IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2098 of 2009 BIBI MUSTAKIMA KHATOON @ BIBI MUSTAKIMA Versus THE STATE OF BIHAR & ORS ----------- 2. 12.2.2009 Heard counsel for the petitioner and the counsel for the State. The petitioner is aggrieved by an order of cancellation of licence under the Public Distribution System in terms of the order of the licensing authority dated 20.12.2007 which also stands affirmed in part in the order of the appellate authority, namely, the Collector of the District dated 12.2.2008. Counsel for the petitioner would submit that that the decision taken in the case of the petitioner for cancellation of her licence is based on incorrect application of a circular of the State Government which actually was not even in force on the date of issuance of the licence. He explains this aspect by saying that the procedure of screening the cases through a Selection Committee was not in vogue as on the date of issuance of licence to the petitioner and as such the impugned order passed by the Sub-divisional Officer 2 and consequential appellate order are fit to be set aside. Counsel for the State, on the other hand, points out that it was found in the case of Araria Sub-division that the then Sub-divisional Officer had indiscriminately issued 320 licenses without following the prescribed norms and also in excess of vacancies. Counsel in this respect has also drawn attention of this Court toward the policy and guideline under which the selection procedure was to be gone into through a duly constituted Committee was to contend that the licence of the petitioner was issued without the approval of the Committee and/or following the policy and/or guideline framed by the government. It has also been submitted by him that petitioner cannot be allowed to take a new plea before the writ court which was not raised before the authorities and in the context he has refered to the reply of the petitioner to the show cause notice wherein no such plea of introduction of the concept of the Selection Committee only after issuance of licence by the petitioner was even raised by 3 the petitioner. This Court on perusal of the show cause reply as also the impugned orders is quite satisfied that when a large scale of bungling was committed by the than, the Sub- divisional Officer in issuing the licences in a span of four months without adhering to the norms fixed in Public Distribution System (Control) Order 2001, the successor S.D.O. the licencing authority had definitely the power to review grant of such scale of illegal licence. From the impugned orders it is also clear that the petitioner alone was not picked up for such action rather each and every case of new licence was examined on merit by looking into to the case records regarding such 329 licences. Thus ultimate conclusion arrived by the Sub-divisional Officer in the impugned order dated 20.12.2007 as with regard to illegality committed even in the case of the petitioner of not adhering to the prescribed norms cannot be held to be incorrect on any score. When the norms fixed by the government in the guidelines for issuance of 4 the new licences required such a decision to be taken by a selection committee, the order passed by the S.D.O. in person for grant of licence to the petitioner without recommendation and approval such committee can not be said correct. The very fact that licence was issued in favour of the petitioner without their being a vacancy and also without following the quota of reservation for SC/ST/Backward categories was sufficient to cancel the licence of the petitioner. This aspect of the matter had in fact also been gone into by the appellate authority who too has found sufficient reasons for upholding the order of cancellation of licence of the petitioner. The appellate authority, however, has remitted the matter back on specific issue, inasmuch the S.D.O. has been directed that an expeditious decision should be taken for issuance of a fresh licence in which the case of the petitioner should also be considered on priority basis. In the opinion of this Court, the petitioner therefore still has a chance of being considered and 5 given a licence. This Court accordingly would not interfere with the impugned orders so far it relates to cancellation of licence of the petitioner specially when it is found that the said order was passed after following the principles of natural justice. As a matter of fact neither in the show cause reply nor in the memo of appeal the petitioner had even raised the ground of the govt. policy and/or guideline fixing norms of grant of licence through selection committee after following the rules of reservation against clear vacancies to be not applicable to his case. Thus the aforesaid plea now raised before this Court for the first time against the impugned order cannot be even looked into by this court in absence of its being raised earlier before the S.D.O. and/or Collector. It is well settled that this court in exercise of its power under Article 226 of the Constitution can not examine the decision on merits and its limited enquiry would be confined to the decision making process. This Court however does not find 6 any error in such decision making process of the Respondents. That being so this writ application devoid of any merit is dismissed. It however goes without saying that the S.D.O., the licensing authority, in terms of the order of remand passed by the Collector of the district would take immediate steps for considering the case of the petitioner alongwith others in accordance with law. (Mihir Kumar Jha,J.) Surendra/