Per D.D Sinha, J.:— The above Chamber Summons have been filed by the applicants/intervenors seeking permission to intervene in Writ Petition (L) No. 1945 of 2011. The Chamber Summons are not specifically resisted by the petitioners as well as by the other side. Accordingly, all the above Chamber Summons are allowed.

2. (A.S) Writ Petition (Stamp) No. 26161 of 2011 was not on board. Upon mentioning, the same is taken on board.

3. Rule in all the above petitions, returnable forthwith.

The learned counsel for the respective respondents waive service.

By consent of parties, heard finally the learned Senior Advocates and counsel appearing for the petitioners in the above Writ Petitions, Mr. Sawant appearing for the applicants/intervenors, Mr. Khambata, learned Addl. Solicitor General for the respondent nos. 1 to 3 & 5 and Ms Patne appearing for the Haj Committee.

4. As these Writ Petitions give rise to common questions of law and facts, they were heard together and are being disposed of by this common Order.

5. The petitioners in these petitions have raised a common challenge to the policy of the Government of India, Ministry of External Affairs (for short the “MEA”) dated 24.6.2011 regarding registration of Private Tour Operators for the Haj to be held in the year 2011 (“2011 Haj policy”) as well as to the list dated 14.9.2011 issued by the MEA allotting pilgrim quotas to 568 Private Tour Operators (for short “PTOs”) for 45,491 pilgrims. The petitioners are aggrieved by the condition imposed in the policy which requires the PTOs to have “minimum office area of 250 sq. feet”.

6. The learned Senior Advocates for the petitioners have contended that the following facts have given rise to the filing of these petitions:

(i) On 24.6.2011 press release specifying conditions for registration of PTOs for Haj was published. The eligibility criteria required the PTOs to have a minimum office area of 250 sq. feet. The petitioners were also required to furnish Bank guarantee/performance guarantee of Rs. 10,00,000/- for every 100 pilgrims and further amounts as stipulated therein.

(ii) On 11.7.2011 the petitioners being in category 3(i) PTOs and are operating in this field for several years with an impeccable record of successfully organising the Haj tour for the pilgrims from the same premises registered under the Shops and Establishments Act submitted their applications along with all supporting documents.

(iii) On 11.7.2011 the respondent no. 4 Haj Committee (constituted by the MEA) wrote a letter to the respondent no. 2 seeking some clarification. The letter was received on 13.7.2011 by the respondent no. 1.

(iv) On 13.7.2011 the respondent no. 1 for the first time in the letter dated 13.7.2011 written to the Haj Committee in response to the aforesaid letter has stated that the office area required for registration of PTO should be 250 sq. ft. (carpet area). Last date of submission of applications for PTOs was 15.7.2011 On 5.9.2011 the respondent nos. 1 to 3 in continuation of the press release dated 24.6.2011 issued further press release stipulating therein that the criteria for Haj policy 2011 has been modified. However, the press release of 5.9.2011 did not contain the condition of 250 sq. ft. (carpet area) necessary for grant of registration to PTOs which was mentioned in the communication/letter dated 13.7.2011 sent by the respondent no. 1 to the Haj Committee. Similarly, as per the press release dated 5.9.2011 PTOs who did not qualify earlier were allowed to apply for registration of PTOs between 5th and 9 November 2011. On 7.9.2011 in pursuance of the press release, the petitioners filed their affidavit with the respondent nos. 1 to 3 as per the prescribed format indicated in the press release of 5.9.2011, which did not contain the condition of minimum office area of 250 sq. ft. (carpet area).

(v) About 124 fresh applications were received between 5.9.2011 and 9.9.2011 for grant of registration as PTOs. Though none of them was category (i) PTO, their applications were accepted on 14.9.2011

(vi) The present petitions were filed between 16.9.2011 and 23.9.2011 challenging the 2011 Haj policy of the Government of India, Ministry of External Affairs refused in press release dated 24.6.2011 as well as list dated 14.9.2011 issued by the MEA allotting pilgrim quota to 568 PTOs for 45,491 pilgrims. On 19.9.2011 ad-interim relief was granted by this Court. The relevant portion of the said ad-interim order reads thus:—

“Till the next date of hearing, the allotment list may not be implemented.”

7. Mr. Dada, the learned Senior Advocate for the petitioner in Writ Petition (L) No. 2000 of 2011 has submitted that the respondents have not given any reason whatsoever nor able to justify their decision of rejecting the petitioners' applications. The respondents have not even pleaded or demonstrated reasons or grounds on which the petitioners' applications have been rejected. The petitioners have not received any order or communication informing the petitioners about rejection of their application. It is, therefore, evident that the applications of the petitioners were rejected in a most arbitrary manner and, therefore, the action of rejection of the applications of the petitioners is wholly unreasonable.

