The Issue of Enemy Property and India’s National Interest

Mohammad Ali Jinnah, the founder of Pakistan kept fighting till his death, to get back his posh bungalow at Malabar Hill, Mumbai, known as Jinnah House. His daughter Deena Vadia, too, could not succeed in getting the property of his father. But Mohammad Amir Mohammad Khan alias Sulaiman Khan, the son of the late Raja of Mehmoodabad, who was the Treasurer of the Muslim League, a close associate to Mohammad Ali Jinnah, the founder of Pakistan, won the claims of his father’s property in Supreme Court after a 32-year long legal battle, which had been seized by the Govt of India as Enemy Property. The Supreme Court in 2005 had ruled in Khan’s favour.[1]

This has triggered a new controversy over Enemy Property in India. The 2,168 properties of migrants who left for Pakistan are spread across Bengal, Andhra Pradesh, Gujarat, Bihar and Uttar Pradesh, with the largest chunk.[2] However, the number is more than what the government has said. According to a report there are not less than twenty thousand enemy properties in the country.[3] Almost 200 such properties in Delhi are under the control of land mafia.[4] Another report counts 700 enemy properties in Delhi.[5] There are 360 enemy properties in Kolkata and most of them are under the illegal occupations.[6] There is no authentic valuation of such properties. However, it is estimated that total value of such properties may be between one lakh crore rupees to one lakh fifty thousand crore rupees.

This development has led to a slew of suits from other claimants, virtually opening a pandora’s box. The most interesting case was a claim filed in the Allahabad High Court, where a person claimed nearly one-third of Agra-including the Taj Mahal-furnishing documents that proved his lineage. The High Court dismissed the case on the ground that the properties were over 300 years old. Interestingly, the appellant has now moved the Supreme Court. Among other property owners in Uttar Pradesh are Kudrat Hussain (Shahjahanpur), Raja Saadat Ali (Behraich) and Ammiruddin and Dr. Mohammed Raja (Allahabad). Most of such claimants are based in Pakistan. However, legal activities regarding their claims have started in the courts of India .The government’s approach has encouraged people to claim such properties using fake documents, and other illegitimate means. For instance  at least property worth of 100 crores under the name of Aisha Begum in Muzaffar Nager, an identity unknown to the people and government record, have claimants of  her properties.[7] Some of the claimants had even allegedly managed to come out with ‘adoptions certificates’ so that they can claim their rights over such valuable properties…………….

[1] Jinnah’s house and Raja Mehmoodabad’s property are covered under two different acts respectively Evacuee  Property  act 1948 and Enemy PropertyAact 1968.

[2] Hope for Calcutta war property heirs , The Telegraph, ocotber 21, 2010

[3] The Hindustan Times , Delhi High Court Curbs Enemey Property  Act Ordinance  enforcement, August 15, 2010.

[4] DNA, Delhi land mafia gobbles up 200 enemy properties, July 31, 2010; also see the Statesmanman on the Registry of ‘enemy properties’. January 19, 2010

[5] The Times of India , Government Bans sale of land left behind during partition., January 18, 2010

[6] The Week, The Bitter Reality, October 3, 2010

[7] See Sunday Express , Three Plots of Land and Missing Begum, October 24, 2010; the reports says, “ Aisha Begum, it seems, is getting wealthier by the day. Only nobody knows who Aisha Begum is.

“Aisha Begum is only a name now. No one here knows where she lived or who she was. No one has claimed to be her heir either,” says Ashok Malik, principal of Chaudhary Chhotu Ram (P.G.) College, Muzaffarnagar. The college has leased out two properties registered in Aisha Begum’s name.

Till last year, Aisha Begum, wife of Ahsanul Haq, was the owner of two properties: plots 1190 and 1191, totalling 0.307 hectares, in Muzaffarnagar. At present, this is part of a 13-hectare agricultural farm of the Chaudhary Chhotu Ram (P.G.) College.

The Enemy Property Act of 1968 is part of the cumulative legacy of 1947 that the government would have done well to settle long before it got entangled in a web of law suits. The legislation, which came in the wake of the 1965 India-Pakistan war, relates to properties clearly and rightly labeled as “enemy properties” that were left behind by those who migrated to Pakistan at the time of the partition and thereafter.

Unfortunately, now the matter is being given a communal color by saying that it barred Indian Muslim citizens who claimed to be the legal and rightful heirs of the original owners from inheriting those properties. The Govt’s attempt will surely hurt the sentiments of any Indian nationalist citizen be it a Hindu or of any other community.

The government approved amendments to the 1968 Act, entitling the legal heirs to inherit the properties, provided they are Indian citizens and their suits were settled in a court before July 2, 2010. However, the Enemy Property (Amendment and Validation) Second Bill 2010, if approved by Parliament, is likely to resolve the issue only partially.

