SHIV AJIRAO NILANGEKAR PATIL

A

v ..

DR. MAHESH MADHAV GOSA VJ & ORS. AND VICE VERSA

DECEMBER 9, 1986

B (R.S. PATHAK, SABY ASACHI MUKllARJI ANDS. NATARAJAN, JJ.)

Evidence-Admission of addiiional · evidence, principle of-1'

Admissibility of evidence as to "similar fact"-Ajfidavits evidence-Value of

Code of Civil Procedure, Order XIX Ru/e3 Malafides-Allegation of

C malafides against men in power-Court/ duty to view such allegations vis-a-£

vis purity in public life, explained. -,a

Post-graduate medical examinatwn in Maharashtra-A/legation of

manipulation in the grade sheets of M.D. (Gynae) examination to clear the

candidate, a daughter

of the Chief

Minister of Maharashtra-Adverse

D remarks against the Chief Minister, whether justified as a finding of fact or as a

comment based on no evidence-Judic.'al pronouncements and duty

of the

Judges.

Dr. Mahesh Madhav Gosavi

app.,llant in CA 4453/86 and respondent

in CA 4452/86 was a failed candidate

at the M.D. examination in the

E speciality

of Gynaecology and

Obstetric.1 held in the year 1985. He filed a writ

petition under Article 226

of the Constitution of India in the High Court of Bombay challenging the results of the 1\1.D. examination held in November'

85.

He alleged that favouritism was

shown by one Dr. Rawal who went to the

extent

of tampering with

grade shee1s of the examinees so as to clear

f

unsuccessful candidates and in particular Smt. Chandrakala Patil daughter of

the Chief Minister of Maharashtra app.,llant in CA 4452/86 and respondent

in cross appeal CA 4453/86 . .In support of the writ petition alleging how the

malpractice took place, he filed an affidavit (hearsay evidence)

of one Dr.

Manikant Mishra, who is supposed to have heard certain talks that took place

between

Dr. Rawal and

Smt. Chandrnkala Patil at Dr. Rawals' Chambers

and that what the deponent heard came to be proved by the M.D. (Gynae)

G results in which one

Dr.

Smita Thakl<ar and Smt. Chandrakala Patil who

could not clear the said examination thrice were shown

to have passed. It was

alleged that the tampering

of the

grade sheets were done by Dr. Rawal at the

behest

of the appellant in

C.A. 4452/86. The said allegations were refuted by

the appelldnt Shivaji

Rao

Patil, Smt. <Chandrakala Patil, his daughter, Dr.

H Rawal and another Dr. Shah on oath by filing their affidavits. The

45B

•

S.N. PATIL v. DR. M.M. GOSAVI 459

~ respondent, though he had verified his petition, did not disclose the so called A

reliable source

of information derived by him. (about the allegations made

against the appellant & others.

The learned

Single Judge held: (i) that the evidence of Respondent

Madhav Gosavi as

well as of Dr. Mishra were unsatisfactory and unreliable:

(ii) that it

was impossible to place any reliance on the evidence of Dr, Mishra as B

- it was not known how he came to contact Dr. Gosavi or why he did not choose

~ to file affidavit tili 28.2.1986 when the appellant Patil had alredy filed his

affidavit on 26.1.86; (iii) that the allegation and the averments made in

paragraph 14-of the writ petition were wholly unsatisfactory and insufficient

• -~ -because the Respondent-petitioner had not disclosed from whom he derived

them; (iv) that there was tampering with grade sheets ofRespondents4 to.IS C

by Dr. Rawal; and (v) that in the facts and circumstances of this it could

-, reasonably be inferred that the alteration was done at the behest of the

appellant in CA 4452/86 and her daughter Chandrakala. 1'.his was because

Dr. Raw al was an experienced examiner, not young or immature and a person

like him would not proceed

to do a criminal act and tamper with the record of

the examination on his own with a view merely to please ihe people in power. D

The risk involved

In what Dr. Rawal had done was so enormou~ that it was

difficult to conceive that he did it on his own. Accordingly he allowed tlJe writ

petition, passed some structures against

Dr. Rawal and the appellant in CA

4452/86 and gave certain directions about examination

ofl2 other candidates

whose results were also affected

by the conduct of Dr. Rawal.

An application made before the Judge for adducing certain additional

evidence was rejected. After the judgment the Vice Chancellor and

the Chief

"' Minister resigned from their posts.

Three appeals, No. 214/86

by Dr. Rawal No. 215/86 by Dr.

. Chandrakala Patil and No. 216/86 by the appellant

Shivaji Rao Patil, were

heard and disposed

of by the Division Bench consisting of the Acting Chief

Justice

Ka11ia and Shah J. of the Bombay High Court on 16th June, 1986. So

far as appeal No. 216 ofl986 is concerned, according to the Division Bench; (i)

E

F

there was no direct evidence that the alterations in the grades of Chandrakala

Patil were made at the instance

of the appellant; (ii) the reasonings of the trial

Judge in coming to the conclusion that respondents No. 3 and 4 the original

G

petition were responsible for getting Dr. Rawal to alter the

grades was based

on certain contingencies and were too tenuous for the conclusion based .on

such reasoning to amount to a positive finding; (iii) Merely because

respondent No. 3 to the original petition held a position

of great power and

would have been happy to

see that his daughter had passed the M.D.

examination, it was

diffic~lt to conclude as a ~nding of fact that he must have H

460 SUPREME COURT REPORTS [1987] I S.C.R.

A influenced Dr. Rawal to alter the gracles of his daughter; (iv) it was true that a

seasoned examiner like

Dr.

Rawal would not have taken the risk involved in

altering the grades except under a gri,at pressure or pursuation, but it cannot

he rwed out the pOSSI'bility of various motives which might have induced Dr.

Rawal to take the risk of altering the grades; (v) however in all probability Dr.

Rawal would not have acted unles:1 he had made him assured that the

B appellant Shivaji

Rao

Patil was hehin d the person who pursuaded him to alter

the grades; (vi) that when allegation of this type is made against anyone

holding a position

of prestige and

power, it was necessary that the evidence

should be closely examined before holding such allegation

well founded. Therefore the Bench observed that the remarks made against the appellant.

Nilangekar Patil cannot he supporteil as conclusions arrived at against him

C but these can he regarded as adverse comments and not finding

of fact and

such comments were not wholly

unju:1ified in the facts of this case. However,

the Division Bench refused to

entertai10 an application to introduce additional

evidence as part

of the claim of public interest litigation. Hence the appeal No.

CA 4452/86 by Nilangekar

Patil agai.ost the adverse comments were allowed

to remain and there was a cross appeal 4453/86

by Dr. Madhav Gosavi

D against refusal to accept additional

e•ndence.

Dismissing the appeals by spec:ial leave, the Court,

HELD: I.I The basic principle of admission of additional evidence is

that the person seeking the admission of additional evidence should be able to J

E establish that with the best efforts such additional evidence could not have

been adduced at _the first instance. Secondly the party affected by the

admission

of additional evidence should have an opportunity to rebut such

additional evidence. Thirdly that additional evidence was relevant for the

determination of the issue. [474G]

F Here, the additional evidence sought to be introduced

mainly consist of --,l

alleged instances when the appellant on previous occassions had in respect of fl

some criminal proceedings and other matters pending used his influence to · ~

drop those proceedings. Applying the principle as to admission of "sinoilar fact

evidence" it must

be held that the allegations of the alleged conduct of the

appellant

In similar cases would not be a safe basis upon which to admit

G additional evidence in this case having regard to the issues involved and nature

of the issues involved in these matters ard at the stage when these were sought to

be introduced. [474 H, 476 E]

Mood Music Publishing Co. Ltd. v. De Wolfe Ltd., [1976] 1 All E.R.

H 763

@ 766, quoted

with approval.

S.N. PATIL v. DR. M.M . .GOSAVI 461

2. The mere fact that several infirmities were noticed in the affidavit of A

Dr. Mishra upon which the original petitioner Dr. Gosavi based bis own·

petition could col lead to the argument that the entertainment of the petition

itse!f was wrocg. The allegations made in the petition disclose a lamentable

state

cf

affairs in one of the premier universities oflndia. The petitioner might

have moved in his private interest but enquiry into the conduct

of the B . examiners of the Bombay University in one of the highest medical degrees was

a matter

of public interest. Such

state· of affairs having been brought to the

notice

of tbe court, it

was the duty Of the COUI j to the public that the truth and

the validity

of the allegations made be inquired into. It was in furtherance of

public interest that an enquiry into the state of affairs of public institution

'.

becomes necessary and 'private litigation assumed the character of public C

· interest litigation and such an inquiry c;:nn'.ot be avoided if it is necessary and

essential for the administration

of justice.[477F, 477G-478A)

3.1 It is true that exercise of the power under

Article· 136 of the

Constitution is discretionary. There is no question in this case of giving any

clean chit to the appellant hi the first appeal. It leaves a great deal of suspicion D

that tampering was done to please Shri Patil or at bis behest. It is true that

there

is no direct evidence. It is also true that there is no evidence to link him up

with tampering. Tampering is established. The relationship is established. The reluctance to face a public enquiry is also apparent. Apparently Shri Patil,

though holding a public office does

not believe that "ceaser's wife must be

above suspicion". The erstwhile Chief Minister in respect

of his conduct did E

not wish

or invite an

enqlliry to be conducted by a body nominated by the

Chief Justice

of the High Court. The facts disclose a sorry state of affairs.

