AI Structured Summary
Not yet generated for this judgment
Judgment
Learned counsel for the parties heard.
Taken up for final disposal.
Before dealing with the legal issue which has been raised in this petition, it would be apt to notice the relationship of the parties.
One Chanar Singh was a coowner with Ram Singh. Ram Singh made a selection of the land under Big Landed Estated Abolition Act of Samvat
2007. This selection was regarding 183 kanals of land. There is no dispute regarding this, Charan Singh has since died. He was represented by his
widow. The widow has also dieu. She is represented by respondents No. 1 and 2.
The further fact which is not disputed is that before 1957, the present petitioner was a tenant on the land. In 1957. a mortgage is said to have
been created in favour of the present petitioner. With a view to redeem this mortgage, a petition was preferred in terms of Section 10 of the Jammu
and Kashmir Agrarian Reforms Act of 1976. This petition stands allowed. An order of resumption has been passed. It is this order which is the
subject matter of challenge in this petition.
The argument raised by the learned counsel for the petitioner is that on the redemption of the mortgage, the old status of the petitioner as tenant
should revive, it is submitted that this aspect of the matter was not taken note of by the revenue authorities.
It be seen that the legal position is clear. A person in possession as a tenant is well within his rights to contend that in case he becomes a
mortgagee and the mortgage is redeemed, then his old status as a tenant should revive, so for as the legal position of the tenant of a mortgagee is
concerned, it is now well settled that a tenant of the mortgage ceases to be a tenant on the redemption of the mortgage and does not become the
tenant of the mortgagor See in this connection the decisions of the Supreme Court in:
i/Mahabir Cope Vs. Harbas Narain Singh.
AIR 1952 SC 805.
ii/Harihar Prasad Singh Vs. Deonarain
Prasad, AIR 1956 SC 805
Hi/Asa Ram Vs. Ram Kali. AIR 1958 SC
183 and
iv/Prabhu Vs. Ramdeo. AIR 1966 SC 1721.
The reason for this rule, as stated by T.L. Venkatarama Aiyer, J. in Asa Ram's case AIR 1958 SC 183 is as follows:
The law undoubtedly is that no person can transfer property so as to confer on the transferee a title better than what he possesses. Therefore, any
transfer of the property mortgaged by the mortgage must cease when the mortgage is redeemed.
However, there are certain exception to this general rule, and they are:
(a) if in the mortgage deed, it is provided that the mortgagee could induct a tenant beyond the term of the mortgage and if such a tenant is inducted
on redemption, his tenancy will not come to an end. As a necessary corollary, after redemption, he will be the tenant of the mortgagor; and the
mortgagor will be only entitled to symbolical possession on redemption,
(b) That the tenant of the mortgagor, prior to the mortgage, continues to be his tenant even after the redemption of the mortgage, if during the
currency of the mortgage, he attorns to the mortgage, or in, other words continues to be a tenant under the mortgagee. Though ceasing to be a
tenant of the mortgagor during the currency of the mortgagee he, after redemption, becomes a tenant of the mortgagor, provided he does not given
up his tenancy, in such a case, his tenancy under the mortgagor remains in abeyance during the currency of the mortgage,
(c) That in the case of tenants of agricultural land, a tenant inducted by the mortgagee would be the tenant of the mortgagor even after the
mortgagor even after the redemption of the mortgage, provided he has been inducted bona fide and in like manner as a prudent owner of land
would have done in the usual course of management. Even in such a case, the operation of the lease cannot extend beyond the period for which it
was granted.
In the present case, the exceptions chalked out by the Supreme Court in As Ram's case (supra), would be applicable. If the tenant was inducted
before the mortgage, then on the redemption of the mortgage, he will reacquire the status of a tenant. This aspect of the matter was not taken note
by the respondentauthorities. In view of the above, this petition is allowed. The matter is reminded to the concerned Collector who would go into
the following questions :
i/whether the present petitioner was a tenant before creation of mortgage; ii/that if he was a tenant, then the decisions referred to above, would be
taken note of and the rights which came to vest in the petitioner would be taken note of. Disposed of accordingly.
