Enemy Property Bill: unravelling its background


Lucknow: The government’s plan to take over thousands of Muslim properties has backfired. Uproarious scenes in Lok Sabha on 30th August could not make Union Home Minister press through his “Enemy Property Bill 2010” and it was declared to be withdrawn. However, it will resurface again in the coming winter session of the Parliament. So, until then, a small reprieve can be expected for many, especially Muhammed Amir Muhammed Khan aka Sulieman Mian-the Raja of Mahmoodabad. The Raja and his properties have made headlines in all leading newspapers and news channels ever since Enemy Property (Amendment and Validation) Ordinance 2010 was promulgated by President Pratibha Dev Singh Patil on 2nd July.

The Qila in Mahmoodabad, inset: Raja Muhammed Amir Muhammed Khan

The ‘Ordinance’ had a retrospective effect. Thus, all the properties which were owned by Raja Suleiman, after he won their title-suit, from the Supreme Court in Oct 2005, were again to be taken back and vested in the Custodian  of Enemy Property (CEP), Mumbai. CEP had come into existence after Enemy Property Act was passed in 1968 by which all properties left by those who had migrated to Pakistan were to be vested with CEP. Sulieman’s father Amir Muhammed Ahmed Khan had left for Pakistan in 1955. Ahmed’s wife and his son (the present Raja), however, remained in India. The present Raja had to wage a long legal battle which he finally won reclaiming the properties his father had left behind in India.

There are around 2,186 enemy properties in India, with Uttar Pradesh having the maximum (1,468) followed by West Bengal (351), Delhi (66), Gujarat (63), Bihar (40), Goa (35), Madhya Pradesh (29) and Maharashtra (25). Sulieman owns around 1200 of them. Many are very rich traders in Lucknow. Prime among them are Murlidhar Ahuja, Sudhir Halwasia, Sandeep Kohli and Ruia, the owner of a tyre company. Their estimated cost is valued at around 30,000 crores.

The Enemy Property Ordinance 2010 had inbuilt ramifications which primarily questioned the very nature of the relationship between the executive and the judiciary. So, the architects ensured that judiciary would become redundant, to finally hone the point that ‘once an enemy, always an enemy.’

It was also claimed that ‘no Muslims’ were to be affected and that the issue was only in the context of the Raja. This was totally contrary to the reality. "Its section 4(A) stands in total violation of oral gift which is a part and parcel of Muslim Personal Law," said Syed Muhammed Ahmed, UP President of Jamat-e-Islami-e-Hind (JIH). He added that Muslims all over the country people were to be adversely affected by the Ordinance. He expressed his utter surprise as why the Ordinance, which is usually an emergency measure and is normally used to an urgent situation, was brought in such a haste while Parliament was in session. “An ordinance can only ‘amend’ a previous act and cannot go against the Constitution of India. This is precisely why this Ordinance was to create a storm in India. It is totally un-constitutional," he said.

It might be mentioned here that after almost a four decades of legal battle, Raja Sulieman could with an acknowledgement that he was no more an “Enemy”! The Supreme Court, had in 2005, declared that he is an Indian citizen and also the sole legal inheritor of his father’s property. The judgement said, "Can the property of an Indian be called ‘Enemy Property? Answer is emphatically No."

What the Apex Court had observed then was definitely to ruffle many a feather, particularly, in Lucknow, as there are as many as 44 illegal occupants of Raja’s properties, including the government itself. No doubt, the illegal-occupants are a ‘whose who’ as probably all of them are corporate and political bigwigs. Quite predictably, therefore, the SC judgment created an unprecedented situation, which led the government to pass an Ordinance citing an unfounded urgency. Why? The answer can be found now. It was to scuttle court proceedings. The matter of the status of the so-called tenants and their illegal occupancies, in Raja’s case, was listed for a hearing in the Supreme Court with notices issued but the hearing did not take place because the Ordinance was passed. SC was to start from 5 July. Ordinance came on 2 July. Thus, SC hearing was shamelessly preempted by P Chaidambaram. The Ordinance had clearly stated that courts would have no jurisdiction over matters concerning Enemy Property.

The first question, which can be placed in the face of the nation is who is the ‘Enemy’ today? The people who are directly affected by this are obviously only Muslims who made India their home. And, the Ordinance granted the Executive power to decide the fate of an ‘Enemy Property’ by clearly stating that no court of law would have any jurisdiction in the matter. This stands against Article 226 of the Constitution, which grants courts the power to issue a writ, even against the Government itself. Can the government grant itself judicial immunity? Moreover, the most lethal aspect of the said Ordinance was its retrospective effect which meant that all cases in the last 42 years, including Raja’s case and the Supreme Court judgement, were to stand negated and superseded.

Can a democracy sustain such retrospective laws, as often they serve the interest of the government at the cost of the judiciary. Such laws are banned by Article I of the Constitution of America, Article 7 of the European Convention on Human Rights, Article 39 of the Japanese Constitution and Article 169 of the Iranian Constitution. Same should be the case in a land which is called the largest democracy. Legislators all over the world have found retrospective or ex-post facto laws abhorrent. Such “laws” are passed in conditions where not the rule of law but political and other vested interests determine the nature of polity.

Moreover, the said Ordinance was given more teeth as it simultaneously granted the Government the right to sell the property without being subject to the purview of any court of law. This implies that the owner of the properties is the Government itself and not Indians who inherited them from their ancestors. This meant that the nature of the original act was changed because the 1968 act held the government as a temporary ‘Custodian’ of these properties until such time as the "enemy, enemy subject or enemy firm ceases to be." Simultaneously, the Government had also circulated a Public Premises Act deeming that all Enemy Property would in effect become public property. The logical conclusion of usurping the rights of the judiciary retrospectively, allowing the Government unilateral rights to sell, and changing the Public Premises Act was the Government’s real intention, amid selective misleading leaks, that certain amendments were in the offing to accommodate interests of both the parties (the Raja and his so-called tenants).

It was later learnt that Government had tried to bring in an amendment which was to allow legal Indian heirs to inherit their family’s property. However, the Government had also stated that that had to be at its (read Government) satisfaction. But can the government, an elected body with vested political interests, take on a judicial role and decide the title of a property? In Raja’s case, the Supreme Court has already held that he is an Indian citizen. Wasn’t the verdict of the highest court of law in India being thrown into the bin? The Bill finally could not be cleared. Still those who have made millions, by paying Custodian only a fickle as rent, are now calling the shots in the highest house of democracy.

This article appeared in The Milli Gazette print issue of 16-30 September 2010 on page no. 1

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