UNITED AIR TRAVEL SERVICES THROUGH ITS PROPRIETOR A.D.M. ANWAR KHAN vs UNION OF INDIA MINISTRY OF EXTERNAL AFFAIRS THROUGH SECRETARY

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.

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.

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.â€​,

The aforesaid legal position, thus, makes the stand of the respondent unsustainable, resulting in the quashing of the impugned letters of rejection.",

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.,

The principles of damages in public law have to, however, satisfy certain tests. In Nilabati Behera v. State of Orissa , 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.â€​",

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 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.",

The aforesaid aspect was, once again, emphasized in Common Cause, a Registered Society v. Union of India . We may also usefully refer to N.",

Nagendra Rao & Co. v. State of A.P. 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.,

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 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.,

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.Â",

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.",

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.,

The writ petitions are allowed in the aforesaid terms with costs quantified at Rs.10,000 per petition.",