Per MARLAPALLE B.H., J.:---As against an amount of Rs. 6,15,978/- (Rupees six lakhs fifteen thousand nine hundred seventy-eight only) awarded by the Land Acquisition Officer as compensation for the land acquired under the Land Acquisition Act, 1894 (for short the Act) for the Maharashtra Tourism Development Corporation, the land owner walked away with an amount or Rs. 4,15,72,035/- (Rupees Four Crores Fifteen Lakhs Seventy-Two Thousand Thirty-Five only) on account of the Award passed in L.A.R. No. 945 of 1996 and an order in Regular Darkhast No. 142 of 2002, as noted by us in our interlocutory order dated 13th February, 2003 which was carried before the Apex Court and the S.L.P. (Civil) No. 3774 of 2003 came to be dismissed as withdrawn on 10th of March, 2003. In Regular Darkhast No. 142 of 2002 he was directed to be paid an additional amount of Rs. 2,32,60,845/- by order dated 25th April, 2002 and this order has been stayed in Writ Petition No. 4553 of 2002 by this Court. 2. These appeals have brought in question the legality of the Award passed by the learned Joint Civil Judge, Senior Division at Aurangabad on 5th of October, 1999. The Land Acquisition Officer had fixed the market value at the rate of Rs. 300/- per acre or Rs. 30,000/- per hectare (Rs. 12,000/- per acre) for the entire subject land and the Reference Court classified the said land in three different categories and fixed the market value at the rate of Rs. 11.82 ps. (Rupees Eleven and Paise Eighty Two only) per square foot for 10 hectares and 95 ares, Rs. 2,000/- per are 7 hectares and 24 ares and Rs. 1,200/- per are for 2 hectares and 73 ares of land. 3. The Maharashtra Tourism Development Corporation is fully owned by the Government of Maharashtra and it ventured to develop the tourism industry all over the State. In the proximity of the Ajintha and Ellora caves it proposed to come up with tourism development projects and for the same it needed land in the nearly villages. The Director of the said Corporation, vide his letter dated 12th of May, 1989, approached the Collector, Aurangabad for acquisition of about 235 hectares of land from village Fardapur, Ajintha and Thane in Soyegaon Taluka of Aurangabad District, based on the survey report already prepared. The Director of the said Corporation, vide his letter dated 12th of May, 1989, approached the Collector, Aurangabad for acquisition of about 235 hectares of land from village Fardapur, Ajintha and Thane in Soyegaon Taluka of Aurangabad District, based on the survey report already prepared. The notification under section 4(1) of the Act for acquisition of 232 hectares and 20 ares land from village Fardapur and Thane came to be published in the Maharashtra Government Gazette dated 14th February, 1991 and prior to the said date it was published in the local news papers on 26th and 30th April, 1990. Declaration under section 6 of the Act was published in the Government Gazette on 12th September, 1991 and in the local news papers it was published on 3rd August, 1991. The Land Acquisition Officer passed his final Award on 22nd July, 1993. So far as the village Fardapur is concerned, a total of 198 hectares and 68 ares land and from village Thana 33 hectares and 52 ares land was under acquisition. These appeals concern the following land from village Fardapur. Gat No. ... Total area. 67 ... 2 Hec. 73 Ares. 68 ... 5 Hec. 99 Ares. 69 ... 7 Hec. 44 Ares. 93 ... 4 Hec. 76 Ares. 4. The compensation determined by the Land Acquisition Officer was received by the claimant on 16th September, 1993 under protest and an application under section 18 came to be submitted on or about 20th October, 1993. The same was referred to the Court below for adjudication. On behalf of the Collector, Aurangabad written statement was filed and a prayer for enhanced compensation at the rate of Rs. 20,000/- per are for the land in Gat Nos. 68, 69 and 93 and Rs. 5,000/- per are for the land in Gat No. 67 was opposed. In support of the claim, the claimant himself and one more witness by name Shri Majid Khan s/o. Ajmer Khan were examined in support of the sale instance at Exhibit 19 in respect of a Gaothan plot admeasuring 14 x 29. The Reference Court accepted the plea of the claimant that land admeasuring 10 hectares 95 ares from Survey Nos. In support of the claim, the claimant himself and one more witness by name Shri Majid Khan s/o. Ajmer Khan were examined in support of the sale instance at Exhibit 19 in respect of a Gaothan plot admeasuring 14 x 29. The Reference Court accepted the plea of the claimant that land admeasuring 10 hectares 95 ares from Survey Nos. 68, 69 and 93 was non-agriculture on the basis of the documents at Exhibits 17 and 18 and the balance land in the said three survey numbers admeasured 7 hectares and 24 ares was treated to be adjacent to the non-agricultural land and the land admeasuring 2 hectares 73 ares from Gat No. 67 was treated to be agricultural land with N.A. potentiality. 5. PROFILE OF THE CLAIMANT: The claimant Shri Subhash s/o. Laxman Patwardhan claims to be an industrialist from Panvel and he ventured to purchase agricultural land located in Gat Nos. 67, 68 and 69 to the extent shown herein above at the rate of Rs. 4,000/- to Rs. 5,000/- per acre or Rs. 10,000/- to Rs. 12,500/- per hectare sometimes in May, 1982. Village Fardapur is located at a distance of more than 450 kms. from Panvel, 100 kms. away from Aurangabad and he claimed that the said land was purchased to start food industry of Banana powder for which he had formed a company by name M/s. Wardhman Nutritions and Chemical Private Limited. Land in Gat No. 67 to the extent of 2 hectares 73 ares was purchased from the ownership of Abdul Majid s/o Abdul Raheman for an amount of Rs. 15,000/- vide sale deed dated 11th May, 1987, land in Gat No. 68 to the extent of 5 hectares 99 ares was purchased from Smt. Salimabi w/o Abdul Majid and Abdul Majid s/o. Abdul Raheman for an amount of Rs. 20,950/- vide sale deed dated 17th May, 1982, whereas land in Gat No. 69 admeasuring 7 hectares and 44 ares was purchased from Majid s/o. Ajmer Khan for an amount of Rs. 37,200/- vide sale deed dated 17th May, 1982. So far as the land in Gat No. 93 is concerned one Shri Vilas Keshav Dixit had purchased 2 hectares and 5 ares from Shri Yusuf Khan s/o. Abdul Khan vide sale deed dated 10th September, 1982. 37,200/- vide sale deed dated 17th May, 1982. So far as the land in Gat No. 93 is concerned one Shri Vilas Keshav Dixit had purchased 2 hectares and 5 ares from Shri Yusuf Khan s/o. Abdul Khan vide sale deed dated 10th September, 1982. M/s. Wardhman Hotels Private Limited, through the present claimant, purchased the said land for an amount of Rs. 15,000/- vide sale deed dated 5th May, 1987. Additional land admeasuring 2 hectares and 71 ares was purchased by M/s. Wardhman Hotels Private Limited through the present claimant from Yusuf Khan s/o. Abdul Khan for an amount of Rs. 30,375/- vide sale deed dated 11th May, 1987. Mutation entries were accordingly carried out. While in the witness box before the Reference Court the claimant, on oath, stated that his occupation was business and if that be so he could not have purchased the agricultural land in Gat Nos. 67 to 69 without prior permission in writing from the Collector in view of the provisions of section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Similarly, land in Gat No. 93 could not have been purchased by M/s. Wardhman Hotels Private Limited unless such an advance permission was obtained from the Collector. It appears that the Revenue Officers did not pay attention to this aspect and they mutated the claimants name in the 7/12 extract. The entire land of 40 acres from three survey numbers was purchased in his individual name. He was aware of the acquisition much before the section 4(1) notification was issued by the Land Acquisition Officer. He had submitted a letter on 11th December, 1989 to the Manager of the Maharashtra Tourism Development Corporation stating that he was the owner of the land located in Gat Nos. 67, 68, 69 and 93 of village Fardapur to the extent indicated above and he had come to know about the proposed acquisition. He wanted the corporation not to deal with any one else if the land standing in his name was sought to be acquired and all the correspondence was requested to be addressed to him. On 14th December, 1989 he had personally called on the Manager of the Maharashtra Tourism Development Corporation, further to the said letter. Though the Land Acquisition Officer passed the final Award on 22nd July, 1993 (Exhibit-14), the claimant was successful in receiving an amount of Rs. On 14th December, 1989 he had personally called on the Manager of the Maharashtra Tourism Development Corporation, further to the said letter. Though the Land Acquisition Officer passed the final Award on 22nd July, 1993 (Exhibit-14), the claimant was successful in receiving an amount of Rs. 2,09,200/- purportedly 80% amount in advance on 4th September, 1991 by executing an agreement on the same day with the Special Land Acquisition Officer and he signed a receipt for handing over possession along with the agreement notwithstanding the fact that the Land Acquisition Officer had not invoked his powers under section 17 of the Act. He claims that he formed another company called M/s. Wardhman Tours and Transport Private Limited and M/s. Wardhaman Hotels Private Limited for starting business by putting up a three star hotel on Gat No. 93 and, therefore, land from the said Gat number admeasuring 4 hectares and 76 ares was purchased in the name of M/s. Wardhman Hotels Private Limited. While