Enemy Property Act 1968 and Amendments

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What do you mean by the term Enemy Property?

The Enemy Property Act, 1968 which is the governing act, defines the term “Enemy” as any country or their residents who performed external Belligerence against India. The nationals who left their properties in India and, now residing in the Enemy country then, those properties will be considered as an “Enemy Property”. These enemy properties include both movable and immovable property.

 

The origin of the Law: 

At the onset of the World War-II, the Defense of India Act, 1939, was enacted to lay the Defense of India Rules, 1939. Under the rules, the custodian of enemy property for India, Mumbai an office created by the authorities, was made responsible for maintaining enemy properties till peace was restored. However, the office of the custodian of enemy property for India kept administering these properties even after the war ended in 1945. After India's war with China in 1962, and its two wars with Pakistan in 1965 and 1971, the office took over enemy properties under the Defense of India Rules.

In 1968, the Indian government enacted the Enemy Property Act, which laid that all the enemy property will continue to be under the control of the custodian. The recently passed Bill amends certain provisions of this 50-year-old piece of legislation.

 

Background of the Act

After wars with China and Pakistan, the Indian government designated certain properties belonging to citizens of these nations as “enemy properties”. When the war with China broke out in 1962, the government issued an Enemy Property Registration Order. The order was replaced by the Enemy Property Act in 1968. In 2010, the UPA government promulgated an ordinance, rewriting the 1968 Act retrospectively. The NDA promulgated the ordinance four more times before the amendment was finally passed in 2017.

 

Reason for the Amendment in the Bill 

The definition of the "Enemy" is vague or unclear and does not include the legal heirs of the enemy properties. One such incident was addressed, in the case of Raja of Mohamedabad in which the Raja left after the partition, but his wife and son remained Indian citizens soon after that, they were declared as enemies and their property was considered as enemy property, after the enactment of the 1968 law. Another lacuna in this Act is that the courts are not allowed to intervene in the process of CEPI.

In judgments Union of India vs. Raja MAM Khan, the Hon'ble Supreme Court held,

  • If the "Enemy" dies, then the property will be transferred through succession and it will no longer be enemy property if the successor is a citizen of India.

  • The Custodian will not be having any right, interest, and title in the property, only the enemy will be entitled to it.

  • The enemy can sell the property by the virtue of Section 6 of the aforesaid Act.

  • The power of the Custodian includes managing, preservation, and control of the Enemy property for the limited period as well as the purpose.

  • The Law of Succession will be applied to the legal heirs of the enemy subject.

 

In the Instant Case Ambu Trikam Parmar vs. Union of India & Others

“According to the provisions of the Act, the power of the Custodian of Enemy Properties in India does not include the eviction of an occupant in the unauthorized occupation, without following the proper procedure such as filing of the suit or filing a suit for recovery.”As a consequence of these Judicial precedents, the Government felt it is the need of the hour that the legislative intent about the Enemy Property Act, 1968 needs to be clarified. So, for clarifying the intention of the legislation, these amendments are introduced through this Bill.

 

2016 Amendments in the Enemy Property Act:  

  • The definition of the “Enemy” and its subject needs to be changed, as it includes legal heirs of the property irrespective of the citizenship of the enemy subject.

  • In the Act, the rights and powers of the Custodian are mentioned in a very ambiguous and vague manner.

  • Erstwhile, the sale of the enemy property can be performed by the enemy subject, but now they cannot do so.

  • This bill prohibits the Civil Courts to intervene in matters related to the enemy properties.

  • Now, after introducing the Bill, the Government can exclusively use the enemy property for public use.