Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Civil Appeal No. 210 of 1986, decided on 27th April, 1986.
(Against the judgment and order, dated 16th April, 1986 of the Election Tribunal Punjab, in Election Petition No. 82 of 1985).
‑‑ S. 64‑Jurisdiction of Election Tribunal ‑Election Tribunal can order recount of votes in appropriate cases and on satisfaction of requisite conditions.
Saunders' Words and Phrases Legally Defined Vol. 2; Sardar Muhammad Iqbal Khan Mokal's ‑ Law Terms and Phrases Judicially Interpreted ; Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and 2 others P L D 1966 S C 1 ; Col (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others P L D 1986 S C 178 ; Syed Saeed Hassan v. Pyar Ali and 7 others P L D 1976 S C 6 and Jurisdiction and Illegality by Amnon Rubinstein at p. 196 ref.
‑‑ Whether consent of parties confer jurisdiction on authority to a Court/Tribunal which law creating it did not confer on it.‑[Jurisdic tion].
Where a party to the proceedings before a Court or Tribunal enters into an agreement of its own free will for disposal of the matter, it cannot turn round and successfully plead that it had no legal right to consent, and the Court or Authority could not act on such consent and should not be allowed to do so. Doctrine of election, or approbation and reprobation comes to play where party enters into an agreement of its own free will for disposal of matter except where party denies having given consent, or pleads mistaken view of the situation or alleges to have been otherwise duped or taken in. This doctrine is applicable against party submitting to jurisdiction or to a procedure not specifically provided for in the law governing case.
Sh. Muhammad Anwar v. Sh. Sultan Muhammad Khan and another 1974 S C M R 371 ; Sardar Muhammad Ayub v Pakistan through Secretary. Ministry of Resettlement and Rehabilitation, Rawalpindi and others 1969 S C M R 96 (2) and Darvesh Khan v. Muhammad Sher Khan and others Civil Appeal No. 90 of 1985 ref.
-------S. 64‑Election Tribunal‑Power of review not included in power to entertain and dispose of appeal.
S. A. Rizvi v. Pakistan Atomic Energy Commission and another Civil Appeal K‑277 of 1980 and Abdul Wali M. J. Makhdoon v. Government of Sind and another Civil Appeal K‑278 of 1980 ref.
‑‑ Power of review is possessed and exercised not as a necessary adjunct of the powers to try a cause but as an exception to the principle of finality firmly embedded in judicial system.
S. A. Rizvi v. Pakistan Atomic Energy Commission and another Civil Appeal K‑277 of 1980 and Abdul Wali M. J. Makhdoon v. Government of Sind and another Civil Appeal K‑278 of 1980 ref.
----Order sought to be reviewed was passed on party's own under taking and assent‑Such order cannot be reviewed.
K.M.A. Samdani, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Appellant.
Raja M. Anwar, Senior Advocate Supreme Court for Respondent No. 1.
Date of hearing : 27th April, 1986.
Haji Muhammad Asghar, a Member of the National Assembly from Constituency No. 88, Lahore III, bas appealed under section 67 (3) of the Representation of Peoples Act, 1976 (hereinafter referred to as the Act) against the decision of the Election Tribunal, dated 16‑4‑1986 whereby an application filed by him "under section 151 and Order XLVII, rules 1 a d 2, C. P. C. for the Review/ Recalling of the order, dated 3‑2‑1986" passed by the same Election Tribunal was dismissed.
At the elections, the appellant was shown to have polled 28,212 valid votes whereas, respondent No. 1 to have polled 2,849 valid votes. There were eight other candidates contesting the elections who have all been impleaded as respondents who polled far less votes. The appellant was declared successful. The respondent No. 1 challenged his election by an election petition under section 52 of the Act. The following specific grounds were taken up by him in his Election Petition for getting a declaration of appellant's election being void and for declaring him, as the elected candidate, or, in the alternative for declaring the whole election void :‑
(i) That the car which was election symbol of respondent Amanat Ali, a candidate was absolutely identical with the election symbol (a bus) of the appellant, resulting in great confusion and diversion of votes of the petitioner thereby materially affecting the result, or rather vitiating the election itself.
