The Enemy Property Act was enacted for the administration of enemy property seized during the wars under the Defense of India Rules 1962 and Defense of India Rules 1971, which were temporary in nature and ceased to operate after the wars ended.
Therefore, the object of the act is to provide for the continued vesting of enemy property vested in the Custodian of Enemy Property of India under such temporary rules.
The Custodian of Enemy Property in India is a statutory authority under the provisions of the Enemy Property Act, 1968. The Act was amended by Enemy Property (Amendment) Act 1977 and then again in 2017 by Enemy Property (Amendment and Validation) Act 2017. The latter amendment has added and altered many provisions in the Act which has almost led to the change in the nature and the object of the act for which it was originally intended.
Under the Amended Act, the definition of Enemy or Enemy Subject or Enemy Firm means a person or country who or which was an enemy, an enemy subject including his legal heir and successor whether or not a citizen of India or the citizen of a country which is not an enemy or the enemy, enemy subject or his legal heir and successor who has changed his nationality or an enemy firm, including its succeeding firm whether or not partners or members of such succeeding firm are a citizen of India or the citizen of a country which is not an enemy or such firm which has changed its nationality, as the case may be, under the Defence of India Act, 1962, and the Defence of India Rules, 1962 or the Defence of India Act, 1971 and the Defence of India Rules, 1971, but does not include a citizen of India other than those citizens of India, being the legal heir and successor of the “enemy” or “enemy subject” or “enemy firm”.
The Amended Act contains Section 22A which reads as under:
“22A. Validation.—Notwithstanding anything contained in any judgment, decree, or order of any court, tribunal, or other authority,—
(a) the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Act, 2017, shall have and shall always be deemed to have effect for all purposes as if the provisions of this Act, as amended by the said Act, had been in force at all material times;
(b) any enemy property divested from the Custodian to any person under the provisions of this Act, as it stood immediately before the commencement of the Enemy Property (Amendment and Validation) Act, 2017, shall stand transferred to and vest or continue to vest, free from all encumbrances, in the Custodian in the same manner as it was vested in the Custodian before such divesting of enemy property under the provisions of this Act, as if the provisions of this Act, as amended by the aforesaid Act, were in force at all material times;
(c) no suit or other proceedings shall, without prejudice to the generality of the foregoing provisions, be maintained or continued in any court or tribunal, or authority for the enforcement of any decree or order, or direction given by such court or tribunal or authority directing divestment of enemy property from the Custodian vested in him under section 5 of this Act, as it stood before the commencement of the Enemy Property (Amendment and Validation) Act, 2017, and such enemy property shall continue to vest in the Custodian under section 5 of this Act, as amended by the aforesaid Act, as the said section, as amended by the aforesaid Act was in force at all material times;
(d) any transfer of any enemy property, vested in the Custodian, by virtue of any order of attachment, seizure or sale in execution of decree of a civil court or orders of any tribunal or other authority in respect of enemy property vested in the Custodian which is contrary to the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Act, 2017, shall be deemed to be null and void and notwithstanding such transfer, continue to vest in the Custodian under this Act.”
Hence, the provisions of the Act shall be considered to be in force at all material times before the Amendment in 2017 and therefore, the application of the provisions shall take place retrospectively.
SHOW CAUSE NOTICE
Section 8 of the Enemy Property Act 1968 provides the power of the custodian to take such measures as he considers necessary or expedient for preserving such property till it is disposed of following the provisions of the Act.
To give effect to this power and other powers under the Act, the Central Government, in the exercise of the powers conferred under Section 23 of the Enemy Property Act 1968 made Enemy Property Rules 2015.
Under the said rules, Rule 3(6) provided that a Notice to show cause shall be served on the person claiming the title for such property. Rule 3(7) also provided that the notice shall mention the grounds on which the property is sought to be declared as enemy property and shall specify the provisions of the Act under which such property is alleged to be an enemy property. However, the 2015 rules were amended by the Central Government through Enemy Property (Amendment) Rules 2018 and Rule 3(7) was omitted, and Rule 4(1A) was inserted which replicated Rule 3(6) but dropped Rule 3(7) from the Amended Rules.
Therefore, a proper reply to the Show Cause Notice shall be prepared with detailed information regarding the name or the owner of the property, dates, and other details of subsequent transfers. Moreover, copies of relevant sale deed, gift deed, will, or other such legal documents relevant to the transfers shall be attached to the reply. Any documentary evidence in support of your rights and any other information regarding the genealogy or other information shall also be attached to the reply.
Under Rule 4(1F) of the Enemy Property Rules 2015, as amended by Enemy Property (Amendment) Rules 2018, the Custodian shall pass an order declaring that such property vests in him under Section 5A of the Enemy Property Act. To this effect, the Custodian shall issue a certificate in Form 2 which shall be the facts stated therein.
Such an order of the Custodian can be challenged under Section 18 of the Enemy Property Act 1968 before the Central Government by filing a representation and the Central Government may provide relief by declaring that such property was not enemy property and direct the Custodian to transfer the said property back.
Section 18C of the Enemy Property Act provides for an APPEAL to the HIGH COURT against the order of the Central Government under Section 18 of the Act. The appeal shall delineate all the discrepancies in the orders and raise questions of facts as well as law.
Hence, judicial recourse on enemy property disputes is only available before High Courts and the Supreme Court, limiting the options available to people whose property rights have been affected.