N.D. Ojha, J. - (1.) THIS appeal has been filed by the Collector, Varanasi against the award dated 24th February, 1969, passed by the Chairman of the Tribunal constituted Under Section 371 of the U.P. Nagar Mahapalika Adhiniyam, 1959. In the memorandum of appeal eight grounds have been taken. Sri O.P. Gupta, appearing for the Appellant states that grounds other than ground Nos. 2 and 7 cannot be substantiated by him on the basis of the material on record and, there fore ,they are not pressed. As regards ground Nos. 2 and 7, he has urged that these grounds cannot be successfully pressed in view of the decision of the Supreme Court in Om Prakash v. State of U.P. AIR 1974 SC 1202.
(2.) COUNSEL for the claimant -Respondent made a prayer that the amount of solarium and pendent elite and future interest granted at the rate of 15 percent and 6 percent respectively in the award appealed against deserves to be enhanced to 30 percent and 9 percent respectively, in view of the amendments made in Section 23(2) and 28 of the Land Acquisition Act by the Land Acquisition Amendment Act, 1984 (hereinafter referred to as the Amending Act). To this prayer an objection was raised by the Standing Counsel on the ground that since the claimant -Respondent has not filed any cross -objection, neither the amount of solarium nor the amount of interest can be enhanced while dismissing the appeal filed by the Collector. We find no substance in this objection, for Rule 33 of Order 41 Code of Civil Procedure is a complete answer to it. The said Rule 33, insofar as. It is relevant for the disposal of the aforesaid objection, reads as follows: 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 and 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 as, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. One of the special features of this case is that in the instant case when the appeal was preferred in the year 1969 no cross objection in regard to solarium and future and pendent elite interest on the basis of the Amending Act could have been filed because the said Act was passed in the year 1984. Even in regard to such cases where a cross -objection could have been filed, it has been held by the Supreme Court in Panna Lal v. State of Bombay AIR 1963 SC 1516 in paragraph 14 of the report as follows: We are not, at present advised, prepared to agree that if a party who could have filed a cross objection Under Order 41 Rule 22 of the Code of Civil Procedure has not done so, the Appellate Court can under no circumstance give him relief under the provisions of Order 41 Rule 33 of the Code
(3.) IN this view of the matter and in view of the decision of the Supreme Court, 1985 AWC 861 SC in Civil Appeal No. 1519 -23 of 1985 Bhang Singh v. Union Territory of Chandigarh, we are of the opinion that the prayer made by counsel for the claimants Respondent for increasing the amount of solarium and interest pendent elite and future in view of the Amending Act, deserves to be allowed.;