INSAF HC Writ Aug13

8/22/2019 INSAF HC Writ Aug13

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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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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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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,


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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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


102, New Lawyers Chambers,



Date: 09999087047, 09899217734,09811819289


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W.P (Civil) No. _____ of 2013

IN THE MATTER OF :


Versus


PAPERBOOK

(FOR INDEX KINDLY SEE INSIDE)

FILED BY


102, New Lawyers Chambers,Setalvad Block, Supreme Court of India


09999087047, 09899217734,09811819289


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C.M.P. NO. ________OF 2013

IN

W.P (C) No. _______ of 2013

IN THE MATTER OF :


Versus


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):


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):


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

INSAF HC Writ Aug13

Documents

Transcript of INSAF HC Writ Aug13