JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. A.K. Goswami, learned Senior Counsel appearing for the petitioner M/s. Manash Padmabari Jiniram Fishery Cooperative Society Ltd. (hereinafter referred to as "the Manash Society"), which is registered within Goalpara District. Also heard Mr. K.K. Mahanta, learned Senior Counsel appearing for respondent No. 4, M/s. Kachudola Fishery Cooperative Society Ltd. (hereinafter referred to as 'the M/s. Kachudola Society') which is registered within Bongaigaon District Ms. H.M. Phukan, learned Govt. Advocate appears for the respondent Nos. 1 to 3. 2. This matter pertains to the settlement of No. 1, Dhar Brahmaputra Fishery a 60% category fishery which is required to be settled under Rule 12 of the Assam Fishery Rules, 1953 (hereinafter referred to as "the Fishery Rules"), with 100% actual fishermen groups, who are located in the neighbourhood of the fishery. After the amendment of the Fishery Rules brought in effect from 8th April, 2005, such fisheries are to be settled by tender system. 3. By the NIT dated 19.1.2006 (Annexure II), the Government invited tenders for settlement of the fishery for a period of 7 years with effect from 11.3.2006 to 10.3.2013. It was indicated in the NIT that tenders can be submitted by the Co-operative Societies, Self Help Groups, NGOs comprising of 100% actual fishermen of the schedule caste community or Maimat community of Barak Valley. Tenderer has to be of that district and neighbourhood of the fishery concerned. 4. By order dated 24.2.2006, the settling Authorities after purported examination of the 4 tenders received in response to the NIT, declared that the respondent No. 4, M/s. Kachudola Society, despite the higher bid of Rs. 35,15,644/-, had not submitted, inter alia, the most important certificate i.e. the neighbourhood certificate and accordingly could not be considered for settlement. The settling authorities found that the bid of the petitioner (M/s. Manash Society) fulfils all the criteria as it is situated within 1/2 kilometer of the Fishery and that 76.30% of the Manash Society falls under Goalpara District and accordingly the fishery was settled with the petitioner Society for a period of 7 years at their offered amount of Rs. 12,40,632/-. 5. 12,40,632/-. 5. The Respondent No. 4, M/s. Kachudola Society being aggrieved by the settlement order dated 24.2.2006, filed a writ petition being W.P. (C) No. 1507/06 and this Court by judgment and order dated 22.3.2006 allowed the said writ petition and set aside the settlement granted in favour of M/s. Manash Society. The matter was remitted back to the settling authority for a fresh decision to be taken after enabling the M/s. Kachudola Society to furnish the requisite documents for want of which, their tender was rejected. 6. Pursuant to the aforesaid first round remittance by the High Court on 22.3.2006 in W.P. (C) No. 1507/06, the settling authority examined the matter and permitted M/s. Kachudola Society to submit 3 vital certificates. On consideration of those certificates furnished by M/s. Kachudola Society, in view of highest offer of Rs. 35,15,644/- made by the said society, decided to settle the fishery with M/s. Kachudola Society for a period of 7 years. 7. In the settling authority's order dated 15.5.2006 (Annexure IX) in favour of respondent M/s. Kachudola Society, Clause 2 of the NIT, which requires a tenderer to be of the concerned district was noted. The report of the Dy. Commissioner, Dhubri (Annexure VI) submitted on 10.2.2006 (Annexure VI) was referred to, which indicated that No. 1, Dhar Brahmaputra Fishery traverses through 3 districts: 17.66% of the fishery falls in Bongaigaon District, 76.30% falls in Goalpara District and 6.04% fells within Dhubri District. It was also recorded in the said report dated 10.2.2006 of the Dy. Commissioner, Dhubri that M/s. Manash Society is a society within Goalpara District and that the maximum portion of the fishery to be settled to the extent of 76.30%, are within the neighbourhood of M/s. Manash Society. The Dy. Commissioner's report dated 10.2.2006 in so far as M/s. Kachudola Society is concerned indicated that the said society of Bongaigaon District encompasses 17.66% of the Fishery. But it appears from the settlement order dated 15.5.2006 that because of the highest offer of respondent No. 4 M/s. Kachudola Society, the settlement was given in favour of their Society. 8. The petitioner filed W.P. (C) No. 2501/06 to challenge the said order granting settlement to M/s. Kachudola Society. But it appears from the settlement order dated 15.5.2006 that because of the highest offer of respondent No. 4 M/s. Kachudola Society, the settlement was given in favour of their Society. 8. The petitioner filed W.P. (C) No. 2501/06 to challenge the said order granting settlement to M/s. Kachudola Society. This Court by its judgment and order dated 14.2.2008 disposed of the W.P. (C) No. 2501/06 filed by M/s. Manash Society by holding that the settling authorities have passed the impugned order of settlement on 15.5.2006 without making any inquiry or giving a finding on the claim of the respondent No. 4 M/s. Kachudola Society, that it is in the neighbourhood of the Fishery. The Court recorded that under Rule 12 of the Fishery Rules, such a finding by the settling authority is must and more so in view of the Annexure-VI report dated 10.2.2006 submitted by the Dy. Commissioner, Dhubri. Accordingly, the settlement granted on 15.5.2006 to M/s. Kachudola Society was set aside and the matter was remitted to the settling Authority for a second time for giving a fresh decision in the matter after satisfying itself about fulfillment of the conditions of the proviso to Rule 12 of the Fishery Rules by verifying the materials already available before the settling authority. 