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INTERNATIONAL
JOURNAL FOR LEGAL
RESEARCH & ANALYSIS
(ISSN 2582 – 6433)
VOLUME 2 ISSUE 2
(June 2021)
Email –
editor@ijlra.com
Website – www.ijlra.com
56565656565651
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Volume 2 Issue 2| June 2021 ISSN: 2582-6433
DISCLAIMER
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Copyright © International Journal for Legal Research & Analysis
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Volume 2 Issue 2| June 2021 ISSN: 2582-6433
EDITORIAL TEAM
EDITORS
Ms. Ezhiloviya S.P.
Nalsar Passout
Ms. Priya Singh
West Bengal National University of Juridical Science
Mr. Ritesh Kumar
Nalsar Passout
Mrs. Pooja Kothari
Practicing Advocate
Dr. Shweta Dhand
Assistant Professor
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ABOUT US
INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS
ISSN
2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal,
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quality contributions from students, academics, professionals from the
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LEGAL RESEARCH & ANALYSIS ISSN
2582-6433 welcomes contributions from all legal branches, as long as the
work is original, unpublished and is in consonance with the submission
guidelines.
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ARBITRABILITY OF RENT CONTROL DISPUTES: CRITICAL
ANALYSIS
Submitted by: -
Vishakha Gupta
LL.M. Student (MNLU Nagpur)
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ABSTRACT
In order to protect the interest of parties involved in the contract of tenancy, various laws have
been enacted under which the relationship between the landlord and tenant are regulated.
However, in practical scenarios, both the parties attempt to exploit the situation in their favor
depending upon the facts and circumstances. In many cases, tenant refuses to vacate the property
of landlord and in other cases, landlord take the unfair advantage of their position and influences
the tenant to perform activities contrary to the agreement. In both the cases, the aggrieved party
has to approach the court to seek redressal of the dispute, which further increases the burden of
the judicial authorities.
It is an undisputed fact that Arbitration has proven to be an effective redressal mechanism as
compared to the traditional litigation system, which leads to the question of the scope of
arbitration in cases of tenancy disputes.
As the relation between landlord and tenant are governed by different laws like TPA, Rent
Control Act, etc. it is important to analyze whether these laws contain any specific provision in
favor or against the arbitration and if not, what are the judicial precedents to understand the
disputes in which the parties can rely on arbitration as a source of dispute resolution.
INTRODUCTION
Internationally, arbitration is known to be “A private proceeding with public consequences.”1 It
has become the predominant commercial mode of dispute resolution as it provides immediate
1
N. Blackaby et al., REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION,6 th ed. 2015.
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relief, promotes maximum autonomy, and provides timely outcomes.
Parties, incentivized by these advantages, insist upon the insertion of arbitration clauses in their
contracts and such clauses indicate that parties are ad idem that in the event disputes arise, they
shall be resolved via arbitration. 2 Generally, a dispute is arbitrable if it is “capable of settlement
by arbitration”.
What is Arbitrability?
It is important to provide a thorough understanding of what the term "arbitrability" means.
"Arbitrability" has gained various connotations. In Booz Allen case3, the Apex Court applied
THREE-PRONGED TEST to decide arbitrability. This verdict is also the first time that the
Supreme Court ventured to explain the contours of ‘arbitrability’, a term that is nowhere defined
in the 1996 Act or its preceding statutory enactments. 4When applied to this case, the three facets
of arbitrability are accepted as follows:
“Whether the disputes are capable of adjudication and settlement by arbitration?
Whether the disputes are covered by the arbitration agreement?
Whether the parties have referred the disputes to arbitration”?
The concept of arbitrability in the broadest terms has been described as following:
“(i) The capability of a dispute being resolved through arbitration according to the laws of a
state;
(ii) The capability of a dispute being resolved through arbitration according to the agreement
between the parties; and
(iii) The capability of a dispute being resolved through arbitration in view of the reference by the
parties to arbitration”.5
Are Tenancy disputes arbitrable?
Landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or
2
Shivam Singh, “Arbitrability Of Fraud: Analyzing India’s Problematic Jurisprudence”, INDIAN JOURNAL OF
ARBITRATION LAW, Vol. 8 No. 2 2020.
3
Booz Allen and Hamilton Inc. v SBI Home Finance Ltd (2011) 5 SCC 532.
4
Ibid.,2.
5
Badrinath Srinivasan, “Arbitrability of Intellectual Property in India: A Critique”, NLS BUSINESS LAW
REVIEW, Vol. 6 2020.
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foreclose arbitration.6 The court in Vidya Drolia & Ors v. Durga Trading Corporation –
(hereinafter referred as Vidya Drolia II) judgment observed that rent control disputes regulated
by the Transfer of Property Act (hereinafter referred as TPA) are arbitrable
“as they are not actions in rem but pertain to subordinate rights in personam
that arise from rights in rem. Such actions normally would not affect third-party
rights or have erga omnes affect or require centralized adjudication. An award
passed deciding landlord-tenant disputes can be executed and enforced like a
decree of the civil court. Landlord-tenant disputes do not relate to inalienable
and sovereign functions of the State. The provisions of the Transfer of Property
Act do not expressly or by necessary implication bar arbitration.” 7
The court further made clarification that conflicts between landlords and tenants that are
incorporated and regulated by rent control statute would not be arbitrable if a specific court or
forum has been given exclusive authority to establish special rights and obligations.
Arbitrability under Indian Law: The Pre-Vidya Drolia Era
In Pre-Vidya Drolia, the position of law on arbitrability of disputes was centered on two
principles: first, the 'nature of rights' principle which lays down seven categories of disputes as
noted by the Supreme Court; and second, the 'exclusive forum of adjudication' principle which
bars disputes under legislations vesting exclusive jurisdiction upon specific/special forums or
tribunals from being resolved through arbitration. 8
Potential of Vidya Darolia judgment II on arbitration of tenancy disputes
A ruling in Vidya Drolia II judgment on arbitration of tenancy disputes has laid down the ‘New
Four-Fold Test’ to Determine Arbitrability in India by overruling many of its own as well as
other High Courts’ judgments. Applying these principles, the Court held that landlord-tenant
6
Vidya Drolia & Ors v. Durga Trading Corporation Civil Appeal No. 2402 of 2019.
7
Ibid.,5.
8
Shahezad Kazi and Gladwin Issac, SUPREME COURT OF INDIA CLARIFIES 'WHAT IS ARBITRABLE'
UNDER INDIAN LAW AND PROVIDES GUIDANCE TO FORUMS IN ADDRESSING THE QUESTION,
https://www.mondaq.com/india/trials-appeals-compensation/1023030/supreme-court-of-india-clarifies-39what-is-
arbitrable39-under-indian-law-and-provides-guidance-to-forums-in-addressing-the-
question#:~:text=Supreme%20Court's%20guidance%20to%20forums%20on%20addressing%20the%20issue%20of
%20arbitrability&text=Therefore%2C%20it%20clarified%20that%20the,to%20the%20arbitral%20tribunal%5D%E
2%80%9D, (last accessed on 5 May 2021).
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disputes under TPA, and not any special statute (such as state-specific rent legislations, etc.),
would be arbitrable.9
The study endeavors mainly to answer the question of who decides the non-arbitrability and how
the decision of Apex Court in Vidya Drolia & Ors v. Durga Trading Corporation (‘Vidya Drolia
II’) will shape arbitrability of tenancy disputes in India from the present scenario and analyzing
the future approach. The major objective of the research work is to understand - meaning,
purpose and principles of arbitration in resolving tenancy disputes under TPA as well as under
different State Rent Control Legislations with the help of various judicial pronouncements.
A complete reading of the research paper will lead us to the understanding of the arbitrability of
Landlord-tenant disputes with the positive impact of the decision of Apex Court in Vidya Drolia
II. Also, the paper will serve the purpose of gaining the knowledge on this particular aspect and
the futuristic approach to be adopted for resolving such issues.
