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IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. 4982/2013 of 2013
IN THE MATTER OF :
Indian Social Action Forum (INSAF) . Petitioner
Versus
Union of India . Respondent
URGENT APPLICATION
To,
THE REGISTRAR,
OF THE HIGH COURT OF DELHI,
AT NEW DELHI.
Sir,
Kindly treat the accompanying Writ petition as an urgent one as per the
Delhi High Court Rules.
It is most humbly prayed that an urgent hearing be given.
Through
KABIR DIXIT, BUSHRA PARVEEN & MAMTA SAXENA
ADVOCATES FOR THE PETITIONER102, New Lawyers Chambers,Setalvad Block, Supreme Court of India
Bhagwandas Road, New Delhi 110001
09999087047, 09899217734,09811819289
Date:
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IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. 4982/2013of 2013
MEMO OF PARTIES
Indian Social Action Forum (INSAF)
Through its General Secretary,
A-124/6, Katwaria SaraiNew Delhi . Petitioner
Versus
Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, Central Secretariat
New Delhi 110 001 . Respondent
Through
KABIR DIXIT, BUSHRA PARVEEN & MAMTA SAXENAADVOCATES FOR THE PETITIONER
102, New Lawyers Chambers,
Setalvad Block, Supreme Court of India
09999087047, 09899217734,09811819289
Date:
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IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
Civil W.P No. _____ of 2013
IN THE MATTER OF:-
Indian Social Action Forum (INSAF) Petitioner
VERSUS
Union of India Respondent
NOTICE OF MOTION
To,
The Standing Counsel,
Union of India, Chamber Nos. 449-450,
Delhi High Court.
Please take note that the above noted matter will be listed on ..08.2013
before the Honble High Court of Delhi. It is, therefore, requested to you to
please enter your appearance on the said date.
PETITIONER
Through
KABIR DIXIT, BUSHRA PARVEEN & MAMTA SAXENA
ADVOCATES FOR THE PETITIONER102, New Lawyers Chambers,
Setalvad Block, Supreme Court of India
09999087047, 09899217734,09811819289
Date:
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SYNOPSIS & LIST OF DATES
This Writ Petition under Article 226 of the Constitution has been filed
to challenge the order dated 30.04.2013 passed by the Ministry of Home
Affairs, Union of India-Respondent herein suspending the permanent
registration of the Petitioner-Forum for 180 days under Section 13 of the
Foreign Contribution (Regulation) Act, 2010. It is submitted that the
impugned order is legally unsustainable as it does not meet the requirement of
reasoned written order of suspension provided in Section 13 (1) of the
Foreign Contribution (Regulation) Act, 2010. It is arbitrary, unreasonable,
malafide and violative of Article 14 of the Constitution as well as the
Principles of Natural Justice.
It is submitted that the Legislature, in its wisdom, incorporated this
important safeguard under Section 13 (1) of the Foreign Contribution
(Regulation) Act, 2010 (FCRA) that the registration of an association under
the Act can be suspended only for reasons to be recorded in writing. This
safeguard was incorporated with a view to preserve the observance of
principles of natural justice in the exercise of the administrative power of
suspension of FCRA registration, which has severe implications for the
fundamental rights of freedom of speech and expression, freedom to form
associations and to carry out any occupation for the citizens and their
voluntary associations in the country. This important safeguard seeks to afford
some protection to associations from arbitrary exercise of the power of
suspension of FCRA registration by the Government. As such it is iterated
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that the safeguard that suspension of registration shall only be for reasons to
be recorded in writing is an important one and should not be permitted to be
diluted.
The impugned order suspends the petitioners registration by simply
stating that the Central Government having regard to the information in its
possession is satisfied that the acceptance of foreign contribution by the said
association Indian Social Action Forum is likely to prejudicially affect public
interest. It is submitted that the words likely to prejudicially affect public
interest in the impugned order are not reasons recorded in writing but a
verbatim reproduction of one of the grounds namely, public interest,
mentioned under Section 14 (1) of Foreign Contribution (Regulation) Act,
2010 for cancellation of an associations permanent registration.
A conjoint reading of Section 13 and 14 of the Foreign Contribution
(Regulation) Act, 2010 clarifies that an order of suspension of registration
under Section 13 must be passed for reasons to be recorded in writing and a
mere verbatim reproduction of a ground for cancellation of registration as
mention in Section 14 (1) namely public interest, would not meet the
requirement of a reasoned order. It is, therefore submitted that the impugned
order does not qualify the requirement of for reasons to be recorded in
writing provided in Section 13 (1).
It is further submitted that suspension of petitioners registration is an
arbitrary and colorable exercise of the Respondents power of suspension
under Section 13 (1) of the said Act. The impugned order has been passed
without any valid reasons, punitively, to penalize the petitioner for having:
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a. challenged Section 5(1) and 5(4) of the Foreign Contribution
(Regulation) Act, 2010 and Rules 3(i), 3(v) and 3(vi) of the Foreign
Contribution (Regulation) Rules, 2011 as being violative of Articles
14, 19(1)(a), 19(1)(c) and 21 of the Constitution, in SLP(C)
No.33928 of 2011 (pending) filed against the order/judgment dated
16.09.2011 passed by the Delhi High Court in W.P (C) No.5793 of
2011; and
b. Pursued programs for the promotion of human rights, environmental
protections and promotion of sustainable livelihoods, which the
Government did not approve of.
