JUDGMENT
Devi Prasad Singh, J.
1. Heard Sri A. S. Chaudhary learned counsel for the petitioner as well as Sri R. K. Srivastava, learned standing counsel,
2. The submission of the learned counsel for the petitioner is that an area of one bigha 10 dhur a part of plot. No. 448 situated in village Gosua, pargana Mallawan, Tehsil Bilgram, district Hardoi, was allotted to the petitioner No. 1 for construction of house on payment of Rs. 150 to the Gaon Sabha on 17.1.1982. A copy of which has been annexed as Annexure-1 to the writ petition. Similarly, the plots were allotted to the other petitioners, i.e., petitioner Nos. 2 to 11 by the Gaon Sabha in pursuance to payment of certain charges. The relevant facts has been pleaded in para 1 of the writ petition. The submission of the learned counsel for the petitioner is that after allotment of plot for residential purpose by the Gaon Sabha the petitioner has started construction over the said plot.
3. The submission of the learned counsel for the petitioner is that by the impugned order dated 1.7.1981, the Sub-Divisional Magistrate, Bilgram had cancelled the allotment done in petitioners favour by non-speaking order without providing opportunity of hearing or issuance of show cause notice. The impugned order dated 1.7.1981 is reproduced as under :
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4. At the face of record, the impugned order passed by the Sub-Divisional Magistrate is violatlve of statutory provision contained in sub- section (4) of Section 198 read with Section 122C of U.P.Z.A. and L.R. Act.
5. Further submission of learned counsel for the petitioner is that application was moved for the supply of the certified copy of the impugned order, but the same was refused by Nayab Tehsildar by the endorsement dated 28.7.1984. The photostat copy of the application has been filed as Annexures-8 to 12 to the writ petition.
6. Learned standing counsel submits that there was no allotment of land at all in favour of petitioner as it was done without having prior approval from the Sub-Divisional Magistrate/ Assistant Collector Incharge of the Sub-Division.
7. In paras 3 and 4 of the writ petition, the petitioner has submitted that the impugned order was passed without issuing any show cause notice or opportunity of hearing to the petitioner. In reply to the averments contained in paras 3 and 4 of the writ petition, it has been submitted by the opposite parties in the counter- affidavit that the meeting of the Gram Sabha was held illegally and no prior approval was accorded by the Sub- Divisional Magistrate for allotment of land in question in pursuance to provision contained in Rule 115C of the U.P.Z.A. and L.R. Rules.
8. Certain other averments has been made in paras 3, 4, 5 and 6 to the writ petition. So far as the grant of certified copy is concerned, it has been submitted that Sub-Divisional Magistrate has not passed any order. The Nayab Tehsildar had passed order refusing the certified copy. It has been further submitted in the counter-affidavit that under the Rule it was for the Copying Department of Tehsil to provide the certified copy and not by the Nayab Tehsildar. For convenience, sub-sections (4), (5), (6), (7), (8) of Section 198 as well as Section 122C of U.P.Z.A. and L.R. Act are reproduced as under :
“Sub-sections (4), (5), (6), (7) and (8) of Section 198 :
(4) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he Is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any.
(5) No order for cancellation of an allotment or lease shall be made under sub-section (4), unless a notice to show cause is served on the person in whose favour the allotment or lease was made or on his legal representatives :
Provided that no such notice shall be necessary in proceedings for the cancellation of any allotment or lease where such proceedings were pending before the Collector or any other Court or authority on August 18, 1980.
(6) Every notice to show cause mentioned in sub- section (5) may be issued :
(a) in the case of an allotment of land made before November 10, 1980 (hereinafter referred to as the said date) ; before the expiry of a period of (seven years) from the said date ; and
(b) in the case of an allotment of land made on or after the said date, before the expiry of a period of (five years from the date of such allotment or lease or up to November 10, 1987, whichever be later).
(7) Where the allotment or lease of any land is cancelled under sub-section (4) the following consequences shall ensue, namely-
(i) the right, title and interest of the allottee or lessee or any other person claiming through him in such land shall cease and the land shall revert to the Gram Sabha ;
(ii) the Collector may direct delivery of possession of such land forthwith to the Gaon Sabha after ejectment of every person holding or retaining possession thereof and may for that purpose use or cause to be used such force as may be necessary.
(8) Every order made by the Collector under sub- section (4) shall subject to the provisions of Section 333, be final.
Section 122C. Allotment of land for housing site for members of Scheduled Castes, agricultural labourers etc.-(1) The Assistant Collector in charge of the sub- division of his own motion or on the resolution of the Land Management Committee, may earmark any of the following classes of land for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes and agricultural labourers and village artisans :
(a) lands referred to in clause (I) of sub-section (1) of Section 117 and vested in the Gaon Sabha under that section ;
(b) lands coming into possession of the Land Management Committee under Section 194 or under any other provisions of this Act ;
(c) any other land which is deemed to be or becomes vacant under Section 13, Section 14, Section 163, Section 186 or Section 211 ;
(d) where the land earmarked for the extension of abadi and reserved as abadi site for Harijans under the U. P. Consolidation of Holdings Act, 1953, is considered by him to be insufficient, and land earmarked for other public purposes under that Act is available, then any part of the land so available.
(2) Notwithstanding anything In Sections 122A, 195, 196, 197 and 198 of this Act, or in Sections 4, 15, 16, 28B and 24 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may with the previous approval of the Assistant Collector in charge of the sub-division allot for purposes of building of houses, to persons referred to in sub-section (3) :
(a) any land earmarked under sub-section (1) ;
(b) any land earmarked for the extension of abadi sites for Harijans under the provisions of the U. P. Consolidation of Holdings Act, 1953 ;
(c) any abadi site referred to in clause (iv) of sub- section (1) of Section 117 and vested in the Gaon Sabha ;
(d) any land acquired for the said purposes under the Land Acquisition Act, 1894.
