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Land Acquisition Mindmap by Manna & Co. - Coggle Diagram
Land Acquisition Mindmap by Manna & Co.
Whether the existing SPA with third party is valid following the acquisition
Contracts Act 1950
Section 57(2)
Contract to do act afterwards becoming impossible or unlawful
A contract becomes void when performance becomes impossible or unlawful due to an event beyond the parties’ control.
Case: DANGA BAY SDN BHD v HAMIMAH HUSSIN & ORS; AFFIN ISLAMIC BANK BHD (THIRD PARTY) [2020] MLJU 2152; [2021] 2 MLJ 22
the cancellation of one development project by the developer had rendered the defendant no longer able to deliver the promised replacement property under the agreement - contract became impossible to perform - the agreement was frustrated
Doctrine of frustration
Section 66
Obligation of person who has received advantage under void
agreement, or contract that becomes void
Restitution
When an agreement is found to be void, any person who has benefitted from it is bound to restore or to make compensation for it to the person from whom he received it.
Case: Lee Chiang Boh @ Lee Ching Moo v Lee Nyoke Hin & Anor, the Court of Appeal [2013] 3 MLJ
The purchaser argued that the SPA was void due to mutual mistake under ss 21/22 of the Contracts Act 1950 and sought restitution under s 66. However, the court rejected the claim because there was no total failure of consideration. The court held that equity would not undo a sale of land after conveyance unless there was a total failure of consideration. Accordingly, restitution was unavailable and the appropriate remedy was damages instead. However, the case also implies that restitution may still be possible where the compulsory acquisition completely defeats the transaction before the purchaser obtains any meaningful benefit from the contract. In such circumstances, the purchaser may argue that there has been a total failure of consideration, thereby engaging s 66 of the Contracts Act 1950.
Equitable principles
equity regards as done that which ought to be done.
equitable interest of purchaser - equity recognises the beneficial interest after SPA
Land Acquisition Act 1960
Section 8
Declaration that a land is needed via Form D
S.8(4)
If Form D lapses, any subsequent acquisition proceeding may become void
Case: Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat
Sections 22
and 23
Form K - Notice that possession has been taken of land/vesting of parcel
When is a land vested in SA?
Case: United Allied Empire Sdn Bhd v PTG
Selangor & Ors. [2018] 1 MLJ 661
Endorsement as per S.23 is mandatory to show effective vesting
Case: Ishmael Lim bin Abdullah v Pesuruhjaya Tanah Persekutuan [2015] MLJ 126
Upon issuance - no endorsement =/= invalidate acquisiton
Section 2
"Person interested" - a purchaser under an SPA may argue he is a person interested
Case: JW Properties Sdn Bhd v Perbadanan Kemajuan Pertanian Selangor & Anor and another appeal [2016] 1 MLJ 341
“In our view, the appellant as bona fide purchaser for value of the Api-Api land had acquired sufficient lawful interest over the land to entitle it to be paid the compensation sum”
Case: Sistem Penyuraian Trafik KL Barat Sdn Bhd v Kenny Heights Development Sdn Bhd & Anor [2009] 3 MLJ 809
the Court of Appeal in itemising the different categories of persons interested under the Act included the following persons: (a)a person who has entered into a contract to purchase a piece of land, ie a beneficial owner; (b)an option holder; and (c)a person having equitable interest in the acquired property under trust.
What would be Kavala's liabilities?
Breach of contract
Whether Kavala will be automatically liable?
Restitution - S.66 Contracts Act 1950
Whether the State Authority has the right to acquire Kavala's private property
Purpose for which private pty can be acquired
:checkered_flag:
Section 3(1) of Land Acquisition Act
section 3(1)(b)
section 3(1)(c)
section 3(1)(a)
basis of acquisition
Article 13(1)
Land Acquisition Act
Article 13(2)
Whether the land acquisition proceedings against kavala's property were validly initiated and lawfully continued under land Acquisition Act 1960
PRE-ACQUISITION STAGE
Acquisition Stage
2nd step : LA will serve copy of notice to persons interested in Form E
Section 11(1) = After giving publishing the notice, LA must serve a copies in Form E to interested person
occupier of land
registered proprietor
person having interest in the land
anyone LA believes has interest in land
Proviso to section 11 (1) : failure to give notice to RP or those specified will not invalidate the proceedings
1st view = forms are not mandatory
→ X INVALIDATE PROCEEDINGS
Appellant's land in Labu, N9 was acquired. The A argued that the acquisition was not valid because : Form A + B (not issued), Form D, E, F (not served)
Majority : Acquisition was still valid. Why ? Some forms are not mandatory. So failure to issue/serve them does not invalidate the acquisition.
Ng Kim Moi v PTD Seremban
2nd view = FORMS MANDATORY
→ INVALIDATE PROCEEDINGS
Ee Chong Pang v Land Administrator of the District of Alor Gajah
Held = that Form A was mandatory under section 4(1). Why ? because of the word “shall”
1 more item...
Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah
majority = the actual commencement of the proceedings for land acquisition was by giving public notice in Form E
1 more item...
