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• 1.
  Pengambilan Balik Tanah Disediakan 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 1
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  Acquisition under Section3(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. Here comes your footer Page 3 Acquisition under Section 3(1)(a) LAA – “Public Purpose” 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 ; Here comes your footer Page 4 2
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  Acquisition under Section3(1)(a) LAA – “Public Purpose” 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; Here comes your footer Page 5 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. Here comes your footer Page 6 3
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  Acquisition under Section3(1)(b) LAA 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. Here comes your footer Page 7 Acquisition under Section 3(1)(b) LAA 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. Here comes your footer Page 8 4
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  Acquisition under Section3(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. Here comes your footer Page 9 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. Here comes your footer Page 10 5
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  Process After theApplication 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. Here comes your footer Page 11 Process After the Application 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). Here comes your footer Page 12 6
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  Process After theApplication 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). Here comes your footer Page 13 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. Here comes your footer Page 14 7
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  Grounds for Challengingthe Acquisition 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. Here comes your footer Page 15 Grounds for Challenging the Acquisition 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. Here comes your footer Page 16 8
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  Basis of Compensation Thebasis 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). Here comes your footer Page 17 Prosedur Pengambilan Pra Pengambilan Pengambilan Pasca Pengambilan Pemilihan tapak dan Siasatan & perintah Rujukan ke kajian kesesuaian mahkamah Pembayaran Permohonan, pampasan Pindaan cukai dan pewartaan dan hakmilik sambungan penandaan Mengambil milik Borang-borang : Borang-borang : Borang-borang : • Borang M • Borang 1 • Borang E • Borang N • Borang A • Borang F • Borang O • Borang B • Borang G • Borang P • Borang C • Borang H • Borang Q • Borang D • Borang I • Borang J • Borang K • Borang L Here comes your footer Page 18 9
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  Pemilihan Tapak Cadangan Projek Penilaian Tapak Pihak Terlibat: 1. Peg. Daerah Rundingan 2. JPBD 3. Maj. Daerah Dokumen Terperingkat 4. JKPTG Negeri (Sulit) Tapak Dimuktamad Jabatan Teknikal Peringkat Daerah: 1. JPBD Ulasan Rasmi 2. Maj. Daerah 3. JKR Pembentangan 4. JPS 5. DOE J/Kuasa Pbgnn Daerah 6. Pej. Tanah Setuju Tidak Page 19 Permohonan J/Kuasa Pbgnn Daerah Permohonan : Setuju Tidak a. Borang Permohonan Permohonan b. Fee c. Deposit d. Laporan Cadangan Projek e. Pelan Tatatur f. Pelan Pengambilan Tanah Page 20 10
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  Permohonan Pengambilan Tanah Pemohon Sek. 4 Borang A Borang B Kerja Ukur Maksimum : 1 Thn @ Borang C Sek. 8 Kajian Tanah Borang D Borang E Borang F Borang J Borang G Siasatan Borang H Borang K Page 21 Permohonan Pengambilan Tanah Pemohon Sek. 4 Borang A Borang B Kerja Ukur Maksimum : 1 Thn @ Borang C Sek. 8 Kajian Tanah Borang D Borang E Borang F Borang J Borang G Siasatan Borang H Borang K Page 22 11
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  Carta Alir Borang-borangDalam Pengambilan Balik Tanah Form A Form B Form C Form D Form E Form G Form H Form K Form F Form I Form J Here comes your footer Page 23 Form A Form B Sect. 4 (Gazette) Form C State authority satisfied that acquisition is likely to be necessary for any purpose under Sect. 3 Form D Form E Form G Form H Form K Form F Form I Form J Here comes your footer Page 24 12
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  Sect. 5 State Director power to enter land and to do any or all the following: Form A - survey and take levels of the land; Form B - dig or bore into the sub-soil; - do all other acts necessary to ascertain whether the land is Form C adapted for the purpose for which it is to be acquired; Form D the boundaries of the land proposed to be taken and - set out the intended line of the work, if any, proposed to be made thereon; E Form Form G Form H Form K - mark such levels, boundaries and line by placing marks and cutting trenches; Form F - cut down and clear away any standing crop, fence or jungle, where otherwise the survey cannot be completed, or the Form I Form J levels cannot be taken, or the boundaries or line of the work cannot be marked. Here comes your footer Page 25 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, Form A venue of land, width of land, topographical of land and anything found of land, description and aerial Form B view of land. Form C Why must those information included be so specific : to ensure the land is the same land as intended by Form Dstate office for acquisition purposes, the width of land indicates the amount of awards to be paid, Form E Form G Form H Form K topographical of land-may decrease or increase the value of land and inform land office if it is really Form F for the intended project. suitable Can those specific information included be legally Form J challenged in Form I court? - yes....particularly on the add, venue, width and topography of the land Here comes your footer Page 26 13
