JUDGMENT : ASHUTOSH SHASTRI, J. 1. By way of present appeal under Clause 15 of the Letters Patent, appellants- original petitioners have assailed the CAV order passed by learned Single Judge dated 24.12.2021 in Special Civil Application No.14561 of 2015. 2. The background of facts which has given rise to the present appeal is that lands bearing Revenue Survey Nos.252, 253, 254 and 753 in Rajkot were admeasuring 1,02,609 Sq. Mtrs. On 24.3.1969, a family partition took place and aforementioned land came to be divided between two brothers, i.e. Haribhai Bhutabhai (Haribhai) and Bhikhabhai Bhutatbhai (Bhikhabhai). Present appellants- petitioners are descendants of Haribhai. The land which came in the hands of Haribhai by way of said partition was Survey No.252 Paiki admeasuring 4 acres 35 gunthas, 252 Paiki admeasuring 4 acres 33 gunthas and Survey No.254 admeasuring 3 acres 27 gunthas, in all an extent of 13 acres and 15 gunthas (54127 Sq. Mtrs.). Land bearing Survey No.252 admeasuring 4 acres 0.5 gunthas, Survey No.253 admeausring 8 acres, Survey No.753 admeasuring 0 acre 3.25 gunthas, in all admeasuring 12 acres and 3 gunthas (48,563 Sq. Mtrs.) came in the share of Bhikhabhai. A physical demarcation was also undertaken and portions were properly identified. Said Bhikhabhai sold his entire share, i.e. 12 acre 3 gunthas (48,563 Sq. Mtrs.) to one Kedarnath Co-operative Housing Society on 16.9.1979. 3. In the meantime, a draft scheme in Town Planning Scheme No.6 (Rajkot) came to be sanctioned on 18.2.1979, whereas preliminary scheme was later sanctioned on 25.3.1990. According to appellants, in the said sanctioned preliminary scheme, land bearing Survey No.253 Paiki, 254 Paiki and 258 Paiki admeasuring 66,773 Sq. Mtrs. were allotted O.P. No.31 Paiki against which F.P. Nos.125, 130 and 135 were allotted to the extent of 49,958 Sq. Mtrs. and as such an area admeasuring 16,815 Sq. Mtrs. came to be deducted which comes to approximately 25.18%. So far as land bearing Survey No.252 Paiki is concerned (admeasuring 35,917 Sq. Mtrs.), was given OP No.32, against which FP No.126 was allotted admeasuring 28,177 Sq. Mtrs. and an area admeasuring 7740 Sq. Mtrs. came to be deducted, which comes to approximately 21.55%. Thus, against original land holding of Haribhai and Bhikhabhai, FP Nos.125, 126, 130 and 135 were allotted, in all admeasuring 78,135 Sq. Mtrs. 4. It is the case of the appellants that such allotment of F.Ps. Mtrs. and an area admeasuring 7740 Sq. Mtrs. came to be deducted, which comes to approximately 21.55%. Thus, against original land holding of Haribhai and Bhikhabhai, FP Nos.125, 126, 130 and 135 were allotted, in all admeasuring 78,135 Sq. Mtrs. 4. It is the case of the appellants that such allotment of F.Ps. in scheme has been done without taking into account the physical partition of the land between Haribhai and Bhikhabhai. From Haribhai Bhutabhai’s land holding to the extent of 54,127 Sq. Mtrs., a deduction to the extent of 23,534 Sq. Mtrs. had taken place and left out portion was only to the extent of 30,593 Sq. Mtrs. which means that total deduction from Haribhai Bhutabhai’s land exceeds 40%. The grievance of the appellants is that average deduction in Town Planning Scheme No.6 (Rajkot) is between 20% and 24% and even if 24% lands were to be deducted from Haribhai Bhutabhai’s land holding, he would still be entitled to 41,184 Sq. Mtrs. with deduction of 12,943 Sq. Mtrs. and thus, according to appellants, Town Planning Scheme No.6 (Rajkot) suffers from inherent error, irregularity and as such, said scheme requires to be varied. 5. On account of such situation, appellants- petitioners filed Special Civil Application originally, being Special Civil Application No.6903 of 1990 inter alia seeking relief against such erroneous and unfair allotment of FPs in Town Planning Scheme No.6 (Rajkot). An order of status-quo was passed with regard to possession of the land, but then by virtue of final order dated 28.8.2012 came to be passed. Hence, respondent State Government was ordered to consider petitioner’s grievance for variation under Section 70(2) of the Town Planning Act and ordered the parties to continue to maintain status-quo with regard to possession till such time. 6. Accordingly, appellants- petitioners made an application on 6.9.2012 for variation of Scheme under Section 70(2) of the Act. But, instead of considering that, State Government called upon Rajkot Municipal Corporation to do the needful, which according to appellants, is in conflict with the direction contained in the order dated 23.8.2012. Respondent Rajkot Municipal Corporation identified the error and irregularity crept in Town Planning Scheme No.6 (Rajkot) and by virtue of communication dated 24.3.2014, requested the