MAHARASHTRA HOUSING DEVELOPMENT AUTHORITYV. SHAPOORJI PALLONJI & COMPANY PRIVATE LIMITED & ORS. versus SHAPOORJI PALLONJI & COMPANY PRIVATE LIMITED & ORS.

Citation: [2018] 2 S.C.R. 261 · Decided: 12-02-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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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 Housing
Development Authority (MHADA) issued e-Tender notice inviting
proposals for work of “Technical designing, coordination and
construction....and other various works in respect of redevelopment
project” – First respondent-writ petitioner case that it had uploaded
its technical and financial bid on the website of the appellant and
though it had pressed the ‘freeze button’, it could not get an
acknowledgement of the bid submitted – National Informatics Centre
(NIC) took the view that there was no technical glitch in the system
and in absence of acknowledgement of the submission of the bid by
the first respondent, it was not entitled to any consideration of its
defective bid – Writ Petition – High Court directed NIC to access
the files of the first respondent and make it available to MHADA,
which would decrypt the said files and consider the bid documents
as a “valid bid” – On appeal, held: Directions issued by the High
Court incorrect – NIC which had developed the portal had stated
before the Court on affidavit that retrieval of the documents even
jointly with MHADA 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 – Directions issued by the High Court in favour of
the first respondent virtually confers on the said respondent a second
opportunity which cannot be countenanced.
[2018] 2 S.C.R. 261
261
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SUPREME COURT REPORTS
[2018] 2 S.C.R.
Allowing the appeal, the Court
HELD:  1. 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.  [Para 6][264-
F-G]
2.  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 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 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.  [Para 9][265-F-H]
3.  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 favour of the first
respondent virtually confers on the said respondent a second
opportunity which cannot be countenanced. [Para 10][266-A-D]
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1836
of 2018.
From the Judgment and Order dated 28.09.2017 of the High Court
of

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