While the case was still to be decided by the Supreme Court, in order to avoid the statute of limitation, Shrestha had filed another case against Pandit accusing him of not paying rent for that year (1996) within the stipulated time and requesting the LRO to terminate the tenant’s tenancy rights and to force him to pay the rent owed.

In his reply, Pandit, wiser from his previous experience with the legal process, argued that as per the law he had paid the required deposit amount within the stipulated time in the VDC office because the landlord had refused to accept the rent. He submitted a copy of the deposit receipt of the VDC as proof. He argued that the landlord had no right to terminate his tenancy rights.

As directed by the Supreme Court, the LRO again called the disputing parties for further discussion and investigation. The LRO upheld its earlier decision in favour of the tenant. It argued that it was not just to terminate the tenant’s tenancy rights only because he did not pay the rent for one year. While thus insisting that the tenant’s rights should be continued, it directed the tenant to pay the rent. Shrestha then filed another appeal in the Appellate Court, which revoked the decision of the LRO. The Court ruled that as per the law, the tenant tenancy rights should be terminated because he could not prove that he had indeed paid the annual rent on time (i.e., could not provide the rent receipt as evidence). Pandit filed an appeal in the Supreme Court against this decision, arguing that he had paid the rent but was not given the receipt and moreover, it was unjust to terminate his tenancy rights because of failure to pay the rent for a year. The Supreme Court gave its verdict in 2000, upholding the decision of the Appellate Court. The Court, citing precedents (the Ramji Sahu Haluwai vs. Tapeshwor Chaudhari case) and the relevant sections of the law, especially Section 29 (1), from the Land Related Act 1964, argued that it was the tenant’s obligation to pay the rent or make a cash deposit in the relevant office annually within the prescribed time. The tenant’s tenancy should be terminated because he was unable to provide evidence that he had paid the rent or deposited cash. Pandit filed an appeal for review of the decision of the Supreme Court but in the absence of additional proof, his review appeal was rejected. This decision cleared the way for Shrestha to terminate Pandit’s tenancy rights and to claim sole rights to the disputed land.

The legal process does not end with the decision of the Supreme Court. The decisions of the courts have to be executed and it is at this stage of the legal process that non-legal or extra legal resources are especially important. In most cases the court decisions are to be executed by a court official of the district court known as the tahasildar. The person who won the case has to file an application with the tahasil section of the court requesting that the decision be executed. The tahasildar requests cooperation of the relevant office (Land Revenue, Tax, Police, VDC, etc.) in executing the decision (fines to be paid, debts to be recovered, the guilty to be jailed, and so on). However, if the case was first registered in the Land Reform Office, then the LRO officials are responsible for executing the decision especially in cases related to termination of tenancy rights.

Shrestha filed an application in the LRO to terminate Pandit’s tenancy rights and to strike off his name from the records. He then submitted the official letter of the LRO to the Land Revenue Office, which records and handles all land related transactions. The Land Revenue Office struck off the records, including the landownership certificate, Pandit’s name as Shrestha’s registered for the disputed land. Pandit thus lost not only the right to cultivate on the land but also rights to his share of the land of which he was the registered tenant. Shrestha became the sole rightsholder of the land, which he could cultivate himself, give it out on rent or lease, or mortgage or sell it unhindered by the former registered tenant’s rights.

Although Shrestha was now the sole rightsholder of the land, he was unable to actually evict Pandit and take possession of his land. Lawyers say that possession is 90% ownership and it is difficult to evict a person who has control over land, whoever the owner may be. The disputed land lies in the village where Pandit lives so it was easy for Pandit to continue cultivating on the land even though he no longer had any right to do so. Moreover, he refused to pay the rent to Shrestha, now no longer the landlord but the sole rightholder. Shrestha then filed an application with the District Administration Office (DAO) to request help in taking possession of the land and to prevent Pandit from cultivating on it. The DAO instructed the Police to help Shrestha gain possession of his land and even jailed Pandit for a few days each on several occasions. But Pandit still continued to cultivate on Shrestha’s land and the DAO did not pursue this matter again because in its view it was not really a law and (public) order case.