in the witness box, before the Reference Court, he stated that he had the copies of registered sale deeds in respect of these lands and would submit as and when called upon. The learned Counsel appearing for him before us agreed to submit the copies of the sale deeds duly registered and ultimately submitted the copies of the sale deeds in respect of the land in Gat No. 93 only. These sale deeds are not registered and it is not known whether the sale deeds in respect of the land in Gat Nos. 67 to 69 which he claims to have purchased, have been registered though the mutation entries have been effected in his name and in the name of M/s. Wardhman Hotels Private Limited, as the case may be. He is a person who had very close and influential contacts not only with the officials of the Maharashtra Tourism Development Corporation but also with the Revenue Officers like Talathi, Tahsildar and others from the Collectorate at Aurangabad. He submitted a single application under section 18 of the Act in respect of the lands located in Gat Nos. He is a person who had very close and influential contacts not only with the officials of the Maharashtra Tourism Development Corporation but also with the Revenue Officers like Talathi, Tahsildar and others from the Collectorate at Aurangabad. He submitted a single application under section 18 of the Act in respect of the lands located in Gat Nos. 67 to 69 and Gat No. 93, though the land admeasuring 4 hectares 76 ares and from Gat No. 93 was purportedly owned by M/s. Wardhman Hotels Private Limited, a company incorporated under the Companies Act, 1956 on 22nd February, 1983 with its registered office at Panvel in Raigad district and no separate application was submitted, at any time, under section 18 for or on behalf of the said company in respect of the land in Gat No. 93 and without verifying the respective ownership the Collector referred the said application to the Court below. 6. Part 1-A has been inserted by Bombay 20 of 1945 containing section 3-A and 3-B in the Act. Section 3-A provides for preliminary survey of the lands likely to be needed for any public purpose and such preliminary survey is undertaken much before a decision is taken to acquire the land and to be followed by the notification under section 4 of the Act. The land owners get an advance intimation of the likely acquisition as soon as the preliminary survey is undertaken under section 3-A of the Act and this provides an opportunity for them to take adequate steps for improvement of the land or its usage so as to enhance its market value much before the notification under section 4(1) of the Act is issued. This is a common feature noticed in most of the land acquisition cases in the State of Maharashtra and in the present case the claimant had an access to the Government policies much in advance before the said policies were crystalised in terms of decisions. 7. Shri. Choudhari, the learned A.P.P. submitted before us that the Reference Court fell in error on all counts. The purported N.A. permissions at Exhibits 17 and 18 could not be the sole evidence for holding that land admeasuring 10 hectares and 95 ares from Gat Nos. 68, 69 and 93 was non-agriculture. 7. Shri. Choudhari, the learned A.P.P. submitted before us that the Reference Court fell in error on all counts. The purported N.A. permissions at Exhibits 17 and 18 could not be the sole evidence for holding that land admeasuring 10 hectares and 95 ares from Gat Nos. 68, 69 and 93 was non-agriculture. Even if it was presumed that the said N.A. permission was issued, Clause 10 therein clearly stated that if the conversion of the land was not made within one year, the N.A. permission would automatically stand cancelled. The provisions of section 44 of the Maharashtra Land Revenue Code (the Code, for short) and Rule 4 of the Maharashtra Revenue (Conversion of Use of Land and Non-agricultural Land) Rules, 1969 (the Conversion Rules, for short) were referred to contending that the land was required to be put to the said non-agricultural use within a period of one year and on failure to do so it would nullify such a permission automatically. The classification made in three categories of the subject land, by the Reference Court, is unjustified and without support of any evidence more so when the 7/12 extracts (Exhibits 39 to 41) clearly indicated that the subject land was follow agricultural land and no development for the intended use of a factory or a hotel was ever undertaken at any time before the section 4 notification was issued. On the land in Gat No. 68 there was some structure like an out house for which compensation has been separately paid and that itself would not indicate that the land was put to non-agricultural use pursuant to the N.A. permission granted sometimes in November, 1982. When a large tract of land was acquired it was not permissible in law to fix its market value on per square foot basis. There was no development of any kind even within a distance of more than one Kilometer from the subject land and merely because some land was adjacent to the Aurangabad-Jalgaon high way that itself could not be a valid ground to hold the land with N.A. potentiality. Neither there was ay evidence of residential locality nor of any commercial activities within a distance of more than a kilometer from the subject land and though the land in Gat Nos. Neither there was ay evidence of residential locality nor of any commercial activities within a distance of more than a kilometer from the subject land and though the land in Gat Nos. 67 to 69 was in the proximity of the high way, it was beyond a distance of about five kilometres from the Ajintha caves. Under such circumstances, the market value fixed by the Land Acquisition Officer as agricultural land was justified and as some land in the entire acquisition covered by the common notification under section 4(1) of the Act was admeasuring in ares, the Land Acquisition Officer fixed the market value at Rs. 300/- per are for the first category and Rs. 35,000/- per are for second category i.e. Rs. 30,000/- and Rs. 35,000/- per hectares, respectively. The sole sale instance at Exhibit 19 was a got up transaction, which was unreliable, it was not comparable and it was in respect of a small plot of land in the Goathan area admeasuring 14 x 29. This sale instance was a created sale instance by the claimant and the subject land was given on Qabala basis to the vendor i.e. P.W. 2 and he had no authority to dispose it off. In any case, the so called purchaser Dr. Rajput has nothing to do with the said plot and some one else has constructed a shop which has housed an S.T.D. booth as at present. On the other hand, the Land Acquisition Officer had compared the sale instances of comparable agricultural land and had rightly fixed the market value. Shri Choudhari also relied upon the Award passed in L.A.R. No. 920 of 1996 wherein the Reference Court has fixed the market value of the agricultural land at Rs. 420/- per are and this land is from the same common acquisition made from village Fardapur for the Maharashtra Tourism Development Corporation project. This market value at Rs. 420/- per are has been accepted by the State Government in other connected land references by filing a purshis before the Reference Court. While fixing the market value at Rs. 420/- per are, the Reference Court in L.A.R. No. 920 of 1996 had considered the sale instance of an agricultural land in Gat No. 61 of village Fardapur which is located at a very close distance to the claimants land in Gat No. 67. While fixing the market value at Rs. 420/- per are, the Reference Court in L.A.R. No. 920 of 1996 had considered the sale instance of an agricultural land in Gat No. 61 of village Fardapur which is located at a very close distance to the claimants land in Gat No. 67. It was, therefore, urged before us that the claimant is not entitled for anything more than Rs. 420/- per are as the market value for his entire land acquired from Gat Nos. 67 to 69. Shri Choudhari also referred to the depositions of Shri Bansode, the then Land Acquisition Officer, and submitted that the market value recommended in the draft Award could not have been taken as a basis to fix the same at Rs. 2,000/- per are for the agricultural land with N.A. potentiality as has been done by the Reference Court. He referred to the proviso to section 11(1) read with section 12 of the Act and submitted that the final award was passed with the approval of the State Government and the market value fixed therein was to be considered rather than being swayed by the draft award dated 22nd June, 1992. 