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HAJJ E BETULLAH HAJ UMRAH TOUR CORPORATION vs UNION OF INDIA

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th APRIL, 2024
IN THE MATTER OF:
+ W.P.(C) 6466/2023 & CM APPLs. 25458/2023, 27736/2023
27737/2023
HAJJ E BETULLAH HAJ UMRAH TOUR CORPORATION
….. Petitioner

Through: Mr. Sulaiman Mohd Khan, Ms. Taiba Khan, Mr. Bhanu Malhotra, Mr. Gopeshwar Singh Chandel, Mr. Abdul Bari Khan, Mr. Shamaul Haq Khan, Advocates
versus
UNION OF INDIA ….. Respondent
Through: Ms. Pratima N. Lakra, CGSC with Mr. Kashish G. Baweja, Advocate for UOI.
Mr. Apoorv Kurup and Mr. Akhil Hasija, Advocates.
Mr. Vedansh Anand, GP and Mr. Apoorv Shankar, Advocate.
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Petitioner who is a Haj tour operator has approached this Court by filing the present Writ Petition seeking for setting aside of a list of Haj Group Organizers (HGOs) for the year 2023-24 in which the Petitioner’s name has been put in Category II HGOs. The Petitioner has also prayed for a direction to the Respondent to elevate the Petitioner from Category I HGO to Category II HGO.
2. It is stated that the Petitioner is a HGO who has taken Haj Operations in 2009, 2010, 2011, 2015, 2017 and 2019. It is stated that the Petitioner applied for registration for allotment of quota for Haj 2020 under Category I by submitting the proof of seven Haj licenses issued to it by the Respondent and also by giving documents showing turn-over of Rs.3 Crores for the financial year 2018-19, which was the requirement for registering a tour operator as Category-I HGO. It is stated that the application for Haj 2020 could not be processed due to Covid-19 pandemic and Haj 2020 was cancelled. It is pertinent to mention that Haj Policy 2019-2023 (hereinafter referred to as ‘the Haj Policy’) was brought out by the Respondents. It is the case of the Petitioner that despite giving documentary proof showing that the Petitioner was qualified to be upgraded to Category-I HGO nothing was done by the Respondent. The Petitioner, thereafter, filed W.P.(C) 333/2022 before the Apex Court and the Apex Court vide Order dated 13.05.2022 rejected the contention of the Petitioner on the ground that the Petitioner had approached the Apex Court at the last hour. However, the Apex Court directed the Respondent to consider the upgradation of the Petitioner from Category-II HGO to Category-I HGO for Haj 2023 onwards. It is stated that on 14.03.2023 invitations were called for the registration of the HGOs for allocating quota for Haj 2023. However, the eligibility was changed by increasing the experience period and the turnover in the following manner:
“i. Category-1 – HGOs having experience of minimum 3 Haj and an annual turnover of Rs. 5 crore or more from Haj and/ or Umrah operations in any of the preceding two years (excluding 2020 and 2021 which were hit by COVID pandemic). They should also fulfill other terms and conditions for being eligible as an HGO (Annexure-I). 70% of the total quota will be reserved for category-1 HGOs.

ii. Category-2 – HGOs having experience of upto 2 Haj and/or at least 3 Umrah with an annual turnover of Rs.1.5 crore or more from Haj and/or Umrah operations in any of the preceding two years (excluding 2020 and 2021 which were hit by COVID pandemic) are covered under this category.”

