Underground issues try National Land Code amendments

KUALA LUMPUR: Over two decades have gone by since Parliament passed amendments to the National Land Code 1965, in 1990, to insert provisions governing the alienation of underground land, independent of a land's surface portion.

The inserted provisions — Part Five (A) from Section 92A to 92G relating to the disposal of underground land — are now facing the first high-profile test case.

Several landowners in the Bukit Bintang and Imbi areas have recently been given the greenlight to pursue a judicial review to challenge the compulsory acquisition of their land for the Klang Valley mass rapid transit (MRT) project.

The respondents in the judicial review applications are the Ministry of Federal Territories and Urban Wellbeing, the Department of Land and Mines, the Land Public Transport Commission and state-owned public transport operator Syarikat Prasarana Negara Bhd (Prasarana).

Since the landowners have been served notices that their land will be acquired, there have been questions raised as to why the government will need the overground portions of the land when the city centre portions of the MRT alignment will run underground.

Lawyers acting in the land acquisition cases related to the MRT are expected to zero in on the amendments to the National Land Code, namely Section 92D.

Sources with knowledge of the matter point out that Section 92D could be invoked to allow landowners to give up their land to the state for the land to be divided into surface use and underground use.

In the context of the Imbi and Bukit Bintang landowners' case, one side of the argument is that the landowners could offer up their land to allow for the construction of the MRT underground while still retaining ownership of the surface portions of their land.

The respondents' position on the matter is unknown.

To understand the spirit of the National Land Code's amendments in 1990, Petaling Jaya Utara Member of Parliament Tony Pua cited Parliament's Hansard in arguing that the National Land Code had been specifically amended to allow for the acquisition of underground land without affecting surface property.

According to the Hansard dated Dec 15, 1989, Deputy Land Development Minister Datuk Mohd Khalid Mohd Yunus had said that the amendments were proposed to satisfy two main needs, chiefly to create provisions to enable the alienation of underground land to be used for a different purpose than the surface land.

"Currently [prior to the amendments], underground land cannot be disposed separately. Given the present day technological abilities, land underground could be developed for certain usage such as underground car parks, underground railway and others," Mohd Khalid had told the Dewan Rakyat.

When tabling the amendments, Mohd Khalid had also noted that the disposal of underground land could enable prime land in urban areas to be maximised, or for lands in certain strategic areas to be retained as vacant land without affecting its underground usage.

In a recent statement, Pua said: "Given that it is possible for Prasarana to acquire the use of land underground without having to acquire property on the surface, it must now immediately withdraw its order to the affected landowners without causing any further inconvenience to them."