High Court Division :
(Special Original Jurisdiction)
Gobinda Chandra
Tagore J
Abu Taher Md Saifur
Rahman J
Judgment
July 31st, 2016
Modhumoti Power Ltd ….
………………….. Petitioner
vs
Government of Bangladesh, represented by the Secretary, Ministry of Power, Energy & Mineral Resources, Bangladesh
and others………………
…………… Respondents*
Constitution of Bangladesh, 1972
Article 102(2)
Legitimate Expectation-Any decision taken subsequently by the Government or any other authority is effective prospectively only, but not retrospectively. Since the respondents time and again gave consent to supplying gas to the petitioner’s power plant and on being assured by such consent and other conducts of the respondents, the petitioner has already invested huge amount of money and set up the power plant as well as has done everything for operating the plant, now the Government or any other respondents cannot resile from their earlier position while, there is no fault with the petitioner. The petitioner can legitimately expect that it would get the gas connection. It is needless to mention that if any gas is not available at all, nobody can supply it. But if gas is available the respondents are bound by their consents and decision to supply it to the petitioner’s power plant. …………(16 & 17)
Gazi Mushtaque Ahmed, Advocate-For the Petitioner.
Dr. Md Bashir Ullah, Advocate-For the Respondent No.3.
Judgment
Gobinda Chandra Tagore J : On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, the Rule Nisi was issued calling upon respondents to show cause as to why the respondents should not be directed to supply the gas to the petitioner’s “20 Megawatt Power Station” and/or why such other or further order or orders as to this Court may seem fit and proper, should not be passed.
2. Shortly stated the relevant facts necessary for disposal of the Rule Nisi, in brief, are as follows:
3. The petitioner Modhumoti Power Ltd. is a company incorporated under the Companies Act, 1994 with the objects, amongst other, to perform the activities of generating electricity, transmit, distribute and supply electricity directly or through other facilities or utility providers and to establish, operate and maintain facilities for such transmission, distribution and supply and utilization of electricity in all aspects within Bangladesh as well as setting up power generating plant of any capacity and produce electricity/power and to carry out the business of supplying electricity, light and power both in private and public sectors, industries and to the domestic users. The company also obtained Trade License, Tax Identification Number (TIN) and Import License. The petitioner in this Writ Petition is being represented by its Managing Director, authorized pursuant to Article 56 of the Article of Association of the company, M/s. Modhumoti Power Ltd. for the amendment of the earlier approved foreign loan of US$ 30 million from TJ Harmoni Worldwide SDN BHD (TJHE), Lot 4273 Jalan Sungei Merab, 43650 Bandar Baru Bangi, Solangor Darul Ehsan, Malaysia. The copies of the certificate of license and foreign loan have been annexed as annexure A and A-1 to the Writ Petition. In 1996 the Government of Bangladesh adopted the Private Sector Power Generation Policy (PSPGP) for promoting private sector participation in generation of electricity with a view to promote industrial and economic growth. Maintaining the augmenting optimum generation capacity is a priority for the Government of Bangladesh in order to meet the goat the Government of Bangladesh has adopted a combination of measures; large generation capacity auditions through the public-sector entities and Independent Power Producers (IPPs); tendering out small power plants on fast track basis and encouraging procurement of surplus power from commercial power plant as Independent Power Producer Plant (CIPP) and Small Power Plants (SPPs). With this end the Government of Bangladesh formulated the Policy Guidelines for Enhancement of Private Participation in the Power Sector, 2008 through which the Government of Bangladesh allows the private sector to set up Commercial Power Plants to supply electricity to Large Consumers on mutually negotiated tariffs and to supply electricity to the distribution licensees at the tariffs determined by the Bangladesh Energy Regulatory Commission (BERC). In reliance upon the Government’s assurance to promote and encourage private sector investment for Commercial Power Plant, the petitioner decided to set up a Commercial Power Plant in Tangail. As a pre-condition of license application, the petitioner applied for necessary approval from Titas and accordingly, Titas accorded its primary approval vide Memo No. IwmwW/wewmGm/131 dated 27-1-2010 for supply of gas to the proposed 20 Megawatt Electricity Power Plant (Modhumoti Power Ltd). The petitioner also obtained a no-objection certificate from the Chairman, No.4 Korotia Union Parishad depicting the fact that the inhabitants of Korotia Union Parishad has no objection if the petitioner set up the proposed gas based commercial power plant. The petitioner also applied for the Environment Clearance as required under Rule 10(b) of the Policy, 2008 and