9911796707
TMI Blog2011 (6) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... n funding from philanthropic organizations. It is stated that the Petitioner has, since its inception and until the recent past, received foreign contributions/donations after obtaining prior permission from Respondent No. 1 Ministry of Home Affairs ('MHA'), FCRA Division under section 6(1A) of the FCRA 1976. The Petitioner completed three financial years of existence and became entitled to apply for permanent registration in Form FC 8 under the Foreign Contribution (Regulation) Rules, 1976 ('FCR Rules 1976') read with section 6(1) of the FCRA 1976. The Petitioner states that it has been regularly furnishing returns to the MHA, FCRA Division, Government of India in Form FC 3 in respect of the source and application of the foreign contributions received by it from time to time. It is stated that returns have been accepted by the MHA. 3. The Petitioner received a communication dated 1-12-2009 from Erasmus Universiteit, Rotterdam for remittance of the balance grant of Euros 2,80,701 from European Community in respect of the project titled "Developing efficient and responsive community based Micro Health Insurance for India". It is stated that the Petitioner had earlier received the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the financial year 2009-10 it had received an amount of Euros 95,000 from the same donor DGRV for which the Respondents had granted prior permission by its letter dated 11-11-2009. 8. On 6-10-2010 the MHA wrote the following letter to the Petitioner : "(1.) I am directed to refer to your application dated 16-6-2010 seeking grant of prior permission for receiving foreign contribution under section 6(1A) of the Foreign Contribution (Regulation) Act, 1976 and to inform that the permission of Central Government cannot be granted at present under the said Act as it will take further time to dispose of your case. 2. Further you are advised that no foreign contribution should be accepted by you till prior permission for receiving foreign contribution is issued by this Ministry." [Emphasis supplied] 9. Thereafter, the Petitioner did not hear from the MHA even after the expiry of ninety days. Aggrieved by the letters dated 25-3-2010 and 6-10-2010 of the MHA, the Petitioner, in this petition, seeks quashing of the said letters and a declaration that the Petitioner is entitled to unconditionally accept donations for which it had applied for prior permission by applications dated 3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be decided within the stipulated period of ninety days. Often the exact reasons are not conveyed to the applicants due to security considerations. Deemed permission under Proviso to section 11(2) FCRA 1976 12. The first issue to be considered is whether there was deemed permission in terms of the proviso to section 11(2) FCRA 1976. Under section 6(1) of the FCRA 1976 it is incumbent on the applicant association "having a definite cultural, educational, religious or social programme" to register itself with the Central Government in accordance with the FCR Rules before it accepts any foreign contributions. Once registered, the association shall give within such time and in such manner as may be prescribed, an intimation to the Central Government as to the amount of each foreign contribution received by it, and the source from which and the manner in which such foreign contribution was utilized by it. An association not registered with the Central Government in accordance with the FCR Rules 1976 can in terms of section 6(1A), accept any foreign contribution "only after obtaining the prior permission of the Central Government". As far as the Petitioner was concerned, since it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on 2-3-2010. On 5-3-2010 the Central Government in terms of the Proviso to section 11(2) stated that "it will take another thirty days from 7-3-2010" to dispose of the application. In other words, the FCRA Division was treating the date of the physical filing of the application, i.e., 7-12-2009, as the date of the application and was seeking for further thirty days after the expiry of ninety days in terms of the Proviso to section 11(2). The thirty day extension period was coming to an end on 7-4-2010. By a letter dated 25-3-2010 the Petitioner was simply informed that "permission of the Central Government cannot be granted at present" and that "it will take another thirty days from 7-3-2010 to dispose of your application." The subsequent letter dated 25-3-2010 indefinitely extended the time for granting the permission notwithstanding the deeming provision in the form of the Proviso to section 11(2) FCRA 1976. Clearly, the communication dated 25-3-2010 was not consistent with the Proviso to section 11(2) FCRA 1976. In other words, the expiry of thirty days beyond the period of ninety days would result in grant of deemed permission. The communication dated 25-3-2010 by the MHA de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16-6-2010 was concerned. In fact, even the communication dated 6-6-2010 was not one under the Proviso to section 11(2) FCRA 1976 since the Central Government did not refer to any special difficulties it was encountering in granting the permission. This position becomes clear when the letter dated 6-10-2010 is contrasted with letter dated 5-3-2010 where special difficulties were expressed by the Central Government as the reason for not being able to dispose of the Petitioner's first application dated 3-12-2009. Thus even the thirty day extension in terms of the Proviso to section 11(2) FCRA 1976 was not available to the FCRA Division in respect of the second application dated 16-6-2010. The deemed permission became effective on 15-9-2010. Effect of repeal of FCRA 1976 by FCRA 2010 19. The FCRA 2010 no doubt repeals the FCRA 1976. However FCRA 2010 also contains a savings clause in the form of section 54(2). The relevant portion of section 54(2) reads as under: "54. Repeal and saving.-....... (2) Notwithstanding such repeal, - (a)anything done or any action taken or purported to have been done or the provisions under the repealed Act shall, insofar as it is not inconsisten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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