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PETITIONER: ANJUMAN KHUDDAMUL HUJJAJ, ETC.  ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.  ETC.

DATE OF JUDGMENT:       05/05/2000

BENCH: Doraswami Raju, S.S.Ahmad

JUDGMENT:

D E R      The  present  Haj  Committee Act, 1959 [51  of  1959], which  had  replaced the Port Haj Committee Act,  1932,  was enacted  for the objects and reasons set out in the  Gazette of  India, 1959, Extra., Pt.  II Section 2, page 1161, which are as follows :  "According to the Port Haj Committees Act, 1932,  as originally enacted, three Port Haj Committees were constituted  at  the  three ports of  Bombay,  Calcutta  and Karachi.   Consequent  upon  constitutional changes  in  the country,  the  Act was suitably amended to provide  for  the continuance  of the Calcutta and the Bombay Committees only, the  reference  to  the   Karachi  Committee  being  omitted therefrom.   The  Calcutta  Committee,  however,  ceased  to function  from  1948  owing to the partition of  Bengal  and there is a balance of about Rs.15,000 lying to the credit of the  defunct  Port  Haj  Fund,  Calcutta,  which  cannot  be utilised  for  any other purpose or transferred to any  Port Haj  Fund  unless the Act is amended.  Further  all  pilgrim traffic to Saudi Arabia, Iraq and Iran is now centralised at Bombay.  2.  It is, therefore, considered desirable that the Act  should be revised to bring it in line with the  present requirements  of  the Haj pilgrims and to make the Port  Haj Committee  a  representative body of the country.   3.   The Bill  seeks to achieve this object." In order to manage  the pilgrims  traffic, a Committee, known as "Haj Committee" was constituted under the Act.  The ‘Committee’ is defined under Section 2(a).  ‘Pilgrim’ has been defined in Section 2(b) as "a  Muslim  proceeding  on or returning from  pilgrimage  to Saudi  Arabia, Syria, Iraq, Iran or Jordan." "Pilgrim  ship" has  been  defined in Section 2(c) as "a ship  conveying  or about to convey pilgrims from or to the port of Bombay to or from  any  port in the Red Sea other than Suez."  Section  4 relating  to the composition of the "Haj Committee" provides as  under  :  "4.  Composition of the Committee --  (1)  The Committee shall consist of the following members, namely :-- (a)  the Collector of Customs, Bombay, ex- officio;  (b) the Chairman,   Port  Trust,  Bombay,   ex-  officio;   (c)  the Principal  Officer,  Mercantile Marine  Department,  Bombay, ex-officio.   (d)  the  Commissioner of Police  for  Greater Bombay, ex-officio;  (e) the Municipal Commissioner, Greater Bombay,  ex-officio;   (f) the Port Health Officer,  Bombay, ex- officio;  (g) two members to be nominated by the Central Government;  (h) three members of Parliament of whom two are to  be  nominated by the Speaker of the House of the  People from  among  its  members  and one by the  Chairman  of  the Council of States from among its members;  (i) one member to represent   the  State  Government  of  Maharashtra  to   be nominated  by  that  Government;   (j) two  members  of  the

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Maharashtra  State  Legislative Assembly to be nominated  by the  Speaker  of  that  Assembly;  (k) two  members  of  the Municipal  Corporation of Greater Bombay to be nominated  by the State Government of Maharashtra on the recommendation of the  Muslim members of the Municipal Corporation of  Greater Bombay;   (l)  three  members,  of whom two  shall  be  Shia Muslims,  to be co-opted by all the members of the Committee to  represent  such  interests  as, in  their  opinion,  are directly  and  actively  interested in the  welfare  of  the pilgrims.   (2)  Every nomination under this  section  shall take  effect  as  soon  as it is  notified  by  the  Central Government  in the Official Gazette.  Section 5 provides for nomination  and  co-option  of   members,  while  Section  6 provides   for  the  Chairman   and  Vice-Chairman  of   the Committee.   Section  7  prescribes   the  term  of  office. Section  9  defines  the duties of the "Haj  Committee."  It provides  as  under :  "9.  Duties of Committees -- (1)  The duties  of  the  Committee shall be -- (a)  to  collect  and disseminate  information useful to pilgrims;  (b) to  advise and assist pilgrims during their stay in the city and at the port  of  Bombay,  while  proceeding on  or  returning  from pilgrimage,   in   all    matters   including   vaccination, inoculation,  medical  inspection  and issue of  passes  and passports,  and  to co- operate with the  local  authorities concerned  in such matters;  (c) to give relief to  indigent pilgrims;   (d)  to negotiate and co-operate with  railways, shipping  companies,  airways  and travel agencies  for  the purpose of securing travelling facilities for pilgrims;  (e) to find suitable guides for employment by shipping companies on  pilgrim ships;  (f) to bring the grievances of  pilgrims and  any irregularities or omissions on the part of a master or owner of a pilgrim ship in carrying out the provisions of the Indian Merchant Shipping Act, 1923, to the notice of the authorities  concerned,  and  to suggest remedies;   (g)  to appoint a pilgrim as "Amirul-Haj" on board a pilgrim ship to represent  the  grievances of the pilgrims to the master  or owner  of the ship;  (h) generally to look after the welfare of  the pilgrims;  and (i) to discharge such other duties in connection  with pilgrim traffic as may be prescribed.   (2) The   Central  Government  shall   afford   all   reasonable assistance  to the Committee in the discharge of the  duties imposed   by   this  section."   Section  13  provides   for constitution of sub- committees in respect of pilgrim ships. From  the above, it will be seen that since pilgrims traffic to  Saudi  Arabia, Iran and Iraq was centralised at  Bombay, from  where  pilgrim ships used to take pilgrims from or  to the  port  of  Bombay, to or from any port in  the  Red  Sea (other   than  Suez),  it   was  rightly  and  appropriately considered  proper  by  the  Legislature  to  associate  the officers  mentioned in Section 4(1)(a) to (f) as Members  of the  "Haj  Committee"  in their  ex-officio  capacity.   The services   of   these  officers,   for  purposes  of   "Haj" pilgrimage,  were placed at the disposal of the Committee by associating  them in the management of the "Haj"  pilgrimage so  that  pilgrims going on "Haj" by ship may not  face  any difficulty  either at the time of their departure or  during the  course  of  journey  by ship or on  their  return  from pilgrimage.  Now, it is not disputed even by the parties who have filed their counter affidavits, that no ship has sailed from  the port of Bombay since 1993 and all the pilgrims are taken  to Saudi Arabia and other countries by air.  The main concentration  of pilgrims is at Delhi from where they leave for  Saudia Arabia, Iran or Iraq by air.  For the last seven years,  the  pilgrims have been going to those countries  by air,  but  the officers mentioned in Section 4(1)(a) to  (f)

