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Legal wrangles, encroachment and corruption plague hundreds of ‘enemy properties’ across the country

By Syed Nazakat in Delhi

Before leaving for Pakistan in 1962, the relatives of Dr Anisul Haq gifted their six houses in Delhi to his father, Aminul Haq. Three decades later on August 28, 1992, they came to India to confirm the gift deal. They appeared in Delhi’s Tis Hazari court and gave the power of attorney in his favour. Yet, the government refused to accept Haq as the rightful owner of the property.

It has been a long-drawn out legal battle over the ownership of the property, with proceedings piling up in courts and a grim showing of unhealed wounds of Partition. “We have been living in this city [Old Delhi] for generations. My relatives gifted these properties to my father. My father has passed them on to me and my brother. What is the state’s business to declare our properties as enemy property?” asks Aminul Haq.

In government records, Haq’s property is listed as ‘enemy property’. So are 2,186 properties worth thousands of crores across the country. The enemy property is an issue which remains to be settled between India and Pakistan. The problem began after the 1965 India-Pakistan War, when India declared Pakistan an enemy nation and the properties of those who migrate to Pakistan after the war were declared enemy properties. Interestingly, Pakistan had sold off most of the properties of those who left for India.

In national politics, enemy property is a big issue. On September 7, the Union government decided not to repromulgate an ordinance on enemy property and chose to bring up the Enemy Property (Amendment and Validation) Bill 2010 in the winter session of Parliament with three amendments. The bill was supposed to replace a 1968 Act pertaining to enemy property.

The first amendment allows enemy property to be claimed by its lawful heirs, provided they can prove their Indian citizenship within 120 days. The second one puts limitation on courts, allowing the Custodian of Enemy Property of India to control the assets. The final amendment ensures that the legal rights of present occupants of enemy properties remain unaffected.

In Delhi alone, there are 66 such properties which are now occupied by tenants or house private/ government institutions. Outside the historic Jama Masjid in Old Delhi, the home of Fatima Bi, an enemy property, has been turned into a police station. In the neighbouring Sadar Bazar locality, Shaikh Muhammad Haroon, 65, is unable to understand why the custodian department is not leaving his home despite the ownership order he has from court.

Amjid Ali, a shopkeeper in the same area, bought a house from a Hafiz Mohamed Siddique in 1999. A few weeks later, he received a notice from the custodian department declaring the house an enemy property. Ali was asked to pay rent to the government for living in his own house because the property’s earlier owners had gone to Pakistan. Properties of the Waqf Board, including the Musafirkhana (rest house) in Ballimaran in Old Delhi, are also at stake. Ghulam Kibriya, a descendant of celebrated Unani physician and veteran Congress leader Hakim Ajmal Khan, passed it on to Maulana Farooq Wasfi in 1974. Wasfi leased the building outside the Musafirkhana to shopkeepers to raise money for its maintenance. Twenty-three years later, the custodian department declared it enemy property. Wasfi, along with shopkeepers, challenged the government order in the Delhi High Court. The case is pending in court.

Zameer Ahmed Jumlana, president of the Delhi unit of the Indian National League, has been campaigning on behalf of the victims for years. “The records are being manipulated to cover up a big scam. There are contradictions in different enemy property lists and then money is being collected as rent against these properties. Nobody knows how the rent is fixed and where it goes,” says Jumlana. He says the biggest problem with the Enemy Property Act of 1968 is that even after 100 years, a property can be simply snatched from a person just on an unverified complaint and then the onus is on the person to prove that his forefathers were Indian nationals.

“The custodian department should check revenue records and do in-house verification of documents before giving a notice to any individual,” says Jumlana. As of now, the complainant is not required to provide any proof that the property in question ever belonged to a Pakistani national. Jumlana has kept a letter written to him by Prime Minister Manmohan Singh on November 23, 2009, saying that he would bring the matter to the notice of the Delhi chief minister. “Nothing happened since then,” says Jumlana.

At a small office in Kaiser-i-Hind building in Mumbai, the employees of the Custodian of Enemy Property pore over thousands of files and visit courts every day. Chief custodian Dinesh Singh shuttles between UP, Delhi, Gujarat, Kolkata and Mumbai to retain control over the properties. According to the custodian department, there are 13 listed enemy properties in Mumbai, and all of them, barring two, are located in posh south Mumbai. Dinesh’s deputy, Kanchan Seth, says that any real estate, if it can be proved that it was owned by a Pakistani between 1965 and 1977, can be declared as enemy property. She declines to comment on whether records have been manipulated to cover up corruption. However, she clarifies that there is no time limit to declare the property as enemy property: “On receipt of a complaint, and after verification we can declare the property as enemy property and take control of it.”

