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Modi Govt issues a more vicious edition of the Enemy Property Act

Modi Government on 7 January this year quietly issued an ordinance named “The Enemy Property (Amendment and Validation) Ordinance, 2016”. It is a piece of extremely vicious and egregious legislation seldom found on any statute book anywhere in the world. Among the many arbitrary, unjust and unconstitutional provisions is one whose purpose is to create two categories of Indian citizens: those who can inherit properties and those who would be barred from inheriting any property. This Ordinance strikes at hundreds of thousands of people who are from the minority communities but which also includes members of the majority community. This ordinance applies whimsical rules retrospectively and tries to nullify the Supreme Court judgement of 2005 which after quarter of a century of litigation had ruled in favour of the Raja of Mahmoodabad whose father had migrated to Pakistan while he and his mother stayed in India retaining their Indian citizenship all along.

The genesis of the current enemy property act goes to a notification which was issued in 1965 under the Enemy Property (Custody and Registration) Order 1962 when custody of all immoveable properties in India belonging Pakistani citizens was taken over by the Custodian of Enemy Property for the purpose of management, administration and preservation.

On 6 July, 1968, Enemy Property Ordinance, 1968 was promulgated and was later replaced by the Enemy Property Act, 1968, which continued the vesting which had taken place under the Defence of India Act and Rules.

The late Raja Mahmoodabad died in London on 14 October, 1973 where he had spent the last years of his life. On the death of the late Raja, his son, a citizen and national of India, exclusively inherited the said properties under the Oudh Estates Act 1869, as also the applicable customary laws. During 1973-1978, he made several representations to the government seeking release of the said properties as they were owned by a citizen of India. Since November, 1981, the current Raja of Mahmoodabad fought legal battles until the Supreme Court on 21 October, 2005 in a landmark decision decided in his favour. After some resistance and waste of court time, the custodian of enemy property by April 2006  restored the physical possession of almost all the properties to the Raja Saheb but denyied him possession of five important properties in Hazratganj, Lucknow. Here the petitioner filed a contempt petition in the Supreme Court on 10 April, 2006 which is still pending.

Meanwhile, hundreds of thousands of Indian citizens whose properties were similarly snatched away by the Custodian of Enemy Properties, started approaching courts to get justice citing the historical Supreme Court judgment in the case of Raja of Mahmoodabad. The UPA government could not stomach this, and on 2 July, 2010, issued “The Enemy Property (Amendment and Validation) Ordinance 2010” which was promulgated about two weeks before the Houses of Parliament were scheduled to re-assemble. The ordinance tried to undo the Supreme Court judgment in favour of Raja Mahmoodabad. As a result, the Custodian started repossessing his properties which had been returned to him in compliance of the Supreme Court judgment of 2005. While the petitioner had challenged the Ordinance, the UPA government decided not to proceed with its legislation after it had been tabled in parliament. The Assistant Solicitor General told the Delhi High Court on 6 August, 2010 that the Ordinance would be lapsing, but submitted that this would not affect the properties already taken over. Thus the said ordinance lapsed on 6 September, 2010 but the Custodian did not return the properties which had already been taken over by that time.

Raja Mahmoodabad has now challenged the new ordinance and the Supreme Court has issued notices to the Union of India and the Custodian of Enemy Property and has tagged this Writ Petition with the earlier Transfer Petition of 2013 which challenged the Enemy Property Ordinance of 2010.

While the case goes on, there is need for political agitation to frustrate this fresh attempt of the BJP to harm and discriminate against the Indian Muslims on a mass scale using questionable legal strategies. The enemy property ordinance comes in the wake of BJP’s raking up the Aligarh Muslim University and Jamia Millia Islamia’s minority status and raising the Babri Masjid/Mandir issue once again.

