The bill to free properties worth thousands of millions of rupees from the shackles of enemy heirs: Parliament amends Enemy Property Act, 1968
In the ‘99 Bollywood movie ‘Sarfarosh’, the main reason why ‘Gulfam Sahab’ played by Naseeruddin Shah conspired a betrayal against his own country India was because his naturally inherited property, his ‘Pushteni Haweli’ was confiscated by the government after the Partition thereby discouraging him to use that property for any anti-national activities he had planned. Little did he know that it was done rightfully under an act of Parliament.
The Enemy Property Act was enacted by the Government of India after the Chinese aggression of 1962 and was promulgated in 1968 after the Indo-Pakistani War of 1965. It authorized the Central Government of India to appoint a custodian for all enemy properties.
The movie doesn’t clarify on that, is it?
Elsewhere around the world too, several countries have similar acts to manage properties created by war that can no longer be called as ‘war loot’ under the Fourth Geneva Convention. And every country defines its own ‘enemies’. Under this Act, enemy Property refers to any property belonging to, held or managed on behalf of an enemy, an enemy subject or an enemy firm. Historically, for India, the act was brought to manage Pakistani properties taken in the Second Kashmir War of 1965 but it is no more limited to that now.
Apparently, a lot of Properties and companies in India, spreading across many states in the country worth over thousands of crores of Rupees in the form of movable (shares or bonds) or immovable (like buildings or land), were owned by people who chose to migrate to Pakistan after partition and post India-Pakistan war of 1965 and 1971, to Bangladesh, which was created after the 1971 Indo-Pakistan conflict and to China post the 1962 China-India War. All such properties come under the gambit of this act.
The Enemy Property (Amendment and Validation) Bill, 2016 is introduced to amend the Enemy Property Act, 1968 and the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The bill was passed by the lower house on Wednesday, after incorporating the suggestions of Rajya Sabha and amends the original Act by putting a very important clause that ‘the natural Inheritance law will now not be applicable on Enemy Property’ and that the custodian, appointed by the government, will continue to be the custodian (one of the most significant amendments) who will have all the rights, irrespective of if the enemy ceases to be the enemy.
“The Custodian has the power to dispose or sell enemy properties; it may do so within a time period specified by the central government irrespective of any court judgments to the contrary; in this regard, the Custodian may take the help of police; the sale proceeds will be deposited in the Consolidated Fund of India.”
In its verdict dated 2005, the supreme court had said that on the death of an enemy, the property devolves in succession and ceases to be enemy property if the successor is a citizen of India giving the acquirer the natural power to sell the property by virtue of Section 6 of the Act. But also clarified that the “enemy property must go to the State if at all it is an enemy property” and left the issue for Parliament to decide further. The amendment, brought forth, plugs the ambiguity in the ownership of the property completely.
For a healthy democracy, several laws must be enacted to keep the interest of national security and integrity in mind. The policy-bankruptcy of Congress and unwillingness of its lawmakers to amend the law has led to the fall of properties worth crores into the hands of dubious elements.
To understand the gravity of this amendment, consider a situation when an antinational flees to Pakistan or china and leaves behind his property to be acquired by his kin in India. Would it not directly mean securing their future too? Laws must serve as a strong deterrent toward anything which is against India’s national security, but the absence of this amendment would mean a compromise on the same. Thankfully, the government, by bringing this amendment, has eliminated all plausible threats arising out of such claims. What does this mean is many such properties, after their owners migrated away, that had already been acquired by their natural heirs, which, as said, include nationals of Pakistan and China, will now stand clear of their claim by any such heirs.
“The law only applies on heirs of enemy property. The tenants of those properties will be governed by the Tenancy Act,” Rajnath Singh said in the Parliament settling to questions raised by opposition citing violation against the principle of natural justice. “If there are any tenants of such properties, they will remain unaffected” he added.
Similarly, there are properties in Pakistan that are left by Indian who migrated here. All such properties have long been seized unilaterally by the Pakistani government, violating the Tashkent Declaration signed on January 10, 1966 regarding the return of the property and assets, and have not being given to their natural heirs. So, in a sense, India, by bringing this amendment, is only reciprocating a natural justice.
What triggered the ordinance was the Estate of Mahamudabad that includes around 900 properties in Uttar Pradesh alone. Raja of Mehmoodabad, leader and treasurer of the All India Muslim League and a close aid of Pakistan’s first governor-general Muhammad Ali Jinnah, inherited the Estate in 1931 during the Pakistan Movement. He left India after partition and after his death in 1973, the property of the Estate was taken over by Government of India under the original Act. The King was survived by his wife and only son, the natural heir Raja Mohammad Amir Mohammad Khan who, after fighting a long legal battle to acquiring his father’s property, did infact won in 2005. But since then, a number of ordinances have been introduced to block him from acquiring the properties and this amendment puts the last nail in the coffin. Because of the absence of this amendment, there were other claims too such as by the kin of Liaquat Ali Khan over half of Muzaffarnagar city, another person claimed nearly one-third of Agra and so forth.
While there continue to be voices against the bill, that say that the law will keep away the natural ownership of the families of those who migrated to Pakistan and China, and unfairly adding the heirs of enemy, albeit Indian Nationals, in the extended definition of the enemy, the government was successful in defending that the move is in larger public interest.
In the absence of this amendment, the heirs can claim their stake on the properties and acquire them, and government will have no law to protect such properties from corruption and loot. And thus, retrospectively, this change should be seen as one that integrates national properties, safeguarding them and nullifies any claim of succession or transfer of properties on them. So that such properties do not, by any loophole, go back to the enemy subject or enemy firm again.
As expected there have been dissenting voices against this amendment. Congress was dead against the bill. While some “analysts” suggest that this amendment treats Muslims unfairly while others were of the opinion that it is akin to punishing son for the deed of his father. After going through the technicalities, I am sure the reader would understand that it is not,
The only task for the government now is to ensure that all the Office of the Custodian of Enemy Property (CEP) identify all such property (the current figure is over 16,000) and that the proceeds from enemy property, which is roughly estimated to be worth over Rs one lakh crore in immovable, should be used for development and welfare activities.