IN THE HONBLE HIGH COURT OF DELHI AT NEW DELHI CIVIL 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 Sarai New Delhi Versus Union of India Through its Secretary, Ministry of Home Affairs, North Block, Central Secretariat New Delhi 110 001 Respondent S. No.
1.

. Petitioner

INDEX Particulars Rejoinder Affidavit on behalf of the Petitioner Affidavit in support of the Rejoinder

Pages

C. Fees

2.

New Delhi Dated: 16.09.2013 Filed by: Kabir Dixit Counsel for the Petitioner A-10, Second Floor, Jangpura Extension, New Delhi 14 9999087047 kabir.dx@gmail.com

IN THE HONBLE HIGH COURT OF DELHI AT NEW DELHI CIVIL EXTRAORDINARY WRIT JURISDICTION W.P. (Civil No.) 4982 of 2013 In the matter of :Indian Social Action Forum (INSAF) Petitioner Vs Union 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 solemnly affirm and declare as under:1. That it is submitted at the out set that in the counter affidavit it is admitted that no reasons were given while passing the impugned order as it was not mandatory to give reasons; attempt has been made to justify the impugned order as an after-thought but it clearly comes 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 internally inconsistent and contradictory statements. Further, the respondents have made bald unsubstantiated averments in their counter in the attempt to pass of afterthoughts and ex post facto rationalizations as reasons for passing the impugned order. The Counter affidavit reveals that the impugned order, which gives rise to very serious civil consequences for the petitioner, was passed in complete absence of any reason or satisfaction as to the necessity of suspension. It is submitted that the suspension of petitioners registration was a grossly arbitrary and illegal action taken in total absence of any reasons indicating the necessity so to do. Therefore, it is respectfully submitted that in the present case, the failure to record reasons in writing for the impugned order goes to the root of the matter and vitiates the entire action as being illegal and sheer abuse of powers conferred on the Central Government under Section 13 (1) of the Act. As such, the impugned order is liable to be quashed and set aside for the reasons detailed below in the writ petition as well as in this rejoinder affidavit. 2. That para 1 being a statement of fact needs no reply.

3. That

4.

5. 6.

7.

8.

in response to para 2 it is respectfully submitted that respondents order no. II/21022/ 58(034)/2013-FCRA(MU) dated 30.04.2013 suspending the petitioners FCRA registration, is patently illegal. It violates a significant principles of natural justice namely, the requirement of recording reasons in writing, enshrined in Section 13 (1) of the Foreign Contribution (Regulation) Act, 2010 (FCRA or Act) and thus, cannot be said to have been passed in legitimate exercise of the powers of suspension conferred under Section 13 (1). Reply to para wise reply in the counter affidavit That the respondents in their reply to para 1 to 4 of the writ petition admit that the petitioner association has not been declared as an organization of political nature under the FCRA, 2010. As such the petitioner is qualified to receive Foreign Contribution under the provisions of the FCRA, 2010. Para 5.1 to 5.3 of the writ petition are un-rebutted in the counter and hence, need no reply. 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 the petitioner association reportedly transferred funds to various FCRA registered and non FCRA registered NGOs. This, it is submitted, is a false averment and a bald statement without any factual basis. No details whatsoever have been furnished by the respondent about which non FCRA registered NGO is being referred to. Further, it is clearly an afterthought and demonstrates the gross abuse of powers. That in response to para 5.4 and 5.5 of the petition, the respondent has further stated that the verification and inspection process initiated by the Govt. will assess whether the participation in protests by fisherfolk and villagers in Koodankulam Nuclear Power Plant and organization of Anti-POSCO day demonstrations as well supporting anti GM (genetically modified food) campaign were included in the Projects of the association and whether any violations of FCRA have taken place. This statement can be said to describe the scope of respondents enquiry under Section 14 (1) of FCRA, 2010. However, it does not state the reasons for which the Central Government was satisfied at the time of passing the impugned order about the necessity for suspending the registration. The information about Koodankulam, POASCO and genetically modified foods has been culled from the instant writ petition itself. Pertinently, the suspension can be ordered only for reasons for which the authority is satisfied that it is necessary to suspend the registration pending enquiry into grounds of cancellation. It is submitted that bald and unverified statements without any factual basis or details do not qualify as reasons for the purpose of forming the satisfaction as to the necessity of suspension as required under Section 13 (1).

