K.A Swami, J.:—
W.P Nos. 18981 to 18983 of 1986 are filed an 28-10-1986 whereas W.P Nos. 18891 and 18892 of 1986 are filed on 27-10-1986 and the other two Writ Petitions 9260 and 9261 of 1988 are filed on 16-6-1988.
2. In all these Petitions, the petitioners have sought for a declaration that the scheme ‘Mini Forest’ to the east of Jayamahal Extension, Bangalore notified as per Notification No. ALAO/LA/1.PR/77-78 dated 5-4-1977 (Annexure-A) and the Notification No. HUD 72 MNJ 77 dated 7-2-1978 issued under Sections 17(1), 17(3) and Section 19 respectively of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the ‘Act’) has lapsed by operation of law and to quash the aforesaid Notifications. They have also sought for a further direction restraining the respondents from taking any steps against the petitioners for taking possession of the lands notified under the aforesaid Notifications. The petitioners have also further prayed for a declaration that the Scheme had lapsed and as such the aforesaid Notifications are liable to be quashed, therefore, to quash the impugned Notifications.
3. Under the Notification dated 5-4-1977 published in the Karnataka Gazette dated 5-5-1977 lands bearing S. Nos. 94/3 measuring 1-07 acres, S. No. 95 measuring 4-19 acres out of the total extent of 7-25 acres, S. No. 113 measuring 6-34 acres out of the total extent of 15-17 acres and Government Gramathana Kharab portion measuring 2-02 acres out of the total extent of 6-01 acres situated in K.G Byadarahalli village, Civil Station, Bangalore North Taluk were proposed to be acquired for a Development Scheme for creation of “Mini Forest” to East of Jayamahal Extension. The Notification was issued under sub-sections (1) and (3) of Section 17 of the Act. The Notification further stated that the particulars of the Scheme, a map of the area comprised therein, a statement specifying the lands which were proposed to be acquired and of the land in regard to which betterment tax may be levied could be seen in the Office of the Chairman, Bangalore Development Authority (BDA) Bangalore. It was also notified that all persons interested in the said lands to contact the Chairman during office hours on all working days.
4. In these Petitions, we are not concerned with item No. 4 of the Notification. All these lands stood in the name of one M.B Ramachandra. Earlier to that the lands stood in the name of one Byrappa. Byrappa had an younger brother by name Venkataswamappa. Venkataswamappa's sons are (1) M.V Narayanaswami, M.V Ramakrishna, M.V Sampath Kumar, (Petitioner in W.P No. 18981/1986), M.V Sundarraj, M.V Purushothama (Petitioner in W.P No. 18982/1986). M.V Narayanaswamy died leaving behind his wife Smt. Swarnagowri.
5. As the lands in question stood in the name of M.B Ramachandra, notice was served on him. He also filed his objections. After considering the objections and holding due enquiry, the State Government issued a Notification bearing No. HUD 72 MNJ 77 dated 7-2-1978 under sub-section (1) of Section 19 of the Act declaring that the lands proposed to be acquired under the Preliminary Notification dated 5-5-1977 were required for the public purpose viz., for the formation of ‘Mini Forest’ to the east of Jayamahal Extension. Thereafter award was passed on 23-9-1986. Some of the persons interested in the lands filed their claim petitions. After the Award was passed, possession was obtained on 28-10-1986. We have already pointed out the dates on which these Petitions were filed.
6. In W.P Nos. 18981 to 18983/1986 the petitioners have filed I.A III seeking amendment to the Writ Petition to raise certain grounds and to add those grounds as paras 7(a), 7(b), and 7(c) and paras 18(i), 18(ii) and 18(iii) to the main Petition. The B.D.A has also filed its additional Statement of Objections. In addition to this, on 20-9-1991, the petitioners in W.P No. 18981 to 18983 of 1986 have filed another application seeking permission to raise additional ground as para 8(a) to the effect that the Comprehensive Development Plan (CDP) dated 12-10-1984, a copy of which has been produced as Annexure-P by the petitioners, does not earmark the area proposed to be acquired for a ‘mini forest’. Therefore, it is tried to be contended that the C.D.P goes to show that the Scheme must have either been dropped or abandoned in toto.
7. We may point out here that these Petitions were heard some time in April 1991 and the hearing could not be completed. Therefore, they were posted for further hearing on 19-9-1991 and 20-9-1991. This application has been filed only on 20-9-1991. The B.D.A has not filed its objections as they have no time.
8. We may point out here that a similar application has been filed in W.P No. 18891 and 18892/1983 on 20-9-1991. Along with the application, an authenticated copy of the C.D.P has also been filed. The petitioners therein have sought for permission to raise additional grounds similar to the one raised in the application filed in W.P No. 18981 to 18983/1986. The learned Counsel for the B.D.A maintained that the Mini Forest Scheme had not been given up nor the C.D.P produced by the petitioners establishes that the lands acquired cannot at all be used for creating a mini forest.
