Smt. Geeta Jeena v. Government of NCT of Delhi & Ors

judgment are as under: "9. The question is whether notwithstanding the stipulation of absolute performance cast on the licensee, this Court 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.

¶10My answer is in the affirmative. Section 51 of the Indian Contract 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 open and in good repair. The licensee must be permitted to keep the licensed shop open. 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 remained closed. 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. This is clearly an implied term in the contract.

¶11There is a greater reason too. The petitioner has contracted not with a private party but with Nagercoil Corporation. 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 Central and State Governments. When one party to the contract is the local body, then this Court would be justified in applying the principles of reasonableness and fairness."

¶69It was further noticed, during the course of these proceedings, that the new tenders floated post lockdown by the DTIDC have, in fact, not met with very high success rates. The present allottees had all agreed to the license fee which was prior to the outbreak of the pandemic and thus, the said amounts are higher in comparison to the amounts that may be fetched in the tenders which have been floated after the outbreak of the pandemic.

¶70There are various other reasons including the farmers' agitation etc. which have also led to lower traffic and footfall in the bus terminals. Accordingly, the effect of the pandemic continues to be felt in various dimensions of commercial activity. In this view of the matter, this Court is of the opinion that the increase in the license fee, which would be nominal, should be only for a period of six months and not for the entire extension period. The licenses would be liable to be extended for the entire period of lockdown i.e., a period of nine months.

¶71Accordingly, this Court is of the view that as regards those allottees who have already enjoyed an extension of the license period which is beyond the period of the lockdown period, no further extension would be liable to the granted. However, as regards the other allottees, who have not

enjoyed the full period of the license, the extension can be granted proportionately in view of the period of the lockdown.

¶72Therefore, in light of the Corporation's agreement to grant waiver of license fee for the entire period of the first lockdown and for the period of six weeks of the second lockdown, while taking the said stand on record, the following directions are issued:

(i) For the entire period of lockdown, of nine months there shall be a complete waiver of the license fee, as agreed by DTIDC.

(ii) In respect of the allottees who have suffered both the lockdowns, the waiver shall be complete.

(iii) In respect of those allottees who came into the possession of the shops post November 2020, the waiver of the license fee would be only for two months i.e., May, 2021 and June 2021.

(iv) Extension of license agreements: a. In respect of those who have enjoyed extensions beyond nine months, the further extension is granted only till 31st December 2021 in order to enable them to wind down their businesses and take out their goods and belongings. However, for the said months, complete license fees as per the agreement shall be paid. b. In respect of others, extension of license agreements is granted for a period of nine months to those who suffered both lockdowns subject to payment of increased license fees at the nominal rate of 10% for a period of six months.

c. In respect of allottees who suffered only the second lockdown the extension would be for a period of six weeks subject to payment of license fees as per the agreement.

¶73Therefore, in respect of each of the allottees, the following would be the waiver and the extension and the license fee payable: Category I: 06 shops Extended by the court

S. No. Name Shop No. Term W.P. (C) No. Extended Period Extension Granted License Fee Payable

¶1Sh. Surender Pawar Bus Bay No. 109, Anand Vihar

06.01.2020 to

05.07.2020 3742/2020 Months

Vacate by 31st December 2021 As per license agreement

¶2Ms. Geeta Jeena Shop No. 62-A, Kashmere Gate

06.12.2017 to

05.12.2020 3781/2020 Months

Vacate by 31st December 2021 As per license agreement

¶3Ms. Geeta Jeena Space-B, Kashmere Gate

30.07.2018 to

29.07.2021 3781/2020 Months

No license fees payable for nine months complete lockdown period. License extended by six months. For months extended period 10% increased license fees payable.

¶4Sh. Amit Chawla Shop no. 52, Kashmere Gate, Delhi

10.08.2018 to

09.08.2021 3803/2020 Sunil Kumar Months

No license fees payable for nine months complete lockdown. License extended by seven months. For months extended period 10% increased license fees payable

¶5Ms. Munni Devi Office Space, Kashmere Gate

19.09.2018 to

18.09.2021 3803/2020 Sunil Kumar 01 Month

No license fees payable for nine months complete lockdown. License extended by eight months. For months extended period 10% increased license fees payable

¶6M/s Atlantic Enterprises Shop No. 51, Kashmiri Gate

19.09.2018 to

18.09.2021 3803/2020 Sunil Kumar Month

No license fees payable for nine months complete lockdown. License extended by eight months. For months extended period 10% increased license fees payable

Note: In respect of allottees 3-6 above, except as contained in the table, license fees would be payable as per the license agreement for all the remaining months. Category II: 10 shops operated from 04.11.2020 in pursuance of order dated 24.08.2020