Shrestha then filed a case against Pandit in the district court accusing him of looting the harvest and beating him when he had gone to collect his harvest. In this case, however, the court decided in favour of Pandit and fined Shrestha for filing a false case because he could not provide any witness to prove that Pandit had beaten him and looted the harvest. Even if Pandit had actually beaten Shrestha, the villagers would rarely testify against a landlord from outside the village unless they had very bad relations with Pandit. And the witness Shrestha said he would provide to testify on his behalf did not turn up at the court. It appears that Shrestha had filed the case mainly to harass Pandit and force him to stop cultivating on the land.

Shrestha’s main reason for filing the cases against Pandit was to clear the way to sell the land. Shrestha sold the land to an ex-armyman from outside the Kathmandu Valley, currently living in England. Shrestha, however, denied that he had sold the land. A sharp land dealer had apparently arranged this sale to an ex-armyman who had not looked closely into the dispute over the land.

Pandit continues to cultivate on the land. Shrestha says that he has several means at his disposal to evict Pandit from the land. But given the support Pandit receives from his co-villagers, it is unlikely that he would resort to the police or force. Pandit says that he would try to negotiate with the new landowner to buy this land with borrowed money but he does not know who the owner is or how to get in contact with him and that meanwhile he would continue to cultivate on the land. Pandit says that his ultimate recourse is to the Maoists, who he believes would help him retain the land for cultivation.


Discussion

It is not yet clear why exactly Shrestha filed the case in the LRO to terminate Pandit’s tenancy rights and whether Pandit had actually paid the rent but wan not given the receipt for it. The rent for the land was not much – less than Rs. 2000 at 1996 price of paddy – especially considering that Pandit cultivated on 0.23 ha (4.5 ropanis) of his landlord’s land from which he got three harvests. Pandit could easily have paid the rent because he did not depend solely on cultivating this land for his livelihood. He also cultivated on his own land, received pension from India and his wife worked in a factory for which she was paid Rs. 4000 a month. The rent was a small amount for Shrestha too: he received rent from several other registered tenants and from renting houses in the city. If he was only concerned with the rent, he could have threatened to file a case in the district court for realization of the rent or in the LRO or termination of the tenancy rights and the tenant then certainly would have paid the rent.

But Shrestha did not threaten him with a legal case but instead filed the case directly because it would be more beneficial for him if he was able to terminate the tenancy arrangement and become the sole rightsholder of the land, which he could then sell without having to share the money (or land) with the tenant. When Shrestha filed the case in the LRO, the price of land was approximately Rs. 30,000 per 0.05 ha but the price has risen five fold and now it can be sold for Rs. 1,50,000 per 0.05 ha.

It is not clear either why the landlord and his tenant did not negotiate to end of the tenancy arrangement, as provided in the law. Shrestha claimed that he had suggested to Pandit that they end the tenancy arrangement by dividing the land between them as per the law but that he (Pandit) refused to entertain this suggestion. When the case was filed, the tenant had rights to one fourth of the land of which he was the registered tenant. Pandit himself could have asked his landlord or filed an application with the LRO for his share of the land and terminate the tenancy but he did not do this. It seems that for some reason he was not willing to end the tenancy arrangement even when his lawyer advised him, after the Supreme Court had directed the LRO to review its decision, that this was the best solution for him. By then the Land Related Act 1964 had been amended and tenants had rights to half of the land of which they were tenants. Perhaps he thought that he could finally win the case or that he would be able to successfully appeal to the landlord to allow him to continue the tenancy arrangement. A more likely reason could be that encouraged by his co-villagers and, as was rumoured, he believed that the law would be changed giving the registered tenants ownership rights to all the land of which they were tenants.

Pandit claimed that after the case was filed he had asked his landlord to give him his share of land and end the tenancy arrangement but the landlord had rebuffed him claiming that this could not be done while the case was being decided. But one of his lawyers said that he was not willing to end his tenancy arrangement and had gone to another lawyer who advised him to continue with the case and not try to settle the matter by dividing the land.