9. In pursuant to the Court's order dated 14.12.2008 in W.P. (C) No. 2507/06, the matter was considered a third time, by the settling Authority and the impugned settlement order dated 5.4.2008 (Annexure XI) has been passed, whereby the settling Authority decided to again settle the fishery with the respondent No. 4 M/s. Kachudola Society, at their offered bid of Rs. 35,15,644/-. 10. To challenge the settlement order dated 5.4.2008, Mr. A.K. Goswami, learned Senior Counsel submits that even this time the settling Authority did not make the settlement in terms of the direction given by this Court on 14.2.2008 when the matter was remitted back for a fresh decision. The learned Counsel refers to the settlement order dated 5.4.2008 and submits that although 3 certificates of the A.S.O., Boitamari dated 18.3.2006 granted in favour of M/s. Kachudola Society have been referred to, there is no finding vis-a-vis the said certificates, on the issue of neighbourhood of the tenderer society with regard to the fishery offered for settlement. The learned Counsel refers to the settlement order dated 5.4.2008 and submits that although 3 certificates of the A.S.O., Boitamari dated 18.3.2006 granted in favour of M/s. Kachudola Society have been referred to, there is no finding vis-a-vis the said certificates, on the issue of neighbourhood of the tenderer society with regard to the fishery offered for settlement. It is also contended on behalf of the petitioner that there is no reference or discussion at all on the Annexure-VI report dated 10.2.2006 of the Dy. Commissioner, Dhubri which refers to the percentage of the Fishery falling within either of the 3 districts, namely, Dhubri, Bongaigaon and Goalpara and accordingly it is contended by Mr. Goswami that there is no finding on the most vital issue of the neighbourhood of the contesting Societies, and therefore even on this occasion, the settlement order dated 5.4.2008 cannot be said to be in accordance with the provisions of the Rule 12 of the Fishery Rules. Mr. Goswami further argues that it would not be justified to make the settlement decision only on the basis of higher bid of the respondent No. 4 Society, since the statutory objective of settlement under Rule 12 of the Fishery Rules is to confer opportunity of self subsistence for the 100% actual fishery groups in the neighbourhood of the Fishery by protecting them from competition of higher bids and revenue cannot be a consideration for selecting a tenderer as in normal tender process. 11. Mr. K.K. Mahanta, learned Senior Counsel representing the respondent No. 4 M/s. Kachudola Society on the other hand submits that this Society has made the highest offer in response to the NIT dated 19.1.2006. It is also submitted that the Society is within the neighbourhood of the Fishery as is certified in the 3 certificates dated 18.3.2006 (Annexure B Series in the counter affidavit) issued by the A.S.O., Baitamari Circle and it is contended that since the said 3 certificates have been referred to by the settling Authority in his order dated 5.4.2008, it has to be assumed that the settling Authority was conscious to the fact that M/s. Kachudola Society is in the neighbourhood of the Fishery. Mr. Mr. Mahanta submits that there is a finding that both M/s. Kachudola Society and M/s. Manash Society are located in the neighbourhood of the Fishery and proceeding on that basis, the higher offer of M/s. Kachudola Society has been accepted and the cannot be any justification to interfere with the said impugned settlement order dated 5.4.2008. Mr. Mahanta also submits that the petitioner Society is settled with another Fishery and even on that count, the settlement decision in favour of M/s. Kachudola Society, which has not been settled with any other fishery, has to be sustained by this Court. 12. Ms. H.M. Phukan, learned Govt. Advocate submits that both the contesting Societies are in the neighbourhood of the Fishery and since the offer of respondent No. 4, M/s. Kachudola Society is higher than that of M/s. Manash Society, the settling authorities have rightly decided to give settlement on the basis of the higher offer. 