RNI No. GOAENG/2002/6410
Reg. No. G-2/RNP/GOA/32/2015-2017
Panaji, 1st February, 2017 (Magha 12, 1938) SERIES II No. 43 PUBLISHED BY AUTHORITY
EXTRAORDINARY
No. 6
GOVERNMENT OF GOA
Department of General Administration __
(iii) 190 [(3)(a)], Article 191[(1)(a)] & Article 192 read with Section 9-A of the Representation of Peoples Act, 1951 – Disqualification for Government Contracts.
Order
No. 1/3/2017-GAD-II/347
Order passed by the Hon'ble Governor of Goa dated 27-01-2017 and the opinion of the Election Commission of India, New Delhi dated 20-1-2017 is hereby published in the Official Gazette for the general information of public.
Varsha S. Naik, Under Secretary (GA-II).
Porvorim, 1st February, 2017.
______
Before the Governor of the State of Goa B) On receipt of the above petition, I had sought the opinion of the Election Commission of India in the matter, as required under Article 192(2) of the Constitution of India, I have since received the opinion of the Election Commission of India vide communication No. 1113/5/(G)/Goa/ECI/LET/FUNC/ /JUD/RCC/2016 dated 20th January, 2017.
C) The opinion of the Election Commission of India under Article 192(2) of the Constitution of India is reproduced as below:-
Order
By this order, I dispose of the petition filed before me by Shri Shirish Q. Kamat, s/o Quessoa Kamat, r/o H. No. 1-E, St. Jose De Areal, Salcete, Goa seeking disqualification of Shri Digamber V. Kamat, Member of the Legislative Assembly of Goa from Margao Assembly Constituency, under Article:-
(i) 190 [(3)(a)], Article 191[(1)(a)] & Article 192 for
using his position as Chief Minister to favour own fresh company to grant Class I License without any experience on;
(ii) 190 [(3)(a)], Article 191 [(1)(a)] & Article 192 read with Section 8-A of the Representation of Peoples Act, 1951 – Disqualification for Corrupt
Practices; and
"This is a reference dated 17th November, 2016, received from the Governor of Goa seeking opinion of the Election Commission of India under Article 192(2) of the Constitution of India, on the question whether Mr. Digamber Vasant Kamat, a Member of the Legislative Assembly of Goa from Margao Assembly Constituency, has become subject to disqualification, for being member of that Assembly, under Article 191 of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951.
2. In the said reference, the question of disqualification arose because of a petition dated 2nd November 2016, filed by Shri Shirish Kamat, Salcete-Goa (hereinafter the "Petitioner"), whereby the Petitioner has sought disqualification of Shri Digamber Vasant Kamat (hereinaf ter the "Respondent") under Article 190(3)(a), Article 191 (1)(a) of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951 (hereinafter the "Act of 1951").
OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 43 (EXTRAORDINARY No. 6) 1ST FEBRUARY, 20173. The facts of the case, as disclosed in the said
petition, are as follows:
4. The Respondent established a partnership firm, named, M/s. Bharat Construction, Engineers & Builders (hereinafter "Partnership Firm"), on 9th December, 1980 and got it registered on 6th January 1982 with the Civil Registrar, Goa. At the time of the registration, the Partnership Firm consisted of five partners, namely, the Respondent and his brother Mr. Gurudas Kamat, Mr. Kiran Vasant Naik and his brothers Mr. Vinod Naik and Mr. Santosh Naik. The records obtained by the petitioner under the Right to Information from the office of the Civil Registrar, Salcete show that the Partnership Firm was reconstituted subsequently from time to time. The change in partners are detailed out as follows:
Date Partners
19th October, 1. Mr. Kiran Vasant Naik 1989 2. Mrs. Asha Kamat
(Respondent's wife)
30th November, 1. Mr. Kiran Vasant Naik 1993 2. The Respondent 22nd January, 1. Mr. Kiran Vasant Naik 1996 2. Ms. Asha Kamat
(Respondent's wife)
1st April, 1. Mr. Kiran Vasant Naik 2005 2. Mr. Satish Lavande
(Respondent's brother-in-law)
Thus, since 1st April, 2005, the Partnership Firm consisted of two partners, namely, Mr. Kiran Naik and Mr. Satish Lavande.
