[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.2224 OF 2008 M/s. Prithvi Associates ... Petitioner. Vs. The Brihan Mumbai Electric Supply & Transport Undertaking and Ors. ... Respondents. Mr. S.I. Nanavati Sr. Counsel with Mr. B.S. Gagrat, Mr. P.C.Mankad, Mr. Sanjeev Dave, Mr. P.D. Kadam, Mr. Hitesh Jain, Mr. Daljeet Bhatia, Ms.Prachi Derda i/b. M.s/ A.L.M.T. Legal for the petitioner. Mr. D.A.Nalavade GP for respondent No.4- State. Mr. V.A.Thorat Senior Counsel alongwith Mr.D.G. Dhanure and Mr. Harvender Toor and Mr. Sunil Chavan for the respondent Nos. 1 to 3. CORAM CORAM CORAM : P.B.Majmudar and : P.B.Majmudar and : P.B.Majmudar and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : September 16, 2008. : September 16, 2008. : September 16, 2008. [ 2 ] P.C. 1. Heard the learned Counsel on both sides. 2. By filing this petition, the petitioner has prayed that the decision taken on 2nd September, 2008, Exhibit-A to this petition, by which the petitioner was asked to pay Rs. 3,54,25,000/- as a penalty in view of clause No. 3 (b) of the agreement arrived at between the petitioner and respondent-BEST, be set aside. The said order has been passed on the inspection carried out by the Vigilance Department, wherein some abnormalities as regards change in sizes of Kiosks attached to some of the poles were observed. The grievance of the petitioner is that impugned order has been passed without hearing the petitioner and if explanation was sought for, the petitioner could have explained all the aspects about change in sizes of kiosks. On behalf of the petitioner it is submitted that the order is passed in violation of the principles of natural justice as at least the petitioner should have been heard before passing such order demanding penalty amount in question. [ 3 ] 3. The learned Senior Counsel Mr. Thorat appearing for the respondent Nos. 1 to 3 submitted that the appropriate remedy for the petitioner is to file a Civil Suit, as the order in question cannot be straight way challenged under Article 226 of the Constitution of India before this Court. He further submitted that the order of recovery of penalty is passed on the basis of inspection report submitted by the Vigilance Department. 4. During the course of hearing Mr. Thorat, the learned Senior Counsel appearing for the respondents, on the basis of instructions, has submitted that without prejudice to the aforesaid stand taken, if any representation is made against the impugned decision, the General Manager, BEST shall decide such a representation in accordance with law and after hearing the petitioner. In view of the same, without considering at this stage, as to whether the petition is maintainable, the petitioner is permitted to make a representation to the General Manager, BEST in connection with the impugned Order and the General Manager, BEST shall take an appropriate decision on the representation in accordance with law and after hearing the petitioner in this behalf. Mr. Thorat, the [ 4 ] learned Senior Counsel appearing for the respondents, on the basis of the instructions, submitted that till the representation is decided, no action will be taken against the petitioner in connection with the impugned order. 5. In view of the aforesaid statement made by the learned Senior Counsel Mr. Thorat, appearing for the respondents, we permit the petitioner to make an appropriate representation within one week from the date of this order against the impugned Order, dated 2nd September, 2008. On receipt of such representation, the General Manager, BEST may take an appropriate decision in accordance with law after hearing the petitioner and dispose of the representation by passing speaking order. Whatever the decision taken by the General Manager, BEST may be communicated to the petitioner. Till the decision is taken on representation of the petitioner, the impugned order may not be enforced against the petitioner and the same also should not be further enforced for a period of two weeks from the date of communication of the decision to the petitioner. 6. It is clarified that we have not expressed any [ 5 ] opinion on the merits of the matter and in view of the reasonable stand taken by the respondents we have not gone into the aspect whether this petition is maintainable at this stage or not. 7. Subject to whatever stated above, the petition stands disposed of. [P.B.Majmudar, [P.B.Majmudar, [P.B.Majmudar, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]