MEDICAL NEGLIGNECE = there was no medical negligence committed by respondent No. 1 in treating the patient. It was the heart failure which led to the death of the patient. However, respondent No. 1 has committed unfair trade practice in employing the untrained and unqualified staff in his hospital. In these circumstances, the appellants are awarded compensation to the extent of Rs.50,000/- which will be payable by respondent No. 1 alone.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2629 OF 2011 [Against the order dated 06.04.2011 in First Appeal No. 1452/2005 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh] Jassi Hospital & Heart Care Centre College Road, Fazilka Through Dr. Yashpaul Jassi … Petitioner Versus 1. Bhupinder Singh Brar S/o Shri Chanan Singh R/o Radha Swami Colony, Fazilka District Ferozepur 2. Nirvair Singh S/o Bhupinder Singh Brar R/o Radha Swami Colony, Fazilka District Ferozepur … Respondents Before : HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HON’BLE MR. S.K. NAIK, MEMBERS For the Petitioner : Mr. Kamleshwar Gumbar, Advocate Pronounced on : 4th January, 2012 O R D E R PER S.K. NAIK, MEMBER 1. Jassi Hospital & Heart Care Centre, College Road, Fazilka, who were the opposite party no.1 before the District Consumer Disputes Redressal Forum, Ferozepur, have filed this revision petition seeking to challenge the order dated 6th of April, 2011 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh passed in First Appeal No. 1452 of 2005. The operative part of the said order reads as under :- “51. In view of the discussions held above, we reach the conclusion that there was no medical negligence committed by respondent No. 1 in treating the patient. It was the heart failure which led to the death of the patient. However, respondent No. 1 has committed unfair trade practice in employing the untrained and unqualified staff in his hospital. In these circumstances, the appellants are awarded compensation to the extent of Rs.50,000/- which will be payable by respondent No. 1 alone.” 2. Since both the District Forum as well as the State Commission, on appreciation of the evidence adduced by both sides by their detailed orders have arrived at the conclusion that the line of treatment adopted by the treating doctors cannot be said to be a deviation from normal medical practice and, therefore there was no medical negligence; there is no need for us to go into the details of the treatment regimen followed by the doctors, especially when the complainant has not challenged the findings before us. The limited question that remains for adjudication is as to whether the petitioner/opposite party no.1/Jassi Hospital & Heart Care Centre had indeed employed certain staff to take care of its patients, who were not fully qualified and trained to be entrusted with the care of such patients. 3. Suffice it to say that petitioner/opposite party no.1 has not denied the allegation of the complainant that Rajinder Singh @ Raja was working as the compounder in its hospital. In the affidavit, filed by the said Rajinder Singh, albeit before the State Commission, he has deposed that injection Dopamine was administered by him on the deceased patient. Further, in the absence of any denial/rebuttal by the petitioner/opposite party no.1 that the qualification of Rajinder Singh was merely that of a 10+1 and that he had no qualification or training of a compounder, there is no escape from the conclusion that the petitioner/opposite party no.1 had engaged the unqualified and untrained Rajinder Singh and had entrusted him with the care of the patients. Mere claim by Dr. Jassi that he had administered the injection Dopamine, on the face of deposition made by said Rajinder Singh cannot be believed. The State Commission has rightly discarded the technical plea of the petitioner/opposite party no.1 that the affidavit of Rajinder Singh could not have been admitted at the stage of appeal. 4. We find that the State Commission has very correctly taken the view that proceedings under the Consumer Protection Act, 1986 being summary in nature, strict adherence to the provisions of the Evidence Act would not be applicable. What would be of relevance in the dispensation of substantive justice in a case of this nature would depend more on the preponderance of evidence and probability. In this case, para 43 to para 46 deal at length the evidence on the engagement of untrained/unqualified staff by the petitioner/opposite party no.1/Jassi Hospital & Heart Care Centre and, therefore, we do not find any merit in this revision petition, which calls for interference in our supervisory jurisdiction under Section 21(b) of the Consumer Protection Act, 1986. 5. The revision petition, accordingly, is dismissed, however, with no order as to cost. Sd/- ( R. C. JAIN, J. ) PRESIDING MEMBER Sd/- (S.K. NAIK) (MEMBER) Mukesh

the Hon’ble Supreme Court reported in the case of National Insurance Company Ltd. v. Swaran Singh and others[1] and found that even if the driver of the vehicle does not have a valid driving license so far as the third parties are concerned, the insurance company is liable to pay the same.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 2681 of 2011 JUDGMENT: The appeal is filed against the judgment dated 23.04.2004 in M.O.P.No.1274 of 2001 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Visakhapatnam questioning the liability of the insurance company. A claim for compensation was made for the injuries received by the petitioner in a motor accident on 02.02.2001 while he was going on foot, a goods auto bearing No.AP-31-V-7353 driven by its driver in a rash and negligent manner and dashed against the petitioner, as a result of which, he received multiple injuries. The appellant herein is said to be 3rd respondent, with whom the vehicle was said to have been insured and the 3rd respondent contended that there is no valid driving license for the driver of the auto and apart from that the petitioner is put to strict proof of rashness and negligence. The lower Tribunal after considering the evidence on record, accepted the cause of action and granted a compensation of Rs.75,000/- but did not exonerate the liability of the appellant. Hence, the present appeal is filed. The point for consideration is whether the appellant is not liable to pay compensation? POINT: The lower Tribunal has relied upon the decision of the Hon’ble Supreme Court reported in the case of National Insurance Company Ltd. v. Swaran Singh and others[1] and found that even if the driver of the vehicle does not have a valid driving license so far as the third parties are concerned, the insurance company is liable to pay the same. The lower Tribunal in para 11 has considered this aspect and considering the evidence of R.W.1 and also the Motor Vehicle Inspector’s report Ex.A-2, it was held that the driver has no driving license. However, the material on record does not show that it is not a case of the driver of the vehicle, who was not having a license at all. The driver of the vehicle was said to be having a non-transport license while driving a goods vehicle. In fact, in the counter, it was pleaded that the petitioner is put to strict proof of the driver holding a valid driving license to drive the goods auto and the evidence of R.W.1, which is relied on and also the First Information Report shows that the driver had no valid driving license to drive the auto at the material point of time. Consequently, it clearly goes to show that the driver of the vehicle was having a particular license and by applying the decision stated supra in Swaran Singh’s case the lower Tribunal has rightly accepted the contention of the petitioner and the insurance company cannot avoid the liability. Therefore, the appellant is at liberty to recover the amount from the owner of the vehicle. Accordingly, the appeal is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 11-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 2681 of 2011 DATE: 11-11-2011 MR [1] 2004 SCCL COM 22

V.D.Rajgopal=Finally, it is said that an unscrupulous politician in a position of authority finds willing accomplices even in the top echelons of administration who will go to any length of making or braking rules or law as may be necessary to oblige them or curry their favour or personal gains and it is this scenario which is most disturbing and needs to be tackled with seriousness. 14. In view of the circumstances stated above, it will be an adventure to grant a bail to the respondent at this stage.

