Bombay High Court
Shapoorji Pallonji And Company ... vs State Of Maharashtra And Anr on 28 September, 2017
Bench: Anoop V. Mohta
spb/ 6WPL2070-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 2070 OF 2017
1. Shapoorji Pallonji & Company Private ) ... Petitioners.
Limited, a Company incorporated under )
the Companies Act, 1956 with its registered )
office at Contractor Building Basement, )
Ramjibhai Kamani Marg, Ballard Estate, )
Mumbai - 400 038. )
)
2. Mr. Jai Laxmikant Mavani, )
Director of Shapoorji Pallonji & Company )
Pvt. Ltd. Aged 47 years and having his )
office at 41/44, S.P.Centre, Minoo Desai, )
Marg, Colaba, Mumbai-400 005. )
V/s.
1. State of Maharashtra, acting through its )
department of Housing at Mantralaya, )
Madam cama Road, Hutatma Rajguru )
Square, Nariman Point, Mumbai -32. )
)
2. Maharashtra Housing Development )
Authority, acting through the Chief Officer, )
Mumbai Housing & Area Development )
Board at Grihanirman Bhavan Kalanagar, )
Bandra (East), Mumbai - 400 051. )
)
3. National Informatics Centre, having its )...Respondents.
th
office at 11 Floor, New Administrative )
Building, Mantralaya, Madam Cama Rd, )
Mumbai 400 032. )
---
Borey 1/32
::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:42:06 :::
spb/ 6WPL2070-17.odt
Mr. Iqbal Chagla, Senior Advocate with Mr. Ravi Kadam,
Senior Advocate, a/w. Mr. Prashant Mali, Ms. Shoma Maitra
i/by M/s. Wadia Ghandy & Co. for the Petitioners.
Mr. Kedar Dighe, AGP for the State- Respondent No.1.
Mr. Girish Utangale, Advocate a/w. Mr. Chetan Mhatre, i/by
M/s. Utangale & Co. for Respondent No.2.
Mrs. N. Masurkar, Advocate, with Mr. Vinay Shankar Masurkar
for Respondent No.3.
Mr. Siddeshwar Konur, - Ex. Engineer (MHADA), is present.
---
CORAM : ANOOP V. MOHTA AND
SMT. BHARATI H. DANGRE,JJ.
DATE : 28th SEPTEMBER, 2017
[JUDGMENT RESERVED ON : 22.09.2017
JUDGMENT PRONOUNCED ON : 28.09.2017]
JUDGMENT : (Per Bharati H. Dangre,J.)
1 Rule.
2 Heard the matter finally by consent of the parties at the
stage of admission.
3 Respondent No.2-Maharashtra Housing Development
Authority, through its Chief Officer, issued e-Tender notice
inviting proposals for the work of "Technical designing, co-
Borey 2/32
spb/ 6WPL2070-17.odt
ordination and construction for rehabilitation/sale/ commercial
/amenities alongwith construction of habitable temporary
transit camps and other various works in respect of
redevelopment project". The bidders were to submit their
bids in a single stage, two e-envelops e-tendering process. The
first e-envelope/the technical bid was to be evaluated to ensure
technical and financial qualification and was to contain the
documents of eligibility, depicting technical and financial
capacity of the bidder including the other documents.
Envelope no. 2 was to contain the financial bid in the format
prescribed. The bidding companies were to comply
experiences and required conditions mentioned in RFQ cum
RFP document. The time limit for the said project was
prescribed as 96 calendar months and the bid security/EMD
in the form of the demand draft or bank guarantee was to be
submitted for each project site with value of INR
54,00,00,000/-.
Borey 3/32
spb/ 6WPL2070-17.odt
4 The bid document was to be down loaded from the
e-tender website ww.mahatenders.gov.in from 3rd April, 2017
to 17th May, 2017 and the bidders were advised to refer to
bidders' manual kit available at http://mahatenders.gov.in for
details about e-tender process to be followed. The last date of
the submission of the OnLine bid was scheduled as 17th May,
2017 which was extended from time to time and lastly it was
fixed as 27th July, 2017 at 13.00 hours IST.
5 Petitioner No.1 is a company incorporated under
the Companies Act, engaged in the business of executing
construction, redevelopment and infrastructure projects and it
claims to pose vast experience, including the construction and
redevelopment project in the city of Mumbai.
