Land is the basis of life for every living creature on earth. A land is where most of the source of food came from and also where humans live. The development of public facilities in Indonesia requires a land as the reservoir. These days, it is quite difficult to do a development for the public interest. So the land procurement activities are needed in the context of development.
Land procurement is a way to acquire a land for public interest. Article 18 UUPA regulates the underlying existence of land procurement for the public interest, which is further regulated in Law of the Republic of Indonesia Number 2 of 2012 concerning Land Procurement for Development in the Public Interest (“Law No. 2/2012”) as amended by Law Number 11 of 2020 (“Job Creation Law”). And then regulated in Government Regulation no. 19 of 2021 concerning the Implementation of Land Procurement for Development in the Public Interest (“GR No. 19/2021”).
This article will discuss about the implementation of land procurement for the public interest using the location determination (in Bahasa: penetapan lokasi). In addition, it will also discuss the location determination in jurisprudence and discuss the important aspects considered by the Judges.
Land procurement is an activity that provides land by giving an adequate and fair compensation to the entitled party.1 The purpose of Land Procurement for Public Interest is providing land for the development in order to improve the welfare and prosperity of the nation, state and society while still ensuring the legal interests of the Entitled Party.2
Land procurement for Public Interest is provided through several stages, that is stage of planning, preparation, implementation, and transfer of results. In the stage of preparation, it is often hampered by objections from the rightful parties and the affected community, objections to the determination of the location issued.3This location determination is issued by the competent agency in land acquisition for the public interest by submitting an application for location determination to the Governor.4
Subsequently within 14 (fourteen) days, the governor determines the location. However, if there is an objection to the determination of the location, the Entitled Party to the determination of the location have the rights to file a lawsuit to the Administrative Court no later than 30 (thirty) days after the issuance of the location determination.5
Annulment of Location Determination in Land Procurement for Public Interest
In location determination, the Entitled Party may submit an annulment of the Decision Letter of Determination of Location issued by the State Administration Officer. The Location Determination Decree is considered as a State Administrative Decree (in bahasa: Keputusan Tata Usaha Negara or KTUN). KTUN is a written determination issued by the state administrative officer, containing legal actions based on regulations that is concrete, individual, and final which brings legal consequences to a person or legal entity.6
This is also stated under the Decision No. 8/G/PU/2020/PTUN.PDG between Hartono Widjaja, et al. (Plaintiffs) vs. the Governor of West Sumatra (Defendant). The panel of judges stated that the location determination issued by the Defendant was concrete, individual and final with reasons:
- Concrete: because the object mentioned in the decree is tangible.
- Individual: not intended for public, and certain about the destination address
- Final: does not require approval from certain instance both horizontally and vertically.
Jurisprudence Regarding Annulment of Location Determination
- Decision No. 56/G/PU/2019/PTUN-SRG jo. 148 K/TUN/2020
Under Decision No. 56/G/PU/2019/PTUN-SRG jo. 148 K/TUN/2020 between PT. Plaza Indonesia Urban (Plaintiff) vs. the Governor of Banten (Defendant). PT. Plaza Indonesia Urban suffered a loss due to the inability to build its 2 (two) apartment towers as a result of the issuance of the location determination for the Construction of the Cinere – Serpong Toll Road. In the construction of Cinere – Serpong Toll Road, there was a change in the land area, which originally stated as 76,6 Ha to become 84,94 Ha. This causes in the Plaintiff’s land and covering the area of ±3,000 m2.
About the Location Determination issued by the Governor of Banten, there is no statement found of the New Location Determination. The Plaintiff considers this is contrary to Article 26 Paragraph (1) Law No. 2/2012 jo. Article 45 Paragraph (2) of Presidential Regulation No. 71/2012 that stipulates the Governor with Agency which requires that the land need to announce the location determination of construction for Public Interest.
In addition, the Plaintiff also considers the location determination does not state about the location of the land, the required area, and the estimated time of the Land Procurement and the Development. As a result, this is contrary to Article 45 Paragraph 2 of Presidential Regulation No. 71/2012 which states it must contain number and date of the location determination, map of the development, the purpose of the development, location and area required, estimated time period for Land Procurement and estimated development period.
During the trial, it is found that it was true about the difference between the land area stated in the Decree. So the judex facti and judex juris thought there is a procedural defect. Moreover in the consideration, it is not synchronized with the Decree Number 12, about the Presidential Instruction No. 3/2016 concerning Acceleration of Implementation of National Strategic Projects. The panel of judges considered the Presidential Instruction No. 3/2016 is regarding Simplification of Housing License, and not about the Acceleration of Implementation of National Strategic Projects. So the issuance of the Decree is also a substantively defective.
Moreover, the panel of judges considered that the issuance process of the Decree also contradicts with the AUPB, namely the principle of accuracy and professionalism. The Defendant was proven to have been careless and unprofessional in processing the issuance of the Decree. This was also strengthened by the judex juris that considered the Decision Letter contained the content of the Simplifying Housing License so it was not aligned with the substance of the case object.
