It is said that Karachi, Pakistan gained prominence in the eyes of the British Monarchy during the early 1800s, as the English colonisers began to develop the city as a trade hub, resulting in the Indian Goans migrating to this city.  These Indian Goans made several voyages to Africa and other Asian continent countries in search of better monetary prospects and while doing so they left behind movable and immovable properties in India to build a new life in Pakistan. 

It is a part of the world’s history that India was facing the army of Pakistan on its western borders in the year 1965. The leadership of Pakistan had assumed India to have weakened after the Sino-India War of 1962 resulting in Pakistan attempting to invade India. The war ended in a stalemate even though India had successfully repelled the army of Pakistan. A truce was negotiated between the two warring nations by the United Nations (UN) and the two countries negotiated the terms of the cease-fire in the city of Tashkent, Soviet Union (the city is currently part of Uzbekistan).

Against this backdrop, some Indian citizens having movable and immovable properties in India chose to leave for Pakistan, thereby resulting in the property being taken over by the Indian government. A custodian was appointed under the Evacuee Property Act, 1950 who took over those properties. Such properties came to be known as the evacuee properties and were administered under the said Act.

After Goa’s liberation from the Portuguese, the properties belonging to Goans who left the state were acknowledged under the Goa, Daman & Diu Administration of Evacuee Property Act, 1964. However, during the 1965 war, the Indians who had acquired the nationality of Pakistan and continued to own property in India were in for a shock. All the properties in India belonging to erstwhile Indian nationals were considered as ‘enemy property’. A similar situation took place during the Indo – China War in the year 1962. Under the Defence of India Rules, 1962, properties belonging to Chinese nationals were declared as enemy property and they continue to be identified as enemy property even today.

The Enemy Property Act, 1968

This Act was enacted to provide for “the continued vesting of enemy property vested in the Custodian of the Enemy Property for India under the Defence of India Rules, 1962 and for the matters connected therewith”. The Act inter alia defined enemy property as “any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm”. All the rights, titles, and interests in, or any benefit arising out of such property would be covered within the ambit of enemy property which may include land, jewellery, bank accounts, commercial properties, investments, etc. The Act provides for the appointment of the Custodian of Enemy Property for India and the Deputy Custodian, etc. and specifies their powers and roles. The Custodian may after making such inquiry as it deems necessary, by order, declare that the property of the enemy or the enemy subject or the enemy firm described in the order vests in it under this Act and accordingly issue a certificate to this effect.

The enemy properties vested in the Custodian under this Act are exempted from attachments, seizures, or sales in execution of the decree of a Civil Court or orders of any other Authority. Further, the Central Government may by general or special order transfer the property back to the person from whom such property was acquired and vested. Furthermore, the Act provides that any person aggrieved by an order of the Central Government, may within the period specified under the Act file an appeal to the High Court on any question of fact or law arising from such orders.

The Central Government has formulated the Enemy Property Rules, 2015, the Transfer of Property (Vested as Enemy Property in the Custodian) Order, 2018, Guidelines for the disposal of Enemy Property Order, 2018, the Procedure and Mechanism for Sale of Enemy Share Order, 2019 and the Procedure and Mechanism for disposal of Immovable Properties Order, 2020 in the exercise of its powers conferred under the Enemy Property Act, 1968.

Notable Case Studies

1. The onus of proof lies on the Authority to prove that a person has migrated to an enemy state and consequently the property held by him/ her was enemy property – Case references: (i) Ghasitu (through his legal representatives) v Assistant Custodian Enemy Property and (ii) Tanvir Eqbal & Ors v Union of India & Ors.
2. If the property is recorded in the revenue records in the name of ancestors who are alleged to have migrated to an enemy state, the same would be treated as enemy property – Case reference: Buniyad Hasan v Zila Adhikari Barabunki.
3. Public purpose is the pre-condition for the deprivation of a person from his property under Article 300 A and the right to claim compensation is also inbuilt into that article, and when the person is deprived of his property the state must justify both the grounds which may depend on the scheme of the statute, legislature and other relevant factors – Case reference: K.T. Plantation Pvt. Ltd & Anr v The State of Karnataka.

Current Scenario

A film named ‘Enemy’ released in the year 2015 was based on the consequences of the Act, where the protagonist comes home after serving in the Indian army during the war of 1965 only to find out that properties belonging to his family would be taken away from them because they were registered in the name of a relative who had migrated to Pakistan earlier.

Apart from the above movie reference, the general statistics/ data available in the public domain show that there are about 16,000 enemy properties across India, with a maximum number of such properties in the state of Uttar Pradesh. In Goa itself, the government has identified 263 properties, which are roughly estimated to be worth INR 100 crores.

The current situation is such that the Act does not allow the heirs or relatives of enemy state nationals living in India to inherit properties, even after they have passed away. Further, any person who bonafidely purchased a property when it was sold can now be ousted from his/ her vested interest in the subject property. These lacunas in the Act have left the judicial courts burdened for the want of judicial intervention.