qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmrtyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghj
LAND ACQUISTION
Ai'da Fazihrah NazriJuly, 2008
Introduction
Land acquisition involves the compulsory taking of land, often against the will of
the land owners. The law in Malaysia requires the state to pay compensation
adequately; however, adequate compensation is not defined in the statute.
Historically, the courts seem to have succumbed to the pretence that the
adequacy requirement may be achieved by giving sufficient monetary rewards in
exchange.
Freedom of the person and the right to acquire, hold and enjoy property are the
two pillars on which a democratic society rests. These are characteristics as
natural rights of the people. Property is not only an economic asset; it also has
emotional and sentimental value (Jain & Xavier, 1996). The right to property is
not absolute. This right has always been regarded as being subject to eminent
domain, an inherent right of the state, an essential part of the state sovereignty
(Ghosh, 1973). Eminent domain is subject to two essential conditions: private
property is to be taken only for public use; and just compensation must be paid
for the property taken (Keith, 1984). Land acquisition, therefore, is a way of direct
control over land development. Land acquisition is also the government’s tool to
assemble land in resolving the land supply problems for development. Land
assembly through land acquisition is a way out to solve problems with
landownership and landowners’ reluctance to offer their land for development
(Omar & Ismail, 2005).
Land Acquisition Law
The power of compulsory purchase supports the land assembly negotiations in
order to avoid situations where individual landowners can freeze development by
refusing to sell, particularly by trying to hold out for unreasonable purchase price
(Ball, 1996). Under certain circumstances, such as when there are
landownership problems and passive landowners, the government feels that to
2
undertake land development by compulsory purchase is more complicated, time
consuming and more expensive than to reclaim land from sea for development in
certain waterfront areas (Omar, 1999; Omar & Ismail, 2005).
The government of Malaysia is engaged in a massive programme of construction
of various public works all over the country that involves acquisition of private
land on a large scale. The government intervention over land development is
directly exercised under the power of land acquisition as stipulated under the
Land Acquisition Act (1960), and provided under Article 13 of the Malaysian
Constitution (1957). This article stipulates that no person may be deprived of
property in accordance with law and no law may provide for compulsory
acquisition or for the use of property without adequate compensation. With
reference to the clause of the land acquisition by the Federal Government, Article
83 set out detailed procedures for land compensation as stipulated by the
Malaysian Constitution (1957). Therefore, using the power contained in the Land
Acquisition Act (1960), the government can acquire land for public purposes with
adequate compensation as determined under Schedule 2 of the Act. Adequate
compensation, therefore, as stated under the provision of Article 13(2) of the
Federal Constitution refers to the amount of compensation which is decided,
considering all principles stated under the First Schedule of the Land Acquisition
Act 1960. Even though the State Authority, under the provision of Land
Acquisition Act 1960, has the power to possess any private land, it does not
allow the authority to violate one’s right onto their private properties (Omar &
Ismail, 2005).
Land Acquisition Act 1960 (Act 486)
Land Acqusition Act 1960 was firstly enacted in 1960 with (Act No 34 of 1960)
and has been revised in 1992 (Act 486 w.e.f 18th March 1992). Act 486
containing eight parts with 70 sections. According to Act 486, Land Acquisition
3
Act is an act relating to the acquisition of land, the assessment of compensation
to be made on account of such acquisition, and other matters incidental thereto.
Under the section 3 (1), land may be acquired by the State Authority which is
needed:
(a) for any public purpose;
(b) by any person or corporation for any purpose which in the opinion of
the State Authority is beneficial to the economic development of
Malaysia or any part thereof or to the public generally or any class of
the public; or
(c) for the purpose of mining or for residential, agricultural, commercial,
industrial or recreational purposes or any combination of such
purposes.
Section 3 (3), stated that any application made under para. (1) (b) or (c) shall be
accompanied by
(a) the project proposal;
(b) the layout and land acquisition plan;
(c) the preliminary Government valuation report of the land to be
acquired; and
(d) such fee and deposit as may be prescribed in the Rules made under
this Act:
Section 4 (1) provides that a notification in Form A shall be published in the
Gazzette.
Under the Section 5 empowers officials from the State Authority to enter and
survey the acquired land but the right exist only when express permission has
been given by the occupier or, falling such consent, after three day’s written
notice has been given to the occupier of such dwellings premises. But if any
persons causes damage to the land entered upon he shall as soon as possible
4
compensate the occupier for all such damage, which clearly stated in section 6
(1)
Under Section 7, whenever any lands are needed for any of the purposes
referred to in section 3, Land Administrators shall prepare and submit to the
State Authority:
(a) a plan of the whole area of such lands, showing the particular lands, or
parts thereof, which it will be necessary to acquire; and
(b) a list of such lands, in Form C.
Under section 8 (3), it is provided that a declaration of state authority in Form D
(which is the Declaration of Intended Acquisition) shall be conclusive evidence
that all the schedule land referred to therein is needed for the purpose specified
therein. This provision would therefore seem to place the issues of “purpose”
beyond any challenge or questions by the deprived owner, and this view seems
to be supported from the scanty case-law on the matter which indicates that the
only grounds left open for the owner to challenge the acquisition are mala fide or
that the acquiring authority had misconstrued its statutory powers.