9. With these preliminary facts, we proceed to consider the contentions urged on behalf of the petitioners.
10. It is contended on behalf of the petitioners that no notice had been issued to the petitioners in W.P No. 18981 to 18983 of 1986 and also to the other petitioners except the petitioner in W.P No. 18891/1986 who is no other than M.B Ramachandra. The stand of the B.D.A is, that as the names of the other petitioners had not been shown in the relevant revenue records at the relevant point time, they were not issued with any notice.
11. sub-section (5) of Section 17 of the Act reads thus:
“5) During the thirty days next following the day on which such notification is published in the official Gazette the Authority shall serve a notice on every person whose name appears in the assessment list of the local authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the authority proposes to recover betterment tax requiring such person to show cause within thirty days from the date of the receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made.”
From the aforesaid provisions, it is clear that the Notification published in the Official Gazette as per sub-sections (1) and (3) of Section 17 of the Act shall have to be served on every person whose name appears in the assessment list of the local authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any land or building which is proposed to be acquired in executing the scheme or in regard to which the Authority proposes to recover betterment tax requiring such person to show cause within thirty days from the date of receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made. As it has not been brought to our notice by producing any records to show that at the relevant point of time, the names of the other persons other than M.B Ramachandra appeared in the assessment list of the local authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment, we hold that the contention is not well-founded.
12. The scope of sub-section (5) of Section 17 is considered by this Court in Agromore Ltd. v. B.D.A . W.A No. 1772 of 1987 DD 18-10-1990.. In the said Decision, a Division Bench of this Court, after extracting the aforesaid provision, has held thus:
“It may be seen from the above provision that after the preliminary notification proposing to acquire the land for the purpose of an improvement scheme prepared under Section 16 of the Act is published, within 30 days from the date of publication in the official Gazette the Authority is required to serve an individual notice inter alia on every person whose name appears in the land revenue register as being primarily liable to pay the land revenue assessment. There can be no doubt that as it is intended to give a valuable right of objecting to the acquisition, it is mandatory. A Division Bench of this Court, interpreting Section 16(2) of the City of Mysore Improvement Act, which was similarly worded as Section 17(5) of the Act, in the case of M.S Jaffer Sheriff v. The C.I.T.B Mysore (ILR 1990 KAR 3746) held that the provision was mandatory and on the ground of non-compliance of Section 16(2) of that Act, final notification was quashed. The ratio of that decision applies on all fours to this case. In the present case, on fact, there is no dispute that the name of the appellant had been entered in the revenue records shortly after the purchase of the land under the registered sale deed dated 8-6-1973. The preliminary notification was issued only on 30-7-1977. Therefore, it was obligatory on the part of the Bangalore Development Authority to have served an individual notice on the petitioner. There is no dispute that the Bangalore Development Authority failed to do so. Therefore, in our opinion, the contention of the appellant that the final notification is liable to be set aside for the non-compliance with the provisions of sub-section (5) of Section 17 of the Act has to be upheld. It is true that subsequent to the entry of the name of the appellant in the revenue records, the appellant had applied for permission for conversion of the land for non-agricultural use to the Deputy Commissioner under Section 95 of the Land Revenue Act and the conversion was granted on 9-2-1976. A conversion Certificate was also issued on 29-3-1976. But as a consequence of the said certificate, steps had not been taken to treat the land as non-agricultural land and to make the assessment under the provisions of the Corporation Act. If such a step had been taken and the name of the appellant had been entered in the assessment list of the Bangalore City Corporation, then also it would have become obligatory for the Bangalore Development Authority to have issued individual notice to the appellant. But until that step was taken and so long as there is no dispute that the name of the appellant had been entered in the revenue records as being primarily liable to pay the land revenue in respect of the land in question as early as from the year 1974 itself, it was obligatory for the Bangalore Development Authority to have issued individual notice to the appellant. Learned Counsel for the Bangalore Development Authority does not dispute that no individual notice as required under sub-section (5) of Section 17 of the Act was issued. Therefore, in our opinion, the final notification is liable to be set aside for non-compliance of Section 17(5) of the Act.”