*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRIMINAL PETITION NO.13303 OF 2011 % 26-12-2011 # State rep. by Central Bureau of Investigation, Anti Corruption Branch, Hyderabad, ….Petitioner Vs. $ V.D.Rajgopal son of D.Narasimhulu …. Respondent !Counsel for the Petitioner: Sri P.Kesava Rao, SPL.SC FOR CBI Counsel for the Respondent: Sri C.Padmanabha Reddy, Senior Counsel Head Note: ? Cases referred: (2005) 8 SCC 21 = AIR 2005 SC 3940 (2011) 5 SCC 296 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.P.No.13303 OF 2011 ORDER 01. This is an application filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 to cancel the bail granted to the respondent herein who is arrayed as Accused No.3 in the charge-sheet filed by the C.B.I. 02. The identity of this case is known because of its publicity and also the magnitude of fraud and huge gains involved in illegal mining. The respondent/A-3 is said to be the Director of Mining and Geology of Government of Andhra Pradesh, who worked in that capacity from 01-08-2005 to 20-03-2010. Obulapuram Mining Company (O.M.C)/A4 is said to be owned by a powerful politician and influential person by name Gali Janardhana Reddy and his brother, who claims to have acquired the rights in that Company. More details of his acquisition are not very much necessary for the purpose of this case. There has been consistent complaints of illegal mining and also illegal activities of the O.M.C. which obtained the lease and the Government itself had to issue G.O.Rt.No.723 dated 25-11-2009 on the basis of report of a Committee which has gone into the allegations of illegal mining and found prima facie violations and the respondent herein, who was the Director of Mining and Geology, was also directed to take immediate action. It is also to be noted for a brief reference that the Supreme Court has also on complaint of large scale violations and involving huge financial gains has appointed a Committee, which is known as “Empowerment Committee” and the Empowerment Committee has submitted its report finding prima facie and almost conclusive material about the illegal activities in the mining area owned by the O.M.C. The C.B.I has registered a case in R.C.17(A)/2009 on 07-12-2009 and as against that O.M.C. has gone in Writ and the proceedings were stayed for some time and ultimately investigation was permitted to be taken up by virtue of the orders dated 16-12-2010 in Writ Appeal No.532 of 2010. Thereafter, in the course of investigation the C.B.I has arrested Accused Nos.1 and 2 representing O.M.C. and the respondent herein was arrested on 12-11-2011 and was taken to police custody for a period of one week and thereafter the charge sheet was filed on 03-12-2011. Subsequently, the respondent has filed the application for bail in Crl.M.P.No.2368 of 2011 and the learned C.B.I. Judge by his order dated 15-12-2011, which is under appeal, granted bail. The grievance of the C.B.I is that the reasons given by the learned Judge are not at all valid and reliance of the judgment of the Supreme Court pertaining to 2-G Scam wherein some of the accused by name Sanjay Chandra and others were said to have been released, has no application to the facts of this case. It is also further pleaded that the learned Judge has not taken into consideration the basic principles of grant of bail before applying the above judgment and the learned Judge also did not consider any of the objections which are valid and in the interest of justice to deny the bail and consequently the order of bail suffers from arbitrariness, non-application of mind and giving scope for defeating the cause of further investigation and justice. 03. However, Sri C.Padmanabha Reddy, the learned Senior Counsel representing the respondent strongly contends that the personal liberty of the respondent is a primary consideration and the investigation so far as the respondent is concerned, even according to the C.B.I., is over and his detention in the prison is not warranted. According to him, the constitutional right of freedom has to be protected and he reiterated the principles which were exhaustively referred to by the Supreme Court in the above case of Sanjay Chandra. 04. Before considering the rival contentions, I am aware of the limitations that the cancellation of the bail by a Court is a power to be exercised sparingly and generally the interference is not called for. But, however, the power to consider the validity of the order and the non-application of mind and arbitrariness of the court in granting the bail cannot be ignored and if such order is passed, it is the duty of this Court to correct it. 05. The learned Judge has not evidently considered any of the objections seriously raised by the C.B.I. about its apprehensions. The learned Judge has taken the case of Sanjay Chandra and this present case as similar and consequently on the principle laid down in that case as to the grant of bail when investigation is completed, so far as this accused is concerned, the benefit of bail was granted. 06. It is quite clear that the learned Judge has not gone into the facts of Sanjay Chandra’s case. There cannot be any dispute about the legal principles about the right of bail enunciated in the above case with reference to the several decisions referred therein. It is also to be noted that no two cases will be similar and it is for the Judge to assess and find out the relevancy of the cases. The law also recognizes the power of Court to withhold bail in particular cases. In Sanjay Chandra’s case it was not one where the accused were arrested during the course of investigation. It was a case where the accused were summoned after filing of the charge sheet and on the date of their appearance, they were remanded to judicial custody. The substantial question raised was about the legality of such remand. Added to that, in that case applications were repeatedly filed and dismissed and after commencement of the trial and examination of some of the witnesses, the court was inclined to grant bail since they are not public servants and their custody was not required. The petitioners in those applications were the representatives of the Companies who got some benefit. It is to be noted that still in 2-G Scam the principal accused who was erstwhile Minister and his Private Secretary, who is a public servant, are not yet released by the Court. The learned Judge has failed to take into consideration these facts and failed to note as to at what stage the Supreme Court has applied the principles of liberty and right to bail in that case. Therefore, the sole ground on which the learned Judge has granted bail is not tenable and though there cannot be any dispute about the principle of right to bail, the question is whether the case on hand warrants release at this stage. It is also to be noted that the bail application of one of the public servants who was involved in that case was denied by the High Court, making a clear distinction between the case of a public servant and the case of Sanjay Chandra and others. It will be relevant to refer to the decision in State of U.P Vs. Amarmani Tripathi[1] wherein the accused was a minister, accused of murder, the Supreme Court has held in para.18 as under:- “it is well settled that the matters to be considered in an application for bail are (1) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati Vs. NCT, Delhi and Gurcharan Singh Vs. State (Delhi Admn.). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant of bail stated in Kalyanchandra Sarkar v. Rajesh Rajan: “11. The law in regard to grant or refusal is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)” 07. Keeping in view the above law, it is important to note that the respondent was the Director of Mines and Geology and being a public servant, his brother-in-law by name D.Rajasekhar was inducted as a Director of O.M.C. w.e.f. 11-07-2005, though he is said to have submitted resignation as Director on 17-02-2007, he is said to have filed the application on 23-07-2007 for grant of lease. The principles of law and duties of the public servants are quite clear to the effect that whenever a close member of the family is associated with any business, firm or any activity, he shall distance himself and disassociate from any of the decisions benefiting the said Company. But, however, in this case the respondent has not done so. The material collected by the investigating agency clearly goes to show that he was instrumental in processing and granting of lease to O.M.C. under his supervision only and when he is accountable for checking the illegalities of the subject of mining under his control, he has not taken any action. At this stage, it is suffice for me to say that he was a mute spectator of the illegalities in mining which was found true by the Empowerment Committee of the Supreme Court and also the Three-member Committee constituted by the Government of A.P. A reasonable inference of collusion or conspiracy can be prima facie drawn. Though the respondent may take a defence that the permits for transportation of the ore was only issued by his subordinate, it is difficult to believe that by due exercise of care and taking note of the complaints which were pouring in, the respondent could not have prevented the illegalities. Therefore, this is a case where the respondent consciously and knowingly allowed the illegalities in mining, evidently, to benefit O.M.C. in which his brother-in-law was a Director. The question as to whether the respondent has ignored the valid applications of others who gave complaints is a matter to be decided after the trial. Therefore, there is sufficient material of involvement of the respondent in conspiracy and the investigation done by the C.B.I is to that effect only. This accusation, if proved, is punishable. 