Messrs AL-RAHAM TRAVELS AND TOURS (PVT) LTD and others vs MINISTRY OF

KHILJI ARIF HUSSAIN, J.---We have disposed of the above captioned civil petitions, by means of a short order passed by us, at the conclusion of hearing on 7-7-2011. For ease of reference, the said short order reads as under:-- "For the reasons to be recorded separately, these petitions are converted into appeals and accepted. It is, however, directed that the future Hajj Policy qua next season must be formulated well in time and made public which should be transparent and in accordance with the settled norms of justice. All the applications submitted in the Ministry of Religious Affairs, Government of Pakistan, Islamabad shall be decided in accordance with law, on their own merits and policy framed by the Government from time to time for next year. All the above captioned CMAs are disposed of accordingly".

2. The petitioners, Tour Operators, and the Federal Government in these petitions have impugned the judgment of a learned Division Bench of Lahore High Court, Lahore, passed in various writ petitions by a short order dated 6-6-2011, operative part wherefrom is reproduced hereinbelow:-- "Therefore, it is held that the respondents are duty bound to solicit, receive, consider and decide all the applications for allocation of HGOs quota for Hajj 2011 filed by the petitioners or others who are qualified in terms of the criteria reproduced above. The respondents are also under a duty to ensure competitive selection of HGOs for the Hajj 2011 fairly, transparently, and in accordance with law without imposing any extraneous conditions on the eligibility of qualified persons to compete in such selection. As a result the conditions imposed in the Hajj Police 2011 limiting the selection of HGOs of Hajj 2011 to the persons rendering service during the last Hajj 2010 or in the ones during the immediately preceding years is declared as illegal, without lawful authority and of no legal effect.

All the petitions are disposed of accordingly".

3. In the detailed reasons, dated 23-6-2011, recorded by the learned High Court, the Ministry of Religious Affairs, Government of Pakistan, Islamabad [hereinafter referred to as 'the Ministry was directed to receive applications from the petitioners and the other interested persons, who intend to get themselves enrolled as Hajj Group Organizers [hereinafter referred to as the HGOsJ, if they otherwise fulfil the criteria laid down in Hajj Policy; 2011 and their names be enlisted as the HGOs and further to apply the policy uniformly, while allocating quota to the HGOs and that the seats reserved for private sector would be distributed amongst the HGOs enrolled with the Ministry fairly and according to the merit.

4. Brief facts necessary for disposal of the listed petitions are that the Ministry announced Hajj Policy-2011, wherein it was mentioned that no fresh enrolment of HGOs will be made, and the already enrolled HGOs with the Ministry for Hajj Policy, 2010 shall continue in 2011 with the same quota. On the directions of the Prime Minister of Pakistan to formulate a new Hajj Policy, the Ministry formulated Hajj 2011 after consultation with all the stakeholders, by modifying the previous Hajj Policy-2010, in the light of the recent agreement/undertaking, concluded between the Ministry of Hajj, Kingdom of Saudi Arabia [hereinafter referred to as 'the MoH]and the Ministry of Religious Affairs, Government of Pakistan [hereinafter referred to as 'the MoRA] The salient features of the same, for the purpose of deciding these petitions, are reproduced herein below:- "HAJJ POLICY AND PLAN FOR HAJJ-2011 (i)

(ii) Hajj Scheme 2011 shall be implemented through Government Hajj Scheme and Private sector i,e, Hajj Group Organizers (HGOs) with proportionate share of around 50:50.

(iii) .

(iv) The applications under Government scheme will be invited from 15th April to 10th May, 2011 through designated banks.

(xiv)There shall be no 'fresh enrolment of HGOs in the year 2011. HGOs already enrolled with MORA in the year 2010 shall continue in 2011 with the same quota.

(xv) HGOs will offer only two packages i,e, economy and executive.

(xviii) Hujjaj Mohafiz Scheme based on the concept of `Takaful' will be launched with the contribution of Rs,400 non-refundable by each Hajj for compensation due to death/accident during Hajj.

PAKISTAN'S HUJJAJ QUOTA:

(i) Pursuant to the decision of the Foreign Minister's of Organization of Islamic Conference in the year 1987, the percentage of pilgrims was fixed in the ratio of 1000 per one mission Muslim inhabitants of the concerned countries. The criterion for determining the total as well as the Muslim population has been standardized by Saudi authorities on the basis of United Nation population statistics. As per United Nations estimates (State of World Population Report, 2010), the population of Pakistan is 184.8 Million out of which 97% is the Muslim population which comes to 179.256 Million.

