Legal proceedings drawn against a deceased person are null and void, and actual possession of surplus land by the State Government is essential for valid proceedings.

MAHESH CHANDRA TRIPATHI, J.

1. Heard Sri B.P. Singh, Senior Advocate assisted by Sri Santosh Kumar Pandey and Sri Rajnish Kumar Pandey, appearing for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel for all the respondents.

2. The petitioner is before this Court assailing the validity of order dated 12.12.2017 passed by respondent no. 4, Assistant Collector/Tehsildar (Judicial), Tehsil Sadar, District Bareilly, whereby he has rejected the mutation application filed by the petitioner under Section 34 of U.P. Revenue Code, 2006 in respect of Gata No.278 situated in Village Saidpur Hakans, Tehsil Sadar, District Bareilly on the ground that the name of vendor has not been recorded in the revenue record, whereas the competent authority had issued no objection certificate in favour of the vendor.

3. Record in question reflects that the Gata No.278 area 0.683 hectares situated at Village Saidpur Hakans, Tehsil Sadar, District Bareilly was recorded in the names of Smt. Tasmeelan, wife of Badalu, Smt. Idrisian, wife of Fariyad Husain, Abid Hussain and Chhange, sons of Noor Mohammad; Faffar Ahmad, Zabbar Ahmad, Intezar Ahmad, Mukhtyar Ahmad, sons of Faiz Ahmad in the revenue record. The land measuring 721.36 sq. meters of plot no. 278 in question was declared surplus in the hands of the recorded tenure holder Abdul Hamid, father of Smt. Tasmeelan and Smt. Idrisan under the provisions of Urban Land (Ceiling & Regulations) Act, 1976 (in short the 'Act'). Admittedly, Abdul Hamid died on 23-12-1980. When the respondents authorities tried to interfere in the possession of Smt. Tasmeelan and Smt. Idrisan, daughters of Abdul Hamid, they approached this Court by filing writ petition no.50844 of 2008, alleging that since they are still in actual physical possession over the land declared surplus, as such, the possession cannot be taken from them as the proceedings stand abated on account of Repeal Act, 1999. The proceedings were drawn against a dead person, hence, a nullity. The said writ petition was disposed of on 26-09-2008 in the same terms and directions as contained in the order dated 21-08-2008 passed in writ petition no. 68691 of 2006. By the said order, they were given liberty to make a representation before the District Magistrate/Collector requiring him to decide the same by means of a reasoned and speaking order, if possible within a period of three months from the date of presentation of the representation.

4. In pursuance of the aforesaid order, Smt. Tasmeelan and Smt. Idrisan made a representation on 31-10-2008 alleging that their father namely Abdul Hamid died on 23-12-1980 and the order dated 06-05-1981 declaring 721.36 sq. meter land as surplus was passed against a dead person without any notice or opportunity to them, who are his legal heirs and representatives; there exists grove over the land in dispute; they are in actual physical possession over the same; no notice under Section 10(3), 10(5) & 10(6) was ever served upon them; the alleged 'Dakhalnama' is a fraudulent document and no possession was ever taken from them. The District Magistrate/Collector, Bareilly vide order dated 29-08-2009 rejected the representation holding that the possession of the land in dispute was taken on 23-12-1985 and thus the provisions of the Repeal Act are not attracted. Smt. Tasmeelan and Smt. Idrisan again approached this Court by preferring Writ C No.70882 of 2009 (Smt. Tasmeelan and another vs. State of UP and others). The aforesaid writ petition was allowed by a Division Bench of this Court on 27.7.2015 with following observations:-

"We have considered the argument advanced on behalf of the parties and perused the record.

The District Magistrate/Collector, Bareilly after analyzing the record has returned a finding that vide order dated 06-05-1981 passed under Section 8(4) of the Act in case no. 456/1274/21/80 (State vs. Abdul Hamid) an area of 721.36 sq. meter was declared surplus and vide order dated 10-09-1981 not