Land acquisition (1)

LAND ACQUISITION 1
Sharifah Zubaidah
LAW 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)

Land acquisition (1)

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