08. The bail was claimed and granted on the ground that the investigation is completed and charge sheet is filed so far as the respondent is concerned. It is to be noted that crime as it was registered relates to the complicity of several persons having acted in conspiracy. If such is the case, it is the liability of all the conspirators that has to be investigated into and investigation in a crime is said to be completed only when the entire final report is submitted in the registered crime against all the accused persons. In fact, it is the claim of the C.B.I. that the investigation is not yet completed and against the co-conspirators the charge sheet is not filed. In fact, the charge sheet filed in the Court clearly shows that there was active involvement of another public servant against whom the investigation is to be completed. Apart from it, it is the objection of the C.B.I. that ill-gotten wealth has to be traced since there are allegations of demand of money. Therefore, the learned Judge has erred in coming to an opinion that the investigation in this case is completed. 09. Added to that the matter is before Supreme Court with regard to gravity of illegal mining by the Accused No.1 with O.M.C and other Companies in Bellary. It will be apt here to extract the order dated 18-11-2011 of the Supreme Court in S.L.P.7366-7367/2010 as under:- “In the Status report filed in C.B.I case No.R.C.17(A)/2009, Hyderabad (Obulapuram Mining Case) it has been stated that C.B.I will complete the investigation and file the charge sheet on or before 04-12-2011, after taking into account the stipulated period of 90 days. The investigation is being carried out on day-to-day basis under the supervision of Joint Director, C.B.I, Hyderabad. Place the matter on 20-01-2012, on which date this Court would like to see the charge sheet which the C.B.I proposes to file.” 10. If one goes by experience, such an order passed by the Supreme Court to go through the charge sheet is a rare order. One should understand the severity of the crime and the concern of the Court. Nobody knows as to what direction the Supreme Court may give after going through the said charge-sheet to the C.B.I. This should not have been ignored by the learned Judge. Not only that even today the learned Judge has not applied his mind and taken charge-sheet on file. That being the situation, a judicious mind should be over-cautious in dealing with the cases of this nature. 11. When the case itself is at preliminary stage and investigation is not completed, it is a far cry to consider that the trial may not be completed early and the accused has to languish in jail for a longer time. This is not a practical factor to be considered at this stage. In fact, so far as the apprehensions with regard to delayed trial and also granting of bail to the other accused persons is concerned, the Supreme Court has considered these aspects in Central Bureau of Investigation, Hyderabad Vs. Subramani Gopalakrishnan and another[2]. At this stage, it is too early to decide as to whether trial will take long time and if there are any undue delays. 12. So far as the apprehension of the C.B.I about the interference with the further investigation by the respondent is concerned, it cannot be easily ignored. The reason is investigation against the co-conspirators is not completed and in fact there seems to be a blame game between the public servants and when the respondent has got personal interest in O.M.C. where his brother-in-law was Director and association of the respondent with Accused Nos.1 and 2 is said to be close, then there is every possibility of tampering with the investigation or influencing the investigation involving the co-conspirators. That is the reason as to why in the decision referred above, the Supreme Court has stated that while granting the bail the Court has to take into consideration the character, behaviour, means, position and standing of the accused and also the danger of justice being thwarted by grant of bail. It can be said that these considerations are applicable to the facts of this case. 13. Therefore, I have no hesitation in holding that the order of bail granted by the learned Judge is arbitrary without applying the principles of law concerning case of this nature and drawing unnecessary inferences from other cases. The bail granted therefore is liable to be cancelled for the following reasons:- 1. There is more than sufficient and conclusive material gathered about the illegalities and illegal mining when the respondent was in control of the Mining Department as per the report of the Empowerment Committee of the Supreme Court and also the Three-member Committee appointed by the Government of A.P. Further the investigation has also establishes serious offences; 2. The respondent being public servant has got personal and undue interest in O.M.C in which his brother-in-law was Director and thereby the theory of conspiracy to benefit A-4 cannot be said to be ill-founded; 3. The theory that the investigation is completed is not correct since the investigation in the entire crime is not completed and as against the co-conspirators the investigation is still in progress and at a vital stage; 4. When the respondent has got personal interest and when the investigation against the co-conspirators is not yet completed, if he is to be on bail, taking into consideration his character, power etc., the interference with the investigation and influencing it cannot be ruled out when witnesses are coming forth to give the evidence which is vital. 5. The Court itself has not applied its mind and not yet taken the charge sheet on file; 6. Last but not the least is the fact that the Supreme Court itself intended to see the charge sheet, posted the matter to 20-01-2012, the purpose of it can only be known only on the date of hearing of the case and the orders to be passed by the Supreme Court; 7. Finally, it is said that an unscrupulous politician in a position of authority finds willing accomplices even in the top echelons of administration who will go to any length of making or braking rules or law as may be necessary to oblige them or curry their favour or personal gains and it is this scenario which is most disturbing and needs to be tackled with seriousness. 14. In view of the circumstances stated above, it will be an adventure to grant a bail to the respondent at this stage. 15. Accordingly, the Criminal Petition is allowed and the order in Crl.M.P.2368 of 2011 is set aside and petition is dismissed. _______________________ N.R.L. NĀGESWARA RĀO,J 26-12-2011 Note: L.R. Copy to be marked: YES (B/O) TSNR [1] (2005) 8 SCC 21 = AIR 2005 S.C.3940 [2] (2011) 5 S.C.C. 296

$ Smt.Y.Srilakshmi =In cases of this nature and when there is influence and power for the respondent and her husband, it will not be desirable or proper to expect the investigating agency to disclose as to what is the nature of evidence they intend to collect and further investigation to be taken up by them, when particularly the cooperation of the respondent during the course of police custody is said to be minimal. 32. Therefore, in view of the above circumstances, I have no hesitation in holding that the order passed by the learned Judge is not legal and is liable to be set aside and since investigation against the respondent is not yet completed, it will be hazardous for the investigating agency to gather the entire evidence if the respondent is to be on bail.

