Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 23
PETITIONER:
SHIVAJIRAO NILANGEKAR PATIL
Vs.
RESPONDENT:
DR. MAHESH MADHAV GOSAVI & ORS. AND VICE VERSA
DATE OF JUDGMENT09/12/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
PATHAK, R.S.
NATRAJAN, S. (J)
CITATION:
1987 AIR 294 1987 SCR (1) 458
1987 SCC (1) 227 JT 1986 1071
1986 SCALE (2)977
ACT:
Evidence-- Admission of additional ’ evidence, prin-
ciple of-Admissibility of evidence as to "similar fact "--
Affidavits evidence--Value of..
Code of Civil Procedure, Order XIX Rule 3 Mala
fides--Allegation of mala fides against men in
power--Courts’ duty to view such allegations vis-avis purity
in public life, explained.
Post-graduate medical examination in Maharashtra--Alle-
gation of manipulation in the grade sheets of M.D. (Gynae)
examination to clear the candidate, a daughter of the Chief
Minister of Maharashtra--Adverse remarks against the Chief
Minister, whether justified as a finding off act or as a
comment based on no evidence--Judicial pronouncements and
duty of the Judges.
HEADNOTE:
Dr. Mahesh Madhay Gosavi appellant in CA 4453/86 and
respondent in CA 4452/86 was a failed candidate at the M.D.
examination in the speciality of Gynaecology and Obstetrics
held in the year 1985. He filed a writ petition under Arti-
cle 226 of the Constitution of India in the High Court of
Bombay challenging the results of the M.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
sheets of the examinees so as to clear unsuccessful candi-
dates and in particular Smt. Chandrakala Patil daughter of
the Chief Minister of Maharashtra appellant 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. Chandrakala Patil at
Dr. Rawals’ Chambers and that what the deponent heard came
to be proved by the M.D. (Gynae) results in which one Dr.
Smita Thakkar 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 appellant Shivaji
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 23
Rao Patil, Smt. Chandrakala Patil, his daughter, Dr. Rawal
and another Dr. Shah on oath by filing their affidavits. The
459
respondent, though he had verified his petition, did not
disclose the so called reliable source of information de-
rived by him. (about the allegations made against the appel-
lant & 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 it
was not known how he came to contact Dr. Gosavi or why he
did not choose to file affidavit till 28.2.1986 when the
appellant Patil had already filed his affidavit on 26.1.86;
(iii) that the allegation and the averments made in para-
graph 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 of Respondents 4 to 15 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. This was because Dr. Rawal 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
the people in power. The risk involved in what Dr. Rawal had
done was so enormous that it was difficult to conceive that
he did it on his own. Accordingly he allowed the writ peti-
tion, passed some structures against Dr. Rawal and the
appellant in CA 4452/86 and gave certain directions about
examination of 12 other candidates whose results were also
affected by the conduct of Dr. Rawal.
An application made before the Judge for adducing cer-
tain 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.
Chaodrakala 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 Kania and Shah J. of
the Bombay High Court on 16th June, 1986. So far as appeal
No. 216 of 1986 is concerned, according to the Division
Bench; (i) 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 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 respond-
ent 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 difficult to conclude,
as a finding of fact that he must have
460
influenced Dr. Rawal to alter the grades 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 great pressure or pursuation, but it
cannot be ruled out the possibility 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 unless he had made him assured that the
appellant Shivaji Rao Patil was behind the person who pur-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 23
suaded 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 be
supported as conclusions arrived at against him but these
can be regarded as adverse comments and not finding of fact
and such comments were not wholly unjustified in the facts
of this case. However, the Division Bench refused to enter-
tain an application to introduce additional evidence as part
of the claim of public interest litigation. Hence the appeal
No. CA 4452/86 by Nilangekar Patii against the adverse
comments were allowed to remain and there was a cross appeal
4453/86 by Dr; Madhav Gosavi against refusal to accept
additional evidence.
Dismissing the appeals by special leave, the Court,
HELD: 1.1 The basic principle of admission of addition-
al evidence is that the person seeking the admission of
additional evidence should be able to 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. [474 G]
Here, the additional evidence sought to be introduced
mainly consist of alleged instances when the appellant on
previous occassions had in respect of some criminal proceed-
ings and other matters pending used his influence to drop
those proceedings. Applying the principle as to admission of
"similar 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 additional
evidence in this case having regard to the issues involved
and nature of the issues involved in these matters and 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. 763 @ 766, quoted with approval.
