The truth about Petaling Jaya land

Published by Mak Khuin Weng K11J, Tiara Damansara, Jalan 17/1, 46400 Petaling Jaya. Email: asako_mak@hotmail.com 2012 Mak Khuin Weng All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.

Cover design & Photographs by Victor Chin Layout design by Janice Cheong
Printed by Vinlin Press Sdn Bhd 2, Jalan Meranti Permai 1, Meranti Permai Industrial Park, Batu 15, Jalan Puchong, 47100 Puchong, Selangor, Malaysia.

This book is dedicated to my late mother. Her strength, generosity, compassion, wisdom and love was what kept me from falling in with the wrong crowd.

Contents

Why Petaling Jaya is freehold

A little history 3 National Land Code and Cap 138 5 The founding of Petaling Jaya 6 Land titles not issued 6 Remedial action 8 Leasehold title discrepancies 9 What next? 11 Questions arising 12

This is one of the many Welcome to Petaling Jaya signs located at the townships borders. There is more to this township than meets the eye.

Why Petaling Jaya is freehold

I FIRST publicly raised the issue that Petaling Jaya was freehold land, and explained why, in October 2010. The Selangor government chose not to respond to the issue. This lack of acknowledgement was no different from when I sought to start an internal discussion in the state government a year earlier.
It is this lack of acknowledgement that a problem exists and the states inaction despite the evidence in hand that has spurred me to write this book. It is my hope that by providing in this book the facts, legal documentation and arguments I have collected over the years, Petaling Jaya residents can decide if they will continue to pay quit rent and assessment for their properties. It is also my hope that this book will encourage at least some Petaling Jaya residents to fight for their rights because the evidence I will provide point to a legal problem over the current status of Petaling Jaya land titles.

For an abridged version of my arguments, please read my original article on this issue, Leasehold or freehold: Whats the truth about Petaling Jaya land?, which appeared in The Nut Graph and is reproduced on pages 27 30. It offers a shorter layperson explanation of why residents deserve their freehold land titles.

A little history
Before I proceed with a more detailed version of the land title issue, lets establish a few historical facts to help us understand the complexity of the issue. Prior to World War 2, the Federated Malay States were governed under three different administrative systems with their respective administrative laws. When the British returned after World War 2, they needed to reduce the cost of administrating the peninsula and mooted for a unified administrative system. Hence, the British introduced the Malayan Union on 1 April 1946. Because there was much opposition to the Malayan Union, it was soon replaced with the Federation of Malaya on 1 February 1948, which provided the structure for our present day government.

 This new government structure introduced several legal problems as existing laws were written for the Federated Malay States. For example, the Land Code FMS Cap 138 (Cap 138) recognised the British Resident as the authorised signatory for many Cap 138 processes. However, the government structure for the Federation had replaced the position of the British Resident with the post of Menteri Besar, making it problematic to uphold and adhere to this law. This period between the formation of the Federation of Malaya and the formulation of laws in Parliament to replace old laws such as Cap 138 is known as the transition period. Petaling Jaya was founded in 1952, during the transition period after Malaya became a federation in 1948 and before the National Land Code was passed by Parliament in 1965. This means that between the time Malaya became a federation and the National Land Code was put in place, there was no proper law to govern land matters. These underlying factors were partly why the founding of Petaling Jaya and the issuance of land titles to original property buyers were extremely messy and complicated. The good thing was our founding leaders were not oblivious to land title issues that resulted from this transitional period. Hence, they ensured that provisions were inserted in the National Land Code to deal with them. We will examine these provisions below.

A house in Section 1 Petaling Jaya that was built in the 1950s and remains till this day. A few houses in Petaling Jaya have not been renovated because the owners cannot afford to pay the premium to renew their leasehold titles.

National Land Code and Cap 138

Since the National Land Code is the present law governing land matters, let us examine what the laws say about land matters that occurred before the National Land Code was established.

Section 4 of the National Land Code states that nothing done under any previous land law would be invalidated by the present law.
So, we have a saving clause right off the bat that says that anything done under the previous land law still applies.

Section 14 of the National Land Code allows a state government to come up with specific rules to deal with land matters.
Then we have a clause that allows the state government to come up with rules to deal with specific issues. The Selangor government enacted the Selangor Land Rules under this section of the law. The Selangor Land Rules have specific clauses on how to deal with land matters that were transacted prior to the National Land Code.

