High Court Submissions Sep13

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IN THE HONBLE HIGH COURT OF DELHI AT NEW DELHICIVIL EXTRAORDINARY WRIT JURISDICTION

W.P. (Civil No.) 4982 of 2013

In the matter of :-

Indian Social Action Forum (INSAF)Through its General Secretary,A-124/6, Katwaria SaraiNew Delhi . Petitioner

VersusUnion of India

Through its Secretary,Ministry of Home Affairs,North Block, Central SecretariatNew Delhi 110 001 .Respondent

INDEXS. No. Particulars Pages C. Fees1. Rejoinder

Affidavit onbehalf of thePetitioner

2. Affidavit insupport of theRejoinder

New DelhiDated: 16.09.2013 Filed by:Kabir DixitCounsel for the PetitionerA-10, Second Floor, Jangpura Extension, New Delhi 149999087047

[email protected]


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W.P. (Civil No.) 4982 of 2013

In the matter of :-

Indian Social Action Forum (INSAF) Petitioner

VsUnion of India Respondents

REJOINDER AFFIDAVIT ON BEHALF OF THE PETITIONER

Most respectfully sheweth:

I, Mr. Ramesh Sharma, aged 42, S/o- Mr. Ambika Charan Sharma,R/o- B103, Maidangarhi Extension, Chhatarpur, New Delhi 110074,Office Manager, Indian Social Action Forum, do hereby solemnlyaffirm and declare as under:-

1. That it is submitted at the out set that in the counter affidavit it isadmitted that no reasons were given while passing the impugnedorder as it was not mandatory to give reasons; attempt has beenmade to justify the impugned order as an after-thought but it clearlycomes out from the Counter that there was no material whatsoever

and the entire action smacks of arbitrariness, illegality and malice.The Respondents counter affidavit comprises wholly of internallyinconsistent and contradictory statements. Further, the respondentshave made bald unsubstantiated averments in their counter in theattempt to pass of afterthoughts and ex post facto rationalizationsas reasons for passing the impugned order. The Counter affidavitreveals that the impugned order, which gives rise to very seriouscivil consequences for the petitioner, was passed in completeabsence of any reason or satisfaction as to the necessity ofsuspension. It is submitted that the suspension of petitioners

registration was a grossly arbitrary and illegal action taken in totalabsence of any reasons indicating the necessity so to do. Therefore,it is respectfully submitted that in the present case, the failure torecord reasons in writing for the impugned order goes to the root ofthe matter and vitiates the entire action as being illegal and sheerabuse of powers conferred on the Central Government underSection 13 (1) of the Act. As such, the impugned order is liable to bequashed and set aside for the reasons detailed below in the writpetition as well as in this rejoinder affidavit.

2. That para 1 being a statement of fact needs no reply.


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3. That in response to para 2 it is respectfully submitted thatrespondents order no. II/21022/ 58(034)/2013-FCRA(MU) dated30.04.2013 suspending the petitioners FCRA registration, is patentlyillegal. It violates a significant principles of natural justice namely,the requirement of recording reasons in writing, enshrined in Section13 (1) of the Foreign Contribution (Regulation) Act, 2010 (FCRA orAct) and thus, cannot be said to have been passed in legitimateexercise of the powers of suspension conferred under Section 13 (1).Reply to para wise reply in the counter affidavit

4. That the respondents in their reply to para 1 to 4 of the writ petitionadmit that the petitioner association has not been declared as anorganization of political nature under the FCRA, 2010. As such thepetitioner is qualified to receive Foreign Contribution under theprovisions of the FCRA, 2010.

5. Para 5.1 to 5.3 of the writ petition are un-rebutted in the counter andhence, need no reply.6. That in response to para 5.4 and 5.5 of the petition, the respondent

has stated that it has in its possession information that thepetitioner association reportedly transferred funds to various FCRAregistered and non FCRA registered NGOs. This, it is submitted, is afalse averment and a bald statement without any factual basis. Nodetails whatsoever have been furnished by the respondent aboutwhich non FCRA registered NGO is being referred to. Further, it isclearly an afterthought and demonstrates the gross abuse of

powers.7. That in response to para 5.4 and 5.5 of the petition, the respondent

has further stated that the verification and inspection processinitiated by the Govt. will assess whether the participation inprotests by fisherfolk and villagers in Koodankulam Nuclear PowerPlant and organization of Anti-POSCO day demonstrations as wellsupporting anti GM (genetically modified food) campaign wereincluded in the Projects of the association and whether anyviolations of FCRA have taken place. This statement can be said todescribe the scope of respondents enquiry under Section 14 (1) of

FCRA, 2010. However, it does not state the reasons for which theCentral Government was satisfied at the time of passing theimpugned order about the necessity for suspending the registration.