3. A Writ Petition, being W.P.(C) 375/2023 was filed before the Apex Court challenging the HGO Policy for Haj-2023. The said Writ Petition was disposed of vide Order dated 27.03.2023 when the Petitioners therein agreed to match the price offered by the Government.
4. It is stated that the Petitioner gave a representation on 19.03.2023 stating that the Petitioner’s case must be considered as per the 2019 Policy wherein an Operator having annual turnover of Rs.3 crores was eligible to be considered under Category-I HGO. The Petitioner also approached this Court by filing W.P.(C) 4467/2023 seeking a direction to the Respondents to consider the application of the Petitioner for upgrading the Category of the Petitioner from Category-II HGO to Category-I HGO for Haj 2023. This Court vide Order dated 11.04.2023 directed the Respondents to consider the representation of the Petitioner in light of the Order dated 13.05.2022, passed by the Apex Court in W.P.(C) 333/2022, and pass appropriate orders on or before 17.04.2023.
5. Vide letter dated 01.05.2023, the Respondent herein informed the Petitioner that the application of the Petitioner for categorization as Category-I HGO would be considered as per the eligibility condition laid down in HGO Policy for Haj-2023. The list of HGOs was brought out by the Respondents on 05.05.2023 wherein the Petitioner’s name is shown in Category-II HGOs. The Petitioner has thereafter approached this Court by filing the present Writ Petition with the following prayers:
“(a) Issue a Writ, order or direction in the nature of Mandamus or any other writ, order or direction to the respondent to follow and do due compliance of the order dated 13.05.2022 passed by Hon’ble Supreme Court and order dated 11.04.2023 passed by this Hon’ble Court;

(b) Issue a Writ, order or direction in the nature of Mandamus or any other writ, order or direction to quash/set aside the list dated 05.05.2023 reflecting the name of the petitioner in Category-2;

(c) Issue a Writ, order or direction in the nature of Mandamus or any other writ, order or direction to quash/set aside the letter/order dated 01.05.2023 elevating the petitioner to category-1 as per the HGO Policy for Haj-2023;

(d) Issue a Writ, order or direction in the nature of Mandamus Commanding and directing the Respondent to elevate the petitioner to Category-1 as per the original HGOs Policy for Haj- 2019-23;

(e) Pass such other and further orders as this Hon’ble Court may think fit in the interest of justice and equity.”

6. Notice in the present Writ Petition was issued on 16.05.2023. Counter affidavit has been filed.
7. It is contended by the learned Counsel for the Petitioner that the Petitioner was entitled to be upgraded as a Category-I HGO as it fulfilled all the requirements to be registered as Category-I HGO. Learned Counsel for the Petitioner placed reliance on the Order dated 13.05.2022, passed by the Apex Court in W.P.(C) 333/2022. He also stated that even though the requirements for Haj 2023 had been changed, this Court in its Order dated 11.04.2023 in W.P.(C) 4467/2023, after considering the Orders passed by the Apex Court in W.P.(C) 333/2022 & W.P.(C) 375/2023, had directed the Respondents to consider the representation of the Petitioner. He states that in spite of the Orders of this Court, Petitioner’s name has been kept in Category-II HGOs and, therefore, the Order passed by this Court has been violated by the Respondents. It is the contention of the learned Counsel for the Petitioner that the Petitioner fulfilled all the requisite requirements to be upgraded to Category-I HGO in 2019 itself and, therefore, the name of the Petitioner ought to have been reflected in Category-I HGOs.
8. Per contra, learned Counsel for Respondents states that there is no vested right in the Petitioner to be shown in Category-I HGO. He states that about 1.75 lakh Hajis go to Kingdom of Saudi Arabia (KSA) from India and arrangements have to be made for the Hajis. He states that every year the country signs an Annual Bilateral Agreement with the KSA on the number of Haj Pilgrims who can visit KSA and under the said Agreement, KSA allots the quota to the Government of India. It is stated by the learned Counsel for the Respondents that since the country has to ensure that the Hajis are put to least inconvenience and everything is arranged for them, criterions are laid down while categorizing the HGOs. He states that in order to avoid any inconvenience to the Hajis, it was decided to enhance the eligibility of being a Category-I HGO. He further states that various categories in the earlier Policies have been merged and at present there are only two categories namely, Category-I and Category-II. He, therefore, states that the decision to categorize an HGO as Category-I HGO on the basis that the HGO must have an annual turnover of Rs.5 crore or more from Haj and /or Umrah operations in any of the preceding two years is purely a policy decision. It is stated by the learned Counsel for the Respondent that when the question regarding correctness or otherwise of the HGO Policy for Haj 2019 was challenged before the Apex Court in Federation Haj PTOS of India v. Union of India, (2020) 18 SCC 527, wherein the Apex Court refused to interfere with the said policy. It is also stated by the learned Counsel for the Respondent that though the Petitioner was to be upgraded to Category-I HGO as per the 2019 Policy but in view of the change in the Policy and the eligibility of the Petitioner, the Petitioner could only be considered under Category-II. He further states that this Court in its judgment dated 11.04.2023 in W.P.(C) 4467/2023 has only directed for the Petitioner’s case to be considered by the Respondent but the final categorization has been done only on the basis of the existing Policy on the date when the Petitioner’s application was decided.
9. Heard the Counsels for the Parties and perused the material on record.
10. The Apex Court in Union of India v. Rafique Shaikh Bhikan, (2012) 6 SCC 265, has held that in making selection for the registration of the HGOs the primary object and purpose of the exercise is not to distribute the Haj seats to them for making business profits but to ensure that the pilgrim may be able to perform his religious duty without undergoing any difficulty, harassment or suffering. The Apex Court has held that the pilgrim is actually the person behind all this arrangement. It has been observed that for many of the pilgrims Haj is once in a lifetime pilgrimage and they undertake the pilgrimage by taking out the savings made over a lifetime, and in many cases money is saved by pilgrims only for this purpose. The Apex Court held that due to any mismanagement in the arrangements regarding the journey to Saudi Arabia or stay or travelling inside Saudi Arabia any of the parts, if any, is not performed or performed improperly then the pilgrim loses not only his life savings but more importantly he loses the Haj. Keeping the object behind the Haj and also keeping in mind the number of pilgrims, the Government allots quota and also fixes as to how the HGOs are to be categorized. The requirement of Category-I HGO in HGO Policy for Haj-2019-23 and for HGO Policy for Haj-2023 is as under:

