JUDGMENT Mr. Surya Kant, J. (Oral):- This order shall dispose of CWP Nos. 2903, 2253, 3589 and 3748 of 1990 as common questions of law and facts are involved in all the cases. For brevity, the facts are being extracted from CWP No. 2903 of 1990. 2. 125 petitioners along with their Welfare Association are residents of Naharpur Rupa, Tehsil & District Gurgaon. They seek quashing of notifications dated 30.01.1989 and 05.01.1990 [Annexures P-3 and P-5] issued under Sections 4 and 6 of the Land Acquisition Act, 1894, respectively whereby land of villages Jharsa, Naharpur Rupa and Khandsa, measuring about 600 acres was acquired for its development and utilization as Industrial/Commercial/ Transport area comprising Sector 33 and 34-Part at Gurgaon. 3. The short and foremost plea taken by the petitioners to assail the subject acquisition is that a residential colony known as ‘Hans Enclave’ has been set up on the acquired land of village Naharpur Rupa. The said residential colony comprises different sizes of plots ranging from 84 to 600 square yards. It is averred that ‘Hans Enclave’ is a fully developed urban locality with all the basic amenities including metaled roads, sewerage, electricity, water supply etc. and that there are hundreds of houses of ‘A’ class construction in the Hans Enclave, which have been built up after seeking prior permission of the Competent Authorities. The petitioners firstly purchased residential plots in Hans Enclave and most of them have later on constructed their houses. The details of size of plots along with description of land like Khasra No. etc. have been given in Annexure P1. Some of the petitioners have purchased the plots/houses from the original plot owners. Site Plan of Hans Enclave has also been placed on record. 4. The Land Acquisition Collector in his reply/affidavit dated 17.10.1990 has stated that some of the petitioners are not owners of the land as their names do not find mention in the revenue record. Some of them are said to have not filed objections under Section 5-A of the Act and their locus standi to impugn the acquisition is questioned. It is also maintained that the constructed portion of the locality was exempted from acquisition and the acquired portion comprises land which was found vacant at the time of issuance of Section 4 notification. 5. It is also maintained that the constructed portion of the locality was exempted from acquisition and the acquired portion comprises land which was found vacant at the time of issuance of Section 4 notification. 5. The petitioners in their replication have reiterated that they are owners of their respective plots which were purchased by them by way of registered sale deeds. They have explained that the Land Acquisition Collector is referring to Jamabandi for the year 1983-84, whereas they purchased the plots subsequently, hence their names do not find mention in that Jamabandi. The petitioners In Para No. 6 of their replication have referred to the policy decision taken by the respondents for the release of constructed portion from acquisition. 6. During the pendency of this writ petition, the petitioners have supplemented the pleadings and an affidavit dated 25.07.2011 has been filed with the following relevant averments:- “6. That during the pendency of the above noted writ petition in this Hon’ble Court the area of the colony Hans Enclave has been brought within the municipal limits of Municipal Corporation, Gurgaon. At present there are around 800 houses standing constructed in the colony Hans Enclave. The said houses have been constructed on small plots of land and there are several thousand residents in the colony Hans Enclave. There are schools functioning in the colony Hans Enclave. Photographs showing the present status of the colony Hans Enclave are attached herewith as ANNEXURE P-7. 7. That after coming within the municipal limits, the Municipal Corporation Gurgaon has proposed to the State Government for regularisation of the colony Hans Enclave. The petitioners are not aware what decision has been taken by the State Government on such proposal. 8. That the residents of the colony Hans Enclave have also been subjected to house tax after its inclusion with the municipal limits of Municipa l Corporation, Gurgaon . They have also obtained regular electricity connections, have ration cards and their names are in the voters lists also”. 7. To substantiate the above stated plea, photographs [P-7 Colly] have been appended to depict that Hans Enclave is a fully grown up locality. 8. The respondents have also filed an affidavit dated 26.08.2011 of Additional Director-cum-Deputy Secretary, Urban Estates Department, Haryana, Panchkula, in CWP No. 2253 of 1990 and Para No. 3 thereof refers to a report received from Administrator, HUDA, Gurgaon after spot inspection. 8. The respondents have also filed an affidavit dated 26.08.2011 of Additional Director-cum-Deputy Secretary, Urban Estates Department, Haryana, Panchkula, in CWP No. 2253 of 1990 and Para No. 3 thereof refers to a report received from Administrator, HUDA, Gurgaon after spot inspection. The Photocopy of said report reveals that most of the writ petitioners [in that case] have constructed fully or partially their respective plots. The Administrator, HUDA thus made the following remarks:- “CWP No. 2903 of 1990 [Ravinder Jain] Land of the petitioners is part of thickly built up unauthorized colony namely Hans Enclave and Rajiv Colony. This land falls in Sector 33, Gurgaon. It is pertinent to mention here that land/construction of individual petitioners is not identifiable because of thickly built up area”. 9. The State Counsel has also shown us the photographs taken by the State Government/HUDA Authorities at the time of site inspection on 21.08.2011. The photographs produced by the respondents also unfold the same story that Hans Enclave is a thickly populated residential colony which stands fully developed for all intent and purposes. There is no denial to the petitioners’ plea taken in the additional affidavit that Hans Enclave has been now included within the municipal area and its residents are being subjected to different types of municipal taxes/cess. It, however, appears that no formal decision to regularize the colony has been taken by the State Government. 10. Confronted with this factual scenario, we must refer to the Government policy dated 26.10.2007, relevant part whereof reads as under:- “After careful consideration of the facts and circumstances, the Government has felt the need to review the policy referred to above. The amended policy regarding release of land will be as under:- 1. Only those requests will be considered by the Government for release of land under Section 48(1) where objections under Section 5-A were filed in following cases:- a) Any request or application where structure has been constructed provided the structure existed prior to Section 4, is inhabited and is being used by the owner for his own residential purposes. b) Any factory or commercial establishment which existed prior to section 4 provided it was functional at the time of Section 4 and is also functional at the moment. c) Any religious institution or any building owned by community which is being used for community purposes. 