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The law pertaining to the use of land alienated before the commencement of the National Land Code (i.e. prior to 1.1.66) continues to be misunderstood and misapplied by our bureaucrats at the land office and the local authority.

According to the land office if the title of a proprietor of such land is endorsed with a ‘nil’ condition, it is necessary to make an application under Section 124 of the Code for imposition of an express condition (‘conversion’) otherwise it may amount to a breach of condition for which action may be taken by the State Authority pursuant to Section 128.

Likewise, the local authority would also insist on the same requirement otherwise it would not approve any licence to operate any business to be carried out on such land by the proprietor, his lessee or tenant. With due respect, both authorities have erred as they do not appear to understand the relevant provisions governing the use of such land as set out under Section 53 of the Code.

It should be noted from the outset that land classified under Section 53 is not subject to any category of land use (or any express condition) applicable to land alienated after the commencement of the Code (see Section 52) but to implied conditions regulating its use as specified under Section 53(2) and Section 53(3) respectively.

Section 53(2)

This applies to (a) country land or (b) town or village land held under Land Office title which shall with effect from 1.1.66 become subject to an implied condition that it shall be used for agricultural purposes only, subject to the following proviso which reads as follows:-

‘Provided that this condition -

(i) shall not prevent -

(a) the use of any part of the land for any purpose for which it could (under Section 115) be lawfully used if it were subject instead to the category ‘agriculture’, or

(b) the continued use of any part thereof for any industrial purpose for which it was lawfully used immediately before the commencement of this Act; and

(ii) shall not apply to any part of the land which is occupied by or in conjunction with -

(a) any building lawfully erected before that commencement, or

(b) any building erected after the commencement, the erection of which would (under section 115) be lawful if the land were subject instead to the category ‘agriculture’.’

While this proviso would confer no noticeable benefit on a proprietor of country land (or town and village land held under Land Office title) who continues to use same for agricultural purposes, it would substantially benefit a proprietor who has prior to 1.1.66 used the land for industrial purpose as he is permitted to continue doing so to by virtue of proviso (i)(b) above and is therefore not obliged to apply for conversion under Section 1 24.

Section 53(3)

This is applicable to all other land (i.e. town or village land under Registry title but not country land or town or village land held under Land Office title) which shall w.e.f. 1.1.66 be ‘subject to an implied condition that it shall be used neither for agricultural nor for industrial purpose’ subject to the proviso (substantially similar to the proviso to Section 53(2) aforesaid), following viz.,

‘Provided that this condition -

(i) shall not prevent the continued use of any part of the land for any agricultural or industrial purpose for which it was lawfully used immediately before the commencement of this Act; and

(ii) shall not apply to any part of the land which is occupied by or in conjunction with -

(a) any building lawfully erected before that commencement, or

(b) any building erected after that commencement, the erection of which would (under section 116) be lawful if the land were subject instead to the category ‘building’.’

In Garden City Development Bhd v Collector of Land Revenue, Federal Territory [1982] 2 MLJ 98, the Privy Council (in setting aside the Federal Court judgment) ruled that a proprietor of town land under Section 53(3) with ‘nil’ condition is entitled to erect a commercial complex thereon without being required to apply for conversion under Section 124 of the Code.

It is hereby submitted that the Privy Council decision on town land under Section 53(3) is also applicable to country land under Section 53(2) because both Sections carried similar provisos allowing a proprietor (who used the land for say, industrial purpose before 1.1.66) to continue using same after the commencement of the Code for industrial purpose until the State Authority has taken action under Section 54 to subject the land to a category of land use and
other express conditions by notification in the Gazette.

The special status and statutory protection conferred on proprietors of land alienated prior to the commencement of the Code are further recognised by Section 54(4) which states that no declaration forfeiting such land (for breach of condition imposed under Section 54) shall be effective ‘except upon payment of such compensation as may be agreed or determined under Section 434’.

By virtue of the said provisions, it is further submitted that if the State Authority has not acted under Section 54 it would be premature and improper on the part of the land office or the local authority to compel any proprietor of such land to apply for conversion under Section 124, in the light of the said Privy Council ruling.

CONCLUSION

Bureaucrats at the land office and the local authority appear to be unable to understand the provisions of Section 53 concerning land alienated prior to the commencement of the Code without express conditions.

They tend to adopt a rather simplistic view of the issue i.e. if a title to such land does not have an express condition the proprietor is under a duty to apply for conversion under Section 124 to have an express condition endorsed, and completely ignore the provisos to Sections 53(2) and 53(3) which authorise the continued use of the land after commencement of the Code for such purposes e.g. industrial or building, for which it had been lawfully used prior to 1.1.66.

If they are in doubt, they should take note of the Federal Court’s admonition in Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1MLJ 155 and seek the learned advice of their State Legal Adviser before flexing their bureaucratic muscles by issuing notices to proprietors of such land threatening forfeiture proceedings without legal basis.

It is therefore hoped the said authorities would not continue to defy the Privy Council ruling on this issue otherwise it would give rise to a disturbing perception that our bureaucrats have no respect for the law as enunciated by the highest tier of the judiciary and may disregard same with impunity because they consider themselves to be above the law.