Panaji, 29th October, 2020 (Kartika, 7, 1942)
SERIES II No. 31
Reg. No. G-2/RNP/GOA/32/2018-20
RNI No. GOAENG/2002/6410
PUBLISHED BY AUTHORITY
EXTRAORDINARY
Goa Legislature Secretariat
__
Notification
No. LA/Legn/2020/1151
The following Order dated 4th August, 2020 of
the Hon’ble Governor of Goa and the opinion dated
9-7-2020 from the Election Commission of India, New
Delhi are hereby published for general information.
Namrata Ulman, Secretary, Legislature.
Porvorim, 23rd October, 2020.
____
BEFORE THE GOVERNOR OF THE STATE OF GOA
AT RAJ BHAVAN, DONA PAULA, GOA
Petition No. 1/2020
Mr. Shirish Q. Kamat,
R/o. H. No. 1-E, St. Jose De Areal,
Salcete, Goa.
…Petitioner
V/s
Shri Digamber V. Kamat,
R/o. 1st Floor, Sanrit Apartments,
Malbhat, Margao, Goa.
... Respondent
Order
By this order, I dispose of the Review 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 Section 9A
of the Representation of Peoples Act, 1951.
On receipt of the above petition, I had sought
the opinion of the Election Commission of India in
Suggestions are welcomed on e-mail: [email protected]
753
the matter, as required under Article 192(2) of the
Constitution of India. I have since received the
opinion of the Election Commission of India vide
Communication No. 113/7/(G)/ECI/LET/FUNC/
/JUD/2019/Registry/851 dated 9th July, 2020.
The opinion of the Election Commission of India
is reproduced as below:—
1. “This is a Reference dated 13-09-2019 received
from the Hon’ble Governor of Goa seeking opinion of
the Election Commission of India under Article 192
of the Constitution of India on the question whether
Shri Digamber Vasant Kamat, Member of
Legislative Assembly of Goa, has become subject
to disqualification for being a member of that
Assembly under Article 191 (1) (e) of the
Constitution of India read with Section 9A of the
Representation of the People Act, 1951.
2. This Reference arises from a Review Petition
filed by Shri Shirish Q. Kamat (hereinafter,
“Petitioner”) under Order XL VII, Rule 1 (1) of the
Code of Civil Procedure, 1908 read with Article 137
& 145 of the Constitution of India against Order
dated 09-09-2017 (hereinafter, “Impugned Order”).
The Impugned Order stated that Shri Digambar
Vasant Kamat (hereinafter, “Respondent”) did not
incur disqualification under Sections 8A and 9A of
the Representation of the People Act, 1951. The
earlier petitions filed by the Petitioner led to
references dated 17-11-2016 in Reference Case
No. 5(G) of 2016 and 22-05-2017 in Reference Case
No. 7(G) of 2017 wherein the Commission rendered
its opinion on 20-01-2017 and 01-08-2017
respectively.
3. Brief facts in the Opinions rendered by the
Election Commission of India in the above
mentioned Reference Cases are as follows:
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09-12-1980 A partnership firm, M/s Bharat Construction Engineers & Builders, was established by the
Respondent.
06-01-1982 M/s Bharat Construction Engineers & Builders (hereinafter, “Partnership Firm”) was registered
with the Civil Registrar, Goa consisting of these partners:
1. Mr. Digambar Kamat (Respondent).
2. Mr. Gurudas Kamat (Respondent’s brother).
3. Mr. Kiran Vasant Naik.
4. Mr. Vinod Naik.
5. Mr. Santosh Naik.
06-07-1984 The Partnership Firm was registered as a contractor with the Goa Public Works Department
(hereinafter, PWD”)
19-10-1989 The Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik.
2. Ms. Asha Kamat (Respondent’s wife).
30-11-1993 The Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik.
2. Respondent.
December, 1994 Respondent elected as Member of Legislative Assembly of Goa.
2-01-1996
The Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik.
2. Ms. Asha Kamat.
June, 1999
Respondent elected as Member of Legislative Assembly of Goa.
May, 2002
Respondent elected as Member of Legislative Assembly of Goa.
01-04-2005 The Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik.
2. Mr. Satish Lavande (Respondent’s brother-in-law).
May, 2005
Respondent elected as Member of Legislative Assembly of Goa.
13-02-2006 A company named Apollo Engineers & Contractors Pvt. Ltd. (hereinafter, “Company”) was
incorporated with two directors:
1. Mr. Kiran Vasant Naik.
2. Mr. Satish Lavande (Respondent’s brother-in-law).
06-01-2007 ‘Memorandum of Handing Over and Taking Over’ was executed by the Company and the
Partnership Firm which stated that the Partnership Firm was taken over by the Company
along with all the assets, liabilities and enlistment of the Partnership Firm with the PWD in
different categories with effect from 13-02-2006. Further, another Memorandum was executed
stating that the benefits, liabilities and agreements (including all contracts entered into or
received by the Partnership Firm from the PWD) of the Partnership Firm were transferred to
the Company with effect from 13-02-2006.
May, 2007
Respondent elected as Member of Legislative Assembly of Goa.
08-06-2007 Respondent sworn-in as the Chief Minister of Goa. He served as Chief Minister till
06-03-2012.
24-09-2007 Registration of the Partnership Firm as a contractor with the PWD was converted and renewed
in the name of the Company.
March, 2012 Respondent elected as Member of Legislative Assembly of Goa.
25-06-2013 Company had two directors:
1. Mr. Kiran Vasant Naik.
2. Mr. Yogiraj Kamat (Respondent’s son).
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19-01-2017
Scrutiny of Nomination Form for the elections to the Legislative Assembly of Goa 2017.
20-01-2017
Opinion rendered by the Election Commission of India in Reference Case No. 5 (G) of 2016 dated
17-11-2016.
In the above mentioned reference, the Commission opined on the issue of disqualification of
the Respondent under Article 191 (1) (a) of the Constitution of India read with Sections 8A
and 9A of the Representation of the People Act, 1951.
It was opined that the Respondent could not be disqualified under Article 191(1) (a) of the
Constitution of India for holding an office of profit as the Petitioner failed to produce any
documentary evidence to prove so. Further, the office of Chief Minister was exempted by the
Explanation clause in Article 191(1).
It was also held that since a prior order of the High Court under Section 99 of the Representation
of the People Act, 1951, finding a person guilty for committing corrupt practice, was not
produced by the Petitioner, the Respondent could not be disqualified under Section 8A of the
Representation of the People Act, 1951.
It was observed that as per the records produced by the Petitioner, the Respondent was
neither a Director/Shareholder/promoter of the Company at any given time nor was he a
Partner in the Partnership Firm on the date of his nomination in 2012 or on any date subsequent
to it. Therefore, the question of gaining any benefit under subsisting contracts entered into
by the Company could not be established. It was also stated that the law of communion of
assets was only applicable to joint holding of assets in matrimony and that it did not relate to
the appointment of a person as a Director in a company. It was noted that Mrs. Asha Kamat
was never a Director of the Company. Hence, the Respondent could not be disqualified under
Section 9A of the Representation of the People Act, 1951.
11-03-2017 Respondent elected as Member of Legislative Assembly of Goa.
