2006 PLP 8 (YLR)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel for the petitioner contends that respondent No.2 is not qualified to contest election on the ground that he is not in possession of `Sanad' equivalent to matriculation certificate, as he has not passed the three required subjects. He also submits that Madrissa which issued the `Sand' is not recognized by the University Grants Commission. The learned counsel had raised an objection before the learned Returning Officer but his objection was dismissed and nomination papers of respondent No.2 were accepted. The petitioner filed a time-barred appeal which was dismissed on this ground, the learned District Returning Officer noted that the appeal was not filed according to the election schedule. The learned counsel has referred to 2002 SCMR 1902. In the said judgment, the effect of time-barred appeal was considered by the Hon'ble Supreme Court, in a different context and subject. It was held that there is no bar in law for the parties to agree for the settlement of their disputes by arbitration even though the claim involved may be barred by time. I am afraid that the present writ petition is distinguishable on facts as well as legal plane. The matter discussed in the above judgment of the Hon'ble Supreme Court related to arbitration, whereas, present petition relates to election. In the present case, the learned counsel has invoked Article 199 of the Constitution. Article 199 can be invoked when there is no remedy provided under the law. In the present case, the law provides remedy of tiling appeal against the orders of the Returning Officer. The petitioner filed appeal after the expiry of the time provided for which he cannot claim bonus. An act provided under the law has to be done in a manner as required under the law only. Since time was fixed for filing the appeal and if the petitioner failed to file appeal within the time, it would amount not availing the remedy provided under the law. It has been my consistent view that if the writ petition is filed or Article 199 of the Constitution is invoked without availing the remedy of filing appeal, the writ is not maintainable. The learned counsel for respondent No.2 has produced a Notification of the University Grants Commission dated 17-11-1992, which provides a list of recognized Institutions. Wafaq ul Madaras Al Salfia, Pakistan is included in that list, therefore, I do not agree with the learned counsel for the petitioner that Wafaq ul Madaras Al Salfia, Pakistan, which has issued Sanad to respondent No.2 is not recognized. The learned counsel for the respondent has also produced Sanad of Shahadatul Arbia Fil Aloomul Arbia Wal Islamia, Al Shahadatul Alia Fil Aloomul Arbia Wal Islamia, Shahadatus Sanvia Tul Khasa Fil Aloomul Arbia Wal Islamia and Shahadatus Sanvia Tul Aama Fil Aloomul Arbia Wal Islamia. In view of non-filing of appeal in time, this writ petition is disposed of, with observation that petitioner may avail remedy, still available, of filing an election petition under rule 65 to be read with rule 76 of the Punjab Local Government Election Rules, 2005, on the same grounds, which will remain available to the petitioner. With the above observation, this petition is disposed of. M.B.A/M-1268/L Order accordingly.