The information about Koodankulam, POASCO and geneticallymodified foods has been culled from the instant writ petition itself.

8. Pertinently, the suspension can be ordered only for reasons forwhich the authority is satisfied that it is necessary to suspend theregistration pending enquiry into grounds of cancellation. It issubmitted that bald and unverified statements without any factualbasis or details do not qualify as reasons for the purpose of forming

the satisfaction as to the necessity of suspension as required underSection 13 (1).


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9. Further, it is submitted that the requirement of reasons to berequired in writing is a judicially recognized principle of natural

justice. It assumes added significance in case of administrativeorders with serious civil consequences such as the order ofsuspension in the present case. It has been judicially upheld in acatena of judgments by this Honble Court and the Honble ApexCourt that bald averments in subsequent pleadings before thecourts in proceedings challenging such unspeaking orders do notcompensate for the absence of reasons in the impugned orders. Animpugned order bad in law for not recording reasons in writing doesnot subsequently become good in law if some reasons are stated inthe pleadings of the administrative authority later in judicialproceedings. The law does not allow for such second bites at thecherry.

10.It is submitted that in the present case serious civil consequencesflow for the petitioner from the respondents order of suspension ofthe registration under the FCRA, 2010. The petitioner associationwas engaged in several on-going projects aligned with its declaredobjects and scores of persons were involved with these on-goingprojects. The order of suspension has disrupted the program andschedule of the association and caused a serious set-back.Petitioners limited resources have been frozen and the associationhas been pushed to the brink of extinction by the impugned order ofsuspension. Such an order of suspension could not have been

passed except in rigorous compliance with the statutoryrequirements as it infringes on the fundamental right of thepetitioner association to form an association and to engage in aprofession or calling of its choice.

11.In view of the serious repercussions of the impugned order, thefailure to record reasons in writing for the suspension goes to theroot of the matter. The said failure constitutes a patent illegality andmisuse of powers under Sec.13 and completely vitiates the order.

12.That in reply to para 5.5 to 5.9 of the writ petition the respondentshave denied suspending the petitioners FCRA registration for the

latters petition before the Honble Supreme Court challengingvarious provisions of the said Act. However, it is submitted that thecomplete absence of any reason for Central Governmentssatisfaction for the necessity of suspension as revealed by both theimpugned order and the counter affidavit indicate that theimpugned order has been passed as an arm-twisting measure toteach the petitioner a lesson for resorting to legal remedies.

13.Respondents reply to para 5.11 to para 5.14 is another examplethat the respondents are essentially making up absurd reasons asthey go along. The respondents have no cogent explanations as to

what comprised the Central Governments satisfaction as to the


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necessity for suspending the petitioners registration on the date ofimpugned order.In the reply in the third paragraph at page 3 of the Counter, therespondents state that the impugned order was passed for thereason that Central Government, having regard to the information inits possession, was satisfied that the acceptance of foreigncontribution by the petitioner was likely to prejudicially affect publicinterest. In the same breath, however, the same paragraph in thevery next line states that whether or not such acceptance of foreigncontribution by the petitioner was likely to prejudicially affect wassomething that the respondents sought to ascertain by seekinginformation vide a letter dated 02.05.2013.This exposes a farce. The impugned order was passed on30.04.2013 and on that date the Central Government claims to be

satisfied, based on information in its possession that it wasnecessary to suspend the petitioners FCRA registration asacceptance of foreign contribution by the petitioner was likely toprejudicially affect public interest. Yet, they admit that it was only 3days later on 02.05.2013 that, they asked the petitioner for theinformation which would, admittedly, enable them to ascertainwhether there was any likelihood of prejudicial affect on publicinterest by the petitioners acceptance of foreign contribution.

Therefore, on the date of the impugned order, the respondents bytheir own admission were not satisfied about any such likelihood of

prejudicial affect on public interest.This clearly shows beyond doubt that the impugned order has beenpassed for extraneous reasons of colourable exercise of power toharass the petitioner.

14.That it is submitted that the delay in submitting the reply to therespondents standard questionnaire was due in part to certainunavoidable circumstances such as continued illness of theadministrative in-charge of the association and in part because thepetitioner was unable to pay salaries to its staff. These facts wereimmediately conveyed to the respondents by the petitioner and

extensions were sought.15.That respondents response to para 7A to 7D of the petition is

misleading. The impugned order did not refer to transfer of funds tonon FCRA registered NGOs by the petitioner. This is a false and baldaverment raising unsubstantiated allegations. The petitioner hasfurnished its accounts to the respondents, which are in order. This isan afterthought by the respondents as an ex post factorationalization for their illegal action and therefore, cannot beaccepted.

