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Kalpit Yogeshbhai Shah v/s State of Gujarat & Another


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    R. Special Civil Application No. 4827 of 2021

    Decided On, 19 March 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

    For the Petitioner: Percy Kavina, Sr. Advocate, Meet G. Raval (10630), Advocate. For the Respondents: Manish Lavkumar Shah, GP. R.B. Raval, AGP.



Judgment Text

Oral Order:1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioners have prayed for following reliefs,"(A) This Hon'ble Court be pleased to issue appropriate writ, order or directions and be pleased to direct the Respondent no.2 to pass with the document received by it after Nov,2020 and also allow the petitioners to be examined and cross-examine witnesses in the interest of justice.(B) This Hon'ble Court be pleased to order the pending admission and/or final disposal of this petition the further proceeding of the Respondent no.2 be stayed in the interest of justice;(C) This Hon'ble Court be pleased to restrain the Respondent no.2 from pronouncing its report pending admission and/or final disposal of this petition;(D) xxx xxx xxx."2. Heard learned Senior Counsel, Mr. Percy Kavina assisted by petitioners and learned learned advocate, Mr. Meet Raval appearing for the Government Pleader, Ms. Manisha Lavkumar Shah assisted by learned AGP Mr. Ronak Raval for the respondents.3. Learned Senior Counsel, Mr. Percy Kavina has referred to the averments made in the petition and submitted that on 06.08.2020 at about 2:48 a.m., fire broke in ICU in Shrey Hospital, Ahmedabad causing death of eight innocent patients and, hence, FIR was registered on 10.08.2020 with Navrangpura Police Station for the offence punishable under Sections 304(A) and 308 of the Indian Penal Code, 1860. He submitted that because of the said incident, the State of Gujarat appointed a Commission of Inquiry of Justice K.A. Puj (Retired) dated 11.08.2020. He referred to the terms of reference of commission of inquiry, which read as under, "A) To inquire into exact sequence of events leading to the incident of fire which occurred at Shrey Hospital, Ahmedabad on 6.8.2020 and the causes of the aforesaid incident;B) Adequacy of the fire safety measures existing at Shrey Hospital at the time of the incident;C) To ascertain whether the said incident of fire and the resultant deaths were the result of negligence or breach of duty on part of any one or more authorities or individuals;D) to recommend suitable measure to prevent recurrence of such incidents."4. Learned Senior Counsel submitted that the advertisement was published in two local newspaper on 07.10.2020 asking all concerned persons to send their statements/ affidavits on or before 21.10.2020. He further submitted that in pursuance to the above, the petitioners submitted their affidavits before the Commission on 29.10.2020, wherein the details of negligence of the Shrey Hospital including the theft of the mobiles and ornaments of some of the deceased patients were also stated. He submitted that it was also requested to call for the CCTV footage from 04.08.2020 to 10.08.2020 to arrive at proper conclusion with regard to the aspect of negligence of the hospital. He submitted that on a request being made, the Commission of Inquiry of Justice K.A. Puj (Retired) was kind enough to supply copies of the documents tendered by other concerned persons.5. Learned Senior Counsel submitted that thereafter, the inquiry was transferred to the respondent no.2 - Commission of Inquiry of Justice D.A. Mehta (Retired) on 09.12.2020 and, thereafter, fresh advertisement was published on 25.12.2020 in two newspapers asking concerned persons to submit documents with affidavit on or before 11.01.2021 before the respondent no.2. He submitted that thereafter, the summons was issued by the respondent no.2 to the petitioners asking them to remain present on 03.02.2021. He submitted that however on receipt of the said summons, vide communication dated 01.02.2021, the petitioner no.1 requested the respondent no.2 that certified copies of all the documents of the present case be supplied to him. He further submitted that similarly vide communication/ application dated 04.02.2021, the petitioner no.1 requested the respondent no.2 that the petitioner no.1 be permitted to visit ICU Ward of Shrey Hospital with his photographer, however the respondent no.2, by way of order dated 05.02.2021, which is under challenge in the present petition, has rejected the request made by the petitioners, which led to filing of the present petition.6. Learned Senior Counsel submitted that the petitioners are the relative of the patients, who died in an unfortunate incident, which has taken place on 06.08.2020 in Shrey Hospital and, hence, the petitioners are the interested parties and they are not the strangers, inspite of that, the respondent no.2 has wrongly rejected the request made by the petitioners for the supply of the certified copies of the papers of the case and also