*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRIMINAL PETITION NO.13302 OF 2011 % 02-01-2012 # State rep. by Central Bureau of Investigation, Anti Corruption Branch, Hyderabad, ….Petitioner Vs. $ Smt.Y.Srilakshmi wife of M.Gopikrishna …. Respondent !Counsel for the Petitioner: Sri P.Kesava Rao, SPL.SC FOR CBI Counsel for the Respondent: Sri C.Padmanabha Reddy, Senior Counsel Head Note: ? Cases referred: (2005) 8 SCC 21 = AIR 2005 SC 3940 AIR 2010 S.C. 802 AIR 2009 S.C. 1706 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.P.No.13302 OF 2011 ORDER 01. This is an application filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure,1973 to cancel the bail granted to the respondent herein who while working as a Secretary to the Industries and Commerce Department, Government of Andhra Pradesh, Hyderabad is said to have been involved in criminal conspiracy and the other offences in granting lease to Gali Janardhana Reddy and another and the case being popularly known as Obulapuram Mining Company Case(O.M.C.). A crime in RC.No.17(A)/2009 was registered on 07-12-2009 against which O.M.C has gone in Writ and obtained stay of the proceedings and ultimately the stay was vacated on 16-12-2010 and thereafter the investigation was taken up by the C.BI and in the course of investigation the accused Gali Janardhana Reddy and another were arrested on 05-11-2011 and additional offences under Sections 409 and 468 IPC were added. After interrogating the respondent herein, she was arrested on 28-11-2011 and remanded to the judicial custody and obtained police custody from 29-11-2011 to 01-12-2011 and subsequently the respondent herein filed Crl.M.P.No.2322 of 2011 while in police custody on 30-11-2011 even before complete interrogation and counter was filed on 1-12-2011 and heard on the same day and by the order dated 02-12-2011 the Special Judge for CBI Cases, Hyderabad has granted bail. Questioning the said order, the present Criminal Petition is filed to set aside the same. 02. The respondent herein claimed that she was a Post-graduate with brilliant academic and service career and her husband was also an I.P.S Officer and she comes from a respectable family and there was no blemish in her service and the allegations about favouring O.M.C is not correct and she has acted bona fidely in disposing of the files put by the subordinate staff and according to her she did not sign the draft G.Os nor append her signature and therefore she being a woman and also having chronic ailment of “Prinzmental Angina” she may be released on bail. 03. The C.B.I has filed a counter contending inter alia that she has acted with high speed and also with all endeavour to favour O.M.C in collusion with D.Rajagopal who was the Director of Mines and processed the applications to favour O.M.C and ignoring the genuine applications of others and also the procedure to be followed in dealing with such applications. 04. The offence in this case is said to be that O.M.C obtained two leases to an extent of 68.50 hct and 39.50hct on the pretext of using it for “captive” consumption and not for any export or other thing and it is sought to be used for Steel Plant proposed to be set up by it . This information was furnished to the Government of India by the respondent herein and the permissions were obtained but subsequently when the G.O.Ms.Nos.151 and 152 were issued, the respondent in connivance and consciously omitted the purpose of the lease as “captive mining” and thereby facilitated illegal mining on the permits obtained on the lease by exporting the iron ore by O.M.C from the neighbouring mines and amassed huge health. It is said that the respondent, Director of Mines and others are active participants in the conspiracy to benefit the O.M.C. 05. In consideration of the bail application during the stage of investigation or some times even after the investigation and filing of the charge sheet, the broad principles are settled and in this connection it would be useful to refer to the judgment of the Supreme Court in State of U.P Vs. Amarmani Tripathi([1]) wherein it was held in para.18 as under:- “It is well settled that the matters to be considered in an application for bail are (1) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati Vs. NCT, Delhi and Gurcharan Singh Vs. State (Delhi Admn.). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to following principles relating to grant of bail stated in KalyanchandraSarkar v Rajesh Rajan “11.The law in regard to grant or refusal is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the Court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh and Puran Vs. Rambilas.)”. 06. The learned Public Prosecutor representing C.B.I contends that the order of bail granted by the learned Judge is not proper and relied on a decision reported in Subodh Kumar Yadav Vs. State of Bihar and Anr([2]) and if while granting the bail irrelevant material were taken into consideration and the judicial discretion was arbitrarily exercised, the bail cannot be granted. He has also relied upon another decision reported in State of Maharashtra etc., Vs. Dhanendra Shriram Bhurle, etc.([3]) where under it was held though detailed examination of evidence is not to be undertaken, reasons for prima facie conclusion should be given. 07. It is needless to say that the case has got its serious ramnifications and the illegal activities of O.M.C and other Mining Companies is a matter of consideration before the Supreme Court and the Supreme Court appointed Empowerment Committee and it has found conclusive evidence of illegal mining. This particular crime is also a matter of consideration before the Supreme Court and the learned Judge is conscious about this fact. 08. The gravity of the offence cannot be disputed and the actions of the public servants if not in the interest of the State and violative of the duties and the responsibilities, it can be a serious offence. It is to be noted that in a criminal conspiracy or abetment, they can rarely be proved by direct evidence and even if documentary evidence is there, the oral evidence with regard to those documents and relevancy has to be collected during the investigation and naturally by examining the witnesses. 09. Keeping in view the principles laid down by the Supreme Court, the case has to be considered and find out as to whether the reasons considered by the learned Judge is proper. 10. The respondent was said to be a Secretary to Industries and Mining since 17-05-2006. The several documents and the correspondence with regard to granting of lease which is in dispute is between the period 09-01-2007 to 18-06-2007. The respondent claims that she has nothing to do with granting of the lease since a provisional lease was already granted on 08-11-2005 and 10-11-2005 and in pursuance there of only, the further action was taken. 11. At this point, it is to be noted that two provisional leases were granted, one relating to 68.5 Hectares on 10-11-2005 and another relating to 39.481 Hectares on 08-11-2005 to the O.M.C. The conditions in these leases are quite mandatory stating that the mining plan approved by the Indian Bureau of Mines for the subject area to be submitted within six(6) months for consideration of the mining lease application and if they fail to submit the same, it will be presumed that they have no interest. They have to also get clearance from the Forest Department. Evidently, the conditions applied in these G.Os were not fulfilled and within six months no mining plan or permission from the Forest Department were produced. It was on 03-01-2007 O.M.C has submitted the mining plan and the Director of Mines and Geology addressed a letter recommending for grant of mining lease. It is interesting to note that with regard to this 68.5 Hectares of lease with reference to Column No.4 whether the application was submitted within the time or not, the Director of Mining noted that the application was submitted within the extended time. Therefore, after 10-11-2005 till 03-01-2007 when it was submitted, O.M.C was silent and even no extension was sought. As can be seen from the recommendation of the Director of Mines on 09.01.2007 in proceedings No.35279, the first extension was given from 09-05-2006 to 08-11-2006 and under the same proceedings second extension was given from 09-11-2006 to 08-05-2007. Therefore, this clearly goes to show the extension was given with retrospective effect and the respondent herein