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LAND ACQUISITION - Coggle Diagram
LAND ACQUISITION
ISSUE 3 (II) : Can Quesera object to the act of the State Authority in subsequently planning to dispose the land to a consortium to build the highway?
Relevant law
- S.68A LAA 1960 - any land that has been acquired, no subsequent disposal or use of land, whether by SA/Govt/person/corporation on whose behalf the land was acquired, shall not invalidate the acquisition of the land
Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Ors [1998] 5 MLJ 129
- S.68A LAA 1960 - SA or person or corporation on whose behalf the land was acquired is at liberty to subsequently dispose off the land
- that action shall not invalidate the acquisition
Conclusion
- S.68A LAA 1960 - it does not invalidate the acquisition - Quesera cannot object to the Act of SA in subsequently planning to dispose the land to a consortium to build the highway
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ISSUE 3 (I) : Can Quesuera appeal against the acquisition, how and on what grounds?
How to appeal
Application for Judicial Review
- Order 53 rule 3(6) Rules of Court 2012
- made within 3 months from the date when the grounds of application first arose or when the decision is first communicated to the applicant
Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544
- 3 months begins from date of service of Form E on the land owner. (when the decision is first communicated to the applicant)
Sime Darby Plantation Bhd v PTG Negeri Melaka & Ors [2020] 7 MLJ 776
- time ran when Respondent decided to pursue the land acquisition & not necessarily date of Form E
- depends on the facts of each particular case (case to case basis)
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Conclusion
- Quesera can appeal based on Order 53 r.3(6) of Rules of Court 2012 on the ground of non-compliance with the forms
ISSUE 6(1): Whether Quesera is liable to the third party in facing the land acquisition if the sale and purchase agreement had been signed?
APPLICATION
As long as Quesera is the owner of the and, there is no provision to prohibit from selling the land. However, the maxim caveat emptor applies. Any purchaser who wants to purchase the land must do search. There are appropriate steps on purchasing the land to be followed. Quesera must show there is a clause showing on purchasing the land and on the conditions on termination of land. There must be a copy of sale and purchase agreement that should be shown. If the third party still wants to buy the land, he can buy the land but he will get the compensation rather than get the land as a legal owner of the land.
CONCLUSION
Quesera must make the decision to continue to sell the land or not to sell the land but wait for the compensation from the government. It depends on the price of the land.
RELEVANT LAWS
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IMPACT
The land acquisition under Act 486 will not hold any kind of dealings including land transfer (sale and purchase). A land acquisition hearing will be conducted by the Land Administrator to assess the rights of the person who claims the interest and compensate once the interest is established. There must be an evidence of copy of agreement and there's a clause that showing on purchasing the land.
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ISSUE 5
What if Quesera’s Board of Directors and shareholders are unhappy with the amount of compensation received, whether it can appeal? To whom to appeal and how?
Any objection against the amount of compensation for the land acquired if it exceeds RM3,000 can be made in writing to the land administrator as provided in Section 37(1) of the Land Acquisition Act.
In Section 38(3)(b), six months from the date of award is a time frame for the landowner to object to the award.
However, according to Section 37(2) of LA, if the compensation awarded by the LA is RM3000, the decision is final and no objection can be raised against it.
Next, as stated in Section 38(5), the above matter will be referred to the High Court.
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The land administrator has the responsibility and he is obligated to refer the appeal to the High Court within three months. No discretion is given to the land administrator in the matter.
After the matter has been referred to the High Court, under Section 43, the court is obliged to give notice in the prescribed form to all those interested in the land acquired.
Subsequently, the hearing will be held in the open court as enumerated in Section 45(1).
In a situation where the amount of compensation exceeds RM30,000, described in Section 37(3), the landowner on whose behalf the land is being acquired is treated as a person interested in the matter of assessment of compensation.
Section 49 stated that any party, even the collector can appeal the case from High Court to the Supreme Court.
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APPLICATION
Applying this to our case, Quesera’s Board of Directors and shareholders can appeal if they are unhappy with the amount of compensation received. Therefore, it is necessary for them to follow the procedure as described in the Land Acquisition Act 1960.
Firstly, assuming that the initial amount of compensation given to Quesera exceeds RM30,000.
Then the directors and shareholders of Quesera acting as the corporation whose behalf the is acquired can appeal for the assessment of compensation as mentioned under Section 37(3). It can be made in writing to the Land Administrator.
Next the land administrator will refer the matter to the High Court within three months and he has no discretion whatsoever.
Referring to Section 38(3), Quesera has only six months from the date of award to object to the compensation before it lapsed. He must refer to Form O and Form P accordingly.
