India: Our land, their land - The Enemy Property (Amendment and Validation) Bill, 2010, has raised a furore in some quarters

The Telegraph - August 18 , 2010

Our land, their land

The Enemy Property (Amendment and Validation) Bill, 2010, has raised a furore in some quarters. Hemchhaya De finds out why

THE EXODUS: Refugees at the Punjab border in 1947

For Shamim Ahmad, it has been an arduous battle spanning more than a decade. A retired state government employee, Ahmad, based in Kanpur, hopes that he will soon get back what “rightfully belongs to him†— a double-storeyed, sea-facing building in Mumbai’s Worli area. The building is currently vested in the Custodian of Enemy Property in India under the provisions of the Enemy Property Act, 1968, promulgated in the country following the war with Pakistan in 1965.

“The property originally belonged to my relative Hamida Begum who migrated to Pakistan after Partition. It has been bequeathed to me and the Bombay High Court and the Supreme Court have ruled that it’s not an enemy property,†asserts Ahmad. “So I have court orders to show that I am the rightful owner. I have applied this year to the Custodian in Mumbai for the return of the property.â€

But Ahmad’s hopes may be dashed if the Enemy Property (Amendment and Validation) Bill, 2010, is passed in Parliament in its current form.

The bill, introduced in Parliament earlier this month, has created a furore as it is essentially aimed at preventing Indian family members of those who migrated to Pakistan at the time of Partition from claiming their properties. These had been declared “enemy property†under the Enemy Property Act, 1968, and are vested in the Custodian of Enemy Property — a government department (earlier under the Union commerce ministry but now functioning under the home ministry), empowered to appropriate and look after such properties.

But thanks to concerns raised mostly by Muslim members of Parliament (MPs), led by minority affairs minister Salman Khurshid, Prime Minister Manmohan Singh put the Enemy Property (Amendment and Validation) Bill on the backburner recently. However, it is now being said that the bill will make a comeback with some modifications — not to stop rightful owners from claiming their property, but to prevent the indiscriminate purchase and sale of “enemy properties†across the country.

According to some estimates, there are over 2,000 “enemy properties†in the country. In Calcutta alone, there are 95 such properties that are now occupied either by tenants or serve as offices for state officials or the police.

Of course, the most famous case regarding enemy properties in India is that of the Raja of Mahmoodabad, Amir Mohammed Khan. The Raja’s father migrated to Pakistan at the time of Partition while he and his mother reportedly stayed back in India. The Mahmoodabad properties, estimated to be worth several thousand crores of rupees, are spread across UP and Uttarakhand. In fact, some of the properties that originally belonged to the Mahmoodabad family — declared enemy properties and vested in the Custodian after the 1965 war — housed senior officials of the UP government. After a 32-year court battle, the Supreme Court ruled in 2005 that the properties be restored to the Raja as he was its rightful owner.

Apparently, the verdict encouraged a lot of people to come forward with claims to these “enemy properties†. This prompted the President of India to issue an Enemy Property Amendment and Validation Ordinance recently, which, in effect, barred the restoration of such properties to claimants. In fact, in a statement attached to the Enemy Property (Amendment and Validation) Bill, that was supposed to have replaced the ordinance, Union home minister P. Chidambaram notes, “Of late, there have been various judgements by various courts that have adversely affected the powers of the Custodian and the Government of India as provided under the Enemy Property Act, 1968.â€

The most contentious part of the bill is Section 18B. It says: “No court shall have jurisdiction to order divestment from the Custodian of enemy property vested in him under this Act or direct the Central Government to divest such property from the Custodian.†In other words, the bill clearly seeks to prevent Indian family members of those who migrated to Pakistan at the time of Partition from going to court to regain possession of the property of their forefathers.

“The passage of the bill will be another proof of this government’s anti-Muslim policies since the law is Muslim specific and has little meaning and relevance six decades after Partition,†says Zafarul Islam Khan, former president of All India Muslim Majlis-e-Mushawarat — an umbrella body for Muslim organisations in India — and chief editor of The Milli Gazette, a publication that addresses Muslim issues in the country.

Agrees Shaista Ambar, president, All India Muslim Women’s Personal Law Board, who’s planning to fight the bill tooth and nail, “My maternal family moved across the border, but my parents did not shift. We consider this country our motherland and have served it for several generations. Does this mean nothing to the government?â€

She adds, “The government is not only calling these ‘enemy properties’ but it is also mocking us and declaring us the enemy! This is surely going to shake people’s faith in the government.â€

Despite the questions being raised about the bill, not all are happy that the government has decided to put it on hold. For instance, BJP MP and senior advocate Ram Jethmalani calls the whole process of restoring “enemy property†to their alleged rightful owners “the biggest scam ever†. “The way the Raja of Mahmoodabad was allowed to claim properties — it’s nothing but daylight robbery! Pakistan has had a similar law and as far as I know, no property was ever returned to anyone in that country,†says Jethmalani. “The Cabinet knew that the judgement was wrong. Many law officers are involved in this hideous scam!â€

But sources in the government maintain that the Centre’s objective is not to deprive rightful claimants of their ancestral property. They say that modifications in the bill are on the cards and these would ensure a more streamlined process for the restoration of “enemy properties†to their legal owners. As per the provisions of the revised bill, a person would be able to approach appropriate courts to prove their rights and get succession certificates. Once that right is established in a court of law, a person can apply to the central government for its restoration to him or her.

“Some plans are afoot. We have convinced the government that changes are necessary to the bill. All in all, efforts are on to make sure that people are not harassed while claiming back ‘enemy properties’,†says Trinamul MP and Union minister of state for tourism Sultan Ahmad, who was part of the delegation of Muslim MPs that met the Prime Minister over the bill recently.