In Section 8 (4), a declaration made under section 8 (1), will lapse and cease to
have any effect on the expiry of 2 years after the date of the publication in the
Gazzete in so far as it relates to any land in respects of which the Land
Administrator has not made an award and accordingly all proceedings already
taken or being taken in consequences of such declaration will terminate and be
of no effect.
Section 9 stated that, after declaration of intended acquisition in Form D has
been published in the Gazzette, the land to be acquired must be marked out and
a note of the intended acquisition must be made upon the register document of
title.
5
Under section 10, the Land Administrator will then give public notice of an
enquiry, stating the day, place, and hour of enquiry in accordance with Form E. A
copy of the schedule to the declaration in Form D shall be appended to every
notice in Form E. The purpose of the enquiry is to hear all claims for
compensation in respects of the acquired lands. There must be 21 days clear
notice before the enquiry can be convened.
Section 11 stated that, in addition to the public notice as required in subsection
10 (1), Land Administrator are required to serve a copies of Form E upon the
occupier of such land, the register proprietor of such land, any person having a
registered interest in the land and any other person whom he knows or has a
reason to believe to be interest therein.
The enquiry by the Land Administrator is stated in Section 12, where Land
Administrator shall make a full enquiry into the values of lands and shall as soon
as possible thereafter the amount of compensation which is appropriate in
accordance with the principles set out in the First Schedule. The Land
Administrator also is required to hear all objections, if any, submitted by any
interested person and may postpone or adjourn the enquiry from time to time,
where there is sufficient cause to do so, the circumstance of which must be
recorded in writing.
Under section 14, at the conclusion of the enquiry, the Land Administrator must
make his award, which must be in writing, under his hand, in accordance with
Form G. He must make a separate award in respects of each person entitle to
the award. Section 14 (2) expressly stipulates that the award is final and
conclusive as to the area, value and apportionment of the compensation whether
the person interested have appeared or not in the enquiry. An award shall not be
invalidated by reason only of the fact that are in respects of which the award is
made is greater or smaller than the schedule land, provided that the differences
6
does not exceed one quarter of a hectare or one percent of the area of the
scheduled land, whichever is the greater.
In section 16 (2), every notice in Form H shall include an extract from the written
award of the Land Administrator in Form G, relating to the land in which the
person to whom such notice is addressed has an interest.
Summary of enquiry is stated in Section 17, where whenever a notice in Form E
has been served in respect of any schedule land, has been satisfied by the Land
Administrator, he may in lieu of making an enquiry under section 12 proceed by
way of a summary enquiry that shall be held in such manner and at such places
as the Land Administrator may think fit and on enquiring into the respective
interests of all persons claiming compensation in respects of the schedule land.
The Land Administrator may, where any award under subsection (2) is accepted:
(a) require the title to the scheduled land to be delivered to him
forthwith; and
(b) upon any such delivery pay to the person interested therein the
amount of the award.
Under section 18 stated that the general power of the Land Administrator may
take possession:
(a) of any land in respect of which an award has been mande under
section 14, such possession being taken at the time of the service
upon the occupier of such land of a notice in Form H or at any time
thereafter;
(b) of any land specified in a Certificate of Urgency issued under
section 19, whether or not any awards has been made in respect of
such land:
7
In cases where the amount of compensation exceeds RM 15,000, the Land
Administrator is now obliged under section 29A to release only 75% of the award.
The balance is to be withheld until the amount of compensation is finally
determined either by a court of law in cases where objections to the amount of
compensation had been made under section 37 of the Act. If no objection is
made, then the release of the balance will be made upon expiry of six weeks
from the date of the service of Form H on the government, person or corporation
on whose behalf such land was acquired.
Section 37(1) stated that any persons who has made a claim to the Land
Administrator in due time and who has not accepted the award thereon, or has
accepted payment under protest, may make objections to the Land Administrator
as to the following:
(a) the measurement of the land;
(b) the amount of compensation;
(c) the person to whom it is payable;
(d) the apportionment of the compensation.
In section 38, any objections must be made by a written application in Form N,
addressed to the Land Administrator, requiring the latter to refer the matter to the
High Court for its determination. The application must state fully the nature of the
person’s interest in the land, the nature of his objection, and the ground in
support that objection.
Apart from section 37, under which the Land Administrator is obliged to refer to
the court land acquisition cases upon application by interested persons or the
government or public body or agency on whose behalf the land has been
acquired, the Land Administrator may also on his own motion, by means of an
application in Form M, refer to the High Court for its determination regarding any
of the following matters:
8
(a) the true construction or validity or effect of any instruments;
(b) the person entitled to a right or interest in land;
(c) the extent of nature of such right or interest in land;
(d) the apportionment of compensation is payable;
(e) the cost of any enquiry under the Act and the persons by whom
such cost shall be done.
Under section 39, before making any reference to the court, Land Administrator
may require any person making the application to deposit with Land
Administrator such sum not exceeding RM 1,500 or the award, whichever is the
less, as security for cost of reference and appeal. If the deposit is not made
within 14 days of it being required by the Land Administrator, the applications for
reference shall be deemed to be withdrawn and the Land Administrator award
shall thereupon become final.
