No court appeal, no succession law: How Bill keeps enemy property with Custodianhttps://indianexpress.com/article/explained/no-court-appeal-no-succession-law-how-bill-keeps-enemy-property-with-custodian/

No court appeal, no succession law: How Bill keeps enemy property with Custodian

The Indian Express explains the changes made this week to the 1968 Enemy Property Act, intended to plug loopholes that have allowed courts to honour claims by heirs of people who left India in the wake of wars with China and Pakistan.

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Raja of Mahmudabad’s property. (Express Photo: Vishal Srivastav)

What is “Enemy Property”?

In the wake of the India-Pakistan wars of 1965 and 1971, there was migration of people from India to Pakistan. Under the Defence of India Rules framed under the Defence of India Act, the Government of India took over the properties and companies of those who took Pakistani nationality. These “Enemy Properties” were vested by the central government in the Custodian of Enemy Property for India. The same was done for property left behind by those who went to China after the 1962 Sino-Indian war.

The Tashkent Declaration of January 10, 1966 The Tashkent Declaration, inter alia, included a clause, which said that the two countries would discuss the return of the property and assets taken over by either side in connection with the conflict. However, the Government of Pakistan disposed of all such properties in their country in the year 1971 itself.

The Enemy Property Act was enacted in the year 1968 by the Government of India, which provided for the continuous vesting of enemy property in the Custodian of Enemy Property for India. The Central Government, through the Custodian, is in possession of enemy properties spread across many states in the country. In addition, there are also movable properties categorized as Enemy Properties.

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What are the main amendments made to the Enemy Property Act, 1968, in the Enemy Property (Amendment and Validation) Bill, 2016, passed by Lok Sabha on Wednesday?

The amendments passed in the Bill lay down that:

* The definition of “enemy” and “enemy subject” shall include the legal heir and successor of an enemy, whether a citizen of India or a citizen of a country which is not an enemy, and also include the succeeding firm of an enemy firm in the definition of “enemy firm” irrespective of the nationality of its members or partners.

* The enemy property shall continue to vest in the Custodian even if the enemy or enemy subject or enemy firm ceases to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir or successor is a citizen of India or a citizen of a country which is not an enemy.

* The enemy property shall continue to vest in the Custodian with all rights, title and interest in the property, and the Custodian shall preserve the same until it is disposed of by the Custodian, with the prior approval of the Central Government, in accordance with the provisions of the Act.

* The law of succession or any custom or usage governing succession shall not apply in relation to enemy property.

* No enemy or enemy subject or enemy firm shall have any right, and shall never be deemed to have any right to transfer any property vested in the Custodian, and any transfer of such property shall be void.

* The amendments through the Ordinance include that once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death etc; that law of succession does not apply to enemy property; that there cannot be transfer of any property vested in the Custodian by an enemy or enemy subject or enemy firm and that the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.

* The Custodian, with prior approval of the Central Government, may dispose of enemy properties vested in him in accordance with the provisions of the Act, and for this purpose, the Government may issue such directions to the Custodian that shall be binding upon him.

* The Central Government may transfer property vested in the Custodian which was not actually enemy property to the person who was aggrieved by the vesting order issued by the Custodian.

* No civil court or other authority shall entertain any suit or proceeding in respect of any enemy property or any action taken by the Government or the Custodian.

What do these amendments boil down to?

The thrust of the amendments is to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after the wars. The amendments deny legal heirs any right over enemy property. The main aim is to negate the effect of a court judgment in this regard. The Act gives the sole right of disposal of enemy property to the Custodian. Once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death etc., law of succession does not apply to enemy property, that there cannot be transfer of any property vested in the Custodian by an enemy or enemy subject or enemy firm, and the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.

Why was a need felt for such amendments?

According to Home Minister Rajnath Singh in the statement of objects and reasons in the Bill, “Of late, there have been various judgments by various courts that have adversely affected the powers of the Custodian and the Government of India as provided under the Enemy Property Act, 1968. In view of such interpretation by various courts, the Custodian is finding it difficult to sustain his actions under the Enemy Property Act, 1968.”

One such court judgment was passed in the case of the estate of the erstwhile Raja of Mahmudabad, who owned several large properties in Hazratganj, Sitapur and Nainital. Following partition, the Raja left for Iraq and stayed there for some years before settling in London. His wife and son Mohammed Amir Mohammad Khan, however, stayed behind in India as Indian citizens and were active in local politics.

After The Enemy Property Act was enacted in the year 1968 by the Government of India, the Raja’s estate was declared enemy property.

When the Raja died, his son staked claim to the properties. After a legal battle that lasted over 30 years, an apex court Bench comprising Justice Ashok Bhan and Justice Altamas Kabir on October 21, 2005, ruled in favour of the son.

The verdict opened the floodgates for further pleas in courts across the country in which genuine or purported relatives of persons who had migrated to Pakistan produced deeds of gift claiming they were the rightful owners of enemy properties.In July 2, 2010 when the President of India promulgated an ordinance that restrained courts from ordering the government to divest enemy properties from the Custodian, the 2005 SC order was rendered ineffective, and the Custodian again took over the Raja’s properties.

What are the main objections to the Bill passed on Wednesday?

Opposition parties labeled the Bill “anti-minority”. Barring TMC and AIADMK, all other Opposition parties wanted it to be sent to a Standing Committee before being passed. Section 18B of the Bill that says that no civil court or other authority shall entertain any suit or other proceeding in respect of any enemy property, has been red-flagged by the Opposition. The Congress has claimed that the Bill will “adversely affect the rights of lakhs of Indian citizens and principally… of the Muslim community”. According to the Congress, there are not too many Chinese properties at stake, and the Bill essentially affects properties of those who went to Pakistan, who “tend to be from only one community”.

What were the previous attempts at amending the Enemy Property Act, 1968?

To ensure that the enemy property continues to vest in the Custodian, amendments were brought in by way of an Ordinance in the Enemy Property Act, 1968 by the then UPA Government on July 2, 2010, which later lapsed. A Bill was introduced by it in the Lok Sabha on July 22, 2010. However, this Bill was withdrawn and another Bill with modified provisions was introduced in the Lok Sabha on November 15, 2010. This Bill was thereafter referred to the Standing Committee. However, the said Bill could not be passed during the term of the 15th Lok Sabha due to various issues, including differences within the UPA government, and it lapsed.

On January 7, 2016, the President of India promulgated the Enemy Property (Amendment and Validation) Ordinance, 2016 to make amendments to the Enemy Property Act, 1968.

How different are the Bills introduced by the NDA and UPA governments?

When the UPA government first introduced a Bill in Lok Sabha in July 2010 to amend the Enemy Property Act, it too was called “anti-minority”, and slammed by the Samajwadi Party and RJD. In the second Bill moved by the UPA government in November 2010, the amendments provided for ensuring that enemy property shall continue to vest in the Custodian till it is divested by the Central government, and the enemy property could be divested only to the owner or his lawful heir on condition that they establish their status to the satisfaction of the Government.

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As per the UPA’s second Bill, if the enemy property was divested from the Custodian before July 2, 2010, it would stand transferred to and vest or continue to vest in the Custodian. If, however, the enemy property was divested from the Custodian by a valid order prior to July 2, 2010 or where the property had been returned to the owner or his lawful heir by an order of the court; and if the lawful heir is a citizen of India by birth, such enemy property would continue to remain with such person.

However, while the Bill passed on Wednesday states that law of succession or any custom or usage governing succession shall not apply in relation to enemy property, the UPA’s Bill allowed India-born legal heirs to claim such properties.

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