 "Enemy Property Act: What to do if your home or property is wrongly listed")
The Enemy Property Act is once again in the news, with Bollywood actor Saif Ali Khan’s ancestral properties, valued at nearly Rs 15,000 crore, facing uncertainty.
Properties in question inherited by Khan and his family include the Noor-Us-Sabah Palace and Flag Staff House in Bhopal. If no appeal is filed before the Custodian of Enemy Property, these assets may come under government control.
The controversy originates from a 2015 decision by the authority, classifying the properties of Bhopal's Nawab as “enemy property.” This classification was based on the partition-era migration of Nawab Hamidullah Khan’s eldest daughter, Abida Sultan Begum, to Pakistan. Under the Enemy Property Act, properties linked to individuals migrating to enemy countries are vested in the Custodian of Enemy Property.
Senior advocate Jagdish Chhavani referred to a 1962 order recognising Sajida Sultan Begum, the Nawab’s second daughter, as the sole successor to these properties. They were later inherited by Mansoor Ali Khan Pataudi and subsequently by Saif Ali Khan. However, the 2015 ruling challenged this succession, prompting Sharmila Tagore to file an appeal in the high court.
“In 2017, the Enemy Property Act, originally enacted in 1968, was amended to expand its scope. It now includes the legal heirs of individuals classified as 'enemies,' even if the heirs are Indian citizens. The law ensures that such properties remain with the Custodian regardless of changes in nationality or death of the original owner,” said Neha Gupta, principal associate at Athena Legal.
How does the Enemy Property Act affect inheritance and other property laws in India?
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“After the latest amendment, there is an explicit bar against the application of any inheritance or succession laws. No legal heir today can claim entitlement over any enemy property,” said Suresh Palav, partner, IndiaLaw LLP.
What if a person's property is erroneously classified as 'enemy property'?
“A wrongful categorisation can be corrected by making a representation before the Ministry of Home Affairs or, if that fails, by filing an appeal before the High Court. This can be a significantly long process, and I have seen cases span over several decades. The process of releasing a property from the Custodian of Enemy Property for India can be painful, time-consuming, and expensive,” Palav explained.
Remedies for claimants
According to Gupta, claimants can pursue the following remedies to seek appropriate relief:
1 Proving non-enemy status
Families can establish that the original owner of the property was not an “enemy” as defined under the Act. Claimants may provide documentation proving their status as Indian citizens, including citizenship documents and records verifying the family’s history as permanent residents of India.
2. Challenging the classification of the property
If the property has been wrongly classified as “enemy property,” families can file an appeal for a review of the declaration. Appeals should include evidence demonstrating the incorrect categorisation of the property under the Act.
“In the case of Lucknow Nagar Nigam & Others vs Kohli Brothers Colour Lab. Pvt. Ltd. & Others (2024), the Supreme Court ruled that enemy property held by the Custodian is only temporarily vested. The Union of India cannot claim ownership because there is no transfer of ownership from the original owner to the Custodian. This means the government does not have ownership rights,” Gupta explained.
Challenges in reclaiming enemy property
To stake a claim on enemy property, individuals must establish that the property was wrongly classified and that they have legitimate ownership rights. However, the 2017 amendments pose legal hurdles:
Burden of proof: Claimants must provide compelling evidence to challenge the Custodian’s classification.
Legal restrictions: The amendments explicitly prevent legal heirs from reclaiming properties, making such claims challenging.
The amendments have withstood judicial scrutiny, with courts upholding the legislative intent to prevent the transfer of enemy properties to legal heirs. Gupta narrated the case of Raja Mohammad Amir Mohammad Khan (2010):
Raja Mohammad Amir Mohammad Khan, heir of the former princely state of Mahmudabad (now in Uttar Pradesh), challenged the categorisation of his ancestral properties as enemy properties. These properties, worth thousands of crores, were vested with the Custodian of Enemy Property after his father migrated to Pakistan in 1957. The Supreme Court ruled in Khan’s favour in 2005, stating he was entitled to reclaim the properties as an Indian citizen and not an “enemy.” However, the Enemy Property (Amendment and Validation) Act, 2017, nullified this ruling, clarifying that properties vested in the Custodian could not be returned to legal heirs, regardless of their citizenship.
Is there rehabilitation for those displaced?
“If your property comes under the Enemy Property Act, you must know that there is no specific rehabilitation package. Instead, a certain percentage of the total valuation is provided to the existing occupants, according to a notification dated March 21, 2018, under the Enemy Property Rules 2015,” said Sunayana Basu Mallik, partner, King Stubb & Kasiva, Advocates and Attorneys.
“Additionally, the first right to purchase property valued at less than Rs 1 crore is given to tenants, as per a gazette notification dated March 17, 2023. Otherwise, these properties are disposed of through e-auction at a value determined by the central government. The eviction process involves the jurisdiction of magistrates, not civil courts. This Act raises questions about who qualifies as an enemy and what constitutes an act of aggression against India,” Mallik said.
“The structure of this Act differs significantly from inheritance and land acquisition laws in India. There is limited scope for asserting natural justice or the right to be heard. The Custodian is vested with absolute powers, and appeals can only be made in the High Court. Conflicting decisions from various high courts have resulted in instances where heirs of individuals who migrated to Pakistan, but later returned to India successfully reclaimed their properties. However, the 2017 amendments significantly narrow judicial intervention in such matters,” Mallik said.
As per recent data cited by Gupta, India has identified 12,611 enemy properties, with an estimated value of approximately Rs 1 lakh crore. The distribution of properties across states is as follows:
Uttar Pradesh: 6,255
West Bengal: 4,088
Delhi: 659
Goa: 295
Maharashtra: 208
Telangana: 158
Gujarat: 151
Tripura: 105
Bihar: 94
Madhya Pradesh: 94
Chhattisgarh: 78
Haryana: 71
Kerala: 71
Uttarakhand: 69
Tamil Nadu: 67
Meghalaya: 57
Assam: 29
Karnataka: 24
Rajasthan: 22
Jharkhand: 10
Daman and Diu: 4
Andhra Pradesh: 1
Andaman and Nicobar Islands: 1
“The Enemy Property Act, especially after the 2017 amendments, has fortified the government’s stance on retaining control over properties deemed as enemy assets, leaving limited legal recourse for individuals seeking reclamation,” Gupta said.