Allahabad High Court
Dr. Ankur Kumar [P.I.L.] vs Union Of India Thr.Secy.Minority ... on 5 December, 2013
Author: D. K. Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Chief Justice's Court A.F.R. Case :- MISC. BENCH No. - 11319 of 2013 Petitioner :- Dr. Ankur Kumar [P.I.L.] Respondent :- Union Of India Thr.Secy.Minority Welfare,Central Sectt.& Ors Counsel for Petitioner :- Vivek Raj Singh Counsel for Respondent :- C.S.C.,A.S.G.,V.K. Dubey Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Devendra Kumar Arora,J.
In these proceedings which have been filed in the Public Interest, the petitioner has sought a mandamus to the respondents, more particularly in the present case the Government of U.P., not to disburse any subsidy or fund for the purpose of construction/ renovation/ expansion of the Haj House at Ghaziabad. The basis of the petition is that by the judgment of Supreme Court in the case of Syed Intesar Mehdi vs. Union of India and another, reported in (2012) 6 SCC 266 it has been directed that the subsidy which has been provided by the Union Government for the Haj Pilgrims should be eliminated within a period of ten years and that subsidy money may be more profitably used for upliftment of the community in education and other indices of social development.
According to the petitioner, in the year 2005, the State Government had allocated a fund of Rs. 2 crores for the purposes of construction/expansion/renovation of the Haj house situated at Ghaziabad which was increased upto Rs.28 crores.
The petition is founded upon a newspaper report, published on 29 November, 2013 in the print media that the State Government has taken a decision to increase the subsidy for the purposes of construction/expansion/renovation of the Haj house situated at Ghaziabad upto Rs.28 crores.
Learned Addl. Advocate General, in response to the petition, submitted that (i) there has been a non-disclosure of the fact that a petition filed in public interest for an order restraining the construction of Haj House at Ghaziabad, namely, Civil Misc. writ Petition No. 44327 of 2005, Mahanagar Ghaziabad Chetna Munch and others vs. State of U.P. and others, was dismissed by the Division Bench of this Court on 8.12.2006; (ii) in the aforesaid judgment, the Division Bench has considered the provisions of the Haj Committee Act, 2002; (iii) Haj Committee Act, 2002 confers statutory duties on the State Government; that Haj Committee is to be constituted under the Act and the State Government is duly empowered to make a grant or loan, as the case may be, to the Committee; and (iv) the grant or loan which is contemplated by the provisions of Section 32 (ii) cannot be equated with the subsidy for the Haj pilgrims which the Supreme Court has directed to be phased out.
While appreciating the case of the petitioner, it would, at the outset, be necessary to the advert the judgment of the Supreme Court in the case of Syed Intesar Mehdi vs. Union of India and another, reported in (2012) 6 SCC 266. The proceedings before the Supreme Court arose from a judgment of the High Court in a bunch of petition challenging the 2011 Haj Policy of the Government of India which required private operators to fulfill certain eligibility conditions for registration for ferrying the pilgrims for Haj. During the course of the judgment, the Supreme Court made a reference to the Haj subsidy and noted that the number of pilgrims from India which was 21035 in 1994, had increased in 2011 to 1,25,000, as a result of which the subsidy had increased from Rs. 10.51 crores to Rs. 685 crores. The Supreme Court took note of the fact that grant of subsidy has been found valid by the Court. The Supreme Court directed the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of ten years. The subsidy money may, it was held, be more profitably used for upliftment of the community in education and other indices of social development.
The Haj Committee Act, 2002 was preceded in terms of the legislation by the Port Haj Committee Act, 1932 and later by Haj Committee Act, 1959. The Parliamentary legislation of 2002 constituted the State Haj Committee under section 18. Section 27 provides that it shall be the duty of a State Committee to implement the policy and directions of the Haj Committee of India in the interest of Haj pilgrims (constituted under section 3). Sub section (2) of section 27 provides that the State Committee is obligated to provide assistance to the Haj pilgrims including in the matter of their transport between their home states and the point of their exit from India and their transit accommodation at points of exit. Section 32 provides as follows:-
"32. The State Committee shall have its own fund to be called the State Haj Fund and the following sums shall be placed to the credit thereof, namely:-
(I)all sums of money paid to it or any grant made by the Committee for the purposes of this Act; (II)any grant or loan that may be made to the State Committee by the State Government, or any other source for the purpose of this Act, as approved by the State Government; (III)any amount that may be legally due to the State Committee from any source; and (IV)the moneys, if any, standing to the credit of a State Haj Committee, at the commencement of this Act."
