SC asks panel to examine afresh "enemy properties" claim

A three-judge bench of justices Altamas Kabir, Cyriac Joseph and S S Nijjar passed the order while disposing off a contempt petition alleging that the custodian was "conniving" with the occupants and refusing to restore their properties despite an earlier ruling of the apex court.

It was alleged by the petitioners that even the Wadhawa panel failed to fairly determine the occupancy rights of the claimants despite the fact that several of the occupants had filed sworn affidavits that they they were in possession of the property post 1965, 1979 and even 1989.

Under the Enemy Property Act of 1968, the government- appoined custodian was empowered to take over and manage the properties of those who fled the country to Pakistan after the partition and the cut-off date for such property to be seized was 1965.

However, the apex court asked Justice (retd) Wadhawa to examine the claim of the petitioners and similarly placed persons and said it would examine later the report of the panel.

On October 21, 2005, the apex court had quashed the government's decision to take over thousands of acres of property belonging to those who fled to Pakistan.

After the apex court's decision, the government had come out with an ordinance in July, 2010, and also introduced a Bill in Parliament for reversing the judgement and vesting the properties under the control of the custodian.

The apex court had directed restoration of the properties to one of the claimants Mohammed Amir Mohammed Khan, heir of the Raja of Mahabubad who had left the country. The order had a cascading effect on 2,000-odd other propertes spread across the country.

The apex court had ruled that Mohammed Amir Mohammed Khan could not be termed an ‘enemy’ for the purposes of the 1968 Act, or otherwise, having been an Indian citizen all his life.

Enemy properties are those left behind by people who went to Pakistan after the Partition. Currently, there are over 2000'enemy properties' across the country.

Among the enemy properties, 1468 are in Uttar Pradesh, 351 in West Bengal, 66 in Delhi, 63 in Gujarat, 40 in Bihar, 35 in Goa, 25 Maharashtra, 24 in Kerala, 21 in Andhra Pradesh and 93 in other states.

The apex court took the view that it has the power to direct divesting of the property held by the custodian although the 1968 Act conferred only the central government with such a power.

In July 2010, the President had promulgated an ordinance, which formed the basis of the Bill introduced in Parliament, and sought to restore the position that existed prior to the Supreme Court judgment.

The ordinance reversed any divesting of enemy property by any means and sought to take away the power of any court to order any divesting of enemy property from the custodian.

The proposed Bill is aimed at preventing Indian family members of those who migrated to Pakistan at the time of the Partition from going to court to regain possession of the property of their forefathers, seized as enemy property, and vesting it in a custodian.

After the Partition of India, Raja of Mehmoodabad went to Pakistan in 1957 but his wife Kaneez Abidi and son Mohammad Amir Mohammad Khan stayed back in India.

The government declared the properties of the migrated people vacant in 1962. When Raja Mehmoodabad died in 1973, his son Mohammad Amir Mohammad Khan claimed rights to the property and later in 1985 knocked the door of apex court for justice. After the court’s interference in 2005, the occupants were asked to leave the properties.

The apex court had ordered setting up of Wadhawa Commission for determining the possessionary rights of original claimants as at present most of them are under the possession of government officers, public sector undertakings besides private individuals.