Orissa

Debagarh

CC/8/2014

Smt. Jayanti Naik,W/o-Jitendra Naik. - Complainant(s)

Versus

The District Manager, Odisha Agro industries Corporation Ltd. - Opp.Party(s)

Self

03 Jun 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

DEOGARH

Shri P.K. Dash, President ,Smt. Arati Das, Member and Shri P. C. Mahapatra, Member

 

1. Smt. Jayanti Naik,

Aged about 24 Yrs.

          W/O – Jitendra Naik,

R/O. – Subarnapali,

PO – Reamal,,

Dist.- Deogarh.                                                   …        Complainant.

 

1. The District Manager,

Orissa Agro Industries Corporation Ltd.,Deogarh,

At/PO/Dist. – Deogarh.

2. District Agriculture Officer,Deogarh,

   At/PO/Dist. – Deogarh.

3. The Managing Director,APICOL

Bhubaneswar.                                                  …              Opposite Party.

 

CD Case No.32/2014

Date of Hearing : 13.05.2015 , Decided on 03.06.2015.

 

               Counsel for the parties :

               For the Complainant               :         Nemo

               For the Opposite Parties         :         Nemo

                                                                      

 

O R D E R

 

PRATAP CHANDRA MAHAPATRA, MEMBER  – Complaint was filed alleging that the complainant, wife of Jitendra Naik  permanent resident of  village –  Subarnapali, PO – Khilei,,P.S/-Reamal  in the District of  Deogarh has not been paid the  Subsidy amount as per the declaration of the Government.

1.     

Brief facts of the case as contended by the complainant is that being motivated by the OPs he opted to set up an Agro Service Centre Project under Capital Investment Subsidy for Agro Enterprises in short hereafter termed as ASC within the jurisdictional limit of Krushi Sahayaka Kendra, Deogarh when he was told as to the fact that the project/scheme bears 50% subsidy on the total cost which shall be released within 90 days from the completion of the Project. The said subsidy amount was not released even after elapse of a period of 9 (Nine months) from the date of completion of the Project. It has been further contended that after lapse of 10(Ten) months Subsidy amount of Rs.4,38,342/- ( Rupees Four lakhs thirty eight thousand three hundred forty two  ) was released that comes around 40% as against the total cost of the Project being Rs.10,74,333/- vide office letter No.3733 (2) /Dtd.08.07.2014 of the office of the OP1.The complainant brought this deviation to the knowledge of OPs by several requests and personal approaches and not being duly reciprocated ,it is averred, served a notice to OPs on 26.08.2014 forwarding  copies thereof to the Chief Minister, Orissa and Collector, Deogarh. It has been alleged that due to nonpayment of nearly 10% of the assured subsidy, he is not able to repay the loan amount to the Bank and as such he has sustained financial loss, mental pain and agony due to deficient service not by releasing the legitimate dues, i.e. Rs.98,824 /-.  Hence the complaint Petition praying issue of direction to pay the differential subsidy of Rs.98,824/-(Rupees ninety eight thousand eight hundred twenty four ) along with 12% of interest and award of Rs.50,000/ (Rupees fifty thousand) towards compensation for harassment due to mental pain and agony and Rs.10,000/- (Rupees ten thousands) towards cost of litigation to Opposite parties.

 

Complainant has relied upon the following documents:

(i)       Copy of letter sponsoring of Loan Application for establishment of ASC project under CIS for Agril Enterprises under KSK Deogarh bearing memo no.761/01.10.2013 (Exbt.C-1);

(ii)     Copy of Invoice towards supply of materials under ASC Scheme in favour of complainant vide memo no.346(3)/04.11.2013 issued by DM, OAICL, Deogarh (Exbt.C-2); and

(iii)   Copy of Money Receipt bearing No.5306/Dtd.04.11.2013 issued by DM, OAICL, Deogarh.

 

2.      In response to Notice served on OP1 filed a Written Statement on 26.12.2014 according to which;

(a)    While making no comments to Paras 1 to 5 of the Complaint Petition, OP1 in response to averment in Para 6, has stated that soon after supply of all machineries he had forwarded all related documents to the office of the OP2 vide his office letter No. 04.11.2013.

