Case No: Writ Petition No. 11403 of 2013
Judge: Gobinda Chandra Tagore, J And Mohammad Ullah, J.
Court: High Court Division,
Advocate: Mr. Minhazul Hoque Chowdhury, Advocate,
Citation: 2019(1) LNJ
Case Year: 2018
Appellant: Rowshan Ara Begum
Respondent: General Certificate Officer, Collectorate Building, Feni and 7 (seven) others
Subject: Constitution of Bangladesh
Delivery Date: 2019-11-27
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Gobinda Chandra Tagore, J
Mohammad Ullah, J.
Rowshan Ara Begum
. . .Petitioner
General Certificate Officer, Collectorate Building, Feni and 7 (seven) others
. . .Respondents
Constitution of Bangladesh, 1972
The petitioner in a formidable circumstances and finding no other alternative filed an application stating that she is not liable to pay the arrear bills however, if the fine and surcharge are exonerated she intended to pay the actual bill of respondent No. 4, company with an intention to get the connection of the meter into her name. Since law does not permit the respondent No. 3 to place any claim against the petitioner for arrear bills, the initiation and continuation of the certificate proceeding is liable to be declared to have been initiated without lawful authority. Moreover, there cannot be estoppel against a statute. . . . (19)
Daulatpur Ice Cold Storage Ltd. and another Vs. Chairman, Power Development Board and others, 57 DLR (2005) 109 and Ram Chandra Parasad Sharma and others Vs. State of Bihar and another, AIR (1967(SC) 349 (V 54 C66) ref.
Mr. Minhazul Hoque Chowdhury, Advocate
. . .For the petitioner
Mr. A.Z.M. Mohiuddin, Advocate
. . . For the respondent No. 3
Mohammad Ullah, J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, the Rule Nisi was issued calling upon the respondents to show cause as to why initiation and continuation of the proceedings of Certificate Case No. 18 of 2012 under provisions of Public Demands Recovery Act, 1913 (“the Act, 1913”) then pending in the Court of General Certificate Officer and Executive Magistrate, Feni (respondent No. 1) should not be declared to have been initiated and continued without lawful authority and of no legal effect and/or why such other or further order or orders should not be passed as to this Court may seem fit and proper.
2. At the time of issuance of the Rule on 18.11.2013, all further proceedings of Certificate Case No. 18 of 2012 then pending in the Court of General Certificate Officer and Executive Magistrate, Feni was stayed initially for a period of 6(six) months from date and subsequently from time to time the period of stay has been extended.
3. Facts for disposal of the Rule as stated in the Writ Petition, in short, are that 82(eighty two) decimals of land of C.S. Plot Nos. 21, 22, 23 and 27, C.S. Khatian Nos. 81, 226 and 202 corresponding to S.A. Plot Nos. 21, 25, 31, 32 and 33, S.A. Khatian Nos. 358, 540 and 607 under Birinchi Mouza, Feni Sadar, Feni originally belonged to respondents No. 5-8 and their mother Foyzer Nessa who incorporated a company named M/S. Ananda Biscuit Private Limited (respondent No. 4) and the biscuit factory building was established inside the said land. They got an electricity connection from office of the Executive Engineer, Power Distribution Division, Bangladesh Power Development Board, Feni (the respondent No. 3) under account No. F/13. The respondent No. 3 installed Meter No. 56991154 for calculation and record of the consumed electricity bills.