(ii) In view of the above, the case was submitted to the Saudi authorities for consideration and was raised by the Pakistan delegation under the leadership of the Minister for Religious Affairs on 10th March, 2011. Resultantly, the quota of Pakistani Hujjaj has been enhanced from the last year 159,647 (2010) to 179,256 for the year 2011 with a net increase of 19,609 pilgrims.

HAD SCHEME 2011:

(i) There shall no balloting this year due to increase in quota and applicants would be considered successful on the principle of "first come first serve" to give advantage to those who apply first but are left out due to balloting.

(ii) ............................................................

(iii) During 2011, 179,256 pilgrims shall perform Hajj as agreed between the Saudi Ministry of Hajj Affairs and Ministry of Religious Affairs. Out of the total allocation of Pakistan Hajj quota, 50% would be allocated to Government Hajj Scheme and 50% to Private Scheme i,e, Hajj Group Organizers (HGOs). However, Ministry of Religious Affairs reserves the right to readjust the share of pilgrims to government and private schemes as per requirements.

5. In the policy work plan of Hajj, 2011 was also annexed which provided month wise activities/different tasks to be performed by the Government of Pakistan and the HGOs, for the smooth performance of the Hajj.

6. Prior to the framing of said policy, a meeting was held between the representatives of the MoRA and the MoH, wherein it was concluded that pursuant to the decision of the Foreign Ministers' of the Islamic Conference Organization States for the year 1987 regarding the percentage of pilgrims which was fixed in the ratio of 1000 pilgrims per every one million of the inhabitants of the concerned countries, in view of the limited legal area of Holy site (Mashai'r) and the area of Holy Mina, and due to inability to accommodate the huge number of pilgrims without proper planning, regulation and specification. Of their number, keeping in view the official Islamic statistics for the Pakistani Muslims was fixed as 179210 out of which arrangement of 89605 pilgrims would be made through the tourism companies under the supervision of Pakistani Hajj Mission. Despite the request for grant of 700 visas for the representatives of the Tour Operators to enter Saudi Arabia in the beginning of the month of Rajab (May, 2011) till the end of Ramadan (August, 2011) for the completion of arrangements of accommodation and transport for their Hujjaj coming under the supervision of the Tour Operators at Makkah Mukarramah and Madina Munawarrah and to obtain the Barcode for the pilgrims, both the countries agreed to grant 650 visas to the Tour Operators with detail instructions to the HGOs, to be followed by them on the arrival of Hujjaj. The said schedule for Tour Operators reads as under:-- "(8) SCHEDULE FOR TOUR OPERATOR

(A) Mid of Ramadhan:---The last date for the representatives of companies and tourist agencies (tour Operator) to approach the Saudi Embassies to obtain the visas for visiting to Saudi Arabia for registration and making services, (with the concerned Tawafa Establishments and the National Ext.

Of Adilla and the Integrated Agencies Office) and the transport (with the Transport Syndicate) and accommodation agreements.

(B) From 1st of Rajab to the middle of Shawal: which is the time fixed for the Tour Operator to approach the Ministry of Hajj and the Moasasah Tawafa to finalize the registration and receiving the Munazim card.

(C) From 1st Rajab to the 25 of Shawal. Tour Operator to verify and attest accommodation agreements of Hujjaj at Makkah Mukarramah and Madinah Munawarrah.

(D) From 1st Rajab to the end of Shawal: Time for approval of organizers files and issuance of stickers and visas order.

(E) The 25th of Dho-alqae'dah every year is determined as latest date for obtaining Hajj visas from the Saudi embassies/consulates.

(f) The ministry of foreign affairs and ministry Hajj hold themselves free of all responsibilities resulting due to noncompliance with the above mentioned schedules."

7. It was further decided that affixation of visa stamps for pilgrims under private scheme would be undertaken from 15th of Ramadan (15th August, 2011), visas for the Chief Executive of the HGOs were to be processed and completed by 3rd June, 2011 to 15th of September, 2011. The HGOs were required to submit the passports along with boarding cards of the HGOs to the Ministry by 22-8- 2011 and to submit flight schedules by 10-8-2011.

8. The Ministry on 19-4-2011, in terms of clauses 19 and 20 of Hajj Policy-2011, has issued criteria for enrolment of the HGOs, which criteria is being challenged through the listed petitions. The said criteria read as under:-- "CRITERIA FOR NEW ENROLMENT ' OF HAJJ GROUP ORGANIZERS (HGOs).

(1) In determining the criteria for enrolment of new Hajj Group Organizers, the Ministry of Religious Affairs shall consider all relevant factor, including but not limited to the following :--

(i) Be a private limited tourism company duly incorporated with Securities and Exchange Commission of Pakistan (SECP).

(ii) Have a paid up capital of rupees twenty (20) million.

(iii) Have five years verifiable documented experience in Tourism Umrah Ziarat.

(iv) Hold an IATA membership.

