Sanowara Drinks & Beverage Industries Limited Vs. Bangladesh Power Development Board & Others 2017 (2) LNJ 68

Case No: Writ Petition No. 12086 of 2006

Judge: J. B. M. Hassan. J.

Court: High Court Division,

Advocate: Mr. Md. Ashik Al Jalil, Mr. A.M. Masum, Md. Nasir Shikder,

Citation: 2017 (2) LNJ 68

Case Year: 2017

Appellant: Sanowara Drinks & Beverage Industries Limited

Respondent: Bangladesh Power Development Board & Others

Subject: Writ Jurisdiction

Delivery Date: 2017-08-23

 

HIGH COURT DIVISION

 

(SPECIAL ORIGINAL JURISDICTION)

 

 

 

Moyeenul Islam Chowdhury, J

And

J. B. M. Hassan, J

Judgment on

07.03.2017

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Sanowara Drinks and Beverage Industries Limited represented by its Managing Director, Chittagong.

. . . Petitioner

-Versus-

The Bangladesh Power Development Board represented by its Chairman and others.

. . . Respondents

 

Constitution of Bangladesh, 1972

 

Article 102(2)(a)(i)(ii)

 

Bangladesh Energy Regulatory Commission Act (XII of 2003)

 

Section 40

 

On perusal of the letter dated 12.07.1998, we do not find any condition within its four corners for settlement of dispute between the parties in any manner. Therefore, our considered view is that proviso to section 40 of the Act, 2003 is not applicable regarding this dispute as raised by the writ petitioner and that being so, the subject matter of the Rule Nisi as to determination of the impugned final bill has to be settled in accordance with the provisions of section 40 of the Act, 2003 read with the Regulations, 2014. Although at the time of filing the writ petition this provision was not in existence and the petitioner had to file the writ petition but in the meantime the efficacious alternative forum having been provided for by section 40 of the Act, 2003 the petitioner has to avail himself of the said forum in accordance with the provisions therein.          . . . (12 and 13)

 

Titas gas (T & D) Company Limited Vs. Bangladesh Energy Regulatory Commission (BERC) represented by its Chairman and others, 5 ALR-2015(1) page 292 and an unreported decision passed in Writ Petition No.16010 of 2012 ref.

 

Mr. Md. Ashik Al-Jalil, Advocate

 

. . . For the petitioner

 

Mr. A. M. Masum with

 

Mr. Nasir Shikder, Advocates

 

. . . For the respondent No.1

 

JUDGMENT

 

J. B. M. Hassan, J. This Rule Nisi was issued calling upon the respondents to show cause as to why the final notice issued under the signature of the respondent No.3 dated 19.06.2006 (Annexure-J2) for disconnection of electricity line of the petitioner for non-payment of arrear bill for the period of 30.09.2003 to 30.04.2006 should not be declared to have been made without lawful authority and is of no legal effect and why they should not be directed to replace the old meter by a new meter and/ or such other or further order or orders passed as to this Court may seem fit and proper.

 

2.            Pertinent facts leading to issuance of the Rule Nisi, inter alia, are that the petitioner, a private limited company, is engaged in bottling various types of soft beverages (non-alcoholic drinks) as well as processing of ice-cream and supplying the same to the local market having its factory at Chittagong Industrial Area, Arakan Roak, Chittagong which was set up in the year, 1998. The petitioner got electricity connection in the year, 1998 from the Bangladesh Power Development Board (the respondent No.1) having the meter, in particular, Meter Type KWH. No. 59807297 and Meter Type KVARH, NO. 59807344. At the relevant time of installation of electricity connection there being no new meter, the respondent set up an old meter with an assurance to replace the same as early as available. Subsequently, the petitioner approached the respondent No.1 on several occasions to set up a new meter as the old meter was creating disturbance and that cessation of power supply had occurred on six different occasions due to metering problem. Further, the petitioner’s meter had the multiplication factor 100 specified on the outer body and it was the number employed from the time of installation in 1998 until August, 2003. But from the month of September, 2003 the number 124 was employed as the multiplication factor and thereby substantially increasing the bill of the petitioner without any objective basis and in an arbitrary manner.

 

3.            All of a sudden, the petitioner received a letter regarding arrear bills amounting to Tk.15,83,084.23 for the period from September, 2003 to December, 2005 and thereafter, a final notice dated 19.06.2006 was served upon the petitioner demanding bills amounting to Tk. 16,80,790/- from 30.09.2003 to 30.04.2006 directing to pay within last payment date of the running month bill, failing which, the connection would be snapped. On 01.07.2006 the electricity connection of the petitioner was snapped due to mechanical fault but subsequently it was not restored by the respondent on the plea of non payment of their demand made on 19.06.2006. In the circumstances, the petitioner filed this writ petition and obtained the present Rule Nisi on 06.02.2007. The petitioner also obtained an interim order of stay in respect of demand and also got restoration of the electricity line within seven working days from the date of receipt of the order as per interim order of direction.

