P. K. TRIPATHY, J. ( 1 ) AWARD dated 21/4/1994 in Land Acquisition Case No. 2 of 1992 of the Civil Judge (Sr. Division), First Court, cuttack is under challenge in this appeal preferred under Section 54 of the land Acquisition Act, 1894 (in short the 'act') by the Land acquisition Collector, Cuttack. ( 2 ) THE relevant facts may be stated briefly. Ac 0. 039 decimals of land was acquired from the possession of the respondents, of whom as per the compromise amongst them, respondent Uma Bhagat was allowed to receive and appropriate entire compensation amount. The acquired land consisted of ac. 0. 018 decimals of homestead land and ac. 0. 021 decimals of 'rasta category of land. Admittedly, the said land situates in Tulsipur mouza within the Municipal limits of the cuttack town and that land was acquired for construction of drain by the Muncipal Corporation the Land Acquisition Officer on the basis of the sale statistics vide Ext A and the valuation statement Ext. B, determined the compensation @ Rs. 7,50,000/- per acre for the homestead land and @ Rs. 5,50,000/- per acre for the 'rasta' category land. Accordingly, total compensation of Rs. 64,566/- was determined which included the interest and solatium etc. Respondent No. 1 received the same on protest and claimed for higher compensation @ rupees one lakh per Guntha i. e. Rs. 25,00,000/- per acre. That necessitated the appellant to make the statutory reference in accordance with the provision in section 18 of the Act. That reference was registered as Land Acquisition Case No. 2 of 1992, in the Court of Civil Judge (Sr. Division), First Court, Cuttack. ( 3 ) DURING the course of inquiry, the claimant/respondent No. 1 examined herself as the solitary witness and relied upon certified copy of registered sale deed dated 26/12/1988 (Ext. 1) in support of her claim for enhancement of compensation. Appellant examined the Amin in its office as the solitary witness and relied upon certified copy of the registered sale deed dated 20th February, 1987 marked Ext A and the valuation statement marked Ext. B. ( 4 ) ON assessment of such evidence, learned Civil Judge (Sr. Division) did not accept the contention of the claimant for fixing the valuation at the rates she claimed. At the same time, learned Civil Judge (Sr. B. ( 4 ) ON assessment of such evidence, learned Civil Judge (Sr. Division) did not accept the contention of the claimant for fixing the valuation at the rates she claimed. At the same time, learned Civil Judge (Sr. Division)did not accept the valuation fixed by the appellant on the grounds that the appellant was supposed to give the minimum valuation and the Court is not bound to accept the same and that the sale statistics vide Ext. A being related to a transaction six months before the date of notification. He allowed enhancement and fixed the valuation of the homestead @ Rs. 10,00,000. 00 per acre. Learned Civil Judge also adopted the same reasoning and enhanced the valuation of the 'rasta' land and fixed at Rs. 25,000. 00 per Gunth i. e. Rs. 6,25,000. 00 per acre. Besides that, learned Civil Judge (Sr Division) allowed the solatium, interest, additional compensation as per the provision in Section 23- (1-A) and Section 28 of the Act. That award is under challenge in this appeal. ( 5 ) MR. Rout, learned Addl. Standing counsel advances his argument that keeping in view the aforesaid facts and evidence on record, there was no reason for the learned civil Judge (Sr. Division) to enhance the compensation on a wrong assumption that the determination of the compensation amount by the appellant was the minimum possible and bound to be enhanced. He further argues that when the sale statistics relied upon by the claimant is of post notification period and the sale statistics relied upon by the appellant being close to the pre-acquisition period and both the documents having been admitted as evidence without objection, learned Civil Judge (Sr. Division) should not have ignored correctness of the approach adopted by the appellant in determining the valuation basing on Ext A he also argues that no rebuttal evidence was adduced by the claimant to show or suggest that by the relevant date higher valuation than the rate in Ext. A was prevalent in the concerned area. Mr. Panda, learned counsel appearing for the Municipal Corporation also states that the learned Civil Judge (Sr. A was prevalent in the concerned area. Mr. Panda, learned counsel appearing for the Municipal Corporation also states that the learned Civil Judge (Sr. Division) without due application of mind has mechanically adopted the evidence of P. W. I relating to the topography inasmuch as the land acquired in Tulsipur is at considerable distance from the Medical College as well as L. I. C. office and