MALAYA MARUTI INDUSTRIES vs ASSISTANT ENGINEER (OPERATION)

THE complainant is an industry represented by its proprietor, who is a Mechanical Engineering graduate, who is also a Technocrat trained under Entrepreneur Development Programme during 1984. He started the complainant-industry for the manufacture of briquetted fuel on 24.3.1984 which is a substitute to the coal which falls under priority sector group of industries declared by the Central Government. THE opposite parties 4 and 5 have sanctioned loan for running the industry. THE Andhra Pradesh Industrial Infrastructure Corporation, who has overall control over the industrial estate, sanctioned the premises for running the industry on lease-cum-sale basis in the indusrial estate, Samalkota. After obtaining necessary certificates from the Municipality, District Medical and Health Officer and Inspector of Factories, the complainant made an application to the first opposite party seeking suply of 40 H.P. and 1 K.W. lighting load which was registered on 31.12.1984. In February, 1985, the second opposite party has given a feasibility certificate. Inspite of repeated letters and reminders the Andhra Pradesh State Electricity Board (hereinafter called as ''the Board''), did not extend supply to the unit. However, it sent a letter to the petitioner advising payment of 1/3rd voluntary loan contribution Rs. 13,090/- to facilitate erection of transformer and supply of power to the complainant''s unit. This rule was not in existence when the complainant made the application but it was introduced in June, 1985 and as such it was not applicable in the case of the complainant. However, with a view to avoid any delay, the complainant gave his consent on 9.10.1985 and 8.11.1985 and asked for directions for payment of the said amount. No reply was received from the Board. However on 22.2.1986 the Board sent a letter to the complainant to pay a non-refundable deposit of Rs. 43,115/- together with service connection charges and security deposit totalling a sum of about Rs. 50,000/-. This demand is unjust and illegal as it affects young entrepreneurs badly. Realising this, the Government issued G.O.Ms. No. 41, dated 15.5.1986 abolishing this scheme of collecting non-refundable deposit from Small Scale Industries. But the Board kept quite for another six months and informed the complainant in November, 1986 that power connection has been sanctioned. THE Board again slept over the matter for six months without responding to the requests made by the complainant for power supply. However, in June, 1987 the Board informed the complainant''s unit that the erection of transformer to supply power to the complainant''s unit will be delayed further due to shortage of their staff. THE complainant was advised to get the transformer installed by himself and that the Board would supply the required material and would also pay the erection charges. Even though the complainant agreed the Board again delayed in supplying the material to the complainant and ultimately the complainant was able to get the installation work completed by September, 1987. THE Board did not ensure power supply to him through the new transformer. But the power supply was given through an old power transformer. Due to this the complainant faced low voltage and inadequate power supply from the old transformer due to which 5 H.P. motor and main supply wires and starter in the complainant''s industry got burnt and the complainant sustained a loss of Rs. 5,000/-. When the power was supplied through the old transformer, the exercise of erection of new transformer, at his cost is an exercise in sheer futility. During the year 1984 the complainant was supplied 7.5 H.P. power against the required 40 H.P. purely on temporary basis, for a period of one year from 20.10.1985 to 20.3.1986 and from 3.9.1986 to 3.3.1987 only for which purpose the Board collected a sum of Rs. 5,650/- from the complainant by way of deposit. It was not refunded to the complainant. On account of this erratic inadequate supply and negligence or supine indifference on the part of the department in providing adequate supply, the unit could not function properly and ultimately a situation has arisen forcing its closure in December, 1987. THE complainant could not repay the principal and interest to a tune of Rs. 8 lakhs to its creditors, the opposite parties 4 and 5. As per the project report if there had been adequate supply of power, there would have been a net provit of Rs. 13,000/- per month. As a result of non-supply of power the unit sustained losses to a tune of Rs. 8,32,000/-. THE fourth opposite party referred the complainant industry for financial assistance for its revival through Sick Industries Rehabilitation Scheme. A Committee inspected the complainant''s industry and submitted a detailed report on 8.3.1990 to the fourth opposite party which shows that the Board is responsible for the closure of the complainant''s unit. THErefore, the complainant seeks damages of Rs. 8,32,000/- with interest against the opposite parties 1 to 3 by way of this complaint.

