JUDGMENT B.P. Katakey, J. 1. The unsuccessful tenderer by the present writ petition has challenged the order dated 15.5.2006 passed by the Secretary to the Govt. of Assam, Fisheries Department settling No. 1 Dhar Brahmaputra Fishery (in short the fishery in question), in favour of M/s. Kachudola Fishery Cooperative Society Ltd., Respondent No. 4 for a period of seven years at a bid value of Rs.35,15,644 which was the highest bid. 2. The process of settlement of the fishery in question under Rule 12 of the Assam Fishery Rules, 1953 ('the 1953 Rules') was initiated by the Deputy Commissioner, Dhubri district by issuing the Notice Inviting Tender ('the NIT') dated 19.1.2006 inviting sealed quotation for settlement of the said fishery for a period of seven years with effect from 11.3.2006 to 10.3.2013 at the lowest Govt. value of Rs.1,31,046 yearly fixing 3.2.2006 as the last date for submission of tender. Pursuant to such NIT, four registered cooperative societies, which includes the Petitioner as well as the Respondent No. 4 submitted their tenders. While the Petitioner has offered Rs.12,40,632 the Respondent No. 4 has offered Rs.35,15,644 for seven years. Two other cooperative societies, namely, M/s. Dakhin Salmara Matsyajibi FCS Ltd., as well as M/s. Gauripur Fishery Cooperative Society Ltd., also submitted their tenders by offering Rs.19,20,909 and Rs.17,50,795 for seven years respectively. The Deputy Commissioner, Dhubri on receipt of such offers from the aforesaid four tenderers submitted the papers to the Commissioner and Secretary to the Govt. of Assam, Fisheries Department, the settling authority, vide communication dated 10.2.2006 along with the report stating that while the Petitioner society has fulfilled all the requirements and is eligible for settlement its tender papers being valid, the tender submitted by Respondent No. 4 was found to be defective for non-submission of the neighbourhood certificate and also for not being in the vicinity of the fishery because only 17.66 per cent of the fishery falls in Bongaigaon district. The offer of M/s. Dakhin Salmara Matsyajibi FCS Ltd., another tenderer was also found to be defective for not producing the neighbourhood certificate as well as for non-submission of the call deposit towards the earnest money. The offer of the other bidder Gauripur Fishery Cooperative Society Ltd., was also found to be defective as it was not found to be in the neighbourhood of the fishery. The Joint Secretary to the Govt. The offer of the other bidder Gauripur Fishery Cooperative Society Ltd., was also found to be defective as it was not found to be in the neighbourhood of the fishery. The Joint Secretary to the Govt. of Assam, Fisheries Department thereafter upon examination of the tender papers submitted by the four tenderers settled the fishery in favour of the present Petitioner at the offered amount of Rs.12,40,632 by rejecting the claim of the highest bidder, i.e., Respondent No. 4 on the ground that its tender is defective for non-submission of all the relevant papers such as "caste certificate, active fisherman experience certificate, Income Tax certificate" and "neighbourhood certificate". The offer made by the second highest bidder, i.e., M/s. Dakhin Salmara Matsyajibi FCS Ltd., was rejected being defective on the ground of not depositing the call deposit towards the earnest money and the neighbourhood certificate, so also the third highest bidder M/s. Gauripur Fishery Cooperative Society as the said fishery was not found to be in the neighbourhood of the fishery. 3. The said order of settlement was challenged by Respondent No. 4 by filing writ petition being WP(C) No. 1507/2006, which was disposed of by a Single Bench of this Court vide order dated 22.3.2006 by setting aside the order of settlement dated 24.2.2006 and directing the settling authority to offer reasonable opportunity to the writ Petitioner (Respondent No. 4 herein) to furnish the documents for want of which its tender was ejected. The Respondent No. 4 thereafter on 6.4.2006. i.e., the date fixed by the settling authority submitted eight documents in support of its claim of neighbourhood as well as its members being 100 per cent fishermen belonging to the fishing community of Assam. The settling authority upon hearing the parties, namely, the present writ Petitioner and the Respondent No. 4 passed the order dated 15.5.2006 settling the fishery in question in favour of the Respondent No. 4, as aforesaid and, hence, the present writ petition. 4. I have heard Mr. A. Sarma, learned Counsel for the Petitioner, Mr. H.R.A. Choudhury, learned senior Counsel appearing on behalf of the Respondent No. 4 and Mrs. H. Phukan, learned State counsel appearing on behalf of Respondent Nos. 1, 2 and 3. 5. Mr. 4. I have heard Mr. A. Sarma, learned Counsel for the Petitioner, Mr. H.R.A. Choudhury, learned senior Counsel appearing on behalf of the Respondent No. 4 and Mrs. H. Phukan, learned State counsel appearing on behalf of Respondent Nos. 1, 2 and 3. 