01-08-2017 Opinion rendered by the Election Commission of India in Reference Case No.7(G) of 2017
dated 22-05-2017. In the abovementioned reference, the Commission opined on the issue of
disqualification of the Respondent under Article 191 of the Constitution of India read with
Sections 8A and 9A of the Representation of the People Act, 1951.
It was opined that since a prior order of the High Court under Section 99 of the Representation
of the People Act, 1951, finding a person guilty for committing corrupt practice, was not
produced by the Petitioner, the Respondent could not be disqualified under Section 8A of the
Representation of the People Act, 1951.
The opinion of the Commission in the case of Shri Umashankar (Reference Case No. 2 (G) of
2014) as well as the judgement of the Hon’ble Supreme Court in Sewaram vs. Sobaran Singh
(AIR 1993 SC 212) was examined and discussed to hold that the ratio of these decisions with
respect to the position of proxies was inapplicable to the case at hand. It was also stated that
no evidence was produced to either show that the Respondent managed the Company or
that he entered into a Government contract in the course of his business or trade. It was also
observed that as per the records produced by the Petitioner, the Respondent was neither a
Director/shareholder/promoter of the Company at any given point of time nor was he a Partner
in the Partnership Firm on the date of his nomination in 2017 or any date subsequent to it.
Hence, the Respondent could not be disqualified under Section 9A of the Representation of
the People Act, 1951.
4. The Petitioner in Reference Case No. 5(G) of 2016 and Reference Case No. 7(G) of 2017 had alleged that
the Respondent attracted disqualification under Section 8A and 9 A of the Representation of the People
Act, 1951 for allotting works to the Company at a price of more than 50% above the estimated cost of
tenders and for subsisting contracts with the Government in the name of the Company. The Petitioner
had argued that the Respondent’s wife Mrs. Asha Kamat, his brother-in-law Mr. Satish Lavande and his
son, Mr. Yogiraj Kamat, were proxies of the Respondent in the Company. That is, the Respondent through
his proxies had entered into contracts with the PWD in the name of his Company and hence, he was
liable to be disqualified. It may be noted that the Petitioner had placed reliance on the Opinion tendered
by the Commission in the case of disqualification of Mr. Umashankar Singh, MLA of Uttar Pradesh
Legislative Assembly [Reference Case No. 2(G) of 2014] and on the case of Sewaram vs. Sobaran Singh
[AIR 1993 SC 212].
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5. On examining the petition, it was discovered
that the Petitioner had referred to the Inquiry Report
of the State Registrar & Head of Notary Services,
Government of Goa, dated 10-05-2019, of which 108
sheets of annexures were missing. Therefore, vide
Letter dated 27-11-2019 the Commission requested
the Petitioner to provide the same. The Commission
received the 108 sheets of annexures as well as other
additional documents on 27-01-2020 from the
Petitioner. These additional documents consisted of
internet certified balance sheets as well as profit &
loss accounts of the Company.
6. Issues raised in the present reference and in
additional documents dated 27-01-2020:
i) That the Respondent through various
proxies in his Company/Partnership Firm had
subsisting contracts with the Government of
Goa at the time of filing his nomination and the
contracts were subsisting at the time of filing
the present Petition.
ii) That the Impugned Order had stated that
the original petition [in Reference Case No. 7 (G)
of 2017] had disclosed Mr. Satish Lavande and
Mr. Kiran Vasant Naik as the partners of the
Partnership Firm whereas the original petition
had actually stated that the partners were Mrs.
Asha Digambar and Mr. Kiran Vasant Naik as per
records of the Sub-Civil Registrar, Salcete, Goa.
Thus, the Impugned Order travelled beyond the
contents of the Petition.
iii) That the Petitioner was not informed of any
document/certificate relied upon by the
Commission in reaching the above stated
conclusion i.e. that Mr. Satish Lavande and
Mr. Kiran Vasant Naik were partners of the
Partnership Firm. Therefore, his right to equality
was violated.
iv) That Impugned Order with respect to the
observation that Mr. Satish Lavande and Mr.
Kiran Vasant Naik were the partners of the
Partnership Firm, was based on forged and
fabricated documents issued by the then Sub-
Registrar, Salcete, Goa to the Respondent so that
he could dis-associate or sever himself from the
Partnership Firm and the Company which were
taken over by his wife and son as proxies. This is
apparent from the Inquiry Report of the State
Registrar & Head of Notary Services dated
10-05-2019 submitted to the Law Department,
Government of Goa.
v) That Mr. Digambar Kamat and his wife,
Mrs. Asha Kamat, were governed by the
Portuguese Civil Code, 1867 and therefore, by
the principle of ‘Communion of Assets’.
vi) That the Impugned Order failed to give its
findings regarding Sewaram vs. Sobaran Singh
[AIR 1993 SC 212].
vii) That the Respondent was a Key
Management Personnel in 2012, 2013 and 2014.
This was stated on the basis of certified internet
copies of the balance sheets and profit & loss
accounts of the Company, provided by the
Petitioner, wherein under the section for
‘Professional Fees & Commission’ the
Respondent was shown as a Key Management
Personnel for the years 2012, 2013 and 2014.
7. Analysis:
i) Power of review.—
Order XL VII, Rule 1(1) of the Code of Civil
Procedure, 1908 r/w Article 137 & 145 of the
Constitution of India does not apply to the
proceedings before the Election Commission of
India in Reference Cases and as such, the
Election Commission does not possess the power
to review an Opinion already acted upon by the
Hon’ble Governor.
However, since the present Reference has
been made by the Hon’ble Governor under
Article 192, it is treated as a fresh reference and
the present Opinion is being returned as per the
mandate of Article 192 of the Constitution of
India.
ii) Alleged error in previous opinion.—
The Impugned Order stated that the facts
disclosed in the previous petition show that
since 01-04-2005, the Partnership Firm
comprised of two partners i.e. Mr. Kiran Naik and
Mr. Satish Lavande. This contention of the
Petitioner essentially relates to an error in
naming the proxy of the Respondent, i.e. his
brother-in-law, Mr. Satish Lavande, in place of
his wife Mrs. Asha Digambar. However, the non-
disqualification of the Respondent was based on
the fact that the Respondent was not personally
involved or associated with the Partnership Firm
and the Company. Hence, this contention does
not have any bearing on the merits of the Opinion
tendered by the Commission in Reference Case
No. 7(G) of 2017.
iii) Alleged forgery by the respondent.—
With respect to the Petitioner’s contention
that the Respondent relied on forged and
fabricated documents to show that his brother-
-in-law, Mr. Satish Lavande, was associated with
the Company and not his wife, Mrs. Asha Kamat,
it is not a fact of relevance as it would have no
impact on the Opinion tendered by the
Commission for the reason that the Respondent
himself was not shown to be directly associated
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with the Company. The Inquiry Report of the State
Registrar & Head of Notary Services dated 10-05-
2019 notes that:
“Furthermore, the report stated that the copy
available with M/s Prithvi Survey which had
digitized the documents has a different copy of
the documents with details of the Partnership
Firm than the one issued by the then Sub-
Registrar”.
The Report further notes as under:—
a) RTI letter dated 09-10-2017 indicates
Computerization/Digitization of records done on
20-11-2009. So the records till 20-11-2009 are with
Prithvi Survey Ltd.
b) As per Prithvi, last date of Reconstitution
is 07-02-1996 of Bharat Construction and last
known partners are Asha Digambar Kamat and
Kiran V. Naik.
c) Two different Certificates are issued in 3
days, one on 21-11-2016 and other on 23-11-2016,
both based on certificate dated 16-01-1981 which
is not registered on that date.
d) Letter from Civil Registrar-cum-Sub-
-Registrar, Tiswadi, indicated that there is no
circular to issue certified copy based on old record.
e) Certificates issued are prima facie not
authentic.
