MINISTRY OF LAW AND JUSTICE - Legislative Department - THE ENEMY PROPERTY - AMENDMENT AND VALIDATION - FOURTH ORDINANCE, 2016 - No. 7 OF 2016

© [Regd. No. TN/CCN/467/2012-14. GOVERNMENT OF TAMIL NADU [R. Dis. No. 197/2009. 2016 [Price: Rs. 3.20 Paise. TAMIL NADU GOVERNMENT GAZETTE PUBLISHED BY AUTHORITY No.39] CHENNAI, WEDNESDAY, SEPTEMBER 28, 2016 Purattasi 12, Thunmugi, Thiruvalluvar Aandu – 2047 Part IV—Section 4 CENTRAL ACTS AND ORDINANCES CONTENTS MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 28th August, 2016/Bhadra 6, 1938 (Saka) THE ENEMY PROPERTY (AMENDMENT AND VALIDATION) FOURTH ORDINANCE, 2016 No.7 OF 2016 Promulgated by the President In the Sixty-seventh Year of the Republic of India. An Ordinance further to amend the Enemy Property Act, 1968 and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. WHEREAS the Enemy Property (Amendment and Validation) Ordinance, 2016 was promulgated by the President on the 7th day of January, 2016; AND WHEREAS the Enemy Property (Amendment and Validation) Bill, 2016 to replace the Enemy Property (Amendment and Validation) Ordinance, 2016 has been passed by the House of the People and is pending in the Council of States; AND WHEREAS the Enemy Property (Amendment and Validation) Bill, 2016 was referred to the Select Committee of the Rajya Sabha for its examination and report; AND WHEREAS in order to give continued effect to the Enemy Property (Amendment and Validation) Ordinance, 2016, the Enemy Property (Amendment and Validation) Second Ordinance was promulgated by the President on the 2nd April, 2016; AND WHEREAS the Select Committee submitted its Report, along with the Enemy Property (Amendment and Validation) Bill, 2016 incorporating therein the amendments recommended by the said Committee, on the 6th May, 2016; [141] DTP IV-4-(39)—1142 TAMIL NADU GOVERNMENT GAZETTE [Part IV—Sec. 4 AND WHEREAS the Enemy Property (Amendment and Validation) Bill, 2016, as reported by the Select Committee, could not be taken up for consideration and passing in the Council of States; AND WHEREAS the Enemy Property (Amendment and Validation) Third Ordinance, 2016 incorporating the recommendations of the Select Committee was promulgated by the President on the 31st May, 2016 which wiII cease to operate on the 28th day of August, 2016; AND WHEREAS it is considered necessary to give continued effect to the provisions of the Enemy Property (Amendment and Validation) Third Ordinance, 2016 along with the amendments as recommended by the Select Committee; AND WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action; Now, THEREFORE, in exercise of the powers conferred by clause (I) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:-- Short title and 1. (1) This Ordinance may be called the Enemy Property (Amendment and commence- Validation) Fourth Ordinance, 2016. ment. (2) Save as otherwise provided, it. shall be deemed to have come into force on the 7th day of January, 2016. 2. On and from the date of commencement of the Enemy Property Act, 1968 34 of 1968. Amendment of (hereinafter referred to as the principal Act), in section 2,- section 2. (i) in clause (b),- (I) for the words “an enemy subject”, the words “an enemy subject including his legal heir and successor whether or not a citizen of India or the citizen of a country which is not an enemy or the enemy, enemy subject or his legal heir and successor who has changed his nationality” shall be substituted and shall always be deemed to have been substituted; (II) for the words “an enemy firm”, the words “an enemy firm, including its succeeding firm whether or not partners or members of such succeeding firm are citizens of India or citizens of a country which is not an enemy or such firm which has changed its nationality” shall be substituted and shall always be deemed to have been substituted; (III) for the words “does not include a citizen of India”, the words ‘ “does not include a citizen of India other than those citizens of India, being the legal heir and successor of the “enemy” or “enemy subject” or “enemy firm” , shall be substituted and shall always be deemed to have been substituted; (IV) the following Explanations shall be inserted and shall always be deemed to have been inserted at the end, namely:- ‘Explanation 1.-For the purposes of this clause, the expression “does not include a citizen of India” shall exclude and shall always be deemed to have been excluded those citizens of India, who are or have been the legal heir and successor of an “enemy” or an ”enemy subject” or an “enemy firm” which or who has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of India or the citizen of a country which is not an enemy. Explanation 2.