Attempt was made

to pass

.th• daughter of the erstwhile chief Minister who

had failed thrice before by tampering the record. The person who did it was an

employee

of the Corporation. It speaks of a sorry state of affairs and though

there is

no distinction between comment and a finding and there is no legal F

basis for such a comment.

[48~A-DJ

3.2 The court cannot be oblivious that there has been a steady decline of

public standards or public morals and public morale. It is necessary to cleanse

public life

in this country along with br even before cleaning the physical . atmosphere. The pollution in the values and standards iS an equally grave G

menaee as the pollution of the environment. Where such sit.;ations "l"Y out ·the

Courts should not and cannot remain mute and dumb. [4~ El

. 3.3 Where allegations of malafide were made, the Court must be

•

cautious. It is true that allegation of malafides and of improper motives on the

part

of those in power are frequently made and their frequency has increased H

•

462 SUPREME COURT REPORTS [1987] I S.C.R.

A in recent times. In this task which is cast on the courts, it will be conducive to T

have disposal and consideration of them if those against whom allegations are

made came forward

to place before

th'i court either the denials or their version

of the matter so that the courts might be in a position to judge whether the

onus

that lay upon those who make al legations of mala tides on the part

or'the

B authorities had been discharged in proving it. It is true that the basis of the

allegations being the affidavit

of Dr. Mishra was considered to be thoroughly

.,...

unreliable. In ibis case there was "pecilic and categorical denial by the '

erstwhile Chief Minister that tampering was done at his behest. Therefore,

while the court should be conscious to deal with the allegations

of ma la fide or

cast aspirations on holders of high

office and power, the court cannot ignore

the probabilities arising from proven circumstances.

[478 B. F-G)

·-

c

C.S. Rawjee & Ors. v. Andhra Pradesh State Road Transport

Corporation,

[1964) 2

SCR 330, referred to. 'r-

3.4 Where evidence was adducl!d by affidavits, such affidavits might be

0

properly verified either on knowledi:e or from sources. Here it is true that

undoubtedly the affidavit and the petition were defective, but the court has

taken cognizance

of the matter and certain inferences followed from the

inherent nature

of facts apparent from the facts brought before the court.

[479A. D]

The Barium Chemicals Ltd.

& Anr. v. The Company Law Board &

E Ors., [1966) Supp. SCR 311; PadMabriti Dasi v. Rasik Lal Dhar, !LR

XXXVII Calcutta 259; The State of Bombay v. Purushottam Jog Naik, [1952)

SCR 674; E.P. Royappa v. State of famil Nadu & Anr., [1974) 2 SCR 348;

Tara Chand Khatri v. Municipal Co1poration of Delhi & Ors .. [1977) 2 SCR

198: and Sukhvinder Pal Bipan Kumar v. State of Punjab & .Ors., [1982] 2

SCR 31; Seth Gulabchand v. Seth Kudi/al & Ors., [1966) 3 SCR 623 at 629:

F

Jarat Kumari Dassiv. Bissesur, ILR

~-9 Cal. 245: 16 C.W .N. 265; Faja Singh v.

Chaichoo Singh. AIR 1940 Patna 2:u .at 203, referred to.

The State of VIiar Pradesh v. Mohammad Nairn, [1964] 2 SCR 363.

Vineet Kumar v. Mangal Sain Wadhera. AIR 1985 SC 817; The Bank of India

& Ors .. v. iamesetji A.H. Chiney and Messrs. Chinoy and Co., AIR 1950 PC

G 90; Sri Harasingh Charan Mohanty v. Sh. Surendra Mohanty, [1974) 3 SCC

680; Niranjan Patnaik v. Shashibh.shan Kar and Anr., [1985] 2 SCC 569,

distinguished.

'CIVIL APPELLATE JURIS:)JCT!ON: Civil Appeal Nos. 4452-53 of

H

1986

.A

S.N. PATIL v.' DR. M.M. GOSA VI [MUKHARJI, J.] 463

From the Judgment and Order dated 16.6.1986 of the Bombay High

Court in Appeal No.

216 of 1986.

D.R. Dhanuka,

V.M Tarkunde, and Dr. L.M. Singhvi, Pramod

Swarup, Milind Sathe, P.N. Gupta, P.C. Srivastava, U.S. Prasad, A.M.

Singhvi, C. Mughopadhaya, Raian Karanjawala, Mrs. Manik Karanjawala,

Hardeep S. Anand, Ejaz Moqbool, S. Radhakrishnan and Surya Kant for the

appearing parties.

The Judgment of the Court was delivered by

SABYASACHI MUKHARJl,_J. These two special leave petitions arise

out of the decision of the Bombay High Court in the appeal No.

216 of .1986.

Leave as asked for is granted in both and appeals arising therefrom are disposed

of by this judgment.

The first appeal

was filed by the appellant Shivajirao Nilangekar Patil

who was

at the relevant time the

Chief Minister of the State Maharashtra and

the second one was filed by Dr. Mahesh Madhav Gosavi, the applicant in the

original writ petition out of which appeal ultimately came to the Division Bench

of the Bombay High Court resulting in Civil Appeal No. 216 of

1986.

A

B

c

D

The controversy in this case centres

rouRd the ooRduct, if any, of the

appellant in the first appeal in the M.D. Theory examination in

th_e discipline

of

Gynaecology· and Obstetrics held by the University of Bombay on 14th to E

17th October,

1985. In that subject, the practical examination was held by the_ University at K.E.M. Ho~pital, Bombay. This is a well-known hospital in

Bombay and

we are told that it is run by the Municipality. The total number of

candidates registered for the examination was 52 of which 5 remained absent. One Dr. Mahesh Madhav Gosavi, original petitioner, who was at the relevant

time Assistant Medical Officer of K.E.M. Hospital, Bombay was the F

petitioner. He and Smt. Dr. Chandrakala Patil alias Dawale, a Junior

·Assistant Medical Qfficer in th_e said K.E.M. Hospital, Bombay, who was

respondent No. 4 to.the original petition and one Dr. Mrs. Smita Thakkar

who was respondent No. 5 were three candidates amongst others who had

appeared for the examination. One Dr. M.Y. Rawal was the head of the

Department

of Gynaecology and Obstetrics in the said hospital and was the G

convener

of the Board for the said examination. Respondent No. 4 of the

original petition,

Smt. Chandrakala Patil is the daughter of the appellant, the

erstwhile Chief Minister. of Maharashtra. The appellant was

at th.e relevant

time the Chief Minister of Maharashtra.

H

On 15th November, 1985, a circular·was issued by the University of

464 SUPREME COURT REPORTS [1987] I S.C.R.

A Bombay conv.ening a meeting of local examiners for the finalisation of M.D.

results

an 18th November, 1985.

On the said 18th November, 1985, the

meeting

was attended only by Dr. Rawal

as Dr. Mukherjee, another co­

examiner

was not available at Bombay.

On 30th November, 1985 the result of

M.D. examination was declared. Out ofthe47 candidates who had appeared

for the examination,

34 candidates

were declared successful including Dr.

B Chandrakala Patil alias Dawale and Dr. Mrs. Smita Thakkar. The petitione,r,

Dr. Gosavi

was declared to have failecl.

'

Upon these, a petition was filed by Dr. Gosavi under article 226 of the

Constitution

of India in the High

Court of Bombay. •

C Our attention was drawn to the foct that in the affidavit in support of the

petition one Dr. Manikant Mishra had stated that he had approached

Dr.

Rawal to find out whether his wife had

c.ppeared in the said M.D. examination

and it was alleged that on this occasi ~n he had over-heard certain alleged

conversation between Dr. Rawal and S mt. Chandrakala Patil, daughter of the

Chief Minister. It transpired later that Mrs. Kalpna Misra wife of the said

D Manikant Misra was not even registered

as a candidate.

In

the petition under article 226 of the Constitution filed before the High

Court of Bombay on 16th January, 1986 Dr. Gosavi challenged the results

declared in the said examination. The retitioner had claimed that he had been

working

as a junior Assistant Medical Officer and that he had done his

E housemanship in the Department

of Obstetrics and Gynaecology at K.E.M.

F

G

Hospital Respondent No. 2 i.e. Dr. Rawal was the Head of the Department of

the same. It was further

the· case of the petitioner that due to some reasons the

petitioner had no good terms with the said respondent No.

