The FAQs have been prepared by S A Rishikesh, a 2nd-year, BA.LLB (H) student at Shri Ramswaroop Memorial University, Lucknow. He is currently interning with LatestLaws.com.
Introduction
When two or more countries engage in a war, they tend to confiscate the properties of nationals of the country with whom they are at war, in their own country. The simple reason behind doing this is to stop the other country from using its resources present within our country. It is not a new concept altogether. It has been followed even in the times of world war, where the United States of America and the United Kingdom took control of the properties of the Germans falling in their territory.
India did this during the war between India and China in the year 1962 and India and Pakistan in the years 1965 and 1971. The government seized the properties of Chinese and Pakistanis in India abiding by the provisions of the Defence of India Acts. When the wars settled the Defence of India Act was no longer operable, as it was temporary. So, to regulate the properties confiscated during the war Enemy Property Act was introduced by the government in the year 1968.
Q1. Who is “Enemy” or “Enemy subject” or “Enemy firm”?
Ans. Section 2(b) of the Enemy Property Act 1968 states that definitions of these terms have been adopted from the Defence of India Rules 1962 and 1971. The following terms have been defined as follows:
Enemy: Any person or country if found guilty of committing external aggression or engaging in a war against India.
Enemy Subject: Any person who holds the citizenship of the country, at the time when it has declared a war against India.
Enemy Firm: Firm or company whose owner is an “enemy” or “enemy subject”.
Q2. What is “enemy property”?
Ans. Section 2(c) of the Enemy Property Act 1968 defines the enemy property. It has been taken from Rule 133A of the Defence of India Rules, 1962. Any property or asset which belongs or is owned by or is managed on behalf of an enemy, enemy subject, or enemy firm is Enemy Property. It also refers to the properties and assets of the people who migrated to Pakistan during 1965 and 1971 or China in the year 1962 and are no longer the citizen of India. Property or asset under this Act has been classified into two types Movable property and Immovable Property. Immovable Property includes lands, buildings Orchards and Water bodies while Movable Property includes gold, jewelry, shares, debentures, government securities, bank deposits.
Q3. How is enemy property identified? And what happens after that. Ans. Any Ans. property that was registered in the name of a Chinese or Pakistani national during the year 1962 and 1965 to 1971 respectively is identified as enemy property. It is done in two ways certain officers have been appointed to identify such properties and any Indian citizen can also report such property to the government of India.
Once identification and verification are completed a certificate is issued following the provision of Section 8 and Section 12 of Enemy Property Act 1968 and the control of the property is taken over by the government of India.
Q4. What does the Enemy property Act do?
Ans. During the India-China war or India-Pakistan wars, the Defence of India Rules were in force and properties were confiscated following the rules of the same but after the war ended these rules were done away with. To regulate these Enemy Properties the Enemy Property Act 1968 was introduced. The basic function of this Act is to govern and regulate the enemy properties. It also has the provisions for various officials such as the Custodian of Enemy property and the Inspectors of Enemy Property. They also derive their powers from this Act.
Q5. About Custodian of Enemy Property of India.
Ans. The office of the custodian of enemy property was set up before independence in 1939. Back then it was known as Controller of Enemy Firms and dealt with properties seized during the second world war. After independence, the Indo China war in 1962, and Indo Pak wars in 1965 and 1971, properties of enemies were confiscated and this office used to maintain those properties and was regulated by the Defence of India rules. When in 1968 Enemy property Act was formulated the office came under this Act and has remained so to date.
Under the Government of India it has remained in various ministries from time to time:
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Independence – October 1969
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Ministry of Commerce
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November 1969 – February 1973
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Ministry of Foreign Trade
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March 1973 – June 2007
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Ministry of Commerce & Industry
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June 2007 – present
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Ministry of Home Affairs
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Currently, custodian of enemy property is a statutory authority under the Ministry of Home Affairs with its head office in New Delhi and branch offices at Mumbai, Kolkata, and Lucknow.
Q6. Powers and functions of Custodian.
Ans. The Custodian is a quasi-judicial Authority under the Enemy Property Act and a Civil court under the Civil Procedure Court,1908 for the purpose of Section 11 of the Act which empowers him for
(i) sending a notice in writing to summon any person;
(ii) calling for documents through issuance of notice;
(iii) requiring discovery and inspection of documents;
(iv) enforcing the attendance of any person including officers dealing with Law, revenue matters, banking officers or officer of company;
(v) Custodian can examine on oath the afore- mentioned persons so summoned.
(vi) compel production of books;
(vii)issue commission for examination of witness’s and/or documents;
(viii) for any decision taken/Certificate issued by the Custodian, the appeal lies with the Central Government, where, if aggrieved Appeal c be preferred in the High Court.
Q7. Enemy properties in India.
Ans. The total number of enemy properties in India is 9,406 out of which 9,208 belong to Pakistani nationals and 126 properties are left behind by the Chinese nationals. The estimated value of all these enemy properties is approximately Rs. 1 lakh crore. Besides these, a total of 6,50,75,877 shares in 996 companies of 20,323 shareholders is under Custodian of Enemy Property for India, which is worth about Rs 3,000 crore, according to a government estimate. There are still 5866 which are yet to be verified and declared enemy property.
Q8. About such properties in Pakistan.
Ans. The Tashkent declaration was signed by both the countries India and Pakistan on January 10, 1966, that after discussion both the countries will return the assets and properties seized during the war as enemy properties. But the government of Pakistan did not follow the declaration and disposed of all such properties within their country in the year 1971 itself.
Q9. Amendments to Enemy Property Act 1968 if any?
Ans. There has been an amendment in the Enemy Property Act 1968 in the year 2017 the bill of the same was introduced in 2016 [The Enemy Property (Amendment and Validation) Bill, 2016]. Major changes brought about by the amendment:
i. In the original act enemy did not include “Indians”. But after the amendment now even the legal heirs of the enemy will have no right on their property. this means even when an enemy dies his property will not be transferred to his legal heirs even if they are Indians. The government will the sole owner of such property now.
ii. Custodian will now be permanent and has been vested with more powers like all the rights, title, and interest over the enemy property.
iii. The Law of succession is no more applicable in properties confiscated/ maintained under the Enemy Property Act 1968.
iv. After the amendment custodian can now even sell or dispose of the property and can also serve an eviction notice to illegal occupants.
v. The last notable change is now any case related to enemy property can now be only filed in the high court or the supreme court. Civil courts will have no jurisdiction in this matter now.
References:
https://www.latestlaws.com/bare-acts/central-acts-rules/defence-laws/enemy-property-act1968/
https://indianexpress.com/article/explained/explained-what-is-enemy-property-in-india-and-how-has-the-government-dealt-with-it-6231854/
https://enemyproperty.mha.gov.in/Home/AboutOfficeOfCEPI.html