Jammu: 11031999
Sd/Hon'ble (T.S. Doabia)J
JAMMU AND KASHMIR HIGH COURT
BAR ASSOCIATION
CONSTITUTION
Whereas High Court was established in the State of Jammu and Kashmir in the year 1928 with wings at Srinagar and Jammu;
Whereas consequent to the establishment of the High Court Srinagar, lawyers parctising before the High Court constituted a body under the name
of Jammu and Kashmir High Court Bar Association, Srinagar;
Whereas many significant developments took place in State ever since the establishment of the High Court resulting in increase in the number of
judges of the High Court and subordinate judiciary.
Whereas eventually the number of lawyers practising before the High Court and the Courts subordinate thereto also increase manifold and it is
believed that in the years to come, the number of practising lawyers will further increase;
Whereas it was generally expressed by the practising lawyers that the Constitution be reviewed and/or a new Constitution be adopted with
comprehensive and detailed provisions concerning the Association;
Whereas the role of the Bar Association has also undergone significant changes over the years making it more responsive to public demands,
people's aspirations and their needs.
Whereas for the last more than a decade the Bar Association has taken keen and vital interest in the issues concerning public life, human rights and
the aspirations of the people;
Whereas it has become necessary to adopt a Constitution relevant to the working of the Bar Association in the changed scenario;
Whereas, for purposes of adopting draft Constitution prepared by the Executive Committee, meeting of the general body of Association was
convened on April 15th and 24th 2000;
Whereas the draft Constitution, presented by the Executive Committee, was discussed, examined and debated in the meetings. Various
amendments were proposed. Some were rejected and some accepted with modifications;
Whereas after thorough and detailed discussions, the members present, adopted this Constitution;
Therefore, this Constitution, is adopted on this day, the April 24th 2000. at Srinagar, to be the Constitution of the Jammu and Kashmir High Court
Bar Association, Srinagar. with the provisions appearing hereinafter;
A. Name and Commencement (1) (i) This Constitution shall be called Constitution of the Bar Association of the Jammu and Kashmir High Court,
Srinagar.
(ii) It shall come into force from January 1st. 2000.
B. Registration (2) (i) The Jammu and Kashmir High Court Bar Association. Srinagar, hereinafter referred to as the Association, may be
registered, if so decided by the general body, as a Society, under the Societies Registration Act and consist of all the persons who become
members of the Association and continue to be such members.
(ii) The Association shall have perpetual succession and shall sue and be sued by its name through its Secretary or through such other person as
may be authorised.
C. Objects (3) The objects of the Association are and shall be:
a) To find ways and means, take steps, for resolving the issues concerning public at large including larger issue of peaceful settlement of Kashmir
dispute; and for this purpose organise seminars, conventions, delegate its members to various places within and outside India; to become members
of other Associations, bodies or forums which share common outlook with the Association, publish human rights violation reports, articles etc.
b) To promoted the development of Segal science and studies and to watch legislation for the purpose of assisting in the progress of sound
legislation.
c) To safeguard and promote the rights and interests of the legal profession in general and of the members of the Association in particular;
d) To promote high professional tone, standard and conduct amongst the members of the legal profession in general and the members of the
Association in particular, and to discourage and check unprofessional practices;
e) To provide greater and more effective facilities for improved learning and cultural equipment of the members of the Association and to maintain
library of legal literature and of other subjects likely to be useful to the members of the Association.
f) To provide a meeting place for the members of the Association particularly for study and discussion of law, and to foster, maintain and improve
friendly relations and cooperation amongst the members of the Association.
g) To strive for and uphold the highest traditions of the independence and integrity of the judiciary in its administration of law and justice and to
prevent and remedy, the abuse of law or the maladministration of justice.
h) To bring to the notice of the High Court, matters affecting the legal profession in general or the members of the Association in particular, and to
prepare and implement schemes for rendering help to members or their families, in distress or adverse circumstances, i) To help provide for free
legal aid to the deserving cases;
j) To do all such acts and take such steps as may be necessary for and conductive to achievement of all or any of the aforesaid objects.
