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Nik amalia - land acquisition

LAND ACQUISITION LAND ACQUISITION

CONCEPT OF LAND ACQUISITION

under article 13(2) of FC, rights are given to SA as an eminent domain to acquire private land or alienated land for public purpose or for any purpose beneficial to the economic development of malaysia ●

WHO CAN ACQUIRE THE LAND

Article 13(2): state authority can acquire the land cus right of ownership is not absolute subject to compensation ● List 2 of 9th schedule of FC: land matters are state matters so SA is granted power to acquire private land ● Cases: a. Nik Ibrahim bin Abdul Rahman v Pentadbir Tanah Jajahan Gua Musang [2001] 5 MLJ 59 - The ruler will act on advice of state executive council headed by menteri besar of the state b. Charanjit Lal v Union of India [1951] - According to BK Mukherjee K, every sovereign has the right to take private property belonging to private citizens for public use - The government as the eminent domain reserves the right to acquire the property for public benefit

WHO WILL ASSIST THE SA TO ACQUIRE?

a. Section 3C: a special committee will advise the SA on matters related to land acquisition b. Section 3D: committee will consider the application for land acquisition c. Section 3E: after considered by committee, the application is approved by SA d. Function of SA: i. To approve or reject application

Nik amalia - land acquisition

ii. iii. WHEN AND WHY CAN LAND BE ACQUIRED

To notify LA about approval and LA will the notify the applicant To notify LA about rejection who will inform applicant and refund amount of deposit paid within a period of 3 months - sec 3E

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General: SA can acquire land subject to 2 conditions: a. for public use and benefit b. acquisition is followed by adequate compensation to be paid

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In islam, its called ta’mim: a. Islamic state can acquire private property for maslahah ammah b. Ie, the case of People of Bajeela during the time of saidina umar al khattab - The lands to the people of bajeela were taken with reasonable compensation

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Section 3(1) of Land Acquisition Act 1960: states the purpose to acquire land (can be all three) a. For any public purpose b. For any person or corporation that SA thinks is beneficial to economic development c. For purpose of mining or residential, agriculture, commercial, industrial or recreational purposes or can combine

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(1)(a) - No definition of public purpose - cases: a. Bajirao T Kote v State of Maharashtra

Nik amalia - land acquisition

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No precise definition Must consider the general interest of the community and not particular interest of individual The executive is the best judge to determine

b. Yew Lean Finance’s case [1977] - Facts: pf purchase a land with intention to develop it to a housing complex - The notice issued by state gov was challenged on the ground that the land was acquired for vague purpose and thus its null and void - The lands were being acquired for residential, industrial and public purposes - Principle 1: - Government has the sole right to determine what is for public purpose - Decision cannot be questioned by court - The notice is valid - Principle 2: - The purpose as contended by SA can be a combination of a, b or c. - Not possible to specify the specific purpose c. S. Kulasingam & Anor v Comm of land, federal territories [1982] 1 MLJ 204 - No precise definition - The best test is the common sense test: whether the purpose serves the general interest of the community d. Syed Omar bin Abdul Rahman Taha Alsagoff & Anor v Government of Johore [1979] 1 MLJ 49

Nik amalia - land acquisition

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Gov acquired a land belonging to app and only 2000 acres were needed for a project The rest of the acres were marked as ‘for special purpose’ The app challenged the acquisition asserting that the land was acquired for purposes not permitted under the LAA 1960 Held: in absence of bad faith, its not possible to challenge the portion of land that was declared in gazette to be for other purposes not specified in the act When form D is published, its a conclusive evidence that the land is needed for such purpose So acquisition cannot be challenged (1)(b) -

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BASIS OF ACQUISITION

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(1)(c) -

Allows private person to acquire land so not necessary for SA to acquire for itself But SA must consider that its appropriate for economic development Its left to discretion of state cus no statutory definition In most cases, gov seeks to acquire land on behalf of private individuals such as developers which has projects that are beneficial to the public Includes recreational purposes or any combination of the purposes Enables acquisition of building for resorts and golf clubs

Art 13(1) of FC: no person shall be deprived of property save in accordance with the law

Nik amalia - land acquisition

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So it shows that right of ownership is not absolute cus the word save in accordance with the law allows the parliament to enact law on the power of SA to acquire land and indeed deprive that person of property Based on art 76(4) of FC Exception