that aspect should have been properly considered. ( 6 ) THE statutory law is very clear that the land Acquisition Collector shall conduct inquiry in accordance with the provision in Section 11 of the Act so as to determine the amount of compensation. That statutory provision is supported by the instructions issued by the state Government relating to manner of conduct of inquiry. However, in this appeal there is no challenge by the claimant to the manner of conduct of inquiry or any flaw in that. Hence, that aspect need not be considered in this appeal. Section 12 provides for making an award on the basis of determination of the value of the acquired land and Section 18 provides that any person having interest over the property if does not accept such award made u/s 12, may by written application mentioning the grounds of objection require the Collector to refer the matter to the Court for determination of such subject of dispute. Section 18 enumerates that objection can be raised relating to (i) measurment of the land; (ii) the amount of compensation; (MI) person in whose favour the award is made u/s 12; and (iv) apportionment of the compensation among the persons interested. The objection raised by such person, as stated above, shall state the grounds on which the award u/s 12 is objected to. In the case at hand as it is readable from the materials from the lower court record that objection was raised on the ground of determination of the valuation at a lower rate. During inquiry by the reference court when simplicitor determination of the valuation by the Land acquisition Collector is challenged on the ground of adopting a lower rate for determining the compensation, undoubtedly the initial burden rests on the claimant to prove that (i)the valuation determined by the Collector is not the prevalent market price; and (ii) that there exists a higher rate and he is entitled to the compensation at that rate. Unless these aspects are properly proved on record, the reference court should be slow to interfere with the award passed u/s 12 of the Act. In other words, the burden of proving existence of higher market rate and determination of the compensation on a higher amount is initially on the claimant. Unless he discharges the said burden, the onus does not shift to the authority who passed award u/s 12 of the Act. This is the fundamental law keeping in view the provisions u/ss. 101 and 102 of the Indian Evidence Act, 1872. There is no quarrel at the bar on this proposition of law. Hence, it is to be ascertained how far the lower court followed the said principle while answering to the reference and determining the compensation. ( 7 ) AS noted above, the Civil Judge (Sr. Division) while not accepting the claim of the claimants for determination of the compensation at the rate of Rs. 25,00,000/- per acre has also recorded a finding that the sale deed ext. 1 relied upon by the claimants was of December, 1988 whereas unidsputedly the acquisition was made as per the Notification u/s 4 (1) of the Act vide official Gazette dated 13. 7. 1987. Ext. A which is a registered sale deed dated 20. 2. 1987. Ext. A was also taken into consideration. But the learned Civil Judge (Sr. Division) has not assigned any reason not to accept the evidenciary value therein. Learned civil Judge (Sr. Division) specifically recorded the finding that the person involved in the sale transactions vide Ext. 1 and Ext. A were not examined, but such documents having been admitted without objection were read as relevant evidence. After taking note of all such facts and circumstances, learned Civil Judge (Sr. Division) without assigning any reason recorded that :"however, considering Ext. 1 and Ext. A and the circumstance under which the land was acquired it is just and proper to fix the market price of the acquired land in respect to homestead land at the rate of Rs 40,000/- perguntha i. e Rs. 10,00,000/- per acre "in the impugned award learned Civil Judge (Sr Division) also noted the deposition of P W. 1 that the acquired land situates near the S. C. B. Medical College, L 1 C. office, colleges and railway Station. 