State Government to grant its consent and then reminders have been submitted by petitioners at relevant point of time on several occasions. But, State Government has not acted upon. Respondent Rajkot Municipal Corporation identified the error and irregularity crept in Town Planning Scheme No.6 (Rajkot) and by virtue of communication dated 24.3.2014, requested the State Government to grant its consent and then reminders have been submitted by petitioners at relevant point of time on several occasions. But, State Government has not acted upon. Hence, petitioner was constrained thereafter to file another petition being Special Civil Application No.14561 of 2015 seeking for a direction to consider the representation of the petitioners. On 3.12.2015, it was indicated in the order passed by this Court that it was the duty of the State Government to consider petitioners’ application for variation under Section 70(2) and called upon the State Government to comply with the directions contained in the earlier order dated 23.8.2012 and liberty was reserved to revive the petition in case of difficulty. 7. In view of such order, appellants- petitioners further made a representation on 21.12.2015 requesting the State Government to make variation in the scheme, but by virtue of communication dated 16.2.2016, State Government sent the matter to the Chief Town Planning Officer, followed by yet another representation dated 11.7.2016, but no steps were taken. It is the case of the appellants- petitioners that on 19.7.2016, the Chief Town Planning Officer for the first time raised an issue that case of petitioners would fall under Section 67A of the Town Planning Act and not under Section 70(2). Even according to appellants, Rajkot Municipal Corporation has given an opinion on 1.5.2017 on this issue and explained the entire case of the appellants- petitioners and clarified that Section 67A would have no applicability in the background of present facts on hand. Since the issue and grievance of the appellants was not adhered to, petitioners filed another representation to the Chief Town Planning Officer for taking up the matter at the earliest and consider the application for variation. However, it has been indicated by the Chief Town Planning Officer that appellants’ application cannot be considered under Section 70(2) of the Act, but case would fall under Section 71 of the Act and as such once again appellants were constrained to approach this Court by way of Misc. Civil Application No.1 of 2017 to revive the original petition, i.e. Special Civil Application No.14561 of 2015 since the directions contained in the main petition have not been complied with or adhered to. Civil Application No.1 of 2017 to revive the original petition, i.e. Special Civil Application No.14561 of 2015 since the directions contained in the main petition have not been complied with or adhered to. Accordingly, perusing the grievance of the appellants, said petition came to be revived by virtue of order dated 24.10.2018. 8. Appellants have further asserted that said petition was heard at length before the learned Single Judge. However, by way of CAV order dated 24.12.2021, petition came to be dismissed by observing that scheme cannot be said to be defective on account of any error and irregularity and it was also held that appellants’ case for seeking variation under Section 70(2) of the Act is misplaced and as such said CAV judgment is made the subject matter of present appeal before us by raising multiple contentions as mentioned in the appeal memorandum. 9. By virtue of order dated 27.1.2022 in which order notice for final disposal was issued and till then, respondents were directed not to proceed with implementation of the scheme qua the land in question and later on, appeal has come up for consideration finally before us and learned advocates appearing on behalf of both the sides have requested to hear and dispose of the same. Accordingly, upon such request, matter is heard by the Court. 10. Learned senior counsel Mr. R.S. Sanjanwala appearing with learned advocate Mr. Aadit R. Sanjanwala for appellants has vehemently contended that order passed by the learned Single Judge is not in consonance with the provisions of law applicable and as such, error which has been crept in deserves to be considered. It has been contended that holding that appellant’s application for variation of scheme under Section 70(2) of the Town Planning Act was misplaced is a clear error particularly in view of the fact that it is not open for the learned Single Judge to decide as to under which provision, request of the appellant would fall particularly in view of the previous orders which have been passed on 23.8.2012 and 3.12.2015. The learned Single