5. Mr. Sarma referring to the provisions contained under Rule 12 of the 1953 Rules has submitted that the settling authority can settle a 60 per cent category fishery with special category of cooperative societies or non Govt. organizations and self-help groups consisting of 100 per cent actual fishermen in the neighbourhood of the fishery by tender system and, therefore, the settling authority before settling the fishery by tender system must satisfy itself that the society in question is in the neighbourhood of the fishery concerned and consists of 100 per cent actual fishermen of fishing community. In the instant case, according to Mr. Sarma, it is evident from the order dated 15.5.2006 passed by the settling authority settling the fishery in question in favour of Respondent No. 4 that though Respondent No. 4 submitted a number of documents, copies of which were not made available to the Petitioner or it were not allowed to be inspected, the settling authority without recording as to whether the Respondent No. 4 society is in the neighbourhood of the fishery in question and it consists of 100 per cent actual fishermen of fishing community, has passed the order of settlement. Referring to the report dated 10.2.2006 submitted by the Deputy Commissioner, Dhubri forwarding therewith the tender papers of all the four tenderers, Mr. Sarma has further submitted that it is apparent from the said report that the Respondent No. 4 is not in the neighbourhood of the fishery because only 17.66 per cent of the fishery in question falls in Bongaigaon district. It has further been submitted by the learned Counsel that it is evident from the documents submitted by Respondent No. 4 before the settling authority pursuant to the order dated 22.3.2006 passed by this Court in WP(C) No. 1507/2006 that none of the authorities have certified the Respondent No. 4 society to be in the neighbourhood of the fishery in question and that it consists of 100 per cent actual fishermen of fishing community. Mr. Mr. Sarma further contends that though the Respondent No. 4 in the affidavit-in-opposition wants to plead the principle of distributive justice by contending that as the writ Petitioner has already been settled with another fishery no wrong has been committed by the settling authority in settling the fishery in question in favour of Respondent No. 4 who has no other fishery under it, such principle of distributive justice is not applicable in case of the settlement of fisheries by tender system under proviso to Rule 12 of the 1953 Rules. Mr. Sarma, therefore, submits that it is a fit case where the order of settlement be set aside and the matter may be remitted to the settling authority for giving a fresh decision in the matter in accordance with law. 6. Mrs. Phukan, the learned State counsel appearing on behalf of the Respondent Nos. 1, 2 and 3 supporting the order of settlement dated 15.5.2006 has submitted that the order of settlement in favour of the Respondent No. 4 was passed only on being satisfied about the eligibility of the Respondent No. 4 for getting settlement on the basis of the documents submitted by it pursuant to this Courts order passed in WP(C) 1507/2006, though in the order impugned, it has not been specifically stated that Respondent No. 4 society is in the neighbourhood of the fishery in question and it consists of 100 per cent actual fishermen of fishing community, which are the requirements of proviso to Rule 12 of 1953 Rules. 7. Mr. Choudhury, learned senior Counsel appearing on behalf of Respondent No. 4 has submitted that the settling authority in the impugned order dated 15.5.2006 has specifically mentioned that the Respondent No. 4, on the basis of the documents submitted by it, was found to be eligible for consideration and it being the highest bidder, the settlement was made in its favour, therefore, it cannot be said that the question of neighbourhood and the 100 per cent actual fishermen of fishing community was not considered by the settling authority as required under proviso to Rule 12 of the 1953 Rules. Mr. Mr. Choudhury referring to the documents submitted before the settling authority, pursuant to this Court's order passed in WP(C) No. 1507/2006, which are annexed as Annexure-1 series to the affidavit-in-opposition filed by it, has submitted that the concerned authorities have certified that the Respondent No. 4 society is in the neighbourhood of the fishery and it consists of 100 per cent actual fishermen of fishing community. Hence, according to Mr. Choudhury, no illegality has been committed by the settling authority by settling the fishery in question in favour of Respondent No. 4, it being the highest bidder. Mr. Choudhury, further contends that the question of neighbourhood having already been decided in the earlier settlements granted by the authority in respect of the fishery in question in favour of the Respondent No. 4 vide orders dated 10.3.1993 and 14.3.2001 and those having not been challenged by the present Petitioner, the question of neighbourhood can not be allowed to be re-agitated by the Petitioner in the present proceeding, the same having attained finality. Therefore, according to Mr. Choudhury even assuming that the impugned order dated 15.5.2006 does not reflect consideration of the question of neighbourhood, the Petitioner cannot re-agitate the question of neighbourhood, and it has to be taken that the Respondent No. 4 society is in the neighbourhood of the fishery in question. 