9. Further, it is submitted that the requirement of reasons to be

required in writing is a judicially recognized principle of natural justice. It assumes added significance in case of administrative orders with serious civil consequences such as the order of suspension in the present case. It has been judicially upheld in a catena of judgments by this Honble Court and the Honble Apex Court that bald averments in subsequent pleadings before the courts in proceedings challenging such unspeaking orders do not compensate for the absence of reasons in the impugned orders. An impugned order bad in law for not recording reasons in writing does not subsequently become good in law if some reasons are stated in the pleadings of the administrative authority later in judicial proceedings. The law does not allow for such second bites at the cherry. 10. It is submitted that in the present case serious civil consequences flow for the petitioner from the respondents order of suspension of the registration under the FCRA, 2010. The petitioner association was engaged in several on-going projects aligned with its declared objects and scores of persons were involved with these on-going projects. The order of suspension has disrupted the program and schedule of the association and caused a serious set-back. Petitioners limited resources have been frozen and the association has been pushed to the brink of extinction by the impugned order of suspension. Such an order of suspension could not have been passed except in rigorous compliance with the statutory requirements as it infringes on the fundamental right of the petitioner association to form an association and to engage in a profession or calling of its choice. 11. In view of the serious repercussions of the impugned order, the failure to record reasons in writing for the suspension goes to the root of the matter. The said failure constitutes a patent illegality and misuse 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 respondents have denied suspending the petitioners FCRA registration for the latters petition before the Honble Supreme Court challenging various provisions of the said Act. However, it is submitted that the complete absence of any reason for Central Governments satisfaction for the necessity of suspension as revealed by both the impugned order and the counter affidavit indicate that the impugned order has been passed as an arm-twisting measure to teach the petitioner a lesson for resorting to legal remedies. 13. Respondents reply to para 5.11 to para 5.14 is another example that the respondents are essentially making up absurd reasons as they go along. The respondents have no cogent explanations as to what comprised the Central Governments satisfaction as to the

necessity for suspending the petitioners registration on the date of impugned order. In the reply in the third paragraph at page 3 of the Counter, the respondents state that the impugned order was passed for the reason that Central Government, having regard to the information in its possession, was satisfied that the acceptance of foreign contribution by the petitioner was likely to prejudicially affect public interest. In the same breath, however, the same paragraph in the very next line states that whether or not such acceptance of foreign contribution by the petitioner was likely to prejudicially affect was something that the respondents sought to ascertain by seeking information vide a letter dated 02.05.2013. This exposes a farce. The impugned order was passed on 30.04.2013 and on that date the Central Government claims to be satisfied, based on information in its possession that it was necessary to suspend the petitioners FCRA registration as acceptance of foreign contribution by the petitioner was likely to prejudicially affect public interest. Yet, they admit that it was only 3 days later on 02.05.2013 that, they asked the petitioner for the information which would, admittedly, enable them to ascertain whether there was any likelihood of prejudicial affect on public interest by the petitioners acceptance of foreign contribution. Therefore, on the date of the impugned order, the respondents by their 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 been passed for extraneous reasons of colourable exercise of power to harass the petitioner. 14. That it is submitted that the delay in submitting the reply to the respondents standard questionnaire was due in part to certain unavoidable circumstances such as continued illness of the administrative in-charge of the association and in part because the petitioner was unable to pay salaries to its staff. These facts were immediately 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 to non FCRA registered NGOs by the petitioner. This is a false and bald averment raising unsubstantiated allegations. The petitioner has furnished its accounts to the respondents, which are in order. This is an afterthought by the respondents as an ex post facto rationalization for their illegal action and therefore, cannot be accepted. 16. In reply to the respondents reply to para 7E to 7G of the petition, contents of para 12 above are reiterated.

