JUDGMENT : SANGEETA K. VISHEN, J. 1. The present appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act of 1894’) has been filed challenging the judgment dated 21st April, 2009 passed by the 3rd Additional Senior Civil Judge, Godhra, Panchmahals in Land Acquisition Reference No. 78 of 2005 whereby, the Reference Court, while partly allowing the Land Acquisition Reference No. 78 of 2005, determined the market value of the land acquired as Rs. 65 per square meter as additional compensation along with other statutory benefits. 2. The brief facts, are as under:- 2.1 The respondents, are the original claimants (herein after referred to as the respondents-claimants) whose land bearing survey number 208 admeasuring Hector 2 Are 62 04 square meters (hereinafter referred to as ‘the land in question’) was acquired for the purpose of Panam Dam Project. Notification under Sections 4 and 6 of the Act of 1894 were issued for the aforesaid purpose followed by passing of the award dated 30th January, 2003 under the provisions of Section 11 of the Act of 1894. The Deputy Collector, Land Acquisition and Resettlement, Kadana and other projects, Panchmahals Godhra (hereinafter referred to as “the Land Acquisition Officer”) determined the market value of the land in question at the rate of Rs. 80,000 per hector, for Jarayat land and Rs. 100 for waste (kharaba) land. 2.2 The respondents-claimants while accepting the compensation under protest, filed an application under Section 18 of the Act of 1894 claiming compensation at the rate of Rs. 100 per square meter. The Reference Court, vide its common judgment dated 21st April, 2009, determined the market value and granted additional compensation at the rate of Rs. 65 per square meter for the land in question. 2.3 Feeling dissatisfied, the appellants i.e. original opponents have filed the present appeal, challenging the judgment dated 21st April, 2009 passed by the Reference Court. 3. Heard Mr. Rakesh Patel, learned Assistant Government Pleader for the appellants and Mr. Vijay. N. Raval, learned advocate for the respondents. 4. Mr. Rakesh Patel, learned Assistant Government Pleader, submitted that the judgment dated 21st April, 2009 is illegal for, additional compensation awarded, is on the higher side. Mr. 3. Heard Mr. Rakesh Patel, learned Assistant Government Pleader for the appellants and Mr. Vijay. N. Raval, learned advocate for the respondents. 4. Mr. Rakesh Patel, learned Assistant Government Pleader, submitted that the judgment dated 21st April, 2009 is illegal for, additional compensation awarded, is on the higher side. Mr. Patel, further submitted that considering the quality and fertility of the land in question so also the development of the village, the award dated 30th January, 2003 passed by the Land Acquisition Officer was just and proper. Under the circumstances, the learned Reference Court ought not to have interfered with the said award dated 30th January, 2003. It is submitted that the learned Reference Court, committed an error in not considering the market value which was prevailing at the time of issuance of notification under the provisions of Section 4 of the Act of 1894 and the revenue record as well. It is further submitted that the Land Acquisition Officer, had passed a reasoned award after considering the comparable sale instances of last 5 years of the nearby areas and when comparable sale instances of same vicinity were available on the record, price of those comparable instances were need to be taken into consideration. 5. It is further submitted that though the burden was upon the respondents-claimants to prove their claim, the respondents-claimants have failed to discharge the said burden of proof although they were afforded an opportunity. It is next submitted that the claimants have placed heavy reliance on the previous award issued in the year 2008, which could not have been taken as a basis by the learned Reference Court for the purpose of determining the market value and that too of a land which was situated at a far-off distance. It is submitted that the learned Reference Court ought not to have accepted the suggested market value by the respondents-claimants without there being any material or evidence in support thereof. No other and further submissions are made on behalf of the appellants. 6. As against this, Mr. Vijay Raval, learned advocate for the respondents-claimants while supporting the judgment dated 21st April, 2009 submitted that no error has been committed by the learned Reference Court in determining the market value of the land in question at the rate of Rs. 65 per square meter and other statutory benefits available under the Act of 1894. As against this, Mr. Vijay Raval, learned advocate for the respondents-claimants while supporting the judgment dated 21st April, 2009 submitted that no error has been committed by the learned Reference Court in determining the market value of the land in question at the rate of Rs. 65 per square meter and other statutory benefits available under the Act of 1894. It is submitted that the market value determined by the Land Acquisition Officer was not correct and reasonable inasmuch as, various aspects namely fertility of the land, development in the nearby area and market value determined in the case of similarly situated lands of the adjacent area were not considered. It is further submitted that no error has been committed by the learned Reference Court and that the learned Reference Court, has considered the facilities which are available in the village and only thereafter that the additional compensation has been determined. 