Again in a recent Decision in Muniveerappa v. State Of Karnataka* . ILR 1991 KAR 3362. a Division Bench of this Court while dealing with sub-section (5) of Section 17 of the Act has held as follows:
“The object of sub-section (5) of Section 17 of the Act is to ensure that the persons falling in the category mentioned in sub-section (5) of Section 17 of the Act are served with the notice. Therefore, the said provision specifically states ‘shall serve a notice on every person whose name appears…’ It does not state that it shall be served within 30 days next following the date on which the Notification is published. The sub-section opens with the words “During the thirty days next following the day on which such Notification is published in the official Gazette, the Authority shall serve a notice on every person”. So the emphasis is on the service of notice and not on the period within which it should be served. The period is mentioned in sub-section (5) because the Authority enjoined with the duty to serve the notice on the persons specified in sub-section (5) of Section 17 of the Act should not take its own time. It should as far as possible serve it within 30 days. It is to enable the Land Acquisition Proceedings to be completed as early as possible. The said provision also further gives a right to a person to file his objections within 30 days from the date of service. Therefore, even if a person falling within the category of sub-section (5) of Section 17 of the Act is served beyond 30 days from the date of publication of the Notification issued under sub-section (1) and published under sub-section (3) of Section 17 of the Act, he is not affected in any manner. No harm is caused to him. Because his right to file the objection is safeguarded as sub-section (5) of Section 17 of the Act provides that such a person can file his objections within 30 days from the date of service of notice. Therefore, the object of sub-section (5) of Section 17 of the Act is to ensure service of notice on the persons specified therein and that object is not defeated in any manner by service of notice beyond the period of 30 days; because the person concerned can file his objections within 30 days from the date of service of notice. When the object of the statute is not defeated by not serving the notice within 30 days as specified in the opening portion of sub-section (5) of Section 17 of the Act, strict compliance with such a provision viz., serving notice within 30 days cannot be held to be mandatory; because it does not result in deprivation of any right of the person concerned nor it defeats the object of the statute if the notice is served beyond 30 days. Therefore, such a provision cannot be held to be mandatory.’ Hence it follows that though service of notice is mandatory but is not mandatory to serve such notice within 30 days only. It can even be served beyond 30 days. Even then it does not vitiate the acquisition.”
It may be seen that when an Improvement Scheme prepared under Section 16 of the Act is published, within 30 days from the publication of the Notification in the official Gazette, the B.D.A is required to issue individual notice only on every person whose name appears in the assessment list of the local authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired in executing the scheme. As in the instant case, the names of the other petitioners did not appear in the land revenue assessment register nor any such record has been brought to our notice, it is not possible to uphold this contention.
13. However, reliance is placed by the petitioners in W.P No. 9260 and 9261/1988 on Annexure-E and F. It may be relevant to notice that Annexure-E and F do not relate to any land. Annexure-E is an extract from the Register of Assessment of Building and Lands from 1972-1977. Annexure-F is a certificate issued by the Assistant Revenue Officer, Bangalore City Corporation, Bangalore dated 29-3-1988. Annexure-E does not pertain to any lands under acquisition. What is acquired under the impugned Notifications is not a building. It is only lands. Annexure-E pertains to a particular building as described therein bearing old door No. 27/1 and New Door No. 4. Therefore, it is not possible to hold that Annexure-E pertains to the land bearing S. No. 95 as contended by the petitioners in W.P Nos. 9260 and 9261 of 1988. Similarly Annexure-F is a certificate dated 29-3-1988 issued long after the completion of the acquisition. Under this certificate the Assistant Revenue Officer of the Bangalore City Corporation, Jayamahal Range, has certified that the khata of property No. 27/1 (old) New No. 4, Marappa Thota stands in the name of M.V Narayanaswamy. It has been further stated that the said property is a gramathana as declared in the partition decree obtained in O.S No. 96/1956 vide item No. 16 of B' Schedule. We may point out here that in these Petitions, the petitioners have challenged the acquisition of only S. No. 95. They have stated that they are the owners of S. No. 95 of K.G Byadarahalli of Bangalore North Taluk, Bangalore District and they have further stated that they are also the owners of gramathana land measuring 6-01 acres. In the impugned Notifications, only an extent of 2-02 acres out of the total extent of 6-01 acres gramthana which is a Government Kharab has been acquired. There is no other material placed by the petitioners, before the Court, that the alleged property described in Annexures-E and F formed part of 2.02 acres of gramthana. This is the state of evidence placed by the petitioners even though they have filed these Petitions as late as on 16-6-1988 after 11 years from the date the Final Notification issued under Section 19 of the Act. It may also be pointed out that the Award had been passed and possession had been obtained on 28-10-1986. Therefore, the contention that the acquisition is vitiated because no notice had been issued under Section 17 of the Act cannot at all be accepted.
14. It may also be pointed out that this contention has also to be considered in the light of the long delay that has occurred in filing these Petitions. The Notification under Section 19 of the Act was issued on 7-2-1978 and was published on 16-2-1978. Some of the petitioners have participated in the Award proceedings and Award proceedings went on fairly for a long time. They have on a certain date, tried to get the acquisition proceedings dropped. Even then, they did not think of invoking the jurisdiction of this Court challenging the validity of the impugned Notifications earlier to 1986. The ground of lack of notice under Section 17 of the Act has to be considered in the background of long delay or laches in filing the Writ Petition. Therefore, on the ground of long delay without justifiable cause in approaching this Court, this contention also has to be rejected.
