LEGAL DOSE Details
ENEMY PROPERTY ACT, 1968 WITH SPECIAL REFERENCE TO ORDINANCE 2016
ENEMY PROPERTY ACT, 1968 WITH SPECIAL REFERENCE TO ORDINANCE 2016
- In the wake of the India-Pakistan wars of 1965 and 1971, there was migration of people from India to Pakistan; the Government of India took over the properties of those who took Pakistani nationality. The same was done for property left behind by those who went to China after the 1962 Sino-Indian war
- In the year 1968 this Act was enacted by the Government of India to get control over such property spread across the country especially in Uttar Pradesh.
- The act barred the Indian citizens who claimed to be the legal and rightful heirs of the original owners from inheriting those properties.
- Under this act all these properties as called as “Enemy Properties” (movable & immovable) and powers is given to central government to take over properties owned by people who left for Pakistan or China when India was at war with these countries.
- Under Section 3 of the Act Central Government appoints a custodian for enemy property for India and one or more deputy/assistant custodians as assistances.
- All enemy properties in the country are within the control of this Custodian of Enemy Property
- The role of the Custodian was to preserve, manage, administer and control the properties on behalf of the enemy; ( Sections 8, 10 and 15)
- The Custodian had no power to sell the enemy property except under special circumstances namely there was no money with him to pay taxes and/or he had no money for preserving the properties and/or for the maintenance of that individual (enemy) or his family in India; (Sections: 8 (1))
- In addition, there are also movable properties categorized as enemy properties.
- Under the Act of 1968 Courts was having power to deal with the issues relating to enemy property.
ENEMY PROPERTY (AMENDMENT AND VALIDATION) FIFTH ORDINANCE, 2016
Need of Amendment
- There have been various judgments by 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 Custodians are 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 citizen
- 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 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 favor of the son.
- Soon after, there were more litigants who queued up to get back their properties. To ensure that the enemy property continues to vest in the Custodian, appropriate amendments were brought in by way of an Ordinance in the Enemy Property Act, 1968
The amendments to the Enemy Property Act, 1968 will eradicate the loopholes in the Act to ensure that the enemy properties that have been vested in the Custodian remain so and they do not revert back to the enemy subject or enemy firm.
The Enemy Property (Amendment and Validation) Bill, 2016 has the following salient features:
- 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.
- 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.
- Retrospective application: The Ordinance amends several provisions of the 1968 Act retrospectively. The ordinance nullifies all deals to transfer properties since 1968 and stipulates that once an enemy property is vested in the Custodian, it won’t matter if the legal heir is an Indian citizen or not. As a result, divestments (i.e., returning of property from the Custodian to the owner) and transfers of enemy property that had taken place before the promulgation of the Ordinance, which are not in compliance with the Ordinance, will be considered void.
- DEFINITION OF ENEMY: Changes and expanded the definition of enemy to include:
- Legal heirs of enemies even if they are citizens of India or of another country which is not an enemy
- Nationals of an enemy country who subsequently changed their nationality to that of another country, etc.
- VESTING OF ENEMY PROPERTY: In the following cases these properties will continue to vest with the Custodian:
- the enemy’s death
- (ii) if the legal heir is an Indian
- (iii) enemy changes his nationality to that of another country, etc.
- Vesting of enemy property with the Custodian will mean that all rights, titles and interests in the property will vest with the Custodian. No laws and customs governing succession will be applicable to these properties.
- DIVESTMENT: Enemy property to be returned to the owner only if an aggrieved person applies to the government and the property is found not to be an enemy property.
- Power of Sale: the Custodian can sell or dispose of enemy property. The Custodian may do this within a time period specified by the central government, irrespective of any court judgments to the contrary.
- Transfers by Enemies: The Ordinance removes the provision of transfer by enemies, and prohibits all transfers by enemies. Further, it renders transfers that had taken place before or after the commencement of the 1968 Act as void.
- Jurisdiction of Courts: The Ordinance bars civil courts and other authorities from entertaining cases against enemy properties. But it allows a person aggrieved by an order of the central government to appeal to the High Court, regarding whether a property is enemy property. Such an appeal will have to be filed within 60 days (extendable up to 120 days).
- Powers of the Custodian: The 1968 Act authorized the Custodian to take measures to preserve enemy property, and maintain the enemy and his family if they are in India, from the income derived from the property. The Ordinance removes the duty to maintain the enemy and his family.
BY- VINITA SINGH