accordingly, obtained a Geographical/ Environmental Clearance Certificate vide Memo No. KivBDwc/21/2010 dated 15-3-2010 for establishing the proposed 20 Megawatt Power Plant (Modhumoti Power Ltd.) at Mouza-Khudirampur, Korotia, Bypass, Tangail. On 19-8-2010, the petitioner as buyer entered into an agreement with Bangla Trac Limited for sale of 20 Megawatt brand new and unused power plant equipments comprising thirteen units of Cater piller G3520E + generator sets and all other equipments as specified in the scope of the work. The petitioner also paid a substantial amount as earnest money to the seller company. The Rural Electrification Board at its 461st meeting dated 6-9-2010 approved the proposal of the petitioner to grant lease of their land measuring 1(one) acre and 86 decimals at Khudirampur Mouza, Korotia Bypass, Tangaai on rental as well as on production sharing basis. The said decision of the Board duly communicated to the petitioner by a letter dated 8-9-2010 bearing Memo No. cwe‡ev/mwPe (†evtmt-461/2010/59). By a letter dated 26-9-2010 the Director, Rural Electrification Board communicated the fact that the draft agreement between the petitioner and the Board was approved by the legal advisor of the Board and the General Manager of Tangail Palli Bidyut Samity, Ashekpur, Tangail was directed to take necessary steps for execution of the agreement. On 28-9-2010 the petitioner submitted an application for License for Generation of Electricity for Commercial Power Plant to Bangladesh Energy Regulatory Commission upon paying the requisite fees of Taka 1,00,000 (one lac) and on complying with all formalities requested them to issue a license under the Policy Guidelines for Enhancement of Private Participation in the Power Sector, 2008. Earlier on 24-1-2010, the respondent No.1 after examining all the relevant papers and considering all the aspects issued a letter of consent to supplying gas to the power station, Annexure-B. Respondent No.2 on 26-1-2010, issued another memo giving consent to supply gas connection, Annexure-C. After long lapse of time, on 27-1-2012 (sic 27-1-2010), the respondent No.3 issued a letter giving further consent to supplying gas connection, Annexure-D. Respondent No.3 on 3-7-2012 again issued a memo reiterating consent to supplying gas to the “Electricity Power Plant” for smooth running the “20 Megawatt Electric Power Station” in Tangail. Annexure E and E-1.
The petitioner served a notice demanding justice with a request to supply gas to the Electric Power Station, Annexure-F, but the respondents did not respond to the said notice demanding justice. The petitioner having no other alternative and efficacious remedy has filed the instant Writ Petition and obtained the Rule.
4. After issuance of the Rule, the petitioner on 4-9-2014 filed an application for a direction upon the respondents to supply gas to the petitioner’s Power Station contending, inter alia. that Titas Gas Transmission & Distribution Company Limited also gave its consent to supplying gas connection to the power plant subject to availability of gas vide its letter dated 27-1-2012 (sic 27-1-2010) and also with reference to a letter dated 30-7-2012 issued by the Chairman of the Petrobangla, the relevant portion of which has been quoted as follows:
“?? ??????? ?????? ?”???? ??????? ???????????? ???????? ?????? ??????? ?????? ? ??? ???????’??? ?????? ?????? ??? ??????? ??????? ? ??-????? ????? ???????? ?????????????? ?????? ??????? ??????? ?????? ?”???? ??????? ? ???????? ?????? ??????? ???????? ???????? ????? ? ?????? ????? ????? ??????? ??? ????
?? ???????????, ?????? ??????? ??????? ???????? ????? ? ?????? ????? ???? ?????? ???????? ?????? ??????? ??? ???? ?????”
5. By order dated 10-9-2014, a Division Bench of this Court was pleased to keep the application with the record with the following observation and direction:
“Accordingly, the application for direction filed by the applicant-petitioner be
kept with the record and the applicant-petitioner is directed to apply to the above mentioned committee led by the Hon’ble Prime Minister’s Advisor for Power, Energy and Mineral Resources, if so adviced.”
6. The petitioner also filed a Supplementary Affidavit on 19-5-2016 contending, inter alia, that respondent No.1 by its Memo dated 24-3-2016 asked the Chairman of Petrobangla to obtain legal opinion ·as to whether during pendency of the instant Writ Petition and until the final decision is passed in the Writ Petition, it would be proper to give gas connection to the petitioner’s Power Plant. Accordingly, Titas Gas Transmission & Distribution Company Limited requested its Legal Advisor, Dr Md Bashir Ullah to give his legal opinion on the subject as has been asked for by respondent No.1. Accordingly, the learned Legal Advisor by his legal opinion dated 13-4-2016 opined that since the Writ Petition is pending before this Bench for hearing, unless the Writ Petition is finally disposed of, it would not be legally proper to give gas connection to the petitioner’s Power Plant which was communicated to the Petrobangla by the Managing Director of Titas Gas Transmission & Distribution Company Limited vide its Memo dated 17-4-2016.