In furtherance of the e-tender notice issued by
Respondent No.2, the petitioner no. 1 company, being desirous
of participating in the tender process, raised certain pre-bid
queries and uploaded its technical and financial bid on 27 th
July, 2017 at about 12.16 hrs on e-procurement system on the
Borey 4/32
spb/ 6WPL2070-17.odt
website of respondent no.1- www.mahatenders.gov.in. The
Petitioners relies upon a screen shot on the bid sreen,
confirming such uploading on date of submission to
demonstrate that their envelope nos. 1 and 2 were duly
uploaded on the schedule date and before the scheduled time
prescribed. According to the petitioners, the bid documents
were admittedly uploaded on the e-portal, however, the
freeze bid button was not logged or recorded in the
respondents' system, as a result, the petitioners could not get
any acknowledgement. As per tender conditions, a bank
guarantee equivalent to 5% of the contract value i.e. Rs. 50
crorers was also submitted by the petitioners in the office of
second Respondent, which is still lying with the second
respondent. The petitioner states that when the petitioner did
not receive the acknowledgment, the correspondence was
entered into between the petitioners and respondent nos. 1 and
2. The petitioners also made a request to the second
respondent for postponing the date of opening of the technical
packages, scheduled on 21st July, 2017, till the issue was
Borey 5/32
spb/ 6WPL2070-17.odt
resolved. However, respondent no. 2 proceeded with the
opening of technical bids and the in the process, the
petitioners also participated. The petitioner was orally
informed that the petitioner's bid was not received in the
respondents' system and therefore, its bid will not be
considered as "valid bid". The petitioners sought an experts'
opinion from the private consultants, who advised that since
the e-bid of the petitioners was properly uploaded on the
respondents' server, which should be available for access by the
second respondent and can be retrieved in time but since
respondent no.2 was not ready to consider the bid of the
petitioners, the petitioners approached this Court by filing the
present petition on 01.08.2017.
6 On 03.08.2017, this court directed the Respondent
No.2 MHADA to seek instructions as to why the bid of the
petitioners, though duly submitted on the schedule date and
time, is not seen on the Website of the respondents
department and that the counsel for the respondent no. 2 was
Borey 6/32
spb/ 6WPL2070-17.odt
specifically asked to verify whether it can be retrieved from the
server of the MHADA with assistance of the NIC. The matter
was, thereafter, posted to 07.08.2017. On the said date of
hearing, we thought it appropriate to implead the National
Informatics Centre, Mumbai as a party Respondent and on that
day, submission was made by the learned senior counsel for the
MHADA that the evaluation is in progress and it will take
approximately 7 days' time and the matter was adjourned.
The matter was adjourned from time to time and
the respondent no. 2 has submitted the affidavit-in-reply on
07.08.2017. In the affidavit in-reply, the respondents stated
that on the date of opening of technical bid, the bid of the
petitioners was not found on e-tender portal though in total
three bids were received, on e-tender portal on 27.07.2017
and, therefore, those bids which were received, were opened.
According to respondent no.2, the NIC had
intimated that "if the acknowledge slip was not generated
though the system, then the process of submitting bid is not
complete" Thereafter, correspondence entered between
Borey 7/32
spb/ 6WPL2070-17.odt
respondent no.2 and respondent no. 3-NIC. Respondent No. 2
alongwith the affidavit has placed on record the report
submitted by respondent no. 3-NIC, which is dated 04.08.2017.
It was intimated that the bidder did not click the freeze button
and therefore, the bid is invalid and data uploaded by the
bidder is not retrievable through web application. The tender
details and bidder's logging details on server were also
supplied which showed the bid status of the petitioners as
"Invalid bid" .
In view of the report of the NIC, we directed the
NIC, respondent No.3, to file an affidavit in reply. Accordingly,
on 16.08.2017 an affidavit-in-reply is filed before us by Mrs.
Ireni A, Co-ordinator, e-Procurement Software Division,
Mumbai. It is categorically stated that the bidder has not
clicked the freeze bid button and therefore, it did not generate
the acknowledgment, indicating all details in respect of the
completion of the bid submission.