As regards the methodology of the research, the study is theoretical and it is doctrinal. As the
research is descriptive in nature so the study has been carried out on the judicial
pronouncements, various provisions of laws and reports. The research's main aim is to analyze
the current scenario of arbitrability of rent control disputes in India. Thus, the study looks at the
issues by examining and reviewing the published literature and will focus on all the primary and
secondary data available on the topic. Here we will cite major research work done in past years
in the area. Using this methodology, the researcher composes a descriptive and detailed analysis
of decisions of courts and reports in primary and secondary sources. The sources of this
descriptive research are journals and articles published by an authorized publisher, judicial
pronouncements, legislations, enactments, web-portals, reports of committees, legal, history, and
reports. The methodology followed and the outcome of this research is purely done by the author
and hence undertake the full responsibility to complete the research with full ‘academic
integrity’.
CONSIDERATION OF ISSUE OF ARBITRABILITY OF DISPUTES- Its Existence or
Validity or Both?
9
Mohammad Kamran, Kshama A. Loya and Vyapak Desai, ARE TENANT - LANDLORD DISPUTES ARBITRA
BLE? SUPREME COURT OF INDIA OVERTURNS ITS OWN JUDGMENT,
https://www.nishithdesai.com/information/news-storage/news-details/article/are-tenant-landlord-disputes-arbitrable-
supreme-court-of-india-overturns-its-own-judgment.html, (last accessed on 8 May 2021).
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The issue of arbitrability of disputes in India is regulated by precedent rather than legislation.
There is no specific category given in the section dealing with the question of whether a dispute
can be referred to arbitration in Section 2(3) of Arbitration and Conciliation Act (hereinafter
referred as ACA), which simply states “certain disputes may not be submitted to arbitration”.
Furthermore, in light of the existence of Sections 34(2)(b) and 48(2) of the ACA, the courts have
the authority to overturn an award in the event there was no chance for the issue to be addressed
through arbitration.
Whether the court must answer the question of whether or not an arbitration agreement exists, as
well as the further question of whether the agreement's contents satisfy section 11(6A) of the
Arbitration Act, or is the court able to make decisions regarding both issues? This question (dual
filter test) arose in the case of Vidya Drolia & Ors. v. Durga Trading Corporation10 (hereinafter
referred as Vidya Darolia I).
Prior to the 2015 Amendment, the position of law was that courts had a wide scope of authority
while deciding a petition under Section 11 to appoint an arbitrator, which included considering
issues of existence, duration, and validity of a live claim. 11
The 20th Law Commission of India proposed changes to the Act occurred in August 2014. An
Amendment was also suggested to the introduction of Section 11 (6A), to remedy the mischief
which was contained in the judgments of SBP & Co. v. Patel Engineering Ltd.12 (hereinafter
referred as SBP & Co.) and National Insurance Co. Ltd v Boghara Polyfab Pvt Ltd.13
(hereinafter referred as Boghara Polyfab), which specified that Section 11 proceedings should
be focused only on ‘examining the existence of an arbitration agreement’.
On the basis of Commission’s recommendations, the Arbitration and Conciliation Amendment
Act,2015 was enacted, and section 11(6A) was incorporated, limiting the extent and ambit of
section 11 proceedings.
246th Report of the Law Commission of India had suggested twin examination whether the
agreement ‘exists’ or is ‘null and void’, albeit the Section 11(6-A), as enacted, requires
10
2019 SCC OnLine SC.
11
Juhi Gupta and Gracious Timothy Dunna, ‘EXISTENTIAL’ CRISIS OF SECTION 11 (6A) OF THE INDIAN
ARBITRATION ACT? - PART I, http://arbitrationblog.kluwerarbitration.com/2019/06/11/existential-crisis-of-
section-116a-of-the-indian-arbitration-act-part-i/ (last accessed on 5th May 2021).
12
(2005) 8 SCC 618.
13
(2009) 1 SCC 267.
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‘existence of an arbitration agreement’, and the prerequisite that the arbitration agreement
should not be ‘null and void’ was deliberately omitted.