Not too far from the custodian office is Kishori Court, a bungalow facing the Worli end of the sea, which is valued over Rs 400 crore. When actor Hamida Kishwari Begum, its owner, left for Pakistan in the early 1960s, the bungalow was auctioned by the Bombay municipal authority to recover the house tax. When the matter reached court, the custodian department was slammed for its inability to maintain and protect the property. The court also questioned the right of the custodian department to sell the property when the title and ownership remained with Hamida Begum. Her ownership rights were restored only to be claimed by dozens of other people today.

Similarly, Moti Cinema, another enemy property at Khetwadi in Mumbai, is in desperate need of development like Kishori Court. The Jinnah House in Mumbai, however, is exempted from the purview of the properties bill. The ministry of external affairs directly looks after the building.

The most famous case of enemy property in India is that of Raja Amir Mohammad Khan. His father, Mohammad Amir Ahmed Khan, the ruler of Mahmoodabad in Uttar Pradesh, like many other Muslim feudal rulers of north India, left for Pakistan in 1957. In 1965, his assets in Uttar Pradesh were declared enemy property and seized by the government. The assets (over 600 properties) include the posh Metropole Hotel at Nainital, Butler Palace and half of Hazratgunj in Lucknow and are worth several hundred crores.

After a 32-year-long battle, the Supreme Court in 2005 accepted Raja Amir Mohammad Khan’s contention and his right to inherit all these properties. But in July 2010, following an ordinance, the Custodian of Enemy Property took control of the assets.

In West Bengal there are about 360 enemy properties worth thousands of crores and 200 of them are in Kolkata. When the owners of those properties left for East Pakistan (Bangladesh), they either left their houses vacant or left them in the custody of tenants.

Unlike India, Bangladesh no longer treats the properties of those who left the country to settle in India as enemy property. “Bangladesh is no longer a part of Pakistan. During Mujibur Rahman’s prime ministership, Bangladesh stopped terming the properties left behind by Hindus as enemy properties. We must therefore do away with the name enemy property,” says Ainul Hoque, a Kolkata-based social worker.

The West Bengal government has turned a blind eye to encroachment of enemy properties. “If enemy properties don’t have claimants, then the government should use it for the welfare of people, as in the case of Aga Khan’s property in Beleghata in Kolkata, which has been turned into a memorial,” says Shahanshah Jahangir, who heads the Bengal chapter of the Indian Union Muslim League.

Shopping malls are being erected in enemy properties and many plots are being encroached. Interestingly, the house of freedom fighter Syed Shorrabuddin in Kolkata’s posh Theatre Road was sold to a Marwari family by the authorities. Though Muslim organisations have pleaded with the heritage commission to acquire the house, no action has been taken so far.

Likewise, the house of Iskander Mirza, the first president of Pakistan, in Murshidabad, has been encroached by local people. “Yes, the West Bengal government allows such encroachment. More so it also allows groups with  vested interests to do business on these properties,” says a retired bureaucrat.

“The government shows a limited number of enemy properties on record, as most of them have been illegally sold,” says Jahangir.

Hoque says the government should bring about legislation that gives the ownership rights to the tenants/ relatives of those who left for Pakistan. “The government must use such huge properties which have not been estimated yet. Encroachers must be thrown out. Even if the legislation gives some rights to relatives of those people, it should have a provision by which people who are using it illegally are kept out.”

As of now, there seems to be no end to the bitter legal fight over the properties, which are claimed by the relatives of those who crossed the border.

with Anupam Dasgupta and Rabi Banerjee

What Is Enemy Property?

After the wars with Pakistan in 1965 and 1971 and one with China in 1962, India declared both countries as enemy nations.

Properties owned by the nationals of the both countries in India were taken over by the custodian department under the Enemy Property Act of 1968.

To this day, if it is proved that a property was owned by a Pakistani or Chinese national between 1965 and 1977, it can be taken over by the government.

Number of people claiming to be legal heirs approached the courts to reclaim properties. Home ministry in July 2010 issued an ordinance blocking all legal heirs from going to court .

To support the ordinance, the government has decided to put an enemy property bill on hold after many political parties and Muslim MPs opposed the bill.  

(Sept 20, 2010, THE WEEK)

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