- For the purposes of this clause, it is hereby clarified that nothing contained in this Act shall affect any right of the legal heir and successor referred to in this clause (not being inconsistent to the provisions of this Act) which have been conferred upon him under any other law for the time being in force.’; (ii) in clause (c), in the proviso,- (I) after the words “dies in the territories to which this Act extends”, the words “or dies in any territory outside India” shall be inserted and shall always be deemed to have been inserted;Sep. 28, 2016] TAMIL NADU GOVERNMENT GAZETTE 143 (II) the following Explanations shall be inserted and shall always be deemed to have been inserted at the end, namely:- ‘Explanation 1.-For the purposes of this clause, it is hereby clarified that “enemy property” shall, notwithstanding that the enemy or the enemy subject or the enemy firm has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of India or the citizen of a country which is not an enemy, continue and always be deemed to be continued as an enemy property. Explanation 2.-For the purposes of this clause, the expression “enemy property” shall mean and include and shall be deemed to have always meant and included all rights, titles and interests in, or any benefit arising out of, such property.’. 3. On and from the date of commencement of the principal Act, in section 5, Amendment after sub-section (2), the following shall be inserted, and shall always be deemed of to have been inserted, namely:- section 5. (3) The enemy property vested in the Custodian shall, notwithstanding that the enemy or the enemy subject or the enemy firm has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of lndia or the citizen of a country which is not an enemy, continue to remain, save as otherwise provided in this Act, vested in the Custodian. Explanation.-For the purposes of this sub-section, ”enemy property vested in the Custodian” shall include and shall always be deemed to have been included all rights, titles, and interests in, or any benefit arising out of, such property vested in him under this Act.’ . 4. After section 5 of the principal Act, the following section shall be inserted, Insertion of namely:- new section 5A. “5A. The Custodian may, after making such inquiry as he deems necessary, Issue of by order, declare that the property of the enemy or the enemy subject or the enemy certificate by firm described in the order, vests in him under this Act and issue a certificate to Custodian. this effect and such certificate shall be the evidence of the facts stated therein.”. 5. On and from the date of commencement of the principal Act, after section 5A Insertion of [as so inserted by section 4 of the Enemy Property (Amendment and Validation) new Ordinance, 2016], the following shall be inserted and shall always be deemed to section 5B. have been inserted, namely:- ‘5B. Nothing contained in any law for the time being in force relating to Law of succession or any custom or usage governing succession of property shall apply succession in relation to the enemy property under this Act and no person (including his legal or any custom or heir and successor) shall have any right and shall be deemed not to have any right usage (including all rights, titles and interests in, or any benefit arising out of, such not to apply property) in relation to such enemy property. to enemy property. Explanation.-For the purposes of this section, the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law in the matters of succession of property.’ . 6. On and from the date of commencement of the principal Act, for section 6 of Amendment the principal Act, the following section shall be substituted and shall always be of section 6. deemed to have been substituted, namely:-144 TAMIL NADU GOVERNMENT GAZETTE [Part IV—Sec. 4 Prohibition to “6. (1) No enemy or enemy subject or enemy firm shall have any right and shall transfer never be deemed to have any right to transfer any property vested in the Custodian any under this Act, whether before or after the commencement of this Act and any transfer property of such property shall be void and shall always be deemed to have been void. vested in (2) Where any property vested in the Custodian under this Act had been Custodian transferred, before the commencement of the Enemy Property (Amendment and by Validation) Fourth Ordinance, 2016, by an enemy or enemy subject or enemy firm an enemy, and such transfer has been declared, by an order, made by the Central Government, enemy subject to be void, and the property had been vested or deemed to have been vested in the or enemy Custodian [by virtue of the said order made under section 6, as it stood before its firm. substitution by section 6 of the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016] such property shall, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, continue to vest or be deemed to have been vested in the Custodian and no person (including an enemy or enemy subject or enemy firm) shall have any right or deemed to have any right (including all rights, titles and interests in, or any benefit arising out of, such property) over the said property vested or deemed to have been vested in the Custodian.” . 