The effect of amendments, passed in 2015, especially which inserted Section 11(6A), was fully
realized in Duro Felguera v. Gangaram Port Ltd. (hereinafter referred as Duro Fulguera) 14and
M/s Mayavati Trading Private Limited v. Pradyuat Deb Burman15(hereinafter referred as
Mayavati Trading). The Apex court in these cases has interpreted the section to mean that courts
can only consider whether an arbitration arrangement exists or not.
In view of the legislative mandate contained in Section 11(6A), the Court is now required only to
examine the existence of the arbitration agreement. All other preliminary or threshold issues are
left to be decided by the arbitrator under Section 16, which enshrines the Kompetenz–
Kompetenz principle. 16
In the analysis of the phrasing of Section 11(6-A), the analysis contrasted the wording of Section
16(1) with it to show that 'validity of an arbitration agreement' is a completely different concept
from 'presence of an arbitration agreement.' Kompetenz is the doctrine according to which an
arbitral tribunal has the ability and competence to make its own jurisdictional decisions,
including the existence and validity of the agreement under review. This is meant to minimize
the judicial intervention.
Thus, the position as reaffirmed by Vidya Drolia I is that albeit the Law Commission in its 246th
report suggested to incorporate the Dual Filter Test in Section 11(6A), the same has not been
transpired into 2015 Amendment Act which is interpreted by Supreme Court in Duro
Fulguera and Mayavti Trading to mean that while deciding an application under Section
11(6A), the Court has to confine its scrutiny only and only to check the existence of an
arbitration agreement and not existence of a valid arbitration agreement as was the position
before 2015 Amendment Act.17
Who Decides Non-arbitrability?
14
(2017) 9 SCC 729.
15
(2019) 8 SCC 714.
16
Ananya Pratap Singh, FILTERS UNDER SECTION 11 (6A) OF THE ARBITRATION ACT: IS IT
‘EXISTENCE’ AND ‘VALIDITY’ BOTH OR IS IT JUST CONFINED TO ‘EXISTENCE’ OF ARBITRATION
AGREEMENT ONLY? https://arbitratorananya.wordpress.com/2020/04/03/filters-under-section-116a-of-the-
arbitration-act-is-it-existence-and-validity-both-or-is-it-just-confined-to-existence-of-arbitration-agreem/ (last
accessed on 10 May 2021).
17
Ibid.,16.
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In Vidya Darolia II,
The Supreme Court observed that the legislative intent behind the 2015 and 2019 amendments to
the Arbitration Act was to reinforce the notion that the arbitral tribunal is the "preferred first
authority" to adjudicate all questions relating to arbitrability and courts are to only have a 'second
look' at the award under Section 34 of the ACA. 18 Further, it is explicitly agreed in both sections
of the Act and the agreement that scope of allowable interference under Section 8 and 11 is
identical and is to finding a question of arbitrability to be obvious and beyond question that
agreement non-existent or invalid or non-arbitrable. It was further clarified by the courts that
they could rule on this question only when "demonstrably non-arbitrable" was used. The
Supreme Court stated this rule as "when in doubt, do refer [to the arbitral tribunal]".
“The scope of the Court to examine the prima facie validity of an arbitration agreement includes
only:
a. Whether the arbitration agreement was in writing?
b. Whether the arbitration agreement was contained in exchange of letters, telecommunication
etc.?
c. Whether the core contractual ingredients qua the arbitration agreement were fulfilled?
d. On rare occasions, whether the subject matter of dispute is arbitrable?”19
Reckitt Benckiser Pvt. Ltd. v. Reynders Label Printing India Pvt. Ltd. & Ors 20, a recent ruling by
the Hon’ble Supreme Court, supports the argument that courts only consider the ‘existence of an
arbitration arrangement’.
A LONG DUO CONTROVERSY ON LANDLORD TENANCY DISPUTES-
HISTORICAL PERSPECTIVE
Various High Courts in India pronounced conflicting judgments on the controversial issue of rent
control disputes; some argued that disputes over laws that apply to landlords and tenants only fall
under the jurisdiction of a special statute, while others believed that all disputes concerning such
statutes were arbitrable. The journey of arbitrability of rent control disputes have been
interpreted through the following judgments -
Natraj Studios (P) Ltd vs Navrang Studios & Anr 21 (‘Natraj Studios')
18
Ibid.,8.
