Saturday, 11 June 2022

Slow progress in regard to Enemy Property

Evacuee and or Enemy property is that left behind by nationals/ residents of Pakistan or China (or any other country who performed external belligerence against India) and who have moved out of India.  During the two wars with Pakistan in 1965 and 1971, the Indian government took over many properties owned by those who had opted for Pakistani citizenship, to ensure that profits accruing from that property or business were not channeled to Pakistan to help it fight the war.

In Delhi about 3,500 built-up evacuee properties were transferred by the rehabilitation ministry to the municipal corporation of Delhi for slum clearance, during the period of 1962 to 1974. Another 10,000 bighas of agricultural land was also transferred by the ministry of rehabilitation to the DDA for land and building development.

Pakistan sold off all such property in 1975, Due, inter-alia, to various Indian court decisions the Act in this regard was last revised in 2017. Read more here. The guidelines for the disposal of properties were amended in 2019, to facilitate ‘usages of enemy property by the state government exclusively for public use’. Various committees have also been set up and surveys undertaken.

Reasons for the amended Bill:

  • The term “Enemy” was widened to include legal heirs irrespective of the citizenship.
  • The sale of enemy property cannot be performed by the enemy/ heirs, the Law of Succession will not be applicable.
  • The Government can exclusively use the enemy property for public use.
  •  Civil Courts cannot entertain matters related to enemy property, only High Courts and Supreme Court will be having jurisdiction.
  • The Custodian becomes the owner of enemy property retrospectively from 1968 and will have all rights to evict, get encroachments removed and sell enemy property.

An issue raised against the amendment is that it applies retrospectively and impacts the rights of an earlier purchaser of such property

 Extent of Properties

 An estimated 7 million left for Pakistan after the partition/ communal clashes, and 5 million migrated from West Pakistan to India. Of the total then estimated 9,406 enemy properties in India, 9,280 were left behind by Pakistani nationals and 126 properties by Chinese nationals. Also shares worth about 3000 crores (Feb 2019). Amongst the former, 4,991 are located in Uttar Pradesh, West Bengal has 2,735 and Delhi 487. Properties left by Chinese nationals is in Meghalaya (57), West Bengal has 29 such properties and Assam seven. These properties were estimated to be valued at over rupees one lakh crores,

In Nov 21, it was reported that there are 12610 number of Enemy Properties (belonging to Pakistan Nationals and Chinese Nationals), which have been declared and are vested in the Custodian of Enemy Property for India.

 Some recent developments

Hyderabad Oct 2021 : The single largest enemy property in India is on the outskirts of Hyderabad spread over more than 650 acres in Shamshabad Mandal Ranga Reddy district.. CEPI has been pursuing the case with the state government due to the threat of encroachments looming large as land sharks set eyes on it. The encroaches apparently include some prominent and politically well-connected individuals and cover over 540 acres

 Goa Oct 2021 - The state identified 3.5,00,00 square metres of land as enemy property. Over 40 apartments and 30 shops across seven buildings 19 residential bungalows and several commercial houses had come up in part of this enemy property in one area alone.

 Kanpur May 2022 : -  Notices have served on 30 people of the city following a campaign to remove people living in enemy properties for years.

Ghonda June 2022: The district administration has freed a 56-bigha enemy property from encroachers in Akauni village, Gonda, UP when a team along with heavy police force, operated a tractor over the sugarcane crop which was planted on the said piece of land, and destroyed it, a case was registered against four encroachers.

This issue recently came into limelight in regard to the riots that too place in Kanpur early this month. It was found that stone pelting etc. was done from several storey high buildings that were built on enemy property

Previous : Evacuee and/or Enemy property

Evacuee and/or Enemy property

By an Act of 1950 any person who, for fear of disturbances, had left for a place outside India, or become a resident of Pakistan was an “evacuee". And “evacuee property" was of an evacuee (held in any capacity), as also any property obtained from an evacuee. Such evacuee property was deemed to have been vested in the Custodian for the State.

 The evacuee property legislation was actually a predecessor of the current Enemy Property Act. The office of the Custodian of Evacuee Property appropriated buildings and land worth crores of rupees while also using the properties to provide shelter to those who moved to India after partition, as the evacuee property law allowed a migrant’s family to reclaim, in the country they settled in, the value of their forsaken property. 