2. The petitioner

had passed the

MBBS examination i•1 April, 1981 and after completion of

internship got registration for M.D. (Obstetrics and Gynaecology) in June,

1982. It was further the case of the petitioner that the petitioner had completed

all the requirements and conditions for appearing for the M.D. examination.

The petitioner stated that the University had declared examination

programme and the petitioner theredter had appeared for the said M.D.

examination in the month of October/November, 1985.

There are several allegations made by the petitioner about the

irregularities and it was further alleged,

inter alia, that the grade sheets were .

manipulated and tampered with as a

result of which the said Dr. Chandrakala

Patil and Dr. Smita Thakkar were pa ;sed by respondent N o.2 Dr. Rawal at

the instance and behest of respondent no. 3 in that petition, the appellant in the

H first appeal, being the Chief Minister of Maharashtra at the relevant time. He

prayed that the record

of grade sheet mbmitted to the University of Bombay

7

S.N. PATIL v. DR. M.M. GOSAVI [MUKHARJI, J.] 465

by all the four examiners of M.D. in Obstetrics and Gynaecology A

examination, necessary papers and rules and regulations, should be produced

and to set aside the result of the M.D. examination to the extent that those

students who had secured P minus grade be disqualified.

It was further asked

to declare those

studerits who secured upto any number of P minus to be

pa.sed. A prayer was made in the writ petition filed in the High Court for .B

producing grade sheets.

The petitioner incidentally verified the petition stating

that the contents

of paragraphs 1 to 22 and paragraphs 24 to

30 were true to his own knowledge

while various other relevant paragraphs were verified as information received

from reliable sources but the source was not disclosed.

In these circumstances

the petitioner claimed that the results declared in respect

6f some of the C

candidates declared failed should have been declared passed.

The allegations

had been made against the appellant in paragraphs

14 and 25 of the petition. In

paragraph

14 it was alleged that after these irregularities came to light, the

petitioner in the original petition had started enquiring as

to the way in which

respondent No. 2 had committed these irregularities.

The petitioner thereafter D

learnt that one

Sree P.K. Shah who happened to be a good friend of Dr. M.Y.

Rawal, respondent No. 2 in the original petition

and also happened to be a

/ .

good friend ofrespondent No. 4 as they were together as the assistant medical

officers

at K.E.M.

Hospitai Bombay. The petitioner also learnt that the said

Dr. P.K. Shah and Dr. M.Y. Rawal though not permitted by Rules and

Regulations had been practising in Zaverl Clinic for Dr. C.L. Zaveri, since E

long time,

and thus they

becam_e close friends. It is also learnt that on behalf of

Dr. (Mrs.) Chandrakala Patil, who is the daughter of erstwhile thief Minister

of Maharashtra the said P.K. Shah met respondent No. 2 and requested him

that Dr. (Mrs.) Chandrakala Patil had appeared several times for M.D.

Examination (Obs. & Gyn.) but could not get through and therefore she

should be shown some favour.

It was learnt that the respondent No. 2

informed the said Dr. P.K.

Shah that he would definitely favour Dr. Mrs.

Chandrakala Patil if she failed, provided the Chief Minister himself phoned

F

him personally. The respondent No. 2 also told the said Dr. P.K.

Shah that he

would come

to know about the result only after the submission of the grade

sheet to the University because thereafter only one would know the position

with regard

to the names of the students who have failed and till that time he G

would

not know. It was further stated that it was learnt that the respondent

No. 2 also informed the said Dr. P.K. Shah that he would take the risk only if

the Chief Minister gave him a teleph,one ring otherwise he would not. It was

alleged that the respondent No. 3 in the original petition

and the appellant

herein after receiving this message from the respondent No. 4 and from Dr.

P.K.

Shah accordingly contacted respondent No. 2 and requested him to

favour his daughter.

H

466 SUPREME COURT REPORTS [1987] I S.C.R.

A In paragraph

25 of the petition'. the petitioner stated as follows:

. B

, ...

"The petitioner states that on the basis of information from

reliable source, the petitioner has made allegations

on Chief

. Minister

of Maharashtra, therefore, he has been

made·

respondent No. 3 in this writ petition.•

. .

These were the only allegations upon which the petition was factually

based.

The necessary verification has been set out hereinbefore. The appellant

Shri Shivajirao Nilengekar

Patil filed an affidavit denying the allegations in

paragraphs

14 and 25 of the application stating that he had played no part in

·

the said examination as alleged or otherwise. It was also stated in the aforesaid

c affidavit that the petitioner has not disclosed.the 'so-called' reliable sources of

information. No affidavit was filed by the petitioner himself .. The alleged

source of. information was not disclosed at any time. As mentioned

hereinbefore an affidavit

was filed by one Dr. Manikant Mishra on 28th

February,

1986 in support of the allegations. Further affidavit was sought to.

be tendered on behalf of the petitioner to the learned single judge regarding

D certain additional facts after the final hearing had started before the learned

single

judge of the High_ Court of Bombay. It may be mentioned as a matter of

historical . record that Dr. M.S. Gore, Vice-Chancellor. of University of

Bombay _resigned ..

The learned single judge by his. judgment held that the evidence of the

E . peiitioner as well as

of Dr. Misra were unsatisfactory and unreliable.

Reference was made

to the submissions of the petitioner's counsel relying

, under section 114 of the Evidence Act. In para 18 of the judgment it was held

that it could be reasonably inferred that altering and tampering

of the grade-

. sheets

we~e done by Dr. Rawal at the behest of respo!'dents No .. 3 and 4. On

·1th March, 1986 the day after the judgment, the appellant Shivajirao

· . F Nilangekar Patil resigned as the C.hief Minister of State·of Maharashtra in

G

· view of the Judgment. It may be mentioned that on or after 14th April, 1986.

certain affidavits were sought to be filed on behalf of the petitioner in pending

appeals purporting to rely upon certain allegations in writ petition No.

1709 of

·

1985 filed by Sub-Inspector Lambe challenging the order of transfer and also

an article ·which had appeared in INDIAlfODAY.

The Division Bench of the Bombay High Court rejected the prayer to

adduce the additional evidence. We have perused the nature

of the additional · .. -evidence which were sought io be adduced as is apparently from the special

.leave application by Dr. Gosav~ the original petitioner in the writ petition and

the respondent in the first appeal herein. These deal with the alleged

H involvement

of the 'erstwhile Chief Minister of Maharasthra in the matter of

---r

'

S.N. PATIL v. DR. M.M. GOSAVi [MUKHARJI, J.] 467

the careers of his son, his son-ih-law and in respect of transfer of one Inspector A

Lambe. As the additional evidence were not admitted and the appellant in the

first appeal herein had no opportunity to deal with the same, it would not be

fair to take these allegations into consideration. But these if true make dismal

reading and

give a sordid picture of the state of administration prevailing at

that time in the State of Maharashtra. But

as the High Court did not admit

these, perhaps

beca·use these were belated and perhaps would have B

unnecesserily prolonged the trial and were not directly connected with the

immediate issues before the High Court, this Court in the exercise of its

jurisdiction under Article

136 of the Constitution

would not interfere with the

decision

of non-admission of these additional evidence and say no more.

On 16th June, 1986, the Division Bench of the Bombay High Court in C

appeal No.

216 of 1986 delivered judgment holding in para 35 of the judgment

that the conclusion arrived at against Shri Nilangekar Patil was to

be regarded

merely

as an adverse comment and not as a finding of fact. To that extent the

finding of the learned single judge was upset. The special appeal has been

preferred by the original petitioner against the appellant challenging the

findings respectively. In

the·appeal by the original petitioner an affidavit had D

been filed in this case claiming the right to adduce additional evidence.

The controversy before this court is rather narrow--namely; was there

justification for the remarks made by the learned trial judge against the

appellant Patil

iri his judgment to the extent that manipulations in the grade­

sheets

of M.D. examination was done at the behest of the appellant, the then E

Chief Minister of Maharashtra to help respondent No. 4 to pass the M.D.

examination can the same

be justified either as a finding of fact or as a

comment? In order to consider the same

must be examined in little detail.

"Something is r.otten ·in the State of De~mark" sensed Marce11l1s in

SeeneV of Act I in Shakespeare's Hamlet. It can well be lamented that there F ·

was something rotten in once. premier and prestigious University of Bombay:

as the facts reveal. Justice Pendse of. the Bombay High Court, the learned

single judge before whom the matter came up for hearing has in an exhaustive

discussion narrated the sad state of affairs in this University of Bombay which

has P>"?dueed so many eminent professors and students.

The Univerity of Bombay conducts M.D. examiantions, inter alia, in

the disciplines of Obstetrics and Gynaecology in the Faculty of Medicine. The

theory examination consists of four papers, of which paper No.

IV is of Essay.

