Federation Of Registered ... vs Union Of India And Ors.
1990 Latest Caselaw 555 Del

JUDGMENT

B.N. Kirpal, J.

(1) The challenge in this writ petition is to the order dated 28th May, 1990 whereby respondent No. 4 was required to make selection of persons who would go on pilgrimage to Pakistan.

(2) Briefly stated the facts are that there are various groups of pilgrims, commonly known as Jathas, who go to Pakistan for pilgrimage on different occasions during a year. The number of pilgrims who are to be granted visas by the Government of Pakistan is limited. This restriction, which is placed by the Government of Pakistan, is communicated to the Government of India and quotas are allotted to different States for selection of pilgrims.

(3) Previously the petitioner, respondent No. 4 and one other organisation had been empowered to make recommendations to the Government of India for selecting the pilgrims. In fact, these three organisations were allocated a specific quota and recommendation would bs made thereto accordingly. The names which are forwarded are scrutinised by the Government of India and list of pilgrims is finally approved.

(4) This practice which was being followed by the Delhi Administration was discontinued in early this year when the Delhi Admn. decided that selection would be made only by respondent No. 4.

(5) Being aggrieved, a writ petition was filed being Civil Writ No. 597/90 wherein the present petitioner challenged its disassociation from the process of selection. Vide our judgment dated 9th May, 1990 it was noticed that in August, 1988 a wireless message had been sent by the Ministry of External Affairs with regard to the selection or pilgrims to be seat to Pakistan and the said wireless message contained the manner in which the selection could be made. It was observed that the new policy of requiring respondent No. 4 to sponsor the names was formulated with the aforesaid decision of the Government of India. Taking a cue from the action of the Administrator in the Haj Committee and also in view of the directions which were contained in the aforesaid wireless message we issued a writ of mandamus directing the Administrator to constitute a Advisory Committee consisting of prominent religious organisations and individuals of Delhi. The manner in which the Advisory Committee was to make selections was also specified and it was directed that ultimately the names should be selected by draw of lots. Lastly, it was made clear that the said decision would be subject to any policy formulated by the Union of India in future.

(6) The respondents filed a Special Leave Petition against the said decision. In the meantime, on 21st May, 1990 a letter was written to the Ministry of External Affairs, by the Delhi Administration, inter alia, to the effect that the Delhi Admn. have proposed that selection of the pilgrims be made by respondent No. 4. A letter dated 28th May, 1990 was received by the Delhi Admn. from the Ministry of External Affairs in which it was, inter alia, stated that the Ministry concur with the existing procedure which had been devised by the Administration for the selection of pilgrims.

(7) When the Special Leave Petition came up for hearing, the Supreme Court noted that it was the case of the Union of India itself that a new policy had been formulated and, therefore, the Special Leave Petition was dismissed. The new policy which was formulated is the one which is referred to in the aforesaid letter of 28th May, 1990.

(8) The petitioners have filed the present writ petition challenging the decision of the Union of India contained in the aforesaid letter of 28th May, 1990.

(9) During the pendency of this writ petition, affidavit has been filed on behalf of respondents, inter alia, to the effect that guidelines have been laid down which are required to be followed in selecting pilgrims to visit Gurdwaras in Pakistan. These guidelines which were formulated have been approved by the Lt. Governor. The guidelines are as follows :- 1. A public notice shall be issued through advertisement in the press for inviting applications. A public notice shall also be affixed in the office of the Delhi Sikh Gurdwara Management Committee and all Gurudwaras under its management and control. 2. The applications from the intending pilgrims shall be in the form prescrioed, containing all the particulars mentioned in the Delhi Administration letter No. F.2(54)89-PP/11/4109 dated, 27th August, 1990. 3. Delhi Sikh Gurudwara Management Committee shall constitute and appoint a sub-committee called "Yatra Committee" (Pilgrimage Committee). The sub-committee shall consists of minimum seven and not more than eleven members. 4. The Yatra Committee shall screen applications submitted by intending pilgrims. Selection shall be by draw of lot. 5. No person shall be eligible for pilgrimage to Pakistan if such person has already availed opportunity of pilgrimage during the five preceding years. 6. Preference shall be given to those persons who have not on any earlier occasion gone on pilgrimage to Gurudwaras in Pakistan. 7. A family up to the limit of four members shall be treated as one unit. 8. No application which does not comply with the conditions set out by Delhi Administration from time to time, for pilgrimage to Pakistan shall be entertained. Such applications shall be deemed to be rejected. 9. A list of names prepared by Delhi Sikh Gurudwara Management Committee shall be sent to Delhi Administration for their administrative scrutiny and such action as it may deem proper.

