THE ENEMY PROPERTY ACT, 1968 AND ITS AMENDMENT (2017)

Introduction 

The Enemy Property Act, 1968 is a governing act which regulates and enables the property appropriation in India owned by Pakistani nationals and is act passed by the Parliament of India. The act was passed after the 1965 war of India and Pakistan. The ownership has been passed to the government department, Custodian of Enemy Property for India. The act considers the property of those nationals who left their properties in India and are now residing in the Enemy Country as the “ENEMY PROPERTY”. This property includes both movable and immovable property.

These properties which were worth of one lakh crore have been identified by the Central government and it has ordered to see them off. The properties were highest in number in the states of Uttar Pradesh which had around 4,991 properties followed by West Bengal which had 2,735 enemy properties and Delhi which had 487 enemy properties. The Ministry had also passed an order the enemy shares which were worth of Rs. 3000 crore of value which expected.

The Enemy Property (Amendment & Validation) Bill, 2016, have been approved by Parliament after the Lok Sabha in March 2017 passed the Bill through a voice vote. 

How were these Enemy Properties are governed and Managed?

In 1968, the Enemy Property Act was passed and was made responsible for the regulation and management of the matters of the enemy properties. However, the Bill of Enemy Property (Amendment and Validation) was first introduced in 2016 in the Lok Sabha by Mr. Rajnath Singh (the Minister of Home Affairs) as it was felt there were some loopholes in the act which need to corrected. The selection committee was established when the bill was referred to the Rajya Sabha which had been directed to produce report in this regard. The bill (amendment and validation) aims to amend both the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 as well as the Enemy Property Act, 1968.

The Central Government in this bill has chosen some of properties which belonged to the native of China and Pakistan as the Enemy Property, after the external Belligerence performed upon India. A regulatory body named “Custodian of Enemy Properties in India” or “CEPI” had been established under the Enemy Properties Act, 1968. These orders which are passed by the CEPI cannot be intervened by the courts.

What was the need to introduce the bill, of everything was good?

The regulatory body which is the CEPI under the Enemy Properties Act, 1968 had certain powers and the body used to pass the orders in consonance of these powers which was also supported by the Court of India initially. Later on, however, when the various courts started giving their verdicts, these powers which were vested with the CEPI have been hampered. The following are some of the judgement given by the courts which have intervened with the procedure which was laid down in the Act: 

1. In the case of Union of India V. Raja MAMA Khan, the court had held the following: 

The property will be transferred through the successor if the “Enemy” dies and so, it will no longer be the property of enemy, if the successor is a citizen of India. Only the enemy of the property will be entitled to the property and the custodian will not be having any right, interest, and title in the property. By the virtue of the Section 6 of the aforesaid act the enemy can also sell off the property. The power of the Custodian includes the control, preservation and the management of the property of the enemy for a limited period as well as for the purpose. The succession law would be applied to the legal heirs of the enemy subject. 

1. In the case of Ambu Trikam Parmar V Union of India & others, the Bombay High Court held the following: 

The power of the Custodian of the Enemy Properties Act in India according to the provision of the Act does not include the eviction of an occupant in the unauthorized occupation, in absence of following the proper procedure such as the filing of the suit or the filing a suit for recovery. 

Government as a consequence of these judicial precedents believed that it was the need of the hour that intent of the legislation in relation to the Act of Enemy Property, 1968 needs to be clarified. Therefore, the amendments to the bill were introduced in 2016 in order to clarify the intention of the legislation.

Features of The New Bill 

1. After the introduction of the new bill, the enemy property can be exclusively used for public use by the government.
2. The change in the definition of the feature of the word “Enemy” is the very first feature of this bill. The word has now been made it be wider in scope and it now also includes the legal heirs of the enemy subject. This means that the successors of enemy would also be considered as an enemy when and if the enemy dies and they shall not be able to inherit the property. Thus, it is the sole authority of the Central Government to use the enemy property. 
3. The provides the Custodian with more rights and powers which means that a permanent status is now provided and the custodian shall now all the rights, interest and the title over the enemy property.
4. Regarding the succession of the enemy property, this bill provides for a clearer picture as it states that, in the matters of the enemy properties, the Law of Succession shall not be applicable. 
5. Under this bill, the Custodian now sell, dispose the property if the enemy and can even make eviction of unauthorized occupants. 
6. The present bill also states that the Civil Courts would have no jurisdiction and shall not entertain the matter related to the property of the enemy. Only High Courts and Supreme Courts shall have the jurisdiction to deal with such matter connected herewith.

Therefore, the clarity which was needed in the intent legislation regarding the Act of the Enemy Property, 1968 after the passing the Bill has been dealt with.

Violation of Article 14 And Retrospective Application

The word enemy “does not include a citizen of India” under the Section 2(B). however, the present bill of 2017 clearly states under section 2(1) (III) that “the expression ‘does not include citizen of India’ shall exclude, those Indian citizens, who are or have been a successor or a legal heir of an “enemy”.  The country and its legal citizens will now be devoid of their owing to the acts of their forefathers. 

To be precise, Indian citizens have been now classified into two classes by the present bill. One Indian citizen who are legal heirs of the “Enemy” and the second one’s are those who are the legal heirs of the Indian Citizen. This means that the present bill violates the vested rights in property, retrospectively. 

No Judicial Recourse 

 The Act gives deepens the violence of Article 14, under Section 7, 8A and 10A not only giving the executive unbridled and arbitrary powers but also narrows the judicial recourse for the citizens considerably. Under this act, there is no mention of any tribunal for the redressal of grievances. The principle of rule of law is trampled upon by this act, which has been read down by the Article 14 and has also been held as a part of the basic structure of the constitution of India in the case of Indira Gandhi v. Raj Narain. It has been held that separation of power was a part of the basic structure in the case of Kesavananda Bharti.

There is no doubt that act brings an equalizer which may satisfy a part of the population which has been provoked and pumped up against Pakistan, but it also deepens the powers which are arbitrary and unbridled in the custodian as it deepens the violation of Article 14 and it doubles the misery by narrowing down the judicial recourse for the citizens considerably. The disputed amendment restricts the recourse to judiciary and provides the custodian with excessive judicial powers under the Section 18B. The judiciary is barred from entertaining “any action which is taken by the Central Government or the Custodian”. Therefore, the amendment basically comments that the whether the property is an enemy property or not would be decided by the executive, by usurping the powers of the judiciary by opining that they cannot rule on these matters. A blind eye has been turned by the government to the letter and spirit of the Article 50 of the Constitution. 

View of the government

The view of the government has been made clear in the exchanges that have been take place in the parliament during the time of introducing the law. The main purpose of the Act is: “the property must not be held by the enemy in my territory. The enemy should not be enriched” as said by the Finance Ministry, Arun Jaitley. The individual who is a citizen of Pakistan has to send only one person of his family to India to acquire the Indian citizenship and claim the lost properties if this principle is accepted. The Pakistan government had disposed of all such properties in their nation back in the year 1971 itself. Hence, the government of India has no legal or moral obligation to do otherwise.

No doubt, that the act brings an equaliser which may satisfy part of the population which is provoked and pumped against Pakistan, but it also deepens the risk of the violation of Article 14 while wrestling all the arbitrary and unbridled powers in the Custodian and also doubles the misery by narrowing down the judicial recourse considerably for the citizens.