G

The theory papers I to III consist of three questions each. The practical clinical

examination consists of a long and short case in obstetrics and a long and short

case in Gynae.cology and Viva. The theory papers are assessed by individual H

A

468 SUPREME COURT REPORTS [1987] 1 S.C.R.

examiners and the grades are allotted in respect of each question in each paper

in accordance with the provisions set

cut in the note giving special instructions

to the examiners in the Faculty of Medicine. The M.D. theory examination in

the instant case was held between

14t:1 October and 17th October, 1985 and

was followed by pratical examination which was held between 4th November

B · and 9th November, 1985. The University had appointed four paper-setters and

examiners in accordance with the nrcessar~ provisions of the Act, two of

which were internal examiners, namely Dr. M.Y. Rawal as mentioned

herein before

and one Dr. S.N. Mukherjee from Indian Navy. There were two

external examiners who were Dr. (Mrs.),A. Nafeesa Beebi from Madras and

Dr. S.T. Watwe of Sangli.

It is not necessary to deal in more detail with the

C factual aspects which as mentioned hereinbefore have been exhaustively set

out in ihe judgment of the learned sin:~le judge, and which were not disputed

before us

by any of the parties. We may mention that grading had to be made

on the following lines

as noted in the judgment of the trial judge:

·

"G" -Good.

D "P" -Little better than passing.

"p" -Passing

"P" -Border Jim failure

"F" -Failure.

The learned single judge noted that

37 candidates had been declared

E successful including respondent No. 4 being Chandrakala

Patil and

respondent No. 5 Dr. Mrs. Smita Thakker. The other respondents no. 6 to

15

mentioned hereinbefore were other successful candidates whose result came to

be nullified and made subject to

re--examination by the judgment of the

learned single judge. We are not concerned with this aspect or with them any

more. The petitioner had claimed that he had wrongly been declared

as failed.

F The petitioner stated that he had some doubts

as to whether his code number

was properly decoded and he made

vuious other allegations. The petitioner

complained and the gravamen of his charges

was that

tl).ere were large number

of irregularities in the declaration of result and mark-sheet

was tampered in

favour of respondent no. 4 Chandrakala

Patil who is the daughter of the

erstwhile Chief Minister and that Dr. Rawal

was instrumental in tampering

G with the result which was done

at the behest of the then Chief Minister. The

learned judge came to the conclusion that Dr. Rawal alone was responsible for

tampering with and altering the tabulated grade-sheet of theory examination.

After discussing all these aspects in

dftail at the concluding paragraph 15 of

the judgment, the learned judge had observe_d that he had no hesitation in ·

concluding that Dr. Rawal was responsible for manipulating the result by

H tampering with and altering the grade-sheet so as to favour respondent No. 4

l

(

. I

S.N. PATIL v. DR. M.M. ?OSAVI [MUKHARJI, J.) 469

and respondent no. 5 in the writ petition namely Chandmkala Patil aild Dr. A

Smita Thakkar.

The next question, and which is the main issue before us, to which the

learned judge's•attention was drawn was whether the manipulation was done

by Dr. Rawal at the instance

of or behest of'Tespondent no. 3, the appellant

herein, the then Chief Minister of Maharashtra. The learned judge discussed B

the evidence in great detail. The allegations in respect

of the same are

contained in paragraph

14 of the petition which have been set out

herein before.

The learned judge noted after setting oµt the

gist of the allegation in

paragraph

14 of the petition that the averments made in that paragraph were C

wholly unsatisfactory and insufficient because the petitioner to the writ

petition and the respondent herein had not disclosed from whom he had learnt

what he

had averred. We are in entire agreement with that conclusion of the

learned single judge. Indeed this aspect

wa5 not disputed by any of the parties

before

us. The learned single judge further noted

tpat the allegations were not

only denied

by Dr. Rawal, Dr.

Shah and Chandrakala Pat'! but also by the D

Chief Minister, the appellant, on oath by filing affidavit. Dr. Shah had claimed

that he had never contacted Dr. Rawal in connection with the examination

of

respondent no. 4 and so was the claim of respondent no. 4 and of Dr. Rawal.

The appellant in his affidavit dated 26th January,

1986 had stated that Dr.

Shah did not send any message nor did be contact Dr. Rawal at any stage. An

effort was made by the original petitioner, respondent herein to establish

by E

direct evidence the link between Dr. Rawal and respondent no. 4 by relying

upon the evidence

of one Dr. Mishra sworn on 28th February, 1986. Dr.

Mishra had claimed that his

wife who is a doctor had left home to appear in

M.D. examination in November, 1985, but subsequently the

wife declined to

answer

as to whether she had appeared or ncit. Dr. Mishra claimed that he

went to Dr. Rawal to enquire and he noticed that respondent no. 4

was sitting F

in the doctor's chamber. Dr. Mishra claimed that

he over-heard

D~. Rawal

telling respondent No. 4 about her poor performance

in the examination and

suggested that he could do something only if her father, the Chief Minister,

gave any message. The learned single judge observed in his judgment the .less

said about this affidavit was better. The learned judge further observed that it

was impossible to place any reliance on the evidence of Dr. Mishraas

it.ws not G

known how

he came to contact the original petitioner-respondent herein or

why

he did

vot choose to file affidavit till 28th February, 1986. Dr. Rawal had

denied in his evidence that this Mishra came to

see him and pointed out that on

that relevant date, that

he was heavily occupied and he had hardly any time to

contact any visitor.

Smt. Chandrakala Patil also denied the meeting that

transpired between her and Dr. Rawal. In the judgment of the learned trial H

470 SUPREME COURT REPORTS [1987] I S.C.R.

A judge, it was unsafe to place any reliance on the words of Mishra. We

respectfully agree. The learned judge thereafter concluded that there was no

direct evidence to establish the involvement

of respondent no. 3, the erstwhile

Chief Minister

or the daughter, respondent no. 4 in the original writ petition in

securing favourable result from Dr. rawal. The learned judge noted that

counsel appearing

on behalf of the petitioner before the trial judge_ had

·

B accepted this position but had urged that it was not possible or in any event

extremely difficult

to establish by direct evidence the link between the wrong

doer and the benefit seeker in such cases.

It was, therefore; submitted _that it

was necessary for the

=ourt to draw inference from the probabilities of the case

as -well as the-surrounding circumstance5. Reliance was placed on the

principles

of

sectlon 114 of the Indian Evidence Act and it was claimed that

_ C _ from the facts found by the High Court, the inference was irresistible that the

results were tampered with

or altered at the behest of the erstwhile Chief

Minister and his daughter:

After referring

to the factual position and noting the principles of law,

· the learned judge observed that undoubtedly there was no direct evidence that

D · the result' of respondent no. 4 namely Smt. Chandrakala Patil was tampered

with

at the behest

of the appellant, Shivajirao Nilangekar Patil, respondent

No. 3 in the original petition

but that would not automatically lead to the

conclusion that the charges against the said respondents no. 3 and 4

to the

original petition were

-not established. The learned judge went on to observe

·

that it would be a mockery of justice if the courts chose to close their eyes to the

E · facts which _were brought· on record by the University by producing the

original documents 'eic. The learned judge observed that it, in the facts and

:circumstances

of this

case,' could reasonably be inferred that the alteration was

dime

at the behest of Nilangekar

Patil, erstwhile Chief Minister and her

daughter, Chandrakala Patil.

It could not be overlooked, according to the

_ j

' learned judge, that only these three were interested in 'securing favourable-~

-F . result at the examination According to the learned judge. there were two

_ contingencies which had to be taken into consideration. The first was that

respondent no. 4, Smt. Chandrakala Patil, might have used the riame of her.

father, the erstwhile Chief Minister to 'secure favourable result from Dr. Rawal

and secondly, the appellant, the erstwhile Chief Minister might have used his

office

to obtain a favourable result for his

daughter. Learned counsel on behalf

G -

of the original petitioner had urged before learned trial single judge that the

third contingency could

not be overlooked that it was probable that Dr. Rawal

-------on his llwn did all these. Learned trial judge rejected the third contingency as

wholly improbable.

He was of the view that Dr. Rawal was an experienced . 'examiner and he was not young or immature and it was impossible to accept_

-the view that .1 pe;..on like Dr. Rawal would proceed to do a criminal act and

H tamper with the record of the examination on his own with a view merely to

S.N. PATIL.v. DR. M.M. GOSAVI [MUKHARJI, J.] 471

--.:' please the people in power. No same person, according to learned judge, was A

likely to take such risk unless

he was prompted to do so and given an assurance

of protection by the persons in power. The

lear~ed judge was of the view that

' ,, ...

J

I

the risk involved in what Dr. Rawal had do.ne was so enorljlOUS that it was

difficult to conceive that he did it

on his own. It was further urged by learned

counsel before learned trial judge that respondent no. 4, Chandrakala

Patil

had failed in the examination on three previous occasions when her father was

Law Minister and yet previously the said Nilangekar Patil, respondent no. 3

had not used

his influence and power, therefore it was difficult to accept the

position that

he would do it on this occasion. This hypothetical question,

according to the learned trial judge, overlooked the fact that every examiner

was not necessarily obliging or subservient

as Dr. Rawal was. The learned

judge, therefore, concluded that the corollary

of this finding was that Dr.

