Enemy Properties in India
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SC: government gets enemy properties, descendants of erstwhile owners don’t
Enemy property must go to govt, says SC, Feb 7, 2017: The Times of India
`No Transfer To Erstwhile Owners' Descendants'
The Supreme Court said enemy property should not get transferred to the descendants of the erstwhile owners and must go to the government.
“We are of the view that enemy property should not get transferred to the descendants of the erstwhile owners. It must go to the government. We are very clear about it,“ a bench of Chief Justice J S Khehar and Justice N V Ramana said.
The court refused to entertain Congress Rajya Sabha MP Husain Dalwai's writ petition challenging the validity of the Centre's decision to re-promulgate the enemy property ordinance for the fifth time, terming it a violation of a recent constitution bench decision.
“This is a very sensitive issue for the security of the nation. We have perused the constitution bench judgment.There cannot be a hard and fast rule. You are an MP . You get the debate started in Parliament. Everyone's right should be protected but you must also be sensitive towards national security ,“ the bench added.
Senior advocate Anand Grover continued to plead that re-promulgation of the enemy property ordinance was contrary to the law laid down by the SC but the bench was unmoved.
Finding it difficult to convince the bench, Grover withdrew the petition. The Enemy Property (Amendment and Validation) Ordinance, 2016 was promulgated by the President on January 7, 2016 to amend the Enemy Property Act, 1968 and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. A bill on the same lines was passed in Lok Sabha on March 9, 2016. The next day , it was laid before Rajya Sabha, which referred it to a select committee on March 15. A day later, Parliament was adjourned. The ordinance was repromulgated on April 2 last year. Parliament met again but no legislative action was taken. It was re-promulgated for the third time on May 31, 2016. The process continued and it was re-promulgated for the fifth time on December 22 last year and the government did not even care to specify what the grave urgency was for re-promulgating the ordinance.
The petitioner had cited the January 2 judgment in Krishna Kumar Singh case by a constitution bench of the SC, which ruled, “Re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is the primary source of law making authority in a parliamentary democracy .“
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.
