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LAND ACQUISITION, State Authority can acquire without personally informing…
LAND ACQUISITION
QUESTION 5
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How to appeal?
Section 38(1) of Land Acquisition Act 1960 states that the applicant is required to file the objection of the award given by filling up Form N
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Singapore Para Rubber Estate Ltd v PTD Rembau Negeri Sembilan (2008) 6 MLJ 763 where the court decided on the extension of submitting Form N under the reason of 'special circumstances'.
Section 39(1) of Land Acquisition Act 1960 where the Land Administrator requires the land owner who objects to the award to pay deposits either such amount of RM3000 or 10%of the amount claimed as security for the costs of reference and appeal.
The Land Administrator will submit Form O as to the reference on the objection of the award to be referred by High Court within 6 months period.
Section 43 of Land Acquisition Act 1960 where upon receiving a reference from the Land Administrator, the Court shall cause a notice in writing, specifying the day on which the Court will proceed to hear and determine the objection. The notice will be given to the applicant, all persons interested as well as to the Land Administrator.
Section 40D OF Land Acquisition Act 1960 where in a case before the Court as to the amount of compensation shall be the amount decided upon by the two assessors. Once the court has decided the appeal, it will be a final decision and no appeal can be made to a higher court.
Section 49(1) of Land Acquisition Act 1960 where the section mentions that any person interested including the Land Administrator may appeal from a decision of the Court to the Court of Appeal and to the Federal Court. it should be noted that the appeal which is allowed only appealing against the point of law.
Calamas Sdn Bhd v Pentadbir Tanah Batang Padang (2011) 5 CLJ 125 where the court allowed on the further appeal made on the ground against the issue of law. A portion of the Appellant’s land was acquired pursuant to Section 8 of the Land Acquisition Act 1960 where the land was categorised as ‘agricultural’. The Appellant did not satisfy with the High Court decision and then lodged a Notice of Appeal by raising the issue of inadequacy of quantum and submitting the argument that the High Court had ignored certain provisions under the Land Acquisition Act 1960 in assessing the value of the land. It was also submitted by the Appellant counsel that the Court of Appeal had failed to give a proper interpretation of the section of the Act.
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QUESTION 1
Form A
Section 3 of LAA : the State has the power to acquire your land when it involves a project that will be used for public purpose
NG KIM MOI (P) & ORS v PENTADBIR TANAH DAERAH, SEREMBAN, NEGERI SEMBILAN DARUL KHUSUS (NEGERI SEMBILAN TOWNSHIP SDN BHD & ANOR, PROPOSED INTERVENORS) [2004] 3 MLJ 301
: the court dismissed the appeal on the grounds that Form A was not mandatory and it was further affirmed that the failure to issue Form A will not render the acquisition proceedings as null and void
Section 4 of LAA : the form to show the intention to acquire is Form A and the State only needs to publish the notice of Form A in the Gazette
Kuala Lumpur Kepong Berhad v Selangor State Government & Anor [2016] MLJU 673 : the issue on whether the non-fulfillment of serving the notice of Form A will render the inquiry as null and void was held to be negative. The non-issuance of Form A will not render the inquiry as null and void when other procedures have been followed by the State Authority
United Allied Empire Sdn Bhd v Pengarah Tanah dan Galian Selangor & Ors [2018] 1 MLJ 661 : the appeal court was of different view as the court decided that Form A must be closely followed. However, the High Court accepted the opinion that Form A was not a mandatory requirement.
Ee Chong Pang & Ors v The Land Administrator Of The District Of Alor Gajah & Anor [2013] 2 MLJ 16 : the appellants objected to the acquisition as the state authority failed to publish Form A in the gazette. The High Court dismissed the application and the decision was upheld in the Federal Court. According to the decision made, the inquiry will be held as valid when other procedures have been followed, even when Form A was not gazetted
Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200 : The Federal Court held that the notification in Form A shall only be published in the Gazette because it only acts as a notice that the land is to be acquired. The court further asserted that there is no express provision in the Act which says Form A must be served on the registered proprietor of the said land.
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Form E
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Pengarah Tanah Dan Galian Negeri Kedah & Anor V Emico Development Sdn Bhd [2000] 1 MLJ 257 : Form E was not served personally to respondent but the court held that the non-issuance will not make the inquiry as void
Ng Kim Moi (P) & Ors V Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, Proposed Intervenors) [2004] 3 MLJ 301 : the federal court held that the failure to serve Form E shall not render the whole proceedings as null and void.
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QUESTION 3
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Whether you can object to the act of the SA in subsequently planning to dispose of the land to a consortium to build the highway?
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Honan Plantations Sdn Bhd v Kerajaan Negeri Johor [1998] 2 MLJ 498
The court held that the act of the State Authority of Johor in alienating the land to the third party did not amount to the invalidation of the acquisition.
Quesera can object to the act of the SA in subsequently planning to dispose of the land to a consortium to build the highway.
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QUESTION 2
Whether the acquisition of Plaza Hotel has been completed and effectively acquired by the government.
United Allied Empire Sdn Bhd v Pengarah Tanah dan Galian Selangor & Ors [2018] MLJ 661 : The Court of Appeal held the requirement in s.23 of LAA 1960 is mandatory and thus, title to the acquired land will only effectively vest in the State Authority upon endorsement about the issuance of Form K on the Register Document of Title (RDT).
Ishmael Lim bin Abdullah v Pesuruhjaya Tanah Persekutuan [2015] MLJ 126: The requirement for endorsement of Form K was a formality and did not invalidate the acquisition process.
Professional Solutions Sdn Bhd v Pentadbir Tanah Seremban & Anor [2019] 9 MLJ 1: There are two conflicting Court of Appeal decisions on the matter and a High Court deciding on the same matter could choose to follow Ishmael’s decision or United Allied’s decision.
Fun Fatt v Kerajaan Malaysia & Anor [2020] MLJU 407: Form K to be utilized to take possession of land that contains a building, otherwise possession can be taken upon service of Form H and I. Possession does not only mean formal possession.
S. 23 LAA 1960: After Form K has been issued, the LA will enter a memorial on the RDT that the whole land has been acquired. LA may require IDT of such land to be delivered to him in Form I.
Malayan Banking Bhd v Pengarah Tanah dan Galian Negeri Selangor [2017] 9 MLJ 70: The entry of the Form K as a memorial in the RDT was no other form of notification in regards of the acquisition.
S. 22 LAA 1960: 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)
The acquisition of Plaza Hotel has been completed and effectively acquired by the government when Form K has been issued on 23rd January 2019 even without any endorsement on the Register Document of Title as the requirement for an endorsement of the memorial is a formality and the omission to do so did not invalidate the acquisition process.
S. 18 LAA 1960: Possession of land is taken by the Land Administrator (LA) at the time of serving Form H on the occupier of the land.
State Authority can acquire without personally informing the intention because Form A and Form E are not mandataory requirement that can render the acquisition as null and void
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Whether the State Authority can acquire private property without personally informing the registered proprietor of the intention to acquire
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