7. Only respondent No.3, Titas Gas Transmission & Distribution Company Limited contested the Rule by filing an Affidavit-in-Opposition along with a Supplementary Affidavit in-Opposition by denying the material allegations made in the Writ Petition and contending, inter alia, that due to shortage of gas, the Government issued circular dated 21-9-2009 to stop further gas connection in commercial and industrial sector. Thereafter, on 13-7-2010·the Government issued another circular to stop further gas connection for residential purpose inspite of the aforesaid circulars, the Ministry of Power, Energy and Mineral Resources issued an office order dated 3-1-2011 constituting a high power committee to take decision for providing new gas connection to such power plants for the greater public interest subject to scrutiny and guidelines provided therein, Annexure-2. Accordingly, the petitioner had to apply to the said high power committee. The Writ Petition is pre-matured inasmuch as the petitioner has no locus standi to file the Writ Petition, which bears no substance and accordingly, the Rule is liable to be discharged. The Ministry of Power, Energy and Mineral Resources. respondent No.1 also issued another circular dated 10-8-2015 as to that no gas connection would be provided to the power station, Annexure-4. Accordingly, the petitioner being not entitled to such gas connection, the Rule is liable to be discharged.
8. Having placed the Writ Petition, Mr Gazi Mushtaque Ahmed, learned Advocate appearing for the petitioner submits that as per the assurance of the respondents, the petitioner has already purchased the required machineries and equipments investing huge amount of money and they have also given consent to supplying of gas to the petitioner’s Power Station, but they did not implement their consent practically. Accordingly, the petitioner company had yet not been able to operate its Power Station, which is incurring huge loss every day to the petitioner.
9. The learned Advocate further submits that the statements as have been made in the Affidavit-in-Opposition are back dated, since the decision to supply the gas connection to the petitioner’s Power Station and the consumer was taken by the respondents subsequently, therefore, the defence as has been made on behalf of the respondents with reference to the earlier stands of the Government as well as the position of availability of gas do not deserve consideration.
(To be continued)
10. The learned Advocate further submits that since the respondents gave consent to supplying the gas to the petitioner’s Power Plant, their inaction to give gas connection to the petitioner’s Power Plant is also barred by the principle of promissory estoppel inasmuch as the Government is bound by its own decision and promise and accordingly, the Rule may be made absolute with the direction upon the Government to give gas connection to the petitioner’s Power Plant immediately.
11. On the other hand, Dr Md Bashir Ullah, learned Advocate appearing for respondent No.3 submits that though the Government as well as respondent No.3 issued several letters to the petitioner from time to time, the availability and supply of gas also depend on time and situation and it appears from the latest decision of respondent No.1 that at present adequate quantum of gas is not available to supply the gas to the petitioner’s company and accordingly, as per the present situation of gas, it is not possible to supply it to the petitioner’s Power Plant and, as such, the Rule is liable to be discharged.
12. We have perused the Writ Petition along with the Supplementary Affidavit filed by the petitioner and the Affidavit-in-Opposition also along with the Supplementary Affidavit and the respective annexures thereto and heard the learned Advocates from both the sides.
