The vs Unknown on 11 March, 2022

[Cites 8, Cited by 0]

Andhra Pradesh High Court - Amravati

The vs Unknown on 11 March, 2022

Bench: U.Durga Prasad Rao

          HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                    WRIT PETITION No.22282 of 2020

ORDER:

The petitioner prays for mandamus questioning the action of the respondents in issuing tender notice No.1375/2020/CS/714, dated 12.11.2020 for the cashew nut yielding year 2021 including unit - X 1982 of Ramasingavaram for Hc. 128.47, Eluru Division for holding auction on 30.11.2020 for the same unit petitioner was the highest bidder for the year 2020 for Rs.20,30,000/- and paid amount but could not take the yield from the garden due to Covid-19 pandemic. Due to which the authorities promised to allot the garden for the said unit in the next yielding year 2021 without further payment and contrary to the same without returning the bid amount or without allotting the next yielding year to the petitioner proceeding for auction without considering the representation dated 13.10.2020 of the petitioner as illegal, arbitrary and consequentially to direct the respondents to allot the above garden for the yielding year 2021 without further payment and pass such other orders.

2. Petitioner's case is thus:

(a) Petitioner is resident of Thumbur Village, Sattupalli Mandal, Khammam District and he participated in the tender for the cashew nut yielding year 2020 for Unit-X 1982, Ramasingavaram for an extent of Hc.

128.47 in the auction held on 06.02.2020 and as per the schedule he paid Rs.5,10,000/- vide MR Nos. 175/13, dated 06.02.2020 towards 1/4th of the sale amount.

(b) The 4th respondent issued proceedings dated 14.04.2020 containing the payment schedule and for entering into an agreement. After making full payment and entering into agreement only the petitioner will be allowed to get usufruct from the cashew nut estates.

(c) Petitioner's further case is that as per the payment schedule, before executing agreement the 2nd installment of 25% should be paid and the balance of 50% should be paid either in cash or Demand Draft on or before 18.04.2020. However, due to Covid-19 pandemic and consequential lockdown the petitioner could not move out to make the payments as he is a resident of Sattupalli in Khammam District whereas the cashew nut garden is situated at West Godavari District. Hence he contacted the respondent office through phones but could not get any instructions. He sent representation through e-mail on 04.05.2020 explaining his difficulties that he was not able to move out to visit cashew nut garden or engage labour and thus requested to return his 1/4th sale amount. Then he received phone call from respondent office that the 1/4th amount paid by him cannot be returned but if he pays the entire bid amount and if he is unable to get the usufruct due to Covid-19 pandemic, his case will be considered for the next yielding year without further payment or his amount will be returned on the recommendation of the higher authorities. Accordingly, the petitioner paid the balance amount under different installments. He paid Rs.4,00,000/- through Andhra Bank; Rs.3,00,000/- through State Bank of India Branch on 06.05.2020; Rs.1,60,000/- through Andhra Bank St. Therisa College Branch on 06.05.2020 and Rs.40,000/- through google pay to the Vice-Chairman and Managing Director, APFDC UPI vide transaction ID 012712257602 3 from Challagolla Kesava Rao, (State Bank of India) and Rs.2,50,000/- on 07.05.2020 through State Bank of India and Rs.3,01,500/- through State Bank of India on 11.05.2020 including GST. Though the petitioner paid the entire amount as stated supra, however, the respondent authorities did not enter into any agreement with him. The petitioner submitted representation in October, 2020 to the 4th respondent to consider his name for the next yielding year without the necessity of depositing additional amount for Unit- X 1982, Ramasingavaram for an extent of Hc 128.47 for the yielding year 2021 and the same is pending for consideration.

(c) When the matter thus stood, the 3rd respondent issued publication for auction of the usufruct of the cashew nut for the yielding year 2021 including Unit-X 1982, Ramasingavaram to an extent of Hc. 128.47 vide tender notification reference No.1375/2020/CS/714, dated 12.11.2020. The date of auction was notified as 30.11.2020. The said action of the respondents is illegal as the petitioner would sustain heavy loss which is known to the respondents. The respondent authorities ought to have considered the name of the petitioner for Unit X 1982, Ramasingavaram to an extent of Hc. 128.47 for the auction year 2021 without seeking additional amount. However, they did not consider the same. Hence, the writ petition.

