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Challenging Land Acquisition Proceedings
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Challenging Land Acquisition Proceedings

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    Challenging Land Acquisition Proceedings Challenging Land Acquisition Proceedings Presentation Transcript

    • 06/14/13 Ainul Jaria MaidinChallenging Land AcquisitionProceedings
    • 06/14/13 Ainul Jaria MaidinGeneral principle• any person whose land has been acquiredcompulsorily by the State Authority cannotchallenge acquisition proceedings
    • 06/14/13 Ainul Jaria Maidin• There are very limited grounds forchallenging acquisition.• Acquisition is unlawful, i.e. where acquiringauthority has exceeded its statutory powersand is taking the land for a purpose outsidethe scope of the Act or ostensibly for onepurpose but intended for another.
    • 06/14/13 Ainul Jaria Maidin• principal ground on which an expropriationcan be challenged is that the acquiringauthority has exceeded its powers, i.e. ithas acted ultra vires.• Municipal Council of Sydney v Campbell[1925] AC 338 (PC), court rejectedcompulsory acquisition where the realmotive for acquiring the land was forpurpose of enjoying the substantialincrease in the value that was to accrue tothe land.
    • 06/14/13 Ainul Jaria Maidin• Stamford Holdings Sdn Bhd v Kerajaan NegeriJohor & Ors.[1998]1 MLJ 607 acquisition waschallenged on ground of mala fide.• Krishnan Moorthy Manickam v PTG Johor[1996]4 CLJ 233, - no need for pre-acquisitionhearing as the audi alteram partem rule did notapply when the Executive Committee decidedto acquire the plaintiff’s land.
    • 06/14/13 Ainul Jaria MaidinHow to Challenge• Reference to court• Reference by Land Administrator-S.36(2)LAA 1960• Objection by Person Interested -S.36(2) LAA• Objection by any person or Government orCorporation on whose behalf such land isacquired S.37(3) LAA 1960
    • 06/14/13 Ainul Jaria MaidinWho can Challenge– registered proprietor (title holder),– registered interest holder• chargees• lessees• sub-lessee• lienholder,• TER• easement holder• a purchaser who has entered into a valid SPA• other registrable interest or title holder
    • 06/14/13 Ainul Jaria MaidinPossible Grounds for Challenging• Dissatisfaction with Quantum of compensation• Ultra Vires Federal Constitution• Breach of Natural Justice• Mala Fide (Bad Faith)• Non-Compliance with of s.9(1) LAA 1960• Delay:• a. Delay in holding an enquiry• b. Delay in making an award• c. Delay in making actual payment ofcompensation
    • 06/14/13 Ainul Jaria MaidinDissatisfaction with compensation• Landowner who is unhappy with amount ofcompensation paid can challenge proceedings –• Ng Tiou Hong v Collector of Land Revenue,Gombak [1984] 2 MLJ 35 - Selangor StateAuthority acquired a property co-owner by 14owners. The owners being dissatisfied with thecompensation referred to the High Court.Judge apportioned land into two differentareas and assessed it differently. On appeal toFederal Court it was held that land should bevalued as a whole unit.
    • 06/14/13 Ainul Jaria Maidin• Ng Chee Keong & Ors v Lembaga LetrikNegara & Anor [1991] 1 CLJ 567• action was based on trespass and a claim forcompensation and loss of income in respect ofthe land acquired many years earlier. Wherethere is a right to appeal, the appellant shouldavail itself of the remedy and would not haveany specific legal right to apply for mandamus.• An award of the collector is a finaldetermination in land acquisition proceedings.
    • 06/14/13 Ainul Jaria MaidinUltra Vires Federal Constitution• S 3 LAA 1960 alleged to be in contravention ofArticle 8(1) Federal Constitution Article 8(1)provides that “All persons are equal before the andentitled to equal protection of the law”• Goh Seng Peow & Sons Realty S.B. v Collector ofLand Revenue, W.P. [1986] 2 MLJ 395, Ct heldthat it is not since s 3 provides public purpose andnot merely purpose as such it is not inconsistentwith Federal Constitution article 8.• See also S.Kulasingam and Anor v Commissioner ofLand, Federal Territory [1982]1 MLJ
    • 06/14/13 Ainul Jaria MaidinBreach of Natural Justice• Principle of natural justice - that no personshould be condemned unheard.• The nature of the inquiry is not specified.• This gives rise to a few questions.• Is the person interested entitled to be heard?• Can he appear through a lawyer?• Can he produce his witnesses?• All these questions have been left vague by theLAA – leaving it to court
    • 06/14/13 Ainul Jaria Maidin• s.13(1), LA has power to summonwitnesses and examine them on oath; hecan also summon documents etc.• What is the nature of the function ofthe land administrator in the matter ofassessing compensation?
