Advice Style

The Great Developer Sdn. able to raise objection towards the land acquisition as the company is the land proprietor, which within the meaning of person interested in accordance with interpretation section of Land Acquisition Act 1960 (LAA 1960).[1] However, the grounds that could be raised to challenge had not expressly stated within the provisions of the Act. Such rights are implied in the words of constitution, statute and case law. The acquisition may be objected by the Great Developer Sdn. Bhd. if the Gombak Land Administrator had made a procedural error. A procedural error may be made through delay in any procedural step and non-compliance with S 9(1) of LAA 1960. S 9(1)(b) of LAA 1960 provided that Land Administrator must make a note of the intended acquisition on the registered document of title of the said land upon the publication of the declaration specified under S8 of the Act. It is preliminary step before entering the procedure of land acquisition.The issue of failure to comply with section 9 had been raised in the case of S Kulasingam and Anor v Commissioner of Land, Federal Territory,[2] where the note is only made 2 months the publication of the declaration. Although it was held non-compliance with S9, Federal Court still deemed the late notation as valid because it is not mandatory but mere directory. The Great Developer Sdn. Bhd. may raise this ground if the notation is late more than 2 years as the effect of declaration will lapse at that time. Such delay amounts to breach of natural justice, which is also a ground that will be discussed later. The original proprietor will be granted right to object if there is delay in any stages of the land acquisition, for example, holding enquiry, making an award, making actual payment of compensation.[3] Prior to the amendment of the Act, duration of time which a delay may affects the acquisition, is questionable before the court. In Wan Munah bte Wan Embong dan Lain-lain v Pemungut Hasil Tanah, Kuala Terengganu,[4] an acquisition order was quashed after 4 years the non-payment of compensation. A clear rule that 2 years is given for the whole proceeding to be completed or else the declaration will expires[5], in pursuant to the amendment of S8(4) of LAA 1960 in 1982.[6] The first step of the acquisition proceeding is that the Land Administrator shall make full enquiry into the value of land in accordance with S 12 of LAA 1960. A delay in holding enquiry may affect the payment of compensation to be delayed respectively. It was consistently held by the court that the delay in enquiry for undue reason will renders the acquisition to be void even in cases before the amendment took place.[7] The next stage in land acquisition process is to determine the amount of compensation or award after the enquiry. According to Pemungut Hasil Tanah Daerah Barat Daya, Penang v Kam Gin & Ors,[8] The enquiry is carried out with the purpose of deciding the amout of award and its delay will lead to unjustice. The last stage is the payment of compensation by the Land Administrator. S 29(1) of LAA 1960 stipulates that the payment of the award will be made as soon as possible once the notice of award in Form H had been served. Delay in making actual payment of compensation had been recognised in Wan Munah’s case.[9] However, S68A of LAA 1960 had also provided that subsequent disposal of the land acquired through acquisition cannot be invalidated. Its validity is only questionable if there is failure in complying the procedures. In Pengarah Tanah dan Galian Negeri Kedah v Emico Development Sdn Bhd,[10] if a notice of enquiry in Form E is not served, the whole land acquisition process including the enquiry and award made, cannot be held by court as null and void under this section. In other words, the delay must be in an important procedural stages or else the acquisition will still be deemed valid. If the Gombak Land Administrator had delayed in one of the significant stages of the acquisition proceedings, the Great Developer Sdn. Bhd. may has right to invalidate the acquisition. Besides, ground may be raised by Great Developer Sdn. Bhd. is to argue that the land acquisition is in conflict with law. There is a principle of natural justice, Audi alteram partem, which every person has the right to be heard. However, there is no specific section that shows the person interested entitled to be heard but S13 of LAA 1960 gave power to Land administrator to summon witnesses and examine them on oath. A land proprietor can still raise the breach of natural justice as the matter are quasi-judicial and do affects an individual.[11] Such action is recognised by the case of Oriental Rubber & Oil Palms Sdn Bhd v Pemungut Hasil Tanah, Kuantan.[12] In Pemungut Hasil Tanah, Daerah Barat Daya (Balik Pulau), Pulau Pinang v Kam Gin Paik,[13] the High Court decision do recognized there was breach of natural justice in that case. However, it is overruled by the Federal Court decision, which ruled that the principles of natural justice shall be observed by the Land Administrator before he make an award for the land in his full enquiry. If he deliberately disregards the materials submitted by the landowner for assessing the amount of compensation, he is only amounts to breach of duty. This case is criticized by Ainul as it seems the enquiry is only for the collector’s satisfaction as to the adequate compensation rather than the landowner.[14] The Great Developer Sdn. Bhd. could plead the ground of breach of natural justice in objecting the land acquisition as the company have no chance to be heard in the process of enquiry. It is also can raised that the S 12 of LAA1960 lacked of the detailed procedure concerning the enquiry and so the section shall be interpreted as broad as possible in order to achieve justice, not like the limited interpretation in Kam Gik Paik’s case.[15] In conclusion, the Great Developer Sdn. Bhd. may raise the possible grounds above to show objection to the land acquisition. Judicial review could be filed before the High Court to supervise the public office in making decision that whether the decision made within the purpose of the Act. If the objection is successfully raised, the Court will restrain the decision.

[1] Krishnan Das Roy v Collector of Patna [1911-12] 16 CWN 327 [2] [1982] 1 MLJ 204 [3] Aibul Jaria Maidin, Principles of Malaysian Land Law (LexisNexis, Petaling Jaya 2008), pg 562-563 [4] [1990] 3 MLJ 120 [5] S 8(4) of Land Acquisition Act 1960: “A declaration under subsection (1) shall lapse and cease to be of any effect on the expiry of two years after the date of its publication in the Gazette in so far as it relates to any land or part of any land in respect of which the Land Administrator has not made an award under subsection 14(1) within the said period of two years, and, accordingly, all proceedings already taken or being taken in consequence of such declaration in respect of such land or such part of the land shall terminate and be of no effect.” [6] Land Acquisition (Amendment) Act 1984 (Act A575) [7] 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 where the delay of six years in giving the award was considered as inordinate and the award was quashed. [8] [1986] 1 MLJ 362 [9] Wan Munah bte Wan Embong dan Lain-lain v Pemungut Hasil Tanah, Kuala Terengganu [1990] 3 MLJ 120 [10] [2000] 1 MLJ 257 [11] Oriental Rubber & Oil Palms Sdn Bhd v Pemungut Hasil Tanah, Kuantan [1983] 1 MLJ 315, pg 318 [12] Ibid [13] [1983] 2 MLJ 390 [14] Aibul Jaria Maidin, Principles of Malaysian Land Law (LexisNexis, Petaling Jaya 2008), pg 560 [15] Pemungut Hasil Tanah, Daerah Barat Daya (Balik Pulau), Pulau Pinang v Kam Gin Paik [1983] 2 MLJ 390

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