Compulsory Land Acquisition
According to Gurjit Singh (1994), The Malaysian Constitution provides in Article
13 that no person may be deprived of property save in accordance with law and
no law may provide for compulsory acquisition or use of property without
adequate compensation. Under the Land Acquisition Act 1960 (Government of
Malaysia, 1960), the State Government could acquire land for a specific public
purpose. By virtue of an amendment in 1973, land could also be acquired for
mining, residential, commercial or industrial purposes. For the government this is
a method of land assembly. Public purpose projects are also a means through
which broad sectoral policies of the NEP and NDP are translated into physical
projects for the benefit of the population.
There have been many public purpose projects which have brought development
and basic facilities to the rural areas. The existing law provides for a
9
cumbersome framework for acquisition of land. Compensation is paid for all land
taken. However, where an element of betterment is present there have been
instances where adequate compensation in the form of nominal sums has been
paid (Government of Malaysia, 1960). Where aggrieved parties are not satisfied
with the compensation received there are mechanisms for appeal to the courts.
The framework allows the government to take possession of the land even
though the compensation is being appealed in court. This is to ensure that public
projects are not delayed.
The provisions of the Act have also been used somewhat unimaginatively to
prevent land speculation by gazetting the large areas in which the land is to be
acquired under Section 4 of the Act thereby “freezing” all land transactions in the
area. The maximum period for such a freeze is one year and there are provisions
for renewal through the publication of fresh gazettes. Such antics are problematic
for land owners in an area who are faced with uncertainty as to whether their
land is to be acquired.
There have been instances where such owners because of the quandary they
face are pressured by unscrupulous land hoarders to “sell” their land to them.
These unfortunate landowners are usually smallholders who have ironically been
the target group of the NEP and NDP in reducing their poverty levels. Recently,
in 1991 the Government amended some critical provisions of the Act. Section 3
of the Act was amended to provide for the compulsory acquisition of land for any
purpose deemed beneficial to the economic development of Malaysia or to the
public or any class of the public. The reason given by the government for this
amendment was that Government could not conform to Article 86 (1) of the
Constitution which gives the right to Government to alienate land to anyone who
is qualified as the Act does not provide for the alienation of compulsory acquired
land to third parties.
10
Another amendment was the inclusion of a new section 68A which now prevents
any land acquired from being invalidated as a result of a subsequent disposal or
a change of use of land. This amendment was also retrospective. On this
amendment the Government stated that it faced problems in continuing
development projects that have been abandoned as there is no provision in the
Act to allow for the development of projects other than that which is stipulated as
a public purpose project in the notice of acquisition. Hence the usage of the
acquired land could not be changed under the Act. The amendment now
overcomes this constraint.
The amendments give the Government very wide power to acquire land for
developments not necessarily of a “public purpose”. It is envisaged that such
amendments will encourage a land policy which will favour private corporations
who have now an avenue to obtain other strategic privately owned land through a
legal mechanism which was intended to provide incremental benefit to the public
at large. However, this not to say that public purpose projects will not be carried
out on all land that is compulsorily acquired as there will still be numerous public
purpose projects.
Constitutional Position for Land Acquisition
Land acquisition is an interference with the individual’s right to property. In
Malaysia, that right is guaranted under Article 13 of the Federal Constitution,
which provided that
(1) No person shall be deprived of property save in accordance with
the law;
(2) No law shall provided for the compulsory acquisition or use of
property without adequate compensation
This constitutional safeguard therefore demands that before any privately-owned
land can be compulsorily acquired or used by the authorities, there must first be
11
enacted a specific law providing for that purpose, and that law must lay down in
the clearest of terms the procedure for such compulsory acquisition and the
principles to be applied in awarding an ‘adequate compensation’ as guaranteed
in the Federal Constitution.
That specific law is now known as the Land Acquisition Act 1960 (Revised 1985),
a federal law passed by the Federal Parliament, repealing eight different statues
enacted earlier. The Preamble to the act states that it is ant act intended to
“consolidate the law relating to the acquisition of land, the assessment of
compensation to be made on account of such acquisition, and other matters
incidental thereto.” The First Schedule to the Act enunciates in detail the
principles of ‘market value’, thereby ensuring that the sum paid to the deprived
owner will constitute an adequate compensation.
In Malaysia, only the State Authority can acquire lands compulsorily, even in
cases where the lands acquired are required by the Federal Government, a
federal agency or a statutory corporation. The term “State Authority” has been
defined in section 2 of the Land Acquisition Act 1960 to mean “the Ruler or the
Governor of the State”.
The 1960 Act has a two-fold objective, firstly to provide a standard method of
procedure applicable to all the states in Malaysia, a secondly to serve as a
speedy mechanism for acquiring land compulsorily where they are needed
urgently for development purposes. Properly implemented, the Act should be
able and rendering justice to the dispossessed owners. The 1984 amendment to
the law is a case in point.
