Kerala Gazette No. 50 dated 21st December 2010.
PART I Section i GOVERNMENT OF KERALA
Law (Leg. Publication) Department
NOTIFICATION
No. 13668/Leg. Pbn. 4/2010/Law.
Dated, Thiruvananthapuram, 22nd July 2010.
The following Ordinance of Parliament, published in the Gazette of India, Extraordinary, Part II, Section I, dated the 2nd July, 2010 is hereby re-published for general information.
By order of the Governor,
K. SASIDHARAN NAIR,
Law Secretary.
2MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 2nd July, 2010/Asadha 11, 1932 (Saka).
THE ENEMY PROPERTY (AMENDMENT AND VALIDATION) ORDINANCE, 2010
[NO. 4 OF 2010]
Promulgated by the President in the Sixty-first 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 Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for her to take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:—
1. Short title and commencement.—(1) This Ordinance may be called the Enemy Property (Amendment and Validation) Ordinance, 2010.
(2) It shall come into force at once.
2. Amendment of section 5.— On and from the date of commencement of the Enemy Property Act, 1968 (34 of 1968) (hereinafter referred to as the principal Act), in section 5, after sub-section (2), the following shall be inserted and shall be deemed to have been inserted, namely:—
'(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 India or the citizen of a country which is not an enemy, continue to remain vested in the Custodian till it is divested by the Central Government.
Explanation.—For the purpose of this section, "enemy property vested in the Custodian" shall include all titles, rights and interest in, or any benefit arising out of, such property vested in him under the Act.'.
33. Insertion of new section 5A.—After section 5 of the principal Act, the following section shall be inserted, namely:—
"5A. Issue of certificate by Custodian.—The Custodian may, after making such inquiry as he deems necessary, by order, declare that the property of the enemy or the enemy subject or the enemy firm described in the order, vests in him under the Act and issue a certificate to this effect and such certificate shall be the evidence of the facts stated therein.".
4. Amendment of section 6.—On and from the date of commencement of the principal Act, in section 6, the following Explanation shall be inserted and shall be deemed to have been inserted, namely :—
"Explanation.—For the removal of doubts, it is hereby declared that, for the purposes of this section, the transfer of any enemy property shall not include any transfer or any claim of transfer made,—
(a) through oral will or oral gift; or
(b) by concealment of enemy nationality; or
(c) in case the transfer of such property requires the permission of the Reserve Bank of India or any other competent authority, without such permission ; or
(d) without the permission of the Custodian.".
5. Amendment of section 8.—In section 8 of the principal Act, 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 from the unauthorised or illegal occupant or trespasser and remove unauthorised or illegal constructions, if any;".
6. Insertion of new of section 10A.—After section 10 of the principal Act, the following section shall be inserted, namely:—
"10A. Transfer of immovable property belonging to enemy.—(1) Where the Custodian proposes to sell any enemy immovable property vested in him, as referred to in section 8, to any person, he may on receipt of the sale proceeds4 of such property, issue a certificate of sale in favour of such person and such certificate of sale shall, notwithstanding the fact that the original title deeds of the property 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.".
7. Amendment of section 11.—In section 11 of the principal Act, after sub-section (2), the following sub-section shall be inserted, namely :—
"(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) requiring 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.".
8. Amendment of section 17.—In section 17 of the principal Act, in sub-section (1), for the words "two per centum", at both the places where they occur, the words "five per centum" shall be substituted.
9. Insertion of new section 18A.—On and from the date of commencement of the principal Act, after section 18, the following section shall be inserted and shall be deemed to have been inserted, namely:—
"18A. Income not liable to be returned.—Any income received in respect of the enemy property by the Custodian shall not, notwithstanding that5 such property had been divested or transferred to any other person, be returned or liable to be returned to such person or any other person unless so directed by order, by the Central Government.".
10. Insertion of new Sections 18B and 18C.—After section 18A of the principal Act,[as so inserted by section 9 of this Ordiance], the following sections shall be inserted, namely:—
"18B. Bar of jurisdiction of courts in matters of divesting.—No court shall have jurisdiction to order divestment from the Custodian of enemy property vested in him under this Act or direct the Central Government to divest such property from the Custodian.
Explanation.—For the removal of doubts, it is hereby declared that the courts shall have jurisdiction to adjudicate whether the property claimed to be vested in the Custodian is an enemy property or not.
18C. Disposal of enemy property vested in custodian by Central Government.— The Central Government may, by general or special order, direct that any or all enemy property vested in the Custodian under this Act shall be sold or disposed off in such manner as may be prescribed.".
11. Amendment of section 20.—In section 20 of the principal Act, in sub-section (3), for the words "five hundred rupees", the words "ten thousand rupees" shall be substituted.
12. Amendment of section 23.—In section 23 of the principal Act, in sub-section (2), after clause (d), the following clause shall be inserted, namely:—
"(da) the manner of sale or disposal of the enemy property vested in the Custodian under section 18 C;".
13. Insertion of new section 26.—After section 25 of the principal Act, the following section shall be inserted, namely:—
"26. Validation.—Notwithstanding anything contained in any judgement, decree or order of any court, tribunal or other authority,—
(a) the provisions of this Act, as amended by the Enemy Property (Amendment and Validation) Ordinance, 2010, shall have and shall be deemed always 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;
6(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) Ordinance, 2010, 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 or authority 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) Ordinance, 2010, and such enemy property shall continue to vest in the Custodian under section 5 of this Act, as amended by the aforeasid Ordiance, as 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) Ordinance, 2010, shall be deemed to be null and void and notwithstanding such transfer, continue to vest in the Custodian under this Act.". 14. Amendment of Act 40 of 1971.—In the Public Premises (Eviction of Unauthorised Occupants) Act, 1971,—
(a) in section 2, in clause (e), after sub-clause (3), the following sub-clause shall be inserted, namely:—
"(4) any premises of the enemy property as defined in clause (c) of section 2 of Enemy Property Act, 1968 (34 of 1968);
(b) in section 3, in clause (a),—
(i) in the second proviso, the word "and" shall be omitted;
7(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 (34 of 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 Custodian, Deputy Custodian and Assistant Custodian under section 3 of the Enemy Property Act, 1968.".
PRATIBHA DEVISINGH PATIL,