law 504

Assignment

Uitm Shah Alamdanialabdtalib@gmail.com

Muhammad Danial Abd Talib2013807926

Law 504 Assignment 1

Jalil was occupying a piece of land held under a temporary occupation licence (“TOL”) since

2008. He erected a double story bungalow and grew some fruit trees on the land. On 1 December

2014, he made an application to the State Authority to renew his licence. Jalil was informed that

the State Authority has decided to alienate the TOL land to Sejuta Development Sdn Bhd

(“SDSB”) to be developed as a housing project and therefore Jalil’s application to renew his

license was rejected.

Answer the following questions: -

a) Jalil was not happy with the decision of the State Authority and claimed that as a TOL

holder he should be given the priority in the alienation of the land. Jalil decided to take

action against the State Authority and SDSB for all costs incurred by him to develop the

land. Advise Jalil.

b) Upon hearing that the land is to be alienated to SDSB, the Board of Directors of SDSB

started to engage contractors to clear the land and constructed wooden huts to house its

workers. Recently, SDSB received letter from the State Authority to vacate the land

failing which SDSB will be charged for trespassing on state land. A representative from

SDSB has come to see you for advice on the above matter.

Advise SDSB

(10 marks)

20 Oct. 2015

TO BE SUBMITTED ON THE 3RD SEMINAR.

Jalil was not happy with the decision of the State Authority and claimed that as a TOL holder he

should be given the priority in the alienation of the land. Jalil decided to take action against the

State Authority and SDSB for all costs incurred by him to develop the land. Advise Jalil.

Answer:

Temporary occupation licences fall under section 65, where the power to licence temporary

occupation of state land, mining land and reserved land. The state authority may permit TOL

based on few criteria.

The first is where the land must be under state own land. Here we could take that the land was

under state land as there is no charge from the owner for trespass. In addition to this, the land

itself has been under TOL since 2008 and by today it should clearly have taken as state own

land.

Second, were the land is under mining land but was never being used for the purposes of mining.

In this instances, we could have subsided the law as it was not applicable here in the case.

Third, when the land is reserved land. This was not applicable also as the land was never stated

as reserved of river or road. In addition, it better to assume that the land that been put under Jalil

was a state land that was never open or have plan for development in a decade starting from year

2008

In order to process the TOL the application has to be made, thus what Jalil did was acceptable

and it has been put under the power of land administrator to decide weather Jalil or SDSB to be

given the land under TOL or alienation of land

From section 67 we can clearly assume that the state government has follow the code as they

only given Jalil TOL for a term of a year and they also have follow subsection 3 or section 67 in

order to allowed Jalil to renew his TOL annually not exceeding 3 times. As year 2008 till 2015 is

more than 3 years, it can be assuming that the TOL has been renew under written approval from

the state authority.

To continue on, we will discuss on the alienation, alienation is cover under section 75 of land

code. The alienation of state land under this act shall consist of its disposal by the state authority.

The alienation of State land under this Act shall consist of its disposal by the State Authority (a)

for a term not exceeding ninety-nine years; (aa) in eternity- (I) where the Federal Government

requires the State Authority to cause a grant in perpetuity to be made to the Federal Government

or to a public authority or where the Federal Government and the Government of the state agree

to make a grant in perpetuity to the Federal Government; (ii) where the State Authority is

satisfied that the land is to be used for a public purpose; or (iii) where the State Authority is

satisfied that there are special circumstances which render it appropriate to do so; (b) in

consideration of the payment of an annual rent; (c) in consideration, unless the State Authority

thinks fit to exempt therefrom in any particular case, of the payment of a premium; (d) subject,

unless the State Authority otherwise directs pursuant to sub-section (5) of section 52, to a

category of land use determined in accordance with sub-sections (2) and (3) of that section; and

(e) subject to such conditions and restrictions in interest as may be imposed by the State

Authority under, or are applicable thereto by virtue of, any provision of this Act. Provided that

nothing in paragraph (aa) shall enable the State Authority to dispose of any part of the foreshore

or sea-bed for a period exceeding ninety-nine years; and paragraph (d) shall not apply to the

alienation of land under this Act in pursuance of an approval given by the State Authority before

the commencement thereof.

First rules are for a term not exceeding ninety-nine years. As far we understand the term stated in

the case is far below the 99 years. Jalil has engaged with the land since 2008 where it has been

put under temporary occupation license. From the year we could conclude that it was far below

the rules number one. Where the land term shall not exceed ninety-nine years. In contrast to

SDSB, we have been given the land for stated in between 99 years. As it was not clearly stated

we can assume that the land was given for period of 99 years. Thus we still comply with the rules

Second rules, is where the federal government requires the state authority to cause a grant in

perpetuity to be made to the federal government or to public authority or where the federal

government and the government of the state agree to make a grant in perpetuity to the federal

government. This cause was not applied to this case as it never been taken under the federal

government or subsidiaries. In contrast the land was given to third party that are independent and

a company of Sdn Bhd.

Third it comes when the state of this land should have come with consideration of a payments of

annual rent. As this become clear, we should comply this rules as it was in our consideration

before applying for the alienation.

In addition to above, the application was valid as the application was for alienation instead of

TOL, in this instance the authority of this was under the state government. Thus as the authority

we have given a green light in continuing the process.

In the reason of case by Jalil where he thinks he might be the better person to get the land was

not the case. As it was stated in the land code, only application will be entertaining. As he was

applying TOL instead of alienation then it become invalid. Based on one of the cases, the holder

under a TOL obtains no legal right equitable rights over the land he occupies by virtue of the

license other than to occupy the land temporarily from year if he can have his licence renewed

annually, and there is no obligation on the part of the authorities to grant a renewal of a TOL

license for any subsequent year.