Purposes of Acquisition
A law providing for compulsory acquisition of private land is necessary because
of two main reasons. Firstly, the owner is unwilling to part with his property
12
whateger may be the price that he is offered, and secondly, the land to be
acquired may be currently subject to a certain category of land use whilst the
authorities might have a different plan for it. The Land Acquisition Act overcomes
these two hurdles and ensures that government development programme can
take off without any undue delay.
Acquisition implies that there must be an actual transference of property and it
must be possible to indicate some person or body to whom it is transferred.
Mukherjee j (1951) state that acquisition means the acquiring of the expropriated
owner, whatever the nature or extent of that title may be. The entire bundle of
rights which were vested in the original holder would pass on acquisition to the
acquirer leaving nothing to the former.
The effect of a compulsory acquisition is that the owner is divested of his
indefeasible title to his land and his paramount right to the exclusive use and
enjoyment of the land as guaranteed under the Code has come to an abrupt.
According to Salleh Buang (2005), purpose of acquisition is stated in section 3(1)
of the Act states that private property can be compulsorily acquired by a State
authority if it is needed
For any public purpose;
By any person or corporation for a purpose which, in the opinion
of the State authority, is beneficial to the economic development of
Malaysia or any part thereof; or
For mining/ residential/ agricultural/ commercial/ industrial/
recreational purposes or any combination of such purposes.
The term “public purpose” has not been expressly defined. Parliamentary
reluctance has meant the matter is left to the courts to interpret. Unfortunately,
the courts have consistently declined to do so.
13
In S. Kulasingam & Anor vs Commissioner of Lands, Federal Territory & Ors
(1982, 1 MLJ 204), the court said, “The expression ‘public purpose’ is incapable
of a precise definition”. In this, the Malaysian courts were following the practice
adopted in India.
It is indeed a pity that when the relevant law in India was revamped, with the term
“public purpose” extensively defined, Malaysia failed to follow suit. Thus, the term
was left adrift in a sea of uncertainty, tossed between waves of conjecture and
speculation.
As for the acquisition of private property for “economic development”, this
provision has in the past led to abuse. There had been cases of alienated land
being acquired from “X” only to be given to “Y” later, via privatisation.
In one northern State, there was a plan to acquire padi land and turn it into a golf
course. There were strong objections from members of the public and mercifully,
the plan was shelved.
In Syed Omar vs Government of Johor (1979, 1 MLJ 49), private property
belonging to the plaintiff, measuring some 5,700 acres, was compulsorily
acquired even though only 2,000 acres were actually needed for the construction
of the Johor Port. The remaining portion of the land was marked for “future
development”.
The aggrieved owner challenged the acquisition on various grounds, including
mala fide (done in bad faith). His attempts failed.
It is rather unfortunate that counsel for the plaintiff (and the courts hearing the
case at the trial as well as the appeal stages) did not refer to an earlier decision
14
of the Privy Council in the Sydney Municipal Council vs Campbell (1925, AC
338). The decision could well have been be different, had they done so.
Details Procedure
Salleh Buang (2005) stated that, The Act sets out in detail the procedures a State
authority will have to comply with if it wants to acquire land. There, many sections
outlining the process, from the time the preliminary notice is given of the intention
to acquire specific parcels of land (see related story).
The Act saw some dramatic amendments in 1997, when Parliament stepped in to
check instances of past abuses. They now appear as Sections 3A to 3F (new
procedures when land is acquired for development).
Another new section is 9A, with which the Land Administrator is empowered to
obtain information on the current use of the land to be acquired, in order to work
out compensation. Sections 40B to 40D specify the role of assessors in
“assisting” a judge to decide the amount of compensation. This decision is “final”
and not subject to appeal before a superior court.
Though welcomed, these amendments still fail to match the expectations of the
people.
In 1998, the minister responsible for land matters brought in the Land Acquisition
Rules with the approval of the National Land Council. These rules govern the
procedures for the acquisition of land for economic development or for any other
specific purpose.
Measure of Compensation
15
Article 13 of the Federal Constitution requires that “adequate compensation”
must be paid for every land acquisition. The Act states that after the Land
Administrator has completed the enquiry pursuant to the provisions of section 12
thereof, he must as soon as possible thereafter assess the amount of
compencation which in his opinion is ‘appropriate’ in accordance with the
principles set out in the first schedule.
In cases where the matter has been referred to the court, section 47 stipulates
that the decision of the court, when awarding compensation to the deprived
owner, must specify:
(a) the amount on account of the market value of the land under para (a)
of section 2 of the First Schedule;
(b) the amount, if any, deducted under para. (b) of the said section;
(c) the amount, if any, respectively awarded under para. (c), (d) and (e) of
the said section; and
(d) in respect of each amount, the grounds for awarding or deducting the
said amount.
According to Anuar Alias and Md Nasir Daud, In Malaysia, federal, state, local
governments and public authorities are vested by statute with the power to
acquire land. The law of land acquisition is principally concerned with the rules
governing the procedure to be followed in acquiring the land by compulsory
means and with the awarding of compensation to the dispossessed landowner.
Here, property is acquired by the state against the will of the landowner, but this
can be done in the public interest and not in private interest (Brown, 1991).
