SBQ 3522LEGAL STUDIES 111

BY:PUAN HAJJAH NOLIZA BINTI ISA

OVERVIEW OF THE LAW ON THE LAND DEVELOPMENT IN MALAYSIA

• 1) The Federal Constitution• 2) The National Land Code 1965• 3) Town & Country Planning Act• 4) Housing Developers (Control & Licensing) Act 1966• 5) Land Acquisition Act 1960• 6) Malay Reservation Enactments• 7) Strata title Act 1985• 8) Local Government Act 1976• 9) Land (Group Settlement Areas) Act 1960• 10) Street, Drainage & Building Act 1979• 11) Enviorenmental Quality Act 1974• 12) Uniform Building By-laws• 13) Antiquities Act 1976• 14) Rent Control Act 1956 ( has since been abolished)• 15) Electricity supply Act 1990• 16) Forest Enactment• 17) Landlord & Tenant

Land:

HISTORICAL BACKGROUND

The Torrens System

Hence Torrens System confers:

• An INDEFEASIBILITY OF TITLE TO THE REGISTERED OWNER

• TEH BEE v. K. MARITHAMUTHU (1977) 2 MLJ 7 Federal Court “ under the Torrens System, the register is

everything”

BASIC FEATURES OF THE NLC 1965

BASIC FEATURES OF THE NLC 1965

• 1) The State Authority• 2) Land as a legal concept• 3) Alienation of land• 4) Rights of the Owner

PROPERTY IN THE LAND

The State Authority• 1) Land is state matter• 2) For purposes of the Federal Constitution,the

NLC 1965, was enacted pursuant to Article 76(4) Fed. Constn. & which gave legislative effect in respective states by means of state legislative

• 3) Article 13 Fed. Constn the right of individual to own property

• 4) S.40 NLC 1965 property in all State land : minerals & rock materials situated within the

territories of a State vests in State Authority

The State Authority• 5) “State Land” defined under s.5 NLC 1965 as:-

“all land in the State including the riverbed, foreshore, seabed situated within the boundaries of the State or the limits of its territorial waters OTHER THAN alienated land, reserved land, mining land & reserved forests.”

• 6) “State Authority” defined under S.5 NLC 1965

“ Ruler or the YDN of the State”

• 7) S.42 NLC 1965 on powers of disposal

“ State Authority shall have power under the Act…..” HENCE: power of the State Authority is paramount & is subservient to non.

The State Authority• 8) State Authority : unlimited powers to impose any express conditions upon initial alienation : however such powers imposed has been CURBED by the courts PTG, W.P. v. SRI LEMPAH ENTERPRISE SDN. BHD. (1979) I MLJ 135

: State, as an absolute owner of the state land+

S.48 NLC 1965 against adverse possession of State land=

Socio economic problems in the countrySIDEK & 461 OTHERS v. GOVERNMENT OF PERAK

(1982) 1 MLJ 313

Land As A Legal Concept• 1) Land under the NLC 1965 has wide meaning : S.5 NLC 1965 land includes:

(a) that surface of the earth & all substance forming that surface;

(b) earth below that surface & all substances therein;(c) all vegetations & natural product(d) all things fastened to the earth OR permanently fastened to anything attached to the earth whether

on or below the surface;

(e) land covered by water.

• 2) “Land”under M’sian Torren System = concept of land under the English law of property.

Land As A Legal Concept• 3) “Law of Fixture” adopts the meaning:-

quic quid plantatur solo, solo credit. (whatever is attached to the soil, belongs to the soil=FIXTURE)

GOH CHONG HIN v. CONSOLIDATED MALAY RUBBERS (1924) 5FMSLR 86

Judge: “ I have no doubt that we are to apply in this country the ordinary English Law of Fixture.”

