G.R. Swaminathan ORDER
G.R. Swaminathan, J.
1. Nagercoil Municipal Corporation constructed a number of shops within the premises of Vadaseri Christopher Bus Stand. Licenses to occupy them were brought for public tender cum auction sale on 16.10.2019. The petitioner herein was the successful bidder for Shop No. 12 A (Phase I). Accepting his offer to pay a sum of Rs. 1,15,000/- towards monthly fee, the corporation issued license in his favour vide proceedings dated 31.10.2019. The license was for a period of three years commencing from 01.11.2019. The petitioner paid a sum of Rs. 13,80,000/- towards refundable deposit and also a sum of Rs. 10.00 lakhs towards security deposit. In other words, the Corporation had collected one year license fee from the petitioner in advance.
2. Following the outbreak of Covid-19, the National Disaster Management Authority exercising its powers under Section 6(2) of the Disaster Management Act, 2005 issued order dated 24.03.2020 directing all the authorities to take effective measures to prevent the spread of the pandemic in the country. Pursuant thereto, the State Government of Tamil Nadu issued G.O. (Ms) No. 152, Health and Family Welfare (P1) Department, dated 23.03.2020 imposing restrictions. As a result, Vadaseri Bus Stand and all the shops located within its premises came to be closed. The petitioner was prevented from accessing the shop. The business could not run. Such a complete lock down was in force from 24.03.2020 to 06.09.2020. Thereafter, there was partial lifting and relaxation of the restrictions.
3. The petitioner has suffered considerable financial loss. He has made up his mind not to seek renewal of the license even though there is a clause providing for it. Since the deposits made by the petitioner are with the local body, it is about to adjust the same against the license fee arrears. The demand of the petitioner is that the local body should grant total waiver of payment of license fee for the period from 24.03.2020 to 06.09.2020 and partial waiver for the subsequent period. In this regard, the petitioner has submitted a representation.
4. In the writ petition, the Government as well as the local body have been arrayed as respondents. The stand of the respondents is that the contractual obligation to pay the monthly license fee is absolute and that it is not excused by any supervening event. However, considering the hardship experienced by the licensees, the Government had issued G.O. (D) No. 298, Municipal Administration and Water Supply (MA. IV) Department, dated 02.09.2020 ordering to waive payment of lease/rental amount for the period from 01.04.2020 to 31.05.2020. The petitioner has not challenged the said G.O. Therefore, this Court can grant relief to the petitioner only in terms of the said G.O. and cannot travel beyond.
5. I carefully considered the rival contentions and went through the materials on record. The relationship between the parties is contractual in nature. The rights of the parties will normally have to be determined in terms of the contract. But when the performance of a contract is affected by post-contract events, the situation will have to be resolved either by invoking the doctrine of frustration or the principle of force majeure. "Frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do" (Lord Radcliffe's classic formulation in Davis Contractors Ltd. V. Fareham Urban District Council (