17. Further, the respondents reply to para 7H to 7I of the petition

reveals that the respondents have a totally erroneous understanding of Section 13 (1), which directly explains how the respondents passed the impugned illegal suspension order. Respondents explanation of Section 13s legal requirement exposes their reason for passing the illegal impugned order. In the third para on page 5,The respondents have stated that the words for reasons to be recorded in writing in Section 13 (1) of FCRA, 2010 are directory and not mandatory as the use of the word may and not shall gives the discretion to the suspending authority to take appropriate steps relating to the association based on the facts. This, it is submitted, is a wholly incorrect understanding of the language and purport of Section 13 (1). Section 13 (1) is reproduced here for quick reference : 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 an order in writing, suspend the certificate for such period not exceeding one hundred and eighty days as may be specified in the order. As per the basic rules of English grammar, the word may in section 13 (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 of grounds of cancellation of registration of such association. However, after deciding to suspend the registration pending such enquiry, the authority has no further discretion available under law in the matter of furnishing reasons recorded in writing in a written order for such decision of suspension of registration. In other words, the authority is legally bound to furnish reasons recorded in writing for why it is satisfied that it is necessary to suspend the registration pending an enquiry into the whether there exist any grounds for cancellation of registration. Simply put, any order of suspension passed without furnishing reasons recorded in writing for why the authority is satisfied that it is necessary so to do pending an enquiry into the existence of grounds for cancellation, would be subject to judicial review and in appropriate cases, such as the present one, be void and liable to be set aside as illegal. 18. Further, it is important to point out that suspension can be ordered only while an enquiry is underway to determine whether there exist any of the grounds for cancellation of registration that are specified in the Act. As such, one of the grounds mentioned in the Act under Section 14 (1) cannot be reproduced verbatim as a reason for suspension.

19. What is categorically revealed by the internally inconsistent, vague

and bald statements of the respondent is that the impugned order was passed without any reason, in the absence of any satisfaction as to the necessity of suspension, with a view to arm-twist and harass the petitioner through a vendetta and a phishing expedition. This is the exact anti-thesis of what rule of law and principles of natural justice seek to achieve. 20. That the contents of respondents reply to para 7J to 7M AND 7K are misconceived and denied as irrelevant. Section 9 (c) does not have any application to the present case. Further, there has been no impermissible diversion of FCRA funds by the petitioner. 21. In view of the submissions made in the preceding paras, the writ petition deserves to be allowed and the impugned order being sheer abuse of the powers is liable to be quashed with costs. Deponent VERIFICATION Verified at Delhi on this _______ day of September 2013 that the contents of the above affidavit are true and correct to my knowledge and nothing has been concealed therefrom. Deponent

IN THE HONBLE HIGH COURT OF DELHI AT NEW DELHI CIVIL 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 Sarai New Delhi Versus Union of India Through its Secretary, Ministry of Home Affairs, North Block, Central Secretariat New Delhi 110 001 Respondent

. Petitioner

AFFIDAVIT IN SUPPORT OF REJOINDER AFFIDAVIT 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 solemnly affirm and declare as under:1. That I am the Office Manager of the petitioner forum and have been duly authorised to swear the instant affidavit. I am aware of the facts and circumstances of the case and as such I am competent and 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 to me. I state that the facts in para to and the averments in para to are true to my knowledge and which I believe to be true and correct. Deponent VERIFICATION Verified at Delhi on this _______ day of September 2013 that the contents of the above affidavit are true and correct to my knowledge and nothing has been concealed therefrom. Deponent