The Modi government has promulgated an ordinance that allows it to take over such property even if it has legal heirs who are Indian citizens and bars civil courts from entertaining such cases
By Ramesh Menon
Nearly seven decades after the Partition and five decades since the 1965 war with Pakistan, the NDA government is brusquely trying to rewrite a law giving it control over 16,000 properties worth thousands of crores belonging to In-dian Muslims. It is called “enemy property” as it was once held by someone who opted for Pakistani citizenship and is vested with the government. This is irrespective of the fact that the property is presently held by their legal heirs who are Indian citizens.
After the 1965 war with Pakistan, the Indian government designated some properties belonging to nationals of Pakistan and China as “enemy properties” during the 1962, 1965 and 1971 conflicts. It vested these properties in the “Custodian of Enemy Property for In-dia”, an office created for this purpose. Then, in 1968, the Enemy Property Act came into being (see box: Then and Now). Some legal heirs went to court and won the case, getting back their property.
But early this year, the Modi government, which has constantly been in the crosshairs of various controversies involving minorities, promulgated an ordinance amending the Enemy Property Act 1968. This allows it to take over enemy property even if it has legal heirs who are Indian citizens. It also allows the government to dispose of the property as it thinks fit. It prohibits the transfer of this property before and after the 1968 Act came into being, declaring them void. More than anything else, it bars civil courts from entertaining cases against the enemy properties or actions taken by the custodian of the enemy property, which is the government. In short, it shears the basic rights of those who own or live on the property that their forefathers be-queathed to them as they moved into Pakis-tan. What is crucial is that this is being done with retrospective effect.
However, on March 30, 2016, the cabinet recommended repromulgating the ordinance to amend the Enemy Property Act. This was done as the government’s ordinance would have expired in early April. It was passed by the Lok Sabha but in the Rajya Sabha, the opposition demanded that it be sent to a 23-member committee headed by BJP MP Bhu-pender Yadav. As it would take time for its report to come out, the ordinance would have lapsed as it has to be replaced by an act of parliament within six weeks.
The government’s amendment early this year was designed to negate earlier court verdicts that gave the property to the legal heirs. It was in 2005 that a Supreme Court judgment specified that the takeover of such pro-perties must not violate the rights of Indian citizens. The government may be talking of amending the act, but what they are doing is actually rewriting it.
After the conflict with Pakistan, the Tashkent Declaration of January 10, 1966, clearly indicated that India and Pakistan would discuss the return of property and assets taken over by both governments after the conflict. But Pakistan in 1971 chose to dispose all properties that were left behind by those who mig-rated to India. Now, India seems be following in Pakistan’s footsteps.
Pinaki Mishra, Biju Janata Dal MP told India Legal: “It is so typical of this government to stereotype everything through a narrow prism. Look at the way it has expanded the definition of enemy to even include In-dian Muslims. How can a bill have provisions that don’t allow citizens to have a recourse? It will be challenged and will be immediately struck down in any court. This move has only exposed the myopic way in which the government thinks.”
Former minister and Congress MP Shashi Tharoor was equally harsh on the government in parliament when he said that the bill would adversely affects the rights of lakhs of Indian Muslims and that it was against the basic principles of natural justice.
In the Lok Sabha, all opposition parties barring the AIADMK wanted the bill to be sent to a standing committee before being passed. But it was passed with a voice vote. Opposition MPs were not comfortable with Section 18B of the bill which said that no civil court or other authority shall entertain any suit or any other proceeding in respect to enemy property.
During the two wars with Pakistan in 1965 and 1971, the Indian government took over many properties owned by those who had opted for Pakistani citizenship. At that time, this was done with a dual purpose. One was to secure the property as it could be attacked, looted or destroyed as emotions usually run high in such situations. The second was to ensure that profits accruing from that property or business were not channeled to Pakistan to help it fight the war. Looked at in this light, the term enemy property made actually made sense.
But today, it does not as international relations and diplomacy are all about subtlety and tight-rope walking.
Enemy Property Act 1968 defined the en-emy only as those who were nationals of those countries who had committed aggression against India and not Indian citizens as the new bill proposes. It also permitted sale of enemy property by the government only if it was to preserve the property or to secure the family of the enemy in India. It rightly permitted transfer of the enemy property by the enemy to an Indian heir or relative or his family.
Then & Now
-The Enemy Property (Amendment and Validation) Bill, 2016 seeks to amend the Enemy Property Act, 1968, and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It will replace the Enemy Property (Amendment and Validation) Ordinance, 2016.
