The court affirmed that the pandemic constituted a force majeure event, limiting the petitioner's liability to actual toll collections during the affected periods.

JUDGMENT :

Heard learned counsel for the parties.

2. The present writ petition has been filed for following reliefs:-

"(i) For issuance of an appropriate writ, order or direction, including writ of certiorari for quashing the Letter no.1009 dated 03.10.2023 (Annexure-11) issued by the Respondent No.4, wherein the demand towards instalment of toll has been raised upon the petitioner belonging to Kandra- Chowka Toll Plaza for the Period from 16.07.2021 to 24.09.2023 in a most arbitrary and illegal manner without taking into consideration the admitted force majeure events as described under Clause 25 of the Request for Proposal (RFP) document which entitled the petitioner to forego instalment during the period of force majeure;

(ii) For issuance of further appropriate writ, order or direction, including writ of mandamus, directing the Respondent No.2 to recompute the demand towards instalment of toll belonging to Kandra-Chowka Toll Plaza after taking into consideration Clause 25 of the RFP document and to compute the foregone remittance of the petitioner by taking into consideration the actual toll collected by the petitioner and deposited in the government treasury during subsistence of the force majeure events”.

3. The period in question is for the following period:-

(i) 16.07.2021 to 28.02.2022

(ii) 21.05.2022 to 19.11.2022

(iii) 01.03.2022 to 20.03.2023

(iv) 01.12.2022 to 01.01.2023.

4. It appears that the petitioner company is a proprietorship firm which has been assigned a work after being successful for collection of the toll of Kandra-Chowka Toll Plaza, situated at Kandra-Chowka Road. The other factual matrix are not in dispute.

5. The contractual terms which has to be interpreted is quoted herein below:-

Force Majeure Clause:

In the entire argument advanced by and between the Petitioner and

Respondent-State of Jharkhand, there is a clause pertaining to Force Majeure

Event being Clause 25, which reads as under:-

"(a) NON-FORCE MAJEURE EVENT:

An event (i) which involves diversion of traffic of any kind, including but not limited to any diversion ordered/implemented by local authority or any State/ Central Government for a period not exceeding 15 days in continuation; or (ii) where the road users opt to access/travel through the existing alternate free User Fee (toll) roads due to deteriorated road conditions/maintenance of road section. This may result into bypassing of User Fee Plaza/User Fee Collection Booths and use of any part of the said Section of the State Highway by the users.

(b) FORCE MAJEURE EVENT:

Except as stated in clause (a) above, Force Majeure event means an event or circumstances or a combination of events and circumstances referred to in this clause which are beyond the reasonable control of the Party or Parties to this Contract and which party could not have prevented or reasonably overcome with the exercise of its reasonable skill and care in relation to performance of its obligations pursuant to this Contract and which are of the nature, without limitation of those described below:

(i) Publicly declared strike by registered and recognized association of Transporters exceeding 7 days. The date of going on strike and withdrawal or start of movement of traffic will be inclusive for the purpose of calculation of 7 days under this clause.

(ii) Floods/Earthquake having materially adverse impact i.e. complete blockade of road.

(iii) Act of war, invasion, armed conflict or act of foreign enemy, unexpected call up of armed forces, blockade, embargo, revolution, riot, sabotage, terrorism or act of such threat, or any other political or social event having material adverse impact on the performance of obligations of the parties thereof.

(iv) Expropriation, acquisition, confiscation or nationalisation of the User Fee collection

(v) Any change in law which has a material adverse effect on the obligation of the parties hereto.

(vi) Any decision or order of a court or tribunal, which has a material adverse effect on the performance of obl