5. The Partnership Firm was registered with the Goa PWD/Water Resources Department (WRD) under various categories.
6. A company, named, Apollo Engineers and Contractors Pvt. Ltd. (hereinafter "Company") was incorporated on 13th February, 2006. Clause 33 of the Articles of Association (AOA) of the Company states that the Company has two directors, namely, Mr. Kiran Naik and Mr. Satish Lavande. A Memorandum of Handing over and taking over was executed on 6th January, 2007, which stated that the said Partnership Firm was taken over by the Company on 13th February, 2006 along with all assets, liabilities and enlistment with the PWD in different categories. Another Memorandum was made on 6th January, 2007 stating that the benefits, liabilities and agreements (including all contracts entered or received by the Partnership firm from the PWD/WRD) of the Partnership Firm were transferred to the Company on 13th February, 2006.
7. The Partnership firm vide its letter dated 5th June, 2006 requested the PWD, Altinho, Panaji to convert the name of the contractor from that of the Partnership Firm to the Company. The PWD has renewed and converted the registration of the Partnership Firm in the name of the Company in similar categories.
8. In the meantime, there was a change in the directorship of the Company. Form 32 shows that Mr. Yogiraj Kamat, son of the Respondent, was appointed as the Director of the Company on 25th June, 2013 and on the same day, Mr. Satish Lavande ceased to be the Director of the Company.
9. The Respondent contested and was elected as an MLA on various occasions. The details of the election are produced below:
Date of Nomination Date of Election
November/December 1994 December 1994 May/June 1999 June 1999 May 2002 30-5-2002 May 2005 May 2005 April 2007 April 2007
February 2012 March 2012
It may be noted that the Respondent was sworn- in as the Chief Minister of Goa on 8th June, 2007. He served as the CM till 6th March, 2012. He filed his nomination in February 2012 and was elected in March 2012 and is presently an MLA.
10. The Petitioner states that the Goan common civil code is in force in Goa, whereby real brother, wife, wife's real brother and one's son are immediate family and are proxies in one's business. The Petitioner has contended that at the time of filing nominations to the present Goa State Legislative Assembly in February 2012, there were orders executed by the Company with the state government departments like PWD, WRD. Similarly, in the previous occasions of nomination filing and election of the Respondent, work orders were subsisting in name of the Partnership Firm with the state government department. The Petitioner alleges that the Respondent's wife Ms. Asha Kamat, his brother-in-law Mr. Stish Lavande and his son, Mr. Yogiraj Kamat are proxies of the Respondent in the Partnership Firm and also in the Company.
11. The Petitioner further states that the Respondent has been charge-sheeted by the Goa Crime Branch in the Louis Berger Bribery case as the prime accused which according to him attracts the disqualification under Section 8A of the Act of 1951.
OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 43 (EXTRAORDINARY No. 6) 1ST FEBRUARY, 201712. The Petitioner has made the following factual
and legal averments:
(a) The Respondent has been automatically disqualified for office of profit under Article 190(3)(a) and 191 (1)(a) of the Constitution of India for taking advantage of his position after he assumed office of CM for personal gains favouring his fresh and inexperienced Company with Class I license with the Goa PWD.
(b) The Respondent should be disqualified for corrupt practices under Articles 190(3)(a) and 191 (1)(a) of the Constitution of India read with Section 8A of the Act of 1951 for allotting works to the Company at a price more than 50% above the estimated cost of tenders during the period when the Respondent was the CM. It is further alleged that the Respondent has been charge-sheeted by the Goa Crime Branch in the Louis Berger Bribery case as the prime accused which attracts the disqualification under Section 8A of the Act of 1951.
(c) The Respondent should be disqualified for subsisting government contracts under Section 9A of the Act of 1951 and he continued with the work orders of the Company through his proxies, namely, his wife Ms. Asha Kamat, his brother-in-law Mr. Satish Lavande and his son, Yogiraj Kamat.
13. The findings of the Commission on the questions raised by the Petitioner are as follows:
13.1. With respect to contention (a) the Commission is of the view that the Respondent cannot be disqualified under Article 191(1)(a) for holding an office of profit since for disqualification under this provision, two ingredients have to be proved, namely,
(i) He holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; and
(ii) Derivation of profit by virtue of such an office.
The Petitioner has failed to produce any documentary evidence of Respondent holding any office of profit under any Government in terms of Article 191(1)(a), other than an MLA or Chief Minister of Goa. Holding of such office is not an office of profit as declared by the Explanation to Article 191(1) of the Constitution. Hence, this contention is dispelled and rejected.
13.2. With respect to contention (b) the Commission is of the view that the Respondent cannot be disqualified under Section 8A of the Act of 1951 as the determination of disqualification under the said provision requires a prior order of the High Court under Section 99 of the Act of 1951 finding a person guilty of commission of corrupt practice, as defined in Section 123 of this Act. The relevant provision is produced below:
8A. Disqualification on ground of corrupt practices - (1) The case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period:
Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under Section 99 takes effect.
(2) Any person who stands disqualified under Section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.
The Petitioner has failed to produce any order to this effect by any High Court. Hence, the Commission is of the considered view that contention (b) is also liable to be rejected as there is no order by any High Court finding the Respondent guilty of any corrupt practice.
13.3. With respect to contention (c) the disqualification under Section 9A of the Act of 1951 is attracted when "there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.
OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 43 (EXTRAORDINARY No. 6) 1ST FEBRUARY, 2017The Petitioner has alleged in the present case
that the Company had undertaken various contracts with the PWD during the period prior to filing of nomination and after the election of the Respondent as MLA. It is observed that as per the records produced by the Petitioner, the Respondent has neither been a Director nor a shareholder, or
promoter of the Company at any given time. Hence, the question of gaining any benefit or profit under subsisting contracts which were entered into by the company in the course of its trade or business is not established. Thus, there are no subsisting contracts which were entered into by him in the
course of his trade or business.
It is argued by the Petitioner that the Respondent holds a joint ownership of the Partnership Firm/Company, making him liable for the government contracts undertaken by the Company.
As per the Portuguese Civil Code of 1867, marriage under Goan law is governed by a system of communion of assets, whereby, from the time of a person's marriage, his spouse acquires half undivided right in his assets. Section 152 of the Companies Act, 2013 discusses the appointment of directors which is as follows:
152. Appointment of directors—
(2) Save as otherwise expressly provided in this Act, every director shall be appointed by the company in general meeting
(3) No person shall be appointed and a director of a company unless he has been allotted the Director Identification Number under section 154.
(5) A person appointed as a director shall not as a director unless he gives his consent to hold the office as director and such consent has been filed with the Registrar within thirty days of his appointment in such manner as may be prescribed.
It is clearly stated that a director can only be appointed through a general meeting of the company and that every director needs to be allotted a Director Identification Number to be a valid director of a company. It is to be noted that Ms. Asha Kamat (wife of Respondent) was never a Director of the Company and nor was the Respondent.
Thus, the argument that the Respondent holds a joint ownership of the Partnership Firm/Company cannot be sustained on two grounds. Firstly, the law of communion of assets is applicable only to joint holding of assets in matrimony; and secondly, communion of assets is not related to the appointment of a director in the company. The disqualification under Section 9A requires subsistence of contract in the course of the Respondent's trade or business.
Hence, the Respondent has not incurred
disqualification under Section 9A of the Act of 1951 as he was neither a partner in the Partnership Firm nor the Director of the Company on the date of his nomination in 2012 nor any date subsequent to it.
14. In view of the forgoing findings and analysis
based on documentary evidence, the opinion of Election Commission of India under Clause (2) of the Article 192 of the Constitution of India, on the Reference dated 17th November 2016, received from the Governor of Goa is that Mr. Digamber Vasant Kamat, a Member of the Legislative
Assembly of Goa from Margao Assembly constituency has not incurred disqualification, for being member of that Assembly under Article 191 of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951.
