JUDGMENT
E.S. Da Silva, J.
1. Heard. I see no merit in this petition.
2. The grievance of the respondent No. 1 (hereinafter called “the respondent”) is that the petitioner has not so far drawn the “Final Bill” in respect of the works carried out by them and that the Bill which was signed and wherein the respondent had confirmed all the objections raised earlier was not prepared according to law. The further grievance is that the objection raised by the respondent has also not been adjudicated by the petitioner in terms of Article 29 of the Contract and section 61 of the “Lei de Empreitada”. Therefore the question of the respondent having been allegedly paid or fully paid by the petitioner all their dues for the work done is not the real issue in controversy.
3. The petitioner contends that the Bill signed by the respondent is the Final Bill and whatever claims which were raised by the respondent have been already rejected by the petitioner by its earlier Resolutions dated 13th September, 1963 and 5th February, 1964 which were not at all challenged either by way of “Recurso gracioso” or “Recurso contencioso”. The consequence of this inaction on the part of the respondent is that whatever position was assumed by the petitioner has become res judicata and cannot be changed at this stage. Thus the decision given by its Resolution dated 12th September, 1968 amounts only to a reassertion of the previous stand taken by the petitioner and against which no appeal could lie to the Administrative Tribunal before whom such challenge is not maintainable.
4. I have gone through the impugned judgment of the Tribunal and carefully perused the relevant records. As far as the challenge against the maintainability of the appeal before the Tribunal is concerned, it is seen that by an earlier Order dated 31st March, 1973, all objections raised by the petitioner in this regard have been negativated and to that extent the finding arrived at by the Tribunal that the appeal is maintainable does not require to be faulted with. The submission of the petitioner that the prayer of the respondent before the Tribunal appears to be inconsistent with their pleadings inasmuch as the same seeks for a review of the Final Bill in the light of the objections raised by them have been in my view properly dealt with by the Tribunal when it held that what actually the respondent aimed at in their letter dated 2nd February, 1968 was that certain items of the work which were not considered in the so-called Final Bill should be so included and that this could have been done either by reviewing the earlier Final Bill or holding the objections raised and consequently preparing a Supplementary Bill. Thus the intention of the respondent was that certain items of work executed by them and which in their estimation had not been borne in mind the petitioner should have been taken into consideration for the preparation of the Final Bill.
5. On the other hand, the learned Tribunal appears also to be justified in observing that in terms of Article 29 of the Contract the petitioner was expected to give detailed reasons to reject the objections of the respondent and to say as to why the same were not admissible. Indeed the first order of rejection, dated 13th September, 1963, is shown to have been passed merely on the report given by the Technical Section of the Municipality while the second rejection also is apparently based on the fact that on earlier occasion the objections had been considered and negativated by the petitioners on 13th September, 1963.
6. Further there is also reliable material on record to indicate that these two Resolutions or decisions taken by the Municipality to reject the petitioner’s claims have not been duly intimated or communicated to the respondent in accordance with law. The learned Tribunal appears to be right in its observations that the respondent did not accept the reasons given by the Technical Section and persisted on the matter with subsequent correspondence by trying to substantiate the same objections and even in their letter dated 2nd February, 1969 they raised a number of points showing as to how, according to them, the reasons advanced by the petitioner while disallowing the objections against the Final Bill were untenable.
7. In this regard it is pertinent to note that the record discloses that even one of the members of the petitioner Dr. Mulgaocar in the meeting of the Council on 14th June, 1968 has expressly recorded his view that a fresh Final Bill should be prepared with the inclusion of the actual works executed by the respondent and on the basis of this suggestion the petitioner decided to hear the opinion of a Legal Advisor who after considering the relevant material and the facts and circumstances of the case also agreed with the opinion of the said Member of the Council. Inspite of that the petitioner seems to have overruled that expert’s legal advice on the matter and ultimately, by the impugned Order, purported to reject the respondent’s application for fresh consideration of their objections on the ground that these objections had been already adjudicated by its earlier orders or resolutions.
8. It is thus seen that since admittedly the prior Resolutions have not been legally intimated to the respondent the same become irrelevant for the purposes of their filing any appeal or challenge against them as a result whereof the only occasion for the respondent to throw such challenge would arise when the Final Bill is made available to them in the strict terms of the Contract and the relevant laws binding upon the parties. In this regard it cannot be overlooked that irrespective of the petitioner’s contention that the Final Bill was prepared and accepted as such by the respondent there has been a clear acknowledgement on the petitioner’s part even after the purported finalization of the Bill that there is still some amount outstanding and due to the respondent in the sum of Rs. 21,239.40 p. regarding certain items executed and which have not been still paid. Instead the impugned Order has sought to nullify the respondent’s fresh attempt by discarding the prayer made to consider on merits all their earlier objections and claims raised against the Bill.
9. In the circumstances it follows that the impugned Resolution dated 13th September, 1968 as well as the prior Resolution dated 13th September, 1963 and 5th February, 1964 to the extent that they seem to be in breach of the Contract and the relevant laws are to be held as null or non est and the learned Tribunal in so declaring cannot be said as having committed any illegality and improperly or irregularly exercised the jurisdiction vested on it.
10. Here it appears to be a case involving the question of a blatant violation of the principles of natural justice in as much as the respondent was never given a proper hearing or an opportunity to personally represent or substantiate on their claims and objections. The record also shows that by deliberation dated 5th July, 1978 the petitioner by agreeing with the suggestion of one of its members reserved its final Resolution on the matter after a proper opinion being taken from a legal expert which was chosen by the petitioner for the purpose. It is further seen that the said legal expert gave thereafter his detailed and reasoned opinion in support of the reservations raised by the dissenting member of the petitioner wherein it was expressly mentioned that there is nothing to show that the respondent had been notified or informed about the previous Resolutions rejecting their claims. The said opinion also made it clear that these previous objections were amounting only to interlocutory orders which were not required to be expressly challenged by way of a “Recurso contencioso”.
11. This being the position the submission made by Mr. Usgaokar, learned Counsel for the petitioner, that there is a legal bar for the petitioner to adjudicate again the objections raised by the respondent in view of the fact that the circumstance of the respondent having missed the opportunity to challenge the earlier Resolutions has rendered the same as res judicata and therefore the impugned order could not have been passed in a different manner is to be held as impermissible and devoid of any substance.
12. The result is that there seems to be no obstacle or legal impediment for the petitioner to consider again on merits, in the strict terms of the Contract and the laws applicable to the same as well, all the objections raised by the respondent in their earlier applications subsequently reiterated by the latest application dated 2nd February, 1967 and which is the subject matter of the impugned Order dated 13th September, 1968. I am therefore in agreement with the learned Tribunal that the respondent is entitled to have the claims adjudicated by the petitioner by giving them a hearing in compliance with the principles of natural justice. In my judgment no case has been made out by the petitioner for interference on the part of this Court with the order of the Tribunal dated 15th July, 1992 in the exercise of its extraordinary jurisdiction under Articles 226 and 227 of the Constitution. Hence rejected. There will be however no order as to costs.