BHOGILAL SOMNATH PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The brief facts of the present petition are as under :- The Senior PSI Mr.K. S. Patel of Billimora Police Station filed complaint against the petitioner accused and one Bhaumik Anilbhai Shah. According to the prosecution case, the petitioner No.1 is the builder and the accused No.2 is Architect. It is also the case of prosecution that these accused had undertaken the construction of Jalaram Complex consisting of four buildings. It is the case of the prosecution that Jalarm Complex B-1 was completed and occupied by members, whereas Jalarm Complex B-2 was under construction. According to prosecution case, one person had come with Camel Cart to unload `Kota' stones at Jalaram Complex B-2 unit. According to further case of prosecution the accused No.2 had prepared the plans and maps of the construction of the said premises and accused No.3 is the Structural Engineer. It is also prosecution case that the accused carried out the construction in violation of rules and regulations and had also not undertaken the required test before commencing construction. According to the further case of prosecution that on 26th January, 2001 witnessed the unprecedented earthquake and resultantly, the Unit No.2 had collapsed and damaged Unit No.1 building which resulted into death of six persons. According to the learned Advocate Mr.A.D.Shah, the building Unit No.1 was existing building and the same was occupied by 17 [ seventeen ] members. However, it is submitted that out of these seventeen members, 11 members have made full payments towards the cost of respective flat / residential unit to the petitioner. According to Learned Advocate Mr.Shah, out of these 17 members, 5 members have been given alternative accommodation by the petitioner and one is already got his own accommodation and rest of 11 members are without accommodation. Learned advocate Mr.Shah has also submitted that for the building - Unit No.2 which was in fact under construction, for which the petitioner has received part payments from three members namely (i) Ramilaben, (ii) Bharatbhai and (iii) Thakorbhai and such total part payments comes to Rs.5,62,000.00 against booking of three flats by the respective members with the building scheme of the petitioner. Mr.A.D.Shah, learned advocate has submitted that this of Rs.5.62 lacs which has been received by the petitioner is the part payment received from three members, however, the petitioner is prepared to deposit this amount before this Court within period of 10 days from today and it is further submitted that necessary undertaking to that effect will be filed before this Court. Mr.A.D.Shah, learned advocate has also submitted that in respect of the members for Building No.1, wherein, in all 17 members were residing and out of these 17 members, 11 members have made full payment against the respective flat / residential unit and the remaining 6 members have paid part payment to the petitioner and remaining payment was to be made, for that the petitioner will reconstruct the entire building. It is also submitted that necessary undertaking on behalf of all organisers / partners to that effect will be filed before this Court within 10 days from today, giving undertaking in a manner that the petitioner will provide flat to all 17 respective members of the Building Unit No.1 and Unit No.2 as per the plan without charging any extra amount than the amount agreed amount of the price of the flat, however, if the member does not want to continue as the member in the scheme then the amount paid by such member will be refunded and there will not be any responsibility to allot such flat to that member. Learned advocate Mr.Shah has also submitted that in respect of six persons who have died in the incident while the building Unit No.2 collapased on Building No.I, for them, the petitioner will deposit amount of Rs.70,000.00 for each victim and in all undertakes to deposit Rs.4.20 lacs before this Court within 10 days from today.

(2.) I have considered the averments made in the present application and averments made in the reply filed by the respondent dated 30th March, 2001 as well as rejoinder filed by the petitioner and also considering the submission made by both the learned advocates, without deciding the merits of the matter and considering the request of both the learned advocates for the parties who requested not to pass reasoned order and therefore considering the matter and before passing the final order, according to my opinion, some observations made by the Apex Court as well as Division Bench of this Court while dealing with said application which are pertinent to quote in relevance of the facts and circumstances of this case which are reproduced as under :- Recently, the Apex Court in case of GAYA PRASAD V. PRADEEP SRIVASTAVA reported in (2001) 2 SCC page 604, para-19 observed as under :-

(3.) After considering the above observations as well as the averments made in the application as well as reply and rejoinder, in such type of cases it is the duty of the court to see and protect the interest of the persons who become victim in such incident, and simultaneously also to consider the fate of the persons who are behind the bar because of this incident.