Maharashtra Housing Development Authority vs Shapoorji Pallonji and Company Pvt. Ltd.

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 6

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 7

(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 8

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 9

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 10

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