JUDGMENT : Heard Mr. Prashil Arolkar, learned Additional Government Advocate for the appellants, and Mr. J. J. Mulgaonkar, learned Counsel for the respondent (Claimant). 2. This Appeal is directed against the Judgment and Award dated 02.05.2012 made by the Reference Court in Land Acquisition Case No.5 of 2007 enhancing the compensation for the acquired land admeasuring about 175 sq. mts from Rs.50/-per square meter to Rs.408/-per square meter. 3. Mr. Arolkar, learned Additional Government Advocate points out that the Reference Court erred in relying on the Sale Deed which was executed post the Section 4 Notification issued on 29.12.2001. He submits that the Sale Deed was in respect of two fully developed plots and, therefore, could not have been regarded as comparable instances. He further relied on the decision of this Court dated 12.09.2014 disposing of First Appeal No.30 of 2011 to point out that in respect of land acquired under the very same Notification, this Court had approved compensation @ Rs. 133/- per square meter. He pointed out that the land involved in First Appeal No.30 of 2011 was from the Village of Khandepar, which has better amenities than the land involved in the present Appeal at Usgao. He, therefore, submits that in this case the compensation could not have been enhanced beyond Rs.133/-per square meter. 4. Mr. Arolkar also submits that the acquired land was within the setback area and therefore there was no potential for further development. He submits that even this aspect has not been properly considered by the Reference Court and, therefore, the impugned award warrants interference. 5. Mr. Mulgaonkar, learned Counsel for the respondent defends the impugned Award based on the reasoning reflected therein. He points out that the Sale Deed which has been relied upon by the Reference Court was executed hardly four months after the issuance of Section 4 Notification. He points out that more than 50% deduction has been made towards development charges. He points out that the acquired land had a Soda factory and, therefore, the acquired land was also developed land. He points out that even a valuation report had been produced justifying the enhancement. He relies on State of Goa & Anr. V/s. Gopal Baburao Gaudo & Ors., (2009) 10 SCC 686 to contend that lands allegedly within setback areas have to also be paid suitable compensation. Mr. He points out that even a valuation report had been produced justifying the enhancement. He relies on State of Goa & Anr. V/s. Gopal Baburao Gaudo & Ors., (2009) 10 SCC 686 to contend that lands allegedly within setback areas have to also be paid suitable compensation. Mr. Mulgaonkar also points out that the decision in First Appeal No. 30 of 2011 itself records that the compensation of Rs.133/-per square meter was much lower than the actual market price payable. For all these reasons Mr. Mulgaonkar submits that this appeal may be dismissed. 6. Rival contentions now fall for determination. 7. In this case, since Mr. Arolkar has placed heavy reliance on the decision of this Court in First Appeal No. 30 of 2011, it is necessary to analyze the same for appreciating Mr. Arolkar's contention. 8. The decision dated 12.09.2014 in First Appeal No.30 of 2011 also concerns the acquisition of land under the Notification dated 29.12.2001, which is incidentally the very same Notification under which the land in the present Appeal came to be acquired. The acquisition is for road widening and improvement of geometrics of KM 116 to 121 of NH-4A (Additional Area). The acquisition involves lands in the adjacent villages of Usgao and Khandepar. 9. In the present appeal we are concerned with the acquisition of land admeasuring 175 sq.mts from the Village of Usgao. In First Appeal No. 30 of 2011, this Court was concerned with the acquisition of lands in the adjacent Village of Khandepar under the very same Notification. There is no evidence about any disparity of facilities in the Villages of Usgao and Khandepar. This Court, in its decision dated 12.09.2014 whilst disposing of First Appeal No.30 of 2011, no doubt, upheld the award of compensation of Rs.133/-per square meter in respect of the acquired land in Khandepar Village. 10. However, if the decision dated 12.09.2014 is perused carefully, it will be clear that time and again this Court has held that the compensation @ Rs. 133/-per square meter is much below the price which ought to have been fixed by the Reference Court, particularly, by taking into account the circumstances that almost 10 years earlier, i.e. in the year 1991, compensation in respect of the acquisition for the very same road/highway had been determined @ Rs.99.80 per square meter. This rate had attained finality. 11. 133/-per square meter is much below the price which ought to have been fixed by the Reference Court, particularly, by taking into account the circumstances that almost 10 years earlier, i.e. in the year 1991, compensation in respect of the acquisition for the very same road/highway had been determined @ Rs.99.80 per square meter. This rate had attained finality. 