JUDGMENT : 1. The Petitioner – Cineom Broadcast India Ltd., has filed this Petition being aggrieved by the technical glitch preventing submission and uploading of “Packets – B & C” documents of Petitioner’s bid for the Project of Supply, Installation, Testing, Commissioning, Operation and Maintenance of Virtual Classrooms for Virtual Training Centres (VTC) and Studios (the “Project”) for the Respondent-Municipal Corporation’s Schools for a period of five years on VSAT Technology under Tender No.7200025560 (the “Tender”) issued on 17th January, 2022 by the Respondent- Corporation. 2. It is the case of Petitioner that it had on 16th May, 2022 successfully made EMD Payments of Rs.1,82,91,500/- through MCGM Portal. As per the Tender, the bidding process involved submission of Pre-Qualification Folder (Packet-A) ; Technical Bid Folder (Packet-B) and ; Commercial Bid Folder (Packet-C). On 17th May, 2022, Petitioner uploaded Packet-A documents on the E-Portal which was the only mode of submitting the bid. However, after Packet-A, Petitioner attempted to upload Packet-B, on the same day but was unable to do so because of technical malfunctions of the Portal. Again on 18th May, 2022, Petitioner tried to upload Packet-B on the Portal, however, the Portal showed the error “No user certificate available”. Thereafter, on 18th May, 2022 itself, Petitioner contacted the Help Centre and also wrote email to the Respondent- Corporation about the the issue on the Portal and the errors / malfunction as well as for extension of two days at 3.57 p.m., before the cut-off time for submission of the bids but did not receive any response. On 19th May, 2022, Petitioner submitted request to the Education Officer of the Respondent-Corporation for extension of time but no response was received. As per the Tender and the corrigenda issued from time to time thereafter, the Technical Proposals i.e. Packet-A and Packet-B were opened on 19th May, 2022, but Petitioner did not feature in the list of bidders. Thereafter, on 20th May, 2022, Petitioner wrote a letter to the Grievance Committee seeking redressal by putting forth its case regarding the technical malfunction faced by it. However, since there was no response, this Petition came to be filed on 23rd May, 2022 as the technical presentations would take place on 24th May, 2022 upto 2.30 p.m., while the financial proposals (Packet-C) would be opened on 27th May, 2022. 3. However, since there was no response, this Petition came to be filed on 23rd May, 2022 as the technical presentations would take place on 24th May, 2022 upto 2.30 p.m., while the financial proposals (Packet-C) would be opened on 27th May, 2022. 3. On 23rd of May, 2022 when this matter was mentioned for circulation, this Court had while granting circulation for today permitted Petitioner to file “Packets – B and C” in a sealed cover as it was mentioned that the technical presentations would be on 24th May, 2022 and the financial bids would be opened on 27th May, 2022. 4. Mr.Venkatesh Dhond, learned Senior Counsel on behalf of Petitioner would submit that the error shown against the Petitioner by the Portal was clearly a technical malfunction at the behest and at the end of Respondent which could not have been rectified by the Petitioner. He would submit that the Petitioner on receiving such an error and after continuous effort, promptly reached out to Respondent appraising them of the error but Respondent failed to even acknowledge let alone respond to the Petitioner. That Respondent on previous occasions had extended the time eight times without assigning any reasons. However, it did not extend the time despite complete non-functioning of the Portal for over sixteen hours till the end time i.e. 4.00 p.m., on 18th May, 2022 thereby resulting in the loss of significant time period which was promised in the bid resulting in complete denial of opportunity to the Petitioner to trade and participate in the bid process. He submits that on 20th May, 2022, Petitioner also wrote a letter to the Grievance Committee putting forth all the facts with respect to the technical glitch faced by it, but neither the Respondent-Corporation has replied to the said communication nor resolved the grievance of Petitioner which has necessitated the filing of this Petition. 5. On the other hand, Mr.Burhan Bukhari learned Counsel representing the Corporation would submit that in fact, Petitioner has not been able to even submit Packet-A successfully. He has taken us through the manual of the Corporation and the pages containing snapshots of the process flow which indicates how the submission of Packet-A documents on the site would appear and has compared it with the snapshot of the version in the case of Petitioner. He has taken us through the manual of the Corporation and the pages containing snapshots of the process flow which indicates how the submission of Packet-A documents on the site would appear and has compared it with the snapshot of the version in the case of Petitioner. He would submit that until and unless, field of “Current Version” in Column – 2 against the name of the bidder and the document as well as “Read” Column – 3 indicates a tick mark against the corresponding entry, it cannot be said that the documents with respect to the Packet were uploaded on behalf of Petitioner. He would submit that therefore, Petitioner has not submitted the bid at all as claimed by the Petitioner and therefore, Petition cannot be entertained. 