M. TABASSUM AFTAB ALVI, C.J.--- The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby following prayer is made:-- "i. That the petitioners may very graciously be declared eligible/ entitled to grant of pension as Former Members, of Legislative Assembly like other Members who are receiving the Pension under Section 12-C of the AJ&K Legislative Assembly (Salaries, Allowance Privileges and Pension of the Members) Act, 1975.
II. That respondents be directed to make necessary amendments according to the orders of the worthy Prime Minister dated 12.03.2612, 07.05.2014, 22.06.2015, 25.06.2015 and 16.05.2017 in the AJ&K Legislative Assembly (Salaries, Allowances Privileges and Pension of the Members) Act, 1975 for eligibility and entitlement of petitioners to become Member of the above fund as defined in clause (cc) and clause (ff) of subsections (1) and (ii) of section 2 and all enabling provisions regarding pension benefits of the above said Act, 1975.
11. That clause (ff) of subsection (ii) of section 2 of the Azad Jammu and Kashmir Legislative Assembly (Salaries, Allowances Privileges and Pension of the Members) Act, 1975, may kindly be declared against the provision of subsection (IS) of section 4 of the Interi m Constitution, 1974 and set aside the same as being contrary to the fundamental right of petitioners guaranteed by the Interim Constitution Act, 1974."
2. Precise facts culminating into filing of the instant writ petition are that petitioners remained Members of Azad Jammu and Kashmir Legislative Assembly at different times, since 1985 to 2001. The Government-respondent established a fund through legislation known as AJ&K Legislative Assembly Memb ers, Welfare Fund Act, 2003, to facilitate Members of the Azad Jammu and Kashmir Legislative Assembly and for providing them regular monthly grant. To provide pension to former Members of Legislative Assembly , who paid monthly contribution during their term to the pension Fund another enactment called as AJ&K Members Pension Fund (Amendment) Act, 2006, was promulgated. Through the aforesaid amendment word "welfare" was substituted with the word "pension". The Amendment Act, 2006, was given effect from 1st July, 2005. It is maintained that in the year 2008, a new Act called as "The AJ&K Legislative Assembly Mem bers Pension Fund Act, 2008", was enacted and it was given effect from 1st January , 2003. According to section 8 of Act, 2008, Act, 2003, and (Amendment) Act, 2006, were repealed and for carrying out the purposes of Act, 2008 , ibid, rules known as AJ&K Legislative Assembly Members Pension Fund Rules, 2008, were framed, However , in the year 2014, AJ&K Legislative Assembly (Salaries, Allowances and Privileges of Members) Act, 1975, was amended through an Act called as the "AJ&K Legislative Assembly Salaries, Allowances, Privileges and Pension of the Members (Amendment) Act, 2014. While restoring the welfare fund under section 12-A pension benefits were made part of the Act, 1975 and according to section 15 of the above mentioned Act, AJ&K Legislative Assembly Pension Fund Act, 2008, was repealed. After commencement of the Act, 2008, petitioners submitted applications to the Prime Minister Azad Government of the State of Jammu and Kashmir for making necessary amendments to extend benefits of pension to former Members of Legislative Assembly including petitioners. The Law Department-respondent No,5, in this regard moved a summary for approval to Government. The petitioners submitted another application to the Prime Minister on 7th May, 2014. As a result, the Prime Minister of the time also recommended necessary amendment, in the above said Act, vide order dated 25th June, 2015. In compliance of the aforesaid order , Law Department-respondent No,5, wrote a letter to Assembly-respondent No,2, on 15th July, 2015, for providing additional budg etary expenditures for making payments to former Members of Legislative Assembly and also for financial concurrence of Finance Department- respondent. The petitioner No,1, submitted an application before Speaker Legisla tive Assembly-respondent No,3, for collection of contribution, however , needful could not be done, hence, the instant constitutional petition.
