(From previous issue) :
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.
(Concluded)
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.
(Concluded)