10,00,000/- per acre "in the impugned award learned Civil Judge (Sr Division) also noted the deposition of P W. 1 that the acquired land situates near the S. C. B. Medical College, L 1 C. office, colleges and railway Station. It may be noted here that judicial notice of the fact could have been taken about Tulsipur Mouza and the aforesaid prominent places and institutions in Cuttack township that there is considerable distance between the acquired land and the said establishments which may be more than one kilometer away. There cannot be any nexus between the land acquired and the aforesaid institutions and officers for consideration of the factum to determine the market potentiality of the acquired land That aspect was not at all considered by the learned Civil Judge (Sr. Division ). ( 8 ) THE above quoted passage from the impugned award goes to show that without accepting the evidence of the claimants in proof of existence of higher market rate and without rejecting the evidence of the land Acquisition collector which was tendered in justification of the award determined u/s 12 of the Act, learned Civil Judge (Sr. Division) adopted a via media by adding the valuations in Ext. 1 and ext A and drawing a ratio and determining the compensation. This method, as a measure of reasonable guess work could have been of some credibility if there would have been could have been lack of proper evidence to prove the existing market value by the date of the notification. It may be stated here that in a proceeding of this nature the claimant may adopt the attitude and approach of bargaining with the hope to ger higher amount of compensation. That is the litigants' privilege as enabled by the statutory provision. But a Court deciding a reference is not to adopt the same approach and attitude while deciding a case. A reference Court should remember that if less amount is paid it is a fiscal loss to the claimant and if anything excess is paid, it is a fiscal loss to the public fund He cannot show charitable attitude being partial to either of them The duty and responsibility of the reference court is to resolve the dispute by ascertaining the correct market value. As stated above, when an award u/s 12 is under challenge in a reference u/s 18 of the Act, the claimant has to prove on record that the assessment of valuation is not backed by a proper inquiry and/or the determination of the market price is less than the prevalent market price for the acquired land. In the present case, the claimant has not challenged anything relating to the conduct of the inquiry, but he has contended that the valuation determined is less than the existing market price. In that respect, the oral evidence of p. W. 1 is not worthy of credibility to set aside the award u/s 12. Ext. 1, the solitary sale deed produced on record relates to a period of about one and a half years after the acquisition The fundamental principle of law and the common sense shall prompt any authority in the helm of the affairs not to accept such a statistics as anything while considering the question of what was the existing market value on the date of the acquisition. Various other comments can be made on such evidence for rejecting such evidence. But this Court does not propose to elaborate the same because the above assigned reason is sufficient to reject this evidence from the zone of consideration while determining the valuation. ( 9 ) THE claimant having signally failed to prove existence of higher market price and when the Land Acquisition Collector has adduced evidence showing that a sale transaction in the concerned area undertaken about a few months before the acquisition was adopted for determining the market price, the reasonableness in that determination in the absence of any adverse evidence should be accepted without any reservation. Learned Civil judge (Sr. Division) did not remain alive to the provision of law as well as the aforesaid glaring evidence on record and passed the award determining the compensation for the homestead land at a higher rate in the absence of any evidence in support of such finding. Thus, the said enhancement of compensation is not sustainable. ( 10 ) SO far as the other patch of land i. e. 'rasta' land is concerned, learned Civil Judge (Sr. Division) enhanced the rate as if he was distributing charity. Thus, the said enhancement of compensation is not sustainable. ( 10 ) SO far as the other patch of land i. e. 'rasta' land is concerned, learned Civil Judge (Sr. Division) enhanced the rate as if he was distributing charity. This Court is constrained to make such a remark in view of the fact that no evidence at all was adduced by the claimant in support of existence of any enhanced rate for the 'rasta' category of land. Therefore, the enhancement of compensation with respect to 'rasta' category of land is also equally non-sustainable. ( 11 ) THE discussion and findings recorded above lead this Court to set aside the impunged award and to allow the appeal. In other words, the rate at which the compensation was determined by the Land Acquisition Collector is accepted. However, the claimant shall be entitled to all statutory benefits as provided under the Act and in respect of which learned Civil judge (Sr. Division) has made a mention in the impugned award. Accordingly the appeal is allowed. No cost. Hearing fee be assessed at uncontested scale. Appeal allowed.