ORDER : UJJAL BHUYAN, J. 1. Heard Mr. T.J. Mahanta, learned Senior counsel, assisted by Ms. P. Chakraborty, learned counsel for the petitioner and Ms. R.B. Borah, learned Govt. Advocate, Assam. Also heard Mr. B.D. Das, learned Senior counsel assisted by Mr. H.K. Sharma, learned counsel for respondent No. 5. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 01.12.2018 of the Deputy Secretary to the Govt. of Assam, Fishery Department settling No. 10 Kolong Nadi Fishery (fishery) situated in the district of Nagaon with M/s. No. 10 Kolong Nadi Part IV Matsyajibi Samabai Samittee Ltd. (respondent No. 5) for a period of 7 years from the date of handing over possession at its bid value of Rs. 2,75,30.00 per annum and further seeks a direction to the respondents to settle the fishery with the petitioner after treating the petitioner as the highest valid bidder. 3. Petitioner is a cooperative society registered under the Assam Cooperative Societies Act, 1949 and presently governed by the provisions of the Assam Cooperative Societies Act, 2007. It is stated that all the members of the petitioner belong to fisherman community. 3.1. Notice Inviting Tender (NIT) was issued by the Deputy Commissioner, Nagaon on 8.8.2017 inviting bids for settlement of the fishery for a period of 7 years. Last date for submission of tender was 25.09.2017. Pursuant to such NIT, petitioner submitted its tender for the fishery. Altogether three tenderers had submitted tender for the fishery including petitioner and respondent No. 5. 4. On 15.09.2017 tenders were opened and thereafter scrutinized. As per comparative statement prepared, bid value offered by the petitioner was highest at Rs. 2,91,000.00 whereas that of respondent No. 5 was second highest at Rs. 2,75,000.00. Bid of the third highest bidder was Rs. 2,51,000.00. 5. Thus, bid value of the petitioner was the highest. In the meanwhile, to ensure that there was no loss of Government revenue during the interregnum, temporary settlement of the fishery was made with the petitioner on daily basis. 6. Notwithstanding the highest bid value offered by the petitioner, impugned order came to be passed on 01.12.2018 settling the fishery with respondent No. 5. 7. Aggrieved, present writ petition has been filed. 8. 6. Notwithstanding the highest bid value offered by the petitioner, impugned order came to be passed on 01.12.2018 settling the fishery with respondent No. 5. 7. Aggrieved, present writ petition has been filed. 8. This Court by order dated 19.12.2018 had issued notice with the observation that impugned order dated 01.12.2018 would be subject to outcome of the writ petition. 9. Parties have exchanged affidavits whereafter matter was heard on 25.04.2019. 10. Respondent No. 2 in his affidavit filed on 07.03.2019 has taken the stand that after receipt of tender papers, a Committee was constituted for scrutiny of tender documents. Committee comprised of Additional Deputy Commissioner (Fishery), Nagaon; District Fishery Development Officer, Nagaon and Treasury Officer, Nagaon. After evaluation of the tender documents, comparative assessment was made by the Committee. It was pointed out that petitioner had not submitted Bakijai Clearance Certificate from the competent authority. Circle Officer, Raha Revenue Circle in his report dated 13.03.2018 had mentioned that distance of the fishery from the residence of the petitioner was about 15 kilometer whereas in respect of respondent No. 5, it was about 1.5 kilometer. It is contended that temporary settlement of the fishery with the petitioner on daily basis conferred no right upon the petitioner for getting regular settlement which in any case automatically ceased to have its effect after the regular settlement came into force. After considering the above, impugned order dated 01.12.2018 was passed. Basic stand is that though bid value offered by the petitioner was higher than that of respondent No. 5 but since tender of the petitioner was defective, settling authority offered settlement to respondent No. 5. 11. Respondent No. 5 has also filed counter affidavit taking more or less the same stand. Further it is stated that after settlement order was passed on 1.12.2018, respondent No. 5 deposited an amount of Rs. 41,250.00 as security money on 19.12.2018 and deposited further amount of Rs. 68,750.00 being the first kist money. Possession of the fishery was handed over to respondent No. 5 on 26.12.2018. Since then respondent No. 5 is in possession of the fishery. Respondent No. 5 has supported the impugned order dated 1.12.2018. 12. Petitioner has filed reply affidavit to the counter affidavit filed by respondent No. 2. It is stated that petitioner had applied for Bakijai Clearance Certificate before the competent authority on 05.09.2018. Since then respondent No. 5 is in possession of the fishery. Respondent No. 5 has supported the impugned order dated 1.12.2018. 12. Petitioner has filed reply affidavit to the counter affidavit filed by respondent No. 2. It is stated that petitioner had applied for Bakijai Clearance Certificate before the competent authority on 05.09.2018. Though acknowledgement receipt was furnished to the petitioner, the certificate was issued after submission offender which was thereafter submitted directly before the settling authority. It is further contended that contrary to the report of the Circle Officer, distance between residence of the members of the petitioner and fishery is between 2.6 kilometer to 5 kilometer. 13. Submissions made by learned counsel for the parties have been considered. Also perused the record produced by learned Govt. Advocate. 