Source: News Bharati English15 Mar 2017 10:12:48

New Delhi, March 15: Parliament on Tuesday passed the Enemy Property (Amendment and Validation) Bill, 2016 which guards against claims of succession or transfer of properties left by people who migrated to Pakistan and China after wars.
Notably, the Enemy Property (Amendment and Validation) Bill, 2016, which amends the Enemy Property Act, 1968, was passed by voice vote in the Lok Sabha, incorporating the amendments made by the Rajya Sabha last week.

The amendments to the bill in the Lok Sabha were moved by Home Minister Rajnath Singh. The Bill will replace the ordinance promulgated by the government. According to this bill, successors of those who migrated to Pakistan and China during partition will have no claim over the properties left behind in India.

Replying to the discussion in Lok Sabha, Minister Rajnath Singh clarified that the legislation in no manner violates the principles of natural justice and human rights. He said, if by mistake any property is declared as enemy property then the affected party can approach the grievance redressal mechanism as provided in the bill. He also clarified that no enemy property has been disposed of so far by the custodian. Responding to the concerns of members giving retrospective effect to the legislation, the Home Minister further said that there will be no adverse effect of it.

With this passage in both the houses of Parliament, the bill will be sent to President Pranab Mukherjee for his approval. Mukherjee’s nod on the bill will turn it into an Act.

Enemy Property Bill, 2016

The Enemy Property (Amendment and Validation) Fourth Ordinance was promulgated on August 28, 2016.  It amends the Enemy Property Act, 1968 and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Previously three similar Ordinances had been promulgated in January, April and May 2016.

The central government had designated some properties belonging to nationals of Pakistan and China as ‘enemy properties’ during the 1962, 1965 and 1971 conflicts.  It vested these properties in the ‘Custodian of Enemy Property’, an office under the central government.  The 1968 Act regulates these enemy properties.

Provisions of the Ordinance

Retrospective application:  The Ordinance is deemed to come into force on January 7, 2016, the date of promulgation of the first Ordinance.  However, several of its provisions will be deemed to have come into effect from the date of commencement of the 1968 Act.  Consequently, divestments (i.e., returning of property from the Custodian to the owner) and transfers of enemy property, which had taken place before January 7, 2016, and violate the Ordinance, will be considered void.

Definition of the enemy:  The 1968 Act defined an ‘enemy’ as a country (and its citizens) that committed external aggression against India (i.e., Pakistan and China).  The Ordinance expands this definition to include: (i) legal heirs of enemies even if they are citizens of India or of another country which is not an enemy, (ii) nationals of an enemy country who subsequently changed their nationality to that of another country, etc.

Vesting of enemy property:  The 1968 Act allowed for vesting of enemy properties with the Custodian, after the conflicts with Pakistan and China.  The Ordinance amends the Act to clarify that even in the following cases these properties will continue to vest with the Custodian: (i) the enemy’s death, (ii) if the legal heir is an Indian, (iii) enemy changes his nationality to that of another country, etc.

The Ordinance further provides that 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:  The 1968 Act provided that the central government may order for an enemy property to be divested from the Custodian and returned to the owner or another person.  The Ordinance replaces this provision and allows the 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.

The power of sale:  The 1968 Act permitted a sale of enemy property by the Custodian only if it was in the interest of preserving the property, or to secure maintenance of the enemy or his family in India.  The Ordinance expands this power, and allows the Custodian to 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 1968 Act prohibited a transfer of enemy property by an enemy if: (i) it was against the public interest, or (ii) to evade vesting of property in the Custodian.  The Ordinance removes this provision 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.  However, 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.  Further, the Ordinance amends the Public Premises Act, 1971 to provide the Custodian the power to remove unauthorized occupants and construction from enemy properties.

Interestingly, overall there are 16,000 properties across the country that have either been or are being taken over by the Custodian of Enemy Property for India (CEP) under the 1968 Act. Of these, the process to take over 9,400 properties which are estimated to be worth Rs 1 lakh crore has been successfully completed. The process to take over rest of the property has been already initiated.

YELLOW PADDING

Highlights of the Bill: The Bill amends the Enemy Property Act, 1968, to vest all rights, titles and interests over enemy property in the Custodian The Bill declares transfer of enemy property by the enemy, conducted under the Act, to be void. This applies retrospectively to transfers that have occurred before or after 1968. The Bill prohibits civil courts and other authorities from entertaining disputes related to an enemy property. Key Issues and Analysis The Act allows transfer of enemy property from the enemy to other persons. The Bill declares all such transfers as void. This may be arbitrary and in violation of Article 14 of the Constitution. The Bill prohibits civil courts from entertaining any disputes with regard to enemy property. It does not provide any alternative judicial remedy (eg. tribunals). Therefore, it limits judicial recourse or access to courts available to aggrieved persons.

Importantly, the above amendments will help in plugging 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.

YELLOW PADDING

However, Pakistan had taken over the properties of Indians and had sold them. In the Tashkent Declaration (signed in 1966), a clause was included to discuss the return of the assets and property taken over by either side in connection with the conflict. However, Pakistan Government had disposed of all such enemy properties in their country in 1971. Bangladesh is returning all such properties to their original owners.