Enemy Property Act: a backgrounder
After its fiasco on Enemy Property Ordinance (2 July 2010) wisdom seems to have dawned on the Union cabinet which decided to drop the idea of issuing a fresh ordinance. This is what Sushama Swaraj feared while interrupting during the home minister’s reply. She had suggested the matter to be referred to the Standing Committee and had categorically stated that if the bill was introduced with amendments her party would oppose it. What the government has decided now is to introduce the bill along with the proposed amendments and in case the bill is opposed by BJP it shall be routed though the Standing Committee. Thus BJP’s threat perception as well as suggestion have been taken cognisance of.
The home minister did not receive the backing of his several cabinet colleagues and was adamant to have fresh ordinance. He was advised that this would create a false impression that the government wanted to rule the nation through ordinance. A senior member quipped: If one can rule by ordinances, then people many well argue why do you need Parliament?” In addition to the cabinet, even Sonia Gandhi was against the ordinance cult.
The original ordinance (July 2010) was, on the one hand, against the Muslims (though a few other communities were also adversely affected). It shielded the interests of encroachers (read Hindus) so powerfully that it intended to deny legal access to any body. This was a travesty with the constitutions and in fact, amounted to undermining the judiciary. What is extremely surprising, as Karan Thapar puts it is PC’s role in the whole affair. Having been a senior counselor for so many years how can he slam the doors of the court to any litigants? Thapar rightly says: “Its outcome was tantamount to undermining the constitutional rights of a certain category of Indian citizens to inherit parental property.” Thapar asks: “As a lawyer he himself fought the case of a rival claimant but as a home minister his ordinance nullified the Supreme Court judgement. Should he not have recused himself from handling the issue?”
In a press conference and then as a rejoinder PC wants us to know: I have no recollection of any such case or any of the parties to any relevant dispute” (see Appendix-I). He justifies his forgetfulness with a lame excuse “Asking a senior counsel if he had appeared in a case eight years ago is like asking a taxi driver whether his taxi had transported a person on one occasion eight years ago.” A taxi drive does not have the IQ or phenomenal memory of a Harvard scholar. Even then he does remember if he (the passenger) happens to be a cricketer, film star or if he gives him a hefty tip. As a senior counselor he must have received substantial sum from the respondent which one might never forget because we are told that senior counsellors charge in lacs! (specially from one who produces forged documents)
Coming back to the issue after this distraction, the amended bill will take care of concerns of both – the Hindu tenants and the Muslim heirs. This must “appease” BJP. Still if it chooses to oppose we must conclude that its concern for Muslims (which Gadkari claims to be genuine) are crocodile tears!
Another devastating outcome of the ordinance was to make Supreme Court (and the entire judiciary) redundant. In that case the Custodian would be more powerful than the SC chief justice or for that matter anyone else in the country (except the President) because even executive does not make judiciary irrelevant. Such immense power would make his post the most enviable. In case he becomes despot (or corrupt) none could have brought him under any judicial/ legal ambit.We stand corrected over a statement. On 5 April 2002 Mr P Chidambaram did represent the forgerers. We are informed that Mr Salman Khurshid did not appear for MAM Khan before the judgement of the SC in 2005. He appeared for MAM Khan against the occupants/ tenants for the implementation of the order of the SC in 2008 and 2009.
Though the Enemy Property Act covers more than 2000 properties in the length and breadth of the country it is not merely the fortune of Raja of Mahmoodabad that is in great peril; it also denies legal access to several poor and hapless Muslims who cannot afford to engage senior lawyers like Jaitley and PC and who cannot produce the citizen document within 120 days from a corrupt bureaucracy.
It also disallows legitimate legal process for rightful Indian heirs including the right to succession, adoption, hiba and other matters related to Muslim Personal Law and the Constitution of India. This ordinance would create a precedent that because of inexplicable reasons the rights of individuals and especially those of the Minority community could be superseded without permitting them to have recourse of law.
It is interesting to note in this context that Late MA Jinnah’s property in Mumbai has now been decided in favour of his legal heir (Nusli Wadia). At one time Jawaharlal Nehru wanted to retain the property for historical (and emotional) reaons with the government of India and even offered to pay handsome price for that. Do we mean to say that we have one set of norms for Jinnah’s descendants and other kind of rules for anyone else’s? Do we have separate yardsticks to handle “Enemy property” for Parsis and Muslims?In fact, the word “Enemy” is a misnomer. When we make tall claims of friendship with Pakistan, humane gesture of rushing aids to flood victims or even return thousands of war prisoners (of 1971 war) as a gesture of good will why should we retain this label of “enemy” a term coined in 1965 which under the Simla agreement or Vajpaye-Musharraf accord has lost its sting. To treat hundreds of Indian residents “enemy” or to coerce them to prove their citizenship (within 120 days) is to belie the spirit of Samjhauta Express!
Let us turn now to decades old battle that the Raja of Mahmoodabad fought and the travails through which he had to undergo moving from one court to another and ultimately arrive at that very spot where he stood in 1986. The tenants and encroachers are not a poor and miserable lot. They are multi-millionaires themselves, tycoons to be precise.
Late Raja MA Ahmad Khan, father of MAM Khan, migrated to Pakistan in 1957. In 1965, war with Pakistan made all such properties left by the migrants declared as “Enemy Property”. The Raja died in 1973 in London. MAM Khan’s mother Rani Kaniz Abdi and he himself always remained Indian citizens. On basis of his Indian citizenship he not only contested elections twice but also got elected as MLA 1985-1989 and 1989-1991 assembly. He contested Lok Sabha 2004 election also. Thus his credientials as Indian citizen cannot be questioned.