Rawal had done it at the behest

of either the appellant Nilangekar

Patil or

Chandrakala Patil or both of. them. Then the learned judge passed some

strictures on Dr. Rawal and suggested some punishment and gave certain

directions about examination of

12 other candidates whose results

were also

B

c

. affected by the conduct of Dr. Rawal. As these appeals are not concerned with

D

the same, it is not necessary to refer to these. The learned judge directed that

. the result declared on 30th November, 1985 in respect ofrespondents nos. 4 to

15 be revoked and that there should be fresh examination by the other

examiners. These appeals are also not concerned with such direction.

It may be mentioned that an application was made before the learned

trial judge for adducing certain additional evidence

on behalf of the petitioner.

As the learned

trial judge thought that it would prolong the trial and for other

reasons, he declined to admit the additional .evidence.

As montioned hereinbefore there are three appeals filed namely appeal

No. 214 of i986 by Dr. Rawal, appeal no.

215 of 1986 by Chandrakaia

Patil

and appeal No. 216 of 1986 by Nilangekar Patil.

These appeals came up before a division bench consisting of Kania, Ag.

C.J. Shah, J. of the Bombay High Court. By a judgment delivered on 16th

June, 1986, these appeals were disposed of.

So far as appeal No. 214of1986 by

E

F

Dr. Rawal was concerned, the division bench found that some of the remarks

against Dr. Rawal were too harsh and the punishment was too severe. They G

directed that enquiry

be held against him. These appeals. are not concerned

with

thi~. So far as appeal No. 215of1986 preferred by ChandrakalaPatil was

concerned, the same was dismissed with no order

as to costs.

No· appeal had

been preferred to this Court from the said decision, So far as appeal No. 216 of

1986 before the division' bench was concerned, the learned judges pointed out

H

after discussing the evidence and the principles of law·thot there was no direct

472 SUPREME COURT REPORTS [ 1987] I S.C. R.

A evidence that the alterations in the grades of Chandrakala Patil were made at

the instance of the appellant. According to the division bench, the reasoning of

the learned trial judge in coming to the conclusi9n that respondent Nos. 3 and

4 to the original petition were reponsible for getting Dr. Rawal to alter the

grades aforesaid was based on certain contingencies. According to the division

bench the reasonings adopted by the learned trial judge were too tenuous for

B the conclusion based on such reasoning to

anount to a positive finding. The

Division Bench observed that merely because respondent no.

3 in the original

petition had held a position

of great power and would have been happy to see

that his daughter respondent no. 4 and

passe:I the M.D. examination, it was

little difficult to conclude

as a finding of fact that he must have influenced

respondent no.

2 to alter the grades of his daughter. The learned Division

C Bench noted that it was true that a seasoned examiner like Dr. Rawal would

not have taken the risk involved in altering the grades except under a great

pressure

of persuasion. The position that

grRdes were altered was upheld by

the division bench. The Division Bench, however, was of the opinion that

there might have been various motives whict. might have induced Dr. Rawal

to take the risk and alter the grades. Th< division bench observed that

D theoretically it was possible to conclude as

was urged by Mr. Dhanuka, the

learned counsel, that the respondent no.

4 might have used the name of her

father and persuaded Dr. Rawal to alter the grades or some other influential

person might have intervened and persuaded Dr. Rawal to alter the grades on

the footing that respondent no.

3 would be very happy to see his daughter

passed and would reward Dr. Rawal or take care

of him or there might be

E some other inducement. However, the Division Bench was of the view that in

all probability Dr. Rawal would not have acted unless he had made him

assured that the appellant in the first

appeal was behind the person who

persuaded him to alter the grades.

In the view of the Division Bench therefore

the conclusion

of the learned trial judge that the grades of respondent no. 4

must have

been altered by respondent no. 2 at the instance of respondent no. 3

F by using his official position under a promis<: of protection was certainly not

one which could properly amount to a finding. The Division Bench further

observed that the evidence in support of

such a conclusion is too slender to

support a finding of such gravity. The Divi:>ion Bench was of the view that

merely because the appellant held a position of great prestige and power, it

could not be said that the action of.Dr. Rawe.! must have been induced by him

G and in fact when allegation of this type is made against anyone holding a

position

of prestige and power, it was necessary that the evidence should be

closely examined before holding such allegation well-founded. The Division

Bench in its exhaustive judgment noted

varirns decisions of this Court as well

as of the English Courts. The High Court referred to the decision of this Court

in Niranjan Patnaik v. Sashibhushan Kar aiid Another, [1986] 2 SCC 569., a

H decision in which the judgment was delivered by one of us (S. Natarajan, J.).

-I

'ii

'·

·---!'.

..

-1

S.N. PATIL v. DR. M.M. GOSAV! [MUKHARJI, J.] 473

The High Court observed that the remarks made against the appellant,

Nilangekar Patil cannot be supported as conclusions arrived at against him

but these can

be regarded as comments and not finding of fact and such

comments were not wholly unjustified in

the facts of this case. The said appeal

No. 216of1986 was disposed of accordingly. The Division Bench also upheld

the finding of the learned single judge that there was tampering with the grade

sheets. The Division Bench also uphold the findingthat Dr. Rawal was mainly

responsible for the same. The setting aside of the results

of

Smt. Chandrakala

Patil and Smt. Smita Thakkar was also upheld. So far as the learned trial

judge, held that the same was done at the behest

of the erstwhile Chief

Minister, the same was not upheld

as a finding of fact but remarks to that fact

made by the learned trial judge were not interfered with. An affidavit was

filed

claiming the right to adduoe certain additional evidence and introducing

certain writings from the magazine

INDIA

TODAY etc. Such additional

evidence were sought to

be introduced as part of the claim of public interest litigation because it involved the conduct of the Chief Minister in respect of the

affairs of the University. Such claim for introduction of additional evidence,

was, however, not entertained by the Division Bench. The Division Bench,

however, in its judgment noted that the appellant was party to the writ petition

A

B

c

D

E

and had

an· opportunity of explaining ·and defending himself. There were

materials

on record bearing on his conduct justifying the remarks.which the

Division Bench characterised

as comments and not findings. A prayer was

made before the Division Bench for deletion of such remarks. The Division

Ben.ch was of the view that as the appellant had opportunity to meet such

remarks

and such remarks were made upon hearing of the petition the

question

as to the conduct of the appellant in the episode was a matter of

argument and it naturally fell for consideration before the Court. Judging the.

conduct of respondent No. 2

i.e. Dr. Rawal the part played by the apellant,

erstwhile Chief Minister naturally

fell for consideration. If the finding of the

learned trial judge, according

to the Division Bench, was looked upon as more

adverse comments and not

as a finding as such, there could not be any objection F to the same. The Division Bench was further of the view that the circumstances

noted by the learned judge against the appellant Nilangekar Patil, aforesaid,

formed a reasonable and cogent basis for adverse comment on

his conduct.

However, the Division Bench made it clear that these were merely in the nature

of adverse comments and based on the material on record and at the hearing of G

a proceeding which involved the taking of evidence merely on affidavits

..

According to the Division Bench, a fuller enquiry might lead to a conclusion,

that the comment was not justified. In view of this, the Division Bench had

asked the learned counsel for the appellant Shri Dhanuka, whether the ·

appellant desired that there should be a full-fledged factual enquiry into the

charges of the alteration of the grades ofrespondent no. 4 having been altered as H

aforesaid with a

view to pass respondent no. 4,

Smt. Chandrakala Patil and

,

474 . SUPREME COURT REPORTS [1987) I S.C.R.

A further that this was done at the instance of tl:e erstwhile Chief Minister. The r

Division Bench noted that the appellant made no request for any such enquiry

B

c

D

E

F

G

H

and he was merely taking a stand on the footing that the evidence on record did

not justify any conclusion being arrived at or a comment being made against

respondent no.

3. The Division Bench

suggest,xf that even at that S\ilge, if the

appellant wanted a full fledged enquiry and requested the University to hold the

same, the University might hold such an enquiry into the results of M.D.

examination in Gynaecology and Ohstectrics held in November, 1985,

particularly in respect of the results of respondents Nos. 4 & 5, but if such an

enquiry was held, the person designated to hold the enquiry should be selected

with the consent of the Chief Justice of the Bombay High Court.

Two appeals-one arising out of Special Leave Petition (Civil) No. 7568

of 1986 filed by Shivajirao Nilangekar Patil against the alleged adverse

remarks and the other arising out of Special

leave Petition

(Civil) No. 10665

of 1986 by the original petitioner are before this Court. There is an application.

for introduction of additional evidence.