Complaint, inquiry by the district Registrar
(South) and perusal of the records placed by Shri
Shirish Kamat reveals that the possibility of
forgery in the Office of Sub-Registrar office,
Salcete with regards to documents of M/s. Bharat
Constructions cannot be ruled out.
The then Sub-Registrar, Salcete Shri
Chandrakant Pissurlekar has issued the certified
copy of the documents of partnership firm of
which original documents are not available in
his office to fall back and verify. Further, it is a
settled principle than the true copy attestation
or issuing of certified copy can be effected only
in the circumstances wherein original copy of
that document is available on record of the
issuing Authority. Moreover, no any orders have
been issued by Government to issue certified
copy of the document by obtaining copy from the
member of Public who is interested party in the
matter and is applicant for the certified copy.
Apart from above, the copies of the same
documents purportedly issued by the same
Authority does not match and tally with regards
to its contents of the other copies. This further
hints that there is every possibility of forgery in
the records and issuing of the same.
Furthermore, the copy available with the agency
M/s Prithvi Survey Pvt. Ltd. which has scanned
and digitized the document has different copy with
contents of the said firm than the one issued by
the then Sub-Registrar. A summary inquiry
conducted by the department through District
Registrar (South) raises prima facie probability of
forgery into Government records and lapse in
procedure to issue certified copy.”
Though the State Registrar & Head of Notary
Services has expressed some doubt on the
authenticity of the Certificates, the Inquiry Report
dated 10-05-2019 clearly states that the last
known partners of the Partnership Firm were Mrs.
Asha Kamat and Mr. Kiran Naik. Moreover, as the
Partnership Firm was taken over by the Company
with effect from 13-02-2006 along with all assets,
liabilities and contracts, the history of the
Partnership Firm is of no relevance for the
purposes of the present Reference.
iv) Non-examination of the sewaram judgment:
The Hon’ble Supreme Court in Sewaram Vs.
Sobaran Singh [AIR 1993 SC 212] held that the
Appellant (i.e. Sewaram) could not prove
severance of his contractual relationship with
the Government (PWD) before filing his
nomination
paper
and
thus
incurred
disqualification. The Appellant in Sewaram
Case (supra) had been disqualified on the basis
of a subsisting contract through his proxy due to
the reason that he did not appropriately end the
contract in the first place. Further, the Appellant
continued corresponding with the Government
even after his election, thereby indicating his
continued association with the company. The
relevant extracts are reproduced herein:
22… We are not satisfied that in the present case
the contract came to an end by breach by writing the
letter dated 30-1-1990 as sought to be submitted on
behalf of the appellant. In the facts of the present case
the contract had not come to an end but was sought
to be continued through Patiram Gupta. It is an
admitted fact that Patiram Gupta is the real brother
and member of joint Hindu family with Sewaram
appellant. Not only that, Patiram was also an attorney,
holder of Sewaram during the relevant period. The
correspondence even after 30-1-1990 has been made
in the name of Sewaram appellant though signed by
Patiram. In these circumstances, it cannot be believed
that Sewaram had put an end to the contract by
breach and the conduct of Sewaram and Patiram even
prior to and after 30-1-1990 leads to an irresistible
conclusion that the contract had not come to an end,
and was subsisting, thereby incurring a
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disqualification under Section 9-A of the Act. In case
Sewaram wanted to put an end to the contract, in the
normal course of behaviour and human conduct he
should have gone personally to no less an authority
than the Executive Engineer and to have put an end
to the contract mutually or in case the concerned
officers were not agreeable to end the contract
mutually then he could have taken the step of ending
the contract unilaterally by breach taking the risk of
damages. The facts of the present case lead us to the
conclusion that the appellant never intended nor in
fact put an end to the contract, but continued with
the contract through the proxy of his real brother
Patiram.”
With regard to the issue raised by the Petitioner
that the Impugned Order had not examined the
Sewaram Case (supra), it is pertinent to note that
this Commission not only examined but also
distinguished the Sewaram Case on facts and
circumstances. This fact is evident from the following
extract taken from the Impugned Order:
“15. …Similarly, the Supreme Court in Sewaram
case disqualified him under Section 9A of the
Representation of the People Act, 1951 on the 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 if the present case.”
v) Opportunity of being heard.—
The Petitioner has contended that he was not
afforded an opportunity of being heard. It is
pertinent to note that the Hon’ble Delhi High Court
held in Kailash Gehlot v. Election Commission of India
[(2018) 250 DLT 193 (DB)] that it was not necessary
for the Election Commission to grant oral hearing in
cases where the opinion does not call for
disqualification, however, oral hearing would be
necessary before the Commission could give an
opinion disqualifying a legislator. Furthermore, there
is no bar on the Commission from relying on
documents that are beyond the original petition and
in fact, Section 146 of the Representation of the
People Act, 1951 gives the Commission ample
powers for the discovery and production of
documents in the course of an inquiry in a reference
case.
vi) Key Management Personnel.—
The Respondent has been listed as the Key
Management Personnel of the Company during
2012, 2013, and 2014. While this is an important
factor, the same is not indicated in subsequent
financial statements till 2019. Since, the
Respondent was elected in 2017, his previous
position in the Company would not have a bearing
in the present Reference.
vii) Communion of assets.—
Mr. Digambar V. Kamat and Mrs. Asha Kamat are
governed by the principle of Communion of Assets
(Article 1098 and 1108 of the Portuguese Civil Code,
1860). Therefore, Mrs. Asha Kamat’s position as a
partner in the Partnership Firm and consequently
as a shareholder in the Company contemplates that
the assets acquired by her would be apportioned
equally between her and the Respondent.
The principle of communion of asset in
Portuguese Civil Code, 1860 states as under:
Article 1098– Presumed regime of assets– In
the absence of any contract, it is deemed that the
marriage is done as per the custom of the country,
except when it is solemnized in contravention of
the provisions of Article 1058 Clause 1 and 2;
because in such a case it is deemed that the spouses
are married under the simple communion of
acquired assets.
Article 1198–Effects of authorisation– The
husband is liable for the obligations contracted
with his authorisation by the wife, married under
the regime of custom of the country or under simple
communion of the acquired assets, but he is not
liable for the obligations, which the wife, married
under any other regime, contracted upon her
exclusive assets or interests.
The Income Tax Act, 1961 also contains a provision
in this respect and the same is quoted below:
5A. Apportionment of income between spouses
governed by Portuguese Civil Code.— (1) Where the
husband and wife are governed by the system of
community of property (known under the Portuguese
Civil Code of 1860 as “COMMUNIAO DOS BENS”) in
force in the State of Goa and in the Union territories
of Dadra and Nagar Haveli and Daman and Diu, the
income of the husband and the wife under any head
of income shall not be assessed as that of such
community of property (whether treated as an
association of persons or a body of individuals), but
such income of the husband and of the wife under
each head of income (other than under the head
“Salaries”) shall be apportioned equally between the
husband and the wife and the income so
apportioned shall be included separately in the total
income of the husband and of the wife respectively,
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and the remaining provisions of this Act shall apply
accordingly.
