Challenging land acquisition proceedings

04/11/23 Ainul Jaria Maidin

Challenging Land Acquisition Proceedings


General principle

• any person whose land has been acquired compulsorily by the State Authority cannot challenge acquisition proceedings


• 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.


• 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.


• 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.


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


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


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


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.


• 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.


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


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


• 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?


• 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.


• 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.


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.


• 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'.


• 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


• (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.


• 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.


• 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.


• 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.


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.

•


• Delay • a. Delay in holding an enquiry• b. Delay in making an award• c. Delay in making actual payment of

compensation•


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;


• 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.


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.


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.


• 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


• 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.


• 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.


• 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.

Law

Challenging land acquisition proceedings