13. Before discussing the issue of neighbourhood involved in the present case, it would be appropriate to deal with the issue of distributive justice raised by Mr. Mahanta for disregarding the petitioner Society for the impugned settlement. To examine this issue, we may usefully refer to a decision of this Court in Shri Ganga Fisherman Samabay Samity Ltd. v. State of Assam reported in2007 (1) GLJ 696 where this Court held that unless the tenderers are informed in the NIT about the applicability of the concept of distributive justice by insertion of appropriate clause that a Society already having settlement, may not be considered for settlement or with a society having no Fishery settlement will be preferred, it would not be appropriate to refuse settlement in favour of a deserving society, on the ground that such a Society is already having settlement of some other Fishery. In the context of the above decision in Sri Ganga Fisherman (supra) on examination of the clauses incorporated in the NIT dated 19.1.2006, I do not find in corporation of any clause indicating therein that, a Society without having settlement would be preferred and a Society having settlement of another Fishery would not be considered. Accordingly, I feel that the concept of distributive justice should not be brought into play in the matter of consideration of the legality of the present settlement. Accordingly, I feel that the concept of distributive justice should not be brought into play in the matter of consideration of the legality of the present settlement. It must also be noted that the impugned order of settlement dated 5.4.2008 has been passed after remitting of the case by this Court for a fresh decision by considering the specific issue of neighbourhood and under such circumstances, it would not be appropriate in my view, to disregard the merit of the candidature of M/s. Manash Society only on the ground that it is enjoying settlement of another fishery at the moment. 14. The examination of the impugned order of settlement dated 5.4.2008, reveals that the settling authority did not at all refer to the Annexure-VI report dated 10.2.2006 submitted by the Dy. Commissioner, Dhubri although the said report was specifically discussed by the Court in its judgment dated 14.12.2008, while remitting the matter for fresh consideration. It further appears that the settling Authority although referred to the 3 certificates dated 18.3.2006 granted in favour of M/s. Kachudola Society (Respondent No. 4), did not give a specific finding on the neighbourhood aspect of the said Society, while a positive finding on the issue of neighbourhood of M/s. Kachudola Society has been recorded. In the later part of the order, there is omnibus declaration that both M/s. Manash Society and M/s. Kachudola Society satisfy the condition of Rule 12 of the Fishery Rules, as they are composed of 100% fishermen and both the societies are residing in the neighbourhood of the Fishery to be settled. Having found both the Societies to be eligible for settlement, the highest offer of M/s. Kachudola Society tilted the settling Authority's Impugned decision in favour of the said society. 15. Since the impugned settlement is made under Rule 12 of the Fishery Rules, the provision of the Rule is extracted herein below: 12. Having found both the Societies to be eligible for settlement, the highest offer of M/s. Kachudola Society tilted the settling Authority's Impugned decision in favour of the said society. 15. Since the impugned settlement is made under Rule 12 of the Fishery Rules, the provision of the Rule is extracted herein 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 by auction: [Provided that the State Government may settle any registered fishery otherwise than under tender system with Fishery Cooperative Society formed with 100 per cent actual fishermen of the fishing population in the neighbourhood of the fishery concerned and belonging to the Scheduled Caste of the State or Maimal Community of the Cachar District at a revenue calculated and for a period decided by the State Government from time to time.] To throw light on the considerations to be made by the settling Authorities for making settlement under Rule 12 of the Fishery Rules, the learned Counsels of both sides have referred to a Division Bench decision of this Court in the case of Brahmaputra Part II Mach Mahal Samabai Samity Ltd. v. State of Assam reported in 2003(1) GLT 155. Referring to the proviso to Rule 12, the special features of settlement process under Rule 12 is culled out by the Division Bench. It has been held in Brahmaputra Part II Mach Mahal Samabai Samity (supra), that the proviso to Rule 12 of the Fishery Rules embodies a social purpose and has been incorporated in the Rules to provide succours to the needy fishermen of the neighbourhood to provide a means of livelihood to them. An earlier decision of this Court in the case of Arabinda Das v. State of Assam reported in 1982 (1) GLR 280 has been referred to with approval and it has been recorded that the purpose of the proviso is to provide opportunity to deserving Fisherman of the locality who may not be in a position to compete with other tenderers in getting settlement of Fisheries under the tender system. The Court also recorded that there may be more than one cooperative society fulfilling the requirements of the proviso and in such situation, the setting authority has a discretion and competence to chose the most suitable Society from amongst the eligible ones. The Court also recorded that there may be more than one cooperative society fulfilling the requirements of the proviso and in such situation, the setting authority has a discretion and competence to chose the most suitable Society from amongst the eligible ones. The Court also recorded that the issue of neighbourhood is not to be reckoned for eligible competing Societies, as a mathematical formula but has to be permitted to be decided by taking note or proximity of vicinity of the Fishery, as is understood in common parlance. 