Judge, according to Mr. Sanjanwala, has misdirected about the scope of relief which has been sought by holding that request of variance under Section 70(2) is misplaced, learned Single Judge has traveled beyond the scope of petition, hence such error deserves to be considered. Mr. The learned Single Judge, according to Mr. Sanjanwala, has misdirected about the scope of relief which has been sought by holding that request of variance under Section 70(2) is misplaced, learned Single Judge has traveled beyond the scope of petition, hence such error deserves to be considered. Mr. Sanjanwala has further contended that there is a stiff difference between Section 70(2) as well as 71 of the Act and each clause has to be read in isolation and grievance of the appellant can be considered only under Section 70(2) of the Act. On the contrary, even State authority has also opined in conflict with earlier decisions by observing that case would not fall within Section 70(2) and no process can be undertaken. It has been pointed out that variation of existing scheme by framing a new Scheme under Section 71 is not only time consuming but a very lengthy process and appellant having waited from 1990, now cannot be allowed to undergo such process which would seriously affect and prejudice his rights. Purpose of Section 71 is to frame a new supplementary Town Planning Scheme in cases wherein certain aspects are not covered under the original scheme and only in such issues, same can be resorted to. Deficit in planning is distinct from an error in planning. In cases where there is deficiency in framing the Town Planning Scheme, same can be supplemented by resorting to power under Section 71 of the Act, but when there is an error in framing of Town Planning Scheme, power under Section 70(2) deserves to be exercised and here is a case in which ex-facie, an error/ defect that has crept in Town Planning Scheme No.6 (Rajkot) and such basic infirmity and irregularity can be rectified only by resorting to Section 70(2). Distribution and allotment of Final Plots against Survey Nos.252, 253, 254 and 753 is done on the basis of the fact that Haribhai and Bhikhabhai were co-sharers of the land and the scheme has been framed without considering the vital aspect that both these brothers were holding separate and demarcated areas in the aforesaid land and the authorities have proceeded on the premise that both Haribhai and Bhikhabhai were holding the right on every part of this land and this basic infirmity has resulted into a serious prejudice, hence the patent flaw which has taken place can be rectified by variance under Section 70(2) of the Act. 11. Learned senior counsel Mr. Sanjanwala has submitted that excessive deduction beyond proportion has taken place from land belonging to Haribhai which has caused prejudice. Average deduction of Town Planning Scheme No.6 (Rajkot) is normally to the extent of deduction of 20% to 24%, whereas here deduction has taken place from appellant’s land holding which is in excess of 40%. Even if maximum 24% land was to be deducted from Haribhai’s land holding, still he would be entitled to 41,184 Sq. Mtrs. with deduction of 12,943 Sq. Mtrs. and therefore this unfair distribution which is a patent error can be rectified only by curing this defect under Section 70(2) and this unfair distribution cannot be the subject matter of proceedings under Section 71, where new Scheme is to be framed since this has taken place. Even Municipal Corporation has also clearly opined in its opinion dated 24.3.2014 in favour of petitioners but, surprisingly, same has been lost sight of and as such order passed by the learned Single Judge deserves to be corrected keeping in view of the afore-mentioned peculiar background of facts. Paragraph 7 of the order passed by the learned Single Judge appears to be based upon misinterpretation of the Corporation’s opinion. On the contrary, said opinion dated 1.5.2017 categorically indicates that scheme may be varied in terms of Section 70(2) and that being so, conclusion arrived at by the learned Single Judge deserves to be corrected. 12. Learned Senior counsel Mr. On the contrary, said opinion dated 1.5.2017 categorically indicates that scheme may be varied in terms of Section 70(2) and that being so, conclusion arrived at by the learned Single Judge deserves to be corrected. 