(From previous issue)
15. Dr Md Bashir Ullah, the learned Advocate appearing for the respondent No. 1 submits that the gas connection was provided to the petitioner company after signing a contract between Titas Gas Transmission and Distribution Co. Ltd. and the petitioner. He next submits that as per clause 17.1 of the contract the petitioner did not notify the respondent within 48 hours of the commencement of the said force majeure. The petitioner consumed gases at the time of flood so he is not entitled to get any relief under clause 17.1 of the contract. He further contends that the respondents had formed an enquiry team to investigate into the matter. Dr Md Bashir Ullah further contends that the team/ committee made investigation and heard the petitioner. After investigation the committee did not make any recommendation to reduce the bill. The manager had informed the petitioner about the decision on 4-11-2007 by a letter. After receiving the above mentioned letter, the petitioner paid Tk. 50 lac on 13-11-2008 and the learned Advocate points out that since the petitioner accepted the letter and paid Taka 50 lac on the basis of the letter, he cannot raise any claim after passing a long period.
16. Dr Md Bashir Ullah next submits that the impugned letter has been issued after accurate calculation of the arrears bill. So, there is no illegality in the impugned letter.
It is evident from Annexure-3 that the dues are not for the period of flood. The dues of Taka 1,71,92,549.36 are for the period of bill of July, 2001 to February, 2002 and the rest amount are the surcharges from June, 2006 to 25-7-2010 and, as such, the Rule is liable to be discharged.
17. We have heard the learned Advocates for the petitioner as well as respondent no. 1 and perused the writ petition, affidavit-in-reply, affidavit-in-opposition and supplementary affidavit-in-opposition filed by the respondent No.1 and its annexures thereto.
18. Admittedly, the petitioner and the respondent had entered into contract. This relationship is based on the contract signed by both the parties. If there is any breach of contract, the remedy lies in the civil court or Bangladesh Energy Regulatory Commission as it involves determination of question of facts.
In this connection we would like to rely upon the decisions which was referred by Dr Md Bashir Ullah in the case of Nuruddin vs Titas Gas, reported in 3 BLC (AD) 231, wherein, the Honorable Apex Court held:
“the relationship between the petitioner and the respondents is based on a contract. This is precisely a matter which upon settled principles cannot be legitimately made a subject for decision in the writ jurisdiction.”
19. The claim of the petitioner is totally disputed. Disputed claim does not come within the purview of writ jurisdiction since matter of calculation and disputed question of facts are involved in this case and according to the principle laid down in Government of Bangladesh vs Abu Musa, reported in 6 MLR (AD) 176 = 53 DLR (AD) 77, the writ petitioner is not entitled to get any relief from this Court.
20. Against this backdrop, Dr Md Bashir Ullah on behalf of respondent No. 1 further brings to the notice of this Court that the writ petitioner filed this writ petition without taking recourse to arbitration as per Bangladesh Energy Regulatory Commission Act, 2003 and sSection 26 of Bangladesh Gas Act, 2010. Section 26 of the said Act states that:
26| mvwjkxi gva¨‡g we‡iva wb®úwËt GB AvBb hvnv wKQzB _vKzK bv †Kb, jvB‡mÝx‡`i g‡a¨ A_ev MÖvnK I jvB‡mÝxi g‡a¨ †Kvb we‡iv‡ai D™¢e nB‡j, mvwjk AvBb, 2001 (2001 m‡bi 1 bs AvBb) A_ev cÿM‡Yi g‡a¨ m¤úvw`, Pzw³i weavb Abyhvqx Kwgkb Dnv wb®úwË Kwi‡Z cwi‡e|
21. We cannot be oblivious of the fact that a commission has been formed under Section 40 of Bangladesh Energy Regulatory Commission Act, 2003 for holding arbitration to solve the disputes between Titas Gas Company and its consumer. Subsequently, Section 26 of Bangladesh Gas Act, 2010 also empowered the Commission (BERC) to hold arbitration for resolution of the disputes behaved Licensee i.e. gas company and the consumer. We are of the view that the petitioner should go for arbitration to the commission formed under Bangladesh Energy Regulatory Commission Act, 2003 before coming to this Court, if so advised.
22. In view of the foregoing discussions and taking the facts in their entirety, we are inclined to dispose of the Rule with the above mentioned observations.
23. Accordingly, the Rule is disposed of with the above mentioned observations.
24. The order of stay granted earlier by this Court is hereby re-called and vacated.
However, there is no order as to costs.
