Created in the aftermath of the 1965 war, the Enemy Property Act has been on the statute book since 1968 and controls the fate of 2,168 properties left behind by those who renounced their Indian citizenship and migrated to Pakistan.
In July 2010 — 42 years later — the Ministry of Home Affairs felt the Act needed to be amended urgently and had an ordinance promulgated to block all legal Indian heirs from going to court to reclaim such properties. Subsequently, it was tabled in Parliament, but a delegation of top Muslim MPs — including several Union Ministers — met Prime Minister Manmohan Singh. After hearing their views on the implications of the ordinance and the Bill, Dr. Singh called Home Minister P. Chidambaram, discussed it with him, and decided to let the ordinance lapse.
The MHA has since modified some of the proposed changes and will now introduce an amended version of the Bill in Parliament. The new version, to be unveiled on Wednesday, will permit Indian-born legal heirs, if they establish their status to the satisfaction of the government, to claim such properties. However, severe limitations remain on recourse to the courts. Lower courts cannot be approached, and since the impact of the changes is to be with retrospective effect, those affected by the proposed change in the law fear that hard-won battles will have to be fought all over again.
Meanwhile, senior BJP leaders L.K. Advani and Arun Jaitley have met Mr. Chidambaram and told him they will oppose the bill in its amended form. Their preference is for the version in the ordinance, under which no legal Indian heir to properties left behind by those who migrated to Pakistan after Partition can approach the courts.
Explaining the need for immediate legislation, Mr. Chidambaram, in a written statement tabled in the Rajya Sabha, has said a rash of recent judgments by different High Courts and the Supreme Court had adversely affected the powers of the Custodian and the Government of India under the 1968 Act. He also questioned the interpretation of the courts, which have held that on the death of an enemy subject, the property can devolve to an Indian successor and, further, that if a dispute over ownership should arise, the courts — and not the Custodian — will decide the fate of the property. If immediate remedial measures were not taken, Mr. Chidambaram continued, immoveable enemy property worth hundreds of crores of rupees would fall in the hands of persons who had no legitimate claim.
The case of the Raja
Among the most celebrated judgments the government is questioning is the Supreme Court verdict in 2005 in the case of the Raja of Mahmudabad. At stake is not just the fortune of the Raja and other claimants but the fate of hundreds of individuals — including many wealthy businessmen — who have been granted user rights to these 2186 properties over the years by the Custodian, often at throwaway rates.
Raja Mohammed Amir Ahmad Khan — who never migrated to Pakistan and remained an Indian citizen throughout — fought a legal battle for over four decades before winning his case in the apex court five years ago. The Union of India filed a review petition against this judgment but it was dismissed. In April 2006, a contempt petition was instituted against the Custodian of Enemy Property by the Raja for failing to implement the court order. So the occupiers of the properties in Lucknow went to the Lucknow High Court to challenge the Supreme Court's decision, and then went on to file an SLP in the Supreme Court.
What has made the case especially high-profile is not just the value of the properties but the stellar cast of Congress and BJP politician-lawyers who have represented different parties to the wider dispute over the years.
Mr. Jaitley appeared four times for various occupiers against the Raja in 2007, and Ram Jethmalani thrice in 2009. In April 2002, Mr. Chidambaram appeared in the Supreme Court for Amir Ali Khan and others against the Raja. The case of Amir Ali Khan, a relative of the Raja, rested, as it subsequently emerged, on forged documents. A U.P. CB-CID investigation in 2008 concluded that the documents Amir presented were a forgery and filed a criminal case against him and others. In October 2009, non-bailable warrants were issued against them. On his part, the Raja has been represented by Abhishek Singhvi and Salman Khursheed.
In June, 2010, the Raja secured a bank loan to refurbish the Hotel Metropole in Nainital, one of the many properties regained by him. It had earlier been leased to Pawan Ruia of Dunlop by the Custodian. But before he could begin using the loan money, the ordinance appeared on July 2. On August 2, the MHA wrote to the concerned district magistrates: “In view of the newly inserted provisions under Section 26, the Enemy Property Act, 1968, you are requested to take over the properties belonging to enemy national Raja Mohd. Amir Ahmad Khan immediately.”
Mr. Mohd. Amir Ahmad Khan is an Indian citizen, and has been one all his life. Even the Supreme Court, while delivering its judgment on his case, declared him to be an Indian citizen saying: “The definition of enemy provided under Section 2(b) excludes citizens of India as an enemy, or enemy subject or enemy firm. Under the circumstances, the respondent, who was born in India and his Indian citizenship not being in question cannot by any stretch of imagination be held to be enemy or enemy subject under Section 2(b). Similarly, under Section 2(c) the property belonging to an Indian could not be termed as an enemy property.”
