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Saturday, 30 September 2017

Whether manual intervention is permissible if anything goes wrong in technical processes?

The   impact     of   technology   in   our   life   today,   is
unimaginable.  We use technology  every day and it has saved

us of time and efforts.   Introduction  of the e­tendering 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
operator­NIC as to what happens if the “freeze button is not

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/web­system 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

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. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.  2070    OF    2017
 Shapoorji Pallonji & Company Private  V/s. State of Maharashtra, 
   CORAM :  ANOOP V. MOHTA       AND
                     SMT. BHARATI H. DANGRE,JJ.
                        DATE  :  28th SEPTEMBER,   2017



1   Rule.  
2   Heard the matter finally by consent of the parties at the
stage of admission. 
3     Respondent  No.2­Maharashtra   Housing  Development
Authority,   through   its   Chief   Officer,   issued   e­Tender   notice
inviting proposals  for the work  of “Technical designing, coBorey

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 e­envelops e­tendering process.  The
first e­envelope/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/­.  

4 The bid document was to be down loaded  from the
e­tender 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 e­tender 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 e­tender notice issued   by
Respondent No.2, the petitioner no. 1 company, being desirous
of participating in the tender process, raised certain pre­bid
queries and uploaded its technical and financial bid on 27th
July, 2017  at about 12.16 hrs on e­procurement system  on the

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 e­portal, 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

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 e­bid 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

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 affidavit­in­reply on
07.08.2017.  In the affidavit in­reply, the respondents  stated
that on the date of opening   of technical bid, the bid of the
petitioners  was not found  on e­tender  portal though in total
three bids were received, on e­tender   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

respondent no.2 and respondent no. 3­NIC.  Respondent No. 2
alongwith   the   affidavit   has   placed     on   record   the   report
submitted by respondent no. 3­NIC, 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 affidavit­in­reply is filed before us by Mrs.
Ireni A,   Co­ordinator,    e­Procurement   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   &

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   deal­with   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

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 e­portal within stipulated time in­spite  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

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 e­portal, 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 e­portal system
website on www.mahatenders.gov.in and has a complete access
to all data readers to use e­portal including   such documents
that may be uploaded by the users on the site   of e­portal.
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

bid.     Thus according to him, the said files   uploaded   are
available on the server   of the e­tender 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 sub­serve 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 &

Anr.  in   Writ   Petition   No.   1454   of   2009   with   Chamber
Summons No. 266 of 2009 in WP­1454 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

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

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.
No.
File Name Uploaded date File size in KB
1 TECH.rar 27/07/17 12:06:24 PM 40087
2 FinancialBid.pdf. 27/07/17 12:16:43 PM 814
  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 :

“When   the   documents   are   uploaded   they   are
encrypted using PKI technology  and digital signature
certificates of Bid Openers pre­designated  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

retrieved   from   the   e­tender   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 e­portal and cannot be a reference to
the server of the First Petitioner.”

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 e­portal.   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

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 e­tendering
process for the Maharashtra Government and Respondent No.
2 ­ MHADA was using the  e­portal provided by the NIC.  This
statement   appears     to   be   borne     from   the   record     as   the
government's e­procurement 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 e­procurement
system.   The said system provides logging ID to the bidder
which   is   generated     by   the   pass­word     and   thereafter   the
bidder  gets access to various  tenders and  several details  of
the tender document. The bidder then proceeds to upload  the

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  pass­word   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 pass­word
and logging ID on the e­portal of Respondent No.3.   As we are
not  a technical expert  as to know what manner the data  can
be   de­encrypted,   but   considering   the   admission     and

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 subserved
  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.  

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 e­portal
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 e­portal 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

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 e­governance 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   e­process.     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 non­AC 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

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 e­portal   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

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

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,

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 non­essential
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.

[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

us of time and efforts.   Introduction  of the e­tendering 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
operator­NIC as to what happens if the “freeze button is not

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/web­system 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

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. 

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.)
  

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