With the recent statement made by the Prime Minister Tun Mahathir that the federal government has no authority to acquire the land where the Seafield Sri Maha Mariamman Temple is located, and the recent announcement made by the Selangor state government ruling out the acquisition of the said land with state funds, this article intends to give you a brief overview of the land acquisition process in Malaysia.
The information regarding the Seafield temple issue is widely available online. In short, that piece of land in USJ 25 on which the Seafield Sri Maha Mariamman Temple is located belongs to a private property developer. A consent judgement was entered into in 2014 by the relevant parties, where the temple is to be relocated to a plot of land about three (3) kilometres away. Despite the 2014 consent judgement, some devotees have insisted that the temple be remained at its present location. The entire Seafield temple issue is purely a misunderstanding or rather a land dispute and does not have anything to do with race or religion.
Rights to property
The right of an individual to property is a constitutional right. Such constitutional right is, however, subject to any provision contained in any written law. Article 13(1) of the Federal Constitution provides clearly that no one shall be deprived of property save in accordance with the law. Article 13(2) follows to state that no law shall provide for the compulsory acquisition of a property without adequate compensation. This means that, although a proprietor of the land enjoys a right to property as provided in the Federal Constitution, such right is not absolute.
One such statute that affects one's constitutional rights to property is the Land Acquisition Act 1960 which has recently undergone some amendments with the aim to improve the land acquisition process in Malaysia.
Land Acquisition Act 1960
Section 3 of the Land Acquisition Act 1960 provides that the State Authority may acquire any land which is needed for any public purpose, economic development deemed to be beneficial to the Malaysian public, or for purpose of mining, agricultural, commercial, industrial or recreational purposes. The term 'public purpose' was not defined in the 1960 Act but case law has held that the term was incapable of being defined. In order to determine whether or not the acquisition of any land is for public purpose, one has to see if the acquisition serves the general interest of the community.
Notification that land likely to be needed and declaration that land to be acquired
Section 4 of the 1960 Act provides that when the State Authority is satisfied that any land is likely to be needed for any of the purposes mentioned in Section 3, a notification in Form A shall be published in the Gazette.
Where it is decided that a land is needed and is to be acquired, Section 8 of the 1960 Act provides that a declaration in Form D shall be published in the Gazette. These notifications and declarations are meant to inform the landowner as well as the general public of the intended acquisition.
Power of entry and survey
For purposes of the intended acquisition, the land office may authorise its officer to enter the land by way of letter of authority in Form B, which shall be produced together with a Section 4 notification, upon demand of the landowner. Such Form B will also contain the relevant scope of work. It is important to note that there shall be no forced entry by the officer and the rights of the landowners are always protected by Section 6 where they are entitled to compensation for any damage caused by the land officer or any person authorised to enter the land.
Proceedings for the acquisition of land
The proceedings for the acquisition of the land will commence with the Land Administrator giving notice in Form E and fixing date of an inquiry for the hearing of claims to compensation. On the date of hearing, the Land Administrator shall make full inquiry into the value of the land in question and shall thereafter assess the amount of compensation which is in his opinion appropriate, according to the consideration set out in the First Schedule of the 1960 Act, which provides for the matters to be considered and matters to be neglected in determining the compensation.
It is mandatory for the Land Administrator to record all evidences during the enquiry. In cases where Certificate of Urgency has been issued and the possession of the land has subsequently been taken pursuant to the Certificate, the Land Administrator shall continue to make full enquiry to determine the compensation.
Written award by the Land Administrator
At the conclusion of the hearing, the Land Administrator shall then prepare a written award in Form G. Such award shall generally be final and conclusive, regardless of whether the person interested has appeared at the hearing, unless being challenged pursuant to Section 37.
Application to court - Land reference proceeding
Any objection made pursuant to Section 37 shall be by way of written objection in Form N to the Land Administrator requiring that the matter be referred to the Court for its determination. Such written objection is only available in cases where the total amount awarded in compensation exceeds RM5,000.00, and shall be made within six (6) weeks from the award. Besides, any person intending to make a written objection shall be required to deposit with the Land Administrator RM3,000.00 or 10% of the amount claimed, whichever lesser, as a security for the costs of reference and appeal.
Subject to the fulfillment of the above, the matter will then be referred to the Court within six (6) months by the Land Administrator in Form O. The reference proceeding shall take place in open court and every decision made shall be in writing.
Apart from the decision comprising an award of compensation where there shall be no further appeal, all other decisions made by the Court are subject to appeal to the Court of Appeal and subsequently to the Federal Court. It is therefore important that any issue involving and relating to the award of compensation be discussed thoroughly at the High Court.
As discussed above, the constitutional right to property is not an absolute right. It is subject to the statutory powers of the State Authority to acquire the land from the landowner. It is therefore vital that landowners whose lands are acquired, are entitled to adequate compensation as clearly stated in the Federal Constitution.
The articles published and contained herein are for general informational purposes only. They do not and are not intended to constitute legal or other professional advice or opinion of any kind in any manner whatsoever.
TEH & YU is a general practice law firm located in Mont Kiara, Kuala Lumpur, Malaysia. Schedule an appointment with us and let us know how we can help.