MUHAMMAD BASHIR Versus ELECTION TRIBUNAL

ORDER

ZIA MAHMOOD MIRZA, J. ‑‑‑Petitioner and Ali Haider respondent No.3 herein contested election for membership of Union Council, Langrial, Tchsil Kharian from Halqa No.3, Outab Golra. Petitioner secured 228 votes as against 242 votes of respondent No.3. Six votes each of the petitioner and the respondent were rejected. Respondent No.3 was accordingly declared elected.

2. Feeling aggrieved, petitioner filed an election petition under section 24 of the Punjab Local Government Ordinance, 1979 wherein he challenged the election of the respondent on a number of grounds. However, during the course of hearing of the election petition, petitioner's counsel made a statement on 26‑4‑1988 that he wanted only re‑counting of the votes and did not press any other plea. His further statement was that the election petition be decided on the basis of the result of recounting. Counsel for the respondent accepted this proposition. Learned Election Tribunal, therefore summoned the election record for 29‑5‑1988. Recounting, however, actually took place on 29‑6‑1988 when the learned Election Tribunal examined/scrutinized all the ballot‑papers valid and invalid/rejected, in the presence of both the parties and their counsel and found that the petitioner's total valid votes were 217 whereas the respondent had obtained 221 valid votes. With this result of the recounting, the election of the respondent was upheld and the petitioner's election petition dismissed vide order dated 29‑6‑1988. This order of the Election Tribunal has been brought under challenge in this Constitution petition.

3. We have heard the learned counsel for the petitioner and perused the original record. learned counsel has not questioned the afore noted result of recounting qua the number of valid votes obtained by each party but his contention is that the petitioner's counsel before the Election Tribunal had no authority to make the statement abandoning the pleas taken in the election petition and to state that the fate of the election, petition be decided by recounting the votes only. In the submission of the learned counsel, since the petitioner had not authorised his 'counsel to have the election petition decided on the basis of recounting of votes only, he was not bound by his counsel's unauthorised statement and consequently the impugned order of the Election Tribunal was of no' legal effect. In support of his submission, learned counsel has referred to Thenal Ammal and another v. Sokkammal and others AIR 1918 Madras 656 and Keshav Ramkrishna Bhatt Phadke v, Subba Manga Naik and others AIR 1939 Bom. 490. These cases are of no help to the petitioner as they proceeded on their own peculiar facts. In both the precedent cases, it was held with reference to the terms/contents of the 'Vakkalatnama' that the counsel was not given any authority to negotiate and settle the terms of compromise and, therefore, he had no authority to enter into the compromise without reference to his clients. In both the cases, it was noted that the 'Vakalatnamas' empowered the counsel only to sign the compromise petition. It was, therefore, held that the counsel had no authority to enter into the compromise. The burden of these judgments .appears to be that a counsel can act only within the authority given to him by his client. Now in the instant case, on perusal of the 'Vakalatnama' given by the petitioner available on the original record, we ‑find that the petitioner's counsel before the Election Tribunall was clothed with extensive powers. He was specifically authorlised to make 'any statement so as to have the matter decided through arbitration, compromise' or on oath and also to file concessional written statement. The precise terms of the authority as contained in the 'Vakalatnama' are as follows:‑‑

In our view, the statement made by the petitioner's counsel' that the election petition be decided by recounting the votes only was within the scope of his authority conferred on him in the 'Vakalatnama'. It is, therefore, not available to the petitioner to contend that he was not bound by the said statement of his counsel. It may also pertinently be observed that the recounting of the votes is shown to have taken place in the presence of the petitioner yet he took no objection thereto. For this reason also, he is precluded. from disputing the authority of his counsel to agree to the decision of the election petition on the I basis of recounting of the votes.

4. Upshot of the above discussion is that the impugned order of the Election Tribunal does not warrant any interference more so in discretionary writ jurisdiction of this Court. This petition, therefore, fails and is dismissed in limine.

A.A./M‑488/L

Petition dismissed.