4. It has been stated in the Writ Petition that though the factory building of the respondent No. 4-company was established inside the said land but it was never vested to the company and belonged to respondents No. 5-8 and their mother as their personal property. The respondents No. 5-8 obtained a loan facility from Rupali Bank Limited, Feni Branch, Feni for their biscuit manufacturing business purpose and ultimately they failed to continue their business and production of company was shut down in the year, 1999. Since a huge amount of electricity bill of respondent No. 4-company was due, respondent No. 3, office of the executive engineer on 31.05.1999 disconnected the electricity connection therefrom. Neither the petitioner was a shareholder of respondent No. 4-company nor she had any relation with it. The petitioner was not aware of arrear electricity bills of respondent No. 4-company as because no demand notice of such dues ever was hanged over on the factory premises or no notice was published to that effect from the office of the respondent No. 3 till 2011. The respondents No. 5-8 and their mother obtained loan facility to run the business of the respondent No. 4-company from Rupali Bank Limited, Feni Branch, Feni upon mortgaging 5.92 acres of land along with 82 decimals of land from Birinchi Mouza wherein the biscuit factory building was established.
5. At one stage of their business when the respondents No. 5-8 failed to continue the factory as well as their business, they decided to sell the land for repayment of the loan taken from Rupaly Bank Limited. Accordingly, the respondent No. 6 sold 30 decimals of land out of 82 decimals of land from Birinchi Mouza to husband of the petitioner, Shamsul Hoque Mojumder through a registered sale deed No. 1900 dated 25.02.2009. Thereafter, the respondent No. 7 also sold 15 decimals of land therefrom to the petitioner by registered deeds No. 8960 and 843 dated 25.10.2010 and 30.01.2011 respectively.
6. Accordingly, the petitioner and her husband became the owner and possessor of 30+15=45 decimals of land out of 82 decimals of land from the aforesaid plots and khatians. Meanwhile, the respondents No. 5-8 repaid their entire liability to Rupali Bank and it executed a deed of redemption and the property was redeemed. Md. Shamsul Hoque Mojumder, husband of the petitioner died on 19.03.2009 leaving behind the petitioner as his wife, 5(five) sons and 2(two) daughters who became the owner and possessor of the said land by virtue of inheritance. While the petitioner and her sons and daughters have been possessing and enjoying the said land as true and lawful owner, all on a sudden, the petitioner got a notice on December, 2012 issued under section 7 of the Act, 1913 and for the first time she came to know that the impugned certificate proceedings has been initiated against her for recovery of arrear electricity bills, surcharge, and interest amounting to Taka 83,06,074.00 (taka eighty three lac six thousand seventy four only). After obtaining the aforesaid notice, the petitioner rushed in the certificate court and found that the respondent No. 3 sent a written requisition on 24.11.2012 to the respondent No. 1 in a prescribed form for recovery of arrear electricity bills consumed by the respondent No. 4-company under account No. F/13, Meter No. 56991154 for the period of March, 1998 to October, 1999. Thereafter, on receiving such requisition the respondent No. 1 on 12.12.2012 signed a certificate alleging that the demand is due to the petitioner but she never consumed any electricity under account F/13, Meter No. 56991154. She purchased only 15 decimals of land out of 82 decimals of land wherein the respondent No. 4-company established a biscuit factory and consumed the electricity. The General Certificate Officer without considering the mandatory provision of law mainly the Act, 1913 signed a certificate upon receiving requisition from the respondent No. 3 which has been registered as Certificate Case No. 18 of 2012. A petition was filed at the instance of the petitioner denying the liability of the demanded bill in the certificate court. The petitioner neither purchased any share of the respondent No. 4-company nor had any relationship with the said company. The respondent No. 4-company is still in existence and the respondents No. 5-8 are still acting as shareholders and directors of the said company and the company has not been winding up in accordance with law.
7. The petitioner being aggrieved by and dissatisfied with the certificate proceedings initiated against her moved this Court and obtained the Rule Nisi and the order of stay as stated above.
8. The Rule has been contested by the respondent No. 3, through Mr. A.Z.M. Mohiuddin, learned Advocate who filed an Affidavit-in-Opposition, on behalf of the respondent No. 3, controverting the statements of the Writ Petition contending, inter alia, that having been fully aware of the arrear electricity bills of respondent No. 4, Ananda Biscuit Factory, the petitioner purchased the said factory together with 82 decimals of land whereupon the factory was established. Therefore, the petitioner is liable to pay the arrear bills.
