Talk
to tenants in the urban areas, and see what they tell you. From abrupt
evictions to the arbitrary discretion of landlords, they could share many cruel
experiences they have gone through. It doesn’t matter ‘whether a tenant is
fresh or old’; everyone has nibbled the wretched and nasty behavior. No, don’t
be offended. I don’t lower the guard of landlords. They might experience trauma while dealing with a bolshie tenant. But, why do such things take place at all?
Why are tenants terrified? Landlords skeptical? When their rights and duties,
patently, are non-gratuitous? Why is there a mammoth void?
According
the IMF estimates, India’s Residential Rental Market, (RRM) worth is around USD
20 Billion. Among that, 13.5 USD Billion is in Urban areas. A 2019 study by
‘Knight Frank’ suggests, there are more than 27.37 million rented households in
India and the same are constantly growing up. It is projected, by 2025, the real
estate sector will start contributing 13% to India’s GDP. What persuades me
to cite these figures— is definitely— not the fiscal value of the ‘rental market’.
But, to portray the potency, and deliberate the legal deride it suffers.
Every
state/UT in India has constituted separate legislation on the subject
‘tenancy’. In J&K, we have ‘The Jammu and Kashmir (Residential and
Commercial) Tenancy Act, 2012’. The instant Act is, though, a significant piece
as compared to its predecessor enactments. At the same time, it is lacking a meticulous
execution and has entirely plummeted to realize its goals. ‘What and why it
suffers’, isn’t the lis per se, however, its redundancy is!
The
Act under Section 4 makes obligatory the registration/public notary of ‘tenancy
agreements’, and in the chorus, prohibits the advance of any ‘security deposit’
under Section 11. These provisions, nevertheless, behove no pragmatic exercise,
and people, as a matter of fact, believe otherwise in practice. Per provisions
of Chapter VI, the Act precisely excludes that jurisdiction of civil courts
vis-à-vis this Act’. Instead, the Act has mandated for the appointment of an
officer as ‘Rent Controller’, and the establishment of an ‘Appellate Rent
Tribunal’ to deal with the disputes foreseeable. It further clarifies the
controller has had to be an ‘Executive officer’, serving in the administration.
One more thing, which we shouldn’t forget to mention is the Act, unlike
previous law(s), has enumerated, very clearly, the rights and duties of parties
to a tenancy.
Now
the question, which needs deliberation is the need to have the ‘Model Tenancy
Act, MTA’, when the subject-in-hand has been legislated upon already. Before
cutting to the end of this assertion, let’s look into some of the façades of this
central legislation.
Based
upon 47 Sections, MTA, has eight chapters, and two schedules. It has been
drafted by the parliament in 2019. The detailed preamble of this Act, amply,
makes it clear, ‘’State legislations have restrained the scope of the tenancy. A uniform
‘Rental Authority’ must be instituted. Besides ensuring the growth of ‘RRM’, there
is a need to have modern legislation in place. In so doing, the government
would ensure the ‘balanced rental housing’ system within India’’.
In
comparison to preceding legislations, the ‘MTA’ is applicable, both, to urban
and rural areas. Under Chapter II, Section 4, the rental agreement compulsorily
has to be produced before the ‘Rental Authority’, of course, within a
stipulated time. The Provisions also state that such authority needs to develop
a ‘Digital Platform’ to enable digital submission of documents. It has also
been provided that the concerned ‘Rental Authority’, should put that
information on their website. The ‘Rental Authority’, is duty-bound to provide
a ‘Unique Identification Number’ to the parties producing their records. So, the same could be produced as evidence of the fact in the court of law, if
needed.
A
big lacuna, which the Act of 2012 suffers is the proper procedure of execution
and adjudication. That had adversely made tenancy a concessional approach than
being a legal affair. Unlike that, the ‘MTA’ is armored with a cohesive ‘Rental
Authority’, which not only consists of a ‘Rent Controller’ but a ‘Rent Court’
and a ‘Rent Tribunal’ too. Per Sections 32 and 33, the State/UT government is
obliged to constitute such courts and tribunals at such places, they deem so
fit. Besides, it shall be headed by a ‘Principal Appellate Member’, who in no case
should be less than a High Court Judge. Section 34 of the Act excludes the jurisdiction
of Civil Courts, and gives a special jurisdiction to the ‘Rent Court(s)’.
It
is questionable that the custom of ‘security deposit, pugree, premium or
advance’ is being, conventionally, practiced for a long now. Though, the
practice has been declared derogatory by the previous legislation. The fact,
that the ‘MTA’ has diluted this by not giving it a special focus— cannot be,
however, brushed away. It is very much indigenous in terms of the commercial
tenancy. What goes off is ‘’An advance sum of hefty amount has to be paid in advance
by the shop owner to his landlord, if not— the tenancy never matures. If paid,
the payee then retains that shop, in return, as his asset. In case, the tenancy
expires; the amount, or chai/mithai, they
call it— is reimbursed or taken from the person, who, consequently, makes the
new agreement.’’ The said practice either requires an extensive prohibition,
and violators are strictly dealt-with. Or, it has to be all-embraced customarily,
and a ceiling be then put on the denomination to be advanced.
There’s
no denying to a fact that the law established under ‘MTA’ isn’t set-up to bear
a seed- fool-proof. Voids are there. If State/UT governments are committed, it
is then, a perfect time to simulate this legislation. It might not end the
decades-long limbo of tenancy. Yet, if applied, in letter and spirit, it can
bring a monumental change in the growth and regulation of tenancy. Besides, the
establishment of proper adjudication through ‘Rental Courts’, is a sure shot
for the questions evolving. The results would very well increase the estimates
of ‘RRM’ too.
Tailpiece: Urbanisation is growing severely. There has been
enormous growth in ‘RRM’ in the J&K. Rural areas haven’t received much
attention in such a sector. Most of the tenancy is unorganized in Urban areas
too. Thereby, leaving the parties at their mutual mercy. One who has might,
dominates, or more appropriately exploits the other. The administration must
look into the possibilities. And, the ‘MTA’, seems to me not improbable for the
answers we need to find.
