Panaji, 20th September, 2017 (Bhadra 29, 1939)
SERIES II No. 24
PUBLISHED BY AUTHORITY
RNI No. GOAENG/2002/6410
Reg. No. G-2/RNP/GOA/32/2015-2017
GOVERNMENT OF GOA
Department of Elections
Office of the Chief Electoral Officer
__
Notification
No. 8-18-2017/ELEC/4026
The following Order dated 9th September, 2017
of the Hon’ble Governor of Goa and the Opinion
dated 1st August, 2017 from the Election
Commission of India, New Delhi are hereby
published for general information.
Place: Panaji-Goa.
Narayan S. Navti,
Dated: 20-09-2017.
Additional Chief Electoral
Officer.
______
BEFORE THE GOVERNOR OF THE
STATE OF GOA
Order
By this order, I dispose off 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 190
{(3)(a)}, Article 191 {(1)(a)} & Article 192 of the
Constitution of India r/w Section 9-A of the
Representation of Peoples Act, 1951.
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
1539
Suggestions are welcome on e-mail: [email protected]
EXTRAORDINARY
No. 3
of India vide communication No. 113/7/(G)/ECI/
/LET/FUNC/JUD/2017/Registry/854 dated 1st
August, 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 17-5-2017, 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 28th April, 2017, 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
Section 9A of the Representation of the People Act,
1951 (hereinafter the “1951 Act”).
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
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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 Partnership Firm
was reconstituted subsequently from time to time.
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, 1989
1. Shri Kiran Vasant Naik.
2. Smt. Asha Kamat.
(Respondent’s wife).
30th November, 1993 1. Shri Kiran Vasant Naik.
2. Respondent.
22nd January, 1996
1. Shri Kiran Vasant Naik.
2. Smt Asha Kamat.
(Respondent’s wife).
1st April, 2005
1. Shri Kiran Vasnt Naik.
2. Shri Satish Lavande.
(Respondent’s brother-in-
-law).
Thus, since 1st April, 2005, the Partnership Firm
consisted of two partners, namely Shri Kiran Naik
and Shri Satish Lavande.
5. The Partnership Firm was registered with the
Goa PWD/Water Resources Department (WRD)
under three categories, namely (a) Water Supply &
Waste Water Disposal, (b) Buildings and (c) Roads,
Bridges and Land Development. The details of the
renewed registration of the Partnership Firm as a
contractor under the above mentioned categories
are as follows:
The Partnership Firm was registered as a Class
II contractor under the category of Water Supply
& Waste Water Disposal on 06th July, 1984
[Registration No. WS&WWD (II-6)/84]. The
registration of the Partnership Firm as a contractor
under the same category was renewed on 11th
February, 1999 [Registration No. WS&EED (II-15)/99]
till 30th September, 2001. This registration was
further renewed as a Class I-B contractor
[Registration No. WS&WWD (I-B-24)/2002] vide
letter dated 02nd September, 2002 till 01st
September, 2007.
The registration of Partnership Firm as a
contractor under the category of Hydraulics and
Irrigation was renewed as a Class I-B contractor
[Registration No. H&I (I-B-1)/91] vide letter dated
24th August, 1993 till 02nd April, 1998. The
registration under the same category was renewed
again as a Class I-B contractor [Registration
No. H & I (I-B-l)/99] vide letter dated 12th February,
1999 till 02nd February, 2003. This registration
was further renewed as a Class I-A contractor
(Registration No. H&I (I-A-1)/2003] vide letter dated
21st October, 2003 till 21st October, 2008.
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,
Shri Kiran Naik and Shri 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.
8. The PWD vide its letter dated 24th September,
2007 renewed and converted the registration of
the Partnership Firm in the name of the Company
under the Water Supply and Waste Water Disposal
category as Class I-B contractor. This registration
was valid till 01st September, 2012.
Similarly, the registration of the Company under
the category of Water Resources Work including
Hydraulics & Marine Works (WR) as a Class I-A
contractor [Registration No. WR (I-A-1)/2003] was
extended vide letter dated 27th June, 2007 till 21st
October, 2008. The registration of the Company
under the same category was renewed as a Class
I-A contractor [Registration No. WR (I-A-1)/2003]
vide letter dated 16th September, 2008 till 21st
October, 2013.