(v) Has not been convicted/involved in any criminal/civil/ administrative offence, particularly an offence relating to dishonesty, fraud/forgery/financial/investment/business crime/ misconduct or other criminal acts or been involved in any acts of misfeasance or serious misconduct.

(vi) Has not been associated with any illegal activity especially illegal deposit taking.

(vii) Has not been blacklisted by the KSA or any other foreign government in connection with Tourism Affairs including Umrah/Ziarat.

(viii)Has not been declared defaulter by any bank or financial institution in connection with payment of loan or taxes in the capacity of individual as director/chief executive or company as a whole.

(ix) Audit report of the last three years duly audited by a reputable chartered company.

9. On 7-5-2011, the Ministry issued schedule of the events with regard to the documents of Hujjaj travelling through the HGOs for the performance of Hajj, 2011 which reads as under:-- "Subject: SCHEDULE FOR HGO The competent authority has approved the following schedule of events with regard to document of Hujjaj travelling -through HGOs for Hajj, 2011:-- S. #Events Date 1 Reception of Enrolment Forms 5th May, 2011 2 Scrutiny of Forms 6th to 9th May, 2011 3 Preparation of Data base of FIGOs 11th to 13th May, 2011 4 Finalization of allocation of quota to the HGOs13th to 14th May, 2011 5 Issuance of offer letters to HGOs 14th May, 2011 6 Issuance of Hajj Application Forms to HGOs 14th May, 2011 7Collection of filled Hajj Application Forms and return of earnest money draft.15th June, 2011 8 Issuance of Recognition Letters to the HGOs 20th June, 2011 9 Collection of passports 1st August, 2011 ' This issue with the approval of Secretary Religious Affairs.

Sd/ (Muhammad Nasir Khan)

Section Officer (HP-II)"

10. The petitioners filed petitions before Lahore High Court, Lahore, with almost the same prayers, one of which is reproduced hereinbelow:-- "In the light of above submissions, it is most respectfully prayed that the respondents may kindly be directed to issue the enrolment form and format of affidavit to the petitioner for HAJJ GROUP ORGANIZERS (HGO) and the petitioner be registered permanently as HGO in the Hajj Ministry.

' It is further prayed that the ban imposed for fresh enrolment may very graciously be declared as illegal and unlawful and discriminatory and are liable to struck down/waived from the Hajj Policy 2011 and the respondents may be directed to issue the quota of pilgrims of minimum slab of 100 as per Saudi Taalimaat annunciated in the Hajj Policy 2010 and respondents be directed to give equal opportunity to all participants (HGOs) in Hajj Policy, 2011.

' Any other relief which this honourable Court deems fit and proper may also be awarded to the petitioner."

11. The High Court after hearing the parties, accepted the writ petitions and declared the restriction imposed on new enrolment for Hajj Policy-2011, to be in conflict with the provisions of Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan 1973; directed the Ministry to receive the applications from the petitioners and all other persons, who intended to get themselves enrolled as the HGOs, if they otherwise fulfil the criteria laid down in the Hajj Policy-2011; and that their names be enlisted as the HGOs. The Ministry was also directed to apply the policy uniformly, while allocating the quota to the HGOs and to distribute the seats reserved for private sector amongst the HGOs enrolled with the Ministry fairly and according to the merits. Hence, these petitions.

12. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court, representing the petitioners in Civil Petitions Nos;923 and 976 of 2011, has submitted that the petitioners have got themselves registered with the Ministry as the HGOs, in the year 2006, and since then the Ministry is observing their performance and is allocating quota in view of their performance, while de-listed the nineteen (19) HGOs on receiving complaints about their poor performance; and that the Hajj quota allocated for current year was allocated some time in May, 2010 and at present no quota is left to be distributed, even if some new HGO is registered on the basis of the criteria laid down in pursuance of Hajj Policy-2011. He has argued that the petitioners have already transferred a sum of Rs,26 billion to Saudi Arabia on behalf of the Hujjaj registered with them and steps for making arrangements of accommodation and other allied matters have almost finalized; and that the Ministry by a reasonable classification allocated quota keeping in view the capacity and performance of the each HGO. Learned counsel has contended that the impugned judgment is nullity in the eyes of law, as the same has been passed in violation of the principle of audi altrem palterm; that the HGOs are supposed to submit the passports of Hujjaj by 17th of July, 2011 and any interference in the process already undertaken by the registered HGOs within the timeframe given to them by the host country will seriously prejudice the interests of the innocent pilgrims; and that the possibility cannot be ruled out that at the end of the day, the pilgrims who were to perform their Hajj through the HGOs will be deprived of their right to the performance of Hajj. He has further contended that the High Court interfered with the policy framed by the Ministry on the basis of guidelines given by the Saudi Government, whereas the High Court cannot interfere with the policy matters in exercise of powers in its writ jurisdiction. He has added that the petitioners are corporate bodies, thus do not come under the definition of "Citizens" as provided in Article 25 of the Constitution and the High Court has committed an error of law while sticking down the policy, framed by the Ministry, being the violative of Article 25 of the Constitution. He further adds that even if there is an allegation of mala fide, a question of fact, on the part of the Ministry, the same can only be decided by recording evidence. In support of his contentions, the learned counsel has relied upon the cases of Asad Khan Mengal and others v. Muhammad Afzal Shouq and others (2010 PLC (C.S.) 532); Federation of Pakistan v. Muhammad Sadiq (PLD 2007 Supreme Court 133); Chairman, Joint Administration Committee v. Raza Hassan (1999 SCMR 965); Abdul Sattar Chughtai Malik v. Pakistan Bar Council (PLD 2007 Lahore 170); Delhi Cloth & Gen Mills v. Chief Commr. (AIR 1964 Punjab 492); and Vithal Yeshwant v. Shikandarkhan (AIR 1963 Supreme Court 385).