461
2. The mere fact that several infirmities were noticed
in the affidavit of Dr. Mishra upon which the original
petitioner Dr. Gosavi based his own petition could not lead
to the argument that the entertainment of the petition
itself was wrong. The allegations made in the petition
disclose a lamentable state of affairs in one of the premier
universities 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 court,
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 affairs of public institution becomes
necessary and private litigation assumed the character of
public interest litigation and such an inquiry cannot be
avoided if it is necessary and essential for the administra-
tion 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 ques-
tion in this case of giving any clean chit to the appellant
in the first appeal. It leaves a great deal of suspicion
that tampering was done to please Shri Patil or at his
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 23
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 Patii, 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 not wish or invite an enquiry 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 the, 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 basis
for such a comment. [484A- D]
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 or even before cleaning the physical
atmosphere. The pollution in the values 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. [484 E]
3.3 Where allegations of mala fide were made, the Court
must be cautious. It is true that allegation of mala fides
and of improper motives on the part of those in power are
frequently made and their frequency has increased
462
in recent times. 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 ver-
sion of the matter so that the courts might be in a position
to judge whether the onus that lay upon those who make
allegations of mala fides on the part of the authorities had
been discharged in proving it. It is true that the basis of
the allegations being the affidavit of Dr. Mishra was con-
sidered to be thoroughly unreliable. In this case there was
specific 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 allega-
tions of mala 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.S. Rawjee & Ors. v. Andhra Pradesh State Road Trans-
port Corporation, [1964] 2 SCR 330, referred to.
3.4 Where evidence was adduced by affidavits, such
affidavits might be properly verified either on knowledge 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 & Ors., [1966] Supp. SCR 311; Padmabati Dasi v. Rasik
Lal Dhar, ILR XXXVII Calcutta 259; The State of Bombay v.
Purushottam Jog Naik, [1952] SCR 674; E.P. Royappa v. State
of Tamil Nadu & Anr. [1974] 2 SCR 348; Tara Chand Khatri v.
Municipal Corporation 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 Kudilal & Ors., [1966] 3
SCR 623 at 629; Jarat Kumari Dassi v. Bissesur, ILR 39 Cal.
245:16 C.W.N. 265; Raja Singh v. Chaichoo Singh, AIR 1940
Patna 281 at 203, referred to.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 23
The State of Uttar Pradesh v. Mohammad Naim, [1964] 2
SCR 363. Vineet Kumar v. Mangal Sain Wadhera, AIR 1985SC817;
The Bank of lndia & Ors., v. Jamesetji A.H. Chiney and
Messrs. Chinoy and Co., AIR 1950 PC 90; Sri Harasingh Charan
Mohantv v. Sh. Surendra Mohanty, [1974] 3 SCC 680; Niranjan
Patnaik v. Shashibhushan Kar and Anr. [1985] 2 SCC 569,
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4452-53 of
1986
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.
Radhakrishn anand Surya Kant for the appearing parties.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. These two special leave peti-
tions 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.
The controversy in this case centers round the conduct,
if any, of the appellant in the first appeal in the M.D.
Theory examination in the discipline of Gynaecology and
Obstetrics held by the University of Bombay on 14th to 17th
October, 1985. In that subject, the practical examination
was held by the University at K.E.M. Hospital, 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 petitioner. He and Smt. Dr.
Chandrakala Patil alias Dawale, a Junior Assistant Medical
Officer in the said K.E.M. Hospital, Bombay, who was re-
spondent 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 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 the relevant time the Chief Minister of
Maharashtra.
On 15th November, 1985, a circular was issued by the Univer-
sity of
464
Bombay convening a meeting of local examiners for the final-
isation of M.D. results on 18th November, 1985. On the said
18th November, 1985, the meeting was attended only by Dr.
Rawal as Dr. Mukherjee, another coexaminer was not available
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 23
at Bombay. On 30th November, 1985 the result of M.D. exami-
nation was declared. Out of the 47 candidates who had ap-
peared for the examination, 34 candidates were declared
successful including Dr. Chandrakala Patil alias Dawale and
Dr. Mrs. Smita Thakkar. The petitioner, Dr. Gosavi was
declared to have failed.
Upon these, a petition was filed by Dr. Gosavi under
article 226 of the Constitution of India in the High Court
of Bombay.