12. Learned Senior counsel Mr. Sanjanwala by referring to the provisions of Section as a whole has reiterated his submission and submitted that order may be quashed/set aside and for that purpose also he has drawn attention of this Court to the earlier orders which have been passed by the Court at Annexure-A– an order dated 23.8.2012 in Special Civil Application No.6903 of 1990 and by referring to paragraph 2, a contention is reiterated that even on earlier occasion, the Court had directed the State authority to consider the representation keeping in view the provisions contained under Section 70(2) of the Act. Yet another order has also been referred to i.e. order dated 3.12.2015 passed in Special Civil Application No.14561 of 2015 in which order also, after considering the stand of the State and after considering the earlier decision of this Court reported in 2011(2) GCD 1246 , State authorities were directed to comply with the directions contained in paragraph 2 of the order dated 23.8.2012. Mr. Sanjanwala has submitted that may be that this order dated 3.12.2015 is later on modified by another order dated 24.10.2018 passed in Misc. Civil Application No.1 of 2017, but basic effect of the initial order and the provisions which are attracted on the background of facts clearly indicate that grievance of the appellant can be dealt with only under Section 70(2) of the Act. Civil Application No.1 of 2017, but basic effect of the initial order and the provisions which are attracted on the background of facts clearly indicate that grievance of the appellant can be dealt with only under Section 70(2) of the Act. In fact, State authority is entrusted with the power to vary the scheme if it is satisfied that variation requires no substantial change and what is substantial variation can be taken note of from the explanation to Section 52 of the Act which indicates that “variation of a substantial nature” means a variation which is estimated by the Town Planning Officer to involve an increase of 10% in the costs of the scheme as is described in Section 77 or Rs.1 lac whichever is lower on account of the provisions of new works or the allotment of additional sites for public purposes included in the preliminary scheme drawn by the Town Planning Officer and as such, when such is not the case herein, it is always open for the authority to consider the grievance of this nature under Section 70(2) and since that error has been committed by the learned Single Judge in interpreting the provision, the order deserves to be corrected. No other submissions have been made. 13. As against this, learned Assistant Government Pleader appearing on behalf of the authority has vehemently opposed the stand of the counsel for appellant and has submitted that the authority has clearly assigned a reason as to why case can not be considered under Section 70(2) and further on interpretation of the relevant provisions by learned Single Judge based upon material on record, a clear conclusion is arrived at that request for variance under Section 70(2) is misplaced, same cannot be said to be an erroneous view and every possible view cannot be dislodged by substituting another view. While passing the order impugned in the appeal, learned Single Judge has minutely examined the stand of the authority and grievance of the appellant and after interpreting the provision of Sections 70 and 71 of the Act has clearly arrived at a conclusion that Scheme cannot be said to be defective on account of any error or irregularity, which is tried to be projected by the appellant. Similar deduction or larger deduction cannot be considered as circumstance to hold that scheme itself is defective and when that be so, only possible exercise which can be undertaken is in Section 70 by subsequent scheme and has clearly opined that variation under Section 70(2) request is misplaced. Since this view is a possible view and is based upon interpretation of legal provision, said view may not be substituted unless it is patently an error which is not the case here. Hence, no interference be made in the interest of justice and appeal be dismissed. No other submissions have been made. 14. Having heard learned advocates appearing for the parties and having gone through the material on record, few circumstances relevant to the issue(s) are not possible to be unnoticed by the Court before concluding finally in the present proceedings:- 15. First of all, to examine the basic controversy, whether variation sought by petitioners can fall within Section 70(2) or Section 71 of the Act, we may deem it fit to quote here-under few relevant provisions related to it:- (1) Sub-section (2)(xxvi) defines scheme which consists of plan(s) together the descriptive matters related to the scheme which reads as under:- (xxvi) "scheme" means a town planning scheme prepared under this Act, and includes a plan or plans, together with the descriptive matter, if any relating to such scheme. What variation to be construed from its literal meaning, Section 70 deserves to be quoted hereunder:- 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 sub-section (3) of Section 40, the draft variation shall also contain such other particulars as may be prescribed. (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 sub-section (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. (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. (2) What would be substantial variance can be taken note of from the provisions contained under Section 52 which deals with contents of preliminary and final scheme and proviso to said Section 52 deserves to be quoted here-under with explanation:- 52. Contents of preliminary and final scheme.