2. 05/14/14 Ainul Jaria Maidin
General principle
• any person whose land has been acquired
compulsorily by the State Authority cannot
challenge acquisition proceedings
3. 05/14/14 Ainul Jaria Maidin
• There are very limited grounds for
challenging acquisition.
• Acquisition is unlawful, i.e. where acquiring
authority has exceeded its statutory powers
and is taking the land for a purpose outside
the scope of the Act or ostensibly for one
purpose but intended for another.
4. 05/14/14 Ainul Jaria Maidin
• principal ground on which an expropriation
can be challenged is that the acquiring
authority has exceeded its powers, i.e. it
has acted ultra vires.
• Municipal Council of Sydney v Campbell
[1925] AC 338 (PC), court rejected
compulsory acquisition where the real
motive for acquiring the land was for
purpose of enjoying the substantial
increase in the value that was to accrue to
the land.
5. 05/14/14 Ainul Jaria Maidin
• Stamford Holdings Sdn Bhd v Kerajaan Negeri
Johor & Ors.[1998]1 MLJ 607 acquisition was
challenged on ground of mala fide.
• Krishnan Moorthy Manickam v PTG Johor
[1996]4 CLJ 233, - no need for pre-acquisition
hearing as the audi alteram partem rule did not
apply when the Executive Committee decided
to acquire the plaintiff’s land.
6. 05/14/14 Ainul Jaria Maidin
How 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 or
Corporation on whose behalf such land is
acquired S.37(3) LAA 1960
7. 05/14/14 Ainul Jaria Maidin
Who 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
8. 05/14/14 Ainul Jaria Maidin
Possible 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 of
compensation
9. 05/14/14 Ainul Jaria Maidin
Dissatisfaction with compensation
• Landowner who is unhappy with amount of
compensation paid can challenge proceedings –
• Ng Tiou Hong v Collector of Land Revenue,
Gombak [1984] 2 MLJ 35 - Selangor State
Authority acquired a property co-owner by 14
owners. The owners being dissatisfied with the
compensation referred to the High Court.
Judge apportioned land into two different
areas and assessed it differently. On appeal to
Federal Court it was held that land should be
valued as a whole unit.
10. 05/14/14 Ainul Jaria Maidin
• Ng Chee Keong & Ors v Lembaga Letrik
Negara & Anor [1991] 1 CLJ 567
• action was based on trespass and a claim for
compensation and loss of income in respect of
the land acquired many years earlier. Where
there is a right to appeal, the appellant should
avail itself of the remedy and would not have
any specific legal right to apply for mandamus.
• An award of the collector is a final
determination in land acquisition proceedings.
11. 05/14/14 Ainul Jaria Maidin
Ultra Vires Federal Constitution
• S 3 LAA 1960 alleged to be in contravention of
Article 8(1) Federal Constitution Article 8(1)
provides that “All persons are equal before the and
entitled to equal protection of the law”
• Goh Seng Peow & Sons Realty S.B. v Collector of
Land Revenue, W.P. [1986] 2 MLJ 395, Ct held
that it is not since s 3 provides public purpose and
not merely purpose as such it is not inconsistent
with Federal Constitution article 8.
• See also S.Kulasingam and Anor v Commissioner of
Land, Federal Territory [1982]1 MLJ
12. 05/14/14 Ainul Jaria Maidin
Breach of Natural Justice
• Principle of natural justice - that no person
should 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 the
LAA – leaving it to court
13. 05/14/14 Ainul Jaria Maidin
• s.13(1), LA has power to summon
witnesses and examine them on oath; he
can also summon documents etc.
• What is the nature of the function of
the land administrator in the matter of
assessing compensation?
14. 05/14/14 Ainul Jaria Maidin
• In Oriental Rubber & Oil Palms Sdn Bhd v
Pemungut Hasil Tanah, Kuantan, [1983] 1 MLJ
315. George J, in the High Court, ruled that
the collector in holding his inquiry was clothed
with judicial powers. It was held (at p 318):
• ... there is no question but that the holding of
the inquiry pursuant to s.12 and the making of
the award pursuant to s.14 are quasi-judicial
functions which could and do affect the
individual.