Our attention was drawn to the fact that in the affida-
vit in support of the petition one Dr. Manikant Mishra had
stated that he had approached Dr. Rawal to find out whether
his wife had appeared in the said M.D. examination and it
was alleged that on this occasion he had over-heard certain
alleged conversation between Dr. Rawal and Smt. Chandrakala
Patil, daughter of the Chief Minister. It transpired later
that Mrs. Kalpna Misra wife of the said 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 petitioner had claimed that he had been
working as a junior Assistant Medical Officer and that he
had done his housemanship in the Department of Obstetrics
and Gynaecology at K.E.M. 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 in
April, 1981 and after completion of internship got registra-
tion 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 ap-
pearing for the M.D. examination. The petitioner stated that
the University had declared examination programme and the
petitioner thereafter had appeared for the said M.D. exami-
nation 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 passed by respondent No.2 Dr. Rawal
at the instance and behest of respondent no. 3 in that
petition, the appellant in the first appeal, being the Chief
Minister of Maharashtra at the relevant time. He prayed that
the record of grade sheet submitted to the University of
Bombay
465
by all the four examiners of M.D. in Obstetrics and Gynae-
cology examination, necessary papers and rules and regula-
tions, 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 students who secured upto any number of P
minus to be passed. A prayer was made in the writ petition
filed in the High Court for producing grade sheets.
The petitioner incidentally verified the petition stat-
ing 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 of some of the candidates declared
failed should have been declared passed. The allegations had
been made against the appellant in paragraphs 14 and 25 of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 23
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 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 of respondent No. 4 as they were together as the
assistant medical officers at K.E.M. Hospital, 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 Zaveri Clinic for Dr. C.L. Zaveri, since
long time, and thus they became dose friends. It is also
learnt that on behalf of Dr. (Mrs.) Chandrakala Patil, who
is the daughter of erstwhile Chief 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
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 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 telephone 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.
466
In paragraph 25 of the petition, the petitioner stated as
follows:
"The petitioner states that on the basis of
information from reliable source, the peti-
tioner 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 para-
graphs 14 and 25 of the application stating that he had
played no part in the said examination as alleged or other-
wise. It was also stated in the aforesaid affidavit that the
petitioner has not disclosed the ’so-called’ reliable
sources of information. No affidavit was filed by the peti-
tioner himself. The alleged source of information was not
disclosed at any time. As mentioned hereinbefore an affida-
vit 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 certain additional facts
after the final hearing had started before the learned
single judge of the High Court of Bombay. It may be men-
tioned 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 petitioner as well as of Dr. Misra were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 23
unsatisfactory and unreliable. Reference was made to the
submissions of the petitioner’s counsel relying under sec-
tion 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 gradesheets were done by Dr. Rawal at
the behest of respondents No. 3 and 4. On 7th March, 1986
the day after the judgment, the appellant Shivajirao Ni-
langekar Patil resigned as the Chief Minister of State of
Maharashtra in 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 INDIA TODAY.
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 to
be adduced as is apparently from the special leave applica-
tion by Dr. Gosavi, the original petitioner in the writ
petition and the respondent in the first appeal herein.
These deal with the alleged involvement of the erstwhile
Chief Minister of Maharasthra in the matter of
467
the careers of his son, his son-in-law and in respect of
transfer of one Inspector 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 because these were belated and
perhaps would have unnecesserily prolonged the trial and
were not directly connected with the immediate issues before
the High Court, this Court in the exercise of its jurisdic-
tion under Article 136 of.the Constitution would not inter-
fere 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 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 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 in
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 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 de-
tail.
"Something is rotten in the state of Denmark" sensed
Marcellus in Scene V of Act 1 in Shakespeare’s Hamlet. It
can well be lamented that there was something rotten in once
premier and prestigious University of Bombay: as the facts
reveal. Justice Pendse of the Bombay High Court, the learned
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 23
single judge before whom the matter came up for hearing has
in an exhaustive discussion narrated the sad state of af-
fairs in this University of Bombay which has produced so
many eminent professors and students.
The University of Bombay conducts M.D. examinations,
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. The
theory papers 1 to 111 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 Gynaecology
and Viva. The theory papers are assessed by individual
468
examiners and the grades are allotted in respect of each
question in each paper n accordance with the provisions set
out 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 14th October and 17th
October, 1985 and was followed by practical examination
which was held between 4th November and 9th November, 1985.
