ANNEMARIE FOUNDATION V. UNION OF INDIA

WP(C)/1952/2024

AI Insights

The case involves the Annemarie Foundation, a petitioner, challenging the rejection of their application for registration under the FCR Act by the Ministry of Home Affairs. The rejection was based on the grounds that the foundation's activities were not merely charitable but also commercial, thus violating Section 12(4)(a)(vii) of the FCR Act. The petitioner argued that the rejection letter (Ext.P4) did not provide clear reasons for the rejection, making it difficult to address the issues cited. The Central Government Counsel defended the rejection, citing specific violations found during a field inspection. The court's decision allows the petitioner to reapply, emphasizing the need for clarity and an opportunity to rectify any issues in compliance with the FCR Act.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 760318 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 09-02-2024
• Assessment Year: misc
• Laws Referred To: Foreign Contribution (Regulation) Act, 2010
• Result in Favour of: Applicant
• Court: HIGH COURT
• Department Lawyers: SUVIN MENON
• Assessee Lawyers: E ADITHYAN; MEERA RAMESH; NESAMUDHEEN MANJILA
• Keywords: Commercial activities; FCRA; Foreign Contribution; Registration; Rejection
• Section: 12(4)(a)(vii)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 WP(C) NO. 1952 OF 2024 PETITIONER: ANNEMARIE FOUNDATION PARAYIL BUILDING THARIYODE P.O WAYANAD REPRESENTED BY ITS CHAIRMAN, PIN - 673575 BY ADVS. E.ADITHYAN MEERA RAMESH NESAMUDHEEN TREESA MANJILA RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS NORTH BLOCK,NEW DELHI, PIN - 110001 2 THE SECRETARY MINISTRY OF HOME AFFAIRS NORTH BLOCK,NEW DELHI, PIN - 110001 3 JOINT SECRETARY FCRA WING, 1ST FLOOR, MAJOR DHYAN CHAND NATIONAL STADIUM, NEAR PRAGATI MAIDAN, NEW DELHI, PIN - 110001 4 DIRECTOR (FCRA) FOREIGNERS DIVISION FCRA WING, 1ST FLOOR, MAJOR DHYAN CHAND NATIONAL STADIUM, NEAR PRAGATI MAIDAN, NEW DELHI, PIN - 110001 5 UNDER SECRETARY MINISTRY OF HOME AFFAIRS FOREIGNERS DIVISION FCRA WING, 1ST FLOOR, MAJOR DHYAN CHAND NATIONAL STADIUM, NEAR PRAGATI MAIDAN, NEW DELHI, PIN - 110001 SRI.SUVIN R.MENON - CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1952 OF 2024 2 JUDGMENT The petitioner impugns Ext.P4 proceedings issued by the 5th respondent – Ministry of Home Affairs, rejecting their application for registration under the Foreign Contribution (Regulation) Act, 2010 (‘FCR Act’ for short), asserting that the said document does not render it clear why such rejection has been ordered, except saying that they have not made available “correct details/information/documents” (sic). The petitioner contends that they have been, therefore, incapacitated from even answering Ext.P4 effectively; and thus prays that it be set aside, and the competent Authority be directed to reconsider their application in terms of law, after affording them an opportunity of being heard. 2. Sri.Suvin R.Menon – learned Central Government Counsel, in response to the afore submissions of Sri.Nesamudheen – learned counsel for the petitioner, submitted that, as per the ‘FCR Act’ and the Rules thereunder, it is only if the applications are proper, can they be considered by the competent Authority. He pointed out that, as is evident from Ext.P4, the petitioner’s earlier application was found to be in contravention under the provisions of the ‘FCR Act’, and hence that he was informed that, under the provisions of Section 12(4)(a)(vii) of the said Act, it cannot be considered and is liable to be rejected. He WP(C) NO. 1952 OF 2024 3 pointed out that, it is in such manner that the petitioner was granted liberty to apply afresh with all relevant and correct details/information and documents, particularly to the effect that they are not acting in contravention of the ‘FCR Act’ in any manner and thus not in breach of Section 12(4)(a)(vii) thereof. He submitted that, therefore, if the petitioner makes an application in terms of the liberty reserved in Ext.P4, the competent Authority will consider the same, without being guided by the earlier rejection. 3. The learned counsel for the petitioner - Sri.Nesamudheen, however, submitted that since Ext.P4 does not cite any reason as to why his client’s earlier rejection was ordered, except saying that it is in violation of Section12(4)(a)(vii) of the ‘FCR Act’, they are now incapacitated from making a fresh application, for fear that it will also be rejected for the same reason. He pointed out that, he is making this submission because, his client’s application had been rejected earlier also. 4. I, therefore, asked Sri.Suvin R.Menon – learned Central Government Counsel, as to the specific reasons why Ext.P4 has been issued; to which, he replied saying that, since there are some issues which are sensitive in nature, it cannot be disclosed, going by the statutory protection that the Authorities obtain under the ‘FCA Act’. WP(C) NO. 1952 OF 2024 4 He, however, disclosed that, on field inspection, it was found that the activities of the petitioner were not merely charitable, but also commercial; and that this was one of the reasons why the application was found to be in contravention of Section12(4)(a)(vii) of the ‘FCR Act’. 5. The submissions of the learned counsel being recorded as above, it is clear that, on one hand, the petitioner says that they made their application complying with every requirements of the ‘FCR Act’; while, on the other, the learned Central Government Counsel explains that the said application could not be considered since there were certain violations found at the time of field inspection, particularly that the petitioner's activities were commercial in nature and hence falling foul of Section 12(4)(a)(vii) of the ‘FCR Act’. 6. That being so, it would be possible for this Court to enter into an assessment as to the correctness of either of the afore positions - it being exclusively in the realm of facts. I am, therefore, of the view that the petitioner must be allowed to exercise the liberty under Ext.P4, to make a fresh application with all details, including to establish that they have not engaged in any commercial activities, so that the same can then be decided de hors any decision that has been taken earlier by the competent Authority, including as reflected in Ext.P4. I am sure WP(C) NO. 1952 OF 2024 5 that if this liberty is reserved, the petitioner would obtain necessary opportunities in law to seek registration under the ‘FCR Act’. In the afore circumstances, I allow this writ petition, to the limited extent of leaving liberty to the petitioner to make a fresh application as referred to in Ext.P4; and if this is done, supported by all relevant details/information/documents, particularly that they are not engaged in any commercial activity, the same shall be considered by the competent Authority de hors the earlier decisions taken with respect to their applications, including as reflected in Ext.P4. A final decision shall be taken by the competent Authority as expeditiously as is possible after a new application is preferred by the petitioner, avoiding all unnecessary delay. Sd/- DEVAN RAMACHANDRAN JUDGE MC/13.2 WP(C) NO. 1952 OF 2024 6 APPENDIX OF WP(C) 1952/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED TRUST DEED OF THE PETITIONER TRUST DATED 15/12/2017 Exhibit P2 TRUE COPY OF THE LETTER DATED 07.09.2020 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER Exhibit P3 TRUE COPY OF THE APPLICATION DATED 28.12.2022 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT Exhibit P4 THE LETTER DATED 16.12.2023 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER Exhibit P5 THE TRUE COPY OF THE CERTIFICATE DATED 31.03.2023 ISSUED BY THE INCOME TAX DEPARTMENT OF INDIA TO THE PETITIONER. "