Greenpeace India Stay Application 15 May

Publication - May 18, 2015

IN THE HIGH COURT OF DELHI AT NEW DELHI

C.M. No     of 2015

in

WRIT PETITION No.            OF 2015

 

IN THE MATTER OF:

Greenpeace India Society                                        …Petitioner

 

Versus

 

Union of India & Ors.                                                 …Respondents

 

 

APPLICATION UNDER SECTION 151 OF THE Code of Civil Procedure FOR STAY AND AD INTERIM ORDERS

 

MOST RESPECTFULLY SHOWETH:

  1. That the Petitioner has filed the accompanying abovementioned writ petition and the same is pending adjudication before this Hon’ble Court.

 

  1. That for the sake of brevity, the Petitioner society craves leave to refer to and rely upon the averments contained in the writ petition in support of the present application, and the same may be incorporated by reference without repetition.

 

  1. That the Petitioner in the accompanying petition is aggrieved and substantially prejudiced by the Respondents’ acts - whereby the Respondent No.1 arbitrarily and illegally passed an order u/s 13 of the Foreign Contribution  Regulation Act, 2010 (hereinafter “FCRA”) dated 9th April 2015 (hereinafter the “Impugned Order”)  suspending the FCRA registration of the Petitioner for 180 days, the maximum period permitted under the Act, and collaterally, ultra vires of the Act and without reference to any order has frozen both FCRA and domestic accounts of the Petitioner. The bank accounts of the Petitioner held with Respondents Nos.2 to 4 are:

S.No.

Account

Type

Bank

1.

005102000000888

FCRA designated account

IDBI Bank (Respondent No.1)

2.

0022840000002052

FCRA utilization account

Yes Bank (Respondent No.3)

3.

0051030000004169

Domestic, non-FCRA

IDBI Bank (Respondent No.1)

4.

015694600000011

Domestic, non-FCRA

Yes Bank (Respondent No.3)

5.

002283800005431

Domestic, non-FCRA

Yes Bank (Respondent No.3)

6.

002284100000616

Domestic, non-FCRA

Yes Bank (Respondent No.3)

7.

625401068671

Domestic, non-FCRA

ICICI Bank (Respondent No.4)

 

 

  1. The prejudice to the Petitioner society is further evident and demonstrable by the fact that the Fixed Deposits held by Respondents Nos.3 and 4 cannot be accessed, due to the accounts of Petitioner society held with Respondents Nos.3 and 4 being frozen on the apparent directions of Respondent No.1. The details of the FDRs of the Petitioner society are as follows:
  2. 5.     Sl. No.
 

Society-Current Fixed Deposits

Bank

Principal

Mat Value

Mat Date

1

FDR-625414039517

ICICI Bank

1200000

1570521

13-Aug-15

2

FDR-002240400046551

Yesbank

2500000

2867087

28-Apr-16

3

FDR-002240400046569

Yesbank

5000000

5734175

28-Apr-16

4

FDR-002240400046572

Yesbank,

5000000

5734175

28-Apr-16

5

FDR-002240400046580

Yesbank,

5000000

5734175

28-Apr-16

6

FDR-002240400046875

Yesbank,

2500000

2867070

7-May-16

7

FDR-002240400046862

Yesbank

2500000

2867070

7-May-16

8

FDR-002240400047353

Yesbank,

5000000

5732685

22-May-16

9

FDR-002240400049183

Yesbank,

9990000

11436480

16-Jul-16

10

FDR-002240400049191

Yesbank

9990000

11436480

16-Jul-16

11

FDR-002240400050102

Yesbank,

9990000

11436155

28-Aug-16

12

FDR-002240400050913

Yesbank

9990000

11444252

21-Sep-16

 

Total

 

68660000

78860331

 

 

 

  1. That Petitioner is aggrieved by the act of the Respondents as the same is a colourable exercise of administrative power, entirely arbitrary, unreasonable, without natural justice and in violation of the constitutional rights of the Petitioner society pursuant to Articles 14, 19 and 300A of the Constitution of India.
  2. In addition to being prejudiced on an ongoing basis by the suspension of the FCRA registration, and without prejudice to any other arguments, the Petitioner society has been subject to an unconstitutional and ultra vires taking – where pursuant to no published or disclosed directions, Petitioner Society has been deprived of its movable property in the form of bank accounts, which have been frozen without any operation of law, natural justice, or judicial adjudication.