8. Mr. Dada further contended that the respondents have not been able to justify the object of introducing condition which requires PTOs to have a minimum office area of 250 sq. ft. (carpet). It is contended that the respondents could not establish as to how the minimum office area of 250 sq. ft. (carpet) will ensure that PTOs will accomplish the object of ensuring smooth travel of Haj pilgrims. It is submitted that the respondent nos. 1 to 3 in their affidavit dated 23.9.2011 has stated that the condition of 250 sq. ft. office area has been introduced only because number of PTOs increased from 600 in 2010 to about 1300 in 2011. It is submitted that the aforesaid statement in the affidavit is palpably false and misleading, since in June 2011, viz., the date of press release, the respondents did not know the number of PTOs who still apply in 2011 will be 1300.

9. The learned Senior Advocate has submitted that the petitioners submitted their applications before due date i.e 15.7.2011 on the basis of 24.6.2011 press release. The respondents could not have changed the condition of eligibility by issuing an internal communication dated 13.7.2011 addressed to the respondent no. 4. The said communication was never published or disclosed by the respondent no. 1 by way of press release. It is contended that the press release dated 5.9.2011 modified the conditions of press release of 24.6.2011 which did not contain the requirement of minimum office area of 250 sq. ft. (carpet) and, therefore, the respondents are now estopped from contending that the petitioners do not fulfil condition which requires minimum office area of 250 sq. ft. (carpet) and could not have rejected the applications of the petitioners for grant of registration.

10. Mr. Dada, the learned Senior Advocate, has submitted that the entire decision making process in allotment of quotas is wholly arbitrary and completely unreasonable. The respondent nos. 1 to 3 prepared the list dated 14.9.2011 issued by the MEA without application of mind in an undue haste and in a totally arbitrary manner, therefore, the entire process of allocation of quotas to PTOs is vitiated. Mr. Dada has submitted that the chartered flight of the Haj Committee will commence from 29.9.2011 The PTOs have booked flights only from 7.10.2011 The re-allocation of quotas are required to be done only in respect of PTOs. In case the eligibility criteria of 250 sq. ft. is struck down by this Court, the same can certainly be done within few days since the respondents completed the process of allocation of quotas in respect of the fresh applications received from 5 September to 9 September 2011 within two working days and, therefore, the apprehension of the respondents that any alteration in respect of list of PTOs already submitted to the Government of Saudi Arabia may jeopardise the entire Haj programme is unfounded. The respondents have not placed any evidence to indicate that the Government of Saudi Arabia has informed the respondents that no further alterations in respect of list of PTOs already submitted will be permitted. The pilgrims who will be going to Saudi Arabia are scheduled to leave India in the 2nd week of October till 2 November 2011. It is submitted that this Court in exercise of extraordinary jurisdiction may set aside the impugned list which suffers from blatant arbitrariness, non-application of mind and being wholly unreasonable. It is contended that for some reason if the modified list of PTOs is not accepted by the Government of Saudi Arabia, then the list dated 14.9.2011 which is already submitted to Saudi Government can always be acted upon. It is not the intention of the petitioners that the pilgrimage programme of a large body of Hajis is scuttled. However, it is necessary that the illegal and arbitrary exercise of power by the respondents may be rectified. Mr. Dada has submitted that the Haj being a pious obligation required to be performed by all Muslims at least once during their lifetime. The press release dated 24.6.2011 recognises the entitlement of PTOs categorised under clause 3(i) and requires them to be considered first and, therefore, in view of the said eligibility criteria, the petitioners have collected advances and made bookings for pilgrims on the basis of the allotment made by the Haj Committee to the petitioners last year. Some of the pilgrims have spent their entire life savings for the said pilgrimage and will probably lose the entire amount if reliefs are not granted to the petitioners. Mr. Dada, therefore, submitted that the condition requiring minimum office area of 250 sq. ft. mentioned by the respondent no. 1 in its letter dated 13.7.2011 addressed to Haj Committee (respondent no. 4) which was not published by issuing press release or otherwise being wholly unreasonable may be struck down and the list dated 14.9.2011 issued by the MEA may be quashed and set aside.

11. The other Senior Advocates as well as counsel appearing for the petitioners in other Writ Petitions adopted the arguments advanced by Mr. Dada.