It is submitted that if Section 13 has to be read in consonance with the
Principles of Natural Justice and Article 14 of the Constitution, the following
conditions are required to be fulfilled:
(i) Before passing the order suspending the certificate, a show cause
notice mentioning the reasons and enclosing the required documents should to
be given seeking explanation / reply.
(ii) After receipt of the reply, the Central Government is required to give
hearing to the concerned organisation / person.
(iii) The Order under Section 13 can be passed thereafter giving reasons.
(iv) The reasons must disclose that the concerned authority of the Central
Government has objectively, rationally and reasonably satisfied itself.
(v) The order has to be given in writing.
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The above requirements, among others, are mandatory as Principles of
Natural Justice ought to be complied with in view of the order envisaged in
Section 13, which has serious civil and evil consequences.
That consequent to the suspension order, the bank accounts of the
Petitioner-Forum were frozen by the Respondent.
Due to pendency of Special Leave Petition (C) No.33928 of 2011,
which was filed by the Petitioner challenging Section 5(1) and 5(4) of the
Foreign Contribution (Regulation) Act, 2010 and Rules 3(i), 3(v) and 3(vi) of
the Foreign Contribution (Regulation) Rules, 2011, the petitioner filed an
application being I.A No. 1 of 2013 before the Honble Supreme Court
seeking quashing of the order dated 30.04.2013.. However, vide order dated
10.05.2012, this Honble Court adjourned the matter to enable the Petitioner
to file substantive application challenging the impugned order. The Petitioner
thereafter filed Writ Petition No.535/2013 before the Honble Supreme Court
challenging the impugned order dated 30.04.2013 and also Section 13(1) and
14(1)(c) of the Foreign Contribution (Regulation) Act, 2010 as being
unconstitutional and violative of Article 14. Both the Writ Petition, I.A No.1
of 2013 and the Special Leave Petition (C) No.33928 of 2011 came-up for
hearing before Honble Supreme Court of India on 22.07.2013. The Honble
Court while disposing of the Writ Petition gave liberty to the Petitioner that it
may take recourse to any other remedy available in law to challenge the order
dated 30.04.2013 and the validity of Sections 13 and 14 of the Foreign
Contribution (Regulation) Act. By this Writ Petition, the petitioner is
challenging order dated 30.04.2013, reserving its right to challenge Sec 13
and 14 of the Act, at a later stage, if required. Hence, this Writ Petition.
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LIST OF DATES
2004 Petitioner-Forum is a forum of peoples movements,
NGOs, human rights groups, having activities all
over India. The Petitioner-Forum is a registered
society vide Registration No. S-49085/04 vide
certificate dated 5.5.2004.
30.04.2013 An Order vide letter F.No. II/21022/58(034)/2013
FCRA (MU) dated 30.04.2013 was passed by the
Ministry of Home Affairs, Union of India-
Respondent herein under Section 13 of the Foreign
Contribution (Regulation) Act, 2010, suspending the
permanent registration of the Petitioner-Forum for
180 days, without giving any reasons.
02.05.2013 The Petitioner received a communication by which
the concerned department of Ministry of Home
Affairs sought point-wise reply from the Petitioner.
It is pertinent to mention that after passing of the
impugned order date 30.04.2013 the Respondent has
sought information in the form of questionnaire
appended with the abovesaid communication, and
not before the said order.
07.05.2013 The Petitioner- Forum had filed Special Leave
Petition (C) No.33928 of 2011 against the order
dated 16.09.2011 passed by High Court of Delhi in
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Writ Petition No.5793 of 2011 challenging Section
5(1) and 5(4) of the Foreign Contribution
(Regulation) Act, 2010 and Rules 3(i), 3(v) and
3(vi) of the Foreign Contribution (Regulation)
Rules, 2011.Due to pendency of the said Special
Leave Petition, the Petitioner filed an application for
directions (being I.A No. 1 of 2013) seeking
quashing of the order dated 30.04.2013 passed by
the Ministry of Home Affairs and allowing the
petitioner to utilize the funds and to operate the
bank accounts of the Petitioner-Forum.
10.05.2013 I.A No. 1 of 2013 was listed before the Honble
Supreme Court and the Honble Court had
adjourned the matter till last week of July to enable
the Petitioner to file a substantive application
seeking quashing of the order dated 30.04.2013.
14.05.2013
21.05.2013 The Petitioner made applications seeking
permission for releasing the funds as per the
provisions of the Act for clearing their dues towards
the expenditure being made during the relevant
period along with the details of the expenditure.
This also included payment of salary to the
employees and office expenses.
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14.06.2013 The Petitioner-Forum again wrote to the
Respondent requesting release of funds of the
Petitioner- Forum and extension of time to furnish
reply to the questionnaire dated 02.05.2013 since
the staff, under financial distress had proceeded on
leave. The Petitioner had enclosed the details of
salaries and other administrative expenses required
to be met urgently.
18.6.2013 Respondent asked for the details as required by the
letter dated 2.5.2013.