 The Enemy Property Act, enacted in 1968, provided for the continuous vesting of enemy property in the Custodian of Enemy Property for India (CEPI). The central government, through the Custodian, is in possession of enemy properties spread across many states in the country.  With the India-Pakistan wars of 1965 and 1971, people migrated from India to Pakistan. The Government of India took over the properties and companies of those who took Pakistani nationality. These “enemy properties” were vested by the central government in the Custodian of Enemy Property for India (CEPI). The same was done for property left behind by those who went to China after the 1962 Sino-Indian war.

 The Tashkent Declaration of January 10, 1966 included a clause that said India and Pakistan would discuss the return of the property and assets taken over by either side in connection with the conflict. However, the Government of Pakistan disposed of all such properties in their country in the year 1971 itself.

These properties were initially managed by the home ministry but shifted to state governments in 1989. Subsequently, evacuee land and properties were transferred to them for management and disposal.

Some Courts decisions and subsequent actions 

Courts initially supported CEPI orders but later verdicts hampered their powers.

The estate of the erstwhile Raja of Mahmudabad, declared enemy property, was claimed by his son and after a long legal battle, an SC bench on October 21, 2005, ruled in favour of the son. If the “Enemy” dies, then the property will be transferred through succession and it will no longer be enemy property, if the successor is a citizen of India. Also the enemy can sell the property. In another case, the Bombay High Court held that the power of the CEPI does not include the eviction of an occupant in the unauthorized occupation, without following the proper procedure such as filing of the suit or filing a suit for recovery."

On July 2, 2010, the then UPA government promulgated an Ordinance that restrained courts from ordering the government to divest enemy properties from the Custodian. The 2005 SC order was thus rendered ineffective, and the Custodian again took over the Raja’s properties. The Bill was referred to the Standing Committee and thereafter lapsed

On January 7, 2016, the President of India promulgated The Enemy Property (Amendment and Validation) Ordinance, 2016, which was replaced by the Bill that became law in 2017. The Act was amended in 2017 to ensure that the successors of those who migrated to Pakistan and China, will have no claim over the properties left behind in India.

In 2017, Parliament passed The Enemy Property (Amendment and Validation) Bill, 2016, which expanded the definition of the term “enemy subject”, and “enemy firm” to include the legal heir and successor of an enemy, whether a citizen of India or a citizen of a country which is not an enemy.

The amended law provided that enemy property shall continue to vest in the Custodian even if the enemy or enemy subject or enemy firm ceases to be an enemy due to death, extinction, winding up of business or change of nationality, or that the legal heir or successor is a citizen of India or a citizen of a country which is not an enemy.

Next  : Slow progress in regard to Enemy Property

Previous : Recent Interesting Decisions on Waqf Property

Sunday, 22 May 2022

Recent Interesting Decisions on Waqf Property

While the relevance of the Waqf Act might be questionable, there is also the the problem of illegal land encroachment. Establishments such as the Central Waqf Board could be illegally gaining control of land by terming them as waqf properties. These Boards have time and again been accused of acquiring lands and public places by fraudulent means. 

On the other side, are the majority of Mutawalis / custodians and religious leaders working hand in glove with Muslim politicians in grabbing Waqf land? In Telangana reportedly more than 2/3rd of Waqf property has been encroached. 

The (M.P., Karnataka) High Courts have held that when an appeal is made against any decision to the Tribunal and the decision of the Tribunal is final then the jurisdiction of the Civil Court is dismissed.

In February 2022 the Supreme Court observed that the Waqf Board can determine the nature of the property as Waqf only after conducting an enquiry as prescribed under section 40 of the Waqf Act. 

Also in Feb 2022 - SC upheld Telangana govt’s right over 1654 acre Hyderabad land claimed by Wakf Board. The Telangana government had leased out the land for setting up a university etc., township and other institutions of repute. The state government had appealed to the Supreme Court after losing out before the Andhra Pradesh HC in April 2012. The state had claimed that as a result of the HC ruling, it would be required to pay a huge sum running into thousands of crores of rupees as compensation to the Telangana Waqf Board. 

In a judgement related to Rajasthan, in April 2022, the Supreme Court held that in the absence of proof of dedication or "grant" (the disputed area) cannot be recognised as a religious place for offering namaz. 