 

4.            The Bangladesh Power Development Board (the PDB) as the respondent No.1 appearing in the Rule Nisi has filed an affidavit-in-opposition mainly questioning maintainability of the writ petition contending, in brief, that section 40 of the Bangladesh Energy Regulatory Commission Act, 2003 (the Act, 2003) has provided a procedure for settling  the dispute between the Licensee and the Consumer and therefore the writ petitioner having alternative forum within the ambit of section 40 of the said Act, 2003 the present writ petition is not maintainable.  It is further contended that in the meantime the Bangladesh Energy Regulatory Commission (the Commission) made Regulations, namely, the Bangladesh Energy Regulatory Commission Dispute Settlement Regulations, 2014 (the Regulation, 2014) in exercise of the powers conferred by the sections 59 and 60 of the Act, 2003 read with section 40 thereof and that the Regulations have introduced a detailed procedure for settlement of the dispute between the Licensee and the Consumer including a provision to pass interim order by the Commission.

 

5.            Mr. Md. Ashik Al-Jalil, the learned Advocate appearing for the petitioner submits that in an arbitrary manner the respondent No.1 enhanced the multiplication factor from 100 to 124 without any objective basis and therefore the impugned final bill can not be sustained in the eye of law. He further submits that the demand has been made without any physical examination of the meter and without giving the petitioner an opportunity of being heard by issuing a show cause notice.

 

6.            Mr. A. M. Masum, the learned Advocate with Mr. Nasir Shikder, the learned Advocate appearing for the PDB (respondent No.1), at the very outset questions the maintainability of the writ petition drawing our attention to section 40 of the Act, 2003 in that the provision for settling the dispute between the Licensee and Consumer having been provided by way of arbitration, the petitioner cannot maintain this writ petition. He further contends that the demand of final bill being an issue involving disputed question of facts, can not be adjudicated in this writ jurisdiction. In support of his submissions, the learned Advocate refers to the case of Titas Gas (T&D) Company Limited Vs. Bangladesh Energy Regulatory Commission (BERC) represented by its Chairman and others reported in 5ALR -2015(I) page 292 and an unreported judgment passed by a Division Bench in writ petition No. 16010 of 2012 wherein one of us was a party.

 

7.            In reply to the aforesaid submissions, Mr. Md. Ashik Al-Jalil submits that section 40 has been introduced by the Act, 2003 and that in view of its proviso, this provision as well as the cited cases will not be applicable in this particular case inasmuch as the agreement between the Licensee and the petitioner-Consumer was executed prior to enactment of the Act, 2003 i.e in the year, 1998.

 

8.            We have gone through the writ petition, affidavit in-opposition filed by the respondent No.1, relevant laws and the cited cases.

 

9.            Maintainability of the writ petition having been raised, we consider that it should be decided first before entering into the merit of the writ petition. In this regard, it is now settled by the consistent judgments of the High Court Division as referred to by the learned Advocate for the respondent that section 40 having been provided by the Act, 2003, the dispute between the Licensee and the Consumer has to be settled in accordance with that particular provision. Expressing agreement with these judgments, Mr. Jalil has pointed out that the petitioner obtained the connection of the electricity line in the year 1998 pursuant to an agreement and the proviso to section 40 of the Act, 2003 excludes its applicability in respect of agreement executed prior to enactment of the said provision. Therefore, to appreciate his submission let us first scan the said provisions of section 40 of the Act, 2003 which runs as follows:

 

Kwgkb KZ©„K mvwjm-gxgvsmv

ÔÔ40| (1) mvwjm AvBb, 2001(2001 m‡bi 1 bs AvBb) ev Ab¨ AvB‡b hvnv wKQyB _vKzK bv †Kb, jvB‡m›mx‡`i g‡a¨ A_ev jvB‡m›mx I †fv³vi g‡a¨ D™¢yZ †h †Kvb weev` gxgvsmvi Rb¨ Kwgk‡bi wbKU †cÖiY Kwi‡Z nB‡e:

Z‡e kZ© _v‡K †h, GB AvBb Kvh©Ki nBevi Ae¨vwnZ c~‡e© †Kvb †emiKvix †Kv¤úvbxi mwnZ miKvi ev miKv‡ii †Kvb ms¯’vi GbvwR© msµvš— Pyw³ m¤úvw`Z nBqv _vwK‡j, we‡iva gxgvsmvi †¶‡Î D³ Pyw³i kZ©vejx cÖ‡hvR¨ nB‡e|

