H.K.RATHOD - (1.). Heard Mr.K.B.Anandjiwala, learned counsel for M/s. Thakkar Associates for the petitioner and Mr.A.D.Oza, learned Public Prosecutor on behalf of the respondent State.
"The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. While exercising the powers, the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum."
[Extract : Vaish Degree College Vs. Laxminarayan reported in AIR 1976 SC page 888 ]
"Law cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, rule of law must run akin to rule of life. And life of law is not logic but experience ..' While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction."
[Extract : Municipal Board, Pratapgadh Vs. M.S.Chawla reported in AIR 1982 SC page 1493 ]
"Article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal inquiry. It is perfectly open for the Court, exercising this flexible power, to pass such order as public interest dictates and equity projects;

`Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest."
[ Extract : Shivshankar Dal Mill Vs. State of Hyryana reported in AIR 1980 SC page 1037 ]
Rule. Mr.A.D.Oza, learned Public Prosecutor waives service of Rule on behalf of the respondent State.

(2.). The brief facts of the present petition are as under :- The petitioner is the original accused in connection with the FIR registered as CR No. - 60 of 2001 with Satelite Police Station for the offences punishable under section 3(2)(c)(d), 7(1)(i)(ii) (2) of the Gujarat Owners Flat Act, 1973, inter alia alleging that the petitioner, alongwith the others, has committed the offence as alleged in the said FIR. According to the petitioner, the father of the petitioner is holding Flat No. B/11 in this Scheme. The mother of the petitioner is also holding flat in the said scheme. The maternal uncle of the petitioner is also holding the flat in this scheme. The counsin brother of the petitioner Rajeshbhai P. Patel is also holding the flat in the said scheme. Similarly, brother in law of the petitioner Arvindbhai S. Patel is holding the flat in the said scheme. According to the petitioner, in all, six members are the family members of the petitioner in the said scheme. According to the petitioner, two members are the near and dear of the petitioner and four flats in the scheme are vacant and no person is living there and only two members are the out siders are holding the flat in the said scheme. According to the petitioner, the petitioner is not the Chairman of the society and has also not issued any share certificate to any members of the scheme. The petitioner is a member in the society holding Flat No. B/32 in Sarva Darshan Flats. That there are in all 12 members in the entire scheme. Amongst these 12 members, six members are the family members and two are the friends of the petitioner. The petitioner is engaged in the business of production of chemicals and is having factory in the name of M/s. RPG Chemicals having its office at Samarth Buiulding, Vijay Cross Roads and is having the factory at GIDC Estate, Ankleshwar. The petitioner's company is producing inter mediates dies and selling it in the market.The petitioner is also having agricultural lands and other immovable properties. According to the petitioner, he is not at all connected with the construction activities. That there was formation of Natvar Shyam Coop.Housing Society Ltd. and one Bal Kishan M. Chavda is the Chairman of the society and one Mansukhbhai Chunibhai Shah is the Secretary of the said society. The petitioner is neither the Chairman nor Builder of the society and has not participated in any manner in the development of the society. The petitioner has entered as a member of the said society in the year 1997 and according to the petitioner, members of the said society have never raised any complaint against the petitioner but the FIR has been filed by the PI, Satelite Police Station, Ahmedabad. In the petition, the petitioner has made clear averments that the petitioner is ready and willing to complete the construction work of the flats and the members who are willing to continue in the said scheme will be allotted the flats as per the original booking price and no extra amount will be charged and they will be put in possession within 24 months. The petitioner has further pointed out in the petition that the petitioner at his own motion, the petitioner is ready and willing to pay sum of Rs.75,000.00 to the heirs and legal representatives of the deceased Gautam Kaushik Trivedi and Ashitben K.Trivedi. According to the petitioner, he is ready and willing to reconstruct the flats within 24 months or to refund the amount as per the choice of the members. The petitioner is ready to invite this obligation without prejudice to his right to defend himself on all available grounds. The petitioner has relied upon two orders passed by this court in criminal misc. application no. 1677 of 2001 and 1678 of 2001. The petitioner is also prepared to file draft undertaking before this court in respect of the reconstruction of the flats without taking any extra amount within 24 months and is also prepared to pay Rs.75,000.00 to the heirs and legal representatives of the deceased. In this matter, notice was issued by this court on 10.5.2001 and it was made returnable on 18.5.2001. The respondent State has not filed any reply to the present petition.
(3.). In the present petitioner has undertaken to reconstruct and restore all the damaged flats by filing undertaking to construct by himself at his entire cost. Draft of such undertaking has been submitted which reads as under:
"I, Rashminbhai Mafatbhai Patel, the petitioner accused do file this undertaking as follows :

1. That the collapsed building Sarva Darshan Apartment was constructed during my Chairmanship of Natvarshyam Coop.Housing society Ltd. under whose aegis Sarva Darshan Apartment was built. The same was built under my supervision and guidance. That as regards the damages building, I undertake to reconstruct and restore all the flat owners by reconstructing the flats at my own costs. I will not compel in any way to make such construction by resorting the litigation or in any other manner. I further undertake to complete the construction by the end of June, 2003 and put the respective owners in actual possession of their respective flats. If I fail in any way to deliver the possession of the reconstructed flat to the respective owner or owners by the end of June, 2003, I will pay compensation at the rate of Rs.5,000.00 p.m. to each of such flat owners as rent towards the flat. However, if any flat owner chooses not to have the reconstructed flat, I will pay such flat owner the price thereof paid by him.

2. I further undertake to pay Rs.75,000.00 to the legal heirs of the deceased Shri Gautambhai Kaushikbhai Trivedi and Ashitben Kaushikbhai Trivedi within two weeks of the date of my being released from jail. "

2. Learned advocate Mr. Anandjiwala has prepared the draft undertaking and copy thereof has been given to the learned PP Shri Oza. However, Mr. Oza, learned PP has verified the statements made by the present petitioner in the draft undertaking.