Download November 2005 Issue - Malaysian Institute of Planners

10PLANNING & THE LAW“The appellants in this appeal contended that theproceedings were null and void as they say their landswere acquired for purposes other than those for which therespondent was empowered under the Act to acquirethem…The Act imposes no obligation on the acquiring authorityto produce a plan for inspection which shows how theland to be acquired is to be zoned…Section 8(3) … provides that the Declaration shall beconclusive evidence that all the scheduled land isneeded for the purpose specified therein. While it may bepossible to treat a Declaration made . . . as a nullity if itbe shown that the acquiring authority has misconstruedits statutory powers . . . or that the purpose stated in theDeclaration does not come within section 3, in theabsence of bad faith, which in the instant case isnegatived by concurrent findings of fact in the courtsbelow, this sub-section renders it not possible tochallenge the validity by asserting that some of the landto which it relates is not needed by the purposes statedor that the land is in fact wanted for purposes other thanthose specified. Consequently, the fact that the landslisted in the Schedule amounted to some 5,700 acreswhen the total area of the State Development Officer’soriginal requirement was 2,000 acres does not help theappellants, nor can it really be contended that thepurposes stated in the Declaration do not come withinsection 3.” (Emphasis added)Although the Privy Council dismissed the landowner’schallenge, it did acknowledge that an acquisitionproceeding can be successfully challenged if mala fide(bad faith) can be proved.Syed Omar’s case once again reiterated the principle,established earlier in Yeap Seok Pen v. Government ofKelantan 14 that mere suspicion is not enough. In that case,which came from Kelantan, Lord Griffiths held that “badfaith is an exceedingly serious allegation to make and shewho makes it has a heavy burden to discharge the onus ofproving it”.It is indeed regrettable that in Syed Omar’s case, the PrivyCouncil did not (failed to) refer to its own earlier decision inMunicipal Council of Sydney v. Campbell & Ors 15 . In thatearlier case from Australia, the appellants wereempowered by law to acquire land for making or extendingstreets as well as for carrying out “improvements in orremodeling any portion of the city”. They had acquired therespondents’ land to extend Martin Place, an importantthoroughfare in the centre of Sydney. The respondentschallenged the acquisition. In the course of the trial, therespondents admitted that “no plan of improvement orremodeling was at any time before the Council…”In its judgment in favour of the respondents, the PrivyCouncil noted -“No plan for improvement or remodeling was at any timedecided upon; and, indeed, no such plan was everconsidered by or proposed by the Council …Their Lordships think it not reasonably disputed that atthe time of the passing of the resolution in June, theCouncil conceived it to be within its powers to resumelands not needed for the extension itself, but solely forthe purpose of appropriating the betterments arising fromthe extension…A body such as the Municipal Council of Sydney,authorized to take land compulsorily for specifiedpurposes, will not be permitted to exercise its powers fordifferent purposes, and if it attempts to do so, the Courtswill interfere”.The Privy Council, however, remarked that “Where theproceedings of the Council are attacked upon this ground,the party impeaching these proceedings must, of course,prove that the Council, though professing to exercise itspowers for the statutory purpose, is in fact employing themin furtherance of some ulterior object”.Looking back on Syed Omar and the Sydney case, bothdecisions of the Privy Council which are binding onMalaysian courts, the law can be summarized as follows -(1) A compulsory acquisition proceeding can bechallenged on the grounds of mala fide, providedthere are cogent evidence to prove it. The onus ofproof is on the party alleging mala fide.(2) The absence of any plan for the acquired land is anindication of bad faith, although whether it issufficient to convince the court is a separate matter.(3) If the acquiring authority did actually acquire the landfor some other (or improper) purpose, “the Court willinterfere”.Unconscionable or unmeritorious conductIn the recent case of Stamford Holdings Sdn Bhd v.Kerajaan Negeri Johor & Ors 17 , the appellants’ land,measuring 6,600 acres were compulsorily acquired by theGovernment of Johor The appellants challenged theacquisition, claiming it as an unconstitutional means ofdepriving them of their property. They also alleged that theacquisition was outside the ambit of section 3 of the LandAcquisition Act 1960.The facts of the case, as alleged by the appellants, showedthat various people in high places as well as politicallyconnectedpersonalities were somehow involved. Theappellants’ statement of claim was, however, struck out bythe High Court on the ground that there was no cause ofaction. Against that decision, the appellants appealed tothe Court of Appeal.14[1986] 1 MLJ 44915[1925] AC 338.16[1925] AC 338, at p. 343.17[1998] 1 MLJ 607.BERITA PERANCANG