8. Shri. Kale, the learned Counsel appearing for the claimant submitted that though the notification under section 4(1) was published in the Government Gazette on 14th February, 1991 its date of publication was required to be treated as 29th June, 1990. He emphasised that on receiving the advance compensation at about 80% of the Award amount, the possession of the subject land was handed over on 4th September, 1991 and the claimant was entitled for 12% component from 4th September, 1991 and not from the date of the award i.e. 23rd July, 1993 and the same date of possession was also required to be taken into consideration for payment of interest under section 28 of the Act. He has supported the Award passed by Reference Court, including the classification of the subject land made in three categories. The Reference Court was justified in accepting the evidence at Exhibits 17 and 18 to hold that land admeasuring 10 hectares 95 ares from Gat Nos. 68, 69 and 93 was non-agricultural land and the market value determined at Rs. He has supported the Award passed by Reference Court, including the classification of the subject land made in three categories. The Reference Court was justified in accepting the evidence at Exhibits 17 and 18 to hold that land admeasuring 10 hectares 95 ares from Gat Nos. 68, 69 and 93 was non-agricultural land and the market value determined at Rs. 11.82 P. per square foot on the basis of the sale instance at Exhibit 19 did not call for any interference as it was a comparable and genuine sale instance in respect of plot of land in village Fardapur itself. The claimant has referred to the draft Award submitted by the Land Acquisition Officer on 22nd June, 1992 and the reply thereto received from the Desk Officer in the department of Revenue and Forest, Government of Maharashtra (Exhibit-59). He contended that when the Land Acquisition Officer himself has recommended the market value at Rs. 2,000/- per are for non-agricultural land in the draft Award, there was no reason for the State Government to interfere with the same. The Land Acquisition Officer did not apply his mind and went by the directions issued from Mantralaya and, therefore, the Reference Court has rightly accepted the market value for the land with N.A. potential and adjacent to the non-agricultural land at Rs. 2,000/- per are. He relied upon the following decisions and submitted that the Award made by the Reference Court was required to be confirmed by us : (i) (Smt. Kaushalay Devi Bogra and others v. The Land Acquisition Officer, Aurangabad and another)1, A.I.R. 1984 S.C. 892; (ii) (Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another)2, A.I.R. 1988 S.C. 1652; (iii) (Land Acquisition Officer, Revenue Divisional Officer, Chittor v. L. Kamalamma and others)3, 1998(2) S.C.C. 385 : A.I.R. 1998 S.C. 781. He has also invited our attention to a Full Bench decision of the Karnataka High Court in the case of (The Special Land Acquisition Officer (NHW) Dharward v. Kallangonda and others etc. He has also invited our attention to a Full Bench decision of the Karnataka High Court in the case of (The Special Land Acquisition Officer (NHW) Dharward v. Kallangonda and others etc. etc.)4, 1993 LAC 700 in which the High Court held that a claimant was entitled to move the Court for enhanced compensation under section 18 of the Act even though he had not made any such claim before the Land Acquisition Officer and he is under no obligation to explain or support his conduct before the Land Acquisition Officer in not making a claim or in making a lesser claim. This proposition in law can not be disputed and it is nobodys case that the claimant in the instant case had not made an application for higher compensation to the Land Acquisition Officer in response to the notice received under section 9(3), (4) of the Act. He also referred to the decision in the case of Chimanla Hargovinddas (supra) and Land Acquisition Officer, Revenue Divisional Officer, Chittor v. Smt. L. Kamalamma (dead) by L.Rs. and others, 1998(2) S.C.C. 385 : A.I.R. 1998 S.C. 781 in support of his contentions that the Reference Court had relied upon the comparable sale instance at Exhibit-19 and following the said ratio the Reference Court had rightly granted deduction to the tune of 40%. The sale instance at Exhibit-19 though of a small plot of land, was rightly accepted by the Reference Court and this is supported by the decision in the case of (P. Ram Reddy etc. v. Land Acquisition Officer, Hyderabad)5, 1995(2) S.C.C. 305 . He also referred to the decision in the case of (Hasanali Walimchand (dead) by L.Rs. v. State of Maharashtra)6, 1998(3) Bom.C.R. (S.C.)615 : A.I.R. 1998 S.C. 700 in support of his contention that the market value of the sale instance in respect of a small plot can be accepted by deducting upto 50% of the area for development. The documents which were not produced before the Reference Court in support of the Award passed by the Land Acquisition Officer could not be relied upon and the present appeals were required to be considered on the basis of the pleadings made therein, urged the learned Counsel. N.A. Permission and N.A. Land: 9. We shall first deal with the findings recorded by the Reference Court regarding non-agricultural land. N.A. Permission and N.A. Land: 9. We shall first deal with the findings recorded by the Reference Court regarding non-agricultural land. Land admeasuring 10 hectares and 95 ares, as shown below was held to be non-agricultural by it. -------------------------------------------------------------------------------------------- Gat No. Total area N.A. area Agricultural area. Hec-Ares Hec-Ares. Hec- Ares. -------------------------------------------------------------------------------------------- 68 05-99 02-46 03-53 69 07-44 06-44 01-00 93 04-76 02-05 02-71 -------------------------------------------------------------------------------------------- Total 18-19 10-95 07-24 -------------------------------------------------------------------------------------------- These findings are solely based on the N.A. permissions granted at Exhibits-17 and 18. Exhibit 17 is N.A. order dated 11th November, 1982 issued in the name of Shri Subhash Laxman Patwardhan in response to his application dated 22nd October, 1982 and in respect of the land admeasuring 2 hectares 26 ares from Gat No. 68 and 6 hectares 44 ares from Gat No. 69. Whereas, Exhibit is the N.A. order dated 11th November, 1982 in favour of Shri Vilas Keshav Dixit in response to his application dated 22nd October, 1982 and in respect of land admeasuring 2 hectares 5 ares from Gat No. 93. The non-agricultural purpose shown in the first N.A. order is of factory, hotel and residence whereas in the second order the N.A. purpose shown is Wardhman Hotel and Restaurant. Clause 10 of the said orders reads thus: ""That the grantee shall commence the N.A. use of the land within the period of one year from the date of this order unless the period is extended from time to time failing which the permission shall be deemed to have been cancelled."" 10. M/s. Wardhman Hotels Private Limited came to be incorporated on 22nd February, 1983 and the said Shri Vilas Dixit had no connection with the said company at any point of time. The subscribers for the incorporation of the said company were Shri Subhash Laxman Patwardhan and Smt. Anjaili Subhash Patwardhan. It is not known how Shri Vilas Dixit obtained N.A. permission for Wardhman Hotels Private Limited when the subject land admeasuring 2 hectares and 5 ares from Gat No. 93 was purportedly purchased by him vide the registered sale deed dated 10th September, 1982. This land was purchased by M/s. Wardhman Hotels Private Limited subsequently vide sale deed dated 9th September, 1987 and there is no evidence that the said sale deed was registered under the Registration Act, 1908. This land was purchased by M/s. Wardhman Hotels Private Limited subsequently vide sale deed dated 9th September, 1987 and there is no evidence that the said sale deed was registered under the Registration Act, 1908. The land admeasuring 2 hectares and 5 ares for which the N.A. permission was granted, stood in the name of Shri. Vilas Dixit for a period of four years and he had not undertaken any development, leave alone building a hotel. Even after it was purportedly sold to M/s. Wardhman Hotels Private Limited the same company did not take any steps for developing any non-agricultural activity including a hotel, restaurant or a factory. Similarly, though the land admeasuring 2 hectares and 46 ares from Gat No. 68 and 6 hectares 44 ares from Gat No. 69 was covered by the N.A. order at Exhibit-17, there was no evidence brought before the Reference Court to show that any N.A. activity was undertaken on the said land till its possession was handed over on 4th September, 1991. Some structure like a farm house was standing on the land in Gat No. 68 for which an amount of Rs. 1,73,828/- came to be paid by the Land Acquisition Officer towards the loss of the said structure while passing his Award dated 23rd July, 1993. That structure of a farm house cannot be an evidence to hold that the entire land of 2 hectares and 46 ares in Gat No. 68 was put to non-agricultural use. Land admeasuring 6 hectares 44 ares in Gat No. 69, which was covered by the N.A. permission at Exhibit-17 also remained as fallow agricultural land along with the land in Gat Nos. 68 and 93. The 7/12 extracts, brought on record, in respect of these three lands indicates that in the agricultural year 1982-83 and 1983-84 some crops were harvested and thereafter they remained fallow by the choice of the owners. The claimant stated in his depositions before the Reference Court, as under: ""........ The N.A. permission is automatically cancelled if not renewed as per Clause No. 10 of N.A. certificate. It is true to say that N.A. permission is automatically cancelled if the land is not used for any purpose. The claimant stated in his depositions before the Reference Court, as under: ""........ The N.A. permission is automatically cancelled if not renewed as per Clause No. 10 of N.A. certificate. It is true to say that N.A. permission is automatically cancelled if the land is not used for any purpose. I have neither constructed premises of hotel nor started business of hotel as a dispute in between me and my partner had arisen, after construction work was completed up to plinth level."" The land being in the name of a private company there was no question of a partner coming into the proposed business of the hotel and the claimant being the Managing Director of the company was fully aware of the reprecussions of Clause 10 of the said N.A. order. He admitted that there was no construction activity of the proposed hotel except some construction up to the plinth level in Gat No. 93 and an out house on Gat No. 68 which was held to be illegal by the Reference Court. 