Judgment M.R. Shah, J.— Rule. Shri Pandya, learned Advocate waives service of notice of Rule on behalf of Respondent Nos. 3 and 4 and Shri Dave, learned AGP waives service of notice of Rule on behalf of Respondent Nos. 1 and 2. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and / or order directing the respondent authorities to vary the scheme under Section 70 A of the Gujarat Town Planning and Urban Development Act, 1976, qua the lands of the petitioners and to restore the allotment of Final Plot No. 143 to the petitioners 2.1 The petitioners have also prayed for an appropriate writ, direction and / or order quashing and setting aside the Town Planning Scheme No. 28 (Althan Bhatar-Surat) qua the land of the petitioners. 3.0 The facts leading to the present petition in nutshell are as under: 3.1. That the land in question being Survey No. 35 total admeasuring 12,901 sq.mtrs. belonged to one Ukabhai Narayanbhai Patel. That the said land was situated within the Surat Urban Agglomeration. That the intention to prepare the Town Planning Scheme No. 28 was declared by the appropriate authority on 9.6.1995 of the land in question was also included in the said Scheme. That the owners meeting held on 2.4.1996. That the Draft Town Planning Scheme was published under Section 48 of the Act on 8.11.1996 and the same came to be sanctioned under Section 48(2) of the Act on 30.7.1998. That while re-constituting the plot, 18 meter wide road was carved out from the land belonging to the original owners which according to the petitioners resulted into four sub plots being cut. That the original land owner Ukabhai Narayanbhai Patel filed objection before the Town Planning Authority on 30.6.2001 pointing out that as the land of sub plots Nos. 1,2, 3 and 4 are required for the purpose of road as the plot holders are deprived of the same, the Town Planning Officer may be pleased to grant any other alternative plots so that the four plot holders can be accommodated. 1,2, 3 and 4 are required for the purpose of road as the plot holders are deprived of the same, the Town Planning Officer may be pleased to grant any other alternative plots so that the four plot holders can be accommodated. It is the case of the petitioners that after considering the objections filed by the original owner Shri Ukabhai Narayanbhai Patel, while submitting the Preliminary Town Planning Scheme, the Town Planning Officer was pleased to reconstitute the original revenue survey No. 35 as the original plot No. 36 admeasuring 12,901 sq.mtrs. and in lieu of that, by way of reconstitution, the Town Planning Officer was pleased to allot Final Plot No. 58 admeasuring 11,801 sq.mtrs. and Final Plot No. 143, at a distant place, but within the Town Planning Scheme area, admeasuring 248 sq.mtrs. only. It is the case of the petitioners that respective petitioners have individually purchased the sub-plots No. 1 to 4 from the original owner Ukabhai Patel and also filed the objection before the Town Planning Officer on 20.6.2009. It appears that as the possession was needed for the purpose of road, the petitioners voluntarily handed over the possession of the same to the respondent Corporation and in lieu of that, the Respondent No. 2 Corporation has also handed over the possession of the Final Plot No. 143 to the petitioners with the consent of the original owner of the said plot. It appears that thereafter the Preliminary Town Planning Scheme as suggested by the Town Planning Officer has sent to the State Government for its sanction under Section 65 of the Act and the State Government while sanctioning in schedule as item No. 4 has stated that the Final Plot No. 143 stands, which was proposed to be allotted to the original owners by Town Planning Officer stands alloted to the Surat Municipal Corporation for public utility. It is the case of the petitioners that by virtue of the said decision, the plot holders of the plot Nos. 1 to 4 who were allottees in the scheme, as aforesaid, would stand fully deprived of their lands. Hence, petitioners have preferred the present Special Civil Application under Article 226 of the Constitution of India. It is the case of the petitioners that by virtue of the said decision, the plot holders of the plot Nos. 1 to 4 who were allottees in the scheme, as aforesaid, would stand fully deprived of their lands. Hence, petitioners have preferred the present Special Civil Application under Article 226 of the Constitution of India. 4.0 Shri Desai, learned Advocate for the petitioners has vehemently submitted that impugned decision of the State Government to modify the Preliminary Scheme submitted by the Town Planning Officer in exercise of powers under Section 65 of the Act is absolutely illegal and arbitrary and as such contrary to the provisions of Section 65 of the Act. It is submitted by Mr. Desai, learned Advocate appearing on behalf of the petitioners that Section 65 of the Act does not give absolute powers to the State Government to vary the Preliminary Scheme submitted by the Town Planning Officer (Urban Housing and Urban Development Department). It is submitted that the State Government has only limited power to modify the Preliminary Scheme in case it decides to sanction with necessary corrections which are necessary in the opinion of the Government for the purpose of correcting an error, irregularity or informality only. It is submitted that in the present case the change made by the Government at the time of sanctioning the Preliminary Scheme cannot be by any stretch of imagination be considered either an irregularity, irregularity or informality. It is submitted that in the present case a substantial change has been made while modifying the Preliminary Scheme proposed by the Town Planning Officer. It is further submitted on behalf of the petitioners that even while exercise the powers under Section 65 of the Act, if the State Government take a decision to modify the Preliminary Town Scheme proposed by the Town Planning Officer in that case, an opinion is to be formed by the State Government with respect to such modification of the Preliminary Scheme whether there is an error, irregularity or informality which requires modification of Preliminary Town Planning Scheme proposed by the Town Planning Officer. It is further submitted by Mr. Desai, learned Advocate appearing on behalf of the petitioners that not only that but the State Government is also required to form an opinion whether there is any necessity to modify the Scheme. It is further submitted by Mr. Desai, learned Advocate appearing on behalf of the petitioners that not only that but the State Government is also required to form an opinion whether there is any necessity to modify the Scheme. 4.1 It is further submitted by Shri Desai, learned Advocate for the petitioners that even otherwise the impugned Preliminary Town Planning Scheme sanctioned by the State Government deserves to be quashed and set aside as the same is in breach of principles of natural justice inasmuch as no opportunity has been given to the petitioners before modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer while sanctioning the Preliminary Town Planning Scheme. It is submitted that under Rule 26 of the Rules at every stage the land owners are required to be given an opportunity to submit objections and suggestions i.e. at the time of Draft Town Planning Scheme as well as at the time of preparation of the Preliminary Town Planning Scheme. It is submitted that in the present case at the time when the Draft Town Planning Scheme was sanctioned, the petitioners - original land owners were proposed to be allotted four different plots and thereafter objections and suggestions were invited by Town Planning Officer on the sanctioned Draft Scheme and thereafter Town Planning Officer prepared tentative reconstitution and while preparing the Town Planning Scheme it was decided to allot Final Plot No. 58 admeasuring 11801 sq.mtrs. and Final Plot No. 143 admeasuring 248 sq.mtrs. of land in lieu of their original land bearing Survey No. 35 – Original Plot No. 36 admeasuring 12901 sq.mtrs. It is submitted that the aforesaid proposed Preliminary Town Planning Scheme was sent to the State Government for its sanction under Section 65 of the Act and while sanctioning the said Town Planning Scheme with modification, the State Government has sanctioned the scheme and allotted the Final Plot No. 143 to the Surat Municipal Corporation, which was to be given to the original land owners under the Preliminary Town Planning Scheme prepared and suggested by the Town Planning Officer. Therefore, it is submitted that the State Government takes a decision to sanction Preliminary Town Planning Scheme under Section 65 of the Act with modification i.e. by modifying the Preliminary Town Planning Scheme proposed by the Town Planning Officer, in that case, the State Government was required to give opportunity to the original land owners/petitioners and is required to issue notice upon the land owners who are likely to be affected on such modification. It is submitted that in a case where the State Government sanctions the Preliminary Town Planning Scheme under Section 65 of the Act without any modification i.e. accepts the Preliminary Town Planning Scheme submitted by the Town Planning Officer, in that case, there is no necessity to give opportunity, as earlier objections and suggestions are already invited at the time of preparing Preliminary Town Planning Scheme by the Town Planning Officer as required under Rule 26(a) of the Rules. Therefore, it is submitted that considering the Scheme of the Town Planning Act right from preparing the Draft Town Planning Scheme till its sanction, in the aforesaid situation, the right of hearing to be given to the land owners, is to be read in to even if it is not so specifically provided in the Act. Therefore, it is submitted that the impugned Preliminary Town Planning Scheme sanctioned by the State Government with modifications of the Preliminary Town Planning Scheme suggested by the Town Planning Officer is absolutely illegal and against the principles of natural justice which deserves to be quashed and set aside. Mr. Therefore, it is submitted that the impugned Preliminary Town Planning Scheme sanctioned by the State Government with modifications of the Preliminary Town Planning Scheme suggested by the Town Planning Officer is absolutely illegal and against the principles of natural justice which deserves to be quashed and set aside. Mr. Desai, learned Advocate appearing on behalf of the petitioners has submitted that in such a situation, there can be two options available to the State Government i.e. (i) to give opportunity to the original land owners and invite objections and suggestions from the original land owners against the proposed changes to be made by the State Government while modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer and/or (ii) to return the Preliminary Town Planning Scheme sent by the Town Planning Officer for reconsidering the same by the Town Planning Officer along with the comments by the State Government and with proposed changes in the Preliminary Town Planning Scheme suggested by the Town Planning Officer, so that on remand the Town Planning Officer can consider the same and issue notice upon the original land owners and invite objections and suggestions as required under Rule 26(a) of the Rules. 4.2. Shri Desai, learned Advocate for the petitioners is heavily relied upon the decision of this Court in the case of Kishanbhai Hargovandas Patel vs. State of Gujarat rendered in Special Civil Application No. 26785 of 2007 reported in 2010 GLHEL-HC223273 in support his above submissions. Relying upon the decision and making above submissions, it is requested to allow the present Special Civil Application. 