3. The writ petition has been resisted by respondents through written statement, wherein, it is pleaded that petitioners are not aggrieved persons who failed to point out any infringement of their legal grievance so as to invoke constitutional jurisdiction of this Court. It is maintained that petitioners never remained Members of Welfare Fund, therefore, pensionary benefits could not be extended to them as per law, The other contents of writ petition have also been refuted. who submitted for dismissal of writ petition.
4. Kh. lmtiaz Ahmed, Advocate, appearing on behalf of petitioners vehemently argued that petitioners were admittedly elected Members of the Azad Jammu and Kashmir Legislative Assembly prior to 2003, who being State Subjects and former Members of Legislative Assembly , have equal right to take benefits of the Act, 2008, like other Members. He further argued that the aforesaid Act, 2008, was enacted on 27th June, 2008, which was given retrospective effect from 1st January 2003, through which, petitioners who remained Members of Assembly prior to 2003, were deprived from their legal right of pension without assigning any lawful justification hence were discriminated against warranting interference of this Court. He further contended that all State Subjects are equal before law, therefore Act, 2008, be given retrospective effect from 1985, so that petitioners may be extended benefits of pension. The learned counsel in support of his contentions referred to and relied upon the following case law:-- i. Mohabat Khan and 77 others v . Road T ransport Board, N.W .F.P Peshawar and 4 others [ 1993 SCMR 833 ]. ii. Akhtar Munir v . Secretary Home and. T ribal Affairs KPK, Peshawar and others [ 2016 MLD 999 ]. iii.Suleman Daud v . Lahore Development Authority [ 2008 CLC 1251 ]. iv. Rafiq Ahmed T ahir v . House Building Finance Corporation and another [ 2001 YLR 38 ].
In case of Mohabat Khan and 77 others , supra, it was held by the Apex Court of Pakistan that Article 25 of the Constitution of Pakistan ordains that all citizens are equal before law and are entitled to equal protection of law.
State, however , is not prohibited from making reasonable classification for extend ing protection. In the aforesaid precedent case drivers and conductors worked in a workshop administered by Road Transport Board retired prior to 07.04.1988, solicited old age benefits as per old Age Benefits Act, 1976. The case was however , remanded by the Court to General Manger N.W.F.P. Road Transport Board to re-examine the issues raised by the employees also hear the departmental point of view and render afresh decision in accordance with law .
In case of Akhtar Munir , ibid, it was held by Division Bench of the Peshawar High Court, that policy should not be meant to compensate only those persons who have come to a certain loss after promulgation of Policy and others hailing from FATA who too, sustained losses prior to enforcement of policy would be entitled to compensation amount as per compensation Policy .
In Suleman Daud's case, it was held by .the Lahore High Court, Lahore. that persons in similar circumstances should have similar treatment, unless differentiation is based upon valid classification, which should not have taint of arbitrariness and that is the hallmark of ideal dispensation of justice.
In Rafiq Ahmed Tahir's case the Lahore High Court, Lahore, pointed out discriminatory procedure adopted by the institutions declaring that it was violative of Art.25 of the Constitution.
5. Raja Ayyaz Ahmed, the learned Assistant Advocate General, while controverting arguments of the learned counsel for petitioners submitted that according to the Azad Jammu and Kashmir Legislative Assembly (Salaries, Allowances, Privileges and Pension of the Members, (Amendment) Act, 2014, only those persons are entitled to pension, who are or have been Members of Assembly , including Speaker , Deputy Speaker , Ministers and Parliamentary Secretary in its term after 1st January , 2003. He further contended that as per subsection (1) of Section 3 of the Azad Jammu and Kashmir Legislative Assembly Members Welfare Fund Act, 2003, those Members are not entitled to pension who did not remain Members of Welfare Fund. He added that petitioners remained Members of Assembly prior to the aforesaid Act, 2003, therefore, they are not entitled to any relief under law, hence, craved for dismissal of writ petition.
