MAHARASHTRA HOUSING DEVELOPMENT AUTHORITYV. SHAPOORJI PALLONJI & COMPANY PRIVATE LIMITED & ORS. versus SHAPOORJI PALLONJI & COMPANY PRIVATE LIMITED & ORS. on 12 February 2018

MAHARASHTRA HOUSING DEVELOPMENT AUTHORITY

v.

SHAPOORJI PALLONJI & COMPANY

PRIVATE LIMITED & ORS.

(Civil Appeal No. 1836 of 2018)

FEBRUARY 12, 2018

[RANJAN GOGOI AND R. BANUMATHI, JJ.]

Tender – e-Tender – Appellant-Maharashtra HousingDevelopment Authority (MHADA) issued e-Tender notice invitingproposals for work of “Technical designing, coordination andconstruction....and other various works in respect of redevelopmentproject” – First respondent-writ petitioner case that it had uploadedits technical and financial bid on the website of the appellant andthough it had pressed the ‘freeze button’, it could not get anacknowledgement of the bid submitted – National Informatics Centre(NIC) took the view that there was no technical glitch in the systemand in absence of acknowledgement of the submission of the bid bythe first respondent, it was not entitled to any consideration of itsdefective bid – Writ Petition – High Court directed NIC to accessthe files of the first respondent and make it available to MHADA,which would decrypt the said files and consider the bid documentsas a “valid bid” – On appeal, held: Directions issued by the HighCourt incorrect – NIC which had developed the portal had statedbefore the Court on affidavit that retrieval of the documents evenjointly with MHADA is not feasible or possible – That apart, lackof any timely response of the first respondent when the system hadfailed to generate an acknowledgement of the bid documents in asituation where the first respondent claims to have pressed the ‘freezebutton’; the generation of acknowledgements in respect of otherbidders and the absence of any glitch in the technology wouldstrongly indicate that the bid submitted by the first respondent wasnot a valid bid – Directions issued by the High Court in favour ofthe first respondent virtually confers on the said respondent a secondopportunity which cannot be countenanced.

261

A

B

CDE

F

G

262SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. The first issue that arises for a decision iswhether the bid document(s) uploaded by the first respondent –writ petitioner can be retrieved or is irretrievably lost. Thesecond issue is - assuming the bid document(s) submitted byBthe first respondent is retrievable, whether the first respondentwould be entitled to a consideration of the bids submitted by iton merits as has been directed by the High Court. [Para 6][264-F-G]

2. In the counter affidavit filed by the NIC it has beenCstated that the bid uploaded by the first respondent was invalidas the representative(s) of the said respondent did not press the‘freeze button’ which alone would have completed the bidprocess. In this regard, the NIC has further stated that therewas no problem in the server during the relevant time periodand as many as 427 bid documents (pertaining to other tenders)Dwere uploaded between 1200 hours to 1300 hours on the saiddate i.e. 27[th] July, 2017. The NIC in its affidavit has further statedthat if the first respondent had uploaded the documents at 1216hours on 27[th] July, 2017 and it had not received the bid submissionacknowledgement it still had 44 minutes to contact the NIC forEhelp which help was not sought. In this regard, the NIC hasfurther stated that the first respondent – bidder had participatedin e-Tendering in Maharashtra Government portal earlier andthus it was familiar with the entire process. [Para 9][265-F-H]

3. The NIC which had developed the portal had statedbefore the Court on affidavit that retrieval of the documents evenFjointly with Maharashtra Housing Development Authority is notfeasible or possible. That apart, lack of any timely response ofthe first respondent when the system had failed to generate anacknowledgement of the bid documents in a situation where thefirst respondent claims to have pressed the ‘freeze button’; theGgeneration of acknowledgements in respect of other bidders andthe absence of any glitch in the technology would strongly indicatethat the bid submitted by the first respondent was not a valid bidand the directions issued by the High Court in favour of the firstrespondent virtually confers on the said respondent a secondHopportunity which cannot be countenanced. [Para 10][266-A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1836of 2018.

From the Judgment and Order dated 28.09.2017 of the High Courtof Judicature at Bombay in Writ Petition (L) No. 2070 of 2017.

Dushyant Dave, Sr. Adv., Chirag M. Shroff, Ms. Neha Sangwan,Advs. for the Appellants.

Atmaram Nadkarni, ASG, Neeraj Kishan Kaul, Mukul Rohatgi,Sr. Advs. Kunal Vijani, Ms. Padhma Lakshmi Iyenger, Pranaya Goyal,Kingshuk Banerjee, Dr. Nishesh Sharma, Ms. Seema Bengani,Merusagar Samantray, Ms. Lhingneivah Gurmeet Singh Makker, Advs.for the Respondents.

The Judgment of the Court was delivered by RANJAN GOGOI, J. 1. Leave granted.

2. The appellant – Maharashtra Housing Development Authoritythrough its Chief Officer issued e-Tender notice inviting proposals forthe work of “Technical designing, coordination and construction forrehabilitation/sale/ commercial/amenities along with construction ofhabitable temporary transit camps and other various works in respect ofredevelopment project”. The bidders were to submit their bids in twostages i.e. technical and financial. They were required to comply withthe experiences and other conditions mentioned in the Request forQualification-cum-Request for Proposal (RFQ cum RFP) document.The last date for submission of on-line bid was fixed on 17[th] May, 2017which was subsequently extended from time to time and lastly extendedupto 1300 hours of 27[th] July, 2017.