15. It is next contended that it is beyond the power of the B.D.A to acquire any land for the purpose of formation of a Mini Forest. Sri H.R Venkataramanaiah, learned Counsel for the petitioners very ingenuously and strenuously contended that forests are created by nature and they cannot at all be created by human agency. The learned Counsel has also placed reliance on a Decision of the Supreme Court in Bhavani Tea and Produce Co. Ltd. v. State of Kerala . Judgments Today, 1991 1 SC 503.. In addition to this, the learned Counsel has also placed reliance on the definition of the word occurring in Kittel's Kannada English Dictionary and also a portion from Bovier's Law Dictionary wherein the word ‘Forest’ has been dealt with.
16. On the contrary, it is contended on behalf of the B.D.A that the formation of ‘Mini Forest’ falls within the expression ‘amenity’ as defined in the Act, and also the expression ‘land’ as defined therein. Therefore, the acquisition is well within the provisions of the Act.
17. It is relevant to notice that the expression ‘amenity’ has been defined in the Act under Section 2(b) of the Act. This definition has been amended by Karnataka Act 17/1984. Of course, the relevant period during which the acquisition had taken place, the amendment had not come into force because it came to be inserted in the year 1984 by Karnataka Act No. 17/1984. Therefore, we have to consider the definition of the word ‘amenity’ as it stood prior to the coming into force of Karnataka Act No. 17/1984. The definition of the word ‘amenity’ was as follows:
“‘amenity’ includes road, street, lighting, drainage, public works and such other convenience as the Government may, by notification, specify to be an amenity for the purposes of this Act.”
Under Section 2(m) of the Act, the expression ‘land’ has been defined as follows:
“‘land’ includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.”
Section 17 of the Act provides for acquisition of land for the purpose of a scheme having been made and the limits of the area comprised therein and naming a place where particulars of the scheme, a map of the area comprised therein, a statement specifying the land which is proposed to be acquired and of the land in regard to which a betterment tax may be levied may be seen at all reasonable hours.
Section 16 of the Act provides that every development scheme under Section 15, shall, within the limits of the area comprised in the scheme, provide for the acquisition of any land which, in the opinion of the Authority, will be necessary for or affected by the execution of the scheme.
The scheme in question is a ‘Mini Forest’ Scheme. Mini Forest cannot be created without acquisition of the land. No doubt ‘Mini Forest’ is not one of the amenities specified by issuing a Notification by the State Government for the purpose of the Act. But the definition of ‘amenity’ is an inclusive definition. It only illustrates certain things which would not have been otherwise included under ‘amenity’. The definition of the word ‘amenity’ as it stood prior to Karnataka Act No. 17/1984 came up before this Court in Siddalingappa v. Bangalore Development Authority* . ILR 1986 KAR 3023.. In the said Decision, one of us (K.A Swami, J) held as follows:
“6.1 Point Nos. (i) and (ii): These two points can be dealt together. It is not in dispute that the site in question as per the layout plan or the development plan prepared and approved under Sections 15 and 16 of the Act, respectively, by the State Government was reserved for a Civic Amenity. It is also not in dispute that it was not reserved for any specific civic amenity. It has been allotted, as already pointed out, on lease basis to the 2nd respondent by the impugned resolution for the purpose of construction of Kalyan Mantap-cum-Vinayaka Temple Complex. As per the definition of the expression ‘amenity’ contained in Section 2(b) of the Act, it includes road, street lighting, drainage, public works and such other conveniences as the Government may by notification specify to be an amenity for the purpose of the Act. Section 16 of the Act provides for the particulars to be provided for in a development scheme.
6.2 The case of the petitioners as adverted to earlier, is that the civic amenity site in question is required to be kept vacant as it is intended to provide lung space for the residents of the locality and the allotment of it for other purpose violates the development plan; that such a change can only be done if it is approved by the State Government. In this regard, sub-section (5) of Section 18 of the Act, is relied upon. Therefore, it is necessary to examine whether the allotment of the site in question for the construction of Kalyan Mantap-cum-Vinayaka Temple Complex amounts to diverting the site in question for a purpose other than the one for which it is intended. As it is already pointed out, definition of the expression ‘amenity’ is not exhaustive. It is an inclusive definition. Added to that, the site in question is not reserved for any specific civic amenity; therefore, it is open to the first respondent to use it for a purpose which provides amenity to public at large. As per the Websters Dictionary, the word ‘amenity’ means creation of conveniences to public at large. It cannot at all be denied that Kalyan Mantap is not open to the use of public and is not a convenience to public. Similarly, Vinayaka Temple also serves the need of public as it provides a place for worship to public. In the absence of particularisation of the site for a specific civic amenity, the use of the site in question for the aforesaid purposes cannot be held as not providing an amenity to public or depriving of an amenity. When once it is held that the use of the site for the aforesaid purpose provides an amenity, the question of violation of the Development Scheme does not arise because the use of the site will be in conformity with the development scheme. In such an event, the question of obtaining the approval of the State Government also does not arise. Hence, I am of the view that the allotment of the site in question to the 2nd respondent is not for the purpose other than the one for which it is reserved or at any rate it does not undermine public convenience.
