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'High Chaparral': No relief from National Land Code

CH Ong | Jun 29, 09 6:39pm

I refer to the Malaysiakini report Villagers pin last hopes on state gov't. The article states the following: 1.‘The villagers wanted Lim to exercise his chief ministerial power under Section 76 of the National Land Code to save their village from the developers.’ 2.‘Sugumaran said the villagers wanted the state government to use Section 116 of the National Land Code to stop the developer from entering the village to demolish their homes. The section states that the developer needed a permit from the state authorities to demolish the village.’ To better understand what has been written I looked up the relevant sections of the National Land Code (NLC) and this is my understanding as a layman: Section 76 of the NLC (Subject Title : Meaning of Alienation) This section explains and defines the meaning of alienation of state land. It defines the state authority's power to alienate state land but I do not see any mention of any power by the state authority to retract an earlier legal alienation of state land. I therefore cannot understand how Chief Minister Lim Guan Eng can make use of Section 76 NLC to ‘save’ the village from the current legal land owner/developer. Sugumaran should have been asked to elaborate. Section 116 of the NLC (Subject Title : Implied conditions affecting land subject to the category 'building’) This section imposes conditions on all alienated land in addition to those conditions expressly stated on the document of title. Sugumaran said ‘the villagers wanted the state government to use Section 116' because ‘this section states that the developer needed a permit from the state authorities to demolish the village.’ It appears to me that the villagers, in their desperation, had lifted a few words out of context from Section 116(1)(d) to justify their proposal. However, when I read the entire Section 116, especially Section 116(1)(a), my understanding is the exact opposite. In order to comply with Section 116 of the NLC, the registered land owner may have no choice but to demolish all the existing buildings, depending on what are the express conditions imposed on the land title. Unfortunately such conditions have not been published in the above report. To illustrate, let's use as an example a land title under the ‘bangunan’ category, with the express condition of ‘bangunan kedai’. Assume also that there exists on the land only one existing building which is not a ‘bangunan kedai’. To comply with Section 116 of the NLC, the registered land owner must now build a ‘bangunan kedai’ within the stipulated time and subject to the building plans being approved by the local government authority. In order to build the ‘bangunan kedai’ the land owner will have no choice but to demolish the existing building which is not a ‘bangunan kedai’. When Section 116(1)(d) states that ‘no such building shall be demolished, altered or extended without the prior consent of the appropriate authority’, my understanding, after reading the entire section 116, is that the ‘such building’ refers only to any existing building that already complies with Section 116(1)(a) and 116(4), and not to any existing building that does not comply with the said section. In the case of the 'Tamil High Chaparral' land, if the registered land owner has already obtained an approved development order given based on the expressed and implied conditions of the title, I cannot imagine how the state government can stop the land owner from demolishing the existing houses if such an act is necessary to comply with the approved development order. On the other hand if no approval has been given yet, the state government can always sabotage the land owner by taking forever to approve the application. As far as I am aware, the law only says that applications that comply with all the planning condition shall be approved, but there is no stipulation as to how soon such approval must be given. But surely we do not want the Penang Pakatan Rakyat government to emulate such BN tactics as sabotage? The end of the report also quoted Sugumaran as having made this statement : ‘If there is a political will, there is an administrative way to cancel it’. Is it possible that there are unscrupulous people including opportunistic politicians who are misleading the villagers and giving them false hopes that it is very easy for the state government to take back the land which had been legally alienated without having to pay adequate compensation at current market value? To the sympathisers of the villagers, it may be worth noting that if it was that easy for the state government to simply acquire the 'Tamil High Chaparral' land on the cheap or for free to give it to the villagers, then it will also be equally easy for the state government to acquire any other citizen's land with ‘political will’ and by using some ‘administrative way’, to use Sugumaran's words. Then no Malaysian property owner will be able to feel secure with the tenure of their property. I am not sure if Malaysians are funny or just plain stupid. For 50 years they continuously voted in the same government of their choice. When they finally voted for a change of government, they expect the new government to commit illegal acts in order to undo what the previous government had done.