ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. S. Khound, learned counsel for the petitioner. Also heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. D.K. Sarma, learned counsel for the respondent No. 7 and Ms. M. Bhattacharyya, learned Addl. Senior Govt. Advocate for respondent Nos. 1 to 6. 2. The order dated 26.2.2021 issued by the respondent No. 2 is under challenge whereby GR No. 1/87 Dharnad Brahmaputra Part-I and Satakuri Nadi Fishery in the district of Dhubri was decided to be settled with M/s. Geramari Gaon Panchayat, respondent No. 7. The Deputy Commissioner, Dhubri, respondent No. 4 published NIT dated 27.2.2020 for settlement of the aforesaid fishery for a period of seven years i.e. for the period 2019-20 till 2025-26. The fishery falls within the 60% category specifically meant for cooperative society/self help group formed by 100% fishermen. The last date for submission of tender was 16.3.2020. Amongst the various terms and conditions stipulated, submission of names of the members of the participating society alongwith address and distance certificate from the concerned fishery to be issued by the concerned Circle Officer of the Revenue Circle are mandatory as per clause 4 sub-Clause (Niya) and (Ta). It is also stipulated that the Deputy Commissioner shall enquire the said two conditions at the relevant time. Sub Clause Kha of Clause 4 of the NIT stipulates that the tenderer shall have to obtain Bakijai Clearance Certificate from the office of the concerned Deputy Commissioner distinctly in the name of the society. 3. In response to the said NIT dated 27.2.2020 the petitioner society submitted its bid alongwith others including the respondent No. 7. After opening of the bids respondent No. 7 was found to be the highest valid bidder and the petitioner was found to be second highest valid bidder as per the comparative statement. The petitioner after opening of tender came to know that amongst 57 members of the respondent No. 7 society it had shown members only from the revenue villages of Madaikhali, Asharikandi and South Geramari. The said three villages fall within the area of operation of the petitioner society. Further though the respondent No. 7 society was granted 27 nos. of villages as its area of operation but none of the members were from the said villages. The said three villages fall within the area of operation of the petitioner society. Further though the respondent No. 7 society was granted 27 nos. of villages as its area of operation but none of the members were from the said villages. Further it came to the notice of the petitioner that the respondent no. 7 submitted Bakijai clearance certificate dated 12.3.2020 in the name of Anil Chandra Barman, Secretary of the Society and does not fulfil the requirement of the terms and condition of the NIT as the same was not issued in the name of the respondent No. 7 society. 4. The petitioner submitted a representation/complaint to the Additional Deputy Commissioner,(ADC) Dhubri upon which it was directed to the Circle Officer, Gauripur Revenue Circle to cause an enquiry and to submit the report pertaining to the list of the members, their addresses and the distance certificate submitted by the respondent No. 7 alongwith the bid. The Circle Officer, Gauripur Revenue Circle upon enquiry cancelled the distance certificate issued by him in favour of the respondent No. 7 on the ground of submission of false information. The respondent no. 7 approached ADC, Dhubri for causing further enquiry into the matter upon which the said ADC, Dhubri requested the said Circle Officer vide letter dated 29.6.2020 to cause further enquiry. However no such enquiry was conducted on the ground that a detailed and thorough enquiry had already been-conducted in compliance of the mandatory requirements stipulated in the NIT regarding the members list and the distance certificate. The Circle Officer vide his letter dated 1.7.2020 accordingly apprised the ADC, Dhubri to that effect. On the other hand, the petitioner submitted a representation dated 17.3.2020 before the Asstt. Registrar, Cooperative Societies (ARCS) Dhubri praying for cancellation of the registration of the respondent No. 7 society for encroaching the area of operation of the petitioner society illegally and enrolling members outside the registered area of operation by the respondent No. 7. 5. The petitioner filed WP (C) 2562/2020 as there was inordinate delay in disposing of the representation dated 17.3.2020 by the ARCS, Dhubri. On the other hand, the respondent No. 7 also filed WP (C) No. 2343/2020 seeking for expediting the settlement process under the NIT. 5. The petitioner filed WP (C) 2562/2020 as there was inordinate delay in disposing of the representation dated 17.3.2020 by the ARCS, Dhubri. On the other hand, the respondent No. 7 also filed WP (C) No. 2343/2020 seeking for expediting the settlement process under the NIT. Those two writ petitions are taken analogously and vide order dated 25.6.2020 directed the Registry of this Court to list the cases on 20.7.2020 and in the meantime the department was directed to take steps for finalisation of the tender process but not to issue settlement order without leave of the court. It was also directed to ARCS, Dhubri for disposal of the petition dated 17.3.2020 filed by the petitioner passing a speaking order. 