6. Learned Counsel for the Respondent-Corporation also draws the attention of this Court to Paragraph 12 of the Instruction to Vendors participating in E-Tender of MCGM to submit that vendor should ensure submission of their bids well in time before due date and that they will be solely responsible if they try to submit the bid just before the due date and failed to do so due to their system problems, internet problems, user I.D., locking etc. 7. He has tendered across the Bar a decision of the Hon’ble Supreme Court in the case of Balaji Ventures Pvt. Ltd. V/s. Maharashtra State Power Generation Company Ltd. & Anr. [Special Leave Petition (C) No. 1616/2022 : Decided on : 11-02-2022] in support of his contention to submit that in a similar case, the Hon’ble Supreme Court has set aside the order of the High Court disapproving and deprecating the grant of interim relief by the High Court permitting Petitioner therein to take part in the Tender process. 8. Mr.Venkatesh Dhond, learned Senior Counsel for the Petitioner submits that this is the first time, Petitioner is being told that Packet-A has not been uploaded as all along Petitioner was under the impression that the issue was with respect to uploading of “Packets-B and C” and it is on that basis, the Petitioner also proceeds. He submits that as the Respondent-Corporation had failed to respond to any of the communications by Petitioner and it is only at the hearing before this Court, Petitioner is being informed that Packet-A was not received. He submits that as the Respondent-Corporation had failed to respond to any of the communications by Petitioner and it is only at the hearing before this Court, Petitioner is being informed that Packet-A was not received. Learned Senior Counsel at this stage draws the attention of this Court to Clause-8 of Paragraph 4.11 of the Tender Condition which is quoted as under: “8. As per MCGM circular CE/PD/5268/II dated 11.08.2006, on opening the Pre-Qualification folder, if is found that the Bidder has not submitted required documents as per Pre-Qualification folder (Packet ‘A’) then the Bidder shall be intimated to comply with the said documents within 3 days from the intimation from MCGM (through email), otherwise they will be treated as non-responsive”. 9. He would submit that if the Packet-A had not been uploaded as claimed by the Respondent-Corporation, and as is apparent from the submissions made by Counsel for the Respondent-Corporation that the Respondent-Corporation was aware that Petitioner did attempt to upload the Packet-A, then in accordance with Clause-8, it ought to have intimated to Petitioner and granted 3 days to Petitioner to comply. He submits that it would be unfair to shut out the Petitioner from the bidding process unfairly for no fault of its own. Learned Senior Counsel submits that therefore Clause 12 of the Instruction to vendors would therefore have no application to the case of Petitioner. 10. With respect to the decision of the Hon’ble Supreme Court relied upon by the learned Counsel for Respondent-Corporation, learned Senior Counsel on behalf of Petitioner would submit that that was a case where petitioner had challenged one of the tender conditions / clauses but here Petitioner is not challenging any of the terms of the tender, but only seeking to participate in the tender. Learned Senior Counsel also submits, on instructions, that Petitioner is limiting its challenge in the Petition only to the extent that it be permitted to participate in the tender process by uploading / submitting “Packets - A, B and C” and be considered thereafter alongwith the other bidders in accordance with the terms of the said tender. 11. Learned Senior Counsel also submits, on instructions, that Petitioner is limiting its challenge in the Petition only to the extent that it be permitted to participate in the tender process by uploading / submitting “Packets - A, B and C” and be considered thereafter alongwith the other bidders in accordance with the terms of the said tender. 11. Learned Senior Counsel also submits that this being a Tender relating to a Project with respect to Virtual Classrooms for Virtual Training Centres and Studios for MCGM Schools, it would be in the fitness of things to allow Petitioner to participate in the Tender process for better achievement of project objectives and goals enshrined under Article 21A and 46A of the Constitution of India. 