7. In section 8 of the principal Act,- Amendment of (i) on and from the date of commencement of the principal Act, for sub- section 8. section (1), the following sub- section shall be substituted and shall always be deemed to have been substituted, namely:- “(1) With respect to the property vested in the Custodian under this Act, the Custodian may take or authorise the taking of such measures as he considers necessary or expedient for preserving such property till it is disposed of in accordance with the provisions of this Act.”: (ii) in sub-section (2),- (a) after clause (i), the following clause shall be inserted, namely:- “(ia) fix and collect the rent, standard rent, lease rent, licence fee or usage charges, as the case may be, in respect of enemy property;”; (b) after clause (iv), the following clause shall be inserted, namely:- “(iva) secure vacant possession of the enemy property by evicting the unauthorised or illegal occupant or trespasser and remove unauthorised or illegal constructions, if any.”. 8. After section 8 of the principal Act, the following section shall be inserted, namely:- Insertion of new section 8A. “8A.(1) Notwithstanding anything contained in any judgment, decree or order Sale of of any court, tribunal or other authority or any law for the time being in force, the property Custodian may, within such time as may be specified by the Central Government by in this behalf, dispose of whether by sale or otherwise, as the case may be, with Custodian. prior approval of the Central Government, by general or special order, enemy properties vested in him immediately before the date of commencement of the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016 in accordance with the provisions of this Act, as amended by . the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016. (2) The Custodian may, for the purpose of disposal of enemy property under sub-section (1), make requisition of the services of any police officer to assist him and it shall be the duty of such officer to comply with such requisition. (3) The Custodian shall, on disposal of enemy property under sub-section (1) immediately deposit the sale proceeds into the Consolidated Fund of India and intimate details thereof to the Central Government.Sep. 28, 2016] TAMIL NADU GOVERNMENT GAZETTE 145 (4) The Custodian shall send a report to the Central Government at such intervals, as it may specify, for the enemy properties disposed of under sub-section (1), containing such details (including the price for which such property has been sold and the particulars of the buyer to whom the properties have been sold or disposed of and the details of the proceeds of sale or disposal deposited into the Consolidated Fund of India), as it may specify. (5) The Central Government may, by general or special order, issue such directions to the Custodian on the matters relating to disposal of enemy property under sub-section (1) and such directions shall be binding upon the Custodian and the buyer of the enemy properties referred to in that sub-section and other persons connected to such sale or disposal. (6) The Central Government may, by general or special order, make such guidelines for disposal of enemy property under sub-section (1). (7) Notwithstanding anything contained in this section, the Central Government may direct that disposal of enemy property under sub-section (1) shall be made by any other authority or Ministry or Department instead of Custodian and in that case all the provisions of this section shall apply to such authority or Ministry or Department in respect of disposal of enemy property under sub-section (1). (8) Notwithstanding anything contained in sub-sections (1) to (7), the Central Government may deal with or utilise the enemy property in such manner as it may deem fit.”. 9. After section 10 of the principal Act, the following section shall be inserted, Insertion of namely:- new section10A. “10A. (1) Where the Custodian proposes to sell any enemy immovable Power to property vested in him, to any person, he may on receipt of the sale proceeds of issue such property, issue a certificate of sale in favour of such person and such certificate certificate of sale shall, notwithstanding the fact that the original title deeds of the property of sale. have not been handed over to the transferee, be valid and conclusive proof of ownership of such property by such person. (2) Notwithstanding anything contained in any law for the time being in force, the certificate of sale, referred to in sub-section (1), issued by the Custodian shall be a valid instrument for the registration of the property in favour of the transferee and the registration in respect of enemy property for which such certificate of sale had been issued by the Custodian, shall not be refused on the ground of lack of original title deeds in respect of such property or for any such other reason.”. 