The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17524 of 2022 M/s. Asha Kiran Charitable Society …... Petitioner Mr. S. Ray, Senior Advocate assisted by Mr. K.K. Sahoo, Advocate -versus- Secretary to the Government of India, Ministry of Home Affairs, Foreigners Division (FCRA Wing), New Delhi …… Opposite Party Mr. P.K. Parhi, Deputy Solicitor General of India Mr. B.S. Rayguru, CGC. CORAM: THE CHIEF JUSTICE JUSTICE SAVITRI RATHO ORDER 12.09.2023 Order No. 17. 1. 2. This matter is taken up through hybrid mode. Heard Mr. S. Ray, learned Senior Counsel assisted by Mr. A. Mohanty, learned counsel appearing on instruction of Mr. K.K. Sahoo, learned counsel for the Petitioner and also heard Mr. P.K. Parhi, learned Deputy Solicitor General of India and Mr. B.S. Rayguru, learned Central Government Counsel for the Opposite Party. 2 3. By means of this writ petition, the Petitioner has challenged the order dated 15.04.2022 passed by the Secretary, Ministry of Home Affaires by rejecting the renewal of the Petitioner’s FCRA registration for receiving the foreign contributions. According to the Petitioner, M/S Asha Kiran Charitable Society, a Society registered under the Society Registration Act, having its registered office at Dipupara, Jharsuguda, Orissa, no reason has been disclosed in the said order dated 15.04.2022 why their application for renewal has been refused under Section 16(1) read with Section 12(4)(a)(vi) and Section 12(4)(f)(vi) of the Foreign Contribution Regulation Act in short FCRA, 2010. The Petitioner is engaged in charitable activities and they are
Legal Reasoning
running a special school for the mentally challenged persons for giving them training towards holistic development by early intervention, behavior modification, psychological, physical and vocational training and for bringing them up as dignified human beings. For that purpose, they had been receiving the foreign contribution after obtaining the certificate under Section 12 of the FCRA. It has been stated by the Petitioner 3 that they uploaded their application for renewal for a period of five years in the designated portal and the said application was made in Form FC-4 in terms of Rule 17 of the Foreign Contribution (Regulation) Rules, 2011 by the one-liner order dated 15.04.2022, Annexure-1 to the petition, their renewal application was rejected. It has been stated by the Petitioner that they filed the revision petition to the appropriate authority i.e. the Ministry of Home Affairs (FCRA Wing) on 24.05.2016 along with all the material documents including the audited accounts (FCRA) for the year ended on 31st March, 2020 verified by Chartered Accountants. 4. In the face of the allegation of arbitrariness, the Opposite Party filed their counter affidavit firstly on 09.02.2023 stating that the Central Government may not communicate the reasons for refusal to grant of the certificate or for not granting prior permission or renewal, in cases where there is no obligation to give any information or documents or records or papers under the Right to Information Act, 2005. Thus, the Opposite Party has accepted that they did not disclose the reason for refusal of renewal of the FCRA 4 certificate. In the said affidavit, the Opposite Party has made the following averments: “10. That with regard to the averments made in
Decision
Paragraph -3.14 of the Writ Petition, the deponent humbly submits that the averments made by the petitioner are all false and misleading. It is submitted that the petitioner applied for the renewal of registration under FCRA, 2010 on 22.04.2021. The application for the renewal of registration was denied on 15.04.2022. However, no application of renewal of registration dated 24.05.2022 has been received from the petitioner. Further, the averment that FCRA Certificate of the petitioner expired on 30th October, 2021 is hereby denied by this Opp. Party.” It has been further stated in the said counter affidavit that the Petitioner’s FCRA certificate was under scrutiny. Hence, the validity was extended till 30.06.2022 or till the date of disposal of the renewal application, whichever is earlier. Therefore, after 15.04.2022 the Petitioner Society did not have any valid FCRA certificate for accepting foreign contributions or fund. According to the Opposite Party, 5 Section 32 of FCRA provides the scope of revision of the order passed by the Central Government. It has been contended that no such revision petition was ever filed by the Petitioner following the prescription of Rule 20 of the FCR Rules, 2011. 5. For purpose of renewal of the FCRA certificate, every person, who has been granted a certificate under Section 12 shall have to get such certificate renewed before six months prior to the expiry of the period of the certificate, provided that the Central Government may, before renewing the certificate, make such inquiry, as it deems fit, to satisfy itself that such person has fulfilled all conditions specified in sub- section (4) of Section 12. Section 16(3) stipulates the maximum period for consideration of the application for renewal. It provides that for renewal of the FCRA certificate, the application for renewal has to be disposed of within ninety days from the date of the receipt of the application. There is no dispute in this regard. It has been further contended by the Opposite Party that proviso to Section 12(5) also stipulate that the Central Government may not communicate the reasons for 