3. It should be noted that this Court, in I.A.No.1/2020, passed an interim order on 27.11.2020 directing that the auction which was scheduled to be held on 30.11.2020 for cashew nut usufruct for the year 2021 to the Unit-X, 1982, Ramasingavaram, for an extent of Hc. 128.47 cents situated in Eluru Division may go on, but the respondents shall not finalize the same till the 4 representation filed by the petitioner was disposed of and communicated to him.

4. The 4th respondent filed vacate stay petition in I.A.No.1/2021 and filed counter along with said petition.

5. The counter averments are thus:

(a) It is admitted that the petitioner was highest bidder for the sale of yielding year 2020 for the Unit No.X (1982 CP Ramasingavaram) for an extent of 128.47 hectares cashew plantation in Eluru division and bid was confirmed for Rs.20,30,000/- for the year 2020 season only which will end by 30.06.2020. If the purchaser fails to fulfill the conditions of the auction sale and become the defaulter, he has no choice to participate in future auctions.

(b) The petitioner paid Rs.5,10,000/- on the date of sale towards 1/4th sale amount; he deposited 5% GST of Rs.1,01,500/-; he paid balance sale amount of Rs.15,20,000/- on 12.05.2020. After paying the full sale amount, he sent a copy of FDR for Rs.2,30,000/- through whatsapp on 06.05.2020 and requested the 4th respondent office vide letter received on 12.05.2020 to allow him some more time for executing agreement with Divisional Manager and for submitting FDR copy to the office. Due to COVID lockdown the police were not allowing him to reach Eluru Division office as he belongs to Telangana State and seed collection may be allowed through his representatives. As such with good faith, keeping in view of the pandemic COVID situation, the then Divisional Manager agreed his request and allowed him for seed collection till 12.05.2020.

(c) The further case of the respondents is that they have been frequently requested the purchaser to execute agreement by handing over the original FDR copy to the Division Office. However, the petitioner was taking the same ground of COVID pandemic all the time. The petitioner collected the seed i.e., 5440 KGs which was still under the custody of incharge Plantation Manager, Eluru. The respondents have called the petitioner many times to attend the Division office and also sent the incharge Plantation Manager, Eluru to his residence to make agreement and submit FDR. However, he never responded and not turned to the office for making agreement and submitting FDR till date and also not requesting the office to transport the material. The seed is still available in the custody of the incharge Plantation Manager, Eluru. The enquiries of the respondents revealed that the FDR drawn jointly in favour of Regional Manager Rajahmundry and his own name Sri M.Srinivasa Rao was cancelled and drawn by himself. No representation was received from the petitioner regarding his request to retain the plantation in his name during 2021 season and FDR for Rs.2,30,000/- shown in whatsapp was also cancelled by himself and without any intimation to this office and thus misled the corporation authorities.

(d) It is further stated that one representation was received from the petitioner on 12.05.2020 to allow him some time to sign on the agreement and send FDR copy and in the meanwhile allow his representative to collect seed. So the Divisional Management/the 4th respondent allowed him to collect the seed with good faith due to existing Covid-19 pandemic situation.

The seed was already collected by him and did not lift the material till today. 6 Frequently the respondents contacted the petitioner to come and collect the seed by fulfilling all the terms and conditions and by handing over the FDR but the petitioner never responded and never requested for permission from their office to transport the seed.

(e) It is further contended that as per the petitioner he submitted representation to the Divisional Manager/ 4th respondent in October, 2020 to consider his case for next yielding year 2021 season and this Court granted interim order not to finalize the auction. However, it is submitted that the petitioner has not submitted any representation to the respondents. It is reiterated that the petitioner will have right over the cashew seed during 2020 season subject to sale terms and conditions dated 30.11.2019. If the purchaser failed to fulfill the terms and conditions he becomes defaulter and does not have any right to participate in the next year auction. As such the petitioner has no right to participate in the auction for 2021 crop as he has not fulfilled the terms and conditions such as not entered into agreement. The respondent never promised to the petitioner to accommodate him for the yielding year 2021 as alleged. Hence, the writ petition may be dismissed.

6. Heard Sri K. Ramesh Babu, learned counsel for the petitioner and learned Assistant Government for Forests representing respondents.