(2) Where the husband or, as the case may be,
the wife governed by the aforesaid system of
community of property has any income under the
head “salaries”, such income shall be included in the
total income of the spouse who has actually earned
it.
‘Body of Individuals’ is a separate taxable entity
recognized under the Income Tax Act, 1961 and the
incomes of a Body of Individual is not added to the
income of the individuals who partake in it. However,
Section 5A creates as exception to this rule in view
of the communion of assets under the Portuguese
Civil Code, 1860. Section 5A of the Income Tax Act
implies that except the income from salary, income
from all other heads of income u/s 14 of the Income
Tax Act, i.e. income from house property, profits &
gains of business and profession, capital gains and
income from other sources are clubbed together and
then assessed separately in equal share to the
husband and wife. The Hon’ble Bombay High Court
in Addl. CIT v. Valentino F. Pinto [(1984) 150 ITR 408]
held that Income from business run by the
communion of the husband and wife married as per
the custom of Goa should be assessed separately in
equal share to each of them and not in the hands of
the Body of Individual of the communion.
The Petitioner has relied on Zelia M. Xavier
Fernandes E. Gonsalves vs. Joana Rodrigues and Ors.
[(2012) 3 SCC 188], wherein the SC held that while
deciding a petition under Section 10(f) of the Goa
Panchayat Raj Act, 1994:
There is no doubt that Section 10(f) contemplates
that share or monetary interest (direct or indirect) has
to be in the contract itself. The expression ‘in any
contract’ means in regard to any contract. Could it be
said that the Appellant had no indirect share or
monetary interest in regard to her husband’s contract
with the Village Panchayat Raia when, by operation
of law, she is entitled to the profits of that contract?
The answer has to be in the negative. Money acquired
by the Appellant’s husband from the contract with
the Village Panchayat Raia is ‘community property’
and, therefore, the conclusion is inescapable that the
Appellant has indirect share, or, in any case, monetary
interest in the contract awarded to her husband by
the Village Panchayat Raia as the profits from the
contract shall be apportioned equally between her and
her husband. There is no evidence of exclusion of the
Appellant from her husband’s assets and income.
The provisions contained in Articles 1098 and
1108 of the 1860 Code and Section 5A of the Income
Tax Act give the Appellant a participation in the
profits of the contract and advantages like the
apportionment of income from that contract. The
Appellant by operation of law becomes entitled to
share in the profits of the contract awarded to her
husband by the Village Panchayat. From whatever
way it is seen, the Appellant’s participation in the
profits of the contract does constitute an “indirect
monetary interest” in the contract for collection of
market fee awarded to her husband within Section
10(f) prohibiting the member of the Village
Panchayat from having such an interest.
The Petitioner has further placed reliance on
various judgments including Dyaneshwar Narso Naik
vs. State of Goa [(2014) 6 Bom CR 434], wherein the
Hon’ble Bombay High Court relied on Zelia M. Xavier
Fernandes E. Gonsalves (supra) to state that the
elected member of the Panchayat would have a
pecuniary interest in the construction license of her
husband. The Court held that since the elected
member of the Panchayat had participated in the
discussion relating to the issue of renewal of the
construction license to her husband, she acted in
contravention of Section 55(4) and had therefore
vacated her seat under Section 12(1)(d) of the Goa
Panchayat Raj Act, 1994.
The Commission has examined this proposition
of the Petitioner. It may be noted that the question
of disqualification of the Respondent is governed by
Article 19(1) of the Constitution of India under which
a person may be disqualified for being a member of
the Legislative Assembly or the Legislative Council
of the State if he/she is so disqualified under any
law made by the Parliament. The judicial decisions
referred to by the Petitioner pertain to state laws
governing elections to local bodies which are not
applicable to the present case.
It is pertinent to note that Zelia M. Xavier
Fernandes E. Gonsalves (supra) is aase under Section
10(f) of the Goa Panchayat Raj Act, 1994 which states
as under:
10. Disqualification for membership.— A person
shall be disqualified for being chosen as, and for being,
a member of the Panchayat if,—
(f) he has directly or indirectly any share or
monetary interest in any work done by or to the
Panchayat or any contract or employment with,
under or by or on behalf of the Panchayat;
Section 9A of the Representation of the People
Act, 1951 states as follows:
9A. Disqualification for Government contracts,
etc.— A person shall be disqualified if, and for so
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long as, 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 is evident that Section 10(f) of the Goa
Panchayat Raj Act, 1994 is wider than the law
contemplated under Section 9A of the
Representation of the People Act, 1951 which seeks
to disqualify a person for having a subsisting
contract with the appropriate Government. Section
9A does not focus on ‘monetary benefits’ and
‘indirect share’ as done in Section 10(f) of the Goa
Panchayat Raj Act, 1994 above.
In Ranjeet Singh vs. Harmohinder Singh Pradhan
[(1994) 4 scc 517], the Hon’ble Supreme Court
stated that:
On a plain reading, Section 9A of the Act
requires:-
(i) That there must be subsisting contract
which has been entered into by the person
whose candidature is sought to be disqualified
with the Government;
(ii) That the contract is for the supply of goods
to the Government;
(iii) That the contract is for the execution of
any works undertaken by the Government.
Section 9A of the Representation of the People
Act, 1951 states that in order to disqualify a person,
there must be a ‘subsisting contract’ between the
concerned person and the appropriate Government
for supply of goods or execution of work. The
question of the deriving indirect benefits is not a
condition contemplated by the provision. Hence, it
is essential to establish a direct connection
between the Respondent and the appropriate
Government in order to disqualify him under
Section 9A.
Therefore, even assuming that the Respondent
derives monetary benefits due to his wife’s position
as a shareholder in the Company, which has a
subsisting contract with the appropriate
Government, this in itself is not a sufficient criterion
for disqualification of the Respondent under Section
9A of the Representation of the People Act, 1951.
In this regard, it may also be noted that there is
nothing on record to show that Mrs. Asha Kamat
has even been a Director of the Company or holds
substantial shares of the Company.
8. Conclusion.—
The Hon’ble Supreme Court in Kartar Singh
Bhadana V. Hari Singh Nalwa [(2001) 4 SCC 661]
has stated that:
8. Insofar as in relevant to a case where it is
alleged that a candidate holds a contract for the
execution of works undertaken by an appropriate
Government, Section 9-A requires (a) that there
should be a contract entered into by the candidate;
(b) that it should be entered into by him in the
course of his trade or business; (c) that it should be
entered into with the appropriate Government; (d)
that it should subsist; (e) that it should relate to
works undertaken by that Government; and (f) that
it should be for the execution of such works. The
provisions of Section 9-A disqualify a citizen from
contesting an election; a citizen may, therefore, be
disqualified only if the facts of his case squarely fall
within the conditions prescribed by Section 9-A.
The essential requirements for disqualification
under Section 9A require the Respondent to have
entered into a contract with the Government of Goa
which in the present case has not occurred.
Hence, in view of the above discussion, this
Commission hereby returns the present Reference
under Article 192 of the Constitution of India with
the Opinion that the Respondent, Shri Digambar
Kamat, Member of the Legislative Assembly of Goa,
has not incurred disqualification under Article
191(1) (e) of the Constitution of India read with
Section 9A of the Representation of the People Act,
1951.