16. Keeping the ratio of the above decision in mind, if the facts in the instant case is considered, what is seen here are: two societies both of whom are located In the neighbourhood of the Fishery. Obviously some of the members of each of the two contending Societies are residing in the neighbourhood of the fishery and are deserving of the opportunity to gainfully employ themselves by fishing in the said neighbourhood Fishery in such a situation, the settling Authority has to take a decision as to which of the eligible Society is to be considered for granting settlement. 17. The impugned order dated 5.4.2008 as well as the earlier settlement order dated 15.5.2006 shows that the settling Authority after having considered both the societies to be eligible, leaned in favour of the Society making the higher offer. But in my view, mere satisfaction of the eligibility criteria of neighbourhood would not make the contesting societies to be at par with each other, for tilting the scale only on the consideration of the value of the bid offered by an eligible Society. 18. In Clause II of the NIT it is stipulated that a tenderer is to be of that District and should be in the neighbourhood of the Fishery concerned. If this is a condition to be fulfilled by a tenderer, it is obvious that if a Society satisfied only the criteria of neighbourhood and does not satisfy the criteria of being a tenderer from the District in which major portion of the Fishery (76.30%) is located, it may not deserve settlement. A tenderer from another District would not be entitled to be considered as eligible as per Clause II, although to a limited extent (17.66%), it may be in the neighbourhood of the Fishery. A tenderer from another District would not be entitled to be considered as eligible as per Clause II, although to a limited extent (17.66%), it may be in the neighbourhood of the Fishery. But this requirement of being a tenderer from the district has obviously being overlooked by the settling Authorities, perhaps because the parties have been contesting only on the issue of neighbourhood of the respective tendering society. 19. The report dated 10.2.2006 of the Dy. Commissioner, Dhubri (Annexure-VI) has not been considered by the settling Authority, where it is clearly reflected that 76.30% of the Fishery area falls within the Goalpara District and the petitioner M/s. Manash Society is the only society belonging to Goalpara District and maximum portion of the Fishery area are within the nearest neighbourhood of M/s. Manash Society, whereas the respondent No. 4 M/s. Kachudola Society is in the neighbourhood of only 17.66% of the Fishery. 20. If the objective of Rule 12 of the Fishery Rules as has been held is to take care of, the requirement of livelihood of the Schedule Caste neighbouring fishermen, a Society whose members are stretched across 76.30% of the Fishery Area would perhaps have a better claim to obtain settlement since by granting settlement to such a Society, a larger group of actual Fishermen would benefit. Another Society while may be in the neighbourhood, but over a much smaller area, may have an inferior claim, as relatively lesser number of Fishermen could then be gainfully engaged. Here of course, one is assuming that with a larger operational area, a bigger group of Fishermen would be gainfully employed. 21. Bearing in mind the above statutory objective of providing livelihood to actual neighbourhood Fishermen, the said objective would be better served if the neighbourhood Society with a larger number of Fishermen members in the neighbourhood of the Fishery are preferred, as compared to another Society which will benefit a smaller Fishermen group, located in a relatively smaller neighbourhood area of the Fishery. 22. In so far as the present case in concerned, there is no finding recorded by the settling Authority that the respondent Society fulfils the criteria of neighbourhood of 'that district' as is envisaged by the Clause II of the NIT. Therefore, I am of the considered opinion that the impugned decision dated 5.4.2008 (Annexure XI) is wrong and the same cannot be sustained in law. Therefore, I am of the considered opinion that the impugned decision dated 5.4.2008 (Annexure XI) is wrong and the same cannot be sustained in law. For this and all the other reasons discussed, the impugned order in favour of the respondent No. 4 Society is quashed. 23. It is seen that even after 3 attempts, the Settling Authority has failed to resolve the issue that arise in the instant case and in the process, the settlement could not be made operational even 3-1/2 years after issuance of the NIT dated 19.1.2006. In the meantime, the parties have been litigating and despite two rounds of litigation, the impugned settlement granted in favour of M/s. Kachudola Society does not appear to be in conformity with the requirement of Rule 12 of the Fishery Rules. 24. Considering the passage of time and the fact that more than half of the settlement period is already over, instead of remanding the matter for a fresh settlement exercise in pursuant to the NIT dated 19.1.2006, I feel that Interest of public and justice would be served, if the respondents are directed to initiate a fresh settlement process by issuing a fresh NIT for settlement of the No. 1 Dhar Brahmaputra Fishery, in terms of the Fishery Rules. It is ordered accordingly. 25. With the aforesaid direction, this writ petition stands allowed without any order on cost. Petition allowed. Petition allowed