7. Both the learned counsel reiterated their pleadings in their respective arguments. Petitioner's contention is that the cashew nut collection contract is for the yielding year 2020 which will be ended by June, 2020 and as the petitioner being the highest bidder for Hc. 128.47, Ramasingavaram area, he paid the initial amount. However, due to the prevalence of international and 7 also national disaster of Covid-19 pandemic and consequent lockdown, he could not move out of his native place Thumbur Village, Sattupalli Mandal, Khammam District during the relevant period and therefore he requested the authorities to allow him to reap the yield during the 2021 yield year and authorities promised him to consider his case on depositing the entire amount and accordingly he paid the entire contractual amount of Rs.20,30,000/-. However, subsequently the respondent authorities did not consider his case and permit him to reap the cashew nut in 2021 yield year. On the other hand, they issued auction notification which is illegal and unjust. Learned counsel vehemently argued that due to continuous lockdown and ban on the movement of the public from their residential houses, the question of the petitioner sending his man and his collecting the cashew nuts of 5,440 Kgs and leaving the stock in the respondent's godown is preposterous and unbelievable. He argued that if really the petitioner sent his man, respondent authorities ought to have issued proceedings permitting the petitioner's agent to collect the cashew nut and ought to have sent a copy of the order to the petitioner. Since there is no such order, it is argued, the contention is unbelievable.

(a) Finally he argued that in view of Covid-19 pandemic, lockdown was imposed by the national and state level authorities and as per the provisions of the Disaster Management Act, 2005 (for short "the Act, 2005"), the people are bound to obey the orders lest they should be punished under Section 51 of the said Act. In those circumstances, though the petitioner paid the entire amount by online transactions, he could not approach the respondent authorities physically to enter into agreement. 8 Therefore, the respondent authorities cannot contend that since the petitioner did not execute the agreement in terms of auction notification, term cannot be extended to 2021 yielding year which is illegal and untenable. He argued that the Disaster Management Act, 2005 has overriding effect on all the statutes of contracts and therefore, the petitioner deserves to be considered for the next yielding year or for refund of amount paid by him.

8. Refuting the arguments of learned counsel for petitioner, Sri Ambati Satyanarayana, learned Standing Counsel for the respondents 2 to 4, argued that the petitioner was the highest bidder for cashew yield year 2020 only, which would end by 30.06.2020. He would submit that as per the terms of the notification, if the purchaser fails to fulfill any of the conditions of the auction sale, he will be debarred from participating in the future auctions. Learned Standing Counsel admitted that the petitioner paid initial 1/4th amount of Rs.5,10,000/- and he also deposited 5% GST and later, he has deposited the balance amount periodically and after paying the full sale amount, he sent a copy of FDR for Rs.2,30,000/- through whatsapp on 06.05.2020 towards 10% deposit and requested the 4th respondent vide letter dated 12.05.2020 to allow him some more time for execution of the agreement with Divisional Manager and for submitting original FDR to the office on the ground that due to COVID lockdown, the police were not allowing him to proceed to Eluru Division office from his native place Sathupalli. He further requested to permit seed collection through his representative. Believing his words in good faith and due to prevalence of COVID pandemic situation, the Divisional Manager accepted his request and allowed him to collect seed from 12.05.2020 onwards. Accordingly, the 9 representative of the petitioner collected seed of 5440 Kgs and kept in custody of Plantation Manager, Eluru. In the meanwhile, the 4th respondent was making periodical requests to the petitioner to come and execute the regular agreement and handover the original FDR copy to the Divisional Office, but there was no response from the petitioner and he did not turn to the office of 4th respondent. Learned Standing Counsel argued that the seed collected by the petitioner's contractor is still lying in the go-down of 4th respondent. Later, the petitioner has cancelled the FDR drawn in favour of the Regional Manager. Learned counsel vehemently argued that in spite of being aware of the terms and conditions, the petitioner grossly violated the same and did not execute any agreement and now trying to take advantage of the COVID situation by demanding the authorities to extend his term to collect cashew seed during the 2021 cashew season. Since the petitioner has not responded in time, the authorities were constrained to issue notification for 2021 season and petitioner suppressed the material facts and approached the Hon'ble Court and therefore the writ petition is liable to be dismissed.