14. At the outset, it would be appropriate to advert to the impugned order dated 1.12.2018, relevant portion of which is extracted hereunder:- "From the scrutiny of the proposal submitted by the Deputy Commissioner, Nagaon vide letter dated 7.4.18, it appears that in response to NIT issued by DC, Nagaon, 3 (three) tenders were submitted by intending bidders. The status of each of the bidder society is shown below:- "1. M/s. No. 10 Kalong Nadi Part IV MSS Ltd. offered the 2nd highest bid of Rs. 2,75,000.00 PA. All the documents submitted with the tender were found to be in order. Besides, as per report of CO, Raha, the society is located at a distance of 1.5 KM from the fishery. 2. M/s. Pachim Khaloibandha Matsyajibi SS Ltd. offered the 3rd highest bid of Rs. 2,51,000.00 PA. But the Society has not furnished Bakijai Clearance Certificate. Instead, it has submitted a receipt as a proof for applying for Bakijai Clearance Certificate. All other documents submitted with the tender are found to be in the name of Nagaon District Federation Cooperative Society and not in the name of the bidder society. Hence, the bid is not valid. 3. M/s. 19/20/21 No. Kapil Nadi MSS Ltd. has offered the 1st highest bid of Rs. 2,91,000.00 PA. But the Society has not furnished Bakijai Clearance Certificate. Instead it has submitted a receipt as a proof for applying for Bakijai Clearance Certificate. Subsequently, the bidder society submitted a copy of Bakijai Clearance Certificate with a prayer petition directly to Govt. in Fishery. 2,91,000.00 PA. But the Society has not furnished Bakijai Clearance Certificate. Instead it has submitted a receipt as a proof for applying for Bakijai Clearance Certificate. Subsequently, the bidder society submitted a copy of Bakijai Clearance Certificate with a prayer petition directly to Govt. in Fishery. Besides as per report of Circle Officer, Raha the society is located at a distance of 15 KM from the fishery. Thus, bid was found to be not valid. Considering all aspects of the matter after scrutiny of all documents in hand, it was found that bid offered by M/S No. 10 Kolong Nadi Part IV MSS Ltd. is the highest valid bid and thus Govt. is pleased to settle No. 10 Kolong Nadi Fishery in Nagaon district with M/S No. 10 Kalong Nadi Part IV MSS Ltd. at their offered bid value of Rs. 2,75,000.00 PA for a period of 7 years from the date of handing over possession of the fishery. The Deputy Commissioner, Nagaon will take necessary steps for handing over possession of the fishery to the Secretary, M/S No. 10 Kalong Nadi Part IV MSS Ltd. after completion of all required formalities as per provision of Assam Fishery Rules, 1953 (as amended)." 15. From a careful perusal of the impugned order dated 01.12.2018, it is seen that bid value offered by the petitioner was highest at Rs. 2,91,000.00. However, settlement was not offered to the petitioner on two grounds. First ground is non-furnishing of Bakijai Clearance Certificate. Second ground is distance from the fishery as per report of Circle Officer, Raha. 16. As per Clause 15 of the terms and conditions of NIT, a tenderer was required to submit Bakijai Clearance Certificate in the name of the President/Secretary along with the tender. In this case, settling authority noted that petitioner had submitted receipt of submission of application for Bakijai Clearance Certificate along with the tender. Subsequently, petitioner submitted copy of Bakijai Clearance Certificate directly to the settling authority before settlement was made. Settling authority has not denied or disputed the Bakijai Clearance Certificate submitted by the petitioner. It was before the settling authority at the time of consideration for settlement. Prior to that, petitioner had submitted receipt of submission of application for Bakijai clearance along with the tender. 17. A Division Bench of this Court in WA No. 294/2011 (Abu Talib Vs. Settling authority has not denied or disputed the Bakijai Clearance Certificate submitted by the petitioner. It was before the settling authority at the time of consideration for settlement. Prior to that, petitioner had submitted receipt of submission of application for Bakijai clearance along with the tender. 17. A Division Bench of this Court in WA No. 294/2011 (Abu Talib Vs. AFDC), decided on 29.09.2011 has held that non-furnishing of Bakijai Clearance Certificate cannot be construed to be a so serious a lacuna that a tender has to be cancelled on that count alone. Failure to produce such a certificate is not fatal. It has been held that requirement of submitting Bakijai Clearance Certificate cannot be taken as a rigid requirement where level playing field has been denied or a case where loss is caused to public revenue. In the present case, petitioner had applied for Bakijai Clearance Certificate before the concerned authority. Issuance of Bakijai Clearance Certificate was not in the hands of the petitioner. As proof of application, petitioner had annexed receipt of submission of such application along with the tender. Subsequently, such certificate was issued which was immediately furnished to the settling authority which was before the settling authority at the time of consideration for settlement. But the settling authority refused to take into consideration the said certificate. 18. In so far second ground of rejection of the bid of the petitioner is concerned, it is seen that settling authority relied upon the report of the Circle Officer, Raha which stated that petitioner is located at a distance of 15 kilometer from the fishery. On this ground, bid of the petitioner was found to be not valid. 19. A careful perusal of the terms and conditions of the NIT does not disclose that any condition was stipulated that settlement would be offered to the bidder which is nearest to the fishery or that preference would be given to such bidder. 