D. Membership (4) (i) Every person who is a member of the Association duly admitted as such, before the commencement of this Constitution,
shall continue to be member of the Association under his Constitution.
(ii) Every person who is enrolled as an advocated by the High Court of Janumi and Kashmir or any other competent body, shall be entitled to be
enrolled and admitted as a member of the Association on payment of admission fee, as may be prescribed in this behalf, on an application made by
him or her in his behalf to the Secretary of the Association, (iii) Every member shall have to pay a monthly subscription, before the expiry of the
month for which it is due, at such rates as may be prescribed in this behalf It shall be open to the Executive Committee to prescribe different rates
of monthly subscription for different classes of advocates depending upon their length of services. Any amount of money paid by a member,
standing in arrears of monthly subscription, shall be credited first towards the realisation of the arrears of monthly subscription due from that
members in order of the priority of the dues and no payment towards the dues of the current month shall be allowed without clearing up the full
amount of arrears due from that member, (iv) Nonpayment of the monthly subscription by any member for three consecutive months shall terminate
lus membership after a service of seven days notice upon him by the Secretary: but a member whose membership is thus terminated may be
readmitted on payment of all the arrears upto the date of such a readmission together with a fine upto Rs. 500 only
E. Voter (5) (i) Every member shall be entitled to exercise only one vote in any meeting, either general or extraordinary general or special of the
Association.
(ii) Every member shall have a right to enter into the building and the compound of the Association, to use and utilise the books of the libraries of
the Association, to use the furniture etc. of the Association and to enjoy all rights and privileges enjoyable by the members of the Association, so
long as he continues to be the member of the Association, (iii) Every member, whose name is notified before elections, shall be entitled to vote at
the time of elections. Provided that any member who falls in clause 13 (f) may not be entitled to vote, till such time, he or she holds the office
mentioned in the said clause. If before the date of poll, such member demits his or her office, such member shall be entitled to vote, not
withstanding the fact that his or her name has not been notified earlier.
F. Management (6) The management of the affairs of the Association will be done by the Executive Committee through the Secretary in
accordance with the decisions of the Executive Committee or its office bearers and in accordance with the guidelines contained in the resolutions
adopted in the general or special meeting of the members of the Association.
G. Executive Committee (7) (i) The Executive Committee shall comprise the President. VicePresident. the Secretary, joint Secretary and the
Treasurer, duly elected in accordance with this Constitution and such other members (minimum nine in number) as may be nominated to the
Committee by the elected office bearers.
(ii) Any temporary vacancy in the Executive Committee caused by death, resignation or otherwise of any member of the Executive Committee shall
be filled up by the remaining members of the Executive Committee by cooption from amongst the other members of the Association.
Provided that if there is any such vacancy of any post of the office bearers, the vacancy may be filled up either from amongst remaining members of
the Executive Committee (if the term of such office is for less than six months) or fresh elections may be held for such post should the period
exceed more than six months.
H. Office Bearers (8) (i) The Association shall have the following office bearers who shall be elected every' two years in the manner herein after
provided;
a) President
b) VicePresident
c) Secretary
d) Joint secretary
e) Treasurer
(ii) The office bearers of the Association shall hold office till the elections of their successors.
Provided that any office bearers may resign or be removed earlier from his office by a majority vote of noconfidence passed at any special meeting
of the members of the Association convened for the purpose after a notice of at least 10 days.
(iii) The elected office bearers shall be responsible for maintaining the accounts of the moneys received by the Association and for making
reasonable and suitable investments of such funds as may be at the disposal of the Association.
