LAWS(GJH)-2001-5-30

KAUSHIK KUMUDCHANDRA KAPADIA Vs. STATE OF GUJARAT

Decided On May 10, 2001
KAUSHIK KUMUDCHANDRA KAPADIA Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) Heard Mr.K.B.Anandjiwala, learned advocate for the petitioner and Mr.A.D.Oza, learned Public Prosecutor on behalf of the respondent State.

(2.) The brief facts of the present petition are as under :- On 9-2-2001 at about 4.30 p.m informant Kiritbhai Vitthalbhai Lalluvaida lodged the FIR for the offence which took palce on 26-1-2001 at about 8.50 a.m. against the petitioner and other accused persons for the offences under Section 304, 120 B, 418, 420 of IPC and under Section 3(2)(c)(d), 7(1)(i)(ii) (2) of the Gujarat Owners Flat Act, 1973. It is stated in the FIR that on the land bearing City Final Plot No. 247, T.P.Scheme No.29 and City Survey No.274, two buildings are being constructed as Block A and B of `Rutvij Apartment' having in all 32 flats and has been registered on 28th April, 1995 in the name of Shaan Co-operative Housing Society Ltd. The coplainant had purchased one float in Block - B of the Rutvij Apartment in the year 1998 and for the same he has also taken loan of Rs.1.50 lacs from Satellite Road Branch of State Bank of Saurashtra. It is also alleged by the complainant in the complaint that B.U.Permission, share certificate, plans etc from the builder but according the petitioner, the same were very well supplied to the members. It is further alleged in the FIR that on 26th January, 2001 at about 8.50 a.m. the portion of the staircase of Blcok No.B was broken and pillars were sank in the earth upto first floor due to massive earthquake. Howerver, no damage is caused to Blcok - A which is adjacent to Blcok-B. It is the case of the prosecution that one Satiben, wife of Vijaykumar Nair and Mahendra Patel, Jay M. Makwana and wife of Bhogilal received injury on their persons in the the said incident. Satiben was thereafter taken to hospital and there she succumbed to injuiris sustained by her. However, it is contended by the petitioner that because of sinking of a building or due to any other reason except the dashing with the wall the deceased had succumed to injuries. It is also alleged in the FIR that the petitioners and other accused persons had used sub standard material in constructing the building and had not constructed the building as per the approvewd plans and thereby caused damanges to the properties and lives of the residents of Rutvij Apartment. The detailed description of the alleged incident is given in the FIR which is annexed and marked as Annexure-A to the petition. The petitioner had preferred Misc. Crim. Application No. 726 / 2001 in the Court of the Addl Sessions Judge, Ahmedabad which was rejected by the concerned Sesssions Judge on 18th April, 2001 qua the present petitioner and hence the present petition under Section 439 of CrPC 1973 on the ground that the petitioner is innoncent and he has not committed any crime as alleged against him. It is also submitted by the petitioner, all the necessary and relevant papers in respect of the building in question have been obtained the same were supplied to the complainant of the FIR. It is also submitted that the petitioner has, by now, constructed as many societies in different localities of Ahmedabad City. Even after the construction of Rutvij Apartment, he has constructed more schemes but except the present building i.e. Rutvij Apart Block No-B, not a slightest damange was caused to any of the buildings of which the construction was carried out by the present petitioner. However, it is submitted by the petitioner that soon after this earthquake, on 31-1-2001 a meeting of members of the society was held and in the said meeting it was unanimously decided that at the same place the construction work is to be carried out and the members had also signed in that Minutes book of the Society. That the building Rutvij Apartment was constructed by me as per the Standard Specifications and as per the Rules and bye-law of Municipal Corporation. That as regards the damaged building, the petitioner undertake to reconstruct and restore all the flats by undertaking constructing myself at my entire cost. However, if the flat owner or owners choose and desire to pay to me any amount by way of contribution as may be received from the Government aid and / or any agency by him or them, it will be open to me accept the same but I will not compel in any way any of them to make any such contribution by resorting to litigation or in any other manner I further undertake to complete the construction by the end of May, 2003 and put the respective flat owners in actual possession of their respective flats. If I fail in any way to deliver possession of reconstructed flats to the respective owner or owners by the end of May, 2003, I will pay rent compensation at the rate of Rs.5000.00 per month to each of such flat owner. If however any flat owner chooses not to have reconstructed flat, I will pay him the price thereof paid by him. Mr.Anandjiwala, learned advocate appearing on behalf of the petitioner has also further submitted that the petitioner is ready to pay Rs.75,000/to the legal heirs of the deceased Satthiben w/o Vijaykumar Nayar within three weeks of the date of release of the petitioner from jail.

(3.) Learned advocate Mr.Anandjiwala has prepared draft undertaking and copy of the said draft undertaking has also been given to the learned PP Shri A.D.Oza. However, Mr.A.D.Oza, learned PP has verified the statement made by the present petitioner in the draft undertaking.