6 refusal of certificate. Thereafter, the Opposite Party has contended as follows: “It is submitted that inputs received in the field enquiry clearly reveals that the petitioner has violated the provisions stipulated under section 12(4)(a)(vi) and 12(4)(f)(vi) of FCRA, 2010. The input received in the field enquiry is a document with classified grading. Furthermore, field inquiry is conducted by Central Security Agency which is exempted from the RTI Act, 2005 in terms of Section 24 of the RTI Act. Hence, filed inquiry report is exempted from disclosure under section 24(1) of the RTI Act, 2005 and it cannot be shared in the public domain. Hence, the contentions raised by the petitioner in these paragraphs are not at all sustainable in the eye of law, for which the same are liable to be rejected.” It has been also contended that since there is an alternative remedy under Section 32 of the FCRA, this writ petition should not be maintained. 6. The Opposite Party has filed another counter affidavit styled as Additional Affidavit on 19.05.2023. In the said affidavit, they have reiterated their position regarding the field 7 inquiry and dilated their objection. They have stated that the findings of the field inquiry further revealed that the Petitioner has diverted the foreign contribution for undesirable purposes and involved in the activities other than those permitted in the FCRA Registration Certificate and those, contrary to the aims and objectives mentioned in the Association of Memorandum of the Society. For sake of convenience, the aims and objectives, embodied in the Memorandum of Association, as noted in the said additional affidavit are extracted below: “a) To give training and education for an all round development of the mentally handicapped and to rehabilitate these in order to make them socially accepted citizens irrespective of their caste, creed, community or religion. b) To undertake establish and administer institutions for the mentally and physically handicapped for their education, rehabilitation and welfare. c) To provide and facilitate medical, educational and social assistance for all persons, especially mentally and physically handicapped, leprosy affected persons and other socially backward children and individuals. 8 d) To conduct courses, seminars, exhibitions camps for trainees, parents, youth and school children, social workers on matters related to physical and mental health and development. e) To perform works of charity and relief by caring for the sick, poor, weak, down trodden, old and handicapped and to promote community health care and nutrition in any manner as may be deemed expedient. f) To purchase, build, obtain on lease, acquire, take over establish, maintain, run institutions for technical and vocational training centers and production centers and convent. g) To carry out any other programme of service, incidental or ancillary to the main objectives.” It has been also asserted in the said affidavit that the finding of the field enquiry report has been produced before this Court on 17.04.2022. According to the Opposite Party, the Petitioner has diverted the foreign contribution for religious agenda and it got involved in the activities contrary to the aforementioned aims and objectives, which are prejudicial to national interest, and as such, the Petitioner has acted in 9 contravention to Sections 8 and 12 of FCRA, 2010. Another response-affidavit has been filed by the Opposite Party on 11.09.2023. In the additional affidavit filed on 19.05.2023, the Opposite Party has asserted as follows: “5. That it is submitted that as per the mandate of Section-16(1), a field enquiry was conducted by the Central Security Agency and the findings of the field enquiry revealed that one of the office bearers of the Association is fictitious, as he died in April, 2020. At this juncture, it is pertinent to mention that the petitioner applied for renewal on 22.04.2021 and mentioned the deceased office bearer in the statutory FC-3C form, despite knowing the fact that the office bearer has already died in April, 2020. In view of the aforesaid facts, the petitioner has given false information and violated section 12(4)(a)(i) of FCRA, 2010. For the sake of convenience. Section 12(4)(a)(i) of FCRA, 2010 is reproduced below: "12(4). The following shall he the conditions for the purposes of sub-section (3), namely: 10 (a) the person making an application for registration or grant of prior permission under sub-section (I) (i) is not fictitious or benami; In view of the so called information of death of one of the chief functionaries of the Petitioner, the Opposite Party has taken a stand that the application for renewal was filed in the name of the person who was not alive at that time. But in the affidavit dated 11.09.2023, the Opposite Party has accepted that the said allegation was incorrect and the Opposite Party had made the allegation on the basis of the field enquiry report. It has been also stated in the said affidavit dated 19.05.2023 that as per the inputs provided by the field agency regarding death of Sister Manath Rosy Antony, Vice President, the date of death was in the month of April, 2020 and basing upon the same, the Opposite Party had filed the counter affidavit as well as the Additional Affidavit. When the further query was made from the field agency after receipt of the rejoinder affidavit [filed by the Petitioner] specially with regard to the death of Sister