7. It is next submitted that the lands of village Mojri were acquired for Koliyari Irrigation Project where the Land Acquisition Officer had determined the market value at the rate of Rs. 7 per square meter; however, subsequently in the reference the learned Reference Court had vide its judgment dated 31st March, 2008 awarded additional compensation of Rs. 65 per square meter. It is further submitted that fertility of the land in question is of similar quality to the lands of village Mojri, taluka Morva and thus, the learned Reference Court has not committed any error in considering the additional compensation of Rs. 65 per square meter as has been awarded in the case of village Mojri by judgment dated 31st March, 2008. It has been submitted that the appeal filed by the appellants deserves to be dismissed. 8. Considered the oral submissions made by the learned advocates for the respective parties as well as material available on record so also the record and proceedings. 9. Before the Reference Court, on behalf of all the respondents-claimants, one of the respondents-claimants came to be examined. The respondents-claimants have also adduced documentary evidence in the nature of, namely (i) abstracts of village Form No. 7/12 of agricultural lands and (ii) copy of the judgment dated 31st March, 2008 of the Reference Court in Land Acquisition Reference No. 197 of 2000 and other connected references pertaining to village Mojri, Taluka Morva (Hadaf) acquired for the purpose of Koliyari Irrigation Project. 10. 10. The respondent-claimant No. 1 i.e. Shri Gamirsinh Ranchodbhai Pagi has deposed on oath on behalf of all the respondents-claimants by filing his affidavit at Exhibit 11, wherein he has stated that the land in question has been acquired for the purpose of Panam Dam Project; that the land in question is even and highly fertile with irrigation facilities; that the respondents-claimants were used to reap crops thrice in a year; that they used to earn net profit of Rs. 2 Lakhs per vigha per annum; that they were earning an additional income of approximately Rs. 10,000-20,000/- per annum by rearing milk giving animals, that their village has facilities of school, primary school, high school, college, government hospital, post office and the village is also connected with electricity and further the head office is hardly 9 kilometers away from the village; that there is a direct connectivity from his village to village Santrampur and Mori where, the vegetables and milk are being sold through which also there is additional earning from the sale of vegetables and milk. It has been further stated that the land in question of the respondents-claimants is similar to the land of village Mojri which had been acquired for the purpose of Koliyari Irrigation Project. It has been stated that owing to the acquisition of the land in question the respondents- claimants had suffered loss. It is further stated that all these aspects have not been considered by the Land Acquisition Officer while rendering the award. 11. In the cross examination of the respondent-claimant No. 1, it has come out that he has not produced any evidence as regards the account of his income and expenditure incurred for agricultural purposes. It has been further stated that it is not true that 50% of the expenses were incurred for agricultural purposes; that he has not produced any evidence to substantiate that the land of village Mojri and the land of the claimants are similar; that the land of the claimants as well as the land of village Mojri is at the distance of ten kilometers. 12. The testimony of the respondent-claimant No. 1 clearly reveals that the land of the respondents-claimants was fertile land with irrigation facilities and other facilities viz. electricity, water supply, schools, hospital etc. 12. The testimony of the respondent-claimant No. 1 clearly reveals that the land of the respondents-claimants was fertile land with irrigation facilities and other facilities viz. electricity, water supply, schools, hospital etc. The respondent-claimant No. 1, has further stated that the reply submitted by the appellants is erroneous and misconceived and the same is not acceptable to him. It is true that no documentary evidence has been produced to substantiate the said aspect; however, the deposition of the respondent-claimant No. 1, has not been contradicted and therefore, there is nothing to disbelieve the say of the respondent-claimant No. 1 and more particularly in view of the contents of the Award dated 30th January, 2003 of the Land Acquisition Officer. 