LAND ACQUISITION 1Sharifah ZubaidahLAW 3111 April 2013

Coverage:•1) Rationale for Land Acquisition•2) Purposes of Acquisition

▫Widening of the purpose after 1991▫No need to specify specific purpose in

Notice.•3) Meaning of ‘Public Purpose’•4) Procedures for Land Acquisition

Art. 13 Federal Constitution:•(1) No person shall be deprived of

property save in accordance with the law;

•(2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.

•The Land Acquisition Act 1960 flows from these clauses.

Art. 76(4) Federal Constitution:•Parliament may for the purpose only of

ensuring uniformity of law and policy make laws with respect to…’compulsory

acquisition of land.’

•LAA 1960 = a consolidation of previous state enactments on land acquisition and is based on the Indian Land Acquisition

Act 1894.

Land Acquisition as Inherent Right of State Authority as ‘eminent

domain’. •Modern laws on compulsory land acquisition comes from the concept of ‘eminent domain’ under USA law.

•The government as the eminent domain has an inherent right to take and appropriate private land belonging to citizens for public use.

•In Islam, this right is called ‘Ta’mim’ where the Islamic state may acquire private land due to ‘maslahah ammah’. (e.g. case of the People of Bajeela)

Rationale for Land Acquisition?•1) Doctrine of ‘salus populi suprema

lex’ – the interests of the public are paramount.

(Mentioned by Justice Hashim Yeop Sani in S. Kulasingam & Anor. v Comm. Of Lands, FT [1982]))

•2) Principle of ‘eminent domain’ – inherent right of the state.

(Mentioned by Justice Mukherejee in Charanjit Lal v Union of India [1951])

Scope of Acquiring Powers•This relates to the ‘purpose of acquisition’

in section 3 of the LAA, 1960.•See s.3(1)(a), 3(1)(b) and 3(1) (c).•The State Authority is not confined to

acquire land only under one purpose but may combine all.

Widening the Purpose after 1991•Section 3(1)(b) formerly read: • ‘by any person or corporation undertaking a

work which in the opinion of the State Authority is for public utility’.

•The amended s.3(1)(b) gives a wider purpose.

• ‘for any purpose…beneficial to the economic development of Malaysia or any part thereof or to the public generally or any class of the public.’

S. 3(1)(c) also amended:•To include ‘recreational purposes or any

combination of such purposes’.•This would enable the acquisition of land

for the building of resorts and golf clubs as well or any other tourism type of development.

Yew Lean Finance Dvpt M’sia S/B v Director of Lands and Mines, Penang [1977] 2 MLJ 45•Pf purchased land in Province Wellesley

in 1972 with the intention of developing it into a housing complex.

•Its architect’s plan for the project was rejected by the District Council on the grounds that the land was being acquired for residential, industrial and public purpose.

Yew Lean Finance’s case:•Pf contended that the land was being

acquired for some vague purpose and thus the Notice of Intended Acquisition was null and void.

•Issue: •Whether the notice had to particularise

the specific purpose?

Held:•1) It would not be possible/practical to

specify the exact purpose as long as it was for public purpose.

•2) There was no need for the State Authority to confine its acquisition of land to purposes which came under one head only i.e. either s.3(1)(a), s.3(1)(b) or s. 3(1)(c).

Syed Omar Alsagoff v Govt of Johore [1979] 1 MLJ 49

•Resp. had acquired some 5700 acres of land belonging to the App., where only 2000 acres were actually needed for the Pasir Gudang Port project.

•The rest of 3700 acres was marked vaguely for ‘special purposes’.

•The App. challenged the acquisition asserting that the land was in fact acquired for purposes other than those permitted under the LAA 1960.

Held:•In the absence of bad faith, it is not possible

to challenge that a portion of the land to which the declaration in the Gazette relates is in fact wanted for purposes other than those specified.

•Once the declaration in Form D is published in the Gazette under s.8(1) of the LAA 1960, this is conclusive evidence that the land is needed for such purposes in the declaration. Thus, cannot be challenged. (See s.8(3) LAA 1960)

Yew Lean Finance’s case [1977]

•Held:

•The government has the sole right to decide, what is, or what is not, a public

purpose aand the decision by the government in this respect cannot be

questioned by any civil court.

S. Kulasingam & Anor. v Comm. Of Lands, FT & Ors. [1982] 1 MLJ 204

•“The expresion ‘public purpose’ is incapable of a precise definition…but in

my view it is still best to employ a simple common sense test, that is, to see

whether the purpose serves the general interest of the community”

•(per Hashim Yeop Sani, J.)

3 stages involved:

•A. Pre-Acquisition•B. Acquisition•C. Post Acquisition

Pre-Acquisition Stage•1) Under s.4(1) LAA, the State Authority

will issue a Notice of Intended Acquisition in Form A (NOTICE THAT LAND IS LIKELY TO BE ACQUIRED). This will be published in the Gazette.

•2) The LA will give public notice of Form A. How? (see s.52) – posted at the District land office or public notice boards near the land.

Effect of Form A?•1) Notifies the public that the said land is

under consideration by the State Authority to be acquired for the purposes stated.

•2) Gives notice that an authorised person may enter into the land to conduct survey

operations. (preliminary investigations by the State Authority).

•3) The State promises to compensate for any damage caused.