12. Mr. Khambata, the learned Addl. Solicitor General for the respondent nos. 1 to 3 and 5, has contended that every year there are about three million pilgrims (also known as “Hajis”) who travel to Saudi Arabia to perform the Haj. Since 2003 the Saudi Government has made it compulsory for PTOs to be registered with the MEA. The Government of Saudi Arabia allots a fixed number of quotas (for the purpose of visas) to each country. Every year the Government of Saudi Arabia enters into a bilateral agreement with the Government of India as regards the number of visas to be allotted and imposes certain terms and conditions for the allotment of such visas. For 2011 India has been allotted a total quota of 1,70,491 (initially 1,60,491 and thereafter at the request of the Government of India, an additional 10,000). Out of the aforesaid quota of 1,70,491, a quota of 1,25,000 is distributed by the Haj Committee and the Government of India. The PTOs have been allotted a quota of 45,491. The learned Addl. Solicitor General has contended that Haj Committee has filed an affidavit dated 27.9.2011 wherein it has stated that quota of 1,18,239 which was made available to it has already been allotted for distribution amongst the States and Union Territories on the basis of their Muslim population. The quota of 1,18,239 consists of 1,14,000 being the quota of Haj Committee and a further 4,239 was made available to it by the Government of India. The MEA has also filed an affidavit dated 28.9.2011 wherein it has been stated that most of the balance 6,761 quotas (i.e 1,25,000 - 1,18,239) has been allocated to various Hajis on the recommendation of dignitaries and eminent persons. Only about 800 quotas are still remaining to be allotted with the Government of India from this balance 6,761.

13. The learned Addl. Solicitor General has contended that when 2011 Haj policy was announced, initially 1,198 PTOS had applied by 15.7.2011 A professional agency M/s. F.A Ansari and Associates was appointed by the MEA to scrutinise and evaluate the applications as per their eligibility. The said agency informed the Haj Committee that none of the 1,198 PTOs were eligible since they were not in conformity with the eligibility criteria set out in 2011 Haj policy. Thus a Committee of four members was set up by the MEA on 1.9.2011 to modify and relax certain conditions. The modified conditions were put up on the website of the MEA on 5.9.2011 After the policy was modified, 124 PTOs had applied. Out of them, 118 PTOs had submitted applications for the first time in 2011. Therefore, there were a total of 1322 applications for 2011 Haj. Out of that, 568 PTOs were allotted quota of 45,491 Hajis. Of the aforesaid 124 PTOs, only four are part of selected PTOs numbering 568.

14. The learned Addl. Solicitor General has contended that 2011 Haj policy has three categories for registration and allotment of quotas to the PTOs. Category (i) includes PTOs already registered with the MEA. Category (ii) includes those PTOs who had applied during Haj 2008-09 but could not obtain registration from MEA. Category (iii) includes those PTOs who had applied for 2010 Haj but could not obtain registration from the MEA. The PTOs falling in category (i) get priority over category (ii) followed by category (iii). The learned Addl. Solicitor General has contended that in the case of Government of India v. AL Ameen Haj Group (Petition for Special Leave to Appeal (Civil) No. 27032/2010) with connected matter decided on 21.9.2010 by the Apex Court, the Supreme Court considered the challenge to the 2010 Haj policy which had provided only those PTOs who were registered with MEA and were allotted quota for Haj 2009 would be eligible to apply for registration and allotment of quota for Haj 2010. The Supreme Court upheld the Haj 2010 policy and directed the Government of India to consider the applications of new PTOs only if they were otherwise qualified in addition to the already existing PTOs. The Supreme Court refused to interfere with the Haj 2010 policy even though there was a period of almost one month for the Haj to commence. It is, therefore, contented that the order of the Supreme Court does not give any applicant any right to entitlement or of minimum guaranteed quota if it is otherwise not qualified. There is no vested right in law to be allotted quota merely because entity/person was an allottee in previous years. It is, therefore, contended that the respondents were justified in preparing the list of allottees dated 14.9.2011 since their applications were found to be in conformity with all the conditions of Haj policy of 2011.

15. The learned Addl. Solicitor General has submitted that the petitioners have filed an affidavit on 7.9.2011, however, did not object to any of the conditions of 2011 Haj policy, including all the subsequent modifications and clarifications thereto and have accepted the modified conditions of 24.6.2011 The petitioners have suppressed this fact in the petitions. The petitioners have by their conduct accepted all the terms and conditions of Haj policy of 2011 (including 250 sq. ft. office area) and all other subsequent modifications thereto and clarifications thereof. The petitioners, therefore, lost their right to challenge the conditions of Haj policy of 2011 including the term as to “250 sq. feet office area”. The learned Addl. Solicitor General further contended that the present petitions even otherwise are liable to be dismissed on the ground of gross delay and laches and acquiescence. The petitioners were aware of the conditions of 250 sq. ft. office area since 24.6.2011 The first flight for Haj is scheduled to leave on 29.9.2011 The petitioners have done nothing till 16 September 2011 on which date the petitioners for the first time approached this Court. Even the clarification regrading carpet area was on the MEA's website from 13.7.2011 It is contended that the petitioners have not given any satisfactory explanation for the inordinate delay caused in challenging the 2011 Haj policy and, therefore, it is liable to be dismissed on the ground of delay and laches.

