Today's Editorial

27 July 2017

The casualties of the Enemy Property Act


Source: By Nikita Doval: Mint


Dr Anisul Haq climbs the steep steps, each at least a foot high, cautioning us to be careful. The steps lead to his workshop, situated just a few feet from his dental clinic at Chandni Chowk’s Kucha Rehman Gali in Delhi. It’s a large airy room with several dentures lying scattered on the table. But it is the files, spilling out from every available nook and corner, which catches your eye. “Sab jagah files hain, almarih kholo, file girti hai (there are files everywhere, you open a cupboard and they spill out),” he says even as he rifles through a pile.

He is trying to find a particular judgement which he says he had great difficulty procuring but is essential to the case his family has been fighting against the Indian government since he was 20 years old. Haq is 60 now. “My father spent his life fighting. I have been doing it for my entire life. But this will end with me. My son will not fight this fight,” he says, with emphasis.

The house that Haq has lived in, since he was a child, a property that was gifted to his father Ameenul Haq by his sister Jehangir Begum, whose children migrated to Pakistan, has been declared “Enemy Property” by the government of India. That means Haq’s family has no right over it. In fact, the property needs to be vested with the Custodian of Enemy Property, a government department. Haq’s is not a unique case. Different versions have been playing out across the country with a cast of characters as varied as former royalty, a Bollywood-cricketing legacy family and scores of ordinary citizens.

In 1962, when war broke out between India and China, the Defence of India Rules was rolled out. Modelled on the Defence of India Act 1915, which was an emergency law granting the executive wide-ranging powers, the 1962 version allowed the government, among other privileges, to take over the properties of citizens of China. This was issued again in 1965, applicable to properties in India of Pakistani citizens, when war broke out between India and Pakistan. The Defence of India Rules were suspended once hostilities ended, but in 1968 the government of India enacted a legislation called the Enemy Property Act, which categorically defined enemy property as properties of citizens of countries which are considered an “enemy” by the Indian government; essentially any country that commits an act of aggression against India.

Properties considered “enemy property” were not limited to landed assets and included assets such as company shares and jewellery. It was under this Act that the office of the Custodian of Enemy Property was established. Enemy Property Act defined Enemy Property as properties of citizens of countries which are considered an ‘enemy’ by India— essentially any country that commits an act of aggression against India

Seizure of properties of citizens of hostile nations in war time was practised during both World War I and World War II in order to prevent enemies from using them. During World War II, Enemy Property in the UK was seized under the provisions of the Trading with the Enemy Act 1939 and included two different kind of enemies—technical enemies (countries under occupation), and belligerent enemies (countries actively fighting the UK). After the war, the return of property of technical enemies commenced. According to a 1998 paper titled British policy towards Enemy Property during and after the Second World War, by 1951, 90% of assets of technical enemies held by the custodian had been released.

In India, however, the Act of 1968 was brought in to provide for the continued vesting of enemy property with the Custodian of Enemy Property, which, given the renewed hostilities between India and Pakistan in 1971, may have seemed propitious at that time. The Act has continued since then, completely taking over the lives of citizens such as Haq. And, it gets worse. Forty-nine years later, on 14 March 2017, the Lok Sabha passed the Enemy Property (Amendment and Validation) Bill, 2016, which retrospectively rewrote the powers vested with the office of the Custodian as well as expanded the definition of “enemy” under the Act.

The original Act defined “enemy” as “…a person or country who or which was an enemy, an enemy subject or an enemy firm, as the case may be… but does not include a citizen of India”. This was a very important distinction, for the Act had mostly come to apply to those who had left India for Pakistan in 1947. Families had, however, been torn asunder with many from the same family choosing different sides and hence the difference was crucial. The new Act states, “…the expression ‘does not include citizen of India’ shall exclude…those citizens of India, who are or have been legal heir and successor of an ‘enemy’.” The amended Act seeks to clearly discriminate against those Indian citizens whose forefathers or extended family members migrated to Pakistan in the ensuing years after partition