6. The ARCS, Dhubri as per direction of this court initiated an enquiry through two senior Inspectors of Cooperative Societies, Dhubri. The ARCS on the basis of the reports of the said two Inspectors submitted his report on 7.7.2020 to the Additional Deputy Commissioner, Dhubri wherein it was held that the village Madaikhali was included as the area of operation by the petitioner through an amendment in the year, 2013 whereas areas constituting the village Madaikhali were under the respondent No. 7 since the registration of the Society in the year, 1982. 7. Being aggrieved by the said report dated 7.7.2020 the petitioner filed an appeal u/s. 111 of the Assam Cooperative Societies Act, 2007 before the Registrar of the Cooperative Society, Assam seeking for setting aside the said order dated 7.7.2020. The respondent No. 7 also filed written statement therein the appeal. The appellate authority heard both the parties on 13.9.2020 and as there was delay in disposal of the appeal within the stipulated time frame, the petitioner filed WP (C) 5216/2020 seeking for early disposal of the said appeal which was heard by the appellate authority. In the meantime, in pursuance of order dated 25.6.2020 by this court in WP (C) No. 2343/2020, the respondent No. 4, Deputy Commissioner, Dhubri recommended the respondent No. 7 for consideration and for settlement of the fishery on the ground that the respondent No. 7 being the highest eligible bidder. The said recommendation was on the basis of the order dated 14.9.2020 issued by the ADC, Dhubri which was challenged in WP (C) 4434/2020. The said recommendation was on the basis of the order dated 14.9.2020 issued by the ADC, Dhubri which was challenged in WP (C) 4434/2020. It is pertinent to mention herein that the recommendation by the respondent No. 4, Deputy Commissioner, Dhubri dated 29.9.2020 was made on the basis of the said report dated 14.9.2020 of the ADC, Dhubri as against the representation dated 17.3.2020 of the petitioner and the report of the ARCS, Dhubri dated 7.7.2020 wherein the objections of the petitioner was rejected and another speaking order of the ADC, Dhubri holding that the objection raised by the President of the petitioner society dated 16.3.2020 and 17.3.2020 were not based on truth and actual facts. He also considered the report regarding area of operation and distance certificate in respect of the respondent No. 7 society which was submitted by the Circle Officer dated 28.8.2020 after field enquiry made by him. This court vide order dated 11.2.2021 considered the batch of writ petitions being WP (C) No. 3379/2020, WP (C) No. 2343/2020 filed by the respondent No. 7, WP (C) No. 5216/2020, WP (C) No. 3051/2020, WP (C) No. 2562/2020, WP (C) 4434/2020 filed by the petitioner and disposed of directing the respondent authority as follows: "18. A perusal of the order dated 29.9.2020 issued by the Deputy Commissioner, Dhubri goes to show that there were five tenderers who had submitted their bids pursuant to the NIT dated 27.2.2020 out of which "Geramari" has quoted Rs. 1,90,05,000.00 for seven years whereas its rival "Gauripur" has quoted Rs. 1,09,04,299.00 In terms of the prices quoted by the bidders "Geramari" is the highest bidder. The second highest bidder appears to be Milanpur Anusuchita Jati Kalyan FCS ltd. Which had quoted Rs. 1,70,10,707.00. Taking note of the price quoted by the different bidders the Deputy Commissioner, Dhubri had recommended settlement of the fishery with "Geramari". However even if a recommendation goes from the Deputy Commissioner, the Government of Assam, in the Fisheries Department, would have a duty to verify the eligibility of each of the bidder and only thereafter, take a final decision in the matter. Such power and duty is cast upon the Government under Rule 42 of the Assam Fishery Rules, 1953. The mandate of the Fishery Rules is to award the settlement in favour of the "highest valid bidder" and not merely the highest bidder. Such power and duty is cast upon the Government under Rule 42 of the Assam Fishery Rules, 1953. The mandate of the Fishery Rules is to award the settlement in favour of the "highest valid bidder" and not merely the highest bidder. If the tender submitted by "Geramari" is found to be technically valid then only the highest price quoted by it would be relevant. 19. Although there are claims and counter claims regarding the validity of the tender submitted by "Geramari" I am of the view that there would be no need for this Court to embark on a process of adjudication of such claims, more particularly when those are based on factual realities existing at the ground level. Rather, this Court is of the opinion that the departmental authorities would be the best judge to figure out whether the bid submitted by the tenders are technically valid or not. 20. In view of the above without expressing any opinion on the claims and counter claims of the parties, I dispose of all these writ petitions by granting leave to the Government of Assam, Fishery department to examine the recommendation dated 29.9.2000 issued by the Deputy Commissioner, Dhubri and thereafter approve the settlement of the fishery in favour of the "highest valid bidder" after taking into account all the relevant facts and circumstances of the case pertaining to the eligibility of the bidder. The said exercise be carried out and completed within two weeks from today. 