The petitioners disputed the said statement and
filed an affidavit of Shri Arun Gupta, Managing Partner &
Borey 8/32
spb/ 6WPL2070-17.odt
Director Ingenium Advisory Pvt. Ltd., who is an expert in the
field of information technology. The said affidavit was filed
on 21.08.2017, wherein it was categorically stated that even if
the clicking/effect of the freeze bid button is not recorded by
the system, the uploaded bid document will be encrypted and
stored on NIC's server or associate either on a 'file server',
'network attached storage', 'storage area network' or within a
database, as the case may be.
7 Considering the said affidavit, which discloses the
technical viability of the process, we thought it necessary to
afford an opportunity to the NIC to deal-with the said
affidavit. The NIC has again filed an affidavit on 23.08.2017,
reiterating its earlier stand that clicking freeze bid button is
mandatory requirement to complete the bid process which
would automatically generate an acknowledgement which
would indicate all details with respect to completion of the
bid submission. However, there is no reply to the specific
affidavit of Mr.Arun Gupta filed on behalf of the petitioners
Borey 9/32
spb/ 6WPL2070-17.odt
and it has only stated in the affidavit that the affidavit of Shir
Gupta may not be considered by this court.
8 We have considered the rival contentions of the
parties. We have heard learned senior counsel Shri Iqbal
Chagla and learned senior counsel Shri Ravi Kadam on behalf
of the Petitioners and learned counsel Shri Girish Utangale
appearing for the MHADA and and the NIC. The learned
senior counsel appearing on behalf of the Petitioners argued
that when their bid documents were admittedly uploaded in
the e-portal within stipulated time in-spite of pressing freeze
bid button, the system of respondents did not record the same
and did not generate the acknowledgement. It is also
attempted to canvas before us that the pressing of freeze bid
button is not essential requisite for submission of the bid
document, as tender documents makes no reference to the
freeze button. According to the learned senior counsel, the
petitioners' essential requirement is the uploading of bid
document within the stipulated time. Learned senior counsel
Shri Chagla placed reliance on section 13 of the Information
Borey 10/32
spb/ 6WPL2070-17.odt
Technology Act, 2000, which provides for time and place of
despatch and receipt of electronic record. According to him
the opinion of the expert in information technology, who had
filed an affidavit before this court, stating that the bid
document would be available on the NIC's server in the same
format and composition, as at the time of their uploading to
the said e-portal, is not disputed by the NIC. The learned
senior counsel argued that even assuming the case against
himself, if bid freeze button is not pressed, at the most the
documents do not transmit to MHADA but they surely remain
in the server of the NIC since the NIC hosts the e-portal system
website on www.mahatenders.gov.in and has a complete access
to all data readers to use e-portal including such documents
that may be uploaded by the users on the site of e-portal.
According to the learned senior counsel the screen shot copy
produced by the petitioners reveals that the technical as well
as financial documents of the petitioners were successfully
uploaded on 27.07.2017 at 12.16 p.m. with a full size of
40087.00 for the technical bid and 814.00 for the financial
Borey 11/32
spb/ 6WPL2070-17.odt
bid. Thus according to him, the said files uploaded are
available on the server of the e-tender portal and with the
help of a technical staff, it is possible for the MHADA to
retrieve the submitted documents i.e. the technical and
financial bid of the petitioners.
Learned senior counsel for the Petitioners also
argues that since the process has the participation of three
bidders, who are technically qualified, there will be one more
bidder in the arena and it would sub-serve the public interest
by allowing one more bidder in the project of the huge
magnitude and according to him if the bid is retrieved, it
would not cause any prejudice to any other bidders or
MHADA. He placed reliance on the judgment of the Apex
Court in the case of M/s. Scania Commercial Vehicles India
Pvt. Ltd., vs. Govt. of Karnataka (2016 SCC OnLine Kar
6744). He also relied upon the judgment of the Division
Bench of this court (Coram : Swatanter Kumar, C.J. & A.M.
Khanwilkar,J.) in the case of Infrastructure Leasing and
Financial Services Ltd., & Anr. vs. State of Maharashtra &
Borey 12/32
spb/ 6WPL2070-17.odt
Anr. in Writ Petition No. 1454 of 2009 with Chamber
Summons No. 266 of 2009 in WP-1454 of 2009. He also
placed reliance on the judgment in the case of Khare and
Tarkunde Infrastructure Pvt. Ltd., vs. the State of
Maharashtra - (2015 (4) MLJ 474).