    • 06/14/13 Ainul Jaria Maidin• In Oriental Rubber & Oil Palms Sdn Bhd vPemungut Hasil Tanah, Kuantan, [1983] 1 MLJ315. George J, in the High Court, ruled thatthe collector in holding his inquiry was clothedwith judicial powers. It was held (at p 318):• ... there is no question but that the holding ofthe inquiry pursuant to s.12 and the making ofthe award pursuant to s.14 are quasi-judicialfunctions which could and do affect theindividual.
    • 06/14/13 Ainul Jaria Maidin• PHT, Daerah Barat Daya (Balik Pulau), PulauPinang v Kam Gin Paik [1983] 2 MLJ 390.• HCt - there was a denial of natural justice torespondent at time of the s 12 inquiry by theland administrator,• but on appeal, FC overruled HC holding thatthere was no breach of natural justice.The complaint was - collector disregardedevidence adduced at the inquiry, did not allowcounsel to submit on facts and law, and did notpermit government valuation officer to becross-examined.• The court ruled that none of these amounted toa breach of natural justice.
    • 06/14/13 Ainul Jaria MaidinMala Fide (Bad Faith)• Syed Omar bin Abdul Rahman Taha Alsagoff vGovernment of Johor [1979] 1 MLJ 49, theappellants land was acquired by the stateauthority in Johore. He challenged theacquisition as null and void on the ground thatthe land was acquired for unauthorized purposes.In the absence of bad faith, it is not possible tochallenge the validity of the declaration byasserting that some of the land to which itrelates is not needed for the purposes stated, orthat the land is in fact wanted for purposesother than those specified, or that the purposesstated in the declaration do not come within s 3.
    • 06/14/13 Ainul Jaria Maidin• It would also not help to assert that the landlisted in the schedule was much larger thanthe total area originally intended to beacquired by the state authority; and• (vii) in the instant case, there was no proof ofbad faith on the part of the acquiringauthority. He contended that the draft lay-out plan prepared by the state planningofficer showed his lands zoned forrecreational purpose, and that such apurpose did not come within s.3 LAA or thedeclaration of intended acquisition which hadstated the purpose of the acquisition to beconstruction of port, residential andindustrial.
    • 06/14/13 Ainul Jaria Maidin• Privy Council rejected appellants contention:• (i) para 1 of declaration in question was thematerial or substantive part of thedeclaration‘• (ii) lay-out plan was not relevant, for the Actimposes no obligation on acquiring authority toproduce a plan for inspection showing how theland to be acquired is to be zoned• iii) the zoning of the appellants lands forrecreational purposes in the draft lay-outplan prepared by planning officer was neveraccepted and approved by the state authority
    • 06/14/13 Ainul Jaria Maidin• (iv) even if the land had been acquired for thepurpose shown in the lay-out plan, that would notsuffice to show that purpose of acquisition wouldfall outside s 3, or outside declaration, for wherea new town is to be created, provision of space forrecreation may be regarded as incidental tozoning for residential use• (v) however, the appellants land had actually beenused as part of a shipyard• (vi) s 8(3) provides that declaration shall beconclusive evidence that all the scheduled land isneeded for purpose specified.
    • 06/14/13 Ainul Jaria Maidin• A declaration made pursuant to thissubsection may be treated as a nullity ifit be shown that the acquiring authorityhas misconstrued its statutory powers,or that the purpose stated in thedeclaration does not come within s 3.
    • 06/14/13 Ainul Jaria Maidin• State of Punjab v Gurdial Singh, HC stuck downland acquisition proceedings for acquiring thepetitioners land on ground of mala fides.• state appealed to SC, but SC refused and letthe HC decision stand. From the course ofevents, the fact that the acquisition proceedingswere initiated by one of the respondents, whowas a minister in the government and a localpolitician, to satisfy his personal vendettaagainst the plaintiff landholder, and also thefact that the allegations made by the petitionerremained uncontroverted by the respondents,the court concluded that there was malice onthe part of the government in acquiring thepetitioners land.
    • 06/14/13 Ainul Jaria Maidin• court was satisfied that statutory power toacquire land had been misused in the instantcase to satisfy the personal vendetta of aninfluential politician against the landowner.• court emphasized that under the LandAcquisition Act, land can be acquired for apublic purpose, but if it is shown that this is notthe goal pursued, but that private satisfactionof wreaking vengeance is the movingconsideration in the selection of the land foracquisition, then the exercise of the powerwould be bad.
