RAMAGAURI JAMNADAS PATEL MRS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner herein is the wife of one Jamnadas Naran- bhai Patel and she complains about the order of detention passed by the State of Gujarat against her husband directing that her husband should be detained in prison under the provisions of sec. 3(1) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 The petition is presented under Art. 226 of the Constitution praying for a writ of habeas corpus or any other writ direction or order qua- shing and setting aside the order of detention at Annexure A. The order of detention was passed against the detenu on 29/01/1981 It was passed by the State of Gujarat and it has been duly authenticated by the Deputy Secretary to the Government. The order was passed because the Government of Gujarat was satisfied with respect to the detenu that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it was necessary to detain him. The grounds of detention are dated Feb- ruary 1 1981 and it has been stated in the grounds of detention that the detenu had constructed a multi-storeyed building called Asopalav Apartment in Jagnath Plot in Rajkot City. In the statements made by the detenue on 18/09/ 19/10/1980 /10/ 15 1980 October 28 1980 and on 14/10/1980 before Panchas the detenu had admitted that the detenu was in full charge of all the details regarding the construc- tion of the said Asopalav Apartments The other partners of the detenu namely Sarvashri Dayabhai Ranchhodbhai Chovatia Lalitbhai Khodidas Patel and Ratilal Jethabhai Patel in their respective statements recor- ded respectively on 19/09/1980 September 19 1980 and 27/10/1980 had stated that the detenu was attending to all matters connec- ted with the construction of the Asopalav Apartments. On the basis of a certificate issued by the architects of the detenu namely Pattcons Archi- tects the detenu had applied on 12/12/1979 asking for 8785 bags of cement for the construction of the said Apartments and according to the grounds of detention in the said application of 12/12/1979 the detenu had stated that on the date of the application the detenu had no stock of cement with him. The Collector of Rajkot by his letter dated 29/12/1979 bearing No. Food: R. D. Vashi-6838 per- mitted the detenu to get his plans to be registered with nine cement dealers at Rajkot namely Saurashtra Emporium Apna Bazar Cambay Investment Corporation K. P. Brothers Mozambic Trade Agency Rajkot Lodhika Sangh Desai Brothers Raghuvir Hardware and Jagjivan Kakubhai Ralia. In the course of the investigation according to the grounds of detention it was found that the six-storeyed building which was under construction; as Asopalav Apartments by the detenu was lar- gely completed and as against the total requirement of 8785 bags of cement the detenu had only got 939 bags of cement from different cement dealers whose names have been set out in the grounds of detention. In the presence of Panchas in his statement recorded on 15/10/1980 the detenu according to the grounds of detention admitted that for the work which remained to be carried out in the Asopalav Apartments the detenu would be in need of only 1000 bags of cement. Hence according to the grounds of detention for the work completed by the time the inspection was carried out of the Asopalav Apartments that it on about 15/10/1980 in the said building only 7785 bags of cement could have been ultilised for the stage of construction completed till then. In the statement recorded on 15/10/1980 the detenu had claimed that in the construction work and also in the plastering work the detenu had used lime instead of cement and as a result he had been able to save nearly 3000 bags of cement and according to the statement of the detenu before the construction work commenced 2 0 bags of cement were in stock with the detenu. The grounds of detention proceeded: These claims of yours cannot be comprehended and they cannot be accepted According to the grounds of detention from (1) the estimate prepared at the time of inspection of the site (2) measurements taken (3) tests carried out regarding designing and construction and other relevant materials and the details obtained and (4) from the calculations made by the Executive Engineer Rajkot Roads and Buildings Division Quality Control Circle- from all these four factors it was obvious that in the different items of construction for Asopalav Apartments nearly 5004 bags of cement had been used and the calculation of accounts given by the detenu was not correct. According to the grounds of detention there was reason to be- lieve that for the construction of Asopalav Apartments the detenu had obtained a large stock of cement from blackmarket and hence the detenu had committed an offence by contravening clause 22 of the Guj- arat Cement (Licensing and Control) Order 1978 and thereby rendered himself liable to punishment under the Essential Commodities Act 1955 According to the grounds of detention if the detenu was not placed in detention then he was likely to continue his illegal activities and in order to prevent such a situation he was being detained. The rest of the contents of the grounds of detention are not necessary for the purposes of this judgment.

(2.) In his statement recorded on 28/10/1980 the detenu had pointed out that an estimate of 8785 bags of cement as required for the construction of the Asopalav Apartments was prepared by Pattcons Arc- hitects. The estimate had been prepared on the basis of designs for rein- forced cement concrete construction on what was mentioned as Elastic Theory but Shri Kirit Parikh Structural Engineer from Ahmedabad had prepared designs for the R.C.C. construction not on the basis of Elastic Theory but on the basis of Ultimate Load Theory and when designs were prepared on this basis the requirement of cement for R.C.C. work was reduced to 2900 bags. Along with the statement recorded on 28/10/1980 the detenu had produced the certificate issued by Shri Kirit Parikh Structural Engineer regarding the lesser use of cement in the construction of Asopalav Apartments.

(3.) Throughout the grounds of detention this certificate of Shri Kirit Parikh is not referred at all and not dealt with at all. It may be pointed out that even according to the report of the Executive Engineer Roads and Buildings Division Quality Control Circle Rajkot the quality of the construction was quite good and no fault could be found with the quality of the construction of Asopalav Apartment which was inspected by the said Executive Engineer. Even according to the report of the Executive Engineer the construction was so carried out that lesser quantity cement could be used than what was originally mentioned in the plans and designs prepared by Pattcons Architects. Yet this important aspect of use of lesser quantity of cement has been completely overlooked by the detaining authority at the time of passing the detention order.