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?

ISSUE 6(2): Whether the third party is an interested person?

ISSUE 3 (I) : Can Quesuera appeal against the acquisition, how and on what grounds?

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?

ISSUE 4 (I) : When will compensation be determined?

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?

ISSUE 1: Can the state authority simply acquire private property without personally informing the registered proprietor of the intention to acquire?


🚩Pre-acquisition Stage🚩

ISSUE 2: Has Plaza Hotel been effectively acquired by the government and when is the effective date of acquisition?


✋🏼 Acquisition Stage ✍🏼

FORM D📑

➕ ➕

EFFECTIVE DATE
OF ACQUISITION

FORM E 📑

FORM A📑

Lapsed? - S. 4(3) LAA 1960: After 12 months if the land has not yet gazetted in Form D.

Effect?

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

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.

  • Land is under consideration by SA & to be acquired for purposes mentioned.🏗 > Hong Lee Trading (1991)
  • Authorized person may enter into land to conduct surveys.📝
  • State promises for compensation.💰

👨🏾‍⚖️ 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.

click to edit

NOT MANDATORY
TO ISSUE

👩🏻‍⚖️ Ng Kim Moi (2004) > Majority judges decided that Form A is not mandatory.

👩🏽‍⚖️ KL Kepong Bhd (2016) > The issuance of Form A is not mandatory.

👨‍⚖️ 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.

FORM C📑

FORM B📑

S. 5 LAA 1960 > Authorizing state officials to enter & make survey on the land.

S. 7 LAA 1960 > LA must prepare & submit to SA plan of whole area & list of such land.

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.

🌟 Honan Plantations S/B (1998) > Declaration of Form D is conclusive.

Declaration of Form D
activates this act:
👍🏼

S. 9 LAA 1960 > LA can mark out Master Plan at land office & make note of intended acquisition on RDT.

S. 9A LAA 1960 > LA must consult Town & Planning Authorities on the use of land to determine the compensation.

Lapsed? > S. 8(4) LAA 1960 > "...expiry of 2 years after the date of its publication in the Gazette..."

🌟 Orchard Circle S/B (2016) > Once Form D lapsed, all the proceedings thereafter void.

APPLICATION &
CONCLUSION

Form D was issued on 28 July 2018, while the date of application for the case is 30 June 2020.

Sub issue: Whether Form D had truly lapsed?

Form A was never issued. Form D is issued but already lapsed.

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.

🗣 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.❌ 🏚

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. 🙅🏽

APPLICATION

📝 Must be enclosed together with Form D. 📝

Applying S. 11 LAA 1960: The failure to serve notice to the registered proprietor will not invalidate the enquiry. 👍🏼

😃 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.

🤔2 WAYS

S. 18 LAA 1960 - Taking possession of the land.

(i) Served Form H

  • Notice of Award & Offer of Compensation
  • Taking possession by LA

(ii) Served Form K

  • Notice that possession has been taken of the land
  • Formal possession by LA



    👨🏻 Ishmael Lim bin Abdullah (2015)

  • No endorsement, not invalidated.
  • SA can still acquire the land.

🕴🏼 United Allied Empire Sdn Bhd (2018)

  • No endorsement, not effective.

APPLICATION &
CONCLUSION

🌜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.

🖊 Form K has been issued, but no endorsement in RDT. 🗒

  • 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. 👨🏼‍⚖️👩‍⚖️

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.

It requires the land administrator to refer the matter to the High Court for its determination.

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.

CASE

Hoe Guan Investment v Collector of Land Revenue [1978] 2 MLJ 115

ISSUE 4 (II) : Whether Quesera can have a say on the amount of compensation to be paid to it?

The obligation on the applicant challenging the award to show prima facie that the award is inadequate.

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.

Assessment of Compensation

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.

