D.S. Sinha, C.J.
1. Paid extensive homage to the right of audience of Mr. K.K. Trivedi, learned Counsel appearing for the petitioners, and suffered his incoherent, cluttered, misconceived and confusing arguments, and availed the valuable assistance of Mr. S.N. Shelat, learned Advocate General of the State of Gujarat, Mr. Prashant G. Desai, learned Counsel appearing for the Municipal Corporation of City of Surat, the respondent No. 2, and Mr. A. D. Oza, learned Government Pleader representing the respondent No. 3.
2. By means of instant Special Civil Application under Article 226 of the Constitution of India, the petitioners pray for the grant of following three principal reliefs delineated by alphabets (B), (C) & (D) :
'(B) YOUR LORDSHIPS may be pleased to issue a Writ in nature of certioraris or a Writ in nature of mandamus and/or any other appropriate writ/s, order/s or direction/s declaring Section 48A of the Gujarat Town Planning and Urban Development Act, 1976 as substituted vide Act No. 2 of 1999 with effect from 1-5-1999, ultra vires to the Constitution of India.'
'(C) YOUR LORDSHIPS may be pleased to issue a Writ in nature of certioraris or in nature of mandamus or any other appropriate Writ/s, Order/s and/ or Direction/s quashing and setting aside the notice dated 28-1-2002 (Annexure-G).'
'(D) YOUR LORDSHIPS may be pleased to issue a Writ in nature of certioraris or in nature of mandamus or any other appropriate Writ/s, Order/s and/ or Direction/s quashing and setting aside the reconstitution of the land of the petitioners bearing Revenue Survey No. 1/1 Paiki, Revenue Survey No. 1/2 Paiki and Revenue Survey No. 138/2 Paiki as shown in Para 3.1 of this petition of Village Singanpore, Sub-district Choryasi, District Surat, and further be pleased to direct the respondents to provide separate final plots on which construction can be made according to law.'
3. Star contention of the learned Counsel of the petitioners in support of relief (B) is that Section 48A of the Gujarat Town Planning and Urban Development Act, 1976, hereinafter called 'the Act', added by Act No. 2 of 1999 with effect from 1st May, 1999, is unconstitutional because it purports to destroy the basic structure of the Constitution inasmuch as it takes away right of the petitioners to invoke the power of 'judicial review'. Further, submission of the learned Counsel of the petitioners is that Section 48A confers unguided powers for taking possession of the land covered by the Town Planning Scheme sanctioned under Section 48(2) of the Act rendering it arbitrary and unconstitutional. The learned Counsel also submits that Section 48A has the effect of depriving the petitioners of their land without compensation or with inadequate compensation.
4. In the context of the controversy, it is apposite to take note of the provisions of Section 48A of the Act, which is extracted below :
'48A.(i) Where a draft scheme has been sanctioned by the State Government under Sub-section (2) of Section 48, (hereinafter in this Section, referred to as 'the sanctioned draft scheme'), all lands required by the appropriate authority for the purpose specified in Clauses (c), (f), (g), or (h) of Sub-section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances.
(2) Nothing in Sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.
(3) The provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if, -
(i) sanctioned draft scheme were a preliminary scheme, and
(ii) in Sub-section (1), for the words 'comes into force', the words, brackets and figures 'the date on which the draft scheme is sanctioned under Sub-section (2) of Section 48' were substituted.'
5. The Court has read and re-read the provisions of Section 48A extracted above, with the assistance of the learned Counsels appearing for the parties, but has not been able to find any fetter on the right of the petitioners to invoke the power of 'judicial review' of the Courts having such power. Undoubtedly, power of 'judicial review' has been identified as one of the basic structures of the Constitution, and any attempt to take away that power from its repository would be unconstitutional. In the instant case, there is no inkling of any such attempt by any stretch of imagination. The argument of the learned Counsel of the petitioners in this regard is totally devoid of substance, and deserves to be rejected.
6. The submission of the learned Counsel of the petitioners that Section. 48A of the Act confers upon the State Government unguided power for taking possession of the land covered by the sanctioned Draft Town Planning Scheme rendering it arbitrary and unconstitutional is utterly misconceived. A bare perusal of the provisions of Section 48A of the Act indicates that it, by itself, does not confer any power on the State to take possession of the land covered by the sanctioned Draft Town Planning Scheme. Indeed, it declares automatic vesting of the land upon existence of the conditions prescribed therein. The Government has not been given any power, discretion or choice in the matter of vesting. In other words, vesting contemplated under Section 48A is legislative vesting for specific purposes.
7. The submission of the learned Counsel of the petitioners that Section. 48-A of the Act, in substance, has the effect of depriving the petitioners of their land either without compensation or with inadequate compensation has no legs to stand. The argument clearly betrays the ignorance of the provisions of Sections 82 to 87 of the Act, which provide detailed mechanism in respect of compensation to the affected persons. Therefore, the argument of the learned Counsel of the petitioners cannot be sustained.
8. With regard to relief (C) for quashing the notice dated 28th January, 2002, issued to the petitioners under Sections 48A, 67, 68 of the Act, and Rule 33 of the Rules made thereunder, the learned Counsel of the petitioners has not been able to point out any such infirmity, which may warrant interference by this Court. Sub-section (3) of Section 48A of the Act provides that provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if sanctioned draft scheme were a preliminary scheme. Section 68 of the Act provides that on and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme, shall in accordance with the prescribed procedure, be summarily evicted by the appropriate authority. Applying the provisions of Section 68 with requisite modifications as provided in Sub-section (3) of Section 48A, and taking note of the fact that the land of the petitioners vested in the appropriate authority, the petitioners ceased to be entitled to occupy the land in question, and by their continued occupation rendered themselves liable to be summarily evicted by the authority. Section 69 empowers the appropriate authority, inter alia, to remove, pull down, or alter any building or other work in the area included in the scheme which is such as contravenes the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with. This Section also empowers the appropriate authority to execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the appropriate authority that delay in the execution of the work would prejudice the efficient operation of the scheme. A perusal of the impugned notice clearly indicates that it has been issued to the petitioners in furtherance of and for carrying out the purposes of Sections 48A, 67 and 68 of the Act. The Court does not find any illegality in the impugned notice, and is of the opinion that it is perfectly in accordance and conformity with the provisions of the Act and the Rules made thereunder. Thus, the petitioners are not entitled to the relief (C).
9. In respect of relief (D), it has been pointed out by the respondent No. 1 that the petitioners have effective alternative remedy by way of representation. The learned Counsel of the petitioners has, very fairly, not disputed the submission. The petitioners may, if so advised, avail the remedy of the representation as suggested by the respondent No. 1, and not disputed on behalf of the petitioners.
10. All told, the petition is frivolous. Indeed, it is a classic instance of grossest abuse of process of the Court. Therefore, it must be dismissed with costs.
11. Accordingly, the petition is dismissed with costs quantified to be Rs. 10,000-00 (Rupees ten thousand) only, payable to the respondent No. 1 within a period of one month. The petitioners shall report compliance of this order to the Registry immediately after a month. In the event of failure in paying the costs, as directed, it shall be recoverable by the State Government as arrears of land revenue. Notice is discharged.