K.K TATED, J.:— All the above First Appeals are directed against the common Judgment and award dated 18th December, 2001 passed by the Additional District Judge, Jalgaon. As identical question of facts and law arise in these Appeals, it will be appropriate to dispose of all these Appeals by common Judgment.

2. The relevant facts in the present case are that the Special Land Acquisition Officer (for short ‘S.L.A.O’) issued notification under section 4 of the Land Acquisition Act, 1894 (for short ‘the Act of 1894’) dated 21st August, 1997 for respondents/original claimants land from village Singayat, Taluka-Jamner, District-Jalgaon for Waghur Project. After following due process of law S.L.A.O issued notification under section 6 of the Act of 1894 on 26th February, 1998. After considering the objections raised by respondents/original claimants, the S.L.A.O declared the award under section 11 of the Act of 1894 dated 18th August, 2000 and awarded compensation in respect of acquired lands as follows;

GROUP RATE PER HECTARE (Rs.) 2 25,875/- 3 32,200/- 4 34,500/- 5 39,100/- 6 43,700/- 7 43,700/- 8 43,700/-

3. Being aggrieved by the said award, respondents/original claimants preferred Reference under section 18 of the Act of 1894 for enhancement of compensation. In the said Reference, the Reference Court awarded compensation in respect of Bagayat land at the rate of Rs. 4,00,000/- per Hectare, in respect of Jirayat land Rs. 2,00,000/- and in respect of Pot kharab land Rs. 1,00,000/- per Hectare. The Reference Court also enhanced marginal compensation in respect of fruit bearing trees.

4. Being aggrieved by the Judgment and award passed by the Reference Court, the S.L.A.O preferred above mentioned First Appeals challenging the Judgment and award passed by the Reference Court dated 18th December, 2001. It is the case of the appellants that the learned Reference Court has not considered the exact market rate of the lands under acquisition on the date of notification under section 4 of the Act of 1894 and without considering the record of the S.L.A.O, Jalgaon the exorbitant amount of compensation is granted in favour of the respondents/original claimants. The appellants further contended that the Reference Court has not considered the evidence adduced by the State Government by examining the Awwal Karkun from the office of the S.L.A.O, Jalgaon, who has categorically stated that the compensation granted by the S.L.A.O was proper and in accordance with the provisions of law. They further contended that they produced the valuation report of the fruit bearing trees and on the basis of the same, the Reference Court should have awarded compensation in respect of fruit bearing trees. It is the case of the appellants that the Reference Court has considered the sale instance dated 16th January, 1996 in respect of 50 Rs land from village Shingayat for consideration of Rs. 1,25,000/- and another sale instance dated 13th August, 1997 for 40 Rs from village Hingane for the consideration of Rs. 1,02,000/- which are not comparable sale instances for considering the market value of acquired land.

5. The learned A.G.P appearing on behalf of the appellants contended that the Reference Court erred in coming to the conclusion that the market value of Bagayat land is to be calculated double the market rate of Jirayat land and market value in respect of Pot Kharab land to be calculated half of the market value of Jirayat land. On the basis of these submissions, learned A.G.P appearing on behalf of the appellants prayed that the Judgment and award passed by the Reference Court dated 18th December, 2001 to be set aside.

6. Learned A.G.P appearing on behalf of the appellants submitted that witness No. 1 for the original respondent - State Shri S.S Beldar specifically stated that the S.L.A.O awarded the proper price in respect of the acquired land.

7. It is to be noted here that DW No. 1 Beldar was working as Awwal Karkun in the office of the S.L.A.O, Jalgaon. The award dated 18th August, 2000 under section 11 of the Act of 1894 was passed by the S.L.A.O and not by Awwal Karkun, therefore, the evidence given by the Awwal Karkun cannot support the case of the appellants at all. Reference under section 18 of the Act of 1894 is not an Appeal against the award and the Court cannot take into account the material relied upon by the S.L.A.O in his award unless the said material is produced and proved before the Court in accordance with the Evidence Act. The appellants failed to lead any cogent evidence to show that the market value awarded by S.L.A.O was according to the prevailing market rate as on the date of issuance of notification under section 4 of the Act of 1894 dated 21st August, 1997.

8. Learned A.G.P appearing on behalf of the appellants submitted that the Reference Court erred in relying on sale instance dated 16th January, 1996 in respect of 50 Rs land and sale instance dated 13th January, 1997 in respect of 40 Rs land for deciding the market value of the acquired lands.

9. On the other hand learned counsel appearing on behalf of the respondents pointed out that only these two sale instances are comparable sale instances for determining the market value of the acquired land. The notification under section 4 of the Act of 1894 issued on 21st August, 1997, whereas both the sale instances are from the same period i.e of the years 1996 and 1997.

10. It is pertinent to note that amount of compensation cannot be ascertained with mathematical accuracy. The comparable instances have to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, a suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. For this purpose we can rely on the Apex Court Judgment in the matter of Viluben Jhalejar Contractor (Dead) By Lrs. v. State Of Gujarat, reported in (2005) 4 SCC 789. Paras 18, 19 and 20 of the said Judgment reads as under:

“18) One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.

19) Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.

20) The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition…….”.

The Apex Court held that the amount of compensation cannot be ascertained with mathematical accuracy. We have to consider plus and minus factors for that purpose. In the present case two sale instances produced by the respondents/original claimants of the year 1996 and 1997 which can be considered for fixing the market value of the acquired land. The Reference Court considering these two sale instances, came to the conclusion that the claimants are entitled to compensation in respect of acquired Jirayat land at the rate of Rs. 2,00,000/- per Hectare. Both the sale instances were in respect of Jirayat land only. The rate of land in respect of sale instance dated 16th January, 1996 comes to Rs. 2,50,000/- per Hectare and rate of land in respect of sale instance dated 13th January, 1997 comes to Rs. 2,55,000/- per Hectare. Considering both the sale instances the Reference Court decided the market value in respect of acquired Jirayat land at the rate of Rs. 2,00,000/- per Hectare. It is to be noted here that out of the acquired land, some land was Bagayat land, as even the S.L.A.O in his award under section 11 of the Act of 1894 specifically stated that the claimants have installed drip irrigation in their respective fields. The Reference Court decided the market value of Bagayat land double the value of Jirayat land. It is pertinent to note here that previously our High Court also took the same view that market value of Bagayat land can be double the value of Jirayat land, in the matter of Narayan s/o Sambhaji Shelke v. State of Maharashtra through the Collector, Latur, reported in 2003 (7) LJ SOFT (URC) Page 60. This Court held that:

“The learned advocate pointed out that the facts of the case, referred to above, are mostly similar to the facts of the present case before us. There is ample evidence on record, which will indicate that some of the acquired lands are irrigated lands and even crops on irrigation are grown in this fields. Taking into consideration all these facts and also the view taken by this Court earlier, referred to above, in the present case also, the market value of the irrigated or bagayat land should be double than the value of dry crop land (Rs. 18,000/- per acre) and it should be Rs. 36,000/- per acre or Rs. 90,000/- per hectare”.

11. In similar way in the matter of State of Maharashtra v. Baliram Girdhar Patil, reported in 2006 (6) Mh.L.J 82 this Court held that:

“The trial Court has accepted the sale deeds Exh. 12, Exh. 14 and Exh. 16. The trial Court has also accepted market rate of jirayat land to that of Rs. 20,000/- per acre (Rs. 50,000/- per hectare). The trial Court, however, has considered the suggestion of learned District Government Pleader that market price of irrigated land can be one and half times more to that of the dry crop land. In the first instance, suggestion given in the evidence of witness cannot take place of proof Secondly, availability of irrigation facility to the agricultural land is an important factor. The value and utility of the land in relation to its productivity depends upon the facility of irrigation to the land. Source of irrigation gives assurance for procurement of a good crop in such agricultural land. Cash crops give more and assured yield. Crop pattern can be scheduled and executed, if irrigation facility with water source is available. In the absence of irrigation facility, owner of such agricultural land i.e dry crop land, is left at the mercy of nature. In this view of the matter, it would not be proper to consider the market price of irrigated land by one and half times more to that of the dry crop land. In my view, if the market price of dry crop land is worked out, for working out the market price of irrigated land, in the absence of any other evidence on record, double the market rate of jirayat land has to be awarded. The objective of the Land Acquisition Act, 1894, while awarding amount of compensation, has to be kept in mind, for determining the market price of the agricultural land. As noted above, in the present case, the trial Court has referred to the suggestion of the learned District Government Pleader and has determined the market value of bagayat land to that of one and half times more of the jirayat land, illegally”.

12. In similar way the Reference Court awarded compensation in respect of Pot Kharab land at the rate of Rs. 1,00,000/- per Hectare i.e 50% of the market value of the Jirayat land. It is to be noted that the Pot Kharab land cannot be equated with the Jirayat land. It may be valued at 50% of the market value of Jirayat land. Similar view was taken by our High Court in the matter of State of Maharashtra v. Pralhad Bajrang Magar, reported in 1996 (1) B.C.J 247, wherein it is held that:

“Pot kharab land cannot be equated with the jirayat land, it may be valued at fifty percent of the market value given to jirayat land”.

13. In this group of Appeals, the Reference Court at the time of granting enhanced compensation in respect of fruit bearing trees, have taken into consideration the evidence of PW2. PW2 visited the acquired land for preparing valuation and submitted his valuation report. His occupation was horticulture consultant and valuer. He has specifically stated that he estimated the valuation of trees as per his observation and inspection. On the basis of the said valuation report the Reference Court awarded marginal enhancement in respect of fruit bearing trees.

14. Considering the submissions of both the parties, we feel that it is not necessary to interfere the Judgment and award passed by the Reference Court dated 18th December, 2001 in abovementioned matters. Therefore all the above Appeals preferred by the Special Land Acquisition Officer are dismissed with no order as to the costs.

Appeals dismissed.