19
Ibid.,6.
20
(2019) 7 SCC 62.
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The Supreme Court in this particular judgment as seen while rejecting an application filed under
section 8 of the ACA 1940, held that landlord-tenant disputes under Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (“Bombay Rent Act”) cannot be referred to an arbitrator
as they were to be adjudicated under special legislation.
Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd ('Booz Allen')22
The Apex Court’s decision in this landmark judgment expounded the idea of arbitrability in India
by providing a criterion for ascertaining the question of arbitrability based on the "nature of
rights" at stake in the dispute. ("Booz-Allen Test"). It was further emphasized by the court that,
in the event of a dispute pertaining to the right in rem (capable of being exercised against the
entire globe), it is not appropriate for arbitration. In comparison, if the dispute concerns right in
personam (a right which may be exercised against a specific person), it is arbitrable. The Court
further held that every civil or commercial dispute which can be decided by a court, is in
principle capable of being adjudicated and resolved by arbitration, unless it is excluded expressly
(as a matter of public policy) or by necessary implication. 23 Regarding landlord-tenant disputes,
the Court stated in obiter that tenancy disputes are not arbitrable when (i) the eviction or tenancy
matters are governed by special statutes; (ii) the tenant enjoys statutory protection against
eviction; and (iii) only specified courts are conferred jurisdiction to grant eviction or decide the
disputes(“Booz Allen Criterion”).24
The Supreme Court also found six categories of cases incapable of being settled by private
arbitration by applying the test, even if parties want to do so. These categories are as:(1) disputes
which give rise to or arise out of criminal offences; (2) matrimonial disputes; (3) guardianship
matters; (4) insolvency and winding up matters; (5) testamentary matters; (6) eviction or tenancy
matters.
25
In 2016 judgment of Shri Vimal Kishor Shah v. Jayesh Dinesh Shah & Ors "Settlement of
Cases Arising Out of Trust Deed and the Trust Act" was added to the list of issues that could not
be arbitrated along with six other categories.
21
(1981) 1 SCC 523.
22
(2011) 5 SCC 532.
23
Ibid.,9.
24
Ibid.,9.
25
(2016) 8 SCC 788.
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As a result of the Booz Allen ruling, the Supreme Court sets a generic test and state:
“Generally, and traditionally all disputes relating to rights in personam are
considered to be amenable to arbitration; and all disputes relating to rights in
rem are required to be adjudicated by courts and public tribunals, being
unsuited for private arbitration. This is not however a rigid or inflexible rule.
Disputes relating to sub-ordinate rights in personam arising from rights in rem
have always been considered to be arbitrable.”
Himangni Enterprises v. Kamaljeet Singh Ahluwalia26(‘Himangni Enterprises’)
The Supreme Court ruled in this case that the TP Act governed suit would not be brought to
arbitration. The judgment effectively left no scope for arbitrating lease disputes in India
irrespective of whether such disputes arose from special legislation. 27 The ratio decidendi
expressed in this case is that landlord-tenant disputes governed by the TPA, are not arbitrable
since it would be against public policy.
In Vidya Drolia & Ors. v. Durga Trading Corporation – 2019 (‘Vidya Drolia I’) the two-judge
bench in said that:
“While appreciating that a lease is a transfer of an interest in property, and
therefore, a conveyance, in law, there is nothing in the Transfer of Property Act
to show that a dispute as to determination of a lease arising under Section 111
cannot be decided by arbitration. However, what was argued was that Sections
114 and 114A, which provide for statutory reliefs against forfeiture for
nonpayment of rent and for breach of an express condition, would indicate that
the statute itself is based on a public policy in favors of tenants as a class, which
can be decided by the courts only.”
The Court found that a conflict between landlord and tenant controlled by TPA was never
covered by either Natraj Studios (since this was a matter under Bombay Rent Act) or Booz
26
(2017) 10 SCC 706.
27
Tariq Khan and Mahi Mehta, “The End of a Saga – The Conundrum of Arbitrability Of Landlord – Tenant
Disputes”.
