JUDGMENT : N.V. Anjaria, J. 1. By filing the present petition under Article 226 of the Constitution, the petitioner has prayed to direct the respondent authorities to vary the Town Planning Scheme No. 28 (Althan Bhatar - Surat) under Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 on the ground that the scheme suffers, in respect of treating the land of the petitioner, from error and irregularity as the original plot area of land belonging to the petitioner is 9904 sq. mtrs., whereas what is considered in the scheme is 8804 sq.mtrs. It prayed to allot the corresponding plot to the petitioner and it is further prayed to set aside Town Planning Scheme qua the land of the petitioner. 2. The petitioner is the owner and occupier of original land bearing survey No. 28 (28/1, 28/2+3 and 28/4 as well as block No. 33) admeasuring total 9904 sq. mtrs. Under the Town Planning Scheme, final plot No. 131 appears to have been allotted to the petitioner. 3. The Surat Municipal Corporation in exercise of powers conferred under Section 41(1) of the Gujarat Town Planning and Urban Development Act, 1976 (herein after referred to as "Town Planning Act" for the sake of brevity) declared an intention to make Draft Town Planning Scheme (Surat) No. 28 ((Althan Bhatar - Surat) by Resolution dated 06th June, 1995. The declaration was published in the two daily newspapers on 22nd June, 1995. A meeting of the owners of the lands affected in the scheme was held on 02nd April, 1996. The Draft Planning Scheme was prepared in exercise of powers under section 42(1) of the Town Planning Act and the same was published in the official gazette on 08th November, 1996. The objections and suggestions were invited by publication in the newspaper. On 22nd July, 1997, the Town Planning Committee submitted Draft Scheme to the State Government for sanction under Section 48 of the Act. The State Government sanctioned the scheme on 30th July, 1998. By notification dated 17th September, 1998, the Town Planning Officer was appointed. Thereafter, the preliminary scheme under Section 52(1) was declared on 20th June, 2009, which was submitted to the State Government for sanction. The preliminary scheme came to be sanctioned on 12th July, 2010. The State Government sanctioned the scheme on 30th July, 1998. By notification dated 17th September, 1998, the Town Planning Officer was appointed. Thereafter, the preliminary scheme under Section 52(1) was declared on 20th June, 2009, which was submitted to the State Government for sanction. The preliminary scheme came to be sanctioned on 12th July, 2010. 3.1 It is the case of the petitioner that in the process of preparing the Town Planning Scheme, notice was issued to the petitioner by the Town Planning Officer. In response thereto, the petitioner filed representation dated 05th September, 1996 pointing out that the measurement of the original plot of the petitioner was wrongly shown as 8904 sq. mtrs. in Form F. It was pointed out that the correct measurement was 9904 sq. mtrs. Along with the said representation, copies of the documents, such as 7/12 and others showing the correct area were submitted. The same was not considered, pleads the petitioner. 3.2 At the said stage, the petitioner had an occasion to file before this Court Special Civil Application No. 9396 of 2009. The said petition came to be disposed of on 07th December, 2009. While passing the order, the Court observed that it was pointed out from the affidavit-in-reply of the respondent that Town Planning Scheme No. 28 was yet to be finalized by the State Government under Section 65 of the Act. The Court treated the petition as premature and on that count, did not grant any relief, but permitted the petitioner to submit objections before the State Government and further directed that such objections shall be considered on merits. 3.3 Pursuant to the order of this Court as above, the petitioner submitted his representation dated 10th March, 2010 to the Principal Secretary, Urban Development and Urban Housing Department by annexing therewith the documents in support of the case that the actual land area was 9904 sq. mtrs., and that instead the same was treated as 8904 sq. mtrs., that is, lesser by 1000 sq.mtrs. complaining and that accordingly, the petitioner was allotted proportionately smaller final plot. The documents submitted by the petitioner along with the said representation, included (i) Copy of 7/12 (ii) Hissa Form & Tippan (iii) Representation Dated 25th September, 1996 (iv) ULC Order dated 2nd January, 1997 (v) N.A. Order dated 2nd February, 1998 (vi) Letter Dated 23rd October, 2003 By T.P.O. Showing correct area 9904 sq.mtr. The documents submitted by the petitioner along with the said representation, included (i) Copy of 7/12 (ii) Hissa Form & Tippan (iii) Representation Dated 25th September, 1996 (iv) ULC Order dated 2nd January, 1997 (v) N.A. Order dated 2nd February, 1998 (vi) Letter Dated 23rd October, 2003 By T.P.O. Showing correct area 9904 sq.mtr. and (vii) Erroneous F Form showing incorrect area 8904 sq.mtrs. 3.4 The Town Planning Scheme in question was sanctioned on 12th July, 2010. The grievance of the petitioner was not attended to and was not redressed which compelled him to file the present petition. 