(3) The following order of preference shall be observed in making allotments under sub- section (2)-
(i) an agricultural labourer or village artisan residing in the village and belonging to a Scheduled Caste or Scheduled Tribe ;
(it) any other person residing in the village and belonging to a Scheduled Caste or Scheduled Tribe ;
(iii) any other person residing in the village and belonging to a Scheduled Caste or Scheduled Tribe.
Explanation I. – The expression “agricultural labourer- shall have the same meaning as in Section 198.
Explanation II. – The expression ‘village artisan’ means a person who does not hold any agricultural land and whose main source of livelihood is manufacture or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and Includes a carpenter, weaver, potter, blacksmith, silversmith, goldsmith, barber, washerman, cobbler or any other person who normally earns his livelihood by practising a craft either by his own labour or by the labour of any member of his family in any rural area :
Provided that no person shall be deemed to be a village artisan whose total income (including income of his or her spouse and minor children) exceeds two thousand four hundred rupees in a year.
Explanation III.-Preference shall be given to a person who either holds no house or has insufficient housing accommodation considering the requirements of his family.
(4) If the Assistant Collector in charge of the sub-division is satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under sub- section (2) or It is otherwise necessary or expedient so to do, he may himself allot such land In accordance with the provisions of sub-section (3).
(5) Any land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed.
(6) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon, the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease.
(7) Every order passed by the Assistant Collector under sub- section (4) shall, subject to the provisions of sub-section (6) and every order passed by the Collector under sub-section (6) shall be final, and the provisions of Section 333 and Section 333A shall not apply in relation thereto.
(8) * * * *
(9) In Rule 115L of the U. P. Zamindari Abolition and Land Reforms Rules, 1952, sub-rule (2) shall be deemed always to have been omitted.]”
9. The aforementioned provisions at the face of record show that before cancelling the lease it was incumbent upon the competent authority to hold proper inquiry and provide opportunity of hearing which includes issuance of show cause notice to the affected persons. Sub- section (4) of Section 198 at the face of record provides that the cancellation of allotment of lease may be done after show cause notice. Sub- section (4) provides that only after issuing service of show cause notice on the person in whose favour allotment or lease has been made an order may be passed.
10. Similarly, sub-section (C) of Section 122 also command the authorities, i.e., the Assistant Collector that is the Incharge of Sub Division to provide opportunity of hearing before directing for eviction of a person from Gram Sabha land.
11. Moreover, it has been settled by Apex Court and reiterated from time to time that wherever civil rights are affected, the authorities have to comply with principle of natural justice before passing an adverse order. Compliance of natural justice is the backbone of our constitutional philosophy covered by Article 14 of the Constitution of India. Howsoever, wrong or irregular order may be in case the same has been implemented, normally the authorities have to comply with the principle of natural justice before passing an adverse order.
12. One other reason comes in the way of respondents to defend the impugned order is that at the face of record the impugned order is non- speaking one. It does not disclose the reasons and also lacks the discussion of controversy. Similarly, by showing that allotment was illegal, the impugned order is not sustainable in the eye of law. While passing such orders the authorities have to disclose the reasons and discussed the material on record which has necessitated the authorities to pass the order of cancellation of lease. The impugned order is an order which is not only unjust and improper but is a non-speaking one and has been passed without assigning any specific reason.
13. The submission of Sri. R. K. Sharma learned standing counsel is that the allotments were not done with prior permission from the Sub Divisional Magistrate or they have done in violation of certain rules does not rescue the respondents from holding the impugned order as illegal and violative of Article 14 of the Constitution of India. It is settled law that every order passed by the authorities should stand on its own leg. The order itself should be speaking one passed on sound reasons disclosing material grounds which had compelled the authorities to pass such order. The impugned order may not be defended by making averment in its support through counter-affidavit or in any other form. Pleadings contained in the writ petition of counter-affidavit may assign reasons to defend an order but in case the order itself is bad or non- speaking one, it cannot be supported by an affidavit. Every order should stand on its own leg with full disclosure and discussion of controversy involved.
14. Moreover, it is evident from the provision contained in Section 122C read with sub-sections (4) to (8) of Section 198 reproduced herein above the impugned order has been passed without following the statutory provisions.
15. It is the settled law that in case authorities want to do certain thing, the authorities should act in the manner provided under the Act or Statute or not at all. A reference may be given in the Apex Court judgment in Barium Chemicals Ltd. and Anr. v. Company Law Board, AIR 1967 SC 295. Relevant portion ‘para 34-A’ of the said judgment of Apex Court is reproduced as under :
“As a general rule, whatever a person has power to do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be redelegated, delegatus non-potest delegare. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot re-delegate his authority. As a general rule, “if the statute directs that certain acts shall be done in specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited.” See Crawford on Statutory Construction, 1940 Edn., Article 195, p. 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ Itself. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his Individual judgment on the matter and all the members of the Board should act together and arrive at a joint decision. Prima Jade, the Board must act as a whole and cannot delegate its function to one of its members.”
16. Under above facts and circumstances of the case the impugned order does not survive. Writ of certiorari is Issued quashing the impugned order dated 1.7.1984 as contained in Annexure-7 to the writ petition passed by Sub Divisional Magistrate, Hardoi, with all consequential benefits. It shall be open to the authorities to proceed afresh in accordance to law.