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'When a person is dead, his heir gets what he owned'


ONKARESHWAR PANDEY | New Delhi, December 24, 2011 16:36
Tags : Enemy Property (Amendment and Validation) Second Bill | ram jethmalani |

"An heir should get only what the propositus had. Or when a person is dead, his heir gets what he owned.” This was the crux of the argument made by eminent lawyer Ram Jethmalani on the proposed Enemy Property (Amendment and Validation) Second Bill, 2010. His opinion that when a person is dead, his heir gets what he owned, became the basis for the standing committee on home affairs of Parliament to reject the controversial Enemy Property bill to enable legal heirs of those who migrated to Pakistan to hold on to their properties.

The Second Enemy Property (Amendment & Validation) Bill, 2010 seeks to amend certain Sections of the Enemy Property Act, 1968, which was enacted in 1968 to provide for the continued vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962.
After stiff opposition on the Bill in the Rajya Sabha, the Chairman referred the Bill, to the Parliamentary Standing Committees on Home Affairs on 15th November, 2010. The Committee submitted its report to Rajya Sabha Chairman Hamid Ansari in the first week of Nov. 2011 after four extensions and finally rejected the controversial Enemy Property (Amendment and Validation) Second Bill, 2010. The standing committee led by BJP leader Venkaiah Naidu, unanimously asked the government to come up with a fresh legislation on the subject and maintained that the proposed amendment Bill failed to address its objectives.

According to Home Ministry, consequent on Chinese aggression in 1962, movable and immovable properties of the Chinese nationals were vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962. In the same way consequent to the aggression by Pakistan in 1965 and 1971, immovable and movable Pakistani properties in India were vested in the Custodian of Enemy Property for India. It was done under the powers derived from the Defence of India Rules, 1962/1971. The Enemy Property Act, 1968 was amended in 1977 to give effect to the Standing Order No. 5511 dated 18th December, 1971.

The UPA Govt. has cited a few court judgments behind the reason for amendments in the principal Act. These judgments, according to the UPA Govt. have adversely affected the powers of the Custodian and the Government as provided under the Enemy Property Act. There have been a number of such judgments by various courts.

According to the Ministry of Home Affairs (MHA), the Courts were supportive of the Government’s action in the orders passed by the Custodian in the initial stages. However, of late, various judgments by various Courts had adversely affected the powers of the Custodian and the Government.

There had been many cases related to Enemy Property where interpretation of the courts about various provisions of the Act does not appear to be in consonance with the objects of the Act, the Indian Govt feels, which compelled it to bring such legislation.

According to the Standing Committee report of the Indian Parliament on MHA, the most important case was Union of India Vs Raja MAM Khan (Civil Appeal No.2501 of 2002) in which the Supreme Court has made many important observations, which includes:
- On the death of an “Enemy”, the property devolves in succession and ceases to be “Enemy Property” if the successor is a citizen of India.
- Natural legal heirs & successors who are “Citizens of India” would be entitled to the property under the “Law of Succession”.
The Supreme Court gave this decision on 21st of October, 2005 in the Special Leave Petition (Civil Appeal) filed by the Govt. of India. The review petition filed by Govt. of India was also dismissed on 16th of Dec. 2005. Consequently, the judgment has been implemented.
Parliamentary Standing Committees on Home Affairs has cited some other Court judgments also for bringing proposed Enemy Property (Amendment and Validation) Second Bill, 2010.
It has cited the case of Rameshwar Dayal and Ors Vs. Custodian of Enemy Property for India & Others (Civil Misc. Writ Petition No. 4490 of 1976 connected with Civil Misc. Writ Petition No.4484 of 1976), in which the Allahabad High Court had held that there is no provision in the Act, which empower the Custodian of Enemy Property to, in a case where someone disputes that a particular property is an enemy property, adjudicate or to give a determinative finding on the point in controversy.
According to Standing Committees report, In a similar case of Chandra Madhab Sen and Ors Vs Union of India and Ors, (Writ Petition No.15217 (W) of 2007), the Calcutta High Court had held that it is evident from the provisions of section 6 of the Act that the exchange could be declared void only by the Central Government by making an order according to provisions of section 6 and not otherwise.
The Union Home Ministry has accepted before the Parliamentary Standing Committees on 2 February, 2011 that there were a large number of lacunae in the original Enemy Property Bill as it did not have various provisions which would enable the Custodian of Enemy Property to have title and to dispose of the properties. Subsequent to that, the Supreme Court judgment also clearly held that even though the property is vested in the Government, as soon as the enemy died, the enemy's son is no longer an enemy. That is, in one sense, the Supreme Court said that the enemy's son cannot be treated as an enemy and he has his own legal rights under the Constitution.
Surprisingly unlike to Pakistan, which seized properties of Indians there and sold them, China never seized any property of any Indian in China. Now the Indian Govt will have to take a policy decision whether in the light of the fact that post-1962, they did not seize any property of Indians, so whether India need to seize the properties of Chinese here.
Before rejecting the controversial Enemy Property Second amendment bill the Standing Committee carefully heard  and recorded the views of Lal Ji Tandon, MP, Lok Sabha and BJP leader from from Lucknow, UP, Ram Jethmalani, MP, Rajya Sabha & an eminent lawyer. The Committee also heard the stakeholders, including Mohammad Amir Mohammad Khan, the erstwhile Raja of Mehmoodabad on the Bill. The most important views on the provisions of the proposed Bill were of Ram Jethmalani, which made the basis of rejection of the Bill.
Ram Jethmalani gave his views to the committee on 30th September, 2011 and his first point was – “A heir can only get what the propositus had. When a person is dead, his heir gets what he owned.” Then he mentioned the case of Raja of Mahmoodabad, who was an Indian citizen, owning vast properties, mainly in Uttar Pradesh, migrated to Pakistan along with his minor son, soon after the partition of India and acquired the citizenship of Pakistan.

Jethmalani said “After a long stay in Pakistan, he was settled in London and died there in 1973. He died as citizen of Pakistan. All his properties naturally came to vest in the Custodian of Enemy Property, under the provisions of the Enemy Property Act, 1968. All enemy properties vest in the Government. His property which runs into thousands of crores, became the property of the Indian Nation. ”
Jethmalani argued that “this Ordinance was intended to nullify the Supreme Court decision and to prevent the property from getting into the hands of those who are not entitled to it, which is the right of the Parliament to do. This was the most polite way of saying that the Supreme Court has delivered a fraudulent judgment.”  Ram Jethmalani quoting from his article published in a newspaper said “The ordinance is a belated act of justice to the Indian people.”.
Now the UPA government has the option to reject the panel's findings but numbers in Parliament are an issue for the bill to be passed in the present form in the two Houses. 

(Disclaimer: The views expressed in the blog are that of the author and does not necessarily reflect the editorial policy of The Sunday Indian)
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Issue Dated: Feb 5, 2017