The ordinance was promulgated on July 2 by the President of India to amend the Enemy Property Act 1968 and the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. It intended to make all judgments under the Enemy Property Act 1968 by various courts, tribunals or judicial authorities including the Supreme Court of India regarding enemy properties, null and void with retrospective effect. Under this ordinance, no suit or other proceedings, was to be maintained or continued in any judicial forum whatsoever, for enforcement of any decree or order or direction given by any judicial authority. The custodians of enemy property were made absolute authority who function under the Ministry of Home at present. Earlier, before 2007, they were functioning under the Department of Commerce. Under the provisions of the ordinance the Custodian (the government) became no longer a simple custodian of the enemy properties but became owners of the properties who could even sale or dispose of the properties in favour of anyone in such a manner as may be prescribed.

To replace this ordinance, the Enemy Property (Amendment and Validation) Bill, 2010 was introduced by Minister of State for Home Ajay Maken on August 2 in Lok Sabha, just a month after the promulgation of the ordinance. It also sought to replace the Enemy Property Act 1968.


What is Enemy Property

Enemy Property Act 1968, section 2 ( c ) says that any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm is Enemy Property, provided that where an individual enemy dies in the territories to which this Act extends, any property which immediately before his death belonged to or was held by him or was managed on his behalf may, notwithstanding his death, continue to be regarded as enemy property for the sake of this Act.

Who is an Enemy

The Enemy Property Act 1968 does not define 'enemy' or 'enemy subject' or 'enemy firm' but says that these mean ' a person or country who or which was an enemy, an enemy subject or an enemy firm, as the case many be, under the Defence of India Act 1962 and Defence of India Rules 1962, but does not include a citizen of India. (see Enemy Property Act 1968, section 2(b).

Thus enemy means -
1. a person or country committing external aggression against India
2. any person belonging to a country committing such aggression
3. such other country as may be declared by the central government to be assisting the country committing such aggression

and
4. any person belonging to such other country.
Defence of India Act 1971 section 2(b), Defence of India Act 1962 section 2 ( c ) and Personal Injuries (Emergency Provisions) Act 1962 section 2 (3)

Not only this, but, Enemy includes all armed mutineers, armed rebels, armed rioters, pirates and person in arms under section 3 (x) of the Army Act 1950 and under section 2(j) of the Border Security Force Act 1968.

The Law under implementation

The properties of such enemies which are defined enemies in various acts are kept under custodians until a legal heir of the properties are found and the properties are transferred to them.

Under Enemy Property Act 1968, judiciary has power to decide whether a person, subject or firm is an enemy or not.

Under the same act, judiciary has power to decide on the fate of the Enemy Property under question and to give directions to the custodians to hand over the properties to their legal heir.

Custodians behaving like owners

Of late, the persons who are in the helm of affairs in the government and under whose jurisdiction the custodians for enemy properties function, began thinking themselves not merely custodians but the defacto owners of the enemy properties.

They not only want to keep the properties but also the earnings from those to themselves (government).

The Judiciary does not allow this attitudes of the government officials. They have been giving judgments in such matters and directing the custodians to hand over the properties to whom it legally belong along with the accumulated earnings from those to the governments.

Moreover, many unauthorized persons are occupying such enemy properties other than the legal custodians with or without their connivance.

Many persons are said to be indulged in encroaching and grabbing such properties with or without connivance with the custodians.

It is here the politics of vote and greed of the persons at the helm of affairs come into operation.

“If the properties will be handed over to the legal heir what will be their gain?,” they think. It is for their personal gain, they do not want the properties to be transferred to the legal owners.

It is strange as to why a government (custodian) should not transfer the properties and the earnings/proceeds to their legal heirs.

The bill and the ordinance

It is under this mindset the government promulgated the ordinance and introduced the bill.

It sought to amend the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to define any enemy property or premises as public premises. The Custodian, Deputy Custodian and Assistant Custodian of the enemy property appointed under Enemy Property Act 1968 were deemed to have appointed as the Estate Officer. They were given all the powers to evict the premises from unauthorized occupants.

It may also be mentioned here that the Custodian, Deputy Custodian or Assistant Custodian were given all the powers of a civil court under the Code of Civil Procedure, 1908 while dealing with any case under the amended Enemy Property Act 1968.

In one of the proposed amendment it said that the enemy property vested in the Custodian shall, notwithstanding that the enemy or the enemy subject or the enemy firm has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of India or the citizen of a country which is not an enemy, continue to remain vested in the Custodian till it is divested by the Central Government.

The bill clarified that the “enemy property vested in the custodian” shall included all titles, rights and interest in, or any benefit arising out of such property.

