INTRODUCTION
The city of Semarang is known as
the center of trade and services. Vorstenlanden
(Solo-Yogyakarta) in Kemijen Village by the Governor
General of the Dutch East Indies Mr. LAJ Baron Sloet
van de Beele on 17 June 1864 (Purwanto, 2021).
Based on historical records, along
with the signing of the Dutch-Indonesian Round Table Conference (KMB) on December 27, 1949 which
recognized the Sovereignty of the Republic of Indonesia, the Dutch colonial
government handed over all government assets to the sovereign government of the
Republic of Indonesia. The legality prevailing at that time on land assets was
found in the Grondkaart
format (land card/land measurement card/land map) as the basis for proof of
ownership rights, such as that of PT Kereta Api Indonesia (Persero), [hereinafter referred to as PT KAI
(Persero)], as a result of the inheritance of the assets of the Dutch
government Railways (Staatspoorwegen/SS).
Grondkaart is a
legal product that was part of the legal system at that time, and although the
legal system has changed, the legal product is still legally valid until now.
The bestemming lands (designated) for the benefit of
the state are given by Grondkaart.
The land assets of the state railway company (Staatspoorwegen)
described in Grondkaart were handed over to Staatspoorwegen.
Based on S.110/1911 jo S.430/1940 the land of Grondkaart is the right of beheer (control)
belonging to Staatspoorwegen.
Until now there is a land dispute
owned by PT. KAI (Persero) which is controlled and used by other parties.
Juridically, Grondkaart as the base of rights has a vital
function. Its position as evidence in law enforcement based on Article 1866 of
the Civil Code in conjunction with Article 164 Herziene
Inlandsch Reglement (HIR)
[Renewed Indonesian Regulation (RIB)] - (Staatsblad
1941-44) evidence recognized in civil cases consists of written evidence,
witness evidence, allegations, confessions and oaths. In the trial court, Grondkaart as a strong basis for rights was
examined as evidence of physical possession and the basis for ownership rights.
In the process, the authenticity and origin of the issuance of Grondkaart will be investigated which is used as
proof of ownership.
With regard to land owned by PT.
KAI (Persero) based on Grondkaart,
it is necessary to pay attention to the existence of PT. KAI (Persero) which is
controlled by other parties for generations without permission from PT. KAI
(Persero). An example of a case that uses Grondkaart as evidence is PT Kereta Api (Persero) Operational
Area 4 Semarang which controls PT KAI (Persero) assets controlled by other
parties. During the execution of a house on Jalan Tawangsari,
Semarang by PT KAI (Persero) Daops 4 Semarang, there
was tension when the legal counsel for the occupants of the house tried to
block the execution. The executor then emptied the items from the house by
moving them. The heavy equipment that was prepared then dismantled the house in
the housing complex owned by PT KAI (Persero) (Marendra, 2021). The execution
took place as a form of effort to save state assets controlled by unauthorized
parties in order to minimize potential state losses (Wintoko, 2019).
According to the study by
researchers, PT Kereta Api
Indonesia (Persero) Semarang Operational Area 4 has a fairly large area of
land that has been controlled and used by community members and legal
entities without permission, some are even inhabited with the permission of PT.
KAI (Persero) Operational Area 4 Semarang, especially the housing for employees
who have died, but are still used by their heirs, resulting in disputes
arising. On the other hand, the fact is that PT. KAI (Persero) has not yet
certified its land, but only uses a guide in the form of Grondkaart, namely a map of the
land of the Dutch colonial era. Grondkaart can be
converted through a land registration application in order to obtain a
certificate according to its designation or needs from PT. KAI (Persero). This
is the capital to save state-owned land assets from illegal occupancy and
control by other parties.
The formulation of the problem in
this research are: (1) what is the position of Grondkaart in the legislation?
(2) how is the legal protection of land assets of the
Indonesian railway state based on Grondkaart in Semarang City?
METHOD
This study uses a
qualitative approach with a case report study method. By making use of case
study research, researchers will gain specific expertise or insight into the
problem they have chosen to explore, which is usually contemporary. Case study
research allows researchers to examine phenomena in their context. Case studies
are empirical investigations in the sense that they are based on knowledge and
experience, or in a more practical sense, they require the collection and
analysis of data (Creswell, 2017). In addition, a
literature review is also included in this study. A literature review article
provides a complete assessment of the relevant literature and provides examples
of previous studies to build a knowledge framework (Paul & Criado, 2020). The literature
review provides a theoretical framework as the basis for the study.