21. In so far as the appeal filed by M/s. Gauripur Cooperative Fishery Society Ltd. Before the Registrar of Cooperative Societies, Assam is concerned, it would now be open for the concerned authority to pass appropriate order disposing of the appeal within 10 days from today. The interim order dated 25.6.2020 passed by this court in WP (C) No 2343/2020 shall stand modified accordingly. The writ petitions are disposed of" The impugned order is the outcome of the direction passed by this court referred hereinabove. 8. Mr. M.K. Choudhury, learned Senior counsel for the petitioner referred the tender conditions more specifically Clause (4) "Niya" and "Ta" which stipulates submission of the list of the names of the members of the societies alongwith correct address and the distance certificate. 8. Mr. M.K. Choudhury, learned Senior counsel for the petitioner referred the tender conditions more specifically Clause (4) "Niya" and "Ta" which stipulates submission of the list of the names of the members of the societies alongwith correct address and the distance certificate. The said stipulations are required to be followed strictly in order to categories a bidder within the term "highest valid bidder" mandated by this Court in the order dated 11.2.2021. Admittedly the distance certificate issued by the Circle Officer in favour of the respondent No. 7 was cancelled by the Circle Officer himself on the ground of suppression of material facts by the respondent society at the time of issuance of said certificate. Referring to the comparative statement prepared by the tender committee it is submitted that though the respondent No. 7 quoted his bid at Rs. 1,90,05,000/- and was found to be valid highest bidder, the subsequent cancellation of the distance certificate categorised the said respondent No. 7 to be an invalid bidder and as a result the petitioner being the second highest bidder and having fulfilled all the criteria, the impugned order deciding to settle the fishery with the respondent No. 7 is perverse and illegal. 9. The learned Senior Counsel for the petitioner further submitted that there was interference by the Hon'ble Minister, Fishery Department directing the authority for settlement of the fishery to the respondent No. 7 on the face of such illegality referred above which goes to the root of the qualifying criteria of a bidder inasmuch as the respondent No. 7 failed to submit valid distance certificate as stipulated by the terms of the NIT. Moreover, as per Govt. of Assam, Fishery Department notification No. FISH-19/65/2017-8 fishery /1 dated 18.1.2018, the Bakijai Clearance certificate is to be obtained by the tenderer from the Bakijai authority under the concerned Deputy Commissioner invariably in the name of the Society NGO/SHG only. But in the present case the Bakijai clearance certificate submitted stands in the name of the Secretary but not in the name of the Society. Accordingly failure on the part of the private respondent No. 7 to satisfy the qualifying criteria and other terms of the NIT ought to have been considered by the respondent authority before arriving and passing the impugned settlement order in favour of the respondent No. 7. 10. Mr. Accordingly failure on the part of the private respondent No. 7 to satisfy the qualifying criteria and other terms of the NIT ought to have been considered by the respondent authority before arriving and passing the impugned settlement order in favour of the respondent No. 7. 10. Mr. K.N. Choudhury, learned Senior counsel for the private respondent No. 7 relied Rule 13 of the Assam Fishery Rules, 1953 and submits that it is prescribed under the said Rule for settlement of the fishery under 60% category by tender system only with the cooperative fishery society. The said society must be formed with 100% shareholders from the members of the actual fishermen belonging to the SC community etc. Nowhere in the said Rule prescribes the requirement of neighbourhood certificate/distance certificate. In order to reinforce the said submission, Mr. Choudhury referred Rule 12 of the Assam Fishery Rules 1953 and wanted to distinguish with the Rule 13 that if the authority wanted to settle the fishery by way of direct sale then the issue of neighbourhood certificate is a mandatory requirement. Admittedly the impugned fishery though under 60% category but the authority decided to settle the same with the cooperative society under Rule 13 as such the requirement of distance certificate has nothing to do. Further necessary enquiry/enquires were made by the concerned officials under the authority and being satisfied with the various reports came to the conclusion to settle the fishery with the respondent No. 7. In support of the said contention Mr. Choudhury referring to the Full Bench decision of this Court in Arabinda Das Vs. State of Assam & Ors. reported in 1982(1) GLR 280 submits that the