9 On the very first date of issuing notice to the
respondents, we had specifically asked the learned counsel for
respondent no.2 to verify whether the bid of the petitioners
which is uploaded can be retrieved from the server of the
MHADA with the assistance of the NIC. We also repeatedly
inquired from the NIC, who is entrusted with the duty of
officially hosting, designing and developing websites and
servers for various governmental agencies as an expert body,
however, both the respondent nos. 2 and 3 have failed to
technically answer the question posed to them by us. The
Respondent No. 2 - MHADA is relying upon the report of the
NIC to contend that the bid of the petitioners did not reach to
them and the NIC do not either explain to us technically as to
Borey 13/32
spb/ 6WPL2070-17.odt
what happens to the bid once it is uploaded on the system and
whether the encryption technology permits the decryption, by
using the key available with the NIC and MHADA. We had
asked NIC to reply technically to the affidavit of expert filed
by the petitioners, but the NIC fails to touch the technical
aspects of the matter, and keeps on reiterating that if the
freeze bid button is not pressed, it is a invalid bid.
10 We are conscious of the fact that we are not a
technical expert, however, we cannot completely shut our
eyes to certain factual statements of the petitioners which are
not disputed by the NIC. The NIC has submitted a report
which is annexed by respondent no.1 alongwith its affidavit
dated 04.08.2017 and the report mentions the logging ID from
which the bid of the petitioner no. 1 was uploaded. It also
reflects that on 27.07.2017 the petitioners logged 5 times
with its IP address -182.72.45.2. The report also gives file
upload details of the petitioners bid reflecting the uploaded
Borey 14/32
spb/ 6WPL2070-17.odt
date to be 27.07.2017 and shows that on the site/ on the given
dates, the of following files are uploaded :-
G. File uploaded details :
Sr. File Name Uploaded date File size in KB
No.
1 TECH.rar 27/07/17 12:06:24 PM 40087
The report shows the number and time when the
petitioner bidder logged, as also other bidders logged in,
showing that there was no problem in the server during that
time. Further the report contains the following statement :
"In this case, the bidder has uploaded the technical
and financial documents before the bid submission
end date and time. However, the bidder has not
clicked on the freeze button. Unless or otherwise
the freeze button is clicked, the document will not be
available to the tender inviting authority and will
remain in the area allocated for the bidder."
Further, in the affidavit filed by the NIC, the Coordinator of
Respondent No.3 , a following statement is made :
Borey 15/32
spb/ 6WPL2070-17.odt
"When the documents are uploaded they are
encrypted using PKI technology and digital signature
certificates of Bid Openers pre-designated by Tender
Inviting Authority for each tender. The encrypted
bids are stored safely in the storage attached to the
server. These encrypted bids would not be available
to tender Inviting Authority and cannot be
decrypted manually by any means. This full proof
process is followed as the electronic tendering is a
critical and sensitive application and no intervention
from any source should be able to tamper the bids.
This encryption methodology assures complete
security of the system. It is also submitted that NIC
does not have any access to the data."
11 The expert of the petitioners who has filed an affidavit
before this court makes a following submission in para nos. 4
and 5 thereof :
"4. My present technical clarification deals with the
question as to whether the aforesaid bid documents
have been successfully uploaded by the First
Petitioner and whether the same can be accessed and
Borey 16/32
spb/ 6WPL2070-17.odt
retrieved from the e-tender system and/or its
associated servers. Accordingly, I state that after
having attached the files comprising the bids
documents and hitting the submit or upload button
by the First petitioner, the First Petitioner's bid
documents get uploaded, i.e. copied, encrypted &
saved, from First Petitioner's Computer to remote
server/s of NIC in the hosted place given for MHADA.
I further clarify that the present Affidavit and my
views expressed hereinafter proceeds on the basis
that the Freeze Button did not get logged in the
Respondents system.
5. I say that even if the clicking/effect of the freeze
bid button is not recorded by the system, the
uploaded bid documents will be encrypted and stored
on NIC's server or associates either on a 'File Server',
'Network Attached Storage', 'Storage Area Network',
or within a database as the case may be. I say that in
the unnumbered paragraph 2 on Page 43 of the said
Affidavit, the Respondent No.3 clearly admits that the
bids are stored safely in storage attached to the
server. The server referred to in the said paragraph is
NIC's server as the documents have been uploaded
through NIC's e-portal and cannot be a reference to
the server of the First Petitioner."