• 4)Malaysian courts have decided the following instances as LAND for the purposes of S.5 NLC 1965 = FIXTURES

(i) petrol tank buried under ground SHELL CO. LTD. v. COMMISSIONER OF FEDERAL CAPITAL

(1964) 30 MLJ 303

(ii) palm oil storage erected above ground SOCFIN LTD. v. CHAIRMAN KLANG TOWN COUNCIL

(1964) 30 MLJ 325

(iii) machinery installed on factory floor GOH CHONG HIN v. CONSOLIDATED MALAY RUBBERS

((1924) 5 FMSLR 86

• 4) (iv) printing machines affixed to the factory floor by bolts & nuts WIGGINS TEAPE v. BAHAGIA TRADING

(1980) 2 MLJ 45

• v)dwelling house of plank walls & cement floor KARTAR SINGH v. PAPPA

(1954) MLJ193

• vi) seat in cinema halls• vii) statues arrange in a garden as part of a landscape design• viii) stone seats & ornamental vases arranged• ix) potraits affixed to walls as part of wall design

MATERIAL TRADING PTE. LTD. v. DBS FIANCE LTD.(1988) 2 MLJ 163 (overhead cranes held as Fixtures)

Land As A Legal Concept

Land As A Legal Concept

• 5) Courts held as chattel:

(i) tapestry nailed to walls for purposes of display & visual pleasure (ii) picture in wall paneling (iii) Stones & bricks stacked-up in a builder’s yard (iv) Malay wooden houses constructed on stilts

KIAH HANAFIAH V. SOM HANAFIAH (1953) MLJ 52

RE: TIAMBI

Land As A Legal Concept• 6) Two tests to apply in determining whether FIXTURE or CHATTEL:-

(i) degree of annexation; and (ii) purpose of annexation

GOH CHONG HIN v. CONSOLIDATED MALAY RUBBER(1924) 5 FMSLR 86

: Sproule Judge (a) the general rule is that, whatever is annexed to the realty becomes part of it; (b) BUT the rule is based on the presumption that the annexation was intended to be permanent; (c) IF the nature, the degree, the object of the annexation be such as to show that the intention was to annex the chattels to land only temporarily THEN the general rule will not apply.

Land As A Legal Concept• 7) FIRST TEST: DEGREE OF ANNEXATION

(a) if it is attached & fastened to the wall or floor or building or to the ground prima facie FIXTURE, even if it is easily removable

(b) merely resting on its weight CHATTEL

(C) degree of annexation not a conclusive test

TEH BEE v. K.MARITHAMUTHU(1977) 2 MLJ 7

1) 1952 P was given a TOL & for 20 yrs P had been paying the yearly dues to SA, cultivating the land & constructed building on it.

2) 1966, SA decided to alienate the land to D3) Form 5A was served to D on 17/11/1966

instructing her to pay RM4327.50 within 3 months

4)D didn’t pay immediately. Spent a considerable time appealing to SA to exempt her fr paying the premium but her request was turned down

5)1967 she paid the premium to SA some 10months beyond the stipulated time

6) 1968 D become registered proprietor.

Plaintiff defendant

Form 5A stipulates if premium not paid within time specified = by virtue of S.81 of NLC then the approval will lapsed & the application will be deemed to have been withdrawn.Effect of S.81 NLC “ if a sum os not paid within the stipulated time, the approval of SA to alienate shall be lapsed.”

• A) TRIAL JUDGE, AJAIB SINGH:- : held that the alienation was illegal & nullify

: SA had acted ultra-virus : “ when the SA purports to act in pursuant of a power for which no provision is made anywhere in the NLC, then I think that the register of title which follows the unauthorized act of the SA is ILLEGAL & a nullity. The approval of the SA to alienation of land had lapsed.”

• B) ON APPEAL TO FEDERAL COURT:- : 3 judges held that the alienation of land could not be questioned. : the fact that the applicant (Defendant) was the registered proprietor, raised the inference that the SA had given fresh approval once the amount stipulated had been paid to them. : S.81(2) is not intended to restrict SA’s power of disposal. : why the appeal should be allowed was merely because, “under the Torrens System, registration is everything.”

TEH BEE v. K.MARITHAMUTHU(1977) 2 MLJ 7

Plaintiff defendant