The Settlement Commissioner has the power to vary a consolidation scheme under section 32(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, if the scheme is defective due to an error, irregularity, or informality. However, the original scheme must be made and published in compliance with the provisions of the Act, including giving sufficient notice to landowners and publishing the draft scheme for a period of 30 days.

JUDGMENT - CHANDURKAR M.N., J. : - This petition filed by the original owner of survey No. 145 of village Shedshal, Taluka Shired, District Kolhapur, challenges

the action taken by the Settlement Commissioner under section 32(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947(hereinafter referred to as “the Act”), whereby the original scheme for consolidation which had become final is now sought to be modified by the Settlement Commissioner.

2. In a scheme of consolidation in respect of the village of Mahuli, the petitioner was allotted land bearing revision survey No. 146/l-A and revision survey No. 146/1-B admeasuring 1 hectare 58 ares which constituted Gat No. 622. These fields were originally owned by respondent No. 1 before consolidation. Respondent No. 1 was allotted 1 hectare 56 ares out of revision survey No. 145 which was given Gat No. 23. According to the petitioner, this scheme of consolidation was arrived at on the basis of an agreement between the two parties and this arrangement was, therefore, included in the scheme. The petitioner alleged that a joint statement was made by the parties on 22nd November 1973. The petitioner also claimed .hat he was put in possession of Gat No. 622 on 31st March 1974.

3. Respondent No. 1 alleging that the petitioner was interfering with

his possession of the two survey numbers which, according to the petitioner, were allotted to him under the consolidation scheme, had filed a civil suit for injunction restiaining the petitioner from interfering with his possession. No interim injunction was, however, granted to respondent No. 1. He failed to get a relief of injunction even in appeal against the order refusing to grant the injunction. Respondent No. 1 then made an application on 28th May 1974 which is to be found in the record which has been made available to us by the learned Assistant Government Pleader. He has made a grievence in that application against the scheme by which his land was being given to the petitioner and he bas stated that no notice was given to him at the time when this arrangement was arrived at. He also further stated that the quality of the land was not taken into account at the time of making the scheme relating to the exchange of the land. He has stated that if an enquiry was made from him about this, he would have given the necessary facts. He further stated that his own land was fore fertile and though the area of the land sought to be exchanged between the two parties was the same, he would still be seriously prejudiced because he would lose the land of good quality. According to respondent No. 1, the petitioner was a leader in the village and he was also a panch appointed to help the Consolidation Officer and, therefore, he has managed to take such land for himself as he wanted. It is on this application that the Settlement Commissioner acted after making the necessary enquiry 2nd be has in the exercise of his power under section 32(1) of the Act varied the scheme, the effect of this variation being that the land of respondent No. 1 would be restored to him. This variation of the scheme was directed to be published by the Settlement Commissioner on 7th October 1975. The notice dated 7th October 1975 was issued to the Talathi by the Consolidation officer asking him to publish the variation in the scheme by putting it on the notice board and by beat of drum. One of the reliefs claimed in the present petition is that this notice should be quashed. The petitioner has also prayed that the Settlement Commissioner must be restrained from taking steps for variation of the scheme which was finalised on 19th March 1975.

4. The main challenge to the action taken by the Settlement Commissioner on the application filed by respondent No. 1 is that this action is beyond the powers conferred by section 32(1) of the Act. It is contended that merely because respondent No I got land which was less fertile as a

result of the scheme and the petit

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