An order in mutation proceedings can be challenged under Article 226 of the Constitution if it is passed without jurisdiction or is based on a non-existent record.

The petitioner challenged the orders dated 10-7-92 and 18-1-1989 passed by the Board of Revenue, U. P. and Sub-Divisional Magistrate, Gyanpur, district Varanasi and prayed for quashing of the said orders. The petitioner pleaded that he is the Bhumidhar of plot No. 48 area 1 bigha 1 dhoors in village Pure Bahuria, Vaida Khas, Taluka Kodh, district. Varanasi. The opposite party No. 3 moved application in 1987 under Section 33/39 of Land Revenue Act for mutating his name in the said plot stating that he had purchased the land from the petitioner in 1967 was stated in the applications for mutation that during consolidation proceeding his name was recorded in Akrapatra 45 but the same was not carried through

in the revenue courts. The name of the respondent No. 3 does not appear in the village records also. The mutation application was contested by the petitioner on the ground that his name continued recorded in the revenue records and during the consolidation proceedings also and thereafter the petitioners name continues over the land in question. The petitioner denied that at any point of time during the Consolidation proceedings, the name of the opposite party No. 3 was recorded. The petitioner also contended that before the alleged sale-deed in favour of respondent No. 3 in 1967, no permission was taken for sale of the land. The sale-deed was fictitious and was never executed by the petitioner. The Sub-Divisional Magistrate after obtaining the report from the Naib Tahsildar passed order dated 18-1- 89. He directed that the name of the respondent No. 3 of the recorded/ mutated in the revenue record on the basis of the order of Consolidation officer dated 13-8-88 as apparent from CH Form No. 45. The name of the petitioner was directed to be expunged and name of respondent No. 3 was allowed to be impleaded.

2. The learned counsel for the petitioner submitted that the village was de-notified under Section 52 of the U. P. Consolidation of Holding Act 18 years before and the opposite party initiated proceedings for mutation of his name after the long period. It was argued that there was no record in CH Form No. 23 and there have been no proceedings before the authorities concerned on the basis of which CH Form No. 45 could be produced. The learned counsel specifically stated that on enquiry made by him from the office of the Officer Incharge of Record Room, it was replied that there was no case No. 55 of 1968 recorded in the Gosware register. The mutation application of the opposite party No. 3 was allowed and the petitioner being aggrieved, filed a revision before the Commissioner, Varanasi division, Varanasi, 3. The learned Commissioner by his order dated 2-1-1990 recommended the Board of Revenue to set aside the order of the S. D. M. and remand the case as per order of the Commissioner. The application for review moved by the opposite party No. 3 was rejected. The reference made to the Board of Revenue was decided on 10-7-92. The Addl. Commissioner while deciding the revision observed that the order of the mutation and correction of record is wholly based on this entry of the CH Form No. 45. There was no copy of the order warranting justification of such order nor the file was available. The Addl. Commissioner observed that the original record from the office of the Consolidation Authorities ought to have been summoned, but there was no attempt on the part of the opposite party No. 3 to summon the record of the said case or misilband register or examine any of the responsible person from the said office.

4. The Board of Revenue without setting aside the findings of the Addl. Commissioner, rejected the reference made by the Commissioner. The opposite party No. 3 have put in appearance and filed counter affidavit, which is on record.

5. In the counter affidavit, the opposite party No. 3 mentioned the decisions reported in 1956 ALJ 809- Lala Krishna Chand Jain v. D. M. Dehradun and Others. ; 1984 AWC 968-Smt. Lakshm