cannot therefore say that what was done was only with reference to the G.O. dated 10-11-1985. It is further to be noted that it was only on 10-01-2007 after the recommendations from the Director of Mining, G.O.Ms.No.7 dated 10-01-2007 was given diverting 68.50 Hectares of Forest land in reserved forest for the purpose of mining in favour of O.M.C. Therefore, even by the date of recommendation on 09-01-2007 by the Director of Mines the Forest clearance was not there. The proposed extended timing referred by the Director was not ratified and only in the final G.O it was mentioned so. But, even without ratification of extensions after receiving the proposals from the Director of Mines the respondent has addressed a letter dated 18-01-2007 to the Government of India informing about the pending applications which were received prior to the notification calling for the application and which were received subsequently. In that recommendation the merits and de-merits of O.M.C and Vinayaka Mining Company were considered and it was stated that the Company is planning to establish an integrated Steel plant at Bellary and needs the mining lease. On this recommendation of the respondent, the Government of India by its letter dated 30-03-2007 directed the respondent to furnish comparative charts of merits of all the applicants including those who have been treated as pre-mature and pass and send copy of reasoned order for rejecting the applications of remaining applicants evaluating as per the criteria in Section 11(3) of M&M (D&R) Act,1957. 12. After this letter, the respondent herein addressed a letter on 21-04-2007 giving reasons but without complying with the directions of consideration of all the applications but informing that formal orders will be given on receipt of the approval from the Government of India. After this on 25-05-2007 the Government of India has granted approval for granting lease subject to the statutory Rules. It was thereafter on 31.05.2007, 27 show cause notices were submitted to the applicants to show cause as to why the applications shall not be rejected. In fact these letters were said to have been despatched latter and a simultaneous order was passed on 18-06-2007 rejecting the applications and also taking into consideration the approval of the Government of India, issued two G.O.Ms.Nos.151 and 152 granting lease. In fact, G.O.Ms.No.151 is a subject matter of consideration in W.P.No.9723 of 2007 and other cases. 13. Therefore, it is quite clear that a clearance was obtained from Government of India informing that O.M.C intends to set up an integrated Steel Plant and iron ore is needed for that purpose,(the reference can be made to letter dt.21-04-2007 to G.O.I, order dt.18-06-2007 rejecting the application of Sathavahana Ipsat Ltd vide memo No. 491/Miii(1)/2007-37 and order dated.5.06.2007 on application of M/S Gimpex Limited in memo No 15477M-iii(1)/2006-4 where it was stated that OMC badly needed the area of 39.481hct for exploitation of iron ore for captive consumption for M/s Brahmani Industries Ltd). Evidently, it was never intended to be for the purpose of “export”. However, G.Os 151 and 152 dated 18-06-2007 does not prescribe this purpose thereby it is said to have facilitated the criminal illegalities. 14. At this stage it is suffice for me to say that High Court in W.P.No.9723 of 2007 has considered all these factors and allowed the writ but, however, the Writ Appeal was allowed for giving an opportunity to O.M.C to file a counter and Writ Petition is pending. This reference is only made for the simple fact to show that the respondent herein who was the party to the writ proceedings is aware of the G.O and she cannot say that she has no knowledge or concern about the contents of G.O. The narration of the above facts clearly goes to show as to how within a short period between 18-01-2007 to 31-05-2007 decisions were taken even though for a period of more than one year after the provisional lease, O.M.C was silent. The respondent herein cannot say that she was not associated with the process and sanctioning of the lease. It was only during her time all the decisions have been taken culminating the beneficial G.Os to the O.M.C. and she is competent authority. 15. The above reference of the facts has been necessary for me to be mentioned in order to consider the legality of the order passed by the learned Judge in granting bail. The above narration clearly goes to show as to how strong prima facie material is available about the involvement of the respondent. Further the respondent cannot claim that the recommendations of the Director of Mines and Geology who is Accused No.3 (D.Rajagopal) were only considered and acted, since all the correspondence with Government of India has emanated in her name and her department is alone competent to grant or refuse lease. All other orders were passed on 18-06-2007 by respondent when Gos 151&152 were issued. 16. As can be seen from the order of the learned Judge in Para.13, which is as follows:- “Here if we go through the contents of the counter in opposing the bail application, it is said that the petitioner after receiving letter from Government of India on 30-05-2007, immediately issued show cause notices to various applicants wherein she showed favour to M/s.Oblulapuram Mining Company Pvt., Ltd and discarded the claim of other applicants on flimsy grounds and even before the replies received, she(petitioner) granted lease to M/s.Obulapuram Mining Company Pvt., Ltd., on 18-06-2007 is a very good material fact for the investigating agency and to get it substantiated by adducing legal evidence during the course of trial but as on today since every thing is in the shape of documents which are already in possession of CBI, I feel that the same would not come in our way of considering the request of the petitioner for grant of bail. 17. Therefore, if the learned Judge feels that it is a material fact for investigation but discarded the claim of the investigating agency saying that there is documentary evidence already on record and that can be considered, this reasoning is not right application of law. Mere documents will not be sufficient unless the relevancy and the oral evidence of the aggrieved applicants is recorded during investigation. Therefore, the above ground for grant of bail fails. 18. So far as the second ground in rejecting the claim of the C.B.I that several people are coming forward to reveal the things before the C.B.I about the involvement of the respondent in the alleged conspiracy, the learned Judge did not answer this point straightly and skipped off by reasoning that the respondent may not be in a position to meddle as all the documents are in possession of C.B.I. This is again a fallacious reason. To prove a conspiracy it is very difficult from the documents alone to prove charge and even if that can be inferred, when oral evidence is coming forward to prove the charge, the investigating agency cannot be deprived of it. Therefore, this ground is also not proper. 19. Thirdly, another ground is that 90 days period from the date of arrest of Accused Nos.1 and 2 is nearing completion and in all probability the C.B.I appears to be making its effort to come up with a charge sheet as submitted by it before the Apex Court and came to a conclusion that the investigation is almost nearing its completion and that her further detention may not be necessary. If the learned Judge is to look into the submission before the Apex Court or the order made by the Court, then he would have been clear in his mind. The C.B.I never informed to the Court that the investigation against this respondent is completed. In fact it is the plea that further investigation as to several aspects has to be taken up. If the learned Judge is conscious of the fact that the matter is pending before the Supreme Court he should have thought of seeing the order of Supreme Court in S.L.P.Nos.7366 and 7367 of 2010 where under it was held as follows:- “In the Status report filed in C.B.I case No.R.C.17(A)/2009, Hyderabad (Obulapuram Mining Case) it has been stated that C.B.I will complete the investigation and file the charge sheet on or before 04-12-2011, after taking into account the stipulated period of 90 days. The investigation is being carried out on day-to-day basis under the supervision of Joint Director, C.B.I, Hyderabad. Place the matter on 20-01-2012, on which date this Court would like to see the charge sheet which the C.B.I proposes to file.” 20. Therefore, even if part of investigation is completed and charge sheet is filed, still the Supreme Court intended to see the charge sheet. In fact this was considered by me in Criminal Petition No.13303 of 2011 in considering the cancellation of bail of Accused No.3-D.Rajgopal. Prudence should have dictated the learned Judge that in view of the order of the Supreme Court it is not proper to have ordered for release of the respondent even before the charge sheet against the Accused Nos.1 and 2 is filed and even before the investigation against respondent is completed. It is difficult to visualize that the C.B.I is not going to charge the respondent in that charge-sheet. In fact, there are several material allegations of criminal offences against the respondent. It is not a case where the C.B.I has reported that even if the charge-sheet is not filed against the respondent, her detention is not necessary. On the other hand, the C.B.I informed the Court that the investigation is at crucial stage. 