WHAT LAND CAN BE ACQUIRED

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Art 13(2) of FC: but the law requires the SA to pay adequate compensation to the owner

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Doctrine of salus populi suprema lex: - Justifies the rationale in article 13(2) - Still requires public interest to be the paramount consideration for acquisition - Private sector can acquire land through the sovereign is its beneficial

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Case: S. Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204 - Ct held: article 13(1) protects sanctity of private property but article 13(2) is an exception to the general right

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Land alienated to private landowners Land occupies in expectation of title that has been approved Land held under interim register as specified by NLC 1963 (penang & malacca titles act) Land occupied by virtue of land (group settlement areas act 1960) - section

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Nik amalia - land acquisition

2(1) and sec 9(2) ● ●

Land held under mining lease Land held under certificate or TOL

Why? - the land does not confer ownership but only mere possession to the person but vested in SA WHAT LAND CANNOT BE ACQUIRED

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So nak acquire buat apa lagi

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Section 68A of Land Acquisition Act 1960: SA can dispose of the land after the acquisition. The disposal will not invalidate the acquisition Case: Honan plantations sdn bhd v kerajaan negeri johor & ors - Held: the intention of the legislature was clear. The person or corporation on whose behalf the land was acquired can dispose of the land - So the disposal cannot be challenged on the ground that it will invalidate the acquisition

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CAN SA DISPOSE THE ACQUIRED LAND

PROCEDURE TO ACQUIRE LAND

PRE-ACQUISITION STAGE

1. First step: Issue notice in Form A - section 4(1) a. Sec 4(1) - SA will issue notice that land will be acquired cus its mandatory and will be published in the gazette b. Sec 4(2) - LA will not give personal notice but give public notice of Form A and be posted at the district land office or public notice boards near the land pursuant to sec 52 c. Sec 4(3) - the notice will lapse after 12 months if the land specified is not yet gazetted in form D. form A exist for 12 months d. Sec 4(4) - SA can issue new notice if the first one lapse

Nik amalia - land acquisition

e. Purpose of form A: notify the public that the land is under consideration to be acquired by SA for such purposes stated and authorise a person to conduct survey operations and promise compensation to the landowners f. Case: Hong Lee Trading & Construction S/B v Taut Ying Realty S/B [1991] - The notification under section 4 is intended to serve as notice to public - To notify that land is to be acquired for purposes stated in section 3 2. Second step: entry and survey on land a. Sec 5(1): Form B will be issued by state director to authorise state officials to do entry and investigation on the land b. Sec 5(3): officials must send 3 days notice in writing before entry to get consent. If consent is given, official can enter the house c. Sec 6(1): if the official cause damage upon entry, he shall compensate the occupier for the damage 3. Third step: preparation of plan and list of land a. Sec 7(1): LA must submit to LA, the plan of the whole area/part that will be acquired and a list of land in form C. the list is for the gov only 4. Fourth step: declaration of intended acquisition a. Sec 8(1): if SA has confirmed to acquire the land, SA will declare in Form D b. Sec 8(3): form D must be gazetted and once gazetted, it’s a conclusive evidence that the land is acquired for the purpose specified c. Sec 8(4): the form D will expire/lapse 2 years after it was gazetted if

Nik amalia - land acquisition

compensation as required under s14(1) was not done within the period d. Cases: i. Honan Plantations S/B v Kerajaan Negeri Johor [1998] - The declaration in form d is conclusive evidence that the land is acquired for the purpose specified - Means SA has decided that it amount to a purpose that is beneficial to economic development ii. Orchard Circle S/B v PTD Hulu Langat [2016] MLJU 660 - The ct quashed form D and declared all the proceedings to be void cus form D has lapsed 5. Fifth step: LA will mark out areas of land to be acquired and endorse a note on RDT a. Sec 9(1)(a) & (b): when form D is declared, the LA will mark out on the master plan at the land office the areas affected by the acquisition and make a note of the acquisition on the RDT 6. Sixth step: LA will consult planning authorities on land use a. Sec 9A(1): the LA must consult the State Director Of Town And Country Planning to calculate the award of compensation based on the use of lands to be acquired

ACQUISITION STAGE

1. First step: LA will publish a public notice of enquiry in Form E a. Purpose: to notify to public the date and venue of enquiry to hear all claims to compensation by persons affected b. Sec 10(1): the LA after complying with sec 9, will commence proceedings for acquisition by giving public notice in Form E c. Sec 10(2): the LA can only hold the enquiry after 21 days of

Nik amalia - land acquisition

publication of form E d. Sec 10(3): Form E must be enclosed together with the schedule in form D 2. Second step: LA will serve copy of notice to persons interested in Form E a. Sec 11(1): the LA after giving public notice under s10(1), will serve a copy of notice in Form E to occupier of the land, registered proprietor, any person having registered interest in the land and any person whom he knows or has reason to believe to be interested b. Proviso to sec 11(1): failure to give notice to RP or those specified will not invalidate the enquiry c. Sec 11(2): LA must serve notice in form F on the RP,etc to furnish statement in writing of info on the land concerning valuations on the land, names of person having interest in the land and nature of interest and rents/profits received 3 years before - This info will help the LA to determine value of compensation d. Cases: i. Ng Kim Moi v PTD Seremban [2004] 1. The app’s land in labu was acquired by state gov of negeri sembilan 2. The app complained the acquisition was in violation of law cus form A and B were not issued and form D, E,F were not served 3. Held: a. Majority: i. form B,F and A are not mandatory so the proceedings are still valid

Nik amalia - land acquisition

ii.

Why? Form B is issued to enable the SA to authorise the person to enter the land and form a is important only to determine the market value based on the date in form A iii. So form A can sometimes not be mandatory b. Dissenting: i. Gopal sri ram held form A is mandatory cus of the word shall in section 4 and that the LAA is aimed to deprive a person to property, so ct require the authority to act according to the act ii. So there was a violation in law ii. Ee Chong Pang & ors v The LA of the District of Alor Gajah [2013] 2 MLJ 16 1. Held: the issuance of form A is mandatory and the failure of SA to comply with the provision means that the proceeding was not done in accordance with the law 2. Ct refused to follow majority in Ng Kim Moi 3. Third step: LA must hold a full enquiry a. Purpose: art 13(2) requires compensation to be adequate so the enquiry is for LA to determine the value of the land for compensation b. Sec 12(1): based on the date specified in form E, the LA will make full

Nik amalia - land acquisition

enquiry into the value of land and assess the amount of compensation acc to first schedule c. Proviso to sec 12(1): LA may also obtain written opinion on the value of land from valuer prior to making an award under sec 14 d. Sec 17: LA has discretion to hold summary enquiry in urgent cases and make oral award under sec 17 4. Fourth step: write down and make award of compensation a. Sec 14(1): upon conclusion of enquiry under s12, LA must prepare a written award in form G. LA will make separate award for each interested person depending on the valuation and assessment made acc to first schedule b. Sec 14(2): the award will be filed in the office of LA and it shows that the value and portion of compensation is final and conclusive evidence whether or not the persons appeared at the enquiry 5. Fifth step: LA to issue notice of compensation to persons interested a. Purpose: notice is to inform them about the amount of award and offer of compensation b. Sec 16(1): LA will serve notice in Form H to each person interested c. Sec 16(2): notice in Form H is attached together with written award made in Form G 6. Sixth step: take possession of the land a. Sec 18: possession of land is taken by the LA at the time of serving form H on the occupier. The ownership over the land remains with RP until LA takes possession of land b. Sec 22(1): formal possession is through posting or serving of notice in Form K to occupier (notice that possession has been taken of land)

Nik amalia - land acquisition

i.

Case: Hong Lee Trading & Constructions Sdn Bhd v Taut Yin Realty Sdn Bhd 1. Formal possession takes place about the time or soon after declaration under s 8 is gazetted 2. When declaration is gazetted, the acquisition starts c. Sec 22(2): list of lands is also included in notice in form K d. Sec 22(3): the copy of notice in form K is also served on RP not being an occupier and the proper registering authority where he is not the LA 7. Seventh step: memorial on IDT a. Sec 23: after form K is issued, LA will enter a memorial on the RDT to show that the land has been acquired b. Sec 24: LA may require IDT of land to be delivered to him in FOrm L if its not yet delivered c. Cases: i. Ishmael Lim bin Abdullah v Pesuruhjaya Tanah Persekutuan [2015] MLJ 126 - COA 1. In this case, Form K has been issued and served but LA did not endorse the memorial on the RDT 2. Held: upon issuance of Form K, land has been vested in SA tho there was no endorsement 3. No endorsement will not invalidate the acquisition Vs ii.

