Enemy Properties in India
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2016: Amendment and Validation Ordinance
The Times of India Jan 10 2016
Yusra Husain
Lucknow
Ordinance Gives The Custodians Full Rights
If those who left India for Pakistan after 1947 and during the Indo-Pak wars of 1965 and 1971 were dubbed “enemy subjects“, an ordi nance signed by President Pranab Mukherjee last week now decrees that even their heirs cannot inherit proper ty they owned, even if they are Indian citizens.
The decision on heirs of enemy property comes close to half a century after the Enemy Property Act was first promulgated in 1968. Earlier, there was ambiguity around whether Indian citizens could “inherit“ property belonging to “enemy subjects“.
The ordinance, which amends the Enemy Property Act, 1968, retrospectively , says the heirs will not have any right on ancestral property that has been marked “enemy property“. And it has vested powers in the government custodian of all enemy property in India to sell the said properties off, without compensation.
The ordinance outlines that once an enemy property is taken up by the custodian, it will remain so even in case of death of the “enemy subject“ or “extinction of the enemy“.The ordinance will be tabled in Parliament in its next session.
The Modi government has repeatedly declared that it is averse to retrospective changes in laws. Interestingly, however, the ordinance does just that by saying that the various substitutions being made in clauses of the Enemy Property Act, 1968, “shall always be deemed to have been substituted“.
The Enemy Property (Amendment and Validation) Ordinance, 2016, comes at a time when Raja Mohammad Amir Mohammad Khan, known as Raja Mahmudabad, is fighting a legal battle in the Supreme Court to get back his property from the “custodian“, entitled to him by a previous Supreme Court order.
In October 2005, Khan had won a 40-year battle to free his inheritance from the infamous tag of “enemy property“.
Raja Mahmudabad's father had migrated to Pakistan in 1957, while his mother, Rani Kaniz Abid, and he chose not to migrate and remained Indian citizens at all times. In 1965, after hostilities between India and Pakistan broke out, the Enemy Property (Custody and Registration) Order, 1962, was issued.
Under this, all immovable properties in India belonging to Pakistani citizens were taken over by the custodian.This vesting of property continued till 1977. Reacting to the amendments that have been brought with the new ordinance, Raja Mahmudabad, whose assets are spread across Uttar Pradesh and Uttarakhand, said: “The matter is sub judice. But, as I understand, the Indian government is trying to take away rights of the Indian citizen. I am fighting that.“
It was in 1973, when his father died in London, that Raja Mahmudabad inherited properties under the Oudh Estate Act, 1869, and as a citizen of India himself, contested that he be handed over the properties.
He was given relief in 2005 by the Supreme Court that passed an order in his favour, and some of his properties in Lucknow and Nainital were re-vested to him only to be seized again by the custodian in keeping with an ordinance of the Act in 2010.
As per the Enemy Property Act, the custodian had temporary right over enemy property . Within this, the custodian was to manage, preserve and look after its administration on behalf of the “enemy subject“.
The income that was generated from these properties, if sold or rented out, was submitted to the account of the “enemy subject“. However, with the current ordinance, the custodian will have full rights over the properties concerned, as well as the rights to sell them off as soon as the central government provides a timeframe for it.
The income generated on it thus, will be deposited to the Consolidated Fund of India with details provided to the Centre.
