MADURAI: The Madurai Bench of Madras High Court relieved a trader from paying a license fee to the Nagercoil municipal corporation during the lockdown period by holding that the said period should be considered as a 'force majeure' event (unforeseeable circumstances that prevent someone from fulfilling a contract) and the license fee for the period should be waived.
Justice GR Swaminathan passed the order this week on a petition filed by one R Narayanan, who is the licensee of one of the shops leased out by the municipal corporation at Vadaseri Christopher Bus stand.
The judge observed that the force majeure clause is a clause in a contract specifying certain events, which would excuse the non-performance of a contractual obligation. Though the said clause was not specified in the tender notification through which Narayanan got a license for the shop, the judge held that the court would be justified in treating the lockdown as a force majeure event by referring to Sections 51 and 54 of the Indian Contract Act, 1872.
"Section 51 states that when a contract consists of a 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 judge cited.
By applying the said rule, the judge opined that if the local body itself had directed the licensee to shut down the shop, it cannot demand a fee from the licensee for the period during which the shop is closed.
'Blinkered vision'
The judge also noted the trader's grievance that, following a letter from the Commissioner of Municipal Administration (CMA) dated June 18, 2020, the State government waived license fee for the lockdown imposed during April and May. But the waiver was not extended to the subsequent months even though the shops were permitted to be opened only in September.
"A letter sent in the month of June 2020 will obviously cover only the preceding months of April and May. No one would have anticipated that the lockdown would continue for several more months," the judge pointed out.
"Though the Secretary to the government did not deem it necessary to go beyond the terms of the CMA's request, a constitutional court cannot have a blinkered vision," he remarked.
"Even while playing the role of a landlord or a tenant, the State and its authorities cannot be heard or seen causing displeasure or discomfort to Article 14 of the Constitution of India," he advised the government.
Since the reason for granting a waiver for the months of April and May would equally hold good for the entire 'total lockdown' period, the judge extended the relief for the petitioner till August 31, 2020. He added that the trader can approach the authorities for further relief.