Issues of severance and injurious affection are permissible in reference proceedings under the Land Acquisition Act 1960.

[1] This appeal was disposed by us on 24th October 2016 wherein we had allowed the appeal and directed that the matter be sent back to the learned Judge to consider the issue of severance and injurious affection under reference proceedings. We append below our grounds for so doing. We will refer to parties as they were described in the High Court.

Facts

[2] The facts of the case can be elucidated from the Grounds of Judgement of the learned High Court Judge.

Essentially, Lot 3822 Mukim 03, Daerah Seberang Perai Utara, Pulau Pinang was gazetted for acquisition for the purposes of "Projek Tambahan Ban Merentasi Kolam (Bahagian Kedah dan Pulau Pinang) Pakej 2B Hulu, Projek Tambatan Banjir Sungai Muda" on 7 November 2013.

One Ng Aik Pang and Zainal Azahar bin Mohd Zain (the Plaintiffs herein) owned each 1/3 and 2/3 parts of the said lot. The whole 0.3192 hectare of the said lot was acquired fully. The evidence given by the Government's Assessor showed that the said lot comprised of a pond (1324.146mp) and the remainder was land. However, the Private Assessor on the other hand painted a picture that the land was an abandoned swampland.

Our Decision

[3] The only issue that was raised in this appeal which drew considerable interest was the point that the question of severance and injurious affection was only raised in reference proceedings before the learned Judge through "Borang N" pursuant to the Land Acquisition Act 1960 ( LAA ) [Act 486]. The learned Judge ruled that as the question of severance & injurious affection was not raised and argued before the Pentadbir Tanah, it would not be fair and proper to consider injurious affection at the stage of reference at the High Court (see pp 30-31 of the Grounds of Judgment, Rekod Rayuan Jld 1). The Appellants in this case argue that the valuation reports had placed the question of severance and injurious affection before the Pentadbir Tanah. The Respondent denies that.

[4] We are of the view that in a situation where an acquisition exercised of part of a land would have effect on the remaining and existing land then the issue of injurious affection would be relevant. It must be borne in mind that the constitutional rights of the Appellants was being taken away by the provisions of LAA and therefore those provisions must be strictly adhered to. We refer to the 1st Schedule of the Act, and in particular para 2(d) and we quote:-

"Matters to be considered in determining compensation

2. In determining the amount of compensation to be awarded for any scheduled land acquired under this Act there shall be taken into consideration the following matters and no others:-

(a) the market value as determined in accordance with s 1 of this Schedule;

(b) any increase, which shall be deducted from the total compensation, in the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put;

(c) the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator's taking possession of the land by reason of severing such land from his other land;

(d) the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator's taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner;

(e) if, in consequence of the acquisition, he is or will be compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change; and

(f) where only part of the land is to be acquired, any undertaking by the State Authority, or by the Government, person or corporation on whose behalf the land is to be acquired, for the construction or erectio