13. It appears from the Writ Petition that the petitioner namely, Modhumoti Power Ltd. was incorporated under the Companies Act, 1994 with the objects to perform the activities of generating electricity, transmit, distribute and supply electricity directly or through other facilities or utility providers and establish, operate and maintain facilities for such transmission, distribution and supply and utilization of electricity in all aspects within Bangladesh as well as setting up power generating plant of any capacity and produce electricity/power. In this regard, they have also got license from the concerned authority and they have also obtained Tax Identification Number (TIN) and import license. They have also obtained foreign loan of US$ 30 million from TJ Harmoni Worldwide SDN BHD (TJHE), Lot 4273 Jalan Sungei Merab, 43650 Bandar Baru Bangi, Solangor Darul Ehsan, Malaysia. It is not disputed that in 1996, the Government of Bangladesh adopted the Private Sector Power Generation Policy (PSPGP) for promoting private sector participation in generation of electricity with a view to promote industrial and economic growth. In this regard, the Government of Bangladesh have also formulated Policy Guidelines for enhancement of Private Participation in the Power Sector, 2008. In reliance upon the Government’s assurance to promote and encourage private sector investment for Commercial Power Plant, the petitioner decided to set up a Commercial Power Plant in Tangail and accordingly, they obtained license from Bangladesh Energy Regulatory Commission on 17-7-2012. In the meantime, the Titas Gas Transmission & Distribution Company Limited by its Memo dated 27-1-2010 gave its consent to supplying the necessary quantum of gas to the Power Plant for the purpose of production of electricity. Accordingly, the petitioner obtained a No Objection Certificate from the Chairman of the local Union Parishad. The petitioner also obtained Environment Clearance Certificate as required under Rule 10(b) of the Policy, 2008 and accordingly, obtained a Geographical/Environmental Certificate from Korotia Union Parishad on 15-3-2010. Subsequently, the petitioner as buyer entered into an agreement with Bangla Trac Limited for purchasing 20 Megawatt brand new and unused power plant equipments comprising thirteen units of Caterpiller G3520E+ generator sets and all other equipments as specified in the scope of the work and the petitioner also paid up the earnest money to the seller company. The Rural Electrification Board at its 461st meeting dated 6-9-2010 approved the proposal of the petitioner to grant lease of their land measuring l(one) acre and 86 decimals at Khudirampur Mouza, Korotia, Bypass, Tangail on rental as well as on production sharing basis and the Board directed the General Manager. Of Tangail Palli Bidyut Samity, Ashekpur” Tangail to take necessary steps for execution of the agreement. On 28-9-2010 the petitioner submitted an application in the prescribed Form for License for Generation of Electricity for Commercial Power Plant to Bangladesh Energy Regulatory Commission upon paying the requisite fees of Taka 1,00,000 (one lac). The respondent No.1 on 24-1-2010 also gave consent to supplying gas to the Power Plant, which is evident from Annexure-B. Respondent No.2 similarly, on 26-1-2010 issued another Letter of Consent. Respondent No.3 on 27-1-2010 also issued a Letter of Consent which is also evident from Annexure-D. Respondent No.3 further on 3-7-2012 issued another Letter of Consent for supplying the requisite quantum of gas to the petitioner’s Power Plant, which is also annexed as Annexure-D. So, the respondent Nos. 1-3 on several occasions issued Letters of Consent to supplying of the requisite quantum of gas to the petitioner’s Power Plant. But they did not set up the connection of gas to the petitioner’s Power Plant inspite of giving consent time and again. Since the respondents did not connect the gas line to the petitioner’s Power Plant, it filed the instant Writ Petition challenging the inaction of the respondents as well as for a direction on them to connect the gas line to the petitioner’s Power Plant.
14. It appears that subsequently, in this Writ Petition, a Division Bench of this Court directed the petitioner to file an application to the High Power Committee constituted by the Government in this regard. It appears that following this direction, the Ministry of Power, Energy & Mineral Resources i.e. respondent No.1 sought legal opinion from the Petrobangla and the Petrobangla also obtained the legal opinion from its learned Legal Advisor. The learned Legal Advisor opined that since the Writ Petition is pending, gas connection should not be given unless and until the Writ Petition is disposed of.
15. It appears that only respondent No.3 contested the Rule by filing an Affidavit-in Opposition. Therefore, respondent Nos. 1 and 2 have not contested the Rule inspite of serving the notice of the Rule Nisi on them. Thus, from their conduct, it appears that they did not take any other view against their consent, which they have accorded earlier. It also appears that respondent No.3 also gave consent earlier. There is no evidence to show that for any fault on the part of the petitioner, they have withdrawn their consent. Nevertheless, there is nothing in the Affidavit-in-Opposition to show that respondent No.3 withdrew its consent to supplying of gas to the petitioner’s Power Plant.
16. Any decision taken subsequently by the Government or any other authority is effective prospectively only, but not retrospectively. Since the respondents time and again gave consent to supplying gas to the petitioner’s Power Plant and on being assured by such consent and other conducts of the respondents, the petitioner has already invested huge amount of money and set up the Power Plant as well as has done everything for operating the plant, now the Government or any other respondents cannot resile from their earlier position while, there is no fault with the petitioner. In addition thereto, in the facts and circumstances, the petitioner can legitimately expect that it would get the gas connection.
17. It is needless to mention that if any gas is not available at all, nobody can supply it. But if gas is available the respondents are bound by their consents and decision to supply it to the petitioner’s power plant.
18. In such view of the matter, we find merit in the Rule.
19. Accordingly, the Rule is made absolute.
20. The respondents are directed to give gas connection to the petitioner’s Power Plant upon receiving the security deposit from the petitioner in due procedure of gas connection as well as in due procedure of law within 1(one) month from the date of depositing of the security money by the petitioner.
However, there would be no order as to cost.