Requirements
HGO Policy for Haj-2019-23
HGO Policy for Haj-2023
Turnover
Rs.3 Crore in any two preceding financial years
Rs.5 Crore in any two preceding financial years
Experience
Minimum experience of 7 Haj Journeys
Minimum experience of 3 Haj Journeys.

11. A perusal of the abovementioned table shows that there is a change in the HGO Policy for Haj-2023. The Apex Court in
12. The Apex Court in Federation Haj PTOS of India v. Union of India, (2020) 18 SCC 527, while considering the Policy of categorisation of HGOs has observed as under:
“15. It was submitted that in the instant Policy, while fixing the criteria of experience-cum-financial strength, the respondent had given more emphasis on the financial aspects thereby sidelining the aspect of experience. It was pointed out that many members of these Federation/Association had experience of fourteen to seventeen Haj operations. However, they were not given Category I* as their turnover was less than Rs 5 crores. It was further argued that this Court in its aforesaid judgment, as can be seen from paras 25 and 26 cited above, had applied the doctrine of proportionality, which was given a go-by. It was emphasised that since the quota is in the hands of the Government and only limited seats are allotted to each PTOs/HGOs, it is difficult to have a turnover of Rs 5 crores without hiking the cost for pilgrims.

16. From the events mentioned above, particularly those that led to formulating the Haj Policy for 2019-23, it is apparent that the Policy is based on data collected and compiled in the study by IIT, Delhi, an expert body. Further, views of the stakeholders, including the petitioners, were invited and duly considered. The respondent has categorically submitted that the aforesaid demand of the petitioners is not based on any factual data, whereas the decision taken by the Ministry is based on data collected and compiled in the study by IIT, Delhi. Secondly, the petitioners’ suggestion is only to take experience into account, whereas the Ministry has considered both experience and financial strength, as recommended in the IIT, Delhi study itself. It is submitted that where 1,75,000 people embark upon a pilgrimage, financial strength of the PTO is of utmost importance and cannot be overlooked. Financial strength is important because when the pilgrims travel to Saudi Arabia, the PTOs are required to make all arrangements for transportation, air travel, boarding and lodging, local transportation and provision of guide, etc. It is submitted that the Ministry cannot afford to take any chance on this aspect as the lack of adequate financial strength of the PTOs may result in the pilgrims becoming stranded in a foreign country or facing other hardships.