In one of the amendment it explained that transfer of any enemy property shall not include any transfer or any claim of transfer made through oral will or oral gift, by concealment of enemy nationality and without permission of the competent authorities like the Reserve Bank of India, or the Custodian or any other authority from whom permission is required.

The government took the power to fix and collect the rent, standard rent, lease rent, licence fee or usage charges, as the case may be in respect of enemy property.

The amendment had a far reaching section which said that the government can have secure vacant possession of the enemy property by evicting from the unauthorized or illegal occupant or trespasser and could remove unauthorized or illegal constructions, if any.

The Custodian was also given power to sell any enemy immovable property vested in him on receipt of the sale proceeds of such property. The Custodian then shall issue a certificate of sale in favour of the purchaser which shall be valid for all legal purposes. Such certificates can not be refused even on the ground of lack of original title deeds.

It was also said in the bill and the ordinance that any income received in respect of the enemy property by the Custodian shall not be returned or transferred to any other person. The Custodian is also not liable to return unless so directed by the Central Government.

The amendment had abolished jurisdiction of courts to order divestment from the Custodian of enemy property or to direct the Central Government to divest such property.


What happened in the Parliament

However, due to stiff opposition by various political parties neither the bill was taken for discussion in the Parliament nor could the Ordinance be ratified. Consequently the Ordinance expired with the completion of the Monsoon session of the parliament on August 31 and the Bill was withdrawn in favour of a better legislation in future. Government then planned for a new ordinance, however, it was dropped on September 7, and decided to bring a new bill in the next session of Parliament.

The government had proposed certain official amendments in the Bill during the Monsoon session, but because of differences of opinion among the Bharatiya Janata Party (BJP), Samajwadi Party (SP) and the Rashtriya Janata Dal (RJD) leaders, the Bill could not be taken up for consideration.

The BJP was initially in favour of the ordinance. However, when the Samajwadi Party and Rashtriya Janata Dal accused the Government of working out a 'deal with the BJP against Muslims' of the country, the BJP said that it was against the Bill in its present form tabled in the Parliament, but it supports the ordinance in its original form.

On August 30, there was an uproar in the Lok Sabha over a Bill to amend a law governing enemy properties which also included the properties left behind by those who went to Pakistan during partition of India.

Samajwadi Party supremo Mulayam Singh Yadav and Rashtriya Janata Dal chief Lalu Prasad dubbed the Bill as 'anti-Muslim'. The members of the two parties also stormed the Well of the Lok Sabha and forced adjournment of the House for an hour.

Raising the matter during Zero Hour, SP chief Mulayam Singh said the bill would 'snatch the rights of the Muslims who stayed back in India' and went against a Supreme Court verdict which had granted them the right over properties which were left behind by their forefathers.

'It is a bill that would make Muslims second-class citizens and create an inferiority complex among them,' he said, adding that the apex court had made it clear that the custodian of such properties, which was the government, should return them to the inheritors.

The SP leader alleged that home minister P Chidambaram had brought the bill after failing to secure a verdict favourable to him as a counsel before the Supreme Court.

He charged the BJP and the Congress with being hand-in-glove in the matter as two BJP members of the Rajya Sabha had also appeared as counsels in the case.


Seeking to counter the charge, parliamentary affairs minister P K Bansal said the government was bringing appropriate amendments to take care of the concerns raised by Yadav. 'They will answer all his doubts,' he said appealing for unanimous passage of the measure.

This prompted a sharp response from Leader of Opposition Sushma Swaraj, who declared that her party would support the measure only in the original form and strongly oppose any amendments. 'Send it to Standing Committee,' was her refrain.

Government's assurances that it was bringing amendments to address their concerns created more problems, with BJP and Shiv Sena turning aggressive against any change in the measure.


Leader of the Opposition Sushma Swaraj criticized the government when it offered to bring in some amendments. She alleged that the government has offered to introduce the amendments to favour a 'particular person'. She threatened that the BJP would oppose any such move.

She also demanded that the Bill be referred to a Parliamentary Standing Committee.

Sensing the stiff opposition in the Lok Sabha, Chidambaram had offered to bring a fresh Bill incorporating the official amendments in the next session.

Communalization of the legislation

The fact that such enemy properties include the properties of the Muslims who left India to settle in Pakistan gave a chance to the political parties to communalize the whole issue. Most of the occupants of such properties are Muslims.

It is an open secret that major national parties and a few regional parties in India fan sentiments either in support or against Muslims as political instruments to gain upper hand in elections.

The Indian National Congress (INC), the SP and the RJD are known for their policies that are dubbed as policies for Muslim appeasement while the BJP is known for its stand that is dubbed as anti-Muslim.

It is in this backdrop, the legislators played communal cards in the matter of this legislation.