(Special Original Jurisdiction)
Gobinda Chandra
Tagore J
Abu Taher Md Saifur
Rahman J
Judgment
July 31st, 2016
Modhumoti Power Ltd ….
………………….. Petitioner
vs
Government of Bangladesh, represented by the Secretary, Ministry of Power, Energy & Mineral Resources, Bangladesh
and others………………
…………… Respondents*
Constitution of Bangladesh, 1972
Article 102(2)
Legitimate Expectation-Any decision taken subsequently by the Government or any other authority is effective prospectively only, but not retrospectively. Since the respondents time and again gave consent to supplying gas to the petitioner’s power plant and on being assured by such consent and other conducts of the respondents, the petitioner has already invested huge amount of money and set up the power plant as well as has done everything for operating the plant, now the Government or any other respondents cannot resile from their earlier position while, there is no fault with the petitioner. The petitioner can legitimately expect that it would get the gas connection. It is needless to mention that if any gas is not available at all, nobody can supply it. But if gas is available the respondents are bound by their consents and decision to supply it to the petitioner’s power plant. …………(16 & 17)
Gazi Mushtaque Ahmed, Advocate-For the Petitioner.
Dr. Md Bashir Ullah, Advocate-For the Respondent No.3.
Judgment
Gobinda Chandra Tagore J : On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, the Rule Nisi was issued calling upon respondents to show cause as to why the respondents should not be directed to supply the gas to the petitioner’s “20 Megawatt Power Station” and/or why such other or further order or orders as to this Court may seem fit and proper, should not be passed.
2. Shortly stated the relevant facts necessary for disposal of the Rule Nisi, in brief, are as follows:
3. The petitioner Modhumoti Power Ltd. is a company incorporated under the Companies Act, 1994 with the objects, amongst other, to perform the activities of generating electricity, transmit, distribute and supply electricity directly or through other facilities or utility providers and to establish, operate and maintain facilities for such transmission, distribution and supply and utilization of electricity in all aspects within Bangladesh as well as setting up power generating plant of any capacity and produce electricity/power and to carry out the business of supplying electricity, light and power both in private and public sectors, industries and to the domestic users. The company also obtained Trade License, Tax Identification Number (TIN) and Import License. The petitioner in this Writ Petition is being represented by its Managing Director, authorized pursuant to Article 56 of the Article of Association of the company, M/s. Modhumoti Power Ltd. for the amendment of the earlier approved foreign loan of US$ 30 million from TJ Harmoni Worldwide SDN BHD (TJHE), Lot 4273 Jalan Sungei Merab, 43650 Bandar Baru Bangi, Solangor Darul Ehsan, Malaysia. The copies of the certificate of license and foreign loan have been annexed as annexure A and A-1 to the Writ Petition. In 1996 the Government of Bangladesh adopted the Private Sector Power Generation Policy (PSPGP) for promoting private sector participation in generation of electricity with a view to promote industrial and economic growth. Maintaining the augmenting optimum generation capacity is a priority for the Government of Bangladesh in order to meet the goat the Government of Bangladesh has adopted a combination of measures; large generation capacity auditions through the public-sector entities and Independent Power Producers (IPPs); tendering out small power plants on fast track basis and encouraging procurement of surplus power from commercial power plant as Independent Power Producer Plant (CIPP) and Small Power Plants (SPPs). With this end the Government of Bangladesh formulated the Policy Guidelines for Enhancement of Private Participation in the Power Sector, 2008 through which the Government of Bangladesh allows the private sector to set up Commercial Power Plants to supply electricity to Large Consumers on mutually negotiated tariffs and to supply electricity to the distribution licensees at the tariffs determined by the Bangladesh Energy Regulatory Commission (BERC). In reliance upon the Government’s assurance to promote and encourage private sector investment for Commercial Power Plant, the petitioner decided to set up a Commercial Power Plant in Tangail. As a pre-condition of license application, the petitioner applied for necessary approval from Titas and accordingly, Titas accorded its primary approval vide Memo No. IwmwW/wewmGm/131 dated 27-1-2010 for supply of gas to the proposed 20 Megawatt Electricity Power Plant (Modhumoti Power Ltd). The petitioner also obtained a no-objection certificate from the Chairman, No.4 Korotia Union Parishad depicting the fact that the inhabitants of Korotia Union Parishad has no objection if the petitioner set up the proposed gas based commercial power plant. The petitioner also applied for the Environment Clearance as required under Rule 10(b) of the Policy, 2008 and