(b)   As to averments in Para 7 & 8 it has been stated by OP1 that OP1 neither the authority to sanction the subsidy amount nor is he the authority to release and in response to Para 9, OP1 has admitted to have received a joint petition on 26.08.2014 in the context which he had forwarded to OP3 vide letter No.266/04.09.2014 with copies to OP2 and Managing Director, Orissa Agro Industries Corporation Ltd., Bhubaneswar (hereafter mentioned as M.D.OAICL in short) (Vide letter No.267(2)/04.09.2014, requesting OP3 to intimate reasons of sanction of less subsidy amount. M.D.OAICL have also reminded OP3 vide their letter No.9319/Dtd.03.12.2014. Since OAICL, a Govt.of Odisha Undertaking with its corporate office at Bhubaneswar and OP1 being its executive at Deogarh has effected supply of all types of agricultural machineries on Govt. subsidy Scheme as applicable to the beneficiaries sponsored by OP2 and has no authority either to sanction or release subsidy amount may be exonerated from charges leveled by the complainant.

(c)    Further, in the letter bearing No.457 of Dtd 05.02.2015 in response to C.D.Cases filed by complainants vide Case No.28/2014, 29/2014, 30/2014, 31/2014 and 32/2014 submitted by OP1, it has been contended that the said cases are liable to be rejected in view of the enclosed order copy of the decision of State Consumer Dispute Redressal Commission in CD Appeal No.828/1997.

OP1 has relied upon the following documents:

(i)       Copy of letter No.266/Dtd 04.09.2014 of office of the DM,OAICL, Deogarh (ExbtOP1-1);

(ii)     Copy of letter No.9320/Dtd. 03.12.2014 of the Project Manager, OAICL addressed to MD,APICOL (ExbtOP1-2);

(iii)   Quotation for Tractor/Power Tiller issued by DM,OAICL, Deogarh (ExbtOP1-3);

(iv)   Copy of judgment of Honorable State Commission, Odisha in CD Appeal No.828/1997(ExbtOP1-4).

 

3.      OP2 filed his written statement on 26.12.2014 wherein has very strongly denied the averment of the complainant as to motivation by OPs and has submitted that he has not motivated the complainant rather she applied for ASC through the Dealer after being motivated by him(Dealer). Paying no heed to the intimation of OP2, Complainant obtaining the Bank Application from the office through the beneficiary had submitted at Union Bank, Deogarh who in turn sanctioned the loan amount of Rs.10,74,333/-. It has been contended that according to Guide Line of Agriculture Policy,2013, ST/SC/Women category will get benefit of 50% subsidy under ASC/Capital Investment Scheme ( hereafter termed as CIS in short). No where it has been mentioned that such subsidy shall be released within 90 days. On receipt of documents from Bank & Bill Challans from OP1 joint Verification was made on 04.12.2013 and 18.01.2014 whereupon the DLC meeting was held on 30.01.2014 where the subsidy amount was approved and the Subsidy Recommendation Certificate ( in short SRC) was submitted to OP3 vide his office letter No.163/Dtd 14.02.2014. Objections pointed out by OP3 were complied vide letter No.471/Dtd 08.05.2014. It has been submitted that SRC  in favour of the complainant was made on the quoted amount of OP1 in his Quotation whereas, as according to the statement of the AAE,APICOL, subsidy amount has been arrived by OP3 upon Indicative Price. OP2 is only the recommending authority of the subsidy proposal. Under premise as above it has been prayed to exclude OP2 as Opposite Party.

4.      In the Written Statement filed by the OP3,interalia, it has been contended as follows:

(i)   The State Agriculture Policy Resolution-6 (APR-6) 1996, 2008 and 2013 prescribes the procedure for claiming subsidy. As per the said procedure, the entrepreneur has to apply to the KSK in the prescribed format to avail subsidy.

(ii) The State Level Committee (SLC in short mentioned hereafter))/DLC will consider and sanction the CIS amount and APICOL will release the subsidy to the financing banks/beneficiaries as applicable on the recommendation of SLC/DLC.