Manath Rosy Antony, Vice 11 President, the Field Agency submitted a further report reflecting the date of death of Sister Manath Rosy Antony on 29.04.2021 and it has been admitted by the Opposite Party that the application for renewal was filed much before the death of Sister Manath Rosy Antony. The Opposite Party has also raised another plea that despite knowing this fact of death, the Petitioner did not give any intimation to the Opposite Party and never applied for change of the key members in the statutory Form FC-6E and thus, the Petitioner has evidently failed to meet the statutory requirement in this regard. Rule 17A of the Foreign Contribution (Regulation) Rules, 2011 has been referred. Only Rule 17A (iv) is relevant for our purpose. Rule 17A (iv) reads as follows: “17. …………………………………………….. (iv) Office bearers of key functionaries or members mentioned in the application for grant of registration in the application for grant of registration or prior permission or renewal of registration, as the case may be, in Form FC-6E. ……………………………..” 12 The Opposite Party has contended that when one key functionary had passed away, it was the duty of the Petitioner to bring the said fact on record and also to fill up the post that has been vacated for the untimely death of the said Vice President of the Society. Even in the said affidavit, it has been reiterated that the Petitioner has diverted the foreign contribution for undesirable purposes and the Petitioner is involved in the activities other than those permitted in the FCRA Registration Certificate and the activities contrary to the aims and objectives as mentioned in the Memorandum of Association. The aims and objectives are already reproduced. The ground for denial has been clearly stated and now those are in the public domain as the Opposite Party has placed those on records by their affidavit dated 19.05.2023. There is no dispute that the Petitioner applied for renewal of the FCRA registration for social and educational purposes. But according to the Opposite Party, the foreign contribution as received on the strength of the FCRA registration certificate had been diverted by the Petitioner “for religious agenda”. Even though the Petitioner has submitted their audit report with the 13 application, the Opposite Party has failed to show which part of the expenditure has been used “for religious agenda”. Even, there is no whisper against the audited accounts filed along with the application in Form FC-4. 7. Mr. Ray, learned Senior Counsel appearing for the Petitioner has emphatically submitted that the foreign contribution as received by the Petitioner has been used for the said special school and upbringing of the mentally challenged children who are receiving education and training for their growth as able human being. 8. As stated in the counter affidavit filed by the Opposite Party in terms of our order dated 14.03.2023, that the Opposite Party has submitted the field enquiry report under a confidential sealed cover with a note inside marked as ‘secret’. We have perused the said short note where it has been stated that Manath Rosy Antony is fictitious, as she died in April, 2020. Further, it has been highlighted that the Society runs a Church/Prayer hall within the school premises. The students of the school are allegedly made to attend prayers twice a day. Running a Church is violative of the very objectives of the 14 Society. We have carefully examined the report, which has been referred in the counter affidavit filed by the Opposite Party as the field report. Only one objection that has been raised in the said report is at Para-6. Since the content of the report has been already disclosed by the Opposite Party in their affidavit we do not find any justification to maintain the sealed cover procedure. Para-6 of their objection reads as follows: “It runs a Church/Prayer hall within the school premises. The students of the school are allegedly made to attend prayers twice a day. Running a Church is violative of the nature of the association. This may be factored in suitably while deciding the matter.” 9. So far as the allegation of diversion of fund is concerned, we do not find any whisper even the said report. The objection relating to running a Church is unsubstantiated. Even the note that has been provided to us with the said report does not reflect that in any manner fund for the Petitioner has been utilized for any religious activities. The only objection 15 that has been seriously underlined is that the Petitioner is “allegedly made the children, student of the school to attend the prayer twice a day”. Even the objection that has been raised regarding making the student attend the prayer twice a day, has been qualified by the word ‘allegedly’. So we are to hold that the said statement cannot be treated as the verified statement. If the facts are verified, those are stated accordingly. On the basis of the said purported enquiry report, the Opposite Party has denied the renewal of the FCRA registration certificate in favour of the Petitioner. We are surprised at the way the Opposite Party had taken objection based on untimely death of one of the chief functionaries of the society. Without verification of the date of death, it has been asserted by the affidavit that the death took place in the year 2020. Later on, the Opposite Party, in the face of the challenge projected by the Petitioner on the ground of floating a false statement, the Opposite Party has, on purported verification, stated that the said death took place in the year 2021 after the application for registration was submitted. 