1. Application for leave to enlarge time to file objections against land compensation awards under the Land Acquisition Act 1960. (Para 1 , 3 , 4 , 5 , 6 )
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2012 MarsdenLR 1848
HIGH COURT (JOHOR BAHRU)
GUNALAN MUNIANDY, JC
Victory Investment Co Sdn Bhd – Plaintiff
Versus
Pentadbir Tanah Daerah Johor Bahru & Anor – Defendant
ORIGINATING SUMMONS NO 24M-256–09 OF 2011
Advocates:
Abdul Khalid bin Abdul Rahman for the private appraiser.
KT Tan (Vincent Tan with him) (Lim Kian Leong & Co) for the plaintiff.
Shahrizal bin Shaari (Anis Wahidah Mohamed wih him) (Assistant Legal Advisor, Office of Legal Advisor) for the first defendant.
Ramesh Sanghvi (Bharti Seth with him) (Kassim Tadin, Wai & Co) for the second defendant.
Mohamad Masri bin Jeinaen (JPPH) for the government valuer.
Abdul Khalid bin Abdul Rahman for the private appraiser.
KT Tan (Vincent Tan with him) (Lim Kian Leong & Co) for the plaintiff.
Shahrizal bin Shaari (Anis Wahidah Mohamed wih him) (Assistant Legal Advisor, Office of Legal Advisor) for the first defendant.
Ramesh Sanghvi (Bharti Seth with him) (Kassim Tadin, Wai & Co) for the second defendant.
Mohamad Masri bin Jeinaen (JPPH) for the government valuer.
Acceptance of land acquisition compensation without protest creates a mandatory statutory bar against challenging the award in court. Consequently, the applicant lacks the standing to seek an enlargement of time, and such discretion is only exercisable upon proof of special circumstances.
Headnote:(A) Land Acquisition Act 1960 - Sections 30(b), 37, 38(3)(a), and 38(4) - Payment of compensation received otherwise than under protest - Bar on referring claim to court - Mandatory nature of the provision - Any person who has received payment of any amount awarded otherwise than under protest shall not be entitled to require that his claim be referred to the Court (Paras 11, 12, 13).
(B) Land Acquisition Act 1960 - Section 38(4) - Enlargement of time to file objections - Discretion of the court - Requirement of "special circumstances" - The onus of proving special circumstances lies on the plaintiff to discharge the burden of proof to justify the delay in filing objections (Paras 17, 18, 19, 20).
(C) Federal Constitution - Article 13 - Right to property - No violation of constitutional rights occurs if the acquisition is conducted in accordance with law, due process is followed, and compensation is duly offered and accepted (Para 29).
Facts of the case:
Lands owned by the plaintiff were acquired for a highway project. The plaintiff accepted full payment of the compensation award for one lot and a substantial portion of the award for another lot without lodging any protest or objection. Six years after the awards were issued, the plaintiff applied for leave to enlarge the time to file objections, alleging that administrative errors had occurred in the apportionment of the awards and claiming there was a prior agreement between the parties not to file objections.
Findings of Court:
The court found that the plaintiff had accepted the compensation payments without protest, which triggered a mandatory statutory bar against pursuing a claim in court. Additionally, the court found no evidence to support the allegation of an agreement not to object, and the plaintiff failed to establish the factual basis for "special circumstances" to justify the six-year delay.
Issues: Whether the plaintiff was barred from challenging the compensation award after accepting payment without protest, and whether purported administrative errors and an alleged agreement constituted "special circumstances" for the enlargement of time to file objections.
Ratio Decidendi: Acceptance of compensation without protest is a mandatory bar under the law that prevents a landowner from referring a claim to court. Because the plaintiff was not competent to make the claim due to this bar, the question of enlarging the time to file the reference does not arise. Furthermore, the discretionary power to enlarge time is only available to those with the right to challenge the award and requires the proof of special circumstances, which the plaintiff failed to establish.
Result: Application dismissed with costs.
Act Referred
Highway Authority Malaysia (Incorporation) Act 1980: S.11
Land Acquisition Act 1960: S.16(1), S.38(3)(c), S.37, S.30(b), S.14(2), S.29
Federal Constitution: Art.13
Land Acquisition Act 1960: S.16(1), S.38(3)(c), S.37, S.30(b), S.14(2), S.29
Federal Constitution: Art.13
Legal Category Hierarchy
Table of Contents
2. Whether acceptance of compensation without protest bars objections under Section 30(b) and whether administrative errors constitute special circumstances for extending time under Section 38(4). (Para 8 , 21 , 22 , 23 , 24 )
3. Acceptance of compensation without protest precludes the right to challenge the award; alleged administrative errors and unproven agreements do not constitute special circumstances for extending time. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 25 , 26 , 27 , 28 , 29 )
4. Under Section 30(b) of the Land Acquisition Act 1960, receiving payment without protest bars a landowner from referring a claim to court. (Para 12 , 13 , 14 )