Thereafter, the registration of the Company
under the Water Supply and Waste Water Disposal
category was renewed as a Class I-B contractor
[Registration No. WS&WWD(I-B-24)/2013] vide letter
dated 7th January, 2013 till 1st September, 2017.
9. In the meantime, there was a change in the
directorship of the Company. Form 32 shows that
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Shri 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. After the change in the Directors of the
Company, the registration of the Company under
Water Supply and Waste Water Disposal category
was further renewed as a Class I-B contractor
[Registration No. WS&WWD (I-B-24)/2014] vide letter
dated 10th November, 2014 till 01st September, 2017.
Also, the registration of the Company under
Class I-A in the category of Water Resources Work
including Hydraulics & Marine Works (WR) was
extended vide letter dated 21st January, 2014 till
21st October, 2018.
11. 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
30th May, 2002.
May, 2005
May, 2005.
April, 2007
April, 2007.
The Respondent was sworn-in as the Chief Minister
of Goa on 8th June, 2007. He served as the CM till
06th March, 2012.
19th February, 2017
11th March, 2017.
12. The Petitioner has placed reliance on the
opinion dated 10th January, 2017 tendered by the
Commission in the case of disqualification of
Shri Umashankar Singh, MLA of Uttar Pradesh
Legislative Assembly to state that the Respondent
in this case is disqualified under Section 9A of the
1951 Act. The Petitioner has also relied on the case
of Sewaram v. Sobaran Singh, AIR 1993 SC 212. The
Petitioner has stated that Shri Kamat has subsisting
contracts with the Government through his proxies,
Smt. Asha Kamat (his wife) and Shri Yogiraj Kamat
(his son).
13. The factual and legal averments raised by
the Petitioner are summarized as follows:
(a) 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 1951 Act 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 Chief Minister of Goa.
(b) The Respondent should be disqualified for
subsisting government contracts under
Section 9A of the 1951 Act as he continued
with the work orders of the Company
through his proxies, namely, his wife Smt.
Asha Kamat, his brother-in-law Shri Satish
Lavande and his son Shri Yogiraj Kamat.
14. The findings of the Commission on the
questions raised by the Petitioner are as follows:
i) The Petitioner has argued that the
Respondent is disqualified under Section
8A of the Act of 1951 as the Company was
awarded government contracts at a price
more than fifty percent above the estimated
cost of tenders during the period when the
Respondent was the Chief Minister of Goa.
ii) The determination of disqualification under
the Section 8A of the Act of 1951 requires
a prior order of the High Court under Section
99 of the said Act, 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.
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The Petitioner has not produced any order to
such effect by any High Court and hence, the
Commission is of the view that the Respondent
cannot be disqualified under Section 8A of the Act
of 1951.
The Petitioner has further argued that the
Respondent is disqualified under Section 9A of
the Act of 1951. The Petitioner has stated that
the Company was awarded a contract dated
17th December, 2016 by PWD, Margao-Goa and the
same was subsisting even after the Respondent
was elected in March, 2017. It is argued that the
Respondent is acting as a Director of the Company
through the proxy of his son, Shri Yogiraj Kamat
and thus he is disqualified for subsisting contracts
under Section 9A of the 1951 Act.
The Petitioner has also placed reliance on the
opinion tendered by the Commission in the case of
disqualification of Shri Umashankar Singh, MLA of
Uttar Pradesh Legislative Assembly and on the
case of Sewaram v Sobaran Singh, AIR 1993 SC 212
to contend that the Respondent be disqualified for
subsisting contracts entered by the Company with
PWD. The Petitioner has stated that the Respondent
has subsisting contracts with the government
through his proxies, Smt. Asha Kamat (his wife)
and Shri Yogiraj Kamat (his son). He has stated that
just as the Commission held that Shri Umashankar
was managing the affairs of his Company/
/Partnership Firm through his proxies, similarly in
this case the Respondent has entered into contracts
with the State Government through his wife and
son.
15. It may be noted that in the case of Shri
Umashankar, the Commission, on the basis of the
evidences before it, observed that he was deeply
involved in the affairs of the Company/Firm in
question. In fact, he was also director of the
Company for some period of time after his election.