Hong Lee Trading & Construction S/B v Taut Ying Realty S/B [1991]•Held:•The notification u-s.4 of the LAA 1960 is

intended to serve as a notice to the public at large that certain land in a particular locality in the state ‘is likely to be needed’ for any of the purposes mentioned in section 3.

When will Form A lapse?•See s.4(3):

•After 12 months if the land described has not yet been gazetted in Form D

(Declaration of Intended Acquisition).•State Authority may issue fresh

notification if the first one lapses.( s.4(4))

Entry and Survey on Land•3) U-s.5 of the LAA 1960, entry and

investigation is done by state officials authorised by Form B (authority to Enter and Survey)

•Note however, the officials cannot enter any dwelling house except after obtaining consent of the occuppier after sending 3 days notice in writing of its intention to do so.

Preparation of Plan and List of Lands•4) Under s.7, LAA 1960, the LA must

prepare and submit to the SA a plan of the whole area of such lands and a list of such lands in Form C (Schedule of Lands Affected by Acquisition)

Declaration of Intended Acquisition•5) Under s.8(1) LAA 1960, when the State

Authority has decided that any of the lands in the plans submitted to it are needed for any of the purposes in s.3 LAA, it will declare this in Form D (DECLARATION OF INTENDED ACQUISITION).

•Form D must be gazetted and is conclusive evidence that the land is needed for the purpose specified therein. (s.8(3) LAA 1960)

Honan Plantations S/B v Kerajaan N. Johor & Ors. [1998]

•The declaration in Form D is conclusive as to the purpose for which the scheduled lands are required which would mean that

Parliament has decided that the State Authority is the best judge to determine

what amounts to a purpose which is beneficial to economic development.

LA to Mark Out Areas of Land to be Acquired and Note on RDT

•6) Under s.9 LAA 1960, after the declaration made in Form D (s.8), the LA must mark out on a Master Plan at the land office, the areas affected by the acquisition and make a note of the intended acquisition on the RDT.

LA to Consult Planning Authorities on Land Use

•7) Under s.9A, the LA must consult the State Director of Town and Country Planning regarding the use of the lands to be acquired for purposes of calculating the award of compensation.

B. Acquisition Stage•1) Begins with the LA publishing a

Notice of Enquiry in Form E fixing the date and venue of enquiry to hear all claims to compensation by persons interested.

•(Note: Form E is enclosed together with the schedule in Form D.)

•Date for enquiry must be after 21 days of publication of Form E.

Service of Notice to Persons Interested•2) LA shall serve copies of Form E to:

(s.11)

Failure to Serve Notice to RP or Those With Registered Interests Will Not Invalidate

Enquiry

•See proviso to s.11.

LA may Issue Form F requiring RP, etc. to furnish info. on land

(s.11(2))•3) LA may issue Form F on the RP, etc. to furnish a statement in writing of knowledge concerning:

Issue: If the LA does not issue Form B, and does not serve Form F, is the acquisition invalid?•Ng Kim Moi & Ors. v. PTD Seremban &

Anor. [2004]•-The appellants land in Labu was acquired

by the State government of N.9.•The Appellants complain that the

acquisition was in violation of the law in that Forms A and B prescribed by the Act were never issued and that Forms D, E and F though issued were not served.

Held (COA):• 1) It is not mandatory that Form B be issued

or that Form F be served.• 2) The notification in Form A is also not

mandatory. Reasons: The significance of Form A are two: Firstly, to enable the State

Authority to authorise persons to enter the land to do certain work. Secondly, it is the date upon which the market value of the land is ascertained according to the First Schedule. First Schedule also provides for ‘any other cases’.

Gopal Sri Ram (dissenting):•Since the LAA 1960 is a statute that is aimed

at deprivation of property, courts require the acquiring authority to act strictly in accordance with the terms of the Act.

•The word ‘shall’ in s.4 LAA with regard to the notification in Form A is mandatory. There was a clear violation of a mandatory provision of the LAA 1960. Deprivation of the App.’s property was not done in accordance with law. Contravenes Art. 13(1) Fed. Consti.

Power of LA during Enquiry (s.13)

•4) LA in conducting enquiry will have power like a judge in court – may summon and examine witnesses and order the delivery of documents, etc.

PHT, Daerah Barat Daya (Balik Pulau) Pulau Pinang v Kam Gin Paik [1983]•Held (Fed. Ct.):•“It is fairly clear … that the function of

the Collector is not merely administrative but there is implied a proper exercise of discretion.”

Report from the Department of Valuation and Assets Services

•Before making the award, the LA will request from the Dept. of Valuation and Assets Management (JPPH), Ministry of Finance, a report to advise him on the determination of compensation for the

land.

•(Note: Administrative step, not in statute)

Award of the LA•5) Award in Form G under the hand of

the LA.Separate awards are apportioned in

the schedule. (See Form G.)

(Note: Compensation is assessed according to the First Schedule.)

Notice of Award and Offer of Compensation (s.16)

•6) The LA will issue a notice in Form H to persons having interest in the land

informing them of the award and offer of compensation.

Summary Enquiry (s.17)•Where the number of persons or area of

land is small, the LA has discretion to hold a summary enquiry and make an oral

award under s.17. (See)

Taking Possession (s.18)•Possession of land is taken by the LA at

the time of serving Form H (Notice of Award and Offer of Compensation) on the occupier of the land.

•Formal possession is taken by the LA by serving on the occupier a Notice in Form K. (Notice That Possession Has Been Taken of Land – s.22)