6. We have perused the contents of writ petition and examined the appended documents with utmost care.
7. Admittedly , petitioners remained Members of Azad Jammu and Kashmir Legisla tive Assembly at different times, prior to 2001. As per record, Government-respondent, established a fund throu gh legislation known as AJ&K Legislative Assembly Members, Welfare Fund Act, 2003, to facilitate Members of the Azad Jammu and Kashmir Legislative Assembly to provide them regular monthly grant. However , to provide pension to former Members of Legislative Assembly , who remained Members of Assembly and paid monthly contribution during their term to the pension fund, another enactment called as AJ&K Members Pension Fund (Amendment) Act, 2006, was promulgated Through the aforesaid amendment word "welfare" was substituted with the word "pension". The Members Pension Amendment Act, 2006, was given effect from 1st July, 2005 It appears that in the year 2008, a new Act, called as "The AJ&K Legislative Assembly Members Pension Fund Act, 2008" was enacted, which was given effect from 1st January , 2003. According to section 8 of the said Act, 2008, Act, 2003, and (Amendment) Act, 2006, were repealed and for carrying out the purposes of the Pension Fund Act, 2008, rules known as AJ&K Legislative Assembly Members Pension Fund Rules, 2008, were framed. However , again in the year 2014, AJ&K Legislative Assembly (Salaries, Allowanc es and Privileges of Members) Act, 1975, was amended through an Act called as the "AJ&K Legislative Assembly Salaries, Allowances, Privileges and Pension of the Members (Amendment) Act, 2014. While restoring the welfare fund under section 12-A pension benefits were made part of the Act, 1975 and according to section 15 of the supra Act, Act, 2008, was repealed. After commencement of the Azad Jammu and Kashmir Legislative Assembly Pension Fund Act, 2008, petitioner-Syed Manzoor Hussain Shah, submitted an application to the Prime Minister Azad Govt. of the State of Jammu and Kashmir on 12th March, 2012. for making necessary amendments to extend benefits of pension to former Members of Legislative Assembly . Similar applications were moved by petitioner No,1, before the Prime Minister on 7th May, 2014, 22nd June, 2015, 25th June, 2015 and 17th May, 2017, respectively . The Act, 2008, was admittedly , given effect from 1st January , 2003. The relevant extract of section 1, of the aforesaid Act, speaks as follows:-- "1. Short title, application and commencement.--- (1) This Act, may be called the Azad Jammu and Kashmir Legislative Assembly Members Pension Fund Act, 2008.
(2) ..........................................
(3) It shall take effect from and on the date of 1st of January , 2003.
2 ...........................................
3 ........................................
4 .......................................
The petitioners, who remained Members of the Legislative Assembly since, 1985 to 2001, solicited retrospective effect of the supra Act, from 1985. It is fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act. The aforesaid proposition came under consideration before the Apex Court of Pakistan in case titled Zila Council Jehlumthrou Officer v. Messrs Pakistan Tobdacco Company Ltd. and others [PLD 2013 SC 3981. At page 405, of the report, it was held as under:-- " ...........Although the legislature can legislate prospectively and retrospectively , such power Is subject to certain constitutional and judicially recognized restrictions. According to the canons of construction, every statute including amendatory statutes is prima facie prospective, based on the principle of nova constitutlo futuris formam imponere debit, non-praeteritis (which means 'a new law ought to regulate what is to follow , not the past' as per Osborn: concise Law Dictionary); unless it is given retrospective effect either expressly or by necessary implication.
In other words, a statute is not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute is to affect vested rights, past and closed transactions or facts or events that have already occurred..... "
The same view was expressed by the Hon'ble Supreme Court of Pakistan in case titled Zakaria H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth, Range-II, Karachi [2003 SCMR 271], wherein, at page 275, of the report, it was opined as follows:-- "Admittedly , the question was of very important/vital nature, therefore, it may have been attended to, keeping in view the provisions of Finance Act (VII of 1992) in pursuance whereof section 17-B was inserted after section 17-A in the Wealth Tax Act, 1963 and the Finance Act was applied at once as per its section 1. The learned High Court may have examined the question of the application of section 17-B Wealth Pax Act, 1963, concerning its effect retrospectively or prospectively by applying the principle of interpretation of statutes namely where any statute effects substantive right it would operate prospectively unless by express enactment or necessary intendment, retrospective operation has been given....."