Ashok Lavasa
Sunil Arora
Sushil Chandra
(Election
(Chief
(Election
Commissioner)
Election
Commissioner)
Commissioner)
In view of the opion rendered by the Election
Commission of India, as required under Article
192(2), I do not find any merits in the review petition
file by the petitioner, i.e. Shri Shirish Kamat. Hence
the petition dated 28-06-2019, filed for review of the
order dated 09-09-2017 stands dismissed.
(Satya Pal Malik)
Governor of Goa.
Raj Bhavan,
Dona Paula,
Goa : 403004.
Dated: 4th August, 2020.
___
ELECTION COMMISSION OF INDIA
Nirvachan Sadan,
Ashoka Road,
New Delhi - 110001
REFERENCE CASE No. 7 (G) OF 2019
(REFERENCE FROM THE HON’BLE GOVERNOR
OF GOA UNDER ARTICLE 192 of the
CONSTITUTION OF INDIA)
In re: Reference Case No. 7(G) of 2019– Reference
received from the Hon’ble Governor of Goa under
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Article 192 of the Constitution of India seeking opinion of the Election Commission of India on the Question of
alleged disqualification of Shri Digambar Vasant Kamat, Member of Legislative Assembly of Goa, under Article
192 of the Constitution of India read with Section 9A of the Representation of the People Act, 1951.
OPINION
1. This is a Reference dated 13-09-2019 received from the Hon’ble Governor of Goa seeking opinion of the
Election Commission of India under Article 192 of the Constitution of India on the question whether Shri
Digambar Vasant Kamat, Member of Legislative Assembly of Goa, has become subject to disqualification for
being a member of that Assembly under Article 191 (1) (e) of the Constitution of India read with Section 9A
of the Representation of the People Act, 1951.
2. This Reference arises from a Review Petition filed by Shri Shirish Q. Kamat (hereinafter, “Petitioner”)
under Order XLVII, Rule 1(1) of the Code of Civil Procedure, 1908 read with Article 137 & 145 of the
Constitution of India against Order dated 09-09-2017 issued by the Hon’ble Governor of Goa (hereinafter,
“Impugned Order”). The Impugned Order sated that Shri Digambar Vasant Kamat (hereinafter,
“Respondent”) did not incur disqualification under Section 8A and 9A of the Representation of the People
Act, 1951. The earlier petitions filed by the Petitioner led to references dated 17-11-2016 in Reference
Case No. 5(G) of 2016 and 22-05-2017 in Reference case No. 7 (G) of 2017 wherein the Commission rendered
its opinion on 20-1-2017 and 01-08-2017 respectively.
3. Brief facts in the Opinions rendered by the Election Commission of India in the above mentioned
Reference Cases are as follows:—
09-12-1980
A partnership firm, M/s Bharat Construction Engineers & Builders, was established by
the Respondent.
06-01-1982
M/s Bharat Construction Engineers & Builders (hereinafter, “Partnership Firm”) was
registered with the Civil Registrar, Goa consisting of these partners:
1. Mr. Digambar Kamat (Respondent)
2. Mr. Gurudas Kamat (Respondent’s brother)
3. Mr. Kiran Vasant Naik
4. Mr. Vinod Naik
5. Mr. Santosh Naik
06-07-1984
The Partnership Firm was registered as a contractor with the Goa Public Works
Department (hereinafter, “PWD”).
19-10-1989
The Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik
2. Ms. Asha Kamat (Respondent’s wife)
30-11-1993
The Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik
2. Respondent
December 1994
Respondent elected as Member of Legislative Assembly of Goa.
2-01-1996
The Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik
2. Ms. Asha Kamat
June 1999
Respondent elected as Member of Legislative Assembly of Goa.
May 2002
Respondent elected as Member of Legislative Assembly of Goa.
01-04-2005
Partnership Firm consisted of two partners:
1. Mr. Kiran Vasant Naik
2. Mr. Satish Lavande (Respondent’s brother-in-law)
May 2005
Respondent elected as Member of Legislative Assembly of Goa.
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13-02-2006
A company named Apollo Engineers & Contractors Pvt. Ltd. (hereinafter, “Company”) was
incorporated with two directors:
1. Mr. Kiran Vasant Naik
2. Mr. Satish Lavande (Respondent’s brother-in-law)
06-01-2007
‘Memorandum of Handing Over and Taking Over’ was executed by the Company and
the Partnership Firm which stated that the Partnership Firm was taken over by the
Company along with all the assets, liabilities and enlistment of the Partnership Firm
with the PWD in different categories with effect from 13-02-2006. Further, another
Memorandum was executed stating that the benefits, liabilities and agreements
(including all contracts entered into or received by the Partnership Firm from the PWD)
of the Partnership Firm were transferred to the Company with effect from 13-02-2006.
May 2007
Respondent elected as Member of Legislative Assembly of Goa.
08-06-2007
Respondent sworn-in as the Chief Minister of Goa. He served as Chief Minister till
06-03-2012.
24-09-2007
Registration of the Partnership Firm as a contractor with the PWD was converted and
renewed in the name of the Company.
March 2012
Respondent elected as Member of Legislative Assembly of Goa.
25-06-2013
Company had two directors:
1. Mr. Kiran Vasant Naik
2. Mr. Yogiraj Kamat (Respondent’s son)
19-01-2017
Scrutiny of Nomination Form for the elections to the Legislative Assembly of Goa 2017.
20-01-2017
Opinion rendered by the Election Commission of India in Reference Case No. 5(G) of 2016
dated 17-11-2016. In the above mentioned reference, the Commission opined on the issue
of disqualification of the Respondent under Article 191(1)(a) of the Constitution of India
read with Sections 8A and 9A of the Representation of the People Act, 1951. It was opined
that the Respondent could not be disqualified under Article 191(1)(a) of the Constitution
of India for holding an office of profit as the Petitioner failed to produce any documentary
evidence to prove so. Further, the office of Chief Minister was exempted by the Explanation
clause in Article 191(1). It was also held that since a prior order of the High Court under
Section 99 of the Representation of the People Act, 1951 finding a person guilty for
committing corrupt practice, was not produced by the Petitioner, the Respondent could
not be disqualified under Section 8A of the Representation of the People Act, 1951. It
was observed that as per the records produced by the Petitioner, the Respondent was
neither a Director/shareholder/promoter of the Company at any given time nor was he a
Partner in the Partnership Firm on the date of his nomination in 2012 or on any date
subsequent to it. Therefore, the question of gaining any benefit under subsisting contracts
entered into by the Company could not be established. It was also stated that the law of
communion of assets was only applicable to joint holding of assets in matrimony and
that it did not relate to the appointment of a person as a Director in a company. It was
noted that Mrs. Asha Kamat was never a Director of the Company. Hence, the Respondent
could not be disqualified under Section 9A of the Representation of the People Act, 1951.
11-03-2017
Respondent elected as Member of Legislative Assembly of Goa.