6.3 In this connection, Learned Counsel for the petitioner has placed reliance on a Division Bench decision of this Court reported in Holy Saint Education Society v. Venkataramana P. [I.L.R 1982 (1) Kar. Page 1]. In that case, in a private layout, a site was reserved for children park. After the development of the layout as per law, the site was handed over to the Corporation. After it was handed over to the Corporation, it was allotted by the Corporation to the private educational institution for the purpose of construction of a building for school. Under those circumstances, it was held by this Court that it was not permissible for the Corporation to divert the use of the site for the purpose of construction of a building for school because it was reserved for children park. It was further held that the site was transferred to the Corporation as a. Trust for the purpose of utilising it for children park; hence it was not permissible for the Corporation to transfer it. The facts of the case as stated above, make it clear that the aforesaid decision cannot at all be applied to the present case inasmuch as the site in question was not reserved for any specific civic amenity. Hence, it is not possible to hold that the enunciation made in the aforesaid decision is applicable to the present case. Accordingly, point No. (1) is answered in the negative and point No. (ii) is answered in the affirmative.”
However, it is contended on behalf of the petitioners that a Division Bench of this Court in B.S Muddappa v. State Of Karnataka* . ILR 1989 KAR 3027. has taken a contrary view. Therefore, the Decision rendered by a single Judge cannot prevail over the Decision rendered by a Division Bench. In B.S Muddappa's case, a Division Bench of this Court, while considering the expression ‘amenity’ as it stood prior to its amendment by Karnataka Act No. 17/1984 has held thus:
“18. The learned Counsel want this Court to understand inclusive definition, to mean, illustrative and therefore, even if the expression ‘hospital’ or ‘nursing home’ was not one of the listed expressions in the definition, it should be construed liberally so that all public conveniences are included within the meaning of the defined term ‘amenity’. We find it difficult to accept the argument. The legislative intent becomes obvious when an inclusive definition is resorted to by the legislature when something which is not normally embraced or connoted in the ordinary meaning of an expression is nevertheless brought within the meaning of that expression, as explained in the passage extracted from the case of Taj Mahal Hotel (A.I.R 1972 S.C 168) supra. In other words, an inclusive definition may bring within it many species from different genus within one expression and no more. For instance, by an inclusive definition horses may be defined to include donkeys, mules and zebras. That would be for the purpose of an artificial definition which the legislature adopts to achieve the objects of the statute concerned. Thus, understood, while the definition of the word ‘amenity’ by enumeration includes road, street, lighting, drainage, public works and such other conveniences, the Government may by notification specify to be an ‘amenity’ for the purposes of the B.D.A Act, other conveniences to the public by notification. This aspect has been clearly overlooked by this Court in the case of Siddalingapa (ILR 1986 KAR 3023) supra. Unless there is a Government notification specifying the other conveniences for the purpose of the B.D.A Act, it shall not be an amenity for the purpose of the B.D.A Act. Any other view would render the portion emphasised by us in clause (b) of Section 2 of the B.D.A Act otiose which is impermissible.”
In this regard, it is contended that the interpretation placed on the inclusive definition in B.S Muddappa's case is quite contrary to a Decision of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly . AIR 1986 SC 1571.. In the aforesaid Decision, the Supreme Court in para 23 of the Judgment has held as follows:
“23. As pointed out in Craies on Statute Law, Seventh Edition, page 213, when an interpretation clause defines a word to mean a particular thing, the definition is explanatory and prima facie restrictive: and whenever an interpretation clause defines a term to include something, the definition is extensive. While an explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause, so that wherever the word defined is used in the particular statute in which that interpretation clause occurs, it will bear only that meaning unless where, as is usually provided, the subject or context otherwise requires, an extensive definition expands or extends the meaning of the word defined to include within it what would otherwise not have been comprehended in it when the word ‘defined’ is used in its ordinary sense. Article 12 uses the word ‘includes’. It thus extends the meaning of the expression “the State” so as to include within it also what otherwise may not have been comprehended by that expression when used in its ordinary legal sense.”