15. Hence, the opinion of the Election Commission of India is hereby tendered to the Governor of Goa under Clause (2) of the Article 192 of the Constitution of India that Mr. Digamber Vasant Kamat is not disqualified under Article 191 of the Constitution of India read with Sections 8A
and 9A of the Representation of the People Act, 1951."
D. Accordingly, acting on the opinion tendered by the Election Commission of India, as required under Article 192(2), I hereby order that Shri Digamber Vasant Kamat, Member of the Legislative
Assembly, Goa from Margao Assembly Constituency is not disqualified under Article 191 of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951. The petition is hereby disposed off accordingly.
Mridula Sinha, Governor of Goa.
Raj Bhavan, Dona Paula, Goa: 403 004
Dated: 27th January, 2017.
OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 43 (EXTRAORDINARY No. 6) 1ST FEBRUARY, 2017ELECTION COMMISSION OF INDIA
Nirvachan Sadan
Ashoka Road, New Delhi - 110001
Reference Case No. 5(G) of 2016 Partnership Firm was reconstituted subsequently
from time to time. The change in partners are detailed out as follows:–
Date Partner
19th October, 1989 1. Mr. Kiran Vasant Naik
2. Ms. Asha Kamat (Respondent's wife) [Reference from the Governor of Goa under Article 192 (2) of the Constitution of India] In re: Reference Case No. 5(G) of 2016-Reference received from the Hon'ble Governor of Goa under Article 192 (2) of the Constitution of India seeking opinion of the Election Commission on the question of alleged disqualification of Mr. Digamber Vasant Kamat, Member of the Legislative Assembly of Goa under Article 192 of the Constitution of India. 30th November, 1993 1. Mr. Kiran Vasant Naik
The Respondent
22nd January, 1996 1. Mr. Kiran Vasant Naik
2. Ms. Asha Kamat (Respondent's wife)
01st April, 2005 1. Mr. Kiran Vasant Naik
OPINION
This is a reference dated 17th November, 2016, received from the Governor of Goa seeking opinion of the Election Commission of India under Article 192 (2) of the Constitution of India, on the question whether Mr. Digamber Vasant Kamat, a Member of the Legislative Assembly of Goa from Margao assembly constituency, has become subject to disqualification, for being member of that Assembly, under Article 191 of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951.
2. In the said reference, the question of disqualification arose because of a petition dated 2nd November 2016, filed by Mr. Shirish Kamat, Salcete-Goa (hereinafter the "Petitioner") before the Governor of Goa, whereby the Petitioner has sought disqualification of Mr. Digamber Vasant Kamat (hereinafter the "Respondent") under Article 190 (3) (a), Article 191 (1) (a) of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951 (hereinafter the "Act of 1951").
3. The facts of the case, as disclosed in the said
petition, are as follows:
4. The Respondent established a Partnership firm, named, M/s. Bharat Construction, Engineers & Builders (hereinafter "Partnership Firm"), on 09th December, 1980 and got it registered on 06th January 1982 with the Civil Registrar, Goa. At the time of the registration, the Partnership Firm consisted of five partners, namely, the Respondent and his brother Mr. Gurudas Kamat, Mr. Kiran Vasant Naik and his brothers Mr. Vinod Naik and Mr. Santosh Naik. The records obtained by the petitioner under the Right to Information from the office of the Civil Registrar, Salcete show that the
2. Mr. Satish Lavande (Respondent's brother-in- law)
Thus, since 01st April 2005, the Partnership Firm
consisted of two partners, namely,
Mr. Kiran Naik and Mr. Satish Lavande.
6. The Partnership Firm was registered with the
Goa PWD/Water Resources Department (WRD) under various categories.
7. A company, named, Apollo Engineers and Contractors Pvt. Ltd. (hereinafter "Company") was incorporated on 13th February, 2006. Clause 33 of the Articles of Association (AOA) of the Company
states that the Company has two directors, namely, Mr. Kiran Naik and Mr. Satish Lavande. A Memorandum of Handing over and Taking over was executed on 06th January, 2007, which stated that the said Partnership Firm was taken over by the Company on 13th February, 2006 along with all
assets, liabilities and enlistment with the PWD in different categories. Another Memorandum was made on 06th January, 2007 stating that the benefits, liabilities and agreements (including all contracts entered or received by the Partnership firm from the PWD/WRD) of the Partnership Firm
were transferred to the Company on 13th February, 2006.
