Shirish Q. Kamat vs His Excellency Hon'ble Governor of Goa

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 239

IN THE HIGH COURT OF BOMBAY AT GOA
M.S. Sonak, R.N. Laddha, JJ.
Mr. Shirish Q. Kamat – Appellant
Versus
His Excellency Hon'ble Governor of Goa, and Others – Respondents
Stamp Number Main No.1776 of 2020 (Filing No.)
Decided On : 08-02-2022

Advocate Appeared:
For the Appellant :Mr. Nigel Da Costa Frias, Ms. Barbara Andrade, and Mr. Vishal Sawant, Advocates
For the Respondent:Mr. P. Faldessai, Assistant Solicitor General of India, Mr. Deep Shirodkar, Additional Government Advocate, Mr. S. R. Rivankar, Senior Advocate with Mr. Rama G. Rivankar, Advocate, Mr. Parag Rao with Ms. Meghana Naik, Advocates

Headnote:(A) Constitution of India - Articles 191(1)(e) and 192(2) - Representation of the People Act, 1951 - Section 9-A - Petition challenging disqualification of an elected representative - Petition barred by limitation for challenging the decision of the Governor beyond 8 weeks from the date of the decision - Governor has no power to review his decision under Article 192 - Proceedings must focus on supervening disqualifications - Findings that respondent was not disqualified as the contract in question was not entered into by him. (Paras 66, 119)

(B) Limitation - Relevant provisions must be strictly adhered to; delays undermine the integrity of electoral processes. (Paras 30, 39)

Facts of the case:
The petitioner challenged the Governor's orders dismissing his petitions regarding the disqualification of the respondent, a member of the Legislative Assembly, based on alleged pre-existing disqualifications under the RP Act due to government contracts. The timelines for filing were critical as previous petitions were dismissed on merit and beyond the prescribed limitation period. (Paras 4, 7, 19)

Findings of Court:
The court held the challenge to the petition regarding a pre-existing disqualification was not maintainable, and the petitioner's delay in filing was excessive, rendering it void. The Governor lacked review powers under the Constitution regarding disqualifications initiated prior to the electee's nomination. (Paras 119, 70)

Issues: The main legal issues involved whether the petitions were filed within the limitation period and whether the Governor could review his decisions. (Paras 29, 119)

Ratio Decidendi: The court ruled that the time limits prescribed by the Supreme Court must be adhered to, and that only supervening disqualifications could be addressed under Article 192. The respondent did not incur disqualification based on contracts entered into by a third party. (Paras 66, 119)

Result: Petition dismissed. (Para 120)

Table of Content
1. initial procedural hearing. (Para 1 , 2 , 3)
2. factual basis for disqualification claims. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14)
3. petitioner's arguments and legal basis. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28)
4. court's initial evaluation of limitation. (Para 29 , 30 , 31 , 32 , 33 , 34)
5. supreme court guidelines on timing. (Para 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42)
6. details surrounding review and limitation. (Para 43 , 44 , 45 , 46)
7. limitations on governor's powers. (Para 47 , 48 , 49 , 50 , 51)
8. limitations on review powers of executive. (Para 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60)
9. judicial review is limited and defined. (Para 61 , 62 , 63 , 64 , 65 , 66)
10. maintainability of review petition discussed. (Para 67 , 68 , 69 , 70 , 71 , 72)
11. pre-existing disqualification vs supervening. (Para 73 , 74 , 75 , 76 , 77 , 78)
12. authority of governor regarding disqualification. (Para 79 , 80 , 81 , 82 , 83)
13. interpretation of disqualification provisions. (Para 84 , 85 , 86 , 87 , 88 , 89)
14. historical context of disqualification laws. (Para 90 , 91 , 92 , 93 , 94)
15. strict interpretation of disqualification provisions. (Para 95 , 96 , 97 , 98 , 99 , 100)
16. conclusions on allegations against respondent no.4. (Para 101 , 102 , 103 , 104 , 105 , 106)
17. final analysis of all presented evidence. (Para 107 , 108 , 109 , 110 , 111 , 112 , 113 , 114 , 115 , 116)
18. summary of judgment and dismissal. (Para 117 , 118 , 119 , 120)

JUDGMENT :

M. S. Sonak, J.

1. Heard the learned counsel for the parties.

2. Rule. The rule is made returnable forthwith at the request and with the consent of the learned counsel for the parties. Even otherwise, we had made it clear that this petition will be disposed of finally having regard to the timeline set out by the Hon'ble Supreme Court in Election Commissioner of India Vs Bajrang Bahadur Singh and others, 2015 (12) SCC 570.

3. This petition was instituted on 01.12.2020 and taken up before the learned Single Judge until 27.01.2022. On this date, the learned Single Judge after noticing the directions in paragraph 67 of Bajrang Bahadur Singh (supra) directed the registry to place this matter before the Division Bench. Accordingly, this matter was taken up by the Division Bench on 31.01.2022 and with the consent of the learned counsel for the parties, the matter was posted for final disposal on 01.02.2022 at the end of the admission board subject to overnight part-heard matters. The matter was then heard extensively on 01.02.2022 and 02.02.2022 and reserved for orders.

4. The petitioner, by instituting this petition under Articles 226 and 227 of the Constitution of India challenges the following orders:-

(b) The order dated 04.08.2020 made by His Excellency Governor of Goa, dismissing the petitioner's petition seeking review of the aforesaid order dated 09.09.201

PLEADINGS AND INTRODUCTORY FACTS

5. The elections to the Goa State Legislative Assembly for the term March 2017-March 2022 were held in the months of February-March 2017. The last date for filing the nominations was 04.02.2017. Respondent No.4 was elected as MLA from Margao Constituency in March 2017.

6. On 28.04.2017, the petitioner instituted a petition before H. E. Governor of Goa seeking a declaration that respondent No.4 stands disqualified in terms of Article 190(3)(a), 191(1)(a) read with Sections 8 -A and 9-A of the Representation of the People Act, 1951 (RP Act). The invocation of ground under Section 8 -A of the RP Act does not appear to have been pursued and in any

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2022 Supreme(Bom) 239

IN THE HIGH COURT OF BOMBAY AT GOAM.S. Sonak, R.N. Laddha, JJ.Mr. Shirish Q. Kamat – AppellantVersusHis Excellency Hon'ble Governor of Goa, and Others – RespondentsStamp Number Main No.1776 of 2020 (Filing No.)Decided On : 08-02-2022

Cases Referred (26)

IN THE HIGH COURT OF BOMBAY AT GOA
M.S. Sonak, R.N. Laddha, JJ.
Mr. Shirish Q. Kamat – Appellant
Versus
His Excellency Hon'ble Governor of Goa, and Others – Respondents
Stamp Number Main No.1776 of 2020 (Filing No.)
Decided On : 08-02-2022