Madras High Court
The Tuiticorin Diocesan Association vs The Government Of India on 20 October, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 28.06.2023
Pronounced on :20.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.3061 of 2014 and
11437 and 11438 of 2017
and
WMP(MD)Nos.5583 of 2016, 12833,
8795 to 8800 and 18993 of 2017,
2391 and 2393 of 2021
WP(MD)No.3061 of 2014
The Tuiticorin Diocesan Association,
Represented by Fr.A.Sahaya Joseph,
Catholic Bishop's House,
GC.Road, Tuiticorin – 628 001.
... Petitioner
Vs
1.The Government of India,
represented by the Secretary,
Ministry of Home Affairs,
Forigners Division (FCRA Wing),
Jaisalmer House,
26, Man Singh Road,
New Delhi – 110 011.
2.The Deputy Secretary,
Government of India,
Minsitry of Home Affairs,
Foreigners Division (FCRA Wing),
Jaisalamer House,
26, Man Singh Road,
New Delhi – 110 011.
1/20
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
3.The Under Secretary,
Government of India,
Ministry of Home Affairs,
Foreigners Division (FCRA Wing),
Jaisalmer Hous,
26, Man Singh Road, New Delhi – 110 011.
4.The Director,
Government of India,
Ministry of Home Affairs (FCRA Wing),
Opposite Jantar Mantar,
B-Wing, I Floor Jai Singh Road,
New Delhi City Centre-II,
5.The Manager,
Bank of Baroda,
159-A, Victoria Street,
Tuiticorin ... Respondents
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India for issuance of writ of declaration,
declaring the suspension order bearing
No.F.II/21022/58(0480)/2011-FCRA(MUC) the 4th respondent
dated 25.09.2012 is statutorily lapsed as per Section 13(1)
of the Foreign Contribution (Regulation) Act, 2010.
For Petitioner : Mr.Xavier Arul Raj
Senior Counsel
for Mr.V.John Kennedy
For Respondents: Mr.K.Govindaraj,
Nos.1 to 4 Dy.Solicitor General of India
Assisted by Mr.S.Jeyasing
Central Govt. Standing Counsel
For Respondent : No representation
No.5
2/20
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
WP(MD)No.11437 of 2017
The Tuiticorin Diocesan Association,
Represented by Fr.A.Sahaya Joseph,
Catholic Bishop's House,
GC.Road, Tuiticorin – 628 001.
... Petitioner
Vs
1.The Government of India,
represented by the Secretary,
Ministry of Home Affairs,
Forigners Division (FCRA Wing),
Jaisalmer House,
26, Man Singh Road,
New Delhi – 110 011.
2.The Deputy Secretary,
Government of India,
Minsitry of Home Affairs,
Foreigners Division (FCRA Wing),
Jaisalamer House,
26, Man Singh Road,
New Delhi – 110 011.
3.The Under Secretary,
Government of India,
Ministry of Home Affairs,
Foreigners Division (FCRA Wing),
Jaisalmer Hous,
26, Man Singh Road, New Delhi – 110 011.
4.The Director,
Government of India,
Ministry of Home Affairs (FCRA Wing),
Opposite Jantar Mantar,
B-Wing, I Floor Jai Singh Road,
New Delhi City Centre-II,
3/20
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
5.The Manager,
Bank of Barod,
159-A, Victoria Street,
Tuiticorin ... Respondents
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India for issuance of writ of
certiorarified mandamus calling for the records pertaining
to the order dated 22.12.2016 in No.II/21022/36(0319)2016-
FCRA-II on the file of the 3rd respondent and quash the same
and direct the respondents to restore the order of renewal
of registration dated 22.08.2016 i No.0300099352016 on the
file of the 3rd respondent.
For Petitioner : Mr.Xavier Arul Raj
Senior Counsel
for Mr.V.John Kennedy
For Respondents: Mr.K.Govindaraj,
Nos.1 to 4 Dy.Solicitor General of India
Assisted by Mr.G.Rajaraman
Central Govt. Standing Counsel
For Respondent : No representation
No.5
WP(MD)No.11438 of 2017
The Tuiticorin Diocesan Association,
Represented by Fr.A.Sahaya Joseph,
Catholic Bishop's House,
GC.Road, Tuiticorin – 628 001.
... Petitioner
Vs
4/20
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
1.The Government of India,
represented by the Secretary,
Ministry of Home Affairs,
Forigners Division (FCRA Wing),
Jaisalmer House,
26, Man Singh Road,
New Delhi – 110 011.