(ii) Certain ballot‑papers cast in favour of the appellant contained definite marks of identification which should not have been counted in his favour.
(iii) Votes of dead persons (list attached) were cast, accepted and counted as valid votes.
(iv) Glaring mistakes are existing in consolidation of statements of the result in Corm XVI.
(v) Many people at the instance of respondent voted twice from different polling stations. This was arranged by the appellant in complicity with Polling Staff. The list of such persons who voted twice in different polling stations was attached.
(vi) The appellant indulged in corrupt practices by letting loose false propaganda of malicious defamation of the respondent No. 1 which materially affected the result of election.
The appellant denied all these allegations and challenged the right of the respondent No. 1 to raise them.
When the petition came up on 20‑11‑1985 the Election Tribunal record ed the following order.
"20‑11‑1985 Raja Muhammad Anwar, Advocate, for the Petitioner.
Ch. Muhammad Farooq, Advocate and Mr. Alamgir, Advocate for respondent No.1.
Mr. Faqir Muhammad Khokhar, Advocate for respondent No. 8.
The other respondents have not appeared in spite of notice. They shall be proceeded ex parte. The learned counsel for the petitioner has referred to paragraph 12 of the petition, according to which, he has alleged that Form. XVI had been incorrectly prepared and there are miscalculation in the results. He has in particular pointed out the calculation made with regard to the Polling Station No. 39 located at Government Boys Primary School, Qila Jewan Singh. The learned counsel states that the petition could be disposed of if the record of this Polling Station is requisitioned. It is directed that the entire polling record may be requisitioned for 9th December, 1985 for a recount.
Election Tribunal."
The proceedings of 9‑12‑1985 are recorded by the Election Tribunal as hereunder :‑‑
"9‑12‑1985. Raja Muhammad Anwar, Advocate.
Ch. Muhammad Farooq. Advocate.
Mr. Faqir Muhammad Khokhar, Advocate.
The record of election has been produced. The grievance of the petitioner regarding polling station 39 has been sorted out. It was pointed out by the petitioner that petitioner has been shown to have received 112 votes while the actual count was 312 in this polling station. Form XVI has been examined again. This was only a clerical error and the correct figure should have been 312, but even after counting the figures as 312 the total votes cast in favour of petitioner remains the same, viz. 28,049.
Votes obtained by Haji Muhammad Asghar respondent No. 1 were declared to be 28,210. The various figures relating to his column have also been calculated and the correct detail comes to 28,092. It still gives a lead of 43 votes to respondent No. 1.
Learned counsel for the petitioner has stated that he has been instructed by his client that there have been mistakes in certain other polling stations and he would like to move an application in this regard. Let him move an application within one week with a copy in advance to the learned counsel for respondent No. 1 who may submit his reply within a week of the receipt of the application. The applica tion and reply will be considered on the. next date of hearing.
The record may be returned to the Election Office.
To come up on 3‑2‑1986."
On 12‑12‑1985 the respondent No. 1 submitted an application expressed to be under section 151, C. P. C. read with section 39 of the Act praying as follows :‑
1. . . . . . . . . . .
2. That on the last date of hearing i. e. 9‑12‑1985, this learned Tribunal re‑counted the valid votes of the contesting candidates of Polling Station No. 39.
3. That after recounting, the votes of the respondents have been reduced to 28,092 and the difference is only of 43 votes.
4. That similarly, in Polling Stations of Burki Police Station, many invalid votes of the respondents have been counted and many valid votes of the petitioners have been counted in favour of the respon dents, and there is also mistake in calculation as was done in the case of Polling Station No. 39.