IN the counter-affidavit filed by the opposite parties 1 to 3 it is stated that the complainant made an application for supply of 40 H.P. plus 1 K.W. industrial load at INdustrial Estate, Samalkot on 31.12.1984 and no application was filed on 31.10.1984. On receipt of the application, the complainant was asked to submit consent letter for payment of the amount covered by the estimate to be prepared, to be submitted to the higher office on 10.4.1985. However, the petitioner sent his consent letter in July, 1985. He was asked to pay 1/3rd of the voluntary loan contribution amount of Rs. 13,090/- refundable after five years. The contention of the complainant that this scheme came into existence in June, 1985 is incorrect. This scheme was introduced through B.P.M.S. 423 dated 26.5.1976 which was replaced through B.P.Ms. 693 dated 19.9.1985 whereunder payment of service line charges were introduced. IN view of the change of the policy effected by the Board, the complainant was addressed a letter on 22.2.1986 inter alia requesting him to give his consent to pay the cost of 100 KVA distribution transformer or in the alternative to procure the transformer by himself and pay a further sum of Rs. 15,605/-. However, the petitioner expressed his inability by a letter dated 19.2.1986. As he could not make payment for service line charges, the work could not be commenced. However, the Government of Andhra Pradesh issued G.O.Ms. No. 41 dated 15.5.1986 exempting the small scale industries from payment of service line charges. Accordingly the estimate was processed and sanction order was obtained on 6.11.1986, and the work order issued on 8.11.1986, laying the service line including erection of transformer was completed in July, 1987 and the service was released on 17.8.1987. This estimate which was sanctioned vide SDR 70/86-87 covered two industrial services, one for the complainant and another for Sri Kanaka Mahalakshmi Flour Mill. The said two industrial services were released from the newly erected transformer and not from the old existing transformer as alleged by the complainant. At no point of time the complainant nor Sri Kanaka Mahalaxmi Flour Mill complained of the low voltage from transformers. It is only on account of the inability on the part of the complainant to make payment of requisite charges liable to be paid under the changed policy of the Board, the execution of work for extension of supply of power to the complainant could not be commenced. The complainant, who failed to pay the cost of service laying charges, waited till the Government issued Government Order exempting from payment of service line charges by the small scale industries. The contention of the complainant that due to release of supply from old transformer his 5 H.P. motor and other equipment was burnt is totally false. There is no delay on the part of the opposite parties 1 to 3 in extending supply to the complainant and the delay if at all is his own making. The deposit of Rs. 5,650/- made by the complainant before the release of supply was on account of the temporary supply for 7.5 H.P. load. The same was released and the deposit amount was adjusted towards monthly consumption charges. The allegation that the report of Committee finding fault with the APSEB is totally misconceived. Neither the Board nor the opposite parties 1 to 3 are aware of the said report, and the same in any event is not binding on them. No other details are given how Rs. 8,30,000/- was arrived at which is claimed as compensation. It is stated that the complaint is barred by time since it was filed four years after the closure of the industry. Hence the complaint may be dismissed. No separate counter was filed on behalf of the fourth opposite party. The 5th opposite party filed separate counter. It is denied that the complainant has given an application on 31.10.1984 for supply of power. In all other respects the facts as narrated by the opposite parties 1 to 3 in their counter-affidavit has been reiterated and finally requested that the complaint may be dismissed.

No oral evidence is adduced by either parties. Exs. A1 to A26 are marked by the complainant besides filing his affidavit evidence. On behalf of the opposite parties Exs. B1 and B2 are marked.