2.The Deputy Secretary,
Government of India,
Minsitry of Home Affairs,
Foreigners Division (FCRA Wing),
Jaisalamer House,
26, Man Singh Road,
New Delhi – 110 011.
3.The Under Secretary,
Government of India,
Ministry of Home Affairs,
Foreigners Division (FCRA Wing),
Jaisalmer Hous,
26, Man Singh Road, New Delhi – 110 011.
4.The Director,
Government of India,
Ministry of Home Affairs (FCRA Wing),
Opposite Jantar Mantar,
B-Wing, I Floor Jai Singh Road,
New Delhi City Centre-II,
5.The Manager,
Bank of Barod,
159-A, Victoria Street,
Tuiticorin ... Respondents
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India for issuance of writ of
certiorarified mandamus calling for the records pertaining
to the order dated 24.12.2016 in No.II/21022/36(0320)/2016-
5/20
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
FCRA-II on the file of the 3rd respondent and quash the same
and direct the respondents to restore the order of renewal
of registration dated 20.03.2016 in No.0300006912015 on the
file of the 3rd respondet.
For Petitioner : Mr.Xavier Arul Raj
Senior Counsel
for Mr.V.John Kennedy
For Respondents: Mr.K.Govindaraj,
Nos.1 to 4 Dy.Solicitor General of India
Assisted by Mr.Paul Pandi
Central Govt. Standing Counsel
For Respondent : No representation
No.5
COMMON ORDER
The Chief Funcationary of the Tuiticorin Diocesan Association has filed the writ petition in WP(MD)No.3061 of 2014, as against the interim order of suspension of the petitioner Association's certificate of registration under the Foregin Contribtuion (Regulation) Act, [in short FCR Act] 2010 passed by the 4th respondent / the Director, Ministry of Home Affairs (FCRA wing) under Section 13(1) of the FCR Act, 2010 in No.F.II/21022/58(0480)/2011-FCRA(MU), dated 25.09.2012.
6/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
2.The very same petitioner has filed another writ petition in WP(MD)No.11437 of 2017 as against the order passed by the Under Secretary, Ministry of Home Affairs in No.II/21022/36(0319)/2016-FCRA-II dated 22.12.2016 and for a consequential direction to restore the earlier order of renewal of registration dated 22.08.2016.
3.The writ petition in WP(MD)No.11438 of 2017 has been filed by the Tuiticorin Multipurpose Social Service Society as against the order passed in No.II/21022/36(0320)/2016- FCRA-II dated 20.03.2016 by the 3rd respondent under Section 32 of the FCR Act, 2010 and for a consequential direction.
4.Since the issue involved in all these writ petitions are similar pertaining to one and the same parties, these writ petitions are heard together and disposed of by way of this common order.
5.Mr.Xavier, learned Senior Counsel appearing for the petitioners in all these writ petitions submits that the Tuiticorin Diocesan Association was established in the year 7/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 1923, was registered as a Society and also registered under the Income Taxt Act, 1961 and under the Foriegn Contribution (Regulation) Act, 1976. The Diocean according to the learned Senior Conunsel for the petitioner is running around 250 educational institutions, 25 hospitals and dispensaries and more than 50 orphanages and charity homes. The FCRA license was issued to this petitioner on 09.02.20211 and a prohibitory order was passed by the respondents under Sections 9 and 10 of the FCR Act, 2010 that the petitioner association has violated certain provisions of the Act and prohibited it from receiving foreign contribution from the date of passing of the order. The bank accounts of this petitioner assosication were also freezed. This prohibition order dated 09.02.2011 was challenged by this petitioner in WP(MD)No.7587 of 2012 and this Court by order dated 07.06.2012 granted an order of interim stay of the same. Pending the writ petition and the order of stay granted by this Court, the 4th respondent has conducted an inspection and passed an order under Section 13 of the FCR Act suspending the certificate of registration of the petitioner for a period of 180 days. This order was challenged in WP(MD)No.3061 of 2014 and this 8/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 Court granted an interim relief permitting this petitioner to operate the bank accounts. Thereafter, the petitioner approached the respondents for renewal of the registration on 15.03.2016 and the same was duly considered by the concerned authorities and the registration of the petitioner's association under FCR Act was renewd by the 3rd respondent by order dated 22.08.2016. While so within a period of four months by order dated 22.12.2016, the certificate of registration, which has been renewed for a period of five years with effect from 22.08.2016 was cancelled by the order passed under Sections 9 and 10 of the FCR Act prohibiting this petitioner association from receiving any foreign contribution and also from operating their bank accounts. Challenging the same, the petitioner has filed WP(MD)No.8796 of 2017. This Court while entertaining the writ petition, has also granted an order of interim stay of the orders and permitted the petitioner's association to operate their bank accounts by order dated 18.07.2017.
