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Goa Gazette, No. 1819-5, 07 May 2018

Published 07 May 2018

Type
EOG
Gazette no.
1819-5
Num
2
Series
SII
Identifier
in.goa.egaz.1819-5.SII/1819-5-SII-EOG-2
Languages
English, Portuguese
Published at
Original source ↗

Reg. No. G-2/RNP/GOA/32/2018-20

RNI No. GOAENG/2002/6410

Panaji, 7th May, 2018 (Vaisakha 17, 1940) SERIES II No. 5 PUBLISHED BY AUTHORITY

EXTRAORDINARY

No. 2

GOVERNMENT OF GOA

Department of Elections

Office of the Chief Electoral Officer __

Article 192(2) of the Constitution of India. I have since received the opinion of the Election Commission of India vide communication No. 113/5(G)/Goa/ECI/LET/FUNC/JUD/RCC/2013 dated 15th January, 2018.

Notification

No. 8-23-2014/ELEC/115

The following Order dated 12th February, 2018 of the Hon'ble Governor of Goa and the Opinion dated 10th January, 2017 from the Election Commission of India, New Delhi are hereby published for general information.

Place: Panaji-Goa Devidas S. Gaonkar Dated: 02-05-2018 Joint Chief Electoral Officer.

_______

3. The opinion of the Election Commission of India under Article 192(2) of the Constitution of India is reproduced as below:-

Governor of Goa

Raj Bhavan

BEFORE THE GOVERNOR OF THE STATE OF GOA

"a) This is a reference dated 25th November, 2013 received from the Governor of Goa, seeking opinion of the Election Commission of India under Article 192(2) of the Constitution of India, on a petition filed by Shri John Fernandes seeking disqualification of Shri Caetano R. Silva, from being a Member of the Legislative Assembly of Goa, under Article 191(1)(d) of the Constitution of India as Shri Silva had allegedly acquired the citizenship of Portugal and was liable to be disqualified from being a Member of the Legislative Assembly of Goa elected in 2012.

Order

By this order, I dispose of the petition dated 25th November, 2013 filed by Shri John Fernandes of Novangully, Varca, Salcete, Goa, alleging disqualification of Shri Caetano R. Silva, MLA of Goa Legislative Assembly, under Article 191 (1 (a) (d) of Constitution of India.

2. On receipt of the above petition, my predecessor had sought the opinion of the Election Commission of India in the matter, as required under b) The reference arose as a result of the petition filed by Shri John Fernandes of Novangully, Varca, Salcete, Goa, alleging that Shri Silva had registered his birth in the Central Registry of Births, Lisbon and thus acquired the citizenship of Portugal. The Ministry of Home Affairs, New Delhi responded to the representation of Shri John Fernandes dated 9th January, 2013, according to which the Ministry passed an Order dated 20th November, 2013 declaring that Shri Silva had ceased to be a citizen of India from the date he registered his birth in Portugal. Thus, it was contended by Shri Fernandes that Shri121 Suggestions are welcomed on e-mail: [email protected] OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 5 (EXTRAORDINARY No. 2) 7TH MAY, 2018 Silva had incurred disqualification under Article 191(1)(d) and therefore should be declared disqualified.

c) It is noteworthy to mention that Shri Silva had allegedly ceased to be a citizen of India in accordance with Section 9(2) of Citizenship Act, 2013; i.e. after the elections to the Goa Legislative Assembly in 2012. Therefore, the case would be covered under Article 192(1) of the Constitution providing full-fledged jurisdiction to the Election Commission of India.

d) A reply was sought from Shri Silva vide notice of the Commission dated 31st January, 2014 wherein he stated that the case was a pre-election disqualification dispute which cannot be referred to the Commission and that the question of jurisdiction should be adjudicated first before going further in the matter. He added that the Order dated 20th November, 2013 passed by the Ministry of Home Affairs declaring Shri Silva a Por tuguese National with effect from 21st July, 2010 had been challenged by him before the High Court of Bombay, Goa Bench and hence the matter was sub-judice before the Court. Thereafter, he requested that he may be allowed to file a detailed reply and produce documents on merits and also be allowed a personal hearing in the matter.

e) Shri John Fernandes replied to the preliminary objections raised by Shri Silva by stating that Shri Silva, being a Portuguese Citizen, contested the Legislative Assembly elections and had thus committed a fraud on the Constitution of India. He added that Shri Silva was applying dilatory tactics by citing technical objections with respect to filing a detailed reply in the matter, which could have been filed along with the preliminary objection itself.

f) In a detailed reply dated 8th August, 2014, Shri Silva informed the Commission that the Order dated 20th November, 2013 passed by the Ministry of Home Affairs had been stayed by the High Court of Bombay by Interim Orders dated 29th April, 2014 and 18th June, 2014 respectively and denied all allegations of not being a citizen of India. He had also attached a copy of the Indian Passport, EPICs issued to him and his family, Baptism certificate, PAN card of his family, residence certificate issued by the Village Panchayat, Mamlatdar, an extract of electoral roll, ration card, driving license, bank letters, birth certificate of the parents, wife and children.