Pandit said that the legal process cost him lots of money and time. He had to sell a plot of his ancestral land to pay for the legal expenses (lawyers’ fees); his wife had to give up her job because he was busy with the case – had to visit his lawyers, attend the hearings, which were often postponed, etc. He perhaps spent as much money fighting the case as the value of the land he had would have rights to had he come to an agreement with his landlord or won the case. And when he finally lost the case, he lost his standing with his co-villagers. What was important was that he no longer had the (legal) right to cultivate the land which his family had been cultivating for several generations. And this is why he is keen to buy the land from the new landowner, even with borrowed money. For Pandit the case is not simply a question of law and justice or even livelihood but equally of status – his standing among his fellow villagers.

Pandit did not have access to many resources to fight the case. He had some income and family land he could depend on to meet his household and legal expenses but not enough to hire expensive lawyers or provide financial inducements to the judiciary. He did not have any political or administrative connections to persuade the court to decide in his favour or force his landlord to withdraw the case. His knowledge of law and his experience of the legal process were limited. Neither could he use the law as his resource because the law requiring documentary proof (receipt) of his having paid the rent did not support his claim.

However he did have access to some resources. The first was the support of the Land Reform Office which on two occasions ruled that his tenancy should not be terminated for failing to pay the rent for a year. The LRO did not cite any law to support its ruling but based its decision on its notion of justice. This was not a unique decision by the LRO because it usually favoured the tenants in tenancy termination cases. Most rural Nepalese would probably agree with the LRO that, whatever the law may decree, it would not be just to deprive a registered tenant of his tenancy rights only because he failed to pay rent for one year. Notions of justice are a powerful resource that can be used to garner support from the public, especially in the social field where the court decision has to be implemented. In cases where the court decision is not seen as being just, public support – and sometimes the support of political parties and some administrative officials – can be used to interfere with the implementation of the decision. Another important resource was that Pandit was in control of the land, i.e., the land lay in his village, and it would be difficult for Shrestha, who lived elsewhere, to prevent him from cultivating on the land. He was aware that Shrestha did not have sufficient resources to take control of the land.

Shrestha had access to several resources to pursue his case. He had sufficient income to fight the case and winning the case would benefit him enormously. He had plenty of time on his hand because he did not work anywhere and lived off rents. He had experience and knowledge of the legal process and law, having been involved in several court cases. And the law supported his claim: the defendant did not have any evidence of having paid the rent. Pandit claims that Shrestha deliberately did not give him the rent receipt so that he could be in a strong position legally when he filed his case to have the tenancy terminated. The law and the courts supported him in his efforts to terminate the tenant’s rights and become the sole rightsholder of the land.

Nevertheless Shrestha was unable to actually take control of his land and prevent Pandit from cultivating on it because he did not have sufficient and powerful administrative and political connections to ensure that the court decision was actually implemented. He was able to seek the help of the District Administrative Office and the Police to have Pandit jailed on several occasions for refusing to stop cultivating on his land because he had the required legal documents to prove his sole rights to the land but he did not have the powerful connections required to pursue the matter further and actually force his former tenant from using his land. If Shrestha had lived in the same village as his tenant and if he had good relations with the villagers, then he may have been able to take control of his land and prevent Pandit from using it. Social pressure and warnings by the Village Development Committee officials could have restrained Pandit from cultivating on the land from which he was legally deprived of his tenancy rights. But Shrestha lived in Kathmandu, belonged to another ethnic group, and supported a different political party and thus did not have any local support. It is very difficult to execute the court’s decision without strong local support.


The legal process, rule of law and justice

Shrestha took recourse to the legal process to seek justice as per the existing law of the land – in his case to terminate the tenancy rights of his registered tenant for failure to pay the annual rent (share of the main harvest). The Appellate and Supreme Courts applied the law and ruled that Pandit’s tenancy rights should be terminated. The Supreme Court also cited precedence in support of its ruling. The law of the land (and thus rule of law) was strictly applied by the court.