16. The learned Addl. Solicitor General vehemently contented that every year the Government of India enters into a Bilateral Agreement with the Government of Saudi Arabia to work out the modalities and the terms and conditions for the grant of visas/quotas. The Bilateral Agreement for 2011 specifies the separate quotas for the Government of India/the Haj Committee (1,25,000) and the PTOs (45,491). Any alteration to the final list of PTOs at this belated stage would most likely be rejected by the Saudi Arabian Government. This would also create confusion at this belated stage and may jeopardise the final list of PTOs already submitted as well as the pilgrimage to be facilitated by the PTOs for Haj 2011.

17. The Addl. Solicitor General further contended that Saudi Government by its letter dated 10.9.2011 addressed to the Consul General of India in Saudi Arabia had recorded as per the agreement between the two countries the Government of India had agreed to send the final list of PTOs by 15.8.2011 and if there was any further delay in sending the final list of PTOs, it would be the responsibility of the Government of India. The Consul General of India in Saudi Arabia vide letter dated 12.9.2011 asked the MEA to send the final list on top priority failing which there was a likelihood of India losing its entire quota for PTOs for the 2011 Haj. It is, therefore, contended that this Court may not show any indulgence at such a belated stage which may result in jeopardising the entire quota of PTOs for 2011 Haj.

18. The learned Addl. Solicitor General has further submitted that the MEA has in its wisdom taken a policy decision and thought it fit to impose condition on every PTO whereby they were required to have a minimum office area of 250 sq. ft. This condition was imposed keeping in mind the past experience wherein the MEA had received several complaints regarding (i) the unauthorised sale of quotas by one PTO to another; (ii) sub-standard accommodation provided by some PTOs in Saudi Arabia; (iii) lack of proper transportation in Saudi Arabia; (iv) misplaced baggage; and (v) sub-standard food, etc. The MEA had received 123 complaints last year (for the Haj 2010) and after carrying out investigation, it had black-listed 13 PTOs.

19. It is contended that the condition of 250 sq. ft. office area was inserted to identify the genuine PTOs from the fly by night operators. Furthermore, the number of PTOs had also increased from 600 in 2010 to 1300 in 2011. Therefore, it was felt necessary to ensure that the PTOs have a fixed establishment. The object of imposing the requirement of a minimum 250 sq. ft. office area was to ensure that some PTOs do not abdicate their responsibility and obligation after the Haj season is over and also to make the process more accountable since the ultimate object is to protect the interest of the Hajis. It is not as if the condition relating to premises of PTOs was imposed for the first time this year. Even the 2010 Haj policy which was upheld by the Supreme Court had a condition which required the PTOs to submit a proof of establishment wherein the telephone bills/electricity bills/rental receipts/registration papers of the property were required to be submitted. The same condition was also continued in 2011 Haj policy.

20. The learned Addl. Solicitor General has contended that condition of “minimum office area of 250 sq. ft.” in common parlance, obviously means the carpet area which is the actual usable area. It will not be correct to suggest that 250 sq. ft. means the built-up area or the super built-up area as is sought to be argued by the petitioners. The object of putting this condition obviously is to see whether the concerned PTO has a sufficient usable area. It is, therefore, contended that the contention canvassed by the petitioners in this regard is misconceived.

21. The learned Addl. Solicitor General has submitted that the Haj Committee vide letter dated 11.7.2007 sought certain clarifications from the MEA. One of the clarifications sought for was as to whether the office area of 250 sq. ft. mentioned in 2011 Haj policy should be built-up area or carpet area. The MEA vide letter dated 13.7.2011 informed the Haj Committee that the requirement under the policy is 250 sq. ft. carpet area. This clarification was also put up on the website of the MEA on 13.7.2011 The learned Addl. Solicitor General has contended that the petitioners admittedly do not have an office area of 250 sq. ft. carpet area. On 25.7.2011 the Association to which the petitioners belong made a representation to the MEA requesting it to relax the condition of office area. It is, therefore, submitted that there was no confusion in respect of the requirement under the Haj policy of 2011 referable either to carpet area or built-up area. Thus, the petitioners were put on notice regarding the office area requirement as early as on 13.7.2011

22. The learned Addl. Solicitor General further submitted that the MEA is well within its competence to impose reasonable terms and conditions in the 2011 Haj policy. The condition of 250 sq. ft. carpet area is imposed bona fide by experts in the MEA in the belief that the imposition of such a condition will subserve the larger public interest. It is, therefore, submitted that the criterion of 250 sq. ft. carpet area cannot be said to be absolutely capricious or so absurd that no reasonable man could ever impose such a condition.

23. The learned Addl. Solicitor General has contended that the following exhaustive procedure was followed while evaluating and scrutinising the applications:

(i) 1322 applications underwent a three-tier scrutiny. First they were scrutinized and evaluated by M/s. F.A Ansari & Associates, a professional agency.

