The court established that the COVID-19 pandemic qualifies as a force majeure event, warranting an extension of contractual obligations, and underscored the necessity of arbitration in resolving disputes related to contract renewals.

JUDGMENT

1. Petitioner, claiming to be an ongoing contractor, is tapping the writ jurisdiction of this Court for assailing the Notification dtd. 10/1/2023 issued by the 2nd respondent at Annexure-G calling for e-Tender inter alia in respect of commercial complexes in the KSRTC bus stand at Hassan. The habendum of the said tender in colloquial reads as under:

2. Learned Senior Advocate appearing for the Petitioner seeks to falter the tender in question on the ground of force majeure namely COVID-19 Pandemic; the two Central Government Notifications dtd. 19/2/2020 and 13/5/2020 have the effect of elongating the twelve year contract period pro tanto; there is lapse on the part of respondents in discharging certain contractual obligations briefly stated in para 5 of the petition, despite representations; Petitioner had filed a few cases such as W.P.No.30258/2018, C.M.P No.233/2018, W.P.No.8992/2021, W.P.No.16705/2022 (respondents W.A.No.27/2023); bifurcation of subject matter of tender is unsustainable; impugned action defeats legitimate expectation; Petitioner has got right of extension of the contract; there being an ongoing arbitration, without its culmination into an award, the impugned tender could not have been flouted. The counsel relied upon certain Rulings in support of these submissions.

3. Learned Panel Counsel appearing for the Respondents resisted the Writ Petition repelling the submission made on behalf of the Petitioner. The Statement of Objections have been filed on 14/3/2023 opposing the Writ Petition; the allegations of non- performance of contractual obligations are denied; petition is misconceived, an arbitrator having been appointed; Petitioner's submission transcends the parameters fixed by the Apex Court in the CAs referred to infra; Petitioner has committed breach of contract and in any way the contract has come to an end by efflux of time; respondents being the owners of the premises in question have a greater leverage in awarding contracts and the arguable split of the items cannot be found fault with; Article 39(b) and (c) of the Constitution would support such a split; matter having ultimately gone in C.A.Nos.3625 and 3623-3624/2023, the observations made by the Apex Court in its order dtd. 8/5/2023 are pressed into service. The Panel Counsel cited certain Rulings in support of his contentions.

4. Having heard the learned counsel for the parties and having perused the Petition papers, this court grants partial indulgence in the matter for the following reasons:

(a) Petitioner has been operating the contract in question and its twelve year tenure was from 1/2/2011 to 31/1/2023 are not in dispute, the same being a matter of record. The first submission of learned Sr. Advocate appearing for the Petitioner that the tenure of the contract should be elongated by the COVID-19 Pandemic period in the light of two Central Government Notifications dtd. 19/2/2020 and 13/5/2020 has some force. During the pandemic, almost all commercial activities had come to a standstill world over, cannot be much disputed. That is how, the said Notifications came to be issued. Even the Apex Court in suo moto proceedings, extended the periods of limitation in suo moto W.P.No.(c) 3/2020 in re: cognizance for extension of limitation vide Misc. Application No.665/2021 and Misc. Application No.21/2022, because of unprecedented situation generated by the COVID-19 Pandemic. This extension was from 15/3/2020 to 28/2/2022. Arithmetically this period is two years minus fifteen days. If this period is added to the prescribed tenure of the contract between the parties, the same would stand extended till 16/1/2025 and half of the said period is reckoned, that would come to 9/1/2024. If that be so, the impugned e-tender could not have been issued.

(b) Let me examine the very concept of force majeure. McCardie J. in Lebeaupin v. Crispin ([1920] 2 K.B. 714), has given an account of what is meant by "force majeure" with reference to its history:

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