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AIR spotlight summary on Cabinet approval on ordinance to Enemy Property law

 

 


AIR spotlight summary on Cabinet approval on ordinance to Enemy Property law


 

Introduction

The Cabinet gave post-facto approval to promulgate for the fourth time an ordinance to amend the nearly five-decade old Enemy Property Law to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after wars.

Provisions in Enemy Property Act

  • There are about 10,000 properties spread over about 12,000 acres in India which belongs to Pakistani or Chinese nationals. These properties are vested in the Custodian. There was an Enemy Property Act prior to Independence, in which Japan and Germany were considered as Enemy. After Independence it was remodeled and only Pakistan was the enemy country. Later china also became the enemy country because of the wars with china.
  • After the 1965 war, India and Pakistan signed the Tashkent Declaration on 10 January 1966. The Tashkent Declaration inter alia included a clause, which said that the two countries would discuss the return of the property and assets taken over by either side in connection with the conflict. However, the Government of Pakistan disposed of all such properties in their country in the year 1971 itself.
  • The Enemy Property Act was enacted in the year 1968. It provided for the continuous vesting of enemy property in the custodian. The Union Government through the Custodian of Enemy Property for India is in possession of enemy properties spread across many states in the country.
  • To ensure that the enemy property continues to vest in the Custodian, appropriate amendments were brought in by way of an Ordinance in the Enemy Property Act, 1968 by the then Government in 2010.
  • As per the proposed amendments, once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death, etc.
  • The amendments are aimed at plugging the loopholes in the Act to ensure that the enemy properties that have been vested in the Custodian remain so and do not revert to the enemy subject or enemy firm.

Changes made in the ordinance

  • Definition of Enemy has taken a quantum change. Earlier the successors of enemy were not considered as Enemy. They were treated as citizens of India. Now the successors of an enemy property will be treated as an enemy. There is a provision that the enemy property cannot devolve.
  • The purpose of the act is to clarify that the law of succession shall not apply to the legal heir or successor of the enemy. Place of death of enemy subject and his property will have no meaning and impact. The property will continue to vest in the Custodian.
  • The custodian has been vested with the power to fix and collect rent, lease the property, dispose the property, collect the license fee, user charges and secure the vacancy of the possession.
  • Enemy property will be returned to the owner only if the aggrieved person applies to the government and if the property is not found to be an enemy property. Earlier automatically the property was reverted back to the owner.
  • Any transfer made after 1968 will stand to be void retrospectively.
  • Civil courts will not have any jurisdiction. It is vested with the High courts. The Custodian will have quasi-judicial powers.
  • In 1968 Act it prohibited transfer of property by an enemy if it was against public interest. The ordinance removes this provision and prohibits transfer of properties by enemies. It also renders the transfers which had taken place before the commencement of 1968 act. The ambiguity regarding the ownership of the property has been clarified.
  • The suggestions made by the Select committee of Rajya Sabha are incorporated in the ordinance. Select committee said that the process of identifying the enemy property was not been completed. The act has to be modelled in a way so that identification is completed and an end to the whole process is put.