When law turns enemyPosted: November 11, 2010
Dr Anees-ul-Haq, a dentist in Kucha Rehman of Old Delhi’s Chandni Chowk, was in for a shock when he received a notice from the deputy commissioner informing him that the properties he had rented out were “enemy properties”. The dentist was zapped. He had title deeds that clearly showed that his aunt, Jahangira Begum, had gifted these properties to him, his brother and mother. What’s more, the gift was duly registered with the sub-registrar’s office.
That was in 1985. The documents could not, however, save him from the lengthy trial that followed. It took him 19 years and a persistent judicial follow-up right up to the supreme court to prove that the properties did not belong to somebody who had crossed over to Pakistan between the wars of 1965 and 1971. After all, his aunt had died in Delhi on December 7, 1955 and had never been to Pakistan.
Dr Haq has, however, been just one of the victims of the Enemy Property Act (EPA), 1968, which dragged him through the courts.
Over the years, he became an expert and stocked two almirahs full of documents related to the legislation, according to which the custody and management of any property belonging to the enemy (as defined in the Defence of India Act, 1962) is vested with the Custodian of Enemy Properties (CEP).
The deputy commissioner told Haq that he was just executing the orders of the CEP and that he should go to the custodian’s Mumbai office if he wanted any relief in the case. “At that time, the CEP was under the ministry of commerce, but now it is under the ministry of home affairs (MHA). But the custodian’s office has always been in Mumbai. For any appeal, one has to go there only,” says Haq.
For years, Haq spent a majority of his income on lawyers, to say nothing of his time and energy. It was only in 2004 that the supreme court ruled in Haq’s favour and asked him to get the properties divested from the custodian.
Barely ten minutes from Haq’s clinic is Muslim Musafirkhana in Ballimaran. Also known as Kibriya Manzil, the popular guest house is a landmark here, as it is believed that Pandit Jawaharlal Nehru, Acharya Kriplani and Maulana Abul Kalam Azad used to meet in this complex to devise strategies during the freedom struggle. It is named after Hakim Ghulam Kibriya, a freedom fighter who owned this property and was a regular in these meetings.
In 1970, Kibriya’s son sold the property spread over 900 yards to Shah Sufi Abdul Qadir for Rs 1.20 lakh. Qadir, in turn, gave the property to the Waqf Board and converted it into a guest house. As per the deal, some part of the property would remain commercial and would be rented out. The rent given to the Waqf would be used for the upkeep of the guest house.
In 1993, Qadir’s son, Maulana Farooq Wasifi, the current trustee of the guest house, got a notice that the guest house was an enemy property. “It is a Waqf property since 1970. That is a fact and nobody on earth can question it,” says the 75-year-old, pointing to a dining table where, according to Wasifi, Nehru used to dine, “This is a national treasure.”
Besides the fact that both Dr Haq and Wasifi are residents of the walled city and that they had notices slapped on them under the EPA, the two share another similarity. Both had filed cases in the court against their tenants for non-payment of rent.
The tenants, according to both, complained to the CEP that the properties were enemy properties. Acting on these complaints, the
CEP issued notices which worked in the favour of the tenants.
“It has become a common practice for tenants these days. Just lodge a complaint with the CEP. Then the landlord spends rest of his life in court,” says M Salim, a supreme court lawyer who has handled several enemy property cases.
Salim believes that the biggest reason for the harassment faced by the landlords in enemy property cases is the absence of any checks and balances on the part of the custodian. “They just slap a notice on the landlord without any enquiry about the complainant and the mentioned property. Once the notice is issued, the onus is on the landlord to prove that his is not an enemy property,” says Salim.
Dr Haq says representatives of the custodian did not even bother to appear before the court in his case.
The second reason why the two words ‘enemy property’ are enough to terrorise the landlords is that the CEP has not set any deadline for the survey of these properties.
The guidelines regarding preservation and management of enemy properties in India, vested with the CEP, issued in the year 2000, talk about detection of all undetected enemy properties in the country. However, the guidelines do not prescribe any deadline for the same.
As per the data obtained from the CEP, there are 3,329 enemy properties in the country worth thousand of crores.