Next : Evacuee and/or Enemy property

Previous :  On Waqf Property

Saturday, 21 May 2022

On Waqf Property

A waqf is an inalienable charitable endowment under Islamic law. It typically involves donating a building, plot of land or other assets for Muslim religious or charitable purposes with no intention of reclaiming the assets. Any person believing in Islam can dedicate or give his or her property in the name of God for religious and charitable purposes, such property is Waqf property. This is an irrevocable and permanent dedication /transfer. A non-Muslim cannot transfer property as Waqf unless he or she believes in Islam. 

While there was the Waqf Act 1954, Waqfs in India are now governed by the Act of 1995. A survey commissioner under the Act lists all properties declared as Waqf by making local investigation, summoning witnesses and requisitioning public documents. 

A Waqf Board is a juristic person with power to acquire and hold property. Each state has a Waqf Board headed by and with Muslim personal on it - recognised scholars of Islamic theology.

Section 40 Waqf Board Act mentions that any property in India can be claimed as Waqf Board Property. And under Section 52: The Waqf Board can, after the inquiry, ask the local Collector to deliver the possession of the property.

While most of them are Sunni Waqf Boards, the country does have some Shia Boards too. For any dispute with the Waqf Board, one must appeal to the Waqf Tribunal. The Wakf Act was amended in 2013, making it mandatory for States to constitute a three member Tribunal which would include one person knowing Muslim Law. There are huge and multiple Waqf properties in India, thus for e.g. the Jama Masjid in Delhi, the two Imambaras in Lucknow are Waqf properties. 

Incidentally, the board also takes 7% of the income from waqf property – 1% for the Central Waqf Council, and 6% for itself.

The issue really also is - no civil court has any jurisdiction. So an aggrieved person would have to approach a High Court. And how many would have the wherewithal to do so is a *big* question. And would he/she consider the effort, money and time worth it?

Wednesday, 18 May 2022

Hippocratic Oath and Charak Shapath

The Dean of Madurai Medical College was removed on May 1 2022 after a batch of new students were administered an oath in Sanskrit attributed to the ancient Indian sage Maharshi Charak instead of the traditional Hippocratic Oath in English.

NMC (which replaced the Medical Council of India as the regulatory body for medical education and practices)  recently suggested that medical colleges may allow their students to take ‘Charak Shapath’ instead of the Hippocratic Oath, historically taken by physicians the world over. This oath is attributed to Hippocrates, a physician from the Greek island of Kos, from the classical period (4th-5th centuries BC). The earliest available fragments of the original oath date back to the late 3rd century AD.

Charak Shapath or Charak’s oath is a passage from the 'Charak Samhita' which is a guideline by the acharya (or a teacher) to medical students. A part of the Shapath comes as a sermon by the Acharya. Charak was one of the principal contributors to Ayurved and was the editor of the medical treatise entitled ‘Charak Samhita’. The compendium serves as one of the foundational texts of Ayurveda. Like many sages in ancient Indian history, Charak’s historicity is unknown. The Samhita however is a pharmacopoeia dating back to the 1st-2nd centuries AD. Charak Shapath or Charak’s oath is a passage from the 'Charak Samhita' which is a guideline by the acharya (or a teacher) to medical students. A part of the Shapath comes as a sermon by the Acharya.

The incident triggered a controversy with the language being a sensitive issue in Tamil Nadu. The State govt. “will oppose and defeat the efforts to “impose” languages like Hindi and Sanskrit”. Their Health Minister Subramanian said that deans of all medical colleges in the state have been asked to stick to the Hippocratic Oath. 

Undergraduates at All India Institute Of Medical Science (AIIMS) — the country’s premier institute for medical education — have been administered the Charak Shapath during their annual convocation for several years now, at least since 2013. The AIIMS oath includes: “Not for the self, not for the fulfilment of any worldly material desire or gain, but solely for the good of suffering humanity, I will treat my patient and excel well”.

Union Health Minister Mansukh Mandaviya reportedly “assured that Charak Shapath will be optional and will not be forced to replace the Hippocratic Oath”.

On May 4, the State Govt. reinstated the Dean of the Madurai Medical College.

My opinion : Tamil Nadu Govt seems to consider itself closer to a Greek Island than to that within India.