5.0 Shri Dave, learned AGP appearing on behalf of the State Government has tried to support the impugned decision while sanctioning the Preliminary Town Planning Scheme in question, sanction under Section 65 of the Act. It is submitted that Section 65 of the Act confers power upon the State Government to sanction Preliminary Scheme with such modifications as may, in its opinion be necessary. It is submitted that powers conferred under Section 65 of the Act are absolute powers vest in the State Government either to sanction the Preliminary or Final Scheme or refuse to give sanction or may sanction such Scheme with such modifications. It is submitted that powers conferred under Section 65 of the Act are absolute powers vest in the State Government either to sanction the Preliminary or Final Scheme or refuse to give sanction or may sanction such Scheme with such modifications. It is submitted that while sanctioning the Town Planning Scheme in question in exercising the power under Section 65 of the Act it was not fit to allot Final Plot No. 143 to the Surat Municipal Corporation on reconstitution and when thereafter the Preliminary Town Planning Scheme came to be sanctioned by the State Government, no illegality has been committed. However, Shri Dave, learned AGP for the State Government is not in a position to dispute that the controversy raised in the present petition is squarely covered by the decision of this Court in the case of Kishanbhai Hargovandas Patel (Supra). Thus, also not in a position to show any contrary decision to the aforesaid decision. 6.0 Shri Pandya, learned Advocate for the Respondent Nos. 3 and 4 Urban Development Authority has fairly conceded that as such the controversy raised in the petition is squarely covered by the decision of this Court in the case of Kishanbhai Hargovandas Patel (Supra) and considering the above, the matter is required to be remanded to the State Government as per the aforesaid decision. 7.0 Heard the learned advocates appearing on behalf of the respective parties at length. 8.0 The short question which is posed for consideration of this Court is with respect to powers of the State Government (Urban Housing and Urban Development Department) while exercising powers under Section 65 of the Act, more particularly to sanction the Preliminary Town Planning Scheme with modifications and whether in a case where the State Government while sanctioning the Preliminary Scheme submitted by the Town Planning Officer sanctions the same with modifications i.e. instead of Final Plot “A” proposed to be allotted under the Preliminary Town Planning Scheme prepared and proposed by the Town Planning Officer, if State Government modifies the same and sanctions the same and allots Final Plot “B”, in such a case whether any opportunity is to be given to the land owner or not with respect to the Final Plot allotted under the Preliminary Town Planning Scheme sanctioned by the State Government? 9.0 As such the controversy raised in the present group of petitions is squarely covered by the recent decision of this Court, with respect to the very Town Planning Scheme No. 6 (Unjha) dated 10.02.2010 in the case of Kishanbhai Hargovandas Patel and Anr. vs. State of Gujarat and Ors. Rendered in Special Civil Application No. 26785/2007. Considering the entire scheme of the Gujarat Town Planning Act and the Rules and considering the decision of the Hon’ble Supreme Court in the case of Bhikhubhai Vithlabhai Patel and others (Supra), this Court in Para 22 has observed and held as under: “22. The sum and substance of the aforesaid discussion is that in a case where the State Government sanctions the Preliminary Town Planning Scheme with modification in the Preliminary Town Planning Scheme suggested by the Town Planning Officer and instead of Final Plot “A” suggested by the Town Planning Officer under the Town Planning Scheme, Final Plot “B” is allotted to the land owner at the time of sanctioning the Preliminary Town Planning Scheme No. 65 of the Town Planning Act i.e. modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer to the aforesaid extent, before such a modification, an opportunity is required to be given to the original land owners to submit their objections and suggestions and at that stage, principles of natural justice is required to be read into. Under the circumstances, the impugned Preliminary Town Planning Scheme No. 6 (Unja) sanctioned by the State Government with respect to the lands of the petitioners - original land owners deserves to be quashed and set aside.” 10. Now the next question is what further steps to be taken by the State Government. It was suggested that the Preliminary Town Planning Scheme sanctioned by the State Government allotting Final Plot No. 143 admeasuring 248 sq.mtrs. to the Surat Municipal Corporation which was originally proposed to be allotted to original land owners be treated as Notices to the petitioners - original land owners and other persons likely to be affected any other affected persons can submit their objections and suggestions to the same. 11. In view of the above and for the reasons stated above, the petition succeeds. 11. In view of the above and for the reasons stated above, the petition succeeds. The impugned Preliminary Town Planning Scheme No. 28 (Althan Bhatar-Surat) sanctioned by the State Government in exercise of the powers under Section 65 of the Act in so far as Final Plot No. 143 allotted to the Surat Municipal Corporation is hereby quashed and set aside. Let the Preliminary Town Planning Scheme sanctioned by the State Government with respect to the aforesaid lands in question be treated as a notice inviting objections and suggestions and it will be open for the petitioners and all other persons likely to be affected, to submit their objections and suggestions within a period of three months from today and it will also open for the appropriate authority and / or Surat Municipal Corporation to submit their objection / suggestion. Thereafter, the State Government is directed to take appropriate decision in accordance with law and on merits, after considering the objections and suggestions, if any, received and considering the objection and suggestion, if any, received and considering the Section 65 of the Act. Rule is made absolute accordingly in each of the petitions. In the facts and circumstances of the case, there shall be no order as to costs. P P P P P