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2020 MarsdenLR 52
FEDERAL COURT KUCHING
SUPERINTENDENT OF LAND AND SURVEY DEPARTMENT KUCHING-DIVISIONAL OFFICE & ANOR – Appellant
Versus
RATNAWATI HASBI MOH.... – Respondent
[Civil Appeal No: 01(f)-27-08-2018(Q)]
Failure to comply with mandatory procedural provisions in land acquisition renders the process void and infringes constitutional rights to property under article 13 of the Federal Constitution.
Headnote:(A) Sarawak Land Code (Cap 81) – Sections 49, 51, 52, 53, 54, 15A – Land acquisition – Procedural compliance – The first resumption was declared null and void due to non-compliance with mandatory provisions under the Land Code, specifically failing to serve notice under s 49 which deprived the respondent of an opportunity to participate in the inquiry; the court emphasized that such procedural lapses infringe on constitutional rights under art 13 of the Federal Constitution. (Paras 12, 21, 26, 49, 119)
(B) Constitutional Rights – Right to property – Failure to observe mandatory procedural provisions in land acquisition infringes the respondent's fundamental right to property as guaranteed by art 13. (Paras 48, 129)
(C) Ministerial Discretion – The Minister must re-gazette any fresh declaration if pursuing acquisition post-lapsing of the initial declaration; the lapsing of the original s 48 declaration due to procedural non-compliance must be upheld. (Paras 46, 55, 132)
Facts of the case: The case involved the compulsory acquisition of land by the government without proper notice served to the landowner, leading to a challenge of the legality of the resumption process both at the High Court and the Court of Appeal.
Findings of Court: The High Court's dismissal of the plaintiff's claim was overturned by the Court of Appeal due to fatal procedural defects in the acquisition process, and the court ordered reinstatement of the land title to the respondent.
Issues: Whether the acquisition process was lawful given the procedural non-compliance, and whether the Minister had the authority to continue with the acquisition under the circumstances.
Ratio Decidendi: The court held that the failure to comply with statutory requirements renders the acquisition void; the right to proper notice is fundamental, and procedural compliance safeguards property rights under the Constitution.
Result: The appeal was allowed, reinstating the respondent’s title to the land. (Paras 66, 156)
Parties: Appellants – Superintendent of Land and Survey Department, State Government; Respondent – Ratnawati Hasbi Mohamad Suleiman.
Dissenting Opinion: There was disagreement with the majority's conclusion regarding the legality of the acquisition process and the interpretation of the statutory provisions.
JUDGMENT
Introduction
[1] This is a judgment of this court on an appeal by the Superintendent of Land and Survey Department Kuching-Divisional Office and the State Government of Sarawak, the defendants to the action, against the order of the court of Appeal made on 27 October 2017. Before going more closely into this appeal, it is necessary to state at the outset that this judgment sets forth the majority opinion of the judicial panel of this court which is agreed to by my learned sisters Tengku Maimun Tuan Mat CJ, Rohana Yusuf PCA and Nallini Pathmanathan FCJ, having read this judgment and the conclusion reached in draft.
[2] The court of Appeal allowed the appeal by Ratnawati Hasbi Mohamad Suleiman, the plaintiff to the action, setting aside in the result, the High court Order dated 29 February 2016. Shortly stated, the court of Appeal in the aforesaid order granted a declaration that the 1st appellant's failure to comply with mandatory procedural provisions of ss 49, 51, 52, 53 and 54 of the Sarawak Land Code (Cap 81) in the resumption process of the subject land taken by the 1st appellant up to the registration of Declaration of Resumption vide Instrument No: L679/2012 (the first resumption) whereby the same was resumed to the State on 12 March 2012 without any notice being given to the respondent herein and/or without her knowledge was fatal and therefore null and void. The status quo of the subject land prior to the first resumption exercise was ordered to be reinstated and was to be re-alienated to the respondent pursuant to s 15A of the (Cap 81). However, the minister was at liberty to impose a fresh s 48 declaration and have it re-gazetted if the State was still interested to acquire the subject land on account that the s 48 declaration gazetted on 2 July 2009 affecting the subject land was deemed extinguished and lapsed upon the convening of the first inquiry. Following the above decision, the respondent was ordered to make full repayment of the sum of RM811,693.89 to the second appellant without interest and her claim for special and general damages was allowed with interest.
Facts
[3] For the most part, the salient facts central to this appeal which we draw from the record of appeal, are not in dispute. The subject land in question is Lot 582, Block 6, Matang Land District in the locality of 4th Mile, Matang Road, Kuching, Sarawak. On 2 July 2009, the Minister made a declaration under s 48 of the Sarawak Land Code (Cap 81) (the Land Code for short) vide GN2624 that the subject land was needed for a public purpose, namely, "Proposed Flood Bypass From Sg Sarawak to Batang Salak" (exh D3).
[4] A notice under s 49 of the Land Code dated 26 June 2009 was served on Mary Ling Moi Moi and Agatha Cheong Siew Yeng who at the material time were registered owners of the subject land for the purpose of inquiry which was fixed for 29 July 2009. However, the inquiry was postponed until further notice.
[5] On 1 August 2011, the respondent, who resided in Doha, Qatar since 2003, acquired the subject land from the above-named proprietresses by way of two Memoranda of Transfer (exh D10) dated 1 August 2011 which were registered at the Kuching Land Registry on 17 August 2011. The acquisition price for the subject land as stated in the said Memoranda of Transfer was RM1,500,000.00. The respondent's evidence during cross-examination reveals that despite admitting that she had engaged a professional valuer for a valuation of the subject land at the time she bought the subject land, she paid this sum without knowing the market value of the land in 2009 when the s 48 declaration was made by the Minister.
[6] At the time of the submission of the Memoranda of Transfer for registration with the Kuching Land Registry Office, the respondent simultaneously signed a declaration (exh D10) whereby she declared that she was aware of the subject land being subject to the s 48 declaration dated 2 July 2009. This declaration was signed b
