JUDGMENT

Aftab Alam, J.

SLP (CIVIL) NO.28609/2011

1. This special leave petition has been filed by the Union of India against an order passed by Bombay High Court on October 5, 2011 in a batch of writ petitions challenging the Government of India 2011 Haj Policy that required a private operator/travel agent to have minimum office area of 250 sq. ft. as one of the eligibility conditions for registration for ferrying pilgrims for Hajj. The High Court rejected the challenge but gave directions to the Government of India to allocate certain seats to some of the writ petitioners from the eight hundred seats from the Central Government quota that had not been allocated to anyone till the time of passing of the order by the court. Aggrieved by the directions given by the High Court, the Union of India filed this special leave petition and by order dated October 14, 2011 this Court stayed the operation of the directions given by the High Court. In any event, by the time the matter came before this Court, the directions could not be acted upon as there was very little time left for the commencement of Hajj for that year.

2. By a subsequent order dated February 17, 2012 this Court declared its intent to examine the Haj policy of the Government in all its aspects and not to limit the matter to the issue of Private Tour Operators (PTOs).

3. As directed by the Court, the Government of India has filed its affidavit enclosing, among other documents, its Haj Policy for the year 2012 (2012 Haj Policy). A number of intervention petitions are filed in which many issues are raised; IAs are also filed in very large numbers on behalf of private operators/ travel agents (either individually or through associations) in which objections are raised against one or the other condition for eligibility for registration as PTOs for ferrying Hajj pilgrims.

4. By this interim order, we propose to deal with some of the issues arising from the 2012 Haj Policy on a priority basis leaving others to be dealt with in due course.

THE PTOs

5. The dispute between private operators/travel agents and the Government of India for registration as PTO for carrying Hajj Pilgrims is of a recent origin but is tending to become an annual feature. It is, therefore, necessary to address the issue and to conclusively resolve it.

6. In order to clearly understand the context in which the dispute arises a few facts are required to be taken into account. Under a bilateral agreement signed between the Government of India and the Kingdom of Saudi Arabia every year, the latter Government assigns a fixed number of pilgrims that are permitted to visit Saudi Arabia for performing Hajj. Out of the overall number, a relatively small portion is specified for the PTOs and the rest for the Haj Committee of India. Before 2002, the PTOs were allocated Hajj seats directly by the Kingdom of Saudi Arabia and there was, therefore, no involvement of the Government of India in the allocation of any Hajj quota to the PTOs. After Hajj 2001, the Kingdom of Saudi Arabia made it mandatory for the PTOs to come through their respective Governments. From 2002, therefore, the Government of India was obliged to evolve a system under which private operators/travel agents would be registered as PTOs and following the registration would be allocated quotas from the overall number of pilgrims specified for PTOs. It is, thus, to be seen that a private operator/travel agent needs first to get registered as PTO and it would then get a fixed number of pilgrims for carrying for Hajj. For registration of a private operator/travel agent as PTO, the Government of India frames policy laying down conditions subject to which registration would be given. It further frames a policy for allocation of quotas to the registered PTOs from the overall number of pilgrims assigned to PTOs in the bilateral agreement with the Kingdom of Saudi Arabia. As noted above, this arrangement began from 2002 when the Kingdom of Saudi Arabia made it mandato