A meeting of some Muslim MPs was also held in Parliament premises in which the Home Minister and the Parliamentary Affairs ministers took part.

The BJP leaders like Najma Heptullah and Mukhtar Abbas Naqvi are supporting the government on this issue.

After the fiasco

The Cabinet, at a meeting chaired by Prime Minister Manmohan Singh here, noted that there was no urgency to bring an ordinance on Enemy Property to replace the one that has expired with the completion of the Monsoon session of Parliament on August 31. At the Cabinet meeting, Home Minister P Chidambaram reportedly said that several political parties had spoken in favour or against the bill and therefore it would be appropriate to take everyone on board on the issue.

'The Cabinet decided to bring a bill on Enemy Property in the Winter Session of Parliament incorporating the original Ordinance as well as the official amendments,' an official spokesman said.

With the government deciding against the Ordinance promulgated on July 2, which barred courts to restore enemy property to their heirs, the Supreme Court judgement that such properties be given to the legal heirs would be applicable till a new law is enacted.

Background

The bill was brought in the backdrop of various court rulings including one of the Supreme Court of India that directed the executive to hand over the properties left in the country by those who went to Pakistan during partition to their heirs.

It may be mentioned here that all matters relating to 'Enemy Property' were being handled in the Department of Commerce by virtue of the subject under the business of the Department of Commerce. Government of India through a Presidential Notification dated 28th June 2007 had transfered the subject to the Department of Internal Security, Ministry of Home Affairs. The properties are being handled by the Office of the Custodian of Enemy Property for India, located at Mumbai in liaising with the State Administration for effective implementation of the mandate given to him under the Enemy Property Act 1968.

The Bill sought to replace the very Act of 1968 under which came the court decisions that in view of the government 'adversely affected the powers' of the custodians and the government of India as provided under the said law.

The government of India does not want the 'interference' of courts in the matters of enemy properties. It also made it clear in the promulgated ordinance as well as in the bill that judiciary would have no jurisdiction over occupation of such properties which have been left behind by those who went to Pakistan at the time of partition, and the decision would solely be taken by the government.

Immediate Cause

The government brought the Enemy Property (Amendment and Validation) Ordinance, 2010, to counter the Supreme Court judgement in favour of the erstwhile Raja of Mehmoodabad Suleiman Mian.

The kin of the former Raja had won the possession of his ancestral properties, worth hundreds of crores, after a 32-year court battle in October 2005.

The Lucknow district administration has, in August itself, formally taken possession of six of his properties, as directed by the Custodian of Enemy Properties under the Union Home Ministry.

There are an estimated 2,100 such enemy properties in the country and of these around 1,400 belong to the erstwhile Raja of Mehmoodabad alone.

It is worth mentioning here that Mr P Chidambaram (Minister of Home Affairs), BJP leaders Arun Jaitley and Ram Jethmalani- all eminent lawyers too- had represented some of the tenants of these enemy properties and lost.

Minority Affairs Minister Salman Kursheed, who is in the forefront in demanding changes in the draft of the Bill, was the lawyer on behalf of the kin of the erstwhile Raja.

Kursheed and Jaitley even had a discussion on the Bill a few days ago but failed to reach a consensus.

Conditional Support from BJP

The BJP, the principal opposition party made it clear that it would support the legislation only if the Ordinance on the issue was made into an Act.

Home Minister P Chidambaram also met the Leader of Opposition in the Lok Sabha to discuss the Enemy Property Bill, but the latter made it clear that they would not support it in its present form.

Mr Chidambaram even made some changes in the draft of the Bill which was welcomed by the BJP leaders, however, they were opposed to many other contents of the proposed redrafted legislation.

'Our stand is that the intention of the government has changed from what it was when the Ordinance was brought and what is stated in the present draft of the Bill,' Leader of Opposition in Lok Sabha Sushma Swaraj said.

The main opposition wants adequate compensation be paid to the tenants.

The BJP wanted the bill to be referred to a Standing Committee to address the differences as well as to prevent the Ordinance from lapsing. In such a scenario the present status quo would have continued.

Conclusion

There is no doubt that enemies of our country should be kept under control with the help of the instrument whatever we already have, and any new provisions of law should be enacted only when there is a need to do so.

As for the Enemy Property Act 1968, it is sufficient for handling the properties of our enemies. Government should act according to this law as a custodian of enemy property but not as an owner of such properties.

The controversy in this regard was unnecessary which was created only after the Union of India tried to amend this to thwart court orders that sought the government to hand over the properties to those who are legal heir who are not enemies of this country. If a person is not an enemy of this country, why should the government not allow them to own the properties that are legally theirs?

If the government is bent upon to bring a fresh legislation to amend this Act, the officials should work hard to come with a better legislation to avoid such embarrassment that it had to suffer this time.