9. It has further been stated in the Affidavit-in-Opposition that the petitioner, by a representation dated 18.06.2012, addressing to the respondent No. 3 amongst others stated that the liability of the said arrear electricity bill may be reduced upon waving the surcharge imposed thereon and prayed 1(one) year time for making the payment of the principal amount of the said arrear electricity bills by 12 (twelve) monthly equal installments and also prayed for changing the electricity connection into her name and therefore she cannot be absolved from the liability of the respondent No. 3.
10. Mr. Minhazul Hoque Chowdhury, learned Advocate appearing for the petitioner submits that according to the provisions of section 6 of the Act, 1913, it is the duty of the Certificate Officer having been received of a written requisition to determine as to whether the demand is recoverable and that recovery of such demand is not barred by law but in the instant case the respondent No. 1 without mentioning anything about his satisfaction signed a certificate and initiated the proceedings against the petitioner and as such, the initiation and continuation of the certificate proceedings is liable to be declared to have been initiated without lawful authority and is of no legal effect.
11. The learned Advocate next submits that as per provisions of section 54A of the Electricity Act, 1910 the charges for supply of energy or any other outstanding against a consumer under the said Act shall be recoverable as an arrear of land and the period of limitation for such realization of area of revenue is governed by Article 110 of the Limitation Act, 1908. Wherein 3(three) years limitation period has been prescribed from the date of arrear and that view of the mater since the certificate proceeding has not been initiated within the stipulated period of limitation, the initiation and continuation of the certificate proceedings is liable to be declared to have been initiated without lawful authority.
12. The learned Advocate next submits that according to the provision of section 56 of the Act, 1913 the provisions of Limitation Act, 1908, except sections 6-9 of the said Act, is applicable to all proceedings under PDR Act and as such the demand of the certificate holder is barred by law of limitation and the right whatever may be of the respondent No. 3 has been extinguished by operation of law stipulated therein.
13. The learned Advocate further submits that from the facts and circumstances it is abundantly clear that the petitioner did not consume any electricity as demanded and as such if any allegation of arrear bills, the respondent No. 3 can claim against the respondent No. 4-company who consumed the electricity under account No. F/13, Meter No. 56991154.
14. The learned Advocate lastly submits that the Certificate Court has initiated the proceeding without considering the provision of law mechanically and therefore the proceeding is liable to be declared to have been initiated without lawful authority and is of no legal effect.
15. The learned Advocate for the petitioner to substantiate his submission has referred to a decision in the case of Daulatpur Ice Cold Storage Ltd. and another Vs. Chairman, Power Development Board and others reported in 57 DLR(HCD)(2005)109 with regard to the provision of limitation.
16. The learned Advocate for the respondent No. 3, reiterated the facts as stated in the affidavit-in-opposition as his submissions who seeks to rely on the decision in the case of Ram Chandra Prasad Sharma and others Vs. State of Bihar and another reported in AIR(1967)(SC)349 (V 54 C 66).
17. Let us examine the provisions of law of the Electricity Act, 1920. Clause (c) of section 2, which is the definition Clause of consumer, reads as follows:
(c) “consumer” means any person who is supplied with energy by a licensee, or who is the owner or occupier of the premises which are for the time being connected for the purposes of a supply of energy with the works of a licensee.
18. Having considered the provisions of law particularly the definition of consumer, it appears that the name of the petitioner cannot be treated as a consumer of the respondent No. 3 since she never used the electricity provided in the name of the respondent No. 4-company under a meter and as such the respondent No. 3 cannot claim arrear bills from the petitioner and the certificate court without determining the actual debtor cannot demand the due bill from the petitioner. On that count, we are of the view that the very initiation and continuation of the certificate proceedings against the petitioner is without jurisdiction.
19. With regard to the submission of the learned Advocate for the respondent No. 3 that the
Writ Petition No. 11403 of 2013