resort, to resolve disputes, defend their rights and seek justice. It is not surprising then that efforts are being made in many countries, including Nepal, with the help of international donor agencies, to improve the rule of law, especially by reforming the judicial system. However, the liberal democratic assumptions that rule of law is always just, that the courts in a democracy are always impartial, that all citizens have equal access to justice, and that the litigants use the courts only to resolve conflicts, seek justice or defend rights are increasingly questioned, not only in the context of newly established democracies but also older ones such as the USA. Moreover, people in most countries turn more often and more readily to other forums such as traditional village councils or leaders, friends and neighbours, police and so on to defend their rights, resolve conflicts or seek justice. Such forums usually apply not only state laws but also more often than not non-state laws (customary law, religious law, local law, and even international law) or a combination of both in trying to resolve conflicts.

The rule of law pertains only to state law and the judicial system and is concerned mainly with procedural law and not substantial law, i.e., the content of law. The rule of law is substantially empty because it says nothing about fundamental rights, equality or justice and thus may be compatible with and contain unjust laws. As Raz has argued, “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law.” Governments and courts in non-democratic countries can claim that they are strictly applying the rule of law (existing laws of the land) even if the laws are unjust. In such cases, the strict application of rule of law would lead to denial of human rights, reinforcement of sexual and other inequalities, and other forms of injustice. The important issue, thus, is not only the universal, impartial application of the rule of law but whether the laws are just. However, notions of justice are not universally agreed upon, rather they are contested. Moreover, as will be seen in the case discussed later, different branches of the state may have different notions of what constitute justice, leading to a plurality of conceptions of justice even within the state.

It is questionable whether the courts are always impartial and apply laws strictly in all cases. Non-legal considerations often influence the decisions of the judges, even in the USA, the self-proclaimed home of democracy and rule of law. Conservative or liberal interpretations of the laws depend on the political and ideological beliefs of the judges. A study in Nepal showed that the court decisions were usually biased against women. Moreover, as Merry (1986) has argued in her study of the way working class Americans use the courts, the courts apply not only formal justice based on abstract notions of rule of law but also ‘situational justice’ where the history and status of the litigants as well as their relationships are taken into consideration in trying to resolve conflicts. In other words, the judicial system itself may practice legal pluralism.

Just laws and an impartial judicial system could be used as resources by the weaker sections of society, tenants and women, for example, to defend their rights. However, the poor often have less access to justice than the rich and powerful because they have less economic, political and social resources for example to hire better lawyers, to pursue the cases through several levels of the judicial systems, or to counteract the non-legal influences the more powerful bring to bear on the judicial processes. Seeking justice through the judicial system is often an expensive, time consuming, and exhausting process, not to speak of the difficulties in understanding the law and the legal process.

It is also questionable whether the legal processes are always used to resolve disputes, defend rights or seek justice. Law and the legal process are weapons in social conflict and legal decisions my only apparently resolve conflicts. The legal process may be used as part of ongoing conflict between the disputants to gain advantage over one another, that is, to mobilize the legal resources to gain power over their opponents more than to resolve disputes or seek justice.

It is usually thought that the judicial or legal process ends with the court decisions. However, the implementation of the court decision is an essential component of the legal process. Court decisions have to be executed or enforced to actually redress the wrong or injustice – the money recovered, fines paid, land repossessed, the guilty jailed, the innocent freed, and so on. The court decisions are implemented either by court officials by themselves or more often with the help of the relevant administrative, municipal or village officials and the decisions often have to be implemented in the social field (village, municipality) where the dispute arose. The actual execution of the court decisions are influenced to a great degree by the political, economic and social resources of the disputants as well as by other legal orders such as customary or religious law or even new emerging laws and notions of justice (e.g. those of the Maoists in rural Nepal). Powerful persons, using their connections, often avoid going to jail or paying compensation or giving up the illegally occupied land. Or the police may continue to jail a person ordered to be freed by the court. Despite court verdicts, Dalits may still not be allowed to use common wells or enter temples and daughters may be denied their inheritance rights based on (Hindu) religious laws. And despite the court’s decision that they should be evicted, tenants may continue to occupy land because of different notions of land right that they (tenants) hold and the support they receive from some political parties. Consequently, court decisions may not be actually implemented at all or implemented only partially or differently than what was ordered.