10. In section 11 of the principal Act, after sub-section (2), the following Amendment of sub-section shall be inserted, namely:- section 11. “(3) The Custodian, Deputy Custodian or Assistant Custodian shall have, for the purposes of exercising powers or discharging his functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure,1908, 5 of 1908. while dealing with any case under this Act, in respect of the following matters, namely:- (a) requmng the discovery and inspection of documents; (b) enforcing the attendance of any person, including any officer dealing with land, revenue and registration matters, banking officer or officer of a company and examining him on oath; (c) compelling the production of books, documents and other records; and (d) issuing commissions for the examination of witnesses or documents.”. 11. In section 17 of the principal Act, in sub-section (1), for the words “two per Amendment centum”, at both the places where they occur, the words “five per centum” shall be of substituted. section 17.146 TAMIL NADU GOVERNMENT GAZETTE [Part IV—Sec. 4 Substitution 12. For section 18 of the principal Act, the following section shall be substituted, of namely:- new section for section 18. Transfer of “18. The Central Government may, on receipt of a representation from a property person, aggrieved by an order vesting a property as enemy property in the Custodian vested as within a period of thirty days from the date of receipt of such order or from the date enemy of its publication in the Official Gazette, whichever is earlier and after giving a property reasonable opportunity of being heard, if it is of the opinion that any enemy property in certain vested in the Custodian under this Act and remaining with him was not an enemy cases. property, it may by general or special order, direct the Custodian that such property vested as enemy property in the Custodian may be transferred to the person from whom such property was acquired and vested in the Custodian.”. Insertion of 13. On and from the date of commencement of the principal Act, after section new 18 [as so substituted by section 12 of the Enemy Property (Amendment and section I8A. Validation) Ordinance, 2016], the following section shall be inserted and shall always be deemed to have been inserted, namely:- Income not “18A. Any income received in respect of the enemy property by the Custodian liable to be shall not, notwithstanding that such property had been transferred by way of sale returned. under section 8A or section 18, as the case may be, to any other person, be returned or liable to be returned to such person or any other person.”. Insertion of 14. After section 18A of the principal Act [as so inserted by section 13 of the Ord. 1 of new Enemy Property (Amendment and Validation) Ordinance, 2016], the following 2016. sections sections shall be inserted, namely:- 18B and 18C. Exclusion of ‘18B. Save as otherwise provided in this Act, no civil court or authority shall jurisdiction have jurisdiction to entertain any suit or proceedings in respect of any property, of subject matter of this Act, as amended by the Enemy Property (Amendment and civil courts. Validation) Fourth Ordinance, 2016, or any action taken by the Central Government or the Custodian in this regard. Appeal to 18C. Any person aggrieved by an order of the Central Government under High Court. section 18 of this Act, may, within a period of sixty days from the date of communication or receipt of the order, file an appeal to the High Court on any question of fact or law arising out of such orders, and upon such appeal the High Court may, after hearing the parties, pass such orders thereon as it thinks proper: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation.-In this section, “High Court” means the High Court of a State or Union territory in which the property referred to in section 18 is situated.’ . Amendment of 15. In section 20 of the principal Act, for the words “five hundred rupees” at both section 20. the places where they occur, the words ”ten thousand rupees” shall be substituted. Amendment of 16. On and from the date of commencement of the principal Act, in section 22 section 22. of the principal Act, after the words “for the time being in force”, the brackets and words ”(including any law of succession or any custom or usage in relation to succession of property)” shall be inserted and shall always be deemed to have been inserted. Insertion of 17. After section 22 of the principal Act, the following section shall be inserted new and shall always be deemed ·to have been inserted with effect from the 2nd July, section 2010, namely:- 22A. “22A. Notwithstanding anything contained in any judgment, decree or order Validation. of any court, tribunal or other authority,-Sep. 28, 2016] TAMIL NADU GOVERNMENT GAZETTE 147 (a) the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016, shall have and shall always be deemed to have effect for all purposes as if the provisions of this Act, as amended by the said Ordinance, had been in force at all material times; (b) any enemy property divested from the Custodian to any