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Judgment
An extent of Ac. 3-34 cents were acquired by issuance of the notification under S. 4(1) of the Land Acquisition Act (Act 1 of 1894) for short, "the Act, on June 23, 1977 published in the Slate Gazette for the purpose of establishing an electrical sub-station. The Land Acquisition Officer determined the market value at Rs.7,500/-pcr acre. On reference under S. 18, the civil court confirmed the market value of the land but enhanced the market value regarding the trees. They are Rs.894/- and Rs. 13,108/-respcctively. As against the amount awarded for the trees, the appeal has been filed. The contention of Sri V. R. Reddy, learned Standing Counsel for the Board is that the Tribunal below has committed grievous error in applying the capitalisation method in determining Ihc market value of the trees. This point is no longer res integra and is covered by a judgment of this Court reported in in G. Manikyam v. Dist. Social Welfare Officer, Eluru (LAO 1987(2) API J 60(SN)). This Court has considered in extcnso the method of computation of the market value with regard to the trees and held that if the trees are income-yielding trees, then the income has to be calculated on the basis of the actual yielding + 20 times capitalization. If the trees do not bear any fruits, they have to be values as firewood and market value has to be determined. Separate market value had to be given to the lands as well as the small number of trees. If the trecs are large in number, no separate value to the land is to be given as the interesl in the land include standing trees which is a component to fix the market value. Therefore, determination of Ihc market value to the trees by the Court is valid in law.
Sri E. Manohar, learned Counsel for the claimants has contended that the Court below was not justified in refusing to grant solatium on the market value determined to the trees. The solatium is a statutory benefit given under S. 23(2) of the Act. It is a statutory duty case on the Court to award solatium. Therefore, the lower Court ought to have granted the solatium also. This was resisted by Sri V. R. Reddy contending that the claimants have not filed any cross-objections and therefore they are not entitled to claim solatium. Though I find force in the contention of the State, it is difficult to give acceptance to the same. O.41 .R. 33, C.P.C. postulates thus :
"Power of Court of appeal : The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection : (and may, where there have been decrees in cross-suits or where two or more decrees are passed in the suit, be exercised In respect of all or any of the decrees, although an appeal may not have been filed against such decrees).
Provided that, the appellate Court shall not make any order under S. 35-A in pursuance of any objection which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
A reading thereof clearly postulates that where an appeal ought to have been filed against any part of the decree but notwithstanding the non-filing of the appeal the Court may exercise the power in favour of all or any of the respondents although such a respondent may not have filed any appeal or objection. This provision was interpreted by the Supreme Court in Giasi Ram and Others Vs. Ramjilal and Others, . In that case, the facts are that a suit was filed for a declaration that the alienations by the deceased were not binding after his life time. The plaintiffs are the sons, widow and the daughter. The suit was decreed only in favour of the sons on the ground that the sons alone are entitled to file the suit. The widow and the daughters are not entitled to lay the suit. Accordingly, the relief was not granted, Against the decree, an appeal was filed and cross-objections for disallowing the claim of the widow and the daughters were not filed. Then, a contention was raised that they are also equally entitled to the declaration. While, accepting the contention and considering the effect of O.41, R- 33, C.P.C. it was held thus :
"The expression "which ought to have been passed" means "what ought in law to have been passed and if the appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass" or make such further or other decree or order as the justice of the case may require".
This principle was reiterated in Koksingh Vs. Smt. Deokabai, . The facts in that case are that a suit was filed for selling aside a sale-deed, for recovery of the amount and also for a charge. The trial Court decreed the suit declaring the sale as invalid and granted the money decree but no charge has been created. An appeal was filed against the decree and no cross-objections were filed as regards the omission to grant a charge. When the point was pressed fordccrcc of charge, the appellate Court has granted the relief. On appeal, the Supreme Court speaking through Mathew, J. held thus (para 4) :
"We are unable to accept this contention. Under O.41 R. 33 of the C.P.C. the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree."
Accordingly decree for a charge granted by the appellate Court was upheld. Thus, it is settled law that notwithstanding the omission to file an appeal against the decree by the plaintiffs or claimants, as the case may be, the appellate Court is competent, in exercise of its power under O.41 R. 33, CPC to grant such a relief as is warranted on given facts and circumstances. The question, therefore, is the omission to file cross-objections for the non-grant of solatium would be an appropriate case for this Court to interfere under O.41 R. 33, CPC. S. 23(2) of the Act provides thus :
"In addition to the market value of the land as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition."
In addition to the market value of the land as above provided, the Court shall in every case award 30% solatium for compulsory nature of acquisition, thereby, a statutory obligation is cast on the Court to award solatium on the market value determined at the prescribed rate. Accordingly, I hold that the claimants are entitled to 30% solatium under the Amendment Act and this Court is obligated under S. 23(2) of the Act. The CPC armed the Court under O.41 R. 33 to accord the relief though no cross-objection was filed in this regard. The claimants are entitled to the benefits of the Amendment Act 68 of 1984 including the enhanced solatium and interest subject to the condition that in the event the Supreme Court holding that the Amendment Act is inapplicable to the pending appeals, it is open to the State to file an application for amendment of the decree as regards the enhanced solatium and interest.
It is next contended by the appellant that the claimants have not paid any Court-fee, therefore, they are not entitled to the relief. A Pull Bench of this Court considered in Kesireddy Appala Swamy and Others Vs. Special Tahsildar, Land Acquisition Officer, Central Railway, Vijayawada, Jaganmohan Reddy, J. (as he then was) speaking for the Full Bench has held that it is not necessary to pay any Court-fee on the solatium and interest. Accordingly, the need to pay any court-fee also does not arise.
The appeal is accordingly dismissed. No costs.
Appeal dismissed.