8. The other submission of Mr. Choudhury is that the Petitioner having not disputed that another fishery has already been settled in its favour and such settlement will continue up to 2011 and on the other hand except the fishery in question there is no other fishery settled with the Respondent No. 4, therefore, applying the principle of distributive justice, the impugned order of settlement may not be interfered with by this Court. 9. Mr. Choudhury in support of his contention has placed reliance on the decisions of this Court in Luhit Erasuti Mach Mahal Samabaya Samity Ltd. v. State of Assam (1997) 1 GLT 276, in Brahmaputra Part-II Mach Mahal Samabai Samity Ltd. v. State of Assam (2003) 1 GLT 155 on the applicability of the principle of distributive justice and the decision of this Court in Keshkuri Pathar Meen Samabai Samitee Ltd. v. State of Assam (2004) 3 GLT 24 in support of his contention that the question of neighbourhood having been settled in earlier settlements the same can not be re-agitated by the Petitioner. 10. 10. The proviso to Rule 12 as amended by the Assam Fishery (Amendment) Rules, 2005, which came into force on its publication in the Official Gazette on 8.4.2005, requires the Govt. to settle a 60 per cent category fishery with special category of cooperative societies or non Govt. organizations and self-help groups consisting of 100 per cent actual fishermen in the neighbourhood of the fishery by tender system. Explanation 1 defines "special category" which means and includes cooperative societies, self-help groups, non-governmental organizations comprising of 100 per cent actual fishermen of the Scheduled Caste community or Maimal community of erstwhile Cachar district who cannot participate in competitive bidding because of poor financial condition due to famine, flood, draught, epidemic or any other circumstances which are beyond control of the society, non-governmental organization or self-help groups as the case may be. Explanation 2 defines "a 60 per cent category fishery" which means 60 per cent of registered fisheries available in a Civil Sub-Division eligible for settlement in a particular year. 11. For better appreciation Rule 12 of the Rules as stood after its 2005 amendment is reproduced below: 12. Except those referred to in Sub-rule No. 8(b) above, all registered Fisheries shall be settled under tender system of sale in place of sale auction: Provided that the Government shall settle a 60 per cent category fishery with special category of Cooperative Societies, Non-Government Organisations and Self-Help Groups consisting of 100 per cent actual fishermen in the neighbourhood of the fishery concerned by the Tender System. Explanation 1: For the purpose of this rule, the words "special category" means and includes the Co-operative Societies, Self-Help Groups, Non-Governmental Organizations comprising of 100 per cent actual fishermen of the Scheduled Caste community or Maimal community of erstwhile Cachar district who can not participate in competitive bidding because of poor financial condition due to famine, flood, draught, epidemic or any other circumstances which are beyond control of the society, Non-Governmental Organisation or Self-Help Groups as the case may be. Explanation 2: For the purpose of this rule "a 60 per cent category fishery" means 60 per cent of registered fisheries available in a Civil Sub-Division eligible for settlement in a particular year. 12. In the instant case, there is no dispute that the fishery in question is a 60 per cent category fishery and it falls in three districts, namely, Dhubri, Bongaigaon and Goalpara. 12. In the instant case, there is no dispute that the fishery in question is a 60 per cent category fishery and it falls in three districts, namely, Dhubri, Bongaigaon and Goalpara. It is also not in dispute that 6.04 per cent, 17.66 per cent and 76.30 per cent of the fishery in question falls in the districts of Dhubri, Bongaigaon and Goalpara respectively. The Deputy Commissioner, Dhubri district issued the NIT dated 19.1.2006 calling for tenders from the persons entitled to submit tender under the proviso to Rule 12 and accordingly both the Petitioner and the Respondent No. 4 submitted their tenders. The price offered by the Respondent No. 4 was the highest as against the Petitioner who was the lowest bidder. The Deputy Commissioner on receipt of the tender papers submitted by the four tenderers