He also denied ever visiting Portugal or having the intention of being conferred with the citizenship of Portugal and requested a personal hearing again.

g) The Chief Electoral Officer, Goa submitted a letter dated 25th October, 2016 stating that the final Judgment dated 20th October, 2016 was passed by the High Court of Bombay at Goa setting aside impugned order of the Ministry of Home Affairs dated 20th November, 2013 and holding that the Competent Authority shall decide the matter afresh as expeditiously as possible and preferably within a period of three months from the receipt of the Order.

h) Thereafter, vide letter dated 9th November, 2016, a reminder had been sent by the Election Commission of India to the Ministry of Home Affairs requesting the desired information for formulating Opinion in the Reference case and in consideration of the final Order passed by the High Court of Bombay at Goa.

i) Fresh elections were held to the Legislative Assembly of Goa in February, 2017 and the previous Legislative Assembly, of which Shri Caetano R. Silva was a member has since been dissolved in March, 2017.

j) In light of the aforementioned facts, the opinion of the Election Commission of India under Article 192(2) of the Constitution of India on the Reference dated 20th November, 2013 received from the Governor of Goa, is that after the dissolution of the previous Goa Legislative Assembly in 2017 and after constitution of the new House in Goa, the Reference has become infructuous as Shri Caetano R. Silva is no more a Member of the Legislative Assembly of Goa.

Accordingly, acting on the opinion tendered by the Election Commission of India, as required under Article 192(2), I hereby order that after the dissolution of the previous Goa Legislative Assembly in 2017 and after constitution of new House in Goa, the Reference has become infructuous as Shri Caetano R. Silva is no more a Member of the Legislative Assembly of Goa. The petition is hereby disposed off accordingly.

Raj Bhavan, Sd/- Dona Paula, Mridula Sinha Goa 403 004 Governor of Goa. Dated: 12th February, 2018.