(ii) List of eligible and ineligible PTOs was forwarded to the Haj Committee which once again scrutinised the applications and forwarded the list to the MEA.

(iii) The MEA then again scrutinized the list sent by the Haj Committee and then prepared the list of qualified applicants to whom registration certificates were to be issued and allotment of quota for Haj 2011 was made.

The final list of 568 PTOs who were selected was sent by e-mail to the Consul General of India in Saudi Arabia on 14.9.2011 which was sent by him to Saudi authorities on the same day. Between 14.9.2011 and 16.9.2011 each of the selected and approved 568 PTOs was issued letter of registration by the MEA. The Saudi Government had also started processing the visas and issued Mualim cards of these 568 PTOs. After the list was sent by e-mail to the Saudi authorities on 14.9.2011, they informed the Consul General that the details of the PTOs were required to be sent in a particular format and this was to be translated into Arabic. That was done on 18 and 20 September 2011. It is, therefore, evident that the entire list stood implemented on 14.9.2011 much before the order dated 19.9.2011 passed by this Court. It is, therefore, respectfully submitted that change if made at a belated stage, the entire Haj for the 45,491 Hajis to be sent through the PTOs would be in great jeopardy.

24. The learned Addl. Solicitor General further contended that the contentions of the petitioners that reasons for the rejection of their applications were not communicated to them and, therefore, list of 568 PTOs should be set aside is misconceived. The petitioners have not made any complaint nor there is any ground raised in the petitions in this regard. MEA was/is ready and willing to disclose the reasons for rejection and if the petitioners could have asked for it, the MEA could have forwarded the reasons for rejection of their applications. However, since the petitioners have not made any complaint in this regard nor any ground is raised in these petitions, the contention canvassed by the learned counsel for the petitioners cannot be sustained in law.

25. The learned Addl. Solicitor General has further submitted that the petitioners have challenged the specific allotment contained in the list of 14.9.2011 in the present petitions. However, the successful PTOs have not been made parties to these petitions. The successful PTOs are necessary parties since any adverse decision on the list would gravely prejudice them and would upset the entire quota of 45,491. The petitioners have not even established that they themselves were eligible for allotment since each one of them had minimum office area of 250 sq. ft. carpet. The learned Addl. Solicitor General has submitted that during the course of arguments, the counsel for the petitioners had tendered a chart which allegedly showed that some of the disqualified petitioners had office area in excess of 250 sq. ft. The said chart at item 4 shows one of the petitioners having an area of 1015 sq. ft. Similarly, item 7 shows an area of 1010 sq. ft., item 17 is shown to have 1010 sq. ft. area, item 32 is shown to have 510 sq. ft., etc. It is contended that the information provided regarding the office area mentioned in the chart is incorrect and misleading. The MEA has scrutinised with greater detail the list of rejected PTOs. Each of the aforesaid PTOs had submitted their respective agreements/floor plans along with their applications. The agreements/floor plans show that the aforesaid persons at items 4, 7 and 17, in fact, have office areas of 180 sq. ft. and 110 sq. ft., respectively, which is much less than the requirement. It is contended that the petitioners during the course of arguments had tendered another list which shows certain alleged irregular allotments to certain PTOs having common address. The said list is also misleading and incorrect. Each of the PTOs mentioned in the said list has been found to have different addresses, different lay-outs and/or different proprietors. There was an error only with respect to the PTO mentioned at item 3 of the said list. It has been rectified and 50 seats allotted to the said PTO under category II have been withheld.

26. We have given anxious thought to the various contentions canvassed by the learned counsel for the respective parties and also taken into consideration the facts and circumstances placed before this Court by the counsel for the petitioners as well as the the learned Addl. Solicitor General as also the learned counsel for the intervenors.

27. Before we consider the challenge raised by the petitioners to the 2011 Haj policy, particularly to the condition imposed in the policy which requires PTOs to have “minimum office area of 250 sq. ft.”, it is necessary, at the outset, to consider the following facts and circumstances which are relevant to decide the issue in question and, therefore, mention below even at the cost of repetition:

(a) The MEA had on 24.6.2011 issued press release specifying condition for registration of PTOs for Haj 2011 whereby applications were invited from eligible PTOs for registration for Haj 2011. The eligibility criteria was laid down in annexure ‘A’ to the said press release. The applications were to be submitted in the prescribed format (annexure ‘B’) through the Federation of All India Haj Umrah Tour Organisers. The applications could also be received through Haj Committee of India.

(b) For registration and allotment of quota to PTOs, the Ministry decided to divide the PTOs in following three categories:—

(i) PTOs already registered with the Ministry of External Affairs.

(ii) PTOs which applied during Haj 2008 and 2009 but could not obtain the registration certificate from the Ministry of External Affairs.

(iii) PTOs which applied during Haj 2009 but could not obtain the registration certificate from Ministry of External Affairs.

