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2020 DIGILAW 854 (GUJ)

VIJAYBHAI PRATAPBHAI VANZARA v. DEPUTY COLLECTOR

2020-10-13

A.Y.KOGJE

body2020
ORDER : 1. This petition under Article 226 of the Constitution of India is filed by the petitioner seeking relief inter alia to declare the action of the respondents in compelling the petitioner to comply with the contract as illegal, arbitrary and ultravirus the Constitution of India. It is also prayed to extend the period of contract on account of the pandemic of Covid-19. It is also prayed for direction to the respondents not to terminate the contract and also direct the respondents not to call upon the petitioner to make the payment of balance amount as per the contract. 2. The issue pertains to contract (Ijara) awarded to the petitioner for the purpose of parking issue by respondent No.4- Gram Panchayat in parking facility situated at block/survey No.13 at village Galteshwar which is the religious place visited by pilgrims. The said contract was awarded to the petitioner through public auction held on 08.07.2019, where the petitioner was the highest bidder at Rs.23 Lakhs against the upset price fixed at Rs.14 Lakhs. The contract of one year governed the term of payment periodically. 3. Learned advocate Mr. B.M.Mangukiya appearing for the petitioner submitted that the petitioner had by and large complied with the requirements of the contract insofar as making of payment periodically is concerned. The period being between 11.07.2019 to 10.07.2020 during which from 23.03.2020 onward Lockdown was declared due to Covid-19 Pandemic. The said Lockdown had lasted till 15.06.2020 after which unlock was declared. However, on account of Pandemic situation there were no visitors to the religious place at Galteshwar and therefore, there was no scope of petitioner to earn revenue. Despite this difficult position, the respondents have failed to take into consideration the unprecedented situation faced by the petitioner and have therefore, issued notice to the petitioner calling upon the petitioner to make payment within period of three months of amount of Rs.7 Lakhs in one stretch. On account of the difficulty faced, the petitioner is unable to make such payment and therefore, apprehends that the contract will be terminated and the petitioner will have to face the consequence without his fault. It is submitted that during monsoon of 2020, the reins fall continued for long time and heavy rain has lubed out some part of the temple as well. It is submitted that during monsoon of 2020, the reins fall continued for long time and heavy rain has lubed out some part of the temple as well. Therefore, even extension of time given to the present petitioner, the petitioner could not continue to get the business end has sustained losses even in extended period. It may be noted that even today after the declaration of the guidelines by the Central Government and consequently the State Government, the pubic places, more particularly of the religious places where gathering of the public is restricted. In fact, during the festival days the religious places are ordered to be closed so as to prevent large gathering of the public. In fact, during festival period of the Shmvanmas Vikrant Samvat, the police authorities have imposed restrictions and public were not permitted to stay longer even after offering their prayers. The public routes were also declared by the concerned police officer wherein the roads lending to the parking area was closed. The petitioner has placed the restriction Imposed by the police officer alongwith further affidavit filed on September 12, 2020 at page 80 and page 83. The Deputy Executive Engineer, Road & building, Dalor sub Division vide his communication dated August 31, 2020 directed that the road shall be closed for 14 days. 3.1 As per the terms of the contract, the petitioner is expected to work for full period of contract. It is his legitimate expectation. However, said legitimate expectation has been marred by force majeure. Nobody knew that there would be Pandemic Covid-19 which would prevent all normal activities and confine the Nation in lockdown. Therefore, no one is responsible for the situation Which has occurred on account of the Pandemic of Covid 19. The petitioner, therefore, would be entitled to the complete period of contract. The period of 76 days is extended by the respondent Panchayat which would not be sufficient in view of the fact that during the period of those 76 days also there was no normal flow of the traffic. Even today, continuous restrictions are being imposed. The petitioner is expected that the loss of business may be supplemented if the petitioner is permitted to continue with this contract till the end of month of Kartik Vikram Samvat. Even today, continuous restrictions are