ORDER :

1. Devas Employees' Mauritius Pvt. Ltd., a Company incorporated under the laws of Republic of Mauritius has presented this writ petition with prayers to (i) declare Section 272(1)(e) of Companies Act, 2013 ('the Act' for short) as ultra vires Constitution of India; (ii) to declare that the second proviso to Section 272(3) of the Act, must be read to be applicable to the petitions presented by persons falling under Section 272(1)(e) of the Act; and to issue a writ of certiorari quashing sanction order dated January 18, 2021 and consequently to quash all proceedings in C.P. No. 06/BB/2021 before NCLT, [National Company Law Tribunal].

2. Brief facts of the case are, petitioner holds 3.48% shares in Devas Multimedia Pvt. Ltd., (respondent No.3 herein), (hereinafter referred to as 'Devas'). On January 28, 2005, Antrix Corporation Ltd., (respondent No. 2 herein) and Devas entered into an agreement for lease of space segment capacity on ISRO/Antrix S-Band Space Craft. According to the petitioner, investments were brought into Devas from different shareholders including State owned Deutshe Telekom, an enterprise of the German Government.

3. On February 25, 2011, Antrix Corporation terminated the agreement. Devas initiated arbitration proceedings in ICC, [International Chamber of Commerce]. On September 14, 2015, ICC Arbitral Tribunal passed an Award for USD 562.5 Million with interest thereon, which according to the petitioner works out to about Rs.10,000 Crores and same is being enforced in several jurisdictions. The Central Government vide notification dated January 18, 2021 has authorised the Chairman & Managing Director of Antrix Corporation to present a petition to wind up Devas. Accordingly, Antrix Corporation has filed a Company Petition before NCLT, Bengaluru. By it's order dated January 19, 2021, NCLT has admitted the petition and granted time to the respondents therein to file replies; and appointed the official liquidator attached to this Court as provisional liquidator.

4. Petitioner has challenged NCLT's order before NCLAT, [National Company Law Appellate Tribunal] Chennai in Company Appeal (AT)(CH)No.02/2021. The said appeal has been disposed of vide order dated February 11, 2021, by directing the petitioner to file necessary interlocutory application before NCLT seeking permission to implead itself and with liberty to raise all factual and legal pleas before the NCLT. Petitioner has filed an application seeking impleadment in the proceedings before NCLT.

5. Shri. Rajiv Nayar, for petitioner mainly urged following contentions :

* a winding up petition can be presented by persons specified in Section 272(1) of the Act, which includes both Registrar and 'any person authorized by the Central Government'. Section 272(3) provides that Registrar shall obtain previous sanction from the Central Government to present a winding up petition. The second proviso to Section 272(3) mandates that Central Government shall not accord sanction unless Company has been given an opportunity of making representation;

* in this case, no opportunity was given to Devas prior to the accord of sanction by the Central Government;

* the order passed by the Central Government authorizing the Chairman and Managing Director of Antrix Corporation to file winding up petition is malafide exercise of power;

* the agreement between Antrix and Devas has been terminated on the ground of force majeure after taking opinion from the learned Additional Solicitor General and not on the ground of fraud;

* the arbitral award passed by ICC is unanimous;

6. Shri. Nargund and Shri. Venkataraman, learned Additional Solicitors General for the Union of India and Antrix Corporation argued opposing the petition.

7. I have carefully considered rival contentions and perused the records. In the conspectus of facts of this case, following points arise for consideration:-

(1) Whether Section 272 (1)(e) is ultra vires Constitution of India? and

(2) Whether order dated 18.01.2021 needs a