 

  1. That the Petitioner is further aggrieved by the act of Respondents Nos. 2, 3 and 4 for acting in violation of their fiduciary duty towards the Petitioner’s movable property thereby freezing the accounts of the Petitioner without any procedure prescribed by law. The said act of freezing the accounts of the Petitioner merely on the basis of Respondent No.1’s Order and without any judicial adjudication or lawful order passed by the regulatory authorities, constitutes an unlawful taking in violation of the statutory and constitutional rights of the Petitioner.  It is to be noted that the RBI’s Guidelines expressly state that they are purely advisory in nature (Annexure P-5).

 

  1. That the Petitioners have a strong prima facie case and there is every likelihood of the above petition being allowed by this Hon’ble Court.

 

  1. That the balance of convenience is in favour of the Petitioners and against the Respondents.

 

  1. That the Petitioners will suffer permanent and irreparable injury if the stay as prayed for is not granted in favour of the Petitioner society and against the Respondents. The Petitioner society will be forced to shut down operations imminently, to cease payment of salaries, benefits and expenses to all of its 350 employees, and to suspend all of its programs.  Due to the actions of the Respondents herein, the Petitioner will not even be able to fulfil its statutory commitments of paying gratuity, provident fund, etc., in addition to taxes of those it is being forced to terminate.

 

  1. Meanwhile, all existing direct debit mandates from domestic donors, upon whom the Petitioner Society relies for a substantial portion of its income, have either been cancelled or currently lie dormant. The Petitioner has already sustained a loss of approximately 1.25 crore in the first month of Respondents' actions complained of herein, which losses are likely to continue on a monthly basis for so long as Respondents' conduct herein continues unchecked.  Even if the Petitioner were enabled to open a new account with Respondent No.2, Petitioner would continue to suffer loss of income and incur heavy administrative costs and inconvenience in order to effect all necessary changes to each of the direct debit mandates involved.

 

  1. The financial crippling of the Petitioner is a direct cause of the acts and conduct of the Respondents, the clear purpose and intent of which is to force Petitioner Society to become defunct before Respondent No.1 has had an opportunity to give due and fair consideration to the Petitioner Society’s response to the show cause notice u/s 14 of the FCRA.  The collateral actions and the consequent non availability of the accounts prior to even the Impugned Orders and show cause notice u/s 14 of the FCRA demonstrates the malafides of the Respondent No.1’s conduct, and the abdication of the Respondent Nos.2 to 4’s fiduciary responsibility.

 

  1. The Petitioner’s projects whose operations are severely circumscribed and prejudiced, include, as illustration, its collaborative solar powered micro grids project with the Bihar Government, its kisan maati yatra for creating demand for support for creating infrastructure to make biomass based eco-fertilisers, and its campaign to phase out pesticides from tea plantations.

 

  1. No prejudice would be caused to the Respondents in allowing this interim stay and order. The adjudication of the allegations is still pending. There is no documentation or basis provided to the Respondent that the Petitioner’s use of the funds would be in violation of FCRA. Most of the funds frozen are acquired from domestic sources, and have no connection whatsoever to foreign contribution, which is the limited jurisdiction of Respondent No.1.

 

  1. That the present application has been made bonafide and in the interest of justice.

 

 

PRAYER

 

It is, therefore, prayed that this Hon’ble Court may be pleased to:

  1. Pass an ad interim order directing the Respondent no.1 to stay the operation of the Impugned Order dated 9th April 2015 u/s 13 of FCRA;

 

  1. Pass an ad interim order directing the Respondent No.1 to stay any and all collateral orders issued to freeze the bank accounts of the Petitioner with Respondents Nos. 2, 3 and 4;

 

  1. Pass an ad interim order directing the Respondent No.2 to unfreeze Petitioner FCRA designated account no. 005103000000888 held with Respondent No.2 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner FCRA utilisation account no. 0022840000002052 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.2 to unfreeze Petitioner domestic, non-FCRA account no. 005103000004169 held with Respondent No.2 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner domestic, non-FCRA account no. 015694600000011 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner domestic, non-FCRA account no. 002283800005431 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner domestic, non-FCRA account no. 002284100000616 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.4 to unfreeze Petitioner domestic, non-FCRA account no. 625401068671 held with Respondent No.4 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondents Nos.3 and 4 to allow the Petitioner society to encash their Fixed Deposits held with them;

 

  1. Pass any such further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

 

 

 

PETITIONER

Through Constituted Attorney

 

THROUGH

 

 

CICERO CHAMBERS,

ADVOCATE FOR THE PETITIONERS,

C-571, 2nd floor, DEFENCE COLONY,

NEW DELHI – 110024

NEW DELHI

DATED:     .05.2015   

 

 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

C.M. No     of 2015

in

WRIT PETITION No.            OF 2015

 

IN THE MATTER OF:

Greenpeace India Society                                        …Petitioner

 

Versus

 

Union of India & Ors.                                                 …Respondents

 

 

APPLICATION UNDER SECTION 151 OF THE Code of Civil Procedure FOR STAY AND AD INTERIM ORDERS

 

MOST RESPECTFULLY SHOWETH:

  1. That the Petitioner has filed the accompanying abovementioned writ petition and the same is pending adjudication before this Hon’ble Court.