11. Section 44 of the M.L.R. Code deals with the procedure for N.A. conversion. An application is required to be made under sub-section (1) to the Collector and it is required to be acknowledged under sub-section (2). Sub-section (3) is a deeming provision if the Collector fails to inform the applicant of his decision within 90 days from the date of acknowledgment of the application and the N.A. permission would be deemed to have been granted but subject to any conditions prescribed in the Rules made by the State Government in respect of such user. Clause (c) of sub-section (2) states that the Collector may, after inquiry, and on such terms and conditions grant the permission subject to any Rules made in this behalf by the State Government. Sub-section (6) states that when the land is permitted to be used for non-agricultural purpose a Sanad shall be granted to the holder thereof in the form prescribed under the Rules. Admittedly no such Sanad has been issued either in favour of the claimant or Shri Dixit or M/s. Wardhman Hotels Private Limited till the possession was taken over by the Land Acquisition Officer. Rule 4 of the Conversion Rules, 1969 deals with the conditions which govern the N.A. permission. Admittedly no such Sanad has been issued either in favour of the claimant or Shri Dixit or M/s. Wardhman Hotels Private Limited till the possession was taken over by the Land Acquisition Officer. Rule 4 of the Conversion Rules, 1969 deals with the conditions which govern the N.A. permission. Clause (c) of Rule 4(1) states that the applicant shall commence the non-agricultural use applied for within one year from the date of the order made by the Collector in that behalf, failing which, unless the said period is extended by the Collector from time to time, the permission granted shall be deemed to have lapsed. There is no dispute that the Collector had not granted any extension in favour of the applicant or M/s. Wardhman Hotels Private Limited, at any time. Clause 10 of the N.A. permissions at Exhibits-17 and 18 was in pari materia with Rule 4(1)(c) of the N.A. Rules, 1969 and, therefore, by the operation of section 44 of the M.L.R. Code and Rule 4(1)(c) of the N.A. Rules, 1969, the N.A. permission at Exhibits-17 and 18 had lapsed within one year from its grant as there was no extension granted by the Collector, Aurangabad at any time. 12. In addition, it has been, by a catena of decisions, held that such N.A. permission is not sufficient to hold that the agricultural land converted to non-agriculture is required to be treated as such unless the evidence on record showed that such N.A. developments had taken place pursuant to the said permission. In the case of (Smt. Kamalabai Jogeshwar Joshi and others v. State of Maharashtra and others)7, A.I.R. 1996 S.C. 981, N.A. permission was granted to the entire land admeasuring 62.5 acres located within the municipal limits and yet the land remained to be agricultural land. The Supreme Court did not agree to fix its market value on the basis of the sale deeds which related to small extends of agricultural lands purchased on square foot basis and the market value was fixed at the rate of Rs. 33,000/- per Acre. In the case of (State of Maharashtra and others v. Digambar Bhimashankar Tandale and others)8, 1996(2) S.C.C. 583 the claimants land admeasuring 12.50 acres from the municipal limits and converted for non-agricultural purpose was acquired for the extension of the thermal power station. The Reference Court had awarded compensation at the rate of Rs. 33,000/- per Acre. In the case of (State of Maharashtra and others v. Digambar Bhimashankar Tandale and others)8, 1996(2) S.C.C. 583 the claimants land admeasuring 12.50 acres from the municipal limits and converted for non-agricultural purpose was acquired for the extension of the thermal power station. The Reference Court had awarded compensation at the rate of Rs. 5/- per square foot and on appeal this Court, while confirming the said determination, reduced 1/3rd of the amount towards development charges. In appeal, the Apex Court did not agree with the view taken by this Court as well as the Reference Court. It referred to the evidence regarding conversion to non-agricultural purpose and noted that on the date of the notification there was no development in that area and the oral evidence indicated that up to a distance of 3/4 Kms. there did not appear any development except some illegal constructions in the subject land. The Supreme Court held that as on the date of notification there was no potential value of the land though converted into non-agricultural land and the determination of the compensation on the basis of the potential value was illegal. The Supreme Court fixed the market value at Rs. 40,000/- per acre. 13. For the reasons stated hereinabove, we, hold that the Reference Court committed a gross error in holding that the land to the extent of 10 hectares and 95 ares from Gat Nos. 68, 69 and 93 was non-agricultural land and the compensation was required to be paid on that basis. Common Application For Enhancement: 14. It is apparent, on the face of the record, as placed before the Reference Court, that the subject land in Gat Nos. 67, 68 and 69 was shown to be in the ownership of Shri. Subhash Laxman Patwardhan i.e. the claimant whereas land admeasuring 4 hectares and 76 ares from Gat No. 93 was shown to be in the ownership of M/s. Wardhman Hotels Private Limited. The application made for enhancement under section 18 of the Act and the claim statement submitted before the Reference Court was common for all the four lands when there was no common ownership. The application made for enhancement under section 18 of the Act and the claim statement submitted before the Reference Court was common for all the four lands when there was no common ownership. It was necessary to have a separate application made by M/s. Wardhman Hotels Private Limited through its Managing Director or any other competent officer for enhanced compensation claim in respect of the land admeasuring 4 hectares and 76 ares from Gat No. 93 and failure to do so will result in no application having been made for enhancement in respect of the said land. The application that was referred by the Collector to the Court below is, therefore, required to be read and accepted, at the most, for the lands in Gat Nos. 67, 68 and 69. During the course of hearing when a question was put to the claimant, who was personally present in the Court, regarding any separate application having been made in the name of the said company, the reply was in the negative. This defect goes to the root of the reference application so far as the enhancement claim in respect of the subject land in Gat No. 93 is concerned and it is fatal to the same. We, therefore, hold that there was no application made for enhancement of compensation in respect of the land admeasuring 4 hectares 76 ares from Gat No. 93 by its owners i.e. M/s. Wardhman Hotels Private Limited and the common application decided by the Reference Court is required to be considered only in respect of the subject lands in Survey Nos. 67, 68 and 69. We proceed accordingly. Classification of The Lands: 15. The Reference Court classified the lands in Gat Nos. 67, 68 and 69 in three categories viz. (i) non-agricultural land, (ii) agricultural land having non-agricultural potentiality and (iii) pure agricultural land having non-agricultural potentiality. So far as the first category is concerned, we have held that there was no land which fell in the non-agricultural category. It is difficult to make out the difference between the remaining two categories viz. agricultural land having non-agricultural potentiality and pure agricultural land having non-agricultural potentiality. It appears that the learned Judge of the Reference Court was trying to distinguish between agricultural land and pure agricultural land. It is difficult to make out the difference between the remaining two categories viz. agricultural land having non-agricultural potentiality and pure agricultural land having non-agricultural potentiality. It appears that the learned Judge of the Reference Court was trying to distinguish between agricultural land and pure agricultural land. As noted earlier, the 7/12 extracts brought on record in respect of these three lands indicated that for some period, after they were alienated to the claimant, agricultural activity was continued initially and thereafter it was allowed to remain as fallow land. If the owner, by his choice, did not cultivate the land, there cannot be a distinction as agricultural land and pure agricultural land. The Land Acquisition Officer, on the other hand, had classified the entire land in Group-I on the basis of the revenue assessment. It is true that part of the land in Gat Nos. 68 and 69 is adjacent to the road (State Highway) and the land in Gat No. 67 is behind these two Gat numbers and, thus, away from the road. There may be, therefore, a justification in holding that the rate for the agricultural land located in Gat Nos. 68 and 69 could be difference from that of the land in Gat No. 67 on the basis of the belting system. But, there cannot be a classification as agricultural land having non-agricultural potentiality and pure agricultural land having non-agricultural potentiality in the instant case. The