20. As per proviso to Rule 12 of the Assam Fishery Rules, 1953, as amended, Government of Assam is empowered to settle a 60% category fishery with special category of Co-operative Societies, Non-Government Organizations and Self-Help Groups consisting of 100% actual fishermen in the neighbourhood of the fishery concerned by tender system. This is a settlement through tender. 21. 20. As per proviso to Rule 12 of the Assam Fishery Rules, 1953, as amended, Government of Assam is empowered to settle a 60% category fishery with special category of Co-operative Societies, Non-Government Organizations and Self-Help Groups consisting of 100% actual fishermen in the neighbourhood of the fishery concerned by tender system. This is a settlement through tender. 21. There are scores of decisions of this Court on the point of 'neighbourhood' as per requirement of Rule 12 of Assam Fishery Rules, 1953. Sum and substance of all the decisions is that the concept of 'neighbourhood' is a relative term and is not to be measured in inches, feet or meter. What is required to be assessed is the nearness of the bidder to the fishery so that the persons who are actual fishermen are able to enjoy the benefit of such settlement. 22. Settlement order mentions report submitted by Circle Officer, Raha as per which respondent No. 5 is situated at a distance of 1.5 kilometer from the fishery whereas petitioner is situated at a distance of 15 kilometer. This report of the Circle Officer is available in the record and is dated 13.03.2018. Though there is reference to letter dated 20.09.2017, the said letter under reference could not be traced out in the record. 23. A perusal of the said report would go to show that it was based on a report submitted by the Lat Mandal. But this report is only in respect of the petitioner and respondent No. 5. There were three tenderers including petitioner and respondent No. 5 but this report was in respect of only petitioner and respondent No. 5. Why there was no report in respect of other tenderer is quite surprising. When there were three bidders seeking settlement of the fishery and a report is called for on the point of 'neighbourhood', report should be in respect of all the bidders and not in respect of one or two bidders which may indicate that authorities are scrutinizing tender of a particular tenderer in a particular manner either to favour that party or to cause prejudice to such party. But most importantly, last date for submission of tender was 25.9.2017. But before the last date, reference letter dated 20.09.2017 was issued. But most importantly, last date for submission of tender was 25.9.2017. But before the last date, reference letter dated 20.09.2017 was issued. Before the last date, how did the authority know that petitioner and respondent No. 5 would be submitting tender and how could such report on 'neighbourhood' be called for. All these makes the report of the Circle Officer dated 13.03.2018 highly controversial and unreliable. 24. That apart, record discloses that respondent No. 5 had submitted application dated 13.08.2018 before the Fishery Minister, Govt. of Assam seeking settlement of the fishery. In the said application, it was pointed out that petitioner was situated at a distance of 15 kilometer from the fishery which has uncanny resemblance to the report of the Circle Officer, Raha. This application of respondent No. 5 was forwarded by the local MLA to the Fishery Minister who thereafter forwarded the same to the departmental authorities for enquiry. 25. When settlement of a fishery is being considered by the settling authority through a tender process, it is the settling authority which will consider whether a tender is valid or not valid. Interference by any other authority in the tender process would not be justified. Moreover, when the tender process was in progress, a tenderer could not have sought for interference by any other authority - be him political head of the department-to intervene in an ongoing tender process. That would negate the very concept of settlement by tender. Any party which tries to influence a tender process by seeking interference of higher authorities or any other authority should be disqualified from the tender process. Such type of application should not be encouraged more so when the law relating to settlement of fishery by the State Government under Rule 12 of the Fishery Rules has undergone a change post amendment in 2005. There is now no direct settlement by the Government It is settlement by and through tender process. When there is settlement by and through tender process, only the party which is found to be best should be offered settlement. There cannot be any question of interference by any other authority in the tender process. 26. That being the position, impugned order dated 01.12.2018 cannot be sustained and is accordingly set aside and quashed. Matter is remanded back to the Fishery Department, Govt. There cannot be any question of interference by any other authority in the tender process. 26. That being the position, impugned order dated 01.12.2018 cannot be sustained and is accordingly set aside and quashed. Matter is remanded back to the Fishery Department, Govt. of Assam for passing a fresh order of settlement pursuant to NIT dated 08.08.2017 keeping in mind the discussions and observations made above. Such decision shall be taken within a period of 30 days from the date of receipt of a certified copy of this order. During this period of 30 days, whoever is in possession of the fishery shall continue to operate the same on daily basis but the same shall be subject to such fresh order that may be passed by the settling authority. 27. Writ petition is disposed of. 28. Record produced by learned Govt. Advocate is returned back.