Borey 17/32
spb/ 6WPL2070-17.odt
12 The technical expert of the petitioners, on whom
the petitioner relies upon, has also filed his affidavit before
this court in response to the query of this court and states that
the petitioners' bid documents got uploaded i.e. copied,
encrypted and saved from the Petitioners Computer to the
server of the NIC. The said documents are encrypted and
stored on the NIC server or at the database and that the server
is the NIC's e-portal. The expert has explained that the bid
openers i.e. the MHADA is authorized and duly equipped to
open the bids with decryption key to unlock the bids. It is
true that since the decryption key is held by the MHADA it will
be possible for MHADA and the NIC to jointly retrieve the
documents from NIC's server using the MHADA's decryption
key.
This particular technical aspect of the matter is not
replied to or answered either by the respondent no.2 or by the
respondent no.3 . The NIC in its report has specifically
admitted that after the bid was uploaded (the technical and
Borey 18/32
spb/ 6WPL2070-17.odt
financial documents) before the bid submission date and
time but since the freeze button is not pressed, the document is
not available to the tender inviting authority i.e. the MHADA
but it will remain in the area allocated for the bidder. In the
affidavit of NIC it is categorically stated that the encrypted
bids are stored safely in the storage attached to the server.
Thus there is a clear admission given by the NIC that the
encrypted bids are stored in the storage attached to the
server which has the space allocated by the NIC for e-tendering
process for the Maharashtra Government and Respondent No.
2 - MHADA was using the e-portal provided by the NIC. This
statement appears to be borne from the record as the
government's e-procurement system of the NIC which was
produced before us and it involves various steps to be followed
by the bidder while logging in the government e-procurement
system. The said system provides logging ID to the bidder
which is generated by the pass-word and thereafter the
bidder gets access to various tenders and several details of
the tender document. The bidder then proceeds to upload the
Borey 19/32
spb/ 6WPL2070-17.odt
document needed for bidding in the technical stage and then
proceeds to fill the financial bid. Every time, he presses an
encryption button, on which the documents get uploaded.
Thereafter, he again enters the pass-word and on clicking
"Ok" button, the packed bid document gets uploaded
successfully. Similar process is repeated in respect of the
financial bids.
When the petitioners receive the message that his
technical and financial bid documents have been uploaded
successfully and if either freeze button is not pressed,
generating an acknowledgment or if it is pressed but did not
get registered with the respondents website, then necessarily
the document did not get transmitted to the tendering
Authority and the NIC has rightly stated in its report dated
04.08.2017 that they "remain in the area of allocated for the
bidder", which was created by the bidder by using pass-word
and logging ID on the e-portal of Respondent No.3. As we are
not a technical expert as to know what manner the data can
be de-encrypted, but considering the admission and
Borey 20/32
spb/ 6WPL2070-17.odt
submission of the parties, it is apparent that on uploading of
the documents they are saved on the server and since the
MHADA did not receive it, they lie within the server of the NIC
and it is not possible to accept the submission of the NIC that
it cannot be retrieved. Further more the NIC has itself stated
in the affidavit that no manual intervention is possible and
once the data got encrypted it remains saved in the server,
thus according to us, by following the methodology stated by
the expert in respect of the petitioners' in his affidavit dated
21.08.2017, we feel that the interest of justice can be sub-
served by permitting the petitioners to participate in the
process and by giving directions to the respondent nos. 2 and 3
to access the bid documents of the petitioners which would
not cause prejudice to any of the participants since the financial
bids are not still opened and on the contrary it would be in
the interest of the State to have a wider choice of the bidders
since it would add one more bidder.
Borey 21/32
spb/ 6WPL2070-17.odt
13 In the case of M/s. Scania Commercial Vehicles
India (cited supra), the Karnataka High Court dealt with the
similar situation where during the uploading of the tender, the
system displayed a message "unexpected error" in the e-portal
which reflected a technical glitch. After dealing with the
factual scenario, the Karnataka High Court was pleased to
observe that it was not the case where the petitioner bidder
had not responded to the tender by attempting to upload the
bid within the prescribed time limit but due to some technical
hindrance, the bid was not uploaded and it was only available
in the 'draft' in the e-portal of the respondent. The Court was,
therefore, called upon to deal with the question about
acceptance of the same and not to add anything to it or
uploading any further documents but only by retrieving,
viewing and evaluating the same. In this background, the
Karnataka High Court observed in paras 23 and 24 thus :
"23.. ........ Though such recording is at the back
end of the system, what was displayed on the
screen was as 'unexpected error' which made the
Borey 22/32
spb/ 6WPL2070-17.odt
petitioner to contact the help desk, get clarification
and act accordingly which resulted in loss of time.