17. Additionally, it is submitted by the respondent that if the suggestion of the petitioners is accepted, there would be eleven sub-categories amongst Category I, inasmuch as what is sought by them is allocation of seats on a pro-rata basis depending on the number of years of experience. This would result in major structural changes, which is not advisable and cannot be accepted.

18. Going by the aforesaid considerations, the respondent has carved out the categories of HGOs on the parameters of experience as well as financial strength of HGOs. Such a decision is based on policy considerations. It cannot be said that this decision is manifestly arbitrary or unreasonable. It is settled law that policy decisions of the executive are best left to it and a court cannot be propelled into the unchartered ocean of government policy (see Bennett Coleman & Co. v. Union of India [Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788] ). Public authorities must have liberty and freedom in framing the policies. It is well-accepted principle that in complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors and it is not possible for the courts to consider competing claims and to conclude which way the balance tilts. Courts are ill-equipped to substitute their decisions. It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the executive to formulate, change, vary and/or modify the policy which appears better to the court. Such an exercise is impermissible in policy matters. In Bennett Coleman case [Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788] , the Court explained this principle in the following manner : (SCC p. 834, para 125)

“125. … The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietor to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of governmental policy.”

19. The scope of judicial review is very limited in such matters. It is only when a particular policy decision is found to be against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the Court would interfere with such policy decisions. No such case is made out. On the contrary, views of the petitioners have not only been considered but accommodated to the extent possible and permissible. We may, at this junction, recall the following observations from the judgment in Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27] : (SCC p. 42, para 16)

“16. … The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitation imposed by the Constitution.”

20. We may also usefully refer to the judgment in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566] . In this judgment, licence to run a liquor shop granted in favour of A was challenged as arbitrary and unreasonable. The Supreme Court held that there was no fundamental right in a citizen to carry on trade or business in liquor. However, the State was bound to act in accordance with law and not according to its sweet will or in an arbitrary manner and it could not escape the rigour of Article 14. Therefore, the contention that Article 14 would have no application in a case where the licence to manufacture or sell liquor was to be granted by the State Government was negatived by the Supreme Court. The Court, however, observed : (SCC p. 605, para 34)

“34. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide.””

13. A perusal of the abovementioned Judgment shows that the Apex Court has upheld the categorization of HGOs on the basis of the turnover and experience. This Court, therefore, cannot interfere with the policy decision taken by the Respondents in fixing the categorization of HGO.
14. The question which arises for consideration is as to whether the Petitioner has acquired any vested right and as to whether there is any direction by this Court or by the Apex Court to the Respondents that the Petitioner has to be placed in Category-I HGO. The answer to the question has to be only an emphatic No. For this purpose, it is necessary to quote the Order dated 13.05.2022, passed by the Apex Court in W.P.(C) 333/2022 which reads as under:
“In both these writ petitions, the petitioners have sought for a writ of mandamus or for any other writ or order directing the respondent to upgrade the petitioners to Category-1 as per the Policy of HGOs for Haj-2019-23.

Learned counsel for the petitioners submits that the upgradation of the petitioners to Category-1 and allocation of Haj quota may be considered by the respondent for the Haj-2022 itself.

We are not inclined to accept this submission, as the petitioners have approached this Court at the last minute. However, we direct the respondent to consider upgradation of the petitioners to Category-1 as per the policy for HGOs for Haj-2023 onwards.