(iii)                   State Level Technical Committee (hereafter termed as SLTC) has approved price for various eligible implements on the basis of which subsidy amount is supposed to be calculated and placed before the DLC for approval. In the instant case KSK has not taken in to consideration the rate approved by SLTC while approving the project cost and recommending subsidy amount. For instance, the KSK has recommended Rs.1,60,000/- against Hydraulic Trailer and Rs.1,72,000/- against Axial Flow Thresher whereas the eligible cost approved by SLTC is Rs.95,000/- and Rs.1,41,600/- respectively for the above two items.

(iv)                   CIS will be disbursed @50% or 40% of the project cost as the case may be after the unit is completed; trial production is made in case of manufacturing unit and completion of the project in all other cases.

(v) On verification of records, the subsidy amounting to Rs.4,60,172/- was released after deducting 1% processing fee to the complainant based on the approved/eligible cost of various implements. Hence there is no short payment of subsidy.

(vi)                   Subsidy is not consumer goods. Hence, it is not coming under the purview of Consumer Disputes Redressal Forum.

OP3 has relied upon the following documents:

(a)    Copy of letter No.3727(2)/Dtd.08.06.2014 on release of CIS in favour of the complainant (ExbtOP3-1);

(b)   Copy of Extracts from Guide Line for ASC- Commercial Agri Enterprises (ExbtOP3-2);

(c)    Copy of application for sanction/disbursement of CIS for Agro Enterprises (ExbtOP3-3);

(d)   Evaluation/Valuation of fixed CI of Agro Enterprises (ExbtOP3-4);

(e)    Copy of letter No.422/Dtd.18.02.2015 of the Directorate of Agriculture & Food Production Department, Govt.of Odisha as to make/model/prices of Agril. Equipment’s for popularization under RKVY & other scheme (ExbtOP3-5);

(f)    Copy of Quotation issued by DM,OAICL, Deogarh for Tractor/Power Tiller (ExbtOP3-6);

(g)    Copy of Tax Invoice bearing No.71979 of dtd.01.11.2013 issued by DM,OAICL, Deogarh (ExbtOP3-7);

(h)   Copy of Tax Invoice bearing No.71980 of dtd.01.11.2013 issued by DM,OAICL, Deogarh (ExbtOP3-8);

(i)     Copy of Agreement made between District Agricultural Officer, Deogarh and the complainant (ExbtOP3-9).

 

Under the above circumstances, as per contention of OP3, APICOL-OP3 has neither any ulterior motive nor neglected in its duty and responsibility for disbursement of subsidy to the eligible party on the basis of documents received from OP2.Further it has been contended that OP3 has disbursed the correct amount of subsidy to the complainant and hence, is not liable to pay any further subsidy or interest/litigation cost. It has been prayed to set aside the matter as it is not coming under Consumer Disputes Redressal Forum.

5.      Heard both the complainant and opposite parties. Complainant filed an objection memo in pursuance to Written versions of all the three Opposite Parties, copy of which was served to OP1 and OP2.

(i)            Interalia, complainant has mainly dwelt upon the fact that his case of offering himself to set up an ASC Project was being initiated only after he paid the required fee of Rs.100/- and submission of the Form for Interview with OP2. As such he qualifies as a Consumer.

(ii)          Although no specific guideline was received from DAO,Deogarh regarding release of subsidy amount within 90 days, but the fact was much publicized/announced through “KRUSHI RATHA” of Agriculture Department of the State Government which plied in almost all villages of Deogarh District. Also the same announcement was being made by Agriculture Department during “PRADHANPAT MAHOTSAVA”.

(iii)        Complainant was completely ignorant as to any circular/direction of OP3 as to contents of letter No.2823/31.07.2013 of DA&FP,Odisha, Bhubaneswar in relation to approved model, make and indicative price of Tractors & other equipments required to set up ASC as the said letter was not given to them either by the OP1 or by OP2 or by OP3.

Complainant as well as the Opposite Parties submitted that nothing is there to state beyond documents already filed during proceedings of the case on 13.05.2015.

6.      Before pitching our tent in the arena of findings on perusal of documents adduced by both sides we consider it more wise to deal the very question – Whether the instant case falls within the ambit of Consumer Protection Act,1986 ?