27.06.2013 The Respondent vide letter dated 27.06.2013 stated
that for release of funds the Petitioner-Forum has to
first submit the documents as required by them vide
letter dated 02.05.2013.
3.07.2013 The Petitioner being aggrieved of the arbitrary and
malafide action taken against them by the
Respondent preferred substantive petition i.e. writ
petition under Article 32 for setting aside the order
dated 30.04.2013 and also challenged Section 13(1)
and 14(1)(c) as being unconstitutional.
22.7.2013 Both Writ Petition, I.A No.1 of 2013 and the Special
Leave Petition (C) No.33928 of 2011 came-up for
hearing before Honble Supreme Court of India.
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The Honble Court while disposing of the Writ
Petition gave liberty that the Petitioner may take
recourse to any other remedy available in law to
challenge the order dated 30.04.2013 as well as to
the validity of Sections 13 and 14 of the Foreign
Contribution (Regulation) Act.
23.07.2013 The Petitioner submitted the information and
documents sought for by the Respondent vide
questionnaire dated 02.05.2013.
2.8.2013 Hence, the Writ Petition.
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IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
W.P (Civil) No. _____ of 2013
IN THE MATTER OF :
Indian Social Action Forum (INSAF)
Through its General Secretary,
A-124/6, Katwaria Sarai
New Delhi . Petitioner
Versus
Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, Central Secretariat
New Delhi 110 001 . Respondent
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUION OF
INDIA
TO
THE HONBLE THE CHIEF JUSTICE
AND HIS COMPANION JUDGES
OF THE HIGH COURT OF DELHI AT NEW DELHI
MOST RESPECTFULLY SHEWETH:
1. That this Writ Petition under Art. 226 of the Constitution has been filed
by Petitioner challenging the Order F.No. II/21022/58(034)/2013
FCRA (MU) dated 30.04.2013 passed by the Ministry of Home Affairs,
Union of India-Respondent herein under Section 13 of the Foreign
Contribution (Regulation) Act, 2010, suspending the permanent
registration of the Petitioner-Forum for 180 days, as arbitrary, malafide,
unjust and violative of Article 14 of the Constitution as well as the
Principles of Natural Justice. A true and correct copy of the impugned
order dated 30.04.2013 is Annexure P-1.
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2. That initially the petitioner had filed I.A No.1 of 2013 challenging the
order dated 30.4.2013 in the pending SLP(C) No.33928 of 2011. In the
said SLP which Section 5(1) and 5(4) of the Foreign Contribution
(Regulation) Act, 2010 and Rules 3(i), 3(v) and 3(vi) of the Foreign
Contribution (Regulation) Rules, 2011 have been challenged as being
violative of Articles 14, 19(1)(a), 19(1)(c) and 21 of the Constitution,
filed against the order/judgment dated 16.09.2011 passed by the Delhi
High Court in W.P (C) No.5793 of 2011.
3. That after the order dated 10.5.2013 of the Hon'ble Supreme Court, the
Petitioner had filed a substantive Petition i.e. W.P (c) No.535/2013
under Article 32 of the Constitution wherein it was, inter-alia, prayed to
set aside the order dated 30.04.2013 passed by the Government of
India- Ministry of Foreign Affairs under Section 13 of the Foreign
Contribution (Regulation) Act, 2010.
4. That the SLP(C) No.33928 of 2011, I.A No. 1 of 2013 and W.P (C)
No.535/2013 came up for hearing on 22.07.2013 when the Honble
Supreme Court adjourned the Special Leave Petition but with regard to
I.A No.1 of 2013 and W.P (C) No.535/2013 passed an order permitting
the Petitioner to pursue any other remedy available in law to challenge
the order dated 30.04.2013 and the validity of Sections 13 and 14 of the
Foreign Contribution (Regulation) Act. A true and correct copy of the
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order dated 22.07.2013 passed by the Honble Supreme Court in I.A
No. 1 of 2013 and W.P (C) No.535/2013 is Annexure P-2.
5. BRIEF FACTS
5.1 That briefly stating the facts, the Petitioner-Forum is a forum of
peoples movements, NGOs, human rights groups, having activities all
over India. The Petitioner-Forum firmly believes in a secular and
peaceful social order and works to preserve and promote livelihoods of
people including religious minorities.
5.2 That the Petitioner is a registered society vide Registration No. S-
49085/04 vide certificate dated 5.5.2004. The Petitioner got letter dated
18.2.2008 from the Ministry of Home Affairs regarding registration
under Foreign Contribution (Regulation) Act, 1976. A true and correct
copy of the aims and objects, Registration Certificate under Societies
Registration Act and letter dated 18.2.2008 under Foreign Contribution
(Regulation) Act, 1976 is Annexure P-3 (Colly).
5.3 That it may be important to point out that the Petitioner has been
submitting income tax returns and all the required declarations/
documents to the concerned authorities. Not only this, the Petitioner is
also putting their income and expenditure details on the website, in
public domain (www.insafindia.net). This is for the reason that the
work done by the Petitioner Forum in public interest should be
accessible to the people at large. True and correct copies of the details
of Receipts and Payments dated 1.4.2012 to 31.3.2013 and Auditors
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Reports dated 29.6.2012 which have been put in public domain are
Annexure P-4 (Colly).