8. The Partnership firm vide its letter dated 05th June, 2006 requested the PWD, Altinho, Panaji to convert the name of the contractor from that of the Partnership Firm to the Company. The PWD has
renewed and converted the registration of the Partnership Firm in the name of the Company in similar categories.
OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 43 (EXTRAORDINARY No. 6) 1ST FEBRUARY, 20179. In the meantime, there was a change in the directorship of the Company. Form 32 shows that Mr. Yogiraj Kamat, son of the Respondent, was appointed as the Director of the Company on 25th June, 2013 and on the same day, Mr. Satish Lavande ceased to be the Director of the Company.
10. The Respondent contested and was elected
as an MLA on various occasions.
The details of the election are produced below:
Date of Nomination Date of Election
November/December 1994 December 1994 May/June, 1999 June 1999 May 2002 30-05-2002 May 2005 May 2005 April 2007 April 2007 February 2012 March 2012
It may be noted that the Respondent was swon- in as the Chief Minister of Goa on 08th June, 2007. He served as the CM till 6th March, 2012. He filed his nomination in February 2012 and was elected in March 2012 and is presently an MLA.
11. The Petitioner states that the Goan common civil code is in force in Goa, whereby real brother, wife, wife's real brother and one's son are immediate family and are proxies in one's business. The Petitioner has contended that at the time of filing nominations to the present Goa State Legislative Assembly in February, 2012, there were orders executed by the Company with the state government departments like PWD, WRD. Similarly, in the previous occasions of nomination filing and election of the Respondent, work orders were subsisting in name of the Partnership Firm with the state government department. The Petitioner alleges that the Respondent's wife Ms. Asha Kamat, his brother-in-law Mr. Satish Lavande and his son, Mr. Yogiraj Kamat are proxies of the Respondent in the Partnership Firm and also in the Company.
12. The Petitioner further states that the Respondent has been charge-sheeted by the Goa Crime Branch in the Louis Berger Bribery case as the prime accused which according to him attracts the disqualification under Section 8A of the Act of 1951.
13. The Petitioner has made the following
factual and legal averments:
(a) The Respondent has been automatically disqualified for office of profit under Articles 190(3)(a) and 191(1)(a) of the Constitution of India for taking advantage of his position after he assumed office of CM for personal gains favouring his fresh and inexperienced Company with Class I license with the Goa PWD.
(b) The Respondent should be disqualified for corrupt practices under Articles 190(3)( a) and 191 (1)( a) of the Constitution of India read with Section 8A of the Act of 1951 for allotting works to the Company at a price more than 50% above the estimated cost of tenders during the period when the Respondent was the CM. It is further alleged that the Respondent has been charge-sheeted by the Goa Crime Branch in the Louis Berger Bribery case as the prime accused which attracts the disqualification under Section 8A of the Act of 1951.
(c) The Respondent should be disqualified for subsisting government contracts under Section 9A of the Act of 1951 as he continued with the work orders of the Company through his proxies, namely, his wife Ms. Asha Kamat, his brother-in-law Mr. Satish Lavande and his son, Mr. Yogiraj Kamat.
14. The findings of the Commission on the
questions raised by the Petitioner areas follows:
14.1. With respect to contention (a), the Commission is of the view that the Respondent cannot be disqualified under Article 191 (1 )(a) for holding an office of profit since for disqualification under this provision, two ingredients have to be proved, namely,
(i) He holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; and,
(ii) Derivation of profit by virtue of such an office.
The Petitioner has failed to produce any documentary evidence of Respondent holding any office of profit under any government in terms of Article 191 (1) (a), other than an MLA or Chief Minister of Goa. Holding of such office is not an office of profit as declared by the Explanation to Article 191 (1) of the Constitution. Hence, this contention is dispelled and rejected.