16.In reply to the respondents reply to para 7E to 7G of the petition,

contents of para 12 above are reiterated.


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17.Further, the respondents reply to para 7H to 7I of the petitionreveals that the respondents have a totally erroneous understandingof Section 13 (1), which directly explains how the respondentspassed the impugned illegal suspension order. Respondentsexplanation of Section 13s legal requirement exposes their reasonfor passing the illegal impugned order.In the third para on page 5,The respondents have stated that thewords for reasons to be recorded in writing in Section 13 (1) ofFCRA, 2010 are directory and not mandatory as the use of the wordmay and not shall gives the discretion to the suspending authorityto take appropriate steps relating to the association based on thefacts. This, it is submitted, is a wholly incorrect understanding of thelanguage and purport of Section 13 (1). Section 13 (1) is reproducedhere for quick reference :

13. Suspension of certificate. (1) Where the CentralGovernment, for reasons to be recorded in writing, is satisfied thatpending consideration of the question of cancelling the certificate onany of the grounds mentioned in sub section (1) of section 14, it isnecessary so to do, it may, by an order in writing, suspend thecertificate for such period not exceeding one hundred and eightydays as may be specified in the order.As per the basic rules of English grammar, the word may in section13 (1) governs the verb suspend. Which is to say, under section 13(1), the authority has the discretion to suspend or not to suspend

the registration of an association, pending enquiry into existence ofgrounds of cancellation of registration of such association. However,after deciding to suspend the registration pending such enquiry, theauthority has no further discretion available under law in the matterof furnishing reasons recorded in writing in a written order forsuch decision of suspension of registration. In other words, theauthority is legally bound to furnish reasons recorded in writing forwhy it is satisfied that it is necessary to suspend the registrationpending an enquiry into the whether there exist any grounds forcancellation of registration. Simply put, any order of suspension

passed without furnishing reasons recorded in writing for why theauthority is satisfied that it is necessary so to do pending an enquiryinto the existence of grounds for cancellation, would be subject to

judicial review and in appropriate cases, such as the present one, bevoid and liable to be set aside as illegal.

18.Further, it is important to point out that suspension can be orderedonly while an enquiry is underway to determine whether there existany of the grounds for cancellation of registration that are specifiedin the Act. As such, one of the grounds mentioned in the Act underSection 14 (1) cannot be reproduced verbatim as a reason for

suspension.


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19.What is categorically revealed by the internally inconsistent, vagueand bald statements of the respondent is that the impugned orderwas passed without any reason, in the absence of any satisfactionas to the necessity of suspension, with a view to arm-twist andharass the petitioner through a vendetta and a phishing expedition.

This is the exact anti-thesis of what rule of law and principles ofnatural justice seek to achieve.

20.That the contents of respondents reply to para 7J to 7M AND 7K aremisconceived and denied as irrelevant. Section 9 (c) does not haveany application to the present case. Further, there has been noimpermissible diversion of FCRA funds by the petitioner.21. In view of the submissions made in the preceding paras, the writpetition deserves to be allowed and the impugned order being sheerabuse of the powers is liable to be quashed with costs.

DeponentVERIFICATIONVerified at Delhi on this _______ day of September 2013 that thecontents of the above affidavit are true and correct to my knowledgeand nothing has been concealed therefrom.

Deponent


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W.P. (Civil No.) 4982 of 2013

In the matter of :-

Indian Social Action Forum (INSAF)Through its General Secretary,A-124/6, Katwaria SaraiNew Delhi . Petitioner

VersusUnion of India

Through its Secretary,Ministry of Home Affairs,North Block, Central SecretariatNew Delhi 110 001 .Respondent

AFFIDAVIT IN SUPPORT OF REJOINDER AFFIDAVITI, Mr. Ramesh Sharma, aged 42, S/o- Mr. Ambika Charan Sharma,R/o- B103, Maidangarhi Extension, Chhatarpur, New Delhi 110074,Office Manager, Indian Social Action Forum, do hereby solemnlyaffirm and declare as under:-

1. That I am the Office Manager of the petitioner forum and have beenduly authorised to swear the instant affidavit. I am aware of the

facts and circumstances of the case and as such I am competentand authorized to swear this affidavit.2. That I have read and understood the contents of the accompanying

Rejoinder Affidavit at page to , which has also been read out tome. I state that the facts in para to and the averments in parato are true to my knowledge and which I believe to be true andcorrect.

Deponent

VERIFICATIONVerified at Delhi on this _______ day of September 2013 that thecontents of the above affidavit are true and correct to my knowledgeand nothing has been concealed therefrom.

Deponent

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