What The Act Says
Constitutional validity of Jammu and Kashmir (Residential and Commercial Tenancy) Act, 2012
G. Q. WANI
The rent control legislation with respect to houses and shops is State- list subject under the Constitution of India. That is why each State has enacted its own Rent Control Act as per the needs and requirements of the State. The Rent Control Act has stood the test of constitutional validity on the ground of social welfare legislation as it “protects tenants against harassment and exploitation by landlords and safeguarding at the same time same time the legitimate interests of the landlord”. Explicitly, the tenants and landlords have reposed their confidence in the courts of law in the determination of all the disputes relating to fixation of rent of the demised premises to the eviction proceeding in an impartial and independent manner. Hence there is no need to abrogate the existing law but as observed by the Apex court: “the laws of landlord and tenant must be made rational, human, certain and capable of being quickly implemented”. These objectives can be easily achieved by suitably amending the Rent Control Act and not by repealing the Act. It appears that the New Act has been enacted at the instance of Central Government and not in the interest of landlord and tenant. It is evident from the fact that the Economic Administrative Reforms Commission and the National Commission on Urbanization have recommended reforms of the Rent legislation as disclosed in the “statement of objects and reasons” and so the J&K (residential and commercial tendency) Act, 2012 has been enacted. It also reveals that on the pattern of Model Residential Tenancy Act, 2011 formulated by Ministry of Housing and Urban Poverty Alleviation, Government of India, the State Government has prepared the present Act; thereby it gives the impression that the State government has abdicated its legislative powers in favour of the Central Government. It is relevant to mention that the State had number of Acts of its own passed by then autocratic Ruler, but the same are being continuously and un-necessarily replaced by the Central Acts passed by the Parliament. The first Rent Control Act was passed by the State in the year 1925 but now attempt is made to replace the Rent Control Act of 1966 by the new Act “formulated a Model Residential tenancy Act” by the Central Government. The spokesman of High Court Bar Association has rightly remarked in his statement that such legislations are “colonial in nature and spirit to strengthen the bureaucracy and subvert the judicial authority of the courts.” It appears that the new Act has excluded from its operation the demised houses and shops situated in area which is known “Cantonment Area” because the new Act is applicable TO only “urban area” The expression “urban Area” means the area that fall within the territorial limits of any Municipal corporation, Municipal council or municipal Committee (section 2 (u). The corollary of this definition of “urban Area” is that the Act is not applicable to any area declared as Cantonment Area. In this sense, the area coming under Cantonment Area has been excluded from the operation of new Act, whereas the Rent Control Act is applicable to demised shops and houses situated in Cantonment Area. It is relevant to mention that Entry 3 of Union List of the Seventh Schedule of the Constitution gives exclusive powers to Parliament to regulate house accommodation within any Cantonment Area situated in any State. But so far the State of Jammu and Kashmir is concerned; it was held by the State High Court in Janak Sing vs. Lt. Col. Charanjit Sigh (1985 SLJ 292) that the Entry 3 of the Union List has not been extended to the State in its entirety, so the Parliament has no power to make any law relating to house accommodation for the State. If this is the Constitutional position, then new Act will be deemed applicable even to the Cantonment Area situated the State also; otherwise exclusion of Cantonment Area from the operation of new Act will pave the way for the Central Government to extent its tenancy law to Cantonment areas situated in the State. It will thereby circumvent and violate further Article 370 of the Constitution. Again, no protection was given to rich tenant under Rent Control Act whose income exceeded Rs. 60,000/- per annum. But the new Act exempts rental unit from the applicability of the Act where rent paid exceeds Rs. 60,000/- per annum. It means that the tenant may have income more than Rs. 60,000 per annum, but his tenancy will not come within the purview of new Act if he is paying rent less than Rs. 60,000 per annum.