Hence, an appropriate software to display the
exact reason on the screen would have been
beneficial, which should also be the object if one is
to boast of adopting e-governance in its true intent.
In these circumstances when there is marginal delay
of less than 2 minutes in completing the process, if
an opportunity is granted and that too when it is
not an insertion or addition as fresh material, it will
neither be contrary to the Rules or the terms of
the tender requiring consideration of bids
submitted through e-process. It will also not be
contrary to the dictum laid down in the above cited
decisions.
24. If such benefit is granted, in my opinion,
it will in fact be in public interest. As noticed the
tender floated is for procurement of 150 AC
premium buses and 350 non-AC buses involving
the cost of Rs.250 crores. The petitioner is a well
known manufacturer of buses and if they are
allowed to remain in the field it will only increase
the competition though ultimately it will all depend
on the technical as well as financial evaluation and
that too subject to the entire details being available
in the 'draft' that is already uploaded. On the other
Borey 23/32
spb/ 6WPL2070-17.odt
hand if an opportunity is not granted only because
of the delay of less than 2 minutes and that too in
the circumstance stated above, it will leave only
the respondents no. 5 and 6 in the field without
much competition. To allow a tender of such
magnitude to the benefit of one or two tenderers
due to default rather on merit, it certainly is not in
public interest. While stating so, this court is also
conscious of the fact that it should not cause
prejudice to the bidders who are already in the
field. The petitioner should therefore, have benefit
of only the details which is sin the digital form as
'draft', in the e-portal of the respondent no. 4,
which only shall be enabled by the respondent no. 4
to be retrieved, viewed and noted by respondent
no.3 and no other addition or subtraction can be
permitted ..... ....".
In the judgment of Division Bench of this court in
Infrastructure Leasing and Financial Services Ltd.'s case,
cited supra, relied upon by the learned senior counsel for the
petitioners, where the court was dealing with the acceptance
of bid through manual mechanism and where the bid was
received few minutes before the closing time but due to the
Borey 24/32
spb/ 6WPL2070-17.odt
mistake of the clerk, the time was shown, two minutes after
the bid process was complete and the said bid was categorized
was 'late bid' and was not permissible to be accepted. The
Bombay High Court observed in para 28 of the said judgment
as follows :
"28. This entire problem can even be viewed from
another angle. Does any of the parties including
the Respondent particularly would suffer from any
prejudice if the tender of the Petitioners is also
permitted to be considered?. Obvious answer would
be in the negative. It is a tender of huge amount
and it will be in the interest of the State on the one
hand to have a wider choice out of the lowest
bidders and on the other hand, it would serve the
public interest. It can hardly serve any public
purpose and public interest if fair competition is
suppressed at this juncture. We are told that there
are only three tenderers including the Petitioners.
Nothing substantial has happened as yet. In our
view, no prejudice will be caused to any of the
parties including the Respondent who will get
wider zone of consideration by offering greater
competition which will always be in the public
Borey 25/32
spb/ 6WPL2070-17.odt
interest. Obviously, the Petitioners would not gain
anything as all the bids are in a sealed cover and it
is for the State to take appropriate decision
depending upon the clear technical bids and
financial bids offered by the tenderers in
accordance with the terms and conditions of the
tender document."
Further the Bombay High Court in dealing with a similar
issue as to whether the financial bid can be retrieved when
the system is closed, in Khare and Tarkunde Infrastructure
Pvt. Ltd.'s case, in a judgment delivered by the division bench
of this court (Coram : B.R. Gavai and V.M. Deshpande, JJ)
had summoned an expert in the information and technological
department and had made a particular query as to whether it
is possible to open financial bids after its closing date and it
received an answer in the positive and the court has recorded
so in paragraph 26 of the said judgment :
"26. It was submitted by the learned Government
Pleader yesterday that since the petitioner's tender
was rejected and his bid was locked and, therefore,
Borey 26/32
spb/ 6WPL2070-17.odt
it will not be possible for the State to open its
financial bid. We, therefore, requested the learned
Government pleader to ask the officer who is
conversant with the process of technology applied in
the tender matters to remain present in the Court.