The office bearers shall disclose and furnish statement of income and expenditure at the general meeting of the members convened at least once in
every six months.
L. Authority of Association (9) That the entire authority of the Association, including all its rights and privileges shall vest in the members, to be
exercised, through its office bearers in the manner provided in this Constitution.
J. General Body Meeting (10) (i) That a meeting of all the members of the Association shall be called general meeting of the members, (ii) That the
Secretary shall convene a general meeting, at least twice in a year, on dates, to be fixed by the President.
(iii) That the general meeting of the members of the Association may also be convened, if a requisition in this behalf is made by at least 150
members of the Association for such purpose as may be specified in the letter of requisition. Upon receipt of such requisition, the Secretary shall
convene meeting without any delay, (iv) That the President may also convene a general meeting of the members at any time should an issue of
importance arise, (v) That the minimum quorum required for any general meeting of the members of the Association shall be 100. If the quorum is
not complete at any meeting, it shall be adjourned without transacting any business, except passing condolence resolution.
(vi) That for purposes of convening a meeting of the members of the Association, at least five days prior notice shall be issued by the Secretary
except in exceptional circumstances, where the meeting may be convened within one hour of its being notified.
K. Election (11) (i) That before the expiry of two years, the Secretary shall notify elections, (ii) That the President, in consultation with the office
bearers, shall constitute an election body, comprising of such number, amongst the members of the Association, as may be considered necessary.
(iii) After the election body, so constituted, issues the appropriated notification, calling upon the eligible members to hold elections and prescribe
the date for receipt of nomination papers, the Executive Committee shall not take any policy decision relating to the a flairs of the Association or
any members thereof. Should any extraordinary situation arise, a general meeting of the members may be convened for taking such decision as the
members may decide.
(iv) That the process of election of office bearers of the Association shall be completed in the month of July and the elected office bearers shall
hold their respective positions by first week of August.
L. Eligibility (12) (i) That any member, who is on the roll of the Association, as on April 1st. in the year elections are to be held, shall be eligible to
contest for any position in the Association, subject to the following conditions of eligibility:
a) Presitlent/VicePresident Any member, desirous of contesting for the aforesaid position, should have put in not less than 15 years of actual
continuous practice at the Bar.
B. Secretary
Any member, desirous of contesting for aforesaid position, should have put in not less than 10 years of actual continuous practice at the Bar.
c) Joint Secretary
Any member, desirous of contesting for the aforesaid position, should have put in not less the two years of actual continuous practice at the Bar.
d) Treasurer
Any member desirous of contesting for the aforesaid position should have put in not less than two years of actual continuous practice at the Bar.
Explanation; For purpose of computing period of actual practice of any member desirous of contesting any of the aforesaid positions, the date on
which such member has become the member of Association and was holding valid license to practice, the date of his membership. In the event of
dates of membership and issuance of license being different, the period of actual practice shall be counted from the date of license.
M. Ineligibility (13) That a candidate shall not be entitled to contest for any position in the Association if he or she:
a) is ineligible according to the criteria of actual continuous practice;
b) is in arrears of the prescribed or notified subscription;
c) is holding any book of the Bar library or any property of the Association:
d) has been suspended from the membership of the Association or has been expelled;
e) has been convicted by any Court for a term exceeding five years or censured by the Association, by way of a resolution, for any act or involving
moral turpitude;
f) is holding any of the following posts of law officer of the government;
Advocate General. Additional Advocate General. Government Advocate. Public Prosecutor. Additional Public Prosecutor. Standing Counsel of
Union of India.
The disentitlement of the member to contest for any position in the Association, shall continue, till such member holds any of the aforesaid position.
g) is a member of any other Bar Association and is or was holding any position in other Bar Association as on April 1st of the year, elections of
this Association are to be held and/or has contested for any position in the other Bar Association in preceding three months. Such member can
contest elections, depending upon his option, only in one Association.