RESULTS AND DISCUSSION
A. Grondkaart's
position in the Laws and Regulations
Article 2 of the Republic of Indonesia
Government Regulation No. 8 of 1953: The ownership of the land described in Grondkaart
belongs to the Railway Department (now PT KAI Persero) because the land has
been handed over to control based on the ordinance contained in the Staatsblaad (Ushmani, 2018).
In Article 1 of Law no. 86 of 1958
concerning the Nationalization of Dutch-Owned Companies located in the
Territory of the Republic of Indonesia stated: "Dutch-owned companies
located in the territory of the Republic of Indonesia which will be stipulated
by Government Regulation shall be subject to nationalization and declared to be
fully and independent property of the Republic of Indonesia". Based on PP
No. 40 of 1959 and PP No. 41 of 1959, all of Verenigde
Spoorwegbedrijf's assets were legally owned by the
Railway Department which was now changed and renamed PT KAI (Persero). For
fixed assets (land) a Decree of the Minister of Agriculture and Agrarian
Affairs No. SK.8/Ka/1963 was issued concerning the Granting of Free Land Rights
Owned by Dutch Companies to State Companies and State Banks, dated February 28,
1963. In 1992, Law no. 13 of 1992 concerning Railways, which was later replaced
by Law Number 23 of 2007 concerning Railways. With the enactment of these laws
and regulations, the assets of Staats Spoorwegen and Verenigde Spoorwegbedrijf, the land has the status as land under the
control of the railroad company and PT KAI (Persero) land is a separated State
asset, so it is subject to Law Number 1 of 2004 concerning the Treasury. State
and Government Regulation Number 6 of 2006 concerning Management of State/Regional
Property as amended by Government Regulation Number 38 of 2008 concerning
Amendment to Government Regulation Number 6 of 2006 concerning Management of
State/ Regional Property shall remain valid as long as it does not conflict
with or has not been replaced with new regulations based on this Government
Regulation.
According to the historian, Professor
of the Faculty of Cultural Sciences, Universitas Indonesia, Marihandono (2008)
Grondkaart
is a term used to indicate a mapped landscape based on the results of land
measurements by the authorized institution at the time of publication. Grondkaart is a
legacy of the Dutch East Indies government in the form of products of past
legal objects that are permanent and final.
Inside the Grondkaart contains a
cross-sectional image of the land above which there are boundaries of the land.
In each Grondkaart
there is an ratification carried out by the relevant officials and the Grondkaart itself
is made based on a land survey certificate by the cadastral (now the National
Land Agency). So Grondkaart
is an image or map of land measurements made for the purposes of Government
Agencies. The function of the Meebrief Grondkaart is a
final result that does not need to be followed up with a Decree on Granting
Rights by the Government (Hermawan, 2020). According to Marihandono (2008), Grondkaart can be a valid evidence to
show land ownership on the basis of State Administrative Law and material law.
An example of State Administrative Law was the issuance of Government Decree (Gouvernement Besluit) No. 3 of
1890 which stated that there were five parties involved in making Grondkaart,
namely the Regional Head according to the location of the land, a cadastral
officer to measure and make a land survey, two government officials related to
the project. to be built, and the holder of the land rights. Thus Grondkaart can be
referred to as proof of the location of government land which shows the
boundaries of the land and is considered as the basis for proof of government
land ownership rights. Each Grondkaart also contains the words “This Grondkaart was made and approved
by a decree/decree of the Governor General or Director” (gemaakt
of goedgekeurd door het besluit
of beschikking van den Gouverneur Generaal/
Directeur van) (Dwina, 2020).
Based on the Decisions of the Supreme
Court of the Republic of Indonesia Number: 2505 K/Pdt/1989
and Number: 1262 K/Pdt/2014 which became the
Jurisprudence of the Supreme Court, the existence of Grondkaart is proof of rights.
Based on the Letter of the Minister of Finance Number: S.11/MK.16/1994 dated
January 24, 1995, it was confirmed that the land that was decomposed in Grondkaart was
declared as state land which was separated as fixed assets of PERUMKA (now PT.
KAI (Persero).