The proposed law is not balanced in its approach, although it seeks to bar any future litigation on the matter (the latter provision being needed to guard against dubious claimants), yet it upholds judicial rulings on title suits filed before July 2, 2010, for giving benefits to some. Having been vested in a government-appointed Custodian since 1968, enemy properties should have been sold off or distributed among the poorer people of this country. Giving back a declared and confiscated Enemy Property to the same family will simply encourage anti-nationals.

The question is: Is it not a fact that the law seizes the properties of criminal absconders just to give a message to them that their criminal act will affect their whole family? Then why can’t the same rule be applied in the case of persons who had left for Pakistan, an Enemy Country?

It seems that the Govt was symbolically fighting against the petition of the Jr Raja, a unique case where the Union Home Minister promulgated the ordinance and his own party leaders were all out to oppose it. Finally, they succeed in pressurizing the Prime Minister and forcing the entire UPA Govt to take a clear cut U-Turn. Then what was the need for the Ordinance? Why did the cabinet approved it?

The reasons were very justifiably put forward by the Union government (P Chidambaram, the minister for home affairs) on   July 22, 2010:
(2). At initial stages, the courts upheld the vesting of the enemy property in the Custodian and restrained themselves from interfering with the Government’s action. However, of late there have been various judgments by different High Courts and the Supreme Court that have adversely affected the powers of the Custodian and the Government of India under the Enemy Property Act, 1968. The Custodian is finding it difficult to sustain his actions which, inter alia, included vesting of the enemy properties, removal of unauthorized encroachments, etc.
(3). The courts in their judgments have held, inter alia, that (a) on the death of an enemy subject, the property devolves in succession and ceases to be enemy property if the successor is a citizen of India; (b) the enemy subject has the power to sell the property by virtue of section 6 of the said Act; (c) the Custodian has no right or title in the property and the enemy continues to have the right, title and interest in the property; (d) the Central Government does not have absolute power to divest the property. The power of the court to pass an appropriate order to custodian of property which ceases to be an Enemy Property is not taken away. The court also has the power to decide the Custodian’s right to managing, preservation and control of enemy property for a limited purpose and for a temporary period. The courts have also held that in cases where a dispute arises as to whether a particular property is an enemy property, the custodian has no power to adjudicate and this issue can only be decided by the court in appropriate civil proceedings. In view of such interpretation by various courts, the Custodian has been finding it difficult to sustain his actions under the provisions of the Enemy Property Act, 1968.
(4). In the light of the above findings, the Government came up with the conclusion that  immediate remedial measures has not been adopted, the prime objective of the Act would perish and immovable enemy properties worth hundreds of crore of rupees would fall in the hands of the persons who do not have any legitimate claim over these enemy properties. Hence, the desired need to amend the Enemy Property Act, 1968 aimed mostly to clarify the legislative intent and strengthen the hands of the Custodian and the Central Government and also to prevent the courts from issuing any orders for divestment of the enemy properties”.

However, this justification could not bear the burden of communal politics and the government made a U- turn. It is like a lawyer pleading the case of a victim on 31st of month and on 1st of next month pleads the case of offender.  The government does not have any valid, logical and convincing argument to explain what made them negate their own argument in a span of just three months? Is it harping to degrade the Supreme Court by promulgating an Ordinance? Or does it mean that the national interest has little relevance over issues of potential the vote bank?

Things changed after “a high-pitched campaign against the ordinance” which “isolated the Home Minister”.[1] S S Ahulwalia , member, Rajya Sabha  categorically charged the government for diluting the Enemy property Bill (I) meant to replace the Ordinance, “under influence of leaders of a particular community. It is very unfortunate that communalism is being brought into the matter. The law is for everybody”,[2] On 29th August, 2010, Mohammad Adeeb, Member of Parliament, wrote a letter to the Union Finance Minister Shri Pranab Mukharjee, and reminded him that approximately 41 members of Parliament had met the PM on the day the Bill (Enemy Property Bill) was proposed to be tabled. He was very kind and had assured the MPs that the Bill would not come through and indeed the bill was not tabled then. He had also assured us that the ordinance would be allowed to lapse.” The Muslim MPs demanded not to re promulgate the Ordinance and Govt. ceded their demand,[3] unmasking the real intent of the UPA government over the Amendment.

The General public ,on the other hand ,is  left  puzzled by this  very act of the government and laments that if this trend persists, the terrorists and criminals will continue with their never ending anti-national activities and will simply run away to take shelter in other countries without having fear of their properties being seized by the Indian government. If the Govt. fails to take these important points into consideration, it will certainly be committing a long lasting indelible historical blunder to the society and to the nation as a whole.

