The Enemy Property Act, 1968 was enacted to provide for the continued vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 and the Defence of India Rules, 1971.
Enemy Property Rules, 2015 have been framed by the Central Government under Section 23 of the Enemy Property Act, 1968, which provide for the procedure for identification of enemy property, and for declaration and vesting of enemy property. The Rules further provide, among other things, for preservation, management and control of immovable property, and for divestment of enemy property vested in the custodian.
The Act provides for a statutory authority, namely, the Custodian of Enemy Property of India ( hereinafter referred to in short as “CEPI”), under Section 3 of the Act, which functions under the aegis of the Ministry of Home Affairs, Government of India. Along with the CEPI, the Central Government has also appointed various Deputy Custodians and Assistant Custodians.
What is the procedure for vesting of property with the CEPI?
The first step is Identification of the Enemy Property. In this regard, the power vests with the CEPI to seek the assistance of the District Authority, i.e., the District Magistrate, for identifying immovable property in a tehsil or a block which belongs to or is held in the name of an enemy.
The District Magistrate is duty-bound under Rule 3(2) of the 2015 Rules to forward to the CEPI the details of any immovable property identified as Enemy Property. He may do so upon a complaint from any person or from any source, or he may do so suo motu. In case of a complaint, the copy of the complaint must be forwarded along with details under Rule 3(2) of the 2015 Rules. Upon receipt of the report of the District Magistrate, the CEPI may direct for a physical verification and inspection of the enemy property by the concerned District Magistrate, and accordingly a survey may be conducted by the District Magistrate to ascertain and verify the location or area and other details of the property.
Rule 3(6) of the 2015 Rules clearly provides that a detailed report shall be prepared for all cases identified as enemy property and the same must be submitted by the District Authority to the CEPI.
The Custodian shall further maintain a register containing the properties identified as enemy properties and place the same in the public domain and also exhibit the same on the website of the office of the Custodian. The link of the website of the CEPI is https://enemyproperty.mha.gov.in/epweb/index
On receipt of the report under Rule 3(6) of the 2015 Rules, the CEPI shall examine the report, or cause further investigation, if necessary, and after being satisfied that prima facie, the property is an enemy property, he may issue a Notice under Rule 4(1A) of the 2015 Rules read with 2018 Amendment Rules, to be served upon the person claiming title of such property or any other person whom he considers interested in the said property. Upon due service, CEPI shall call upon such person to show cause as to why the property should not be declared enemy property. Such person may file a reply against the show cause notice, and he will also be given sufficient opportunity for hearing. If a person is interested in the proceedings relating to such property, but he has not been called upon to show cause under Rule 4(1C) of the 2015 Rules, he may prefer an application before the CEPI under Rule 4(1D) of the 2015 Rules. Such a person must be heard on his application, and upon due hearing, the application may be decided in accordance with law.
The CEPI is empowered to pass an order under Rule 4(1F) of the 2015 Rules and may issue a certificate declaring the property as enemy property and vesting of such property in the Custodian, and further pass an authorization order under Rule 4(1G) of the 2015 Rules, directing the District Magistrate to take over the said property on his behalf.
The District Magistrate shall take over the management of the Enemy Property and a notice shall be affixed over the property declaring the said property as vested in the CEPI.
What is the procedure of management of Vested Property?
It is not uncommon that if a property is situated in India, and it is under occupation. Therefore, the Rules stipulate a procedure for Leave and License Agreement of the Occupants with the CEPI. The Leave and License Agreement provides for a license to occupy for a period of 11 months upon terms and conditions as stipulated in Form 5 of the 2015 Rules.
If the occupant does not enter into an agreement with the CEPI, then the CEPI may proceed to initiate eviction proceedings and take control of the property.
If the occupant with whom an agreement has been entered into defaults in payment of rent, or refuses to pay rent, then the District Magistrate may take appropriate steps in consultation with the CEPI to terminate the lease or evict the occupant after due notice is issued.
What is the remedy available against the order of vesting of property in CEPI?
Section 18 of the Enemy Property Act provides for a remedy to the aggrieved person for filing a representation to the Central Government, and the same may be filed within a period of 30 days from the date of receipt of such order.
Upon receipt of such a representation, and after giving a reasonable opportunity of being heard, the Central Government may direct the CEPI by a general or special order to transfer the property in dispute to such person from whom it was acquired and vested in CEPI.
If the representation under Section 18 of the Act is decided against the party, he may prefer an appeal before the Hon’ble Allahabad High Court under Section 18C of the Enemy Property Act. Section 18C of the Act is as follows:
18C. Appeal to High Court.—Any person aggrieved by an order of the Central Government under section 18 of this Act, may, within a period of sixty days from the date of communication or receipt of the order, file an appeal to the High Court on any question of fact or law arising out of such orders, and upon such appeal the High Court may, after hearing the parties, pass such orders thereon as it thinks proper:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days.
Explanation.—In this section, “High Court” means the High Court of a State or Union territory in which the property referred to in section 18 is situated.]
You may refer to the article on Appeal to High Court under the Enemy Property Act by clicking the following link – https://nikhilkumaradvocate.in/reply-to-show-cause-notices-and-appeal-to-high-court-under-enemy-property-act-1968/
Can one invoke the Writ Jurisdiction of the Allahabad High Court against the proceeding under Enemy Property Act?
If the entire proceeding under the Enemy Property Rules 2015 are initiated illegally without any substance or material on record, or the entire proceeding are a misuse of process of law or colourable exercise of power, or in case the order has been passed in violation of principles of natural justice, then in such a case, writ jurisdiction may be invoked challenging the entire proceeding under the Enemy Property Act read with Enemy Property Rules. However, an alternative remedy is available, and writ jurisdiction must only be invoked in exceptionally rare cases.
The Hon’ble Allahabad High Court has entertained writ petitions in exceptional circumstances where, for example, the entire proceeding and the Notice were perverse as much as they contradicted the survey report under Rule 3(5) of the 2015 Rules.