An identical view was expressed by the Lahore High Court, Lahore, in titled Raja Muhammad Sadio v. Water and Power Development Authority (PLD 1974 Cr ,LJ 231 (sic)]. At page 746, of the report, it was observed as below:-- "One of the accepted principles regarding the application of a notification and the Statute is that it is always prospective, however , it is open to the Legislature to make it retrospective, but that intention had to be express...."
The legislature have given effect to Act, 2008, since, 1st January , 2003, therefore, we are of the considered view that this Court cannot give further retrospective ef fect to the aforesaid Statute as per jurisprudence.
8. A perusal of record reveals that throu gh section 14 of the Azad Jammu and Kashmir Legislative Assembly (Salaries, Allowances, Privileges and Pension of the Members) Act, 2014, sections 12-A to 12-M were added, As per section 12-A, of, the Act, there shall be established a Fund to be called the Azad Jammu and Kashmir Legislative Assembly Members Welfare Fund which shall be raised by contribution of all Members of the Assembly .
The money credited into the Fund shall become part of the Azad Jammu and Kashmir consolidated Fund which shall be maintained by the Accountant General, who shall pay pension to Members who regularly contributed to the Fund. The aforesaid section is reproduced as under:- (12-A) Fund 1. There shall be established a Fund to be called the Azad Jammu and Kashmir Legislative Assembly Members Welfare Fund which shall be raised by contribution of all Members of the Assembly as given under this Act.
(2) The money credited into the Fund shall become part of the Azad Jammu and Kashmir consolidated Fund which shall be maintained by the Accountant General.
(3) The Accountant General shall pay pension to former Members Welfare Fund who has regularly contributed to the Fund in accordance with the procedure laid down under this Act."
Likewise according to section 12-B of the Act, 2014, every Member Welfare Fund during his first term of membership shall pay rupees twenty thousand as membership fee of the Fund and rupees five thousand per month during every term of his membership of the Assembly . The aforesaid amount shall be deducted from salary of Member W elfare Fund. The aforesaid section speaks as under:- "12-B. Contributions . (1) Every Member Welfare Fund during his first term of membership shall pay rupees twenty thousand as membership fee of the Fund and rupees five thousand per month during every term of his membership of the Assembly .
(2). The amount referred in subsection (1) shall be deducted from the salary of Member Welfare Fund and credited/transferred to the Fund by the Accountant General."
As per section 12-C of the Act, 2014, every Member Welfare Fund shall be entitled to receive pension of rupees fifty thousand per month. The aforesaid section is reproduced below: - "12-C. Payment of pension to Members.--- (I). Every Member Welfare Fund shall be entitled to receive pension of rupees fifty thousand per month."
The petitioners admittedly never remained Members of Welfare Fund, therefore, keeping in view crystal clear provisions of the Statute, they cannot claim pension accordingly . The matter ex-facie seems as become past and closed transaction.
9. The term Member Welfare Fund has been defined under clause (ff) of Section 2 of Members (Salaries, Privileges and Pension) Act, 2014, which speaks as under:- "[(ff) "Member Welfare Fund" means a Member who is or has been a Member of Welfare Fund during his term as a Member , Parliamentary Secretary , Minister , Deputy Speaker and Speaker .]"
As petitioners neither remained Members of the aforesaid Welfare Fund nor paid any contribution to Welfare Fund, therefore, according to our considered view no relief can be extended to them as per law .
10. A perusal of record reveals that the AJ&K Legislative Assembly Members Welfare Fund Act, 2003, was assented to by the President of the State of Jammu and Kashmir on 30th Septem ber, 2003. As per subsection (3) of Section 1 of the Act, it came into force at once. The petitioners admittedly did not challenge the aforesaid Act.
