Friday, July 10, 2009

Kampong Buah Pala( II)

Friday July 10, 2009, The Star online
Kg Buah Pala files declassified

GEORGE TOWN: In the ongoing Kampung Buah Pala saga, the DAP-led state government has declassified confidential minutes of the transfer of the 2.6ha land between the state government and Koperasi Pegawai Kerajaan Pulau Pinang Bhd during the previous Barisan Nasional administration.
Chief Minister Lim Guan Eng yesterday released a chronological summary of events beginning from the application for the development on the land by the cooperative in early November 2001.
The summary revealed that the north-east district of the state Land Office recommended that the application be rejected as two earlier proposals by Tetuan Pembinaan Baufort Sdn Bhd and Tetan Edaran Pelita Sdn Bhd had been rejected by the state executive council in August 1999.
However, the land committee called for a proposal on the grounds that the applicant was a cooperative and it would benefit its members.

The state executive council postponed its decision twice – on Dec 11, 2002 and again on Aug 11, 2004, after exco member Datuk Koay Kar Huah said that the place was unsuitable for high-rise development. There was also proposals from then Chief Minister Tan Sri Dr Koh Tsu Koon for the cooperative to reduce the density of the project in return for a reduced land premium.

August 18, 2004 - the executive council approved the co-operative’s application on the condition that the needs and welfare of the squatters were addressed

July 12, 2005 - an approval letter was issued to the cooperative by the state Land Office for a premium of RM6.4mil.

August 8, 2005 - the cooperative appealed for a lower premium on grounds that it had to pay roughly RM3mil in compensation to squatters.
The land administrator and land committee suggested a 50% discount (RM3.2mil) but the executive councils postponed the matter three times after Koay and another state exco member P.K. Subbaiyah wanted to look into the issues of the squatters and residents who had asked for a piece of replacement land.

March 22, 2007 - the cooperative released a compensation offer to squatters residing at Kampung Buah Pala.
The agreement offered each family one 850 sq ft house worth RM75,000, an RM1,000 relocation payment and RM750 a month for rental subsidy for a period of 36 months until the houses were constructed.
For residents not interested in this package, the cooperative offered one-off payments of RM90,000 per family.

April 25, 2007- the state exco conducted extensive discussions and the then Deputy Chief Minister Datuk Seri Abdul Rashid Abdullah was reported as saying that the compensation offer by the cooperative was “far better” then what was stipulated in the state guidelines. The 50% discount on the land premium was approved on the same day.

October 2007 - 14 families that agreed to the compensation package allowed their houses to be demolished, but only one house was demolished after Koay’s objection.

March 14, 2008 - the cooperative settled RM2.24mil which was the balance payment for the land which had been paid in stages since January 2006.

27th March 2008- The property grant detailing the lease of the land for 99 years was subsequently registered by the state land registry on March 27 last year.
(source: The Star)

The rightful owner
The land was legally owned by Helen Margaret Brown on 1938, she was the rightful owner, and has power to transfer the title to others. She transfer the land to a housing trust for the benefit of her company's workers. At that time, the housing trust was under Housing Trust Act 1950, which was repealed by the Housing Trust (Dissolution) Act 1976. Helen Brown donated the land to the housing trust.

On the reverse side of the Grant of Land, we can see the “sub-divided Lot 691 acquired by Crown for housing Trust - vested in Crown on 12.4.(1954?)”.

The residents are not squatters
Squatting is the act of occupying an abandoned or unoccupied space or building, usually residential, that the squatter does not own, rent or otherwise have permission to use
Obviously from the documents obtained, the residents of Kampong Buah Pala are not squatters, the land was given to the housing trust for the benefit of the workers, the residents are the descendants of these workers. The trust document should provide some clues on the right of the workers/residents, where is the document? They are only squatters if they have no right to reside there, but the residents are allowed to stay under the Housing Trust .....TOL is another issue, and the reason why it come up is doubtful, and need to see the original trust document. Unless they are not the descendants of the Tamil plantation workers under Brown's estates,there will be complication. But UNFORTUNATELY under NLC, as long as you are registered as the owner of the land, you have indefeasible title as legal owner per S340 of NLC, the new owner is the developer if they have their name registered with the Land authority. Technically under the law, other person who occupied the land are considered squatters. Now, it become complicated, it is legal issue for the court to decide if there is any dispute on the legal right based on S340(2)(a) to (c)e.g.when registration of the said land involved element of fraud/misrepresentation or forgery, by means of insufficient or void instrument, or where the title was unlawfully acquired. But the residents who are the descendants , of the Tamil workers prior to year the Housing Trust was created, may have legal interest in the land, as the Housing Trust was created for the benefit of them.

Kampong Buah Pala residents' ancestors
As to the history of the workers to the Glugor Estate, Tamils had been in ancient Malaya long time ago. When Capt Francis Light found George Town in 1786, Indian called Chulias had been here, the Chulia Street was named after them. During 1795-1806, Penang was a Penal Colony, British Crown sent the Indian convicts to Penang. The Fort Cornwallis, Chowrasta Street and Penang Road Police Station were the early convict prisons. They were normally worked as construction workers for Crown Engineer Corps. They were not the ancestors of the residents of Kampong Buah Pala, the ancestors were the workers bought in to work in Brown's estates. The estates are Gelugor Estate( Periya Thottam), Sungai Nibong, Sungai Dua Estate(Sinna Thottam). David Brown came in 1800, and become the largest land owner in 1808, after the death of James Scott,when he took over Scott & Co when James Scott become bankrupt due to his wrong investment in James Town(Bayan Lepas). It is highly possible that it may be after 1800, the Tamils started to be employed in the estate, and only in 1810, David Brown cultivated nutmeg in extensive scale. So it was possible that after 1810, an influx of Tamil estate workers were coming from India to work in Brown's estate. Those working in Glugor Estate before 1954(?) were the ancestors of the residents of Kampong Buah Pala. Some of the families may be working for Glugor Estate since 1810, nearly 200 years(by next year 2010), it is possible that they may be there for 200 years, or at least 55 years(since 1954 assume he was new recruit immediately the land was vested to the Crown).

What is housing trust?

The Colonial Housing Policy , a committee was set up in December 1946(after the WW2), which recommended the establishment of a Housing trust with powers to lease or purchase and hold land and buildings, to build houses,shops and shophouses, and to sell,lease or let land and buildings. The Housing Trust is empowered to acquire land in accordance with exiting law, and to borrower and raise capital or make loans. It also given the power to require the owners of vacant land in appropriate cases to develop them, or in default to pay special " development rate", which would be accrued to the Trust. If the Housing Trust Act 1950 was based on the recommendation, the purpose would be close to that.

Wikipedia defined it as Housing Association. Housing association in the United Kingdom are independent not-for-profit bodies that provide low-cost "social housing" for people in housing need. Any trading surplus is used to maintain existing homes and to help finance new ones. They are now the United Kingdom's major providers of new homes for rent, while many also run shared ownership schemes to help people who cannot afford to buy their own homes outright.(note: any definition from local law? need to borrow from UK )

So Helen Brown donated the land under Housing Trust , vested with the Crown for the purpose of social housing for her plantation workers. After independent, the Crown is the Federal Government. But the land matter is state control, that raise the dispute of the owner(or trustee)? After statutory law changes, which dissolved the Housing Act 1950, what law govern the housing trust?Is it the Law of Trust? Is it under Public Trust after that ? Who is the trustee? What is the duty, obligation , and right of the trustee? What are the terms of the Trust Deed? This will provide the answer to who has the right to sell the said land.

We still need to see the Trust Deed( or Trust document) of Helen Brown, Housing Trust Act 1950, any statutory act replacing the Housing Trust Act after the dissolution of the said Act and what was the legal transition? is the land under Public Trust? . The necessary documentary evidence and expert of a lawyer to find it. No more political game.....

Why sell to other party to develop, if the original housing trust provided the power for the trust to develop the said land , by the trust itself?. This is another issue....

The crucial point of time,is still was after the Housing Trust 1950 Act no longer apply, what happen to the trust land? Who was the legal owner? Did the state government has the legal right to sell the the trust land? Are the past transaction legal?

The Deputy CM said that it may be land scam, then proper action need to be taken fast. May be a high level panel to be set up, with members from independent professionals, to investigate the matter. Kampong Buah Pala case has become a public issue, no longer a merely localized issue or political issue for political parties, the administration of the land matter need to be review.

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