15. 05/14/14 Ainul Jaria Maidin
• PHT, Daerah Barat Daya (Balik Pulau), Pulau
Pinang v Kam Gin Paik [1983] 2 MLJ 390.
• HCt - there was a denial of natural justice to
respondent at time of the s 12 inquiry by the
land administrator,
• but on appeal, FC overruled HC holding that
there was no breach of natural justice.
The complaint was - collector disregarded
evidence adduced at the inquiry, did not allow
counsel to submit on facts and law, and did not
permit government valuation officer to be
cross-examined.
• The court ruled that none of these amounted to
a breach of natural justice.
16. 05/14/14 Ainul Jaria Maidin
Mala Fide (Bad Faith)
• Syed Omar bin Abdul Rahman Taha Alsagoff v
Government of Johor [1979] 1 MLJ 49, the
appellant's land was acquired by the state
authority in Johore. He challenged the
acquisition as null and void on the ground that
the land was acquired for unauthorized purposes.
In the absence of bad faith, it is not possible to
challenge the validity of the declaration by
asserting that some of the land to which it
relates is not needed for the purposes stated, or
that the land is in fact wanted for purposes
other than those specified, or that the purposes
stated in the declaration do not come within s 3.
17. 05/14/14 Ainul Jaria Maidin
• It would also not help to assert that the land
listed in the schedule was much larger than
the total area originally intended to be
acquired by the state authority; and
• (vii) in the instant case, there was no proof of
bad faith on the part of the acquiring
authority. He contended that the draft lay-
out plan prepared by the state planning
officer showed his lands zoned for
'recreational' purpose, and that such a
purpose did not come within s.3 LAA or the
declaration of intended acquisition which had
stated the purpose of the acquisition to be
'construction of port, residential and
industrial'.
18. 05/14/14 Ainul Jaria Maidin
• Privy Council rejected appellants contention:
• (i) para 1 of declaration in question was 'the
material or substantive part of the
declaration‘
• (ii) lay-out plan was not relevant, for the Act
imposes no obligation on acquiring authority to
produce a plan for inspection showing how the
land to be acquired is to be zoned
• iii) the zoning of the appellant's lands for
'recreational' purposes in the draft lay-out
plan prepared by planning officer was never
accepted and approved by the state authority
19. 05/14/14 Ainul Jaria Maidin
• (iv) even if the land had been acquired for the
purpose shown in the lay-out plan, that would not
suffice to show that purpose of acquisition would
fall outside s 3, or outside declaration, for where
a new town is to be created, provision of space for
recreation may be regarded as incidental to
zoning for residential use
• (v) however, the appellant's land had actually been
used as part of a shipyard
• (vi) s 8(3) provides that declaration shall be
conclusive evidence that all the scheduled land is
needed for purpose specified.
20. 05/14/14 Ainul Jaria Maidin
• A declaration made pursuant to this
subsection may be treated as a nullity if
it be shown that the acquiring authority
has misconstrued its statutory powers,
or that the purpose stated in the
declaration does not come within s 3.
21. 05/14/14 Ainul Jaria Maidin
• State of Punjab v Gurdial Singh, HC stuck down
land acquisition proceedings for acquiring the
petitioner's land on ground of mala fides.
• state appealed to SC, but SC refused and let
the HC decision stand. From the course of
events, the fact that the acquisition proceedings
were initiated by one of the respondents, who
was a minister in the government and a local
politician, to satisfy his personal vendetta
against the plaintiff landholder, and also the
fact that the allegations made by the petitioner
remained uncontroverted by the respondents,
the court concluded that there was malice on
the part of the government in acquiring the
petitioner's land.
22. 05/14/14 Ainul Jaria Maidin
• court was satisfied that statutory power to
acquire land had been misused in the instant
case to satisfy the personal vendetta of an
influential politician against the landowner.
• court emphasized that under the Land
Acquisition Act, land can be acquired for a
public purpose, but if it is shown that this is not
the goal pursued, but that private satisfaction
of wreaking vengeance is the moving
consideration in the selection of the land for
acquisition, then the exercise of the power
would be bad.