12. Having heard rival contentions, we observe that although Petitioner uploaded Packet-A documents on the Portal of Respondent on 17th May 2022, the same is also disputed by the Respondent-Corporation. At the time of uploading Packet-B document on 17th May 2022, the Portal showed error and no documents were uploaded. On 18th May, 2022, an error with the remarks “No user certificate available” was shown and Petitioner communicated its grievance to the Respondent-Corporation on 18th May, 19th May and 20th May, 2022. We also observe that the Respondent-Corporation has not cared to respond to the request made to Help Centre on 18th May 2022 as well as to e-mail dated 19th May 2022 nor has the Grievance Committee taken any steps in response to Petitioner’s communication dated 20th May 2022. Pursuant to Clause-8 of Paragraph No.4.11 with respect to the submission of bids on opening the Pre-Qualification Folder (Packet- A), if it was found that the bidder has not submitted required documents as per Pre-Qualification Folder (Packet-A), then the Corporation has to intimate the bidder to comply with the same within 3 days from the intimation, otherwise the bid will be treated as not responsive. Although Respondent does appear to have record of the attempt made by Petitioner to upload Packet-A but submits that since the relevant columns indicates “Current Version” and “Read” as blank, the bid cannot be considered. In our view once the Respondent-Corporation found that an attempt had been made then as per Clause-8 as aforesaid, it ought to have intimated the bidder to comply, which it has admittedly failed to do. In our view once the Respondent-Corporation found that an attempt had been made then as per Clause-8 as aforesaid, it ought to have intimated the bidder to comply, which it has admittedly failed to do. Petitioner did make genuine attempts to upload the Packets and to resolve the technical issues within time. However, neither the Respondent-Corporation nor its Grievance Committee has acknowledged nor responded to Petitioner’s grievance with respect to the technical glitches faced by it. If the Respondent-Corporation was aware that Petitioner’s Packet-A was not uploaded as can be seen, then as per Clause-8 of Paragraph 4.11 with respect to the submission of bid of the Tender Conditions, then bidder ought to have been intimated by the Respondent-Corporation to comply with the said documents through mail. The Respondent-Corporation has not only failed to intimate the Petitioner nor declare it as “Non Responsive”. It is clear that there was an unresolved technical glitch and just because of a technical glitch which cannot be attributed to Petitioner, Petitioner cannot be shut out from the bidding process. As noted above, Petitioner has also successfully submitted an earnest money of Rs. 1.82 crore and was under the impression that Packet-A document had been uploaded but it is only when its name did not appear in the list of bidders after opening of technical proposal on 19th May 2022 that it became aware that there was an issue. 13. This is not a case where the Respondent-Corporation has established that the glitch was from the Petitioner’s end or that it was due to the Petitioner’s system problem, internet problems, user I.D., locking etc. In fact, as can be seen from the submissions that Petitioner has well within the scheduled time communicated its grievances to the Respondent-Corporation, but without any response or resolution. The Respondent-Corporation has informed us that the financial bids which were to be opened at 4.00 p.m., today have not yet been opened. We are therefore, of the view that it would be in the interest of justice to allow the Petitioner to participate in Tender Process as no prejudice would be caused to any of the other bidders and would only increase competition for better achievement of the Project objective of universal education. 14. With respect to the decision in the case of Balaji Ventures Pvt Ltd V/s. Maharashtra State Power Generation Company Ltd and Anr. 14. With respect to the decision in the case of Balaji Ventures Pvt Ltd V/s. Maharashtra State Power Generation Company Ltd and Anr. (supra) relied upon by learned Counsel for Respondent- Corporation ,we observe that the said decision was based on entirely different considerations and is distinguishable. There Petitioner had challenged one of the tender conditions/clauses, whereas in this case, Petitioner is only seeking to participate in the Tender Process in accordance with the tender conditions and has made continuous genuine efforts well within the Tender Schedule to resolve the technical issues but without any response or resolution from the Respondent-Corporation. 15. In the circumstances, we pass the following order: ORDER (i) Petitioner to upload / submit Packets-A, B, C to Respondent-Corporation on 30th May, 2022 by 4.00 p.m. (ii) Respondent-Corporation to accept Packets-A, B, C from Petitioner. (iii) Respondent-Corporation to consider the bid submitted by Petitioner alongwith other bidders and open the financial bids of all the bidders on 01st June, 2022 by 4.00 p.m. and declare the successful bidder in accordance with the Tender. (iv) Petition is allowed in the above terms. (v) All to act on an authenticated copy of this order.