With these observations, writ petitions are disposed of. Pending application(s), if any, shall also stand disposed of. ”

15. After the said Order, the HGO Policy for Haj 2023 was passed on 14.03.2023 and the categorization of HGOs has been laid down as under:
“i. Category-1 – HGOs having experience of minimum 3 Haj and an annual turnover of Rs. 5 crore or more from Haj and/ or Umrah operations in any of the preceding two years (excluding 2020 and 2021 which were hit by COVID pandemic). They should also fulfill other terms and conditions for being eligible as an HGO (Annexure-I). 70% of the total quota will be reserved for category-1 HGOs.

ii. Category-2 – HGOs having experience of upto 2 Haj and/or at least 3 Umrah with an annual turnover of Rs.1.5 crore or more from Haj and/or Umrah operations in any of the preceding two years (excluding 2020 and 2021 which were hit by COVID pandemic) are covered under this category.”
16. The Petitioner approached this Court by filing W.P.(C) 4467/2023 seeking for a direction to the Respondents to consider the representation of the Petitioner for upgradation to Category-I HGO and this Court, after quoting the aforementioned portion of the Order passed by the Apex Court and the Policy decision dated 14.03.2023, has held as under:
“10. Ld. counsel for the Respondent submits that the three categories have now been merged and now there are only two categories, in terms of the latest policy of Haj 2023. This policy was challenged by various Haj federations in a writ petition before the Supreme Court in W.P.(C) 375/2023 titled ‘Federation Haj PTOs of India v. Union of India’ and other connected matters. In the said writ petitions, vide order dated 27th March, 2023, the following order was passed:
“Heard the learned senior counsel appearing for the petitioners and the learned Solicitor General of India for the respondent-Union of India.

We have perused the preliminary counter affidavit filed by the Union of India and, in particular, the statement therein regarding the policy decision taken by the Government to help the poor pilgrims.

The learned senior counsel appearing for the petitioners submits that the petitioners are willing to match the price of the package offered by the Government of India through Haj Committee.

If that be so, the petitioners are free to represent their case(s) before the Government. It is ultimately the Government which has to take the appropriate policy decision in the light of the representation which may be made by the petitioners. By directing the Government to consider the representation at the earliest, the Writ Petitions are disposed of. Pending applications also stand disposed of.”

11. A perusal of the above order would show that the Supreme Court has clearly held that the Union Government has to take an appropriate policy decision in respect of these Haj tour operators and consider their representations. However, the new policy has not been interfered with.

12. A perusal of the chronology of events that have transpired would show that the Petitioner was clearly eligible for Category 1 upgradation last year, owing to the turnover. However, the same was not granted. The Supreme Court vide order dated 13th May, 2022 had directed the Respondent to consider upgradation of the Petitioner to Category-1. Moreover, the policy which was prevalent last year was to continue till 2023. In the present case, the Petitioner appears to have been put to a disadvantage despite the fact that as recorded in the order dated 13th May, 2022, the Petitioner may have been able to qualify, if the policy was not changed midway.

13. The Court is of the opinion that, in these circumstances, the representation of the Petitioner deserves consideration as per the order of the Supreme Court dated 13th May, 2022. Accordingly, let a decision be taken on the representation of the Petitioner on or before 17th April, 2023 by the competent authority. The remedies, if any, of the Petitioner in respect of the said decision are left open.”

17. A perusal of the abovementioned Orders does not show that there is any direction from any Court to categorize the Petitioner as Category-I HGO. In terms of the directions of this Court, the Respondent gave a communication to the Petitioner on 01.05.2023. Relevant portion of the said letter reads as under:
“3. The Grievance cum Complaint Committee after considering the aforesaid facts recommended that the case of petitioner for up gradation to Category 1 may be considered by the Ministry as per the provisions of the HGO Policy for Haj 2023.

4. The recommendation of the Committee has been considered and approved by the Competent Authority and it has been decided that the application of petitioner may be consider for registration under Category 1 of HGOs subject to fulfillment of its eligibility as per HGO Policy for Haj 2023. Accordingly, the Committee entrusted with work of the registration for HGO for Haj 2023 has also been requested to consider the case of the Petitioner as per the HGO Policy for Haj 2023.”

