/2023
W.P.(C) 7104/2023 & CM APPL. 27639/2023
W.P.(C) 7107/2023 & CM APPL. 27645/2023
W.P.(C) 7110/2023 & CM APPL. 27649/2023
W.P.(C) 7114/2023 & CM APPL. 27744/2023
W.P.(C) 7130/2023 & CM APPL. 27775/2023
W.P.(C) 7132/2023 & CM APPL. 27777/2023
W.P.(C) 7150/2023 & CM APPLs. 27876/2023, 27877/2023
W.P.(C) 7189/2023 & CM APPL. 27976/2023
W.P.(C) 7200/2023 & CM APPL. 28004/2023
W.P.(C) 7219/2023 & CM APPLs. 28127/2023,
28128/2023 W.P.(C) 7233/2023 & CM APPLs. 28201/2023,
28202/2023 W.P.(C) 7254/2023 & CM APPLs. 28245/2023,
28246/2023 W.P.(C) 7270/2023 & CM APPLs. 28281/2023,
28282/2023 W.P.(C) 7271/2023 & CM APPLs. 28283/2023,
28284/2023 W.P.(C) 7354/2023 & CM APPL.28632/2023
21. It has been observed by the Court that in a large number of matters, the main deficiency relates to alleged non-payment of GST.
22. Clause 3 of the Haj Policy 2023 specifies the requirement of GST in the following terms:
“3. Details of registration for GST including a certificate of registration in the name of HGO duly issued by the competent authority. The HGOs must note that evidence of payment of all statutory dues and taxes including GST shall be sought by the Ministry before allocating quota to the HGOs for the next Haj operation.”
23. The submission on behalf of the Petitioners is that the amount of GST payable is not clear, inasmuch as initially the HGOs were claiming exemption for the HAJ piligrimage. This issue was finally decided by the Supreme Court vide judgment dated 26th July, 2022 passed in P.(C) 755/2020 titled All India Haj Umrah Tour Organizer Association, Mumbai v. Union of India wherein it was held that the exemptions which were given to the Haj Committee would not be applicable to the private HGOs. Relevant portion of the said judgment is set out below:
“24. At the outset, Shri N. Venkatraman, the learned Additional Solicitor General of India pointed out that the issue of extra- territorial application of service tax laws raised by the petitioners cannot be gone into as it is the subject matter of challenge in other cases pending before another Bench.
xxx
65. Hence, we are of the considered view that the arguments based on discrimination have no substance at all, as HGOs and the Haj Committees do not stand on par and in fact, the Haj Committees constitute a separate class by themselves, which is based on a rational classification which has a nexus with the object sought to be achieved.
66. Therefore, there is no merit in the challenge in the petitions. We have already clarified that we have not dealt with the issue of extra-territorial operation of the service tax regime which is kept open to be decided in appropriate proceedings, as requested by the parties.”
24. It is submitted by ld. Counsels for the parties that another issue which arose, as recorded in paragraphs 24 and 66 of the said judgment in respect of extra territorial operation of service tax, has not been adjudicated and is still open to be decided in appropriate proceedings. It is in view of this uncertainty that several of the HGOs which have been found to be ineligible have paid 18% GST on the margin amounts. On the other hand, entities which have been found to be eligible under the policy have paid GST @ 5% on the total turnover itself.
25. Some of the Petitioners, who are before this Court, have made certain GST payments prior to the filing of the application for allocation of quota. However, a large number of Petitioners have only made payments post filing of the application.