9. The point for consideration is whether the petitioner has deliberately violated the terms and conditions stipulated in the tender notification dated 30.11.2019 and thereby disentitled himself to get any relief in this writ petition?

10. Point: Admittedly, the petitioner participated in the auction sale to collect the cashew usufruct during 2020 season pursuant to the notification No.13752019/CS981 dated 30.11.2019 issued by 3rd respondent and stood as highest bidder for an amount of Rs.20,30,000/- for Hc. 128.47 of cashew 10 plantation for Unit-X (1982 CP Ramasingavaram) of Eluru Division and the season ends by 30.06.2020. It is also an admitted fact that the petitioner paid the initial 1/4th sale amount of Rs.5,10,000/- on the date of sale and subsequently he deposited balance amount plus 5% GST by making periodical payments through online banking system. To this extent there is no demur.

(a) Then the bone of contention is that according to the petitioner, due to the prevalence of COVID-19 pandemic from March 2020 onwards, the petitioner could not move out of his native place Sathupalli in Telangana State to visit the office of 4th respondent to enter into an agreement and also the plantation area in Ramasingavaram to safeguard the crop by applying the penalties etc. and therefore, he informed the authorities that it would not be possible for him to collect the seed during 2020 season and his case may be considered for the next season i.e., 2021 cashew season. The authorities promised to consider his case on depositing the balance 75% of the sale amount relating to 2020 season and accordingly, he paid the balance amount by online banking system. However, the authorities betrayed him by issuing tender notification for the 2021 season without considering his request. Whereas, according to respondents, the petitioner no doubt paid the remaining 75% of the sale amount and also GST amount. He sent a letter dated 12.05.2020 stating that he obtained FDR through Indian Overseas Bank, Sathupalli in favour of Regional Manager towards 10% of the deposit amount and he was sending copy of the FDR through whatsapp and he would come to the 4th respondent's office and enter into regular agreement after lockdown was lifted and in the meanwhile, the respondent authorities 11 may permit his man of Ramasingavaram area to collect cashew seeds. Believing his version and due to prevalence of the COVID-19 pandemic, the 4th respondent permitted the agent of petitioner who collected 5440 KGs of cashew seeds and kept in the godown of 4th respondent and went away. Thereafter, in spite of the repeated requests of 4th respondent, neither the petitioner responded nor he turned to the office of 4th respondent to execute the agreement. Since no formal agreement was entered into by the petitioner, which amounts to violation of the tender conditions, his request for considering his case for 2021 season does not arise and therefore, as per the terms and conditions the sale amount deposited by him was duly forfeited and notification for 2021 yielding year was issued.

(b) I gave my anxious consideration to the above rival contentions. It is apposite at this juncture to peruse the important terms and conditions stipulated in the auction notification vide Ref.No.13752019/CS981 dated 30.11.2019 issued by 3rd respondent, a copy of which is enclosed to the material papers and filed along with counter. The Notification No.13752019 /CS981 dated 30.11.2019 was issued by the 3rd respondent declaring that the auction sale of right to collect and removal of cashew usufruct during 2020 season from cashew plantation of Rajamahendravaram region would be held on 12.12.2019.

i. Condition No.15 says that the highest bidder, at the conclusion of the sale of each unit shall either immediately or on the next working day deposit the difference between the initial deposit of EMD and 25% of bid amount offered by him.

ii. Condition No.18(b) says that the successful bidder shall within 50 days from the date of confirmation orders, deposit security deposit of 10% of the sale value in the form of DD/FDR and taxes if any in cash/DD and execute the agreement with the Divsional Manager of the Corporation /4th respondent on Non-Judicial Stamp Paper of proper value.

iii. Condition No.18(c) r/w Condition No.38 says that before executing agreement the 2nd installment of 25% of the sale amount plus other taxes if any should be paid and the balance 50% of the sale amount shall be paid either in cash or DD. Instead of cash or DD he can also submit bank guarantee for the balance 50% amount. However out of the said 50%, 25% which is the 3rd installment shall be paid within 80 days from the date of confirmation of auction sale and remaining 25% within 95 days from the date of confirmation order. For delayed payment interest of 18% p.a will be charged.