- (1) ……. Provided that the Town Planning Officer may make variation from the draft scheme, but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government, and except after hearing the appropriate authority and any owners who may raise objections. Contents of preliminary and final scheme.- (1) ……. Provided that the Town Planning Officer may make variation from the draft scheme, but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government, and except after hearing the appropriate authority and any owners who may raise objections. Explanation.- (i) For the purpose of this proviso "variation of a substantial nature" means a variation which is estimated by the Town Planning Officer to involve an increase of ten per cent in the costs of the scheme as is described in Section 77 on account of the provisions of new works or the allotment of additional sites for public purposes included in the preliminary scheme drawn up by the Town Planning Officer. (ii) If there is any difference of opinion between the Town Planning Officer and the appropriate authority as to whether a variation made by the Town Planning Officer is of substantial nature or not, the matter shall be referred by the appropriate authority to the State Government whose decision thereon shall be final. (3) In addition to the aforesaid provisions, amended provisions of Section 70, namely Section 70A as well as Section 71 are also relevant to the present controversy, which we deem it proper to reproduce here-under:- [70A. Variation of Town Planning Scheme for land allotted for public purpose. - If at any time after the final town planning scheme comes into force, the appropriate authority is of the opinion that the purpose for which any land is allotted in such scheme under any of the paragraphs (ii) and (iii) of sub-clause (a) of clause (jj) of sub-section (3) of Section 40 requires to be changed to any other purpose specified in any of the said paragraphs, the appropriate authority may make such change after following the procedure relating to amendment of regulations, specified in Section 72 as if such changes were an amendment of regulations.] 71. Variation of town planning scheme by another scheme.- Notwithstanding anything contained in Section 70, a town planning scheme may at any time be varied by a subsequent scheme made, published and sanctioned in accordance with the provisions of this Act. Variation of town planning scheme by another scheme.- Notwithstanding anything contained in Section 70, a town planning scheme may at any time be varied by a subsequent scheme made, published and sanctioned in accordance with the provisions of this Act. (4) The Rules which are framed known as The Gujarat Town Planning and Urban Development Rules, 1979, would prescribe the manner and method in which the process of Town Planning Scheme is to be provided right upto its finalization. Rule 35 deals with variation of the scheme whereas Rule 36 prescribes manner of publication of variation in Scheme Regulations under Section 72(a). 16. In the context of the aforesaid provisions, when we peruse the facts on hand, it appears that under the draft scheme in Town Planning Scheme No.6 (Rajkot) was sanctioned on 18.2.1989, preliminary scheme came to be sanctioned on 25.3.1990. In the said sanctioned preliminary scheme, land bearing Survey Nos.253 Paiki, 254 Paiki and 258 Paiki admeasuring around 667733 Sq. Mtrs. were allotted O.P. No.31/ Paiki against which FP Nos.125, 130 and 135 came to be assigned by virtue of which, 49958 Sq. Mtrs. of land was allotted and area admeasuring 16815 Sq. Mtrs. came to be deducted which comes to deduction of 25.18%. 