JUDGMENT - R.M. LODHA, J.:---The order passed by the Settlement Commissioner on 2-1-1989 whereby he ordered variation of scheme finalised in the year 1973 under the Bombay Prevention of Fragmentation Consolidation of Holdings Act, 1947 (for short "the Act of 1947") is under challenge in this writ petition.

2. The case of the original petitioner set up in this writ petition is that Land Survey No. 95/4 admeasuring 5 acres and 25 gunthas was originally owned by Raghunath Anandrao Pawar and the said land was being cultivated by the original petitioner's father as tenant and the respondent No. 2 Bhausaheb Kushaba Kakade (since deceased) as well as the original respondent No. 1 Nivrutti Krishna Bhilare (since deceased). The agreement of sale was entered into between the father of the original petitioner and original respondent No. 1 on 21-12-1956 for a consideration of Rs. 3,500/-. It is stated that the original petitioner and respondent No. 1 paid their share of amount. The land in question was governed by the Bombay Tenancy Act and the proceedings under section 32-G was initiated. A certificate under section 32-M was issued to the original respondent No. 1 and his name was recorded in the record of rights. Subsequently, by second agreement dated 26-10-1959, the original respondent No. 1 agreed to execute the necessary document in favour of the original petitioner's father as regards northern half of the land aforestated and the petitioner's father was put in physical possession of the northern portion of these said land. When the scheme for consolidation of holdings was introduced in the village Kikvi, possession of petitioner's father and the respondent No. 1 in respect of their share in respect of Survey No. 95/4 was recorded. It is stated that the petitioner's father died in the meanwhile and was survived by the petitioner and respondent No. 2 herein and accordingly in the scheme confirmed and finalised the name of the original petitioner and respondent No. 2 was recorded in respect of the northern portion of Survey No. 95/4-A by giving new Gat No. 413 and the land in possession of respondent No. 1 was designated as Gat No. 412. However, after a period of about 16 years, the original petitioner received a notice informing him that the scheme earlier finalised has been varied under section 32(1) of the Act of 1947 and possession as per the varied scheme would be taken on 14-2-1989. Aggrieved by that the present writ petition has been filed by the original petitioner.

3. An affidavit in reply has been filed by respondents 3 to 5 and defence has been set up therein that the earlier holding of Survey No. 95/4 was divided erroneously which was neither legal nor proper and, therefore, the said scheme has been varied. It is stated that the variation proposal accepted by Settlement Commissioner and Director of Land Records was sent to Consolidation Officer, Pune for publication vide letter dated 26-9-1988 and was so informed to the original petitioner and all concerned. Objections were called for. The Consolidation Officer, Pune caused the publication of the scheme through the Talathi in the village by beat of drum on 14-10-1988 and at taluka notice board on 21-10-1988 and since no objections were received within a stipulated period of 30 days, the Settlement Commissioner confirmed and varied scheme on 2-1-1989 after following the entire procedure under section 82.

4. After having heard the learned Counsel for the petitioners and the learned Counsel for the respondent 1 and 2 as well as the A.G.P. we are of the view that writ petition deserves to be allowed for the reasons which we indicate hereinafter.

5. There is no dispute that the scheme was finalised by following the procedure contemplated under the Act of 1947 way back in the year 1973 whereby the earlier Survey No. 95/4 was divided into different Gat numbers and the said scheme was enforced and remained in force without any demur or objection by any party for about 15 years. Sec

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