The importance of forum conveniens in determining the territorial jurisdiction of the court in relation to challenges of orders granting sanction for prosecution under UAPA.

JUDGMENT

Anish Dayal, J.

1. The petitioner has filed this Writ Petition praying for striking down Section 15 (1) of the Unlawful Activities Prevention Act, 1967 (UAPA) for being ultra vires Articles 14 and 21 of the Constitution of India or read it down to save it from being rendered unconstitutional; and to quash and set aside the impugned order dated 2nd September, 2021 passed by the respondent no. 1 (Union of India through Under Secretary, CTCR Division, Ministry of Home Affairs) and grant consequential reliefs.

2. A preliminary objection was raised that this Court would not have territorial jurisdiction over the subject matter of the present petition in light of relief prayed for. Accordingly, this Court on 3rd March, 2022 directed the parties to first address this Court on the following issue:

"Whether an order rendered by Central Government granting sanction under provision of Section 45 of the Unlawful Activities Prevention Act, 1967 can be assailed standalone per se and if so, where would the jurisdiction/ proceedings lie?"

Submissions on behalf of the Petitioner

3. Mr. Santosh Paul, Senior Advocate addressing arguments on behalf of the petitioner canvassed that the impugned order dated 2nd September, 2021 granting sanction for prosecution under Section 45 (1) UAPA for prosecuting the accused persons (which included the petitioner charge-sheeted under Sections 16, 18 & 20 of UAPA) was passed on the basis of recommendations received by Respondent no. 1 from the Authority constituted under Ministry's order No - 11034/1/2009/IS-IV dated 3rd July, 2015 consisting of a retired judge and retired Law Secretary for making an independent review of the evidence gathered in course of investigation. Learned Senior Counsel highlighted the fact that the Authority gave its report to Respondent no.1 on 28th August, 2021 within a day of having received the investigation report from the National Investigation Agency (NIA) together with a list of documents collected and witnesses examined during the course of the investigation. Therefore, addressing specifically on the issue of territorial jurisdiction, the learned senior counsel asserted that since this decision which it was seeking to quash and set aside was taken by the Respondent no. 1 in New Delhi based upon the report of the Authority also based in New Delhi, this Court would have jurisdiction to hear the matter.

4. Learned Senior Counsel relied upon the judgment of this Hon'ble Court in Malini Mukesh Vora Vs. Union of India & Ors., 2009 SCC Online Del 1776 where this Court on a question of territorial jurisdiction held that Article 226 (1) empowered the High Court to issue writ to any person, authority or Government located within its territorial limits irrespective of where the cause of action arose while Article 226 (2) permitted the High Court to issue writs to persons, authorities or Governments located beyond the territories with respect to which it exercises jurisdiction, provided a cause of action in whole or in part arose within those territories. This Court had further held that Article 226 (2) supplements and does not supplant Article 226(1). Learned Senior Counsel highlighted the view expressed in para 19 and 20 of Malini Mukesh Vora (supra) where this Court stated that distinction has to be drawn between a challenge to a legislation and a challenge to an executive action. While in Kusum Ingots & Alloys Ltd. Vs. Union of India, (2004) 6 SCC 254, the challenge was to an exercise of legislative power, the challenge in this case was to an executive action and therefore it would have to be assessed differently for the purposes of territorial jurisdiction.

5. Learned Senior Counsel for the petitioner further relied upon the decision of this Court in Sonu Sardar Vs. Union of India, 2016 SCC Online Del 6206 in a challenge to orders of the President on India and Governor of Chhattisgarh rejecting the mercy petition of the petitioner therein on account of delay, non applicatio