It is often the case that rights are not defended, disputes resolved or justice served if the court decisions are not actually implemented but there could be cases where the implementation of the (unjust) court decision may result in rights being denied, disputes escalating further or justice not being served. In such cases, non-implementation of the rule of law (and court decision) may in fact serve justice and democracy better.

This paper discusses the legal process employed by a landlord to evict his tenant (cultivator) which included filing a case in the Land Reform Office, then appealing in the courts against the decision of this office which ruled that the tenant could continue with his tenancy, terminating the tenancy in the official records after the Supreme Court ruled in his favour, and finally attempting unsuccessfully to actually take control of his land and prevent the tenant from cultivating on it. The paper demonstrates the following points: First, strict application of the rule of law may not always lead to just decision and inversely non-application may be more just. Second, for a citizen to get justice, it is not sufficient to have just laws or strict application of the laws by the courts or administrative bodies because the legal process, including the execution of the court decisions, requires economic, political and social resources. Third, the (state) legal process is not always used to resolve disputes or seek justice.


The Dispute Between the Landowner and his Registered Tenant (Mohi)

In a predominantly agrarian country like Nepal, land is the most important source of livelihood. It is also a source of power and status and has social and cultural significance that goes beyond mere economic significance. It is thus not surprising that the most common disputes in Nepal are land related. One survey showed that 50.6% of the court disputes are land related. Disputes between landlord and tenant formed a significant portion of these disputes, especially after the promulgation of the Land Related Act in 1964.

A few years after abolishing parliamentary democracy, King Mahendra promulgated the Land Related Act (1964) as part of the land reform policy. The Act, among others, aimed to limit the landholdings of landlords and improve the security and conditions of the tenants. An office known as the Land Reform Office (LRO) was established in all districts to implement the policy and protect the rights of the tenants. Tenants who had cultivated the land even for a year were officially registered as tenants, known as mohi. Their names were entered in the official records including the landownership certificate (lalpurja) of the landowners. These registered tenants had secure tenancy rights and their tenancy could not be terminated except for failure to cultivate the land for a year or pay rent within the prescribed time limit. Tenants had to pay only the government prescribed rent (share of main harvest known as kutbali) and the landlords were responsible for giving rent receipts to their tenants. These registered tenants not only had strong tenancy rights, they also had rights to a share of the land of which they are tenants. In the earlier version of the Land Related Act, registered tenants had rights to one fourth of the land, which was subsequently amended in 1996 to half the land. From 1996 on, a registered tenant could thus become owner of half of the land of which he was the tenant provided he gave up tenancy rights to the other half.

In order to protect and maintain his tenancy rights, the registered tenant has to cultivate the land every year and pay a share of the main harvest as fixed by the government, within the prescribed period, unless there is drought or other natural disaster. If the landlord, for whatever reason, refuses to accept the rent then the tenant could deposit cash (as determined by the government) in the Village Development Council (VDC) or the LRO. Failure to pay the rent or to deposit cash within the prescribed period could result in termination of tenancy rights, including rights to the share of land.

Cases relating to termination of tenancy rights have to be first filed in the LRO, within the stipulated time. The LRO, like other government offices, such as the District Administration Office or Land Revenue Office, is a quasi-judicial institution in that it can hear disputes and pass verdicts, which are legally binding. However, the disputants can appeal the decisions of these institutions in the Appellate Court and the Supreme Court.

In early 1996 Mr. K. L. Shrestha, a middle class landowner in his early fifties, filed a case in the Kathmandu district Land Reform Office (LRO) against Mr. T. B. Pandit, his registered tenant (mohi), who too was in his early fifties. The land (two plots totalling 0.23 ha) is located in a village several kilometres away from Shrestha’s residence on the outskirts of Kathmandu. Pandit’s family had worked for several generations as tenants of the Shrestha family and by all accounts they had good relations. Shrestha’s and Pandit’s fathers had even collaborated in several activities but later their relations were strained due to a land case. After the enactment of the Land Related Act 1964, T. B. Pandit, then a young man of 21 and still living with his parents and siblings, had been registered as the official tenant (mohi). However, he migrated to Assam in India to seek work, where he remained until his retirement in 1990. During his absence, his father, a government employee, till the land and paid the rent annually to the landlord.

In his petition to the LRO, Mr. Shrestha claimed that Mr. T. B. Pandit had not paid him the rent for the past four years and when he asked him to pay this year’s rent, he refused to talk. He thus requested the LRO to give him justice by terminating Pandit’s tenancy rights and making him pay the rent due to him in kind or cash, as per the law. The rent (share of the paddy harvest) due was equivalent to Rs. 1992 as per the rates for that year published by the government.