13. Before the Reference Court, the appellants have filed common reply/written statement at Exh.4. In the reply/written statement, the contents and the averments of the Reference Application filed by the respondents-claimants have been denied. It has been further stated that while passing the award, all the aspects have been taken into account viz. the residential units, well, trees. It is only after obtaining necessary information and examining the record so also the nearby sale instances that the fair and reasonable compensation was awarded; however, the claimants, have not been able to substantiate the claim for enhancement of the compensation. It has been further stated that the market value which has been demanded is not a correct market value as on the date of the issuance of section 4 notification. It has also been stated that the demand of the claimants for compensation is on a higher side and not acceptable inasmuch as, the claimants are not entitled for the amount of additional compensation. It has been further stated that the Land Acquisition Officer had threadbare examined all the aspects relating to house, well, trees and it is only thereafter that the compensation had been awarded. In concluding paragraph of the written statement, it has been stated that the application filed before the Reference Court deserves to be dismissed. 14. No other and further evidence had been produced by the appellants. The appellants before the Reference Court, vide Exhibit 13, had filed a closing purshis declaring that they were not desirous of producing any written or oral evidence. 15. 14. No other and further evidence had been produced by the appellants. The appellants before the Reference Court, vide Exhibit 13, had filed a closing purshis declaring that they were not desirous of producing any written or oral evidence. 15. As is discernible from the award made by the Land Acquisition Officer, it has been observed that in the village, there are equipments namely well, oil engine, electric motor etc, available and main crops are corn, paddy, pigeon pea, chick pea. Though there is no industry available; however, there is electricity as well as good transportation facility with primary school in the village. The main profession of the villagers is of agriculture and that the agricultural activities is the only source of livelihood. The Land Acquisition Officer has observed that village Bhuvar, consists of tribals and that owing to the Panam Dam Project the lands of village Bhuvar and nearby villages have gone into submergence and thus, no sale instances of sale and purchase of land is available. Further, last award was made before 25 years and hence, for the purpose of determining the market value the other village of Morva taluka (Hadaf) viz. Village Mojri, can be considered. It has been recorded by the Land Acquisition Officer that the land of village Mojri, Taluka Morva (Hadaf) has been acquired for the purpose of Koliyari Irrigation Project where, for irrigated land the market value has been determined at Rs. 77,000 per hectare. It is also observed that the distance between the two villages is approximately 15 kilometers; however, the lands of two villages viz. village Bhuvar and village Mojri is of similar nature and considering the present situation, it would be appropriate to award Rs. 80,000 per hectare for the land in question. The Land Acquisition Officer accordingly, determined the market value of the irrigated land at Rs. 80,000 per hector and waste (kharaba) land at Rs. 100. Under the title “past award” it has been observed, in vernacular, to the effect that “earlier in the village no award has been made.” 16. One of the grounds raised by the appellants in support of the present appeal is that the Reference Court, has erred in determining issue No. 1 in affirmative without appreciating the fact that the Land Acquisition Officer has passed the award after taking into consideration five years sale instances of the nearby area. One of the grounds raised by the appellants in support of the present appeal is that the Reference Court, has erred in determining issue No. 1 in affirmative without appreciating the fact that the Land Acquisition Officer has passed the award after taking into consideration five years sale instances of the nearby area. The said stand on behalf of the appellants is erroneous inasmuch as, since no award had been passed in the last 25 years in the nearby villages considering the fact that the lands of nearby villages had gone into submergence, the Land Acquisition Officer himself considered it fair and reasonable to adopt the market value of the lands of village Mojri acquired for the purpose of Koliyari Irrigation Project. Clearly, the Land Acquisition Officer considering the similarity of the nature of the lands of village Bhuvar and of village Mojri himself took into account the market value of village Mojri, Taluka Morva (Hadaf) for the purpose of determining the market value of the land in question of village Bhuvar, Taluka Morva (Hadaf). Thus, as aforesaid, the stand of the appellants that the Land Acquisition Officer had considered five years sale instances of nearby villages is fallacious and lacks basis and does not merit acceptance. 