forwarded the same along with the report vide communication dated 10,2.2006 to the settling authority, namely, the Commissioner and Secretary to the Govt. of Assam in Fisheries Department with the comments that the Respondent No. 4 tender paper is defective having not enclosed the neighbourhood certificate and the said society is not in the neighbourhood of the fishery as 17.66 per cent of the fishery falls in Bongaigaon district. The Petitioner was found to be eligible in the said report submitted by the Deputy Commissioner having furnished all the required documents. The settling authority upon consideration of the tender papers as well as the Deputy Commissioner's report dated 10.2.2006 settled the fishery in favour of the present Petitioner vide settlement order dated 24.2.2006 and rejected the bid of Respondent No. 4 on the ground of non-furnishing the relevant documents, namely, the caste certificate, neighbourhood certificate and certificate relating to its constitution by 100 per cent actual fishermen of fishing community and also Income Tax clearance certificate. The bids of other two bidders were also rejected either on the ground of invalid tender or for not being in the neighbourhood of the fishery. 13. As noticed above, a Single Bench of this Court vide order dated 22.3.2006 passed in WP(C) No. 1507/2006, on being challenged by the present Respondent No. 4, set aside the said order of settlement dated 24.2.2006 and directed the settling authority to reconsider the question of settlement after giving an opportunity to the present Respondent No. 4 to file all the documents, non-submission of which was the ground for rejection. The Respondent No. 4 accordingly filed eight documents in support of their claim about the neighbourhood as well as the claim that the society consists of 100 per cent actual fishermen of fishing community of the State of Assam. 14. It appears from the order of settlement dated 15.5.2006 passed by the Secretary that the entire order is directed criticizing the High Court's order dated 22.3.2006 passed in WP(C) No. 1507/06 directing the Secretary, i.e., the settling authority to offer another opportunity to the present Respondent No. 4 to file the documents. The manner in which the High Court's order has been criticized, though in my opinion is not proper, I am not going into that aspect of the matter in view of the order dated 5.6.2006 recorded in suo motu contempt proceeding being Cont. Pet. No. 277/06 closing the said proceeding, on consideration of the affidavits filed by Sri L.N. Tamuli, the then Secretary to the Govt. of Assam, Fisheries department wherein the said Officer has tendered his unconditional and unqualified apology and assured this Court that in future he would discharge his duties with more care and caution and also with great sense of understanding. The settling authority after criticizing the High Court's order dated 2.3.2006 at length has settled the fishery, in question, in favour of the Respondent No. 4. The relevant portion of the said order is quoted below: After submission of the aforesaid vital certificates, the Petitioner society, M/s. Kachudola Fishery Cooperative Society Ltd., turns eligible for consideration and since the society offered the highest revenue of Rs.35,15,644 for the fishery for seven years, I have decided to settle the fishery with M/s. Kachudola Fishery Cooperative Society Ltd. 15. The records produced by the learned State counsel before this Court reveal that those documents were submitted on 6.4.2006 and thereafter the Secretary to the Govt. of Assam, Fisheries Department after hearing both the Petitioner and Respondent No. 4 vide order dated 6.4.2006 kept the order reserved, because of the enforcement of the model code of conduct of election. The settling authority thereafter passed the impugned order dated 15.5.2006 settling the fishery in question in favour of the Respondent No. 4. of Assam, Fisheries Department after hearing both the Petitioner and Respondent No. 4 vide order dated 6.4.2006 kept the order reserved, because of the enforcement of the model code of conduct of election. The settling authority thereafter passed the impugned order dated 15.5.2006 settling the fishery in question in favour of the Respondent No. 4. The record does not disclose making any enquiry by the settling authority about the claim of the Respondent No. 4 that it is in the neighbourhood of the fishery in question and all its members are actual fishermen of fishing community of Assam, which are the conditions to be fulfilled by cooperative societies for being eligible for settlement under the proviso to Rule 12 of the Rules. The settling authority being the Secretary to the Government of Assam, it is not possible on his part to come to a conclusion relating to the fulfilment of the conditions by a registered society, in whose favour settlement has been made, unless the certificates produced by the Respondent No. 4 in support of its claim are