In the Decision of the Review Back No:
125 PK/Pdt/2014)” stated that the use of Grondkaart as new
evidence (novum) in the case according to the law of evidence and the existing
legal basis was appropriate. It is appropriate that in the level of review at
the Supreme Court, the judge wins PT. KAI (Persero) for the land dispute (Santosa, 2017). That the legal
force of Grondkaart
is only an indication that the land is state property and must be confirmed by
a court decision. PT. KAI (Persero) is entitled to the land of Grondkaart, but
according to the prevailing laws and regulations, PT. KAI (Persero) is required
to register Grondkaart
as management rights or usufructuary rights in order to obtain a certificate,
so that proof of ownership rights can be used as proof of true and strong land
ownership (Chandra et al., 2017).
The importance of the National Land Law policy that has a positive influence on
the efforts of PT. KAI (Persero) to increase the optimization of assets owned
because Grondkaart
is not proof of land ownership, but according to Land Law, Grondkaart is the basis for beheer rights over state land by a certain subject, namely
PT KAI (Persero) (Silvianna, 2020). Whereas there is
an overlapping dispute over land rights on the same piece of land, a
Certificate of Building Use Rights has been issued on the land of State assets
whose control has been given to PT. KAI (Persero) with evidence of Grondkaart. The
consideration of the Bandung High Court Judge Number 209/PDT/2019/PT.BDG, the
legal force of Grondkaart
PT KAI (Persero) is recognized as evidence of land ownership (Intansari, et al, 2022}. Grondkaart's position is
currently recognized as a certificate of land ownership PT KAI (Persero).
Although Grondkaart can be used as proof
of control over the railroad land, the results of this study recommend a
concept to prevent the loss of assets in the form of land controlled by PT KAI
through land certificates. Against people who have occupied land owned by PT
KAI (Persero), it is recommended to be compensated based on the value of the building
on the land, or be relocated in the form of vertical housing (Flating Houses) (Sumanto et al., 2022).
B. Legal protection of Indonesian railway
land assets based on Grondkaart
in Semarang City
According to Setiono,
legal protection is an action or effort to protect the public from arbitrary
actions by the authorities not in accordance with the rule of law, to create
order and peace so as to enable humans to enjoy their dignity as human beings (Setiono, 2004). Legal protection
is an activity to protect individuals by harmonizing the relationship of values
or rules that are manifested in attitudes and actions in creating order in
the social life between human beings (Muchsin, 2003). Legal protection
is the protection of the dignity and worth, as well as the recognition of human
rights owned by legal subjects based on legal provisions from arbitrariness (Hadjon, 1987). Legal protection means
providing protection for human rights that are harmed by others and that
protection is given to the community so that they can enjoy all the rights
granted by law (Rahardjo, 1993).
Several decisions regarding land
ownership disputes and buildings on land owned by PT KAI in Semarang are:
Decision Number 1819 K/Pdt/2017 (ownership dispute between 23 plaintiffs (Raliah, et al) against center of PT KAI in Bandung Cq. Kadaop IV.
Decision No. 518 K/Pdt/2018
(ownership dispute between Mrs. Yohanna De Meyyer against PT. KAI (Persero) Operational Area IV PT
KAI), in which the decision is to reject the appeal from Cassation Petitioner
Ny. Yohanna De Meyyer,
because PT KAI has controlled the disputed land and buildings continuously by
paying PBB annually, so that PT KAI's control of the disputed land and
buildings is in accordance with the provisions of Article 10 and Article 19 of
Government Regulation Number 10 of 1961 jo. Article 3 and Article 4 of
Government Regulation Number 24 of 1997 concerning Land Registration, for which
PT KAI has the right to be granted a land title certificate.
Decision Number 176 K/TUN/2018 (PT KAI
Persero against the Head of the Land Office of Semarang City and AAF Sukani, et al), in which the Supreme Court ordered the
cancellation of 50 certificates of Ownership in the name of AAF Sukani, et al which were issued on land owned by PT KAI
based on based on the Grondkaart
(Land Map) which was formerly owned by Semarang–Joana Stoomtram-Maatschappij,
NV The Dutch private railway company incorporated in Verenigde
Spoorwegbedrijf (VS.) Based on Law Number 86 of 1959
the assets of Verenigde Spoorwegbedrijf
were nationalized into state assets and based on PP Numbers 40 and 41 of 1959
the use was handed over to the Railway Department (DKA) now PT KAI (Persero).
