JUDGMENT :

MEHTA, J.

1. Through this writ petition under Article 226 of the Constitution of India, the petitioner, an NGO registered with the Cooperative Department, Government of Rajasthan, has approached this Court with a prayer to strike down the constitutional validity of Sections 5(2)(e), 6(2)(c) and Section 7(2) (f) of the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as ‘the Act of 2012’) being violative of the object and spirit of the Act of 2012. The petitioner is mainly aggrieved of the conditions Nos.5(2)(e), 6(2)(c) and 7(2)(f) of the Act which read as below:-

“Section 5: Determination of need for procurement:-

….

(2) While assessing the need under sub-section (1), the procuring entity shall take into account the estimated cost of the procurement and also decide on the following matters, namely:-…

(e) any other matter as may be prescribed.

...”

“Section 6: Participation of bidders :

….

(2) The State Government may, by notification in this behalf, provide for mandatory procurement of any subject matter of procurement from any category of bidders, and purchase or price preference in procurement from any category of bidders, on the following grounds, namely :…

(c) any other consideration in public interest in furtherance of a duly notified policy of the Central Government or the State Government.

...”

“Section 7: Qualifications of bidders :

….

(2) Any bidder participating in the procurement process shall :…

(f) fulfill any other qualifications as may be prescribed.

...”

2. Learned counsel Shri Ramdev Rajpurohit associate to Shri Rajvendra Sarswat, Advocate representing the petitioner, urged that by taking recourse of these provisions, the respondents have applied very onerous and unreasonable conditions in the tender process which are impossible to fill. As per Shri Rajpurohit, the respondents issued Notice Inviting Bid (NIB) for Rajasthan Rural Water Supply and Fluorosis Mitigation Project in Nagaur vide notice dated 27.08.2020 wherein, very arduous conditions, as summarized below, were incorporated which made it impossible for the petitioner to participate in the tender process even though it is otherwise competent to perform the work prescribed in the Tender:-

“That the bidder must have an average annual turnover not less than Rs.14.43 crores during the last three financial years.

That the bidder should have an experience of execution or successful completion of similar nature of at least one work costing not less Rs.7.22 Crores during the last seven years.”

Learned counsel Shri Rajpurohit urged that these unreasonable and arduous conditions have been incorporated in the tender process by invoking the above provisions of the Act of 2012 which are absolutely unreasonable, arbitrary and contrary to the letter and spirit of the Act of 2012 and hence, the provisions which give a handle to the procuring entity to impose arbitrary conditions in the Tenders so as to create classes amongst equals, should be declared ultra vires and struck down. In support of his contentions, Shri Rajpurohit placed reliance on the Judgment dated 06.06.2018 rendered by the High Court of Delhi in the case of Allied Integrated Society (Regd.) & Ors. vs. The State (NCT of Delhi (Writ Petition (C) No.5912/2018 & Civil Misc. Application No.23033-23034/2018).

3. The respondents have filed reply to the writ petition wherein, the challenge laid by the petitioner to the above provisions of the Act of 2012 has been refuted. It has been mentioned at para No.7 of the reply that the above provisions of the Act of 2012 are further governed by the Rajasthan Transparency in Public Procurement Rules, 2013 (hereinafter referred to as ‘the Rules of 2013’) which have not been challenged in this writ petition. The justification has been offered by the respondents in the reply regarding the questioned provisions which is reproduced herein below for the sake of convenience:

“Section 5(2)(e) which provides for “any other matter as may be prescribed”, i