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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