Judgment : The above First Appeals take exception to the judgment and award dated 3rd August 1994 passed in Land Acquisition Case No. 61 of 1992. By the said judgment and award the Reference Court fixed the compensation for the acquired land at the rate of Rs. 77,133/-per hectre and granted all the benefits under Section 23(1A) and (2) and Section 28 of the Land Acquisition Act 1894. First Appeal No. 694 of 1994 is filed by the State challenging the enhancement granted by the Reference Court whereas First Appeal No. 127 of 1995 is filed by the claimants being dissatisfied by the Award passed by the Reference Court. 2] The facts in brief in the above appeals can be stated thus: Subject matter of the acquisition was land admeasuring 21 Ares from Survey No. 6/1 of Pandharkawada which was acquired for the purpose of National High Way No. 7. The Notification under Section 4 of the Land Acquisition Act 1894 dated 19th December 1988 was published on 7th September 1989. In the award which came to be declared the Land Acquisition Officer fixed the market value of the acquired land at the rate of Rs. 45,000/-Per Hectre and based on the said rate granted the claimants Rs. 9450/- as the compensation for the acquired land. Being dissatisfied with the said compensation awarded by the Special Land Acquisition Officer the claimants sought a reference. In the reference the claimants sought the rate of Rs. 100/-per sq. ft. and on the said basis claimed compensation in the sum of Rs. 22,86,900/-besides solatium and interest as per the provisions of the said Act. The Reference Court on the application of the well settled principles to be applied under Section 23 of the said Act to arrive at the market value of the land under enhanced the compensation to Rs. 77,133/- Per Hectre with all the statutory benefits as mentioned herein above. The Reference Court did not take into consideration the two sale instances produced on behalf of the claimants which were of the year 1988 as according to the Reference Court the said sale instances were not proximate in time. The Reference Court also did not accept the case of the claimants that the land had non agricultural potential as there were shops, petrol pump etc. in the near vicinity. The Reference Court also did not accept the case of the claimants that the land had non agricultural potential as there were shops, petrol pump etc. in the near vicinity. The Reference Court was of the view that the claimants could have produced the transaction of the sale of plots from S. Nos. 3, 4 and 5 which are adjacent to the acquired land in support of their case for enhancement. The Reference Court was of the view that since the river is flowing by the side of the acquired land the said factor would have to weigh while considering the market value of the acquired land. As indicated above the Reference Court on consideration of the material that was adduced in the said reference fixed the market value of the land at Rs. 77,133/-per hectre. As indicated above First Appeal No. 127 of 94 has been filed by the claimants being dissatisfied by the award of the Reference Court as according to claimants they are entitled to compensation at Rs. 100/- per sq.ft. 3] I have heard the learned AGP for the State and the learned counsel appearing for the claimants i.e. the respondents in First Appeal No. 695 of 1994 and the appellants in First Appeal No. 127 of 1995. Though the learned AGP and learned counsel for the claimants advanced submissions for and against the enhancement the learned counsel for the claimants Shri Deshpande drew my attention to the judgment of the Division Bench of this Court reported in 2003(3) Maharashtra Law Journal 127 Moreshwar Shankar Phatak and Another Vs. State of Maharashtra and Others, (for short Moreshwar Phatak’s case) the land concerned in the said proceedings was the adjacent land bearing S. No. 5. The Division Bench of this Court in an appeal filed against the award of the Reference Court, in that case accepted the compensation fixed by the Reference Court at Rs. 10/- per sq. ft. Para 7 of the said report is material and is reproduced hereunder: “7. So far as the merits are concerned, the trial court has come to the conclusion that the market rate of the Land was Rs. 10/- per sq. ft. The trial Court has relied upon two sale deed of the years 1983 and 1980 respectively. ft. Para 7 of the said report is material and is reproduced hereunder: “7. So far as the merits are concerned, the trial court has come to the conclusion that the market rate of the Land was Rs. 10/- per sq. ft. The trial Court has relied upon two sale deed of the years 1983 and 1980 respectively. The trial Court has also placed reliance on the Award in respect of field Survey No. 20/3 in a companion reference application wherein the market price was held to be Rs. 10/- per sq. ft. The total area of the acquired land is 1 Hectare 22 Ares, i.e. 1,30,680 sq. ft. After deduction of 1/5th area, the total compensation payable at the rate of Rs. 10/- per sq. ft. would be Rs. 9,90,540/-. The appellants are also entitled to solatium under section 23(2) and interest under section 23(1) (A) and section 28.” Since reference to the said Moreshwar Phatak’s case was also made during the course of the hearing of above First Appeal on an earlier date, the learned AGP had sought time to take instructions as to whether the land which was the subject matter of the said judgment was covered by the same Notification as the land in the instant Appeals. The learned AGP on instructions fairly conceded that the lands in question are covered by the same Notification. The learned AGP fairly stated that the public purpose in the said Moreshwar Phatak’s case was wrongly mentioned as Arundhati Project when it should have been National Highway No. 7. 4] The learned counsel for the claimants Shri Deshpande then drew my attention to the map prepared by the Special Land Acquisition Officer of the area which was to be acquired for the public purpose of National High Way No. 7. The said map is part of the record of the trial Court. As can be seen from the said map Khuni River is flowing along side the S. N o. 6(1) which is the subject matter of the above appeals and S. No. 5(1) which was the subject matter of the Appeals before the Division Bench. The said map also discloses that along side survey no. 5(1) which is adjacent survey number to its western side there are shops, petrol pump etc. which have been depicted in color blue on the said map. The said map also discloses that along side survey no. 5(1) which is adjacent survey number to its western side there are shops, petrol pump etc. which have been depicted in color blue on the said map. The said non agricultural use can therefore be said to be in the vicinity of S. No. 6(1) which is adjacent survey number to 5(1). In my view therefore the trial Court had erred in observing that the non agricultural user in question i.e. the shops and the petrol pumps were not in the vicinity of the land under acquisition. In the light of the judgment in Moreshwar Phatak’s case (supra) which is in respect of the adjacent land i.e. S. N o. 5(1) in my view the claimants would be entitled to compensation at the rate of Rs. 10/-per sq. ft. as held by the Division Bench in Moreshwar Phatak’s case (supra). In so far as the aspect of the flow of the river is concerned as mentioned herein above the said river runs along side both survey numbers 6(1) and 5(1) and therefore both the survey numbers suffer from the same advantages or disadvantages. Since a Division Bench of this Court has found it fit to fix the compensation at Rs. 10/- per sq. ft. in respect of the adjacent land. In my view the claimants in the instant case would also be entitled to the same compensation. Incidently it is required to be noted that Special Leave Petition filed against the judgment of the Division Bench in Moreshwar Phatak’s case (supra) was dismissed by the Apex Court on the ground of delay. The judgment of the Division Bench in Moreshwar Phatak’s case therefore has become final and binding. The above First Appeal No. 127 of 1995 is accordingly allowed and the claimants would be entitled to compensation at the rate of Rs. 10/- per sq. ft. with all the other statutory benefits under Section 23(1A), 23(2) and 28 of the Land Acquisition Act. Claimants would be entitled to the said decretal amount after deducting 30% towards development charges. Parties to bear their respective costs. First Appeal No. 695 of 1994 filed by the State to stand dismissed accordingly.