01-08-2017
Opinion rendered by the Election Commission of India in Reference Case No. 7(G) of
2017 dated 22-05-2017. In the above mentioned reference, the Commission opined on
the issue of disqualification of the Respondent under Article 191 of the Constitution of
India read with Sections 8A and 9A of the Representation of the People Act, 1951. It was
opined that since a prior order of the High Court under Section 99 of the Representation
of the People Act, 1951, finding a person guilty for committing corrupt practice, was not
produced by the Petitioner, the Respondent could not be disqualified under Section 8A
of the Representation of the People Act, 1951. The opinion of the Commission in the case
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of Shri Umashankar [Reference Case No. 2(G) of 2014] as well as the judgement of the
Hon’ble Supreme Court in Sewaram vs. Sobaran Singh [AIR 1993 SC 212] was examined
and discussed to hold that the ratio of these decisions with respect to the position of
proxies was inapplicable to the case at hand. It was also stated that no evidence was
produced to either show that the Respondent managed the company or that he entered
into a Government contract in the course of his business or trade. It was also observed
that as per the records produced by the Petitioner, the Respondent was neither a Director/
shareholder/promoter of the Company at any given point of time nor was he a Partner in
the Partnership Firm on the date of his nomination in 2017 or any date subsequent to it.
Hence, the Respondent could not be disqualified under Section 9A of the Representation
of the People Act, 1951.
4. The Petitioner in Reference Case No. 5(G) of 2016 and Reference Case No. 7(G) of 2017 had alleged
that the Respondent attracted disqualification under Sections 8A and 9A of the Representation of the
People Act, 1951 for allotting works to the Company at a price of more than 50% above the estimated cost
of tenders and for subsisting contracts with the Government in the name of the Company. The Petitioner
had argued that the Respondent’s wife Mrs. Asha Kamat, his brother-in-law Mr. Satish Lavande and his
son Mr. Yogiraj Kamat, were proxies of the Respondent in the Company. That is, the Respondent through
his proxies, had entered into contracts with the PWD in the name of his Company and hence, he was
liable to be disqualified. It may be noted that the Petitioner had placed reliance on the Opinion tendered
by the Commission in the case of disqualification of Mr. Umashankar Singh, MLA of Uttar Pradesh
Legislative Assembly [Reference Case No. 2(G) of 2014] and on the case of Sewaram vs. Sobaran Singh
[AIR 1993 SC 212].
5. On examining the petition, it was discovered that the Petitioner had referred to the Inquiry Report of
the State Registrar & Head of Notary Services, Government of Goa, dated 10-05-2019, of which 108 sheets
of annexures were missing. Therefore, vide Letter dated 27-11-2019 the Commission requested the
Petitioner to provide the same. The Commission received the 108 sheets of annexures as well as other
additional documents on 27-01-2020 from the Petitioner. These additional documents consisted of internet
certified balance sheets as well as profit & loss accounts of the Company.
6. Issues raised in the present reference and in additional documents dated 27-01-2020.
i. That the Respondent through various proxies in his Company/Partnership Firm had subsisting
contracts with the Government of Goa at the time of filing his nomination and the contracts were
subsisting at the time of filing the present Petition.
ii. That the Impugned Order had stated that the original petition (in Reference Case No. 7(G) of
2017) had disclosed Mr. Satish Lavande and Mr. Kiran Vasant Naik as the partners of the Partnership
Firm whereas the original petition had actually stated that the partners were Mrs. Asha Digambar and
Mr. Kiran Vasant Naik as per records of the Sub-Civil Registrar, Salcete, Goa. Thus, the impugned Order
travelled beyond the contents of the Petition.
iii. That the Petitioner was not informed of any document/certificate relied upon by the Commission
in reaching the above stated conclusion i.e. that Mr. Satish Lavande and Mr. Kiran Vasant Naik were
partners of the Partnership Firm. Therefore, his right to equality was violated.
iv. That the Impugned Order with respect to the observation that Mr. Satish Lavande and Mr. Kiran
Vasant Naik were the partners of the Partnership Firm, was based on forged and fabricated documents
issued by the then Sub-Registrar, Salcete, Goa to the Respondent so that he could disassociate or sever
himself from the Partnership Firm and the Company which were taken over by his wife and son as
proxies. This is apparent from the Inquiry Report of the State Registrar & Head of Notary Services
dated 10-05-2019 submitted to the Law Department, Government of Goa.
v. That Mr. Digambar Kamat and his wife, Mrs. Asha Kamat, were governed by the Portuguese Civil
Code, 1867 and therefore, by the principle of ‘Communion of Assets’.
vi.That the Impugned Order failed to give its findings regarding Sewaram vs. Sobaran Singh [AIR
1993 SC 212].
vii. That the Respondent was a Key Management Personnel in 2012, 2013 and 2014. This was stated
on the basis of certified internet copies of the balance sheets and profit & loss accounts of the Company,
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provided by the Petitioner, wherein under the
section for ‘Professional Fees & Commission’ the
Respondent was shown as a Key Management
Personnel for the years 2012, 2013 and 2014.
7. Analysis:
I. Power of Revies:
Order XI. VII, Rule 1(1) of the Code of Civil
Procedure, 1908 r/w Article 137 & 145 of the
Constitution of India does not apply to the
proceedings before the Election Commission of
India in Reference Cases and as such, the Election
Commission does not possess the power to review
an Opinion already acted upon the Hon’ble
Governor.
However, since the present Reference has been
made by the Hon’ble Governor under Article 192,
it is treated as a fresh reference and the present
Opinion is being returned as per the mandate of
Article 192 of the Constitution of India.
II. Alleged error in precious opinion:
The Impugned Order stated that the facts
disclosed in the previous petition show that since
01-04-2005, the Partnership Firm compromised
of two partners, i.e. Mr. Kiran Naik and Mr. Satish
Lavande. This contention of the Petitioner
essentially relates to an error in naming the proxy
of the Respondent, i.e. his brother-in-law, Mr.
Satish Lavande, in place of his wife, Mrs. Asha
Digambar. However, the non-disqualification of
the Respondent was based on the fact that the
Respondent was not personally involved or
associated with the Partnership Firm & the
Company. Hence, this contention does not have
any bearing on the merits of the Opinion tendered
by the Commission in Reference Case 7(G) of 2017.
III. Alleged forgery by the respondent:
With respect to the Petitioner’s contention
that the Respondent relied on forged and the
fabricated documents to show that his brother-
-in-law, Mr. Satish Lavande, was associated with
the Company and not his wife, Mrs. Asha Kamat.
It is not a fact of relevance as it would have no
impact on the Opinion tendered by the
Commission for the reason that the Respondent
himself was not shown to be directly associated
with the Company. The Inquiry Report of the State
Registrar & Head of Notary Services dated
10-05-2019 notes that:
“Furthermore, the report stated that the copy
available with M/s Prithvi Survey which had
digitized the documents has a different copy of
documents with details of the Partnership Firm
than the one issued by the then Sub-Registrar” .
The Report further notes as under:
1. RTI letter dated 09-10-2017 indicated
Computerization/Digitization of records done on
20-11-2009. So the records till 20-11-2009 are with
Prithvi Survey Ltd.
2. As per Prithvi, last date of Reconstitution is
07-02-1996 of Bharat Construction and last known
partners are Asha Digambar Kamat and Kiran V. Naik.
3. Two different Certificates are issued in 3 days,
on 21-11-2016 and other on 23-11-2016, both based
on certificate dated 16-01-1981 which is not
registered on that date.
4. Letter from Civil Registrar-cum-Sub-Registrar
Tiswadi, indicated that there is no circular to issue
certified copy based on old record.
