Syed Ali Mujtaba
Partition of British India and the creation of Pakistan in 1947 have left behind many legacies. More than 60 years have passed to that event but still there are many issues thats being sorted out and one such is the Enemy Property Act of 1968.
Enemy property is a term coined by the Indian government in the wake of 1965 war with Pakistan to confiscate all those properties that were left behind by the Indian Muslims who migrated to Pakistan in 1947 or thereafter. This was an act to deny the legal heirs to all such properties who due to their own free will chose to live in India.
The government of India promulgated the Enemy Property Act in 1968 and created a separate department called “Custodian” to take control of 2,186 enemy properties, with Uttar Pradesh having the maximum (1,468) followed by West Bengal (351), Delhi (66), Gujarat (63), Bihar (40), Goa (35), Madhya Pradesh (29) and Maharashtra (25).
The most funniest part is the 'Custodian' was located in Bombay and Calcutta, while majority of these properties existed in UP, Bihar and other Muslim minority provinces from where migration to Pakistan took place.
The Enemy Property Act of 1968, in one stroke, made the legal heirs of such properties ‘Prince Paupers.’ They were left with two courses of action either to fight a legal battle or get out of such litigation. This created a way for fresh wave of Muslim migration from India, mostly to Europe and North in search of Roti, Kapara and Makan (bread – cloth and shelter).
One such property belong to my mother's own sister, whose husband stayed back in India while his father who owned the property, and other relations migrated to Pakistan. The property called 'Jahaji Kothi' is a landmark building even today located at Kadam Kuan, Patna. One can give a google search to 'Jahaji Kothi, Patna' to know how important is that building.
I remember as a child, visiting my aunt's house and enjoyed running up and down the staircase there. When that property was taken over by the 'custodian' in 1968, my aunt and her family moved out. The property still stands in a depleted condition, and with no one interested in laying claim to it, its likely to come under the hammer, and with that the sentiments and memories attached with it will also vanish.
The Enemy Property Act of 1968 was blow to some, it was a heaven sent opportunity for many encroacher, mostly Hindus, who swooped on such properties and occupied them. They started behaving like the proprietors paying pittance as rent to the “Custodian” and may never like to part off with the loot.
The Muslim heirs of such properties now had to fight two legal battles, one with the ‘Custodian’ (government) to lay reclaim their property and second against those who encroached and occupied their properties. A long drawn legal battle was fought for almost four decades in the Indian courts and finally the matter reached to the Supreme Court. In this, legal luminaries like Ramjethmalani, PC Chidambaram, Arun Jaitely appeared for the tents, while Salman Khursheed appeared against the tenets on behalf of Raja of Mahmoodabad,having claim to more than 1,000 listed properties.
Finally, the Apex Court in 2005, gave the ruling in favor of the Muslim heirs of the property, granting them the legal rights to their ancestral property. In normal course, the government may have executed the court orders and handed over the properties to the legal heirs and settled the matter once for all.
However, the NDA government under pressure from non Muslim quarters intervened into this matter over ruling the Supreme Court’s order. It wants to bring an ordinance bill into the Parliament to once gain control over such properties and prolong the final settlement of the matter.
The NDA government had earlier tabled such ordinance bill in the lower house of Parliament but had to withdraw the same, in wake of the opposition from its own allies particularly by the RJD and Samajwdi party.
Mulayam Singh said his party will oppose the bill because 'it is part of the Congress' anti-Muslim policy'. 'It is a bill that would make Muslims second-class citizens and create an inferiority complex among them,' the Samajwadi Party leader said. He cited the Supreme Court order making 'clear that the custodian of such properties, the government, should return the properties to the inheritors'. The Rashtriya Janata Dal (RJD) supported the Samajwadi Party.Now the ordinance bill is amended and cleared by the Cabinet. It is ready to be reintroduced in the winter session of the Parliament but is unlikely to sail through due to its controversial nature.
Bharatiya Janata Party (BJP) and the Shiv Sena are opposed any change in the bill. Leader of Opposition Sushma Swaraj has threatened to block the bill if the government brought in amendments.It is likely that the ordinance bill will be referred to a Parliamentary standing committee of for a review.
This means that the legal heirs of the Enemy property have to wait for some time more to get the custody of their ancestral property. Will they eventually get it or not get it is a matter of guess.
As we see this issue being shifted from the courts to the Parliament, it has opened up few fundamental questions that seek answers. The first pertains to India Pakistan relationship and the second relationship between the government and the Indian Muslims. Let’s take up first question; are India and Pakistan still enemies? This has to be answered keeping in mind the sprit of Simla agreement 1972, Samjhauta Express was started in 1976 and Vajpaye visit to Lahore in 1998, rushing aids to flood victims to Pakistan in 2010. If the answer is candid NO, then the nomenclature “Enemy” to the property ordinance bill 2010, is a misnomer.
If the government is really committed to conduct the future dialogue with Pakistan in a friendly and positive framework, then it should consider dropping the tag “Enemy” with the property ordinance bill 2010. This would certainly be a confidence building measure in the future India- Pakistan dialogue.
The word is also offensive to hundreds of Indian Muslims beneficiaries who are being treated as offspring of “Enemy.” The definition of enemy excludes citizens of India and in this context the heir and successor cannot be termed as enemy and by virtue of this fact, the property of an Indian citizen can not be termed as enemy property.
In this context, it is interesting to note that while the enemy property belonging to Mohmmad Ali Jinnah in Mumbai is decided in favors of his legal heir Nusli Wadia, the same norm is not applied to the legal heirs of others of all such ancestral properties. Does this mean, there is one set of norms for the descendants of the founder of Pakistan and else for other legal heirs of such property? If we stretch this argument further, does this mean there is a separate yardstick used for the Parsis of India and the Indian Muslims?
The ordinance bill 2010 gives a new meaning to the Enemy Property Act 1968. In one stroke, the entire legal battle that has been fought over this issue for decades has been brought to naught. It is a clear cut example of the executive action encroaching on the legislative power. The executive has annulled all the court orders and by doing so has assaulted the Indian judiciary, its surprising there is no murmur over this issue anywhere in the country.
The ordinance bill 2010 has a far reaching consequence on the Indian Muslims. It disallows legitimate legal process for rightful Indian heirs including the right to succession, adoption, hiba and other matters related to Muslim Personal Law enshrined in Indian Constitution.
This ordinance also creates a precedent that because of inexplicable reasons the rights of individuals and especially those of the minority community could be superseded without permitting them to have recourse of law. It denies legal access to several poor and hapless Muslims who cannot afford to engage a lawyer and who cannot produce the citizen document within 120 days The gist of the matter is that the enemy property ordinance bill is brought in the Parliament due to pressure from the Hindu tents and encroacher that have lost their case in the Supreme Court. It reminds of Shah Bano case with a different plot.
Since the ordinance bill 2010 do not have political ramification on the larger Muslim vote bank, the government has embarked on the policy to rob the ‘Peter to pay the Paul.’
However, such approach reflects on the character of the governance, thats being tout to be based on the principles of democracy, socialism and secularism, the three key words enshrined at the preamble of the Indian constitution.
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Syed Ali Mujtaba is a journalist based in Chennai. He can be contacted at syedalimujtaba@yahoo.com
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