(a)      OP1 has relied upon the order of dated o4.01.2006 in the case of C.D.Appeal No.828 of 1997 of the State Consumer Disputes Redressal Commission, Odisha in which Honorable State Commission have held as hereunder:

“5.It has been held by National Commission in Himachal Weavers Pvt. Ltd. Vrs. Himachal Pradesh Financial Corporation [1993(3)CPR 285] and M/s-Sawheny Export House Pvt. Ltd Vrs.Noida [1993(3)CPR 407]- subsidy offered to be paid is not service defined in Section2(1)(o) of the Consumer Protection Act, 1986. Therefore non-disbursement of 100% subsidy as claimed by the appellant is not cognizable by the For a created under the Consumer Protection Act, 1986. The District Forum has therefore rightly not passed any order with regard refund of Rs.3,805/- as the 25% subsidy.”

2. In Chaudhary Ashok Yadav versus The Rewari Central Co-operative Bank and National Horticulture Board, Revision Petition No.4894 of 2012, decided on 08.02.2013, relying upon its earlier decision, reported in III (1993) CPJ 267 (NC) Himachal Weavers Private Limited versus Himachal Page 6 of 7 M/s. Elder Farm Vs. H.P. State Industrial Development Corp. Ltd. & Ors. (F.A. No.273/2013) Pradesh Financial Corporation & Others, Honourable National Commission have held that a person seeking benefit of subsidy under a scheme of National Horticulture Board (respondent No.2 herein) is not a 'consumer', as the subsidy is not a service within the meaning of Consumer Protection Act, 1986, and his remedy does not lie under the Consumer Protection Act, 1986, by filing a complaint and that he can seek relief from a Civil Court, or some other forum, as per law.
3.   In the C.D. APPEAL NO.180 OF 2001, Honourable State Consumer Disputes Redressal Commission, Odisha have observed as hereunder :

“5. Section 2(1)(o) defines service as under:-

service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing  insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

A plain reading of the above definition would show that a subsidy is not in terms of one of the many services expressly incorporated in the definition. It is surely neither banking nor financial or insurance, etc. Nor can one even remotely bring such a central bounty or concession within the concept of a service as such. No doubt, the word service is a wide ranging one and cannot be easily put in a straitjacket. However, it needs no great erudition to hold that a central or state subsidy intended for the development of the backward areas or development of irrigation, etc., and grant of incentive for that or any concession over it cannot be labeled as the hiring out of a service by either the State Government or the Central Government. Xxxx”

4.  In F.A.No.50 OF 2013 Consumer Disputes Redressal Commission, Hyderabad in their judgement of dated 11.02.2014 have observed as under:

“We observe from the record that cultivation of exportable high value mango crop is for commercial purpose and the complainant did not pay any consideration to the opposite party seeking service and even assuming that he paid application fee, it does not amount to consideration and therefore the complainant does not fall within the definition of consumer as defined under Consumer Protection Act, 1986. xxxxxxxxx and that the subsidy is a grant from the Central Government and any citizen cannot claim as a matter of right and the sanction and disbursement of the subsidy is strictly governed by the terms and conditions of the scheme xxxxxxxxx”

7.      We are therefore, inclined to the answer of the question of Whether the instant case falls within the ambit of Consumer Protection Act,1986 ? No. The instant case brought before us does not fall within the purview or ambit of Consumer Protection Act,1986 as

(a)    Complainant does not fall within the definition of consumer as defined under Consumer Protection Act,1986; and

(b)   A Central or State subsidy intended for the development of the backward areas or development of irrigation, etc., and grant of incentive for that or any concession over it cannot be labeled as the hiring out of a service by either the State Government or the Central Government.

        Accordingly, I pass the following order.

ORDER

The complaint petition is disallowed. No award as to compensation due to financial loss/ mental agony/ harassment or cost of litigation is made.

Office is directed to supply the free copies of the order to the parties free of costs receiving acknowledgement of the delivery thereof.

Order pronounced in the open court today i.e. on 3rd day of June, 2015 under my hand and seal of this forum.

I agree,                              I  agree,

 

                     (Arati Das)                                    ( P.K.Dash)                                ( P.C.Mahapatra)

                     MEMBER                                     PRESIDENT                                   MEMBER

 

                 Dictated and Corrected by me.

 

 

MEMBER

 

 

w Roman","serif"'>