23. 05/14/14 Ainul Jaria Maidin
Non-Compliance with provisions of
section 9(1) of LAA 1960
• S. Kulasingam and Anor v Commissioner of
Land, Federal Territory [1982] 1 MLJ 204
Failure to comply with s.9(1) LAA – publication
of Notice in Form 8 under s 8- the collected
shall make a note of the intended acquisition
on the RDT. In this case, the collector made
the note 2 months after publication in the
Gazette. Fed. Ct – requirement is directory
and not mandatory. So long the notation is
made even at a later time still valid.
•
24. 05/14/14 Ainul Jaria Maidin
• Delay
• a. Delay in holding an enquiry
• b. Delay in making an award
• c. Delay in making actual payment of
compensation
•
25. 05/14/14 Ainul Jaria Maidin
Delay in holding enquiry
• Entire proceeding from date of acquisition to
the payment of compensation must be
completed within two years; see LA
(Amendment) Act 1984 (Act A575) which
amended s.8(4).
• courts have consistently ruled that undue
delay in holding an enquiry resulting in
inadequate compensation being awarded
tantamount to an abuse of power and renders
the enquiry and subsequent acquisition
proceedings null and void;
26. 05/14/14 Ainul Jaria Maidin
• see Pemungut Hasil Tanah v Ong Gaik Kee
[1983] 2 MLJ 35 at 37; Pemungut Hasil Tanah
Daerah v Kam Gin Paik & Ors.[1986] 1 MLJ
362 at 364; Oriental Rubber & Oil Palms Sdn
Bhd v Pemungut Hasil Tanah, Kuantan [1983] 1
MLJ 315-the delay was of six years, the
award was quashed; Re Application of Tan Oon
& Ors; Tan Oon & Ors v Pemungut Hasil
Tanah, Kuantan [1985] 2 MLJ 67 -delay of six
years. The purpose of the enquiry is to
satisfy the land administrator of the amount
of compensation Pemungut Hasil Tanah Daerah
Barat Daya, Penang v Kam Gin & Ors [1986] 1
MLJ 362.
27. 05/14/14 Ainul Jaria Maidin
Delay in making an award
• Delay in making an award or the amount
of compensation that is payable to the
interested persons after holding an
inquiry.
28. 05/14/14 Ainul Jaria Maidin
Delay in making actual payment
of compensation
• LAA s 29(1) provides that after a notice
of award in Form H has been served in
the manner prescribed by section 53
upon all interested persons the Land
Administrator shall, as soon as may be,
make payment of each amount awarded
to the person entitled. There used to be
inordinate delay in the payment of
compensation for the land acquired.
29. 05/14/14 Ainul Jaria Maidin
• Pemungut Hasil Tanah Kuantan v Oriental
Rubber & Palmoil SB[1986] 1 MLJ 39
• delay of 3½ years between s 8 notification and
the inquiry and the award by the land
administrator – There was no reasonable
explanation for the delay in holding the
inquiry. Supreme Ct- delay as unreasonable.
However, Ct said that there was no evidence
that the landowner has suffered any grave
injustice
30. 05/14/14 Ainul Jaria Maidin
• Dato Fong Chow & Ors v Pentadbir Tanah
Daerah Jerantut, there was a delay in the
payment of award accepted by the
dispossessed landowner. Interest was
allowed and computation was calculated
from the date of judgment in accordance
with the RHC 1980.
• delay on part of SA in making payment to
interested persons.
31. 05/14/14 Ainul Jaria Maidin
• LAA 1960 in s 68A provides that, 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 SA or by
Government, person or corporation on whose
behalf the land was acquired, shall invalidate the
acquisition of the land. LAA 1960 in s 56, further
provides that no omission or failure to make due
publication of a notice or to make due service
upon persons and parties interested as provided
in this Part shall invalidate any proceedings
under this Act.
32. 05/14/14 Ainul Jaria Maidin
• purpose of section is to regularize any
irregularities arising from the inquiry and the
award made thereunder which will not affect the
acquisition itself.
• Under the section, court has no power to declare
an inquiry and the award made thereunder to be
null and void solely on the ground of non-service
of the notice in Form E.
• Pengarah Tanah dan Galian Negeri Kedah v
Emico Development Sdn Bhd [2000] 1 MLJ 257.