(c) The Petitioners are in category (i) and the last date for receipt of application was 15.7.2011 Each PTO was required to establish that it is a genuine and established PTO and was required to produce necessary documents as per the eligibility criteria which was common to all applicants as reflected in annexure ‘A’ to the press release of 24.6.2011 The criterion which is relevant for our purposes is mentioned in (A)(iii) which reads thus:

“Minimum office area of 25 sq. feet. (Supporting documents with photographs must be attached to the application.”

On 11.7.2011 the petitioners submitted their applications for grant of registration of PTOs along with supporting documents.

(d) On 11.7.2011 the Haj Committee wrote a letter to the respondent no. 2 seeking certain clarification from the MEA. One of the clarifications sought for was as to whether the office area of 250 sq. ft. mentioned in 2011 Haj policy should be built-up or carpet area. The MEA by its clarification dated 13.7.2011 clarified that it is 250 sq. ft. carpet area. The clarification was put up on MEA's website on 13.7.2011

(e) On 25.7.2011 the Association to which the petitioners belong made a representation to the MEA requesting it to relax the condition of office area. It is, therefore, evident that the petitioners were put to notice the relevant office area requirement of 250 sq. ft. carpet area on 13.7.2011 only.

(f) The applications to the tune of 1,198 received from PTOs, including the petitioners, by 15.7.2011 were scrutinized by the professional agency, M/s. F.A Ansari and Associates and the said agency informed the Haj Committee that none of the 1,198 PTOs were eligible since they did not fulfil the criteria set out in the 2011 Haj policy and, therefore, the Committee of four members was set up by the MEA on 1.9.2011 to modify and relax certain conditions. The modified conditions were put up on the website of the MEA on 5.9.2011 However, the condition of requirement of 250 sq. ft. carpet area remained the same. The time was prescribed for submission of fresh applications for grant of registration between 5.9.2011 and 9.9.2011 124 new applications were received between the said period, 1018 PTOs had submitted the applications for the very first time in 2011. Therefore, the total number of applications received were 1322 for 2011 Haj.

(g) Out of them, 568 eligible PTOs, as per the terms and conditions of 2011 Haj policy were given registration and were allotted quotas of 45,491 Hajis. Out of 124 applications of PTOs received between 5.9.2011 and 9.9.2011, only four PTOs were eligible and granted registration.

(h) The final list of 568 PTOs was sent by e-mail to the Consul General of India in Saudi Arabia on 14.9.2011 The Consul General of India then electronically transmitted the said list to the Saudi Authorities i.e the Chairman of South Asian Moassassa Mr. Danish on the same day, viz., 14.9.2011 The Consul General of India in Saudi Arabia had telephonically intimated the Joint Secretary of the MEA of this development on 14/15.9.2011.

(i) When this Court passed an order dated 19.9.2011, for want of instructions, the counsel for the MEA could not inform the Court that the final list of PTOs was already sent to the Consul General of India in Saudi Arabia on 14.9.2011 The Arabic translation of the list was forwarded on 18 & 20 September, 2011 by Indian Consulate in Saudi Arabia.

(j) As per the case of the MEA, every year the Government of India enters into a Bilateral Agreement with the Government of Saudi Arabia to work out modalities and the terms and conditions for the grant of visas/quota. The Bilateral Agreement for 2011 specifies the separate quotas for the Government of India/Haj Committee and the PTOs. The Saudi Government by its letter dated 10.9.2011 addressed to the Consul General of India in Saudi Arabia has recorded the agreement between the two countries wherein the Government of India had agreed to send final list of PTOs by 15.8.2011 and any further delay in sending the final list of PTOs would be the responsibility of the Government of India.

(k) The Consul General of India in Saudi Arabia vide letter dated 12.9.2011 once again asked the MEA to send final list on top priority, failing which there was a likelihood of India losing its entire quota of PTOs for the 2011 Haj.

28. On the back-drop of the above referred facts, it will be appropriate to consider the decision of the Apex Court dated 21.9.2010 in S.L.P (Civil) No. 27032/2010 which was rendered by the Apex Court in the circumstances which were quite similar to one involved in the present Writ Petitions. The petitioners in the said S.L.P have challenged the judgement and order of the Division Bench of the Kerala High Court dated 13.9.2010 By the said order, the Kerala High Court had quashed the Haj policy of 2010 insofar as it prohibited registration of new PTOs for giving them Haj quota. The Apex Court set aside the judgement and order passed by the Kerala High Court by observing thus:

“1. We are informed that there are total number of 45,491 Haj pilgrims to be taken for Haj 2010 which quota is allotted to the Pvt. Tour Operators. The Private Tour Operators already stand identified whose umbers are approximately 615 and they have been selected by the Govt. of India and specified numbers of pilgrims are also being distributed amongst them giving them a specific numbers.