It is, therefore, prayed that Election Commissioner may be directed to recount the result of polling stations at serial Nos. 17, 18, 31 to serial No. 52 as given in the Form XVI of N. A. 88, Lahore‑8, in the presence of the parties."
The appellant contested it, inter alia, on the ground that the power of recount was enjoyed only by the Returning Officer and Election Com missioner, that section 151 of C. P. C. and 39 of the Act were not available to the Election Tribunal for undertaking a recount.
When this application came up before the Election Tribunal on 3‑2‑1986 in the presence of the contesting parties, the following order was recorded : ‑
"3‑2‑1986. Raja Muhammad Anwar, Advocate.
Ch. Muhammad Farooq, Advocate.
Mr. Faqir Muhammad Khokhar, Advocate.
The parties have agreed that entire votes cast in favour of the petitioner and respondent No. 1 be recounted again in their entirety, In this connection a committee is constituted beaded by Mr. Abdul Aziz, Election Commissioner. Punjab. The other member of the Com mittee will be Mr. Muhammad Hamid, Registrar of the Tribunal. The committee is charged with the function of recounting the votes in the presence of the parties and their learned counsel or their representatives. The recount will be conducted in the office of the Election Commission on 19‑2‑1986, to be completed as soon as possible and report submitted to this Tribunal on 26‑2‑1986. The committee is directed to keep apart the votes regarding which either of parties has any objection. These votes can be re‑examined by the Tribunal and decision given.
To come up on 2‑3‑1986."
A fortnight after, that is, on 17‑2‑1986, the appellant through a different counsel submitted an application expressed to be "under section 151 and Order XLVII, rules 1 and 2, C. P. C. for the Review/Recalling of the order, dated 3‑2‑1986". The main submission in this application were that the Election Tribunal had absolutely no jurisdiction to order a recount, that agreement of the parties could not confer jurisdiction, and if it could, the entire Election petition was liable to be dismissed on the agreement reflected in orders, dated 29‑11‑19.5 and 9‑12‑1985. The appellant also expressed the apprehension that "the ballot bags have already been tampared with. In fact according to the Applicants' information Form XVI in respect of Polling Station No. 39 is missing from record."
In rejecting this application of the appellant the Tribunal held that. it had the jurisdiction to order recount in appropriate cases and further that "the arithmetical errors actually found in Form XVI should justify further probe".
Mr. K. M. A. Samdani, the learned counsel for the appellant, has taken up the following grounds for establishing the competency of this appeal and the merits thereof :‑
(i) The expression "a decision" used in subsection (3) of section 67 instead of the expression "the decision" has the effect of enlarging the category of decisions against which an appeal can be filed and such an enlargement is well beyond what is enumerated in its sub sections (1) and (2).
(ii) The order challenged by the appellant qualifies in every respect the definition and description of "a decision" and hence is appeal able. Reference in the context was made by the learned counsel, to the definition of the word "decision" as contained in Saunders' Words and Phrases Legally Defined Vol. 2 and Sardar Muhammad Iqbal Khan Mokal's Law Terms and Phrases Judicially Interpreted.
(iii) The consent of the parties is admittedly incapable of conferring jurisdiction or authority on a Tribunal which the law creating it did not confer on it. By reference to the scheme of the Act and other provisions on the subject it is sought to establish that the Election Tribunal had absolutely no power whatsoever under the law to order a recount of votes. The final authority to do so concluded with that of the Election Commissioner.
(iv) The decisions of the Supreme Court in Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and 2 others P L D 1966 S C 1 and Col. Reid. Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others P L D 1986 S C 178 require reconsideration and reinterpretation with a view to limit and contain the power of the Election Tribunal to direct a recount, if at all such a power is possessed.
(v) Even if such an agreement and consent of the parties was to prevail, the earlier agreement by which a review of the ballot‑papers and the returns prepared at one Polling Station was undertaken should have concluded the matter and it should not have been further enlarged by another agreed arrangement permitting a roving inquiry.