17. Insofar as land bearing Survey No.252 Paiki admeasuring 35917 Sq. Mtrs., which was given O.P. No.32, against which F.P. No.126 was allotted admeasuring 28177 Sq. Mtrs. and an area admeasuring 7740 Sq. Mtrs. came to be deducted which comes to 21.55% and as against which original landholdings of both Haribhai Bhutabhai and Bhikhabhai Bhutatbhai, Final Plot Nos.125, 126, 130 and 135 came to be allotted admeasuring 78135 Sq. Mtrs. The grievance of petitioners appears to be that allotment of Final Plots had been done without taking into consideration physical partition of the lands between brothers- Haribhai Bhutabhai and Bhikhabhai Bhutabhai. From Haribhai’s landholding of 54127 Sq. Mtrs., 23534 Sq. Mtrs. land is stated to be deducted and thereby 30593 Sq. Mtrs. remained with him and as such in the share of Haribhai Bhutabhai, total deduction exceeded 40%. Under Town Planning Scheme, average deduction specified is between 20% and 24% and even if 24% land were to be deducted from Haribhai’s landholding, he would still have 41184 Sq. Mtrs. land with deduction of 12943 Sq. Mtrs. Mtrs. remained with him and as such in the share of Haribhai Bhutabhai, total deduction exceeded 40%. Under Town Planning Scheme, average deduction specified is between 20% and 24% and even if 24% land were to be deducted from Haribhai’s landholding, he would still have 41184 Sq. Mtrs. land with deduction of 12943 Sq. Mtrs. and as such, petitioners were aggrieved by such imbalanced deduction and have contended that Town Planning Scheme No.6 (Rajkot) as such suffers from patent error. Hence, it is contended rectification by variation of scheme deserves to be granted. A petition came to be filed in Special Civil Application No.6903 of 1990 inter alia seeking relief to the effect that erroneous and unfair allotment of Final Plots be corrected or rectified. This Court on entertaining such petition had passed an order of status-quo with regard to possession of the land but, later on order dated 28.8.2012 came to be passed and as such State Government was directed to consider the request of petitioners for variation under Section 70(2) of the Town Planning Act and till such time, order of status-quo was ordered to be continued. In view of this situation, an application was filed on 6.9.2012 for variation under Section 70(2) of the Act to the State Government. 18. From the record, it appears that said request for variation went on back and forth in a successive petition being filed and during such passage of time, another representation appears to have been made on 21.12.2015. On receipt of the same, State Government in turn sent a letter to the Chief Town Planning Officer. Petitioners also appear to have made representations to the Chief Town Planning Officer and despite orders and representations, Chief Town Planning Officer on 19.7.2016 came out with a version that petitioners’ case would fall within purview of Section 67A of the Act and not under Section 70(2) of the Act. This stand of Chief Town Planning Officer was then considered by Rajkot Municipal Corporation by expressing its opinion on 1.5.2017 and stating thereunder circumstances and also stating Section 67A will have no application and as such, recommended to consider the claim of petitioners under Section 70(2). 19. This stand of Chief Town Planning Officer was then considered by Rajkot Municipal Corporation by expressing its opinion on 1.5.2017 and stating thereunder circumstances and also stating Section 67A will have no application and as such, recommended to consider the claim of petitioners under Section 70(2). 19. Yet another circumstance also reflecting from the record is that Chief Town Planning Officer then appears to have refused to consider petitioners’ application by taking a stand that variation under Section 70(2) may not be possible since petitioners’ case would fall under Section 71 of the Act which has led to filing of Misc. Civil Application No.1 of 2017. A perusal of the record indicates that at one point of time, State Government had on the contrary undertaken to consider petitioners’ request/ grievance for variation under Section 70(2), but altogether different stand is now taken contending a new scheme has to be framed under Section 71. Apart from time consuming process involved in framing a Scheme under Section 71, background of present facts would indicate that scheme is not suffering from any patent defect but requires to be varied under Section 70(2) of the Act. Only grievance is relating to proportion of deduction in case of one brother i.e. Haribhai’s landholding and that does not tantamount to be such a variation of substantial nature by virtue of which it cannot be resorted to under Section 70(2) of the Act. Hence, in the peculiar background of present facts, we are inclined to differ with conclusion arrived by learned Single Judge as it appears that same is not in consonance with the object of the provisions, namely Section 70(2) vis-a-vis Section 71 of the Act. 20. In fact, from the record, it appears that when initially the petition was being dealt with by the learned Single Judge on 23.8.2012, same came to be disposed of by incorporating the stand of the learned counsel who appeared on behalf of respondent Nos.1 and 2 and expressed no objection about order being made as prayed for without