3. According to the first respondent – writ petitioner, it had uploadedits technical and financial bid at about 1216 hours on 27[th] July, 2017 onthe website of the appellant. The first respondent – writ petitioner claimedthat though it had pressed the ‘freeze button’, it could not get anacknowledgement of the bid submitted. Thereafter, correspondenceswere entered into/exchanged between the first respondent and theappellant whereafter the first respondent was referred to NationalInformatics Centre (NIC) which had designed and maintained the e-portal on which bids were submitted. As the NIC took the view that theabsence of acknowledgement of the submission of the bid by the firstrespondent – writ petitioner was on account of its omission to press the A

B

C

DE

F

G

H

A‘freeze button’ and as there was no technical glitch in the system, amplydemonstrated by the acknowledgements generated in favour of otherbidders, the first respondent – writ petitioner was not entitled to anyconsideration of its otherwise defective bid. This had led to the filing ofwrit petition out of which this appeal has arisen wherein the High Courtof Bombay by the impugned judgment dated 28[th] September, 2017 hadBissued the following directions:

“15. In the aforesaid facts and circumstances, we issue directionsto the NIC to access the files containing the bid documents of thepetitioners and transfer and/or make it available to respondentno.2 MHADA which would decrypt the said files and considerCthe bid documents of the petitioners as a “valid bid” with theassistance of the NIC and open the technical bid of the petitionersforthwith since we are conscious of the fact that the learnedcounsel for the MHADA had made a statement before us on07.08.2017 that the technical evaluation of the bids is going onDand in any case we do not intend to stall the project. If thepetitioners bid satisfies the technical conditions, his financial bidcan be considered along with the other three bidders who arealready in the fray.”

4. It is the aforesaid directions that have been assailed in thisEappeal by the Maharashtra Housing Development Authority.

5. We have heard Shri Dushyant A. Dave, learned Senior Counselappearing for the appellant, Shri Neeraj Kishan Kaul, learned SeniorCounsel appearing for the first respondent – writ petitioner and ShriA.N.S. Nadkarni, learned ASG appearing for the NIC.

F

6. The matter lies within a short compass. The first issue thatarises for a decision is whether the bid document(s) uploaded by thefirst respondent – writ petitioner can be retrieved or is irretrievably lost.The second issue is - assuming the bid document(s) submitted by thefirst respondent is retrievable, whether the first respondent would beGentitled to a consideration of the bids submitted by it on merits as hasbeen directed by the High Court.

7. To answer the first issue this Court by order dated 18[th] January,2018 has directed the NIC to file an affidavit to answer the followingquery:

“Whether the data uploaded by the respondent - bidder – ShapoorjiPallonji & Company Private Limited, receipt of which was notacknowledged on account of his alleged failure to press the ‘FreezeButton’, is irretrievably lost by this time and cannot be retrievedunder any circumstance?”

8. Pursuant to the aforesaid order dated 18[th] January, 2018 theNIC has filed an affidavit dated 23[rd] January, 2018 wherein it has beenstated that the data uploaded by the first respondent cannot be retrievedby the NIC and Maharashtra Housing Development Authority jointly orseverally under any circumstances in the present e-Tendering systemwith prevailing Government of India Guidelines. In paragraph 7 of theaforesaid affidavit dated 23[rd] January, 2018 the NIC has also stated asunder:

“7. As far as NIC is concerned it cannot access the invalid biddocuments since it has neither the keys nor the approved processto download the same pertaining to any packet/envelop/cover.Even though keys are available with Maharashtra HousingDevelopment Authority (Petitioner), but even with that keys thebid documents cannot be retrieved at this time as the bid openingevent has already been concluded. Thus bid documents cannotbe retrieved under any circumstances from the e-Tenderingsystem.”

9. The above apart, in the counter affidavit filed by the NIC it hasbeen stated that the bid uploaded by the first respondent was invalid asthe representative(s) of the said respondent did not press the ‘freezebutton’ which alone would have completed the bid process. In thisregard, the NIC has further stated that on 27[th] July, 2017 there was noproblem in the server during the relevant time period and as many as427 bid documents (pertaining to other tenders) were uploaded between1200 hours to 1300 hours on the said date i.e. 27[th] July, 2017. The NICin its affidavit has further stated that if the first respondent had uploadedthe documents at 1216 hours on 27[th] July, 2017 and it had not receivedthe bid submission acknowledgement it still had 44 minutes to contactthe NIC for help which help was not sought. In this regard, the NIC hasfurther stated that the first respondent – bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it wasfamiliar with the entire process.

A

BC

DE

FG

H

A10. If the NIC, which had developed the e-portal in which bidswere to be submitted and maintenance and upkeep of which was itsresponsibility, had stated in its affidavit what has been indicated above,we do not see how the repeated statements made on behalf of the firstrespondent that the bid documents can still be retrieved, if required bytraveling beyond the Government of India guidelines, should commendBto us for acceptance. The opinion rendered in this regard by the consultantof the first respondent Mr. Arun Omkarlal Gupta on which much stressand reliance has been placed by the first respondent could hardly bedeterminative of the question in a situation where the NIC which haddeveloped the portal had stated before the Court on affidavit that retrievalCof the documents even jointly with Maharashtra Housing DevelopmentAuthority is not feasible or possible. That apart, lack of any timelyresponse of the first respondent when the system had failed to generatean acknowledgement of the bid documents in a situation where the firstrespondent claims to have pressed the ‘freeze button’; the generation ofacknowledgements in respect of other bidders and the absence of anyDglitch in the technology would strongly indicate that the bid submitted bythe first respondent was not a valid bid and the directions issued by theHigh Court in favour of the first respondent virtually confers on the saidrespondent a second opportunity which cannot be countenanced.

11. In the above view of the matter, we are inclined to take theEview that the High Court was not correct in issuing the directions extractedabove as contained in paragraph 15 of the impugned judgment/orderdated 28[th] September, 2017. The same are, therefore, interfered with.The appeal is allowed accordingly.

F

Ankit Gyan

Appeal allowed.

G

H