21. In fact, there are several allegations about the culpability of the respondent in the charge sheet and apart from examining the witnesses about the illegalities and favours indulged by the respondent, oral evidence is sought to be collected. 22. The further reason which the learned Judge has taken into consideration is that the petitioner is a woman and she is not keeping the good health. The learned Judge did not say what is the seriousness of the health problem. In fact, the respondent was attending to her duties normally at all times prior to her arrest. General check-ups and minor problems of health are all common and the learned Judge without applying and without giving any reasons has definitely erred in granting bail stating that her health is not proper. The privilege being a woman is also misconceived taking into consideration the gravity of the offence. 23. Therefore, none of the grounds considered by the learned Judge are proper and tenable and the order of bail cannot but said to be arbitrary. 24. I am conscious of the fact that in considering the application for cancellation of the bail, challenging the very validity of it, this Court also should be very cautious. 25. The conspiracy as already stated cannot be proved by documentary evidence alone and unless oral evidence is entirely collected by the investigating agency, mere documentary evidence is not sufficient and such right of investigating agency cannot be deprived. 26. There is more than sufficient material available on record as to how the respondent was associated with grant of lease and issuing of G.Os which ultimately favoured the O.M.C ignoring the vital condition of the purpose of lease being for “captive mining” for the proposed Steel plant to be set up by O.M.C in the G.O. If this condition is there, the possibility of giving several permits for export could not have been facilitated. 27. In the decision in Amarmani Tripathi (first cited), the Supreme Court laid down that in considering the bail, the status, conduct of the accused person is to be taken into consideration apart from the nature and gravity of the charge. The Criminal jurisprudence has developed where- under if a person accused of an offence denies the material evidence available against the person and takes a false plea, in cases of circumstantial evidence that can be used against the accused. 28. In this case so far as the status and position of the respondent is concerned, there cannot be any two opinions since she is an I.A.S Officer and her husband is an I.P.S Officer. She claims to be a brilliant and intellectual person and has got higher level of understanding. Having said so it is really sad and unbecoming responsibility of the Secretary to a Government to contend and plead that the orders of the Government were issued without her knowledge in her name. Evidently, the orders were issued in her name and she cannot disown the authenticity or the legality of it. Her claim that she did not initial the G.O or see the G.O is reflecting her higher degree of intelligence and being conscious of the effective omission evidently intended to benefit O.M.C, she might not have put her initials. This is real culpable criminal conspiracy. But the statement of her subordinates clearly goes to show that she has got every knowledge and G.Os were issued with her concurrence. If the Secretary of the Government is to disown the contents of order of the Government issued in her name, it is only betrayal of the duties. 29. The respondent cleverly wants to shift the blame on the subordinate staff. All this has to be mentioned by me for the reason that consideration of the bail shall be based on character of the person involved in the crime as referred in the judgment first cited. 30. It is to be further noted that there is a conspiracy between the respondent and other accused and other accused were already in judicial custody and as against this respondent the investigation is not completed and if she is at large until the investigation is completed she will take all the advantages to destroy the evidence against her and others when particularly some evidence is forthcoming against the respondent. Therefore, the grant of bail will thwart the interest of justice, one of the conditions which is to be kept in mind as per the decision first cited. 31. In cases of this nature and when there is influence and power for the respondent and her husband, it will not be desirable or proper to expect the investigating agency to disclose as to what is the nature of evidence they intend to collect and further investigation to be taken up by them, when particularly the cooperation of the respondent during the course of police custody is said to be minimal. 32. Therefore, in view of the above circumstances, I have no hesitation in holding that the order passed by the learned Judge is not legal and is liable to be set aside and since investigation against the respondent is not yet completed, it will be hazardous for the investigating agency to gather the entire evidence if the respondent is to be on bail. Accordingly, the Criminal Petition is allowed and the order dated 02-12-2011 of the learned Judge in Cr.M.P.2322 of 2011 is set aside and the bail application is dismissed. The respondent is directed to surrender before the concerned Court on or before 06-01-2012 failing which C.B.I is at liberty to arrest and produce her before the Court. _______________________ N.R.L. NĀGESWARA RĀO,J 02-01-2012 Note: 1. Issue C.C by today itself. 2. L.R. Copy to be marked: YES (B/O) TSNR [1] (2005) 8 SCC 21 = AIR 2005 S.C.3940 [2] AIR 2010 S.C.802 [3] AIR 2009 S.C. 1706

mesne profits =The Commissioner in his report under the heading observations has mentioned that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-. After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property. After completion of the examination of P.W.3 informed them that the existing market value for sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed. After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value. The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as the present existing market value per sq. ft is on an average of Rs.45/-. Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis for deciding the mesne profits. With regard to the quantum of mesne profits granted by the lower court, the lower court has granted mesne profits@ Rs.30/- per sq. feet as the plaintiff has claimed the same in the plaint. The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits. The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. The lower court has observed that the Commissioner has arrived the mesne profits @ Rs.46.06 ps per sq. feet. The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far back, the court below considered that the petitioners cannot claim more than what they pleaded in their original plaint. He further observed that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property. Therefore, he accepted the evidence of R.W.1 to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed the mesne profits for the suit schedule property at Rs.30/- per sq. feet. R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month. But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence. Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf. In the circumstances, both the parties have to bear their own costs.

HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 Date: 28.02.2011 Between: M. Raja Gopala Rao and another ….Appellants. And: Sri K. Vinay Reddy …..Respondent. C.C.C.A No.79 of 2008 Between: Sri K. Vinay Reddy ….Appellant. And: M. Raja Gopala Rao and another …..Respondents. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 COMMON JUDGMENT: (per Hon’ble Sri Justice P. Durga Prasad) Both the appeals arising out of the decretal order passed in I.A.No.92 of 2007 in O.S.No.2024 of 2005 by the IV Senior Civil Judge, City Civil Court, Hyderabad on 07.11.2007. The appellants in C.C.C.A.No.26 of 2008 are the petitioners/ decree-holders and the appellant in C.C.C.A.No.79 of 2008 is the respondent/judgment-debtor. The petitioners/decree-holders have filed an application under Order XXVI Rule 12 read with Section 151 C.P.C for appointment of an Advocate-Commissioner to ascertain the mesne profits from 01.10.2005 till the respondent vacated the premises. The brief averments of the affidavit filed in support of the petition are that they have filed O.S.No.2024 of 2005 for eviction recovery of arrears of rent and the mesne profits against the respondent and the said suit was decreed on 18.01.2007 directing the respondent to vacate the suit schedule premises within a period of three months and permitted the petitioner to file a separate application to ascertain the quantum of mesne profits. According to the petitioner, the suit schedule property consists of two buildings in a plot of land around 1257 sq. yards situated in the prime locality of Jubilee Hills on its most important and commercial Road No.36. The building is located on the main road on an elevated spot at the junction of the Arterial 4-lane road No.36 to Hi-tech City. The suit schedule premises consisting of ground and first floor and smaller areas of cellar and second floor comprising one room only with a total carpet area of 9,000 sq. feet. The road is now host to all brand name national and international commercial establishments. Establishments like Reebok, Sundaram Motors, Furniture Shops, various Boutiques, Restaurants, Supermarkets, Healthcare and Lifestyle Centers, Banks and various other international class offices are located on this road. The entire suit schedule property is being used for commercial use by the judgment debtor who is running a Restaurant on the name of Cook’s Touch, Masala Guest House, Coffee Bar in the name of Cafe Latte, Ice Cream Parlor and Masala Pan Shop in suit schedule premises. The JDr is currently earning huge income from all these ventures. The current schedule property prevailing rentals per sft., of space on this road have been increasing year by year and are currently averaging around Rs.42.47 ps per sft on continuing agreements covering the period from 2001 till 2006. Rentals on agreements signed in the year 2006 only are averaging around Rs.67.15 ps per sft., relevant in this case as the mesne profits claimed are from 1.10.2005 till date. The calculation of mesne profits is based on the certified copies of the registered lease deeds Exs.A-1 to A.6 issued by the concerned Sub Registrar. All the calculations are based on the actual rental figures agreed to in these registered lease deeds by the respective parties and prayed for ascertaining the mesne profits basing on the lease deeds marked as Exs.A.1 to A.6. Respondent opposed the application by filing counter pleading that the copies of the registered lease deeds filed along with the affidavit are not relevant and cannot be considered as a basis for determination of mesne profits in the matter. The road No.36 in which the suit schedule property is situated is a very long road stretching to an extent of about two kilometers. The area covered by suit schedule property is not a commercial area but it is a residential area. The UCO bank and Pacific Hospitals, ICICI Bank are situated totally in different roads which are actually far away from the suit schedule property and as such their rental value cannot be taken as basis for determination of mesne profits. Likewise Trinethra Super Market, Sundaram Motors, Reebok India and Prakash Arts, are all though situated in Road No.36 are in fact far away from the suit schedule property and they are not proximate to the premises and even distances of their location from suit schedule property furnished by the petitioner are false and the petitioner is put to strict proof of the same. In any case, the said rental values cannot be adopted for arriving at the mesne profits of the suit schedule property. More over the nature of business done in the said premises of the lease deeds filed by the petitioner are totally different and cannot be equated with the restaurant business of this respondent. The petitioner claims mesne profits @ Rs.30/- per sq. feet in the plaint, whereas in the present petition he claims @ Rs.67.15 ps as mesne profits which itself shows that the claim of the petitioner for mesne profits is false, exorbitant without any basis. P.W.1 in the cross-examination has admitted that originally the rent was Rs.15,000/- per month and after 11 months, it was enhanced to Rs.16,500/- and further after 11 months it was enhanced to Rs.18,000/- per month. Therefore, it is clear that after a period of every 11 months an amount of Rs.1,500/- was enhanced and as such the petitioner cannot have right to claim excess amount, arbitrarily as mesne profits more than the amount of rent received by the petitioner. Hence the petitioner is devoid of any merits and the petitioner is not entitled to claim the mesne profits and the petition is liable to be dismissed. The lower court has appointed Sri I.P. Radha Krishna Murty as Commissioner to enquire into the mesne profits and submit a report. The said Commissioner has submitted his report by fixing the mesne profits @ Rs.46.06 ps per sq. feet for the suit schedule property. For the said report both the petitioners and respondent’s counsel have filed their objections and the lower court by taking into consideration of the said objections allowed the petition by granting mesne profits @ Rs.30/- per sq. feet. Aggrieved by the said order, both the petitioner/DHr and the respondent/JDr have preferred the above said two appeals. Now the point that arises for consideration is whether the mesne profits fixed by the lower court is just, legal and valid? The learned counsel for the appellants in C.C.C.A.No.26 of 2008 pleaded that as per the documents produced before the Commissioner, the market rate in that area is Rs.60/- per sq. yard and the Commissioner has granted only Rs.46.06 ps per sq. feet and the lower court is only granted Rs.30/- per sq. yard stating that they have only claimed Rs.30/- per sq. yard in the plaint. The learned counsel has also further pleaded that the claim made in the plaint is only a tentative claim and it cannot be a basis for granting the mesne profits and the mesne profits have to be decided basing on the material placed before it and the learned Commissioner has after due enquiry has submitted his report by fixing the mesne profits @ Rs.46.06 ps per sq. feet and the lower court ought to have granted the same. The learned counsel for the appellant in C.C.C.A.No.79 of 2008 has pleaded that the burden is on the plaintiff to establish the quantum of mesne profits to which he is entitled by producing proper evidence before the Commissioner and in the present case, the petitioner/DHr was not examined to speak about amenities provided by him in the suit schedule premises and the prevailing market rates in the said area for similarly situated locations and mere production of the