Model Tenancy Act announcement: What does it mean for J&K?

Regarding a tenant, the Model Act confers rights (which may now be automatically applied to J&K) such as that: 

• to get a receipt of payment of rent from the landlord;
• to deposit the rent amount with the relevant Rent Authority, in case the landlord refuses to accept the same or when the recipient of the rent cannot be ascertained;
• to carry out repairs and maintenance of the premises if the landlord refuses to do the same and deduct the costs from the future rent;
• to be informed of the details of the property manager appointed by the landlord, if any;
• to get uninterrupted essential supplies and services such as electricity, gas, water, sanitary services, and other essentials;
• to get a refund of the advance rent paid by the tenant; and
• to abandon the rented premises if it is rendered uninhabitable due to the landlord’s failure to carry out necessary repairs and maintenance, among other rights.

Establishment of Adjudicatory Bodies

The Model Act has introduced a new dispute resolution process by establishing adjudicatory bodies that solely deal with tenancy disputes. The authorities, as established by the Model Act, have been provided below, in ascending order:

• Rent Authority: A public officer holding the position of Deputy Collector or above shall be appointed as the Rent Authority of the area of their jurisdiction. The Rent Authority shall be the first point of contact for grievance redressal under the Model Act.
• Rent Court: A public officer holding the position of Additional Collector/Additional District Magistrate or an officer of similar designation, or above, shall be appointed as the Rent Court of the area of their jurisdiction. The Rent Court shall hear appeals against the Orders of the Rent Authority and decide matters pertaining to eviction.
• Rent Tribunal: A District Judge/Additional District Judge shall be appointed as the Rent Tribunal of the district of their jurisdiction after consulting the relevant High Court. The Rent Tribunal shall hear appeals against the Orders of the Rent Court.

The problem of Inclusivity in the Force Majeure Clause under the Model Act (which may now be automatically applied to J&K)

The Model Act has introduced a force majeure clause under a couple of provisions. Under this clause, “situation[s] of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature” have been covered. However, the clause fails to cover human-made calamities such as epidemics, pandemics, terrorist attacks, and other human-made calamities. The present scenario, where we are facing a pandemic, should make the government realize that human-made calamities can affect the performance of a duty/obligation and the exercising of a right as complex as under a natural calamity. Despite this reality, the force majeure clause has left out human-made disasters from its ambit.

Further, the force majeure clause has been inserted only under two provisions of the Model Act, under Section 5 (whereby the period of tenancy can be extended in case of force majeure) and under Section 15 (whereby a landlord shall not charge rent in case the premises is rendered uninhabitable due to force majeure). It is relevant to mention that almost all provisions under the Model Act require being subject to a force majeure clause. For instance, under the provision of revision of rent (Section 9), if the tenant cannot pay an enhanced amount due to a calamity, the existence of a force majeure clause would prove helpful. Additionally, if the performance of an obligation/duty by the landlord or the tenant is rendered impossible due to a calamity, the existence of a force majeure clause assures that the affected Party cannot take adverse action against the non-performance.