STATUS TANAH KTM

PEKELILING KETUA PENGARAH TANAH DAN GALIAN PERSEKUTUAN

BILANGAN 4/1974

Pajakan Tanah Simpanan Keretapi

Pekeliling ini dikeluarkan bagi menasihat Pendaftar-pendaftar Hakmilik dan Pemungutpemungut

Hasil Tanah berkenaan kuasa memberi pajak tanah-tanah simpanan keretapi.

2. Soalan-soalan yang berikut berhubung dengan pajakan tanah simpanan keretapi

telah ditimbangkan oleh Peguam Negara dan perkara-perkara yang bertalian adalah

dinyatakan di dalam suratnya kepada Penasihat Undang-undang Selangor bertarikh

6hb. Mei,1969 - (P.N.3309/1 Part 11(73) di mana satu salinannya dikembarkan sebagai

Lampiran ‘A’ :

(a) sama ada tanah simpanan keretapi boleh diberi pajakan memandangkan

kepada peruntukan-peruntukan Perkara 84, 85 dan 86 Perlembagaan

Persekutuan.

(b) jika sekiranya tanah simpanan tersebut boleh diberi pajakan, oleh siapa

dan cara mana dan dalam keadaan bagaimana pajakan tersebut hendak

diberi.

Peguam Negara telah menasihat bahawa tanah simpanan keretapi hanya boleh diberi

pajakan menurut peruntukan-peruntukan Kanun Tanah Negara.

3. Yang demikian, Pendaftar-pendaftar Hakmilik dan Pemungut-pemungut Hasil

Tanah adalah dinasihatkan bahawa tanah simpanan keretapi ialah tanah simpanan bagi

maksud kegunaan Persekutuan dan pajakan bagi kesemua atau sebahagian daripada

simpanan tersebut mestilah dibuat mengikut peruntukan-peruntukan seksyen 63 Kanun

Tanah Negara.

4. Pekeliling Pesuruhjaya Tanah No. 9 of 1950 di atas perkara Pajakan Simpanan

Keretapi (di dalam Negeri-negeri Melayu) dan Pekeliling Pesuruhjaya Tanah No. 16 of

1951 di atas perkara yang sama dengan ini adalah ditarik balik dan dibatalkan.

DATO’ ABDUL MANAF BIN MOHD. NOR,

Ketua Pengarah Tanah dan Galian

Persekutuan

P.T.TM 136 SULIT 19/61

Kuala Lumpur,

Februari, 1974.

Perpustakaan INSTUN

LAMPIRAN ‘A’

C O P Y

Your Ref: (13)dlm.L.A.Sel.1244 JABATAN PEGUAM NEGARA,

ATTORNEY-GENERAL’S

CHAMBERS,

Our Ref : P.N.3309/1 Pt. II(73) MALAYSIA

Kuala Lumpur 6hb Mei, 1969

Yang Berhormat,

Penasihat Undang-undang Negeri,

Selangor,

KUALA LUMPUR

Leasing of Railway Reserve under the

National Land Code

I refer to your letters dated 31st March, and 17th. April, 1969 regarding the above subject

matter.

2. The question of leasing railway reserves raises two important legal questions,

namely -

(a) whether or not the railway reserves could be leased at all in view of the

provisions of Articles 84, 85 and 86 of the Federal Constitution, and

(b) if the railway reserves could be so leased, by whom and in what manner and

what circumstances the leasing of these reserves can be granted.

3. As regards the first question, a railway reserve is a State land having been

reserved under the former F.M.S. Land Code Cap. 138 and under the previous land

legislations in the States of Malaya before the coming into force of the National Land

Code. This reserve, however, is State land and all that the Railway Administration has in

the reserve is the right to make use of the land for railway purposes which are among

the federal purposes within the meaning of the Federal Constitution. Therefore, whether

this reserve land can be leased or in any way be disposed of by the Railway

Administration depends upon whether or not the leasing or disposal thereof could be

regarded as amounting to the railway having no more use for the land. In other words,

the leasing of the reserve is permissible if the land ceases to be required for railway

purposes. This, however, is a question of evidence depending on a number of factors

such as the period of the lease, the purpose for which the land is to be used by the

intended lessee and the conditions on which the reserved land is to be surrendered to

the Railway Administration at the end of the lease and furthermore the nature of the

activities of the intended lessee. Thus, if the purposes for which the land is leased will

result in the land being unfit for railway purpose, or in unreasonable expenses to be

incurred in order to render the land fit to be used for these purposes, then the leasing

Perpustakaan INSTUN

thereof could be regarded as, that the land now ceases to be required for railway

purposes, thereby preventing the said land from being leased. Based on these

considerations, I am therefore of the opinion that the granting of lease for mining

purposes cannot be regarded as permissible because this will be inconsistent with the

land still being required for railway purposes, whereas the granting of lease for the

erection of a petrol station is feasible provided that such lease is made conditional upon

the land being made available for railway purposes as and when it is so required, and

that the period of the lease is not unreasonably long.

4. Having decided that it is possible for the railway reserve to be leased for a certain

duration and for special circumstances only, the question now arises, by whom and in

what manner this lease could be granted. Should the lease be granted by the General

Manager of the Malayan Railway or by the Federal Lands Commissioner, both of whom

acting in accordance with section 22 of the Malayan Railway Ordinance, 1948, or should

it be leased by the State Authority in accordance with the provisions of sections 62 and

63 of the National Land Code? In order to arrive at the proper answer to this question, it

is very important to examine the land legislation and the Railway Ordinance way back

before the formation of the Malayan Union and test these legislations against the three

important constitutional documents, namely the Malayan Union Order in Council 1946,

the Federation of Malaya Agreement Order in Council 1948 and the Federal

Constitution, 1957.

The Former F.M.S. Land Code Cap. 138

5. Under section 24 of the Code, the Ruler in Council may reserve any State land

for any public purpose. As long as the reserve continues, no disposition of the land was

permissible except in the following circumstances, namely-

(a) where the disposition was for the purpose for which reservation was made,

namely for that particular public purpose; and

(b) where the reserve was created solely for the protection and furtherance of

public works in which case the Ruler in Council may on the application of the

officer having control of the reserve grant leases for a period not exceeding

twenty-one years.

Apart from these two cases, no disposition of reserve land was possible without

involving the revocation of the reserve.

Malayan Union Order in Council

6. The Malayan Union Order in Council, 1946, came into force on the 27th. Of

March, 1946, which established a single Government for the whole of Malaya. There

was only Legislature consisting of the Governor of the Malayan Union and the

Legislative Council who had legislative competence on all matters. There was, therefore,

no question of division of powers between the State and the Federal because the State

were not regarded as legal entities, have their own Legislatures (see Malayan Union

Order in Council, Clauses 27 and 85). It is in pursuance of the Malayan Union

Constitution (Order in Council) that the Malayan Railway Ordinance (M.U. No. 8 of

1948). Since under the Malayan Union Constitution there was no division of powers

between the State and the Central Government as it is today, it is therefore

Perpustakaan INSTUN

understandable that the Malayan Railway Ordinance makes no distinction between what

might fall under the competence of the Central Government and what might fall under

the competence of the State Government. The whole body of the legislation was

bounded in one. Therefore as on the 31st. of January, 1948, the date on which the

Malayan Railway Ordinance came into force, the law with regard to disposition of

reserve land is that whilst the State could normally grant leases of reserve land on the

application of the officer having control of that land, as regards the Malayan Railway the

General Manager and the Chief Secretary had the power to grant the leasing of land

reserved for railway purposes. This is expressly stated to be the case by section 22 of

the Ordinance which begins with the expression “Notwithstanding the provisions of any

written law”. The written law that is referred to in this section cannot be other than the

former F.M.S. Land Code Cap. 138 and the equivalent land legislations in other States in

Malaya.

The Federation of Malaya Agreement, 1948

7. Under the Federation of Malaya Agreement, legislation on land except those for

the purpose of bringing about uniformity in land legislation, came under the competency

of the State Legislatures. Even if the Federal Legislature could make laws at the request

and consent of more than one State with regard to the State matters, this did not

empower the Federal Legislature to pass law conferring upon the Federal Government

executive power of authority which belonged to the State Government. Further, although

there is no provision in the Agreement to the effect that the Agreement is the supreme

law of the land, there is however a provision to say that any existing law shall be

construed in such a way as to be in accord with the Agreement. This provision gives rise

to an implication that any law passed by the Federal Legislature must not contravene the

provisions of the Agreement.

Malayan Railway Ordinance No. 8 of 1948

8. This Ordinance was passed by the Malayan Union as its Ordinance No. 8 of

1948 and came into effect on the 31st. of January, 1948, that is, the day immediately

preceding the establishment of the Federation of Malaya under the Federation of Malaya

Agreement, 1948.

9. Under this Ordinance, railway reserve is defined to mean all lands duly reserved

before or after the commencement of the Ordinance for the purpose of the Malayan

Railway under the provisions of section 24 of the F.M.S. Land Code of the

corresponding provisions of other land legislation in Malaya (section 2). By virtue of

section 22 of this Ordinance, the General Manager and the Chief Secretary grant lease

of railway reserve respectively for a term not exceeding thirty years and ninety nine

years.

The position before Merdeka

10. At the time just before the coming into force of the Federation of Malaya

Agreement, 1948 there were two laws operating side by side, namely section 24 of the

F.M.S Land Code and section 22 of the Malayan Railway Ordinance M.U. No. 8 of 1948.

11. Unfortunately for the Malayan Railway Ordinance the Constitution of the Malayan

Union was replaced by the Federation of Malaya Agreement on the 1st. of February,

Perpustakaan INSTUN

1948. The validity of section 22 of the Ordinance and perhaps other provisions in the

Ordinance which deal with land must be tested against the provisions of the Federation

of Malaya Agreement. This Agreement established a federation in which there is proper

division of powers between the Federal Government and the State Governments. As

regards land, legislation thereon, except

for purposes of bringing about uniformity in the legislation, came under the competence

of State Legislature (see Second Schedule). Furthermore, under Clause 135 of the

Agreement, all laws made before the Agreement came into force continue to be valid but

shall be construed subject to such modifications and adaptations as may be necessary

to bring them into conformity with the provisions of the Agreement. It, therefore, could

easily be seen that by a stroke of the pen as on the 1st. of February, 1948, the provisions

of section 22 of the Malayan Railway Ordinance, 1948, became inconsistent with the

Federation of Malaya Agreement and therefore as on that day there was no question of

the General Manager or the Chief Secretary or his successor, the Federal Lands

Commissioner, having the power to grant leases to reserve land. The authority which

should grant leases of railway reserve should then be done by section 24 of the F.M.S.

Land Code, namely the Ruler in Council. One therefore could see that section 22 of the

Malayan Railway Ordinance had only one day’s life, namely on the 31st. of January

1948.

12. Having come to the conclusion that as on the date when the Federation of

Malaya Agreement came into force it was the Ruler in Council, in accordance with

section 24 of the F.M.S. Land Code, who had the necessary power to grant leases of

railway reserve, what happened after this date becomes clear. The Federal Constitution

which was promulgated in August, 1957, contain the same division or power between

the Federal Government and the State Governments by which land comes under the

competence of the State Government and later the National Land Code 1965 reaffirms

once again that the power to grant leases of reserve land is vested in the State Authority

which is the successor to the Ruler in Council under the former land legislation. It

therefore become evident that no more reliance can now be placed on section 22 of the

Malayan Railway Ordinance because this section had been overtaken by the Federation

of Malaya Agreement on the 1st of February, 1948.

13. In answer to your question, I therefore hold the view that the lease of railway

reserves must now be governed by the National Land Code.

DATO’ MOHAMED SALLEH BIN ABAS,

Peguam Negara,

Malaysia

s.k. General Manager,

Malayan Railway Administration,

Kuala Lumpur

Federal Lands Commissioner,

Jalan Gurney,

Kuala Lumpur

MAKLUMAT DALAM TALIAN.COM

A.        TAJUK KURSUS YANG DI TAWARKAN

1. PENGENALAN KEPADA KTN

2. SISTEM PERUNDANGAN MALAYSIA

3. KUASA MENANGKAP DAN MENAHAN MENGIKUT KTN DAN CPC

4. PROSEDUR TANGKAPAN DAN PENAHANAN

5. LAPORAN POLIS DAN FIR

6. PENGURUSAN BARANG KES

7. INTIPATI KESALAHAN MENGIKUT SEKSEN 425

8. INTIPATI KESAHAN MENGIKUT SEKSEN 426

9. PERAMPASAN DAN LUCUT HAK BARANG KES

10. KUASA MENYIASAT DAN KTN DAN CPC

11. KAEDAH MERAKAM PERCAKAPAN

12. MENGURUSKAN OKT DARI AWAL HINGGA AKHIR

13. PENYEDIAN KERTAS SIASATAN

14. PENYEDIAAN FAKTA KES DAN PERTUDUHAN

15.RUJUKAN KES KEPADA TPR

16. PENDAFTARAN KES DAN BORANG-BORANG MAHKAMAH

17. AKTA KETERANGAN 

18. TUGAS DAN PERANAN PEGAWAI PENDAKWA

19. TEKNIK BERHUJAH

20. PENGHUKUMAN.

21. OPERASI MEMUSNAH DAN PELAN KONTIGENSI.

22. PENCEROBOHAN TANAH MILIK DAN MENYELESAIANNYA

23. BONOS - PECEROBOHAN TANAH MILIK DAN PENYELESAIAN

                  PELAN A, PELAN B, PELAN C, PELAN D, PELAN E, PELAN F.

                  AFFIDAVIT DAN KES –KES DULUAN MAHKAMAH

A.    SASARAN PESERTA

1.      PENOLONG PEGAWAI TANAH

2.      PENOLONG PENTADBIR TANAH

3.      KETUA PENOLONG PENTADBIR TANAH

4.      PENTADBIR TANAH

5.      PEGAWAI PENYIASAT SPRM

6.      PEGAWAI PENYIASAT PDRM

7.      PELAJAR UNIVERSITI YANG BERKAITAN

8.      PERUNDING HARTA TANAH

9.      LAIN-LAIN PEGAWAI YANG DILANTIK DI BAWAH S. 12 KTN

10.  LAIN-LAIN YANG BERMINAT DAN PEMILIH TANAH YANG BERMASALAH.

B.    JANGKA MASA – HUJUNG MINGGU SABTU DAN AHAD/RUNDINGAN

C.   TEMPAT – TAIPING ATAU DITENTUKAN PEMOHON

D.   BAYARAN 1 HARI RM 1000.00.