26. This Court has examined the factual position in respect of all the HGOs and notices that there are certain HGOs which satisfy the following two conditions:
i. HGO has a GST registration certificate;
ii. Some GST payments have been made prior to the filing of the application;
In respect of the above said HGOs, the stand of the Ministry is that the full amount of GST has not been paid qua the total turnover;
27. The HGOs which fulfil the above two conditions in respect of whom there is only a discrepancy as to amount of GST deposited, are as under:
| S. No. | Case No. | Petitioner(s) |
| 1 | W.P.(C) 7336/2023 | AL MAKKAH HAJ SERVICES |
| 2 | W.P.(C) 7345/2023 | M. S. WORLD TRAVEL SERVICES |
| 3 | W.P.(C) 7095/2023 | 1) HAJIPIR HAJ TOUR
2) FAIZ INTERNATIONAL |
| 4 | W.P.(C) 7098/2023 | SHOYEB TOURS AND TRAVELS PVT. LTD. |
| 5 | W.P.(C) 7099/2023 | TAMBOLI TOURS AND TRAVELS PVT. LTD. |
| 6 | W.P.(C) 7104/2023 | GHOUSE TOURS AND TRAVELS |
| 7 | W.P.(C) 7107/2023 | AL HATIM TOURS AND TRAVELS PVT. LTD. |
| 8 | W.P.(C) 7110/2023 | POONA TRAVELS PVT. LTD. |
| 9 | W.P.(C) 7114/2023 | SANIA HAJ SERVICES |
| 10 | W.P.(C) 7130/2023 | AL MEENA TOURS AND TRAVELS PVT. LTD. |
| 11 | W.P.(C) 7132/2023 | AL AMAL TOURS AND TRAVELS PVT. LTD. |
| 12 | W.P.(C) 7150/2023 | AL RAZACK TOURS INTERNATIONAL |
| 13 | W.P.(C) 7189/2023 | AL MEEZAB HAJ AND UMRAH SERVICES |
| 14 | W.P.(C) 7200/2023 | SAUDI TOURS AND TRAVELS |
| 15 | W.P.(C) 7219/2023 | SYEDINA TOURS AND TRAVELS |
| 16 | W.P.(C) 7233/2023 | BAITULLAH TOURS INTERNATIONALL |
| 17 | W.P.(C) 7254/2023 | RAZAK AND SONS KAKIWALA TOURS AND TRAVELS |
| 18 | W.P.(C) 7270/2023 | AL FALAH TOURS AND TRAVELS |
| 19 | W.P.(C) 7271/2023 | AL BURHAN TOURS AND TRAVELS |
| 20 | W.P.(C) 7354/2023 | AHMED WORLD TRAVEL TOURS AND CARGO PVT. LTD. |
28. The Court has perused the relevant clause in the 2023 Haj Policy. The same would reveal that while GST registration is mandatory and payment of GST is also mandatory. If there is any uncertainty in respect of the amount of GST to be paid, the same would be an issue which would have to be considered by the GST authorities and, in the opinion of the Court, cannot operate as a disqualification of the abovementioned Petitioner HGOs. The percentage of GST liable to be deposited, the uncertainty about the exemption issue, the manner in which GST would have to be calculated i.e., whether on the margins or on total turnover are all intricate issues which the GST authorities would be examining qua each of the HGOs. The same would depend on the period, applicable rates etc., So long as the HGOs have a GST registration and have an explanation for the manner in which they have calculated and deposited GST prior to them filing of the application for allotment of quotas, disqualifying them would be unjust. The Ministry of Minority Affairs is not the competent authority to deal with these issues, though an attempt has been made to explain that the eligible HGOs have made full GST deposits.
29. On the last date of hearing, the Court was handed over a chart in which details of the quota available with the Ministry were given. The said details are captured in the order dated 24th May, 2023 in the following terms:
“4. The quota for Haj 2023 has been finalized in respect of a large quantum of HGOs. The total quota that is available with the Ministry is to the tune of 35005. Details of distribution of quota by the Ministry is as under:
|
Category 1 |
Category 2 |
|
Thus, the total seats available for distribution to Category 2 HGOs are 17,905.
|
5. Insofar as Category 1 and Category 2 HGOs are concerned, since the seats have already been finalized, let the quotas to all these successful HGOs be released today itself. The publication on the website shall be effected by tomorrow. Upon the release of the quota between today and tomorrow, all the necessary processes shall be undertaken by the Ministry.”