-Several of its provisions will come into effect from the date of commencement of the 1968 Act. Consequently, divestments (i.e., returning of property from the custodian to the owner or other person) and transfers of enemy property, which had taken place before January 7, 2016, and are in ontravention of the Bill, will be void.
-The 1968 Act defined “enemy” as a country (and its citizens) that committed external aggression against India (i.e., Pakistan and China). The new Bill seeks to expand this definition to include: (i) legal heirs of enemies even if they are citizens of India. (ii) nationals of an enemy country who subsequently changed their nationality to that of another country.
-The 1968 Act allowed for vesting of enemy properties with the custodian after the conflicts with Pakistan and China. The new bill seeks to amend the Act so that even in these cases, these properties will continue to vest with the custodian.
-The Bill further provides that vesting of enemy property with the custodian will mean that all rights, titles and interests in the property will vest with the custodian. No laws and customs governing succession will be applicable to these properties.
-The 1968 Act provided that the central government may order for an enemy property to be divested from the custodian and returned to the owner or other person. The new Bill replaces this provision, and allows enemy property to be returned to the owner only if an aggrieved person applies to the government, and the property is found not to be an enemy property.
-The 1968 Act permitted the sale of enemy property by the custodian only if it was in the interest of preserving the property, or to secure maintenance of the enemy or his family in India. The new Bill allows the custodian to sell or dispose of enemy property. The custodian may do this irrespective of any court judgments to the contrary.
-The 1968 Act prohibited transfer of enemy property by an enemy if: (i) it was against public interest, or (ii) to evade vesting of property in the custodian. The new Bill seeks to remove this provision, and prohibits all transfers by enemies. Further, it renders transfers that had taken place before or after the commencement of the 1968 Act as void.
-The Bill also seeks to bar civil courts and other authorities from entertaining cases against enemy properties or against actions of the central government or the custodian under the Act.
-The 1968 Act authorized the custodian to take measures to preserve enemy property, and maintain the enemy and his family if they are in India, from the income derived from the property. The new Bill seeks to remove the duty to maintain the enemy and his family.
However, the new bill does not allow these, thereby creating a window for the government to take it over, sell it or rent it out. There are over 16,000 enemy properties identified by the government worth thousands of crores. The bill will adversely affect the rights of lakhs of Indian Muslims who hold this property and also those who have bought the properties from them.
Raja Mohammed Amir Mohammad Khan of Mahumudabad, better known as Sulaiman, and a former MLA in UP, is just one of the thousands affected. He has some 900 properties sprawled in Hazratganj, Sitapur and Nainital. These properties were taken over in 2010 by the UPA ordinance. These properties were given back by the government in 2005 following the Supreme Court order and taken back by the UPA government in 2010 by an ordinance that was promulgated that year. If the present bill is passed, it can have serious consequences as it gives blanket powers to the custodian which is the government. It was seen as enemy property as his father, Raja Mohammad Amir Ahmed Khan, took up Pakistani citizenship ten years after Par-tition but was soon disillusioned as Pakistan was ravaged with anachronisms he had not expected. He was very upset seeing the atrocities committed on freedom fighters in Bang-ladesh by the Pakistan army. He then decided to leave Pakistan to live in London.
His son, Raja Mohammed Amir Moha-mmad Khan who had chosen to stay back in India, said to India Legal: “I have waged a legal battle for 43 years to get justice. My father died a broken man in London. He kept wondering if Partition was worth it as brother was killing brother. Why do I have to suffer for having opted to stay back in India and even serve the nation as an elected representative? I am not going to ever give up my fight for justice.”
After The Enemy Property Act was enacted, the Raja’s estate was declared enemy pro-perty and taken over with the justification that he was a Pakistani citizen. When he embraced Pakistani citizenship, his wife chose to stay back with her children. She had the power of attorney to take over all the property he had left behind, but as her husband was alive, she said she would not do it.
But after his death in 1973, his son, Raja Mohammad Amir Mohammad Khan petitioned the government to release these properties taken over under the Defence of India Rules (1962) in September 1965. But there was no response despite numerous petitions. In 1977, he met Prime Minister Morarji Desai to plead his case. Desai reportedly said that he was surprised that this had happened. He ordered it to be examined by the Ministry of Commerce. But nothing happened thereafter.
When Indira Gandhi was elected in 1980, he petitioned her too. A year later, he was told by the Custodian of Enemy Property and Director Vigilance of the Ministry of Com-merce that the cabinet had decided to release only 25 percent of his father’s property to him provided legal proof of his being the legal heir was provided. In accordance with this request, in 1984, he filed a suit in the civil court in Lucknow. A judgment was delivered in 1986 declaring him the sole heir. The government did not appeal against the judgment. But, neither did it act or respond in terms of action. Whenever the Raja raised the issue, officials would repeat that it was being examined.