5.4 That during the last one year, INSAF organized and co-organized the
following major programmes:
AUGUST 2012: South Asia Preparatory conference of the 9th
Asia Europe Peoples Forum (AEPF) on economic crisis and
peoples alternatives in Asia and Europe
SEPTEMBER 2012: National convention on Corporate V/s
people: Agendas of peoples movement against displacement in
Puri, Odisha National level Peoples hearing on Fabricated cases
in Constitution Club, New Delhi.
DECEMBER 2012: Actively participated in meetings of
Coalition of Nuclear Disarmament & Peace (CNDP) and protests
by fisherfolk and villagers in Koodankulam against the nuclear
power plant.
JANUARY 2013: Co-organised the International Uranium Film
Festival highlighting the dangerous consequences of uranium
to the human race, especially atomic weapons and nuclear power
plants.
FEBRUARY 2013: Convention on land grab in Ethiopia and
India Co-organized VIBGYOR documentary Film festival with
the theme Stolen Democracies in Trichur, Kerala
APRIL 2013: Co-organized Anti-POSCO day demonstrations in
Bhubaneswar and national seminar on state terrorism on
democratic peoples movements in India.
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MAY 2-5, 2013: Peoples Front against International Financial
Institutions (IFIs) seminar and protests parallel to the Asian
Development Bank AGM in Greater Noida.
INSAF actively supported the anti-GM (genetically modified
food) campaign by activists in the interests of safe food and
health of Indian citizens during the entire period.
The state units of INSAF have also organized several seminars,
workshops, protests etc. to further the objectives of INSAF:
resist globalization, combat communalism and defend
democracy. Campaigns have ranged a whole spectrum: Support
Irom Sharmila and repeal Armed Forces Special Forces Act
(AFSPA), repeal draconian Unlawful Activities Prevention Act
(UAPA), YES to Democracy, stop privatization of water and
food, resist land grab by corporate, No GMOs, No to Nuclear
Power, IFIs Shut down, YES to Sustainable Development,
combat communalism, justice for riot victims, YES to
Secularism
5.5 That it is pertinent to mention that the Planning Commission,
Government of India has issued a National Policy on the Voluntary
Sector in May, 2007 which specify the objectives as well as creation of
enabling environment for the voluntary sector. The Para 3, 4.1 & 5.5
are quoted below for ready reference:
3. Objectives of the Policy
3.1 The specific objectives of the policy are listed below:
3.1.1 To create an enabling environment for Vos that stimulates
their enterprise and effectiveness, and safeguards their
autonomy;
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3.1.2 To enable VOs to legitimately moblize necessary
financial resource from India and abroad;
3.1.3 To identify systems by which the Government may work
together with Vos on the basis of the principles of mutual
trust and respect, and with shared responsibility, and
3.1.4 To encourage Vos to adopt transparent and accountable
systems of governance and management.
4.1 The independence of Vos allows them to explore
alternative paradigms of development to challenge social,economic and political forces that may work against
public interest and to find new ways to combat poverty,
deprivation and other social problems. It is therefore,
crucial that all laws, policies, rules and regulations
relating to Vos categorically safeguard their autonomy,
while simultaneously ensuring their accountability.
5.5. The country faces a number of complex problems that
require adaptive multi-sectoral solutions where sustained
social mobilization is particularly important. These
include poverty alleviation, skill promotion
entrepreneurship development, empowerment of women,
population stabilization, combating HIV/AIDS, managing
water resources, elementary education and forest
management, to name a few. Such areas urgently require
strategic collaboration between the Government and Vos
through national level programmes that are long-term in
duration, and utilize multiple strategies, methodologies
and activities to achieve their objectives. The Government
will identify national collaborative programmes to be
implemented in partnership with Vos. Each National
Collaborative programme will involve a finite set of
reputed, medium or large VOs with a proven tract record,
and the ability to work on a reasonably large scale. The
Government will ensure that such national collaborative
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programmes are given due importance in Plan
developments.
A true and correct copy of the said National Policy on Voluntary
Sector dated May, 2007 issued by the Planning Commission is
Annexure P-5 .
5.6 That inspite of the Petitioner furnishing all the required information and
making its activities transparent, the Respondent passed the impugned
order dated 30.04.2013 suspending the permanent registration of the
Petitioner for 180 days, as mentioned above.
5.7 That it is be important to point out that under Section 14 of the
provisions of the Foreign Contribution (Regulation) Act, 2010 required
information can be sought without resorting to suspension of
registration under Section 13. Further, periodically the authorities under
the provisions of the Act have been collecting all the required
information from the Petitioner. In case if the Authorities wanted any
further information from the Petitioner, it was open to ask for that
information before taking the drastic and punitive action of resorting to
Section 13 and suspending the account of the Petitioner.
5.8 That in view of the fact that the Petitioner- Forum has been openly
doing its activities in public interest and is putting all the required
information in public domain, the impugned order dated 30.04.2013
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besides being arbitrary, unreasonable is also malafide as well as
violative of Principles of Natural Justice.