The inclusive definition does not take away or restrict natural or ordinary meaning of the word. On the contrary, it adds to its dimensions without restricting or curtailing its natural or ordinary meaning. The Decision in B.S Muddappa's case in so far it relates to the scope and the meaning of the inclusive definition is per-incuriam as it is rendered without noticing the Decision of the Supreme Court in the aforesaid Central Inland Water Transport Corporation case. Therefore, in conformity with the Authoritative Pronouncement of the Supreme Court in the above Decision, it has to be held that the definition of the word ‘amenity’ is an extensive definition. It takes into its fold all the schemes which provide ‘amenity’ to the citizens. ‘Mini Forest’ is an amenity because for a City-dweller who is far away from the forest and whose children would not have an opportunity to see a forest unless they go far away from the City into the forest. If the B.D.A develops a ‘Mini Forest’ to provide amusement to the city-dwellers and the children, it definitely provides an ‘amenity’ to the city-dwellers. It is also attached to the land and arises out of the benefits attached to the lands acquired. It is also the case of the B.D.A that the lands proposed to be acquired are not fit for building sites. The entire area is filled with shallow-water, rocks and hillocks. In that way, the very topography of the land is best-suited for creation of a mini-forest which undoubtedly provide an amenity to the children of the City dwellers.
18. It is next contended by Sri H.R Venkataramanaiah, learned Counsel for the petitioners that the definition of the word ‘amenity’ as it stood prior to Karnataka Act No. 17/1984 has to be read by applying the Rule of ‘Ejusdem generis’. It is not possible to accept this contention. The words used in the definition ‘amenity’ are not of the same genus. They belong to different categories such as road, street, lighting, drainage, public works etc. Therefore, it is not possible to apply the Rule of ‘Ejusdem generis’.
19. Similarly the contention that the man cannot create ‘forest’ is a far-fetched contention. It is also not supported by the very Decisions which are relied upon by Sri Venkataramanaiah. In Bhavani Tea and Produce Co. Ltd. v. State of Kerala the Supreme Court was called upon to consider the scope of Sections 2(f), 3 and 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 wherein the words ‘Private Forests Areas on the periphery of the Company's Estate’ etc. were used. In the context of the provisions contained in the said Act, the said Decision has been rendered. It has not been laid down in that Decision as a proposition of law that forests cannot at all be created or formed by human agency. On the contrary, it is otherwise true. Many forests and Mini Forests are created by human agency. History is a witness for it.
20. Similarly, the expression of the word occurring in Kittel's Kannada English Dictionary and also the word ‘forest’ dealt with in Bouvier's Law Dictionary are not of much assistance to the petitioner. In Bouvier's Law Dictionary, the word ‘forest’ has been defined as follows:
“A certain territory of wooded ground and fruitful pastures, privileged for wild beasts and fowls of forest, chase and warren, to rest and abide in the safe protection of the prince for his princely delight and pleasure, having a peculiar Court and officers - A royal hunting-ground which lost its peculiar character with the extinction of its Courts or when the franchise passed into the hands of a subject…”
In Kittel's Kannada English Dictionary, the word has been defined as follows:
“a forest, a jungle; a wild”
20. It may be pointed out here that the Scheme is to create or form a ‘Mini Forest’. The forest that would be created will be ‘mini’ in nature and it need not necessarily be a forest. Therefore, considering the contention from all its aspects and also taking into consideration the relevant provisions of the Act viz., Sections 2(a), 2(m), 16 and 17 of the Act, it is not possible to hold that the acquisition of the lands in question for the purpose of forming a ‘mini forest’ is beyond the purview of the Act. Accordingly, the contention is rejected.
21. It is next contended that the object of acquisition is to peg-down compensation because the acquisition was started in the year 1977 whereas the Award has been passed on 23-9-1986. The land value has appreciated during this intervening period, therefore it has resulted in causing great loss to the owners of the lands acquired under the impugned Notification. It is not possible to accept this contention merely on the ground that certain time has elapsed between the Notification issued under Section 19 of the Act and the passing of the Award.
22. There is no material placed before us that without any justifiable cause, delay had occurred in the passing of the Award. On the contrary, it is the case of the B.D.A that Award could not be passed due to several other proceedings and the time obtained by the petitioners. If really, the petitioners were aggrieved by the Notifications on the ground that it amounted to pegging down the prices, nothing prevented them to immediately approach this Court after the Notification under Section 19 of the Act was published in the year 1978. At any rate, within a reasonable time from the date of publication of the final declaration, they should have approached this Court. The petitioners having taken their own time to approach this Court, cannot justifiably contend that the delay in passing the Award has vitiated the acquisition proceedings. Accordingly, this contention is also rejected.