verified and a report is obtained in that regard from the concerned officer(s), in the field, which has not been done in this case. 16. Though Mr. Choudhury contends that as the impugned order reflects that in view of the submission of the certificate the Respondent No. 4 turns eligible for consideration, I do not find anything in the order of settlement to demonstrate that the Respondent No. 4 Society was found to be in the neighbourhood of the fishery, in question, and it consists of 100 per cent of actual fishermen of fishing community of the State of Assam, which are the requirements for settlement under the proviso to Rule 12 of the Rules. Such finding by the settling authority is a must, more so in view of the report dated 10.2.2006 submitted by the Deputy Commissioner and as the question of neighbourhood was never decided by any authority at any point of time. The contention of Mr. Such finding by the settling authority is a must, more so in view of the report dated 10.2.2006 submitted by the Deputy Commissioner and as the question of neighbourhood was never decided by any authority at any point of time. The contention of Mr. Choudhury, the learned senior Counsel appearing on behalf of the Respondent No. 4 that in the earlier orders of settlement the question of neighbourhood was decided and, hence, such question cannot be re-agitated in the present proceeding having not challenged the earlier orders of settlement by the Petitioner, cannot be accepted in view of the fact that in the earlier orders of settlement dated 10.3.1993 and 14.3.2001 in respect of the same fishery whereby and where under the settlement was given to the present Respondent No. 4, the question of neighbourhood was not decided as the fishery in question was settled with the Respondent No. 4 on the ground that the fishery in question was within the area of operation of the said society. The fishery in question may be within the area of operation of a particular society but such society in question may not be in the neighbourhood of the fishery in question. That apart, after 2005 amendment, proviso to Rule 12 imposes conditions of neighbourhood and actual fishermen of fishing community for getting settlement. The further contention of Mr. Choudhury, the learned senior Counsel that as the writ Petitioner never objected to the certificates relating to the neighbourhood and its members being 100 per cent actual fishermen of fishing community of Assam, no fault can be found in the order of the settling authority in settling the fishery even without recording any finding to that effect, also cannot be accepted in view of the clear mandate of the proviso to Rule 12 of the 1953 Rules which makes a registered cooperative society eligible for settlement of the fishery provided it is in the neighbourhood of the fishery and it consists of 100 per cent actual fishermen of fishing community of the State of Assam. It appears from the statements in the writ petition that the Petitioner has raised the question of neighbourhood of the Respondent No. 4 though the question of its members being 100 per cent actual fishermen of fishing community has not been raised. It appears from the statements in the writ petition that the Petitioner has raised the question of neighbourhood of the Respondent No. 4 though the question of its members being 100 per cent actual fishermen of fishing community has not been raised. Even if such questions are not raised, the settling authority is duty bound to satisfy itself about the fulfilment of the conditions by a cooperative society in whose favour the settlement has been made, which has not been done in the instant case. 17. Since this Court has found that the order of settlement was passed by the settling authority without satisfying itself about the fulfilment of the conditions for giving the settlement in favour of the cooperative society under the proviso to Rule 12 of the Rules, the question of applicability of the principles of distributive justice as raised by the learned senior Counsel appearing on behalf of Respondent No. 4 has not been gone into as the same is not required to be gone into in the present case. 18. In view of the above, the impugned order dated 15.5.2006 is set aside. The matter is remitted to the settling authority for giving a fresh decision in the matter upon satisfying itself about the fulfilment of the conditions stipulated under the proviso to Rule 12 of the 1953 Rules by the Petitioner as well as the Respondent No. 4. Such decision is to be taken by the settling authority within a period of one month from the date of production of the certified copy of this order either by the Petitioner or by the Respondent No. 4. The settling authority shall decide the question of settlement on the basis of the materials already available on record and after making due verifications thereof and upon hearing the parties. 19. The writ petition is allowed to the extent indicated above. No cost. Petition allowed.