The Land Reform Office in its decision favouring the tenant did not apply the law of the land. It not only ignored the law it also favoured the defendant, Pandit, based on his status as a registered tenant. The LRO, which was established partly to protect the rights of tenants, based its decision on its own notion of justice – that a registered tenant’s tenancy rights should not be terminated just because of his failure to pay rent for one year. One of Pandit’s lawyers in fact used this argument in the Supreme Court to convince it to protect his client’s tenancy rights but the Court did not consider his argument valid in the situation where the law was clear on the termination of tenancy for failure to pay rent on time.

The courts applied the rule of law, without favour, based purely on the merit of the case and in accordance with the law of the land whereas the Land Reform Office did not apply the rule of law and favoured the tenant. The question is: was justice served by the application of or by refusal to apply the rule of law. Or rather from whose perspective was justice served or not served and in accordance with which law? Both the courts and Shrestha believe that justice was served by the strict application of rule of law whereas both the LRO and Pandit believe that justice was not served by the application of law. Their notion of justice in this case is not based on the strict interpretation of law but on a wider notion of what is fair, namely that a tenant should not be deprived of his tenancy rights for failure to pay rent for a year. The contestation about what constitutes justice, in this and other cases, is surely one of the major issues in any society.

In Shrestha's view, it is unjust for the law to bestow ownership rights of a portion of the landlords' land to the tenants. Landlords should have full ownership rights over their land which their ancestors had struggled to acquire and which, out of the goodness of their hearts, they allowed the tenants to cultivate. He said that the tenants should be grateful to their landlords for allowing them to cultivate the land and that they should pay the rent on time if they wanted to continue their tenancy. Shrestha used the law and the legal process to defend his rights and gain justice from his perspective. He also used the law to harass Pandit, for example, by having him jailed and filing a case of looting and beating in the court. It would be difficult to say that he used the legal process to resolve conflict and in any case the dispute has not been resolved even after the court decision.

Pandit, as the defendant in this case, could have either given up and resigned himself to the court's decision or tried to negotiate with his landlord. But he used the legal process to try to defend his tenancy rights and later resisted the court decision by defiantly continuing to cultivate on his (former) landlord's land. While he has faith in the courts for being fair and impartial, he believes that it was unjust for him to be so heavily penalized, i.e. termination of his tenancy rights, for not having the receipts for the rents which he had paid. In his view, tenants like him who had cultivated the land for generations and paid the rent annually should have secure tenancy rights and also rights to a portion of the land. For some reason despite all the problems Shrestha has caused him, he still believes that his landlord may somehow agree to give him a share of the money from the sale of the land. In other words, he still hopes that his former landlord would be just, despite having won the court case.


Conclusion

Law can be used for many purposes, such as to regulate and to repress but also to emancipate. People can use the law and the legal process to defend their rights, to resolve conflicts, to seek justice just as they can use it to deny rights, continue conflicts and deny justice. Just as the state and the elites can use regressive laws to deny human rights to the mass of population, often upheld by the courts which apply the existing laws of the land (rule of law), so too it is possible for the poor tenants to use progressive tenancy laws to defend their rights, if need be by using the legal process. A strict application of the rule of law could lead to justice but not always so, especially if the laws are not just. Thus efforts to improve the rule of law should also address the issue of the content of law, i.e. whether the existing laws are just. However, notions of just laws are usually contested. Further, it is also not sufficient to have just laws and an impartial, fair legal process because the poor, due to their lack of sufficient economic, political and social resources, often are at a disadvantage in fighting court cases and if they happen to win a court case, they face even greater difficulty in getting the decision actually implemented. If a middle class landlord is not able to get the court decision in his favour executed, how much more difficult it would be for the poor, powerless persons to get court decisions implemented. At the same time, the weakness in implementing court decisions may allow the weak (like the powerful), especially if they are supported by other citizens, to defy what they consider as unjust decisions. The legal process is supposed to resolve disputes and deliver justice but it is often the case that neither is dispute really resolved nor is justice actually delivered because of differing and changing notions of justice. The challenge to democracy then is to enact laws and reform the legal process in order to address these different and changing notions of justice.