Provided that, holding of any position in Kashmir Bar Association, by any candidate or member, shall not disentitle such candidate or member
from contesting any position in this Association.
N. Election Body (14) (i) After the election body is constituted by the President, the said body shall have the following powers:
a) To issue a notification inviting nomination from amongst the members of the Association, whose names have been previously notified, to various
positions of the office bearers.
b) To prescribe form of nomination to be filled in by prospective candidate:
c) To ask for any information from any member or candidate with regard to any matter as may be considered necessary:
d) To scrutinize nomination papers and to accept or reject the same. Provided that before rejecting any nomination paper of any candidate the
election body shall hear such candidate whose nomination paper is liable to be rejected upon any objection taken by any member or otherwise.
e) To notify list of candidates whose nomination papers .have been found valid in accordance with provisions of this Constitution:
f) To prescribe date for withdrawal of nomination papers:
g) To notify the date of poll and to hold elections by secret ballot;
h) To print ballot papers in such manner as it may decide;
i) To count votes polled by Voters:
j) To announce results of election:
k) To retain custody' of entire election material:
l) To regulate entire election process, prescribe norms for campaigning, prescribe code of conduct for candidates and members;
m) To decide all questions relating to elections; It is clarified that the decision of election body shall be final, in respect of all matters relating to
conduct and holding of elections including the eligibility of any member to contest for any position and/or casting of vote by any member, and shall
not be open to question by any member, candidate or person.
O. Functions of Executive Committee. (15) (i) The Executive Committee shall, subject to the provisions of this Constitution;
a) be responsible for the safe custody of the property and assets of the Constitution;
b) frame rules, bylaws forcarrying out the objects and activities of the Association. Provided that the Executive Committee may delegate any of its
functions or any specific work to any subcommittee appointed by it or to any member.
(c) aid and advise the President and other office bearers in the discharge of their duties and functions whenever called upon to do so.
P. Powers and Privileges (16)
President (i) The President of the Association shall preside over all meetings of the Association, Executive Committee and all other
committees/subcommittees, give his casting vote in case of equality of votes at any such meeting and represent the Association whenever formal
request is received in this behalf, (if) The President shall have full authority and power to convene any meeting of the members of the Association,
Executive Committee or any other committee/subcommittee at any time, (iii) The president shall be the chief spokesman in all matters relating to the
Association, (iv) The president shall have the final say in respect of all matters brought before elected office bearers and/or to be considered by the
office bearers and/or by the Executive Committee.
(v) The president shall have the full authority to take any decision with or without the consultation of other office bearers or the Executive
Committee. Should the decision involve or relate to policy matter, it shall be necessary to seek ratification of such decision. VicePresident The
VicePresident shall perform the functions of the President in the absence of the President. For this purpose the President shall inform the
VicePresident about his duration of absence. Secretary The Secretary shall be the Chief Executive Officer of the Association and it shall be his
duty to give effect to the resolutions/decisions of the Association and/or of the Executive Committee. He shall be the convenor of all committees
and subcommittees unless powers in his behalf are delegated to any member.
It shall be the duty of the Secretary to keep and maintain minutes of the meetings. He shall generally supervise various activities of the Association.
Subject to such directions or limitations as may be contained in this Constitution or in the resolutions of the Association or decisions of the
Executive Committee, the Secretary shall have the power to appoint servants of the Association.
The Secretary may take cognizance of Complaints against any member and, in consultation with the President, constitute a Disciplinary Committee
for inquiring into the Complaint and seek report from the Committee and place it before the Executive Committee for such decision as the
Committee may consider appropriate.
The Secretary shall supervise accounts, income and expenditure and prepare monthly statements in consultation with the Treasurer of the
Association and submit the same before the Executive Committee for their consideration.
Joint Secretary The Joint Secretary shall perform the functions of the Secretary, in the absence of the Secretary. The Secretary shall keep the Joint
Secretary informed about his programmes and duration of absence. It shall be the duty of the Joint Secretary to keep himself informed about the
activities of the Secretary in respect of all matters to be otherwise dealt with by the Secretary.
