Learning Point
- Even though buildings without a Building Permit (“IMB”) have been purchased by the buyer, and the buyer then apply a building permit for the building, the building still violates the law.
- The act of the Mayor rejecting the Plaintiff’s application to issue an IMB is not arbitrary and violating the law.
- The granting or rejection of the IMB application is fully the authority of the State Administration Officer, therefore there is no arbitrariness or abuse of authority for other purpose.
Case Summary
Plaintiff (Lie Pie Khong) is a buyer of a plot of land 335 m2 from Kusmanto Wirahadikusuma (seller). Formerly there was a dispute between Haji Mohammad Idris and Susanto. Then, the heir of Haji Mohammad Idris, based on the power of attorney from Susanto, sold the land to Kusmanto Wirahadikusuma, and Kusmanto Wirahadikusuma later sold the land to the Plaintiff.
After purchasing the land, the Plaintiff submitted the Building Permit application to Defendant (Mayor of KDH. Level II Palembang). However, the application for the Building Permit was rejected by the Defendant on the grounds that (i) on the land the building had been constructed without permit, and (ii) the cassation decision related to the land ownership dispute had not been executed. The Plaintiff stated that the Building Permit application that he did was to continue the Building Permit application that had not yet been issued for related buildings on the land.
Legal Consideration
At the first level, Judges approved Plaintiff’s lawsuit entirely, and ordered the Defendant to issue the Building Permit to the Plaintiff. The decision of the first level was upheld at appeal level by the Medan High Administrative Court.
At the cassation level, judges in cassation level canceled the Medan High Administrative Court. In its consideration, the judges stated that there were land ownership disputes that had obtained permanent legal force, where one of judicial decision in the land ownership dispute was to dismantle and vacate all buildings on the land. Buildings on land constructed without building permit, therefore, even though the land and buildings are sold to other parties as the buyer, and the buyer submitted the application for building permit, the buildings still violated the law.
The rejection of building permit application is fully the authority of the State Administration Officer, therefore in this case the judges in cassation level did not see t any arbitrariness in the rejection of the building permit application, since the rejection was carried out in terms of controlling the buildings constructed by the people.
I Gusti Made Rajendra Nananjaya