More importantly, it was found that payments for
the Company’s contracts with the PWD were in
reality received by Shri Umashankar’s sole
proprietorship firm, thereby meaning, that Shri
Umashankar was the sole beneficiary and recipient
of the payments of all the contracts entered
between the PWD and the Company. Based on
these facts, the Commission was of the view that
the Company was a facade and Shri Umashankar
was misusing its separate juristic identity to evade
legal obligations under law, making it a fit case for
lifting of corporate veil. Thus, as the payments for
the contracts entered between the Company and
PWD was received by Shri Umashankar, it meant
that he had subsisting contracts with the
government after his election and hence, he was
disqualified under Section 9A of the 1951 Act.
Similarly, the Supreme Court in Sewaram case
disqualified him under Section 9A of the
Representation of the People Act, 1951 on basis of
his correspondence with the government
regarding the contracts even after his election.
Thus, neither the rationale nor ratio of the decisions
of the Commission in Uma Shankar’s case (supra)
and of the Supreme Court in Sewaram’s case (supra),
relied upon by the petitioner, are applicable in the
facts and circumstances of the present case.
16. It may further be noted that the High Court
of Andhra Pradesh in the case of S.A.K. Mynoddin
v. The Chief Election Commissioner, Secretariat
Buildings, Hyderabad and Ors., 2013(1)(ALT 292,
did not disqualify the MLA on the facts that he
tendered his resignation from the post of Managing
Director, intimated the same to the Registrar of
Companies and transferred all his shares to his
wife prior to the filing of nomination papers. In the
present case, no evidence has been produced to
show that the Respondent was personally
associated with the Company or its affairs in any
manner. Hence, in the given facts, the Respondent
does not attract disqualification under Section 9A
because no evidence is produced to either show
that the Company is managed by him or that he
has entered into a government contract in the
course of his business or trade.
17. 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.” It
has been laid down by the Supreme Court in
Election Commission of India v. Saka Venkata Rao,
AIR 1953 SC 210 that Article 192 read along with
Articles 190(3)(3) and 1919(1) is applicable only to
disqualifications to which a member of the State
Legislature becomes subject after he is elected as
such member. A similar view was taken by the
Supreme Court in another case of Brundaban Nayak
v. Election Commission of India and Anr., AIR 1965
SC 1892 where the Court while referring to the
ratio laid under the judgement of Saka Venkata
Rao said that the disqualification, to which Article
191(1) refers, must be incurred subsequent to the
election of the member. The relevant paragraph is
as thus:
“7 .... It is well-settled that the disqualification
to which Art. 191(1) refers, must be incurred
subsequent to the election of the member. This
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conclusion follows from the provisions of Art.
190(3)(a). This Article refers to the vacation of seats
by members duly elected. Sub-Article (3)(a) provides
that if a member of a House of the Legislature
of a State becomes subject to any of the
disqualifications mentioned in Clause (1) of Art.
191, his seat shall thereupon become vacant.
Incidentally, we may add that corresponding
provisions with regard to the disqualification of
members of both Houses of Parliament are
prescribed by Articles 101, 102 and 103 of the
Constitution. It has been held by this Court in
Election Commission, India v. Saka Venkata Subba
Rao and Union of India–Intervener/that Articles
190(3) and 192(1) are applicable only to
disqualifications to which a member becomes
subject after being elected as such.”
It is observed that as per the records produced
by the Petitioner, the Respondent was neither a
Director nor a shareholder, or promoter of the
Company at any given point of time. Thus, there
are no subsisting contract of the Respondent with
the State Government in the course of his 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 February, 2017 nor on any date
subsequent to it.
18. 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 May, 2017 received from the
Governor of Goa is that Shri 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.
19. 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 Shri 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.
Raj Bhavan,
Mridula Sinha,
Dona Paula, Goa 403004
Governor of Goa.
Dated: 9th September, 2017.
________
ELECTION COMMISSION OF INDIA
Nirvachan Sadan,
Ashoka Road,
New Delhi-110001.
