Dipak Misra, J.

1. Invoking the extraordinary jurisdiction of this Court the Petitioners have prayed for issue of a Writ of Certiorari for quashment of the notifications dated 23-11-1962 and 11-1-1963. Annexures P/1 and P/2 respectively and further to quash the award dated 3-11-1963, Annexure P/5, as far as it relates to the disputed lands in question. A further prayer has also been made seeking declaration that the disputed land which has remained in possession of the Petitioners would remain in their possession, as they are entitled to retain the same.

2. The facts as have been exposited in the writ petition are that the lands situate in Khasra Nos. 949, 1641/948, 948 admeasuring 9.01 acres in the city of Bhopal and Khasra Nos. 33, 41/1, 41/2, admeasuring 18.66 acres situate in Village, Govindpura in the District of Bhopal, belong to the Petitioners. Along with the aforesaid lands a total area admeasuring 112.55 acres of land was sought to be acquired by the State Government for establishment of an industrial workers colony. It is put forth that Late Govardhan, the predecessor in interest of the Petitioners was the original Bhumiswami, who died in the year 1939. He left behind two sons, namely, Hariram and Ramprasad. The Petitioners claim their title through the said Hariram. According to the writ Petitioners the employees of the M.P. Housing Board tried to disturb in their possession on 5-11-1979 and at that time they came to know that some land acquisition proceedings were initiated in respect of their lands. It is pleaded in the petition that the Respondent. No. 1 had issued a notification under Section 4(1) read with Section 17 of the Land Acquisition Act, 1894 (for brevity the) which was published in the M.P. Rajpatra, dated 23-11-1962 and subsequently a notification under Section 6 of thewas published on 11-1-1963. The said notifications have been brought on record as Annexures P/1 and P/2. The said notifications were challenged in Civil Suit Nos. 5-A/80 and 44-A/82 by certain other persons who were affected by the said notifications. The Civil Court by its judgment released the lands of the Plaintiffs in those suits from the sphere of acquisition, on the ground that there existed no emergency and the circumstances did not warrant dispensation of hearing as contemplated under Section 5-A of the. It is set forth that the lands admeasuring 56.03 acres belonging to Machhi Singh and the land admeasuring 18.86 acres belonging to Biharilal were taken out of the notifications by virtue of the judgment passed by the Civil Court. Thus, out of the total land which was sought to be acquired only 38.66 acres was left out because no civil suit was filed. The Petitioners filed Civil Suit No. 56-A/99 on 8-11-1979 claiming that cause of action had arisen on 5-11-1979 when the employees of the M.P. Housing Board had taken steps to interfere over their possession. It has also been put forth that in the award passed by the Land Acquisition Officer in paragraph No. 12 it has been mentioned that the original Bhumiswami, Hariram had not appeared before the Land Acquisition Officer. A copy of the award has been brought on record as Annexure P/5. Lands were acquired in the year 1963 for construction of an industrial housing colony for B.H.E.L. workers, but no colony was ever established. But after a lapse of 14 years the State Government by order dated 15-6-1977 allotted 87.95 acres of land in favour of the M.P. Housing Board. It has been put forth that actual physical possession has been taken over by the said Board but only possession has been taken on papers. It is stated that the civil suit filed by the Petitioners remained pending for a long time because of the temporary injunction passed by the trial Judge and the Petitioners remained in possession. Certain documents have been brought on record to show physical possession of the Petitioners. The civil suit filed by the Petitioners was dismissed on the ground that the Civil Court has no jurisdiction to enter into the said controversy in view of the decision rendered by the Apex Court in the case of State of Bihar v. Dhirendra Kumar and Ors. : AIR 1995 SC 1955 .

Assailing the said judgment a First Appeal No. 549 of 2000 was preferred. The said appeal was withdrawn and this Court dismissed the appeal as withdrawn. Liberty was sought to file a writ petition which was granted. It is averred in the writ petition that Hariram did not appear before the Claims Tribunal and in pursuant to the award no amount had been paid to the Petitioners.

3. It is averred in the writ petition that the notifications issued under the are illegal and unjustified inasmuch as no emergency existed at the time of issuance of the notifications. It is put forth that the Petitioners are entitled for equal treatment with the Plaintiffs who had succeeded in the civil suits and against which judgment no appeal was preferred. It is also urged that by invocation of the emergency provision there has been colorable exercise of power and hence, the notifications are null and void. It is also put forth that there is no public purpose for acquisition of the land and there was no justification for transferring the land in favour of the M.P. Housing Board. According to the Petitioners even after lapse of 14 years M.P. Housing Board has failed to carry out any construction activity. With these averments reliefs have been sought for, as have been indicated hereinabove.