wrongly denied the request of the petitioners to visit the ICU Ward of Shrey Hospital with personal photographer.7. At this stage, learned Senior Counsel referred to the provision contained in Sections 8B and 8C of the Commissions of Inquiry Act, 1952 (hereinafter referred to as "Act of 1952" for short). It is submitted that as per the said provision, the persons likely to be prejudicial affected are required to be heard by the Commission. It is further submitted that under certain circumstances, the right of cross-examination is also given, however, the respondent no.2 has wrongly observed that the right of cross- examination is available under the Act and under the Gujarat Commissions of Inquiry (Procedure) Rules, 1969 (hereinafter referred to as "Gujarat Rules" for short) only to the State Government and every person referred to in Rule 5 of the Gujarat Rules. He submitted that it is also observed that the person, who is likely to be prejudicial affected, can be given such right. He further submitted that it is also observed that the third category of persons, who have right to seek cross- examination under Rule 6 of the Gujarat Rules are those, whose evidence has been recorded under Rule 4 of the Gujarat Rules and that too with the permission of the Commission. He submitted that after observing such aspect in the order under challenge, the respondent no.2 has recorded that the petitioners do not fall within the category of persons, whose evidence has been recorded under Rule 4 of the Gujarat Rules. Thus, it is contended that though the petitioners are interested and affected parties, the respondent no.2 has rejected the request of the petitioners and, therefore, this Court may issue appropriate direction to the respondent no.2.8. Learned Senior Counsel has placed reliance upon the decision dated 12.10.2012 rendered by the Division Bench of this Court in Writ Petition (PIL) No.216/2012 and after referring to relevant paragraphs of the said order, it is submitted that the Division Bench has specifically observed and held that if the available records are not given to the concerned person, he cannot effectively assist the Commission, therefore, writ application is maintainable for protecting such legal right which has accrued in favour of the concerned petitioner. Learned Senior Counsel has, therefore, urged that relief as prayed for in the present petition be granted.9. On the other hand, learned Government Pleader, Ms. Manisha Lavkumar Shah assisted by learned AGP Mr. Ronak Raval for the respondents has vehemently opposed this petition and submitted that Writ Petition (PIL) No.118/2020 is pending before the Division Bench of this Court on the issue with regard to fire safety. Learned Government Pleader referred to Prayer Clause (E) of the said petition, which pertains to incident of Shrey Hospital, Ahmedabad. At this stage, learned Government Pleader has also referred to Prayer Clause (N) of Special Civil Application No.14157/2020, which is pending before the Division Bench of this Court. It is submitted that the connected issues with regard to the Shrey Hospital are pending before the Division Bench of this Court.10. Learned Government Pleader, thereafter, contended that the Inquiry Commission has been appointed as per the terms of the reference for conducting inquiry with regard to the incident, which has taken place at Shrey Hospital. It is also submitted that there is no lis between the parties. It is further submitted that the application given by the petitioner no.1 is very vague and he has demanded certified copies of all the papers of the case. It is further submitted that the after referring to various provisions of the Act of 1952 and the Gujarat Rules, the respondent no.2 has rightly rejected the request of the petitioners, therefore, this Court may not interfere with the order under challenge.11. Learned Government Pleader has placed reliance upon the decision taken by the Division Bench of this Court in case of Amrish N. Patel, Member - Jan Sangarsh Manch Vs. Commission of Inquiry & Anr., in Letters Patent Appeal No.2419/2009 as per order dated 01.02.2012 and relying upon the said decision, it is submitted that this Court may not interfere with the order under challenge. It is, therefore, urged that this petition be dismissed.12. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that for the unfortunate incident, which has taken place on 06.08.2020 at Shrey Hospital, Ahmedabad, the State Government has appointed Commission of Inquiry of Justice K.A. Puj (Retired) on 11.08.2020. The terms of the reference of commission of inquiry includes exact sequence of events leading to the incident of fire which took place at Shrey Hospital and causes of the aforesaid incident and to ascertain whether said incident of fire and resultant deaths were the result of negligence or breach of duty on the part of any one or more authorities or individuals. Thereafter as per the advertisement published in the newspapers, the petitioners submitted their affidavits before the Commission on 29.10.2020. However thereafter, the inquiry was transferred to the respondent no.2 and, therefore, fresh advertisement was published on 25.12.2020 in two newspapers asking the concerned persons to submit the documents with affidavit on or before 21.01.2021 before the respondent no.2. It is also revealed that the respondent no.2 issued summons to the petitioners asking them to remain present on 03.02.2021. Thereafter the petitioner filed an application and demanded certified copies of the documents and also requested to grant permission to visit ICU Ward of Shrey Hospital with his personal photographer, however now the said request has been rejected by the respondent no.2. While rejecting the request, the respondent no.2 has observed in Para No.4 that it is nothing but a dilatory tactic for a fishing and roving inquiry adopted by the petitioners. Prima facie, this Court is of the view that the petitioners are affected persons and their near relatives died in the unfortunate incident, which has taken place at Shrey Hospital and on the contrary, they are interested to see that real facts may come on record and, therefore, there is no question of adopting dilatory tactics as observed by the respondent no.2. It is also revealed from the record that summons was issued by the respondent no.2 upon the petitioners asking them to remain present on 03.02.2021 and before that day, the petitioners have given an application on 01.02.2021 with a request to provide certified copies of the documents and, therefore, it cannot be said that the petitioners are trying to delay the proceeding.13. At this stage, this Court would like to refer to the order dated 12.10.2012 passed by the Division Bench of this Court in Writ Petition (PIL) No.216/2012. The Division Bench has observed in Para No.5 as under, "5. After hearing the learned counsel for the parties and after taking into consideration the fact that the State Government itself has constituted the Commission and the petitioner No.2 having decided to assist the Commission, a valuable legal right has definitely accrued in his favour to give evidence therein and for such purpose, if the available records are not given to him, he cannot effectively assist the Commission. We, thus, find that in such circumstances, a writ-application is maintainable for protecting such legal right which has accrued in favour of the petitioner No.2."14. Thus from the aforesaid observations made by the Division Bench, it can be said that in the present case, the petitioners are interested and affected persons and they have valuable legal right, which has accrued in their favour and if available record is not given to them, they cannot effectively assist the Commission, therefore, the present petition is maintainable.15. This Court is also conscious of the fact that the respondent no.2 - Commission is undertaking the fact finding inquiry and, therefore, the petitioners have very limited right under the provisions of the Act of 1952 and the Gujarat Rules. However prima facie, this Court is of the view that during the fact finding inquiry, the petitioners are not third party or strangers but as observed hereinabove, they are near relatives of the deceased patients and, therefore, they are on the contrary interested to see that the respondent no.2 can find out correct facts.16. In Writ Petition (PIL) No.118/2020, one of the prayers is that appropriate action be taken against the persons found accountable and responsible for th

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e untimely and unfortunate deaths in the fire incident of 06.08.2020 at Shrey Hospital, Ahmedabad and appropriate compensation be recovered from the persons, who are accountable. Similarly, in a petition being Special Civil Application No.14157/2020, one of the prayers is that the relatives of the victims of Shrey Hospital fire mishap be permitted to conduct a third party survey of ICU Ward through a team consisting of retired fire safety officials.This Court is of the prima facie view that the relief as prayed for in the present petition are different from the aforesaid relief prayed for in the aforesaid proceedings. The petitioners have challenged the order passed by the respondent no.2, by which, the applications submitted by the petitioners asking certified copies of all the documents of the present case and also seeking permission to visit ICU Ward with his personal photographer, have been rejected.17. At this stage, it is pertinent to note that it is the case of the petitioners that the Commission of Inquiry of Justice K.A. Puj (Retired) has supplied the copies of the relevant documents tendered by the concerned persons on a request being made by the petitioners.18. Looking to the issue involved in the present petition, this Court is of the view that this petition cannot be dismissed at the threshold and it requires detailed hearing.Therefore, Notice returnable on 5th April, 2021.Till next date of hearing, ad-interim relief in terms of Para No.6(C).
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