Following his father’s demise in 1973 MAM Khan became the sole heir by virtue of Section 22 of Oudh Estates Act of 1869 and also by virture of custom and usage. He made numerous representations to the government of India as well as to the Custodian to release the property. In a letter dated 7 March 1981 he was informed about a cabinet decision by which 25% of the property could be released to a legal heir. In another letter issued by the Director Vigilance, Ministry of Commerce, dated 24 September 1981, he was again assured that 25% property would be released to legal heir if he was an Indian citizen. He was advised to contact the Custodian for completing the necessary legal formalities. On 10 October, 1981, the Custodian wrote a letter asking him to furnish legal evidence for his claim.
In 1981 he filed a suit in the court of civil Judge Lucknow (No. 365 of 1981) which was rejected. In July 1984 he filed second suit (219 of 1984). The Custodian argued that the Raja was not the sole heir. However, the Trial court decided the suit on 8 July, 1986 and held that he was the sole heir and thereby entitled to 25% of the property. Inspite of his repeated petitions the Custodian did not hand over the property hence he filed a writ petition in 1997 in the Bombay High Court conceding that being an Indian citizen and heir/ successor his properties were no longer “enemy properties”.
Can a heir and successor be termed as enemy or enemy subjected with the meaning of Section 2(b) or can the property of an Indian citizen be termed as enemy property within the meaning of Section 2(c)? Answer is emphatic No. The definition of enemy under Section 2(b) excludes citizens of India as an enemy or enemy subject. Thus the Custodian’s power can not be exercised on an Indian citizen and the Custodian’s power cannot interfere with the court’s power to pass appropriate orders.
The Lucknow bench also had confirmed him as sole legal heir and successor in 1986. The pleas of opposite parties i.e. Custodian, Khan’s real uncle and other members were rejected. For ten long years he tried in vain for release of property. In 1996 he with his wife met the Commerce Minister P Chidambram thrice. In 1997 he moved the Bombay High Court again. In 1998 an application for impleadment by Maharajkumar Amir Ali Khan step-brother of the late Raja and others was dismissed. Since the above application was based on forged documents FIR was lodged, CBCID investigation was undertaken by the state of Uttar Pradesh against Maharajkumar Amir Ali Khan. The Bombay High Court gave the judgement in MAM Khan’s favour in 2001 (21st Sept).
On 5 April, 2002 Union of India made an appeal. On the same day P Chidambaram appeared against MAM Khan on behalf of the forgerers. According to the forged documents the properties were given away to the forgerer’s father and uncle in 1955 ten years before Enemy Property Act came into existence! MAM Khan’s real uncle Maharajkumar M Amir Haider Khan, Barrister, who is cited as the first beneficiary in the forged document gave a written statement in Lucknow court (1984) stating that MAM Khan was the sole heir and successor. He served as an agent of the custodian till his death in 1991.
In case No 2501 of 2002. Appeal (civil) in SC a bench of Justice Ashok Bhan and Altamas Kabir dismissed union of India’s appeal in favour of the Raja by declaring, “the appellants have retained the possession of the properties illegally and in a high-handed manner for 32 years, the appeal is dismissed with costs which are assessed at Rs 5 lakh.
After SC decision a review petition was filed in December 2005 to dispute the title of MAM Khan. It was dismissed by the court. In January 2006 physical possession of Metropole Hotel in Nainital was handed over to him by the DM. Pawan Kumar Ruia of Dunlop, who was inducted by the custodian in 1996, was asked to vacate the property by the DM. Ruia appealed in the SC and his appeal was dismissed. He began fresh litigation with MAM Khan in the Nainital High Court. In April 2006 MAM Khan instituted contempt petition for non-implementation of SC order. Occupiers of Properties in Lucknow went to the Lucknow High Court challenging the SC order in August 2006. They disputed the title of MAM Khan on the basis of the forged document. Writ petiton was dismissed. In Sept 2006 they went to the Supreme Court through a SLP on the strength of the forged documents. Arun Jaitley appears four-times on behalf of the occupiers (16/7, 6/8, 29/8, 1/9) in 2007. The CBCID enquiry of the Uttar Pradesh govt concluded and declared fraud and forgery. Criminal case was instituted against Maharajkumar Amir Ali Khan and others. Non-bailable warrants were issued against the forgerers who are still at large. Meanwhile High Court litigation by Pawan Kumar Ruia was dismissed in April 2010. The SC listed the matter of deciding the tenants/ occupiers for July 2010. The Ordinance meanwhile (2 July) stalled SC’s proposed hearing.
The ordinance gives the entire Enemy Property Act a new meaning. It annuls all court orders. It is arbitrary and is retrospective in nature. It is executive action encroaching legislative power. At the same it affects the rights of Muslims enshrined in Muslim Personal Law. Interesting aspect of the secrecy and hurry can be judged by the fact that before the Ordinance was tabled in the Parliament on 2nd August it was published by TOI, Lucknow on 2nd August (i.e. the press received it prior to the Parliament).
The Raja had the patience, perservance and financial resources to contest legal claim at different places. Yet all has been brought to naught by one single executive action. Others have neither the time, nor money nor energy to restart the legal proccedings. That a barrister of PC’s calibre should under mine the role of judiciary and deprive himself and his other professional colleagues an opportunity to seek constitutional remedies is beyond comprehension. It’s time the Legislature intervenes in this juggernautic assault on judiciary and the Muslim Personal Law.