There are three']loints involved in these two appeals. Firstly, we have to

determine in the appeal by the appellant, Nilar.gekar Patil, the erstwhile Chief

Minister of Maharashtra, whether the obse1vations made by the division

bench about the comments on the conduct of the Chief Minister were justified

or not

or should be expunged. Secondly, and connected with the first question

is the question whether the Division Bench of the Bomay High

Court was right

in upsetting the finding

that the tampering with the grade-sh.eels was done at

the behest

of the

Chief Minister was a finding based on no evidence; and

thirdly whether, in the facts and circumstances of this case the court was

justified in refusing

to admit additional evidence and whether we should at this

stage admit additional evidence.

·

The additional evidence as we have mentioned hereinbefore consist of

certain report in INDIA TODAY and certain other Magazines and certain

affidavits.

The basic principle of admission of additional evidence is that the

person seeking the admission of additional evidence should be able to establish

that with the best efforts such additional evidence

cquld not have been

adduced at the first instance. Secondly the party affected by the admission

of

additional evidence should have an opportunity to rebut such additional

evidence. Thirdly, that additional evidence was relevant for the determination

of the issue. The additional evidence sought

to be introduced mainly consist of

alleged instances when the

Chief Minister on previous occasions had in respect

of some criminal proceedings and other matters pending used his influence to

'

drop those proceedings. Now about these,

the•:e are controvertial allegations.

There

is no satisfactory explanation that these

rn-called material in the form of

)

'

S.N. PATIL v. DR. M.M. GOSAVI [MUKHARJI, J.] 475

additional evidence could not have been obtained before the institution of the

petition in the High Court.

To this Mr. Tarkunde's submission was that it was

difficult

to gather evidence against a Chief Minister in office but as the case

had gathered momentum, people had come in and after decision of the learned

trial judge, the Chief Minister had resigned and there was

an atmosphere of

belief for offering to adduce evidence which people were hesitant to give before

that. We are

of the opinion that at this belated stage there was not sufficient

material ground on which additional evidence should

be admitted for the

determin_ation of the issues involved in these appeals.

Jn the appeal filed by the original petitioner Dr. Mahesh

Madhav

Gosavi, it was submitted that there were sufficient materials upon which the

conclusion arrived at by the learned trial judge that the tampering was done at

the behest

of the erstwhile Chief Minister and the Division Bench was in error

in deciding that, that was not the finding

of fact. Mr. Tarkunde conceded, and

in our opinion rightly,

that the view of the Division Bench that the observation

A

B

c

of the learned single judge that tampering of the grade-sheets in M.D.

examination was done at the behest

of the Chief Minister was in the nature of a

comment

and not a finding was a distinction without any difference. We are of D

the opinion that he

is right in this submission. We are also of the opinion that

the Division Bench was right

in holding that there was no direct evidence. We

are conscious that in a situation of this type it is difficult to obtain direct

evidence.

So far as admission of additional evidence is concerned, we are unable

to accept the position that such additional evidence should have been admitted

in order to show the nature

of the conduct of the Chief Minister in other cases

in similar situations.

The admissibility

of evidence as to 'similar fact' has been considered by

the courts. In this connection it may be instructive to refer to the observations

of Lord Denning in Mood Music Publishing Co. Ltd. v. De. Wolfe Ltd.,

[1976] 1 All England Law Reports 763 at 766., to the following effect:

"The admissibility of evidence ·as to 'similar facts' has been

much considered in the criminal law. Some of them have

reached the highest tribunal, the latest of them being

Boardman v. Director of Public Prosecutions (1974)3 All ER

887, (1975) AC 421. The criminal courts have been very careful

n<?t to admit such evidence unless its probative value is so

strong that

it should be received in the interests ofjustice: and

its admission will not operate unfairly to the accused. Jn civil cl!Ses the courts.have followed a similar line but have not been

E

F

G

H

A

B

c

476 SUPREME COUl':T REPORTS [ 1987] I S.C. R.

so chary of admitting it. In civil cases the courts will admit

evidence of similar/acts ij"it is logically probative, that is if it is

logically relevant in determining the matter which is in issue;

provided that it is not opvessiveorunfair to the other side; and

also that the other side has fair notice of it and is able to deal

with it."

On this aspect cross On Evidence, Sixth Edition page 346 has observed

that although in some early Civil cases in England rejected similar fact

evidence as res inter alias act, it was soon accepted that the r.ule of exclusion

was certainly no stricter than that in criminal cases. The real question was

whether there was a special rule of exclusion at all, or whether it were not

rather a question of simple relevance in each case. The learned author noted

that in more recent time, there has been a further relaxation of the

exclusionary rules in civil cases. Cross at page 346/

347 further noted that the

aforesaid observations of Lord Denning might

be interpreted as applying in

civil cases a similar sort of balancing approach to the rules for the admissibility

of similar fact evidence

as applied in criminal cases. The factors to be weighed

D were however different on account of the peculiar position

of the accused in

criminal cases. The learned author noted tha

· there was very high authority

accounting for the existence of an exclt:sionary discretion in criminal cases

solely by reference to the accused's vulnerability to prejudice.

Applying the aforesaid principles to the facts

as we have mentioned

E hereinbefore, we are of the opinion that

:he allegations of alleged conduct of

the appellant in similar cases would not be a safe basis upon which to admit

additional evidence, in this case having regard to the issues involved and

nature of the issues involved in these matl ers and at the stage when these were

sought to

be introduced.

F

G

H

In support of the appellant in Civil Appeal arising out of Special Leave Petition No. 7568 of 1986, Dr. Singh vi submitted that the petitioner/ appellant

had suffered and would continue to suffer serious civil consequences on

account of findings or adverse comments or strictures made by the learned

single judge. It was in those circumstance' that this appeal had been filed. The

appellant had resigned

as Chief Minister and he is due, according to Dr.

Singhvi, to contest the bye-ekction in November,

1986. He has further

submitted that the question in these

appeals 'had to be viewed in the

perspective of law and strictly on the ba,;is

of the record and should not be

permitted to

be politicised either by extraneous allusions or by.presumptions

and pre-suppositions inconsistent with

kgal principles or by an attempt by

political opponents to convert the proceedings into a political trial. It "'.as his

submission that the averments and the supporting affidavits which formed the

..,

....

' I

L

S.N. PATIL v. DR. M.M. GOSAVI .IMUKHARJI. J.J" 477

basis of the allegations against the appellant were dealt with in the two courts.

below in the manner

as we have indicated. He specially referred to the

observations

of the learned single judge about the affidavit in support of

th.Se

allegations. He also relied o~ the observation on Dr. Mishra's affidavit and the

adverse comments made by the learned single judge

on Dr. Mishra's affidavit.

He also referred

to the finding of the Division Bench that the petitioner had no

personal knowledge of this incident nor had he disclosed the source of the

inforrnatioii. That the petitioner had filed the affidavit ofone Manikant Misra

and then <lrew our attention to the various allegations and infirmities of the

affidavit and specially relied on the various motives which might have induced

IL-.. Dr. Rawal, respondent no: 2 in the original petition to take the risk and alter

· the grades and also he referred us to the finding at page 132 ofthe Paper Book

of the Division Bench that the evidence was much too slender in support ·of the

charge against the appellant. He emphasised

that these appeals arose out of

exercise of extra-ordinary jurisdiction by the civil court, not

by trial on

examination and cross-examination of evidence but an , exercise of

extraordinary jurisdiciton on the basis of the affidavit, and the court should

r-

,

· insist that there should be 'commensurate' proof for judicial certitude and_that

the distinction between 'finding' and 'adyerse· commerit' ~as a distinction

without any difference because it was throughout recognised as a finding.

The Division 'Bench in Appeal No. 216 of 1985 has held that the.

conclusion arrived

at against

Shri Nilangekar Patil was a comment and not a

finding

of fact. Dr. Singhvi referred extensively to the affidavit of Dr. Mishra

and comments of learned single

judge and the Division Bench as to how

unreliable such affidavit was.

It

wa5 submitted that in view of the infirmities of the affidavit of Dr.

Mishra upon which the original petitioner,

Dr.Mahesh MadhavGosavi based

his own petition was

of such an unreliable credience that the courts should not

have

entertained the application.· The Division Bench was unable to accept

that position. We are in agreement with the Division Bench.

"

The allegations made in the petition disclose a lamentable state of affairs

in one of the premier univer~ities of India. The_ petitioner might have moved in

his private interest but enquiry into the conduct of the examiners of the

Bombay University in one of the highest medical degrees was a matter of

public interest. Such "state of affairs having been brought to the notice of the

eruct, it was the duty of the court to the public that the truth and the validity of

the allegations made be inquired into. It was in furtherance of public interest

that

an enquiry into the state of afairs of public institution

becomos necessary

A

B

c

D

E

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H

478 SUPREME COURT REPORTS [1987] 1 S.C.R.

A and private litigation assumes the eharaeter of public interest litigation and

sueh an enquiry cannot

be avoided if

1t is necessary and essential for the

administration of justice.