Eminent domain does not permit taking property of A and giving it to B to confer
benefit on him. It also does not permit taking away property without just
compensation. It is not eminent domain but expropriation, and this is illegal (Jain
& Xavier, 1999).
16
The land acquisition statutes also provide that a dispossessed landowner shall
receive compensation for the loss of the resumed land. According to Rowan-
Robinson and Brand (1995), the purpose of compensation is to compel the
owner to sell the right (in monetary terms) as though the land owner is in the
same position as if his land had not been taken.
In other words, the landowner gains the right to receive a monetary payment not
less than the loss imposed on him in the public interest, but, on the other hand,
no greater. The underlying theme in the compensation provisions of the land
acquisition statutes is to ensure that a dispossessed landowner is no worse off
and no better off as a result of his eviction (Brown, 1991). This paper presents a
study conducted via questionnaire survey amongst practising valuers in
Malaysia.
Land is acquired in Malaysia under the Land Acquisition Act 1960. This is a
serious encroachment on the right to property by legislation, although the fact
remains that over a period of time, the law has been liberalized in certain aspects
(Brown, 1991; Jain & Xavier, 1996). Nevertheless, there are still some aspects of
the law which need to be modified (Jain & Xavier, 1996). Land acquisition and
compensation matters are therefore entirely creatures of statute (Xavier, 2001).
Historically, the courts have declared that the requirement may be satisfied by
expressing adequate compensation in terms of money. The problem then is to
find out, how much money is required to meet the constitutional mandate that
adequate compensation be paid? To solve this problem, practitioners rely upon
the concept of market value that is also provided under the laws of compulsory
acquisition.
The law requires in any acquisition of land that the State Authority pay adequate
compensation. The term ‘adequate compensation’ is not defined. It is totally
abstract; it has no meaning from a practical standpoint, unless it is related to
17
something which has a concrete value (Graham, 1984 in Khong, 1996). Market
value and adequate compensation are not defined in acquisition laws, neither
has it been contended that adequate compensation and market value are the
same thing. Obviously, in some cases they are not, rather the idea is that market
value is the best method of satisfying the requirement that adequate
compensation is paid. The idea is sound and it works well in practice (Khublal,
1994 in Khong, 1996). Therefore, it is the desire of the state to give adequate
compensation based only on market evidence, and if each party involved in land
acquisition will act in accordance with professional ethics, honesty and integrity,
the objective of arriving at adequate compensation will be achieved based on
market value (Khublal, 1994).
Dundas & Evans (2001) stated that the compensation on the market value basis
is considered to be satisfactory; however, there is a feeling that an additional
payment, probably a percentage of the value, should be paid to all property
owners or, perhaps, only to a restricted category, such as owners/occupiers.
Epstein (1998) acknowledges that restrictions on the rights of others often serve
as a form of implicit, in-kind compensation. For example, zoning restrictions in a
residential neighbourhood may be justified by the average reciprocity of
advantage received by residential landowners. A study in Aberdeen (RICS, 1995;
Rowan-Robinson et al, 1995) also recommends that a supplement should be
paid. If the compensation were seen to be more generous, it could be possible to
present compulsory purchase positively to the extent that, if it were sufficiently
high, owners/occupiers might welcome compulsory purchase.
Market Value
According to Salleh Buang (2005), To ensure that the dispossessed owner is
adequately compensated, the term “market value” has also been extensively
defined in the First Schedule of the Act.
18
Market value now means the value of the land as at the date the notice to
acquire it is published in the Gazette, provided the notification is followed by a
declaration to acquire, which must be made within 12 months. If the declaration
is done later than 12 months, then the market value has to be the value on the
date the declaration is published in the Gazette.
The First Schedule also outlines “matters to be considered in determining
compensation” as well as “matters to be neglected” (or not to be considered) in
determining the quantum of compensation.
In Ng Tiou Hong vs Collector of Land Revenue Gombak (1984, 2 MLJ 35),
Federal Court’s Syed Agil Barakbah (J) explained that market value means the
sum of money that a willing vendor might reasonably expect from a willing
purchaser. The elements of unwillingness, sentimental value and urgency of the
acquisition must be disregarded. Prices of sales of similar land in the
neighbourhood or locality and of similar quality and positions may be taken into
consideration. The potentials of the land must also be taken into account.
Estimates by value are undoubtedly some evidence but too mush weight should
not be given unless supported by, or coincide with, other evidence.
In Bukit Rajah Rubber Co. Ltd vs Collector of Land Revenue Klang (1968, 1 MLJ
176), Raja Azlan Shah (J) said that no hard and fast rule can be laid down for
assessing the market value of the land acquired.
Evidence of (a previous) sale of the land is the safest guide. In the absence of
such evidence, then evidence from the sale of similar land in the neighbourhood
can be considered. The property must be valued not only with reference to its
condition at the time of acquisition but also its potential development value.