5. Certificates issued are prima facie not authentic.
Complaint, Inquiry by the District Registrar (South)
and perusal of the records placed by Shri Shirish
Kamat reveals that the possibility of forgery in the
Office of Sub-Registrar office, Salcete with regards
to documents of M/s Bharat Constructions cannot
be ruled out.
The then Sub-Registrar, Salcete, Shri Chandrakant
Pissurlekar has issued the certified copy of the
documents of partnership firm of which original
documents are not available in his office to fall back
and verify. Further, it is a settled principle that the
true copy attestation or issuing of certified copy can
be effected only in the circumstances wherein
original copy of that document is available on record
of the issuing Authority. Moreover, no any orders
have been issued by Government to issue certified
copy of the document by obtaining copy from the
member of Public who is interested party in the
matter and is applicant for the certified copy.
Apart from above, the copies of the same
documents purportedly issued by the same
Authority does not match and tally with regards
to its contents of the other copies. This further hints
that there is every possibility of forgery in the
records and issuing of the same.
Furthermore, the copy available with the agency
M/s Prithvi Survey Pvt. Ltd., which has scanned and
digitized the document, has different copy with
contents of the said firm than the one issued by the
Sub-Registrar.
A Summary inquiry conducted by the department
through District Registrar (South) raises prima facie
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probability of forgery into Government records and
lapse in procedure to issue certified copy”.
Though the State Registrar & Head of the Notary
Services has expressed some doubts on the
authenticity of the Certificates, the Inquiry Report
dated 10-05-2019 clearly states that the last known
partners of the Partnership Firm were Mrs. Asha
Kamat and Mr. Kiran Naik. Moreover, as the
Partnership Firm was taken over by the Company
with effect from 13-02-2006 along with all assets,
liabilities and contracts, the history of the
Partnership Firm is of no relevance for the purposes
of the present Reference.
IV. Non-examination of the serwaram judgment:
The Hon’ble Supreme Court in Sewaram vs.
Sobaran Singh [AIR 1993 SC 212] held that the
appellant (i.e. Sewaram) could not prove severance
of his contractual relationship with the Government
(PWD) before filing his nomination paper and thus
incurred disqualification. The Appellant in Sewaram
Case (supra) had been disqualified on the basis of
a subsisting contract through his proxy due to the
reason that he did not appropriately end the
contract in first place. Further, the Appellant
continued corresponding with the Government
even after his election, thereby indicated his
continued association with the company. The
relevant extracts are reproduced herein:
“22. …We are not satisfied that the present
case, the contract came to an end by breach by
writing the letter dated 30-01-1990 as sought to
be submitted on behalf of the appellant. In the
facts of the present case the contract had not
come to an end but sought to be continued
through Patiram Gupta. It is an admitted fact
that Patiram Gupta is the real brother and
member of joint Hindu family with Sewaram
appellant. Not only that, Patiram was also an
attorney holder of Sewaram during the relevant
period. The correspondence even after 30-01-1990
has been made in the name of Sewaram appellant
though
signed
by
Patiram.
In
these
circumstances, it cannot be believed that
Sewaram had put an end to the contract by
breach and the conduct of Sewaram and Patiram
even prior to and after 30-01-1990 leads to an
irresistible conclusion that the contract had not
come to an end, and was subsisting, thereby
incurring a disqualification under Section 9-A of
the Act. Incase Sewaram wanted to put an end
to the contract, in the normal course of behaviour
and human conduct, he should have gone
personally to no less an authority than the
Executive Engineer and to have put an end to
the contract mutually or in case the concerned
officers were not agreeable to end the contract
mutually then he could have taken the step of
ending the contract unilaterally by breach
taking the risk of damages. The facts of the
present case lead us to the conclusion that the
appellant never intended nor in fact put an end
to the contract, but continued with the contract
through the proxy of his real brother Patiram.”
With regards to the issue raised by the Petitioner
that the Impugned Order had not examined the
Sewaram Case (supra), it is pertinent to note that
this Commission not only examined but also
distinguished the Sewaram Case on facts and
circumstances. This fact is evident from the following
extract taken from the Impugned Order.
“15. …Similarly, the Supreme Court in
Sewaram Case disqualified him under Section 9A
of the Representation of the People Act, 1951 on
the 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 Case (supra), relied upon by the
petitioner, are applicable in the facts and
circumstances of the present case.”
V. Opportunity of being heard:
The Petitioner has contended that he was not
afforded an opportunity of being heard. It is
pertinent to note that the Hon’ble Delhi High Court
held in Kailash Gehlot vs. Election Commission of
India [(2018)250 DLT 193 (DB)] that is was not
necessary for the Election Commission to grant oral
hearing in the cases where the opinion does not
call for disqualification. However, oral hearing
would be necessary before the Commission could
give an opinion disqualifying a legislator.
Furthermore, there is no bar on the Commission
from relying on documents that are beyond the
original petition and in fact, Section 146 of the
Representation of the People Act, 1951 gives the
Commission ample powers for the discovery and
production in the course of an inquiry in a reference
case.
VI. Key Management Personnel:
The Respondent has been listed as the Key
Management Personnel of the Company during
2012, 2013 and 2014. While this is an important
factor, the same is not indicated in subsequent
financial statement till 2019. Since, the Respondent
was elected in 2017 his previous position in the
Company would not have a bearing in the present
Reference.
VII. Communion of Assets:
Mr. Digambar V. Kamat and Mrs. Asha Kamat are
governed by the principle of Communion of Assets
(Article 1098 and 1108 of the Portuguese Civil Code,
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1860). Therefore, Mrs. Asha Kamat’s position as a
partner in the Partnership Firm consequently as a
shareholder in the Company contemplates that the
assets acquired by her would be apportioned
equally between her and the Respondent.
The principle of communion of asset in
Portuguese Civil Code, 1860 states as under:
Article 1098 –Presumed regime of assets- in the
absence of any contract, it is deemed that the
marriage is done as per the custom of the country,
except when it is solemnized in contravention of
the provisions of Article 1058 Clause 1 and 2;
because in such a case it is deemed that the spouses
are married under the simple communion of
acquired assets.
Article 1198 – Effects of authorisation- the
husband is liable for the obligations contracted
with his authorisation by the wife, married under
the regime of custom of the country or under simple
communion of the acquired assets, but he is not
liable for obligations, which the wife married under
any other regime contracted upon her exclusive
assets or interests.
The Income Tax Act, 1961 also contains a provision
in this respect and the same is quoted below:
5A. Apportionment of income between spouses
governed by Portuguese Civil Code:- (1) Where the
husband and the wife are governed by the system
of community of property (known under the
Portuguese Civil Code of 1860 as “COMMUNIAO
DOS BENS”) in force in the State of Goa and in the
Union territories of Dadra and Nagar Haveli and
Daman and Diu, the income of the husband and of
the wife under any head of income shall not be
assessed as that of such community of property
(whether treated as an association of persons or a
body of individuals), but such income of the
husband and of the wife under each head of income
(other than under the head “Salaries”) shall be
apportioned equally between the husband and the
wife and the income so apportioned shall be
included separately in the total income of the
husband and of the wife respectively, and the
remaining provisions of this Act shall apply
accordingly.
(2) Where the husband or, as the case may be,
the wife governed by the aforesaid system of
community of property has any income under the
head “Salaries”, such income shall be included in
the total income of the spouse who has actually
earned it.
