India: Highlights And Analysis Of The Enemy Property (Amendment And Validation) Bill, 2016

Last Updated: 22 April 2019
Article by Shubham Borkar and Vaishvi Khare


Recently, the Central Government has identified almost 9,400 enemy properties worth Rs. One Lakh Crore and has ordered to sell it off. The Highest of these enemy properties are in Uttar Pradesh which in numbers are around 4,991 properties, second in line is West Bengal which has 2,735 enemy properties, 487 enemy properties are in Delhi. Among these 126 properties belonged to Chinese resident's rest the properties belonged to the Pakistanis Residents1. Furthermore, the Ministry has also passed an order to sell enemy shares expected value of which is around of Rs. 3,000 Crore2.

The first question that needs to be answered in reference to this is, what do you mean by the term Enemy Property?

The Enemy Property Act, 1968 which is the governing act, defines the term "Enemy" as any country or their residents who performed external Belligerence3 against India. Basically, the nationals who left their properties in India and, now residing in the Enemy country then, those properties will be considered as an "Enemy Property". These enemy properties includes both movable and immovable property.

How these enemy properties are governed and managed?

The Enemy Property Act of 1968 which deals with the concept of enemy properties, is also responsible for managing and regulating the matters of the enemy properties, However in this Act, there are some loopholes which needs to be corrected so for that matter, a Bill of Enemy Property (Amendment and Validation) of 2016 was first introduced in the Lok Sabha by the Minister of Home Affairs Mr. Rajnath Singh in the March of 2016. The Bill was then referred to the Rajya Sabha which established the Selection Committee and was directed to produce a report in this regard. The present bill has been introduced so as to replace the Enemy Property (Amendment and Validation) Ordinance, 2016 which was announced by the President on 7th January, 2016. Consequently, the present Bill seeks to amend the Enemy Property Act, 1968 as well as Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

In this Bill, the Central Government has deputed some of the properties belonging to the native of Pakistan and China as Enemy Property, after the external Belligerence performed upon India. Under the Enemy Property Act, 1968 a regulatory body named "Custodian of Enemy Properties in India" or "CEPI" has been established. Orders passed by CEPI cannot be intervened by the Courts.

If everything was going good, what was the need to introduce this Bill?

As already mentioned above, the Regulatory Body under the Enemy Property Act, 1968 which is the CEPI had certain powers, and in consonance of these powers, the Body use to pass the orders which the Courts of India also supported at the initially. However, later on , when the various courts gave their verdicts, the powers vested with the CEPI were hampered. I would like to cite some of the Judgments whereby the Courts have intervened with the procedure laid down in the Act.

In one of the judgments Union of India vs. Raja MAM Khan4,the Hon'ble Supreme Court held

  • 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.
  • The Custodian will not be having any right, interest, and title in the property, only the enemy will be entitled to it.
  • The enemy can sell the property by the virtue of Section 6 of the aforesaid Act.
  • The power of the Custodian includes managing, preservation, and control of the Enemy property for the limited period as well as the purpose.
  • The Law of Succession will be applied to the legal heirs of the enemy subject.

Another in this series is the Bombay High Court Verdict in Ambu Trikam Parmar vs. Union of India & Others5:

"According to the provisions of the Act, the power of the Custodian of Enemy Properties in India 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."

As a consequence of these Judicial precedents, Government felt it is the need of the hour that the legislative intent in relation to the Enemy Property Act, 1968 needs to be clarified. So, for clarifying the intention of the legislation, these amendments are introduced through this Bill.

Reasons for introducing this Bill:

  1. The definition of the "Enemy" and its subject needs to be changed, as it includes legal heirs of the property irrespective of the citizenship of the enemy subject.
  2. In the Act, the rights and powers of the Custodian are mentioned in a very ambiguous and vague manner.
  3. Erstwhile, the sale of the enemy property can be performed by the enemy subject, but now they cannot do so.
  4. This Bill prohibits the Civil Courts to intervene in the matters related to the enemy properties.
  5. Now, after introducing the Bill, the Government can exclusively use the enemy property for public use.

