Blue screen-la process flow [compatibility mode]

Pengambilan Balik Tanah
Disediakan oleh:
Aizul Nahar Harun
UTM International Campus

Purposes of Acquisition
Section 3(1) of LAA lays down the purposes for which private property can
be acquired:
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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Acquisition under Section 3(1)(a) LAA – “Public Purpose”

The term “public purpose” used in s 3(1 )(a) LAA is not defined anywhere in
the Act. In S. Kulasingam & Anor v Commissioner of Lands, Federal
Territory & Ors [1982] 1 MLJ 204 it was held:

The expression “public purpose” is incapable of a precise definition. 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.



building of a hockey stadium

In S.Kulasingam & Anor v. Commissioner of Lands, Federal Territory
& Ors [1982] 1 MLJ 204) it was held that the acquisition of land for “the
purpose of building a hockey stadium” catered for the needs of the public
by providing sporting and recreational facilities and as such falls within the
“public purpose” requirement under the LAA ;


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tourist industry
In Ahmad bin Saman v. Kerajaan Negeri Kedah [2003] 4 MLJ 705) it
was held that as the tourism industry is important to the country,
particularly to the people of Langkawi in terms of employment,
infrastructure, utilities, amenities etc, the acquisition of the land for “tourist
industry” falls squarely within the term “public purpose” as suggested in
S.Kulasingam’s Case, i.e. whether the purpose serves the general
interest of the community. The Court of Appeal also rejected the
contention that the expression “tourist industry” as stated in the
declaration was vague and does not convey the real purpose for which
the land is acquired as there is no provision in the LA requiring that the
declaration specify the particular purpose for which the land is needed or
is likely to be needed. The declaration that the land is required for “Tourist
Industry at Telok Burau” is a sufficient specification for the purpose of
Section 3(1)(a), LAA and is a clear statement of the purpose for which
the land is being acquired;

Acquisition under Section 3(1)(b) LAA

Section 3(1 )(b), newly added in 1991 has a very wide scope and range.
Land may be acquired for a person or a corporation and not by the
government for itself, and for a 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 thereof. The question whether
a specific acquisition is “beneficial” and is for “economic development” are
left to the subjective discretion of the State Authority. If the term “economic
development” is given a broad meaning, then every commercial activity
undertaken by a non-governmental body for its own profit may fall within the
scope of this term.


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Examples of such land acquisitions are:

the construction of the second Malaysia-Singapore causeway project; and

the development of Gelang Patah area as a new township.


In the case of Honan Plantations Sdn Bhd v. Kerajaan Negeri Johor & Ors
[1996] 4 CLJ 373, one of the issues which was raised for determination is whether
the declared purpose of the acquisition, i.e. the second Malaysia-Singapore
causeway project and the development of the Gelang Patah area (in Johore), was
beneficial to the economic development of Malaysia or to the public generally,
pursuant to Section 3(1 )(b). It was held:
State Authority may now acquire any land which is needed by any person or corporation,
which would of course include companies registered under the Companies Act 1965 , 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. These words are wide and would seem to encompass host of activities not
merely restricted to undertakings of works which are of public utilities.
The Court was of the view that the creation of a new township in Gelang Patah would fall
under Section 3(1 )(b) LAA in the sense that new jobs would be created resulting in
opportunities for more commercial activities, the cumulative effect of which would enhance
the economic development of that part of the State. Further, accessibility of various facilities
available in Malaysia and Singapore would be beneficial to the economic development of
Malaysia as a whole.


4

Acquisition under Section 3(1)(c) LAA

In the case of Tan Boon Bak & Sons Ltd v. Government of the State of
Perak & Anor [1983] 1 MLJ 117, the Court held that land acquired to be
used for the construction of shop houses, residential houses, a cinema, a
commercial complex, car parks and eating stalls is for a public purpose as
well as for a commercial purpose within the meaning of Sections 3(1 )(a)
and (c). In Yew Lean Finance Development (M) Sdn Bhd v. Director of
Lands & Mines, Penang [1977] 2 MLJ 45, the court upheld the acquisition
of lands for residential, industrial and public purposes.


Application for Land Acquisition
An application for land acquisition shall be made by the State to the Land
Administrator in writing to the Land Administrator in the form as prescribed in the
Land Acquisition Rules 1998 (“LAR”).
A fee is payable for an application for acquisition of an land, between RM10,000
and RM13,000 (Rule 4 of LAR). This fee however, may be exempted by the
State.
Further, a deposit is payable for an application for acquisition at a rate of 125% of
the estimated market value of the land to be acquired, as determined by a
valuation officer employed by the Government, and shall be payable in the
following manner:
- 50% of the deposit shall be submitted with the application;
- The remaining 75% shall be submitted upon acceptance of the terms
and conditions of the approval imposed by the State Authority.
(Rule 5 of LAR)
The application has to be accompanied by, amongst others, the project proposal
as well as the layout and land acquisition plan.


5

Process After the Application

Where a development approval has been granted to the registered
proprietor and the acquisition is not for the purpose of public utility, the
State Authority shall not consider the application and the Land
Administrator shall reject the application. (Sec 3(6) LAA).
In circumstances other than that set out in Para (a) above, the Land
Administrator shall refer the application to the State Economic Planning
Unit (“SEPU”) (Section 3(4) LAA).
The SEPU shall consider the application on the following aspects:
- public interest;
- the capacity and capability of the applicant to carry out the purpose for
which the land is to be acquired;
- the feasibility of the project; and
- the development approval granted to the registered proprietor.



Where there is a development approval granted in respect of any land and the
acquisition is for the purpose of public utility, the SEPU shall determine whether it
is appropriate in the circumstances for the registered proprietor to participate in
the project for which the land is intended to be acquired (Section 3A(2) LAA).
Where it is found to be so appropriate, the SEPU shall give directions to the
applicant to negotiate with the registered proprietor on the form of co-operation
and commercial arrangement regarding the project including, but not limited to,
equity participation (Section 3A(4) LAA).
Where the negotiations are successful, then the application for acquisition shall
not be proceeded with any further (Section 3A(5) LAA).
Where the negotiations are unsuccessful or no conclusive decision has been
achieved within the specified period, the SEPU may consider the application and
make any recommendation as it deems fit to the Jawatankuasa Khas
Pengambilan Tanah (“JKPT Committee”), provided that the recommendation
shall not extend to compelling the registered proprietor to accept any participation
in the project (Section 3A(7) LAA).


6


Where there is no development approval granted in respect of the land proposed
to be acquired, the SEPU may nevertheless find it appropriate or necessary in the
interest of the registered proprietor that he participates in the project. In such case
the SEPU may give directions to the applicant to negotiate with the registered
proprietor. The provisions as set out in Para (d) above apply. (Sec 3B LAA).
The JKPT Committee shall evaluate the appropriateness of the application and
shall transmit it to the State Authority together with its recommendation, which
may include the imposition of any condition and restriction in interest on the land.
(vi) It is to be noted that the JKPT Committee consists of the State Secretary, as
Chairman, the State Director of Lands and Mines, as Secretary, the Director of the
SEPU or his representative, the State Director of Town and Country Planning or
his representative, the representatives of other related Government department or
agencies as may be determined by the Chairman.
Further, the State Authority shall not approve the application for the acquisition of
land for any purpose larger in area than that needed for that purpose. (Section 3E
LAA).


Grounds for Challenging the Acquisition
The power conferred by Section 3 LAA is characterised as discretionary
power. It is an important principle of administrative law that no power can
be absolute. Raja Azlan Shah CJ (Malaya) (as he then was) observed in
Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah
Enterprise Sdn Bhd [1979] 1 MLJ 135 at page 148:
Unfettered discretion is a contradiction in terms… Every legal power must
have legal limits, otherwise there is a dictatorship… In other words, every
discretion cannot be fee from legal restraint; where it is wrongly exercised,
it becomes the duty of the courts to intervene. The courts are the only
defence of the liberty of the subject against departmental aggression.


7

Over a period of time, courts have evolved certain norms for the exercise
of discretionary power and the grounds for judicial review thereof. It has
been held that the courts do not review a discretionary decision on merits.
A court would not interfere with a discretionary decision on the ground that
it is wise or foolish, or that it does not agree with it; or the concerned
authority should not have taken this but that decision. But the courts have
evoked certain grounds for reviewing such a decision. These grounds are:
procedural ultra vires, male fides, improper motives, unreasonableness,
non-application of relevant considerations, or application of irrelevant
considerations, fettering discretion, dictation etc. Therefore, in theory, a
decision of the State Authority acquiring land Section 3 LAA could be
challenged on any of these grounds.


Sec 37 LAA itself provides for any person interested in the land subject to
acquisition to make an objection to court on the grounds of:
- the measurement of the land;
- the amount of compensation;
- the person to whom it is payable;
- the apportionment of the compensation
The application is to be made by a written application to the Land Administrator
requiring that he refer the matter to the Court for its determination (Sections 38
LAA).
In Honan Plantations Sdn Bhd v. Kerajaan Negeri Johor & Ors [1996] 4 CLJ
373, the court held that “if the plaintiffs were challenging the validity of the
acquisition … the only matters that can be litigated by the Court are limited to
matters as prescribed in (Sec 37 of LAA)”. On Appeal, Gopal Sri Ram JCA held
that an acquisition made under the Act cannot be challenged unless a plaintiff
establishes that the acquiring authority had misconstrued its powers or had acted
in bad faith or with gross unreasonableness.


8

Basis of Compensation

The basis for determining the compensation payable for compulsory
acquisition is the market value of the land subject to acquisition as at the
date of publication in the Gazette of the notification of proposed acquisition
(First Schedule LAA).


Prosedur Pengambilan

Pra Pengambilan Pengambilan Pasca Pengambilan

Pemilihan tapak dan Siasatan & perintah Rujukan ke
kajian kesesuaian mahkamah
Pembayaran
Permohonan, pampasan Pindaan cukai dan
pewartaan dan hakmilik sambungan
penandaan Mengambil milik Borang-borang :
Borang-borang : Borang-borang : • Borang M
• Borang 1 • Borang E • Borang N
• Borang A • Borang F • Borang O
• Borang B • Borang G • Borang P
• Borang C • Borang H • Borang Q
• Borang D • Borang I
• Borang J
• Borang K
• Borang L


9

Pemilihan Tapak Cadangan Projek

Penilaian Tapak
Pihak Terlibat:
1. Peg. Daerah Rundingan
2. JPBD
3. Maj. Daerah
Dokumen Terperingkat
4. JKPTG Negeri
(Sulit)

Tapak Dimuktamad
Jabatan Teknikal
Peringkat Daerah:
1. JPBD Ulasan Rasmi
2. Maj. Daerah
3. JKR Pembentangan
4. JPS
5. DOE J/Kuasa Pbgnn Daerah
6. Pej. Tanah
Setuju Tidak

Page 19

Permohonan
J/Kuasa Pbgnn Daerah

Permohonan : Setuju Tidak
a. Borang
Permohonan Permohonan
b. Fee
c. Deposit
d. Laporan
Cadangan Projek
e. Pelan Tatatur
f. Pelan
Pengambilan
Tanah

Page 20

10

Permohonan Pengambilan Tanah Pemohon

Sek. 4

Borang A

Borang B
Kerja Ukur
Maksimum : 1 Thn @
Borang C Sek. 8
Kajian Tanah
Borang D

Borang E Borang F
Borang J
Borang G
Siasatan
Borang H

Borang K

Page 21

Permohonan Pengambilan Tanah Pemohon

Sek. 4

Borang A

Borang B
Kerja Ukur
Maksimum : 1 Thn @
Borang C Sek. 8
Kajian Tanah
Borang D

Borang E Borang F
Borang J
Borang G
Siasatan
Borang H

Borang K

Page 22

11

Carta Alir Borang-borang Dalam Pengambilan Balik Tanah

Form A

Form B

Form C

Form D

Form E Form G Form H Form K

Form F

Form I Form J


Form A

Form B
Sect. 4 (Gazette)
Form C
State authority satisfied that acquisition is likely to be necessary for any
purpose under Sect. 3
Form D


Form F

Form I Form J


12

Sect. 5
State Director power to enter land and to do any or all the
following:
Form A - survey and take levels of the land;

Form B - dig or bore into the sub-soil;
- do all other acts necessary to ascertain whether the land is
Form C adapted for the purpose for which it is to be acquired;

Form D the boundaries of the land proposed to be taken and
- set out
the intended line of the work, if any, proposed to be made
thereon; E
Form Form G Form H Form K
- mark such levels, boundaries and line by placing marks and
cutting trenches;
Form F
- cut down and clear away any standing crop, fence or jungle,
where otherwise the survey cannot be completed, or the
Form I Form J
levels cannot be taken, or the boundaries or line of the work
cannot be marked.


Function : Form used by appointed land surveyor to
fill in, reporting his final result of survey works
conducted on proposed acquired land.
Specific information : name of owner, add of land,
Form A venue of land, width of land, topographical of land
and anything found of land, description and aerial
Form B view of land.
Form C Why must those information included be so specific :
to ensure the land is the same land as intended by
Form Dstate office for acquisition purposes, the width of land
indicates the amount of awards to be paid,
topographical of land-may decrease or increase the
value of land and inform land office if it is really
Form F for the intended project.
suitable
Can those specific information included be legally
Form J
challenged in Form I
court?
- yes....particularly on the add, venue, width and
topography of the land

13

Form A Sect. 8 (Gazette)
Form B State Authority decides acquisition is
necessary.
Form C
The gazettement will only valid for the period
Form D of two (2) years.
A plan of the particular lands and areas so
specified may be inspected during the normal
hours of business in the Land Office of the
Form F District in which such lands and areas are
situated.
Form I Form J


Sect. 10
Land Administrator to give public notice of enquiry.
Al persons having interest in the said land, whether as proprietor, occupier, lessee,
chargee, tenant or otherwise, are hereby required to appear before the undersigned
Form A above time either personally or by agent and there to state-
at the
- the nature of their respective interests in the land;
- the amount B particulars of their claims to compensation for such interests;
Form and
- their objections, if any, to the measurements of approximate area given in the Schedule below;
Form C
- the names of any other person known to the party or his agent to possess any interests in the land or any
part thereof, and to produce al documents relating to their claims.
Form D


Notice is further given that the undersigned may require-
Form F
- that in any particular case any such statement or statements should be reduced to writing
and signed by the party or his agent;
Form J
- that any person in possession of the issue Form I of title in respect of any land
document
scheduled below deliver up such document at the time of inquiry.


14

Sect. 11
Land Administrator may request for evidence in writing
Relevant person is required to furnish, within a given time period, a
statement in writing declaring the following:
Form A
- separate valuations of the land and of the improvements, if any, thereon, showing
Form B
the basis upon which such valuations are made;
- the name Form C person possessing any interest in the land or any part thereof,
of every
either as co-owner, chargee, lessee, sub-lessee, tenant or otherwise; and
Form D
- the nature of any such interests and the amount of the rents and profits, if any,
received or receivable on account thereof for the three years immediately
preceding the date of this notice.

Form F

Form I Form J


Sect. 14
Written award of compensation by Land Administrator.
The awards set out in the Schedule hereto are hereby made in respect of
the areas of land specified therein, to the persons interested therein, as
Form A
specified below:
- Lot Form B
no.
- Area required
Form C
- Persons interested
Form D
- Nature of interest
- Apportionment of award

Form F

Form I Form J


15


Sect. A
Form 16
Notice of award and offer of compensation
Form B
Land Administrator offers the proprietor the
sum of RMXX asC compensation for the
Form full
interest in this land.
Form D
Section 29A of the Land Acquisition Act 1960,
requires Land Administrator E withhold G
Form to Form Form H Form K
twenty-five per cent of the amount of the
award in certain circumstances, subject to the
Form F
provisions of that section.
Form I Form J


16


Form A
Sect. 19
Form B
State Director issued out the Certificate of Urgency for the land which to be
required for a public purpose of for a public utility.
Form C
This only can be used for the land without any building or structures on it.
Form D
The applicant have to provide sufficient funds to pay the penalties of late
payment at the rate of 8% per annum. G
Form E Form Form H Form K

Form F

Form I Form J


17

Sect. 20
Form A
Subsequent to the Form I, Land Administrator will issue a notice which
Form B
require that any person to vacate the building referred to and situated on
the said land within certain days.
Form C
Land Administrator offer to the owner of the premises compensation to the
Form D
amount of RMXX which compensation represents-
- the value of the building* E
Form Form G Form H Form K
- the cost of removing and re-erecting such building elsewhere. *
Form F

Form I Form J


Form A

Form B

Form C

Sect. 22 Form D
Land Administrator, pursuant to Sect. 22 G
Form E Form LAA, taken H
Form Form K
formal possession of the land shown in the schedule.
Form F

Form I Form J


18

Pengambilan Balik Tanah Anda Telah Berjaya!

Tahniah!


Market Value

Market value is defined in great detail in the First Schedule to the Act.
In Para 1, market value means the value of the land as at the date of
publication in the Gazette of the notification under sect. 4, provided that
the notification is followed by a declaration under sect. 8 within 12
months.
1 Jan 2010 1 Jan 2011
Market value as of 1 Jan 2010
Sect. 4 Sect. 8

If the declaration under sect. 8 is done beyond that, then the market value
must be the date the declaration is published in the Gazette.
1 Jan 2010 1 May 2011
Market value as of 1 May 2011
Sect. 4 Sect. 8


19

Market Value

Para 2 of the First Schedule then describes “matters to be considered in
determining compensation” whilst Para 3 describes “matters to be
neglected” (not to be considered) in determining the quantum of
compensation.

In Ng Tiou Hong v. Collector of Land Revenue Gombak [1984] 2 MLJ
35, Syed Agil Barakbah FJ said that market value means that the
compensation must be determined by reference to what a willing vendor
might reasonably expect from a willing purchaser. The elements of
unwillingness, sentimental value and urgency must be disregarded. The
“potentialities” of the land must also be taken into account.


Market Value
Para 2 of the First Schedule then describes “matters to be considered in
determining compensation” whilst Para 3 describes “matters to be
neglected” (not to be considered) in determining the quantum of
compensation.

In Bukit Rajah Rubber Co Ltd v. Collector of Land Revenue Klang
[1968] 1 MLJ 176, Raja Azlan Shah J (as he then was) said that no hard
and fast rule can be laid down for assessing the market value of the land
acquired. Evidence of sales of the same land is till the safest guide. In the
absence of such evidence, then evidence of sales of similar land in the
neighbourhood can be considered, after making due allowance for all
circumstances. The property must be valued not only with reference to its
condition at the time of acquisition but also its potential development
value.


20

SENARAI SEMAK PERMOHONAN PENGAMBILAN TANAH
Di Bawah Seksyen 4

Bil. Tindakan
1 Pelan Pengambilan Tanah yang Iengkap.
2 Pengesahan peruntukan yang mencukupi untuk membiayai kos
pampasan kerosakan akibat kerja-kerja ukur dan kajian tanah.


SENARAI SEMAK PERMOHONAN PENGAMBILAN TANAH
Di Bawah Seksyen 8

Bil. Tindakan
1 Pelan Pengambilan Tanah yang Iengkap.
2 Sijil Carian Rasmi/ Persendirian yang terkini.
3 Ulasan dari Jabatan-Jabatan Teknikal.
4 Ulasan dari Jabatan Alam Sekitar *
5 Persetujuan Jawatankuasa Pembangunan Daerah
atau Jawatankuasa seumpamanya
6 Pengesahan peruntukan yang mencukupi termasuk
kos penandaan dan lain-lain kos.
7 Surat Perakuan segera (Borang I)


21

Pengiraan Fee Jadual Kedua
Fee
(Kaedah 4)

Bil. Butiran Fee tambahan Fee
bagi setiap
orang
1 Tiap-tiap permohonan bagi RM10,000.00
pengambilan tanah selain bagi
maksud kemudahan awam yang
terdiri daripada tidak lebih daripada
10 orang yang berkepentingan seperti
dalam tanah terjadual
a. Atas tambahan orang seterusnya RM1,000.00
sehingga 15
b. Atas tambahan orang seterusnya RM2,000.00
sehingga 20
c. Atas tambahan orang seterusnya RM3,000.00


Pengiraan Fee Jadual Kedua
Fee
(Kaedah 4)

Bil. Butiran Fee tambahan Fee
bagi setiap
orang
1 Tiap-tiap permohonan bagi RM1,000.00
pengambilan tanah bagi maksud
kemudahan awam yang terdiri
daripada tidak lebih daripada 10
orang yang berkepentingan seperti
dalam tanah terjadual
a. Atas tambahan orang seterusnya RM100.00


22

Pengiraan Fee (Latihan)

Kirakan fee yang perlu dibayar bagi pengambilan balik tanah bagi tujuan
projek pembinaan tali air oleh Jabatan Pengairan dan Saliran (JPS) yang
melibatkan 30 pemilik berdaftar.

Kirakan fee yang perlu dibayar bagi pengambilan balik tanah bagi tujuan
projek pembangunan bercampur oleh syarikat pemaju hartanah
Worldstar Holding Berhad yang melibatkan 30 pemilik berdaftar.



23


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