The University had appointed four paper-setters and examin-
ers in accordance with the necessary provisions of the Act,
two of which were internal examiners, namely Dr. M.Y. Rawal
as mentioned hereinbefore and one Dr. S.N. Mukherjee from
Indian Navy. There were two external examiners who were Dr.
(Mrs.) A. Nafeesa Beebi from Madras and gr. S.T. Watwe of
Sangli. It is not necessary to deal in more detail with the
7actual aspects which as mentioned hereinbefore have been
exhaustively set out in the judgment of the learned single
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.
"p" -- Little better than passing.
,’p" -- Passing
Border line failure
"F" -- Failure.
The learned single judge noted that 37 candidates had
been declared successful including respondent No. 4 being
Chandrakala Patil and respondent No. 5 Dr. Mrs. Smita Thak-
ker. The other respondents no. 6 to 15 mentioned hereinbe-
fore 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. The
petitioner stated that he had some doubts as to whether his
code number was properly decoded and he made various other
allegations. The petitioner complained and the gravamen of
his charges was that there were large number of irregulari-
ties in the declaration of result and mark-sheet was tam-
pered 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 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 tabulat-
ed grade-sheet of theory examination. After discussing all
these aspects in detail at the concluding paragraph 15 of
the judgment, the learned judge had observed that he had no
hesitation in concluding that Dr. Rawal was responsible for
manipulating the result by tampering with and altering the
grade-sheet so as to favour respondent No. 4
469
and respondent no. 5 in the writ petition namely Chandrakala
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 23
Patil and Dr. 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 in-
stance of or behest of respondent no. 3, the appellant
herein, the then Chief Minister of Maharashtra. The learned
judge discussed the evidence in great detail. The allega-
tions in respect of the same are contained in paragraph 14
of the petition which have been set out hereinbefore.
The learned judge noted after setting out the gist of
the allegation in paragraph 14 of the petition that the
averments made in that paragraph were 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 was not disputed by any of the parties before us. The
learned single judge further noted that the allegations were
not only denied by Dr. Rawal, Dr. Shah and Chandrakala Patil
but also by the 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 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
not. Dr. Mishra claimed that he went to Dr. Rawal to enquire
and he noticed that respondent no. 4 was sitting in the
doctor’s chamber. Dr. Mishra claimed that he over-heard Dr.
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 reli-
ance on the evidence of Dr. Mishra as it was not known how
he came to contact the original petitioner--respondent
herein or why he did not 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
470
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 Minis-
ter 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 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
court to draw inference from the probabilities of the case
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 23
as well as the surrounding circumstances. Reliance was
placed on the principles of section 114 of the Indian Evi-
dence Act and it was claimed that 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 undoubt-
edly there was no direct evidence that the result of re-
spondent 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 facts which were
brought on record by the University by producing the origi-
nal documents etc. The learned judge observed that it, in
the facts and circumstances of this case, could reasonably
be inferred that the alteration was done at the behest of
Nilangekar Patil, erstwhile Chief Minister and her daughter,
Chandrakala Patil. It could not be overlooked, according to
the learned judge, that only these three were interested in
securing favourable 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 name of
her father, the erstwhile Chief Minister to secure favour-
able 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 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
own 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 a
person like Dr. Rawal would proceed to do a criminal act and
tamper with the record of the examination on his own with a
view merely to
471
please the people in power. No same person, according to
learned judge, was likely to take such risk unless he was
prompted to do so and given an assurance of protection by
the persons in power. The learned judge was of the view that
the risk involved in what Dr. Rawal had done was so enormous
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 23
affected by the conduct of Dr. Rawal. As these appeals are
not concerned with the same, it is not necessary to refer to
these. The learned judge directed that the result declared
on 30th November, 1985 in respect of respondents 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 mentioned hereinbefore there are three appeals filed
namely appeal No. 214 of 1986 by Dr. Rawal, appeal no. 215
of 1986 by Chandrakala 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. 214 of 1986 by 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 directed that enquiry be held against
him. These appeals are not concerned with this. So far as
appeal No. 215 of 1986 preferred by Chandrakala Patil 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 divi-
sion bench was concerned, the learned judges pointed out
after discussing the evidence and the principles of law that
there was no direct
472
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 conclusion that respondent Nos. 3 and
4 to the original petition were responsible for getting Dr.