14.2. With respect to contention (b), the Commission is of the view that the Respondent cannot be disqualified under Section 8A of the Act of 1951 as the determination of disqualification under the said provision requires a prior order of a the High Court under Section 99 of the Act of 1951 OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 43 (EXTRAORDINARY No. 6) 1ST FEBRUARY, 2017 finding a person guilty of commission of corrupt practice, as defined in Section 123 of this Act. The relevant provision is produced below:
8A. Disqualification on ground of corrupt practices.- (1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period:
Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect.
(2) Any person who stands disqualified under Section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.
The Petitioner has failed to produce any order to this effect by any High Court. Hence, the Commission is of the considered view that contention (b) is also liable to be rejected as there is no order by any High Court finding the Respondent guilty of any corrupt practice.
14.3. With respect to contention (c), the disqualification under Section 9A of the Act of 1951 is attracted when "there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government."
The Petitioner has alleged in the present case that the Company had undertaken various contracts with the PWD during the period prior to filing of nomination and after the election of the Respondent as MLA. It is observed that as per the records produced by the Petitioner, the Respondent has neither been a Director nor a shareholder, or promoter of the Company at any given time. Hence, the question of gaining any benefit or profit under subsisting contracts which were entered into by the company in the course of its trade or business is not established. Thus, there are no subsisting contracts which were entered into by him in the course of his trade or business.
It is argued by the Petitioner that the Respondent holds a joint ownership of the Partnership Firm/ /Company, making him liable for the government contracts undertaken by the Company.
As per the Portuguese Civil Code of 1867, marriage under Goan law is governed by a system of communion of assets, whereby, from the time of a person's marriage, his spouse acquires half undivided right in his assets. Section 152 of the Companies Act, 2013 discusses the appointment of directors which is as follows:
152. Appointment of directors—
(2) Save as otherwise expressly provided in this Act, every director shall be appointed by the company in general meeting.
(3) No person shall be appointed as a director of a company unless he has been allotted the Director Identification Number under Section 154.
(5) A person appointed as a director shall not act as a director unless he gives his consent to hold the office as director and such consent has been filed with the Registrar within thirty days of his appointment in such manner as may be prescribed.
It is clearly stated that a director can only be appointed through a general meeting of the company and that every director needs to be allotted a Director Identification Number to be a valid director of a company. It is to be noted that Ms. Asha Kamat (wife of Respondent) was never a Director of the Company and nor was the Respondent.
Thus, the argument that the Respondent holds a joint ownership of the Partnership Firm/Company cannot be sustained on two grounds. Firstly, the law of communion of assets is applicable only to joint holding of assets in matrimony; and secondly, communion of assets is not related to the appointment of a director in the company. The disqualification under Section 9A requires subsistence of contract in the course of the Respondent's trade or business.
Hence, the Respondent has not incurred disqualification under Section 9A of the Act of 1951 as he was neither a partner in the Partnership Firm nor the Director of the Company on the date of his nomination in 2012 nor any date subsequent to it.
OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 43 (EXTRAORDINARY No. 6) 1ST FEBRUARY, 2017of the Constitution of India that Mr. Digamber Vasant Kamat is not disqualified under Article 191 of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951.
Mr. O. P. Rawat Dr. Nasim Zaidi Mr. A. K. Joti
15. In view of the forgoing findings and analysis based on documentary evidence, the opinion of Election Commission of India under Clause (2) of the Article 192 of the Constitution of India on the Reference dated 1st November, 2016 received from the Governor of Goa is that Mr. Digamber Vasant Kamat, a Member of the Legislative Assembly of Goa from Margao Assembly Constituency, has not incurred disqualification, for being member of that Assembly, under Article 191 of the Constitution of India read with Sections 8A and 9A of the Representation of the People Act, 1951.
36. Hence, the opinion of the Election Commission of India is hereby tendered to the Governor of Goa under Clause (2) of the Article 192 Election Chief Election Election Commissioner Commissioner Commissioner
Place: New Delhi
20th January, 2017.
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