REFERENCE CASE No. 7(G) OF 2017
[Reference from the Governor of Goa under
Article 192 (2) of the Constitution of India]
In re: Reference Case No. 7(G) of 2017 - Reference
received from the Hon’ble Governor or Goa under
Article192(2) of the Constitution of India seeking
opinion of the Election Commission on the question
of alleged disqualification of Shri Digamber Vasant
Kamat, Member of the Legislative Assembly of Goa
under Article 192 of the Constitution of India.
OPINION
This is a reference dated 22nd May, 2017,
received from the Governor of Goa seeking opinion
of the Election Commission or India under Article
192 (2) of the Constitution of India, on the question
whether Shri 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 28th April, 2017, filed by Shri Shirish Kamat,
Salcete-Goa (hereinafter the “Petitioner”) before
the Governor of Goa, whereby the Petitioner has
sought disqualification of Shri Digamber Vasant
Kamat (hereinafter the “Respondent”) under
Article 190 (3) (a), and Article 191 (1) (a) of the
Constitution of India read with Section 9A of the
Representation of the People Act, 1951 (hereinafter
the “1951 Act”).
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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 the “Partnership Firm”), on
09th December, 1980 a 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
a his brother Shri Gurudas Kamat, Shri Kiran Vasant
Naik and his brothers Shri Vinod Naik and Shri
Santosh Naik. The Partnership Firm was
reconstituted subsequently from time to time. 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
changes in partners are detailed out as follows:
Date of change in
Name of Partners
Partnership
19th October, 1989
1. Shri Kiran Vasant Naik.
2. Smt. Asha Kamat
(Respondent’s wife).
30th November, 1993 1. Shri Kiran Vasant Naik.
2. Respondent.
22nd January, 1996
1. Shri Kiran Vasant Naik.
2. Smt. Asha Kamat
(Respondent’s wife).
1st April, 2005
1. Shri Kiran Vasant Naik.
2. Shri Satish Lavande
(Respondent’s brother-in-
-law).
Thus, since 01st April, 2005, the Partnership Firm
consisted of two partners, namely, Shri Kiran Naik
and Shri Satish Lavande.
5. The Partnership Firm was registered with the
Goa PWD/Water Resources Department (WRD)
under three categories, namely (a) Water Supply &
Waste Water Disposal, (b) Buildings and (c) Roads,
Bridges and Land Development. The details of the
renewed registration of the Partnership Firm as a
contractor under the above mentioned categories
are as follows:
The Partnership Firm was registered as a Class
II contractor under the category of Water Supply
& Waste Water Disposal on 06th July, 1984
[Registration No. WS&WWD (II-6)/84]. The
registration of the Partnership Firm as a contractor
under the same category was renewed on 11th
February, 1999 [Registration No. WS&WWD (II-15)/99]
till 30th September, 2001. This registration was
further renewed as a Class I-B contractor
[Registration No. WS&WWD (I-B-24)/2002] vide
letter dated 02nd September, 2002 till 01st
September, 2007.
The registration of the Partnership Firm as a
contractor under the category of Hydraulics and
Irrigation was renewed as a Class I-B contractor
[Registration No. H&I (I-B-1)/91] vide letter dated
24th August, 1993 till 02nd April, 1998. The
registration under the same category was renewed
again as a Class I-B contractor [Registration
No. H&I (I-B-1)/99] vide letter dated 12th February,
1999 till 02nd February, 2003. This registration
was further renewed as a Class I-A contractor
[Registration No. H&I (I-A-1)/2003] vide letter dated
21st October, 2003 till 21st October, 2008.
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,
Shri Kiran Naik and Shri 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.
7. 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.
8. The PWD vide its letter dated 24th September,
2007 renewed and converted the registration of
the Partnership Firm in the name of the Company
under the Water Supply and Waste Water Disposal
category as Class I-B contractor. This registration
was valid till 1st September, 2012.
Similarly, the registration or the Company under
the category of Water Resources Work including
Hydraulics & Marine Works (WR) as a Class I-A
contractor [Registration No. WR (I-A-1)/2003] was
extended vide letter dated 27th June, 2007 till
21st October, 2008. The registration of the Company
under the same category was renewed as a
Class I-A contractor [Registration No. WR (I-A-1)/
/2003] vide letter dated 16th September, 2008 till
21st October, 2013.
