Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Union cabinet passed the ordinance to amend the nearly 5 decade old Enemy Property Act, 1968 and Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to guard against claims of succession or transfer of properties left by those who migrated to Pakistan and China after war.
Concept of enemy property
The India-Pakistan wars of 1965 and 1971 saw 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.
There are large number of properties spread over 12000 acre in India which belong to Pakistani or Chinese nationals. These properties are worth more than 1 lakh crores. There was an enemy property act prior to independence in which Japan and Germany were considered enemy as per the British laws but after independence, it was re-modelled and only Pakistan was the enemy country. Later, China was added after 1962 war.
Enemy property act, 1968
This act was not supposed to have any permanence in the beginning, because the talks were going on between Pakistan and India to solve their respective property issue. So, there was a hope that Pakistan will enter into some agreement to that effect. But, Pakistan sold off the enemy properties owned by Indian nationals, according to their law in 1971 itself.
Thus, there was nothing to negotiate and India had to now appropriate the property.
Need to amend the act?
Lately, there were judgements 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.
Flaw in the 1968 law- if the enemy died and if its successor were residents of India, then they will not be considered as enemies. 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 but his wife and son stayed as Indian citizens. His property was declared enemy property after enactment of 1968 law. After Raja’s death, his son claimed the property and the courts also ruled in his favour.
Thus, the necessity had arisen because of judgements of SC and other courts whereby there was a need to give this property bill a permanent shape and also to give more powers to the Custodian. Hence the need to amend the law.
Enemy Property Ordinance, 2016
The ordinance was promulgated in January 2016, the bill was passed in Lok Sabha in March 2016 and referred to select committee of Rajya Sabha. Since then, the ordinance has been amended four times and re-promulgated so that it does not lapse due to time taken by select committee.
Provisions of ordinance
The fourth amendment has incorporated suggestions made by the select committee the ordinance had a retrospective effect so that previous lacuna in earlier act could be taken care of.
Earlier it was a transitory kind of provision now it has become permanent where Custodian will have more powers.
Definition of enemy has taken a quantum change. Earlier the successor of enemy were not considered enemy. Now even successor of the enemy property will also be treated as enemy. There is a provision by which the enemy property cannot devolve. So it will not go to anybody by way of succession. Purpose of amendment is to clarify that law of succession will not apply to legal heir or successor of the enemy.
The public premises (eviction of unauthorised occupants act) 1971– the powers have been given to Custodian to fix and collect rent, lease the property, collect license fee, user charges and secure the vacancy of possession by way of evicting unauthorised occupants and constructions under the public premises act. All these powers have been given with the view that the property is put to some use.
Vesting of properties– 1968 act allowed for vesting of property to the Custodian after the conflict with Pakistan and China. Now the amendment clarifies that Custodian will continue to hold the property even if the enemy has died or the legal heir is or has become Indian citizen or if the enemy has changed his citizenship. Even if the person ceases to be enemy, the Custodian can sell, dispose, give on rent or get it evicted. Place of death of enemy subject will have no meaning or impact on the act and the property will continue to vest with the Custodian.
Return of property- 1968 act provided that central government may order for the enemy property to be divested from Custodian and return to owner. The Ordinance replaces this provision and allows return of property to owner only if an aggrieved person applies to the government.
Any transfer made of any enemy property after 1968 will stand to be void. It is a retrospective
The civil courts will not have any jurisdiction. Only HCs can be approached with petitions. The Custodian will have quasi-judicial powers to manage the properties.
Need for such amendments
These amendments make economic sense. In 1970s there was a hope that Pakistan would negotiate some kind of bilateral arrangement on the property left by Indian citizens but they sold it off. So, the property has to be used and maintained rather than let it deteriorate or usage by unauthorised people.
Legally also it is important as unintended benefits are being taken by some people.
Thus, it is a reasonable step taken by government.
Dissent against the amendments
There had been opposition in Rajya Sabha for the amendments because
Violation of rights– Indian citizens are deprived of their rights of inheritance and succession
Violating natural justice– courts don’t have the power of adjudication
This act clarifies the legal status of enemy property in India. However, the process of identifying the enemy property has not been completed as stated by Select Committee. So the act has to be modelled in a way so that it is completed and put an end to the whole process.
Connecting the dots:
What is enemy property in your understanding? Why was there a need to amend the enemy property act, 1968?