BHAVESH GORADIAversusTHE STATE OF MAHARASHTRA AND ORS.

                                                  1-OSWP-833-2008.DOC




                                                             Akash Tayde

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION

                WRIT PETITION NO. 833 OF 2008
Bhavesh Goradia                                          …Petitioner
      Versus
The State of Maharashtra & Ors.                       …Respondents


Mr. Amey Patil a/w Mr. J.B.Vyas, Mr. Manav Kantawala, Ms. Harsha
Masand i/b Mr. Vivek Kantawala & Co., for the Petitioner.
Mr. Akshay Patkar, AGP, for the Respondent-State.
Mr. A.B. Ketkar a/w Ms.Meghna Vijan & Kardina Mathew i/b Sagar
Shetty, for the Respondent Nos.2 to 6.


                     CORAM: SUMAN SHYAM &
                            GAUTAM A. ANKHAD, JJ.
                     DATED:      16th SEPTEMBER, 2026.
PC:-

1.     Mr. A.B. Ketkar, learned Counsel appearing for the

Respondent Nos.2 to 6, seeks liberty to file a compilation of

documents including the judgments sought to be relied upon in

this case. However, the same is opposed by Mr. Patil, the learned

counsel for the petitioner, who wants to go on with the matter

today itself. In view of the above, we proceed to hear this matter.




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2.    Heard Mr. Amey Patil, Mr. Akshay Patkar, learned AGP

appearing for the Respondent-State and Mr. A.B. Ketkar, learned

Counsel appearing for the Respondent Nos.2 to 6.


3.    Assailing the final Order of assessment dated 24 th January

2008 (Exh.‘O’), the Petitioner has approached this Court by filing

the present Writ Petition. This is the second round of litigation.


4.    The facts and circumstances of the case, shorn of

unnecessary details, giving rise to the filing of the petition are that,

on 28th September 2007, inspection (Raid) was carried out at the

premises of the Petitioner. Thereafter, Provisional Assessment

Order and Demand Notice, for a claim for Rs.17,66,319/- (which

included vigilance claim of Rs.15,61,659/- & compounding charges

of Rs.2,04,660/-) was seized on account of theft of electricity on

the Petitioner. The Respondent Nos. 2 to 6 also threatened to

disconnect the electricity supply to the Petitioner’s premises. As

such, the Petitioner had deposited a sum of Rs.6,00,000/- under

protest, which was informed to Respondent No.2 by letter dated

28th September 2007.




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5.    Thereafter, several correspondences had been exchanged

between the parties. However, the issue could not be resolved.

Eventually, the Petitioner filed Writ Petition No.2578 of 2007

before this Court inter-alia contending that no opportunity of

hearing was given to the Petitioner before issuing the Provisional

Assessment Order. During the course of the proceeding, the

Petitioner had deposited an additional amount of Rs.1,00,000/-

with the authorities, thus depositing an amount of Rs.7,00,000/- in

total. By order dated 12 th December 2007, Writ Petition No.2578

of 2007 was disposed of by the learned Single Judge by granting

liberty to the authorities to proceed with the assessment

proceedings and to conclude the same within four weeks. Until

then, no precipitative steps were to be taken by the Respondents.


6.    In terms of the leave granted by the order dated 12 th

December 2007, the Respondents have passed the final order of

assessment dated 24th January 2008, which reads as under :-


     “Dear Sir,
            During the surprise inspection of your above
     installation by Vigilance(ES) Dept., on 28.09.2007, a
     total vigilance claim of Rs.17,66,319/- (vigilance claim
     of Rs.15,61,659/- and compounding charges of
     Rs.2,05,660/-) was preferred to you. You have made
     payment of Rs.7,00,000/-.




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            As per your contention & representation to GM,
      dated 04.10.2007 & 11.10.2007 and representation
      dated 23.01.2008, your claim is revised to
      Rs.7,48,288/- with the compounding of Rs.2,05,660/-.
      The same is duly approved by our Management.
             As you have already made payment of
      Rs.7,00,000/- against the claim amount, you are hereby
      requested to make the balance payment of vigilance
      claim of Rs.48,288/- and Compounding charges of
      Rs.2,04,660/- on receipt of this letter at BEST Bhavan,
      Review Committee (Vigilance), Regulatory Cell Office,
      Ground floor, Multistoryed Annexe building, BEST
      Marg, Colaba, Mumbai-400 001, so as to enable us to
      close the case.