iv. Most importantly, the condition No.19(a) says that no extension of time for signing the agreement will be permitted in normal circumstances. However, the Regional Manager, APFDC Limited / 3rd respondent under special circumstances, may extend the time for good and sufficient reasons with extension fee at his discretion. The extension period shall however does not exceed 15 days.

v. Condition No.21 says that the successful tenderer/ bidder shall be allowed to start collection of cashew only after executing an agreement. The actual quantity will be weighed by the Director in the presence of the concerned officer of the Corporation every day.

vi. Condition No.22 says that the contractor shall be present in the contract area during the currency of the contract. In case he is unavailable, he may appoint an agent approved by the respective Divisional Manager, APFDC Ltd., provided the contractor furnishes a power of attorney on the stamped paper of required value. Most importantly collection in the contract area shall not be allowed in the absence of the contractor or his approved agent.

vii. Condition No.26 says that notwithstanding anything contained in the preceding conditions, in case where it is established to the satisfaction of Regional Manager, APFDC Limited / 3rd respondent that failure to work out the commitments under contract was due to the causes beyond the purchaser's control, the Regional Manager/3rd respondent may at his discretion grant extension of time subject to payment of extension fee as contained in Condition No.38. The same will not apply to payment of Kist amount.

viii. As per Condition No.33, the period of contract shall be upto 30.06.2020 and the contractor shall collect the entire produce on or before 30.06.2020 after making payment of due amount in full.

ix. Condition No.39 says that if the successful bidder fails to enter into agreement within stipulated time of 50 days plus extension period of 15 days [vide condition No.19(a)], the Divisional Manager shall cancel the sale/lease and forfeit the EMD, Security Deposit and all the installment amounts paid by that time.

x. Condition No.43 says that the Corporation will not be responsible for any loss or damage caused to the contractor due to any unforeseen calamites such as floods, gales, fires or failure of crop after the issue of confirmation orders.

11. In the light of the above conditions, the respective contentions of either side shall be scrutinized. It should be noted that as per Condition No.18 r/w 38, time stipulation has been made for payment of the bid amount in installment wise. As in the instant case admittedly the petitioner has deposited the entire bid amount and relevant taxes, and the respondents accepted his payment, time factor is not an issue. Respondents rejected the petitioner's request of either permitting him to collect seed during 2021 season or to refund his amount, on the main ground that he did not enter into formal agreement with the 4th respondent within time. Therefore it has now to be seen what are the relevant conditions governing the time stipulation for entering into agreement.

12. In this regard, Condition No.18(b) says that the successful bidder shall within 50 days from the date of confirmation orders, deposit security deposit of 10% of the sale value and taxes and execute an agreement with the Divsional Manager of the Corporation /4th respondent on Non-Judicial Stamp Paper. Then Condition No.19(a) says that no extension of time for signing the agreement will be permitted in normal circumstances. However, the Regional Manager, APFDC Limited / 3rd respondent under special circumstances, may extend the time not exceeding 15 days for good and sufficient reasons. Further, Condition No.39 says that in case successful 15 bidder fails to enter into agreement within stipulated time of 50 days plus extended time of 15 days the Divisional Manager/4th respondent shall cancel the sale/lease and forfeit the EMD, Security Deposit and all the installment amounts paid by that time.

(a) In the instant case, as per letter reference No.1908/CUS/02 RS Varam/2020, dated 14.04.2020 addressed by the 4th respondent to the petitioner, the auction sale for the crop year 2020 was held on 06.02.2020 and the petitioner was required to deposit 10% of the sale value towards security deposit and execute an agreement on or before 18.04.2020. The petitioner admittedly did not enter into agreement. In the normal circumstances as per the Condition No.39, the 4th respondent has the power to cancel the sale or lease. However, at this juncture it is germane to look into the cause shown by the petitioner for not entering into the agreement within the stipulated time.

(b) According to the petitioner he sent an e-mail dated 04.05.2020 to the address of 4th respondent i.e., [email protected], and [email protected] stating that due to prevalence of Covid-19 pandemic in a dangerous form, nation wide and state wide lockdown was declared and therefore he could not personally visit the cashew nut garden to apply pesticides and he was in a dilemma as to how to protect the cashew nuts seeds and collect them. He ultimately requested to refund the 1/4th amount deposited by him. It is his further case that immediately he received a phone call from the office of the 4th respondent that the amount paid by him cannot be returned and if he pays the bid amount and if he could not collect the usufruct due to Covid-19, his case would be considered for next 16 yielding year without further payment or his amount will be returned on the recommendation of the higher authorities. On such promise, he paid the balance 75% amount.