2. b) Any factory or commercial establishment which existed prior to section 4 provided it was functional at the time of Section 4 and is also functional at the moment. c) Any religious institution or any building owned by community which is being used for community purposes. 2. That the Government may also consider release of land belonging to individual applicants involving self inhabited structures, factory or commercial establishment or community or religious buildings, where the owner has approached the Hon’ble High Court and has obtained stay dispossession/status quo or any restraint order. In such cases, the decision will be taken on the merits of each individual case keeping in view the benefit to the development agency in terms of providing linkages, services and in the interest of planned development. However, this clause will not be invoked for grant of licence for development of colonies. 3. Any land in respect of which an application under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 has been made by the owner prior to issuance of Section 6 for converting the land into a colony may also be considered for release subject to the condition that ownership of the land is prior to the notification under Section 4 of the Act. In case, individual land owner makes application for grant of licence in collaboration with the developer/colonizer, the collaboration agreements should be registered before the Registering Authority before issuance of Section 6 notification. This clause will be made applicable on the applications received after this policy has come into effect.” 11. The policy dated 26.10.2007 has been later on modified on 24.01.2011 and its revised version is to the following effect:- “1. Only those requests will be considered by the Government for release of land under Section 48[1] where objections under Section 5A were filed in following cases:- [a] Any request or application where structure has been constructed provided the structures existed prior to section 4, is inhabited and is being used by the owner for his own residential purposes. [b] Any factory or commercial establishment which existed prior to Section 4 provided it was functional at the time of Section 4 and is also functional at the moment. [c] Any religious institution or any building owned by community which is being used for community purposes; 2. [b] Any factory or commercial establishment which existed prior to Section 4 provided it was functional at the time of Section 4 and is also functional at the moment. [c] Any religious institution or any building owned by community which is being used for community purposes; 2. That the Government may also consider release of land belonging to individual applicants involving self inhabited structures, factory or commercial establishment or community or religious buildings where the owner has approached the Hon’ble High Court and has obtained stay dispossession/status-quo or any restraint order. In such cases, the decision will be taken on the merits of each individual case keeping in view the benefit to the development agency in terms of providing linkages, services and in the interest of planned development. However, this clause will not be invoked for grant of licence for development of colonies. 3. Any land in respect of which an application under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 has been made by the owner prior to the notification under Section 4 of the Act. In case, individual land owner makes application for grant of licence in collaboration with the developer/colonizer, the collaboration agreements should be registered before the Registering Authority before issuance of Section 6 notification. This clause will be made applicable on the applications received after this policy has come into effect. Provided that the Government may release any land on the grounds other than stated above under Section 48[1] of the Act under exceptionally justifiable circumstances for the reasons to be recorded in writing”. 12. The above stated policies have been held to be enforceable by the Hon’ble Supreme Court in Patashi Devi & Ors. Vs. State of Haryana & Ors.,[2012] 9 SCC, 503 observing as follows:- “19. Before this Court it has been pleaded that on the date of issuance of preliminary notification the appellant’s land was vacant, but this statement can not be relied upon for denying relief to her because no such averment was made in the counter-affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of the land on which construction had been raised prior to issuance of Section 4 notification. The appellant’s case is covered by that policy. The policy framed by the Government of Haryana clearly stipulates release of the land on which construction had been raised prior to issuance of Section 4 notification. The appellant’s case is covered by that policy. Therefore, her land ought to have been released was done in the case of M/s Sharad Farm and Holdings [P] Ltd....”. 13. Since the State Government itself has decided to release structures found in existence when Section 4 notification was issued and in the instant case, most of the constructions, partial or complete, were in existence at the time of acquisition and a specific objection to this effect was taken by the affected owners in their objections under Section 5-A, we see no reason to deny the benefit of above stated policies to the petitioners. 14. The distinction sought to be drawn by the respondents between the constructions raised before and after Section 4 notification has also lost significance in this case. We say so for the reasons that [i] it was for the State machinery to prevent unauthorized constructions, if any, raised during the pendency of the writ petitions; [ii] the authorities themselves have included the area within the municipal limits and have extended basic amenities like electricity, water supply, roads etc.; [iii] regularisation/development charges, if any, required to be levied on the petitioners under some Statute can still be levied and recovered from them in accordance with law after exemption from acquisition; [iv] dispossession of the petitioners was stayed by this Court in the year 1990 and they have been allowed to enjoy their properties during this long span; and [v] the petitioners apparently do not belong to different section of society and their small dwelling units appear to be the only social shelter of their families. Thus, keeping in view the legal and equitable considerations both, we are of the considered view that the structures along with proportionate open space needed for the adequate enjoyment of the dwelling units deserve to be exempted from acquisition. Ordered accordingly. 14. For the reasons aforementioned, these writ petitions are allowed and the impugned notifications so far as they pertain to the area where the petitioners have constructed their houses are hereby quashed. 15. Disposed of. Dasti. ——————— Salim s/o Qadar Bux... v. Munir Khan s/o Rahim Khan...