lease deeds will not give rise to claim for mesne profits by the petitioner. The learned counsel for the appellant has further pleaded that the Commissioner submitted the report like a judgment and he has not supposed to ascertain the mesne profits and he ought to have enquire into the mesne profits by taking into consideration of prevailing rates in that area and submit his report before the lower court. In the present case, the learned Commissioner even though examined the witnesses, he did not mark any exhibits through them and even before examining the witness he has marked the documents and as such the respondent has no opportunity to question the validity of the said documents in the cross-examination of the witnesses examined by the Commissioner. Hence, the report of the Commissioner is liable to be set aside. The learned counsel for the appellant has further pleaded that even granting of Rs.30/- per sq. yard as mesne profits is highly excessive in the present case as the rent that was being paid by the appellant from the month of October, 2003 is Rs.30,000/- for 9000 sq.ft., which was subsequently enhanced to Rs.36,000/- for 9000 sq. ft., which works out to Rs.4/- per sq feet. There could not have been exorbitant increase from Rs.4/- to Rs.30/- per sq. feet and the lower court has not given any valid reasons for arriving at the said mesne profits at Rs.30/- per sq. feet and the lower court has simply arrived to that figure and as such the awarding of the mesne profits at Rs.30/- per sq. feet by the lower court is liable to be set aside. The lower court has appointed a Commissioner for ascertaining the mesne profits at the instance of the appellants in C.C.C.A.No.26 of 2008 and he submitted the report. The respondents in the said appeal has questioned the validity of the said report filed by the Commissioner. Therefore, it has to be examined whether the report of the learned Commissioner is valid and it is in accordance with the law. A perusal of the report of the learned Commissioner shows that he has proceeded to the suit schedule property and identified the property with the help of both the counsels of both parties and subsequently he has gone to different business establishments collectively and recorded their evidence. According to him he examined P.Ws.1 to 6 on behalf of the petitioners and R.Ws.1 to 3 on behalf of the respondents. According to him even before examining any witnesses, the petitioner No.1 has produced the certified copies of the registered lease deeds and he got marked them as Exs.A.1 to A.7. The deposition of P.Ws.1 to 7 recorded by him does not disclose about marking of any of the documents and they only stated about entering into lease in respect of their premises and quantum of rent paid by them. No documents were produced on behalf of the respondents. R.Ws.1 to 3 were examined and they also stated the same facts with regard to the leased out premises and the monthly rents being received by them without producing any documents. Basing on the said evidence and material placed before him, the learned Commissioner has assessed the mesne profits. He adopts the matters calling them as (i) the statistical method based on documentary and oral evidence, (ii) Mathematical method based on documentary and oral evidence. Statistical method only based on oral evidence and Mathematical method based only on documentary evidence and finally as per statistical method based on oral and documentary evidence arrived the mesne profits of Rs.45.32 ps, as per Mathematical Method based on oral and documentary evidence arrived the mesne profits at Rs.51.45 ps, as per the statistical method based on documentary evidence arrived the mesne profits at Rs.43.83 ps per sq. feet, as per Mathematical Method based on the documentary evidence arrived, the mesne profits of Rs.48.29 ps sq. ft. The average of Statistical and Mathematical method based on documentary evidence only comes to Rs.46.06 ps per sq. ft. Therefore, he has fixed the mesne profits for the said suit schedule premises at Rs.46.06 ps per sq. feet. As rightly pointed out by the learned counsel for the appellant in C.C.C.A.No.79 of 2008, the petitioner/plaintiff ought to have been examined before the commissioner in support of his claim for mesne profits by showing the area leased out to the respondent and the amenities available in the suit schedule premises and compare the facilities and amenities provided in the premises for which he has produced the documents Ex.A.1 to A.7. But, the petitioner was not examined himself nor produced any documentary evidence in that regard and he simply marked Exs.A.1 to A.7 and examined P.Ws.1 to 6. The Commissioner has prepared a statement showing the premises covered by Ex.A.1 to A.7 and the distance from the schedule premises and the rent paid under the said document and arrived the rate for sq. feet. The Commissioner has not considered the amenities that are available in the suit schedule premises and the amentias provided in the premises for which the documents were produced by the plaintiff under Exs.A.1 to A-7. He compared the rents of the premises by comparing with the distance and arrived at the mesne profits. The Commissioner ought to have been verified the facilities available in the said premises and compare the same with the amenities provided in the suit schedule premises and then compared rents paid for the said premises to arrive at the mesne profits for the suit schedule premises. More over as already observed above, he has not got marked any documents through the witnesses examined before him and the witnesses also did not speak any thing about the amenities available in the said premises which leased out by them. The Commissioner in his report under the heading observations has mentioned that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-. After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property. After completion of the examination of P.W.3 informed them that the existing market value for sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed. After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value. The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as the present existing market value per sq. ft is on an average of Rs.45/-. Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis for deciding the mesne profits. With regard to the quantum of mesne profits granted by the lower court, the lower court has granted mesne profits@ Rs.30/- per sq. feet as the plaintiff has claimed the same in the plaint. The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits. The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. The lower court has observed that the Commissioner has arrived the mesne profits @ Rs.46.06 ps per sq. feet. The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far back, the court below considered that the petitioners cannot claim more than what they pleaded in their original plaint. He further observed that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property. Therefore, he accepted the evidence of R.W.1 to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed the mesne profits for the suit schedule property at Rs.30/- per sq. feet. R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month. But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence. Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf. In the circumstances, both the parties have to bear their own costs. _____________________ B. PRAKASH RAO,J. _____________________ P.DURGA PRASAD,J. Date:28.02.2011. Gk. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 Date: 28.02.2011 Gk.