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continue to be Members of the "Haj Committee", although with effect  from 1993, when pilgrims ceased to be taken to Saudi Arabia,  Iran or Iraq by ship, they have practically no role to  play  in  the management of "Haj" pilgrimage.   In  Writ Petition (C) No.  542 of 1997, which was filed in this Court under  Article 32 of the Constitution, it was stated in  the counter affidavit filed on behalf of Union of India as under :   "That  with respect to contents of para number 16 it  is submitted that the Govt.  is actively considering to replace the   present  Haj  Committee  Act   in  view   of   changed circumstances."  This  Writ  Petition was disposed of  by  a 3-Judge  Bench [comprising S.C.  Agrawal, S.Saghir Ahmad and M.   Srinivasan, JJ.] by the following order dated July  15, 1998  :   "In  view of statement contained  in  the  Counter Affidavit  filed on behalf of Union of India that the  Govt. is actively considering to replace the present Haj Committee Act,  we  do  not  consider it necessary to  deal  with  the questions  raised in this writ petition at this stage.   The writ  petition  is, therefore, dismissed." In spite  of  the above  order, a new Legislation has not been enacted and the "Haj  Committee"  constituted  under Section 4  of  the  Act continues  to function in which, as pointed out earlier, the officers mentioned in Section 4(1)(a) to (f) have no role to play.   They are reported to be not taking any interest  nor do   they  attend  the  important   meetings  of  the   "Haj Committee".   Learned Addl.  Solicitor General appearing  on behalf  of Union of India has stated that the "Haj Committee Bill"  has been prepared and cleared by the Govt.  and  that it  will  be  placed soon on the floor of  the  House.   The proceedings  of  the  Court would indicate that  this  stage where  a  Bill  has been approved by the  Cabinet  has  been reached  only  after very many adjournments were granted  in the  case.   In any case, it is not disputed by the  learned Addl.   Solicitor General that with the passage of time  and change  in the mode of transport of the "Haj" pilgrims,  the Haj   Committee   Act,   1959   has  become   obsolete   and participation  of  the  Members, at least those set  out  in Section  4(1)(a) to (f), has ceased to be of any  relevance. Having  regard  to  the facts set out above,  specially  the delay  in  bringing out a Legislation, we indicated  to  the Addl.   Solicitor General that Mr.  Syed Shah Nawaz Hussain, who  is a Member of the Central Council of Ministers, may be brought  in  as Patron of the "Haj Committee" and  the  "Haj Committee"  may  function under his direct  supervision  and control,  but  this  suggestion was not accepted as  it  was pointed  out  that  Mr.   Syed Shah  Nawaz  Hussain  is  the Minister  for  Food Processing Industries, while the  "Haj", under  the  Rules  of Business, has been  allocated  to  the Ministry  of  External  Affairs  and  its  shifting  to  the Ministry   of  Food  Processing   Industries  would  not  be possible.   We, therefore, provide that till the new Act  or Ordinance   is   brought  out   and  new   and   appropriate arrangements are made under that Act/Ordinance for the "Haj" pilgrimage,  the  Foreign Secretary [at present, Mr.   Lalit Mansingh]  in the Ministry of External Affairs will control, supervise  and  oversee the performance of the present  "Haj Committee"  and it will be in his discretion to nominate, in place  of Members indicated in Section 4(1)(a) to (f),  such persons  of  merit and high integrity as would be useful  in the proper management of "Haj" affairs, on the Committee, so that  the "Haj" pilgrims do not suffer for lack of  adequate arrangements, including arrangements for their stay in Saudi Arabia,  Iran  or Iraq, and the inconvenience caused to  the "Haj"  pilgrims  this year, not only at various airports  in the  country but at Jeddah Airport, is not repeated.  We may

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make  it clear that in selecting persons for nomination,  it would  be  open  to  the Foreign Secretary to  pick  up  any experienced  Member(s)  from  the   past  "Haj   Committees" constituted during the last 15 to 20 years.  Nominations may be made by the Foreign Secretary at the earliest, preferably within  three  days from the date of communication  of  this order.   The "Haj Committee" so constituted, we may  repeat, shall  function under the direct supervision and control  of the  Foreign  Secretary  and none of its decision  would  be given  effect  to unless approved by the  Foreign  Secretary himself.   All Transfer Cases are dismissed as  infructuous. The  Writ  Petition  and  the  Special  Leave  Petition  are disposed of finally.