GS Mains Model Question & Answer: Discuss the cabinet
approval to ordinance on enemy property bill and its subsequent provisions.
Q. Discuss the cabinet approval to ordinance on enemy
property bill and its subsequent provisions. (12.5 Marks)
(General Studies Mains Paper I - Modern India : Post-independence)
Model Answer :
The Presidential Ordinance amends the Enemy Property Act,
1968 and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It
replaced the Enemy Property (Amendment and Validation) Ordinance, 2016, which
was scheduled to lapse in April 2016.
Under it the centre had designated some properties belonging
to nationals of Pakistan and China as ‘enemy properties’ during the 1962, 1965
and 1971 conflicts. It vested these properties in the ‘Custodian of Enemy
Property for India’, an office instituted under the central government. The 1968
Act regulates these enemy properties, and lists the powers of the Custodian.
Powers of the Custodian: The 1968 Act authorised the
Custodian to take measures to preserve enemy property, and maintain the enemy
and his family if they are in India, from the income derived from the property.
The Ordinance removes the duty to maintain the enemy and his family.
Highlights of the Bill
- The Bill amends the Enemy Property Act, 1968, to vest all rights, titles
and interests over enemy property in the Custodian
- The Bill declares transfer of enemy property by the enemy, conducted
under the Act, to be void. This applies retrospectively to transfers that
have occurred before or after 1968.
- The Bill prohibits civil courts and other authorities from entertaining
disputes related to enemy property.
It expands the definition of enemy to include legal heirs of
enemies even if they are citizens of India or of another country which is not an
enemy, nationals of an enemy country who subsequently changed their nationality
to that of another country.
Cases when properties vest with the Custodian
The 1968 Act allowed for vesting of enemy properties with the Custodian,
after the conflicts with Pakistan and China. The Ordinance amends the Act to
clarify that even in the following cases these properties will continue to vest
with the Custodian:
(i) the enemy’s death,
(ii) if the legal heir is an Indian,
(iii) enemy changes his nationality to that of another country, etc.
The 1968 Act provided that the central government may order
for an enemy property to be divested from the Custodian and returned to the
owner or other person. The Ordinance replaces this provision, and allows enemy
property to be returned to the owner only if an aggrieved person applies to the
government, and the property is found not to be an enemy property.
Sale of enemy property
The 1968 Act permitted sale of enemy property by the
Custodian only if it was in the interest of preserving the property, or to
secure maintenance of the enemy or his family in India. The Ordinance expands
this power, and allows the Custodian to sell or dispose of enemy property. The
Custodian may do this within a time period specified by the central government,
irrespective of any court judgements to the contrary.
Prohibited transfer of enemy property
The 1968 Act prohibited transfer of enemy property by an
enemy if: (i) it was against public interest, or (ii) to evade vesting of
property in the Custodian. The Ordinance removes this provision, and prohibits
all transfers by enemies. Further, it renders transfers that had taken place
before or after the commencement of the 1968 Act as void.
Selling, mortgaging or leasing enemy property
Further, the Act permitted the Custodian to carry out some
measures (including selling, mortgaging or leasing enemy property). The
Ordinance adds to the list of permissible measures: (i) fixing and collecting
rent, license fee, etc. from enemy property, and (ii) evicting unauthorised
occupants and removing unauthorised construction from such properties.
The Public Premises Act, 1971 regulates removal of unauthorised occupants and
construction from public premises. The Ordinance amends this Act to include
enemy properties within the definition of public premises.