5.9 That the impugned order under Sector 13 has been passed during the
pendency of the Special Leave Petition. The Petitioner has strong
reasons to believe that the said impugned order has been passed mala-
fide because the Petitioner has challenged provisions of Foreign
Contribution (Regulation) Act, 2010 and Foreign Contribution
(Regulation) Rules, 2011. The malice can also be deduced from the fact
that the action has been taken under Section 13 and 14 of the Act
knowing fully well that resorting to other provisions will be improper
in view of the fact that those provisions, namely, Section 5(1) and 5(4)
of the Act and Rules 3(i), 3(v) and 3(vi) have been challenged by the
Petitioner before the Honble Supreme Court.
5.10 That relevant previsions, namely, Section 13 and 14 (1) (c) of the Act
reads as under:
13. Suspension of Certificate
1. Where the Central Government, for reasons to be recorded in
writing, is satisfied that pending consideration of the question
of cancelling the certificate on any of the grounds mentioned
in sub-section (1) of Section 14, it is necessary so to do, it
may, by order in writing, suspend the certificate for such
period not exceeding one hundred and eighty days as may be
specified in the order.
(2) Every person whose certificate has been suspended shall--
a) not receive any foreign contribution during the period of
suspension certificate.
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Provided that the Central Government, on an application
made by such person, if it considers appropriate, allow
receipt of any foreign contribution by such person on such
terms and conditions as it may specify;
b) utilise, in the prescribed manner, the foreign contribution
in his custody with the prior approval of the Central
Government.
14. (1) The Central Government may, if it is satisfied after
making such inquiry as it may deem fit, by an order, cancel the
certificate if:-
a) the holder of the certificate has made a statement in, or
in relation to, the application for the grant of registration
or renewal thereof, which is incorrect or false; or
(b) the holder of the certificate has violated any of the
terms and conditions of the certificate or renewal thereof;
or
(c) in the opinion of the Central Government, it is
necessary in the public interest to cancel the certificate; or
(d) the holder of certificate has violated any of the
provisions of this Act or rules or order made thereunder;
or
(e) if the holder of the certificate has not been engaged
in any reasonable activity in its chosen field fr the benefit
of the society for two consecutive years or has become
defunct.
(2) No order of cancellation of certificate under this
section shall be made unless the person concerned has
been given a reasonable opportunity of being heard.
(3) Any person whose certificate has been cancelled
under this section shall not be eligible for registration or
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grant or prior permission for a period of three years from
the date of cancellation of such certificate.
5.11 That it is clear from the above that the Central Government has to give
a speaking order in writing stating the reasons for suspension of
certificate, merely stating that it is in public interest, is not sufficient. It
is important that no documents were given along with the said order
and no hearing was granted to the Petitioner. Therefore, the impugned
Order dated April 30, 2013 is wholly arbitrary and patently illegal as
the same has been passed in violation of principles of natural justice as
enshrined in the language of Section 13 of the Foreign Contribution
(Regulation) Act, 2010 in the form of the requirement for a reasoned
and speaking order. A true and correct copy of the relevant provisions
of the Foreign Contribution (Regulation) Act, 2010 are Annexure P-6.
5.13 That it is submitted that contrary to the abovesaid, without giving any
reasons for suspension of the certificate, the Respondent has invoked
Section 13 and has conveniently stated that the acceptance of the
Foreign Contribution by the Petitioner-Forum is likely to prejudicially
affect public interest. The Respondent in its order has stated as under:
And whereas, the Central Government having regard to the
information in its possession is satisfied that the acceptance of
foreign contribution by the said association Indian Social Action
Forum, A-124/6 First Floor, Katwaria Sarai, New Delhi-110016
is likely to prejudicially affect public interest.
Now therefore, in exercise of the power conferred by Section
13 of the Foreign Contribution (Regulation) Act, 2010, the
Central Government hereby suspends the permanent registration
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of the association namely Indian Social Action Forum, A-124/6
First Floor, Katwaria Sarai, New Delhi-110016 for 180 days, in
public interest. (Emphases supplied)
5.13 That thus it is submitted that under an order of suspension passed under
S. 13 (1), reasons are to be recorded in writing for why the Central
Government is satisfied that it is necessary to suspend the permanent
registration pending consideration of cancellation of certificate. On the
other hand, grounds mentioned in Section 14 (1) are to form a basis
for cancellation of the certificate upon due consideration and in the
manner prescribed under Section 14 (1). That the impugned order dated
April 30, 2013 has been passed on the erroneous assumption that
verbatim reproduction of any of the grounds mentioned under
Section 14 (1) would satisfy the requirement stipulated under Section
13 (1) of recording reasons for why the Central Government is
satisfied that suspension of registration pending consideration of
cancellation is expedient.
5.14 That it is submitted that the requirement under Section 13 (1) that an
order for suspension of permanent registration shall only be passed for
reasons to be recorded in writing is an important safeguard
incorporated in the said provision to guard against its arbitrary use in a
colorable exercise of power. This requirement has been incorporated to
ensure that principles of natural justice are adhered to in passing an
order of suspension as such an order invariably has very serious
repercussions for the person or entity whose registration is suspended.
To put it emphatically, such an order has civil and evil consequences.