categorisation so made by the Reference Court is unsustainable and hence discarded. Sale Instance at Exhibit-19: 16. In support of the said document, which was the sole basis for fixing the market value for non-agricultural land at Rs. 11.82 Ps. per square foot, P.W. 2 i.e. Majid Khan s/o. Ajmer Khan has been examined. He admitted that it was a sale instance in respect of open plot admeasuring 14 x 29 ft. from Gram Panchayat House No. 487 in village Fardapur and it was sold over to one Dr. Jabarsing s/o. Madansing Rajput on 24th January, 1990 for an amount of Rs. 8,000/-. This witness was the owner of the entire land in Gat No. 69 and he had sold the same admeasuring 7 hectares 24 ares to the claimant by sale deed dated 17th of May, 1982 for an amount of Rs. 37,200/-. Jabarsing s/o. Madansing Rajput on 24th January, 1990 for an amount of Rs. 8,000/-. This witness was the owner of the entire land in Gat No. 69 and he had sold the same admeasuring 7 hectares 24 ares to the claimant by sale deed dated 17th of May, 1982 for an amount of Rs. 37,200/-. The claimant was aware of the proposed project of Tourism Development by the Maharashtra Tourism Development Corporation and he had been approaching the officials of the said Corporation much before the section 4 notification was issued. He had submitted a letter on 11th December, 1989 and again met Shri Erande (D.W. 1) and clearly indicated that he was aware that the subject land was sought to be acquired. We have no hesitation in our mind, taking into consideration the attending circumstances, that the sale instance at Exhibit-19 was a got up sale transaction solely prepared for inflating the land value after it would be acquired by the Collector, Aurangabad. It was not, in any case, a comparable sale instance and by a catena of decisions it has been held that such a small plot transaction admeasuring 14 x 29 could not be accepted to be reliable and comparable sale instance when agricultural land to the extent of more than 40 acres was acquired from the claimant and in all 232 hectares 20 ares was acquired. Notwithstanding these observations, the sale instance at Exhibit-19 is irrelevant as we have held that there was no land which could be accepted to be non-agricultural from the claimants holdings and it can not be relied upon to fix the market value of the subject balance land which could be categorised as agricultural land located adjacent to the high way and some of it located away from the high way. 17. In the case of State of Maharashtra and others v. Digambar (supra) a large tract of land, admeasuring 12-½ acres came to be acquired for the expansion of the thermal power station at Parali Vaijinath in Beed District of Maharashtra and the entire land was declared as non-agricultural by the Collector. The Additional District Judge, by his Award dated 27th of April, 1987 had enhanced the compensation at the rate of Rs. 5/- per square foot as against the compensation determined by the Land Acquisition Officer at the rate of Rs. 3,000/- per acre. The Additional District Judge, by his Award dated 27th of April, 1987 had enhanced the compensation at the rate of Rs. 5/- per square foot as against the compensation determined by the Land Acquisition Officer at the rate of Rs. 3,000/- per acre. On appeal by the State, this Court confirmed the compensation enhanced at the rate of Rs. 5/- per square ft. and reduced 1/3rd of the amount towards development charges. On appeal by the Electricity Board the Apex Court did not agree with the view taken by both the courts below though the land was in the municipal limits and it observed that as on the date of notification there was no potential value of the land though converted into non-agriculture land and the determination of the compensation, on the basis of the potential value, was also illegal. In para 4, the Apex Court noted thus : ""4. ..... ....... The Reference Court has relied upon several sale deeds dated 14-1-1976, Exs. 48, 49 and 50 of a small extent of land sold on square-foot basis and on that premise the Court had determined the compensation. It is settled law that when a large extent of land is acquired, the sale of small pieces of land though genuine, cannot be relied upon as the basis to determine the compensation. ..... ...."" The Apex Court finally proceeded to determine the market value of the said land at the rate of Rs. 40,000/- per Acre. In the case of Smt. Kamalabai Jogeshwar Joshi and others (supra) a total of 62-½ acres land converted to non-agricultural was acquired for extension of the southeastern railway station. The Reference Court had enhanced the compensation to Rs. 2,000/- per acre and on further appeal under section 54 of the Act the High Court had enhanced the compensation to Rs. 7,000/- per acre. The claimant insisted that she ought to have been granted compensation at the rate of Rs. 4/- per square yard on the basis of some promise or assurance given. Reliance was placed on a sale instance of a plot admeasuring 260 x 85 ft. The Supreme Court held that the sale deeds relating to small extent of agricultural lands purchased on square foot basis would not be a comparable instance and they would offer no reasonable basis to further enhance the compensation. Reliance was placed on a sale instance of a plot admeasuring 260 x 85 ft. The Supreme Court held that the sale deeds relating to small extent of agricultural lands purchased on square foot basis would not be a comparable instance and they would offer no reasonable basis to further enhance the compensation. No reasonable and prudent purchaser would offer to purchase such vast extent of land on square foot basis. The market rate determined by the High Court at the rate of Rs. 7,000/- per acre was confirmed. In the case of (State of J. and K. v. Mohammad Masteen Wani and others)9, A.I.R. 1998 S.C. 2470, it has been held that the sale instances relating to small parcels of lands and not more than 3 to 4 Malras each could not be treated as comparable sale instance. The sale instances of a very small area cannot be said to be comparable to determine the market price of a big chunk of acquired land. In the case of (Land Acquisition Officer and Sub Collector, Gadwal v. Smt. Sreelatha Bhoopal and another)10, A.I.R. 1997 S.C. 2552 the Land Acquisition Officer had awarded compensation at the rate of Rs. 8,000/- per acre and the Reference Court enhanced the compensation to Rs. 20/- per square yard and the said rate was confirmed by the High Court in appeal. The State approached the Apex Court and while allowing the appeal, the Apex Court determined the market value at Rs. 20,000/- per acre with usual benefits of solatium and interest etc. While doing so, the Court stated thus: ""..... .... It is now well settled legal position that small pieces of land cannot offer the same market value when a large tract of land is purchased in an open market by a willing and prudent purchaser. It is settled legal position that the Court has to put itself in the armchair of a prudent purchaser and put the question to itself whether the land in the given circumstances, would fetch the same market value as is likely to be determined by the Court when small piece of land would be offered for sale. ................... It is settled legal position that the Court has to put itself in the armchair of a prudent purchaser and put the question to itself whether the land in the given circumstances, would fetch the same market value as is likely to be determined by the Court when small piece of land would be offered for sale. ................... ........"" In the case of (K.S. Shivadevamma and others v. Assistant Commissioner and Land Acquisition Officer and another)11, A.I.R. 1996 S.C. 2886 land admeasuring 9 acres and 10 gunthas was acquired and the Land Acquisition Officer had determined the market value at the rate of Rs. 5,000/- per acre. On reference the Civil Court determined the compensation at the rate of Rs. 30,000/- per acre but on appeal the High Court determined the compensation, after giving deductions of 53% at the rate of Rs. 18/- per square yard. This was not approved by the Apex Court and it was observed that if the compensation was determined on the basis of yardage, the owner cannot put the entire land to use unless he leaves out land for the above purposes and also expend money for developmental purpose. Merely because land is acquired for establishment of bus stand, that use is irrelevant in determining market value. The Court further observed thus : ""10. ... ... Where the development has already taken place, appropriate deduction needs to be made. In this case, we do not find any development had taken place as on that date. When we are determining compensation under section 23(1), as on the date of notification under section 4(1), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. ... ..."" In the case of (Smt. Indumati Chitaley v. Government of India and another)12, A.I.R. 1996 S.C. 531, 17 acres 57 cents land was acquired from Nagpur Municipal Limits for establishment of grain godown by the Central Government. The High Court had determined the market value at Rs. 0.90 Ps. per Sq.ft. and deducted the development costs at Rs. 18,000/- per acre. While allowing the appeal the Supreme Court fixed the market value of the entire land at Rs. 90,000/- along with other benefits as available under the Act. 18. The High Court had determined the market value at Rs. 0.90 Ps. per Sq.ft. and deducted the development costs at Rs. 18,000/- per acre. While allowing the appeal the Supreme Court fixed the market value of the entire land at Rs. 90,000/- along with