13. Mr. Ahmar Bilal Soofi, learned Advocate Supreme Court appearing for the petitioners in Civil Petition No, 933 of 2001, has submitted that agreement between the MoRA and the MoH is an international agreement, providing stepwise deadline by which every HGO has to undertake different tasks and if the impugned judgment is not set aside, then it will become impossible for the HGOs to achieve the given target. He has contended that even if the understanding between both the governments/countries is termed as Memorandum of Understanding (MoU), it is to be read as an agreement between two sovereign countries; that the government has to make necessary arrangements for smooth performance of Hajj by the pilgrims; and that keeping in view the large number of Hujjaj, it has been decided that the Government will undertake burden of 50% Hujjaj, whereas the remaining 50% Hujjaj will be performing Hajj through the HGOs.

14. Dr. Babar Awan, learned Senior Advocate Supreme Court for the MoRA, has vehemently argued that in the impugned judgment, some observations have been made by the High Court without any basis, and particularly he has referred to an observation that the respondents (petitioners before us) under the shelter of said instructions after enrolment of their kith and kin have shut the doors for the new entrants just to create monopoly and to avoid creation of atmosphere of healthy competition. He has contended that the only allegation of mala fide made in the petition is to the effect that enrolling and giving quota and allowing to work as HGOs in Hajj-2011 to only those HGOs, which were enrolled with the Ministry in previous years and not allowing any new HGO, no matter whether it is more competitive and better in facilities and performance amounts to discriminate the petitioners illegal, unconstitutional and malafidely. He has further contended that the Ministry has not enrolled any new HGO under Hajj Policy-2011, except the HGOs already enlisted under the orders of this Court; and that 2276 applications of the HGOs in addition to the already enrolled HGOs are in pipeline and the Ministry will take decision thereon immediately after completion of Hajj for the year 2011. He has added that it was not possible to decide all applications in such a short span of time and that it has been decided not to enlist any new HGO for the Hajj 2011, He has also contended that Article 18 of the Constitution is subject to the qualifications in terms of clause

(c) thereof which provides that the Federal Government or the Provincial Governments can carry out any trade, business, industry or service, to the exclusion, complete or partial, of other persons.

The learned counsel submits that in order to provide services to the pilgrims and to facilitate them, the Government of Pakistan has decided to perform such services through public private partnership to the extent of 50% of the total number of Hujjaj, intended to perform Hajj. He submits that the Hajj Policy-2011 has already been acted upon and respective quota has already been allocated to the enrolled HGOs, looking to their performance some time in May, 2011; that the Hajj Policy-2011 has been framed for future three years and in order to ensure continuity and transparency, ban on new enrolment has been imposed only for Hajj Season-2011 and thereafter, the applications submitted by any Tour Operator for getting it registered as HGO with the Ministry will be processed and decided in a transparent manner, keeping in view the criteria laid down for the purpose. He adds that the Government has no intention to deprive anyone, who otherwise meets the criteria given in the policy. He further adds that the writ jurisdiction of the High Court in policy matters is to be exercised rarely. He has emphasized that the only object kept by the Ministry while framing the policy before it is the welfare of the Hujjaj and for this reason it had not called upon about 2500 HGOs who had applied for enrolment to deposit a sum of Rs,500,000 each through which substantial revenue can be generated. Supporting his contentions, he relies upon Pakcom Limited v. Federation of Pakistan (PLD 2011 Supreme Court 44).

