' An evacuee shop No, 148, situate in Muzaffarabad City. Is the bone of contention between the parties. The shop was allotted to one Muhammad Iqbal, who surrendered it in favour of the petitioner for a sum of Rs, 5,500, on which Rehabilitation Commissioner allotted the shop to the petitioner on 16th October, 1969. Azizud Din, non-petitioner No, 2, who was also interested in the allotment, immediately after knowing the order, preferred revision against the allotment order before the Custodian. The learned Custodian accepted the petition and discharged the order of allotment. The revision petition was instituted on 12th August, 1972 and disposed of on 8th September, 1973. The petitioner sought quashment of the order of Custodian by invoking special jurisdiction of the High Court in a writ petition. The learned Single Judge refused to interfere with the impugned order. Now leave is sought to impeach that order of the High Court.
2. The main objection raised in the petition is that the learned Custodian had no jurisdiction to decide the question of allotment as on A the day of his appointment he did not possess requisite qualifications to be a Custodian.
3. It is admitted in para. 2 of the petition that Mr. Justice Malik Muhammad Aslam Khan, Custodian (as he then was), was appointed as Additional Judge of the High Court in between 13th February, 1971 and 26th November, 1973. In addition to that in his affidavit and written objections Mr. Justice Malik Muhammad Aslam Khan expressly stated that he was appointed as Additional Judge of the High Court much before his appointment as Custodian. The affidavit and written objections were not repudiated by a counter-affidavit or other evidence. Thus the facts brought on the record sufficiently proved that Mr. Justice Muhammad Aslam Khan was appointed Additional Judge of the High Court prior to his appointment as Custodian.
4. The qualifications for the appointment of the Custodian are described under section 6 of the Administration of Evacuee Property Act, 1957, as adapted in Azad Jammu and Kashmir. It is provided that the Government shall appoint one or more persons as Custodian by a notification in the official Gazette. Subsection (2) of section 6 provides that any person, who is or has been a Judge of the High Court, is qualified to be appointed as Custodian. The objection is that Mr. Justice Malik Muhammad Aslam Khan was not qualified for the post as on the date of his appointment he was neither a sitting nor a retired Judge of the High Court. In my opinion the suggestion of the learned counsel for the petitioner is untenable.
5. In order to ascertain the meaning and scope of the term 'Judge', we have to advert to the relevant law. Mr. Justice Malik Muhammad Aslam Khan was appointed as Custodian on 13th February, 1971 and the law in force at the relevent time was Azad Jammu and Kashmir Government Act, 1970, Courts and Laws Code Act; 1949 and Kashmir Service Regulations. Section 25 of the Azad Jammu & Kashmir Government Act, 1970, pertains to High Court. Government Act, 1970 and Courts and Laws Code Act, 1949 are silent on the definition of 'Judge'. However, in the Kashmir Service Regulations, Vol. II, at page 154, Appendix XX (a), 'Judges' are shown to include Additional Judges of the High Court. Government Act of 1970 was amended in August, 1971, by amendment Act of 1971, whereby subsections (4) to (8) were added to section 25 of the Government Act of 1970.
Subsection (7) of section 25 contained a provision that if at any time a Judge of the High Court was absent or unable to perform his functions due to illness or for other cause, any person qualified to be appointed as Judge of the High Court shall be appointed Additional Judge for the purpose or period for which the Judge is absent or otherwise unable to perform functions. By repeal and with certain modifications of Government Act, 1970, the Legislature reenacted the Act, called as "The Azad Jammu & Kashmir Interim Constitution Act, 1974". Under section 2, relating to definition, the term 'Judge' in relation to the High Court, includes the Chief Justice and an Additional Judge of the High Court. From the aforesaid provisions of law it is reflected that the term 'Judge' includes an Additional Judge. An identical provision exists in the Constitution of Pakistan. It is also noted that qualifications for the appointment of the Judge or Additional Judge of the High Court are the same.
Thus in standard and status a person who is in possession of qualifications requisite for the appointment of an Additional Judge is qualified to be appointed as Judge of the High Court.
6.
6. It is well-accepted rule of construction that words and terms are given the meaning assigned to them under the definition clause of a statute. Departure or transgression from such meaning is not permitted. Applying the principle to the instant case it is seen that the term 'Additional Judge' has no other meaning except the one given in the relevant law. The qualifications contained in section 6 of the Administration of Evacuee Property Act clearly indicate that a person, who is or has been E a Judge of the High Court, is eligible to be appointed as Custodian. The Legislature used the language of the section with the intention to prescribe qualifications to Custodian identical to those for the Judge of the High Court. The object was to have a person appointed as Custodian F of the same qualifications and status as that of Judge of High Court. One of the rules of interpretation is that nothing is to be imported or added to the text of a statute or obliterated as surplus age. On this principle it cannot be allowed to suggest that the words 'has been' are equivalent to the term 'retired'. Its plain meaning is and it includes a person who has functioned as Judge of the High Court or held the post of Judge of the High Court, irrespective of period or limitation or number of cases decided by him. In my view, a person who held the assignment of a Judge of High Court even for a day and left it on account of some other assignment, was competent to be appointed as Custodian. In the circumstances, I find no reason to disagree with the learned Single Judge and hold that the learned Custodian, who recorded the impugned judgment, was qualified and competent to be appointed as Custodian and in consequence thereof invested with the jurisdiction to record the impugned order.
7. The other aspect of the case resulting in refusal to grant leave is that objection to his jurisdiction for want of requisite qualifications for his appointment, was not raised before the Custodian. The petitioner participated in the proceedings before him and it was only when the decision went against him that he invoked special jurisdiction by writ to draw attention of the High Court to the alleged usurpation of jurisdiction. The consensus in Indo-Pak is that objection to jurisdiction of a Tribunal can only be raised in a writ petition when such an objection was also raised before the concerned Tribunal. The rule was introduced by the English Courts butt it has been consistently adhered to in Indo-Pak. The grievance t usurpation of jurisdiction cannot be allowed to be raised in a writ petition unless certain objection to jurisdiction is taken before the Tribunal whose order is being challenged. The object is that the High Court is entitled to know as to what the Tribunal has to say about its jurisdiction. The other aspect of the rule is that the party who participated in the proceedings without objection acquiesced by its behaviour, although by acquiescence or waiver no jurisdiction is conferred on the Tribunal. This view finds support in Ghulam Mohi-ud-Din's case and G.M.T. Society v. Bombay State. Precisely on this principle failure of a party to raise point of jurisdiction before the Tribunal precludes it from claiming quashment proceedings by extraordinary remedy of writ in the instant case objection to jurisdiction, admittedly, was not raised before the Custodian. In case the Custodian would have recorded order of allotment in favour of the petitioner, the High Court or this Court least could have heard of grievance of the petitioner. The grievance was brought to the notice of the High Court and this Court as the decision is recorded against the petitioner. The learned Single Judge of the High Court has rightly refused to quash the impugned order.
8. Leave is granted when an important matter of public policy or law point necessitating decision of this Court is raised. In the instant case, on facts, it is established that Mr. Justice Malik Muhammad Aslam Khan was qualified to be appointed as Custodian. For the reasons discussed above there is no substance in the petition to grant leave.
' The petition is therefore, dismissed. PLD 1964 SC 829 AIR 1.954 Som. 202