Policy formulation, its implementation and revision in the light of judicial intervention or on people’s demand are very natural in a democratic country. No policy or law should be considered absolute or static. They can be critically reexamined in the changing circumstances and requirements. But such reexamination of a law or policy must not violate the letter and spirit of the Constitution. But in many cases policy revision in India is done rather on sectarian considerations ignoring larger interest of the country, the latest instance being the Enemy Property (Amendment and Validation) Second Bill 2010.

The government of India enacted a law in 1968 known as Enemy Property Act under which the government has the right to acquire the property of those people who were directly or indirectly associated with — China and Pakistan as both these countries had waged unprovoked war against India in 1962 and 1965, respectively. Such type of legislations is in vogue in other parts of the country and is invariably enacted when one country is in the state of war with the other. After the war the government can dispose off the enemy property. The enemy property is usually put under a ‘Custodian’, or officers who are assigned to manage enemy properties. In India, the Enemy Property Act, 1968 had made a provision for a custodian who legally became owner of the enemy property.

Number of such properties under custodians mounts up due to partition, and three successive wars (two with Pakistan: 1965 and 1971 and one with China: 1962). These properties remained mismanaged, controlled by vested interests, tenants and mafia groups. The government of India could not follow an unambiguous and scientific approach to deal with such properties. Most of the prized properties remained under the control of tenants who are paying very little amount as rent. Pakistan and newly born Bangladesh resolved the issue and disposed off enemy properties, but India could not do anything since 1947 till date. The valuation of these properties acquired in 40’s and 60’s went up and reached to thousands of crore of rupees.

Breeding conflicts, claims and counter claims over ownership of this property has turn out to be the norms of the day. One such notable claim that has rocked the country over the Enemy Property was the claim on the property of Raja Mehmudabad. A bench of the Supreme Court presided over by Justice Ashok Bhan had ruled in favour of the son of Raja Mehmudabad[1] who was the treasurer of the Muslim League and trusted lieutenant of the founder of Pakistan Md Ali Jinnah. The judgment created chaos and thousands of such ‘claimants’ are encouraged to use the verdict to gain control over enemy properties. As a remedial measure,  to thwart various other similar claims, the government of India promulgated an Ordinance, but it lapsed on September 6, 2010 and subsequently Union ministry for home affairs drafted a bill “the Enemy Property (Amendment and Validation) Second Bill, 2010”. This Bill (No. 75 of 2010) was the replica of the Ordinance but things changed. The vested interests shrouded the matter and the easiest way to defeat the bill was to denounce, deride and demean it as ‘anti-Muslim’. Muslims members of Parliament forgetting that they are elected not by a separate electorate but by the joint electorate of a secular India, have developed a habit to use their number and influence as a Muslim pressure group.The campaign undertaken by Muslim MPs against the Bill (75 0f 2010) gave an impression that something wrong is being done to the community. The question arises: How the issue of Raja Mehmudabad became the Muslim issue? He fought the case on individual capacity; he won the case in the Supreme Court as an individual. Why religion is being dragged in this sensitive issue?

The vested interest masquerading under the grab of so called minority’s interests succeeded and the government finally redrafted the Bill and the new Bill introduced in the Lok Sabha during the Winter Session reversed the statements, facts, logic and arguments and historical justifications.

The Second Bill, though could not be brought for discussion due to adjournment of Parliament, has been strongly criticized by many on the ground that it is a part of communal agenda. The question comes up, ‘Is enemy property a Muslim/Hindu or majority/minority issue?’ Had there been a war with Nepal or Bhutan then would the properties seized be called the enemy property?

During the Indo-Chinese war in 1962, the government of India under the Defence of India Rules of 1962 seized 80 properties of the Chinese-origin owners who migrated or deported through 58 notifications issued in 1963. These properties are scattered in Tangra, Kolkata, Darjeeling, Shillong, Makum, Silchar and Tinsukia in Assam, two in Siliguri and one in New Delhi.[2]Properties seized after partition were not described as enemy properties till China and Pakistan waged war against India. Before enacting the Enemy Property Act 1968, the Indian State maintained properties of those who migrated to Pakistan leaving their properties behind under the Evacuee Property Act.

Against five million Hindus and Sikhs who crossed over “the border” into East Punjab almost an equal number of Muslims crossed over to Pakistan. It created the problem of refugees’ properties[3]. There was a great disproportion in the value of agricultural land, factories, plant, machinery, shops and houses owned by non-Muslims and Muslims in the affected areas.[4]  The Pakistan government proclaimed Ordinance No VII of 1947, which banned transfer of any property by an evacuee and various conditions were imposed preventing an evacuee through his agent, assignee or attorney, from selling or exchanging his property. According to this ordinance, Evacuee Property was defined as such property the owner of which could not “personally occupy or supervise or take delivery from the place of deposit.” When the government of India protested at Inter Dominion Conference in Delhi (December 18-20, 1947), Pakistan took up the attitude that the Government of India could enact similar measures. Vijaytunga writes, “Knowing as they (Pakistan) did that property left behind by non-Muslims in Pakistan was worth ten times the property left behind by Muslims in India, this was neither a sympathetic nor a statesmanlike attitude.”[5]