 

  1. That for the sake of brevity, the Petitioner society craves leave to refer to and rely upon the averments contained in the writ petition in support of the present application, and the same may be incorporated by reference without repetition.

 

  1. That the Petitioner in the accompanying petition is aggrieved and substantially prejudiced by the Respondents’ acts - whereby the Respondent No.1 arbitrarily and illegally passed an order u/s 13 of the Foreign Contribution  Regulation Act, 2010 (hereinafter “FCRA”) dated 9th April 2015 (hereinafter the “Impugned Order”)  suspending the FCRA registration of the Petitioner for 180 days, the maximum period permitted under the Act, and collaterally, ultra vires of the Act and without reference to any order has frozen both FCRA and domestic accounts of the Petitioner. The bank accounts of the Petitioner held with Respondents Nos.2 to 4 are:

S.No.

Account

Type

Bank

1.

005102000000888

FCRA designated account

IDBI Bank (Respondent No.1)

2.

0022840000002052

FCRA utilization account

Yes Bank (Respondent No.3)

3.

0051030000004169

Domestic, non-FCRA

IDBI Bank (Respondent No.1)

4.

015694600000011

Domestic, non-FCRA

Yes Bank (Respondent No.3)

5.

002283800005431

Domestic, non-FCRA

Yes Bank (Respondent No.3)

6.

002284100000616

Domestic, non-FCRA

Yes Bank (Respondent No.3)

7.

625401068671

Domestic, non-FCRA

ICICI Bank (Respondent No.4)

 

 

  1. The prejudice to the Petitioner society is further evident and demonstrable by the fact that the Fixed Deposits held by Respondents Nos.3 and 4 cannot be accessed, due to the accounts of Petitioner society held with Respondents Nos.3 and 4 being frozen on the apparent directions of Respondent No.1. The details of the FDRs of the Petitioner society are as follows:
  2. 5.     Sl. No.
 

Society-Current Fixed Deposits

Bank

Principal

Mat Value

Mat Date

1

FDR-625414039517

ICICI Bank

1200000

1570521

13-Aug-15

2

FDR-002240400046551

Yesbank

2500000

2867087

28-Apr-16

3

FDR-002240400046569

Yesbank

5000000

5734175

28-Apr-16

4

FDR-002240400046572

Yesbank,

5000000

5734175

28-Apr-16

5

FDR-002240400046580

Yesbank,

5000000

5734175

28-Apr-16

6

FDR-002240400046875

Yesbank,

2500000

2867070

7-May-16

7

FDR-002240400046862

Yesbank

2500000

2867070

7-May-16

8

FDR-002240400047353

Yesbank,

5000000

5732685

22-May-16

9

FDR-002240400049183

Yesbank,

9990000

11436480

16-Jul-16

10

FDR-002240400049191

Yesbank

9990000

11436480

16-Jul-16

11

FDR-002240400050102

Yesbank,

9990000

11436155

28-Aug-16

12

FDR-002240400050913

Yesbank

9990000

11444252

21-Sep-16

 

Total

 

68660000

78860331

 

 

 

  1. That Petitioner is aggrieved by the act of the Respondents as the same is a colourable exercise of administrative power, entirely arbitrary, unreasonable, without natural justice and in violation of the constitutional rights of the Petitioner society pursuant to Articles 14, 19 and 300A of the Constitution of India.
  2. In addition to being prejudiced on an ongoing basis by the suspension of the FCRA registration, and without prejudice to any other arguments, the Petitioner society has been subject to an unconstitutional and ultra vires taking – where pursuant to no published or disclosed directions, Petitioner Society has been deprived of its movable property in the form of bank accounts, which have been frozen without any operation of law, natural justice, or judicial adjudication.

 

  1. That the Petitioner is further aggrieved by the act of Respondents Nos. 2, 3 and 4 for acting in violation of their fiduciary duty towards the Petitioner’s movable property thereby freezing the accounts of the Petitioner without any procedure prescribed by law. The said act of freezing the accounts of the Petitioner merely on the basis of Respondent No.1’s Order and without any judicial adjudication or lawful order passed by the regulatory authorities, constitutes an unlawful taking in violation of the statutory and constitutional rights of the Petitioner.  It is to be noted that the RBI’s Guidelines expressly state that they are purely advisory in nature (Annexure P-5).