15. Ch. Aitezaz Ahsan, learned Senior Advocate Supreme Court, representing the petitioners in Civil Petition No,950 of 2011, has argued that the HGOs have been enrolled under the directions of this Court, passed in different petitions; that the policy of getting the HGOs enrolled was introduced some time in the year 2005; and that the duly enrolled HGOs have entered into an agreement with the 3rd parties for providing accommodations at Makkah Mukarramah and Maddina Monawarrah to the Hujjaj and for that a huge sum of money has been transmitted by them to the host country, He has drawn our attention to a judgment of Lahore High Court, Lahore, passed in Writ Petition No,13877 of 2010 titled as "Messrs Al-Hardety Flight Center (Pvt.) Ltd. And 2 others v. Federation of Pakistan and 5 others" to contend that while dealing with the question relating to the Fundamental Rights, enshrined in Article 18 of the Constitution, the High Court has non-suited the respondents on the same grounds, which have been agitated and answered through the judgment impugned herein. He adds that the petitioners have been condemned unheard; that Article 25 of the Constitutiqn is not applicable to a company; that the principle of equality applies only to the equally placed persons and since the respondents are not the enrolled HGOs, therefore, there is no question of violation of the said Article; that most of the jobs had already been completed by the HGOs in terms of the deadline fixed by the Ministry as well as by the Saudi Government, on the basis of quota allocated to them; and that the principle of promissory estoppel fully attracts to the facts and circumstances of the case in hand. He further adds that a considerable amount taken from the prospective pilgrims has been transmitted, which is irreversible and any order passed to upset the acts already undertaken by the HGOs will seriously prejudice to the interests of the Hujjaj, who are not present before this Court.

16. Mr. M. Ikram Chaudhry, learned Senior Advocate Supreme Court, appearing for the petitioners in Civil Petition No,976 of 2011, has contended that the HGOs have been registered on the basis of criteria laid down by the authorities concerned; that the HGOs have been allocated quota keeping in view their capacity and previous performance; that the petitioners have been condemned unheard, as they were not present before the High Court; and that the quota was allocated only to the responsible HGOs much before the judgment passed by the High Court, impugned in the present proceedings.

17. On the other hand, Mr. M. Azhar Siddiqui, learned Advocate Supreme Court for the respondents in Civil Petition No,923 of 2011, has submitted that firstly the quota was allocated to the HGOs at the time of General Zia regime. In response to the objection raised by learned counsel for the petitioners that the petitioners have been condemned unheard, the learned counsel contends that a good number of HGOs have filed applications and, appeared before the High Court, which after providing them proper opportunity of hearing passed the impugned judgment. Further contends that the Ministry, while allocating quota also put the registered HGOs on notice to the effect that the same is subject to the orders passed by the High Court and the petitioners despite having notice of the pendency of the matter before the Court have decided not to surface, therefore, at this stage, they cannot be allowed to question the validity of the well reasoned judgment on this ground.

18. In reply to the contention of petitioners' learned counsel qua non-applicability of Articles 18 and 25 of the Constitution, it has been argued that the classifications have been made without any basis and the learned High Court rightly struck down the restrictions by which fresh Tour Operators have been debarred from registration; that even if any agreement has been entered into between the two Governments, the same cannot violate the Fundamental Rights of the respondents; that the Hajj Policy-2011 was announced in April, 2011; that the offer letter, dated 23-5-2011, by which the HGOs were allocated quota, was subject to the outcome of writ petitions pending before the High Court, therefore, the petitioners cannot claim vested rights on the basis of such offer letter; that the High Court rightly held restrictions on fresh enrolment of HGOs, as an act of mala fide on the part of the Ministry, because the existing HGOs were enrolled for five years without looking at their performance and other allied matters, whereas the respondents competitors debarred from registration. He has further contended that under the similar circumstances, the High Court has granted relief to the Tour Operators in the case of Golden. Falcon Travel Services (Pvt.) Ltd. v.

Ministry of Religious Affairs (PLD 2007 Lahore 550). He has added that the Minutes of the meetings held between the representatives of two Governments could not be termed as an agreement.

19. Mr. Hamid Khan, learned Senior Advocate Supreme Court for the applicants, after taking us to the impugned judgment and various documents on record, has submitted that a restraint order was passed by the High Court and that any allocation of quota after such restraint order was subject to the outcome of the writ petitions pending before the High Court, therefore, the petitioners cannot claim vested rights on the basis of offer letter, issued in their favour. He has further contended that the short order was passed on 6-6-2011, whereas the reasons were given on 23-6- 2011; that the impugned judgment was passed by the High Court while keeping in view the fact that the Hajj was a time bound event and the judgment was announced when the Hajj operation was merely commenced; that the Ministry itself created a situation so as to frustrate the relief, which has been granted by the High Court and therefore, at this juncture they cannot take benefit of it. He has submitted that having mindful of the fact that most of the events have already taken place and respective Hujjaj have hired the services of HGOs; the Ministry accommodated new HGOs i,e, respondents from its own quota. In reply to the applicability of Article 25 of the Constitution on corporate bodies, it has been argued that a corporate body consisting of Citizens of Pakistan may claim benefit of the said Article. Supporting his contentions, the learned counsel relies upon Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133); Pakcom Limited v. Federation of Pakistan (PLD 2011 Supreme Court 44) and a passage from the book "Constitutional Law of India" authored by Mr. H.M. Seervai.