accordingly, obtained a Geographical/ Environmental Clearance Certificate vide Memo No. KivBDwc/21/2010 dated 15-3-2010 for establishing the proposed 20 Megawatt Power Plant (Modhumoti Power Ltd.) at Mouza-Khudirampur, Korotia, Bypass, Tangail. On 19-8-2010, the petitioner as buyer entered into an agreement with Bangla Trac Limited for sale of 20 Megawatt brand new and unused power plant equipments comprising thirteen units of Cater piller G3520E + generator sets and all other equipments as specified in the scope of the work. The petitioner also paid a substantial amount as earnest money to the seller company. The Rural Electrification Board at its 461st meeting dated 6-9-2010 approved the proposal of the petitioner to grant lease of their land measuring 1(one) acre and 86 decimals at Khudirampur Mouza, Korotia Bypass, Tangaai on rental as well as on production sharing basis. The said decision of the Board duly communicated to the petitioner by a letter dated 8-9-2010 bearing Memo No. cwe‡ev/mwPe (†evtmt-461/2010/59). By a letter dated 26-9-2010 the Director, Rural Electrification Board communicated the fact that the draft agreement between the petitioner and the Board was approved by the legal advisor of the Board and the General Manager of Tangail Palli Bidyut Samity, Ashekpur, Tangail was directed to take necessary steps for execution of the agreement. On 28-9-2010 the petitioner submitted an application for License for Generation of Electricity for Commercial Power Plant to Bangladesh Energy Regulatory Commission upon paying the requisite fees of Taka 1,00,000 (one lac) and on complying with all formalities requested them to issue a license under the Policy Guidelines for Enhancement of Private Participation in the Power Sector, 2008. Earlier on 24-1-2010, the respondent No.1 after examining all the relevant papers and considering all the aspects issued a letter of consent to supplying gas to the power station, Annexure-B. Respondent No.2 on 26-1-2010, issued another memo giving consent to supply gas connection, Annexure-C. After long lapse of time, on 27-1-2012 (sic 27-1-2010), the respondent No.3 issued a letter giving further consent to supplying gas connection, Annexure-D. Respondent No.3 on 3-7-2012 again issued a memo reiterating consent to supplying gas to the “Electricity Power Plant” for smooth running the “20 Megawatt Electric Power Station” in Tangail. Annexure E and E-1.
The petitioner served a notice demanding justice with a request to supply gas to the Electric Power Station, Annexure-F, but the respondents did not respond to the said notice demanding justice. The petitioner having no other alternative and efficacious remedy has filed the instant Writ Petition and obtained the Rule.
4. After issuance of the Rule, the petitioner on 4-9-2014 filed an application for a direction upon the respondents to supply gas to the petitioner’s Power Station contending, inter alia. that Titas Gas Transmission & Distribution Company Limited also gave its consent to supplying gas connection to the power plant subject to availability of gas vide its letter dated 27-1-2012 (sic 27-1-2010) and also with reference to a letter dated 30-7-2012 issued by the Chairman of the Petrobangla, the relevant portion of which has been quoted as follows:
“?? ??????? ?????? ?”???? ??????? ???????????? ???????? ?????? ??????? ?????? ? ??? ???????’??? ?????? ?????? ??? ??????? ??????? ? ??-????? ????? ???????? ?????????????? ?????? ??????? ??????? ?????? ?”???? ??????? ? ???????? ?????? ??????? ???????? ???????? ????? ? ?????? ????? ????? ??????? ??? ????
?? ???????????, ?????? ??????? ??????? ???????? ????? ? ?????? ????? ???? ?????? ???????? ?????? ??????? ??? ???? ?????”
5. By order dated 10-9-2014, a Division Bench of this Court was pleased to keep the application with the record with the following observation and direction:
“Accordingly, the application for direction filed by the applicant-petitioner be
kept with the record and the applicant-petitioner is directed to apply to the above mentioned committee led by the Hon’ble Prime Minister’s Advisor for Power, Energy and Mineral Resources, if so adviced.”
6. The petitioner also filed a Supplementary Affidavit on 19-5-2016 contending, inter alia, that respondent No.1 by its Memo dated 24-3-2016 asked the Chairman of Petrobangla to obtain legal opinion ·as to whether during pendency of the instant Writ Petition and until the final decision is passed in the Writ Petition, it would be proper to give gas connection to the petitioner’s Power Plant. Accordingly, Titas Gas Transmission & Distribution Company Limited requested its Legal Advisor, Dr Md Bashir Ullah to give his legal opinion on the subject as has been asked for by respondent No.1. Accordingly, the learned Legal Advisor by his legal opinion dated 13-4-2016 opined that since the Writ Petition is pending before this Bench for hearing, unless the Writ Petition is finally disposed of, it would not be legally proper to give gas connection to the petitioner’s Power Plant which was communicated to the Petrobangla by the Managing Director of Titas Gas Transmission & Distribution Company Limited vide its Memo dated 17-4-2016.
