Report No. 129
3.11. The huge backlog of cases under the Rent Acts and inordinate delay in disposal of cases have brought to fore some undesirable developments. The pendency and the consequent delay in disposal of cases under Rent Acts in various States may be appreciated from the information herein supplied (Appendix IV). The duration varies from 244 days in a small State like Sikkim to 5950 days in West Bengal and 1359 days in 27 districts of Maharashtra. The figure does not take account of the duration in disposal of cases in the Bombay Small Causes Court where reportedly the case is not finally disposed of by the trial court before the expiry of seven years from the date of its institution.
3.12. So the question that stares into the face is whether some peripheral reform in the present method of disposal of disputes under Rent Act would improve the situation or a radical departure is necessary. There is little scope for improvement or reform of the present method. Therefore, some alternatives have to be found.
3.13. Responses to the working paper disclose four distinct approaches:
(1) The suggestion made by the Law Commission itself in the working paper for response and comment, namely, the same model which the Law Commission recommended for Gram Nyayalaya.1
(2) The second alternative suggested was that instead of one Judge or Controller, whatever be the designation, hearing the case, a Bench of Judges, minimum two, should hear the cases and there shall be no appeal against their decision save and except a revision on question of law to the District Court.
(3) The third alternative suggested was that some form of neighbourhood justice centres must be set up for resolution of disputes under rent laws because these disputes have a local flavour and people, in the vicinity of the premises involved in dispute would be better suited to deal with the dispute.
(4) Conciliation Court system now working with full vigour in Himachal Pradesh. All the four models may be separately examined.
1. LIC, 114th Report on Gram Nayayalaya.
3.14. The court system set up by British rulers has continued to be operative till today with minor modifications. The model is of a State court, presided over by a professionally trained lawyer who enters judicial service. This model is in vogue for over 150 years. This model has practically become dysfunctional. The system is in total disarray.
In the seminar at Bombay, it was pointed out to the Law Commission that the gross and unreasonable delay in disposal of disputes under the Rent Act has given rise to an undesirable tendency adopted by some landlords in utilising the services of members of the underworld who, by sheer threat and violence, inculcate such fear in the tenant that he is forced to leave the premises and the landlord, without the intervention of court system, regains possession.
Undoubtedly the service is for a price and the Commission was told that the price varies according to the locality where the premises are located and the carpet area of the premises of which possession is sought. The phenomenon is thoroughly disturbing and is offered as a proof of the utter failure of the system.
3.15. Another undesirable feature of the system that was brought to the notice of the Law Commission at the same seminar was that the litigation under the Rent Act has acquired the connotation of a need-based litigation and that results in proliferation of litigation from court to court. To be specific, it was stated with emphasis at the seminar that it is almost impossible to get even a minimum accommodation - a roof over the head - except for a huge price styled as 'premium' or paghri, payment and acceptance of which is illegal and violative of section 18 of the Bombay Rent Act and yet it is indulged into freely.
A tenant in an action for eviction, even if he honestly believes that the landlord's petition for possession is genuine, yet he would resist eviction at any cost and if defeated, would prefer appeals after appeals and when finally thrown out, would resist execution only because once out of the premises, he has nowhere to go.
This lack of availability of accommodation also contributes to delay in disposal of litigation when the tenant seeks adjournment by applying every device available to him. Therefore, it does not require elaborate discussion to reach an affirmative conclusion that the present model for resolution of disputes under Rent Act throughout the length and breadth of this country is a disaster and a dismal failure. The alternative has to be found.
3.16. The first alternative suggested is to adopt the model recommended by the Law Commission where a professional Judge interacts with lay Judges from the society and by the interaction of both, they reach a reasonable conclusion in a short time and dispose of the disputes. Obviously there will be no appeal against this decision and only a revision petition will be permissible on a question of law to the District Court. It would be merely adding to the length of this report if the entire model and the method of making it operational has to be discussed over here.
The only thing the Law Commission would like to reiterate is that a de¬professionalised model of justice delivery system has been gaining acceptance in a number of countries. The indigenous juristic potential of the people, including their own sense of justice, is allowed room for development. This can be achieved by people's participation in the administration of justice.1 The Law Commission further reiterates the method for drawing up a penal of lay Justices and the model of the constitution of the court composed of a professional Judge and two lay Judges.2
The only difference in this case from what has been recommenced in the report on Gram Nyayalaya is that this body, which should be styled as 'Nagar Nyayalaya", need not visit the site unless necessary because its seat would be in the urban areas and it would be dealing with disputes in urban area where distance may not be prohibitive. Incidentally it was stated that in selecting two lay Judges, attempt must be made to involve the interests affected by decisions under Rent Act. It was said that two lay Judges must be drawn, one each from the Associations of landlords and tenants which have come into existence in almost every city where a Rent Act is in force.
After mature consideration, this suggestion does not meet with the approval of the Law Commission inasmuch as the experience shows that bias is inherent in such composition of the court. To illustrate, some decades back, Government of India set up a Wage Board for engineering industry. The composition of the Wage Board was so planned that all affected interests did find a representation on the Wage Board. Accordingly, the Chairman of the Wage Board was a man drawn from Judiciary. There were two independent members, two members represented the workmen and two members represented the employers. The Wage Board took about five years to give an award.
