Kerala Gazette No. 42 dated 23rd October 2018

PART I

Section i

GOVERNMENT OF KERALA

Law (Legislation-Publication) Department

NOTIFICATION

No. 21888/Leg.Pbn 2/2017/Law.

Dated, Thiruvananthapuram, 24th October, 2017.

The following Act of Parliament published in the Gazette of India, Extraordinary,

Part II, Section I dated the 14thday of March, 2017 is hereby republished for general

information. The Bill as passed by the Houses of Parliament received the assent of

the President of India on the 14th day of March, 2017.

By order of the Governor,

B. G. HARINDRANATH,

Law Secretary.

G. 2/2018/DTP(3).

MINISTRY OF LAW AND JUSTICE

(Legislative Department)

New Delhi, the 14th March, 2017/Phalguna 23, 1938 (Saka).

The following Act of Parliament received the assent of the President on the

14th March, 2017 and is hereby published for general information:—

THE ENEMY PROPERTY (AMENDMENT AND VALIDATION) ACT, 2017

(ACT NO. 3 OF 2017)

ACT

[14th March, 2017.]

further to amend the Enemy Property Act, 1968 and the Public Premises

(Eviction of Unauthorised Occupants) Act, 1971.

BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India

as follows:—

1. Short title and commencement.—(1) This Act may be called the Enemy

Property (Amendment and Validation) Act, 2017.

(2) Save as otherwise provided in this Act, it shall be deemed to have

come into force on the 7th day of January, 2016.

2. Amendment of section 2.—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 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 citizen of India or the citizen 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;

(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

interest in, or any benefit arising out of, such property.’.

3. Amendment of section 5.—On and from the date of commencement of

the principal Act, in section 5, after sub-section (2), the following shall be

inserted, and shall always 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, 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 interest in, or any

benefit arising out of, such property vested in him under this Act.’.

4. 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 this Act and issue a certificate to this effect and such certificate

shall be the evidence of the facts stated therein.”.

5. Insertion of new section 5B.—On and from the date of commencement of the

principal Act, after section 5A (as so inserted by section 4 of this Act), the following

shall be inserted and shall always be deemed to have been inserted, namely:—

‘5B. Law of succession or any custom or usage not to apply to enemy

property.—Nothing contained in any law for the time being in force relating to

succession or any custom or usage governing succession of property shall

apply in relation to the enemy property under this Act and no person (including

his legal heir and successor) shall have any right and shall be deemed not to

have any right (including all rights, titles and interests or any benefit arising

out of such property) in relation to such 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. Amendment of section 6.—On and from the date of commencement of the

principal Act, for section 6 of the principal Act, the following section shall be

substituted and shall always be deemed to have been substituted, namely:—

“6. Prohibition to transfer any property vested in Custodian by an

enemy, enemy subject or enemy firm.—(1) No enemy or enemy subject or

enemy firm shall have any right and shall never be deemed to have any right

to transfer any property vested in the Custodian under this Act, whether

before or after the commencement of this Act and any transfer of such property

shall be void and shall always be deemed to have been void.

(2) Where any property vested in the Custodian under this Act had been

transferred, before the commencement of the Enemy Property (Amendment

and Validation) Act, 2017, by an enemy or enemy subject or enemy firm and

such transfer has been declared, by an order, made by the Central Government,

to be void, and the property had been vested or deemed to have been vested

in the Custodian [by virtue of the said order made under section 6, as it stood

before its substitution by section 6 of the Enemy Property (Amendment and

Validation) Act, 2017] 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 or

any benefit arising out of such property) over the said property vested or

deemed to have been vested in the Custodian.”.

7. Amendment of section 8.—In section 8 of the principal Act,—

(i) on and from the date of commencement of the principal Act, for

sub-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. Insertion of new section 8A.—After section 8 of the principal Act, the

following section shall be inserted, namely:—

“8A. Sale of property by Custodian.—(1) Notwithstanding anything

contained in any judgment, decree or order of any court, tribunal or other

authority or any law for the time being in force, the Custodian may, within such

time as may be specified by the Central Government in this behalf, dispose of

whether by sale or otherwise, as the case may be, with 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) Act, 2017 in accordance with the provisions of

this Act, as amended by the Enemy Property (Amendment and Validation)

Act, 2017.