Section 56 of the Selangor Land Rules states that for land that has been approved for alienation under a previous land law, but has not in fact been so alienated, the Registrar may prepare and register the document of title under the previous land law.
So again, we have an instruction that any land transaction that was done before 1965 should continue to use the previous land law and have the land titles issued under the previous law. Now that we have established the fact that land matters governing Petaling Jaya ought to use the previous land law of Cap 138, lets go through the historical records of what went wrong.

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The founding of Petaling Jaya

Historical records show that the site for Petaling Jaya was originally proposed in 1952 on land that belonged to Petaling Estate2. The first few houses were built in 19533. The then Sultan of Selangor, Almarhum Sir Hisamuddin Alam Shah ibni Almarhum Sultan Alaiddin Sulaiman Shah, made a decree on 12 March 19554 to declare Petaling Jaya a town. Petaling Jaya was subsequently gazetted5 as a town on 7 April 1955 with a survey map6 showing the townships boundaries. From this chronology of events, we can deduce that houses were built before the area was declared a town. This is an important point as we will see below.

Land titles not issued

In a letter to the Petaling Jaya Administrator dated 19 October 19557, the Kuala Lumpur District Officer wrote about the administrative problems the declaration would cause.
I think it would be desirable if Petaling Jaya is declared to be town land and will consider how best that can be done. 2. You will appreciate that by declaring the land as town land under Section 6 of the Land Code, conditions as to cultivation of the land become inoperative (emphasis mine). This is a point which we must consider if it is intended to include within the town area land not in possession of the Authority.
4 5
2 3 6 7

See map on p. 31 (attachment A) See certificate of fitness on p. 32-34 (attachment B1 B3) See gazette on p. 34 (attachment C) This declaration of Petaling Jaya as a town is still recognised under Section 442 of the National Land Code. See p. 35-36 (attachment D1 D2) Close up of map on 37 and full map on p. 38 (attachment E1 E2) See letter on p. 39 (attachment F)

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3. The second point and possibly more difficult to deal with is that all land titles for alienated land would have to be recalled as lot numbers would be revised (emphasis mine). This involves alterations to the 8-inch standard sheets of the Survey Department and is quite a formidable operation. It is not one that can be done very speedily but the first request is to define the limits of the area to be declared town land. Perhaps you would like to make a suggestion to this point.

In paragraph two, the district officer explained that once an area was declared town land, it could no longer be legally farmed. The entire area demarcated as Petaling Jaya was still very much an estate at that time with plantation crops. In paragraph three, the district officer highlighted the need to survey the privately-owned land in Petaling Jaya so that land titles could be issued. Under Cap 138, land cannot be legally sold without a survey first being done8. A survey must also be done before any land title can be issued. And since the Survey Department had not yet conducted such a survey as evidenced above, this meant that buyers were not given land titles to their property at the time of their purchase when the town was founded. This was problematic because Cap 138 prohibits the land from being occupied until the land title is given9. The Resident could make an exception and give express permission to occupy the land, provided the land title was being processed. However, do recall that the position of Resident was replaced by the Menteri Besar in the new federation government and no such permission was given in any case. As further proof that the land titles were not in the hands of house buyers, a 26 January 1956 Auditor General Report also
8 9

Section 22 of Cap 138. Section 18 of Cap 138.

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highlighted the issue10. The report stated that the house buyers documents were not land titles, and that these documents were stamped with house addresses instead of the lot numbers that the Survey Department was to have assigned. The Auditor Generals Report also stated that the Petaling Jaya Authority was the developer of the township and was responsible for selling the houses under a hire purchase scheme.

A scenic view of Menara Majestic, which is built on the site where the first cinema Majestic Cinema was located.