The startling outcome was that the Wage Board gave four awards: one by the Chairman; second by the two independent members; third by the representatives of the workmen; and fourth by the representatives of the employers. This is an eye-opener. The Law Commission is informed that such an experience recurred when the Wage Board very recently set up for working and non-working journalists gave an award granting interim relief. These experiences have moulded the thinking of the Law Commission in disapproving the suggestion of drawing one lay Judge from the association of landlords and the other from the association of tenants because both of them may not be in a position to disabuse their mind about the bias by association.
1. LIC, 114th Report on Gram Nayayalaya. For a fuller discussion of the model of participatory justice, reference is invited to paras. 5.6 to 5.9.
2. Ibid., for a fuller discussion of the selection for empanelling lay judges, reference is invited to paras. 5.16 to 5.19.
3.17. The second model suggested was that instead of one Judge, as at present hearing the disputes, styled as either 'Munsif' or 'Civil Judge' or 'Rent Controller', a Bench of two should hear the cases following the same procedure and their opinion should be finale. No appeal should be provided against the decision of the Bench save a revision on a question of law.
3.18. Every statement of known legal position need not be elevated to the status of a question of law. The question of law must be such for which there is no binding decision of the High Court to which the urban court would be subordinate or of the Supreme Court of India. The question of law has to be specifically stated while entertaining the revision and the revision petition must be confined to that question of law alone and nothing else.
3.19. The third alternative suggested was that Neighbourhood Justice Centres should be set up where these disputes can be conveniently resolved. Before the enactment of Rent Act, subject to the provisions of the Transfer to Property Act, landlord enjoyed an unrestricted right of re-entry. In order to checkmate the tendency to informally use this right, Rent Act usually imposed a restraint on the right of re-entry by making a provision that on proof of certain positive and affirmative facts the landlord can re-enter, otherwise the tenant will have the protection of statutory tenancy.
One such enabling ground to be found in all Rent Acts is the reasonable requirement of the premises by the landlord for his own use or for the use of the person for whose benefit the premises are beneficially held. Litigation for recovery of possession on the aforementioned ground is probably the highest in the litigation under the Rent Acts. Now when a landlord seeks possession on the ground of bona fide personal requirement, two incontrovertible facts emerges: (1) that at some point of time he did not need the premises and could let it out for extra income by way of rent; and (2) that his personal circumstances have altered so drastically that the accommodation at his disposal is insufficient to provide for his needs and, therefore, he must get back the accommodation in possession of the tenant.
In resolving these disputes, the court's approach is to ascertain whether the need is genuine in the sense that the accommodation at the disposal of the landlord is insufficient or that his circumstances have so altered that he must get back into the possession of accommodation occupied by the tenant. The size of the landlord's family, the increase in the size since the premises were let out, other changes in the landlord's family such as partition between brothers or marriage of sons or the increase in the size of the family for other reasons are all relevant considerations.
Change in the position of landlord such as that premises were let out when landlord was in service and he is about to retire and needs the premises for his own use is equally relevant. But these are relatively simple issues. However, experience shows that numerous witnesses are examined on either side to establish this simple point. It is a waste of court's time. Those in the neighbourhood where the premises are situated are bound to be aware of the size of the landlord's family, the changes that have occurred in the family, the incompatibility amongst family members for various reasons and if the dispute is brought to a Neighbourhood Justice Centre, it can be easily disposed of rather than a court dealing with the same.
3.20. Setting up Neighbourhood Justice Centres is of recent origin. By 1980 about over one hundred such Centres have been set up in different parts of United States of America.1 His counterpart, though not wholly analogous, is Comrade's Courts in U.S.S.R. An integrated centralised justice system has become static and there was a demand for decentralisation of justice system by creating a complementary system. The model of such decentralised system was almost wholly to be different from the existing system.
This thinking gave rise to the concept of setting up Neighbourhood Justice Centres. The departure will be noticed that while the court has an adjudicatory approach, the Neighbourhood Justice Centre would try to reconcile the two parties and bring them to a common understanding of problems as far as possible. The utility of the system lies in the fact that it is believed:
"A good neighbour is someone who keeps to himself but is there if needed. You borrow a cup of sugar (for a party) but you don't invite them to the party".2
Another view expressed was that:
"Yeah, I know just about everything in the neighbourhood, but they're not my friends; I guess I like to know who they are, but that's all there is to it".3
The Neighbourhood Centre may consist of three local residents and if a retired Judge is residing in the area, preferably he should be included. Such a locally situated centre holds promise of being more conveniently located, more considerate, and much faster in processing cases than the State set up court system. Coupled with this is the advantage of an informal, non-adjudicatory style which would be very appealing. A legislation would be necessary to set up such centres.
It would not be difficult to set up such centres in urban areas. Fairly well educated local residents would be- available to work into centres. And their knowledge of local conditions, traditions and local needs would assist them in an informal manner to resolve the dispute. And this would reduce the load on the court system considerably.
1. Roman Tomasic and Malcolm M. Feelay Neighbourhood Practice: Assessment of an Emerging Idea, (1982), p. x.
2. Id., at p. 82.