  • Principles Relating to the Determination of Compensation in the First Schedule
  • 4 matters: Market value, Matters to consider, Matters to neglect & Limitation period

Market Value

Method of Valuation (Para.1 of First Schedule LAA 1960)


  • (1A) - refer to prices paid for recent sales of lands - similar characteristics as scheduled land - same vicinity - last transaction within 2 yrs of references date
  • (1B) - if part only of land - refer to market value of whole land but consider particular features of that part
  • (1D) - if leasehold property - refer to date of expiry of lease but not any subsequent alienation
  • 1(2) - consider any implied or express condition restricting the use of land
  • 1(2A) - Malay Reservation Land/Malay holding/customary land - such status not to be considered
  • 1(2BA) - consider specific land use of land as stated in development plan prepared by town planning authority

Meaning & Concept of "Market Value"


Nanyang Manufacturing Co. v CLR Johor [1954]

  • price that a willing seller might reasonably expect to obtain from a willing purchaser in a sale & purchase transaction

Ng Tiou Hong v CLR Gombak [1984]

  • reference to the price willing vendor might reasonably expect to obtain from a willing purchaser
  • the price of sales of similar lands in locality
  • its potentialities
  • location of the land (near town)
  • estimates of value by experts

"Reference date" - Paragraph 1(1)

  • Date of publication of Form A (if followed 12 months thereafter by Declaration (Form D) under S.8 LAA 1960
  • In any other cases, at date of publication S.8 Declaration (Form D)

Matter to consider

Para 2 of First Schedule LAA 1960 lists 6 factors in determining compensation:


  • Market value
  • Increase in value of other land belonging to the person as a result of acquisition
  • Damage caused by severance
  • Injurious affection
  • Forced changes of residence or place of business
  • Where only part of land is acquired any undertaking to build roads, drains, walls, fences benefitting the part of land unacquired

Matter to neglect

Para 3 of First Schedule LAA 1960 listed 6 matters to be neglected in determining compensation


  • Degree of urgency
  • Any disinclination of the person to part with the land
  • Damage sustained that will not be a good cause of action
  • Outlays, additions improvements to land after Form D is gazetted (after acquisition)
  • Any depreciation in value of land due to the use after acquisition
  • Any increase to value of land likely to accrue after acquisition

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)

Ground of Appeal - Non-compliance with form

Form A & Form E

Form D

Form K

Cases

Application


  • Form E has been issued but not personally served to Quesera - failure to serve notice of Form E to RP will not invalidate enquiry (Proviso to S.11)
  • Form A has not been issued nor gazetted - mandatory - the acquisition is invalid

Ng Kim Moi & Ors v PTD Seremban & Anor [2004]


  • If the LA does not issue Form B, and does not serve Form F, is the acquisition invalid?
  • Forms A & B prescribed by the Act were never issued and that Forms D, E, and F though issued were not served
  • COA held: it is not mandatory that Form B be issued or that Form F be served, Form A is also not mandatory

Ee Chong Pang & Ors v The Land Administrator of the District of Alor Gajah & Anor [2013] COA


  • H: the issuance of Form A is mandatory and the failure of the SA to comply with this mandatory provision means that the land acquisition was not done in accordance with the law

KL Kepong Bhd v Selangor State Govt & Anor [2016] HC


  • Followed Ee Chong Pang in FC's decision
  • H: even where Form A has not been gazetted, it does not affect the land acquisition proceedings.

United Allied Empire Sdn Bhd v PTG Selangor & Ors [2018]


  • COA distinguished the decision of the FC in Ee Chong Pang and held that the correct interpretation is that Form D may be issued before Form A is issued
  • Thus, the issuance of Form A was a mandatory requirement under S.4(1) LAA 1960

Sistem Lingkaran Lebuhraya Kajang S/B v Orchard Circle S/B & Ors [2018]


  • Court held that quashed Form D and declared that all the proceedings thereafter void as Form D had lapsed

Application


  • Form D was gazetted on 28th July 2018 & found out that had not lapsed - the acquisition of land by SA is valid

Relevant Law


  • S.8(4) LAA 1960 - “a declaration shall lapse and cease to have effect on the expiry of 2 years after the date of its publication in the Gazette...”