Likewise, Legislative Assembly Pension Fund Act, 2008, was enacted on 27th June, 2008, which was given effect from 1st January , 2003, The petitioners who remained Members of Assembly prior to 2001, remained mum for pretty long time and after about a decade petitioner No,1 moved repeated applications before the Prime Minister Azad Government of the State of Jammu and Kashmir for amendments in the Act, 2008. The instant writ petition, however , has been tiled on 27th February , 2018, after about 15 years of the Act, 2003, therefore, same is also hit by doctrine of laches. The principle of laches was considered by the Hon'ble Supreme Court in case titled Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan and others (1995 MLD 1350 ) wherein, at pages 1359 and 1360 of the report, it was opined as under:-- "The next point which needs resolution is as to whether in the instant case the explanation by the petitioners respondents that they filed the writ petitions after delay because they were waiting for the outcome of the writ petitions filed by other land owners referred to above is a valid explanation. We have given our due consideration to the matter and we have come to the conclusion that the petitioners-respondents should have known that even if the relevant law was held by the High Court ultra vires of the Constitution they could not get any relief as they were not party to the proceedings. Thus even if the explanation is accepted as true we are unable to subscribe to the view taken in the authorities relied upon by the learned counsel for the respondents. If we accept the explanation that laches in filing writ petition can be condoned on the ground that the concerned party was waiting for the decision of another identical case then there would be no end to the litigation. Because other persons who were adversely affected by the offending provision of the Ordinance in the State may seek remedy by filing writ petitions and plead that they were waiting for the judgment of this Court on the point. Obvio usly this would frustrate the very purpose of bar of laches in cases of writ jurisdiction. However , even otherwise, the writ petitions filed by the respondents must fail because as has been observed in the earlier part of the judgment the present writ petitions were filed by the respondents after the expiry of 6 to 9 months from the date of the delivery of the judgment by the High Court in the two writ petitions referred to above. The learned counsel for the petitioners respondents maintained that after the judgment of the High Court in the writ petition filed by the other land owners they issued a notice to the Government to pay them the amount of compensation at the rate of Rs,40,000/- per kanal within a period of 15 days to one month but they did not oblige. Even if we subtract the period of one month from the period reckoned from the date of the judgment of the High Court in the said writ petitions even then the writ petitions are belated by 5 to 8 months. There is no explanation whatsoever for the aforesaid delay , and thus, the writ petitions would still be hit by laches."
The similar view was expressed by the Lahore High Court, Lahore, in case titled Shams Din v. Aman Ullah and 3 others [PLD 1987 Lahore 471 ]. At pages 472 and 473 of the precedent case, it was observed as follows:- "Learned counsel for the petitioner has appended an application under section 5 of the Limitation Act for the condonation of delay in filing the present writ petition. Learned counsel submitted that no order was passed in the review petition, but the judgment was reserved on 08.07.1985. However , from a perusal of the application, it is evident that the learned Member (Conso lidation) Board of Revenue dismissed the review petition on 14.07.1985, after hearing the learned counsel for the petitioner . I am not convinced with the explanation provided by the petitioner for the inordinate delay in filing the petition before this Court. In meantime valuable rights have accrued in favour of the respondents by operation of law. The petitioner was not vigilant in pursuing his own remedies provided to him under the law. He has failed to give any plausible and reasonable explanation in filing the writ petition so late. It is next contended vehemently by learned counsel for the petitioner that under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, no period of limitation has been provided for filing the writ petitions. I do not agree with the conten tion of the learned counsel. Although no period of limitation is provided under the Constitutional provision, the fact remains that the constitutional petition had to be filed within a reasonable period of time after obtaining the certified copies of the documents. At any rate, after obtaining the certified copies of various documents in a particular case, an aggrieved person has to challenge the impugned orders not later than three months and i f a Constitutional petition is moved after the expiry of three months, the period thereafter has to be adequately and sufficiently explained by the petitioner . In this case I am satisfied that the petitioner was negligent in the prosecution of his matter before the Consolidation authorities."
The petitioners failed to explain the aforesaid inordinate each day delay of about 15 years, therefore, writ petition merits dismissal even on touchstone of principle of laches.
11. The crux of above discussion is that finding no substance in the instant writ petition the same is hereby dismissed. No order as to the costs.