19
Conclusion
The main issue of land acquisition is the quantum of compensation that is
perceived by the respondents as inadequate to fulfill adequate compensation
notion under the spirit of Constitution. There is a need to review the heads of
compensation structure by incorporating other countries, practices. Although
there is a broad acceptance that market value is the appropriate basis for
compensation for land taken, perhaps there is also a general feeling that a
solatium or premium should be paid to compensate the claimant for the
compulsory nature of the acquisition. Most of the valuers perceived that land
acquisition need not necessarily present the best alternative for government to
secure land for development. Other alternatives such as direct purchases
through negotiation and joint venture are the alternatives available for
government to exercise rather solely depending on land acquisition powers. Land
acquisition is a complex process, is sensitive in nature, and needs pragmatic
approach to deal with. Wherever possible, land developments should be carried
through the process of normal economic supply and demand. The problems of
compensation are more than just a matter of law and valuation; it is a matter of
justice between society and man. “The word compensation would be a mockery if
what was paid was something that did not compensate”.
20
Appendix 1 : Form A
NOTICE THAT LAND IS LIKELY TO BE ACQUIRED
It is hereby notified that lands in the locality described in the Schedule hereto, including
those lands, if any, specified by lot number or by the lot numbers of neighbouring lands,
are likely to be needed for the following purpose:
................................................................................................................................................
................................................................................................................................................
2. It is further notified that any person authorized by the State Director in that behalf may
enter upon any land in such locality in order to examine it and undertake survey
operations. If any damage is done in the course of such work compensation therefor will
be paid. Any dispute as to the amount of such compensation will be referred to the Land
Administrator at ....................................................................................................................
Dated this ............ day of ........................, 20.......
....................................................
State Director
SCHEDULE
District........................................................................................………....................………
Mukim ..…………………………………………………………………………………….
Township
Description of the locality......................................................................................................
22
Appendix 2 : Form B
AUTHORITY TO ENTER SURVEY
To......................................................................
..........................................................................
You and your servants and workmen are hereby authorized, subject to paragraph 2, to enter upon
—
*(i) any lands in a locality which has been the subject to a notification issued under section
4 of the Land Acquisition Act, or
(ii) any lands in the locality scheduled in Gazette Notification
No.......................... of ........................................................
and to do any or all the following:
(a) survey and take levels of the land;
(b) dig or bore into the subsoil;
(c) do all other acts necessary to ascertain whether the land is adapted for the purpose for
which it is to be acquired;
(d) set out the boundaries of the land proposed to be taken and the intended line of the work,
if any, proposed to be made thereon;
(e) mark such levels, boundaries and line by placing marks and cutting trenches;
(f) cut down and clear away any standing crop, fence or jungle, where otherwise the survey
cannot be completed, or the levels cannot be taken, or the boundaries or line of the work
cannot be marked.
2. Neither you nor any of your servants and workmen may enter into any building or upon any
enclosed court or garden attached to a dwelling house, unless you have first obtained the consent
of the occupier thereof, or, failing such consent, have given such occupier three days’ notice in
writing of your intention to do so.
Dated this ............ day of ........................, 20.......
...................................................
State Director
*Delete which is inapplicable
23
Appendix 3 : Form C
SCHEDULE OF LANDS AFFECTED BY ACQUISITION
District ..............................................................................
Mukim/Township ..............................................................
Survey Lot
No
Title of
Occupation
Registered Proprietor or
Recorded occupant
Area of
lot
Approximate
area to be
acquired
Appendix 4 : Form D
DECLARATION OF INTENDED ACQUISITION
It is hereby declared that the particular lands and areas specified in the Schedule hereto are
needed for the following purpose:
.............................................................................................................................................................
............................................................................................................................................................
2. A plan of the particular lands and areas so specified may be inspected during the normal hours
of business in the Land Office of the District in which such lands and areas are situated.
Dated this ............ day of ........................, 20.......
.....................................................State Director
[Schedule as in Form C, amended, if necessary, in accordance with the decisionof the State Authority]
24
Appendix 5 : Form E
INTENDED ACQUISITION: NOTICE OF ENQUIRY
In accordance with the declaration of intended acquisition of the lands described in the Schedule
hereunder, notice is hereby given that an enquiry to hear all claims to compensation for all
interests in such land will be held on .................day of ..................... at ................................ hours
at .........................................
2. All persons having interests in the said land, whether as proprietor, occupier, lessee, chargee,
tenant or otherwise, are hereby required to appear before the undersigned at the above time either
personally or by agent and there to state—
(a) the nature of their respective interests in the land;
(b) the amount and particulars of their claims to compensation for such interests;
(c) their objections, if any, to the measurements of approximate area given in the Schedule
below;
(d) the names of any other person known to the party or his agent to possess any interests in
the land or any part thereof, and to produce all documents relating to their claims.
3. Notice is further given that the undersigned may require—
(a) that in any particular case any such statement or statements should be reduced to writing
and signed by the party or his agent;
(b) that any person in possession of the issue document of title in respect of any land
scheduled below deliver up such document at the time of inquiry.
Dated this ............ day of ........................, 20.......
......................................................
Land Administrator
[Schedule in Form D]
25
Appendix 6 : Form F
NOTICE TO REQUIRE EVIDENCE IN WRITING
To .....................................................
...........................................................
...........................................................