(c) It should be noted that respondents did not specifically deny the above facts in their counter. On the other hand, they admitted that the petitioner paid the entire sale amount in installments. Added to it the case of the respondents is that the petitioner addressed letter dated 12.05.2020 stating that he paid entire amount including GST and he obtained FDR drawn on Indian Overseas Bank, Sathupalli for Rs.2,30,000/- towards 10% of the security deposit amount and that he was sending a copy of the said FDR to the Junior Assistant through whatsapp and he would bring the original FDR and hundred rupees bond paper to the office of the 4th respondent and enter into agreement in due course and due to restrictions on movements imposed on account of Covid-19 pandemic, he could not move out of Telangana State and therefore the respondent authorities may permit his man to collect the cashew seeds and as and when lockdown was lifted he would come and execute the agreement and tender the FDR. According to respondents, believing the petitioner in good faith, they permitted the agent of the petitioner to collect seeds from 12.05.2020 onwards and thereby he collected 5440 Kgs and deposited in the office of the 4th respondent. This fact has been clearly mentioned in para-5 and 6 of their counter. It was not rebutted by the petitioner by filing reply affidavit. Therefore, this Court has to accept the said contention of the respondents.

13. Thus the cumulative effect of the letters dated 04.05.2020 and 12.05.2020 addressed by the petitioner to the 4th respondent is that in view of 17 prevalence of Covid-19 pandemic and consequential lockdown imposed by the Central and State Governments he could not visit the office of the 4th respondent to execute agreement within the stipulated time. Initially he requested to refund 1/4th amount deposited by him but on the advice of the 4th respondent he paid the entire amount and sent his agent for collection of cashew seeds as permitted by the 4th respondent and accordingly his agent collected 5440 Kgs of cashew seeds and deposited in the office of 4th respondent.

14. In the light of the above facts it is clear that during 2020 season which came to an end by 30.06.2020, the petitioner could not move out to physically attend cashew garden to apply manure, pesticides etc., and he also could not collect the cashew seeds to full extent except 5440 Kgs obviously due to Covid-19 pandemic. The point is, whether on that ground the petitioner can seek permission to collect seed in future cashew seasons or refund of the amount deposited by him and whether the respondents can reject his claim on the ground that he did not enter into formal agreement.

15. It is known fact that since March, 2020 the entire world was shuddered and fear stricken due to Covid-19 pandemic. In order to take effective measures to prevent spread of Covid-19 pandemic, Home Secretary, Ministry of Home Affairs, Government of India issued the following order on 24.03.2020:

"Whereas, the National Disaster Management Authority (NDMA), is satisfied that the country is threatened with the spread of COVID-19 epidemic, which has already been declared as a pandemic by the World Health Organization, and has considered it necessary to take effective measures to prevent its spread across the country and that there is a need for consistency in the application and implementation of various measures across the country while ensuring maintenance of essential services and supplies, including health infrastructure;

Whereas in exercise of the powers under section 6(2)(i) of the Disaster Management Act, 2005, the National Disaster Management Authority (NDMA), has issued an order no.1- 29/2020-PP (Pt.II) dated 24.03.2020 (Copy enclosed) directing the Ministries / Departments of Government of India, State/Union Territory Governments and State/ Union Territory Authorities to take effective measures so as to prevent the spread of COVID-19 in the country;

Whereas under directions of the aforesaid Order of NDMA, and in exercise of the powers, conferred under Section 10(2)(I) of the Disaster Management Act, the undersigned, in his capacity as Chairperson, National Executive Committee, hereby issues guidelines, as per the Annexure, to Ministries / Departments of Government of India, State/Union Territory Governments and State/ Union Territory Authorities with the directions for their strict implementation. This Order shall remain in force, in all parts of the country for a period of 21 days with effect from 25.03.2020"

