Blue screen-land acquisition process flow [compatibility mode]

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Pengambilan Balik TanahDisediakan 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.

Here comes your footer � Page 2

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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.


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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.


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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).


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� 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.


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� 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.


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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

Pemilihan tapak dan

kajian kesesuaian

Permohonan,

pewartaan dan

penandaan

Pengambilan

Siasatan & perintah

Pembayaran

pampasan

Mengambil milik

Pasca Pengambilan

Rujukan ke

mahkamah

Pindaan cukai dan

hakmilik sambungan

Borang-borang :

• Borang 1

• Borang A

• Borang B

• Borang C

• Borang D

Borang-borang :

• Borang E

• Borang F

• Borang G

• Borang H

• Borang I

• Borang J

• Borang K

• Borang L

Borang-borang :

• Borang M

• Borang N

• Borang O

• Borang P

• Borang Q

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Page 19

Pemilihan Tapak Cadangan Projek

Penilaian Tapak

Rundingan

Pihak Terlibat:

1. Peg. Daerah

2. JPBD

3. Maj. Daerah

4. JKPTG NegeriDokumen Terperingkat

(Sulit)

Tapak Dimuktamad

Ulasan Rasmi

Jabatan Teknikal

Peringkat Daerah:

1. JPBD

2. Maj. Daerah

3. JKR

4. JPS

5. DOE

6. Pej. TanahJ/Kuasa Pbgnn Daerah

Pembentangan

Setuju Tidak

Page 20

Permohonan

J/Kuasa Pbgnn Daerah

Setuju Tidak

Permohonan

Permohonan :

a. Borang

Permohonan

b. Fee

c. Deposit

d. Laporan

Cadangan Projek

e. Pelan Tatatur

f. Pelan

Pengambilan

Tanah

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Page 21

Permohonan Pengambilan Tanah Pemohon

Sek. 4

Sek. 8

Borang A

Borang B

Borang C

Borang D

Borang E Borang F

Borang G

Borang H

Borang K

Borang J

Siasatan

Kerja Ukur

@

Kajian Tanah

Maksimum : 1 Thn

Page 22

Permohonan Pengambilan Tanah Pemohon

Sek. 4

Sek. 8

Borang A

Borang B

Borang C

Borang D

Borang E Borang F

Borang G

Borang H

Borang K

Borang J

Siasatan

Kerja Ukur

@

Kajian Tanah

Maksimum : 1 Thn

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Carta Alir Borang-borang Dalam Pengambilan Balik Tanah


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form JForm I

Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

� Sect. 4 (Gazette)

� State authority satisfied that acquisition is likely to be necessary for any

purpose under Sect. 3

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Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

� Sect. 5

� State Director power to enter land and to do any or all the

following:

- survey and take levels of the land;

- dig or bore into the sub-soil;

- do all other acts necessary to ascertain whether the land is

adapted for the purpose for which it is to be acquired;

- set out the boundaries of the land proposed to be taken and

the intended line of the work, if any, proposed to be made

thereon;

- mark such levels, boundaries and line by placing marks and

cutting trenches;

- cut down and clear away any standing crop, fence or jungle,

where otherwise the survey cannot be completed, or the

levels cannot be taken, or the boundaries or line of the work

cannot be marked.

Form B

Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

� 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,

venue of land, width of land, topographical of land

and anything found of land, description and aerial

view of land.

� Why must those information included be so specific :

to ensure the land is the same land as intended by

state 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

suitable for the intended project.

� Can those specific information included be legally

challenged in court?

- yes....particularly on the add, venue, width and

topography of the land

Form C

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Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

Form D

� Sect. 8 (Gazette)

� State Authority decides acquisition is

necessary.

� The gazettement will only valid for the period

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

District in which such lands and areas are

situated.

Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

Form E

� 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

at the above time either personally or by agent and there to state-

- the nature of their respective interests in the land;

- the amount and particulars of their claims to compensation for such interests;

- their objections, if any, to the measurements of approximate area given in the Schedule below;

- 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.

� Notice is further given that the undersigned may require-

- that in any particular case any such statement or statements should be reduced to writing

and signed by the party or his agent;

- that any person in possession of the issue document of title in respect of any land

scheduled below deliver up such document at the time of inquiry.

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Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

Form F

� 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:

- separate valuations of the land and of the improvements, if any, thereon, showing

the basis upon which such valuations are made;

- the name of every person possessing any interest in the land or any part thereof,

either as co-owner, chargee, lessee, sub-lessee, tenant or otherwise; and

- 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 I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

Form G

� 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

specified below:

- Lot no.

- Area required

- Persons interested

- Nature of interest

- Apportionment of award

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Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

Form H

� Sect. 16

� Notice of award and offer of compensation

� Land Administrator offers the proprietor the

sum of RMXX as full compensation for the

interest in this land.

� Section 29A of the Land Acquisition Act 1960,

requires Land Administrator to withhold

twenty-five per cent of the amount of the

award in certain circumstances, subject to the

provisions of that section.

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Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

� Sect. 19

� State Director issued out the Certificate of Urgency for the land which to be

required for a public purpose of for a public utility.

� This only can be used for the land without any building or structures on it.

� The applicant have to provide sufficient funds to pay the penalties of late

payment at the rate of 8% per annum.

Form I

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Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form JForm J

� Sect. 20

� Subsequent to the Form I, Land Administrator will issue a notice which

require that any person to vacate the building referred to and situated on

the said land within certain days.

� Land Administrator offer to the owner of the premises compensation to the

amount of RMXX which compensation represents-

- the value of the building*

- the cost of removing and re-erecting such building elsewhere. *

Form I


Form A

Form K

Form C

Form D

Form E

Form F

Form G Form H

Form B

Form J

Form K

� Sect. 22

� Land Administrator, pursuant to Sect. 22 LAA, taken

formal possession of the land shown in the schedule.

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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.

� 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.


Sect. 4 Sect. 8

1 Jan 2010 1 Jan 2011

Market value as of 1 Jan 2010

1 Jan 2010 1 May 2011

Market value as of 1 May 2011

Sect. 4 Sect. 8

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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.


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SENARAI SEMAK PERMOHONAN PENGAMBILAN TANAHDi 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 TANAHDi 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)


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Pengiraan Fee

Bil. Butiran Fee tambahan

bagi setiap

orang

Fee

1 Tiap-tiap permohonan bagi

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

sehingga 15

b. Atas tambahan orang seterusnya

sehingga 20

c. Atas tambahan orang seterusnya

RM1,000.00

RM2,000.00

RM3,000.00

RM10,000.00


Jadual Kedua

Fee

(Kaedah 4)

Pengiraan Fee

Bil. Butiran Fee tambahan

bagi setiap

orang

Fee

1 Tiap-tiap permohonan bagi

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

RM1,000.00


Jadual Kedua

Fee

(Kaedah 4)

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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.



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Education

Blue screen-land acquisition process flow [compatibility mode]