proviso to Rule 12 comes into play before the power of direct settlement could be exercised by the State Government and the said proviso is stipulated in order to check any arbitrary application of the discretion by the State while exercising the power for direct settlement of the fishery. It is further submitted by Mr. It is further submitted by Mr. Choudhury, the learned Senior counsel for the respondent No. 7 that the concerned authority has the jurisdiction to take a decision on the basis of the terms stipulated in the NIT but after a decision is taken and while power of judicial review is being exercised by this court, there is no bar in looking into the intent of stipulating some of the Clauses within the ambit and scope of the prescribed Rules under Assam Fishery Rules 1953. This submission is made in order to bring home the argument already placed by the learned Senior counsel that even if the distance certificate is a condition stipulated in the NIT but the same can be waived by the tender Committee/authority and if that is done this court exercising the jurisdiction of judicial review must look into the relevant Rules and the power of the authority concerned for waiver of such condition at the time of evaluation of the tender process. 11. Ms. M. Bhattacharjee learned State Counsel produced the records and further made her submission that the concerned authority called for the reports from the Registrar, Cooperative Society, Assam in respect of the appeal preferred by the petitioner and on perusal of the findings alongwith the various reports of the Additional Deputy Commissioner, Dhubri arrived to the logical conclusion of the tender process initiated by the NIT dated 27.2.2020. 12. I have given due consideration to the submissions made by the learned counsel. The impugned settlement order was passed after the order passed by this court on 11.2.2021 directing the authority to bring the NIT dated 27.2.2020 to its logical conclusion on the basis of the recommendation dated 29.9.2020 of the Deputy Commissioner, Dhubri and while doing so the Government of Assam, Fishery Department was directed to approve the settlement of the fishery in favour of the "highest valid bidder". It was also observed and directed the concerned authority, to dispose of the appeal filed by the petitioner before the Registrar, Cooperative Societies. This court while passing the said order also took note about the cancellation of the distance certificate issued to the respondent No. 7 by the Circle Officer which was challenged in WP (C) 3379/2020. It was also observed and directed the concerned authority, to dispose of the appeal filed by the petitioner before the Registrar, Cooperative Societies. This court while passing the said order also took note about the cancellation of the distance certificate issued to the respondent No. 7 by the Circle Officer which was challenged in WP (C) 3379/2020. It was also observed that the factual aspects would be best judged by the concerned authority while deciding the tenderer in respect of their individual standing including the validity of their bids or not. I have perused the records. As per the records the order dated 20.2.2021 passed by the Registrar, Cooperative Societies was considered. The relevant portion necessary from the records for the decision in this writ petition is extracted hereinbelow: "RCS vide his order dated 20.2.2021 has directed both the societies to maintain status quo in the matter of area of operation as on date as per Registration Certificate and both the societies were allowed to operate in Asharikandi-Bokuwapara & Asharikandi-Chikashipara. For issue of Neighbourhood Certificate in connection with settlement of instant fishery Geramari society has shown 12 villages which are as per report of CO. located at a minimum distance of 0.0. KM to maximum 2.5. KM. But the society has shown members from South Geramari, Madaikhali & Asharikandi Villages whereas as per Registration Certification, only a part of Asharikandi village i.e. Asharikandi-Bakuapara & Asharikandi Chikasipara and Geramari Part VI of Geramari village are within it's area of operation and Madaikhali is not included in it's area of operation. As per Clause 4 of NIT the distance of the village registered under the society inhabited by members of the society are to be taken into consideration for neighbourhood issue. In the instant case, Geramari Society has submitted list of members from villages which are not registered under it. However it is pointed out that neighbourhood issue will come into consideration in case of valid bids only as an invalid bidder can't claim settlement merely being in the neighbourhood of the fishery. Thus Govt. In the instant case, Geramari Society has submitted list of members from villages which are not registered under it. However it is pointed out that neighbourhood issue will come into consideration in case of valid bids only as an invalid bidder can't claim settlement merely being in the neighbourhood of the fishery. Thus Govt. may consider settlement of the fishery to the highest valid bidder in the light of order/direction of the Hon'ble High Court dated 11.2.2021 with stress on settlement of the fishery to the