Section 43 required the High Court to give notice in the prescribed form to all those interested in the land acquired which inceludes Quesera and the state government.
Consequently, the hearing of the appeal will take place in an open court.
In conclusion, it is permitted for Quesera to appeal for the compensation if they are not satisfied with the amount given.
ISSUE 1: Can the state authority simply acquire private property without personally informing the registered proprietor of the intention to acquire?
:red_flag:Pre-acquisition Stage:red_flag:
FORM D:bookmark_tabs:
S. 8(1) LAA 1960 > Declaration of Intended Acquisition > When SA already decided that such land needed for any purposes in S. 3.
S. 8(3) LAA 1960 > Form D must be gazetted & conclusive evidence that land is needed for purpose specified.
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Lapsed? > S. 8(4) LAA 1960 > "...expiry of 2 years after the date of its publication in the Gazette..."
:star2: Orchard Circle S/B (2016) > Once Form D lapsed, all the proceedings thereafter void.
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FORM A:bookmark_tabs:
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:!:Effect?
- Land is under consideration by SA & to be acquired for purposes mentioned.:building_construction: > Hong Lee Trading (1991)
- Authorized person may enter into land to conduct surveys.:memo:
- State promises for compensation.:moneybag:
S. 52 LAA 1960 > Land Administrator (LA) must give a public notice of Form A by posting it at the district land office or public notice boards near the land.
MANDATORY TO ISSUE
:male-judge::skin-tone-5: United Allied Empire Sdn Bhd (2018) > Issuance of Form A is indeed mandatory. It provides that Form A can still be issued after Form D has been issued.
S. 4(1) LAA 1960 > State Authority (SA) should issue a Notice of Intended Acquisition in Form A, showing land is likely to be acquired.This will be published in the Gazette.
NOT MANDATORY
TO ISSUE
:female-judge::skin-tone-2: Ng Kim Moi (2004) > Majority judges decided that Form A is not mandatory.
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:male-judge: Ee Chong Pang (2013) > Originally, CoA decided issuance of Form A is mandatory. But, FC overruled it & held issuance of Form A is not mandatory.
APPLICATION &
CONCLUSION
Form D was issued on 28 July 2018, while the date of application for the case is 30 June 2020.
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Form D had not truly lapsed, as it does not really pass 2 years of date, and thus Form D is still a valid form.
- Applying the most recent case which is United Allied Empire Sdn Bhd (2018), the issuance of Form A is indeed mandatory.
- Besides, it still can be issued after the issuance of Form D. Hence, SA must issue Form A if they wish to properly acquire Quesera's land.
- In contrast with the case of Orchard Circle S/B (2016), SA can issue Form A after the issuance of Form D, as the proceeding is considered valid, because Form D yet to lapsed & still a valid form.
:speaking_head_in_silhouette: Therefore, if SA still has the intention to acquire Quesera land, they should issue Form A, before the lapsed of Form D. SA cannot acquire Quesera land without personally informing them on the intention to acquire as provided in Form A.:red_cross: :derelict_house_building:
ISSUE 2: Has Plaza Hotel been effectively acquired by the government and when is the effective date of acquisition?
:hand::skin-tone-3: Acquisition Stage :writing_hand::skin-tone-3:
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FORM E :bookmark_tabs:
LA published a Notice of Enquiry in Form E fixing the date & venue of enquiry to hear all claims of compensation by interested persons.
S. 11 LAA 1960 > Failure to serve notice to registered proprietor or to the interested person will not invalidate the enquiry. :no_good::skin-tone-4:
APPLICATION
Applying S. 11 LAA 1960: The failure to serve notice to the registered proprietor will not invalidate the enquiry. :+1::skin-tone-3:
:smiley: Thus, it is agreed that the govt. may acquire Quesera land, even Form E was not served.
Form E was issued on 14 November 2018, but was not personally served on or received by Quesera.
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APPLICATION &
CONCLUSION
:last_quarter_moon_with_face:Apply case of United Allied Empire Sdn Bhd (2018)
- It is agreed to apply the most recent case, which ruled that the failure to endorse Form K will consequently invalidate the acquisition process.
:pen: Form K has been issued, but no endorsement in RDT. :spiral_note_pad:
- It is humbly suggested to the court to apply the case of United Allied Empire Sdn Bhd (2018) in interpreting the endorsement of Form K in RDT, as valid only upon the endorsement.
- Thus, Plaza Hotel has NOT been effectively acquired by the government, as the govt. had failed to endorse Form K, which resulted in the acquisition of land becoming ineffective. :male-judge::skin-tone-3::female-judge:
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