Accordingly, Mr. Shrikant Golkutwar, Assistant
Engineer in Information and Technology
Department of the Public Works Department,
Nagpur is personally present in the Court. He has
stated that it is possible to open the financial bid of
the petitioner. On a specific query, he has stated
that it is not possible for the petitioner to change his
bid and the Department possesses the technical
experience to open the financial bid of the
petitioner as was submitted by it in its original
tender."
Though the learned senior counsel for the petitioners has
argued before us that freezing button is not an essential
condition of the tender. In the light of the parameters laid
down by the Apex Court, as regards essential and non-essential
conditions of the tender, by making the reference to the
judgment in the case of Rashmi Metaliks Limited & Anr. vs.
Kolkata Metropolitan Development Authority & Ors.
Borey 27/32
spb/ 6WPL2070-17.odt
[2013 (10) Supreme Court Cases 95], we do not propose to go
into the issue whether the said condition was essential or not,
since the technology requires a particular thing to be done to
complete the process, it ought to be followed when the
bidders were given manual kits to follow. We are examining
the issue that when this system had failed, what is the
solution to be offered to a bidder, who cannot be said to be at
fault. We, therefore, do not feel necessary to refer to this
judgment cited by the learned senior counsel.
On perusal of the aforesaid position of law, as
reflected in various judgments, it is clear that technology has
its own glitches and the moot question is whether such
glitches, which causes substantial injustice are permitted to
be cured manually, when as on today we have not reached a
stage where the systems is full proof and gives a guarantee that
it is not susceptible to any error.
14 The impact of technology in our life today, is
unimaginable. We use technology every day and it has saved
Borey 28/32
spb/ 6WPL2070-17.odt
us of time and efforts. Introduction of the e-tendering system
has made the cumbersome process of tenders simple, faster and
also free from unnecessary human intervention. However, in
a situation with which we have dealtwith above, the question
is whether the use of the technology has offered solutions or
it has created issues. The increased dependency on modern
technology has reduced our creativity and human being is
dependent upon the said technology which undisputedly is
an useful servant but a dangerous master. In words of Albert
Einstein "human spirit must prevail over technology". In the
present case in hand we have observed that uncertainty
prevails in certain areas and no technology can make the
system 'full proof' and as such a situation where the
technology can err, we cannot completely exclude the element
of human intervention in exceptional circumstances.
Ultimately, it is the human being who controls the technology
and when it errs, it is for the human being to rectify it. No
solution is coming from the expert and the technology
operator-NIC as to what happens if the "freeze button is not
Borey 29/32
spb/ 6WPL2070-17.odt
clicked". On the other hand, the NIC itself shows that once
the bids are uploaded, they remain safe and saved and human
intervention is not possible. In this background and for the
reasons which we have already discussed above, we feel it
expedient to intervene in the technological procedure since
we feel that the technology has failed to serve its intended
purpose in the present case and interest of justice call for
intervention. Every citizen has legal and fundamental rights
which are required to be protected and in a digital world the
said rights cannot be lost sight of but the same are to be
protected by providing alternative and effective solutions, to
be introduced into the modern technology/web-system and in
the process of tender it is very much necessary to ensure that
the bidders are not shunted out of the procedure only on
account of any technical glitch and technology needs to be
developed in a manner to cater to their needs without
causing any delay in the scheduled time. We also makes it
clear that we are inclined to grant relief to the petitioners,
considering 'public interest and the fact that the bid of
Borey 30/32
spb/ 6WPL2070-17.odt
petitioners (technical/financial) are already sealed after their
uploading and no changes are possible now, and we treat this
as sealed packets submitted within date and time as per tender
document.
15 In the aforesaid facts and circumstances, we issue
directions to the NIC to 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
alongwith the other three bidders who are already in the fray.
Borey 31/32
spb/ 6WPL2070-17.odt
16 In the result, the writ petition is allowed in the
aforesaid terms. Rule is made absolute accordingly. No order
as to costs.
(SMT. BHARATI H. DANGRE,J.) (ANOOP V. MOHTA,J.)
.....
Borey 32/32
