IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. 6911 OF 2005
IN THE MATTER OF:
An application under Article 102 of the Constitution of the People’s Republic of Bangladesh
-And-
IN THE MATTER OF:
The Bangladesh Petroleum Act, 1974 (Act LXIX of 1974), the Bangladesh Petroleum Corporation Ordinance, 1976 (Ordinance No. LXXXVII of 1976) the Bangladesh Oil, Gas and Mineral Corporation Ordinance, 1985 (Act XXI of 1985) the Bangladesh Environment Conservation Act, 1995 and the Environmental Conservation Rules, 1997 Penal Code 1860; Petroleum Policy, 1993 and the National Energy Policy, 1995.
-And-
IN THE MATTER OF:
1. Bangladesh Environmental Lawyers Association (BELA), Road # 3, House # 15A, Dhanmondi R/A, Dhaka, represented by its Director (Programs) S. Rizwana Hasan.
2. Ain O Salish Kendra (ASK) 26/3, Purana Paltan Line, Dhaka 1000 represented by its Executive Director Sultana Kamal.
3. Odhikar, Road 117, House 35, Gulshan, Dhaka represented by A. S. M. Nasiruddin Elen, office in charge
.... Petitioner
- Versus -
1. Bangladesh represented by the Secretary, Energy Division, Mineral of Power Energy and Mineral Resources, Bangladesh Secretariat, Dhaka.
2. The Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Dhaka.
3. The Secretary, Ministry of Environment and Forest, Bangladesh Secretariat, Dhaka.
4. Bangladesh Oil, Gas & Mineral Corporation (Petrobangla), of Petro Centre, 3 Kawarn Bazar C/A, Dhaka 1215 represented by its Chairman.
5. Bangladesh Petroleum Exploration and Production Company Ltd. (“BAPEX”) Shahjalal Tower, 4th Floor 80/A-B, Siddeshwary Circular Road, Malibagh, Dhaka-1217 represented by its Managing Director.
6. The Director General, Department of Environment, Paribesh Bhaban, Agargaon, Dhaka.
7. The Deputy Commissioner, Sunamganj District Sunamganj
8. Upazila Nirbahi Officer, Office of the Upazila Nirbahi Officer, Upazilla Doarabazar.
9. Board of Investment (BOI), a statutory body established under the Investment Board Act, 1990 having its office at Jiban Bima Tower, 73 Dilkusha C/A, Dhaka represented by its Chairman.
10. Nido Resources (Bangladesh) Ltd. 11 Mohakhali C/A, Second Floor, Dhaka-1212 represented by its President.
..... Respondents.
- And -
IN THE MATTER OF:
A joint Venture Agreement dated 16 October, 2003 between respondents No. 5 and 10 for the Development and production of Petroleum from the so-called Marginal/Abandoned gas Fields of Chhatak and Feni (Annexure-A) without lawful authority, in violation of the Petroleum Act, 1974 and in derogation of the Constitution in a non-transparent manner with mala fide intention to confer undue benefit to respondent No. 10 and its allies in the public agencies to detriment of the country and in gross abuse of power and process.
- And -
IN THE MATTER OF:
Ommission to discharge statutory duties by the respondents No. 1 to 9 to secure proper compliance with the applicable safety measures and proper monotoring of exploration activities by respondent No. 10 to prevent successive blow out during exploration of gas by the respondent No. 10 and gross failure to take appropriate measures against the respondent No. 10 to realize recover adequate compensation for loss of country’s natural resources damage to public and private properties and incompetence of the respondent No. 10 in exploring gas in Chhatak (West).
- And -
IN THE MATTER OF:
Payment of money to respondent No. 10 an account of price of gas extracted from Feni “marginal” gas field without determination of the rate and without recover of damages and compensation for the damage and destruction of country’s natural resources, environment and properties of general public.
- And -
IN THE MATTER OF:
Gross negligence of respondent No. 10 in undertaking petroleum operation in a diligent, conscientious and workmanlike manner as required under the law.
Present:
Mr. Justice Md. Fazlur Rahman
The 12th September, 2005
Dr. Kamal Hossain with
Mr. M. Enayetur Rahman and
Mr. Tanjib-ul-Alam .... For the Petitioners
Mr. Zaman Akhter Bulbul, DAG ...... For the Respondents.
Let a Rule Nisi be issued calling upon the Respondents to show cause as to why impugned joint Venture Agreement dated 16 October, 2003 concluded by the respondent No. 5 with the respondent No. 10 for the development and production of petroleum from the so-called marginal/abandoned gas field in Chhatok and Feni (Annexure-A) should not be declared to have been made without lawful authority and is of no legal effect and why the impugned JVA (Annexure-A) should not be treated as being nullity in the eye of law as having been procured through flawed process effected and induced by resorting to fraudulent and forged document by the respondent No. 10 and or why it should not be treated illegal having come to an end as a result of material breach of the statutory and legal obligations being contrary to the Bangladesh Petroleum Act, 1974 the Environment Consergvation Act, 1995 and the constitution of why the respondent No. 1, 2 and 3 and/or 5 should not be directed to take effective legal measures to protect the public property namely subject matter of the JVA by requiring compliance by respondent No. 10 discharge statutory duties to mitigate the damage and losses caused by its failure to discharge its obligations and to refrain from asserting any rights under JVA or receive any payment hereunder and/or why the respondent nos. 1, 2, 3 and 5 should not directed to take immediate effective measures to realize full compensation for destruction of the valuable natural gas resources and the damage to live and property and environment by the blow outs resulting from the respondent No. 10’s failure to discharge its legal obligations and/or why the Joint Venture Agreement should not be declared to have been made in violation of the provision of Articles 143, 145, and 149 of the Constitution and/or such other or further order or orders that may be passed as this court may seem fit and proper.
Pending disposal of the Rule, Respondents No. 1 to 9 are restrained from making any payment of respondent no. 10 in respect of Feni Gas Field or on any other account up to 221005.
Respondent No. 1, 4 and 5 are also directed to submit investigation reports dated 7 February 2005, 13 April 2005, 4 June 2005, 13 August 2005, 28 August 2005 and 3 September 2005, to the Court within 15 days of receipt of this order, submit a report within 45 days of receipt of this order specifying the measures that have been taken against respondent No. 10 to recover compensation for the successive blow outs; and submit name and particulars of the individuals and corporate shareholders of Niko Resources Ltd. and Niko Resources (Bangladesh) Ltd. and Freeze all bank accounts of respondent No. 10 maintained in Bangladesh.
The Rule is made returnable within 4 (four) weeks from date.