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Thereafter, the registration of the Company
under the Water Supply and Waste Water Disposal
category was renewed as a Class I-B contractor
[Registration No. WS&WWD(I-B-24)/2013] vide letter
dated 7th January, 2013 till 01st September, 2017.
9. In the meantime, there was a change in the
directorship of the Company. Form 32 shows that
Shri Yogiraj Kamat, son of the Respondent, was
appointed as the Director of the Company on 25th
June, 2013 and on the same day, Shri Satish
Lavande ceased to be the Director of the Company.
10. After the change in the Directors of the
Company, the registration of the Company under
Water Supply and Waste Water Disposal category
was further renewed as a Class I-B contractor
[Registration No. WS&WWD (I-B-24)/2014] vide letter
dated 10th November, 2014 till 01st September, 2017.
Also, the registration of the Company under
Class I-A in the category of Water Resources Work
including Hydraulics & Marine Works (WR) was
extended vide letter dated 21st January, 2014
till 21st October, 2018.
11. 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
30th May, 2002.
May, 2005
May, 2005.
April, 2007
April, 2007.
The Respondent was sworn-in as the Chief Minister
of Goa on 08th June, 2007. He served as the CM till
06th March, 2012.
19th February, 2017
11th March, 2017.
12. The Petitioner has placed reliance on the
opinion dated 10th January, 2017 tendered by the
Commission in the case of disqualification of
Shri Umashankar Singh, MLA of Uttar Pradesh
Legislative Assembly to state that the Respondent
in this case is disqualified under Section 9A of the
1951 Act. The Petitioner has also relied on the case
of Sewaram v. Sobaran Singh, AIR 1993 SC 212. The
Petitioner has stated that Shri Kamat has subsisting
contracts with the government through his proxies,
Smt. Asha Kamat (his wife) and Shri Yogiraj Kamat
(his son).
13.
The factual and legal averments raised by
the Petitioner are summarised as follows:
(a) 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 1951 Act 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 Chief Minister of Goa.
(b) The Respondent should be disqualified for
subsisting government contracts under
Section 9A of the 1951 Act as he continued
with the work orders of the Company
through his proxies, namely, his wife Smt.
Asha Kamat, his brother-in-law Shri Satish
Lavande and his son Shri Yogiraj Kamat.
14. The findings of the Commission on the
questions raised by the Petitioner are as follows:
15. The Petitioner has argued that the
Respondent is disqualified under Section 8A of
the Act of 1951 as the Company was awarded
government contracts at a price more than fifty
percent above the estimated cost of tenders during
the period when the Respondent was the Chief
Minister of Goa.
The determination of disqualification under the
Section 8A of the Act of 1951 requires a prior order
of a the High Court under Section 99 of the said
Act, 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.
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(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 not produced any order to
such effect by any High Court and hence, the
Commission is of the view that the Respondent
cannot be disqualified under Section 8A of the Act
of 1951.
16. The Petitioner has further argued that the
Respondent is disqualified under Section 9A of
the Act of 1951. The Petitioner has stated that
the Company was awarded a contract dated
17th December, 2016 by PWD, Margao-Goa and the
same was subsisting even after the Respondent
was elected in March, 2017. It is argued that the
Respondent is acting as a Director of the Company
through the proxy of his son, Shri Yogiraj Kamat
and thus he is disqualified for subsisting contracts
under Section 9A of the 1951 Act. The Petitioner
has also placed reliance on the opinion tendered
by the Commission in the case of disqualification
of Shri Umashankar Singh, MLA of Uttar Pradesh
Legislative Assembly and on the case of Sewaram
v. Sobaran Singh, AIR 1993 SC 212 to contend that
the Respondent be disqualified for subsisting
contracts entered by the Company with PWD. The
Petitioner has stated that the Respondent has
subsisting contracts with the government through
his proxies, Smt. Asha Kamat (his wife) and Shri
Yogiraj Kamat (his son). He has stated that just as
the Commission held that Shri Umashankar was
managing the affairs of his Company/Partnership
Firm through his proxies, similarly in this case the
Respondent has entered into contracts with the
State Government through his wife and son.
17.