NOW, the point for consideration is whether the complainant is entitled to the amount claimed by him ? At the outset it may be seen that the complainant''s industry was forced to close down in December, 1987. The complaint was filed on 28.7.1991 which is after 3 years. There is no allegation in the complaint that there was any demand made by the complainant claiming the damages as claimed in the complaint, except stating that the fourth opposite party referred the industry for financial assistance for its revival through sick industries rehabilitation scheme and later a Committee consisting of Sri S.L.N. Rao and others was constituted which submitted its report on 8.3.1990 to the fourth respondent stating that the Board is responsible for closure of the complainant''s unit in specific terms. Therefore, except a reference to the report dated 8.3.1990 of the said Committee there is no cause of action for filing the complaint on 28.7.1991 which is beyond three years. However, the effect of the said report will be discussed a little later in detail. For the present suffice that the said report has no bearing on the question of limitation. Therefore, prima facie we are of the opinion that the complaint is barred by limitation.

IT is the case of the petitioner that he is an Engineering graduate and a Technocrat. He set up the complainant-industry for the manufacture of briquetted, fuel substitute to the coal which falls under the priority sector group of industries declared by the Central Government. According to him, he made an application on 31.10.1984 which is denied in the counter for the opposite parties 1 to 3 and opposite party No. 5 also. But the fact is that he made an application on 31.12.1984. The fact remains that on receipt of the application he was asked to give consent letter for payment of amounts covered by the estimate to be prepared. Pending receipt of consent letter an estimate was prepared and submitted to the higher office on 10.4.1985. This fact was confirmed even by the fifth opposite party who was nothing to do with the claim made by the complainant. But the consent letter of the complainant was received in July, 1985. Thereafter he was asked to contribute 1/3rd of the voluntary loan contribution amount of Rs. 13,090/- refundable after five years. According to the complainant, this is a voluntary loan contribution scheme which came into existence in June, 1985 and so it was not applicable to the complainant. IT appears the scheme was introduced as early as on 26.5.1976 through B.P.Ms. No. 423 and the same was enforced till B.P.Ms. No. 693 dated 19.9.1985 which came into existence, according to which payment has to be made for service line charges. In view of the changed policy, the complainant was addressed a letter on 22.2.1986 requesting him to give his consent to pay the cost of 100 KVA distribution transformer or in the alternative to procure transformer by himself and to pay a sum of Rs. 15,605/-. There is of course delay of about five months is asking for his consent, by the Board. The complainant informed his inability to make payment of the cost of the service line charges. So, he is not effected for this delay. As the complainant did not make payment of service line charges the opposite parties 1 to 3 could not commence execution of work. However, the G.O.Ms. No. 41, dated 15.5.1986 was issued by the Government exempting the small scale industries from payment of service line charges, and after that, the estimate was processed and sanction was obtained on 6.11.1986. Here, again there was delay of about 5 months in obtaining the sanction and work order was issued on 8.11.1986 the laying of service line including erection of transformer was completed in July, 1987. There is a delay of about eight months and the service was accordingly released on 17.8.1987. Therefore, it is seen that the complainant has not come with clean hands to this Commission. His allegation that he made an application on 31.10.1984 is not correct while in fact he made the application on 31.12.1984. When consent was asked in the month of April, 1985 if not earlier, he sent his consent only in July, 1985. So also, when he was asked to pay the cost of service line charges as per the changed policy of the Board, he expressed his inability. Therefore, the complainant also has contributed delay which he is complaining of. The contention of the complainant that the supply was given only from the existing transformer and not from a new transformer which was erected in July, 1987, does not seem to be correct. Both the opposite parties as well as the fifth opposite party denied the said allegation and asserted that two industrial services, one for the complainant and the other for Sri Kanaka Mahalaxmi Flour Mill were released from the newly erected transformer and not from the existing old transformer. The other contention of the complainant, due to release of supply from the old transformer his 5 H.P. motor and other equipment was burnt causing a loss of Rs. 5,000/- is concerned there is no material to substantiate the same. As already stated that supply was released not from the old transformer as seen above, the question of being burnt on account of the old transformer does not arise. The complainant asserts that he has deposited a sum of Rs. 7,650/- prior to the release of power supply and applied for temporary supply load of 7.5 H.P. According to him he is entitled to refund of the said amount. The opposite parties contend that the supply for a load of 7.5 H.P. was released on temporary basis and the said amount was adjusted towards monthly current consumption charges and other miscellaneous charges and no other amount is liable to be refunded to the complainant. In view of the explanation given by the opposite parties we are unable to hold that the complainant is entitled to recover the said amount. The next contention advanced by the complainant is that he is entitled to claim a sum of Rs. 8,32,000/- by way of compensation.