Whereas the undersigned has reason to believe that you have particular knowledge of the
land referred to in the attached notice (Copy of Form E to be attached):
Take notice that you are hereby required to furnish, within ..................................... days
of this date, a statement in writing declaring the following:
(a) separate valuations of the land and of the improvements, if any, thereon, showing the
basis upon which such valuations are made;
(b) the name of every person possessing any interest in the land or any part thereof, either as
co-owner, chargee, lessee, sub-lessee, tenant or otherwise; and
(c) the nature of any such interests and the amount of the rents and profits, if any, received or
receivable on account thereof for the three years immediately preceding the date of this
notice.
Dated this ............ day of ........................................, 20.......
..................................................
Land Administrator
I, the undersigned, .......................................................................hereby acknowledge
receipt of the above notice.
Dated this ............ day of ..........................................., 20.......
26
Appendix 7 : Form G
WRITTEN AWARD OF COMPENSATION
Acquisition Hearing No ................................................. in respect of Lands scheduled in Gazette
Notification .....................................................
The awards set out in the Schedule hereto are hereby made in respect of the areas of land
specified therein, to the persons interested therein, as specified below
SCHEDULE
Lot No Area requiredPersons
interested
Nature of
interest
Apportionment
of Award
For Official
use
Dated this ............ day of ....................................., 20.......
..................................................
Land Administrator
Appendix 8 : Form H
27
NOTICE OF AWARD AND OFFER OF COMPENSATION
To .........................................................
...............................................................
...............................................................
You are hereby informed that at the hearing before the undersigned on the ...................... day
of ......................................... an award as in the Schedule hereto was made in respect of the lands
specified therein in which you have an interest.
2. In accordance with this award I hereby offer you the sum of RM ......................... being the
amount specified below as full compensation for your interest in this land.
3. Take notice that section 29A of the Land Acquisition Act 1960 requires me to withhold
twenty-five per cent of the amount of the award in certain circumstances, subject to the
provisions of that section.
Dated this ............ day of ................................., 20.......
........................................................
Land Administrator
SCHEDULE
[Relevant extract from Form C including all awards, if any, to other person/ persons interested in the land]
I, the undersigned........................................................................... hereby acknowledge receipt of the above
offer.
2. *(a) I accept the offer; and
*(i) I am prepared to attend the Land Office on any appointed day to receive payment in
*cash/cheque/money order; or
*(ii) I request that the amount due be sent to me by cheque/money order at the above address.
*(b)I accept the offer under protest.
*(c) I do not accept the above offer.
Dated this ............. day of ............................, 20.......
*Delete as appropriate
Appendix 9 : Form I
28
CERTIFICATE OF URGENCY
Acquisition Proceedings No...................... Gazette Notification No ............................
To:
The District Land Administrator,
..............................................................................................................................
Whereas the land scheduled below was declared by the above Gazette Notification to be
required for a public purpose or for a public utility:
And whereas such land is now urgently required for use for a public purpose or for a
public utility:
Now therefore in exercise of the powers conferred by section 19 of the Land Acquisition
Act 1960, I hereby certify that such land is urgently required for use for a public purpose or for a
public utility and DIRECT you forthwith to take possession of such land.
Dated this...........day of..................................., 20.......
.....................................................
State Director
[Schedule as in Form D]
Appendix 10 : Form J
29
To:
Occupier/Owner of the building on Lot No ....................................
Title No ........................ Mukim/Township ...................................
Whereas the above land has this day been acquired by virtue of a Certificate of Urgency
signed by the State Director:
Now I hereby require that you vacate the building referred to above and situated on the
said land within ...................................... days of this date.
2. Take notice further that I hereby offer to the owner of the premises compensation to
the amount of RM ......................................... which compensation represents—
*(a) the value of the building*
*(b) the cost of removing and reerecting such building elsewhere.*
Dated this ............ day of ................................., 20.......
...............................................
Land Administrator
*Delete whichever is inapplicable
Appendix 11 : Form K
30
NOTICE THAT POSSESSION HAS BEEN TAKEN OF LAND
Acquisition Proceedings No ............... Gazette Notification No .............................
It is hereby notified that I have today, pursuant to section 22 of the Land Acquisition Act
1960, taken formal possession of the land shown in the Schedule below to the extent declared in
the last column of that Schedule.
*A copy of a Certificate of Urgency issued by the State Director is annexed.
Dated this ............ day of ...................................., 20.......
...................................................
Land Administrator
[Schedule as in Form D as amended]
Appendix 11 : Form L
31
NOTICE TO DELIVER UP DOCUMENT/S
Acquisition Proceedings No ............................ Gazette Notification No .....................
To ..............................................................
..............................................................
..............................................................
Whereas the whole/part of the land comprised in Title ................... Lot......................
Mukim/Township .............................. has been formally acquired by the State Authority:
And whereas I have reason to believe that the documents of title hereinafter referred to
are in your possession:
Now therefore in exercise of the powers conferred by section 24 of the Land Acquisition
Act 1960, I hereby require you to deliver to me the document/s of title specified in the Schedule
hereto within a period of ............................ days from the date of the service on you of this
Notice.
