RSTV Policy Watch – Selling Enemy Properties

RSTV Policy Watch - Selling Enemy Properties Bill

Introduction :-

In a bid to enrich its coffers by about 1 lac crore rupees, Govt has started the process of monetisation of more than 9400 enemy properties by issuing guidelines & directing the office of the custodian to submit a list of all such movable & immovable assets.

  • The ministry of Home Affairs has also constituted evaluation committee at the district level headed by the district magistrate & inter  ministerial disposal committee headed by Additional Secretary so the process could be completed in a time bound manner.
  • The moves comes out after the amendment of Enemy Properties (Amendment & Validation Act), 2017 & the Enemy property Amendment Rules 2018, which assures that the one’s  who migrated to Pakistan & China in partition & afterwards, will have no claim on properties which are left behind in India.

What these Enemy Properties are ?

When the war happened with China & Pakistan in 1960s & 70s, the government came out with Enemy Property Act under the Indian Defence Rules. During the war, the properties belonging to the enemy means that those who left India & went to China & Pakistan.

  • Their properties were acquired  by the govt, since these are the long time measures. the act was enacted in 1968 & in that act was provided that those who left India & going to Pakistan & China. Their Properties will be ceased.
  • A Custodian will be appointed, who will act as the administrator of the property.

But the further issues were raised.

Supreme Court Judgement :-
In 2005, the Supreme Court set aside the administration of Custodian in a verdict & said the Custodian will only act as a Trustee and he cannot sell those properties. The rights of legal heirs may be asserted.

In 2010, the govt brings an ordinance in the parliament but that lapsed & that ordinance was again re-promulgated in 2016 for the five times and that led to the passing of the act in 2017.

Features of 2017 Act :-

  • It clearly says those who left India & went to Pakistan or China the legal heirs will also be treated as an enemy subject.
  • All those properties which may have been sold between 1968 & 2016 for the first time will be treated as invalid & will be vested with Custodian & gave the power to custodian to sell those properties & realise the amount from the property.
  • In Section 2 clause (b) If somebody has been a legal heir of the enemy has  got the rights to that property by the virtue of law then his status will not be disturbed.
  • The provision also made in the Amendment Act 2017, if someone is aggrieved on the decision taken by the Custodian of the property that is vested with the custodian, he/she can make an appeal to the govt of india, the govt of India will give reasonable hearing to that such person to find out whether or not, he/she is a legal heir or not & give a judgement & if it is found that property has been wrongly vested with the custodian it will revert back to that person.

This act will act as a remedial solution the problems created by encroachers who are wrongfully claiming on those properties to be their properties.

Procedure of Disposing of Properties :-

  • First, The procedure has been setup by the govt that the Valuation committee will be appointed at the district level where the District magistrate will be its Chairman besides two other official members. In India, valuation of a property is a very significant aspect.
  • Second, The central government will also constitute an Enemy Property Disposal Committee, with an additional secretary of the MHA as chairman. The Enemy Property Disposal Committee will make recommendations to the central government in relation to the enemy property which includes
    >>
    Sale of enemy property
    >>
    Usage of enemy property by the ministries or departments of the central government
    >> Maintaining Status Quo and the transfer of the enemy property.
    In case of vacant immovable enemy property :-
    The Committee may recommend the purchaser offering the highest price for disposal of vacant immovable enemy property.

    In case of occupied immovable enemy property :-

    the Committee may recommend the percentage of valuation for its disposal to the existing occupier.
  • Third, The Tendering process, that you call from the public tenders so you get the highest money from that property & that takes time. If a tender is floated and you do not the get the rates according to the evaluation of that property then that tender has to be scrapped.

Problems :-

  • Whether the sale will happen or not, it is not clear because many times it happens that even after the Court decree, it remains to be a paper decree because execution can not take place & at the end of the day the executioner can not enter the property & take the talks of those situations. Even if it is let out for tender, the tender process may not be completed, the sale process may not be completed.
  • There would be legal challenges to the act because itself saying that this act is not as per the constitution.

What needs to be done ?

  • First, Look out for the easier properties to deal with.
  • Second, Govt does not need to be lost in valuation of the property because the property which may have been built earlier in 1960s or afterwards surely not going to be a posh area as per today times & the authorities have to accept that.

 

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