Rawal to alter the grades aforesaid was based on certain
contingencies. According to the division bench the reason-
ings adopted by the learned trial judge were too tenuous for
the conclusion based on such reasoning to amount to a posi-
tive finding. The Division Bench observed that merely be-
cause 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 passed the M.D.
examination, it was little difficult to conclude as a find-
ing of fact that he must have influenced respondent no. 2 to
alter the grades of his daughter. The learned Division 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 grades were altered was upheld by the division
bench. The Division Bench, however, was of the opinion that
there might have been various motives which might have
induced Dr. Rawal to take the risk and alter the grades. The
division bench observed that theoretically it was possible
to conclude as was urged by Mr. Dhanuka, the learned coun-
sel, 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 some other inducement. However, the Division
Bench was of the view that in a11 probability Dr. Rawal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 23
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 Divi-
sion 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 by using his official position under a promise 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 Division 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. Rawal must have been induced by him 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 various 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. Sashibhu-
shan Kar and Another, [1986] 2 SCC 569., a decision in which
the judgment was delivered by one of us (S. Natarajan, J.).
473
The High Court observed that the remarks made against the
appellant, Nilangekar Patil cannot be supported as conclu-
sions 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. 216 of 1986 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 finding that 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 adduce 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 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 Bench 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
appellant, erstwhile Chief Minister naturally fell for con-
sideration. 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 to the same. The Division Bench was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 23
further of the view that the circumstances noted by the
learned judge against the appellant Nilangekar Patil, afore-
said, 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 com-
ments and based on the material on record and at the hearing
of 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 factu-
al enquiry into the charges of the alteration of the grades
of respondent no. 4 having been altered as aforesaid with a
view to pass respondent no. 4, Smt. Chandrakala Patil and
474
further that this was done at the instance of the erstwhile
Chief Minister. The Division Bench noted that the appellant
made no request for any such enquiry 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
suggested that even at that stage, 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 Obstectrics
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 points involved in these two appeals.
Firstly, we have to determine in the appeal by the appel-
lant, Nilangekar Patil, the erstwhile Chief Minister of
Maharashtra, whether the observations made by the division
bench about the comments on the conduct of the Chief Minis-
ter were justified or not or should be expunged. Secondly,
and connected with the first question is the question wheth-
er the Division Bench of the Bombay High Court was right in
upsetting the finding that the tampering with the grade-
sheets 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 hereinbe-
fore 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 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. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 23
his influence to drop those proceedings. Now about these,
these are controvertial allegations. There is no satisfacto-
ry explanation that these so-called material in the form of
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 determination of the issues
involved in these appeals.
In 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 find-
ing of fact. Mr. Tarkunde conceded, and in our opinion
rightly, that the view of the Division Bench that the obser-
vation 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
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. Dc. Wolfe Ltd., [1976] 1
All England Law Reports 763 at 766., to the following ef-
fect:
"The admissibility of evidence as to ’similar
facts’ has been much considered in the crimi-
nal 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) A C 421. The criminal courts
have been very careful not to admit such
evidence unless its probative value is so
strong that it should be received in the
interests of justice: and its admission will
not operate unfairly to the accused. In civil
cases the courts have followed a similar line
but have not been
476
so chary of admitting it. In civil cases the
courts will admit evidence of similar facts if
it is logically probative, that is if it is
logically relevant in determining the matter
which is in issue,’ provided that it is not
oppressive or unfair to the other side; and
also that the other side has fair notice of it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 23
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 rule 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 Den-
ning 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 crimi-
nal cases. The factors to be weighed were however different
on account of the peculiar position of the accused in crimi-
nal cases. The learned author noted that there was very high
authority accounting for the existence of an exclusionary
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 hereinbefore, we are of the opinion that the
allegations of alleged conduct of the appellant in similar
cases would not be a safe basis upon which to admit addi-
tional evidence, in this case having regard to the issues
involved and nature of the issues involved in these matters
and at the stage when these were sought to be introduced.