prejudice to the rights and contentions of respondent Nos.1 and 2 and by recording such no objection, the learned Single Judge directed the representation of petitioners to be considered under section 70(2) of the Act. Of-course, consent would not confer jurisdiction but when provision itself is clearly indicating that grievance of petitioners is not of the nature whereby entire Town Planning Scheme is to be substituted or to be newly framed under section 71 of the Act but only variation, any contrary stand of State Government cannot be accepted. In fact, while disposing of Special Civil Application No.14561 of 2015 vide order dated 3.12.2015, yet another learned Single Judge has observed that authority deserve to be directed to comply with direction issued in paragraph 2 of the order dated 23.8.2012 passed in Special Civil Application No.6930 of 1990. 21. Taking aforesaid orders into consideration and the recommendation of Commissioner of Rajkot Municipal Corporation when looked into where-under said authority has expressed an opinion that after hearing all stakeholders and after detailed examination of the material variation deserves to be considered under Section 70(2) of the Act and said proposal has been ordered to be processed further, we are of the view order of learned Single Judge would not be sustainable. 22. Yet, another such reiteration is reflecting from the communication dated 13.2.2015 at Annexure-C (page 213) where-under also concerned department was requested to process the claim of petitioners by taking note of the provisions contained under Section 70(2). 23. Further communication reflecting on page 215 also clearly indicate that grievance of petitioners may be dealt with keeping in view the provisions of Section 70(2) of the Act. Even an opinion has also been sought for in the form of clarification vide communication dated 20.8.2018 as to whether variation under Section 70(2) is to be undertaken as directed by Court or under Section 71 of the Act as suggested by State Government. The effect of this communication and overall background of facts indicate that respondent authorities were under an obligation to process and further deal with the grievance of petitioners under Section 70(2) of the Act only. Reading of Section 70(2) of the Act would clearly indicate it invests power in the State Government to vary the scheme and when such power is very much available, peculiar background of this fact is indicating that request of petitioners deserves to be dealt with under section 70(2) of the Act. Reading of Section 70(2) of the Act would clearly indicate it invests power in the State Government to vary the scheme and when such power is very much available, peculiar background of this fact is indicating that request of petitioners deserves to be dealt with under section 70(2) of the Act. A “Scheme” means a Town Planning Scheme prepared under the Act which includes a plan or plans together with descriptive matters of various aspects and when power under Section 71 if to be allowed, for this kind of individual and isolated grievance about proportionate deduction, same would dilute the spirit of sub-section (2) of Section 70 of the Act and as such for redressal of this grievance, which is tried to be voiced out, if entire new scheme is to be made after variation, same would seriously prejudice the situation which process is already set into motion long back by virtue of effect of the scheme and as such facts obtained in the instant case clearly indicate that Section 71 has no applicability and request of petitioners deserves to be considered under Section 70(2) of the Act. This proportionate deduction is not a defect or error by virtue of which entire scheme requires to be substituted and as such, the view taken by learned Single Judge is erroneous to that extent. Hence, we are constrained to set aside impugned order passed by learned Single Judge dated 24.12.2021. It is accordingly set aside and as a consequence thereof we direct the respondents to examine the grievance of the petitioners by resorting to the process prescribed under Section 70(2) of the Act. 24. While parting with the order, we observe here that since the grievance of petitioners are pending since long time, the authority is directed to examine the representation as narrated in the prayer clause of Special Civil Application and decide the same in accordance with law on its own merits expeditiously and for such decision making process, we hereby express no opinion and same shall be considered independently in accordance with law on the basis of its own merits by the authority. 25. With aforesaid observations, Letters Patent Appeal stands ALLOWED. All pending Civil Application(s) stands consigned to records.