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.