In support of the appellant in Civil Appeal arising out
of Special Leave Petition No. 7568 of 1986, Dr. Singhvi
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 circumstances
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-election in November, 1986. He has fur-
ther submitted that the question in these appeals had to be
viewed in the perspective of law and strictly on the basis
of the record and should not be permitted to be politicised
either by extraneous allusions or by. presumptions and pre-
suppositions inconsistent with legal principles or by an
attempt by political opponents to convert the proceedings
into a political trial. It was his submission that the
averments and the supporting affidavits which formed the
477
basis of the allegations against the appellant were dealt
with in the two courts below in the manner as we have indi-
cated. He specially referred to the observations of the
learned single judge about the affidavit in support of these
allegations. He also relied on the observation on Dr. Mi-
shra’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 information. That the
petitioner had filed the affidavit of one Manikant Misra and
then drew our attention to the various allegations and
infirmities of the affidavit and specially relied on the
various motives which might have induced Dr. Rawal, respond-
ent 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 of the 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 23
arose out of exercise of extra-ordinary jurisdiction by the
civil court, not by trial on examination and cross-examina-
tion of evidence but an exercise of extra ordinary jurisdic-
tion on the basis of the affidavit, and the court should
insist that there should be ’commensurate’ proof for judi-
cial certitude and that the distinction between ’finding’
and ’adverse comment’ was a distinction without any differ-
ence 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 re-
ferred extensively to the affidavit of Dr. Mishra and com-
ments of learned single judge and the Division Bench as to
how unreliable such affidavit was.
It was submitted that in view of the infirmities of the
affidavit of Dr. Mishra upon which the original petitioner,
Dr. Mahesh Madhav Gosavi 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 Divi-
sion Bench.
The allegations made in the petition disclose a lament-
able state of affairs in one of the premier universities of
India. The petitioner might have moved in his private inter-
est 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 court, 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 affairs
of public institution becomes necessary
478
and private litigation assumes the character of public
interest litigation and such an enquiry cannot be avoided if
it 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 for this Court in CS.
Rowjee & Ors., v. Andhra Pradesh State Road Transport Corpo-
ration [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 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 today than ever before. But it has to
be borne 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 deci-
sion the court noted that it is possible to decide a matter
of probabilities and of the inference to be drawn from all
circumstances on which no direct evidence could be adduced.
The court further noted 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
courts, warned this Court in the said decision, to scruti-
nize these allegations with care so as to avoid being in any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 23
manner influenced by them in cases where they have no foun-
dation 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
judge whether the onus that lay upon those who make allega-
tions of mala fides on the part of the authorities had been
discharged in proving it. Of course, the facts in the in-
stant case are different. It is true that the basis of the
allegations being the affidavit of Dr. Mishra was considered
by the learned single judge as well as the Division Bench to
be thoroughly unreliable. In this case there was specific
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 mala
fide or cast aspirations 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 observations of this Court in The Barium Chemicals
Ltd. and Anr., v. The
479
Company Law Board and Others, [1966] Supp. SCR 311 where at
page 352 of the report the Court observed that where evi-
dence 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 Dasi v. Rasik
Lal Dhar, [ILR XXXVII Calcutta 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
much of the statement was in his belief, and the grounds of
belief must be stated with sufficient particularity. This
has been followed more or less universally by courts in
matters where reliance is placed on affidavits. This view
has been reiterated 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 facts
brought before the Court.
Reliance was also placed on the observations of this
Court in E.P. Royappa v. 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 Admin-
istrative 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 al-
leged 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 of
violence or intimidation and the entire affidavit evidence
established beyond any measure of doubt that the allegations
of the petitioner in that case imputing mala fides against
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 23
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 allega-
tion 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 adminis-
tration 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
480
malus animus against the petitioner in that case. The court
was only concerned with the later limited issue and not with
the former popular issue. The court cannot permit the peti-
tioner to side track the issue and escape the burden of
establishing hestility and malus animus on the part of the
Chief Minister by diverting courts attention to incidents of
suspicious exercise of executive power. It is perhaps on
this basis that the Division Bench of the Bombay High Court
in the instant case rejected the application for additional
evidence and rejected the contention in support of the 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 this 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 wrong in dismissing the writ petition in limine
in that case because a prima facie case requiring investiga-
tion had not been made out by the appellant. This Court
reiterated that the High Court would be justified in refus-
ing to carry on investigation into the allegations of mala
fide if necessary particulars 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 there-
to in the writ petition were not sufficient in that case to
establish malus 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 where at page 40
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 fides 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 fides if necessary particulars of the
charge making a prima facie case were not there in the
petition. This Court reiterated that burden of mala fide
prima facie lay very heavily on 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 govern-
ment.