In other words, the Act seeks to clearly discriminate against those Indian citizens whose forefathers or extended family members migrated to Pakistan in the ensuing years after partition. The retrospective nature of the new Act also renders null and void any sort of transaction that may have taken place of a disputed property. “So, basically, what the new bill has done is that it created a different category of citizens, the ones who are Indians by birth, live here, hold Indian passports, participate in Indian democratic processes but are enemies when it comes to the actions of their forefathers. According to the new bill, the laws of succession will not apply to these properties. You are denying the court the right to interfere, these are all draconian measures,” says Aishwarya Pandit, assistant professor with Jindal Global Law School.

But what prompted these amendments in the first place? The impetus for that can be traced to a 2005 Supreme Court judgement—Union of India & Another vs Raja Mohammed Amir Mohammad Khan. The gentleman in question is the son of the erstwhile Raja of Mahmudabad, Uttar Pradesh, who had migrated to Pakistan and become a citizen in 1957. The property of the royal family under the Defence of India Rules, were therefore vested in the custodian. This included among other things, a heritage hotel in Nainital and properties in Lucknow such as the Butler Palace, Mahmudabad Mansion, Lawrie Building, Halwasia, Malka Zamania and Siddiqui Building. Apart from this, properties in Sitapur were also taken over. Nearly all of these properties are prime real estate.

The current Raja, who has also been a two-time MLA from Mahmudabad, has been petitioning the government of India to return his properties since 1979 (his father died in London in 1973) and in 2005, the Supreme Court came down heavily against the Custodian of Enemy Property, which opposed the return of properties. Deciding the case in favour of the former royal the apex court judgement stated: “After the death of his father, respondent who is a citizen of India inherited the property being the sole heir and successor of his father. Can he be termed as enemy or enemy subject… can the property of an Indian citizen be termed as enemy property… Answer is emphatic No.”

The judgement also clearly laid down just what the role of the Custodian of Enemy Property was vis-a-vis the properties by stating that the vesting of the properties is “limited to the extent of possession, management and control over the properties only. The right, title or interest of the owner is not taken away.”  The judgement carried echoes of a 1975 judgement of Hamida Begum vs M.K. Rangachari, Custodian and Others, in which the court recognized the custodian as just the protector of enemy property and not its owner. Hamida Begum was the owner of Kishori Court, a bungalow which is located in Mumbai’s Worli Sea Face area, again prime real estate.

According to an Indian Express report dated 2 April 2017, the house was auctioned off in the 1960s by the tax department to recover municipal taxes. But the auction was reversed and the ownership handed back to the Custodian of Enemy Property. The amendment passed by the government makes the Custodian the owner of enemy property, retrospectively from 1968. In 2010, it was the UPA government that had promulgated an ordinance rewriting the 1968 Act retrospectively. As soon as this was done, the Mahmudabad properties were seized again and continue to be with the Custodian even though the UPA allowed the ordinance to lapse. The NDA promulgated the ordinance four more times before the amendment was finally passed this year.

“There are several issues with the Act. The first is that you are classifying certain people as citizens but with a disability (referring to the clause of including legal heirs of an enemy subject even though Indian citizens) and for what purpose?” questions senior lawyer Anand Grover. In January this year, Grover appeared for Congress Rajya Sabha MP Husain Dalwai, challenging the centre’s decision to re-promulgate the ordinance for the fifth time. The basis for the writ petition was a recent judgement by the Supreme Court which had ruled that re-promulgation of ordinances is constitutionally impermissible. The court rejected the petition.

Interestingly, the number of enemy properties in India seems to have seen a steep rise since 2010 when they stood at 2,111. In 2014, 12,090 properties were listed and in 2015, 14,759. Currently, the government has identified 15,143 properties, with the maximum in Uttar Pradesh, followed by West Bengal. Notices have been issued to owners/tenants asking for rent.

