O R D E R

This writ petition is filed by the existing lessee for collecting of the toll charges for parking of vehicles in front of Arulmighu Egambaranathar Temple and Arulmighu Kamakshi Aman Temple and as against the tender notification No. 305 dated 31.12.2020 and for a consequential direction for extention of lease period for another year.

2. The case of the petitioner is that he has taken up a parking area for lease to collecting toll charges, which is infront of Arulmighu Egambaranathar Temple and Arulmighu Kamakshiamman Temple for three year i.e., 2018-2021. In the last year, due to Corona, the temples were in locked down and there was no movement of vehicles in that area so that the petitioner was not having any business during the relevant period. Even for said period, when the petitioner has already paid the lease amount, the respondent ought to have extended the period of lease for the subsequent non-operative period but, without extending the period of lease, fresh tender has been called.

3. Mr.P.Srinivas, learned Standing Counsel for the respondent /

Municipality would submit that the petitioner can establish that he has not collected any toll charges for the relevant period and he is entitled for the waiver and refund of the amount for the non-operative period but, on the said ground alone he cannot challenge the impugned auction notice.

4. Treating the lockdown as a force majure, even the Hon'ble Madurai Bench of Madras High Court in W.P.(MD) No. 19596 of 2020 has dealt with a similar issue and held as follows:-

9. The question is whether notwithstanding the stipulation of absolute performance cast on the licensee, this C ourt would be justified in treating the “lock down” as a force majeure event which will relieve the licensee from performing his obligation to the corresponding extent.

10. M y answer is in the affirmative. Section 51 of the Indian C ontract Act, 1872 states that when a contract consists of reciprocal promise to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise. As per Section 54, performance cannot be claimed till the other has been performed. The local body must keep the bus stand and the shop open and in good repair. The licensee must pay the license fee without default. If the local body had directed the licensee to close down the shop, it cannot demand fee from the licensee for the period when the shop is shut down. Of course, the licensee must be free of any wrong doing. If the licensee is made to suffer for no fault of his by direction to close down the shop, then, the question of payment of fee will not arise.

11. There is a greater reason too. The petitioner has contracted not with a private party but with Nagercoil C orporation. It is a State instrumentality. Local bodies have been given constitutional status. In the case on hand, their actions have been governed by the directives issued by the C entral and State G overnments. When one party to the contract is the local body, then this C ourt would be justified in applying the principles of reasonableness and fairness.

12. The H on'ble Supreme C ourt in the decision reported in ( 2 0 0 4 ) 3 S C C 2 1 4 ( J a m s h e d H o r m u sji W a d i a vs B o a r d O f T r u stees, P o rt O f M u m b a i ) held that the State and its authorities including instrumentalities of States have to be just, fair and reasonable in all their activities including those in the field of contracts. Even while playing the role of a landlord or a tenant, the State and its authorities remain so and cannot be heard or seen causing displeasure or discomfort to Article 14 of the C onstitution of India. A State cannot be seen to be indulging in rack- renting, profiteering and indulging in whimsical or unreasonable evictions or bargains. The validity of their actions in the field of landlord-tenant relationship is available to be tested not under the rent control legislation but under