The defendant, Mr. Pandit, claimed that he had paid the rent to his landlord for that year (1995) and for the earlier four years. However, despite frequent requests, Shrestha did not give him the receipts for the rent. This year too when he requested his landlord for the receipt of the rent, Shrestha refused to do so, and instead filed the case to unjustly terminate his tenancy rights claim rent which had already been paid. Pandit submitted as evidence rent receipts for two years (1985 and 1991) which stated that Mr. K. L. Shrestha had received the rent (kutbali) for that year from Mr. T. B. Pandit.

It is not clear why Pandit could not submit receipts of rents paid for other years and whether he actually paid the rent for the years after 1991. Pandit claims he did pay the rent but was not given any receipt. Pandit had returned from India in 1990 after retiring from his job with the Assam Rifles. Democracy had just been restored and people had high expectations, especially with the promises made that the tenants would benefit. There was even a rumour that land would be given to the tillers. Pandit and his wife stated their fellow villagers, most of who were sympathizers of the communist parties, tried to dissuade them from paying the annual land rent. When they were carrying the paddy to be given as rent to their landlord, their neighbours commented, “Why are you carrying the paddy to your landlord’s house? No mohis give rent anymore to their landlords.” But they felt that it was their duty to do so and paid the rent annually. Their landlord, however, refused to give them the receipts for the rent they had paid and instead filed a case to terminate their tenancy rights.

Shrestha confided that Pandit had indeed given him the rent for the first three years after he returned from India (“He was good for the first three years.”). On the fourth year Pandit said that he would not be able to pay the rent for that year because he was building a house and needed the money. Shrestha agreed to this but the tenant did not pay the rent the next year too and when he accosted Pandit, he was evasive and would not pay the rent. When Pandit did not pay the rent for the third year, Shrestha proposed that he (Pandit) take his share of the land and end the tenancy arrangement. But Pandit was evasive and refused to negotiate and was even hostile, so Shrestha then filed a case in the LRO. He boasted that he had filed many cases, including one against another tenant, which he (Shrestha) lost but later came to an agreement to share the land. He claimed that he was more knowledgeable about the law than many lawyers and proudly showed us his law books which he read diligently.

Pandit claimed that Shrestha never suggested that they end the tenancy arrangement by sharing the land. “He is not a nice man. He has filed cases against many persons, including his own sisters. My father had warned me against him and sure enough he did not give me receipts, always asking me to come some other time because had plans to terminate my tenancy.” However, Pandit could have negotiated with his landlord or filed a petition in the LRO to end the tenancy arrangement and become the owner of a portion of the land he cultivated. It is not known why he did not do so.

The LRO gave its ruling after about two months. The ruling stated that though the defendant, Mr. Pandit, claimed that he had paid the rent, in the absence of proof, i.e. a receipt, it cannot be said that he paid it. The tenant therefore had to pay the rent. (Thus, whatever may be the actual fact, in the absence of proof, the legal fact, established by the decision of the LRO, is that rent was not paid.) The ruling then went on to state that because it is not possible to deduce from the petition that there have been earlier disputes about payment of the rent, Pandit’s tenancy rights should be protected and that he would be given a chance to fulfil his obligations and responsibilities (to pay the rent on time).

This was indeed a strange ruling when the petitioner had specifically petitioned the LRO to terminate the tenancy rights for failing to pay the rent on time. But the LRO was established partly to protect the rights of the tenants and it often did not authorize termination of tenancy rights on such grounds, though it warned the tenants to pay rent. One LRO official stated that terminating tenancy would cause all sorts of problems with the public so they preferred to send such cases to the courts. “Let the courts deal with termination of tenancy rights.”

Shrestha appealed to the Appellate Court to have this decision revoked, arguing that the LRO ignored the law which prescribed that tenancy rights should be terminated if the mohis fails to fulfil such an important responsibility as paying rent. The Appellate Court ruled that the LRO’s decision was not in accordance with the law and ordered the LRO to review its decision. Shrestha was not satisfied with this decision and filed an appeal with the Supreme Court requesting that the decision of the Appellate Court be revoked and that the defendant’s tenancy be terminated. The Supreme Court, however, upheld the decision of the Appellate Court and directed the LRO to review its decision.