4. A return has been filed by the Respondent No. 2, the M.P. Housing Board, contending inter alia, that the writ petition should not be entertained as there has been delay and laches on the part of the Petitioners, inasmuch as 38 years have passed from the date of passing of the award. It is put forth that once an award had been passed acquisition proceedings cannot be challenged. It is the case of the Respondents that initially land was acquired in favour of the Department of Industries for construction of a colony for the industrial workers but later on, land was given to the M.P. Housing Board by order of the State Government, dated 15-6-1977. The possession was also handed over to the M.P. Housing Board. It has also been put forth that on Khasra Nos. 949, 1641/948 and 948 the M.P. Housing Board had already constructed houses in the year 1983-1984 and the possession of the houses have been handed over to the allottees. It is put forth that Khasra Nos. 33, 41/3 and 41/2 are in possession of the M.P. Housing Board and the houses are to be constructed for the proposed allottees. According to the M.P. Housing Board it has already carried out development work worth Rs. 5 lacs in the year 1980. It has constructed roads, overhead tanks, electrification work and also laid G.I. pipe lines. It is the case of the Respondent that due to interim order passed by the Civil Court the working activities could not progress.

5. A reference has been made to the judgment of the Civil Court to show that the finding was recorded by the Civil Court that the Petitioners were not in possession. The stand of the Petitioners that there has been no public purpose, has been seriously disputed. It is put forth that the Housing Board is bound to carry out the housing scheme which is to be undertaken under the land in question. As per the scheme 118 houses are to be constructed for weaker sections of the society and 104 houses are to be constructed for the persons belonging to middle income group and, therefore, there is public purpose in the acquisition. It is also the case of the Board that the Petitioners have not disclosed the fact that a civil suit is pending between them and the Respondent Nos. 8 to 11 being Civil Suit No. 132-A/1991 in the Court of Civil Judge, Bhopal.

6. According to the answering Respondent the appeal against Biharilal was withdrawn. The physical possession of the Petitioners has been seriously disputed by the Respondent-Board. It is positive case of the Board that on a perusal of the award, it is perceptible that notices were served upon the Petitioners and the land owners participated in the proceeding and hence, at this belated stage they cannot file writ petition for quashment of the notifications.

7. The Respondent No. 11 has filed a counter affidavit. It is pleaded therein that the Respondents No. 5 and 8 to 11 had purchased 27.61 acres of land from Hariram, who was the owner of the disputed land. They have filed an application for grant of compensation on the basis of sale-deed dated 17-4-1963. A reference was made under Section 30 of thefor the decision of dispute regarding title and it was also directed that the amount of compensation be not disbursed to any of the parties till the decision of the case. The reference was registered as M.J.C. No. 23/1965 in which Hariram had deposed that he had sold the disputed land to Respondents No. 5 and 8 to 11 for valuable consideration. The deposition of Hariram has been brought on record. The M.J.C. No. 23/65 was disposed of by the learned District Judge, Bhopal, vide order dated 9-1-1968 in which he has held that compensation in respect of the land admeasuring 27.67 acres should be paid to the Respondents 8 to 11. It is further put forth that said Respondents have not been paid compensation and they are in possession and they had become the owners of the land. It is urged that no notice was given to the Respondents No. 5 to 11 by the M.P. Housing board. Other aspects which have been pleaded in the counter affidavit are not of much significance and hence, I need not refer to the same.

8. I have heard Mr. R.N. Singh, learned senior counsel along with Mr. Praveen Dubey for the Petitioners, Mr. Mukesh Agrawal, learned Panel Lawyer for the Respondents 1 and 3, Mr. Ajay Mishra, Learned Counsel for the Respondent No. 2 and Mr. Subodh Pandey, Learned Counsel for the Respondent No. 11. It is submitted by Mr. R.N. Singh, learned senior counsel for the Petitioners that the suits filed by the other land holders have been decreed and the State Government had considered the same but as far as the Petitioners are concerned the suit was dismissed because of its non-maintainability due to subsequent decision of the Apex Court and, therefore, to avoid any kind of discrimination this Court should quash the notifications issued under the provisions of the and award passed by the Land Acquisition Officer. It is also urged by him that initially the purpose for which the land was sought to be acquired was diverted for another purpose which is not a public purpose and such diversion is impermissible in law. It is submitted by the learned senior counsel that the Petitioners are not in possession and hence, their right should be protected.

9. Mr. Mukesh Agrawal, Learned Counsel for the State has contended that the Petitioners have approached this Court after a long lapse of time and, therefore, on this ground alone the writ petition should be dismissed. It is further urged by that the plea that the Petitioners were not aware of the award is not factually correct inasmuch as the Predecessor-in-interest of the Petitioners, Hariram had participated in the proceeding before the Land Acquisition Officer and thereafter before the reference Court.

10. Mr. Ajay Mishra, Learned Counsel appearing for the M.P. Housing Board has submitted that the Board has taken over the possession of the land and constructed number of Houses and there is the scheme for constructing the houses for weaker sections of the people. Providing houses to the weaker sections of the society is a public purpose. The Learned Counsel has also submitted that once an award has been passed the notification issued under the cannot be assailed.

