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Provisions in Enemy Property Ordinance against principle of natural justice, settled laws: Legal expert

21 Jan 2017 12:01 PM, IST


Provisions in Enemy Property Ordinance against principle of natural justice, settled laws: Legal expert
Adv. Niraj Gupta

Ghazanfar Abbas, IndiaTomorrow.net,

New Delhi, Jan 21: In an exclusive interview with IndiaTomorrow.net, senior Supreme Court lawyer Adv. Niraj Gupta spoke about the legal and social perspectives of Enemy Property Ordinance 2016. He said the proposed amendments in Enemy Property Act 1968 are against the principle of natural justice as well as the settled laws by courts.

 

Some Excerpts from the interview:

 

Q: What are the amendments that govt. has made in Enemy Property Act 1968 and what are its effects?

Adv. Niraj Gupta: The ordinance which the government has brought in respect to Enemy Property law is to amend the Enemy Property Act 1968 with effect from 1968. Some important aspects of the ordinance are here:

 

1-As per the provisions in the ordinance, the vesting under the enemy property bill will be permanent from 1968 though the provision earlier was the vesting is only for the purpose of reservation, management and control. By way of this operation, the government is trying to take away the fundamental right of those people who had right between 1968 and 1979.

 

2-The government has stopped the customary rights and rights to inherit the property which is also not correct since when somebody dies the estate is to be inherited by his or her legal heirs or successors.

 

3-Any properties might have been transferred between 1968 to 2016-17, those transfers will be null and void without any opportunity of hearing the person or without any notice to that person which is completely against the principle of natural justice as well as the settled law by the courts.

 

The definition itself has been amended retrospectively where now even Indian citizen will also be covered under the definition of enemy which is very objectionable. You can't treat Indian citizen as enemy of the country.

 

Q- Has the Govt. barred affected persons from approaching the court?

Adv. Niraj Gupta: Under section 18(B) of this new ordinance, person will be barred from approaching the civil courts. The only remedy given under this new amendment is to approach the central government and if there is an order by the central government under section 18.

 

If the person has bought the properties between 1968 to 2016 from a person who had right to transfer the properties, the buyer has paid the full considerations, stamp duty to the government, he will lose the property without any fault and he is not given any opportunity of hearing or any recourse to approach the civil courts.

 

The Central government can't adjudicate upon the civil matters for which only the civil courts are competent. They can't bar in any case because articles 226 and 32 are there to protect, the government has no right to take away those constitutional provisions but the question is there should be a proper adjudication at the initial stage because under articles 226 and 32, whatever rights you (govt.) is giving, the facts can't be looked into by high courts or Supreme court. And the courts are so burdened.

 

Then the appeal to high court under section 18(B) is not a proper remedy because unless there is a proper adjudication where is the question of an appeal. All these aspects are very clinching and against the constitution and law as well.

 

Q- Will this ordinance affect only religious minorities particularly Muslims?

Adv. Niraj Gupta: This is not only against Muslims or minorities. The large chunk of people whoever might have some interest in those properties will be effected. Suppose a property is sold legally by a legal heir of an enemy or a person who was competent to sell the property which was an enemy property, the buyer who is a bona fide buyer paid the full considerations and stamp duty; now the government is taking away the rights of a buyer without giving any opportunity of hearing or notice.

 

Q- Is re-promulgation of an ordinance legally right?

Adv. Niraj Gupta: Even if we leave the first ordinance that came in 2010, in 2016 this is the fifth ordinance in line. The government does not have any power to re-promulgate an ordinance as a bench of seven judges of Supreme Court has decided in Krishna Kumar case, where they have categorically said that re-promulgation of an ordinance is fraud on constitution. The power to promulgate ordinance is for urgent situations and can only be exercised when the houses of the Parliament are not is sessions. In view of even that judgment all these ordinances have no values, hence should be withdrawn by the government immediately or should be stepped on by the court.




Keywords : Enemy Property Ordinance ,   Supreme Court ,   Adv. Niraj Gupta  




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