other benefits as available under the Act. 18. Considering all the above enunciations it is clear that even otherwise the sale instance at Exhibit-19 in respect of plot of land admeasuring 14' x 29' could not have been relied upon by the Reference Court and the reliance on the said sale instance is in utter disregard to the well established legal position. Determination of Market Value: 19. In the case of (Smt. Tribeni Devi and others v. The Collector, Ranchi)13, A.I.R. 1972 S.C. 1417 a three Judge Bench of the Apex Court laid down general principles for the determination of market value of the property acquired under the Act and stated, as under: ""4. .... ... The compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonably expect to obtain from a willing purchaser, but as this may not be possible to ascertain with any amount of precision, the authority charged with the duty to Award compensation is bound to make an estimate judged by an objective standard. The land acquired has, therefore, to be valued not only with reference to its condition at the time of the declaration under section 4 of the Act but its potential value also must be taken into account. The sale-deeds of the lands situated in the vicinity and the comparable benefits and advantages which they have, furnish a rough and ready method of computing the market value. ......"" These principles were further elaborated in the case of (Special Land Acquisition Officer, Dawangiri v. P. Veerbhadrappa)14, A.I.R. 1984 S.C. 774, and in the case of Chimanlal Hargovinddas (supra) the Apex Court set out the relevant factors to be etched on the mental screen while determining the market value and some of them are : (i) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (ii) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the Award is inadequate on the basis of the material produced in the Court. Of course, the material placed and proved by the other side can also be taken into account for this purpose. (iii) The market value of land under acquisition has to be determined as on the crucial date of the publication of the notification under section 4 of the Act. (iv) While adopting the sale instance method, the Court has to corelate the market value reflected in the most comparable instance which provides the index of market value. Only genuine instances have to be taken into account and the most comparable instances out of the genuine instances have to be identified on the following circumstances. (a) Proximity from time angle, and; (b) Proximity from situation angle. (v) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchasers would do. (a) Proximity from time angle, and; (b) Proximity from situation angle. (v) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchasers would do. The principles evolved by various enunciations, for determination of market value of the land acquired under the Act, may be summarised as under:- (a) What is a fair and reasonable market value is always a question of fact depending on the nature of evidence, circumstances and probabilities in each case; (b) burden on proving the market value lies on the claimant and failure to do so is fatal; (c) market value has to be determined according to the use to which the land was put on the date of notification under section 4 of the Land Acquisition Act; (d) market value must be determined by reference to the price which a willing seller might reasonably expect from a willing purchaser; (e) sale instances/transactions must be bona fide and not got up sales and evidence of small pieces of land not relevant for determining market value of a vast area; (f) potential purpose must exist as on the date of acquisition and other possible purchasers (sic) in the market conditions prevailing as on the date of notification under section 4(1) of the Land Acquisition Act and future potentiality of the land cannot be taken into consideration; (g) it is the duty of the Court to scrutinise the evidence and determine just and adequate compensation, the Court must not indulge in feats of imagination but sit in the armchair of a prudent purchaser in an open market and put a question to itself whether as a prudent purchaser it would offer the same price in the open market as is to be determined; (h) doctrine of equality in determining and payment of same compensation to all claimants governed by the same notification is not a good principle; (i) if lands are agricultural land the market value has to be determined on the basis of acre or hectare instead of foot or meter. 20. Keeping these principles in mind, we have to determine the market value of the subject land in Gat Nos. 20. Keeping these principles in mind, we have to determine the market value of the subject land in Gat Nos. 67 to 69 of village Fardapur on the basis that it was an agricultural land but not put to such use as on the date when the notification under section 4(1) of the Act was issued. We have already indicated the location of the land and it is clear that it was not having any scope for urban development as it is not located near a Taluka or district headquarters though part of the land is adjacent to the State highway. Is proximity to the location of Ajintha caves has always been there and that could not be a relevant factor, more so when in the year 1982 and 1987 the claimant himself purchased the subject land at the rate varying from Rs. 4,000/- to Rs. 5,000/- per acre. The distance from the caves also is about five kilometres or so. Shri. Kale the learned Counsel appearing for the claimants submitted that after the land was acquired the Maharashtra Tourism Development Corporation has constructed 78 shops at the ""T"" point and these shops have been sold at the rate of Rs. 1,83,798/- for each one of them. The subject land is no doubt located in the proximity of the ""T"" point but the subsequent developments cannot be taken into consideration for determining the market value of the land on the date the notification under section 4 of the Act was issued; in view of the provisions of section 24 of the Act. Subsequent developments around the subject land is irrelevant to determine the compensation and we may in this regard safely refer to the decisions of the Apex Court in the case of (U.P. Jal Nigam Lucknow through its Chairman and another v. M/s. Kalra Properties (P) Ltd., Lucknow)15, A.I.R. 1996 S.C. 1170, in the case of (Baldev Singh and others v. State of Punjab through Collector)16, A.I.R. 1996 S.C. 3498 and in the case of (Hookiyar Singh etc. etc. v. Special Land Acquisition Officer, Moradabad and another)17, A.I.R. 1996 S.C. 3207. 21. In the case of (Smt. Kaushalaya Devi Bogra and others v. The Land Acquisition Officer, Aurangabad and another), A.I.R. 1984 S.C. 892, a total 150 acres of land came to be acquired for the medical college and hospital. etc. v. Special Land Acquisition Officer, Moradabad and another)17, A.I.R. 1996 S.C. 3207. 21. In the case of (Smt. Kaushalaya Devi Bogra and others v. The Land Acquisition Officer, Aurangabad and another), A.I.R. 1984 S.C. 892, a total 150 acres of land came to be acquired for the medical college and hospital. It was held that when large tracts are acquired, the transactions in respect of small properties do not offer a proper guideline and therefore the valuation in transaction in regard to similar property is not taken as a real basis for determining the compensation for larger tracts of property. We must, therefore, examine the sale instance of agricultural lands from village Fardapur and proximity to the subject land so as to determine the market value that could have been reasonably fixed for the subject land. When the claimants approached the Court for enhancement of compensation, the onus of proving their case by adducing evidence squarely falls on them and the Government, in turn, must rebut it by adducing its own evidence of sale instance which could have been relied upon by the Land Acquisition Officer which passing the Award under section 11 of the Act which is merely an offer and it is not a finality to market value. The burden of proving their case for enhanced compensation is required to be discharged by the claimants themselves as has been held in the case of Hookiyar Singh (supra). In the instant case, the claimant did not bring any sale instance before the Reference Court other than Exhibit 19 which has been discarded by us. The Reference Court on the other hand, classified the subject land in three categories which classification also has been held to be unacceptable by us. The Land Acquisition Officer had classified the entire land, admeasuring 232 hectares in different categories on the basis of the land revenue assessment. It is not known whether all the owners of these lands have sought reference for higher compensation under section 18 of the Act but it is verified from record that a number of them did approach the Reference Court and the learned A.G.P. relied upon the Award passed in L.A.R. No. 920 of 1994 wherein the market value of the land from village Fardapur and which was part of the common acquisition involving the subject land as well, has been fixed at Rs. 420/- per are for the agricultural land. The village map at Exhibit 54, which is on record and which is not disputed by either of the parties, indicates that the land in Survey Nos. 68 and 69 has an access to the State high way whereas the land in Gat No. 67 does not have any such direct access. It would be, therefore, prudent to resort to the belting system in the instant case and we may, therefore, safely classify the subject land in two categories viz. (1) land with access to