For the compensations of the land due to Jalil, it could not be claimed as whole. As the

section67(3) and form 4a Schedule there is nothing can be taken as permanent either building or

crops. In addition to that, as the permit given to Jalil was agriculture, the bungalow of his has

become invalid and it has far go beyond the permitted or stipulated used of the license.

To supplement our case, we can see the case between Papoo and Veeriah. Here the court stated

that a temporary occupation licence is exactly what the name implies. It is a licence to occupy

and nothing more thus anything inside the land cannot be taken as permanent and the validation

of the bungalow also has cause over the line from Jalil side.

Furthermore, the case of The Bee v K Maruthamuthu has put a note that the licence may be

cancelled immediately and without payment of compensation, upon the breach of any provision

to which the licence is subject but otherwise a subsisting licence may be cancelled at any time

before the date of expiry only upon payment of compensation. From the view, as Jalil has breach

the licence agreement where he build a bungalow on agricultural land it could be taken as

following the said statement.

In the other side, if Jalil was not been charged for breaking the TOL agreement SDSB should pay

a compensation relevant to it. As the same case above where the court continues to obliged

where a person who has occupied land on TOL acquire a right to be compensated by a

subsequent holder of a TOL of the land or a subsequent registered proprietor thereof for any

expense that he might have incurred over the land.

Although there is section 47 where it stated no compensation shall be payable by the state

authority in respect of any building vesting in it pursuant to this, it should be highlighted that the

authority only applied this law. Where the compensation should not be burden to the state

authority.

In conclusion the law has clear and precise on whether Jalil can sue SDSB for compensation and

alienation of the land. As the land was under TOL he has breach the licences by building a

bungalow. This however should be taken account as breach thus has put a cap in no

compensation to him. Only if the bungalow was taken as relevant to agricultural TOL thus SDSB

should pay reasonable compensation to Jalil. And for the state, the section 47 (3) has been clear

in regards to the compensation, thus no action should be take by jalil as the law has limit the

compensation by authority.

Upon hearing that the land is to be alienated to SDSB, the Board of Directors of SDSB started to

engage contractors to clear the land and constructed wooden huts to house its workers. Recently,

SDSB received letter from the State Authority to vacate the land failing which SDSB will be

charged for trespassing on state land. A representative from SDSB has come to see you for

advice on the above matter.

Answer:

Disposal mean any disposal of land made by the state authority in the exercise of any of the

power conferred by section 42 or any of the corresponding powers conferred by any previous

land law.

Definition of alienate means to dispose of state land in perpetuity of for a term of year in

consideration of the payment of rent, and otherwise in accordance with the provision of section

76 or when used in relation to the period before the commencement of this Act, to dispose of

state land in perpetuity or for a term of year under a previous land law.

Section 76 elaborates the meaning of alienation and outline the conditions where land may be

dispose in perpetuity.

In order to class the land that can be alienated there is one rules to be highlighted. Only state land

can be alienated and any part of the foreshore and seabed may only be given a lease for a period

of not more that 99 years.

To be alienated the person should be disposed according to sec 43. Here the person should be

natural and not minors. In addition, the corporation having power under their constitution to hold

land. To this, the sovereigns, government organisation and other persons authorised to hold land

under the provisions of the diplomatic and consular privileges ordinance. Lastly is bodies

expressly empowered to hold land under any other written law. To this stand SDSB has become

valid person or corporation having power to undertake the constitution of holding the land.

There is two type of alienation, first planned and then unplanned alienation. Planned alienation

refers to the case where an area of land is selected by the land office and after assessing the

suitability, application is then invited. Then the selected applicants are required to submit the

formal applications. Planned alienation is suitable for both large and small areas of land. It has

been recommended by the national land council to prefer this type of alienation.

In contrast the unplanned alienation refers to application of land made by the person as now by

the SDSB where this falls under unplanned alienation thus it comes under our own initiative.

From the case above, the issues are whether the alienation was effective on the day SDSB build

the temporary building. Based on section 78(3) the alienation of state land shall take effect upon

the registration of a register document of title thereto and notwithstanding that its alienation has

been approve by the state authority, the land shall remain state land until that time.

The alienation only take effect upon registration of register document of title, and not upon

approval of the state authority in this instances, as we have acted before the date of register it has

contradicted the law. From this law it clearly stated that as long as the land was not register it

shall remain under the state authority. We could not argue in stance of the approval by the

authority as it not confirms nor a confirmation of registration, as the confirmation of registration

and the transfer of ownership will only happen after the register.

The case Dr Ti Teow Siew and Pndaftar Geran-geran Tanah Selangor 1982 can be taken as

reference. Here justice Hashim Yeop Sani stated that section 78(3) of the code determines when

an alienation of state land shall take effect and its is clear from that subsection that alienation

takes effect upon registration only.

In addition to this, it has become relevant for the state authority to sue SDSB due to the trespass.

Though they have agreed to alienation, they may also revoke the alienation based on the act done

from SDSB side. As the power to alienated the land was solely under the state authority it should

be under circumstances to us to follow suits of the land law.

In conclusion the alienation work in ways that it should be done after the alienation was register.

The section 78(3) has stop anybody from work before the land pass through the register as this

may be taken as trespass to land. Thus we are liable to the trespass as we have not the right

owner of the land.