Enemy property is the property owned by Pakistani Chinese nationals who left India during the conflicts of 1962, 1965 and 1971. According to the Enemy Property( Amendment and Validation) bill legal heir and successor of an enemy whether citizen of India or a citizen of country which is not an enemy.
What constitutes Enemy Property?
Enemy property constitutes all immovable property, all negotiable instruments such as debentures, shares and promissory notes, all lockers and safe deposit and certain movable properties.
Regulation of Enemy property
• Enemy property is regulated by centre through Enemy Property act 1968. Lok sabha has passed The Enemy Property( Amendment and Validation) bill 2016. Recently government promulgated fourth ordinance on Enemy Property act 1968.
• According to the enemy property act 1968 centre established Custodian of Enemy Property for India to appropriate property in India owned by Pakistani and Chinese nationals after the conflict of 1962, 1965 and 1971.
• Citizens of India are banned from engaging in any sort of transactions with Enemy property under this act.
Why it is promulgated
• In 2005 Supreme Court reduced the powers of Custodian of Enemy Property for India, in the case of Raja of Mahmudabad, by directing authorities of Custodian to hand over properties of Raja of Mahmudabad.
• Ordinance was promulgated in 2010 to amend enemy property act 1968 so as to uphold the powers of centre and Custodian of Enemy Property for India to Enemy property or Enemy Firm.
Effects of this Ordinance
1. Violation of constitution
Ordinance declares the transfer of enemy property from enemy to other persons is void, which is violation of Article 14 of constitution of India and Right to Property. Ordinance is violation of fundamental right because it prevents the heirs of enemies living in India ie, citizen of India to sell or transfer the property.
2. Judicial Recourse
It prohibits civil courts and other authorities from interfering in disputes related to enemy property. Thereby it denies access to courts to redress grievances.
3. No Alternative Remedy
Ordinance does not provide any provisions for alternative Judicial remedy to redress grievances.
4. Retrospective Effect
Ordinance declares transfer of Enemy property conducted by enemy before or after 1968 as void, which creates much of chaos ,confusion and invalidates the transactions carried on before the promulgation of ordinance.
5. Centralisation of Powers
• Ordinance vests Custodian of Enemy property of India under central government with all rights, titles and interest over Enemy property.
• Ordinance also ignores succession laws and customs related to enemy property.
• According to the Ordinance Custodian of Enemy property of India would enjoy power over enemy property if legal heir is citizen of India and also on the death of enemy.
6. Limits of Divestments
Ordinance empowers Custodian of Enemy property of India to divest enemy property:
• only if the property ceases to be enemy property
• only on the application of aggrieved person
7. Powers of Centre
• Ordinance vests more powers to centre regarding disposal of enemy property by directing Custodian of Enemy property of India to sell within the time period specified by centre ignoring the circumstances and interest of enemy and his/her legal heirs in India.
• It empowers centre to direct Custodian of Enemy property of India to sell enemy property irrespective of any court judgements.
8. Removal of Maintence
Ordinance disassociates the Custodian of Enemy property of India from the maintence of enemy and his family with the income derived from the property.
9. Anti-minority Stand
In major outlook Ordinance is viewed as anti-minority by critics, because majority of enemy property belongs to Muslims who migrated to Pakistan
1. Government should take enough measures to pass the bill by parliament rather than approaching the ordinance route.
2. The amendment should provide alternative Judicial remedy to redress the grievances of the Correspondents of enemy property.
3. The amendment should uphold the right of legal heir of enemy property being citizen of India to transfer or sell property.
4. The amendment should support the maintenance of enemy and his family from the income derived from the property
5. Restrospective effect of the ordinance should be diluted to recognise transfer of enemy property at certain circumstances
The enemy property (amendment and validation) ordinance should be amended in such that it upholds the Soverginity of India with respect to enemy property and also recognising the valid rights of legal heirs of enemy property.
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