As a result of the procedural defect and substantial defect of the Decree, the judex juris and judex facti declared the annulment of the decree.
- Decision No. 8/G/PU/2020/PTUN.PDG jo. 468 K/TUN/2020
There is also a case regarding the annulment of the Location Determination in Decision No. 8/G/PU/2020/PTUN.PDG jo. 468 K/TUN/2020 between Hartono Widjaja, et al. (Plaintiffs) vs. the Governor of West Sumatra (Defendants). The Defendant issued a Decision Letter for Determining the Location of Land Procurement for the Construction of the Padang – Pekanbaru – Padang Toll Road. The Decree issued by the Governor of West Sumatra is concrete, individual and final that the object mentioned is real, not intended for the public, and explicitly mentions the Determination of Land Procurement Locations for the Construction of the Padang – Pekanbaru – Padang Toll Road, and no longer requires approval from certain instance.7
As the impact of the issuance of the location determination, due to the land belonging to the plaintiff which is a warehouse, it will be destroyed and/or leveled by the defendants for construction. The defendant has formed a Preparatory Team which has the duty to create a public consultation on the Construction Plan. However, the Plaintiffs were never involved or invited about the Padang – Pekanbaru – Padang Toll Road Construction Plan.
Moreover, the defendant exception states that they already invited the Plaintiffs and held a Public Consultation and Re-Public Consultation, but in fact the Plaintiff was not recorded in the Minutes of Public Consultation. This clearly contradicts with the regulations, namely Article 29 jo. Article 31 Presidential Regulation No. 71/2012 which requires that the Preparatory Team invite Entitled Parties to attend the Public Consultation.
In consideration of the judex facti, the panel of judges held a local court on the disputed location and it was found that the land belonging to the plaintiffs is a land affected by the location determination.
Besides that, it was also found that the Preparatory Team had given an invitation for a public consultation to the head of the gardener on the land of the Plaintiff. However, the evidence of the Plaintiff’s invitation receipt was gone and not kept by the Defendant. Thus, the panel of judges consider the Defendant cannot prove that he has invited the Plaintiffs as Entitled Parties with a proof of invitation receipt.
By not being able to prove inviting the Plaintiffs as Entitled Parties during the Public Consultation and Re-Public Consultation, judex facti considered that this was contrary to the Principle of Formal Accuracy. In addition, the panel of judges said the issuance of location determination by the Defendant, there is a procedure that not according to the regulations or at least cannot be proven by the Defendant. Especially regarding the initial data collect and proof of invitation receipt of the Plaintiffs to the public consultation. Therefore, the panel of judges concluded the location determination issued by the Defendant is contrary to the Principle of Formal Accuracy.
Furthermore in the consideration, the panel of judges stated that the location determination of the Toll Road is not determine directly on the Plaintiffs land, but was intended for 2 (two) sub-districts and/or land owned by other community. And after the panel of judges examine the Defendant’s evidence, it was found that other Entitled Parties did not considered the object of the dispute, so the panel of judges concluded that the Plaintiff claim was admitted to the extent what is stipulated on the Plaintiffs right of ownership, namely those are stipulated on the Plaintiffs Certificate of Right of Ownership.
This was also strengthened by the judex juris. In their consideration, the Defendants of Cassation/Plaintiffs were not invited or involved, resulting in the procedure for the issuance of the decree is not in accordance with the regulations and the AUPB. In this case, the defendant should first examine the object of the dispute to clarify all relevant facts.
Because the issuance of the decision letter was not in accordance with the regulations and the AUPB, judex facti and judex juris stated that there is sufficient reason to annul the decree.
The issuance of the Location Determination issued by the State Administrative Officer, must refer to the regulations and not contradict with the General Principles of Good Governance (AUPB). That issuance must be stated and announced by the State Administration Officer. In addition, the State Administrative Officer needs to collect a data carefully related to the Entitled Party on the location of the object.
Moreover in the location determination, it must contain number and date of the location determination, map of the development, the purpose of the development, location and area required, estimated time period for Land Procurement and estimated development period appropriately in order to avoid any lawsuits by the Entitled Party.
In this case, the regulations and the AUPB have an important role as parameters for the validity of the issuance of location determination. Therefore, the State Administrative Officer must refer to the AUPB and the regulations properly and appropriately.
Farah Tania Nurulizzaty
- Article 1 of Law Number 2/2012
- Article 3 of Law Number 2/2012
- Article 13 of Law Number 2/2012
- Article 19 paragraph (5) of Law Number 2/2012
- Article 23 paragraph (1) of Law Number 2/2012
- Article 1 Law Number 51 Year 2009 Regarding State Administrative Court
- Decision No.8/G/PU/2020/PTUN.PDG jo. 468 K/TUN/2020