High Court Division
(Special Original Jurisdiction)
Naima Haider J
Mustafa Zaman
Islam J
Reliance Spinning Mills Ltd…………
……….Petitioner
vs
Titas Gas Transmission and Distribution Co. Ltd and others………. Respondents
Judgment
May 17th, 2015.
Constitution of Bangladesh, 1972
Article 102(2)
If there is any breach of contract, the remedy lies in the Civil Court as it involves determination of question of facts. .. …. (18)
Constitution of Bangladesh, 1972 Article 102(2)
The claim 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 the writ petitioner is not entitled to get any relief from this Court. …………..(19)
Nuruddin vs Titas Gas, 3 BLC (AD) 231; and Government of Bangladesh vs Abu Musa, 6 MLR (AD) 176 = 53 DLR (AD) 77 ref.
Yousuf Hossain Humayun, with Khondoker Bashir Ahmed, Advocates-For the Petitioner.
Dr Md Bashir Ullah, Advocate-For the Respondent No.1.
Judgment
Naima Haider, J : In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the inaction of the respondents in hearing and considering the representation made by petitioner, company on 30-11-1998 (Annexure-C) and the final notice bearing Memo No. Legal/103/731 dated 11-4-2011 (Annexure-J) issued by the respondent No.1 under the signature of respondent No.3 asking the petitioner company to pay an amount of Taka 1,71,92,549.36 only as arrear unpaid bills with surcharge should not be declared illegal, malafide, discriminatory, and without lawful authority, and the same is of no legal effect and/ or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts leading to the issuance of the Rule, in brief, are:-
The petitioner is a private limited company represented by its Chairman. The petitioner company has been manufacturing yarn, thread etc from cotton. The petitioner applied for gas connection to the Titas Gas Transmission and Distribution Co, Ltd. Accordingly, the respondents provided gas connection in favour of the petitioner. They entered into a contract on 28-1-1996. Thereafter the petitioner had been paying gas bill regularly till the month of August, 1998. In the first week of September, 1998, the area in which the factory of the petitioner company is situated, was flooded and suddenly on 7-9-1998 the factory of the petitioner company had gone under flood water and the factory was severely affected causing its laid off and damages to machinery, raw materials, finished products and other goods. Only one out of total 8 (eight) generators of the factory was in operation for 5/6 days for eviction of flood water from factory premises. The said flood being natural calamity beyond the control of the petitioner company and manifestly a ‘force majeure’ within the meaning of dause-17.1 of the Contract, the petitioner company by a letter dated 8-09-1998 informed the matter to respondent No.2.
3. After major repair and overhauling machinery, the petitioner company restarted the factory with 50% of machinery on 22-10-1998. For operating the generators and some machinery for emergency purpose, the gas, which is about 20% of normal consumption was consumed during said due to force majeure. Respondent No.1 Company could neither examine the gas line nor made any response to the petitioner company’s representation dated 8-9-1998. In this situation, the petitioner company made a detailed representation on 30-11-1998 to the Deputy General Manager (SRD), Narayangonj of Respondent No.1 stating the above noted facts and requesting for waiver from minimum charge, to issue bill on the basis of actual consumption of gas and reassess the bill for September and October, 1998 as per provisions of clauses-17.1 read with clause-28.2 (a) of the Contract. Respondent No. 1 Company did neither arrange any investigation nor asked for any hearing on the matter. Rather, Respondent No. 2 calculated and issued bill with minimum charge for said period keeping final decision of aforesaid representations dated 8-9-1998 and 30-11-1998 of the petitioner company. Surprisingly on 24-11-2001 Respondent No.2 issued a notice with arbitrary and baseless comment that there was no scope to consider the application of the petitioner company for waiver from minimum charges during the flood i.e. laid off period and asking for payment of arrear gas bill amounting to Taka 82,47,737 only immediately, failing of which, the Respondents would disconnect the gas supply of the petitioner company. Subsequently, Respondent No.2 issued further notice asking for payment of so called arrear bills without proper settlement of the issue on 16-2-2002. Respondent No.1 Company provided force majeure benefit to other industrial units of same area for same occurrence, but the respondents treated the petitioner company discriminately and found inactive to provide same facility or right to the petitioner company. The petitioner company, thereafter, on 3-8-2004 made further application to respondent No. 2 but the respondents did not take any action. Finding no other alternative and for offering its bonafide intention to settle the matter, the petitioner company by taking loan made an instant payment of BDT 50,00,000 only on 13-11-2008 in favour of Respondent No.1 Company and was trying to make the rest payment by installments despite severe financial difficulties.
