Panaji, 1st February, 2017 (Magha 12, 1938)
SERIES II No. 43
PUBLISHED BY AUTHORITY
RNI No. GOAENG/2002/6410
Reg. No. G-2/RNP/GOA/32/2015-2017
EXTRAORDINARY
No. 6
GOVERNMENT OF GOA
Department of General Administration
__
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
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
1003
Suggestions are welcome on e-mail: [email protected]
(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.
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:-
“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 (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”).
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
(EXTRAORDINARY No. 6)
1ST FEBRUARY, 2017
1004
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 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, 2017
1005
12. 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, 2017
1006
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 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, 2017
1007
ELECTION COMMISSION OF INDIA
Nirvachan Sadan
Ashoka Road,
New Delhi - 110001
Reference Case No. 5(G) of 2016
[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.
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
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)
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
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, 2017
1008
9. 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
1009
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, 2017
1010
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
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.
Mr. O. P. Rawat
Dr. Nasim Zaidi
Mr. A. K. Joti
Election
Chief Election
Election
Commissioner
Commissioner
Commissioner
Place: New Delhi
20th January, 2017.
www.goaprintingpress.gov.in
Published and Printed by the Director, Printing & Stationery,
Government Printing Press,
Mahatma Gandhi Road, Panaji-Goa 403 001.
PRICE–Rs. 8.00
PRINTED AT THE GOVERNMENT PRINTING PRESS, PANAJI-GOA 333/350–2/2017.