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Tuan Haji Musa, Who can challenge?, Issue 3 : Whether the Committee has…

- - - - (1) The State Authority may acquire any land which is needed
        (a) for any public purpose;
      - (b) by any person or corporation for any purpose which in the opinion of the State Authority is beneficial to the economic development of Malaysia or any part thereof or to the public generally or any class of the public;
      - (c) for the purpose of mining or for residential, agricultural, commercial, industrial or recreational purposes or any combination of such purposes.
    - - Yew Lean Finance’s case [1977]
        Held: The government has the sole right to decide, what is, or what is not, a public purpose and 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.)
- - - - Section 68A of the LAA provided about the government has right to acquire the land for the private company, where any land has been acquired under this Act, whether before or after the commencement of this section, no subsequent disposal or use of, or dealing with, the land, whether by the State Authority or by the Government, person or corporation on whose behalf the land was acquired, shall invalidate the acquisition of the land.
      - The Land Acquisition Act 1960 has provided for the methods for challenging acquisition proceedings under Section 37. There are few rights to claim against the decision. Judicial review is allowed regarding the grounds which are not stipulated under Land Acquisition Act 1960. For example, ground of mala fide.
  - - - Arifin Zakaria, JCA (as he then was) in Ahmad bin Saman opined that, it would appear that the acquisition may be challenged on any of the following grounds:
        
        2) that the purpose stated in the Declaration does not come within section 3;
        
        Yew Lean Finance Dvpt Malaysia S/B v Director
        of Lands and Mines, Penang [1977] 2 MLJ 45
        
        Issue : Plaintiff contended that the land was being
        acquired for some vague purpose and thus the Notice of Intended Acquisition was null and void.
        
        Held : There was no need for the State Authority to confine its acquisition of land to purposes which came under one head only
        
        Application
        
        According to the grounds to challenge the acquisition in the case of Ahmad bin Saman, as has been discussed in our previous legal issue, the acquiring authority has not misconstrued any statutory powers in acquiring the land. This has been shown in the first legal issue where the purpose of acquiring the land is valid and the procedure also has been complied with. Regarding the bad faith element, we believed that it could not be proved by the committee as the mala fide allegation has only been seen by the conduct made by Suez and not directly from the authority. Moreover, according to Section 68A of the LAA, the government has the right to acquire the land and subsequently alienated the lands to the private company which under your case, Suez, Therefore, you or Haji Musa as the owner could not challenge the acquisition by judicial review on the ground of mala fide. Finally, regarding the ground of acquiring authority also has not shown any acts contrary to the law, as has been discussed in paragraph 3.1.26, the State Authority has failed to comply with the requirements under Section 12 of the LAA the chairing of the enquiry by persons other than the Land Administrator would be a serious breach of the LAA and procedural non-compliance. Therefore, we agreed that you have ground to challenge the acquisition under this ground.
        
        4) that the acquiring authority has acted contrary to the law.
        
        Ng Aun Say & Sons Realty S/B v Magnasari & Ors
        & Anor Appeal [2013] 6 MLJ 130 (COA)
        
        Issue : Respondent applied for a declaration that the SA’s decision to acquire its land was null and void as it was made contrary to s. 3(6) LAA
        
        Held :There was non-compliance with ss. 3A, 3C and 3D by the EPU and SUK. Construction of the access road was not for public utility under section 3(1)(b) LAA 1960.
        
        3) where it can be shown that the acquiring authority has acted in bad faith
        
        Syed Omar Alsagoff v Govt of Johore
        [1979] 1 MLJ 49
        
        Facts : Resondenrt. had acquired some 5700 acres of land belonging to the Appellant., where only 2000 acres were actually needed for the Pasir Gudang Port project. The appellant contended that there was bad faith element in acquiring the land
        
        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.
        
        1) that the acquiring authority has misconstrued the statutory powers;
        
        Singapore Para Rubber Estate Ltd. v PTD Rembau, Negri 9 [2008] 6 MLJ 763
        
        Issue : Whether the Respondents' non-compliance with certain statutory requirements under the Act and Article 13 of the FC when making the award constituted ‘special circumstances’ entitling the court to enlarge the time for submission of Form N?
        
        Held : It is not mandatory that Form B be issued or
        that Form F be served.
- - - - Section 37(1)(b):
      - 1)Must be a person interested
      - 2) Must have received the notices either under S.10 or 11(Form E or F).
      - 3)must have made a claim within six weeks from the date the award was received.
      - Singapore Para Rubber Estate Ltd v PTD Rembau Negeri Sembilan
        -the non compliance on behalf of the respondent is not a special circumstances therefore the 6 weeks period for application to refer to the court is not fulfilled.
      - Section 2- person interested is a person claiming an interest in compensation to be made on account of acquisition of land under this Act but does not include tenant at will.
      - APPLICATION
        -you are the registered proprietor of the terrace houses.
        -therefore you are the person claiming an interest in compensation to be made on account of acquisition of your properties.
        -thus you are the person interested and my apply to the court for the references
      - Section 30(a)&(b)-that any interested person may receive a payment of the amount awarded under protest as to the sufficiency of such amount and any person who has received the payment not under protest is not entitled to refer his claim to the court under Section 37.
      - Section 38(1)- Any person interested in any scheduled land who, pursuant to any notice under section 10 or 11, has made a claim to the Land Administrator in due time and who has not accepted the Land 37 Land Acquisition.
    - - Referring to the price which a willing vendor might reasonably expect from a willing purchaser
        
        Ng Tiou Hong v Collector of Land Revenue, Gombak
        
        sentimental value or unwillingness on part of the vendor and the urgent necessity on the part of the purchaser is disregarded from being a basis to increase the market value.
      - Price of Previous sales of comparable land
        
        Che Pa bin Hashim & Ors v The Collector of Revenue, Kedah
        -if the comparable land was purchased at a higher price knowing that the land was going to be acquired, it can be seen that the purchase was done to artificially boost the compensation award that was to be made.
        -therefore the sale was mala fide and the comparable land could not be taken into account in considering the market value of the land.
      - APPLICATION
        -The sale of Pak Hamid's house was done mala fide as the purchaser was in urgent necessity of purchasing the property due to the fact that he is an agent of Suez.
        -the element of compulsion was there, thus Pak Hamid's sold house cannot be taken into account in considering the market value of the house.
        -therefore, the market value of the terrace houses is not affected by the sale made by Pak Hamid.