In this case PT KAI Persero (Plaintiff) has a direct interest due to the
issuance of Certificate of Ownership on behalf of 50 people from the issuance
of the State Administrative Decree.
Decision Number 241 K/TUN/2018 (PT KAI
against the Head of the Land Office of the City of Semarang and Esti Widayanti, et al), in which
it was decided to cancel five certificates of Ownership Rights in the name of Esti Widayanti, et al which were
issued on the Land of Use Rights on behalf of the Ministry of Transportation,
which comes from Grondkaart
Number: W.17286 B of 1962.
Decision Number 1626 K/Pdt/2017 (Esti TunggaL D., et al against PT KAI Central in Bandung, Cq Kadaop IV of PT KAI Semarang
City), in which the Supreme Court decided to punish so that Esti
TunggaL D., et al, hand over the house occupied to PT
KAI (Persero) empty and without any conditions within 14 (fourteen) days after
this decision is pronounced.
Decision No. 218/Pdt.G/2019/PN
SMG (CV. Putra Jago Pertama
against PT KAI DaOp IV Semarang), where it was
decided that the HGB certificates issued were invalid, and punished CV Putra Jago Pertama to actually hand
over the building object of the dispute to PT. Kereta
Api Indonesia (Persero) in good condition and well
maintained free from all demands of other parties and taxes that are the
responsibility of CV Putra Jago Pertama.
Based on the analysis of the sixteen
decisions of PT. KAI (Persero) has received legal protection against land
tenure through grondkaart
which is recognized as proof of land ownership of PT. KAI (Persero). However,
by showing grondkaart,
PT. KAI (Persero) does not necessarily obtain legal certainty of land
ownership, considering that proof of land ownership as regulated in the
national land law is a certificate, so that in practice PT. KAI (Persero) must
go to court to fight for the ownership of the land.
CONCLUSION
According to the National Land
Law, the evidence of land ownership rights that is protected by law and
guaranteed legal certainty is a certificate of land rights. Meanwhile, Grondkaart's
position is not proof of land ownership, although Boedi
Harsono's opinion states that land controlled by
Government Agencies is classified as private land, even though it is not yet
certified. Based on the Letter of the Minister of Finance S.11/MK.16/1994 it
was confirmed that the lands described in Grondkaart were declared as state
lands which were separated as fixed assets of Perumka
[now PT KAI (Persero)]. Grondkaart
is the basis of rights as beheer rights to state land
by certain subjects in this case PT KAI (Persero). According to the Supreme
Court's Decision Number: 2505 K/Pdt/1989 and Number:
1262 K/Pdt/2014 which became the Jurisprudence of the
Supreme Court, the existence of Grondkaart is proof of rights. Position of grondkaart is
recognized as proof of land ownership controlled by PT. KAI (Persero). The land
described in grondkaart
is state land which is separated from the fixed assets of PT. KAI (Persero).
Land disputes belonging to PT
KAI can be grouped into two, namely first, civil disputes related to the
ownership of houses on land owned by PT KAI inhabited by the heirs of former PT
KAI employees by paying rent to PT KAI (the lawsuit against PT KAI is against
the law). In its development the residents no longer pay rent but demand
ownership of the house. Second, disputes over state administrative decisions
(certificates) related to PT KAI's land ownership on the basis of Grondkaart's
rights on which certificates of Ownership and Building Use Rights are issued on
behalf of other parties. In addition, there is also PT KAI land as evidenced by
the overlapping Right of Use certificate with the certificate of Ownership on
behalf of another party. Based on the decisions of the judiciary that became
the object of this research, it was found that the court's decision gave rights
to PT KAI (Persero) with the consideration of Grondkaart as the basis for the
rights to land owned by the government (PT KAI) (Persero), although according
to the National Land Law, certificates were used as evidence. strong. This is
as a result of the publication system adopted by Indonesia, namely negative
publications that contain positive elements. PT KAI (Persero) obtains legal
protection for the land it owns, because the land has been registered as a
State asset, and Grondkaart is
recognized as the basis for land ownership rights. However, by showing grondkaart, PT. KAI (Persero) does not
necessarily obtain legal certainty of land ownership, considering that proof of
land ownership as regulated in the national land law is a certificate, so that
in practice PT. KAI (Persero) must go to court to fight for the ownership of
the land.
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