THE basis, as already seen, is the delay on the part of the opposite parties in not being able to supply power to the complainant-unit, as such he suffered loss of profits etc., and that he is entitled to claim a sum of Rs. 8,32,000/-. In view of what has been stated above, we are unable to hold that the complainant has sustained a loss as claimed by him due to the inaction on the part of the opposite parties. THEre is inaction on the part of the complainant himself in his failure to obtain power supply at an early date. THE complainant also failed to act promptly in responding to the information called for or deposited the amount as called for by the opposite parties. In this view of the matter, we are unable to hold that there is any deficiency of service on the part of the opposite parties.

HOWEVER, as already observed there are laches on the part of the opposite parties as pointed out earlier in processing the application of the complainant. This makes us to observe that the industries like the one in question which are included in the priority sector group of industries by the Central Government, the opposite parties shall be well advised to take prompt action at every stage during the process of application. In this case, we noticed lethargy on the part of the opposite parties in taking action as reported which ultimately resulted in the loss of production which again is a loss to the public at large. Therefore, we would have taken serious note of these lapses on the part of the opposite parties 1 to 3 and awarded some compensation to the complainant but for the equal indifferent attitude exhibited by the complainant himself. By giving wrong date of application as 30.10.1984 while in fact it was filed on 31.12.1984, that the rule relating to voluntary loan contribution was not in existence on the date of the said application whereas, in fact, the said scheme was in force from 26.5.1976, the delay in expressing his inability to make payment of the cost of service line charges which fact was suppressed in the complaint, misleading that a deposit of Rs. 5,650/- made by him was not refunded to him implying thereby that he was regularly paying consumption charges under temporary supply when the opposite parties adjusted the same towards consumption charges. In such cases, the principle of "Inpari delicto potiorest canditio defendentis" applies. Therefore, in the case where both parties are equally in fault the condition of the defendant is preferable. The last submission is that the report which is marked as Ex. A10 dated 8.3.1990 from Small Scale Industries Service Institute, Ministry of Industries, Government of India will amply support the contention of the complainant. As per the counter it is stated that both the opposite parties 1 to 3 or 5th respondent deny any knowledge of such existence of Committee or its report. No doubt, there are observations in the report that the absence of power supply has been the most dominant factor accounting for the unit''s sickness. Here again, the date of application is taken as 31.10.1984 basing on the information furnished by the complainant. As already seen, it is not correct date of the application. The report is based on the information furnished by the complainant. The opposite parties 1 to 3 had no notice of the existence of the said Committee or its report. Without giving notice to the opposite parties 1 to 3 the report filed by the Committee cannot be taken note of to fix the responsibility on them. Thr principle of "audi alteram partem" will apply. As such when there is no proof that the Committee had issued any notice of its appointment to opposite parties 1 to 3 or that the opposite parties were heard before the report was prepared we are not prepared to accept the contention of the complainant and fix the responsibility on the opposite parties 1 to 3. The findings recorded by us in the foregoing paragraphs on the basis of material placed before us, cannot be disturbed by Ex. A10. The other documents placed do not have any direct bearing on this question. Hence we are of the view that there is no deficiency of service on the part of the opposite parties 1 to 3 and as such the complaint fails and is accordingly dismissed. But in the circumstances without costs. It is open to the complainant to approach the Civil Court if he is so advised. Complaint dismissed.