‘Body of individuals’ is a separate taxable entity
recognized under the Income Tax Act, 1961 and the
incomes of a Body of Individual is not added to the
income of the individuals who partake in it.
However, Section 5A creates an exception to this
rule in view of the communion of assets under the
Portuguese Civil Code, 1860. Section 5A of the
Income Tax Act implies that except the income
from salary, income from all other heads of income
u/s 14 of the Income Tax Act, i.e. income from house
property, profits & gains of business and
professions, capital gains and income from other
sources are clubbed together and then assessed
separately in equal share to the husband and wife.
The Hon’ble Bombay High Court in Addl. CIT v.
Valentino F. Pinto [(1984) ITR 408] held that income
from business run by the communion of the
husband and wife married as per the custom of Goa
should be assessed separately in equal share to
each of them and not in the hands of the Body of
Individual of the communion.
The Petitioner has relied on Zelia M. Xavier
Fernandes E. Gonnsalves vs. Joana Rodrigues and
Ors. [(2012) 3 SCC 188], wherein the SC held that
while deciding a petition under Section 10 (f) of the
Goa Panchayat Raj Act, 1994:
There is no doubt that Section 10(f) contemplates
that share or monetary interest (direct or indirect)
has to be in the contract itself. The expression in
any contract means in regard to any contract.
Could it be said that the Appellant had no indirect
share or monetary interest in regard to her
husband’s contract with the Village Panchayat
Raia when, by operation of law, she is entitled to
the profits of that contract? The answer has to be
in the negative. Money acquired by the appellant’s
husband from the contract with the Village
Panchayat Raia is ‘community property’ and,
therefore, the conclusion is inescapable that the
Appellant has indirect share, or, in any case,
monetary interest in the contract awarded to her
husband by the Village Panchayat Raia as the
profits from the contract shall be apportioned
equally between her and her husband. There is no
evidence of exclusion of the Appellant from her
husband’s assets and income.
The provisions contained in Articles 1098 and
1108 of the 1860 Code and Section 5A of the
Income Tax Act give the Appellant a
participation in the profits of the contract and
advantages like the apportionment of income
from that contract. The appellant, by operation
of law, becomes entitled to share in the profits of
the contract awarded to her husband by the
Village Panchayat. From whatever way it is seen,
the Appellant’s participation in the profits of the
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contract does constitute an “indirect monetary
interest” in the contract for collection of market
fee awarded to her husband within Section 10
(f) prohibiting the member of the Village
Panchayat from having such an interest.
The Petitioner has further placed reliance on
various judgements including Dyaneshwar Narso
Naik vs. State of Goa [(2014) 6 Bom CR 434],
wherein the Hon’ble Bombay High Court relied on
Zelia M. Xavier Fernandes E. Gonsalves (supra) to
state that the elected member of the Panchayat
would have a pecuniary interest in the
construction license of her husband. The court held
that since the elected member of the Panchayat had
participated in the discussion relating to the issue
of renewal of the construction license to her
husband, she acted in contravention of Section 55
(4) and had therefore vacated her seat under Section
12 (1) (d) of the Goa Panchayat Raj Act, 1994.
The Commission has examined this proposition
of the Petitioner. It may be noted that the question
of disqualification of the Respondent is governed
by Article 191 (1) of the Constitution of India under
which a person may be disqualified for being a
member of the Legislative Assembly or the
Legislative Council of the State if he/she is so
disqualified under any law made by the Parliament.
The judicial decisions referred to by the Petitioner
pertain to state laws governing elections to local
bodies which are not applicable to the present case.
It is pertinent to note that Zelia M. Xavier
Fernandes E. Gonsalves (supra) is a case under
Section 10 (f) of the Goa Panchayat Raj Act, 1994
which states as under:
10. Disqualification for membership- A person
shall be disqualified for being chosen as, and for
being, a member of the Panchayat if, –
(f) he has directly or indirectly any share or
monetary interest in any work done by or to
the Panchayat or any contract or employment
with, under or by or on behalf of, the
Panchayat;
Section 9A of the Representation of the People
Act, 1951 states as follows:
9A. Disqualification for Government
contracts, etc. – A person shall be disqualified
if, and for so long as, 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 is evident that Section 10(f) of the Goa
Panchayat Raj Act, 1994 is wider than the law
contemplated under Sections 9A of the
Representation of the People Act, 1951 which seeks
to disqualify a person for having a subsisting
contract with the appropriate Government. Section
9A does not focus on ‘monetary benefits’ and
‘indirect share’ as done in Section 10(f) of the Goa
Panchayat Raj Act, 1994 above.
In Ranjeet Singh vs. Harmohinder Singh Pradhan
[(1994) 4 SCC 517], the Hon’ble Supreme Court
stated that:
On a plain reading, Section 9A of the Act requires
(i) That there must be subsisting contract
which has been entered into by the person whose
candidature is sought to be disqualified with the
Government;
(ii) That the contract is for the supply of goods
to the Government;
(iii) That the contract is for the execution of
any works undertaken by the Government.
Section 9A of the Representation of the People
Act, 1951 states that in order to disqualify a person,
there must be a ‘subsisting contract’ between the
concerned person and the appropriate Government
for supply of goods or execution of work. The
question of deriving indirect benefit is not a
condition contemplated by the provision. Hence, it
is essential to establish a direct connection
between the Respondent and the appropriate
Government in order to disqualify him under
Section 9A.
Therefore, even assuming that the Respondent
derives monetary benefits due to his wife’s position
as a shareholder in the Company, which has a
subsisting contract with the appropriate
Government, this in itself is not a sufficient criterion
for disqualification of the Respondent under Section
9A of the Representation of the People Act, 1951.
In this regard, it may also be noted that there is
nothing on record to show that Mrs. Asha Kamat
has ever been a Directory of the Company or holds
substantial shares of the company.
8. Conclusion
The Hon’ble Supreme Court in Kartar Singh
Bhadana v. Hari Singh Nalwa [(2001) 4 SCC 661]
has stated that:
8. Insofar as is relevant to a case where it is
alleged that a candidate holds a contract for the
execution of works undertaken by an appropriate
Government, Section 9-A requires (a) that there
should be a contract entered into by the
candidate; (b) that it should be entered into by
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him in the course of his trade or business; (c) that
it should be entered into with the appropriate
Government; (d) that it should subsist; (e) that
it should relate to works undertaken by that
Government; and (f) that it should be for the
execution of such works. The provisions of
Section 9-A disqualify a citizen from contesting
an election; a citizen may, therefore, be
disqualified only if the facts of his case squarely
fall within the conditions prescribed by Section
9-A.
The essential requirements for disqualification
under Section 9A require the Respondent to have
entered into a contract with the Government of Goa
which in the present case has not occurred.
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Hence, in view of the above discussion, this
Commission herby returns the present Reference
under Article 192 of the Constitution of India with
the Opinion that the Respondent, Shri Digambar
Kamat, Member of the Legislative Assembly of Goa,
has not incurred disqualification under Article
191(1) (e) of the Constitution of India read with
Section 9A of the Representation of the People Act, 1951.
Ashok Lavasa
Sunil Arora
Sushil Chandra
(Election
(Chief
(Election
Commissioner)
Election
Commissioner)
Commissioner)
Place: New Delhi
Date: 9-7-2020.