In 1985, when he met Rajiv Gandhi and again pleaded his case he was asked to contest elections from UP. He did that and won twice as a Congress MLA from Mahmu-dabad. But there was no movement as far as his plea was concerned.
By 1994, he realized that the only way out to secure the property was to take legal recourse. He filed a writ petition in 1997 in the Bombay High Court as the office of the Custodian of Enemy Property was in that city. A year later, his wife, Vijay Khan, met then commerce minister P Chidambaram to plead the property case. He wanted to see the earlier judgment of the civil court of Lucknow. When it was given to him, he said: “You will get a decision by the end of the month.” Nothing happened.
It was only years later on September 21, 2001, that a judgment came from the Bombay High Court in this regard. It said that the properties of the Raja of Mahmu-dabad were illegally held by the government and they should be returned.
Soon after, the central government filed an appeal in the Supreme Court. And in a historic judgment in October 2005, a Supreme Court bench of Justices Ashok Bhan and Altamas Kabir ruled in favor of the son and said that the government had been in illegal possession of the property since 1973 which revealed its high-handed attitude. The court asked the government to hand over vacant possession of the property.
How enemy property around the world was dealt with:
Respecting the provisions in the Hague Conventions 1899 and 1907, many countries compensated enemy nationals for property seized during war
In 2011, the Bangladeshi parliament passed a landmark bill that will enable the return of property seized from the country’s Hindu minority under a law enacted in the 1960s. This law, initially known as the Enemy Property Act, allowed East Pakistan authorities to take over land and buildings of Hindus who migrated to India.
At the outbreak of World War II, assets of all residents of Germany and certain German nationals were placed under the control of the Custodian of Enemy Property. The total property was estimated to be around 15 million pounds. After the war, the assets of the occupied countries were released from British government control. An exception was made for victims of Nazi persecution and soon after the war, Nazi victims or their heirs could claim the return of their assets.
The Office of the Custodian of Enemy Property was established in 1916 and existed until 1985. In the early 1980s, the National Association of Japanese Canadians (NJAC) mounted a vigorous compensation campaign directed at the federal government. On September 22, 1988, Prime Minister Brian Mulroney delivered a formal apology and a package was presented to Japanese Canadians who had been interned in camps and their properties in Canada seized. The package included $24 million for the development of human rights projects and anti-racism education to the NAJC. All those who had been deported to Japan and stripped of Canadian citizenship also had their citizenship returned to them.
After World War II, according to the Potsdam conference held between July 17 and August 2, 1945, Germany was to pay the Allies $23 billion mainly in machinery and manufacturing plants. Since 1951, Germany has paid more than 102 billion marks, about $61.8 billion at 1998 exchange rates, in reparation payments to Israel and Third Reich victims. In the mid-late 1990s, Germany paid nearly 1.8 billion marks on the basis of special bilateral agreements concluded in 1991 and 1993 with Poland and three successor states of the former Soviet Union—the Russian Federation, Ukraine and Belarus—even though in 1953 Poland and the Soviet Union renounced any further reparations payments from Germany.
Poland was under German occupation during WWII. According to some observers, it was plundered so severely that after the first raid, it never contributed to the German war effort again. Subsequently, Poland was placed under a communist regime instituted by the Soviet Union which continued till 1990. Poland remains the only ex-communist country in the EU yet to make substantial reparations to the former property owners.
After that, most of the properties were returned and there were a flurry of court cases challenging the government’s right in taking over these properties.
As for Raja Mohammed Amir Moha-mmad Khan, things started looking up. “We started developing the properties between 2005-06. We enjoyed restoring some of the old heritage properties,” remembered Vijay Khan painfully. Her son, Ali Khan Mah-mudabad, an assistant professor at Ashoka University in Sonepat, said: “Although my father is an Indian, the 2016 bill now sees him and thousands like him as strangers in their own country.”
On July 2, 2010, the UPA government came up with an ordinance annulling the judgments from 1968 to 2010 on enemy property which had deprived Indian citizens of their right to succession.
Firoz Bakht Ahmed, the grandnephew of freedom fighter Maulana Azad, told India Legal that the apex court had declared in 2005 that a claimant had the right to inherit an “enemy property” provided he or she is an Indian citizen and a natural legal heir or successor. The court had also observed that the government charged with the task of maintaining the properties had no right over the assets. “One hopes that sanity prevails and the law takes its natural course,” he said.
Thousands of Muslims all over India are desperately nursing the same hope.