(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.

(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. Insertion of new section 10A.—After section 10 of the principal Act, the

following section shall be inserted, namely:—

“10A. Power to issue certificate of sale.—(1) Where the Custodian

proposes to sell any enemy immovable property vested in him, to any person,

he may on receipt of the sale proceeds 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.”.

10. 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.”.

11. 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.

12. Substitution of new section for section 18.—For section 18 of the principal

Act, the following section shall be substituted, namely:—

“18. Transfer of property vested as enemy property in certain cases.—

The Central Government may, on receipt of a representation from a person,

aggrieved by an order vesting a property as enemy property in the Custodian

within a period of thirty days from the date of receipt of such order or from the

date of its publication in the Official Gazette, whichever is earlier and after

giving a reasonable opportunity of being heard, if it is of the opinion that any

enemy property vested in the Custodian under this Act and remaining with him

was not an enemy 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.”.

13. Insertion of new section 18A.—On and from the date of commencement of

the principal Act, after section 18 (as so substituted by section 12 of this Act), the

following section shall be inserted and shall always 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 that such

property had been transferred by way of sale 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.”.

14. Insertion of new sections 18B and 18C.—After section 18A of the principal

Act, (as so inserted by section 13 of this Act), the following sections shall be inserted,

namely:—

“18B. Exclusion of jurisdiction of civil courts.—Save as otherwise

provided in this Act, no civil court or authority shall have jurisdiction to

entertain^’ any suit or proceedings in respect of any property, subject matter of

this Act, as amended by the Enemy Property (Amendment and Validation) Act,

2017”, or any action taken by the Central Government or the Custodian in this

regard.

18C. Appeal to High Court.—Any person aggrieved by an order of the

Central Government under 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 is 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.”.

15. Amendment of section 20.—In section 20 of the principal Act, for the words

“five hundred rupees” at both the places where they occur, the words “ten thousand

rupees” shall be substituted.

G. 2/2018/DTP(3).

16. Amendment of section 22.—On and from the date of commencement of the

principal Act, in 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.

17. Insertion of new section 22A.—After section 22 of the principal Act, the

following section shall be inserted and shall always be deemed to have been inserted

with effect from the 2nd July, 2010, namely:—

“22A. Validation.—Notwithstanding anything contained in any

judgment, 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) Act, 2017, 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 Act, 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)

Act, 2017, 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 Act, 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) Act, 2017, and such enemy

property shall continue to vest in the Custodian under section 5 of this

Act, as amended by the aforesaid Act, as the said section, as amended

by the aforesaid Act 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) Act, 2017, shall be deemed to be null and void and

notwithstanding such transfer, continue to vest in the Custodian under

this Act.”.

18. Amendment of section 23.—In section 23 of the principal Act, in sub-section

(2), clause (d) shall be omitted.

19. Power to remove difficulties.—(1) If any difficulty arises in giving effect to

the provisions of the principal Act, as amended by the Enemy Property (Amendment

and Validation) Act, 2017, 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) Act, 2017, or

the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (40 of 1971) as

amended by the Enemy Property (Amendment and Validation) Act, 2017, 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 years from the date on which the Enemy Property (Amendment and Validation)

Bill, 2017, replacing the Enemy Property (Amendment and Validation) Fifth Ordinance,

2016 (Ord. 8 of 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. Amendment of sections 2 and 3 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 the 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;

(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.”.

21. Savings.—Notwithstanding the cessation of the operation of the Enemy

Property (Amendment and Validation) Ordinance, 2010 (Ord. 4 of 2010) anything

done or any action taken under the Enemy Property Act, 1968 (34 of 1968), or the

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971), as

amended by the Enemy Property (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 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.

22. Repeal and savings.—(1) The Enemy Property (Amendment and Validation)

Fifth Ordinance, 2016 (Ord. 8 of 2016) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under

the Enemy Property Act, 1968 (34 of 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 Act.

DR. G. NARAYANA RAJU,

Secretary to the Govt. of India.