7. Only respondent No.3, Titas Gas Transmission & Distribution Company Limited contested the Rule by filing an Affidavit-in-Opposition along with a Supplementary Affidavit in-Opposition by denying the material allegations made in the Writ Petition and contending, inter alia, that due to shortage of gas, the Government issued circular dated 21-9-2009 to stop further gas connection in commercial and industrial sector. Thereafter, on 13-7-2010·the Government issued another circular to stop further gas connection for residential purpose inspite of the aforesaid circulars, the Ministry of Power, Energy and Mineral Resources issued an office order dated 3-1-2011 constituting a high power committee to take decision for providing new gas connection to such power plants for the greater public interest subject to scrutiny and guidelines provided therein, Annexure-2. Accordingly, the petitioner had to apply to the said high power committee. The Writ Petition is pre-matured inasmuch as the petitioner has no locus standi to file the Writ Petition, which bears no substance and accordingly, the Rule is liable to be discharged. The Ministry of Power, Energy and Mineral Resources. respondent No.1 also issued another circular dated 10-8-2015 as to that no gas connection would be provided to the power station, Annexure-4. Accordingly, the petitioner being not entitled to such gas connection, the Rule is liable to be discharged.
8. Having placed the Writ Petition, Mr Gazi Mushtaque Ahmed, learned Advocate appearing for the petitioner submits that as per the assurance of the respondents, the petitioner has already purchased the required machineries and equipments investing huge amount of money and they have also given consent to supplying of gas to the petitioner’s Power Station, but they did not implement their consent practically. Accordingly, the petitioner company had yet not been able to operate its Power Station, which is incurring huge loss every day to the petitioner.
9. The learned Advocate further submits that the statements as have been made in the Affidavit-in-Opposition are back dated, since the decision to supply the gas connection to the petitioner’s Power Station and the consumer was taken by the respondents subsequently, therefore, the defence as has been made on behalf of the respondents with reference to the earlier stands of the Government as well as the position of availability of gas do not deserve consideration.
(To be continued)
10. The learned Advocate further submits that since the respondents gave consent to supplying the gas to the petitioner’s Power Plant, their inaction to give gas connection to the petitioner’s Power Plant is also barred by the principle of promissory estoppel inasmuch as the Government is bound by its own decision and promise and accordingly, the Rule may be made absolute with the direction upon the Government to give gas connection to the petitioner’s Power Plant immediately.
11. On the other hand, Dr Md Bashir Ullah, learned Advocate appearing for respondent No.3 submits that though the Government as well as respondent No.3 issued several letters to the petitioner from time to time, the availability and supply of gas also depend on time and situation and it appears from the latest decision of respondent No.1 that at present adequate quantum of gas is not available to supply the gas to the petitioner’s company and accordingly, as per the present situation of gas, it is not possible to supply it to the petitioner’s Power Plant and, as such, the Rule is liable to be discharged.
12. We have perused the Writ Petition along with the Supplementary Affidavit filed by the petitioner and the Affidavit-in-Opposition also along with the Supplementary Affidavit and the respective annexures thereto and heard the learned Advocates from both the sides.