Dated this ............ day of .................................., 20.......
.....................................................
Land Administrator
SCHEDULE
[Here list document/s of title]
Appendix 12 : Form M
32
REFERENCE TO COURT
To.......................................................................................................................
The High Court............................................................................................................................
In the matter of....................................................................................................................................
I........................................................, Land Administrator for the Distric
of ................................ in the State of.......................................... in exercise of the powers
conferred by subsection 36(2) of the Land Acquisition Act 1960, hereby refer the following
question to the Court for its determination:
2. The parties interested, so far as I know or have been informed, are as
follows:
Dated this............. day of .................................., 20..........
...............................................
Land Administrator
Appendix 13 : Form N
33
APPLICATION THAT AN OBJECTION BE REFERRED TO COURT
To:
The District Land Administrator...................................................................
ACQUISITION PROCCEDINGS NO........................................
I......................................of.......................................hereby make an objection to the award of
the Land Administrator.....................dated..............................in respect of land
Lot................................. Title.........................
2. My interest in the said land is as
follows:....................................................... .......................................................................................
......................................................................
*3. My objection is to:
(a) the measurement of the land;
(b) the amount of the compensation;
(c) the persons to whom it is payable;
(d) the apportionment of the compensation.
**4. The grounds of my objection are as follows:
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
5. In accordance with subsection 38(1) of the Land Acquisition Act 1960, I hereby require you to
refer the matter to the Court for its determination.
Dated this............. day of ................................, 20..........
...........................................
Signature of the applicant
*Delete items inapplicable.
34
**Here set out the grounds on which objection to the award is taken (in full)
Appendix 14 : Form O
Acquisition Proceedings No................................ Gazette Notification..............................................
REFERENCE TO COURT
To:
The Registrar, High Court,
...................................................
Whereas I have received an Application under section 38 of the Land Acquisition Act 1960,
requiring me to refer to the Court the following matter for its determination:
*And whereas a due deposit of ..............................ringgit has been deposited with me as
security for the costs of the reference and appeal:
Now therefore pursuant to section 38 of the said Act I hereby refer the following objection to
the Court:
[Here summarize objection/s]
2. The following is the situation and extent of the land, and particulars of any trees, buildings, or
standing crops thereon:
[Here set out details]
3. The following are the names and addresses of all the persons whom I have reason to believe
are interested in such land:
(Name) (Address) (Interest)
4. The following notices have been served upon the parties interested:
(Notice) (Name of party)
5. The following statements in writing have been made or delivered by the following interested
parties:
35
(Name of Party) (Particulars of statement)
**6. The amount awarded for damages under section 6 of the said Act
was............................ringgit.
7. The amount of compensation awarded under section 14
was..............................................ringgit.
**8. The following are the grounds on which the amount of compensation wasvdetermined:
[Here set out grounds]
9. I attach hereto copies of the following documents:
[Here list documents]
Dated this ............day of ........................................, 20.......
................................................
Land Administrator
[The above paragraphs may be completed by appropriate references to documents to be annexed
thereto.]
*Delete if inapplicable.**To be completed only where the objection is to the amount of compensation.
36
Appendix 15 : Form P
NOTICE
To..........................................................
...............................................................
LAND REFERENCE NO……………………… OF......................................
Notice is hereby given that on the...................................................day
of .............................................at the hour of....................................................in the.........................
noon, the High Court sitting at ...............................will proceed to hear and determine the
objections contained in the above Reference, and relating to the following land:
[Here insert details of land]
2. You are hereby directed to appear before the Court at such hearing.
Dated this ............ day of .............................., 20...........
. ...................................
Registrar
37
Appendix 16 : Form Q
NOTICE OF TEMPORARY OCCUPATION OR USE OF LAND
To..................................................
.......................................................
*Occupier/Owner of Lot...................Title.................. .............. *Mukim/Township……………….
All persons having any interest in the above land are hereby notified that it is required for
temporary occupation/use for the term of..................................... from
date .............................................. for the following purpose:
.............................................................................................................................................................
.............................................................................................................................................................
2. In exercise of the powers conferred by section 56 of the Land Acquisition Act 1960, I hereby
give notice that I am prepared to *make an offer of / negotiaite payment of
compensation .............................for the occupation/ use of the above land and that I require every
person having any interest in the land to appear before me on the...........................day
of................................at .........................................at the hour of ............................................... in
the fore/afternoon.
Dated this ............ day of .................................., 20.......
......................................
Land Administrator
*Delete whichever is inapplicable.
38
Source and Refferences
Anuar Alias and Md Nasir Daud (2006), Payment of Adequate Compensation
for Land Acquisition in Malaysia, Universiti Malaya, www.press.net; retrieved
on October 6, 2008
Gurjit Singh (1994), Land Laws, Land Policies and Planning in Malaysia,
Urban Management Programme (UMP), www.press.net; retrieved on September
29, 2008
Land Acquisition Act 1960 (Act 486), Laws of Malaysia
Salleh Buang (2005), Land Acquisition, National House Buyer Association,
www.hba.org.my, retrieved on October 6, 2008
39
