Bus Terminal at Vyttila is being run by the first respondent society. It invited tender for exclusive area to set up KIOSK. The purpose of KIOSK is travel and tourism facilitation centre. Petitioner offered `6,500/- per month which is liable to be increased 5% every year. This was accepted as highest offer. As per the tender conditions, petitioner has to pay an upfront amount of `2,70,000/-. Accordingly, petitioner paid the amount on executing an agreement. This agreement is for a period of three years from 04.09.2012. Thereafter, petitioner found that the intended purpose for which he has set up KIOSK cannot be worked out as there is no mobility in the Hub. Petitioner seems to have approached the authorities with Ext.R1(e) letter. Petitioner's request in Ext.R1(e) is to refund `2,70,000/- and also to reimburse him the amount expensed towards construction when the KIOSK is offered to third party. Petitioner also requested to adjust rent arrears from the upfront amount and from the security deposit. Petitioner, in fact, made security deposit of `39,000/-. Thereafter, by Ext.P7 the first respondent society accepted the petitioner's request to absolve from the payment of future arrears, after adjusting the arrears from the security deposit. However, it is mentioned in Ext.P7 that the petitioner's request for refund of upfront fee and construction cost cannot be entertained as it would amount to contraventions of the terms and conditions of the agreement. Petitioner filed this Writ Petition challenging Ext.P7. Petitioner has a case that he has made a request in Ext.P8 to permit him to utilize the KIOSK for other purposes. Petitioner's case is that Ext.P8 has not been considered by the authorities. In Ext.P8, petitioner highlighted reasons for utilizing the KIOSK for other purposes. Therefore, it is submitted that any action initiated to evict the petitioner without considering Ext.P8 is illegal.
2. Learned Standing Counsel has submitted that Ext.P8 was considered. It is stated that this was placed in the executive committee meeting and thereafter, a report was sent to the private secretary to the Honourable Chief Minister. It was placed in the 9th meeting on 18.10.2013 and committee decided not to sanction conducting of business in violation of the terms and conditions of the agreement.
3. Petitioner contradicts the statement made in the counter.
4. Question is whether petitioner is entitled for a consideration of Ext.P8. A contract entered between petitioner and the society run by the Government does not take out purview of the commercial transaction entered between the petitioner and the society. Petitioner's case is that state instrumentality must be actuated with fairness and transparency in the approach and there must be a reasonableness in any action taken by the state instrumentality. Therefore, unless and until reasonableness is actuated while taking a decision pursuant to Ext.P8, absence of arbitrariness cannot be ruled out.
5. In the realm of contract the parties are primarily bound by the terms and conditions of the contract. Therefore the first respondent society is not expected to act like other state function any in discharging administrative function. The duty of the respondent/society is only to act within the four corners of the agreement. They are not under any legal obligation to consider the same. Petitioner cannot expect from the respondent/society to act upon Ext.P8 representation. The only question is whether there is any violation of terms and conditions of agreement by the society. Petitioner has no case that society committed any breach of any terms and conditions.
6. Petitioner's case is that there is no mobility in the Mobility Hub. Mobility hub is intended for certain purposes and since there is no mobility in the hub, equity demands that petitioner should be permitted to utilize the KIOSK for some other purposes to protect the interest of the petitioner and the society. Petitioner has no case that at any point of time, the contract has been frustrated for any reason. Petitioner has no case that the contract is void or illegal. In any business or entrepreneurship there is an element of risk. This is inherent in the activity itself. Having accepted the contract, petitioner cannot upturn the terms of the contract to utilize the KIOSK for some other purposes. Therefore, fairness demands that parties must adhere to the terms and conditions of the contract rather than seeking a compliance to new demand by committing breach thereon.
7. In view of the above, I do not find any merit in the Writ Petition. Since in Ext.P7, it has been decided to absolve future rent arrears. Therefore if petitioner surrenders his building within two weeks, all future arrears as indicated in Ext.P7 shall be absolved. Petitioner shall be permitted to remove the KIOSK. However, if petitioner surrenders KIOSK within a period of two weeks from the date of receipt of a copy of this judgment and does not remove KIOSK, appropriate decision shall be taken by the society as to the value of the structure erected by the petitioner and petitioner shall be intimated about the same within two weeks after surrender.
The Writ Petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE.
Sbna/18/11/14