Heirs to challenge Enemy Property ordinance

Raja Mohammad Amir Mohammad Khan, one of the many Indians who have been divested of their properties under the Enemy Property Act of 1968, has challenged the Enemy Property (Amendment and Validation) ordinance, 2016 of January 7, 2016 which was re-promulgated by the Centre on April 2, 2016. At stake is his property reportedly worth Rs 5,000 crore.

The 2016 amendment widens the definition of enemy to include the legal heir and successor of an enemy whether he is a citizen of India or citizen of a country which is not an enemy. It implies that a legitimate Indian citizen will become ‘enemy’ for the purpose of the Act if they are the legal heirs or successors of those who migrated to Pakistan or China. It is not just Mr Khan, who will be hit by the amendment. According to the custodian of enemy properties, there are around 15,000 such properties in India, including the Jinnah House in Mumbai.

The amendment has been prompted after the government and the Custodian faced a slew of requests from people claiming to be heirs or successors or receiving enemy land through gift deeds after 2005 wherein the Supreme Court directed the government to release the Mahmudabad properties and restore them to the present raja. The properties include large chunks of Hazratganj in Lucknow, the Metropole Hotel in Nainital, a large part of Sitapur town and Butler Palace. Speaking about the writ petition filed by him against the ordinance, Khan who is known as Raja of Mahmoudabad said that he had challenged the January 7, 2016 ordinance and added the April 2, 2016 ordinance in the petition on April 5. “The case against the 2016 ordinance has been tagged with another case wherein we are fighting against the 2010 ordinance. The amendments are egregious and will create bifurcation and term Indian citizens as enemy. It also bars the aggrieved from approaching the court as it vests power in the hands of the executive over the judiciary,” said Mr Khan.

He is the legal heir of Raja Mohammad Amir Ahmed Khan who took up Pakistani citizenship in 1957 and died in 1973 in London. Mr Khan who remained an Indian citizen has been fighting legal battles for the past 30 years for restoration of properties worth thousands of crores of rupees that were taken over by the government and vested with the Custodian of Enemy Property since 1965 as he is the successor. His efforts were rewarded after the Bombay high court ordered restoration of all properties to him and he managed to get nearly 95 per cent of the properties by 2005 after an appeal by the government against the high court order was struck down by the Supreme Court. However, in 2010 all his properties went back to the Custodian after the previous government tried to amend the Act through an ordinance.

“We had challenged the 2010 ordinance and have now challenged the 2016 ordinance too. All I can say is that the 2016 ordinance is worse than the 2010 ordinance of the UPA government as it gives arbitrary powers to the Custodian and is unconstitutional,” said Mr Khan.

Some of the members of parliament have also opposed the amendment on the ground that it will affect not only persons from the Muslim community but also those who have purchased enemy properties from the Custodian or the original owner after 1968.

The 2016 amendment Bill was examined by a Select Committee of Rajya Sabha on April 4 and 5 after the house was of the opinion that the Bill in its current form should not become a law and needed a more detailed scrutiny and discussion to render it fair and just. The Select Committee is expected to meet again on April 11 and 12 to take a final call on the issue and decide whether the Bill should be passed with or without amendments or not passed at all.

What is the Enemy Property Act 1968 and what does the amendments say During the wars with Pakistan and China, their citizens were deemed as enemies and this included all those who migrated from India to Pakistan at the time of migration. They had left behind properties in India which came to be deemed as ‘enemy properties’. The 1968 Act categorically excluded Indian citizens from the definition of enemy thereby extending a protection to the legal heirs and successors of those who had left for Pakistan from the effect of the Act.

What is the amendment The law of succession or any custom or usage governing succession shall not apply in relation to enemy property. It means that no enemy property will pass on to the legal heir or successor who is supposed to be the legal owner but rather it will be taken away by the Custodian.

No civil court or other authority shall entertain any suit or proceeding in respect of any enemy property or any action taken by the Government or the Custodian.

No enemy shall have any right and shall never be deemed to have any right to transfer any property vested in the Custodian and any transfer of such property shall be void.

The thrust of the amendments is to negate claims of succession or transfer of properties of people who migrated to Pakistan and China after the 1965 and 1971 wars. Thus legal heirs will be denied any right over enemy property. The amendments also aim at negating court judgments in this regard which happened after the Supreme Court ruled in favour of Raja of Mahmoudabad. The Act also gives sole rights of disposal of enemy property to the Custodian and an enemy property vested with the Custodian will continue to be vested in him as enemy property irrespective of whether the enemy has ceased to be an enemy due to reasons such as death, extinction, etc. It also absolves the Custodian from paying maintenance earned from enemy property to the heirs and gives the Custodian absolute powers to take over properties owned by Indian citizens just because their ancestors migrated to “enemy lands”. What is the role of the Legislature The powers that the amendments to the Enemy Property Act will vest in the Custodian and the central government prompted Members of Parliament (MP) Husain Dalwai along with Tiruchi Siva, D.Raja, K.C.Tyagi, Javed Ali Khan, P.L.Punia to opine that the Bill, in its current form should not become a law and moved an amendment to refer the Bill to a Select Committee so that a more detailed discussion can happen on the Bill in an effort to render it fair and just. The government agreed to refer the Bill to a Select Committee and the proceedings of the Committee are currently underway under the Chairmanship of Bhupender Yadav. The Select Committee met on April 4 and 5 and will reconvene on April 11 and 12 to reach a concensus on whether the Bill can be passed or not. The Lok Sabha has already passed the Bill in March 2016.

Previous attempts to amend the Enemy Property Act, 1968 With an aim to ensure that enemy property continues to vest with the Custodian, the UPA government on July 2, 2010 brought amendments by way of an ordinance. A Bill was introduced in the Lok Sabha July 22, 2010, however the Bill was withdrawn and another Bill with modified provision was introduced in LS on November 15, 2010. The Bill was referred to the Standing Committee but could not be passed due to various reasons including differences within the UPA government and it lapsed. The NDA which was in the opposition at the time had also opposed the Bill.

Who will be affected by the amendments As the amendments are intended to have a retrospective effect and will be treated as part of the original Act of 1968 the amendments will affect mostly the Muslim community. However, it will also bring under its purview persons who have come in possession of property that was owned by a person who migrated to Pakistan or China through sale or transfer either from the owner or the Custodian after 1968.

What is the count of enemy properties The list of enemy property that was only 2,500 in 2005 has grown to more than 15,000 in 2015 and is expected to go higher. The total worth of the properties is estimated to be Rs 1 lakh crore in immovable properties and Rs 2,000 crore in the form of shares and movable property.