30. Thus, out of the total quota of 35,005 a total of 34,100 seats have already been allocated and 905 seats are still available. After taking into consideration the available quota i.e., 905 seats, the minimum threshold of 50 seats would not be available to all the above HGOs. Allotment of lesser seats would be a breach of the quota numbers and according to Mr. Ahluwalia would not be in the interest of pilgrims.
31. Considering the above background, in respect of quota allocation, the following directions are issued:
a) The Ministry shall first allot quotas to Al Muqaddas Tours and Travels, Harmain Tours and Travels and Hasnain Tours and Travels for Haj- 2023 as their writ petitions have been allowed, as directed above.
b) Thereafter, insofar as the remaining quota is concerned, the same shall be dealt with in terms of the Haj policy, 2023 and shall be distributed among Category-1 and Category-2 HGOs.
c) Today, the Court has been informed that there is an enquiry which is being conducted by the Ministry qua 17 HGOs who have already been declared eligible and were allocated quotas for Haj 2023. It is directed that if any quota becomes available, post the enquiry, the same shall be distributed in accordance with the Policy with a minimum of 50/100 seats as per their category to the HGOs which are listed above at paragraph number 27.
d) Any quota which may be left over, thereafter, shall be dealt with in accordance with the Haj Policy, 2023.
32. The present petitions are disposed of in the above terms.
33. All pending applications are also disposed of.
34. It is noted that subsequent to the implementation of the present order the quota for HGOs would stand exhausted and in any case, large scale arrangements are to be made for the pilgrims. Thus, it is made clear that these orders are passed in the unique facts and circumstances and shall not act as a precedent.
35. The next date of hearing in these matters stands cancelled, if any.
36. The Court would like to acknowledge the valuable assistance given by the counsels/persons in preparing the charts and assisting the court:
For the Petitioners: Mr. Sulaiman Mohd. Khan, Mr. Bharat Raichandani, Mr Kotla Harshavardhan, Advocates.
For the Respondents: Mr. Anurag Ahluwalia, ld. CGSC, Ms. Pratima N. Lakra, ld. CGSC, Mr. S.S. Verma (Deputy Secretary, Ministry of Minority Affairs) and Mr. Gaurav Jaiswal, Consultant.
W.P.(C) 7310/2023 & CM APPL.28442/2023
W.P.(C) 6466/2023 & CM APPLs. 27736-37/2023
W.P.(C) 7102/2023 & CM APPL. 27630/2023, 27631/2023
W.P.(C) 7126/2023 & CM APPLs. 27769-70/2023
W.P.(C) 7127/2023 & CM APPLs. 27771-72/2023
W.P.(C) 7128/2023 & CM APPLs. 27773-74/2023
W.P.(C) 7148/2023 and CM APPL. 27874/2023,
27875/2023 W.P.(C) 7151/2023 & CM APPLs. 27878/2023,
27879/2023 W.P.(C) 7152/2023 & CM APPLs. 27880/2023,
27881/2023 W.P.(C) 7197/2023 & CM APPLs. 27995/2023,
27996/2023 W.P.(C) 7206/2023 & CM APPLs. 28016/2023,
28017/2023 W.P.(C) 7229/2023 & CM APPL. 28197/2023
W.P.(C) 7241/2023 & CM APPLs. 28207/2023, 28208/2023
W.P.(C) 7256/2023 & CM APPLs. 28249/2023, 28250/2023
W.P.(C) 7269/2023 & CM APPLs. 28279/2023, 28280/2023
37. Considering the nature of issues raised in these petitions and bearing in mind the schedule for HAJ 2023, no interim relief is granted at this stage. List on 6th November, 2023.
38. Next date in these matters, if any, stands cancelled.
39. Dasti.
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