(vi) As regards the competence of the review petition itself from which this appeal has been preferred, as the order based on consent of the parties went beyond the jurisdiction of the Election Tribunal and was a nullity a request for its recall or withdrawal could be made, particularly so as section 64 of the Act confers on the Tribunal and still keeps intact "all the powers of a civil Court trying a suit under the Code of Civil Procedure".
We do not propose to adjudicate in this appeal on the question whether the right of appeal under subsection (3) of section 67 of the Act is as wide as the learned counsel for the appellant contends or, is restricted to the matters specified in subsection (1) thereof. Further, w: are not convinced of the contention that in no case the Election Tribunal can order a recount of votes. On the other hand the. law laid down by this Court in Mian Jamal Shah's case followed by Syed Saeed Hassan v. Pyar Ali and 7 others (PLD1976SC6) and in Col. Mukhtdr's case recognizes such a jurisdiction and power of the Election Tribunal in appropriate cases and on satisfaction of the requisite conditions. This being clear, the law on the subject of jurisdiction of Authorities and Tribunals has been summarised in the following words relevants to the matter under discussion in Jurisdiction and Illegality by Amnon Rubinstein at page 196 :‑
"The party may be precluded, under certain circumstances, from raising an objection as to jurisdiction. This situation will probably arise where jurisdiction depends on facts within the knowledge of the party which he failed to bring to the‑ attention of the Court. Moreover, even if the party has no such knowledge, but has materially benefited from the disputed proceedings, he may precluded from 'attacking it while he is still in the enjoyment of the benefit. Some American decisions seem to go even further parties have been estopped from contesting void proceedings, where they have submitted to the jurisdiction of the tribunal and have consequently brought about a change in their adversaries position which cannot be remedied except by holding the proceeding valid;
Where a party to the proceedings before a Court or Tribunal enters into an agreement of its own free will for disposal of the matter, it cannot p turn round and successfully plead that it had no legal right to consent,' and the Court or Authority could not act on such consent and should not be allowed to do so. It is not the case of the appellant that he did not consent, or bad a mistaken view of the situation or was otherwise duped or taken in. These are the cases where the doctrine of election, of approbation and reprobation, comes into play. This Court has applied it against the party submitting to jurisdiction, or to a procedure not specifically provided for in the law governing the case. The cases in point are Sh. Muhammad Anwar v. Ch. Sultan Muhammad Khan and another (1974SCMR371), Sardar Muhammad Ayub v. Pakistan through Secretary, Ministry of Resettlement and Rehabilitation, Rawalpindi and others (1969 S C M R 96(2)) and Darvesh Khan v. Muhammad Sher Khan and others (Civil Appeal No. 90 of 1985, decided on 7‑10‑1985).
The contention that the Election Tribunal, was possessed of the Power of review on the strength of section 64 of the Act. is untenable because the power of review is possessed and exercised not as a necessary adjunct of the power to try a cause but as an exception to the principle of finality firmly embedded in the judicial system. A similar question arose recently in S. A. Rizvi v. Pakistan Atomic Energy Commission and another Civil Appeal K‑277/80 and Abdul Wali M. J. Makhdoon v. Government of Sind and another Civil Appeal K.277/80. The law provided that the Service Tribunal "shall, for the purpose of deciding any appeal be deemed to be a civil Court and shall have the same powers as are vested in such Court under Civil Procedure Code". Power of review was held not to be included in the power to entertain and dispose of the appeal. Besides, as the order sought to beg reviewed by the appellant was passed on his own undertaking and assent there was no occasion to get it reviewed. The impugned order, in such al context, suffers from no legal infirmity. As regards 'the contention that the earlier arrangement should have been given effect to and not allowed to be substituted, the same reasoning applies. It was for the appellant not to have substituted one arrangement by another. Having so done, the appellant cannot insist that the first agreed arrangement should be taken to be the final one for the purposes of disposing of the Election Petition. We find no merit in this appeal which is dismissed with costs.
M.B.A. Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer