Case of a severe land malady

By Gunasegaram (The Star)

The cheap sale of the ‘High Chaparral’ is a clear example of how land is very questionably alienated to the detriment of those occupying them.

AT THE time of writing, the bulldozers were standing ready to demolish the over-150-year-old Kampung Buah Pala residential area which is occupied by descendents of Indian indentured labourers, who, among other things, graze cattle there.

The 40-odd families are making a last-ditch stand against the developers Numestro Venture (P) Sdn Bhd who are in joint venture with landowners Koperasi Pegawai Kerajaan Pulau Pinang.

The train of events indicates a sorry tale of unfair deprivation of their land through questionable means although many, including Chief Minister Lim Guan Eng, dismiss the residents as a mercenary lot holding out for higher prices.

That no one, including the new Penang state government, whose members promised to stop the development if they came to power, could do anything to help the residents is a real pity and reflects poorly on the processes by which land is alienated and allocated in our country.

Kampung Buah Pala raises a series of questions the answers to which will pin the blame squarely on those responsible, establish clearly whether there was a breach of law and by whom, and lead to a more equitable solution which will take into account the fact that the current residents can trace their ancestry on the land back to at least five generations.

It is useful to trace the events that led to this standoff. We have depended on press reports. In 2004 and 2005, the Penang state executive council then approved the sale of the 2ha-plus land at a premium of RM20 a sq ft or RM6.42mil to the Penang government officers’ cooperative.

This was halved to RM10 per sq ft or RM3.21mil in 2007. The current value of the land is estimated at as much as RM40mil, over a dozen times the price the state government got. This implies that the land was allocated at a tiny fraction of the market value.

Question 1: Why was it allocated so cheaply and who was responsible?

Apparently, the cooperative entered into a joint-venture with Nusmetro to develop the land into high-end luxury condominiums.

The villagers, who trace their ancestry on the land back 150-200 years then sued the cooperative and the developers, claiming that they were given the right to stay there. Their ancestors were indentured labourers brought in by the East India Company to work for the Brown Estate.

The owner and employer, Helen Margaret Brown, settled them in separate plots of land with space to rear cows and goats, and to plant fruit trees and the land became categorised as a housing trust, the villagers maintained.

Question 2: Why were the villagers not offered the right to purchase the land at the same price the cooperative paid when it is beyond dispute that the villagers and their ancestors have stayed in the same area for 150-200 years?

The villagers were not so lucky when they took their case to court. Initially, the High Court ruled in their favour last year but in May it was overturned by the Court of Appeal. They took their case to the Federal Court but lost it in June.

They have now applied for a revision of the Federal Court judgment that ruled against them and the application is fixed for mention on Aug 18, according to press reports.

Records at the Companies Commission indicate that Nusmetro is a dormant company with an issued capital of a mere RM250,000. It is in turn majority-owned by a company called Asia Link-Up (240,000 of the 250,000 shares), another dormant company.

Question 3: Why is the Penang government officers’ cooperative going into joint venture to build high-end condominiums with companies which clearly have no ability to do so? Who is responsible for this?

Residents are now questioning the Penang state government’s failure to invoke Section 116 (d) of the National Land Code although the state government said a month ago that it could stop any demolition attempt at Kampung Buah Pala.

According to the clause, any building on alienated land cannot be demolished without approval of the relevant authority.

Residents maintained that Chief Minister Lim had assured the residents that if the villagers rejected the offer, the state would file an application in court to invoke Section 116 (d).

Question 4: Why has the Penang state government not invoked Section 116 to protect the villagers?

Obviously, there are a lot of questions which demand answers and there is a great chance of impropriety indicating that the land could have been unfairly taken away from the villagers. Our courts have not shown themselves to be particularly sympathetic to aggrieved parties as indicated by this case and others.

Perhaps it is not in their power to investigate. However, a report has already been lodged with the Malaysian Anti-Corruption Agency (MACC). But so far, MACC has not approached the developer of the Kampung Buah Pala land for questioning although “graft reports over the land transaction were filed separately last month by Deputy Chief Minister (II) Dr P. Ramasamy and political secretary to the chief minister, Ng Wei Aik”, according to news reports.

“The MACC has not come to us for any investigation,” Nusmetro managing director Thomas Chan was quoted as having said when queried by reporters.

Question 5: When there is urgent public interest to be served and when the fate of over 40 families hangs in the balance, why has the MACC not investigated this case and urgently?

This is important because if it is established that the transfer of the land is fraudulent, then the transfer may not be valid.

Clearly, residents are getting the wrong end of the stick here, notwithstanding Lim’s attempt to negotiate a settlement for them, demanding that their lawyers not be present. That is a strange request for laymen to come to a complicated negotiation without the benefit of lawyers.

At the time of finishing this article, the bailiff ended the standoff by deferring it to the end of the month on humanitarian grounds and to avoid bloodshed. That’s wise, but still there is a crying need for a just solution.

No matter how the issue eventually ends, one thing is abundantly clear – there are many fishy deals on land and it is more than time we put a stop to all that.

Managing editor P. Gunasegaram says that land is a dwindling resource that the government must guard carefully, give to the right people and get a good price for.