2. If at this stage any other order is passed, the same, in our opinion would definitely create complications and would open up a pandora's box which we do not want to do. Therefore, we are upholding the legality and validity of the Policy in principle and we are not interfering with the Haj Policy for 2010. However, while doing so, we direct the Govt. of India to consider the cases of all the respondents Private Tour Operators herein for allocation of Haj quota for Haj 2011 as stated by the Govt. of India in their policy decision for Haj 2010 and also as stated by Mr. Venugopal and if they are found to be qualified, they shall be given preference for allocation of Haj quota in addition to the already existing ones as agreed to by Mr. Venugopal particularly in view of the fact that these Respondents Private Tour Operators have been trying to get themselves registered for three years i.e for 2008, 2009 and also this year for Haj 2010. With the aforesaid observations and directions, these petitions stand disposed of. While passing this order, we leave the questions of law, which arose for consideration before the Division Bench, open.”

The observations made by the Apex Court clearly demonstrate that merely because some PTOs are in the field for few years, that by itself does not either create any vested right in them nor make them eligible to get registration and allocation of quota. In fact, the judgement of the Kerala High Court was set aside by the Apex Court and turned down the challenge made to the Haj policy of 2010 insofar as it prohibited registration of new PTOs by giving them quota. It is, therefore, clear that some PTOs who are in the field for few years cannot claim allotment of quotas to them if they do not fulfil the eligibility criteria stipulated in the concerned Haj policy. The eligibility of PTOs to get quota, therefore, needs to be decided on the basis of fulfilment of terms and conditions of the Haj policy and not on the basis of number of years they are in the field. The Apex Court has also made it clear that once PTOs are identified and specific number of pilgrims are distributed amongst them, it will not be appropriate at such a belated stage to disturb the Haj policy which will undoubtedly result in creating complications and the interest of the pilgrims would be adversely affected and, therefore, did not disturb the Haj policy of 2010.

29. In the present Petitions, the entire list of 568 PTOs in respect of 45,491 Haj pilgrims has already been submitted by the MEA to the Consul General of India in Saudi Arabia on 14.9.2011 who had also electronically transmitted the said list to Saudi authorities on 14.9.2011 and Mualim cards for 568 PTOs have also been issued. At the same time, we cannot ignore the genuine concern expressed by the MEA based on Bilateral Agreement and correspondence between the two countries which demonstrate that if at such a belated stage any change is effected in respect of final list of 45,491 Hajis already sent on 14.9.2011 to Saudi Arabia, it may result in jeopardising the entire allocation of quota made to PTOs for 45,491 Hajis. The apprehension expressed by the MEA on the back-drop of the above referred facts cannot be said to be either unfounded or baseless. Taking into consideration the facts and circumstances involved in the petitions on hand as well as the observations made by the Apex Court in paragraph 2 of the decision referred to hereinabove, we are also of the view that any interference at this stage in respect of the list of 14.9.2011 will result in multiple complications and possibility of jeopardising the interest of 45,491 Hajis also cannot be ruled out. Hence, we do not want to disturb the final list of 14.9.2011

30. So far as the challenge to the Haj policy of 2011, particularly in respect of the condition in the policy which requires PTOs to have “minimum office area of 250 sq. ft.” is concerned, we would like to express that as per the stand of the MEA, every year the Government of India enters into a Bilateral Agreement with the Government of Saudi Arabia to work out the modalities and the terms and conditions of the grant of visas/quota. It appears that the Haj policy is required to be evolved and terms and conditions thereof are required to be formulated by the Government of India, Ministry of External Affairs, for grant of quotas, based on modalities and terms and conditions mentioned in the Bilateral Agreement as well as considering the need and interest of the Hajis. It is not in dispute that the MEA is fully competent to evolve a Haj policy every year and also vested with powers to formulate such terms and conditions of the policy which will be in the interest of pilgrims, provided that such condition/s should not be capricious, absurd, unreasonable or against the public policy. It appears that condition requiring PTOs to have a minimum office area of 250 sq. ft. was imposed, bearing in mind the past experience of the MEA in order to ensure that genuine PTOs who can take proper care of pilgrims will be eligible to get registration and quotas if they fulfil the terms and conditions and will also ensure that fly by night operators engaged in unscrupulous practices causing inconvenience and hardships to Hajis should be eliminated. It is no doubt true that the condition imposed should not be arbitrary or of an excessive nature beyond what is required in the interest of Hajis. In order to be reasonable, the condition must have a reasonable relation to the object which the Haj policy seeks to achieve. It is necessary to bear in mind that the resonableness of condition needs to be determined from the stand point of the interest of Hajis and not from the point of view of PTOs upon whom the condition is imposed. The condition cannot be said to be unreasonable merely because in a given case it creates hardship, provided it is imposed to protect the interest of Hajis. There is no straight jacket formula or test of reasonableness which can be applied in all cases and it necessarily will depend upon the facts and circumstances of each case. In the instant case, it appears that the condition imposed for Haj policy of 2011 which requires PTOs to have minimum office area of 250 sq. ft. is with the object to ensure that genuine PTOs who can take care of pilgrims alone should get registration and allocation of quotas and not fly by night operators. It is no doubt true that the imposition of such condition may create some hardship for some PTOs, however, as already observed by us, the reasonableness of condition has to be determined from the stand point of Hajis and not merely from the point of view of the PTOs upon whom the condition has been imposed. It is, therefore, difficult for us to agree with the contentions canvassed by the learned respective counsel for the petitioners that the condition requiring minimum office area of 250 sq. ft. stipulated in the Haj policy of 2001 is capricious, completely irrational or totally absurd.