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  Form A Sect. 8 (Gazette) Form B State Authority decides acquisition is necessary. Form C The gazettement will only valid for the period Form D of two (2) years. A plan of the particular lands and areas so Form E Form G Form H Form K specified may be inspected during the normal hours of business in the Land Office of the Form F District in which such lands and areas are situated. Form I Form J Here comes your footer Page 27 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 Form A above time either personally or by agent and there to state- at the - the nature of their respective interests in the land; - the amount B particulars of their claims to compensation for such interests; Form and - their objections, if any, to the measurements of approximate area given in the Schedule below; Form C - 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. Form D Form E Form G Form H Form K Notice is further given that the undersigned may require- Form F - that in any particular case any such statement or statements should be reduced to writing and signed by the party or his agent; Form J - that any person in possession of the issue Form I of title in respect of any land document scheduled below deliver up such document at the time of inquiry. Here comes your footer Page 28 14
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  Sect. 11 LandAdministrator may request for evidence in writing Relevant person is required to furnish, within a given time period, a statement in writing declaring the following: Form A - separate valuations of the land and of the improvements, if any, thereon, showing Form B the basis upon which such valuations are made; - the name Form C person possessing any interest in the land or any part thereof, of every either as co-owner, chargee, lessee, sub-lessee, tenant or otherwise; and Form D - 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 Form E Form G Form H Form K preceding the date of this notice. Form F Form I Form J Here comes your footer Page 29 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 Form A specified below: - Lot Form B no. - Area required Form C - Persons interested Form D - Nature of interest - Apportionment of award Form E Form G Form H Form K Form F Form I Form J Here comes your footer Page 30 15
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  Here comes yourfooter Page 31 Sect. A Form 16 Notice of award and offer of compensation Form B Land Administrator offers the proprietor the sum of RMXX asC compensation for the Form full interest in this land. Form D Section 29A of the Land Acquisition Act 1960, requires Land Administrator E withhold G Form to Form Form H Form K twenty-five per cent of the amount of the award in certain circumstances, subject to the Form F provisions of that section. Form I Form J Here comes your footer Page 32 16
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  Here comes yourfooter Page 33 Form A Sect. 19 Form B State Director issued out the Certificate of Urgency for the land which to be required for a public purpose of for a public utility. Form C This only can be used for the land without any building or structures on it. Form D The applicant have to provide sufficient funds to pay the penalties of late payment at the rate of 8% per annum. G Form E Form Form H Form K Form F Form I Form J Here comes your footer Page 34 17
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  Sect. 20 Form A Subsequent to the Form I, Land Administrator will issue a notice which Form B require that any person to vacate the building referred to and situated on the said land within certain days. Form C Land Administrator offer to the owner of the premises compensation to the Form D amount of RMXX which compensation represents- - the value of the building* E Form Form G Form H Form K - the cost of removing and re-erecting such building elsewhere. * Form F Form I Form J Here comes your footer Page 35 Form A Form B Form C Sect. 22 Form D Land Administrator, pursuant to Sect. 22 G Form E Form LAA, taken H Form Form K formal possession of the land shown in the schedule. Form F Form I Form J Here comes your footer Page 36 18
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  Pengambilan Balik TanahAnda Telah Berjaya! Tahniah! Here comes your footer Page 37 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. 1 Jan 2010 1 Jan 2011 Market value as of 1 Jan 2010 Sect. 4 Sect. 8 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. 1 Jan 2010 1 May 2011 Market value as of 1 May 2011 Sect. 4 Sect. 8 Here comes your footer Page 38 19
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  Market Value Para2 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. Here comes your footer Page 39 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. Here comes your footer Page 40 20
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  SENARAI SEMAK PERMOHONANPENGAMBILAN TANAH Di 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. Here comes your footer Page 41 SENARAI SEMAK PERMOHONAN PENGAMBILAN TANAH Di 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) Here comes your footer Page 42 21
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  Pengiraan Fee Jadual Kedua Fee (Kaedah 4) Bil. Butiran Fee tambahan Fee bagi setiap orang 1 Tiap-tiap permohonan bagi RM10,000.00 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 RM1,000.00 sehingga 15 b. Atas tambahan orang seterusnya RM2,000.00 sehingga 20 c. Atas tambahan orang seterusnya RM3,000.00 Here comes your footer Page 43 Pengiraan Fee Jadual Kedua Fee (Kaedah 4) Bil. Butiran Fee tambahan Fee bagi setiap orang 1 Tiap-tiap permohonan bagi RM1,000.00 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 Here comes your footer Page 44 22
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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. Here comes your footer Page 45 Here comes your footer Page 46 23
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