(Concluded)
15. Dr Md Bashir Ullah, the learned Advocate appearing for the respondent No. 1 submits that the gas connection was provided to the petitioner company after signing a contract between Titas Gas Transmission and Distribution Co. Ltd. and the petitioner. He next submits that as per clause 17.1 of the contract the petitioner did not notify the respondent within 48 hours of the commencement of the said force majeure. The petitioner consumed gases at the time of flood so he is not entitled to get any relief under clause 17.1 of the contract. He further contends that the respondents had formed an enquiry team to investigate into the matter. Dr Md Bashir Ullah further contends that the team/ committee made investigation and heard the petitioner. After investigation the committee did not make any recommendation to reduce the bill. The manager had informed the petitioner about the decision on 4-11-2007 by a letter. After receiving the above mentioned letter, the petitioner paid Tk. 50 lac on 13-11-2008 and the learned Advocate points out that since the petitioner accepted the letter and paid Taka 50 lac on the basis of the letter, he cannot raise any claim after passing a long period.
16. Dr Md Bashir Ullah next submits that the impugned letter has been issued after accurate calculation of the arrears bill. So, there is no illegality in the impugned letter.
It is evident from Annexure-3 that the dues are not for the period of flood. The dues of Taka 1,71,92,549.36 are for the period of bill of July, 2001 to February, 2002 and the rest amount are the surcharges from June, 2006 to 25-7-2010 and, as such, the Rule is liable to be discharged.
17. We have heard the learned Advocates for the petitioner as well as respondent no. 1 and perused the writ petition, affidavit-in-reply, affidavit-in-opposition and supplementary affidavit-in-opposition filed by the respondent No.1 and its annexures thereto.
18. Admittedly, the petitioner and the respondent had entered into contract. This relationship is based on the contract signed by both the parties. If there is any breach of contract, the remedy lies in the civil court or Bangladesh Energy Regulatory Commission as it involves determination of question of facts.
In this connection we would like to rely upon the decisions which was referred by Dr Md Bashir Ullah in the case of Nuruddin vs Titas Gas, reported in 3 BLC (AD) 231, wherein, the Honorable Apex Court held:
“the relationship between the petitioner and the respondents is based on a contract. This is precisely a matter which upon settled principles cannot be legitimately made a subject for decision in the writ jurisdiction.”
19. The claim of the petitioner is totally disputed. Disputed claim does not come within the purview of writ jurisdiction since matter of calculation and disputed question of facts are involved in this case and according to the principle laid down in Government of Bangladesh vs Abu Musa, reported in 6 MLR (AD) 176 = 53 DLR (AD) 77, the writ petitioner is not entitled to get any relief from this Court.
20. Against this backdrop, Dr Md Bashir Ullah on behalf of respondent No. 1 further brings to the notice of this Court that the writ petitioner filed this writ petition without taking recourse to arbitration as per Bangladesh Energy Regulatory Commission Act, 2003 and sSection 26 of Bangladesh Gas Act, 2010. Section 26 of the said Act states that:
26| mvwjkxi gva¨‡g we‡iva wb®úwËt GB AvBb hvnv wKQzB _vKzK bv †Kb, jvB‡mÝx‡`i g‡a¨ A_ev MÖvnK I jvB‡mÝxi g‡a¨ †Kvb we‡iv‡ai D™¢e nB‡j, mvwjk AvBb, 2001 (2001 m‡bi 1 bs AvBb) A_ev cÿM‡Yi g‡a¨ m¤úvw`, Pzw³i weavb Abyhvqx Kwgkb Dnv wb®úwË Kwi‡Z cwi‡e|
21. We cannot be oblivious of the fact that a commission has been formed under Section 40 of Bangladesh Energy Regulatory Commission Act, 2003 for holding arbitration to solve the disputes between Titas Gas Company and its consumer. Subsequently, Section 26 of Bangladesh Gas Act, 2010 also empowered the Commission (BERC) to hold arbitration for resolution of the disputes behaved Licensee i.e. gas company and the consumer. We are of the view that the petitioner should go for arbitration to the commission formed under Bangladesh Energy Regulatory Commission Act, 2003 before coming to this Court, if so advised.
22. In view of the foregoing discussions and taking the facts in their entirety, we are inclined to dispose of the Rule with the above mentioned observations.
23. Accordingly, the Rule is disposed of with the above mentioned observations.
24. The order of stay granted earlier by this Court is hereby re-called and vacated.
However, there is no order as to costs.
(Concluded)
