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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1836 OF 2018

[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.28570 OF 2017]

MAHARASHTRA HOUSING DEVELOPMENT AUTHORITY        ...APPELLANT(S)

VERSUS SHAPOORJI PALLONJI & COMPANY  PRIVATE LIMITED & ORS.   ...RESPONDENT(S)

JUDGMENT RANJAN GOGOI, J.  

1. Leave granted.

2. The  appellant  –  Maharashtra Housing Development Authority through its Chief  Officer  issued  e-Tender  notice inviting  proposals  for  the  work  of “Technical  designing,  coordination  and construction  for  rehabilitation/sale/ commercial/amenities  along  with construction  of  habitable  temporary transit camps and other various works in

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respect  of  redevelopment  project”.   The bidders were to submit their bids in two stages i.e. technical and financial. They were  required  to  comply  with  the experiences and other conditions mentioned in  the  Request  for Qualification-cum-Request for Proposal (RFQ cum  RFP)  document.   The  last  date  for submission of on-line bid was fixed on 17th

May, 2017 which was subsequently extended from time to time and lastly extended upto 1300 hours of 27th July, 2017.

3. According to the first respondent –  writ  petitioner,  it  had  uploaded  its technical and financial bid at about 1216 hours on 27th July, 2017 on the website of the  appellant.   The  first  respondent  – writ petitioner claimed that though it had pressed the ‘freeze button’, it could  not get  an  acknowledgement  of  the  bid submitted.   Thereafter,  correspondences were  entered  into/exchanged  between  the

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first  respondent  and  the  appellant whereafter  the  first  respondent  was referred  to  National  Informatics  Centre (NIC)  which  had  designed  and  maintained the e-portal on which bids were submitted. As the NIC took the view that the absence of  acknowledgement  of  the  submission  of the  bid  by  the  first  respondent  –  writ petitioner was on account of its omission to  press the ‘freeze button’ and as there was  no  technical  glitch  in  the  system, amply demonstrated by the acknowledgements generated in favour of other bidders, the first respondent – writ petitioner was not entitled  to  any  consideration  of  its otherwise defective bid.   This had led to the filing of writ petition out of which this  appeal  has  arisen  wherein  the  High Court of Bombay by the impugned judgment dated 28th September, 2017 had issued the following directions:

“15. In  the  aforesaid facts  and  circumstances,  we issue directions to the NIC to

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access the files containing the bid documents of the petitioners and  transfer  and/or  make  it available  to  respondent  no.2 MHADA  which  would  decrypt  the said files and consider the bid documents of the petitioners as a  “valid  bid”  with  the assistance of the NIC and open the  technical  bid  of  the petitioners  forthwith  since  we are conscious of the fact that the  learned  counsel  for  the MHADA  had  made  a  statement before us on 07.08.2017 that the technical evaluation of the bids is going on and in any case we do  not  intend  to  stall  the project.   If  the   petitioners bid  satisfies  the  technical conditions,  his  financial  bid can be considered along with the other  three  bidders  who  are already in the fray.”

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

5. We  have  heard  Shri  Dushyant  A. Dave, learned Senior Counsel appearing for the  appellant,  Shri  Neeraj  Kishan  Kaul, learned Senior Counsel appearing for the

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first  respondent  –  writ  petitioner  and Shri  A.N.S.  Nadkarni,  learned  ASG appearing for the NIC.  

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

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

“Whether the data uploaded by the  respondent  -  bidder  – Shapoorji  Pallonji  &  Company Private  Limited,  receipt  of

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which was not acknowledged on account of his alleged failure to press the ‘Freeze Button’, is irretrievably lost by this time  and  cannot  be  retrieved under any circumstance?”

8. Pursuant  to  the  aforesaid  order dated 18th January, 2018 the NIC has filed an  affidavit  dated  23rd January,  2018 wherein it has been stated that the data uploaded by the first respondent cannot be retrieved  by  the  NIC  and  Maharashtra Housing  Development  Authority  jointly  or severally under any circumstances in the present e-Tendering system with prevailing Government  of  India  Guidelines.    In paragraph  7  of  the  aforesaid  affidavit dated 23rd January, 2018 the NIC has also stated as under:

“7. As  far  as  NIC  is concerned it cannot access the invalid bid documents since it has neither the keys nor the approved  process  to  download the  same  pertaining  to  any packet/envelop/cover.    Even though keys are available with Maharashtra  Housing Development  Authority

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(Petitioner),  but  even  with that  keys  the  bid  documents cannot  be  retrieved  at  this time as the bid opening event has  already  been  concluded. Thus  bid  documents  cannot  be retrieved  under  any circumstances  from  the e-Tendering system.”

9. The  above  apart,  in  the  counter affidavit  filed  by  the  NIC  it  has  been stated that the bid uploaded by the first respondent  was  invalid  as  the representative(s)  of  the  said  respondent did  not  press  the  ‘freeze  button’  which alone  would  have  completed  the  bid process.   In  this  regard,  the  NIC  has further  stated  that  on  27th July,  2017 there was no problem in the server during the relevant time period and as many as 427  bid  documents  (pertaining  to  other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e. 27th

July, 2017.  The NIC in its affidavit has further  stated  that  if  the  first respondent had uploaded the documents at

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1216 hours on 27th July, 2017 and it had not  received  the  bid  submission acknowledgement it still had 44 minutes to contact the NIC for help which help was not sought.  In this regard, the NIC has further stated that the first respondent – bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus  it  was  familiar  with  the  entire process.   

10. If  the  NIC,  which  had  developed the  e-portal  in  which  bids  were  to  be submitted  and  maintenance  and  upkeep  of which was its responsibility, had stated in its affidavit what has been indicated above,  we  do  not  see  how  the  repeated statements  made  on  behalf  of  the  first respondent  that  the  bid  documents  can still  be  retrieved,  if  required  by traveling beyond the Government of India guidelines,  should  commend  to  us  for acceptance.  The opinion rendered in this

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regard  by  the  consultant  of  the  first respondent  Mr.  Arun  Omkarlal  Gupta  on which  much  stress  and  reliance  has  been placed  by  the  first  respondent  could hardly be determinative of the question in a  situation  where  the  NIC  which  had developed the portal had stated before the Court on affidavit that retrieval of the documents  even  jointly  with  Maharashtra Housing  Development  Authority  is  not feasible or possible.  That apart, lack of any  timely  response  of  the  first respondent when the system had failed to generate  an  acknowledgement  of  the  bid documents in a situation where the first respondent  claims  to  have  pressed  the ‘freeze  button’;  the  generation  of acknowledgements  in  respect  of  other bidders and the absence of any glitch in the  technology  would  strongly  indicate that  the  bid  submitted  by  the  first respondent  was  not  a  valid  bid  and  the directions  issued  by  the  High  Court  in

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favour of the first respondent virtually confers  on  the  said  respondent  a  second opportunity which cannot be countenanced.  

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

....................,J.            (RANJAN GOGOI)

....................,J.     (R. BANUMATHI)

NEW DELHI FEBRUARY 12, 2018