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 Shri 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.
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
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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