It may be noted that in the case of
Shri Umashankar, the Commission, on the basis of
the evidences before it, observed that he was
deeply involvement in the affairs of the Company/
/Firm in question. In fact, he was also Director of
the Company for some period of time after his
election. More importantly, it was found that
payments for the Company’s contracts with the
PWD were in reality received by Shri Umashankar’s
sole proprietorship firm, thereby meaning, that Shri
Umashankar was the sole beneficiary and recipient
of the payments of all the contracts entered
between the PWD and the Company. Based on
these facts, the Commission was of the view that
the Company was a facade and Shri Umashankar
was misusing its separate juristic identity to evade
legal obligations under law, making it a fit case for
lifting of corporate veil. Thus, as the payments for
the contracts entered between the Company and
PWD was received by Shri Umashankar, it meant
that he had subsisting contracts with the
government after his election and hence, he was
disqualified under Section 9A of the 1951 Act.
Similarly, the Supreme Court in Sewaram case
disqualified him under Section 9A of the
Representation of the People Act, 1951 on basis of
his correspondence with the government
regarding the contracts even after his election.
Thus, neither the rationale nor ratio of the decisions
of the Commission in Uma Shankar’s case (supra)
and of the Supreme Court in Sewaram’s case (supra),
relied upon by the petitioner, are applicable in the
fats and circumstances of the present case.
18. It may further be noted that the High Court
of Andhra Pradesh in the case of S.A.K. Mynoddin
v. The Chief Election Commissioner, Secretariat
Buildings, Hyderabad and Ors., 2013 (1) ALT 292,
did not disqualify the MLA on the facts that he
tendered his resignation from the post of Managing
Director, intimated the same to the Registrar of
Companies and transferred all his shares to his
wife prior to the filing of nomination papers. In the
present case, no evidence has been produced to
show that the Respondent was personally
associated with the Company or its affairs in any
manner. Hence, in the given facts, the Respondent
does not attract disqualification under Section 9A
because no evidence is produced to either show
that the Company is managed by him or that he
has entered into a government contract in the
course of his business or trade.
19. 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.” It has
been laid down by the Supreme Court in Election
Commission of India v. Saka Venkata Rao, AIR 1953
SC 210 that Article 192 read along with Articles
190(3)(3) and 191(1) is applicable only to
disqualifications to which a member of the State
Legislature becomes subject after he is elected as
such member. A similar view was taken by the
Supreme Court in another case of Brundaban Nayak
v. Election Commission of India and Anr., AIR 1965
SC 1892 where the Court while referring to the
ratio laid under the judgement of Saka Venkata
Rao said that the disqualification, to which Article
191 (1) refers, must be incurred subsequent to the
election of the member. The relevant paragraph is
as thus:
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“7.... It is well-settled that the disqualification
to which Art. 191(1) refers, must be incurred
subsequent to the election of the member. This
conclusion follows from the provisions or Art.
190(3)(a). This Article refers to the vacation of
seats by members duly elected. Sub-Article (3)
(a) provides that if a member of a House of the
Legislature of a State becomes subject to any
of the disqualifications mentioned in Clause
(1) of Art. 191, his seat shall thereupon hecome
vacant. Incidentally, we may add that
corresponding provisions with regard to the
disqualification of members of both Houses of
Parliament are prescribed by Articles 101, 102
and 103 of the Constitution. It has been held
by this Court in Election Commission, India
v. Saka Venkata Subba Rao and Union of
India–Intervener/that Articles 190(3) and 192(1)
are applicable only to disqualifications to
which a member becomes subject after being
elected as such.
It is observed that as per the records produced
by the Petitioner, the Respondent was neither a
Director nor a shareholder, or promoter of the
Company at any given point of time. Thus, there
are no subsisting contracts of the Respondent with
the State Government in the course of his 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 Partnership
Firm nor the Director of the Company on the date
of his nomination in February, 2017 nor on any date
subsequent to it.
20. In view of the forgoing findings and analysis
based on documentary evidence, opinion of Election
Commission of India under Clause (2) of the Article
192 of Constitution of India on the Reference dated
22nd May, 2017 received from the Governor of Goa
is that Shri 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.
21. 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 Shri 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.
O. P. Rawat,
A. K. Joti,
Election Commissioner.
Chief Election
Commissioner.
Place: New Delhi,
Date: 01-08-2017.
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