    • 06/14/13 Ainul Jaria MaidinNon-Compliance with provisions ofsection 9(1) of LAA 1960• S. Kulasingam and Anor v Commissioner ofLand, Federal Territory [1982] 1 MLJ 204Failure to comply with s.9(1) LAA – publicationof Notice in Form 8 under s 8- the collectedshall make a note of the intended acquisitionon the RDT. In this case, the collector madethe note 2 months after publication in theGazette. Fed. Ct – requirement is directoryand not mandatory. So long the notation ismade even at a later time still valid.•  
    • 06/14/13 Ainul Jaria Maidin• Delay• a. Delay in holding an enquiry• b. Delay in making an award• c. Delay in making actual payment ofcompensation•  
    • 06/14/13 Ainul Jaria MaidinDelay in holding enquiry• Entire proceeding from date of acquisition tothe payment of compensation must becompleted within two years; see LA(Amendment) Act 1984 (Act A575) whichamended s.8(4).• courts have consistently ruled that unduedelay in holding an enquiry resulting ininadequate compensation being awardedtantamount to an abuse of power and rendersthe enquiry and subsequent acquisitionproceedings null and void;
    • 06/14/13 Ainul Jaria Maidin• see Pemungut Hasil Tanah v Ong Gaik Kee[1983] 2 MLJ 35 at 37; Pemungut Hasil TanahDaerah v Kam Gin Paik & Ors.[1986] 1 MLJ362 at 364; Oriental Rubber & Oil Palms SdnBhd v Pemungut Hasil Tanah, Kuantan [1983] 1MLJ 315-the delay was of six years, theaward was quashed; Re Application of Tan Oon& Ors; Tan Oon & Ors v Pemungut HasilTanah, Kuantan [1985] 2 MLJ 67 -delay of sixyears. The purpose of the enquiry is tosatisfy the land administrator of the amountof compensation Pemungut Hasil Tanah DaerahBarat Daya, Penang v Kam Gin & Ors [1986] 1MLJ 362.
    • 06/14/13 Ainul Jaria MaidinDelay in making an award• Delay in making an award or the amountof compensation that is payable to theinterested persons after holding aninquiry.
    • 06/14/13 Ainul Jaria MaidinDelay in making actual paymentof compensation• LAA s 29(1) provides that after a noticeof award in Form H has been served inthe manner prescribed by section 53upon all interested persons the LandAdministrator shall, as soon as may be,make payment of each amount awardedto the person entitled. There used to beinordinate delay in the payment ofcompensation for the land acquired.
    • 06/14/13 Ainul Jaria Maidin• Pemungut Hasil Tanah Kuantan v OrientalRubber & Palmoil SB[1986] 1 MLJ 39• delay of 3½ years between s 8 notification andthe inquiry and the award by the landadministrator – There was no reasonableexplanation for the delay in holding theinquiry. Supreme Ct- delay as unreasonable.However, Ct said that there was no evidencethat the landowner has suffered any graveinjustice
    • 06/14/13 Ainul Jaria Maidin• Dato Fong Chow & Ors v Pentadbir TanahDaerah Jerantut, there was a delay in thepayment of award accepted by thedispossessed landowner. Interest wasallowed and computation was calculatedfrom the date of judgment in accordancewith the RHC 1980.• delay on part of SA in making payment tointerested persons.
    • 06/14/13 Ainul Jaria Maidin• LAA 1960 in s 68A provides that, where any landhas been acquired under this Act, whetherbefore or after the commencement of thissection, no subsequent disposal or use of, ordealing with, the land, whether by SA or byGovernment, person or corporation on whosebehalf the land was acquired, shall invalidate theacquisition of the land. LAA 1960 in s 56, furtherprovides that no omission or failure to make duepublication of a notice or to make due serviceupon persons and parties interested as providedin this Part shall invalidate any proceedingsunder this Act.
    • 06/14/13 Ainul Jaria Maidin• purpose of section is to regularize anyirregularities arising from the inquiry and theaward made thereunder which will not affect theacquisition itself.• Under the section, court has no power to declarean inquiry and the award made thereunder to benull and void solely on the ground of non-serviceof the notice in Form E.• Pengarah Tanah dan Galian Negeri Kedah vEmico Development Sdn Bhd [2000] 1 MLJ 257.