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TMI Blog2018 (5) TMI 2121X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government was approved by this Court with slight modifications and was annexed as Appendix-1 to the order in Union of India v. Rafique Shaikh Bhikan (supra) 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 fulfillment 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of applications which should be addressed to the MEA or any other agency appointed by it. (Emphasis supplied) 2. 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. 3. It is also apparent from the Press Release of 7.8.2015 giving the list of PTOs who have qualified but did not get quota, that the Petitioners figured in the said list. 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardly be countenanced in view of the reasons referred to and communicated. 10. Learned counsel for the Petitioner has, thus, rightly drawn our attention to the Constitution Bench judgment of this Court in Mohinder Singh Gill v. Anr. v. The Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405 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 in the 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 by granting compensation in exercise of writ jurisdiction. The obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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