11. To appreciate the rival submissions raised at the Bar, I have carefully perused the pleadings put forth in the writ petition. It is not in dispute that the notification under Section 4 read with Section 17 of thewas issued in the year 1962 in respect of land in question and the award was passed in the year 1963. On a scrutiny of the return filed by the Respondent No. 11 it is quite clear that the reference was made by the Land Acquisition Officer under Section 30 of thewhere Hariram, the owner of the land acceded to certain aspects. In what respect he conceded is of no significance but what is of significance is that he was aware of the proceeding. A stand has been taken in the writ petition that the Petitioners came to know about the land acquisition proceeding when there was disturbance of the possession by the M.P. Housing Board and accordingly they filed civil suit seeking declaration that the notification issued under the is null and void. To verify in the most categorical manner whether Hariram had participated in the land acquisition proceeding this Court on 27-9-2001 had passed the following order:

Having heard learned senior Advocate Shri R.N. Singh, for the Petitioners, Shri M. Bhatti, Advocate for Respondent No. 2, and Shri Kamal Patel, Advocate for Respondent No. 11, it is thought apposite that the file pertaining to the Land acquisition proceedings should be made available to this Court.

Accordingly, it is directed that the Land Acquisition Officer, Bhopal shall remain personally present along with record before this Court on 10th of October, 2001. Failure on his part shall be seriously viewed.

Shri R.S. Jha, learned Deputy Advocate General shall intimate the Land Acquisition Officer, Bhopal in this regard.

No construction shall take place in the suit land till 10th of October, 2001.

12. In pursuance of the aforesaid order the record was produced before this Court and on a scrutiny of the same it is quite perceptible that Hariram had appeared before the Land Acquisition Proceeding. Once Hariram had participated in the proceeding and award was passed in his presence, I am not inclined to accept the contention of Mr. Singh, learned senior counsel that the Petitioners were not aware of the land acquisition proceedings. The learned senior counsel has made an endeavour to take me through the award to show that Hariram had not participated in the said proceeding but the aforesaid submission is sans substance in view of the order recorded in the land acquisition proceeding and further the reference made by the land acquisition officer to the Civil Court wherein, as per return of the Respondent No. 11, Hariram appeared and conceded in favour of the certain Respondents. Thus the fact remains that the award was passed in presence of Hariram and once the award is passed the notification under the is unassailable. In this context I may profitably refer to the decision rendered in the case of Municipal Corporation, Ahmednagar and Anr. v. Shah Hyder Beig and Ors. : (2000) 2 SCC 48. In paragraph 17 of the said judgment the Apex Court held as under:

In any event after the award is passed, no writ petition can be filed challenging the acquisition notice or against any proceeding there under.

Mr. Singh, learned senior counsel laboured hard to distinguish the said decision on the ground that in the said case there was a belated approach but in the present case the Petitioners immediately coming to know about the proceeding assailed the same. The aforesaid submission looks quite attractive on first flush but pales into insignificance inasmuch as the Respondents have been able to prove that the owner, Hariram had participated in the proceeding before the land acquisition officer in the year 1963 and, therefore, the challenge cannot be made by the legal heirs of Hariram at this stage and hence, the ratio of the decision rendered in the case of Shah Hyder Beig (supra) would be squarely applicable. Thus I am of the considered view the writ petition does not deserve to be entertained at this belated time.

13. Ordinarily on the aforesaid ground alone I would have dismissed the writ petition but as other contentions have been raised by the learned senior counsel for the Petitioners I think it apposite to deal with the same for the sake of completeness. It is urged by Mr. Singh that the land was initially acquired for industrial housing colony of BHEL, workers and thereafter it could not have been handed over to the M.P. Housing Board. The aforesaid submission is totally devoid of merit inasmuch as the land acquired for a particular purpose can always be diverted to another public purpose. It is well settled in law that construction of houses for allotment of the same to various sections of the society is a public purpose and the land can be acquired for the same. The next aspect which has been highlighted by Mr. Singh that various other landholders Filed the suits and obtained the benefits as their lands have been released in pursuance of the judgment and decree passed by the Civil Court but the Petitioners have been discriminated because their suits were dismissed on the basis of the decision rendered by the Apex Court on a subsequent date. The aforesaid submission has a fallacy in it. The Apex Court in the case of Dhirendra Kumar and Ors. (supra) has held that no suit can be filed for challenging the validity of the notification of land acquisition. Thus, the proceeding initiated by the Petitioners is totally null and void. It cannot be said that the Petitioners were prosecuting the suit and, therefore, they should be given benefit because the proceeding initiated by the Petitioners is non est in law.

14. In the result, the writ petition, being sans substance, deserve to be dismissed and is hereby dismissed.

15. Ordinarily, I would have imposed exemplary costs as the Petitioners had built the case on the foundation that Hariram, on whose behalf, they claim their title, had no knowledge about the land acquisition proceeding which is totally incorrect but keeping in view the success in suits by other Plaintiffs and subsequent decision by the Apex Court in the case of Dhirendra Kumar and Ors. (supra), I restrain from doing so.