highest valid bidder and not merely highest bidder" From the aforesaid extract it is found that the respondent authority considered the direction of the Registrar, Cooperative Societies to the parties to maintain status quo in the matter of area of operation as on date and both the societies were allowed to operate in the Asharikandi Bakurapara. It also considered the report issued by the Circle Officer, Gauripur Revenue Circle dated 23.6.2020 in response to the letter dated 19.6.2020 of the Additional Deputy Commissioner, Dhubri on the basis of which the distance certificate dated 12.3.2020 issued by the Circle Officer, Gauripur Revenue Circle in favour of the respondent No. 7 was cancelled. It indicated that respondent No. 7 submitted list of members from villages which are not registered under it which indicates non satisfaction of Clauses 4(Ta) of the NIT. The Hon'ble Minister, Fishery Department observed that from the report of the Deputy Commissioner, Dhubri the respondent No. 7 is the valid highest bidder and as such keeping in view the direction of this court in the judgment dated 11.2.2021 the respondent No. 7 may be settled with the fishery being the highest bidder. 13. In my considered opinion "highest valid bidder" in terms of the order dated 11.2.2021 passed by this court meant the highest bidder but satisfying all the requisites as stipulated in the NIT including the required criteria stipulated in Clause 4(Niya) and (Ta). As per the tender stipulations the Deputy Commissioner, Dhubri has the jurisdiction to verify the residential address and the distance of the residence from the concerned fishery on the basis of the addresses of the members submitted by the individual Society, while scrutinising the said two clauses 4(Niya) and (Ta). Though Mr. As per the tender stipulations the Deputy Commissioner, Dhubri has the jurisdiction to verify the residential address and the distance of the residence from the concerned fishery on the basis of the addresses of the members submitted by the individual Society, while scrutinising the said two clauses 4(Niya) and (Ta). Though Mr. Choudhury learned Senior counsel for respondent No. 7 wanted to project that the applicability of the neighbourhood issue is not relevant in the present NIT however the same cannot be accepted as (i) the respondent authority had considered the said issue of neighbourhood and the residential proof of the various members of the cooperative societies in the evaluation process; (ii) the said terms are stipulated in the NIT as the qualifying criteria for the bidders. As the concerned authority considered the said factor of neighbourhood and the same being the terms of the NIT it cannot be held to be illegal. Accordingly in my considered opinion, it would not be required to discuss further the submission of Mr. Choudhury in respect of the distinguishing features of Rule 12 and 13 of the Assam Fishery Rules 1953. 14. From the perusal of the records, I am satisfied that the required terms and conditions stipulated in the NIT were considered and it was indicated that the respondent No. 7 does not fall within the definition of "highest valid bidder" but due to the concerned note by the Hon'ble Minister it was decided to settle the fishery with the respondent No. 7. The said act of deciding settlement of the fishery to the respondent No. 7, in my considered opinion is arbitrary and liable to be set aside. There are catena of decisions of this court not to speak of the Apex Court that the qualifying criteria set out in the NIT are required to be followed not only by the bidders but also by the tender evaluation committee. Non compliance of any of the terms set out in the NIT would amount to violation of Article 14 of the Constitution of India. In the present case it is found that the distance certificate issued to the respondent No. 7 by the Circle Officer, Gauripur in order to satisfy the terms of the NIT was subsequently cancelled on the basis of the enquiry carried out by ADC, Dhubri which was conducted as per the terms stipulated in the NIT. In the present case it is found that the distance certificate issued to the respondent No. 7 by the Circle Officer, Gauripur in order to satisfy the terms of the NIT was subsequently cancelled on the basis of the enquiry carried out by ADC, Dhubri which was conducted as per the terms stipulated in the NIT. The said enquiry reports have its value in order to assess the criteria "highest valid tenderer" and the said reports form part of the record of the tender evaluation process. Non consideration of the said reports while passing the impugned settlement order in favour of the respondent No. 7 amounts to perversity. In view of the same this writ petition stands allowed at this motion stage as consented by the learned counsel for taking it up for disposal thereby setting aside and quashing the impugned order dated 26.2.2021 issued by the respondent No. 1 with a further direction to the concerned authority i.e. respondent No. 1 to take appropriate decision in order to bring the NIT to its logical conclusion as per the terms of the order dated 11.2.2021 passed by this court in the batch of writ petitions at the earliest. Send back the records.