16 Compliance of Rule 17A of the FCR Rules was not the basis for denying the renewal. 10. Mr. Parhi, learned Deputy Solicitor General of India has strenuously argued before us that the fund was diverted for the religious activities, but he could not show a piece of paper or any entry vis-à-vis the audited account that was submitted by the Petitioner to show that the fund has not been utilized for the purpose for which the same was accepted by the Society. Mr. Parhi, learned Deputy Solicitor General of India has also reiterated that, if the Petitioner is aggrieved by the order dated 15.04.2022, they have the remedy in the form of revision under Section 32 of the FCRA. In this respect, on scrutiny of the records, we find that the Petitioner has claimed that they have filed one revision petition on 24.05.2022. But, Mr. Parhi, learned Deputy Solicitor General of India has categorically stated on the basis of the additional affidavit, as referred before, that no such revision petition was ever received by the Opposite Party. At that juncture, Mr. Ray, learned Senior Counsel has submitted a copy of the said revision petition which carries endorsement in the form of the 17 receipt seal of the Central Registry of the Ministry of Home Affairs. Hence, we may reasonably hold that the said revision petition was received on 24.05.2022. Mr. Parhi, learned Deputy Solicitor General of India has referred to a decision of the apex Court in Noel Harper and Others vs. Union of India and Another: (2023) 3 SCC 544. In the said case, the constitutional validity of the amendments carried out by way of Foreign Contribution (Regulation) Amendment Act, 2020 in the Foreign Contribution (Regulation) Act, 2010 bringing about a substantive change was challenged. The said challenge was scuttled by the Apex Court holding that whatever hardship may it cause to the registered associations on account of the change, that cannot be the basis to declare the law made by parliament invalid. Mr. Parhi, learned Deputy Solicitor General of India has specially referred the Paragraph-22 of Noel Harper (supra) for contending that Section 12-A of FCRA mandates that benami and fictitious activities are prohibited under the said Act. We do not find any relevance of referring the said decision of the Apex Court in the present context, as there is no allegation that the Petitioner has been 18 carrying on benami and fictitious activities, at least that has not been revealed from the field enquiry report, as produced. So far as the question relating to the existence of the revision petition is concerned, Mr. Ray, learned Senior Counsel has contended that the Petitioner had paid fee of Rs.3,000/- for the said revision petition. As the Opposite Party has denied to receive the revision petition, we have found on scrutiny of the record that there is a receipt endorsement on the body of the petition. It is to be deemed now that there had been no decision by the Central Government in the said revision petition. Mr. Ray, learned Senior Counsel has further submitted that the future of the mentally challenged students are at peril for non-renewal of the FCRA certificate in favour of the Petitioner. No activities of the Petitioner can be stated to be anti-national or in violation of the conditions of the FCRA certificate. 11. We have meticulously appreciated the field enquiry report and the purported evidence of the Opposite Party. We are persuaded to hold on such scrutiny that no reason, supported by reliable evidence, has been provided to this 19 Court to justify the action taken by the Opposite Party by refusing the renewal of the FCRA certificate vide Annexure-1 and as consequence of our opinion, we strike down the decision of the Opposite Party for not renewing the FCRA certificate. We would direct to the Petitioner to reconstitute the Society in terms of and for purpose of Section 17A of the Foreign Contribution (Regulation) Rules, 2011 and submit Form FC-6E afresh to the Opposite Party preferably within a period of 30 days from today. After receipt of such application, the Opposite Party shall consider the matter expeditiously in terms our observations as made above. Such exercise shall be completed by the Central Government within a period of another one month from the date of receipt of the application in the statutory form. Form FC-6E, as may be filed by the Petitioner, shall be treated as part of the Form-FC-6E as filed earlier. The process in which the impugned order has been passed will be treated as pending for decision of the authority. No new material shall be considered by the Central Government and renewal shall be considered from the date 20 when the former FCRA registration had expired in order to maintain the continuity of the FCRA registration. 12. In terms of the above, this writ petition stands disposed of. 13. A copy of this order be supplied to Mr. Parhi, learned Deputy Solicitor General of India forthwith. 14. Urgent certified copy of this order be granted as per rules. 15. The field inquiry report submitted before us be returned in the sealed cover through Mr. Parhi, learned Deputy Solicitor General of India. No orders as to costs. (S. Talapatra) Chief Justice (Savitri Ratho) Judge Murmu Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 21-Sep-2023 16:35:47