the high way and (2) the land which does not have such access. In the first category the land in Gat Nos. 68 and 69 would fall whereas in the second category the land in Gat No. 67 would fall. The 7/12 extract brought on record also indicated that some portion of the subject land falls in the category of Potkharab land i.e. the land not fit for cultivation and its compensation has to be on the lowest side and mostly nominal compensation. The evidence on record also shows that there was no developmental activity within a distance of more than one kilometre and but for the M.T.D.C. project there was no scope for this land being acquired for any other public purpose in the neat future. The claimant himself had claimed to have purchased part of the land initially in the year 1982 at the rate of Rs. 4,000/- per acre and when he had entered into the last transaction in the year 1987 the price per acre had varied from Rs. 5,000/- to Rs. 7,000/- per acre. The notification under section 4(1) was issued on 29th June, 1990 and the claimant admittedly handed over the possession on 4th September, 1991 by accepting advance amount towards the part of the compensation claimed. In normal circumstances, a ten per cent rise every year in the market value is permissible and if we resort to this common parlance method with reference to the purchase price in the year 1982 the per acre price would have been up by 80% which could be worked out to about Rs. 8,000/- to Rs. 10,000/- per acre. The Land Acquisition Officer granted Rs. 12,000/- per acre i.e. Rs. 8,000/- to Rs. 10,000/- per acre. The Land Acquisition Officer granted Rs. 12,000/- per acre i.e. Rs. 30,000/- per hectare and in view of the provisions of section 25 of the Act the Court cannot reduce the compensation amount which has been granted by the Land Acquisition Officer. 22. First Appeal No. 1127 of 2002 came to be decided by us on 3rd April, 2003 and it was in respect of the land located in Gat No. 29 of village Thana and admeasured 80 ares (2 acres). It was covered by the said common notification under section 4(1) of the Act along with the subject land and from the map at Exhibit 54 we have noted that between the land in Gat No. 29 of village Thana and Gat Nos. 68 and 69 of village Fardapur the State high way i.e. Aurangabad-Jalgaon road passes through. They are located opposite each other on either sides of the road though in different villages but were covered by the same notification under section 4(1) of the Act and the common award passed by the Land Acquisition Officer determining the compensation rate at Rs. 12,000/- per acre. We had noted in the said appeal (arising out of L.A.R. No. 924 of 1996) that the Collector had accepted the market value determined by the Reference Court in L.A.R. No. 920 of 1994 which was fixed at Rs. 420/- per are for the agricultural land in Gat No. 77 of village Fardapur and the acquired land was to the extent of 2 acres. However, in L.A.R. No. 924 of 1996 the Reference Court fixed the market value at Rs. 650/- per are in respect of the agricultural land located in Gat No. 29 of village Thana and while allowing the appeal filed by the State Government, against the said Award, we fixed the market value at Rs. 500/- per are (Rs. 50,000/- per hectare, or Rs. 20,000/- per acre) in view of the fact that the claimant's land in First Appeal No. 1127 of 2002 was located adjacent to the State high way. While fixing the market value at Rs. 500/- per are for the agricultural land we had also taken into consideration the sale instances in respect of the land in Gat Nos. 161 and 84 to 86 of village Fardapur. The Land Acquisition Officer had considered the sale instances from Gat Nos. While fixing the market value at Rs. 500/- per are for the agricultural land we had also taken into consideration the sale instances in respect of the land in Gat Nos. 161 and 84 to 86 of village Fardapur. The Land Acquisition Officer had considered the sale instances from Gat Nos. 93, 168, 88, 220, 96, 309 and 243 of village Fardapur between the period from 10th February, 1989 to 5th February, 1991. The land in Gat No. 29 of village Thana was sold at the rate of Rs. 375 per are on 29th of July, 1989. The Land Acquisition Officer did not consider this sale instance because there was another sale instance of 17th of October, 1982 in respect of some land from the said Gat number and at the rate of Rs. 209/- and second time at the rate of Rs. 200/- per are. The reference Court decided L.A.R. No. 920 of 1996 along with other connected references in respect of some of the lands from village Fardapur and rightly held that the sale instance dated 29th of July, 1989 from Gat No. 29 of village Thana was comparable and enhancement of 15% per annum would be granted. The notification under section 4(1) of the Act in the instant case was dated 27th of June, 1990 and if 15% enhancement over and above Rs. 375/- per are is granted the market value comes to Rs. 431/- per are. Additional consideration was given for the location of the land adjacent to the State high way and, therefore, we fixed the market value at the rate of Rs. 500/- per are for the land in Gat No. 29 which was subject-matter in First Appeal No. 1127 of 2002. We deem it appropriate to follow the same principle in the instant case also, more so when the land in Gat Nos. 68 and 69 is located in front of the land in Gat No. 29 of village Thana i.e. on the other side of the State highway. Whereas, the land in Gat No. 67, being away from the highway and without any direct access to the highway, we deem it appropriate to fix the market value for the same at the rate of Rs. 450/- per hectare i.e. Rs. 45,000/-. We thus fix the market value for the land in Gat Nos. 68 and 69 at Rs. Whereas, the land in Gat No. 67, being away from the highway and without any direct access to the highway, we deem it appropriate to fix the market value for the same at the rate of Rs. 450/- per hectare i.e. Rs. 45,000/-. We thus fix the market value for the land in Gat Nos. 68 and 69 at Rs. 500/- per Are (Rupees fifty thousand per hectare) and at the rate of Rs. 450/- per are (Rupees forty five thousand per hectare) for the land in Gat No. 67. REMEDY FOR ENHANCEMENT FOR LAND IN GAT NO. 93 : 23. The next question that comes up for consideration is regarding the remedy available to M/s. Wardhman Hotels Private Limited for the enhancement claim in respect of land in Gat No. 93. As we have held that the common application for reference under section 18 of the Act could be considered only for the land in Gat Nos. 67 to 69 owned by Shri. Subhash Laxmanrao Patwardhan, the owner company is not without remedy for such a claim. It has probably to wait for the pending reference being decided and take the benefit of section 28-A of the Act. Admittedly, some references in respect of other land covered by the common notification under section 4(1) of the Act dated 27th June, 1990 are still pending before the Reference Court and as soon as these or any of the pending references in respect of the land in village Fardapur or village Thana is decided the company can move an application under section 28-A of the Act before the Collector for re-determination of the compensation amount. In addition, we have noted that the total land in Gat No. 93 admeasured 5 hectares and 59 ares and out of the same, land to the extent of 4 Hectares and 76 ares was purchased by the said company leaving balance of 83 ares land in the name of Shri, Yusuf Khan Rashid Khan and Habib Khan Rashid Khan. The entire land admeasuring 5 hectares 59 ares has been acquired for the M.T.D.C. project by notification dated 27th June, 1990 and therefore, if the reference for enhancement in respect of this balance 83 ares land is still pending before the Reference Court, the company has the remedy of submitting an application under section 28-A of the Act as soon as the said reference is decided. The land in the adjoining Gat Nos. 94 and 95 has also been acquired under the said notification. 24. ERRORS BY THE REFERENCE COURT: (i) There was glaring evidence on record and by the claimant's own admissions the subject land in Gat Nos. 67 to 69 was owned by him individually whereas the land in Gat No. 93 was owned by M/s. Wardhman Hotels Private Limited and inspite of this a common reference for all when M/s. Wardhman Hotels Private Limited is a separate body corporate and a legal entity registered under the Companies Act, 1956 and no enhancement claim was moved by the said company at any time. The common reference application, as moved by the claimant, could have been at the most accepted for enhancement in respect of the subject land in Gat Nos. 67 to 69. (ii) The N.A. permission by itself does not give a status as non-agricultural land as has been well established by a catena of decisions. Payment of N.A. assessment all through out could not also be the reason to hold that the N.A. order (Exhibits 17 and 18) was valid when Clause 10 of the said order specifically stated that it would not remain in force if the contentions therein were not satisfied. The claimant himself had admitted in his oral depositions the implications of not carrying out the N.A. activities as per the N.A. order and the written statement filed on behalf of the Collector very specifically had contested the claim of N.A. land on the ground that pursuant to the conditions set out in Clause No. 10 of the said orders they could not remain in force when the notification under section 4(1) of the Act was issued on 27th June, 1990. The Land Acquisition Officer, had, in his oral depositions, invited the attention of the Court to