4 PDF

Preview

Summary

Topic 4 - Tutorial 05-06 [Written Exercise] (a)In this case, the issue is whether Ali can sell the house to Bibi while he was still holding a Temporary Occupation Licence that has not expired yet.Under section 65 of the National Land Code 1965, the State Authority may permit the temporary occupation...

Description

Topic 4 - Tutorial 05-06 [Written Exercise] _____________________________________________________________________ (a) In this case, the issue is whether Ali can sell the house to Bibi while he was still holding a Temporary Occupation Licence that has not expired yet. Under section 65 of the National Land Code 1965, the State Authority may permit the temporary occupation under licence of State land, mining land, and reserved land. Under section 68, every temporary licence shall not be capable of selling, transfer, transmit upon death or anything that amounts to an assignment of the Temporary Occupation Licence holder’s rights and interest under the Temporary Occupation Licence. In Papoo v Veeriah, there was an application for the transfer of house built on Temporary Occupation Licence land to the widow of the holder. It was then held that a Temporary Occupation Licence is exactly what the name implies. It is a licence to occupy the State land and nothing more. The licence is personal to the holder; it dies with the holder. In Hee Cheng v Krishnan, the plaintiff took action against defendant for breach of contract entered into between him and the defendant for the purchase of a house built upon a peice of State land held under a Temporary Occupation Licence. It was held that the alleged contract was in fact an attempt to sell and to purchase defendant’s rights under the Temporary Occupation Licence and was therefore unlawful. In the current case, Ali is the holder of the Temporary Occupation Licence which has not expired yet. Thus, by virtue of section 68, she shall not be capable of selling, transfer, transmit upon death or anything that amounts to an assignment of the Temporary Occupation Licence holder’s rights and interest. By virtue of the case of Papoo v Veeriah, Ali’s licence is exactly what the name implies, it is a licence to occupy the land and nothing more. The licence is personal to Ali and it dies with him. By virtue of the case of Hee Cheng v Krishnan, the purchase by Bibi of a house built upon a piece of State land held under a Temporary Occupation Licence which is held by Ali is null and void. The attempt to sell the rights under Temporary Occupation Licence is unlawful. As a conclusion, Ali cannot sell the house to Bibi while he was the holder of the Temporary Occupation Licence.

(b) The first issue in this case is whether the application by Caya for the alienation of the reserved land is valid. Under s.5 of the NLC, ‘reserved land’ can be defined as land for the time being for a public purpose in accordance with the provisions of section 62(1) or of any previous land law. Under section 62 of the NLC 1965, the State Authority may by notification reserve any State land for any public purpose. While under section 62(4), reserved land shall not be disposed of by the State Authority except to the extent permitted by and in accordance with section 63, Chapter 2, 3 and 4. The reserved also cannot be used for any purpose other than that for which it is reserved except in pursuance of a disposition made by virtue of any of those provisions. The exceptions are the power to lease reserved land, issuance of temporary occupation licences on reserved land, removal of rock material from reserved land and the permission to use air space above reserved land. By virtue of section 62(4) of the NLC, Caya’s application for the alienation of the reserved land is not valid. Alienation of a land may only be done in accordance with section 76 which involves only the State land, not reserved land. Caya’s case does not fall under any of the exceptions. There was no revocation and the land is reserved for vegetable farms only. Thus, the alienation of the Lot 123 to Caya which is a reserved land is invalid. The second issue is whether the alienation is valid if Lot 123 constituted merely a tiny portion of the reserved land. The answer is not different although Lot 123 constituted merely a tiny portion of the reserved land. The area of the alienation is invalid regardless of the size of the alienated land and it does not fall under any of the exceptions. Thus, the alienation is still invalid. (c) The issue in this case is whether the Land Office has the power to request Daya to vacate the land. Under section 48 of the NLC, it provides that no title to State land shall be acquired by possession, unlawful occupation or occupation under any licence for any period whatsoever. Under section 425(1), any person who, without lawful authority occupies, or erects any building on, and State land, reserved land or mining land; or clears, ploughs digs, encloses or cultivates any such land, or cuts or removes any timber or produce on or from such land, shall be guilty of an offence, and liable on conviction to fine or imprisonment or both. In the case of Sidek Hj Muhamad v Government of Perak, the appellants came to Perak and opened up a jungle area. When the appellants were given notices to stop work and vacate the area, they filed a case in court seeking a declaration that they were entitled in law and equity to be in possession of the land they had pioneered and occupied. However, it was held by the Federal Court that the appellants had no cause of action as they were squatters who had no right either in law or equity. Section 48 of the NLC is against them and the only way to obtain State land

is by way of the NLC. Section 341 also provides that adverse possession of land for any length of time will not bar any action for the recovery by the proprietor or any person or body entitled to an interest in the land. In the current case, Daya has been unlawfully occupying the unalienated State land for 20 years. It was unlawful occupation of State land, even after long duration, it will not enable the occupier to obtain title to the land as it is against section 48. Daya has no right either in law or equity and the only way for Daya to occupy the land is by way of the NLC. Daya built a house and fell the trees on the land. Thus, Daya’s action has violated section 425(1) and is liable for adverse possession of the land and shall be guilty for a fine not exceeding RM500,000 or imprisonment for a term not exceeding 5 years, or to both. The long period of 20 years of occupation will also not bar the Land Office from requesting Daya to vacate the land. As a conclusion, Daya needs to vacate the land as requested by the Land Office....