16. Pursuant to the above order, various consolidated guidelines have been issued from time to time of which guideline No.6 relates to suspension of all transport services - air, rail, roadways with certain exceptions. Again the Ministry of Home Affairs issued another order on 17.05.2020 as per directions of the National Disaster Management Authority, that lockdown measures to contain the spread of Covid-19 will continue for a period upto 31.05.2020. In pursuance of the above orders, the Government of Andhra Pradesh issued G.O.Rt.No.262, Health, Medical & Family Welfare (B2) Department, dated 03.05.2020 and G.O.Rt.No.274, Health, Medical & 19 Family Welfare (B2) Department, dated 17.05.2020 extending the lockdown till 31.05.2020. Later the Government of Andhra Pradesh issued G.O.Rt.No.951, General Administration (Political A) Department, dated 05.06.2020 extending the lockdown till 30.06.2020 in the State of Andhra Pradesh. Therefore, it is clear that till the end of cashew season 2020 and even beyond that period, the lockdown was continued, due to which, as rightly argued, the petitioner could not move out to enter into the agreement with the 4th respondent. The above guidelines and lockdown orders were issued by the National Executive Committee exercising powers under section 10 of the Act, 2005. At this juncture, it is apposite to peruse Section- 72 of the Act, 2005 which reads thus:

"72. Act to have overriding effect.--The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. "

17. Therefore it is pellucidly clear that that the guidelines and consequent lockdown imposed under the Act, 2005 will prevail over the other enactments and instruments. In that view, the respondents' contention that the petitioner's request cannot be considered since he has not entered into formal agreement as he committed breach of auction notification cannot be countenanced. As already stated supra, the guidelines issued in exercise of powers under the provisions of the Act, 2005 will prevail over the auction conditions. It goes without saying that in the entire process, there was no wilful default on the part of the petitioner.

18. In Devashree Ispat Private Limited v. State of Telangana1, in similar circumstances, having regard to Section-72 of the Act, 2005, a learned Judge of High Court of Telangana held that the provisions of the said Act have overriding effect and thereby the contention of the respondent - TSSPDCL that the petitioners were bound to pay power consumption charges as per Twin Part Tariff System (TPTS) i.e., maximum demand charges and energy charges instead of pro-rata basis i.e., working and non- working period is unsustainable. It is held that Covid-19 pandemic is a force majeure and the provisions of the Act, 2005 are having overriding effect to the provisions of the Electricity Act, 2003 and GTCS terms and conditions of the agreement for supply of power entered into by the petitioners and respondents.

19. In the light of the above jurisprudence, in my considered view, the respondents cannot take shelter under Condition No.38 as well as 43. Since the petitioner has paid the entire bid amount and the respondents accepted the same, mere failure to enter into formal agreement that too due to force majeure the respondents cannot refuse petitioner's request. It is true that in Condition No.43 it is mentioned as if the corporation will not be responsible for any loss or damages caused to the contractor due to any unforeseen calamities such as floods, gales, fires or failure of crop after the issuance of confirmation orders. However, in my considered view Covid-19 pandemic is not of such a nature. It is wide spread disease of pandemic nature due to which the movement of public was restricted by lockdown. Hence, condition No.43 cannot be resorted to by the respondents. 1 2021(5) ALD 659 = MANU/TL/0402/2021 21

20. Coming to reliefs claimed by the petitioner, since cashew yielding season of 2021 is already over, petitioner's request has to be considered for the yielding year 2022 only. So far as the stock of 5440 Kgs available with the 4th respondent is concerned, if it is in usable condition, the respondents can sell the same and realize its value.

21. In the result this writ petition is allowed and respondent authorities are directed to permit the petitioner to collect the cashew seed crop in Unit-X 1982, Ramasingavaram for an extent of Hc. 128.47, Eluru Division for the yielding season 2022 without demanding any amount from the petitioner. The stock of 5440 Kgs of cashew seeds available with the 4th respondent can be sold and the amount can be appropriated to the Government exchequer if the cashew seeds are in usable condition. No costs.

As a sequel, interlocutory applications pending, if any, shall stand closed.

___________________________ U.DURGA PRASAD RAO, J Date: 11.03.2022 krk/mva 22 THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO WRIT PETITION No.22282 OF 2020 11th March, 2022 mva/krk

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