23. It is next contended that the B.D.A has not executed the scheme within a period of five years from the date of publication of the declaration under Section 19 of the Act in the Official Gazette as required by Section 27 of the Act; therefore, the scheme had lapsed and the provisions of Section 36 of the Act have become inoperative. It is contended that the Notification under Section 19(1) was published in the Official Gazette dated 16-2-1978. Therefore, the scheme ought to have been executed within a period of five years from that date. As the B.D.A did not take possession, and the Award was not passed within that period, the provisions of Section 36 of the Act became inoperative; therefore, the further proceedings including passing of the Award and taking possession under Section 36 of the Act were illegal and without the authority of law. Reliance was placed on a Decision of this Court in Kanthamma v. State of Karnataka . 1984 2 KLJ 271.. As the Judgment is short one, we propose to extract the entire Judgment. It reads:
“These appeals are directed against the order of the learned single Judge made in W.P No. 21097 to 21107/1983 dated February 10, 1984.
The Bangalore Development Authority (B.D.A) had formulated a development scheme covering an area of 1703 acres of land for the purpose of forming layout and house sites. The preliminary notification for acquiring the land was issued on September 19, 1977 and the final notification was issued on February 7,1978.
The petitioners, who are owners of about 10 acres of land included in that vast ocean of land, have approached this Court challenging the validity of the acquisition solely on the ground that there has been no compliance with the provisions of Section 27 of the Bangalore Development Authority Act, 1976. The learned single Judge before whom the Writ Petitions came for preliminary hearing, rejected the petitions on the ground of delay and also on the ground that even if the B.D.A has not substantially implemented the scheme as provided under Section 27 of the Act, this Court should be allowed to interfere with a gigantic project undertaken by the Government and the B.D.A in the larger public interest.
The view, taken by the learned single Judge has been challenged in these appeals.
Mr. Ranga Rao, learned Counsel for the appellants, urged that the question of delay does not arise in a matter which falls under Section 27 of the Act and the scheme which has not been executed substantially shall lapse without any further order and the B.D.A therefore, has no power to proceed further under Land Acquisition Act.
Aside the question of delay, we do not think we could examine the contention urged with reference to Section 27 of the Act. Section 27 reads:
“27. AUTHORITY TO EXECUTE THE SCHEME WITHIN FIVE YEARS. Where within a period of five years from the date of the publication in the official Gazette of the declaration under sub-section (1) of Section 19, the Authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative.”
For the scheme to lapse there must be proof regarding the failure on the part of the authority to execute the scheme substantially within five years from the date of publication in the official Gazette of the declaration under Section 19(1) of the Act. It seems to us that the first place, the “failure to execute the scheme” envisaged under Section 27 means that there must be dereliction of statutory duties without justification and not a mere delay in the execution of the scheme. Secondly, the “substantial execution” in the context depends upon the magnitude of the scheme and the nature of the work executed and remains to be executed.
In the very nature of the project in question, it is almost impossible for this Court to be, bark upon an enquiry on the contention raised by the learned Counsel. The Court, as observed by the learned single Judge would be slow to interfere with the public projects, massive or minor, unless there is compelling reason; we do not find any such compelling reason in this case.
Writ Appeals are accordingly rejected.”
24. From the aforesaid Decision, it is clear that failure to execute the scheme must be due to dereliction of statutory duties without any justifiable cause and not mere delay in executing the scheme. In the instant case, as already pointed out, even though the declaration under Section 19(1) of the Act was published on 16-2-1978, but the Award was passed only on 23-9-1986. For the delay in passing an award under the provisions of the Land Acquisition Act, the B.D.A cannot be blamed. The B.D.A could execute the scheme only after the possession is obtained. Possession could be obtained only after the Award is passed. Therefore, under these circumstances, it is not possible to hold that there is a dereliction of statutory duty without any justification by the B.D.A From the Decision in Kanthamma's case it follows that it is the statutory duty of the B.D.A to execute the scheme. If it derelicts in the discharge of this statutory duty and fails to execute the scheme substantially without any justification within a period of five years from the date of declaration issued under Section 19(1) of the Act, undoubtedly the provisions of Section 36 of the Act would cease to apply to the acquisition. Therefore, it is not possible to hold that the Decision in Kanthamma's case is of any assistance to the petitioners.
25. Similarly, it is not possible to appreciate, how the Decision in Kaliyappan v. State of Kerala . AIR 1989 SC 239. helps the petitioners to sustain their contention that the delay in executing the scheme within a period of five years results in nullifying the acquisition. That was a case in which the scope of Section 11A of the Land Acquisition Act as inserted by Land Acquisition (Amendment) Act, 1984 was considered. Section 11A as inserted by the said Amendment Act is as follows:
“11-A Period within which an award shall be made - The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse.