4. Heard learned senior advocate Mr. Anshin H. Desai assisted by learned advocate Ms. Venu Nanavaty for the petitioner, learned Assistant Government Pleader Mr. Manan Mehta for respondent Nos. 1, 2 and 4 and learned advocate Mr. Dhaval Nanavati for respondent No. 3. 4.1 Learned senior advocate for the petitioner submitted that there was an evident error in treating the land with the area of 8904 sq. mtrs. which was in reality 9904 sq. mtrs. It was submitted that the Town Planning Officer committed an error in not accepting the case of the petitioner for which a detailed representation together with supportive documents was made and in disregard of that the preliminary scheme was prepared. Learned senior advocate relied on Section 70 of the Act whereunder the variation in the scheme is permissible on the ground of error and irregularity in the scheme. It was submitted that the right to hold the property is an important constitutional right under Article 300A of the Constitution and the petitioner should not be deprived of his valuable land admeasuring 1000 sq. mtrs. It was submitted that tainted with said error, the scheme sanctioned was illegal in so far as the land of the petitioner and the allotment of final plot with corresponding area to him were concerned. 4.2 Respondent No. 4 Town Planning Officer filed his affidavit-in-reply contesting the petition to contend that the Town Planning Officer had invited objections and suggestions and one person holding power-of-attorney of the petitioner remained present on 14.05.2009, but did not submit any objection. It was thereafter stated that "preliminary scheme was submitted to Government in which land bearing block No. 15+33 of village Althan was given original plot No. 15/A admeasuring 1214 sq. mtr. and original plot No. 15/B admeasuring 8904 sq. mtr. It was thereafter stated that "preliminary scheme was submitted to Government in which land bearing block No. 15+33 of village Althan was given original plot No. 15/A admeasuring 1214 sq. mtr. and original plot No. 15/B admeasuring 8904 sq. mtr. Having total original plot area of 10118 sq. mtr. in lieu of this original plot., the town planning officer has given final plot No. 131 admeasuring 7588 sq. mtr. deducting only 25% land. Original plot area consider by the town planning officer was As per District Survey Office record.". It was further contended that as per the record of District Survey Office, the actual land was 9904 sq. mtr. out of which 100 sq. mtr. was acquired for canal by order dated 10th March, 1969 of the Special Land Acquisition Officer. It was sought to be stated that after deducting the land gone in canal, the total area remains 8904 sq. mtrs. which was considered by the Town Planning Officer by declaring his decisions in respect of the preliminary scheme. 4.3 Learned AGP referred to and relied on the reply affidavit to submit that the Town Planning Officer discharge duties under the Act and had prepared the preliminary scheme treating the land of the petitioner for allotment of final plot as per the record before it. 4.4 Learned advocate for respondent No. 3 was quite vehement in opposing the prayer of the petitioner for variation, as he submitted that it could not be said that the petitioner submitted the objections in time before the Town Planning Officer. In that view, no right survives for the petitioner and the prayer may not be granted, he urged. Learned advocate relied on the following decisions and tried to support his contentions on the basis of what was laid down therein, (i) Kashiben WD/o. Pitamber Devchand and anr. v. State of Gujarat, 1989 (2) GLR 1176 , para 4 & 5], (ii) Savitaben Chaturbhai Patel v. State of Gujarat being Special Civil Application No. 12523 of 2009 decided on 30th November, 2009, (iii) Shilpa Park Co. Op. v. State of Gujarat, 1989 (2) GLR 1176 , para 4 & 5], (ii) Savitaben Chaturbhai Patel v. State of Gujarat being Special Civil Application No. 12523 of 2009 decided on 30th November, 2009, (iii) Shilpa Park Co. Op. Housing Society Ltd. v. Surat Urban Development Authority, 1996 (2) GLR 707 ], (iv) Jethabhai Mepabhai Makwana v. State of Gujarat 2004 (3) GLH 675 ], (v) Kanjibhai Dahyabhai Malsattar v. State of Gujarat, 2005 (2) GLR 1619 , (vi) Savitaben v. State being Letters Patent Appeal No. 238 of 2010 in Special Civil Application No. 12523 of 2009 dated 29th March, 2010, (vii) Chhaganbhai Motibha Bhoi v. Anand Area Development Authority, 1989(2) GLR 913 . It was submitted that once the Town Planning Scheme had become final which was after following the necessary procedure under the Act, the scheme cannot be assailed. He submitted that the petitioner was not holding any right as such and that in the town planning scheme, some owners may suffer which would not render the scheme bad. 5. It appears that the land of the petitioner was acquired under the Land Acquisition Act. The acquired area was 100 sq. mtrs. However, while drawing the Town Planning Scheme, the said 100 sq. mtrs. was treated as 1000 sq. mtrs. and the land was shown to be of the area lesser by 1000 sq. mtrs. The acquisition of the petitioner's land was for the purpose of canal effected by order dated 10th March, 1969 by the Land Acquisition Officer. The contention of respondent No. 4 that the District Survey Office record showed 1000 sq. mtrs. of land was acquired, did not hold factually good. 5.1 Noticed and recorded as above, the petitioner had submitted his representation and filed