In August, the home ministry directed the Faridabad-based National Institute of Financial Management to evaluate the prices of these properties, of which Uttar Pradesh has the highest number (1,526), followed by West Bengal (386), Goa (122), Delhi (67) and Gujarat (53).
At the time of writing, there are 1,238 cases in which the CEP is investigating if the property is enemy property.
That means, even 39 years after the war with Pakistan, the CEP is adding to its list of enemy properties acting on complaints, as those received in the cases of Haq and Wasifi. In the process, it is making tenants the de facto owners of the properties.
In many cases, by the time the CEP issues notice or summons the current owner, the property has changed many hands and it is difficult to trace the owner whose name is mentioned in the notice. “If you have bought the property in 2010, how are you supposed to produce the details of that person, who, as per the notice, migrated to Pakistan during partition?” asks Zafarul Haq Islam, editor, Milli Gazette and former president, All India Muslim Majlis-e-Mushawarat.
Islam blames lack of uniform procedures for the management of enemy properties across India for the mess – something acknowledged by the CEP in its 2000 guidelines.
The CEP has no set format for the notices which are issued in cases of suspected enemy properties. In many cases, the notices issued do not mention the EPA clause under which the action is initiated. The result is that the district officials at various levels, managing the properties on behalf of the CEP, follow different practices. There have been cases where policemen hand over the notice.
“I cannot forget the night of 14th July 1998 when a constable came to my house to give the notice. For next few months, I was convincing people that all was fine at my place and we were not involved in any criminal activity,” recalls Mohammad Shakir,
“Nobody likes a policeman to visit his home.”
The notice said that the property belonged to one Asifa Khatoon who was a Pakistani national. Shakir obtained documents which proved that Asifa’s name was there in the 1980 voters’ list and that she held an Indian ration card in 1983. There was a Delhi high court order which had declared Asifa the sole owner of that property.
Zameer Jumlala, president of the Indian National League, Delhi, says that everything about the functioning of the CEP is secretive.
Even after five years of the enactment of the right to information (RTI) act, the CEP does not have a website. One has to phone or personally go to the revenue offices of various states to find out details of the enemy properties.
There is no mention of CEP on the website of the MHA website.
Under section 4 of the RTI act, every basic detail about the public authority including its functions, details of employees and annualreports should be available on a public forum.
Jumlana had filed an RTI application in January to seek the updated list of enemy properties. Responding to his application, the CEP asked him why did he want that list. “No officer can ask the applicant to intimate the cause for seeking information. Even the supreme court judges did not ask the cause from the RTI applicant seeking details of their assets,” he says.
Jumlana has been writing to the authorities about the lacunae in the enemy property act. Acting on his application, the national minorities commission (NMC) has demanded, twice, the repeal of the act. “The commission, therefore, recommended in its annual report 1998-99 that the EPA,1968, is wholly outdated and deserved to be repealed.”
In its action taken report (ATR) submited to the NMC, the government said that the repeal of the EPA, 1968 was not possible till the government of India and the governments of Pakistan and Bangladesh came to an agreement to return the properties of the migrants of each country bilaterally.
About a deadline to detect such properties, it said, “Detection of these properties is a continuous process and it would be contrary to the object of the act if identification and takeover process is stopped from a fixed date.
According to the ATR, the government
cannot ask the complainant to submit any affidavit as the complainant may not like to be exposed for the fear of his life from the occupants of the valuable property.
On November 23, 1999, Jumlana sent a fax message to Manmohan Singh, who was then leader of opposition in the Rajya Sabha, regarding the illegal notices to the walled city residents. The same day, Singh forwarded the letter to chief minister Sheila Dikshit.
On October 20, the cabinet approved amendment to EPA.
According to the Enemy Property (Amendment and Validation) Second Bill, 2010, enemy properties divested from the Custodian prior to 2nd July, 2010 or where the property had been returned to the owner or his lawful heir by an order of the court; and if the lawful heir is a citizen of India by birth, will continue to remain with such person.
Also, no court will have the power to order divestment from the custodian or direct the central government to divest enemy property.
“Just imagine, all this at a time when we play cricket with the so-called enemy, we have their actors and singers in our movies and both the countries have exchange programmes under which the students are given a chance to understand the culture of the other country,” sighs Dr Haq.
This appeared in Governance Now, November 1- 15 issue