grounds for challenging compulsory land acquisition

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Challenging Compulsory Land Acquisition

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

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There are very limited grounds for challenging acquisition. Acquisition is unlawful, i.e. where the 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.

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The 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.

See Municipal Council of Sydney v Campbell [1925] AC 338 (PC), where court rejected a compulsory acquisition where the real motive for acquiring the land was for the purpose of enjoying the substantial increase in the value that was to accrue to the land.

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See Stamford Holdings Sdn Bhd v Kerajaan Negeri Johor & Ors [1998] 1 MLJ 607, where the acquisition was challenged on the ground of mala fide.

In Krishnan Moorthy P Manickam v Pengarah Tanah dan Galian Negeri Johor [1996] 4 CLJ 233, it was held that there was no need for such a pre-acquisition hearing as the audi alteram partem rule did not apply when the Executive Committee decided to acquire the plaintiff’s land.

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How to Challenge

Reference to court Reference by the Land Administrator-

S.36(2) LAA  1960  Objection by the 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

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Who can Challenge

Interested persons –includes registered proprietor (title holder), registered interest holder i.e. chargees, lessees, sub-lessee, lien-holder, TER, easement holder, a purchaser who has entered into a valid sale and purchase agreement, also other registrable interest or title holder

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Challenging Land Acquisition

Dissatisfied with amount of compensation Ultra Vires provision of Federal

Constitution Breach of Natural Justice Mala Fide -Bad Faith

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Challenging Land Acquisition

Non-Compliance with s 9(1) of LAA Delay: (a) Delay in holding an enquiry (b) Delay in making an award (c) Delay in making actual payment of

compensation

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Dissatisfaction with Quantum or amount of compensation

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A landowner who is unhappy with the amount of compensation can challenge the proceedings

Ng Tiou Hong v Collector of Land Revenue, Gombak – Selangor, State Authority had acquired a piece of property owned by 14 co-owners. Being dissatisfied with the Collector’s award the owners had refer their claims to the High Ct. The judge proceeded to divide the property into 2 separate portions giving different values to 2 portions. On appeal to Fed Ct., it was held that the proper thing to do is to value the land as one whole unit. Thus, appeal is allowed.

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See Ng Tiou Hong v Collector of Land Revenue, Gombak [1984] 2 MLJ 35 where the Selangor State Authority acquired a property co-owner by 14 owners. The owners being dissatisfied with the compensation referred to 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.

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See Collector of Land Revenue Kuantan v Noor Cahaya

The issue was whether the trial judge was correct in holding that market value & potential value are 2 separate items to be determined separately and then to be added to one another. Fed Ct. held that the 2 items should be considered together as one whole item, as market values includes potential value.

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Ultra Vires Federal Constitution Section 3 LAA was alleged to be in contravention

of Article 8(1) Federal Constitution. Article 8(1) provides that “All persons are equal

before the law and entitled to equal protection of the law.” See S.Kulasingam & Anor v Commissioner of Land, Federal Territory [1982] 1 MLJ 204 where it was alleged that S 3 LAA is ultra vires the Federal Constitution.

The court held that it is not since s 3 provides public purpose and not merely ‘purpose’ as such it is not inconsistent with Art. 8

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Goh Seng Peow & Sons Realty S.B. v Collector of Land Revenue, W.P[1986] 2 MLJ 395

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Breach of Natural Justice

Principle of natural justice provides that no person should be condemned unheard

See Lau Cher Hian v Collector of Land Revenue, Muar [1971] 1 MLJ 96 where the appellant appealed against the decision of the Collector on the ground of not being given an opportunity to be heard

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She was delayed in consulting with her co-proprietor, her brother thus she did not make her written objections within the six weeks period.

She applied to court for extension of time – on the ground that the Notice in Form H did not mention about the 6 weeks duration.

Trial ct – rejected. On appeal –allowed – right to be heard.

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Pemungut Hasil Tanah barat Daya PP v Kam Gin Paik & Ors

-grounds of denial of natural justice Federal Ct – collected has not disregarded any

evidence adduced by or for the landowners. Given opportunity to be heard. Only that the Land Administrator refused to allow the council for the landowner to cross-examine on the valuation report – did not infringe natural justice.

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Mala Fide (Bad Faith)

Syed Omar bin Abdul Rahman Taha Alsagoff v Government of Johor [1979] 1 MLJ 49

Yeap Seok Pen v Government of Kelantan [1986] 1 MLJ 449

Stamford Holdings Sdn Bhd v Kerajaan Negeri Johor & Ors [1998] 1 MLJ 607

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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.

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Delay

(a) Delay in holding an enquiry (b) Delay in making an award (c) Delay in making actual payment of

compensation

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Delay in holding an inquiry

PHT Daerah Barat Daya, Pulau Pinang v Ong Gaik Kee [1983] 2 MLJ 35

Oriental Rubber and Palm Oil Sdn. Bhd. v PHT Kuantan [1983] 1 MLJ 315

Sg.Bongkoh Estate v PHT Kuala Muda (1995) 1 CLJ 400

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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

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Delay in payment of compensation

The delay on the part of the State Authority in making the payment to the interested persons

There used to be inordinate delay in the payment of compensation for the land acquired.

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Pemungut Hasil Tanah Kuantan v Oriental Rubber & Palmoil Sdn Bhd [1986] 1 MLJ 39 dealy of 3 ½ 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

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