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5.15 That after passing of the said order, on 02.05.2013 the Petitioner had
received a communication by which the concerned department of
Ministry of Home Affairs has sought point-wise reply from the
Petitioner. A true and correct copy of the communication by Ministry of
Home Affairs dated 02.05.2013 is Annexure P-7. It is submitted that
all the activities and accounts related details of the Petitioner- Forum
are available in the public domain and are being updated thoroughly.
5.16 That pursuant to the said order, the bank accounts of the Petitioner have
been frozen by the Respondent. Because of this action being taken by
the Respondent, the Petitioner-Forum is in great financial and
administrative difficulties. The Petitioner- Forum is unable to organize
its already scheduled seminars, workshops, campaigns and other
programs. It is unable to make payments to its employees and to
several other persons/ organisation with which it has commitments and
their bills are pending clearance. In fact, the activities of the Petitioner
have come to a standstill.
5.17 That the Petitioner-Forum vide letter dated 14.05.2013 replied to the
letter dated 2.5.2013 pointing out that no reasons have been mentioned
in suspending permanent registration for a period of 180 days. The
petitioner also submitted that most of the informations sought for by
the Respondent are already in the possession and that only specific
details may be asked for. The petitioner also sought for extension of
time to furnish information in the said letter dated 21.05.2013. That
with letter dated 14.5.2013 the Petitioner enclosed bills for which
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urgent payment was required. A true and correct copy of the reply dated
14.5.2013 is Annexure P-8.
5.18 That vide letter dated 21.5.2013 the Petitioner asked for payment for
staff salaries and office administrative expenses. A true and correct
copy of the reply dated 21.5.2013 seeking payment for staff salary and
for official expenses is Annexure P-9.
5.19 That on 14.06.2013 the Petitioner-Forum again wrote to the
Respondent requesting release of funds of the Petitioner- Forum and
extension of time to furnish reply to the questionnaire dated 02.05.2013
since the staff, under financial distress had proceeded on leave. The
Petitioner had enclosed the salaries and other administrative expenses
required to be met urgently. A true and correct copy of the letter dated
14.06.2013 is Annexure P-10.
5.20 That in reply to the letter dated 14.06.2013 of the Petitioner- Forum the
Respondent vide letter dated 18.6.2013 sought information and vide
letter dated 27.06.2013 stated that for release of funds the Petitioner-
Forum has to first submit the documents as required by them vide letter
dated 02.05.2013. It is submitted that as stated above, all the required
information is already present with the Respondent and is in public
domain and it is after the suspension of registration of the Petitioner-
Forum, the said documents have been sought vide letter dated
02.05.2013. It is submitted that the Respondent ought to have
ascertained all the relevant information from the Petitioner before
passing the order dated 30.04.2013. It is thus clear that the Respondent
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does not want the Petitioner-Forum to function and work in public
interest. True and correct copies of the letters dated 18.6.2013 and
27.06.2013 is Annexure P-11 (Colly).
5.21 That it is clear from the above that the Respondent is not releasing the
funds as applied and requested by the Petitioner under Section 13(2) of
the Act. This has resulted in grave financial and administrative
difficulties to the Petitioner-Forum. Even salaries of the staff have
become due; day to day administrative expenses are also not available.
5.22 That the Petitioner had submitted the information and documents
sought for by the Respondent vide questionnaire dated 02.05.2013. A
true and correct copy of the letter dated 23.07.2013 along with the
details is Annexure P-12. All the annexures are quite voluminous and,
therefore, the Petitioner craves leave to produce them before this
Honble Court, if required.
5.23 That the Petitioner also wishes to submit that if the Principles of
Natural Justice are not read in Section 13 i.e. the right of hearing is not
given to the affected persons and reasons of suspension are not
mentioned in writing, Section 13 will be violative of Article 14 of the
Constitution. Further, the expression Public Interest which is used in
Section 14 is very vague and amenable to arbitrary use and abuse.
Therefore, the requirement of reasons to be recorded in writing must
not be permitted to be diluted by merely reproducing the words of
Section 14.
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6. That as submitted in the above said paragraphs, the Petitioner had filed
an I.A. as well as writ petition before the Honble Supreme Court
seeking similar relief. However, the Honble Supreme Court has, as
mentioned above, granted liberty to the Petitioner to file the present writ
petition before this Honble Court. The Petitioner reserves its right to
challenge the validity of Sections 13 and 14 of the Foreign Contribution
(Regulation) Act, separately, if required.
7. That this Writ Petition has been filed on the following, amongst other,
GROUNDS
A. Because the impugned order dated 30.04.2013 passed by the
Respondent without giving any reasons and without affording an
opportunity of hearing is violative of principles of natural justice, ultra
virus and infringes Article 14 of the Constitution. The said order is,
therefore, null and void.
B. Because under Section 13(1), it is mandatory that the letter suspending
the certificate should be in writing and reasons should be recorded. The
impugned order is without any reasons and, therefore, violates Section
13 itself.
C. Because the impugned order does not refer to any ground in support of
public interest. The expression public interest is very wide and unless
specific instances are referred to, the said provision will result in abuse
and arbitrary exercise of the powers. For this reason also, the impugned
order is unsustainable.