The allegations of the petitioner have been noted about the role of the

Chief Minister.

It is well to remember that Rajagopala Ayyangar, J.

Speaking

B for this Court in C.S. Rowjee & 'Q,,., v. Andhra Pradesh State Road

Transport Corporation [ 1964] 2 S.C.R. 330 observed at page 347 of the report

that where allegations

of this nature were made, the court must be cautious. It

is true that allegation of mala fides and of improper motives on the part of

T

those in power are frequently made and their frequency has increased in recent --

times. This Court made these observations as early as 1964. It is more true

C today than ever before. But it has to be bor11e in mind that things are

happening in public

life which were

never even anticipated before and there

are several glaring instances of misuse

of power by men in authority and

position. This

is a phenomenon of which the courts are bound to take judicial

notice. In the said decision the court noted that it

is possible to decide a matter

of probabilities and of the inference to he drawn from all circumstances

on

D which no direct evidence could be adduced. The court furthernoted that it was

somewhat unfortunate that allegations of mala fide which could have no

foundation in fact were made and several cases which had come up before this

Court and other courts and it had been found that these were made merely

with a view to cause

prejudice·or in the hope that whether they have basis in

fact or not some

of which might at least stick. It is therefore the duty of the

E courts, warned this Court in the said dedsion, to scrutinize these allegations

with care so as to avoid being in any

marn1er influenced by them in cases where

they have no foundation in fact. In this task which

is cast on the courts, it will

be conducive to

have disposal and consideration of them if those against

whom allegations are made came forward to place before the court either the

denials or their version

of the matter so that the courts might be in a position to

i

F judge whether the onus that lay upon tho"e who make allegations of mab.fides

on the part of the authorities had been dbcharged in proving it. Of course, the

facts in the instant case are different.

It

ii: true that the basis of the allegations

being the affidavit of Dr. Mishra was cousidered by the learned single judge as

well as the Division Bench to be thorou1:hly unreliable. In this case there was

specific and categorical denial by the erstwhile Chief Minister that tampering

G was done at his behest. Therefore, while the court should be conscious to deal

with the allegations of mala fide

or cast

:ispirations on holders of high office

and power, the court cannot ignore the probabilities arising from proven

circumstances.

Our attention was drawn by learned counsel Dr. Singhvi on the

H observations

of this Court in The Barium

Chemicals Ltd. and Anr., v. The

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~.

S.N. PATIL v. DR. M.M. GOS/\VI [MUKHARJI, J.] 479

Company Law Board and Others, [1966] Supp. SCR31 I whereat page352 of

the report the Court observed that where evidence was adduced by affidavits,

such affidavits might

be properly verified either on knowledge or from

sources. But the basis of such knowledge

or source of information must be

clearly stated. This was laid down as early as

1909 by Jenkins, C.J. and

Woodroofe, J. in

Padmabati Dasiv. Rasik Lal Dhar, [!LR

XXXVII Calcutta

7 259] where the Division Bench of the Calcutta High Court observed that the

provisions of Order XIX, rule 3 of the Code of Civil Procedure, must be

strictly observes: every affidavit should clearly express how much is a

. statement of the deponent's knowledge and how rnuch of the statement was in

!._~his belief, and the grounds of belief must be stated with sufficient particularity.

I This has been followed more or less universally by courts in matters where

reliance

is placed on affidavits. This view has been rei.terated by this Court in

The

State of Bombay v. Purushottam Jog Naik. [1952] SCR 674 It is on this

principle that Dr. Singhvi urged that the original petition should not have been

entertained because of the defective affidavit in this case. Undoubtedly the

affidavit and the petition were defective

as mentioned hereinbefore. But the

court has taken cognizance of the matter and certain inferences followed from

the inherent nature of facts apparent from the facis brought before the Court.

Reliance was also placed on the observations of this Court in

E.P.

Royappav. State of Tamil Nadu & Anr., [1974] 2 SCR 348. The Facts or that

case need not be referred in detail except to mention that there allegation was

made against the Chief Minister by a member of the Indian Administrative

Service in the cadre of the State of Tamil Nadu for not appointing him as the

Chief Secretary. Ray, C.J. noted in the judgment several facts which were

alleged

as instances indicating mala fide. It was stated that those instances gave

rise to the wrath of the Chief Minister against the petitioner in that case. After

noting the alleged incidents, the Chief Justice rejected these events and

. indicated that from the affidavit evidence it could not have been said that the \-,Chief Minister had committed acts ofviolence or intimidation and the entire

.J-. afidavit evidence established beyond any measure of doubt that the allegations

of the petitioner in that case imputing mala fides against the Chief Minister

were baseless. In a judgment concurring Bhagwati, J. as the learned Chief

Justice then was, observed

at page 389 of the report that in dealing with the

allegation

of mala fide, it was necessary to bear in mind two important

considerations; that the court was not concerned to investigate into the acts of

maladministration by the political Government headed by

the Chief Minister

~ at that time. It was not within the province of the court to embark on a far

flung enquiry into the facts of commission and omission charged against

the

Chief Minister in the administration of the affairs

of Tamil Nadu. That was

not the scope of the inquiry before the court and the court must decline to enter

upon any such inquiry.

It was one thing to say that the Chief Minister had

A

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c

D

E

F

G

H

480 SUPREME COl.'RT REPORTS [1987] I S.C.R.

A ma/us animus against the petitioner in hat case.The court was only concerned

with the later limited issue and not with the former popular

issue. The court

cannot permit the petitioner to side

trnck the issue and escape the burden of

establishing hestility and ma/us animui on the part 9f the Chief Minister by

diverting courts attention to incidents

of suspicious exercise of executive

B

c

D

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F

G

power. It is perhaps on this basis that the Division Bench of the Bombay High

Court in the instant case rejected the a

lplication for additional evidence and

reject<;d the contention in support of th<~ view of misrule or misconduct by the

erstwhile Chief Minister of Maharashtra, Nilangekar Patil, the appellant in

the first appeal. The same principles in respect of affidavit evidence were

reiterated in different context by ths Court in Tara Chand Khatri v.

Municipal Corporation of Delhi & Ors., [1977] 2 SCR 198. This Court

reiterated that the High Court was not too wrQng in dismissing the writ

petition

in limine in that case because

aprimafacie case requiring investigation

had not been made out by the appellant. This Court reiterated that the High

Court would

be justified in

refusing to carry on investigation into the

allegations of mala fide

if necessary pirticulars of the charge making out a

prima facie case were not given in the petition.

Since the burden of establishing

mala fide

lay very heavily on the

person who alleged and the allegations made

in regard thereto in the writ petition were not sufficient in that case to establish

ma/us animus, this Court found that

the High Court was justified in dismissing

the petition without issuing notice. Dr. Singhvi submitted that precisely the

same was the position in the instant case.

Reliance was also placed on

Sukhvinder Pal Bipan Kumar v.

State of

Punjab & Ors., [1982] 2 SCR 31 whm at page40 of the report after dealing

with the allegations in the writ 'petition, this Court observed that the

allegations in the writ petition were not sufficient to constitute an averment

of

mala tides so as the vitiate the orders of suspension issued in that case. In such

a situation the court was justified in refusing to carry out investigation into the .

allegations

of mala tides if necessary pa1ticulars of the charge making a prima

'"•

fade case were not there in the petition. This Court reiterated that burden of

ma/a fide prima j/Jcie lay very heavily rn the person who alleged it. There the

petitioner sought to invalidate certain orders

of suspension and it was the onus

on them to establish the charge of bad faith or misuse of its power by

the

government.

Halsbury's

Laws of England, Fourth Edition,

Volume 17 page .16

paragraph 19 deals.with the standard of proof necessary in these types of cases. -f

It has been stated that in civil cases tile standard of proof is satisfied on a

balance of probabilities. However, even within this formula, there are

H variations depending upon the subject matter of allegations.

:L-

S.N. PATIL v. DR. M.M. GOSAVI [MUKHARJI, J.] 481

About the adverse remarks being' made against the erstwhile Chief A

Minister,

we were reminded of the observations of this Court in

The State of

Uttar Pradesh v. Mohammad Nairn [1964] SCR 2 363 where this Court

reiterated that it

is a principle of cardinal

importance in the administration of

justice that the power, freedom of judges and Magistrates must be maintained

and they must be allowed to perform their functions freely and without

interference by any body, even by this Court. But it

is equally necessary that in

expressing their opinions; Judges and Magistraies must be guided by

• consideration5 of justice, fair-play and restriant. Judicial pronouncements - .

must be judicial in nature, and shoulct not normally depart from sobriety,

moderation and reserve.