(10) Before dealing with the contention of the learned counsel for the petitioners we might note that it has been stated by both the respondents that the selection by draw of lots shall be made in the presence of an officer of the Delhi Admn. on a date and time announced publicly and to this extent afore-said guideline No. 4. would stand modified. It is further stated that the preference of selection of pilgrims referred to clause 6 will also be decided similarly. namely, by draw of lots in the presence of a representative of the Delhi Admn.

(11) Learned counsel for the petitioner contends that even if the procedure now adopted by respondent No. 4 for selection of the pilgrims may not be open to much criticism nevertheless it is the appointment of respondent No. 4 as sort of a agent to select the pilgrims which is objectionable. The learned counsel submits that respondent No. 4 is a partisan body and is not in control of and does not manage over a thousand Gurudwaras in Delhi. It is further alleged that respondent No. 4 is not a sole representative of the Sikh community in Delhi.

(12) Without going into the controversy as to whether respondent No. 4 represents the whole or the majority of the Sikh community in Delhi and assuming that the submissions of Mr. Chidambram in this behalf are correct nevertheless we feel that the action of the respondents does not call for any interference.

(13) The first question which arises for consideration is whether it is incumbent on the Government to select the pilgrim itself or can such a power be delegated. It has not been contended by Mr. Chidambram, and rightly so, that the power cannot be delegated. His submission, however, is that it has not been properly delegated in the present case. He submits that in the earlier decision of this court it had been directed that an Advisory Committee similar to a Haj Committee should be nominated and it is that Body of neutral persons who should nuke the selections.

(14) Perhaps the appoint of neutral body as an agent to make selection would call for least adverse criticism. It is indeed unfortunate that no information has been given to us as to whether the direction which was issued by this Court regarding the appointment of an Advisory Committee was considered by the Delhi Admn. on merits. When a Court makes a suggestion the least which would be expected is an application of mind by the administration to the suggestion so made. It is possible that the suggestions made by the Court may not be practical or does not promote a better solution to a problem but it should not always be presumed by the administration that the suggestion made by the Court is not worthy of consideration and should bedisregarded. As far as we recollect there was no consideration by the Delhi Admn, or by the Union of India as to why a Committee like a Haj Committee could not be formulated for selecting pilgrims to go in the Jathas.

(15) Be that as it may, and reverting to the facts of the present case, the question arises whether the selection of respondent No. 4 as an agent of the Government calls for any interference. Even though the appointment of Advisory Committee may have been a better solution, and we still think so, nevertheless when a discretion has been exercised by the Government then unless the discretion is arbitrary or unreasonable the Court would not interfere in the exercise of such a discretion.

(16) Even prior to the change of the policy respondent No. 4 was one of the three agents who selected the pilgrims. In fact, the selection at that time was according to the whims and fancies of the three agents. What has happened now is that two of these three agents have been removed and restrictions or controls have now been placed. If respondent No. 4 is an agency which could legitimately be entrusted with the powers of selecting 50 per cent of the pilgrims, which it used to prior to 1990, then it will be difficult for us to hold that it is not fit to act as a processing agent in regard to the selection of 100/o of the pilgrims, especially, when respondent No. 4 is not meant to have any discretion in me matter of selection. As we view the guidelines it is clear that the discretion of respondent No. 4 in the manner of selection of pilgrims has been, we hope, eliminated. The selection has to be made by draw of lots in the presence of a representative of the Delhi Admn. the procedure which is now to be adopted appears to us has to be very fair and akin to the procedure which is followed by the Haj Committee.

(17) It was submitted that some of the Sikhs, sikhs like Nirankaris, Narndhar is, Ramdasis etc. may not like to approach respondent No. 4 for pilgrimage. May be because some pilgrims may have such individual predilections can be no ground for us to hold that the selection of an agent is unreasonable. If the prospective pilgrim is not entertained or his application accepted because he is a Nirankari or Narndhar is or Ramdasi, then there can be a legitimate grievance, but this is not the case here. We hope that the fears expressed are unfounded.

(18) For the aforesaid reasons, we find that the action of the respondents, n the light of what has been stated hereinabove, calls for no interference. The petition is accordingly dismissed. No costs.