122 OFFICIAL GAZETTE — GOVT. OF GOA ERIES II No. 5 (EXTRAORDINARY No. 2) 7TH MAY, 2018
       ELECTION COMMISSION OF INDIA                      4. A reply was sought from Shri Silva vide notice
                                                             of the Commission dated 31st January, 2014
                 Nirvachan Sadan,
                                                             wherein  he  stated  that  the  case  was  a
          Ashoka Road, New Delhi-110001
                                                             pre-election  disqualification  dispute  which
      REFERENCE CASE No. 5 (G) OF 2013                       cannot  be  referred  to  the  Commission  and
                                                             that  the  question  of  jurisdiction  should  be
  [Reference  from  the  Governor  of  Goa  under
                                                             adjudicated  first  before  going  further  in  the
   Article  192(2)  of  the  Constitution  of  India]
                                                             matter.  He  added  that  the  Order  dated  20th
In  re:  Reference  Case  No.  5(G)/2013-  Reference         November,  2013  passed  by  the  Ministry  of
received from the Governor of Goa on the petition            Home Affairs declaring Shri Silva a Portuguese
filed by Shri John Fernandes of Novangully, Varca,           National with effect from 21st July, 2010 had
Salcete, Goa alleging disqualification of Shri Caetano      been challenged by him before the High Court
R.  Silva,  MLA  of  Goa  Legislative  Assembly,  under      of Bombay, Goa Bench and hence the matter
Art.  191  (1)(d)  of  the  Constitution  of  India.         was sub-judice before the Court.  Thereafter,
                                                             he  requested  that  he  may  be  allowed  to  file
                     OPINION                                 a  detailed  reply  and  produce  documents  on
  1. This is a reference dated 25th November, 2013           merits and also be allowed a personal hearing
     received  from  the  Governor  of  Goa,  under          in  the  matter.
     Article 192(2) of the Constitution of India, on     5. Shri John Fernandes replied to the preliminary
     a  petition  filed  by  Shri  John  Fernandes           objections raised by Shri Silva by stating that
     seeking  disqualification  of  Shri  Caetano  R.        Shri  Silva,  being  a  Portuguese  citizen,
     Silva, from being a member of the Legislative           contested the Legislative Assembly elections
     Assembly of Goa, under Article 191 (1)(d) of            and  had  thus  committed  a  fraud  on  the
     the  Constitution  of  India  as  Shri  Silva  had      Constitution of India. He added that Shri Silva
     allegedly acquired the citizenship of Portugal          was  applying  dilatory  tactics  by  citing
     and was liable to be disqualified from being            technical  objections  with  respect  to  filing  a
     a  member  of  the  Legislative  Assembly  of           detailed reply in the matter, which could have
     Goa  elected  in  2012.                                 been filed along with the preliminary objection
  2. The reference arose as a result of the petition         itself.
     filed  by  Shri  John  Fernandes  of  Novangully,   6. In  a  detailed  reply  dated  8th  August,  2014,
     Varca,  Salcete,  Goa  alleging  that  Shri  Silva      Shri Silva informed the Commission that the
     had  registered  his  birth  in  the  Central           Order dated 20th November, 2013 passed by
     Registry of Births, Lisbon, and thus acquired           the Ministry of Home Affairs had been stayed
     the  citizenship  of  Portugal.  The  Ministry  of      by the High Court of Bombay by Interim Orders
     Home  Affairs,  New  Delhi  responded  to  the          dated  29th  April,  2014  and  18th  June,  2014
     representation  of  Shri  John  Fernandes               respectively and denied all allegations of not
     dated 9th January, 2013, according to which             being a citizen of India. He had also attached
     the  Ministry  passed  an  Order  dated                 a copy of the Indian Passport, EPICs issued to
     20th November, 2013 declaring that Shri Silva           him and his family, Baptism certificate, PAN
     had  ceased  to  be  a  citizen  of  India  from  the   card of his family, residence certificate issued
     date he registered his birth in Portugal. Thus,        by  the  Village  Panchayat,  Mamlatdar,  an
     it  was  contended  by  Shri  Fernandes  that           extract  of  electoral  roll,  ration  card,  driving
     Shri Silva had incurred disqualification under          license,  bank  letters,  birth  certificate  of  the
     Article  191  (1)(d)  and  therefore  should  be        parents,  wife  and  children.  He  also  denied
     declared  disqualified.                                 ever visiting Portugal or having the intention
                                                             of  being  conferred  with  the  citizenship  of
  3. It  is  noteworthy  to  mention  that  Shri  Silva
                                                             Portugal  and  requested  a  personal  hearing
     had allegedly ceased to be a citizen of India
                                                             again.
     in accordance with Section 9(2) of Citizenship
     Act,  2013;  i.e.  after  the  elections  to  the  Goa 7. The  Chief  Electoral  Officer,  Goa  submitted  a
     Legislative Assembly in 2012. Therefore, the            letter  dated  25th  October,  2016  stating  that
     case  would  be  covered  under  Article  192(1)        the final Judgment dated 20th October, 2016
     of  the  Constitution  providing  full-fledged          was  passed  by  the  High  Court  of  Bombay
     jurisdiction  to  the  Election  Commission  of         at  Goa  setting  aside  impugned  order  of
     India.                                                  the  Ministry  of  Home  Affairs  dated  20th
123 OFFICIAL GAZETTE — GOVT. OF GOA SERIES II No. 5 (EXTRAORDINARY No. 2) 7TH MAY, 2018

November, 2013 and holding that the Competent Authority shall decide the matter afresh as expeditiously as possible and preferably within a period of three months from the receipt of the Order.

8. Thereafter, vide letter dated 9th November, 2016, a reminder had been sent by the Election Commission of India to the Ministry of Home Affairs requesting the desired information for formulating Opinion in the Reference case and in consideration of the final Order passed by the High Court of Bombay at Goa.

9. Fresh elections were held to the Legislative

Assembly of Goa in February, 2017 and the previous Legislative Assembly, of which Shri Caetano R. Silva was a member has since been dissolved in March, 2017.

10. In light of the aforementioned facts, the opinion of the Election Commission of India under Article 192 (2) of the Constitution of India on the Reference dated 25th November, 2013 received from the Governor of Goa, is that after the dissolution of the previous Goa Legislative Assembly in 2017 and after constitution of the new House in Goa, the Reference has become infructuous as Shri Caetano R. Silva is no more a Member of the Legislative Assembly of Goa.

Place: New Delhi.

Date:

Sd/- Sd/- Sd/- O. P. Rawat, A. K. Joti, Sunil Arora, Election Chief Election Election Commissioner. Commissioner. Commissioner.

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Cite this issue. Goa Gazette, Government of Goa, 07 May 2018. Indian Gazettes, https://egazette.servantsofknowledge.in/details/in.goa.egaz.1819-5.SII/1819-5-SII-EOG-2/. Archive identifier in.goa.egaz.1819-5.SII/1819-5-SII-EOG-2.