5. Application for enlargement of time to file reference against the award dismissed with costs. (Para 30 )
6. What is the effect of a landowner accepting compensation payment without protest under the Land Acquisition Act 1960?
Under Section 30(b), any person who receives payment of an awarded amount otherwise than under protest is barred from requiring that their claim be referred to the Court under Section 37. (Para 11 , 12 , 13 , 14 )
7. Under what conditions can a court enlarge the time for filing objections to a land acquisition award?
Under Section 38(4), the court may enlarge the prescribed time limits only in special circumstances as the court thinks fit, such as cases where the party was not at fault. (Para 17 , 18 , 19 , 20 )
8. Does the refusal to enlarge time to object to compensation violate the fundamental right to property under Article 13 of the Federal Constitution?
No, provided all statutory provisions are complied with and compensation is offered and accepted through due process, the landowner cannot complain of a violation of Article 13. (Para 29 )
Gunalan Muniandy JC:
[1]This is an originating summons by which the plaintiff applied for leave to enlarge time to file objections against the compensation awarded to the plaintiff by the Land Administrator Johor Bahru (first defendant — ‘D1’) in respect of acquisition of land held under Grant 2927, Lot 1818 and Grant 27360, Lot 2026, Mukim Sg Tiram, Johor Bahru.
[2]The second defendant (‘D2’) is a body incorporated under the Highway Authority Malaysia (Incorporation) Act 1980 (‘HAMA 1980’) and also a statutory agency functioning under the Ministry of Public Works Malaysia under s 11HAMA 1980
[3]The present acquisition arose out of the government’s decision, in principle, to construct the Senai Pasir Gudang Desaru Expressway (‘the Highway Project’). As a result, the above lands (Lots 1818 and 2026) of which plaintiff was the registered owner, were acquired vide Gazette Notification No 2390 dated 18 November 2004 under the Land Acquisition Act 1960 (‘LAA’).
[4]Lot 1818 was 431,369 sq mt in area out of which an area of 6,219,005 sq mt was acquired whereas for Lot 2026 the portion acquired was 318,550.739 sq mt out of a total land area of 11,347,367 sq mt.
INQUIRY HELD BY THE FIRST DEFENDANT
[5]Based on this inquiry, the first defendant (‘D1’) awarded vide two separate Forms Gs 14LAA 19602026. In accordance with s 16(1)LAAForms H
[6]D2 was the paymaster for the above acquisition. As required under the LAA 1960, D2 forwarded to D1 cheques for the total compensation awarded in respect of both lots.
[7]As the time frame to file objections (Form Ns 38(3)(c)LAA 1960Form NForm N2026, D2 did not proceed with the application for extension of time and hence, to date there is no objection filed against this award.
WHETHER THE PLAINTIFF ESTOPPED FROM FILING OBJECTIONS
[8]D2 submitted that based on the two Forms H, the plaintiff had unequivocally and unconditionally accepted D1’s award of compensation for both lots. The plaintiff had at no time after 8 December 2005 or 17 January 2006 filed any protest or objections with D1 to the compensation awarded for either or both of the two lots or as to the apportionment of compensation thereof as stated in the respective Forms GHForm G2026 and 75% of the compensation award in respect of Lot 1818 amounting to RM6,333,600. As such, it was contended that the plaintiff should be estopped from applying to the court for leave to file Form NSection 37LAA 1960Lee Ah Mok & Ors v Pentadbir Tanah Daerah Seremban & Anor
The locus or right to apply to court to challenge the award is governed by s 37Land Acquisition Act 1960s 30(b)
[9]On the issue of the finality and conclusiveness of the award where s 37LAAMalakoff Bhd & Anor v Pentadbir Tanah, Kedah
The respondent as the Land Administrator cannot invoke s 37s 37Hamidon bin Ahmad v Collector of Land Revenue, Jasin Exra v Secretary of State for India (1905) ILR 32 Cal 605 PC distinguished.
[10]The thrust of the present application is that D1 had committed an ‘administrative error’ in the apportionment of the award for Lot 1818 and Lot 2026. This is being raised for the first time six years after issuance of Forms GHs 14(2)LAA 1960
Every award prepared under subsection (1) shall be filed in the Dffice of the Land Administrator and shall be final and conclusive evidence of the area of any scheduled land, of its value in the opinion of the Land Administrator, and of the apportionment of the compensation awarded by the Land Administrator, whether the persons interested therein have or have not appeared at the enquiry.
[11]As the plaintiff had accepted full payment of the award in respect of Lot 2026 and 75% payment in respect of Lot 1818, without protest or objections s 30(b)LAA 1960
Notwithstanding anything contained in section 29 —
(b)any person who has received any payment of any amount awarded otherwise than under protest shall not be entitled to require that his claim be referred to the Court under section 37.
[12]Section 30(b) is a mandatory provision governing a landowner’s e