“From reports to our own investigations, there are several sources for identifying a potential enemy property. Extensive groundwork is done if a property comes to our notice which includes a visit by a surveyor who is usually a retired revenue officer. The surveyor will check land records, vet claims of those who are living there, see if there are other properties in the name of the original owner, etc. A report is then prepared and then sent to the supervisor and under Section 11 of the Act, we ask the present owner to appear and explain his ownership. No-show under Section 11 carries a fine of Rs10,000,” explains an officer in the Custodian of Enemy Property, which is headquartered in Mumbai and has offices in Lucknow and Kolkata.

In 2015, the Custodian of Enemy Property had even declared the properties of the former state of Bhopal, the current Nawab of which is Bollywood actor Saif Ali Khan, as enemy property. “The older daughter of the then Nawab, Hamidullah Khan, Abida Sultan, had migrated to Pakistan. The Nawab who was alive till well into the sixties had declared his other daughter, Sajida Sultan, the mother of cricketer Mansur Ali Khan Pataudi, to be his legal heir. The Union of India has even recognized this transfer of succession.

The claim of the Custodian was challenged by Saif Ali Khan and there has been a stay on the case since May 2016,” informs Bhopal-based lawyer Jagdish Chhawani, who represents several other families who will be affected by the Custodian’s decision to take over the Nawab’s properties.

“A lot of families, especially in the old city, are affected by this move. A lot of the Nawab’s properties were sold off over the years and now ordinary families are threatened. The properties, spread across Bhopal, Raisen and Sehore, encompass several hundred acres and constitute prime real estate,” he explains. Confusion seems to be the running theme when it comes to the designation of enemy properties. There have been instances of properties that were initially identified as evacuee property and later declared to be enemy property. The Evacuee Property Act of 1950 dealt with the properties of those who left on account of communal disturbances in 1947. Such properties were taken over the government and then handed out to those who were coming from the other side.

Haq displays a deed of conveyance regarding the sale of an evacuee property (separate from the one aforementioned) to his mother Saida Fatima in 1974 for Rs19,400. The deed identifies the President of India as the vendor. “Now they are saying the superstructure on the evacuee property is actually enemy property and I should pay rent on it.” Many, including ordinary citizens, legal experts and politicians, view the Enemy Property Act as being directed towards a particular community. Haq minces no words when he says, “Be it money or business, they want to destroy us.”

A senior lawyer, familiar with the case, says that the new Act is another systematic attempt to attack the minority community. Congress leader Shashi Tharoor, in a debate in the Lok Sabha over the issue in 2016, had stated, “…the law will explicitly create two kinds of Indian citizens… if somehow there are two categories of Indian citizens and one category does not have the rights of the other that is a very dangerous practice.”  But there are others like Jindal Global Law School’s Pandit who thinks that rather than blame one particular ruling coalition or political party, the blame for the new Act should be shared across the board.

“One government may have passed the bill but the ordinance was introduced by another in response to a judgement. The problem with the issue is that it is linked to our relationship with our neighbour. If you discuss this on a basic level with a commoner, they would certainly go with the argument of the state. Plus, the state clearly does not wish to return properties. It’s too complicated. Most of them are on rent and this invites further litigation. Given the nature of our relationship with Pakistan which is extremely volatile, this will always be a highly political issue.”

Legally, the one recourse against the Act is to challenge it on the grounds that it violates Article 14 of the Constitution which guarantees the right to equality. “It is possible to argue that this is not a law which is sustainable under the Constitution,” says Grover though he thinks the major ground is going to be that the government has tried to undercut the judgement in the case of the Raja of Mahmudabad. There are no permanent enemies or friends in politics. The sentiment can be extended to nations too. Pakistan has not been declared an enemy state by India; on the contrary, it continues to enjoy “most favoured nation” status which confers upon it trade benefits. India and China share a difficult relationship but they are a far cry from being outright hostile. Those who argue for the new Act often cite Pakistan’s sale of all enemy properties in 1971 itself, but should another nation’s behaviour be the yardstick with which we treat our own citizens? Aggrieved men and women across the country seek an answer to this question.