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Mr. Vivek Tankha, learned Senior Counsel appearing on behalf of the Writ Petitioner-Respondents, on the other hand, would contend that each of the nine conditions laid down in the notice inviting tender were pre- requisites for the tenderers being considered therefor. They, being imperative in character, could under no circumstances be relaxed. If the Board keeping in view the magnitude of the contract intended to have an experienced contractor who had not only handled specified quantity of coal but also have sufficient personnel on its roll and/or must not necessarily be a defaulter vis-`-vis any other public sector undertaking, no exception thereto could be taken and Appellant, thus, necessarily was required to comply with each of the said conditions. In regard to modification of clause 1.5(ii) from calendar year to financial year, it was urged that such deviation was permissible in law.

Mr. Tankha would submit that in regard to the violation of condition No.1.5(v) not only more than 100 persons should have been on the roll of Appellant during the period April to March in the financial year 2003-04, but also it was required to file proof of payment of provident fund for the preceding year. The learned counsel contended that from the records produced by Appellant, it would appear that whereas at the first instance, it filed proof of payment of the employees' provident fund for a few persons, it later on furnished supplementary challans on 07.03.2005 so as to raise the number of employees to more than 100. The Board, according to learned counsel, overlooked this fact and purported to have relaxed the condition, which power it did not have. In regard to the finding of the High Court that Appellant was a declared defaulter, it was contended that the expression 'declared' would merely mean to make it known that a huge amount was payable to the Madhya Pradesh State Electricity Board, and furthermore the same was required to be considered having regard to the fact that when in relation to such a contract dated 17.04.2005 the case of Appellant was not considered, it filed a writ petition before the Madhya Pradesh High Court, which was dismissed, inter alia, on the ground that it was a defaulter. The Letters Patent Appeal filed thereagainst having also been dismissed by the Madhya Pradesh High Court, Appellant must be held to have been declared a defaulter by the High Court itself.

Mr. Tankha was, therefore, not correct in submitting that the High Court declared Appellant to be a defaulter, Nor could it do so. By reason of the impugned judgment, the High Court while noticing that the term 'defaulter' would mean a formal statement, proclamation or announcement, wrongly opined :

"We cannot close our eyes to the fact that the bidder, who is a defaulter, merely because the State Electricity Board for some reasons, fails to declare such bidder a defaulter, however, in absence of such declaration, the bidder, in our view does not cease to be a defaulter"

[See also Noble Resources Ltd. v. State of Orissa and Anr. [2006 (9) SCALE 181] Strong reliance has been placed by Mr. Tankha on G.J. Fernandez v. State of Karnataka and Others [(1990) 2 SCC 488] wherein this Court observed :

"15. Thirdly, the conditions and stipulations in a tender notice like this have two types of consequences. The first is that the party issuing the tender has the right to punctiliously and rigidly enforce them. Thus, if a party does not strictly comply with the requirements of para III, V or VI of the NIT, it is open to the KPC to decline to consider the party for the contract and if a party comes to court saying that the KPC should be stopped from doing so, the court will decline relief. The second consequence, indicated by this Court in earlier decisions, is not that the KPC cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not result in arbitrariness or discrimination. It comes in for application where the non-conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general. For example, in this very case, the KPC made some changes in the time frame originally prescribed. These changes affected all intending applicants alike and were not objectionable. In the same way, changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able to produce the document by the time stipulated but would have applied had it known that the rule was likely to be relaxed."