Enemy Property : Erroneous Claims Denied

The longstanding proposal to deny the claim for the properties of heirs who migrated to Pakistan and China during Partition is ratified by the Parliament

Sanjay Kumar Visen

The Defence of India Rules, 1962 came into force with effect from November 5, 1962 which provided that the Central Government was authorised to appoint a Custodian of Enemy Property in India to preserve enemy property and these Rules were deemed to be the Rules under the Defence of India Act. The hostilities between India and Pakistan broke out in the year 1965 and thereafter the Enemy Property (Custody and Registration) Order, 1965 was issued by the Government of India. The overall effect of the said Order was that all immovable property in India belonging to or held by or managed on behalf of Pakistani nationals stood vested in the Custodian of Enemy Property in India with immediate effect. Further, the Enemy Property Ordinance, 1968 was promulgated and thereafter it was substituted by the Enemy Property Act, 1968 in July, 1968.

The object of the Enemy Property Act was for the administration of the Chinese and Pakistani properties which are already vested in the Custodian of Enemy Property for India. The management of the said properties by the Custodian of Enemy Property for India has to continue, as it has not been possible for the Government of India so far to arrive at settlement with the Governments of Pakistan and China. The said Act has seen several amendments in 1977 and 2010 and now after several ordinances finally, the Enemy Property (Amendment & Validation) Bill, 2016, was passed by the Lok Sabha on 15.03.2017, incorporating the amendments cleared by the Rajya Sabha. The said bill had expanded the definition of “enemy” as defined under the Enemy Property Act, 1968. Earlier an ‘enemy’ was defined as a country (and its citizen) that committed external aggression against India where as the said bill includes the legal heirs and successors of enemies if they are citizens of India or of another country which is not an enemy and national of an enemy country who subsequently changed their nationality to that of another country. The said bill also enlarges the definition of “an enemy firm” likewise.

The real effect of the said Bill will be that now the Inheritance law will not be applicable on enemy property andsuccessors of those migrated to Pakistan during partition and after conflict with China will have no claim over theproperties left behind in India. The only case on the point, which went up to the Supreme Court under the Enemy Property Act, 1968 and was decided on October 21, 2005 which had led to this bill of 2016, is Raja Mohammed Amir Mohammad Khan’s case. In this case, Raja Mohammed Amir Mohammad Khan is the son of the Raja of Mahmudabad in District Sitapur, UttarPradesh. In December 1957 the erstwhile Raja of Mahmudabadmigrated to Pakistan and became citizen of Pakistan. However, Raja Mohammed Amir Mohammad Khan and his mother Rani Kaniz Abdi continued to reside in India as Indian citizens. The erstwhile Raja of Mahmudabad died in London in October, 1973. After the death of Raja of Mahmudabad, his son made various representation to the Government of India to release the property as the same could not continue to vest with the Custodian after the death of his father and thereafter having vested in him. That in 1981, the Custodian of Enemy Property wrote a letter to him asking for legal evidence regarding the heirs and successors of his father to enable him to release the properties to the extent of 25 per cent. In a suit filed by the Raja Mohammed Amir Mohammad Khan, the trial Court decreed the suit in 1986 wherein it was declared that he was the sole heir and successor of his father and thereby entitled to 25 per cent or whatever percentage it may be of the property in the suit.

That despite the above decree, the Government did not hand over the properties to Raja Mohammed Amir Mohammad Khan and then he filed Writ Petition before the High Court of Judicature at Bombay praying, inter alia, for a declaration that the properties vested with the Custodian ceased to be enemy property and stood divested from the Custodian from the date of the death of his father and that the possession of the Custodian was illegal and without authority of law. The High Court directed the Custodian of Enemy Property to hand over possession of the properties,actual or juridical, as the case may be, to the Raja Mohammed Amir Mohammad Khan. That some of his properties were returned to him after the direction of the Supreme Court in the year 2005 but only to be re-vested in the Custodian of Enemy Property on promulgation of the Enemy Property Ordinance of 2010.

That the remarkable feature of this Bill is that it is effectiveretrospectively and consequently, any divestments and transfers of enemy property which had taken place before January 7,2016 by virtue of any order of attachment, seizure or sale in execution of decree of a civil court or orders of any tribunal or other authority in respect of enemy property and are in contravention to the provision of the bill will be null and void and notwithstanding such transfer, continue to vest in the Custodian. The maximum impact of this bill, after it turns in to Act, is on heirs of Raja of Mahmudabad, who laid claims to his properties spreading across the State of Uttar Pradesh and Uttarakhand.

That further, this bill seeks to remove the duty to maintain the enemy property and his family as envisaged in the 1968 Act and permits the Custodian fixing and collecting rent, licence fee etc. from enemy property and evicting unauthorised occupants and removing unauthorised construction from such properties thereby amending the Public Premises Act, 1971 by including enemy property within the definition of public premises. The said bill brings structural changes to gain financial proceeds from the enemy property and thereby may be used for welfare activities. It’s a most welcome step and the Union Home Minister had rightly said that “It will be natural justice” if the properties of those who have gone to Pakistan are not returned as Pakistan has “seized the properties of the IndianCitizens”.

At the time of penning down this article, the Enemy Property Ordinance, 2010 and Ordinancepromulgated in January, 2016 are under challenged before the Supreme Court and the matter is sub-judice since then.

(The writer is Advocate-On-Record, Supreme Court)

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