JUDGMENT D.S. Mathur, J. - This is a petition under Article 226 of the Constitution by Ashok Kumar and seven others to challenge the order dated 13-9-1963 of the Sub Divisional Officer Auraiya, whereby allotment of land made by the Gaon Sabha in their favour was cancelled. The land including the land in dispute allotted to the petitioners was put to auction and the bids of the highest bidders were accepted by the gaon Sabha. Chhotey Lal and Ram. Sewak respondents 4 and 5. thereafter moved an application to challenge the auction and the allotment of the land on the ground that the auction was collusive, no proper bids were given and the price fetched was very inadequate. The proceeding was contested by the allottees and also by the Goan Sabha. It was at the stage of argument that Chhotey Lal made a compromise and withdrew his application. The Sub Divisional Officer thereupon exercised the jurisdiction stto motu and cancelled the allotment in favour of the present petitioners on the ground that they were the wife, minor son, brothers, brother's son and brother's wife of the members of the Gaon Panchayat. At the same time it was held that the auction was neither collusive nor unfair nor the bids accepted were inadequate. The relationship with the members of the Gaon Panchayat was regarded to be such that the plea of living separately could not be accepted. It was thus held that the members had an interest in the land allotted to the petitioners and this was in violation of Section 28-C of the U. P. Panchayat Raj Act. 2. Section 28-C of the U. P. Panchayat Raj Act is the same as repealed Section 123-B of the U. P. Zamindari Abolition and Land Reforms Act. In fact, Section 28-C of the U. P. Panchayat Raj Act was incorporated after the repeal of Section 123-B under the same enactment. Section 28-C prohibits the acquisition of any share or interest by a member or office bearer of Gaon Panchayat in any licence, lease or sale by or on behalf of the Bhumi Prabhandhak Samiti unless the permission in writing of the Collector is obtained. 3. Rule 115-N of the U. P. Zamindari Abolition and 1.and Reforms Rules authorises the Sub Divisional Officer to cancel the allotment order on one of the grounds enumerated therein. 3. Rule 115-N of the U. P. Zamindari Abolition and 1.and Reforms Rules authorises the Sub Divisional Officer to cancel the allotment order on one of the grounds enumerated therein. For purposes of this Writ petition it is not necessary to express an opinion whether this Rule is still in force. If not in force, its principles can easily be made applicable. The first three grounds detailed in Rule 115-N are that the bid accepted is inadequate, the auction was collusive or unfair and the auction proceedings were not conducted in accordance with the rules. The fourth ground is a general one namely, that the allotment order can be cancelled on any other ground. Even though clause (iv) is general, it cannot be deemed to confer an unrestricted jurisdiction in the sub Divisional Officer. The discretion must be exercised properly and not arbitrarily. The fourth ground must be regarded as one connected with or similar to the first three grounds. In other words, the auction sale can be set aside only if the auction was collusive or unfair or the bid accepted is inadequate or there has been violation of the provisions of the law and the rules. 4. The consequence of the cancellation of an allotment order is generally to hold or to direct a fresh auction, but a fresh auction need not follow in each and every case. 5. What Section 28-C of the U. P. Panchayat Raj Act prohibits is the acquisition of a share or interest in any lease or sale. It does not specifically refer to an auction sale. The auction sale differs from an ordinary sale or lease in the sense that in an auction any person can take part in the bidding and no one can know beforehand, nor can he say that his bid shall be the highest. Any one can make higher bid. Consequently, a member of the Gaon Panchayat shall not ask for the permission of the Collector as contemplated by Section 28-C of the U. P. Panchayat Raj Act unless his is the highest bid and the allotment order can be passed in his favour. In the U. P. Panchayat Raj Act and also in the U. P. Zamindari Abolition and Land Reforms Act and the Rules framed thereunder there is no provision prohibiting a member or office bearer of the Gaon Sabha from making bids in the auction. In the U. P. Panchayat Raj Act and also in the U. P. Zamindari Abolition and Land Reforms Act and the Rules framed thereunder there is no provision prohibiting a member or office bearer of the Gaon Sabha from making bids in the auction. In the circumstances, the Collector can, if moved, refuse to grant the permission before the auction, for the simple reason that there is no provision for permission to take part in the bid and the question of grant of permission shall arise only if the bid of that person is the highest. 