All about India’s Enemy Property law

[ecis2016.org] The movable and immovable assets left behind by people who left India after the Indo-China war of 1962 and the India-Pakistan wars of 1965 and 1971, are known as enemy properties

With the aim to monetise enemy properties in India, the government, in January 2020, constituted a group of ministers (GoM), headed by home minister Amit Shah. The successful disposal of these properties could make the government exchequer richer by an estimated Rs 1 lakh crore, at a time when revenue generation has turned into a challenging task for the centre. Two other high-level panels have also been proposed to be constituted, to facilitate the speedy disposal of enemy properties.

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What is enemy property?

After the Indo-China war of 1962 and the India-Pakistan wars of 1965 and 1971, the Indian government took over the ownership of movable and immovable assets left behind by the people who left India after the wars. These properties, spread across several states in India, are known as enemy properties.

The Custodian of Enemy Property for India (CEPI), an office established under the Defence of India Act, 1939, is in charge of enemy properties in India. Through the Custodian, the centre is primarily in possession of all enemy properties in India. Following the 1965 war, India and Pakistan signed the Tashkent Declaration in 1966 and promised to negotiate the possible return of assets taken over by either side after the war. Breaching that promise, Pakistan disposed of all its enemy properties in 1971.

What is the enemy property law?

In 1968, India enacted the Enemy Property Act, providing for the custody and control of enemy property. The centre was, however, forced to amend the 50-year-old law in 2017, amid rising claims of succession by the legal heirs of the original owners of enemy properties. “Of late, there have been various judgments by various courts, affecting the powers of the CEPI (Custodian) and the government of India as provided under the Act, adversely,” says the text of the bill, while citing specific examples.

A Supreme Court verdict of 2005 has been particularly instrumental, in pushing the number of such claims up remarkably. While giving its verdict on the ownership of the estate of the erstwhile raja of Mahmudabad, the top court ruled in the son’s favour, who claimed ownership over the property after his father’s demise in 1973. His father, who owned various heritage estates across Sitapur, Lucknow and Nainital, had left India for Iraq following the Partition. He took Pakistani citizenship in 1957 and later shifted to London, where he eventually died. Even though the raja’s wife and son stayed behind in India as Indian citizens, the raja’s estate was declared enemy property, under the provisions of the enemy property law of 1968. After a legal battle that lasted for over four decades, the SC restored the ownership of the raja’s estate with his son. The order was, however, made null and void when the rules of the 2017 law came into force retrospectively.

The Enemy Property (Amendment and Validation) Bill, 2016, was introduced, with an aim to amend The Enemy Property Act, 1968 and The Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The Bill was approved in parliament after the Lok Sabha, in March 2017, passed it. By way of making the definition of ‘enemy’ and ‘enemy subject’ more inclusive, the 2017 law established that irrespective of their nationality, heirs of those who departed from India after the wars of 1962, 1965 and 1971, cannot claim ownership over enemy properties.

Key features of the enemy property law 2017

Definition of enemy

The definition of ‘enemy’ and ‘enemy subject’ includes the legal heir and successor of any enemy, whether a citizen of India or a citizen of a country which is not an enemy. It will also include the succeeding firm of an enemy firm in the definition of ‘enemy firm’, irrespective of the nationality of its members or partners. It also says that the law of succession or any custom or usages governing succession, will not be applicable in relation to enemy property.

In-charge

Provides for the continued vesting of enemy property with the Custodian under the Defence of India Rules, 1962. The enemy property will continue to vest in the Custodian, even if the enemy or enemy subject or enemy firm ceases to be an enemy due to death, extinction, winding up of business or change of nationality. This applies, even if the legal heir or successor is an Indian citizen or a citizen of a country which is not an enemy.

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Only the Custodian, with the prior approval of the central government, can dispose of such properties. “No enemy or enemy subject or enemy firm shall have any right and shall never be deemed to have any right, to transfer any property vested in the Custodian and any transfer of such property shall be void,” it says.

State-wise break-up of enemy properties in India

Of the total 9,406 enemy properties in India, 9,280 are left behind by Pakistani nationals and 126 properties by Chinese nationals.

Source: Ministry of home affairs

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