In that case this Court found that the remarks in the

judgment in respect

of the entire police force of the State were not justified in

B

the facts of the case, nor were they necessary for

the disposal of the case and C

should have been expunged. We are clearly

of the opinion

that.the pnnciple

enunciated by that decision can have no application in the facts

of this case. In

the instant case, the first issue was wheiher there was tampering of the grade­

sheet, a fact which

has been found by the learned single judge and by the

Division Bench and which

is not in dispute in

any of these appeals before us.

The other dispute was the allegation and the finding

of the learned single judge D

was that the same was

at the behest of the appellant in the first appeal and the

respondent in .the second appeal, Nilangekar Patil, the erstwhile

Chief .

Minister. This point was. very much in issue. He was a party. He had been .

heard on this point. So, therefore, whether the remarks were correct or not, is

another issue but there wa5 no question of the remarks being beyond the issue

and no question of the party against whom the r~marks had been made had

E

not been given an o_pportunity. · .

Our attention was drawn to the decision of this Court in Vineet Kumar

l v. Mangal Sain Wadhera AIR [1985] SC 817 in aid of the submission that

f"' additional evidence should have been allowed but in our opinion the context F

· in which the said observation was made was entirely different and cannot have

any relevance to the facts of this Case. · · -

' . . .

t ,

The Privy Counsil in The Bank of India and Others v. Jamesetji A.fl.

Chinoy and Messers .. Chinoy and Co. AIR [1950] P.C. 90 reiterated that -

speculation is not enough to bring home the charge of fraudulant conspiracy. G

In a different context dealing with the election matter in Sri Har!]Singh

,Charan Mohanty v. Sh. Surendra Mohanty, [1974] 3 SCC 680 the question

arose was whether the consent

or agency was there. This Court observed that

•

consent or agency of Shri Biju Patnaik could not be inferred from mere close •

friendship or other relationship or political affiliation. However, close was the H

relationship, unless there was evidence to prove that the person publishing or

A

482 SUPREME cou1n REPORTS [1987] I S.C.R.

writing the editorial was authorised by the returned candidate or he had

undertaken to

be responsible for all the publications, no consent could be inferre\i. In our opinion, the observations must be read in the context of the

facts of that case.

Seth Gulabchand v. Seth Kudilal

imd Others [1966) 3 SCR 623 at 629)

B was a case under the Contract Act,

1872 where under section 3 of the Indian

Evidence Act,

1872 applied the same standard of proof in all civil cases. There

this Court after referring to certain observations referred to the observations

of the Division Bench of the Calcutta High Court in Jarat Kumari Dassi v.

Bissesur. ILR 39 Cal. 245: 16 C.W.N. 265. The Court thereafter referred to the

definition of section 3 of the words 'proved', 'disproved' and

'not proved'.

Reference was made to the decision of the

Patna High Court by Meredith, J.

C at page 630 .in Raja Singh v. Chaichoo Singh AIR 1940 Patna 281at203 where

it was observed by Meredith,

J. that it

wa,; well settled that where fraud had to

be inferred from the circumstances m:d was not directly proved, those

circumstances must

be such as to

exclude any other reasonable possibility. In

other words, the criterion was similar to that which was applicable to

]) circumstancial evidence in criminal cases. This Court observed that this Court

was unable to agree with those observations. In that case this Court observed

in respect of the allegation that a party had accepted bribe in a civil case did not

convert it into a criminal case and ordim.rily rule of civil cases would apply.

Reliance was placed on the observations of this Court in the case

of

E Niranjan Patnaik v. Sashibhushan Kar

a11d Another (supra) to which one of

us (S. Natarajan, J.) was a party where this Court dealt with certain adverse

remarks made against the Minisier. This Court reiterated that the High Court

and this Court must be deemed to have power to see that the courts below do

not unjustly and without any lawful excus'' take away the character of a party

or of a witness or of a counsel before

it. The observations in that case in our

F opinion are inapplicable in the instant case. There an adverse remark had been

made which the court found to be unjustified which was not relevant to the

issue in point and the

party· against whcm such observations having been

made was not a party to the said proceedir:gs but only a witness. Our attention

was also drawn to certain English cases which have been noted by the Division

Bench in the order under appeal and it

is net necessary for us to refer to these in

G detail.

The Division Bench noted that this Court had in the case

of State of

Uttar Pradesh v. Mohammad Nairn (supi'a) had exhaustively dealt with the

limitation in making these remarks

i.e. (I) whether a party whose conduct in

question was before the court had an opportunity of explaining or defending

H himself;

(2) whether there was evidence

en record bearing on that conduct

S.N. PATIL v. DR. M.M. GOSAVI (MUKH_ARJI, J.] 483

justifying the remarks; (3) whether it was necessary for the decision of the case A

as an integral part thereof to refer to that conduct; and (4) the observations

must be judicial in nature. These iests, the Division Bench observed were·

·satisfied in respect of the remarks made by the learned single judge. The

Division Bench

was of the view that the circumstances relied before the

learned single judge formed a reasonable and cogent basis for the adverse

comment on the conduct of the appellant herein in the first appeal. However,

B

the Division Bench made it clear that it was merely in the nature of an adverse

comment based on the material on record and at the hearing of a proceeding

which involved the taking

Of evidence merely on affidavit. A fuller enquiry

might lead to a conclusion that the comment was not justified. In that view of

the matter the Division Bench asked the learned counsel whether the appellant

in the first appeal desired that there should be a foll-fledged factual enquiry C

into the charge of the grades of respondent No. 4 having been altered

as

aforesaid.

Such enquiry, however, must be done by a body, the Division

Bench suggested, nominated by the Chief' Justice .of Bombay High Court.

Counsel for the appellant in the first appeal before

us made no request for such

an enquiry, however, must be done.by.a body, the Division Bench suggested,

·

nominated by the Chief Justice of Bombay High Court. Counsel for the D

an enquiry, before the High Court. In other words, he was not willing to

invite an enquiry to clear his image.

Shri T arkunde, appearing on behalf of the respondent in the first appeal

and appellant in the second one, submitted before

us that there was sufficient

substantial evidence before the learned. single judge to come to the conclusion

that the tampering was done at the behest of the erstwhile Chief Minister

of

Maharashtra. He submitted it was a finding of fact based on substantial

evidence and there

1

was clear material on such eyidence. He further submitted

that in a matter of this nature where public interest was involved namely, state

of affairs in the University of Bombay in respect

of a high degree in the

medicine and in which the conduct

of the Chief Minister was involved, public

interest demanded that the High Court should have investigated the matter

even though there might

be some infirmities in the affidavit supporting the

petition. He submitted that in this

cas_e that after the initiation of the

proceeding, public interest

was involved and the High Court was justified in

entertaining the application. He, therefore, submitted that the second appeal

arising out of

Special Leave Petition No. 10665 of 1986 should be allowed. He

further submitted that in a case of this nature, additional evidence should have

been admitted. It was further submitted by Mr. Karanjawala, counsel, that

even if this Court was inclined to accept that there was no distinction between

a comment

and a conclusion of fact in view of the facts disclosed in this case,

this Court in exercise of its judicial discretion under article 136 of the

/

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484 . SUPREME COUl~T REPORTS (1987] I S.C.R.

A Constitution should not interfere in the facts and circumstances of this case. r

He urged that neither the cause of justice nor public interest demanded

interference under Article

136 of the Constitution. It is true that exercise of the

power under article

136 of the Constitution is discretionary.

B

There is no question in this case or giving any clean chit to the appellant

in the first appeal before us. It leaves a great deal of suspicion that tampering

~

was done to please Shri Patil or at his behest. It is true that there is no direct

evidence.

1t is also true that there is no e'1idence to link him up with tampering.

Tampering

is established. The

relatiomhip is established. The reluctance to

face a public enquiry

is also apparent. Apparently Shri Patil, though holding a

public office does

not believe that

"ceascr's wife must be above suspicion". The

c erstwhile Chief Minister in respect of his conduct did. not wish or invite an

enquiry to be conducted by a body nominated by the ChiefJustice

of the High

)

Court. The facts disclose a sorry state or affairs. Attempt was made to pass the

daughter of the erstwhile Chief Mini!:ter who had failed thrice before by

tampering the record. The person who did it was an employee of the

D

Corporation. It speaks of a sorry state of affairs and though there is no

distinction between comment and a finding and there

is no legal basis for such

a comment,

we substitute the observations made by the aforesaid observations

as

herein.

This

Court cannot be oblivious that there has been a steady decline of

E

public standards or public morals and public mo;ale. It is necessary to cleanse

public

life in this country along with or even before cleaning the physical

atmosphere.

The pollution in our val

"es and standards is an equally grave

menace as the pollution of the environment. Where such situations cry out the

Courts should not and cannot remain mute and dumb.

F

In that view of the matter, we dispose of the two appeals and application

for adducing additional evidence with

1he observations made aforesaid. In the

~l

facts and circumstances of this case, there will be no order as to costs.

S.R.