Treasurer The Treasurer shall be responsible for maintenance of accounts, recording of income and expenditure of the Association. The Treasurer
shall ensure that the expenditure is incurred only for realising objects of the Association.
In the event. Treasurer absents himself, he shall inform Joint Secretary or Secretary about his absence and Joint Secretary1 shall function as
Treasurer during the period of absence.
The Treasurer shall maintain the accounts truthfully and correctly, preserve all the vouchers, make appropriate entry in ledger books.
It shall be the duty of the Treasurer to deposit entire income of the Association in the bank and all monies shall be paid, as far as possible, through
cheques. The Treasurer, except in particular situations shall not retain money for more than 24 hours. The money shall be deposited in the
first/available opportunity in the bank. The Treasurer shall maintain full record of all bank transactions.
The Treasurer shall be under an obligation to allow inspection of books of account at any time by President, VicePresident. or Secretary.
The Treasurer shall keep all records, relating to accounts, under his personal custody and he shall be primarily responsible for such records.
The Treasurer shall function under the supervision of President and VicePresident. In the event of any irregularity in the accounts, he shall bring it
immediately to the notice of Secretary who shall have first look at the irregularity and submit his report to the President or VicePresident for such
decisions as may be considered appropriate.
Q. General Meeting of the Association (17) All questions at any meeting of the Association shall be decided by a majority of the votes of members
present and voting, and the decisions so arrived at shall be binding on all members.
R. Duty of members (18) Every member of the Association shall;
a) observe this Constitution and uphold the dignity of the Association;
b) strictly adhere to professional ethics;
c) help maintain the dignity of the Courts.
d) respect every other member and avoid such company as tends to undermine the prestige of the Association and or legal profession;
e) refrain from acting in a manner unbecoming of a lawyer;
f) implement and if need be. help, in the implementation of the decisions of the Association, Executive Committee and of the office bearers.
S. Amendment of the Constitution (19) None of the provisions of this Constitution shall be altered or modified unless it has received the assent of
twothirds of the members present and voting at the general meeting convened for the purpose. The minimum quorum for the meeting shall be 250
members.
T. Breach of the Constitution (20) Should any member observe the provisions of this Constitution in breach and/or indulge in an activity prejudicial
to the interests of the Association and/or behave in a manner unbecoming of a member of the Association and/or violate or attempt to defeat any
decision of the Executive Committee or of the Association or of the office bearers, such member may be suspended by the Executive Committee
for such period as it may deem fit.
Provided that a notice of show cause is issued to such member by the Secretary of the Association and on receipt of the reply, if any. from the
member concerned entire matter is placed before the Executive Committee.
Provided further that in case of urgency to take action against the member and if the situation so warrants, the President may suo moto place such
member under suspension and thereafter place the matter before the Executive Committee for such decision as the Committee may consider
appropriate.
A member suspended by the Executive Committee or the President shall not be entitled to any right or privilege of a member during the period of
suspension and shall not be entitled to use any property of the Association or managed by it.
Unless a member is expelled from the Association, the order of suspension may be revoked at any time before its expiry.
U. Repeal and Savings (21) (i) All previous Constitutions, rules, bylaws, notifications relating to the Association shall stand repealed; Provided that
the resolutions passed from time to time prior to the commencement of this Constitution, shall continue to remain in force unless otherwise provided
by any fresh resolution, (ii) Notwithstanding such repeal, all acts done and proceedings taken under the repealed Constitution shall be deemed to
have been done or taken under this Constitution, (iii) As on the date this Constitution is adopted, the list of members on roll of the Association shall
be such as is enclosed to this Constitution and for the time being, they alone shall be deemed to be the members of the Association. This
Constitution was unanimously adopted today the April 24th, 2000 at Srinagar by the General body of the Association.