Point of Law: Covid-19 pandemic is a force majeure and the provisions of the Act, 2005 are having overriding effect to the provisions of the Electricity Act, 2003 and GTCS terms and conditions of the agreement for supply of power entered into by the petitioners and respondents.

ORDER :

The petitioner prays for mandamus declaring the action of 4th respondent in cancelling the tender vide proceedings in Ref.No.1.9.08/CUS/81 p padu/2020 dated 07.05.2020 for collection of cashew usufruct from 1981 CP Pullalapadu (146-13 Hectares) forfeiting his tender amount in favour of APFDC Ltd. and proceeding further for recovery of loss of amount to the corporation inspite of COVID-19 lockdown as illegal and arbitrary and also the orders passed by this Court in W.P.No.8130/2020 dated 26.03.2020 and for a consequential direction to the respondents to allow the petitioner to collect the said cashew usufruct for the next season i.e., from November 2020 to July 2021 by setting aside the said tender cancellation order dated 07.05.2020.

2. The case of the petitioner succinctly is thus:

(a) The 3rd respondent has issued notification for conducting of auction for collection of cashew usufructs from 1981 CP Pullalapadu (146-13 Hectares) vide proceedings in Ref.1375/2019/CS/981 dated 30.11.2019 with a condition to deposit EMD of Rs.1.00 lakhs by way of DD in favour of APFDC Ltd. on or before 12.12.2019. Certain terms and conditions were incorporated in the said auction schedule regarding depositing of sale value towards security deposit by way of demand draft. The condition No.33 of the agreement is that the period of contract shall be upto 30.06.2020 and the contractor shall collect the entire produce on or before 30.06.2020 after making payment of due amount in full. No one came forward to participate in the auction on earlier occasion and no one expressed their willingness to collect the cashew produce on different reasons as the yielding capacity as well as climate was unfavourable. Finally at the request of the department officials, the petitioner participated in the auction held on 06.02.2020 and was declared as highest bidder for Rs.24.00 lakhs for collection and removal of cashew usufruct from 1981 CP Pullalapadu cashew plantation.

(b) The petitioner paid Rs.2.00 lakhs on 06.02.2020 and Rs.4.00 lakhs on 07.02.2020 totaling Rs.6.00 lakhs towards 1/4th of sale / bidding amount. The petitioner has to deposit 10% of sale value of Rs.24.00 lakhs towards security deposit in the form of DD or FDR besides 5% of GST on the bid amount within a period of 50 days from the date of auction and remaining balance amount of 50% has to be deposited on or before 18.04.2020.

(c) It is submitted that unless the petitioner paid the amount within 50 days from the date of auction, the corporation will not execute agreement in his favour. In the middle of February 2020, COVID virus started spreading in India and lockdown was imposed from 25.03.2020. However, the petitioner has time to pay the entire amount with interest on or before expiration of lease period i.e., on or before 30.06.2020. Due to COVID lockdown the petitioner could not pay the amount within 50 days time. As such he addressed a letter to extend the time or return his EMD amount deposited. Consequently he could not enter into agreement with Corporation due to non-availability of money in the lockdown period. Thereafter, the respondent-Divisional Manager issued notices repeatedly for payment of balance amount on 14.04.2020 and 18.04.2020 and the 4th respondent also issued notice to petitioner demanding the balance amount as per the conditions mentioned in tender notification. The petitioner submitted representation dated 17.04.2020 to respondent to grant time upto 03.05.2020 for balance payment and also extend auction period for the next year, as he did not collect any cashew from the plantation. The said representation was rejected and the respondents issued another notice dated 18.04.2020 and directed to pay the entire amount, otherwise they will cancel the tender besides forfeiture of amount already paid and unit will be resold at the risk and loss of purchaser as per the sale notice conditions. It is contended that due to lockdown the police have not allowed the petitioner to com