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TMI Blog2011 (10) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... 967 of 2011, Writ Petition (L) No. 1982 of 2011, Writ Petition (L) No. 2000 of 2011, Writ Petition (L) No. 2001 of 2011, Writ Petition (L) No. 2002 of 2011, Writ Petition (L) No. 2003 of 2011, Writ Petition (L) No. 2005 of 2011, Writ Petition (L) No. 2006 of 2011, Writ Petition (L) No. 2007 of 2011, Writ Petition (L) No. 2008 of 2011, Writ Petition (L) No. 2009 of 2011, Writ Petition (L) No. 2010 of 2011, Writ Petition (L) No. 2011 of 2011, Writ Petition (L) No. 2012 of 2011, Writ Petition (L) No. 2013 of 2011, Writ Petition No. 2014 of 2011, Writ Petition (L) No. 2015 of 2011, Writ Petition (L) No. 2016 of 2011, Writ Petition (L) No. 2017 of 2011, Writ Petition (L) No. 2018 OF 2011, Writ Petition (L) No. 2019 Of 2011, Writ Petition (L) No. 2020 of 2011, Writ Petition (L) No. 2041 of 2011, Writ Petition (L) No. 2042 of 2011, Writ Petition (L) No. 2043 of 2011, Writ Petition (L) No. 2044 of 2011, Writ Petition (L) No. 2045 of 2011, Writ Petition (L) No. 2046 of 2011, Writ Petition (L) No. 2047 of 2011, Writ Petition (L) No. 2048 of 2011, Writ Petition (L) No. 2049 of 2011, Writ Petition (L) No. 2050 of 2011, Writ Petition (L) No. 2051 of 2011, Writ Petition (L) No. 2052 of 2011, Wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r respondent nos. 1, 2, 3 and 5 (A.S.) Writ Petition (Stamp) No. 26161 of 2011 and Ms Lata Patne for respondent No. 4 (A.S.) Writ Petition (Stamp) No. 26161 of 2011 ORDER D.D. Sinha, J. 1. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 9th 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 5th September to 9th 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Muslim 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajis. 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 reasonableness 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 Haji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicitor 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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