S. No. Name Shop No. W.P. (C) No. Tenure Extension Granted Waiver Of License Fee/License Fee Payable

¶1Ms. Afsha Shop No. 43, Kashmere Gate 4302/2020

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶2Sh. Gurpreet Singh Shop No. 6, Kashmere Gate 6275/2021

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June

2021. License fee payable as per agreement.

¶3Sh. Amit Chawla Shop No. 56, Kashmere Gate 5570/2021

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶4Sh. Ramesh Kumar Shop No. 15, Kashmere Gate 5570/2021

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶5Sh. Ashok Kumar Shop No. 57, Kashmere Gate 5570/2021

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶6Ms. Geeta Jeena Shop No. 9, Sarai Kale Khan 5570/2021

04.11.2020 to

03.11.2021 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶7Ms. Kajal Shop No. 25A, Kashmere Gate 10519/2020

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶8M/s Moon Beverages Ltd. Shop No. 48, Kashmere Gate 10519/2020

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶9M/s Moon Beverages Ltd. Shop No. 49, Kashmere Gate 10519/2020

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

¶10M/s Moon Beverages Ltd. Shop No. 54, Kashmere Gate 5570/2021

04.11.2020 to

03.11.2023 Six weeks Waiver for months of May, 2021 & June 2021. License fee payable as per agreement.

Category III: 19 Shops Running S. No. Name Shop No. W.P. (C) No. Tenure Extension Granted Waiver of License Fee/License Fee Payable

¶1Ms. Afsha Shop No.45, Kashmere Gate 4302/2020

21.09.2019 to

20.09.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶2Ms. Geeta Jeena Shop No.40, Kashmere Gate 3781/2020

10.01.2019 to

09.01.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶3Ms. Bharti Devi Shop No.59, Kashmere Gate 3803/2020

06.01.2020 to

05.01.2023 Extension of nine months Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶4Sh. Guddu Shop No.29, Kashmere Gate 3803/2020

12.03.2019 to

11.03.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶5Sh. Deepak Pal Shop No.51, Kashmere Gate 3803/2020

09.10.2019 to 8.10.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶6Ms. Sunita Shop No.13, Kashmere Gate 3803/2020

21.09.2021 to

20.09.2022 No Extension No Waiver

¶7M/s Manju Gaur & Associate Shop No.29-A, Kashmere Gate 3803/2020

21.09.2019 to

20.09.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶8Sh. Ashok Arora 2nd Cluster of shops, Kashmer Gate 3803/2020

30.12.2019 to

29.12.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶9Ms. Vandana Nagpal Shop No.3, Kashmere Gate 3803/2020

16.01.2020 to

15.01.2023 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶10Ms. Vandana Nagpal Shop No.7, Kashmere Gate 3803/2020

23.12.2019 to

22.12.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶11Sh. Manohar Open Restaurant 3803/2020

16.09.2019 to Extension of nine Waiver granted for full lock

Lal Sharma Sarai Kale Khan

15.09.2022 months. down period. Enhanced license fees of 10% for six months for the extended period.

¶12Sh. Manoj Kumar Shukla Shop No.72, Kashmere Gate 8951/2020

24.12.2019 to

23.12.2022 Extension of nine months. Waiver granted for full lock down period. Enhanced license fees of 10% for six months for the extended period.

¶13Sh. Ram Nath Shop No.66, Kashmere Gate 5570/2021

05.03.2021 to

04.03.2024 Extension of six weeks Full Waiver for the months of May-June 2021.

¶14Sh. Ram Nath Shop No.3, Sarai Kale Khan 5570/2021

15.02.2021 to

14.02.2022 Extension of six weeks Full Waiver for the months of May-June 2021.

¶15Sh. Ramesh Kumar Shop No.C-3 Bus Bay No.96, Anand Vihar 5570/2021

15.02.2021 to

14.02.2022 Extension of six weeks Full Waiver for the months of May-June 2021.

¶16Sh. Janmejay Kumar Trolley at Platform-C, Bus Bay No.78, Anand Vihar 5570/2021

20.02.2021 to

19.02.2022 Extension of six weeks Full Waiver for the months of May-June 2021.

¶17Sh. Jai Prasad Mishra Shop in front of old Deluxe Toilet, Anand Vihar 5570/2021

20.02.2021 to

19.02.2022 Extension of six weeks Full Waiver for the months of May-June 2021.

¶18Sh. Nandan Singh Kiosk at Platform-C, Bus Bay No.76, Anand Vihar 5570/2021

20.02.2021 to

19.02.2022 Extension of six weeks Full Waiver for the months of May-June 2021.

¶19Ms. Deepa Devi Kiosk Near Bus Bay No.121, Platform-D, Anand Vihar 5570/2021

23.02.2021 to

22.02.2022 Extension of six weeks Full Waiver for the months of May-June 2021.

¶74Insofar as the persons who want to surrender their shops are concerned, the terms of the license agreement would be applicable in respect of such allottees, prior to the expiry of the license period. However, if they wish to take benefit of the above directions, they would be permitted to do so.