United Allied Empire Sdn Bhd v PTG Selangor [2018] MLJ 661-

Nik amalia - land acquisition

COA 1. Requirement in sec 23 is mandatory 2. Title will only vest in SA upon endorsement about the issuance of form K on RDT

ENQUIRY STAGE

a. Power of LA during enquiry Sec 13(1): the LA in making enquiry have powers of a court i. 1. to summon and examine witness including the persons interested, 2. To administer the oath or affirmation 3. To compel production and delivery of documents to him ie IDT and other documents evidencing title Sec 13(2): every person by notice in Form E and F must appear to the ii. enquiry iii. Cases: 1. Pemungut hasil tanah, daerah barat daya (balik pulau) pulau pinang v kam gin paik [1983] a. The resp claim that full enquiry under sec 12 must be observed by LA before making the award b. Held: sec 12 is discretionary and only mere procedure, so there is no breach of natural justice c. Before making the award, the LA will ask for advice on determination of compensation to the dept of valuation and assets management, ministry of finance d. The purpose of enquiry: to satisfy the LA on question of compensation

Nik amalia - land acquisition

e. It will only be a breach of duty if LA ignores the materials relevant to assessment and amount of compensation 2. KL Kepong Bhd v Selangor State Govt [2016] MLJU 673 a. Land was acquired under s 3(1)(a) for expansion of landfill in jeram, selangor b. Appellant argued failure to gazette form a will invalidate the proceeding c. Appellants applied for judicial review to quash the decision to acquire the land d. Held: followed Ee Chong Pang and held form A will not affect the acquisition proceedings a. Section 19 i. Gr: there must be an enquiry held first to determine compensation before land is possessed ii. But, sec 19 allows LA to take possession of land needed for public purpose under s3(1)(b) even before enquiry is held but compensation is awarded after land is possessed iii. Ie if landslide occurs on the land, repair works must be done iv. LA may issue certificate of urgency in form I after expiry of 15 days from date of notice in form E

CERTIFICATE OF URGENCY

b. Section 20 i. In issuing certificate of urgency but theres a building, LA must serve notice in Form J to 1. occupier of building to vacate not more than 60 days from

Nik amalia - land acquisition

date of notice 2. Owner of building making an offer of compensation which he will only get after possession takes place a. Art 13(2) of FC: must give adequate compensation when acquiring land b. Sec 12(1): based on the date specified in form E, the LA will make full enquiry into the value of land and assess the amount of compensation acc to first schedule i. At this stage, the LA must assess what is considered adequate c. Basis of assessment is stipulated in section 1(1A) of first schedule or section 1(2A) of first schedule for malay reservation land d. Authorities: i. Book written by Teo Keang Sood & Khaw Lake Tee (1997) 1. States that there are many cases involving determination of compensation referred to the first schedule of LAA 1960 ii. Case: Lembaga Amanah Sekolah Semangat Malaysia v Collector of Land Revenue (1978) 1. Acc to judge Hashim Yeop A Sani ; the basis in determining adequate compensation is based on market value and other factors in para 2 of first schedule e. Methods of assessment: i. Market value ii. Matters to consider iii. Matters to neglect iv. Limitation POST ACQUISITION STAGE: COMPENSATION

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Referring to principles relating to determination of compensation in first

Nik amalia - land acquisition

schedule of LAA

FIRST METHOD OF ASSESSMENT: MARKET VALUE - para 1 of 1st schedule

a. Basis: para 1 sub para(1) of 1st schedule i. Market value is determined based on the date of Form A being gazetted. That is the reference date. It's not the date compensation is awarded 1. Provided that Form D must be declared within 12 months since form A was gazetted. 2. If not, the reference date will be based on date of publication of form D b. Definition and concept of market value i. Case: Nanyang Manufacturing Co v CLR Johor [1954] 1. Market value is known as the price that owner willing and not obliged to sell will reasonably expect to obtain from a willing purchaser in regards to the land 2. Based on willing owner and willing purchaser principle c. Method of valuation: para 1(1A) i. Any suitable method. 1. May refer to prices paid for recent sales of land with simila...