20. He has added that the exclusive right of Government monopoly under Article 18(c) of the Constitution cannot be extended on any person or a company consisting of public and private partnership; that the Government has monopoly to the extent of 50% of total Hujjaj and cannot create monopoly through public and private partnership excluding the HGOs by curbing their Fundamental Rights. He has relied upon the case reported as Ahmad Hassan v. Government of Punjab (2005 SCMR 186).

21. As regards the contention qua mala fide, it has been contended that the executive authority has to act fairly, transparently and not for the benefit of any particular person or a group of persons of its personal choice; that exercise of powers by the executive authorities for the benefit of a particular group is an act of mala fide on its part and such act cannot be recognized by the Court of Law. To support his contentions, the learned counsel has placed reliance on Zafar-ul-Ahsan v.

Republic of Pakistan (PLD 1960 Supreme Court (Pak) 113) and Hazara (Hill Tract) Improvement Trust v. Qaisara Elahi (2005 SCMR 678).

22. Mr. K. K. Agha, learned Additional Attorney-General for Pakistan has submitted that the paramount consideration for the Court would be that the Hujjaj get peace of mind. He has contended that the Hajj is a time consuming job; that deviation from the understanding with the host country may cause inconvenience; and that the Hajj Policy has already been implemented and any interference therein at this point of time may create problems to the pilgrims. He has added that the Hajj Policy was made by the Ministry on the basis of understanding with the host country which imposes restriction on the number of HGOs and that the directions of the High Court to enlist new HGOs when the existing HGOS are more than to be recognized HGOs by the Saudi Government.

23. The petitioners have questioned the impugned judgment inter alia on the following grounds:--

(a) that the petition filed by the respondents seeking the equal protection under Article 25 of the Constitution was not maintainable, as such protection is not available to a corporate body;

(b) that the respondents did not give any detail of mala fide, therefore, the observation, in this regard, made in the impugned judgment, is without any basis;

(c) that the policy framed by the executive cannot be questioned under Article 199 of the Constitution;

(d) that the performance of Hajj is a time bound event and any interference therein may cause serious prejudice to the interests of the pilgrims, who are not before the Court; and

(e) that Hajj Policy, 2011 has already been acted upon and equitable relief under Article 199 of the Constitution cannot be exercised to undo such an irreversible event.

24. We have taken into consideration the arguments advanced by the learned counsel for the respective parties and minutely perused the available record. Admittedly, the HGOs have to undertake different tasks within the timeframe, given to them by the host country.

25. As regards the contention of learned counsel for the petitioners regarding Articles 18 and 25 of the Constitution that the respondents-corporate bodies are not entitled for the protection, what appears from the policy framed by the Executive is that all the. Tour Operators have been asked whether they performed their function as sole proprietorship or not to constitute a limited company to enrol them as HGOs and thereafter the Government would be allocating quota to them. The shareholders of respondents-companies were forced/compelled to establish limited companies to meet the criteria laid down under the policy. It was not disputed by the Ministry or any one of the petitioners before us that all the shareholders of the respondents, private limited companies, were the citizens of Pakistan and in some cases they were members of the same family.

26. The authority cannot deprive the fundamental rights of the citizens by making a policy thereby compelling them to form firstly a limited company and then to non-suit on the ground, that as the company is not a citizen, thus cannot seek protection.

27. We would like to reproduce hereinbelow the relevant paragraph from the "Constitutional Law of India authored by H.M. Seervai:-- "If the corporate veil can be torn so that the employees of corporate bodies might not be deprived of their fundamental rights, there is no rational ground for not tearing the corporate veil so that the shareholders or members of a corporation who have ultimate control of the corporation may not be denied their fundamental rights. But before a question can arise whether a corporation is a citizen, two conditions must be satisfied. First, all or a majority of its shareholders must be Indian citizens,; and secondly, its management and control must be in the hands of Indian citizens. If both these conditions are satisfied, then the correct ground for holding that such a corporation is a citizen is that a Court will look behind the corporate veil to the persons, who in substance, though not in legal theory, control the management and run the company. This would also get rid of the absurd anomaly that although a partnership firm carrying on a small business can enforce its fundamental rights under Art.19, companies, State corporations, Government companies and corporations created by statute carrying on business on the most extensive scale cannot be created by statute carrying on business on the most extensive scale cannot claim those rights".