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Allen when a two-judge panel originally considered the appeal in 2019 (“Vidya Drolia I”) .
After analyzing existing jurisprudence, the Supreme Court stated that the verdict in Himangni
Enterprises will require a relook and a larger bench must make an authoritative decision.
RESOLVING THE CONTROVERSIAL LONG-RUN ISSUE
In Vidya Drolia & Ors. v. Durga Trading Corporation – (Vidya Drolia II),
A closer examination of the order of reference shows that the questions that must be answered
concern two distinct but intertwined aspects, “namely:
1. meaning of non-arbitrability and when the subject matter of the dispute is not capable of being
resolved through arbitration; and
2. the conundrum – ‘who decides’.”
The Supreme Court has also overruled the verdicts of Himangni Enterprises and HDFC Bank in
this matter, ruling that landlord-tenant conflicts are arbitrable unless they subject to a specified
forum established by rent control legislations. Further, the three-judge bench of Supreme Court
laid down a “four-fold test to determine the arbitrability of disputes:
it relates to actions in rem or actions that do not pertain to subordinate rights in
personam that arise from rights in rem.
it affects third party rights; have erga omnes9 effect; require centralized adjudication,
and mutual adjudication would not be appropriate and enforceable;
it relates to the inalienable sovereign and public interest functions of the state;
it is expressly or by necessary implication non-arbitrable as per mandatory
statute(s).”28
Additionally, these tests, according to the Court, are not watertight chambers; they overlay and
coincide., but can help and assist to decide and to establish, with great certainty, where a conflict
or subject matter is not arbitrable under Indian legislation when applied in a holistic and practical
manner. The subject matter of the conflict becomes non-arbitrable only if the response is
affirmative.
After long contemplation, the Hon’ble Supreme Court has reaffirmed through the positive
judgment on arbitration as an effective alternative dispute resolution method in India.
In Suresh Shah v. Hipad Technology India Private Limited 29, the Supreme court observed that:
28
Ibid.,6.
29
2020 SCC OnLine SC 1038.
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“In our view, when the disputes arise between the landlord and tenant with
regard to determination of lease under the TP Act, the landlord to secure
possession of the leased property in a normal circumstance is required to
institute a suit in the Court which has jurisdiction. However, if the parties in the
contract of lease or in such other manner have agreed upon the alternate mode
of dispute resolution through arbitration the landlord would be entitled to
invoke the arbitration clause and make a claim before the learned Arbitrator.”
The Court further reiterated that in case special legislations governed the tenancy whereunder
tenants enjoys statutory protection against eviction (i.e. Booz Allen Criterion), the disputes
would be non-arbitrable. To put it another way, holding that landlord-tenant disputes are
arbitrable under the TPA.
ARBITRABILITY OF LANDLORD-TENANT DISPUTES UNDER TP ACT AND RENT
ACTS
The three-judge panel (CJI SA Bobde and JJ AS Bopanna and JJ V. Ramasubramanian)
explained why and what is the reason behind the lease disputes arising under the TPA are
arbitrable and those under Rent Acts are non-arbitrable.
Arbitrability of disputes arising under Transfer of Property Act
A bare reading of provisions such as 111, 114 and 114A of the TPA describe the manner in
which the lease would be determined along with the determination by forfeiture resulting from
the breach of an express condition agreed upon between the parties with respect to non-payment
of rent. The court in Suresh Shah Judgment 30 observed that:
“No doubt the said provisions provide certain protection to the lessee/tenant
before being ejected from the leased property. In our considered view, the same
cannot be construed as a statutory protection nor as a hard and fast rule in all
cases to waive the forfeiture. It is a provision enabling exercise of equitable
jurisdiction in appropriate cases as a matter of discretion.”
The legislation's equitable protection does not preclude tenancy disputes from being resolved
through arbitration and that only court has the power to waive forfeiture. No hard and fast rule is
there that when tenancy dispute arises between the parties over the decision of the lease under
30
Suresh Shah v. Hipad Technology India Private Limited 2020 SCC OnLine SC 1038.