(2) Kwgkb mvwjmKvix wnmv‡e ¯^xq D‡`¨v‡M c`‡¶c MÖnb Kwiqv †iv‡q`v` cÖ`vb Kwi‡Z cvwi‡e ev we‡iv‡ai wb¯úwË Kwievi Rb¨ mvwjmKvix wb‡qvM w`‡Z cvwi‡e|

(3) D³i“c gxgvsmv Kwievi wbqg I c×wZ cªweavb Øviv wba©vwiZ nB‡e|

(4) Kwgkb KZ©„K wbhy³ mvwjmKvix Zvnvi †iv‡q`v` Kwgkb eive‡i Dc¯’vcb Kwi‡e Ges Kwgkb Dnvi wfwˇZ wbgi“c h_vh_ Av‡`k cÖ`vb Kwi‡e, h_v:-

(K) †iv‡q`v` Aby‡gv`b I ev¯—evqb;

(L) †iv‡q`v` i` ev ms‡kvab; ev

(M) mvwjmKvix KZ„©K c~bwe©‡ePbvi Rb¨ †iv‡q`v` †cÖiY|

(5) Kwgkb KZ©„K cÖ`Ë †iv‡q`v` ev Av‡`k Pyovš— ewjqv MY¨ nB‡e|

(6) Kwgkb KZ©„K cÖ`Ë †iv‡q`v` ev Av‡`k Ggbfv‡e Kvh©Ki nB‡e †hb Dnv †`Iqvbx Av`vj‡Zi GKwU wWµx|

(7) GB As‡ki Aaxb Kvh©aviv PjvKvjxb †h †Kvb mgq ev Dnv ïi“ Kwievi c~‡e© †h †Kvb mgq Kwgkb Z`KZ©©©„K h_vh_ we‡ewPZ AšÍeZ©xKvjxb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|ÕÕ

 

10.        On a plain reading of the aforesaid provisions, it appears that proviso to section 40 stipulates an exception in that if the agreement executed prior to enactment of the Act, 2003, incorporates any condition for settling the dispute between the License and the Consumer that will prevail over the procedure provided in section 40 of the Act, 2003 and otherwise the procedure contained in section 40 is applicable in all the cases. Therefore, let us see as to whether the petitioner has any agreement prior to enactment of section 40 of the Act, 2003 and that whether it stipulates any condition for settling the dispute between the parties.

 

11.        In the Anexure-A to the writ petition, we find that the PDB (the respondent No.1) issued a letter on 12.07.1998 approving the line on the basis of which the petitioner got the electricity connection. Although Mr. A. M. Masum, the learned Advocate for the respondent submits that this letter of approval is not an agreement within the requirement of proviso to section 40 of the Act, 2003 but we are of the view that since on the basis of this letter of approval containing certain conditions, the petitioner got the electricity line, in the absence of other document of formal agreement, this letter of approval has to be construed as an agreement between the respondent No.1 and the petitioner (License and Consumer respectively) for maintaining their electricity line and so, let us see whether it has provided any condition to settle the dispute between the parties. For better appreciation of the issue, we have thoroughly examined the letter of approval (Annexure-A) which is reproduced herein below:

 

Awdmt

 

wbev©nx cÖ‡KŠkjxi `ßi

 

weµq I weZib wefvM KvjyiNvU

 

PU«t †g‡U«vt, weD‡ev, PU«MÖvg

 

evsjv‡`k we`¨yr Dbœqb †evW©

 

BANGLADESH POWER DEVELOPMENT BOARD.

 

cÎ P‡g/weweKv/6.2/37                    ZvwiL 12/07/98

 

e¨e¯’vcbv cwiPvjK,

 

‡gmvm© mv‡bvqvi wW«sKm GÛ

 

‡efv‡iR BÛvwó«R wjwg‡UW,

 

AvivKvb †ivW, PU«MÖvg|

 

welqt ga¨gPvc we`¨yr ms‡hvM Aby‡gv`b cÖms‡M|

 

Rbve,

 