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
Explanation - In computing the period of two years referred to in this Section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.”
The Supreme Court has held that the meaning of the words ‘date of the award’ means ‘signing of the award’. It has also considered the other aspects of Section 11A with which we are not concerned in this case. We are of the view that literal interpretation should not be placed on Section 27 of the Act. Any interpretation of a statute which leads to defeating or undermining the object of the statute should be avoided. An interpretation which advances the object of the Act should be accepted. As already pointed out, in the instant case, the B.D.A cannot be expected to execute the scheme under the Act for which land is acquired without obtaining possession of the lands. Therefore, the period of five years from the date of publication in the Official Gazette of the declaration under sub-section (1) of Section 19 of the Act has to be read and construed as from the date of taking possession of the lands acquired, as otherwise, it would be expecting the B.D.A to perform an impossible act. No law expects any person or Authority to do an impossible Act. Therefore, in the light of the provisions contained in the Land Acquisition Act for passing of the Award and taking possession of the lands acquired, Section 27 of the Act has to be interpreted in the above manner.
26. We may also point out here that the Act only provides for issuance of the Notifications under Sections 17 and 19 of the Act which are equivalent to the Notifications under Sections 4 and 6 of the Land Acquisition Act. For the purpose of passing of the Award and taking possession of the lands acquired, it is the provisions contained in the Land Acquisition Act are to be applied. The purpose of Section 36 of the Act is to apply the provisions of the Land Acquisition Act for the purpose of passing of the Award and taking possession. Therefore, Section 27 of the Act has to be read in this background. If it is read in this background, it necessarily follows that the period of five years has to be computed from the date of taking possession and not from the date of publication of the final declaration under Section 19 of the Act. Of course, if from the date of taking possession, the B.D.A is not able to execute the scheme substantially within a period of five years without any justification, it would be open to the person whose land is acquired to seek a relief on the basis of Section 27 of the Act. But as the matter stands, from the date of taking possession of the lands, the period of 5 years has not elapsed. Further, it is the case of the B.D.A that they have spent Rs. 60,000/- for the execution of the scheme. Under these circumstances, it is not possible to accept this contention. Accordingly, it is rejected.
27. A last contention is urged on the basis of an application filed on 20-9-1991 in W.P Nos. 9260 and 9261/1988. The contention raised in this application is that after the Notifications under Sections 17 and 19 of the Act were issued, Comprehensive Development Plan (CDP) has been published under the Government Order dated 12-10-1984. An approved C.D.P has also been produced along with the application as Annexure-P. The Plan as produced indicates that it has been approved by the Government under G.O No. HUD 3 TTP 83 dated 12-10-1984. One of the Members of the B.D.A is a Member of the Town Planning Authority under the Karnataka Town and Country Planning Act, 1961, under which the C.D.P is prepared. As per this C.D.P. S. No. 95 is shown as parks and open space. S. No. 93, 94 and 113 are shown as unclassified. Therefore, it is contended that as the impugned Notifications were issued as long back as in the year 1977 and 1978, if really the B.D.A intended to pursue its scheme of ‘Mini Forest’, it would have got the area covered by the lands in question as reserved for ‘Mini Forest’. The fact that the lands in question are not specifically reserved for ‘Mini Forest’ in the C.D.P would go to show that the B.D.A must be held to have either abandoned or dropped its Scheme for forming Mini Forest.
28. On the contrary, it is contended by the B.D.A that the C.D.P produced by the petitioner does not go against the Scheme because S. Nos. 93, 94 and 113 are shown as unclassified. Therefore, it does not go against ‘Mini Forest’ scheme. As far as S. No. 95 is concerned, it is shown as parks and open space. S. No. 95 measures 7-25 acres out of which only an extent of 4-19 acres is acquired. From the C.D.P it is not possible to hold that the entire area comprised in S. No. 95 is reserved for parks and open space. It is also seen from the C.D.P that a portion of S. No. 95 is also shown as blank. It is this area which is shown as blank is unclassified. Therefore, it is not possible to hold that the entire S. No. 95 is reserved for parks and other open spaces. Hence it is not possible to accept the contention of the petitioners that in the C.D.P the area acquired under the impugned Notifications has been reserved for a purpose other than ‘Mini Forest’. On the contrary, having regard to the fact that on the date the C.D.P was published, the acquisition of the lands had not become final. Therefore, it could not have been shown as reserved for ‘Mini Forest’. Hence the Planning Authority has shown it as unclassified. Therefore, it is not possible to accept the contention that in the C.D.P the lands acquired under the impugned Notifications are reserved for some other purpose. Hence this contention is also rejected.
29. All the contentions raised by the petitioners fail. Consequently these Petitions fail and the same are dismissed.