Hence, after the passing of this Bill, the clarity which was needed in the legislative intent regarding the Enemy Property Act, 1968 has been dealt with, and the amendments were introduced through this very Bill of the Enemy Properties (Amendment and Validation) of 2016.

Statute before the Enemy Property (Amendment and Validation) Bill, 2016

After the Second World War in the year 1939, the Defence of India Act was introduced to prevent the payment which was supposed to be provided to the enemy subject, until the war ends. After this Act, The Enemy Property Act of 1968 became the governing statute of the Enemy Properties, whereby, it regulated and managed the properties of the Pakistanis residents, and this Act was passed after the Indo-Pakistan war which has happened in the year 1965. The ownership of the enemy properties under this Act is vested with the CEPI.

In the year 1971, the Government of Pakistan sold and disposed off the properties of the Indian Residents. Due to this reason, the Government of India amended the Act of 1968 which reinstated the powers of CEPI and led to the introduction of this aforesaid Bill.

Lacunae in the Act

The definition of the "Enemy" is vague or unclear, and does not include the legal heirs of the enemy properties. One such incident was addressed, in the case of Raja of Mahmudabad in which the Raja left after the partition, but his wife and son remained Indian citizens soon after that, they were declared as enemies and their property was considered as enemy property, after the enactment of the 1968 law. Another lacuna in this Act is that, the courts are not allowed to intervene in the process of CEPI.

Now let's just move on to the features of the present Bill and see how these lacunas have been addressed

Salient Features of the Bill

  • The very first feature of this Bill is, the Change in the Definition of "enemy" which has been made wider in scope, and it now includes the legal heirs of the enemy subject. This means, if the enemy subject dies, then the Successors of the same will also be considered as an enemy and they will not be able to inherit the property. Thus, the Central Government has the sole authority to use enemy property now.
  • Secondly, this Bill provided a permanent status, where the Custodian is vested with more powers and rights means the Custodian will have all the rights, title and interest over the enemy property.
  • Thirdly, this Bill provides a clear picture regarding the succession of the enemy property which states that, the Law of Succession will not be applicable in the matters of enemy properties.
  • Fourthly, the Custodian, under this Bill can now sell, dispose of the enemy property, and can also make eviction of the unauthorized occupants.
  • Last but not the least, the present Bill states that the Civil Courts will have no Jurisdiction and cannot entertain these matters related to enemy property, only High Courts and Supreme Court will be having the jurisdiction to deal with such matters connected therewith.

Major Issues

Retrospective Application and Violates Article 14

This can be explained from the point that the original Act expressly mentioned under Section 2(b) that the word 'enemy' "does not include a citizen of India". However, the present bill under Sec 2(1) (III) clearly states, "...the expression 'does not include citizen of India' shall exclude...those citizens of India, who are or have been legal heir and successor of an 'enemy'." As a result of which many other wise legal citizens of the country will now be devoid of their property owing to acts of their forefathers.

In clear terms , the present bill has now classified Indian Citizens into two classes , One Indian Citizen who are legal heirs of Indian Citizen and second Indian citizen who are legal heirs/ succesoors of " Enemy" Meaning thereby, the present bill retrospectively violates vested rights in property, Any person who bonafidely purchased a property when it was sold can now be ousted from his vested interest in the subject property. All this have opened door for Judicial Intervention, I can forsee judiciary coming up for sorting out the confusion.


1. Vandana Ramnani, What are the Enemy Properties and why the Govt. wants to sell them? (Nov. 12, 2018, 1:30 P.M)

2. Times of India, Govt. to sell Enemy Property shares now valued at Rs 3,000 Crore (Nov. 09, 2018, 12:56 A.M)

3. It is a unilateral attack by force conducted by one state against the other state without any formal declaration of the war.

4. Union of India vs. Raja MAM Khan, 2005 (8) SCC 696

5. Ambu Trikam Paramar vs. Union of India (Writ Petition No. 843 of 2009)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions