LAND ACQUISITION

LAND ACQUISITION

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Jamaludin Yaakob

LAND ACQUISITION

CONTENT
Learning Outcomes
Introduction

Purpose
Decision to Acquire

Definition
Legal Basis Governing Laws

Procedure
Valuation of Compensation Reference to Court

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Learning Outcomes At the end of the lectures students should acquire these abilities: 1) To discuss the legal basis of land acquisition exercise by the State Authority; 2) To analyse the purpose land acquisition; 3) To examine the procedure

4) To explain the assessment of market value

5) To evaluate the validity
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LAND ACQUISITION

INTRODUCTION Torrens System NLC 1965 land belongs to state . Powers of disposal - alienation reversion (section 41 NLC 1965). Land state matter (Article 74 - Federal Constitution) Land development by Federal & State (Article 83 Federal Constitution ) State needs to acquire alienated land from registered proprietor of alienated land Article 3 Federal Constitution - Rights to property Definition of land acquisition.
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DEFINITION

Chiranjit Lal v. Union of India AIR 1951 SC 41 Acquisition means the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title may be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing to the former.
At page 51
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LEGAL BASIS

strictly contrary to freedom of property in capitalist society

Role/function of government welfare of society where land is required to carry out this function land acquisition becomes necessary

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LEGAL BASIS

the public interest is paramount and that private interest may in certain circumstances be subordinated to the higher interest of the public

Charanjit Lal v. Union of India State of Bihar v. Kameshirar Singh Yeap Seak Pen v. Government of Kelantan
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LEGAL BASIS It is a right of every sovereign to take and appropriate private property belonging to individual citizens for public use. This right which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity and it is supposed to be based upon an implied reservation by government that property acquired by its citizens under its protection may be taken or its use is controlled for public benefit irrespective of the wishes of the owner. BK Mukherjee J.
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LEGAL BASIS

Yeap Seak Pen v. Government of Kelantan

The exercise of such power has been recognised in the jurisprudence of all civilised countries as conditioned by public necessity and payment of compensation.

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LEGAL BASIS

Article 13 Rights to Property (1) No person shall be deprived of property save in accordance with law. (2) No law shall provide for compulsory acquisition or use of property without adequate compensation.
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Governing Law Federal Constitution National Land Code 1965 Article13 Sabah & Sarawak

Article 83
Article 87 Registration

Land Acquisition Ordinance (Cap 69)

Land Acquisition Act 1960

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Overview
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LAA - Overview Part I Preliminary

Part II
Part III Part IV Part V Part VI Part VII Part VIII
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Acquisition
Summary Enquiry Taking Possession of land Reference to court Service of notice Temporary occupation or use of land Miscellaneous Schedules
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PART I

PRELIMINARY Section 2. Interpretation

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PART III

SUMMARY ENQUIRY Section 17. Summary enquiry

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PART VI SERVICE OF NOTICES 52. Public notice 53. Service of notices 54. Service upon agent, etc. 55. Service on and appearance of interested persons 56. Omission, etc., not to invalidate proceedings

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PART VII TEMPORARY OCCUPATION OR USE OF LAND

57. Temporary occupation or use of land

58. Offer of compensation 59. Restoration of land, etc. 60. Reference where compensation cannot be agreed 61. Where land is needed for access

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Schedules

FIRST SCHEDULE SECOND SCHEDULE THIRD SCHEDULE

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First Schedule

FIRST SCHEDULE
[Sections 12, 35, 46 and 47]

PRINCIPLES RELATING TO THE DETERMINATION OF COMPENSATION

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Second Schedule

FORMS A - Q

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Third Schedule

THIRD SCHEDULE
[Section 45]

EVIDENCE AND PROCEDURE IN LAND REFERENCE CASES

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Purpose
Section 3(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; or (c) for the purpose of mining or for residential, agricultural, commercial, industrial or recreational purposes or any combination of such purposes.
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Purpose
Syed Omar al-Sagoff & Anor v. Government of the State of Johore [1979] 1 MLJ 49 Kulaisingam & Anor v. Commissioner of Lands, Federal Territory & Anor [1982] 1 MLJ 204 Yeap Seok Pen v. Government of State of Kelantan [1982] 2 MLJ 202 Stamford Holdings Sdn. Bhd. V. Kerajaan Negeri Johor & 4 Ors. [1995] 2 AMR 1138 In summary, the court will interfere with the power of the State Authority in the declaration that the acquisition if for public purpose.
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Decision to Acquire
On application by the States government agencies or bodies On application by Federal Government

The State Authority

Person or Body

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PROCEDURE Importance of Procedure

1) Declaration of Acquisition (sections 4-9: Forms A, B, C and D)

2) Enquiry (section 10-11: Forms E & F)

3) Award (sections 14 & 16 - Forms G & H)

4) Taking Possession (section 19 22: Form I, J & K) 5) Payment (section 29-32A) 6) Reference to Court (section 36, 37, 3843)
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Importance of Procedure Article 3(1) of Federal Constitution No person can be deprived of property except in accordance with law Goh Seng Peow & Sons Realty v. CLR WP [1986] 2 MLJ 395

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Declaration of Acquisition
Section 4 (Preliminary notice Form 4A) Preliminary declaration that certain lands are going to be compulsorily acquired) Section 5 (Power of entry & survey Form B) It enables the State Authority to enter land and carry out investigation/inspection, survey, soil test, etc.

Section 6 (Payment for damage)

If in the course carrying the activities in section 5, properties are damaged caused thereby, the SA will compensation.
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Declaration of Acquisition Section 7 (List of lands for acquisition Form C) At the end of the survey under section 5 the Land Administrator will prepare a layout plan and details list of lands (Schedule) proposed/intended to be acquired. Section 8 (Declaration of acquisition From D) Based on schedule in Form C, the Land Administrator makes Form D declaration published in the Gazette.

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Form D Declaration
Significance of Form D Declaration: 1) Conclusive evidence that all lands listed in the schedule are to be acquired; 2) The award must be made within two years from date of notice; 3) If no award is made within two years, the declaration lapses and the whole exercise shall terminate and of no effect;

4) Markings on the lands intended for acquisition (s. 9(1).

5) Endorsement on RDT [section 9(2)9a)] ;
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Form D Declaration
Significance of Form D Declaration: First Schedule section 1 - Market value (1) the term market value shall mean the market value of such land (a) at the date of publication in the Gazette of the notification under section 4, provided that such notification shall within twelve months from the date thereof be followed by a declaration under section 8 in respect of all or some part of the land in the locality specified; or (b) in other cases, at the date of the publication in the Gazette of the declaration made under section 8.
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Enquiry Section 10 (Form E) For the purpose of the enquiry, the Land Administrator issues: public notice in Form E notifying the public (interested parties) relating to the holding of the enquiry; and Section 11 (Form E) notice to occupier; Notice to registered proprietor
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Enquiry The objectives of the enquiry are to: identify all interested parties, their status and interests with respect to the affected lands; hear claims or objections;

determine value of land & prepare valuation report; &

make awards Section 11 - Form F Requires information in writing Land Administrator may require information to be furnished in writing.
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Award Section 14 (Form G) At the conclusion of the enquiry the Land Administrator prepares a written award in Form G. Section 15 Land Administrator may, for the purpose of making the award, enter into negotiations or arrangements with affected parties. Section 16 (Form H) - Award notice & offer of compensation Land Administrator prepares individual award to the interested parties in Form H.
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Payment Section 32A Meaning of payment

Section 29
Section 29A Section 30 Section 31 Section 32
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Payment of compensation or deposit in Court Withholding of twenty-five percent of compensation

Receipt of payment under protest, etc. Payment in error, etc Late payment changes
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Taking Possession Section 18 Power of Land Administrator to take possession of acquired land once compensation is made. Section 19 (Form I) Certificate of Urgency Land Administrator may take possession before payment of compensation by issuing Form I. Section 20 (Form J) Notice to owner/occupier to vacate building In relation to Form J, the LA may issue notice to vacate premises and offer of compensation for that purpose.
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Taking Possession Section 21

Owner of building may accept or reject the offer of compensation.

Section 22 (Form K) Formal Possession Notice to occupier the taking of formal possession. Section 23 (Form K) Notice to make entry Notice to registering authority to make entry on RDT.

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Taking Possession Section 24 (Form L) Notice to deliver IDT, etc LA notifies owner to deliver IDT Section 58 (Form Q) Notice to occupy building temporarily

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Reference to Court Reasons for reference to court Parties that may make reference to court Procedure for reference to court

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Reasons Challenging validity of acquisition exercise:

Not public purpose

Not according to procedure Challenging persons entitle to compensation Challenging the market value

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Parties Section 36 (Form M) by the Land Administrator Section 37 (1) (Form N) by any other parties

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Procedure Section 36(1)

All reference to court must be brought by the Land Administrator (Forms M, N and O)

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