 

  1. That the Petitioners have a strong prima facie case and there is every likelihood of the above petition being allowed by this Hon’ble Court.

 

  1. That the balance of convenience is in favour of the Petitioners and against the Respondents.

 

  1. That the Petitioners will suffer permanent and irreparable injury if the stay as prayed for is not granted in favour of the Petitioner society and against the Respondents. The Petitioner society will be forced to shut down operations imminently, to cease payment of salaries, benefits and expenses to all of its 350 employees, and to suspend all of its programs.  Due to the actions of the Respondents herein, the Petitioner will not even be able to fulfil its statutory commitments of paying gratuity, provident fund, etc., in addition to taxes of those it is being forced to terminate.

 

  1. Meanwhile, all existing direct debit mandates from domestic donors, upon whom the Petitioner Society relies for a substantial portion of its income, have either been cancelled or currently lie dormant. The Petitioner has already sustained a loss of approximately 1.25 crore in the first month of Respondents' actions complained of herein, which losses are likely to continue on a monthly basis for so long as Respondents' conduct herein continues unchecked.  Even if the Petitioner were enabled to open a new account with Respondent No.2, Petitioner would continue to suffer loss of income and incur heavy administrative costs and inconvenience in order to effect all necessary changes to each of the direct debit mandates involved.

 

  1. The financial crippling of the Petitioner is a direct cause of the acts and conduct of the Respondents, the clear purpose and intent of which is to force Petitioner Society to become defunct before Respondent No.1 has had an opportunity to give due and fair consideration to the Petitioner Society’s response to the show cause notice u/s 14 of the FCRA.  The collateral actions and the consequent non availability of the accounts prior to even the Impugned Orders and show cause notice u/s 14 of the FCRA demonstrates the malafides of the Respondent No.1’s conduct, and the abdication of the Respondent Nos.2 to 4’s fiduciary responsibility.

 

  1. The Petitioner’s projects whose operations are severely circumscribed and prejudiced, include, as illustration, its collaborative solar powered micro grids project with the Bihar Government, its kisan maati yatra for creating demand for support for creating infrastructure to make biomass based eco-fertilisers, and its campaign to phase out pesticides from tea plantations.

 

  1. No prejudice would be caused to the Respondents in allowing this interim stay and order. The adjudication of the allegations is still pending. There is no documentation or basis provided to the Respondent that the Petitioner’s use of the funds would be in violation of FCRA. Most of the funds frozen are acquired from domestic sources, and have no connection whatsoever to foreign contribution, which is the limited jurisdiction of Respondent No.1.

 

  1. That the present application has been made bonafide and in the interest of justice.

 

 

PRAYER

 

It is, therefore, prayed that this Hon’ble Court may be pleased to:

  1. Pass an ad interim order directing the Respondent no.1 to stay the operation of the Impugned Order dated 9th April 2015 u/s 13 of FCRA;

 

  1. Pass an ad interim order directing the Respondent No.1 to stay any and all collateral orders issued to freeze the bank accounts of the Petitioner with Respondents Nos. 2, 3 and 4;

 

  1. Pass an ad interim order directing the Respondent No.2 to unfreeze Petitioner FCRA designated account no. 005103000000888 held with Respondent No.2 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner FCRA utilisation account no. 0022840000002052 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.2 to unfreeze Petitioner domestic, non-FCRA account no. 005103000004169 held with Respondent No.2 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner domestic, non-FCRA account no. 015694600000011 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner domestic, non-FCRA account no. 002283800005431 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.3 to unfreeze Petitioner domestic, non-FCRA account no. 002284100000616 held with Respondent No.3 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondent No.4 to unfreeze Petitioner domestic, non-FCRA account no. 625401068671 held with Respondent No.4 and allow the Petitioner to use the funds without hindrance;

 

  1. Pass an ad interim order directing the Respondents Nos.3 and 4 to allow the Petitioner society to encash their Fixed Deposits held with them;

 

  1. Pass any such further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

 

 

 

PETITIONER

Through Constituted Attorney

 

THROUGH

 

 

CICERO CHAMBERS,

ADVOCATE FOR THE PETITIONERS,

C-571, 2nd floor, DEFENCE COLONY,

NEW DELHI – 110024

NEW DELHI

DATED:     .05.2015