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D. Because the Petitioner has been furnishing all the required information
to the Respondent. In case, the Respondent wanted any clarification,
they could have sought the clarification from the Petitioner before
taking the drastic action of suspension of the certificate which has
serious repercussions, even for survival of the Petitioner Forum. In
short, the impugned order has clear civil and evil consequences. The
impugned action is therefore, arbitrary and in violation of Article 14 of
the Constitution.
E. Because for the reason that the Petitioner has challenged some
provisions of the Act of 2010 as well as the Rules, the Respondent has
taken arbitrary action by issuing the impugned order. The impugned
order is, therefore, malafide and in colorable exercise of power by the
Respondent.
F. Because the Petitioner has been doing activities which are for the
protection of human rights and environment. The actions of the
Petitioner, even if inconvenient to the Respondent, cannot be a ground
to resort to Section 13 by suspending the certificate. The Petitioner-
Forum has been keeping the Respondent informed about its activities,
therefore, not disclosing the cause and not seeking any explanation
from the Petitioner before passing the impugned order, is arbitrary and
thus malafide.
G. Because the resulting action under Section 13 amount to arbitrary
powers to pick and choose any organization to take adverse action
under the cover of public interest.
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H. Because the provision of prior hearing provided under Section 14(2) of
the Act ought to be read into Section 13 also to make it just and
reasonable. The concerned organization will know as to what public
interest it has infringed. The specific details relating to infringement of
public interest will make the action transparent and judicially
reviewable in case it is challenged before the Court. It is submitted that
if the principles of natural justice i.e. prior hearing are not read into
Section 13, it will be violative of Article 14 of the Constitution.
Similarly, the basis of public interest are required to be made known to
the aggrieved person before any action is taken by merely stating
public interest without explaining and defining as to what that public
interest is and how it has been infringed.
I. Because if Section 13 has to be read in consonance with the Principles
of Natural Justice and Article 14 of the Constitution, the following
conditions are required to be fulfilled:
(i) Before passing the order suspending the certificate, a show cause
notice mentioning the reasons and enclosing the required
documents should to be given seeking explanation / reply.
(ii) After receipt of the reply, the Central Government is required to
give hearing to the concerned organisation / person.
(iii) The Order under Section 13 can be passed thereafter giving
reasons.
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(iv) The reasons must disclose that the concerned authority of the
Central Government has objectively, rationally and reasonably
satisfied itself.
(v) The order has to be given in writing.
The above requirements, among others, are mandatory as Principles of
Natural Justice ought to be complied in view of the order envisaged in
Section 13, which has serious civil and evil consequences.
J. Because inspite of Petitioner-Forum applying for release of funds,
pointing out payment against the bills raised and salaries of staff to be
paid the same was not done by insisting upon the Petitioner that firstly
it has to give the details sought for by the Respondent under Section 14.
This action of the Respondent is not only malafide but even vindictive.
However, all the details have also been furnished by the Petitioner.
K. Because the Planning Commission as well as Government recognizes
the fact that the Voluntary Organizations should work independently
and their autonomy should be preserved. Many times they may work
against the Government policy or work differently. But that should not
be and cannot be a reason to take adverse action. The Government can
only insist with regard to utilization of foreign contribution which the
NGOs receive. The control cannot be on the activities, on the basis of
likes and dislikes.
L. Because the Petitioner had organized a peoples front against
International Institutions in first week of May, 2013, which appears to
be the reason for issuing the impugned order.
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M. Because by freezing the bank accounts of the Petitioner that the
Respondent arbitrarily achieved its object to scuttle the holding of the
conference/ meeting as mentioned above.
8. That the Petitioner seeks to add such other, further grounds as may be
required in the interest of justice.
PRAYER
The Petitioner, therefore, pray that in the facts and circumstances of the
present case this Hon'ble Court may be pleased to issue writ of
mandamus/certiorari or any other appropriate writ or Direction in the
like nature to the Respondent :
a) To set aside the order dated 30.04.2013 passed by the Government
of India- Ministry of Foreign Affairs under Section 13 of the
Foreign Contribution (Regulation) Act, 2010 and declare it as null
and void being violative of Article 14 of the Constitution as well as
Principles of Natural Justice.
b) To pass such other and further orders as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case.
Drawn and Filed by
SETTLED BY:
SANJAY PARIKH,
ADVOCATE
KABIR DIXIT, BUSHRA PARVEEN & MAMTA SAXENAADVOCATES FOR THE PETITIONER
102, New Lawyers Chambers,
Setalvad Block, Supreme Court of India
Bhagwandas Road, New Delhi 110001
Date: 09999087047, 09899217734,09811819289
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IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
W.P (Civil) No. _____ of 2013
IN THE MATTER OF :
Indian Social Action Forum (INSAF) . Petitioner
Versus
Union of India . Respondent
PAPERBOOK
(FOR INDEX KINDLY SEE INSIDE)
FILED BY
KABIR DIXIT, BUSHRA PARVEEN & MAMTA SAXENAADVOCATES FOR THE PETITIONER
102, New Lawyers Chambers,Setalvad Block, Supreme Court of India
Bhagwandas Road, New Delhi 110001
09999087047, 09899217734,09811819289
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IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL WRIT JURISDICTION)
C.M.P. NO. ________OF 2013
IN
W.P (C) No. _______ of 2013
IN THE MATTER OF :
Indian Social Action Forum (INSAF) . Petitioner
Versus
Union of India . Respondent
APPLICATION FOR INTERIM DIRECTIONS
TO
THE HONBLE THE CHIEF JUSTICE OF INDIA
AND HIS HONBLE COMPANION JUDGES
OF THE SUPREME COURT OF INDIA
MOST RESPECTFULLY SHEWETH:
1. That the Petitioner has filed the accompanying writ petition wherein all
the facts have been mentioned in detail. Those facts are reiterated and
relied upon for the purpose of this application.