The State Committees are subject to the control of the State Government, as specified in Section 36 of the Act.
Now, in this background, what emerges from the provisions of the Act, is that the Parliament in exercise of its legislative power mandated the constitution of the Haj Committees. The State Committee has been set up with a view to ensure the welfare and interest of Haj pilgrims. The State Haj Fund under section 32, is placed at the disposal of State Committee. The fund includes in clause 2 (ii) of Section 32 for grant or loan that may be made to the State Committee by the State Government, or from any other source for the purposes of the Act, as approved by the State Government. Parliament has, therefore, specifically contemplated that the State Governments may make a grant to the State Committees which were to go to the Haj fund of each State.
The subsidy, which the judgment of the Supreme Court, dealt with in the decision of Syed Intesar Mehdi (supra) was the portion of the cost of the travel of Haj pilgrims. As the Supreme Court noted in para 34 of its decision, the cost of travel per pilgrim was only Rs. 17,000/- in 1994 which increased in the year 2011 to Rs. 54,800/- and as a result of which, the total Haj subsidy increased from Rs. 10.51 crores to Rs. 685 crores. The Government of India stated before the Supreme Court that this was a result of the stringent regulations imposed by the Saudi Arabian Authorities leading to higher fares charged by the Airlines. Hence, the Supreme Court, while dealing with the issue specifically noted in para 38 of the judgment that there was a difference between the normal air fare and increased fare. The subsidy was to cover the additional burden arising from the stringent regulations by Saudi Arabian Authorities. This Haj Subsidy, as the judgment of the Supreme Court mandates, should be progressively eliminated within a period of ten years.
The grant or loan, that is, contemplated by Section 32 (2) of the Haj Committee Act, 2002 stands on completely different footing. First and foremost, this is not a subsidy which is governed by an administrative decision of the Government of India or State Government, but something which is statutorily provided for in section 32 (ii). In the present case, the grant or loan that is contemplated by the State Government is for the purpose of construction of a Haj House at Ghaziabad. Essentially, there are three embarkation points for Haj Pilgrims, at New Delhi, Lucknow and Varanasi. The Haj House at Lucknow has already been constructed in 2005. The construction of Haj House at Ghaziabad is required to deal with the inflow of pilgrims. It must be noted that this requirement will continue to exist even after the Haj Subsidy is progressively eliminated in terms of the judgment of the Supreme Court. The pilgrimages, in that sense are eternal.
In this view of the matter, when the Act of Parliament specifically contemplates grants or loans being made to the State Haj Committee by the State Government for the purposes of State Haj Fund, the exercise of writ jurisdiction under Article 226 of the Constitution in the public interest petition is not warranted.
Hence, for the aforesaid reasons, we are of the view that the basis on which the petition has been instituted, is misconceived. We must also note that the entire petition is founded only on a Newspaper report. Since the matter has been argued at length by the learned counsel for the petitioner and by learned counsel appearing on behalf of State Government, we consider it appropriate to deal with the submissions, on settled principles of law.
Before concluding, it would be necessary to make a reference to a judgment of the Division bench of this Court dated 8.12.2006 (C.M.W.P. No. 44327 of 2005, Mahanagar Ghaziabad Chetna Munch and others vs. State of U.P. & others.). The Division Bench took a note of the provisions of the earlier legislation and the present legislation, namely, Haj Committee Act, 2002 and held as follows:
"..........Therefore, there is a necessity of making a place where the pilgrims will be assembled before going to an appropriate place. By such Act not only the Central Haj Committee but also the State Committee both are equally responsible. Under no stretch of imagination, establishment of Haj House can be said to be establishing mosque."
"........However, we do not find any reason to withhold the persons concerned from making Haj House in the particular place, where it has been proposed or partially constructed. Acquiring of land by the appropriate committee for construction of Haj House is perfectly within the fore-corners of law, therefore, no such step can be regarded as religious activity. Haj House is not a mosque but house of assemble and stay of the pilgrims for going to and coming back from Haj. So far as the Chief Minister's sanction of fund is concerned, no material has been shown excepting alleged propaganda in the newspaper. Therefore, the issue of release of any fund by the Chief Minister is baseless. State's funding for a religion or religious denomination can only be established from such action of release not on the basis of apprehension of propaganda."
We, therefore, do not find any merit in this writ petition and is accordingly dismissed.
Order Date :- 5.12.2013 (Dr. D. Y. Chandrachud, C.J.)
ashok
(D. K. Arora, J.)