It has become a common feature of the State Government to bestow on the Revenue Officers the judicial powers of adjudication of contentious issues between the parties whenever it enacts a fresh legislation by inserting stereo-type provision that “the jurisdiction of civil Court is barred;” when it is undisputed fact that the civil courts are considered first and primary source of dispensation of legal justice in any civilized society. But the section 30 of the new Act, in a similar prototype manner, provides that no civil court shall have jurisdiction to hear and decide the petition relating to disputes between landlord and tenant and matters connected with and ancillary thereto covered under the Act and those covered under the Transfer of Property Act, 1977, Contract Act or any other Substantive Law. One fails to understand why the Revenue Officers of the State are invested judicial powers of adjudication when they are overburden with their regular revenue functions under various Revenue Acts. In addition they have to take care of routine Administrative and Developmental works in the District; besides to monitor the political activities of politician of the State. Under these circumstances, the Revenue officers have hardy a time even to attest simple mutation paper which requires no application of law. But under new Act, it is beyond the realm of imagination to expect such Revenue Officers to decided intricate questions of law and facts relating to eviction petition against the tenant within 60 or 90 days as required by section 30 (6) of the Act. The fundamental principle is that justice should not be done but it should appear to have been done. The jurisdiction of Civil courts cannot ousted and sacrifice at alter of speedy disposal of cases. The confidence of the people on the existing judicial system of the court is beyond any pale of doubt. The so-called object of speedy determination of all kinds of disputes between the landlord and tenant by these Revenue Officers under the present set up is illusory and erroneous concept. It is false notion entertained by bureaucracy simply to out the jurisdiction of court of law. The object to balance the interests of both landlord and tenant under the New Act is utterly frustrated by section 25 of the new Act under which the tenant can refuse to vacate the premises after his tenancy has been terminated by order of the Revenue Officer on payment of double the monthly rent to the landlord for the use and occupation of demised premises. Impliedly, the provision also renders the grounds of eviction enumerated in section 21 as redundant.
The Revenue Officer is required to apply the law “in the same manner in which such would have been applied had the dispute been brought before civil court by way of suit.” In deciding the dispute between the landlord and tenant, Revenue Officer has not to follow the procedure as prescribed in the Code of Civil Procedure but “shall be guided by the principles of natural justice.” The questions raised by both the landlord and tenant in such eviction or rent proceedings are to be decided by the Revenue Officer on the basis of affidavits filed by the parties and not oral evidence; thereby the appreciation of evidence by affidavits at the hands of Revenue officers will be a source of litigation between the parties. The Revenue Officers are basically trained in revenue matters and disputes. It will be difficult, without any judicial aptitude and training, for these Revenue officers to decide and adjudicate under the new Act the relationship of landlord and tenant governed by the terms and conditions of law of Contract and provisions of Transfer of Property Act. The new Act does not provide for any effective machinery for the execution of and implements of orders passed under the Act. For that purpose, the new Act depends upon the force of police. The Revenue officer in order to execute and enforce his final order passed under the new Act, whether it may be final eviction order against the tenant from the rented premises or any other order, the Revenue officer may take “the help of local administration or local body or police” and procedure to be followed in such execution is summary to be completed in 30 days.
The new Act bars the creation of lease by oral agreement, as section 4 of the Act provides that agreement for letting of any rental unit entered into between the landlord and tenant shall be in writing and registered or notarized, irrespective of period of tenancy. Under Transfer of Property Act and Registration Act, a lease for a period less than one year need not be in writing and same is not compulsorily registerable. Moreover, Tenancy agreement must be in the form as prescribed in Schedule-1 of the new Act and must be, as required by Section 4 (1) of the new Act, signed jointly by the landlord and tenant; (ii) two copies of agreement must be made in original, one each for the landlord and the tenant. In view of this legal provision, the requirement contained in section 12 0f the new Act becomes redundant which provides that one set of the agreement must be given to tenant. Again section 10 of the new Act is superfluous which empowers the Rent Controller to fix or revise the rent on the application of landlord or tenant. But this power of revision of rent is already given to parties under section 9 which provides “Revision of rent between the landlord and the tenant shall be as per the terms set in the tenancy agreement” and it also prescribes the procedure for effecting the revision of the rent.
To sum up the provisions new Act are against the interest of both the landlord and tenant and thereby it violates the concept of social welfare legislation guaranteed by the Constitution of India.
G.Q. Wani is retired District and Sessions judge.
Lastupdate on : Sat, 11 Aug 2012 21:30:00 Makkah time
Lastupdate on : Sat, 11 Aug 2012 18:30:00 GMT
Lastupdate on : Sun, 12 Aug 2012 00:00:00 IST
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