28. The question whether the fundamental rights of the shareholders, who were compelled to form company to become eligible to be enrolled as HGOs, can be denied of equal treatment merely because on the directions of the Government they decided to form private limited companies to some extent is at par with a partnership firm.

29. The question that if the law is void for citizen, then why the law should not be void or "still born" against those, who have no fundamental rights, who by operation of law not come strictly within the definition of citizen.

30. When a petition is maintainable by shareholders as held in the cases of Barium Chemicals Ltd. v. Company Law Board (AIR 1967 Supreme Court 295); A. I. Works v. Chief Controller, Imports (AIR 1974 Supreme Court 1539) and B.C. & Co. v. Union of India (AIR 1973 Supreme Court 106), the petitions filed before the High Court through the directors and the present petitions should not be treated as petitions filed through their shareholders instead of denying justice to the respondents on this technical ground.

31. Human rights cannot be confined only to the basic civil rights and liberties, including political liberty because a man cannot think for individual and collective development when he cannot meet the basic necessities of life such as minimum food, clothing, and housing. The rights to those basic necessities of life are basically and fundamentally economic rights. It means that both the basic civil rights and liberties and those economic rights must go hand in hand. They are inseparable and indivisible.

32. Even if it is accepted that a company is not a citizen for the purpose of Article 25 of the Constitution, it has the ordinary right of every person to hold property and do business and that if the right taken away or even affected by an act without authority of law would be called in question to give justifiable cause to be agitated before 'the Court.

33. The Constitution is a living organism and has to be interpreted to keep alive the traditions of the past blended in the happening of the present and keeping an eye on the future as well. The Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious.

34. It is a well settled principle that Constitution is to be interpreted liberally and saved from cosmetic circumscribed and construction. It is not a document of past or present but so it is to be interpreted in a manner to meet the changing conditions of socio-religio and economic dynamics of the State.

35. In the case of Federation of Pakistan v. Muhammad Sadiq (PLD 2007 Supreme Court 133), this Court has held that "a company incorporated under the Companies Act, 1913 or the Companies Ordinance, 1984, does not fall within the definition of a citizen. However, the constitutionality of a legislation, which has impaired the rights of a company, can be challenged through a shareholder."

The petitioners have appeared before the High Court and have not objected to the maintainability of the petitions by a company which would give an opportunity to the petitioners-company either to amend the petition or filed through his Director/shareholder or joined some of the shareholders as the petitioners. For these reasons, we are of the view that the contentions raised by the learned counsel about the maintainability of the petitions have no force.

36. We do not think it necessary to discuss this aspect further in this case, as the question involved in these petitions can be decided without touching this question.

37. As regards Article 18(c) of the Constitution, which provides that the Federal and Provincial Governments can carry on any trade, business, industry or service, to the exclusion complete or partial, of other persons, in the case of Harakchand v. Union of India, (AIR 1970 Supreme Court 1453), it was held:-- " The reasonableness of the restraint would have to be judged by the magnitude of the evil which is the purpose of the restraint to curb or to eliminate (AIT 1963 316 para 35). No abstract standard reasonableness can be laid down as applicable to all cases. The nature of right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition and prevailing conditions at the time, should all enter into the judicial verdict."

38. Clause 'c' of Article 18 of the Constitution provides as under:- "(a) ...........................................................

(b) ...........................................................

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial; of other persons."

' The proviso has three main function:-

(i) To extent some thing from the enacting clause.

(ii) To qualify or restrain its generality.

(iii) To exclude some possible misinterpretation of extending two cases not intended by the legislature.

39. Where a word of wider meaning is included in a string of genus describing terms of narrower meaning, the genus may operate to restrict D the meaning of the wider word so as to keep it within the genus.

40. The Constitution protects the fundamental rights of every citizen to join any lawful profession or occupation and to conduct any lawful business. In the proviso such Article, the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion complete or partial, of other persons can carry on any business.

41. In the case of Vithal Yeshwant v. Shikandarkhan (AIR 1963 Supreme Court 385), it was held that test of the validity of restrictions lies in the nature of the restrictions and not in the nature of trade.

42. In the case of Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 Supreme Court 57), it was held that "the general words cannot be construed in isolation, but the same are to be construed. In the context in which they are employed".

43. We are of the view that exclusion provided in clause (c) of Article 18 of the Constitution is only to the extent of trade, business, industry or service controlled by the Federal Government or a Provincial Government or by a corporation, controlled by any such Government.

44. As regards the contention of learned counsel for the petitioner that the petitioners have been condemned unheard, the same has no force in the peculiar facts and circumstances of the case.