being imposed. The petitioner is expected that the loss of business may be supplemented if the petitioner is permitted to continue with this contract till the end of month of Kartik Vikram Samvat. In fact, the petitioner may be given further extension of 10 weeks more, so that the petitioner can meet with his financial obligations. The petitioner is still required to make the payment of about Rs.3.50 lakhs Therefore, on account of the unforeseen reasons; the business of the petitioner has sustained heavy losses on account of the Lockdown, though his legitimate expectation to carry on business is in normal circumstance during the contractual period. However, same has been prejudicially affected by virtue of the Lockdown and therefore, the further period may be required to be given to the petitioner, so that the petitioner can meet with his financial obligations. 4. As against this, learned advocate Mr.H.S.Munshaw appearing for respondent No.4-Sarnal Gram Panchayat submits that the petitioner has committed breach of condition of contract as per the agreed terms of the contract. The petitioner was required to complete the full payment of Rs.23 Lakhs on or before 10.01.2020 and therefore, submission of the petitioner regarding the declaration of Lockdown is of no consequences. It is submitted that the respondent No.4 had followed due process in inviting participants through the public auction by public advertisement and the auction was held on 08.07.2019, wherein 15 persons participated and made their offer, where the offer of the petitioner at Rs.23 Lakhs being highest was selected. The contract came to be executed between the Gram Panchayat through its Sarpanch and the petitioner on 11.07.2019. As per contract, 50% of the amount was to be deposited within two days of the signing of contract and remaining 50% was to be deposited in two equal installments at the end of three months and six months of contract respectively. The petitioner deposited Rs.11,50,000/- as per the terms and thereafter, the petitioner has committed breach and had not deposited the amount of Rs.5,75,000/- after period of three months and another Rs.5,75,500,/- after period of six months. The petitioner deposited only an amount of Rs.50,000/- on 20.12.2019 and an amount of Rs.4 Lakhs on 21.12.2019 and therefore, shortfall of Rs.1,25,000/- in the first quarter and also the final installment of Rs.5,75,000/- for the second quarter. The amount of Rs.7 Lakhs was therefore, outstanding. The petitioner deposited only an amount of Rs.50,000/- on 20.12.2019 and an amount of Rs.4 Lakhs on 21.12.2019 and therefore, shortfall of Rs.1,25,000/- in the first quarter and also the final installment of Rs.5,75,000/- for the second quarter. The amount of Rs.7 Lakhs was therefore, outstanding. On account of the breach, the respondent No.4 had issued notice on 19.06.2020, 22.06.2020 and 06.07.2020 calling upon the petitioner to make the payment. The petitioner had addressed a legal notice informing about the filing of petition and also pointing out his difficulties. Considering the same, the Deputy Collector, Thasara had extended the period of lease of parking plot for a period of 76 days from 10.07.2020 to 26.09.2020 and it was also conveyed to the petitioner that the balance amount of Rs.7 Lakhs to be deposited by the petitioner in two installments, Rs.3,50,000/- within two days and balance amount of Rs.3,50,000/- within period of one month. Therefore, the respondents have taken reasonable view considering the pandemic situation and have also granted extension of period of parking lease and extended the period to make payment. The petitioner has failed to comply with such extended period also. Moreover, the petitioner has also not complied with the time line fixed by this Court in its interim order dated 17.07.2020 and therefore, the case of the petitioner deserves to be dismissed. 5. In rejoinder, learned advocate for the petitioner submits that the petitioner had made full attempt to make the good payment during the extended period, but on account of the continuing difficulties that are faced by the petitioner due to Covid-19 situation, it was practically impossible for the petitioner to make the payment as per the direction of the Court or as per the scheduled fixed during the extended period. 