1st step : LA publish a public notice of enquiry in Form E
:warning:
Section 10(2)
= Enquiry can only be held for 21 days after Form E is published
Section 10(3)
= Form E must be attached together with the schedule in Form D
Section 10(1)
= after complying with s9, LA will commence proceedings by giving public notice in Form E
purpose : to notify the public the date and venue of enquiry to hear all claims to compensation by the persons interested
Issue notice in FORM A - Section 4
Sec 4(3) - the notice will lapse after 12 months if the land specified is not yet gazetted in form
Form A exist for 12 months
Purpose of Form A : notify the public that the land is underconsideration to be acquired by SA for such purposes stated andauthorise a person to conduct survey operations and promisecompensation to the landowners
Section 4(1) - SA will issue notice that land will be acquired because its mandatory and will be published in the gazette
Sec 4(2) - LA will not give personal notice but give public notice of Form A and be posted on district land office or public noticeboards near the land pursuant to sec 52
Sec 4(4) - SA can issue new notice if the first one lapse
Hong Lee Trading & Construction S/B v Taut Ying Realty S/B[1991]
The notification under section 4 is intended to serve as notice to public
To notify that land is to be acquired for purposes stated in section 3
First Step
Declaration of intended acquisition
Sec 8(1): if SA has confirmed to acquire the land, SA will declare in Form D
Sec 8(3): form D must be gazetted and once gazetted, it’s a conclusiveevidence that the land is acquired for the purpose specified
Sec 8(4): the form D will expire/lapse 2 years after it was gazetted if compensation as required under s14(1) was not done within theperiod
CASES
Honan Plantations S/B v Kerajaan Negeri Johor [1998]
The declaration in form d is conclusive evidence that the land is acquired for the purpose specified
Means SA has decided that it amount to a purpose that is beneficial to economic development
Orchard Circle S/B v PTD Hulu Langat [2016] MLJU 660
The court quashed form D and declared all the proceedings to be void because form D has lapsed
Fourth Step
Second step: entry and survey on land
Sec 5(1): Form B will be issued by state director to authorise stateofficials to do entry and investigation on the land
Sec 5(3): officials must send 3 days notice in writing before entry toget consent. If consent is given, official can enter the house
Sec 6(1): if the official cause damage upon entry, he shall compensatethe occupier for the damage
Fifith Step
Sec 9(1)(a) & (b):
when form D is declared, the LA will mark out on the master plan at the land office the areas affected by theacquisition and make a note of the acquisition on the RDT
Sixth Step
Sec 9A(1): the LA must consult the State Director Of Town AndCountry Planning to calculate the award of compensation based on the use of lands to be acquired
Third step: preparation of plan and list of land
Sec 7(1): LA must submit to LA, the plan of the whole area/part thatwill be acquired and a list of land in form C. the list is for the gov only
Endorsement on RDT
Requirements
Section 22
Notice that possession has been taken of land by issuing Form K
Section 23
After Form K has been issued, LA will enter a memorial on the RDT that the whole land has been acquired.
Whether the acquisition is still effective if the endorsement on the RDT was not made.
Ishmael Lim bin Abdullah v Pesuruhjaya Tanah Persekutuan [2015] MLJ 126
Upon the issuance of Form K, the land has been vested in the SA, notwithstanding that there was an omission to endorse the memorial on the title.
The requirement for endorsement was a formality and
did not invalidate
the acquisition process.
Professional Solutions S/B v PT Seremban & Anor. [2019] 9 MLJ 1
Form K does not have to be endorsed.
United Allied Empire Sdn Bhd v PTG Selangor & Ors. [2018] 1 MLJ 661
The requirement in section 23 is mandatory.
Title to the acquired land will only be effective vested in the SA upon endorsement of the issuance of Form K on the RDT.
Whether Kavala can object to the amount of compensation and appeal against the acquisition.
Compensation (Land reference matter)
Can Kavala object against the award?
Section 37(1): Grounds of objection
Measurement of the land
Amount of the compensation
The persons to whom it is payable
Apportionment
Section 38: Application in Form N
Written application in Form N to the LA
Grounds of objection must be fully stated
Filed within 6 weeks from the LA's award
Can Kavala appeal against the amount of compensation?
Section 40D: Decision of the court on compensation
Amount decided by 2 assessors
The decision is final, and no appeal to a higher court on the matter
Section 49(1)
There can be no appeal to the higher court where the decision comprises an award of compensation.
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561
Federal Court clarified that statutory bar is not absolute bar on all appeals, but is limited to appeals on issues of fact relating to the quantum of compensation.
An appeal is permissible where it raises a genuine question of law, as opposed to a disagreement on valuation merits.
Pentadbir Tanah Daerah Johor v Nusantara Daya Sdn Bhd [2021] 4 MLJ 570
The bar applies only to questions of fact on the quantum of compensation.
Appeals on questions of law remains permissible.
Appeal (Judicial review)
Order 53 rule 3(6) Rules of Court 2012
Made within 3 months from the date when the grounds of the application first arose or when the decision is first communicated to the applicant.
Application for a declaration and writ of certiorari to quash the decision of the State Authority to acquire the land.
FAILURE TO COMPLY WITH STATUTORY REQUIREMENTS
United Allied Empire Sdn Bhd v Pengarah Tanah dan Galian Selangor & Ors [2018] 1 MLJ 661
State Authority failed to issue a Form A as required under section 4, therefore no public notice of the acquisition of the land.
LA failed to endorse the memorial on Form K, pursuant to section 23.
COA held that the non-compliance of the statutory provisions of the Land Administration Act was fatal to the land acquistion.