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See Auditor Generals report on p. 32-33 (attachment G1 G2)

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Remedial action
Several government departments met on 13 July 1957 to discuss how best to resolve the fact that Petaling Jaya house owners did not have land titles. Although the meeting was held more than a year after the Auditor Generals Report, it provided specific instructions on what needed to be done to resolve the problem. The minutes from that inter-department meeting were in fact made into a memorandum. Present at this meeting was TAL Concannon, the Federal Town and Country Planning Department director from 1956 to 1957 who was also the chief planner for Petaling Jaya11. Representatives from the Petaling Jaya Authority, the District Office of Kuala Lumpur and the Selangor Survey Department were also present. After discussing the history of the townships founding, the Survey Department deputy director Che Ahmad Daud explained the reason the town was not surveyed. The Survey Department could not undertake any survey work unless a plan was provided which certified that the scheme complied with town planning provisions.
Mr Concannon then read Sections 50 and 101 of the Cap 138 which Che Ahmad agreed were the Sections to which he was referring. After a good deal of discussion, it was agreed that, in future, the Survey Department would accept an R/S (requisition of survey) plan prepared by the (Petaling Jaya) Authority provided such plan was certified as being in accordance with a town planning layout as required by law, and gave sufficient information for the Survey Department to carry out their survey for title purposes (emphases mine).

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As cited in the Federal Town and Country Planning Department Annual Report 2007.

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The memorandum affirmed that the Survey Department would proceed with surveying the individual house lots using Sections 50 and 101 of Cap 138. This would then enable the land titles for the individual houses in Petaling Jaya to be issued. Survey plans from the Selangor Survey Department that were done between 1958 and 1962 for Sections 1 to 4 of Petaling Jaya showed the department completed its task. This proves that there were clearly instructions to issue the land titles under Cap 138. The Survey Department did do its job, as there are surveys for Sections 1 to 4 in the late 1950s to the 1960s12.

12

See sample survey on p. 42 (Attachment H)

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Lembaga Bandaran Petaling Jaya (LBPJ) was formed in 1964 and took over the duties of the Petaling Jaya Authority. This stone chair located in the Section 1 Petaling Jaya open field is one of the few that remain in the area, slowly decaying away amidst pieces of rubbish.

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Leasehold title discrepancies

The historical documents have established what transpired and what the government sought to do to correct the problems which arose. The National Land Code has instructions to use Cap 138 for land transactions before 1965 as I have explained earlier. And there is enough evidence to show that the state government was meant to have issued land titles under Cap 138. And yet, inexplicably, the Selangor government chose to issue leasehold land titles under the National Land Code to property buyers instead. Why the Selangor government decided to do this remains something they have to answer for. For now, the state wont even acknowledge that the issue exists. On top of that, the Selangor government needs to explain how it decided that the titles would be leasehold instead of freehold. The fact is, land in Petaling Jaya should be freehold because estate land under the British government was freehold. The whole area was private land under the ownership of Petaling Estate, and was subsequently sold to the pioneer residents of Petaling Jaya. Hence, the land titles should have been freehold. And once land is freehold, meaning it is privately owned, it remains freehold. In order for the state government to rightfully issue leasehold titles, it would have had to own the land before leasing it to buyers. That could only have happened if the government had bought the land from the pioneer residents of Petaling Jaya back in the 1950s and 1960s to make it state land. But this did not happen. There is yet another aspect to the problem. For a land title to be valid, all the information on it must be filled out correctly. Unfortunately, this has not always been the case. Let us examine just two different leasehold land titles that were issued by the Selangor government that I have found in the course of my research.

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 In the first example, the land title was issued on 17 July 196413 under the National Land Code. How could the National Land Code be used to issue a land title in 1964 when the Code was only put in place in 1965? The second example deals with conflicting dates. The land title has a date of registry column14. This reflects the date when the state government sold the piece of land to a buyer. In this second example, this date of registry is listed as 9 June 1970. But there is also a column for date of first alienation on the land title which is listed as 3 December 1959. This column also refers to the first time the government sold the piece of land to a buyer. How can there be two dates for when the land was sold to the same buyer? Such discrepancies invalidate these leasehold land titles.

13 14

See sample land title on p. 43 (attachment I) See sample land title on p. 44-45 (attachment J1 J2)

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The Jalan Templar / Jalan Othman junction, which used to be a roundabout, is the starting point of Petaling Jaya. Jalan Templar and Jalan Othman were previously known simply as Road 1 and Road 2 respectively.

