The Enemy Property (Amendment and Validation) Ordinance, 2016 promulgated by the President on 07.01.2016 is in the process of being replaced by the Enemy Property (Amendment and Validation) Bill, 2016, which was passed by the Lok Sabha on 09.03.2016 and is now awaiting its passage before the Rajya Sabha.
Post the 1965 war between India and Pakistan, Governments of both the countries negotiated the Tashkent Agreement resolving the conflict in January, 1966. Noting that a number of people from both sides had switched territories across the borders in the wake of the war; the Agreement mandated the exchange of properties owned by such people between the countries. The Government of India promulgated the Enemy Property Act, 1968 to enforce the exchange, whereas the Pakistani Government violated the Agreement by disposing off properties owned by the people who migrated to India.
The Enemy Property Act, 1968 entrusts the Custodian of Enemy Property for India with the custody, management and administration of enemy properties arising out of Indo-Pak Conflict of 1965 and 1971. Whereas, inter alia the Supreme Court in Union of India v. Raja Mohammed Amir Mohammad Khan (2005) 8 SCC 696 held the right to succession valid for enemy properties, thereby disallowing the Custodian to continue with the possession of such properties, the Government of India has moved to turn over the precedent having passed the Enemy Property (Amendment and Validation) Bill, 2016 on 09/03/2016 in the Lok Sabha.
The amending Bill –
- Changes the definition of “enemy subject” and “enemy firm” to include the entitled successors of such subjects or firms within the ambit of the definition.
- Excludes even the citizens of India, who might claim their right to succession over such properties.
- Provides that the Custodian shall continue to possess an enemy property notwithstanding the non-existence of the enemy or the enemy subject or the enemy firm.
- Restricts the application of any law in force or custom or usage governing succession of property for enemy properties.
- Restricts and repudiates any transfer in such properties.
- Excludes the jurisdiction of civil court or other authority for adjudicating upon such properties.
- Enforces itself retrospectively.