Halsbury’s laws of England, Fourth Edition, Volume 17
page 16 paragraph 19 deals with the standard of proof neces-
sary in these types of cases. It has been stated that in
civil cases the standard of proof is satisfied on a balance
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 23
of probabilities. However, even within this formula, there
are variations depending upon the subject matter of allega-
tions.
481
About the adverse remarks being made against the erst-
while Chief Minister, we were reminded of the observations
of this Court in The State of Uttar Pradesh v. Mohammad Naim
[1964] SCR 2 363 where this Court reiterated that it is a
principle of cordinal 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 express-
ing their opinions, Judges and Magistrates must be guided by
considerations of justice, fair-play and restriant. Judicial
pronouncements must be judicial in nature, and should’ 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 the facts of the case, nor were they necessary
for the disposal of the case and should have been expunged.
We are clearly of the opinion that the principle enunciated
by that decision can have no application in the facts of
this case. In the instant case, the first issue was whether
there was tampering of the gradesheet, 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 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 was,
no question of the remarks being beyond the issue and no
question of the party against whom the remarks had been made
had not been given an opportunity.
Our attention was drawn to the decision of this Court in
Vineet Kumar v. Mangal Sain Wadhera AIR [1985] SC 817 in aid
of the submission that additional evidence should have been
allowed but in our opinion the context in which the said
observation was made was entirely different and cannot have
any relevance to the facts of this Case.
The Privy Counsil in The Bank of India and Others v.
Jamesetji A.H. Chinoy and Messers. Chinoy and Co. AIR [1950]
P.C. 90 reiterated that speculation is not enough to bring
home the charge of fraudulent conspiracy.
In a different context dealing with the election matter
in Sri Harasingh 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 affilia-
tion. However, close was the relationship, unless there was
evidence to prove that the person publishing or
482
writing the editorial was authorised by the returned candi-
date or he had undertaken to be responsible for all the
publications, no consent could be inferred. In our opinion,
the observations must be read in the context of the facts of
that case.
Seth Gulabchand v. Seth Kudilal and Others [1966] 3 SCR
623 at 629] 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 23
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. at page 630 in Raja Singh v.
Chaichoo Singh AIR 1940 Patna 281 at 203 where it was ob-
served by Meredith, J. that it was well settled that where
fraud had to be inferred from the circumstances and 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 ob-
served that this Court was unable to agree with those obser-
vations. 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 ordinarily rule
of civil cases would apply.
Reliance was placed on the observations of this Court in
the case of Niranjan Patnaik v. Sashibhushan Kur and Another
(supra) to which one of us (S. Natarajan, J.) was a party
where this Court dealt with certain adverse remarks made
against the Minister. 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
excuse take away the character of a party or of a witness or
of a counsel before it. The observations in that case in our
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 whom such observations having been made
was not a party to the said proceedings but only a witness.
Our attention was also drawn to certain English eases which
have been noted by the Division Bench in the order under
appeal and it is not necessary for us to refer to these in
detail.
The Division Bench noted that this Court had in the case
of State of Uttar Pradesh v. Mohammad Naim (supra) had
exhaustively dealt with the limitation in making these
remarks i.e. (1) whether a party whose conduct in question
was before the court had an opportunity of explaining or
defending himself; (2) whether there was evidence on record
hearing on that conduct
483
justifying the remarks; (3) whether it was necessary for the
decision of the case as an integral part thereof to refer to
that conduct; and (4) the observations must be judicial in
nature. These tests, the Division Bench observed were satis-
fied in respect of the remarks made by the learned single
judge. The Division Bench was of the view that the circum-
stances 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. Howev-
er, 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 justi-
fied. 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 full-fledged factual
enquiry 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, nomi-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 23
nated 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 an enquiry, before the
High Court. In other words, he was not willing to invite an
enquiry to clear his image.
Shri Tarkunde, 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 was clear
material on such evidence. 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
case 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
484
Constitution should not interfere in the facts and circum-
stances of this case. 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 discre-
tionary.
There is no question in this case of 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. It is also true that there is no evi-
dence to link him up with tampering. Tampering is estab-
lished. 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 not wish or invite an
enquiry 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 the 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 basis for such a comment, we
substitute the observations made by the aforesaid observa-
tions as herein.
This 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 23
this country along with or even before cleaning the physical
atmosphere. The pollution in our values 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.
In that view of the matter, we dispose of the two ap-
peals and application for adducing additional evidence with
the observations made aforesaid. In the facts and circum-
stances of this case, there will be no order as to costs.
485