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What next?
Lets recap everything that I have explained thus far. The first houses in Petaling Jaya were built around 1952 or 1953. Petaling Jaya was only declared a town in 1955. These houses did not have any land titles because the surveys for the new township had not yet been done. To fix the problem, the Survey Department was tasked with surveying the town to enable land titles to be issued under Cap 138. These surveys were done. But instead of issuing land titles under the previous land law, the Selangor government issued National Land Code leasehold titles for Sections 1 to 4, and later Sections 5 to 16, of Petaling Jaya which were all sold and developed before 1965 when the National Land Code came into force. To compound the problem, many of these leasehold titles have unexplained discrepancies which, from the looks of it, would invalidate them. So what are we left with? We are left with a situation where the land titles under the old land law were not issued to the original buyers as instructed. And on top of that, the leasehold land titles that the Selangor government issued are suspect. Since these leasehold land titles are invalid, there can be no basis to charge the house owner quit rent and assessment, as these rates are all derived from the land title. That means very simply that the quit rent and assessment charges that have been collected all these years were illegally gotten. What can be done about this situation? For certain, it would be a needlessly messy and gargantuan task to return all the illegallycollected monies to house buyers. For one, these houses might have been sold many times over and it would not be clear who was owed what. My suggestion is that it would be more prudent and pragmatic if home owners past and present forfeited their previous payments and in exchange, they are issued freehold titles instead.

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 Is this a viable solution the Selangor government can offer? I believe it is. And even if it doesn't offer this solution, it must offer some solution rather than ignore that a legal problem exists. Ignoring the problem will not make it go away and the state government is merely opening itself up to legal challenges over quit rent and assessment fees if it continues to sidestep the issue altogether.

A view of the PJ Old Town wet market. The market was originally located where Public Bank is now situated.

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Questions arising
In this final segment, I will attempt to answer some of the more popular questions people have asked me with regards to the information I have presented.

Q: What if the original Petaling Estate land titles were leasehold to begin with? After all, you dont have a copy of the land title. A: The Selangor government is the custodian to all these records and they should be the ones producing the master land title to prove this point. In any case, even if the original land titles for Petaling Estate turns out to be leasehold, the Selangor government still has to issue land titles using the previous land law, which would make the leasehold title valid for 999 years.

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Q: My leasehold title does not say it was issued before 1965, so does that mean the land title is valid? A: Again, if the area was developed before 1965, the land title for that area must be issued under the previous land law, which is what the National Land Code stipulates. From my enquiries to the house owners, Section 1 to Section 16 of Petaling Jaya was developed before 1965. So, even if the land title has a date of issue post 1965, the fact that these areas were developed and sold to the public before 1965 means the land titles should be issued under the Land Code Cap 138. Also consider this: In order for the Selangor government to sell state land, an application must be made under the National Land Code Schedule 1 Form. This application would only be valid if there is an approval given under Schedule 2 Form of the National Land Code. All this must take place after 1 January 1966 when the National Land Code became enforceable. If these conditions are met, only then can the land title be issued under the National Land Code. So ask yourselves this question: Why would there be an application to buy the land from the Selangor government after 1966 by a house buyer if the house was already paid for, built and occupied in the 1950s and early 1960s?

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Some of the houses in Section 5 Petaling Jaya have been issued freehold land titles yet others are leasehold. Why is there such a discrepancy?

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The Taman Jaya Lake used to be a tin mine, as were some parts of Section 14 and Section 8 in Petaling Jaya.

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Leasehold or freehold: Whats the truth about Petaling Jaya land? 11 October 2010 The Nut Graph: http://www.thenutgraph.com/leasehold-freehold/ LEASEHOLD titles in Petaling Jaya (PJ) are a controversial topic. The expiration date of the lease and the high premium that needs to be paid to the Selangor government has caused revival of much of PJ Old Town, comprising Sections 1 to 4, to stagnate. In my research into the issue, I have found evidence to show that leasehold titles in these areas may very well be invalid, and property owners of PJ may actually be entitled to freehold titles. Various complications could arise if PJ property owners were to insist that their homes are on freehold land, but these have to be dealt with in another article. As far as this article is concerned, I will look at historical evidence that suggests that parts of old PJ have always been privately-owned land, and should therefore be under freehold titles.

Wrong land titles?

Petaling Jaya was founded in 19531 under British rule, with houses built and sold to the pioneer residents at prices ranging from $2,500 to $25,000. The town status was officially formalised in the Federation of Malaya Gazette dated 7 April 1955. This gazette, which lists the lot numbers, corresponds with the lot numbers found in a survey map of the area, which shows the land being owned by one Petaling Estate.