Pakistani subjects took advantage of the existing lenient regulations of Indian laws and profited by transactions with regard to their properties in India. This led the government of India to revise her Evacuee Law on June 13, 1949. Under the new law a person became an “evacuee” only if he leaves India or is a resident of Pakistan or acquires any interest in evacuee property in Pakistan.[6]

Pakistan promulgated a very discriminatory Evacuee Property Ordinance on October 15, 1949. According to the Ordinance, if a person continues to live in Pakistan and had never left Pakistan he would be regarded as Evacuee even if any relation of his, no matter how the distant relationship, had migrated to India. India promulgated Central Evacuee Property Ordinance. Under this Ordinance  an owner of “Evacuee Property”  was asked to  show cause why  action under the law  not be taken  against him, he could defend his right and  appeal against the Custodian’s order.[7]

Now it has become part of the communal agenda and this is how the government sacrifices national interests. The Bill II is the result of one sided lobbying, communalism and weak coalition government, it gave birth to a child whose jurisdiction will not be confined to the enemy property but rewriting the history of partition and migration. In a communication dated August 22, 1949, the government of India foresaw continuation of the dispute on properties in future too, “without a just and fair solution to the vexed question of evacuee property. The great bitterness that now exists between the people of two dominions is bound to continue for indefinite period.”  The Enemy Property Act, 1968 is based on history of partition as well as three wars. Pakistan, Bangladesh and China resolved, disposed off enemy properties but India could not rather it has complicated the issue due to her own politics and it is bound to wound it in a different way if it is not dealt with iron hands.  Enemy Property Act should not be allowed to become a communal agenda. It is a purely a policy matter and should be treated with secular perspective with a sense of history.

The Urdu press has begun spewing venom at one of the most important initiatives undertaken by the India Policy Foundation, which is the publication of “The Issue of Enemy Property and India’s National Interest”. For instance, Farzan Qureshi, special correspondent of the Hindustan Express (Urdu) in his special dispatch  on April 23, 2011 berates the RSS for trying to incite communal passions over this issue. Javed has said that after failing to have its way in the judiciary, the government wanted to introduce a bill in this regard, which has been strongly opposed by all Muslim members of parliament. Now the RSS too has started echoing the Congress’ voice and has dubbed all Muslims as extremists. The clearest proof of this is the book “The Issue of Enemy Property and India’s National Interest”, published by the India Policy Foundation, written by senior journalists Onkareshwar Pandey and Manmohan Sharma. The book lays stress on two important factors: One, the extent of enemy property has been estimated ranging from one lakh rupees to one lakh crore rupees and two, the RSS has made an issue of the fact that because the property of Hindus who had to leave Pakistan in the aftermath of Partition was grabbed by Muslims there, India too must do the same with the property of Muslims left behind in this country when the fled to Pakistan.

Rajya Sabha member Mohammad Adib, while raising this issue publicly, has gone on to accuse the RSS of targeting all Muslim MPs. Adib has also said that we shall send a copy of the India Policy Foundation’s book to the Prime Minister and tell him that the proposed legislation will only be to the benefit of the RSS. Adib further said that “The Issue of Enemy Property and India’s National Interest” holds Muslims responsible for stalling the proposed legislation and has attacked all 41 Muslim MPs, including him. Adib further accused the RSS of targeting the Muslim community whenever they demanded equality and rights.

Mohammad Adib mentioned the law passed in 1968, which deprives the family of any Muslim who had migrated to Pakistan from any share in his property left behind. After long litigation, the Supreme Court in 2005 stated that any person who had not left India could not be construed to be an enemy of the country; neither could his property be classified as enemy property. Moreover, the apex court also held that the custodian of such properties could not be deemed to be its owner. The descendants of the original owner must receive that property. Though Ram Jethmalani, Arun Jaitley and P. Shivshankar had fought the case, they lost the issue. The government is mulling a new law over this issue, and is preparing an ordinance that will deny the relatives of migrants to Pakistan, any share in the property left behind, even if those relatives have stayed back in India. Adib said that Muslims will oppose this move and accused the RSS of publishing this book to deny Muslims any share in the property their ancestors left behind. It is unfortunate that Muslims are being questioned after 65 years why their relatives fled to Pakistan, with no consideration for those who stayed behind. The RSS wishes to deny even a single rupee to Muslims. Adib also said that the cumulative value of enemy property is over rupees one and a half lakh crore, which if delivered to Muslims, will make them self-reliant, something that the RSS will never tolerate.