6. The Court has heard learned advocates for the parties and perused the documents placed on record. The Galteshwar Vikas Committee headed by Deputy Collector, Kheda though order dated 25.04.2016. The parking plot, shops etc. are to be allotted by way of tendering process and the committee is empowered for such procedure and appropriate action. Accordingly, parking plot is leased for a specified period through public auction after getting upset price fixed from the competent authority. That, an upset price of Rs.14,00,000/- was fixed by Deputy Collector, Thasara District Kheda and an advertisement was published in Newspaper for publication auction to be held on 08.07.2019. Accordingly, parking plot is leased for a specified period through public auction after getting upset price fixed from the competent authority. That, an upset price of Rs.14,00,000/- was fixed by Deputy Collector, Thasara District Kheda and an advertisement was published in Newspaper for publication auction to be held on 08.07.2019. A public auction was held on 08.07.2019 and the Taluka Development Officer, Galteshwar Taluka Panchayat, Sapranch as well as Talati-Cum-Mantri of the Gram Panchayat were present. That, there were in all 15 participants and offer of present petitioner at Rs.23,00,000/- was accepted. 6.1 The contract was executed between the petitioner and Sarnal Gram Panchayat through its Sarpanch on 11.07.2019. The conditions are agreed upon by the petitioner and the first one thereof is pertaining to the payment of 50% of Rs.23,00,000/- within two days of signing the contract. It also provides that remaining 50% i.e. Rs.11,50,000/- is to be deposited through two equal installments at the end of three months and six months of the contract. In other words, the petitioner is suppose to deposit Rs.11,50,000/- through two equal installments at the end of 1st quarter and 2nd quarter respectively from the date of signing of the contract. The petitioner deposited Rs.11,50,000/- immediately as per the terms and conditions of the contract. The petitioner was supposed to deposit Rs.5,75,000/- on or before 10.10.2019 while the remaining Rs.5,75,000/- on or before 10.01.2020. It is pertinent to note that however, the petitioner has committed the breach of the said condition and did not deposit the requisite amount of Rs.5,75,000/- on or before 10.10.2019. After number of requests, an amount of Rs.50,000/- was deposited on 20.12.2019 and an amount of Rs.4,00,000/- on 21.12.2019. In other words, there was a shortfall of Rs.1,25,000/- so far as first installment of Rs.5,75,000/- is concerned. The petitioner has committed further breach of contractual obligation by way of not depositing of Rs.1,25,000/- towards first installment and also the second and final installment of Rs.5,75,000/- on or before 10.01.2020. 6.2 The petitioner who is resident of village Galteshwar and perhaps and employee of Government of India (a member of Border Security Force) and at present posted at Gandhinagar, addressed an application dated 22.03.2020 stating therein that due to Pandemic of Corona virus, he was not in a position to pay the remaining amount and the time limit may be extended. The request of the petitioner is accepted by the Deputy Collector, Thasara i.e. a Chairman of the Committee by way of extending the time limit of leased parking plot by 76 days provided the outstanding amount is paid within two days. The committee headed by Deputy Collector, Thasara again met and passed resolution on 15.07.2020 that the petitioner should deposit Rs.3,50,000/- within two days and remaining Rs.3,50,000/- within one month. 6.3 It is pertinent to note that there was no Pandemic due to Corona Virus or any other natural calamities till 10.01.2020 whereby the petitioner was supposed to make the payment of 1st as well as 2nd installments amounting to in all Rs.11,50,000/-. The nationwide Lockdown was declared by the Government of India as well as Government of Gujarat w.e.f. 25.03.2020. In other words, the petitioner is trying to take undue advantage of the subsequent event of Pandemic due to Corona virus by way of non-complying with the terms and conditions of the contract regarding payment of first and second installments by 10.10.2019 and 10.01.2020. 6.4 That, even in interim orders of this Court dated 17.07.2020 directing the petitioner to pay Rs.1,00,000/- within two days from the date of order i.e. 17.07.2020 and remaining amount of Rs.2,50,000/- within a period of two weeks thereafter are not complied with. The petitioner has deposited an amount of Rs.1,00,000/- on 19.07.2020. It is pertinent to note that against Rs.2,50,000/- ordered to be deposited by 3rd August, 2020 i.e. within two weeks from the date of deposit of Rs.1,00,000/- the petitioner has deposited only an amount of Rs.1,00,000/- directly in the bank account and accordingly Rs.1,50,000/- has remained outstanding in spite of a specific direction of this Court. 7. In view of the aforesaid facts, the petitioner though was in breach of contract, lenient view is taken by respondents as well, but was not availed by the petitioner not only that the interim directions protecting the contract on condition of payment under the order of this Court have also not been complied with by the petitioner and hence, the petition deserves to be dismissed and therefore, the same is hereby dismissed.