31. In the instant case, 1322 applications for grant of registration were received and as per the respondents, these applications were carefully scrutinized and evaluated by M/s. F.A Ansari and Associates, professional agency. The list of eligible and in-eligible PTOs was forwarded to the Haj Committee which once again scrutinized the said list. The list was thereafter forwarded to the MEA which again scrutinized the list sent by the Haj Committee and prepared the list of qualified applicants to whom the registration letters were to be issued and allotment of quota for Haj 2011 was to be made. The counsel for the petitioners have contended that the MEA committed some mistakes in scrutinizing the applications in respect of some of the PTOs. It is also submitted by the petitioners that some of the PTOs in spite of fulfilling the requirement of office area of 250 sq. ft. (carpet), their applications were kept out of consideration which demonstrates non-application of mind by the MEA while conducting scrutiny of applications. On the other hand, the learned Addl. Solicitor General has submitted that except in one case, there was a mistake committed by the MEA which was also rectified. In all other cases referred to by the petitioners whether pertaining to minimum office area of 250 sq. ft. or two agencies operating from the same place, were carefully scrutinised and it was found that the information provided in this regard by the petitioners was either misleading or incorrect and none of them was fulfilling the eligibility criteria as per the 2011 Haj policy. There is no reason for us to disbelieve the statement made by the learned Addl. Solicitor General in this regard. Even otherwise, this issue being a disputed question of fact, it will not be possible for this Court to consider the same in writ jurisdiction vested in this Court under Article 226 of the Constitution. For the reasons stated hereinabove, we do not propose to disturb the Haj policy of 2011.

32. The learned Addl. Solicitor General has submitted that there are still 800 quotas available with the Government for allotment and it is obvious that if the same is not allotted, it may either go waste or lapse. It is in these exceptionally peculiar facts and circumstances and without affecting the terms and conditions of 2011 Haj policy as well as without disturbing the list dated 14.9.2011 which is already forwarded to the Government of Saudi Arabia, only in the larger interest of pilgrims, we are of the view that the ends of justice will be met if we direct the MEA to follow the following procedures for allotment of these 800 quotas available with the Government:–

(i) The Petitioner in (A.S) Writ Petition No. 7764 2011 if fulfils the eligibility criteria mentioned in Haj policy of 2011, including the requirement of minimum office area of 250 sq. ft. (carpet), its claim be considered as per the terms and conditions of Haj policy of 2011 and appropriate decision be taken in this regard within a period of two days from today. At the same time, those who are similarly circumstanced like the petitioner in (A.S) Writ Petition No. 7764 of 2011, their applications may also be considered accordingly within two days from today.

(ii) After allotting the quotas to the PTOs mentioned in clause (i) above, for the allotment of the remaining quotas, the applications of the petitioners (PTOs) as well as others who are similarly circumstanced PTOs be considered without insisting upon the condition of minimum office area of 250 sq. ft., provided they fulfil all other terms and conditions of 2011 Haj policy and allocation of quotas should be strictly as per the priority mentioned in three categories stipulated in clause (A)(iii) of the press release dated 24.6.2011 issued by the MEA and take a decision in this regard within a period of two days from today.

33. It is made clear that the exception to the eligibility criteria of 2011 Haj policy requiring minimum office area of 205 sq. ft. is carved out only in respect of allocation of 800 quotas available for allotment with the Government which otherwise would have either gone waste or lapsed, without affecting the final list dated 14.9.2011 which is already forwarded to the Government of Saudi Arabia.

34. In the result, Rule in all the above petitions is partly made absolute in the above terms. No order as to costs.

35. At this stage, the learned counsel for the respondent nos. 1 to 3 & 5 has prayed that the direction given by this Court in paragraph 32 of the judgement in respect of allocation of 800 quotas by following the procedure stipulated in clauses (i) and (ii) of paragraph 32 of the judgment be kept in abeyance for four weeks. It is difficult for us to grant the said request because in the absence of such direction, the quota of 800 would have either gone waste or lapsed. Hence, the request is rejected.