9/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
6.The learned Senior Counsel submits that the petitioner's society is a registred society under the FCR Act in the year 1994 and the registration has been periodically renewed. The application of this petitioner dated 15.03.2016 for renewal was also duly considered by the respondents and the regsitration has been renewed by order dated 22.08.2016 for a period of five years with effect from 01.11.2016. While so without any valid cause, the under Secretary to Government, Ministry of Home Affairs by exercising his powers under Section 32 of FCR Act has revised the order dated 22.08.2016 to renew the registration and the orders are non est - ab initio without assinging any reason and without providing an opportunity and therefore, the impugned orders are liable to be set aside.
7.The Deputy Solicitor General of India appearing for the respondents submits that the order dated 22.08.2016 was passed inadvertently in terms of Section 16 of the Act. Subsequently the mistake has been corrected by invoking the provisions under Section 32 of the Act. He further submits 10/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 that the revision order has been issued by the 3rd respondent after following the due process of law and after due approval of the competent authority form the Ministry of Home Affairs. The learned Deputy Solicitor General further submits that even in the year 2012 an inspection was conducted and prohibitory order was passed under Sections 9 and 10 of the Act on 09.02.2012. Some irregularities have been committed when the petitioner association has deposited the foreign currency cheque in local accounts, thereby mixed up the accounts, did not disclose 13 local donation accounts, where foreign currencies have been deposited, transfer of foreign currencies to 5 NGOs, buildings were constructed on the property, where title deeds bear the name of different organisations and involving in political activities and therefore, the association has violated the provisions of the Act. He also referred to some of the reports of the Central Government Security Agencies and submits that these contents of the reports cannot be divulged. 11/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
8.This Court considered the rival submission and perused the materials placed on record.
9.The petitioner diocesan association was established in the year 1923 and was registered under the Foreign Contribution (Regulation) Act in the year 1994. The certificate of registration was also renewed periodically. Similar order of prohibition under Sections 9 and 10 of the Act was passed as against the petitioner association in the year 2012. Challenging the same, the petitioner association has approached this Court in WP(MD)No.7587 of 2012 and this Court by order dated 07.06.2012 granted an order of interim stay of the prohibitory order. Thereafter the order of suspension was passed by the respondents by invoking the provisions under Section 13 of the FCR Act on 29.09.2012 and the prohibitory order passed under Sections 9 and 10 of the Act was stayed by this Court by order dated 07.06.2012. Not withstanding the same, the application of this petitioner dated 15.03.2016 was entertained by the respondents and the registration of the petitioner association was renewed by order dated 22.08.2016 for a period of five years and this 12/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 order of renewal has now been withdrawn and again issued a prohibitory order under Sections 19 and 20 of the FCR Act on 22.12.2016.
10.The respondents claim that this order dated 22.08.2016 was passed inadvertently under Section 16 of the Act and the same has been corrected by invoking the provisions under Section 32 of the FCR Act and also after following the due process of law. It is relevant to extract Section 16 of the FCR Act, which reads as follows:
“16 Renewal of certificate. ?
(1) Every person who has been granted a certificate under section 12 shall have such certificate renewed within six months before the expiry of the period of the certificate.
(2) The application for renewal of the certificate shall be made to the Central Government in such form and manner and accompanied by such fee as may be prescribed.
(3) The Central Government shall renew the certificate, ordinarily within ninety days from the date of receipt of application for renewal of certificate subject to such terms and conditions as it may deem fit and grant a certificate of renewal for a period of five 13/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 years: Provided that in case the Central Government does not renew the certificate within the said period of ninety days, it shall communicate the reasons therefor to the applicant: Provided further that the Central Government may refuse to renew the certificate in case where a person has violated any of the provisions of this Act or rules made thereunder.