4. Respondent No. 3 surprisingly issued a notice namely final notice on 11-4-2011 asking the petitioner company to pay an imaginary amount of Taka 1,71,92,549.36 only as arrear unpaid bill with surcharge within 15 (fifteen) days of receipt of the notice, failing of which respondent No.1 would be compelled to take legal action against the petitioner company. On receipt of said final notice, the Chairman of the petitioner met with the Managing Director of Respondent No.1 Company on 14-5-2011 and explained the actual fact by producing the statement of accounts and previous correspondences. On receipt of said application Respondent No.1 Company conducted inquiry into the matter and took written statements and other materials from officials of the petitioner company about different aspects thereof. After the said inquiry, Respondent No.1 was again found silent in the matter and did not withdraw the final notice. The Petitioner on 11-7-2012 submitted another application for review the matter requesting to settle the dispute finally in the light of actual fact and within the ambit of the contract. But the Respondents did not pay any heed to the requests made by the Petitioner. Finally on 21-10-2013 the petitioner replied to the final notice to the Respondent No. 3 requesting him to withdraw the final notice, but the respondents failed to take proper action.
5. Being aggrieved by and dissatisfied with the inaction of the respondents, the petitioner has moved to this Court and obtained the Rule Nisi.
6. The respondent No.1 entered appearance by filing an affidavit-in-opposition. The case of respondent No . 1 is that the gas connection was made to the petitioner company after signing a contract between Titas Gas Transmission and Distribution Co. Ltd. and the petitioner. 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 that is to say he was not affected by flood. Whereas the petitioner consumed gas at the period of his claim, so he is not entitled to get any relief under clause 17.1 of the contract.
7. The respondents had formed an enquiry team to investigate in to the matter. The team/ committee made investigation and heard the petitioner. In this regard the committee had issued letter vide Annexure-L (Page-40 of the writ petition). 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 Taka 50 lac on 13-11-2008 (Annexure-G). Since the petitioner accepted the letter and paid Taka 50 lac on the basis of the letter so he cannot raise any claim after passing of long period.
8. 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 the Annexure-3 that the dues are not for the period of flood. The dues of Taka 1,71,92,549.36 constitute of July, 2001 to February, 2002 and the rest amount are the surcharges from June, 2006 to 25-7-2010. So, the Annexure-J is not connected to the period of flood and hence the Rule may kindly be discharged.
9. The flood has occurred in September, 1998. The petitioner consumed gases at the time of flood and hence he is not entitled to get any benefit of force majeure. The manager, Sonargaon Zone disposed of the prayer of the petitioner on 22-8-2006 and 4-11-2007 vide Annexure-2 series. So, the question of inaction raised by the petitioner is not valid at all and hence the Rule may kindly be discharged.
10. It was clearly described in the letter dated 22-8-2006 (Vide Annexure-2 Series) that the claim of charging additional bill of Taka 14,07,459.70 for the period of September, 1998 to February, 1999 that is for the period of flood was not valid and acceptable.
11. The petitioner filed this writ petition without holding arbitration under Section 26 of the Bangladesh Gas Act, 2010 (BERC Act) as such this writ petition is not maintainable and hence it is liable to be discharged.
12. Mr Yousuf Hossain Humayun, learned Advocate appearing with learned Advocate Mr Kh Bashir Ahmed for the petitioner submits that in the first week of September, 1998, the area in which the factory of the petitioner company is situated, was flooded and suddenly on 7 -9-1998 the factory of the petitioner company had gone under flood water and the factory was severely affected causing its laid off and damages to machineries, raw materials, finished products and other goods. Only one out of total 8 (eight) generators of the factory was in operation for 5/6 days for eviction of flood water from factory premises. He next submits that the said flood being natural calamity beyond the control of the petitioner company and manifestly a ‘force majeure’ within the meaning of clause-17.1 of the contract which was informed by the petitioner company to respondent No. 2 dated 8-9-1998.
13. He further contends that the petitioner company made a detailed representation on 3011-1998 to Respondent requesting for waiver from minimum charge, to issue bill on the basis of actual consumption of gas and reassess the bill for September and October, 1998 as per provisions of clauses-17.1 read with clause-28.2 (a) of the Contract but respondent No.1 Company did neither arrange any investigation nor asked for any hearing on the matter rather, respondent No.2 calculated and issued bill with minimum charge. He lastly submits that the petitioner company lastly on 3-8-2004 made further application to respondent No. 2 but the respondents did not take any action which is colorable exercise of the respondents.
14. Mr Yusuf Hossain Humayun next submits that the final notice dated 11-4-2011 asking the petitioner company to pay an imaginary amount of Taka 1,71,92,549.36 only. Respondent No.1 held a so-called inquiry in the matter and did not withdraw the final notice. The petitioner on 11-7-2012 submitted another application for review of the matter requesting to settle the dispute. But the respondents have paid no any heed to the requests made by the Petitioner. Finally on 21-10-2013 the petitioner replied to the final notice to the Respondent No. 3 requesting him to withdraw the final notice, but the respondents failed to take proper action with malafide intention.
(To be continued)
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.