2. That the impugned order dated 30.4.2013 has been passed without
giving any reasons for alleged violation of public interest. The
Petitioner was also not given any hearing before taking the drastic
action of freezing all bank accounts of the Petitioner. The impugned
order is therefore violative of Article 14 of the Constitution as well as
the Principles of Natural Justice.
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3. That Section 13(2) provides that during the period of 180 days when
Section 13(1) order remains in operation, the foreign contribution
which in custody of the Petitioner could be utilised with prior approval
of the Central Government.
4. That the Petitioner by letter dated 14.5.2013 and 21.5.2013 sought for
the release of the amounts towards pending bills as well as salary for
the staff and office expenses. This was reiterated in the letter dated
14.06.2013. However the Respondent has refused to process the request
to use 25% of foreign contribution vide letter dated 27.6.2013 on the
ground that the petitioner has not furnished information as asked for in
the letter dated 02.05.2013. However, by letter dated 23.07.2013 all the
details have been furnished by the petitioner to the respondent.
5. That the reason for denying the utilisation of foreign contribution
which has been received is totally arbitrary and wrong. The reason
given in the letter dated 27.6.2013 shows the mindset of the
Respondent. The Respondent fully knows that without payment of
salaries and office expenses the Petitioner will have to close down its
activities.
6. That this application has been filed to give direction to the Respondent
that during pendency of the Writ Petition, the Respondent should
release 25% of the Foreign Contribution to the Petitioner so that it can
carry out its functions. In fact, all the activities of the Petitioner have
come to a stand still due to the impugned action of the Respondent.
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7. That this application has been made in the interest of justice. The
Petitioner makes it clear that it will provide complete details of
utilization of the amount to the Respondent and/or to this Honble
Court
PRAYER
The Petitioner, therefore, prays that in the facts and circumstances of the
present case and during pendency of the Writ Petition this Hon'ble Court may
be pleased to:
a) Direct the Respondents to release the funds as applied and prayed for
by the Petitioner vide letter dated 14.5.2013, 21.5.2013 and 14.6.2013
as per the provisions of the Foreign Contribution (Regulation) Act of
2010;
b) Allow the Petitioner to utilize its funds during the pendency of this writ
petition;
c) Pass such other and further orders as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the case
Drawn and filed by
KABIR DIXIT, BUSHRA PARVEEN & MAMTA SAXENAADVOCATES FOR THE PETITIONER102, New Lawyers Chambers,
Setalvad Block, Supreme Court of IndiaBhagwandas Road, New Delhi 110001
09999087047, 09899217734,09811819289
Date:
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INDEX
S.No. Particulars Pages
1. Notice of Motion
2. Urgent Application
3. Memo of Parties
4. Synopsis and List of dates
5. Writ Petition along with affidavit
6. Annexure P-1:
True and correct copy of the impugned order dated
30.04.2013
7. Annexure P-2:
True and correct copy of order dated 22.07.2013passed by this Honble Court in I.A No.1 of 2013 in
Special Leave Petition (C) No.33928 of 2011
and W.P (C) No.535/2013
8. Annexure P-3(Colly):
True and correct copies of
i) aims and objects,
ii)Registration Certificate under Societies
Registration Act
iii) letter dated 18.2.2008 under ForeignContribution (Regulation) Act, 1976
9. Annexure P-4(Colly):
True and correct copies of
i)details of Receipts and Payments dated 1.4.2012 to
31.3.2013
ii)Auditors Reports dated 29.6.2012 which have been
put in public domain
10. Annexure P-5:
True and correct copy of the National Policy under
Voluntary Sector dated May 2007 issued by the
Planning Commission
11. Annexure P-6:
True and correct copy of the relevant provisions of the
Foreign Contribution (Regulation) Act, 2010
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12. Annexure P-7:
True and correct copies of communication by Ministry
of Home Affairs dated 02.05.2013
13. Annexure P-8
True and correct copy of the reply dated 14.5.2013
14. Annexure P-9:
True and correct copy of the reply dated 21.5.2013
seeking payment seeking payment for staff salary and
for official expenses
15. Annexure P-10:True and correct copy of the letter dated 14.06.2013
16. Annexure P-11 (Colly):
True and correct copies of
i) Letters dated 18.6.2013
ii) letter dated 27.06.2013
17. Annexure P-12:
True and correct copy of the letter dated 23.07.2013
along with the enclosures
18. CMP NO. ____ OF 2013
Application for interim directions
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