objections dated 10th March, 2010 in view of order dated 07th December, 2009 in the aforementioned Special Civil Application as permitted by the Court. The Town Planning Scheme in question was sanctioned on 12th July, 2010. Therefore, the objections were filed before the scheme came to be sanctioned. Though the petitioner had produced cogent material in form of the documents to show the correct area of the land requesting to rectify the same while drawing the preliminary scheme, it was not heeded to and the Scheme came to be sanctioned treating the land area of the petitioner lesser by 1000 sq. mtrs. Though the petitioner had produced cogent material in form of the documents to show the correct area of the land requesting to rectify the same while drawing the preliminary scheme, it was not heeded to and the Scheme came to be sanctioned treating the land area of the petitioner lesser by 1000 sq. mtrs. 5.2 The petitioner placed on record the following documents along with the affidavit-in-rejoinder which were also produced before the Town Planning Officer. They are as under, (i) Village Form No. 7/12 shows the land in question admeasuring 9904 sq. mtrs. (ii) Village No. 6, if perused, at item NO.28 clearly shows that measurement before durasti is 0-34-39 and after durasti is 0-33-39, making it clear that only 100 sq.mtrs. is deducted. (iii) Hissa Form No. 4 at Column No. 3 clearly shows the measurement to be 9904 sq. mtrs. (iv) Order dated 02nd January, 1997 by the competent authority and the Additional Collector, Urban Land Ceiling, Surat, wherein at page 68 and 69, the measurement of the land is shown to be 9904 sq. mtrs. (v) Durasti Patrak No. 14, if perused, clearly shows that the measurement of the land in question before the acquisition was A-0-34-g (column No. 4) and after acquisition is A-0-33-g (Column NO.9) hence only 100 sq. mtrs. was deducted. 5.3 Though the aforesaid documents invariably and conclusively indicated that only 100 sq. mtrs. of the land of the petitioner was acquired out of 9904 sq. mtrs., the Town Planning Authorities completely overlooked the said aspect and disregarded the documentary evidence. What was included in the Town Planning Scheme was the land of the petitioner as if it admeasured 8904 sq. mtrs. 5.4 It was obligatory in law on part of the Town Planning Authority to consider the objection of the petitioner submitted at the proper juncture and give effect to the total area of the ownership of the petitioner in finalizing the scheme. Having not done so, the scheme stands fraught with an error and irregularity qua the land of the petitioner is concerned. Having not done so, the scheme stands fraught with an error and irregularity qua the land of the petitioner is concerned. 5.5 While it may be true that the Town Planning Scheme in question came to be subjected to Notification by the State Government under Section 65(2) of the Town Planning Act to become final, even after finalisation of the Scheme, the powers are available with the State Government under the statute and a Scheme which has become final, can be varied under Section 70 of the Act for the grounds mentioned in the said provision. 5.6 Section 70 of the Town Planning Act reads as under. "70. Power to vary scheme on ground of error, irregularity or informality. - (1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme. (2) If on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial the State Government shall publish a draft of such variation in the prescribed manner. (3) The draft variation published under sub-section (2) shall state every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of subsection (3) of Section 40, the draft variation shall also contain such other particulars as may be prescribed. (4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours. (5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority. (5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority. (6) After receiving the objections under sub-section (5), the State Government may, after consulting the appropriate authority and after making such inquiry as it may think fit, by notification - (a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the State Government, or (b) make the variation with or without modification, or (c) refuse to make the variation. (7) From the date of the notification making the variation, with or without modification, such variation shall take effect as it were incorporated in the scheme." 5.7 It is manifest from the from the provisions of Section 70 that if the Scheme is found to be defective on account of any error, irregularity or informality, the same can be varied. The power of variation can be exercised upon an application of the appropriate authority - the Area Development Authority. The Scheme can be varied on an application or otherwise by the State Government. Section 70 is a provision providing for an in-built remedy to recognise a crystal claim or right of a land holder which is disregarded in the Scheme even if the Scheme is made final and even if it is treated as part of the Act having been come into force. Variation is a statutory process permitted under the Act if the overlooking of the case, claim or right of a land owner in the Scheme is in the nature of error, irregularity or informality in the Scheme. 