13. It appears from the Writ Petition that the petitioner namely, Modhumoti Power Ltd. was incorporated under the Companies Act, 1994 with the objects to perform the activities of generating electricity, transmit, distribute and supply electricity directly or through other facilities or utility providers and establish, operate and maintain facilities for such transmission, distribution and supply and utilization of electricity in all aspects within Bangladesh as well as setting up power generating plant of any capacity and produce electricity/power. In this regard, they have also got license from the concerned authority and they have also obtained Tax Identification Number (TIN) and import license. They have also obtained foreign loan of US$ 30 million from TJ Harmoni Worldwide SDN BHD (TJHE), Lot 4273 Jalan Sungei Merab, 43650 Bandar Baru Bangi, Solangor Darul Ehsan, Malaysia. It is not disputed that in 1996, the Government of Bangladesh adopted the Private Sector Power Generation Policy (PSPGP) for promoting private sector participation in generation of electricity with a view to promote industrial and economic growth. In this regard, the Government of Bangladesh have also formulated Policy Guidelines for enhancement of Private Participation in the Power Sector, 2008. In reliance upon the Government’s assurance to promote and encourage private sector investment for Commercial Power Plant, the petitioner decided to set up a Commercial Power Plant in Tangail and accordingly, they obtained license from Bangladesh Energy Regulatory Commission on 17-7-2012. In the meantime, the Titas Gas Transmission & Distribution Company Limited by its Memo dated 27-1-2010 gave its consent to supplying the necessary quantum of gas to the Power Plant for the purpose of production of electricity. Accordingly, the petitioner obtained a No Objection Certificate from the Chairman of the local Union Parishad. The petitioner also obtained Environment Clearance Certificate as required under Rule 10(b) of the Policy, 2008 and accordingly, obtained a Geographical/Environmental Certificate from Korotia Union Parishad on 15-3-2010. Subsequently, the petitioner as buyer entered into an agreement with Bangla Trac Limited for purchasing 20 Megawatt brand new and unused power plant equipments comprising thirteen units of Caterpiller G3520E+ generator sets and all other equipments as specified in the scope of the work and the petitioner also paid up the earnest money to the seller company. The Rural Electrification Board at its 461st meeting dated 6-9-2010 approved the proposal of the petitioner to grant lease of their land measuring l(one) acre and 86 decimals at Khudirampur Mouza, Korotia, Bypass, Tangail on rental as well as on production sharing basis and the Board directed the General Manager. Of Tangail Palli Bidyut Samity, Ashekpur” Tangail to take necessary steps for execution of the agreement. On 28-9-2010 the petitioner submitted an application in the prescribed Form for License for Generation of Electricity for Commercial Power Plant to Bangladesh Energy Regulatory Commission upon paying the requisite fees of Taka 1,00,000 (one lac). The respondent No.1 on 24-1-2010 also gave consent to supplying gas to the Power Plant, which is evident from Annexure-B. Respondent No.2 similarly, on 26-1-2010 issued another Letter of Consent. Respondent No.3 on 27-1-2010 also issued a Letter of Consent which is also evident from Annexure-D. Respondent No.3 further on 3-7-2012 issued another Letter of Consent for supplying the requisite quantum of gas to the petitioner’s Power Plant, which is also annexed as Annexure-D. So, the respondent Nos. 1-3 on several occasions issued Letters of Consent to supplying of the requisite quantum of gas to the petitioner’s Power Plant. But they did not set up the connection of gas to the petitioner’s Power Plant inspite of giving consent time and again. Since the respondents did not connect the gas line to the petitioner’s Power Plant, it filed the instant Writ Petition challenging the inaction of the respondents as well as for a direction on them to connect the gas line to the petitioner’s Power Plant.
14. It appears that subsequently, in this Writ Petition, a Division Bench of this Court directed the petitioner to file an application to the High Power Committee constituted by the Government in this regard. It appears that following this direction, the Ministry of Power, Energy & Mineral Resources i.e. respondent No.1 sought legal opinion from the Petrobangla and the Petrobangla also obtained the legal opinion from its learned Legal Advisor. The learned Legal Advisor opined that since the Writ Petition is pending, gas connection should not be given unless and until the Writ Petition is disposed of.
15. It appears that only respondent No.3 contested the Rule by filing an Affidavit-in Opposition. Therefore, respondent Nos. 1 and 2 have not contested the Rule inspite of serving the notice of the Rule Nisi on them. Thus, from their conduct, it appears that they did not take any other view against their consent, which they have accorded earlier. It also appears that respondent No.3 also gave consent earlier. There is no evidence to show that for any fault on the part of the petitioner, they have withdrawn their consent. Nevertheless, there is nothing in the Affidavit-in-Opposition to show that respondent No.3 withdrew its consent to supplying of gas to the petitioner’s Power Plant.
16. Any decision taken subsequently by the Government or any other authority is effective prospectively only, but not retrospectively. Since the respondents time and again gave consent to supplying gas to the petitioner’s Power Plant and on being assured by such consent and other conducts of the respondents, the petitioner has already invested huge amount of money and set up the Power Plant as well as has done everything for operating the plant, now the Government or any other respondents cannot resile from their earlier position while, there is no fault with the petitioner. In addition thereto, in the facts and circumstances, the petitioner can legitimately expect that it would get the gas connection.
17. It is needless to mention that if any gas is not available at all, nobody can supply it. But if gas is available the respondents are bound by their consents and decision to supply it to the petitioner’s power plant.
18. In such view of the matter, we find merit in the Rule.
19. Accordingly, the Rule is made absolute.
20. The respondents are directed to give gas connection to the petitioner’s Power Plant upon receiving the security deposit from the petitioner in due procedure of gas connection as well as in due procedure of law within 1(one) month from the date of depositing of the security money by the petitioner.
However, there would be no order as to cost.