18. This letter does not create any vested right to the Petitioner to be categorized as a Category-I HGO. The categorization of the Petitioner was to be done on the basis of the Policy decision taken on 14.03.2023. The letter is dated 01.05.2023 and, therefore, the Petitioner’s case has been considered in accordance with the Policy of the Government existing on the day the case of the Petitioner was considered.
19. In State of Kerala v. B. Six Holiday Resorts (P) Ltd., (2010) 5 SCC 186, while considering a question of similar nature has observed as under:
“16. Two issues arise for consideration on the contentions urged:

(i) Whether an application for grant of FL-3 licence should be considered with reference to the Rules as they existed when the application was made or in accordance with the Rules in force on the date of consideration?

(ii) Whether the amendment to Rule 13(3) of the Foreign Liquor Rules substituting the last proviso is valid?

Re: Question (i)

17. This question is directly covered by the decision of this Court in Kuldeep Singh v. Govt. of NCT of Delhi [(2006) 5 SCC 702] relating to the grant of licences for sale of Indian-made foreign liquor. This Court held: (SCC pp. 713 & 715, paras 29-31 & 36)

“29. It is not in dispute that the State received a large number of applications. It was required to process all the applications. While processing such applications, inspections of the proposed sites were to be carried out and the contents thereof were required to be verified. For the said purpose, the applications were required to be strictly scrutinised.

30. Unless, therefore, an accrued or vested right had been derived by the appellants, the policy decision could have been changed.

31. What would be an acquired or accrued right in the present situation is the question.

***

36. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16-9-2005 not to grant L-52 licence, no licence could have been granted after the said date.”

18. We may in this context refer to some earlier decisions laying down the principle that applications for licences have to be considered with reference to the law prevailing on the date of consideration.

19. In State of T.N. v. Hind Stone [(1981) 2 SCC 205] this Court considered the validity of government action in keeping applications pending for long and then rejecting them by applying a rule subsequently made. This Court while holding that such action is not open to challenge observed: (SCC pp. 219-20, para 13)

“13. … The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.”

20. We may next refer to the decision in Union of India v. Indian Charge Chrome [(1999) 7 SCC 314] wherein this Court held: (SCC p. 327, para 17)

“17. … Mere making of an application for registration does not confer any vested right on the applicant. The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration.”

21. The applicant contended that it had a vested right because of the several time-bound orders of the High Court and those orders were deliberately flouted by the Excise Authorities. An identical contention was rejected by this Court while considering the issue with reference to sanction of a licence under the Building Rules in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. [(2004) 1 SCC 663] This Court held: (SCC pp. 679-80, paras 36-37)

“36. … Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant Company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of the unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time-limit fixed by the court for deciding the pending applications of the Company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject-matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the Court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applicants whose applications are pending without any intervention or order of the Court.

37. … The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ‘ownership or possession of any property’ for which the expression ‘vest’ is generally used. What we can understand from the claim of a ‘vested right’ set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a ‘legitimate’ or ‘settled expectation’ to obtain the sanction. In our considered opinion, such ‘settled expectation’, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such ‘settled expectation’ has been rendered impossible of fulfilment due to change in law. The claim based on the alleged ‘vested right’ or ‘settled expectation’ cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules….””
(emphasis supplied)

20. In view of the law laid down by the Apex Court, the case of the Petitioner was considered on the basis of the Policy of the year 2023 and the categorization of the Petitioner and placing the Petitioner in Category-II is only on the basis of categorization which existed on the date when the decision was taken and this Court, therefore, does not find any infirmity with the decision of the Respondent.
21. Accordingly, the Writ Petition is dismissed along with the pending applications, if any.

SUBRAMONIUM PRASAD, J
APRIL 10, 2024
Rahul

W.P.(C) 6466/2023 Page 22 of 22