the provisions of section 44 of the M.L.R. Code and the Rules framed thereunder. In addition, the claimant himself admitted that on the land in Gat No. 68 there was only a structure of an out-house (Exhibit 16 letter dated 30th October, 1991 submitted by the claimant to the Land Acquisition Officer) and there was nothing in terms of any activity beyond this structure on the land in Gat Nos. 68 and 69. In addition, the claimant himself admitted that on the land in Gat No. 68 there was only a structure of an out-house (Exhibit 16 letter dated 30th October, 1991 submitted by the claimant to the Land Acquisition Officer) and there was nothing in terms of any activity beyond this structure on the land in Gat Nos. 68 and 69. The Land Acquisition Officer had also stated in his oral depositions that there was no developmental activity even beyond one kilometre from the subject land. Notwithstanding this overwhelming evidence regarding no development on the subject land, which was purportedly converted to N.A. use, the Reference Court, in utter disregard to the well established legal position, which has been referred to herein above, held the part of the land in Gat Nos. 68 and 69 as non-agricultural. (iii) In determining the market value for non-agricultural land at the rate of Rs. 11.82 ps. per square foot, the Reference Court had relied upon the sole sale instance at Exhibit 19 and that too in respect of a plot of land admeasuring 14' x 29' from the Gaothan area. Accepting this as a comparable sale instance was contrary to the catena of enunciations rendered by the Apex Court. At the same time, P.W. 2, who was examined, was the vendor of land in Gat No. 69 sold to the claimant and this sale instance was brought into existence after the claimant had come to know about the decision of the M.T.D.C. to acquire a huge patch of land, including the subject land. No prudent person could have relied upon this sale instance. (iv) The Reference Court has also considered the future developmental activities on the subject land while fixing the market value. This is in violation of section 24 of the Act and this position in law is well settled in the case of Hookiyar Singh (supra). (v) In fixing the market value for the agricultural land with N.A. Potentiality (Category IInd), the Reference Court relied upon the draft Award dated 22nd June, 1992 and the confidential letter in reply thereto at Exhibit 59 received from the Revenue Department. (v) In fixing the market value for the agricultural land with N.A. Potentiality (Category IInd), the Reference Court relied upon the draft Award dated 22nd June, 1992 and the confidential letter in reply thereto at Exhibit 59 received from the Revenue Department. The Reference Court lost sight of the proviso under section 11(1) of the Act which has been incorporated by Act 68 of 1984 and the same reads as under: ""Provided that no Award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf. Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such Award without such approval in such class of cases as the appropriate Government may specify in this behalf."" (vi) It is unknown as to how the Reference Court invented the two different classes of agricultural land viz. agricultural land with N.A. potential and purely agricultural land with N.A. potential specially when the 7/12 extract submitted in respect of the land in Gat Nos. 67 to 69 indicated that the total land was a fallow land i.e. without any agricultural use, for more than five years. (vii) In the Award dated 5th October, 1999 the Reference Court has not conclusively recorded the date of possession of the subject land and the Land Acquisition Officer Shri Bansode, in his depositions, stated that the possession was taken over on 15th December, 1993. By the impugned Award, the Reference Court directed the payment of interest under section 28 of the Act but did not record the date of possession. However, in Regular Darkhast No. 32 of 2000 the claimant calculated the interest payable under section 28 of the Act from 4th September, 1991 onwards. In the certified copy of the decree, issued in favour of the claimant, no such date was ever noted and without verifying or without giving an opportunity to the learned Government Pleader to contest this date, the Reference Court passed an order of attachment on 21st March, 2000, though the learned Government Pleader had brought to the attention of the Reference Court that an appeal against the Award was filed before this Court. In the said Darkhast proceedings the respondent No. 2 i.e. the M.T.D.C., for whom the subject land was acquired and which was impleaded as respondent No. 2 in the reference proceedings, was not impleaded as a necessary party and the Reference Court entertained the Darkhast proceedings inspite of this fatal defect. (viii) In the certified true copy of the Award the Reference Court estimated the costs payable to the claimant at Rs. 1,02,399/- which included Advocate's fees with surcharges at Rs. 94,986/-. In the Darkhast proceedings the claimant had claimed an additional amount of Rs. 23,247/- as Advocate's fees. This was straight way allowed and when an amount of Rs. 4,15,72,035/- came to be remitted on 19th of May, 2000, which included this Advocate's fees, the entire amount was allowed to be withdrawn by furnishing a bank guarantee and finally the Darkhast proceeding was dismissed in default as the Advocate for the claimant remained absent after the amount was withdrawn by the claimant. 25. In the premises and for the reasons set out herein above, we partly allow First Appeal No. 1109 of 2002 and First Appeal No. 10 of 2003 and quash and set aside the impugned Award dated 5th October, 1999 in L.A.R. No. 945 of 1996 passed by the learned Joint Civil Judge, Senior Division at Aurangabad. We hold that the common application for the land in Gat Nos. 67 to 69 on one hand and Gat No. 93 on the other was not tenable and the said application would be entertained only in respect of the agricultural land in Gat Nos. 67 to 69 owned by Shri. Subhash Patwardhan. The Reference Court committed glaring and manifest errors by holding that land admeasuring 10 hectares 95 ares, from Gat Nos. 68, 69 and 93 was non-agricultural and by determining the price for agricultural land at Rs. 11.82 ps. by accepting the sale instance at Exhibit 19 as comparable sale instance. The land in Gat Nos. 67 to 69 was required to be classified in two groups on the basis of the belting system i.e. the land adjacent to the highway in Gat Nos. 68 and 69 and the land in Gat No. 67 could be in the second category. We fix the market value of the agricultural land in Gat Nos. 68 and 69 at the rate of Rs. 500/- per are or Rs. 68 and 69 and the land in Gat No. 67 could be in the second category. We fix the market value of the agricultural land in Gat Nos. 68 and 69 at the rate of Rs. 500/- per are or Rs. 50,000/- per hectare, whereas for the agricultural land in Gat No. 67 we fix the market value at Rs. 450/- per are or Rs. 45,000/- per hectare. So far as the Potkharab land is concerned, we determine the market value at Rs. 2,000/- per acre or Rs. 5,000/- per hectare. The compensation payable to the claimant in respect of land in Gat No 67 will be Rs. 45,000 x 2.73 = Rs. 1,22,850.00, in Gat No. 68 Rs. 50,000 x 5.80 = Rs. 2,90,000=00 and in Gat No. 69 Rs. 50,000 x 7.44= Rs. 3.72,000=00 whereas for the total Potkharab land in Gat Nos. 68 and 69 the compensation will be Rs. 5,000 x 0.39 = Rs. 1,950.00. Thus the total compensation payable to the claimant will be Rs. 7,86,800 =00 (Rupees seven lakhs eighty-six thousand eight hundred only) less Rs. 4,73,100/- (Rupees four lakhs seventy three thousand one hundred only) already received by the claimant. The claimant will be thus entitled to receive the balance amount Rs. 3,13,700/- (Rupees three lakhs thirteen thousand seven hundred only). In addition, the claimant shall be paid 30% solatium under section 23(2) on the enhanced amount and 12% component from the date of notification under section 4(1), under section 23(1-A) of the Act. Interest under section 28 shall be payable to the claimant with reference to the date of possession i.e. 4th September, 1991, on the enhanced market value as well as 30% solatium and 12% component, in view of the law laid down by the Apex Court in the case of (Sundar v. Union of India)18, 2001(7) S.C.C. 211 . Decree be drawn accordingly. 26. A copy of this decree be forwarded to the Reference Court forthwith to take steps for recovery of the excess amount received by the claimant. If the excess amount is not deposited within a period of two weeks, the Reference Court shall take appropriate steps to encash the bank guarantee. 27. Decree be drawn accordingly. 26. A copy of this decree be forwarded to the Reference Court forthwith to take steps for recovery of the excess amount received by the claimant. If the excess amount is not deposited within a period of two weeks, the Reference Court shall take appropriate steps to encash the bank guarantee. 27. So far as the claim for enhancement of M/s. Wardhman Hotels Private Limited concerned, it has the remedy under section 28-A of the Act when any of the pending references in respect of part of the land in the said Gat number or in Gat Nos. 94 and 95 or any other Gat number of village Fardapur, which was part of the common Award passed by the Land Acquisition Officer on 22nd July, 1993, is decided hereafter by the Reference Court. 28. A copy of this judgment be forwarded to the Registrar, Appellate Side, Bombay forthwith and another copy be placed in Writ Petition No. 4553 of 2002. Order accordingly.