45. It appears that a good numbers of the petitioners were represented before the High Court, the impugned judgment was passed after hearing them and further that they were put on notice by the Ministry about the pendency of the writ petitions before the High Court, and despite the allegation that the order passed by the High Court has affected their interests and rights, for the reasons best known to them, they did not opt to come forward.

46. As regards the jurisdiction of the High Court is concerned, normally the Court cannot adjudicate on Government policy unless the policy, on the face of it, is outcome of mala fide on the part of Executive.

47. From the minutes of the meeting held between the MoRA and MoH, it appears that the Ministry has requested for more than 700 visas for the HGOs to enter Saudi Arabia in the beginning of the month of Rajab (June, 2011) for completion of the arrangements of accommodations and transportation for the Hujjaj intended to perform Hajj under their supervision, however, the Saudi Government agreed to accommodate only 650 enrolled HGOs.

48. It further appears that it was not the case of the respondents before the High Court that the enrolled HGOs can claim quota as a right and it was for the Ministry to decide, how much quota is to be allocated to the HGOs.

49. From the record it appears that a huge amount has already been transmitted by the HGOs to host country for the purpose of making arrangements of accommodation, transportation and other facilities to the pilgrims. Further it appears that quota has already, been allocated to the HGOs and the Hujjaj has handed over their applications, money and passports to Cenroll HGOs for further actions.

50. As regards the contention of the learned counsel that the High Court cannot interfere with the policy matters in its jurisdiction, we have some reservations, as if the policy is in conflict with any provision of law or is violative of the fundamental rights of a citizen, the same can be called in question before the High Court in its writ jurisdiction. Reference can be made to Watan Party v.

Federation of Pakistan (PLD 2006 Supreme Court 697) and Shaheen Cotton Mills v. Federation of Pakistan (PLD 2011 Lahore 120).

51. As regards mala fide, the petitioners have alleged that the Ministry has created a monopoly of HGOs of their person of own choice and liking, based on ulterior motives and mala fides and have declared in the Hajj Policy-2011 that only those HGOs, which were given quota by the Ministry in the previous years would be eligible for enrolment for Hajj Policy-20I1 without any reference to their previous performance, eligibility and merit. The allegation made regarding mala fide was without any particular basis. It is an admitted position that none of the HGOs has been registered by the present regime. All the HGOs were registered long back and most of them under the orders of the Court. We have noted that in the impugned judgments an observation has been made that the Ministry/Petitioner in C.P. No,937 of 2011 under the shelter of said instructions after enrolment of their kith and kin have shut the doors for the new entrants just to create monopoly and to avoid creation of atmosphere of healthy competition, which appears to be without any material on record. On the contrary, just a year before passing the impugned judgment, the same High Court in Writ Petition No,13877 of 2010 held that:-- "This Court would not like to comment upon the advantages or disadvantages of the policy since it is an agreement between two countries duly signed by their respective higher functionaries. Any interference by this Court at this stage would not only supposedly crash the process being carried out but would also reflect a bad impact upon the other country with whose cooperation the criteria for Hajj has been issued. At this juncture, issuance of direction adverse to the new policy would certainly create so many problems as an understanding between the two countries has already been arrived at and finalized. Even otherwise the Courts are always reluctant in interfering with the policy matters as Government has got the authority to formulate policies from time to time. The apex Court at numerous occasions has given verdict that whenever any policy matter is involved that should not be interfered through writ jurisdiction. In this matter two governments have jointly formulated a policy so it cannot be termed to be tainted with malice or other ulterior motives on the part of Pakistani Government. The petitioners so far have not been able to point out how many favourite HGOs have been entertained by the Governments rather according to the policy as mentioned above, in view of the strict conditions imposed if by the Government itself, there is no chance of any new entrant. As per record the private HGOs were introduced for the first time in the year 2005 and so far on account of ban they are still holding fields so even the Government would not be in a position to accommodate the private companies of their own choice as, the HGOs are already functioning since, 2005. This clearly shows that the Government has least interest in this regard. So in view of this agreement arrived at between both the countries the Government of Pakistan alone cannot be forced to act in violation of the agreements reached between the two countries. So on the face of it there appears no mala fide on the part of the government at present".

52. For the foregoing reasons, the listed petitions are converted into appeals and allowed, consequently, the impugned judgments are set aside. We may observe that every year such litigation is brought to the Court, however, we expect that in future the Government of Pakistan will announce the Hajj Policy well in time and process the applications submitted by the Tour Operators, pending before the Ministry within a reasonable period of time, after providing proper opportunity, if need be, keeping in view of the guidelines given by the host country.

53. Above are the reasons of our short order dated 7-7-2011, reproduced hereinabove.