         D‡j­wLZ wel‡qi Av‡jv‡K Avcbv‡K Rvbv‡bv hvB‡Z‡Q †h, Avcbvi Av‡e`‡bi ‡cÖw¶‡Z MZ 06-07-98 Bs Zvwi‡Li m~Î bs-39 †gvZv‡eK gvbbxq cÖavb cÖ‡KŠkjx, wZib `w¶bvÂj weD‡ev, PU«MÖvg KZ©„K ga¨gPvc MÖvnK wnmv‡e 200 wet It †jvW we`¨yr ms‡hv‡Mi Aby‡gv`b w`qv‡Qb| we`¨yr ms‡hvM MÖn‡bi c~‡e© wb‡gœ ewY©Z kZ©vejx gvwbqv Pjv nB‡e g‡g© GKwU AsMxKvibvgv AÎ `߇i †ck Kwi‡Z nB‡e|

 

K) ms‡hvwRZ †jvW Aby‡gvw`Z †jv‡Wi g‡a¨ mxwgZ ivLv|

 

L) we`¨yr AvBb, weD‡ev‡W©i †Uwic wewa Ges mg‡q mg‡q RvixK…Z Ab¨vb¨ wb‡`©kvejx gvwbqv Pjv|

 

M) MÖvnK AvswMbvq weD‡ev‡W©i ¯’vwcZ hš¿cvwZ wbivcËv MÖvnK KZ©„K wbwðZ Kiv| hš¿cvwZi †Kvb Awbó ev †Lvqv †M‡j Zvnvi ¶wZcyib cÖ`vb Kiv|

 

N) weD‡ev‡W©i cÖ‡qvR‡bi wcK-AvIqvi wewa wb‡la Ges †jvW †kwWs gvwbqv Pjv|

 

O) MÖvnK cÖv‡š— cvIqvi d¨v±i Kgc‡¶ 0.95(j¨vM) eRvq ivLv|

 

P) weD‡ev‡W©i Aby‡gv`b e¨ZxZ MÖvnK Dc‡K‡›`ªi cwieZ©b ev cwiea©b bv Kiv|

 

Q) MÖvnK AvswMbvq wgUvwis Gi Rb¨ weD‡ev‡W©i Pvwn`v †gvZv‡eK wgUvwis BDwbU ¯’vc‡bi Rb¨ webv fvovq GKwU ¯^Zš¿ K¶ cÖ`vb Kiv|

 

R) cÖwZôv‡bi gvwjKvbv cwieZ©b nB‡j Aek¨B bZyb Kwiqv Pyw³cÎ ¯^v¶i Kiv|

 

ga¨gPvc MÖvnK wnmv‡e 200 wKt IqvU †jvW ms‡hvM †bIqvi Rb¨ RvgvbZ wej eve` wej bs 01 UvKv 1,20,000,00(GK j¶ wek nvRvi) gvÎ| Ges gvjvgv‡ji LiP eve` wej bs 815   UvKv 14350/82 wba©vwiZ e¨vsK 27-07-98 Bs Zvwi‡Li c~‡e© cwi‡kva Kwi‡Z nB‡e| wej mg~n cwi‡kva Kwievi ci wewa Abyhvqx GbvwR© wgUvi ¯’vc‡bi cÖ‡qvRbxq e¨e¯’v MÖnb Kiv nB‡e|

 

ab¨ev`v‡š—,

 

¯^v/-A¯úó

 

12/07/98

 

wbe©vnx cÖ‡KŠkjx

 

weµq I weZib wefvM KvjyiNvU

 

12.        On perusal of the aforesaid letter dated 12.07.1998 (Annexure-A), we do not find any condition within its four corners for settlement of dispute between the parties in any manner. Therefore, our considered view is that proviso to section 40 of the Act, 2003 is not applicable regarding this dispute as raised by the writ petitioner and that being so, the subject matter of the Rule Nisi as to determination of the impugned final bill has to be settled in accordance with the provisions of section 40 of the Act, 2003 read with the Regulations, 2014 in the light of the view enunciated in the case  of Titas Gas (T&D) Company Limited Vs. Bangladesh Energy Regulatory Commission (BERC) represented by its Chairman and others reported in 5ALR -2015(I) page 292 and in an unreported judgment passed by a Division Bench in writ petition No. 16010 of 2012 wherein one of us was a party.

 

13.        Although at the time of filing the writ petition this provision was not in existence and the petitioner had to file the writ petition but in the meantime the efficacious alternative forum having been provided for by section 40 of the Act, 2003 the petitioner has to avail himself of the said forum in accordance with the provisions therein.

 

14.        With the above observations, the Rule Nisi is disposed of. The petitioner company may invoke the aid of section 40 of the Bangladesh Energy Regulatory Commission Act, 2003 read with the Bangladesh Energy Regulatory Commission Dispute Settlement Regulations, 2014 for settling the dispute between the petitioner and the respondent No.1.

 

Communicate the judgment and order to the respondents at once.

 

Ed.

 



Writ Petition No. 12086 of 2006