¶75Mr. Narayan, ld. counsel has submitted that even for the months where complete waiver has been granted by the DTIDC, owing to the applicability of GST law and the payments to be made thereunder, the Corporation had deposited GST with an expectation that the licensees would also pay the license fee. However, since the waiver has now been granted for the lockdown period by the Corporation, the DTIDC may apply for the refund of the GST with the concerned authority, which shall be processed expeditiously.

¶76The present petitions, along with all pending applications, are disposed of in the above terms.

PRATHIBA M. SINGH JUDGE OCTOBER 27, 2021/Rahul/MR/AD/T (Corrected & released on 30th October, 2021)

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 27th October, 2021 + W.P.(C) 3733/2020 & CM APPL. 13364/2020 SMT. GEETA JEENA ..... Petitioner Through: Ms. Seema Bengani, Advocate. versus GOVERNMENT OF NCT OF DELHI & ORS ..... Respondents Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 10519/2020 & CM APPLs. 33252/2020 & 16588/2021 MS KAJAL & ORS. ..... Petitioners Through: Mr. Himanshu Pathak, Ms. Priya Mishra and Mr. Prashant Rawat, Advocates versus GOVERNMENT OF NCT OF DELHI & ANR. ..... Respondents Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 3742/2020 & CM APPLs. 13416/2020 & 33596/2020 SURENDER PAWAR ..... Petitioner Through: Mr. Anuj Kapoor, Advocate. versus THE COMMISSIONER OF TRANSPORT CUM CHAIRMAN DELHI TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION ..... Respondent Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 3779/2020 & CM APPLs. 13520/2020 & 33577/2020 UMESH KUMAR & ORS. ..... Petitioners Through: Ms. Seema Bengani, Advocate. versus GOVERNMENT OF NCT OF DELHI THROUGH: ITS CHIEF SECRETARY & ORS. ..... Respondents Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 3781/2020 & CM APPLs. 13527/2020, 33184/2020 & 17467/2021 GEETA JEENA ..... Petitioner Through: Ms. Seema Bengani, Advocate. versus GOVT OF NCT OF DELHI, & ORS. ..... Respondents Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 3803/2020 & CM APPLs. 13633/2020, 16611/2021 & 28245/2021 SUNIL KUMAR & ORS. ..... Petitioners Through: Mr. Ajay Jain, Ms. Tannu and Ms. Mitika, Advocates. versus DELHI TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. (AN ENTERPRISES OF GOVT. OF NCT OF DELHI) ..... Respondent Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 4302/2020 & CM APPL. 15477/2020 AFSHANA & ORS. ..... Petitioners Through: Mr. Mehmood Pracha, Advocate. versus GOVERNMENT OF NCT OF DELHI & ANR. ..... Respondents Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 8951/2020 & CM APPL. 16523/2021 MANOJ KUMAR SHUKLA ..... Petitioner Through: Mr. Himanshu Pathak, Ms. Priya Mishra and Mr. Prashant Rawat, Advocates versus GOVERMENT OF NCT OF DELHI & ANR. ..... Respondents Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. WITH + W.P.(C) 5570/2021 & CM APPL. 17269/2021 AMIT CHAWLA & ORS. ..... Petitioners Through: Mr. Ajay Jain, Ms. Tannu and Ms. Mitika, Advocates. versus DELHI TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED ..... Respondent Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. AND + W.P.(C) 6275/2021 & CM APPLs. 19824-25/2021 GURMEET SINGH ..... Petitioner Through: Mr. Ajay Jain, Ms. Tannu and Ms. Mitika, Advocates. versus DELHI TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. ..... Respondent Through: Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Advocates. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.(Oral) 1. This hearing has been done through hybrid mode. I) Background of the Case: 2. The COVID-19 pandemic (hereinafter "the pandemic") has had a cascading effect not merely on human life but also on various contractual arrangements. The arrangements that are the subject matter of the present petitions relate to shops at various bus terminals in Delhi. 3. In the present cases, the Petitioners are all allottees of various shops at the Maharana Pratap Interstate Bus Terminal (hereinafter as 'ISBT') at Kashmere Gate, Vivekanand ISBT at Anand Vihar, and Vir Hakikat Rai ISBT at Sarai Kale Khan. The Petitioners had participated in a bidding process and had after completing the requisite formalities, deposited the advance monthly license fee equivalent for the period of six months, along with security deposits. Some of the Petitioners took possession of their respective shops on differe