            Thanking you,
                                              Yours faithfully,
                                              (M.B. Urunkar)
                                           Deputy Chief Engineer
                                               (REVIDW)”




7.    It is not in dispute that although, the original claim made by

Respondent Nos.2 to 6 was for an amount of Rs.17,66,319/-, yet,

the amount was subsequently reduced to Rs.7,48,288/-               (plus

compounding charges of Rs.2,04,660/-). However, the Petitioner

had already deposited an amount of Rs.7,00,000/- before the

authorities. Therefore, the impugned order has been assailed by

the Petitioner primarily contending that the same does not disclose

any reasons or basis for arriving at the figure of Rs.7,48,288/- but

the impugned figure has been arbitrarily arrived at only to




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appropriate the amount of Rs.7,00,000/- already deposited by the

Petitioner.


8.    Mr. Amey Patil, learned Counsel appearing for the Petitioner,

by referring to the material on record, submits that the impugned

order is not only violative of the legal rights of the Petitioner, but

the same also violates the principles of natural justice, thus

rendering the impugned order unsustainable in the eyes of law. He

further submits that the impugned order is vitiated by total

arbitrariness and non application of mind and hence, the same

the same is liable to be set aside on such count alone. He further

submits that the impugned order is also contrary to the letter and

spirit of the order dated 12th December 2007 passed by this Court.


9.    Responding to the above, Mr.A.B. Ketkar, submits that the

Petitioner has voluntarily deposited the amount of Rs.7,00,000/-

and the criminal liability has also been compounded accordingly,

by leveling compounding charges of Rs.2,04,660/-. He submits

that there is no scope for this Court to reopen the matter by setting

aside the impugned order in as much as a criminal proceeding

which stood extinguished under the final order of assessment

cannot now be revived by an order passed in a Civil Writ Petition.




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By citing the decision of the High Court of Judicature of Madras in

the case of M/s. Enflying Flowers vs. The Assistant Executive

Engineer (O & M) (WP No.30662/2014). Mr.Ketkar, has argued

that the relief prayed by the Petitioner cannot be granted since the

offence committed by him has already been compounded by

putting process of criminal prosecution to a halt.


10.   We have considered the submissions made at the bar and

have also gone through material on record. From a perusal of the

material on record we find that the impugned order dated 24 th

January 2008 does not contain any reasons nor does it furnish any

basis for arriving at the amount of Rs.7,48,288/- as the vigilance

claim. What gains significance in this case is the fact that the

original claim was for an amount of Rs.17,66,319/- and the said

amount    was    subsequently       brought   down      drastically   to

Rs.7,48,288/-, which according to the Petitioner, was done with

the sole objective of coinciding the said amount with the amount

of Rs.7,00,000/- already deposited by the Petitioner so as to put an

end to the controversy. This according to the Petitioner is

impermissible in the eyes of law.




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11.   Since the amount demanded by the Respondent Nos.2 to 6 is

in the nature of penal recovery, having adverse civil consequence

on the Petitioner, the Respondents would be duty bound to support

the demand with adequate reasons, which is not done in the

present case.


12.   In our view, the fact that the criminal proceedings has been

compounded cannot be the sole justification to sustain an

unreasoned order, which on the face of it, appears to be arbitrary

and illegal. In any case, the Petitioner is assailing the quantification

of only the vigilance sum in the impugned order and no further.


13.   In view of the above, the impugned order dated 24 th January

2008 is hereby set aside. Respondent Nos.2 to 6 are, however,

granted liberty to pass a fresh order by furnishing proper reasons,

after giving an opportunity of hearing to the Petitioner if the same

is desired by him.


14.   The aforesaid process be completed as expeditiously as

possible but not later than 3 months from the date of uploading of

this judgment. We make it clear that in view of the directions

issued herein above, no refund order is being issued by this Court




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for the present. The quantum of refund, if any, shall be subject to

the fresh final Assessment Order that may be passed by the

authorities in terms of the order of this Court.


15.   With the above the observations the Writ Petition stands

disposed of.


16.   No order as to cost.




(GAUTAM A. ANKHAD, J.)                             (SUMAN SHYAM, J.)
                                                                       {




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