2019 PLP 1210 (MLD)

MUHAMMAD FARRUKH IRFAN KHAN, J.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the Hajj Policy and Plan 2019 on the ground that the Government has unnecessarily increased the cost of Hajj and withdrawn the subsidy given by the former governments.

2. Heard. Hajj Policy, 2019 is made by the Ministry of Religious Affairs (MORA) and duly approved by the Cabinet. It is well settled law that policy decision exclusively falls within the domain of the executive and is not open for any judicial review in the absence of any illegality, arbitrariness or established mala fide. In case reported as Tata Cellular v. Union of India (36(1994)6 SCC 651), the Indian Supreme Court laid down following parameters for judicial review:-- "

77. The duty of the court is to confine itself to the questions of legality. Its concerns should be: (1) Whether a decision-making authority exceeded its powers? (2) committed an error of law, (3) committed a breach of the rules of natural justice. (4) reached a decision which no reasonable tribunal would have reached or, (5) abused its power. Therefore, it is not for the court to determine whether a particular policy decision taken in the fulfillment of that policy is fair. It is only concerned with the matter in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: - Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety."

3. In R v. Deptt. of Constitutional Affairs [2006 All ER (D) 201] even some deviation from the best practice was found to be no justification for judicial review. It was held by the Court that "it is not every wandering from the precise paths of best practice that lends fuel to a claim for judicial review."

4. Learned counsel for the petitioner argued that hike in the hajj expenditures is based on mala fide. The allegation of mala fide is a question of fact requiring factual inquiry. It is well established principle of law that judicial review of an administrative order/action in the absence of un-rebuttable material on record regarding mala fide, the Court should not intervene with the said order of Executive Authority which otherwise is free from any illegality or jurisdictional flaw. Reliance is placed on case reported as Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151) wherein it has been laid down as under:-- "Mala fides is one of the most difficult things to prove and the onus is entirely upon he person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. "Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. "

5. There is no material available on record that Hajj Policy, 2019 has been framed by the government for some personal gain, therefore, general allegation of mala fides is not sufficient for judicial review of executive action.

6. In case reported as Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. (PLD 2014 Supreme Court 1) where this Court by an interim order intervened in the Hajj Policy, 2013 it was set-aside by the Hon'ble Apex Court while observing that framing of Hajj Policy is, the domain of Ministry of Religious Affairs and in the absence of mala fide and arbitrariness it is not open for the High Court to annul the policy framed by the competent authority. It has been further laid down in the above reported judgment in the following manner:- "One of the seminal principles of the Constitution of Islamic Republic of Pakistan is the concept of trichotomy of powers between the Legislature, Executive and the Judiciary. This principle underpins the rationale that framing of a government policy is to be undertaken by the Executive which is in a better position to decide on account of its mandate, experience, wisdom and sagacity which are acquired through diverse skills. The Legislature which represents the people enacts the law and the law so enacted acquires legitimacy. The judiciary on the other hand, is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of disputes between the individuals inter se and between individual and the State. We may remind ourselves that judiciary neither has sword nor purse. The legitimacy and respect of its judgments is dependent on peoples' confidence in its strict adherence to the Constitution, its integrity, impartiality and independence. In changing times and judicialization of political issues, a certain degree of judicial activism by fearless and impartial judiciary is also essential for maintaining its integrity and peoples' trust. In most of the modern democracies, judiciaries have been called upon to provide wider meaning to various provisions of the Constitution so as to meet the challenges of modern times and to fill the gap between the law and the requirement of substantive justice. Every institution has to play its role in enforcing the Constitution and the law. It is a multi-disciplinary exercise. However, implementation of rule of law is the primary function of judiciary. This role is multidimensional and the most challenging facet of this role is to keep various institutions and the judiciary itself within the limits of their respective powers laid down in the Constitution and the law. The legitimacy of its judgments does not arise from the beauty of language or the use of populist rhetoric. Rather it radiates from the dynamism reflected in interpreting the Constitution in particular its Fundamental provisions, in judicial restraint displayed in deference to the principle of trichotomy of powers, and in an impersonal and impartial application of law."

7. In view of the above, in the absence of any illegality, arbitratiness and established mala fide on the part of the Executive, this Court is not inclined to interfere in the matter. This writ petition is, therefore, dismissed. MH/A-30/L Petition dismisse