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2012 MarsdenLR 895
COURT OF APPEAL PUTRAJAYA
EE CHONG PANG & ORS – Appellant
Versus
THE LAND ADMINISTRATOR OF THE DISTRICT OF ALOR GAJAH & ANOR – Respondent
[Civil Appeal No: M-01-401-2009]
The mandatory nature of publishing Form A under the Land Acquisition Act must be strictly followed to ensure lawful deprivation of property, as emphasized by the violation of constitutional rights.
Headnote:(A) Land Acquisition Act 1960 - Sections 4(1) and 8 - Federal Constitution - Article 13(1) - Appeal against the dismissal of an application for judicial review regarding land acquisition proceedings - The State Authority's failure to publish Form A results in the acquisition being non-compliant with statutory requirements, violating the constitutional right to property. (Paras 14, 20, 26)
(B) Judicial Review - Legal impropriety in land acquisition - Argument for certiorari to quash illegal acquisition and declare it void based on non-compliance with mandatory legal provisions. (Paras 16, 18)
Facts of the case:
Appellants, registered proprietors, contested the lawful acquisition of their land by the State Authority following flash floods, alleging procedural non-compliance with the Land Acquisition Act.
Findings of Court:
The failure to issue Form A meant the acquisition process was unlawful, thus violating constitutional property rights.
Issues: Whether the failure to publish Form A made the land acquisition unconstitutional.
Ratio Decidendi: The court emphasized that the issuance of Form A under Section 4(1) is mandatory to uphold due process and protect property rights, dismissing claims that it was merely directory.
Result: Appeal allowed with costs of RM15,000.
| Table of Content |
|---|
| 1. background of land acquisition and appeal (Para 1 , 2 , 5 , 6 , 7) |
| 2. circumstances leading to additional land acquisition (Para 8 , 9 , 10) |
| 3. arguments regarding the legality of land acquisition (Para 11 , 12 , 13 , 14 , 15) |
| 4. court’s reasoning on mandatory compliance (Para 18 , 20 , 21) |
| 5. court's view on mandatory compliance with s 4(1). (Para 19) |
| 6. analysis of the legal arguments about compliance. (Para 22 , 23 , 24 , 25) |
[1] The appeal before us emanates from the High Court of Malacca, namely, High Court of Malacca Civil Suit No:13 January 2007.
[2] The appeal is against the decision of the learned High Court Judge in dismissing the appellants' application for judicial review.
[3] On 5 January 2012 we allowed the appellants appeal with costs and set aside the decision of the High Court. Our decision was unanimous.
[4] We now give our grounds for allowing the appeal.
[5] We begin by briefly setting out the facts of the case.
[6] The appellants were registered proprietors of a piece of land known as Lot 80, Mukim Rembia, District of Alor Gajah, State of Malacca with an area of approximately 20 hectares (the land).
[7] Pursuant to a land acquisition exercise in 1999, the State Authority of Malacca acquired 8.0937 hectares of the land. The remaining part of the land was given a new title, namely Lot 1522, Grant No 35536, Mukim Rembia, District of Alor Gajah, State of Malacca, and the title was issued to the appellants. The land was acquired for the purpose of a low-cost housing project known as "Projek Rumah Awam Kos Rendah (PAKR) Taman Rembia Setia, Mukim Rembia."
[8] However, sometime towards the end of 2006, certain parts of Malacca were hit by phenomenal flash floods, including Taman Rembia Setia. The flash floods caused landslides at various parts of the slope on Lot 1522. The State Authority of Malacca felt that this could endanger the lives of the residents of Taman Rembia Setia.
[9] As a result, on 8 December 2006 the State Authority published in the gazette a declaration in Form D pursuant to s 8 of the Land Acquisition Act 1960 ('the Act') its decision to acquire 0.4320 hectares of the appellants' land on Lot 1522. The acquisition was for the purpose of stabilising the slopes on the said land to avoid any further landslides in the area.
[10] This was followed by the issuance of Form E pursuant to s 10 of the Act for the purpose of holding a public inquiry to determine the claims for compensation in respect of the acquisition of the land.
[11] The appellants objected to the land acquisition exercise on the ground of legal impropriety, namely, that the State Authority had failed to publish in the gazette a prescribed form called Form A pursuant to s 4(1) of the Act.
[12] Sec 4 of the Act states:
4. Preliminary notice
(1) Whenever the State Authority is satisfied that any land in any locality in the state is likely to be needed for any purposes referred to in s 3 a notification in Form A shall be published in the gazette.
(2) The Land Administrator shall give public notice of any notification published under subsection (1) in the manner prescribed by s 52.
(3) A notification under subsection (1) shall lapse in so far as it relates to any land or part of any land in respect of which there is not published in the gazette within twelve months from the date of publication of such notification a declaration under s 8(1).
(4) Notwithstanding subsection (3), it shall be lawful for the State Authority to publish a fresh notification under s 4(1) in respect of the land or part of the land in relation to which the notification had lapsed if the State Authority is satisfied that such land or such part of the land is likely to be needed for any purposes referred to in s 3.
[13] The Form A, as referred to in s 4(1) of the Act, is set out in the second schedule to the Act; and it is as follows:
align="center">Form A
align="center"> Land Acquisition Act 1960
align="center">( Section 4 )
align="center">NOTICE THAT LAND IS LIKELY TO BE ACQ