11.The provisio to Section 16(1) of the Act contemplates an enquiry before renewing of the certificate to satisfy itself with the condition as required under Section 4 (12) of the FCR Act have been complied with. The application submitted under Section 16 of the Act is not an automatic process, wherein an order of renewal can be passed inadvertently, the provisio to Sub Section 3 of Section 16 enables the Central Government to refuse the renewal of registration, in cases, wherein the person has violated any of the provisions or Rules made there under. The renewal order dated 22.08.2016 was passed based on the application dated 15.03.2016, after due consideration of the application after a period of six months. The Central Government is expected to consider the application within a 14/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 period of 90 days and in this case, 6 months time was taken by the respondents to consider the application of this petitioner and it was finally renewed on 22.08.2016 for a period of five years. However, within a period of four months, the earlier order has been withdrawn by the Under Secretary to the Government, Ministry of Home Affairs by invoking the powers of revision under Section 32 of the FCR Act. It is relevant to extract Section 32 of the Act, which reads as follows:
“32 Revision of orders by Central
Government. ?
(1) The Central Government may, either of its own motion or on an application for revision by the person registered under this Act, call for and examine the record of any proceeding under this Act in which any such order has been passed by it and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon as it thinks fit.
(2) The Central Government shall not of its own motion revise any order under this section if the order has been made more than one year previously.
(3) In the case of an application for 15/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 revision under this section by the person referred to in sub-section (1), the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier: Provided that the Central Government may, if it is satisfied that such person was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period.
(4) The Central Government shall not revise any order where an appeal against the order lies but has not been made and the time within which such appeal may be made has not expired or such person has not waived his right of appeal or an appeal has been filed under this Act.
(5) Every application by such person for revision under this section shall be accompanied by such fee, as may be prescribed.
Explanation .?An order by the Central Government declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to such person.”
12.The respondents ought to have conducted an enquiry by providing opportunity to the petitioner before passing 16/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 the impugned orders. When the respondents have considered the application of this petitioner dated 15.03.2016, renewed the registration on 22.08.2016 and finally has withdrawn the earlier order, the respondents ought to have provided reasonable opportunity of hearing to the petitioner. The basics of principle of natural justice have not been complied with in this case. On this ground, the impugned orders dated 22.12.2016 and 24.12.2016 are liable to set aside.
13.The earlier prohibitory order dated 25.09.2012 and the suspension order under Section 13 of the Act have become infructuous, in view of the subsequent order passed by the respondents on 22.08.2016. Therefore, the writ petition in WP(MD)No.3061 of 2014 is dismissed as infructuous.
14.The impugned orders in WP(MD)Nos.11437 and 11438 of 2017 are set aside with liberty to the respondents to conduct a fresh enquiry by providing an opportunity of hearing to the petitioner.
17/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017
15.The period of renewal as per the order dated 22.08.2016 has also expired by the year 2021 and therefore, the petitioner is at liberty to submit a fresh application for renewal of his registration within a period of four weeks from the date of receipt of a copy of this order with an undertaking affidavit that they will not use the foreign funds under the FCR Act for any activities, which are against the interest of the nation. The respondents shall also consider the application of the petitioner for renewal considering that this petitioner association is in existence for a long time and also running various educational institutions, hospitals and orphanage, within a period of twelve weeks therefrom. No costs. Consequently connected miscellaneous petitions are closed.
20.10.2023
Internet: Yes / No
Index : Yes / No
NCC : Yes / No
DSK
18/20
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 To
1.The Secretary, Ministry of Home Affairs, Forigners Division (FCRA Wing), Jaisalmer House, 26, Man Singh Road, New Delhi – 110 011.
2.The Deputy Secretary, Minsitry of Home Affairs, Foreigners Division (FCRA Wing), Jaisalamer House, 26, Man Singh Road, New Delhi – 110 011.
3.The Under Secretary, Ministry of Home Affairs, Foreigners Division (FCRA Wing), Jaisalmer Hous, 26, Man Singh Road, New Delhi – 110 011.
4.The Director, Ministry of Home Affairs (FCRA Wing), Opposite Jantar Mantar, B-Wing, I Floor Jai Singh Road, New Delhi City Centre-II,
5.The Manager, Bank of Barod, 159-A, Victoria Street, Tuiticorin 19/20 https://www.mhc.tn.gov.in/judis WP(MD)Nos.3061 of 2014, 11437 and 11438 of 2017 B.PUGALENDHI, J.
dsk WP(MD)Nos.3061, 11437 and 11438 of 2017 20.10.2023 20/20 https://www.mhc.tn.gov.in/judis