5.8 The facts in decision of this Court in Mukundlal Trikamlal Patva vs. State of Gujarat [ 2007 (1) GLR 761 ] were inter alia that the land in that case, treated in the Town Planning Scheme was initially declared as surplus under Urban Lands (Ceiling and Regulations) Act, and thereafter the very land was allotted to one Sakina Abbas Karimi. Said Sakina sold the land by registered deed to the petitioner Mukundlal. Said Sakina sold the land by registered deed to the petitioner Mukundlal. The Town Planning Officer however ignored the registered sale deed and treated the land with its original status as if it was declared surplus. The Court held that it was a clear error in the Town Planning Scheme so finalised. The Court observed as under. "8. As per the provisions of Section 70 of the Act, even if the Scheme is finalized, there is power with the authority to consider the matter for variation of the Scheme, if the scheme is defective on account of an error, irregularity or informality. Such power can be exercised upon the application of the appropriate authority or the State Government itself can also consider the matter for variation, unless such variation is not substantial. It appears that when the exercise is under taken by the T.P. Officer while preparing the scheme on the basis that the land is declared as surplus land under the ULC Act and held by the Government, whereas in reality on the date when the Scheme was prepared the land was already allotted by the Government to the original holder of the land namely; Sakina Abbas Karimi and others and thereafter transferred to the petitioner, it would be ex facie, error in the preparation of the Scheme and its finalization thereof by the T.P. Officer. Such error has continued to remain even when the sanction came to be granted by the State Government to such scheme qua the land in question. Therefore, it will be required for the competent authority to consider the matter for variation in the Scheme on the premise that the land was already allotted to Sakina Abbas Karimi and thereafter, was purchased by the petitioners and it was not having the status of a land as surplus land held by the Government under the ULC Act." 5.9 The Court in Mukundlal Trikamlal (supra) further observed that when there was a mechanism provided under the Act for considering the question of variation in the preliminary or final scheme on account of an error or irregularity, the Court may not strike down the entire Scheme but it would be appropriate to direct the State Government to exercise the powers of variation. 6. Not including the total area of 9904 sq. mtrs. 6. Not including the total area of 9904 sq. mtrs. of the petitioner and not treating the constitution of the final plot for the petitioner in proportion to the said area of 9904 sq. mtrs., the Town Planning Authority committed a manifest error falling within the purview of Section 70 of the Act. This being an error required to be rectified, the State Government has to exercise the power of variation in the scheme qua the said aspect by accepting the ownership of the land of the petitioner to the extent of 9904 sq. mtr. of area and by reconstituting final plot of the petitioner proportionately accordingly. 7. In view of the foregoing discussion, reasons and position obtaining, the present petition deserves to be allowed as per the following order and directions. "(i) It is held and declared that Town Planning Scheme No. 28 (Althan Bhatar-Surat) suffers from error and irregularity qua the land of the petitioner in as much as it treated the land of the petitioner bearing Survey Nos. 28/1, 28/2+3 and 28/4 as well as Block No. 33 situated at Village Althan in so far as the Town Planning Authorities treated the said lands comprised in total area of 8904 sq. mtrs. instead of actual area 9904 sq. mtrs. 28/1, 28/2+3 and 28/4 as well as Block No. 33 situated at Village Althan in so far as the Town Planning Authorities treated the said lands comprised in total area of 8904 sq. mtrs. instead of actual area 9904 sq. mtrs. and gave effect in the proposals of the Town Planning Scheme accordingly and allotting the petitioner Final Plot No. 131 on the basis of such error; (ii) In view of the said error in the Town Planning Scheme, the State Government is directed to exercise powers under Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 for variation of the Town Planning Scheme No. 28 (Althan Bhatar- Surat) having regard to the above error; (iii) The State Government and the Town Planning Authority will revisit the constitution of final plots as may be affected for setting right the aforesaid error, further duly reconstituting and allotting to the petitioner his final plot; (iv) The State Government and the respondent Town Planning Authorities shall finalise the question of variation as above after giving opportunity of hearing to the petitioner and the respondent - Surat Municipal Corporation as well as to the affected parties as may be necessary; (v) The entire aforesaid exercise of variation by correcting the error shall be completed within a period of six months from the date of receipt of this order; (vi) Until the question of variation in the Town Planning Scheme in question is finalised by the State Government in accordance with law, all the parties shall maintain status quo with regard to the subject matter property and the Final Plot." Rule is made absolute to the said extent.