11. The aforesaid is evident from what is set out in paragraphs 8 and 9 of the decision dated 12.09.2014 disposing of First Appeal No. 30 of 2011 which read as follows: “8. Taking into consideration the fact that this Court today upheld the market value of the land from within the Village Khandepar and from the same survey number i.e. 107/6 at the rate of Rs.99.8/- per square metre, the market value fixed for the acquired land herein at the rate of Rs.133/- per square metre on 29.12.2001 i.e. approximately after a period of 10 years is not only just, right and proper but in my humble opinion is much below than the price which ought to have been fixed by the Reference Court, after taking into consideration the enhancement in the market value of the land per year. 9. As stated hereinabove, the lands adjoining to the present land of the respondent were earlier acquired in the year 1991 by Notification No.22/101/90-RD dated 08.01.1991 and this Court while confirming the market value fixed by the Reference Court at the rate of Rs.99.8/-has held that it was just, right and proper market value of the said lands therein. The land involved the present appeal is acquired after a gap of 10 years and the Trial Court has fixed the market value for the present land at the rate of Rs.133/-per square metre. I find that the market value fixed by the Trial Court at the rate of Rs.133/-per square metre is just and right market value of the acquired land. Mr. Ramani, learned counsel appearing for the respondent submitted that the Supreme Court in catena of judgments has reiterated that the value/price of the land increases at the rate of 10% per annum and, therefore, the Reference Court after taking into consideration the said principle ought to have fixed the fair market value for the acquired land in the present case at much higher rate. There is substance in the said argument of Mr. Ramani. There is substance in the said argument of Mr. Ramani. I am of the considered opinion that the market price fixed by the Reference Court at the rate of Rs.133/-per square metre after applying the aforesaid principlel aid down by the Supreme Court is apparently much less than the then prevailing market value in the year 2001 of the acquired land. However, in the absence of any cross objection at the instance of the respondent to the market value fixed by the Reference Court, the said point is left, as it is, at this stage." 12. Record also bears out that the State had filed a review in First Appeal No. 30 of 2011 which was dismissed by this Court. Thus, insofar as the State is concerned, the decision dated 12.09.2014 in First Appeal No. 30 of 2011 has attained finality. 13. The decision in First Appeal No. 30 of 2011 establishes that in the year 1991 compensation was determined at Rs.99.80 per square meter, i.e. Rs.100/-per square meter as market value for the land from the same Village and the same survey number. This Court has taken note of the principle that enhancement of @10% per annum should be normally awarded. Based upon this, in the year 2001, the compensation would come to Rs.261/- per square meter. This Court was possibly inclined to award such enhancement in its decision dated 12.09.2014 disposing of First Appeal No. 30 of 2011, but, found itself handicapped in the absence of any cross-objections at the instance of the claimant. This is evident from what was observed in the concluding portion of paragraph 9 of the decision dated 12.09.2014 disposing of First Appeal No. 30 of 2011. 14. In this case, therefore, the compensation can never be less than Rs.261/-per square meter. Besides, certain factors benefit the claimant in the peculiar facts of the present case. The first factor is that the acquired portion was abutting the road and there was already a factory standing thereon. This establishes the potential of the acquired land. Secondly, this is a case of a relatively small plot that was already being used for commercial purposes. 15. The contention based on setback area was considered and correctly answered by the Reference Court by relying upon the decision of the Hon'ble Supreme Court in the case of Gopal Baburao Gaudo(supra). This establishes the potential of the acquired land. Secondly, this is a case of a relatively small plot that was already being used for commercial purposes. 15. The contention based on setback area was considered and correctly answered by the Reference Court by relying upon the decision of the Hon'ble Supreme Court in the case of Gopal Baburao Gaudo(supra). Having regard to the above additional factors peculiar to the acquired land in the present Appeal, in my judgment, this is a fit case where the market value can be determined @ Rs.300/- per square meter. 16. Mr. Arolkar, learned Additional Government Advocate is quite right in his submission that there was no basis for determining the market value at Rs.408/-per square meter. The Sale Deed relied upon by the learned Reference Court was post the issuance of Section 4 Notification. Besides, the Sale Deed was in respect of two well-developed plots and in that sense were not comparable instances. 17. This Appeal is, therefore, partly allowed and the market value/compensation is now determined @ 300/-per square meter instead of Rs.408/-per square meter as determined by the Reference Court in the impugned Judgment and Award. There is no case made out to interfere with any of the other benefits, i.e. mainly statutory benefits granted by the Reference Court in this matter. The appeal is partly allowed and the impugned Award is modified in the aforesaid terms. 18. Mr. Arolkar points out that the compensation awarded has already been deposited by the appellants in this Court. If so, the respondent will be entitled to withdraw the compensation amount by taking the market value at Rs.300/-per square meter. The respondent will naturally be entitled to all statutory benefits as have been awarded commensurate to this rate. The appellants will be at liberty to withdraw the balance amount. Both, the appellant as well as the respondent will be entitled to the appropriate interest that will have accrued on the amount already deposited. 19. Registry to ensure that the amounts are released to both the parties at the earliest and in any case within a period of a maximum of 2 months from the date both the parties furnish their respective calculations. 20. The Appeal is disposed of in the aforesaid terms. There shall be no order for costs.