Ishmael Lim bin Abdullah v Pesuruhjaya Tanah Persekutuan [2015]


  • Upon issuance of Form K, the land has been vested in the SA notwithstanding that there was an omission to endorse the memorial on the RDT under S.23

United Allied Empire Sdn Bhd v PTG Selangor & Ors [2018]


  • Title to the acquired land will only effectively vest in the SA upon endorsement about the issuance of Form K on the RDT

Application


  • Form K has been issued but no endorsement on RDT - there were two conflicting decisions

Professional Solutions S/B v PT Seremban & Anor [2019]


  • it is up to court to decide whether to follow one of those cases


  • applying the most recent cases of United Allied Empire Sdn Bhd v PTG Selangor & Ors [2018] which ruled that failure to endorse Form K will invalidate the acquisition process

Relevant law


  • S.23 LAA 1960
  • after issuance of Form K, LA enters memorial on the RDT & endorsed to show that the whole land has been acquired by SA
  • effective date of possession/formal possession of the land by SA

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

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

Acquisition stage


  • S.10 - LA published Notice of Enquiry (Form E) - date & venue of enquiry to hear claims to compensation by persons interested
  • Date for enquiry must be after 21 days of publication of Form E
  • S.12 - Enquiry by LA - full enquiry on value of land & assess amount of compensation (First Schedule)
  • Art 13 FC - adequate compensation must be made
  • S.13 - power of LA to summon witnesses
  • S.14 - LA makes an award of compensation

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

APPLICATION

CONCLUSION

RELEVANT LAWS

RELEVANT LAWS

APPLICATION

CONCLUSION

CASE LAW

IMPACT

LAND ACQUISITION ACT 1960

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.

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.

Award by LA

  • Award in Form G under the hand of LA – written award
  • Separated awards are apportioned in the First Schedule (Form G)
  • Compensation is assessed according to the First Schedule

Notice of Award & Offer of Compensation (S.16)

  • LA will issue a notice of award in Form H to persons having interest in the land informing them of the award and offer of compensation

S.9 - Land to be marked and notice entered on register ; the land administration should mark and do search on the land that would be acquired.

S.14(2) - on the award of the land administrator, they shall final and conclude evidence of the area of any scheduled land that would be acquired including its value and appointment of the compensation awarded by the Land Administrator.

PHT Daerah Barat Daya (Balik Pulau) Pulau Pinang v Kam Gin Paik [1982]

  • Fed Ct – function of Collector/LA not merely administrative but also implied exercise of discretion power
  • Power of LA during enquiry (S.13 LAA 1960) – power of LA is like a judge in court – summon & examine witness & order delivery of the documents

Oriental Rubber & Oil Palms Sdn Bhd v Pemungut Hasil Tanah, Kuantan [1983]

  • H: the Collector in holding an inquiry was clothed with judicial powers

Dato' Leong Pow Kue & Ors v Gan Kim Sing [1998] 7 MLJ 133

Application


  • Form E was not received personally by Quesera, the way in which a person interested is invited to attend the inquiry is through the issuance of Form E
  • Proviso to S.11(1) - failure to serve Form E does not invalidate the acquisition of the land
  • Presumed that the enquiry goes on without Quesera attending it
  • Impact - Quesera has lost its chance to have a say on the amount of compensation to be paid to it
  • Advise - another way is Quesera can file for an objection on amount of compensation awarded by LA under S.37(1)

The plaintiff wanted to purchase a piece of land and engage the defendant. Plaintiff brought the action to the court due to the defendant negligence and failed to carry out adequate searches and enquiries to ascertain that the plaintiff could be registered as the proprietors of the piece of land and failed to informed there was a notice of intended acquisition endorsed on the Document of Title. Held: it was dismissed by the court due to the delay summon but defendant was not guilty of negligence or improper conduct in the management of the land transaction. Defendant could not acquire knowledge of the facts or matters about the partial land acquisition. If proceed the trial, the defendant would extremely difficult to call the relevant witnesses.

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.

LAND ACQUISITION 1960

CASE LAW

S.2 - a 'person interested' ; every person claiming an interest in compensation to be made on account of the acquisition of land under this Act, but does not include a tenant at will

S.11 - Services notices ; as a Land Administrator, they shall give public notice.

Lembaga Lebuhraya Malaysia v Cahaya Development S/B (COA) [2011] 2 MLJ 729

Held : the defendant was not a 'person interested' and cannot do objection during High Court as the objection for compensation must be a 'person interested', received form E or F and he must have made a claim to the Land Administrator in due time. In Court of Appeal, the Appellant was a person interested that was entitled to make a claim as Form E was being served as a person interested.

The fact that the third party can be an interested person as although he did not receive the Form E, S11(3) stated it will not invalidate. Therefore, he can lessen the compensation and loss suffered.

The third party can be an interested person