17. It has also been the stand of the appellants that the Reference Court, erred in observing that the burden was upon the respondents-claimants to prove their claims and the respondents-claimants have failed in discharging the burden of proof though they were offered an ample opportunity. There lies a fallacy in the said submission as well considering the fact that the Land Acquisition Officer himself had inter alia observed viz. (i) the nature of land in question is similar to the lands of village Mojri and (ii) the village Bhuvar is semi developed village having facilities of electricity, hospital, school etc. and determined the market value taking into account the market value determined for village Mojri, Taluka Morva (Hadaf). Further, the respondent-claimant No. 1 has also stated in his deposition about similarity of the lands of village Bhuvar and the lands of village Mojri and the judgment of the Reference Court for village Mojri at the rate of Rs. 65/- per square meter so also the earning as well as the facilities available in the village. Further, the respondent-claimant No. 1 has also stated in his deposition about similarity of the lands of village Bhuvar and the lands of village Mojri and the judgment of the Reference Court for village Mojri at the rate of Rs. 65/- per square meter so also the earning as well as the facilities available in the village. The aforesaid aspects have not been contradicted or controverted by the appellants by adducing any evidence to the contrary. Therefore, it can be concluded that the burden of proving inadequacy of the amount which was on the claimants-respondents was successfully discharged and once the claimants having been able to satisfy that the award of compensation passed by the Land Acquisition Officer was inadequate, the burden shifted on the appellants to adduce evidence to substantiate the award. In the present case, the record clearly reveals that the appellants have failed to discharge the said burden. 18. The Reference Court, after considering the evidence produced on behalf of the respondents-claimants as well as the arguments advanced by both the parties, has concluded that the claimants by adducing evidence in support of their claim and considering the fact that comparable sale instances of award of land of nearby village can be taken into consideration, the same being reasonable evidence in support of the claim. It is further observed that the claimants having proved potentiality of the land in question, the burden lies upon the opponents i.e. the appellants herein to prove the difference in fertility and potentiality of the lands and that the opponents i.e. the appellants, ought to have proved that the land of village Bhuvar is of inferior quality compared to the land of village Mojri, Taluka Morva (Hadaf) covered under Land Acquisition Reference No. 197 of 2000. In view of the above, it has been observed that the appellants-opponents, have failed to discharge their burden. In the absence of any tangible material produced on record on behalf of the appellants before the Reference Court as regards the distinctive feature of differentiation between the qualities of land, it is difficult to conclude that the Reference Court committed any error in allowing the additional compensation of Rs. 65 per square meter. 19. Pertinently, the Land Acquisition Officer while determining the market value of the land in question, has taken into account the market value of Rs. 65 per square meter. 19. Pertinently, the Land Acquisition Officer while determining the market value of the land in question, has taken into account the market value of Rs. 77,000/- per hector determined for the land of village Mojri, Taluka Morva (Hadaf) which have been acquired for the purpose of Koliyari Irrigation Project in the year 1999. Thus, as aforestated it is the Land Acquisition Officer himself, who while determining the market value of the land in question, had considered the market value of the lands of village Mojri, Taluka Morva (Hadaf). Perceptibly, the award rendered by the Land Acquisition Officer relating to village Mojri, Taluka Morva was challenged before the Reference Court and the Reference Court, vide its judgment dated 31st March, 2008, had awarded additional compensation at the rate of Rs. 65 per square meter and other available statutory benefits under the provisions of the Act of 1894 together with interest at the rate of 9% p.a. from the date of taking possession till one year and thereafter at the rate of 15% p.a. till its realization. It would not be out of place to mention that when the Reference Court has granted additional compensation in the case of lands acquired of village Mojri, Taluka Morva (Hadaf) and when concededly the nature of the land in question vis-a-vis the nature of the land of village Mojri, Taluka Morva (Hadaf) is similar, then the market value determined at the rate of Rs. 65 per square meter with respect to the land in question by the Reference Court, cannot be faulted with. 20. Thus, on over all consideration of the judgment of the Reference Court, it cannot be said that the Reference Court has committed any error much less any error in law or on facts in awarding the additional compensation at the rate of Rs. 65 per square meter together with the interest and solatium. Further, the appellants-opponents have failed to point out that the judgment of the Reference Court suffers from perversity and that the Reference Court has taken into consideration irrelevant material and evidence and that the Reference Court has not considered the relevant material and evidence. 21. Under the circumstances, the captioned appeal filed by the appellants does not merit acceptance and thus, is accordingly dismissed with no order as to cost. 22. R&P be sent back to the concerned trial court forthwith.