6. On the other hand, in a sale or lease other than by auction, negotiations take place between the two parties, that is, the member of the Gaon Panchayat and the Bhumi Prabandhak Samiti and it shall be known beforehand if the offer of the member shall be accepted or rejected. It is in such a case, that the authority concerned can insist that prior permission of the Collector must be obtained before the offer can be accepted. This rule cannot, for reasons already indicated above, be applied to auction sales. 7. In view of the fact that there is no provision prohibiting a member of the Gaon Panchayat from making his bid in an auction sale, a member can make his bids in the auction. Such an auction shall not be invalid, nor can it be set aside by the Sub Divisional Officer, unless the auction was collusive or unfair or the value fetched is inadequate. However, no allotment order can be made in which a member of the Gaon Panchayat has an interest unless the permission in writing of the Collector is obtained. It shall thus be necessary for the member to move the Collector for the grant of permission after the auction, and not earlier, and if the permission is granted, the Samiti can make an allotment order otherwise the land can be allotted to the next highest bidder or fresh auction ordered. It shall thus be necessary for the member to move the Collector for the grant of permission after the auction, and not earlier, and if the permission is granted, the Samiti can make an allotment order otherwise the land can be allotted to the next highest bidder or fresh auction ordered. Further, if the auction or the allotment order is challenged on the ground that a member of the Gaon Panchayat has an interest in the licence, lease or sale, the Sub Divisional Officer can cancel the auction on one of the grounds detailed in Rule 115-N and in other cases where a member has any interest in the licence, lease or sale, shall cancel the sale only after giving a reasonable opportunity to obtain the permission in writing of the Collector. Where the Sub-Divisional Officer is authorised to discharge this function of the Collector, he shall consider in the same proceeding whether permission be or be not granted. If he is of opinion that the permission be granted, he shall not quash the allotment order. But where he does not grant the permission, he can set aside the allotment order and direct a fresh auction, if necessary. However, while granting or refusing to grant the permission under Section 28-C of the U. P. Panchayat Raj Act, he shall have to keep in mind that every citizen has the fundamental right under Article 19 of the Constitution to acquire property and this right can be restricted only by a law duly enacted. It shall also have to be kept in mind that Section 28-C of the U. P. Panchayat Raj Act has been enacted to ensure that no member or office bearer of the Gaon Panchayat takes undue advantage of his position. 8. The Sub-Divisional Officer cancelled the attotment order on the ground that no prior permission in writing of the Collector was obtained. He should have given a reasonable time to the petitioners to obtain the permission of the Collector and if the Sub-Divisional Officer was authorised to himself grant the permission he should have considered whether in a case of the present kind permission be granted or not. 9. Another error committed by the Sub-Divisional Officer is that he presumed that the member of the Gaon Panchayat had an interest in the land being acquired by his brother nephew brother's wife. 9. Another error committed by the Sub-Divisional Officer is that he presumed that the member of the Gaon Panchayat had an interest in the land being acquired by his brother nephew brother's wife. He presumed that they were joint in residence and business. This finding was recorded without consideration of evidence. The approach to the question was not proper. In the case of the wife and the minor son it can be assumed that they were joint in residence and business with their father or husband, and the member had an interest in the land being acquired in the name 01 his wife or minor son. The presumption would he rebuttable but a heavy burden shall lie upon the wife and the minor son to prove to the contrary. In the case of brothers there cannot be such a presumption, in any case, the presumption shall: not be strong. Brothers can be separate. in cultivation and also in business. It was necessary for the Sub-Divisional Officer to consider the individual cases of the petitioners, whether in their case it could be said that the member of the Gaon Panchayat had an interest in the licence, lease or sale. 10. Considering that the Sub-Divisional Officer had not considered all the aspects of the questions in issue and the order is even otherwise incomplete or erroneous, it is necessary that the impugned order be quashed to enable him to deal with the matter in accordance with the law. 11. The Writ Petition is hereby allowed and the impugned order of the Sub-Divisional Officer is quashed. He shall now consider the matter afresh in accordance with the law keeping the observations made above in mind. Costs easy.