ON May 21, 2015, the Johor State Authority, via the Johor Baru Land Office, notified the residents of Kim Teng Park (KTP) that their properties would be acquired under the Land Acquisition Act 1960 (Act 486).
The land in question borders another piece marked for the Rapid Transit System (RTS) that will connect this southern Malaysian city to Singapore.
The intended acquisition was, however, aborted after Tan Sri Sharir Samad (then the Johor Baru member of parliament) intervened.
In January, the residents received another notice from the Land Office informing them again that their properties would be acquired for redevelopment.
“No reasons were given and no dialogues with the residents have been held,” said S. Velasamy, a spokesman for KTP residents’ association.
The residents have since engaged lawyers, and an application has been filed to set aside the intended acquisition.
They had also approached Menteri Besar Datuk Dr Sahruddin Jamal and Prime Minister Tun Dr Mahathir Mohamad to ask them to intervene.
In June last year, the then menteri besar Datuk Osman Sapian informed the media that the RTS project needed more land than initially planned, and consequently, he “would continue talks with landowners” to secure that additional space.
KTP (built in 1959) is currently home to some 1,500 residents, many of whom are senior citizens.
Osman had said based on current market value, the state government would have to pay RM300 million as compensation.
The question for them now is, what can they do if the government decides to proceed with the acquisition this time around?
They have to bear in mind that the RTS project, linking Bukit Chagar in Johor Batu to Woodlands in Singapore, had been inked by Malaysia and Singapore and is set to operate by 2024.
There is, therefore, no turning back.
THE PURPOSE OF ACQUISITION
Under section 3(1) of Act 486, the state authority may acquire any land which is needed for:
ANY public purpose;
BY any person or corporation for any purpose which, in the opinion of the state authority, is beneficial to the economic development of Malaysia or any part thereof, or to the public generally, or any class of the public; or,
FOR the purpose of mining or for residential, agricultural, commercial, industrial or recreational purposes, or any combination of such purposes.
The above provision clearly shows that the acquisition of KTP, whether for purposes of carrying out the RTS project or for “redevelopment”, is allowed by law.
A statement by a former cabinet minister (which had gone viral in recent weeks) that alienated land can only be compulsorily acquired under Act 486 “only if it is intended for public purposes such as roads and hospitals” is clearly in error.
In the light of the wide scope of section 3(1), is it still possible for KTP residents to challenge the acquisition on some other grounds?
PRE-ACQUISITION HEARING
Can it be challenged because (as alleged by the residents) there has been no dialogue, no consultation, no engagement by the authorities before the notice of intended acquisition has been served on them?
The courts have already provided the answer.
In S. Kulasingam & Anor v Commissioner of Lands Federal Territory [1982]1 MLJ 204, Abdoolcader J. held there is no right to a pre-acquisition hearing under Act 486.
On the question whether such a denial of pre-acquisition hearing infringes Article 13 of the Federal Constitution, the learned judge said: “There is express provision in the Act for an inquiry and hearing in respect of the quantum of compensation payable, but none with regard to the acquisition itself.”
Can the acquisition be challenged on the grounds of non-compliance with prescribed procedures, ultra vires the Federal Constitution or mala fide?
There have been cases where such challenges succeeded, but they are not many. In the majority of cases, the challenges were dismissed.
MALA FIDE
In Municipal Council of Sydney v Campbell [1925] AC 338, the Privy Council laid down the important principle that if an area of land larger in size than what is actually required by the authorities is acquired (usually stated as a “land bank for future development”), the dispossessed owner can challenge the validity of the acquisition.
In that case, the municipal council had acquired an area that is actually larger than what is required for road-widening. The Privy Council struck it down as mala fide and, therefore, null and void.
On the basis of this old Privy Council decision, if KTP residents can show that their housing estate to be acquired by the state authority is actually larger than what it actually needs for the RTS project, the acquisition may be successfully challenged.
The writer, a former federal counsel at the Attorney-General’s Chambers, is deputy chairman of Kuala Lumpur Foundation to Criminalise War