person under the provisions of this Act, as it stood immediately before the commencement of the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016, shall stand transferred to and vest or continue to vest, free from all encumbrances, in the Custodian in the same manner as it was vested in the Custodian before such divesting of enemy property under the provisions of this Act, as if the provisions of this Act, as amended by the aforesaid Ordinance, were in force at all material times: (c) no suit or other proceedings shall, without prejudice to the generality of the foregoing provisions, be maintained or continued in any court or tribunal orauthority for the enforcement of any decree or order or direction given by such court or tribunal or authority directing divestment of enemy property from the Custodian vested in him under section 5 of this Act, as it stood before the commencement of the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016, and such enemy property shall continue to vest in the Custodian under section 5 of this Act, as amended by the aforesaid Ordinance, as if the said section, as amended by the aforesaid Ordinance was in force at all material times; (d) any transfer of any enemy property, vested in the Custodian, by virtue of any order of attachment, seizure or sale in execution of decree of a civil court or orders of any tribunal or other authority in respect of enemy property vested in the Custodian which is contrary to the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016, shall be deemed to be null and void and notwithstanding such transfer, continue to vest in the Custodian under this Act.”. 18. In section 23 of the principal Act, in sub-section (2), clause (d) shall be Amendment omitted. of section 23. 19. (1) If any difficulty arises in grvmg effect to the provisions of the principal Power to Act, as amended by the Enemy Property (Amendment and Validation) Fourth remove difficulties. Ordinance, 2016, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016, or the Public Premises (Eviction of Unauthorised Occupants) Act, 40 of 1971 1971, as amended by the Enemy Properly (Amendment and Validation) Fourth Ordinance, 2016, as may appear to be necessary for removing the difficulty: Provided that no such order shall be made under this section after the expiry of two yeilrs from the date on which the Bill replacing the Enemy Property (Amendment and Validation) Fourth Ordinance, 2016, receives the assent of the President. (2) Every order made under this’ section shall be laid, as soon as may be after it is made, before each House of Parliament. 20. In the Public Premises (Eviction of Unauthorised Occupants) Act,1971,- Amendment of sections 2 and 3 of Act 40 of (a) in section 2, in clause (e), after sub-clause (3), the following sub-clause 1971. shall be inserted, namely:- “(4) any premises of the enemy property as defined in clause (c) of section 2 of the Enemy Property Act, 1968.”; 34 of 1968.148 TAMIL NADU GOVERNMENT GAZETTE [Part IV—Sec. 4 (b) in section 3, in clause (a),- (i) in the second proviso, the word “and” shall be omitted; (ii) after the second proviso, the following proviso shall be inserted, namely:- “Provided also that the Custodian, Deputy Custodian and Assistant Custodian of the enemy property appointed under section 3 of the Enemy Property Act, 1968 shall be deemed to have been appointed as the Estate Officer in respect of those enemy property, being the public premises, referred to in sub-clause (4) of clause (e) of section 2 of this Act for which they had been appointed as the 34 of1968. Custodian, Deputy Custodian and Assistant Custodian under section 3 of the Enemy Property Act, 1968.”. Savings. 21. Notwithstanding the cessation of the operation of the Enemy Property (Amendment and Validation) Ordinance, 2010, anything done or any action taken under the Enemy Property Act, 1968, or the Public Premises (Eviction of Ord. 4 of 2010 Unauthorised Occupants) Act, 1971, as amended by the Enemy Property 34 of 1968. (Amendment and Validation) Ordinance, 2010, shall be deemed to have been done or taken under the corresponding provisions of those Acts, as amended by the 40 of l971. Enemy Property (Amendment and Validation) Ordinance, 2010, as if the provisions of this Act, as amended by the said Ordinance had been in force at all material times. Repeal and 22. (I) The Enemy Property (Amendment and Validation) and Third Ordinance, Ord. 6 of savings. 2016 is hereby repealed. 2016. (2) Notwithstanding such repeal, anything done or any action taken under 34 of 1968. the Enemy Property Act, 1968 as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the said Act, as amended by this Ordinance. PRANAB MUKHERJEE President. DR. G. NARAYANA RAJU Secretary to the Govt. of India. (Re-published by order of the Governor) A. ARUNAGIRI, Additional Secretary to Government, Law Department. PRINTED AND PUBLISHED BY THE DIRECTOR OF STATIONERY AND PRINTING, CHENNAI ON BEHALF OF THE GOVERNMENT OF TAMIL NADU.