Decided on July 30,2001

Titas Gas Transmission And Distribution Company Ltd Appellant
Habib Oil Mills (Bd) Ltd Respondents


NK CHAKRAVARTTY,J - (1.) This Rule at the instance of defendant-petitioner namely, Titas Gas Transmission and Distribution Company Ltd. is directed against the judgment and Order No. 23 dated 14-11-2000 passed by the learned Subordinate Judge, 4th Court Dhaka in Title Suit No. 276 of 1999 allowing an application for temporary mandatory injunction under section 55 of the Specific Relief Act, directing the defendant petitioner to restore gas connection to the factory of the plaintiff opposite party within 7 days from the date and to submit subsequent gas bills as per meter reading.
(2.) The short facts relevant for the purpose of disposal of this Rule is, that there was an agreement signed and executed by the Titas Gas Transmission and Distribution Company Ltd. with Mr. Habib Oil Mills, (BD) Ltd. on 1-2-1979 in between the parties and accordingly, the present petitioner (Oil Mills) had been furnishing gas bills and the present opposite party (Gas Company) to the petitioner for the aforesaid consumption as per meter reading for the last about more than two decades on payment of gas bills through actual meter reading. The further case of the defendant petitioner is, that the Oil Mills had two boilers in the mills. The Chief Inspector of Boiler has certified one having 3 tons of steam per hour and the other of 1.5 tons per hour, as from 1992 one boiler having capacity of 3 tons was kept standby for want of work but the Gas Company was not satisfied for such standby and creating pressure for disconnection and on 12-3-1997 this boiler was disconnected by force by the authorised contractor of the Gas Company ignoring the protest of disconnection and there remained the boiler of having 1.5 tons capacity per hour and naturally the gas bill should come down because of standby and disconnection of 3 tons boiler but contrarily, the Gas Company, for the reasons best known to them, started submitting excess payment though the petitioner paid the bills from February 1994, to November 1994 with objection. The Gas Company from December, 1995 started submitting gas bills more than double and sometime triple than the actual meter reading. When asked for the reasons the Gas Company told that they were calculating and preparing the bills on 24 hours basis as if the mills was functioning 24 hours though it was hardly running 8 hours a day. Several representations were addressed to the Gas Company requesting for correction of the bills and in reply they disclosed through sending a letter on 20-3-1996 to the Oil Mills that there was a meeting called 300th Board Meeting held on 5-12-1993 and in the said meeting the rate of gas charge had been enhanced and the consumers concerned have to pay gas bills as per the decision of the said meeting. It was further told and asserted that the Oil Mills has to execute undertaking on 50 Taka stamp for enjoying gas facilities and accordingly, the Oil Mills headed by the Managing Director gave the undertaking on 23-3-1996. So, it is seen that in the second bond also it has been stated that M Habib Mills (BD) Ltd. is bound to agree to any review decision to be taken by Gas Company and ourselves. In such position it cannot be said that the decision taken in the 300th Board Meeting raising gas charge from 50% to 75% is binding on the Oil Mills. Though the decision taken on the 300th Board Meeting is not applicable in the case of refinery sector like the present petitioner (Oil Mills) practically, the Oil Mills paid the Gas Bills from February, 1994 to July 1997 at the high excess and unusual rate under compelling circumstances vis-a-vis to keep the Mills running although on protest in writing several times and thus an amount of Taka 47,77,250.18 was paid in excess payment than the actual meter reading under protest. Challenging the aforesaid illegal realisation of gas bills a writ petition being, number 7630 of 1997, was filed before the High Court Division and the Division Bench of the Hon'ble Supreme Court was pleased to issue Rule Nisi on 11-12-1997. But ultimately, their Lordships on the Writ Bench after hearing the parties gave direction to the Gas Company to issue gas bills as per meter reading from August, 1997 with further direction not to disconnect the gas line or interfere in the business in any way whatsoever till disposal of the Rule. But ultimately, the Rule was disposed of with the observation that the disputed question of the facts are involved in the petition which for the purpose of proper adjudication would require adducing evidence and it would be a best course on the part of the Oil Mills to go to the civil Court for decision and thus the Rule was discharged on 3-6-1999 and against the order the Oil Mills went to the Appellate Division but in vain. Then the Oil Mills instituted a Title Suit No. 276 of 1999 on payment of maximum court fees with a petition under Order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure seeking direction upon the gas company to submit gas bills according to actual meter reading but not exceeding the meter reading and further, not to disconnect the gas line till disposal of the suit, was filed and moved and the learned Subordinate Judge, 4th Court, Dhaka was pleased to issue a show cause upon the Gas Company as to why temporary injunction as prayed for shall not be granted. The Gas Company as defendant appeared and filed the written objection on 17-6-2000 but no claim by way of arrear dues was made in the written objection even to a single amount. It means there is no outstanding bill against the instant petitioner (Oil Mills). It was further stated that the Gas Company regularly furnished monthly bills as per meter reading from August, 1997 to July, 2000 and thus the mills duly paid the gas bills and that there was no question to be a defaulter. Before hearing of the injunction petition the gas company headed by some 10/12 persons went on 7-8-2000 to the mills site and in the name of servicing the machineries entered into the mills premises and disconnected the gas line on the day without any notice of show cause. Finding no other way, the Oil Mills filed a petition on 17-8-2000 under section 55 of the Specific Relief Act seeking mandatory injunction against the illegal disconnection of gas line and for restoration of the same. The Court below upon hearing the parties passed an order on 14- 11-2000 directing the gas company to restore the gas line within 7 days from 14-11-2000, which is the impugned order in the instant revision application before this Court.
(3.) Being aggrieved by and dissatisfied with the impugned judgment and order dated 14-11-2000 the defendant-petitioner moved this Court and obtained the present Rule with stay order.;

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