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 Since the whole area was private land under the ownership of Petaling Estate, and was subsequently sold to the pioneers, should not the land titles be freehold? Yet, leasehold titles were issued for many of the houses in Section 1 through 4 of PJ. In order for it to rightfully issue leasehold titles, the state government would have had to own the land before leasing it to buyers. That could only have happened if the government had bought the land from the pioneer residents of PJ back in the 1950s and 1960s to make it state land. But this did not happen. Further, the leasehold titles that the Selangor government issued contain anomalies. For one, some of the titles were issued under the National Land Code, with the date of issue listed between 1962 and 1967. However, the National Land Code was only gazetted in 1965. What then of the titles that were issued before this year? I would say that many of these titles are suspect.

What went wrong?

Recall that the privately-owned land was sold to pioneers in 1953, and subsequently gazetted as the town of Petaling Jaya under the administration of Kuala Lumpur in 1955. The gazetting of PJ was done under Section 6 of Land Code Cap 138. This Code, or Cap 138, was the law for land matters up until the National Land Code was enacted. Under the rules prescribed in Cap 138, when a town is declared over an area, the land titles must be amalgamated and sub-divided according to the town plan. This means that all the land lot numbers that were shown in the survey plan of Petaling Estate would have to be combined to form one huge PJ town. The individual plots of land that pioneers bought would have to be sub-divided and given new lot numbers. In other

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words, the land lots of the newly gazetted town would have to be redrawn and redivided. The job of assigning lot numbers and surveying the individual pieces of land was to be done by the director of survey. Only after this exercise was completed could the final titles be issued. The actual development and sale of the houses to PJs pioneer residents happened faster than the British government could cope with at the time, as shown in a letter dated 19 Oct 1955.5 In this letter, the then Kuala Lumpur district officer admitted that it was a formidable task to survey Petaling Jaya. Surveys were done for some areas, as shown in survey plans from 1956. With such a short time to go before Malaya would achieve independence, the British-controlled government could not complete the land survey before the independent Malayan government took over. What happened post-independence is speculation, but clearly the job of issuing final freehold titles to the pioneers of PJ was not done.

Old law still applies

Since all this happened so long ago under different regulations and a different government, can the law then the Land Code Cap 138 still be applied, and can it be used to correct the mistake made? Section 4(1) of the newer law, the National Land Code 1965, states: Nothing in this Act shall affect the past operation of, or anything done under, any previous land law or, so far as they relate to land, the provisions of any other law passed before the commencement of this Act.

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 Therefore, Cap 138, the law that was used to produce the land titles, is still applicable when it comes to correcting a wrong. To the argument that there is a statute of limitation on the liability of the state government or to correct the wrong that was done, Section 43 of Cap 138 states that there is no limitation by any law on matters pertaining to land. This argument is further strengthened by Section 341 of the National Land Code, which states: Adverse possession of land for any length of time whatsoever shall not constitute a bar to the bringing of any action for the recovery thereof by the proprietor or any person or body entitled to an interest therein, and accordingly, the Limitation Act 1953, shall in no circumstances operate to extinguish any title to, or interest in, land.

What should be done

This report was compiled over a period of almost two years, but it is by no means complete, as there are many other supportive evidences and arguments that I have not included to ensure brevity. But what I have presented is enough for now to show that some land titles in Petaling Jaya have been wrongly issued, and some might not even be valid. In short, some landowners have long been denied their dues. The right thing to do would be for the state government to finish the survey started by the British, and issue the final freehold titles according to that survey. KW Mak wrote this piece independently of his role as a MBPJ councillor, as land matters are outside the jurisdiction of the local council.

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Attachment A

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Attachment B1

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Attachment B2

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Attachment B3

Attachment C

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Attachment D1

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Attachment D2

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Attachment E1

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Attachment E2

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Attachment F

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Attachment G1

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Attachment G2

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Attachment H

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Attachment I

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Attachment J1

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Attachment J2

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Acknowledgement This book would not have been possible without the encouragement and support of the following persons: Siti Aishah Maaruf, Victor Chin, Syed Jalal, Dr Muthukumarasamy and the Section 4 Rukun Tetangga committee.

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