 

Following is a critique by our legal experts

of the new ordinance:

 

The Enemy Property Ordinance 2016

1. The Union of India (“UOI”) has promulgated an Ordinance on 07.01.2016 called “the Enemy Property (Amendment and Validation) Ordinance, 2016 (“the Ordinance 2016”). The purpose of which is as under:

(i) Retrospectively nullify all judgments by any court including the judgment of the Hon’ble Supreme Court of India reported in 2005 (8) SCC 696. This judgment confirmed the right of legal heirs who are Indian citizens and thereby gave great hope to a large number of Indian citizens who are in a similar situation. The Ordinance essentially seeks to deprive these Indian citizens of their right to inherit properties and seek justice through the judicial process.

(ii) Remove the recourse of Indian citizens to courts of law and arbitrarily and unjustly attempts to undo the rule of law and allows the executive to usurp the powers of the judiciary.

(iii) Rewrite the original act retrospectively, which is not permissible through settled principles of law.

(iv) Change the definition of ‘enemy’ to include Indian citizens who are legal heirs thereby creating a bifurcated idea of Indian citizenship - those who are legal heirs of people who migrated stand to have no rights of succession and inheritance;

(v) Deprive legal heirs and Indian citizens from inheriting the properties left by their parents/relatives and depriving them of their legal/constitutional rights. The overwhelming majority of these Indian citizens are minorities who have been guaranteed equality before law by our constitution.

(vi) Retrospectively nullify all transfers and sales made in between 1968 and 2015, irrespective of the fact that they were made in accordance with law as it existed at the relevant time;

(vii) Gives powers to sell the properties vested in the custodian at the earliest possible and thus permanently deprive the legal heirs who are Indian citizens.

(viii) Cover up massive corruption by officers and other government officials from 1968 until today. There have been a number of cases where strictures have been passed against erstwhile custodians regarding mismanagement and the illegal selling of enemy properties.

2. The U.P.A. Government had also brought a similar Ordinance in 2010. This ordinance was an act of vengeance by the government to negate the judgment of the Hon’ble Supreme Court of 2005. Properties which had been returned were summarily and illegally taken back by the government and have not been returned even though the Prime Minister decided that the ordinance should be allowed to lapse and that Indian citizens should not be deprived of their rights, title and interests as they were entitled to in accordance with their personal law, relating to succession or any custom or usage governing succession.

3. The Ordinance 2016 changes the nature of the vesting in Custodian from temporary to permanent, that too with effect from 1968. Not only does it change the nature of vesting but also retrospectively renders all transfers which have already been made, in accordance with law prevalent at that point of time, null and void. The Union Of India has always admitted that the nature of vesting was temporary, which is also evident from the judgment reported in 2005 (8) SCC 696.

4. The Ordinance 2016 changes the nature of the vesting in Custodian from temporary to permanent that too with effect from 1968. Not only does it change the nature of vesting but also retrospectively renders all transfers which have already been made, in accordance with law prevalent at that point of time, null and void.

5. The clear intention of the Government is to grab and sell properties at the earliest to permanently deprive legal heirs, who are Indian Citizen, of their rights, title and interest.

6. The provisions of the Ordinance 2016 seek to discriminate against some Indian citizens without any basis and are thus patently unconstitutional.

7. The provisions of Ordinance 2016 are ultra vires to Articles 14 and 21. It further violates fundamental right of a person to property under Articles 19(1)(f) and 31(1), which were in force prior to the 44th Amendment on 20.6.1979. Further, it is a compulsory acquisition dehors/outside the statutory regime provided under the Land Acquisition Act. The provision is expropriatory and confiscatory and is clearly violative of Art. 300A of the Constitution.

8. The provisions of the Ordinance 2016 are wholly arbitrary and violative of the fundamental rights as they deny the legal heirs/Indian Citizens the benefit of the law, including personal law, relating to succession or any custom or usage governing succession.

9. Through this Ordinance, the Indian Government is taking unlawful punitive action against a section of its own citizens and trampling on their rights.             

This article appeared in The Milli Gazette print issue of 1-15 February 2016 on page no. 1

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