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the TPA, the landowner must only file a civil suit. If the parties to a lease contract have invoked
the arbitration clause, they will be able to file a claim with the arbitrator. Even in such hearings,
if the conditions described in Sections 114 and 114A of the TPA arise, they can be submitted
before the Arbitrator, who will take note of them and pass the award in line with the legislation.
The court further in aforesaid judgment observed that:
“If in the arbitration proceedings the landlord has sought for an award of
ejectment on the ground that the lease has been forfeited since the tenant has
failed to pay the rent and breached the express condition for payment of rent or
such other breach and in such proceedings the tenant pays or tenders the rent to
the lessor or remedies such other breach, it would be open for the Arbitrator to
take note of Section 114, 114A of TP Act and pass appropriate award in the
nature as a Court would have considered that aspect while exercising the
discretion.”31
Arbitrability of Tenancy disputes arising under specific Rent Acts
If the evictions or tenancy is regulated by a specific Rent Act, and that act would also give
statutory protection against eviction, the landlord tenant conflicts occurring under the Rent Laws
are not arbitrable, regardless of the terms and conditions specified in the agreement. And to
resolve such disputes of tenancy only the specified court in the act will be conferred jurisdiction.
Terms and conditions are not the merely issue to be considered. Even if the basis for evictions is
made out, other factors such as the legitimate requirements, relative hardship, and so on must be
taken into account.
As a result, such matters are not arbitrable because only the Court with jurisdiction can look at
all of these issues as a legislative requirement.
However, like with any norm, there are exceptions to this one as well. Certain categories of
premises are normally exempt from the application of the Rent Control Act. For example,
Maharashtra rent control act 1999 exempts renting of properties to banks, companies, and public
sector undertakings formed by any central or state act, as well as multinational firms and foreign
agencies. Likewise, under Delhi Rent Control Act, any tenancy generated by a grant
from government is exempt from applicability of provisions of the act.
31
Ibid.,33.
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Therefore, the position of arbitrability in matters relating to the lease/tenancy under the special
statutes and the TPA is different.
CONCLUSION
Many people have remained unclear as to this point about who is responsible for tenancy
questions due to conflicting court decisions and power struggles have existed over the extent to
which these matters may be decided, and those controversies are beginning to fade now.
Following the Apex Court's decisions in Suresh Shah v. Hipad Technology India and Vidya
Drolia & others v. Corporation, it was clear that all disputes concerning rental property rights,
as regulated by the law in the TPA, are arbitrable under the ACA 1996.
By reversing several of its and other decisions of high court in Vidya Drolia II the Supreme Court,
has recognized broad principles of arbitrability. The Court concluded that issues relating to
tenant disputes according to the TPA and no other laws (specifically a law dealing with the issue
of rents, like the state rent control Act), would be arbitrated in the application of these principles.
The decision also delineates the parameters of inquiry under Sections 83 and 114 of the
Arbitration Act in determining questions of arbitrability at the pre referral stage, as well as issues
relating to arbitrability of debt recovery as well of fraud disputes.
Recently, The Model Tenancy law has been published by the Ministry of Housing and Urban
Affairs. The absence of uniformity was also has been one of the primary reasons for the
publication of the Model Tenancy Law. The collection of rent is a component of the state list
according to the Indian constitution, so some state specific laws such as Maharashtra Rent
Control Act, 1999, Delhi Rent Act, 1995 etc. govern rent and tenancy. Those types of laws grant
the courts exclusive jurisdiction to resolve tenant/landlord disputes regarding rent control and
tenancy regulations.
The Ministry prepared the Model Tenancy Law with the goal of balancing the interests and rights
of both tenants and landlords and chapter VII entitled "Rent Tribunals and Procedures in Court,"
of the Model Law deals with such issues as this, and also gives specifics for courts and tribunals
as well as for appeal, among other things.
In the absence of such an act to resolve disputes between landlords and tenants, it becomes
increasingly difficult to obtain relief especially under specific State laws. This type of law would
help the government realize their objective of housing every citizen by the year 2022.
17www.ijlra.com
Volume 2 Issue 2 | June 2021 ISSN: 2582-6433
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