Question 2
Based on the inquiry given, inquiry arises on what is the quantum of compensation is collectible to Great Builders Sdn Bhd to obtain the land owned by them. First of wholly, harmonizing to Art 13 ( 2 ) of the Federal Constitution, it is stated that compensation given for mandatory acquisition must be equal. [ 1 ] This is besides based on Art 13 ( 1 ) of Federal Constitution which stated that save in conformity to jurisprudence, someone’s right on belongings shall non be deprived. [ 2 ] Therefore, Great Builders Sdn Bhd shall be awarded equal compensation from Land Administrator for land acquisition owned by them. What is equal compensation? Harmonizing to Compulsory Acquisition and Compensation, equal compensation means that the amount awarded must be at the same fiscal place of the claimant as if there is no acquisition of the land. [ 3 ]
So, what is the quantum of compensation collectible to Great Builders Sdn Bhd? Amount and affairs to be considered by Land Administrator are stated under First Schedule of Land Acquisition Act 1960. There are 3 factors to find before presenting the sum of compensation which are the market value of the land, [ 4 ] list of affairs to be considered, [ 5 ] and besides list of affairs to be neglected. [ 6 ] We will now discourse each of the factors consequently.
First, the factor on market value of the land. Under s 12 ( 1 ) of Land Administration Act 1960, the land decision maker is required to do full question to market value of the land and repair the quantum of compensation. [ 7 ] The market value of the land to be determined is at the day of the month of publication in the Gazette of the presentment under subdivision 4 of Land Acquisition Act 1960 or at the day of the month of the publication in the Gazette of the declaration made under subdivision 8 as stated under parity 1 of First Schedule of Land Acquisition Act 1960. However, harmonizing to the inquiry given, the day of the month of publication of the said land in the Gazette is ill-defined. In finding the market value of the land, the safest usher is to find the just market value by mentioning to the gross revenues of same or similar land within the neighbourhood country. This is stated in the instance ofNanyang Manufacturing Co v Collector of Land Revenue, Johore. [ 8 ]
Besides that, there are common factors to be considered in finding market value. First, the willing marketer and willing purchaser standards. This means that probe of the land and the environing vicinity is necessary. The quantum of compensation should be determined based on monetary value which a willing seller expect to obtain from a willing purchaser. Such rating can be made aid by adept valuer.
Another factors will be the affairs of old sale of similar tonss of land. In this instance, size and physical nature of the land acquired must hold certain similarity to the other land sold. Therefore, Land Administrator can foretell and calculated the market value of such land and therefore find the quantum of compensation collectible to Great Britain Sdn Bhd.
Last will be the factor of possible development. However, this factor is non taken into consideration ni finding the market value of a land. This is stated under parity 3 ( vitamin D ) and 3 ( vitamin E ) of First Schedule of Land Acquisition Act 1960. The foreseeability of a piece of land in increasing or diminishing in its market value should non be taken into consideration.
While for 2nd factors in finding the quantum of compensation will be on affairs need to be considered which is related to this instance will be the affairs of rupture harm under paragraph 2 ( degree Celsius ) First Schedule Land Acquisition Act 1960 and besides paragraph 2 ( vitamin D ) First Schedule Land Acquisition Act 1960 on deleterious harm. [ 9 ] Paragraph 2 ( degree Celsius ) stated that compensation can be paid for any amendss likely to be sustained by proprietor at clip Land Administrator’s taking ownership of the land by the opportunity of break uping the acquired land from staying retained land. In this instance, the land acquired is 2000 hectares out of 4000 hectares owned by Great Builders Sdn Bhd. By utilizing 2000 hectares of the land to construct main roads, the staying maintained land might be useless and no longer be used as agricultural land and cause amendss to Great Builders Sdn Bhd.
While paragraph 2 ( vitamin D ) provided that compensation can besides be awarded if the harm happens when Land Administrator’s taking ownership of the land which might injuriously impacting the staying maintained land included decreased public-service corporation gained from usage of staying concern. Based on the instance, the land owned by Great Builders Sdn Bhd is for agricultural intents, if Land Administrator geting portion of the land for building of main road, it might do want of value of such agricultural land. This can be seen in the instance ofCIMB Trustee Bhd V Pentadbir Tanah Daerah Seberang Utara Pulau Pinang.[ 10 ] In this instance, the applicant’s valuer made a claim for deleterious fondness and rupture. He concluded that the claim is due to decline in value of Portion A severed from the balance of unacquired land within Lot 3009. Court considered that the value of balance of unacquired land will confront the issue of decline in value due to the irregular form and would be 10 % depreciation to the assessed market value for Lot 3009. Therefore, Land Administrator who geting 2000 hectares of land might do rupture amendss and deleterious harm to the staying land and do depreciation value of the staying unacquired land and hence compensation should be awarded to Great Builders Sdn Bhd.
Third factors in finding the quantum of compensation is the affairs to be neglected. This is stated under paragraph 3 of First Schedule of Land Acquisition Act 1960. These are grade of urgency, [ 11 ] any disinclination of individual interested to set down acquired, [ 12 ] harm sustained by interested individual is non a good cause of action if it is private individual, [ 13 ] depreciation to the value of land after use of acquisition, [ 14 ] addition of value of land used after acquisition [ 15 ] and besides any betterments after day of the month of proposed acquisition. [ 16 ] Therefore, all these factors need non to take into consideration in measuring the quantum of compensation granted to Great Builders Sdn Bhd.
In decision, based on the jobs and deficiency of information given, it is deficient to find the accurate market value of the land owned by Great Builders Sdn Bhd. In order to find the market value, land decision maker have to made sufficient question and comparison with similar land which has been sold in the vicinity if possible as stated in the instance of Nanyang Manufacturing Co v Collector of Land Revenue, Johore. They must besides measure the market value based on the two factors mentioned above which is willing seller and buyer and besides monetary value of similar land sold. Other than that, Great Builders Sdn Bhd can claim for compensation based on the affair of rupture harm and deleterious fondness as stated under paragraph 2 ( degree Celsius ) and 2 ( vitamin D ) of the First Schedule of Land Acquisition Act 1960 severally. Therefore, in this instance, every bit long as the quantum of compensation awarded to Great Builders Sdn Bhd is equal, there shall non be any expostulation can be made by them. What is meant by equal compensation has been discussed above. However, if they are non satisfied with the quantum of compensation given by Land Administration, they have the right to mention the affair to High Court through authorship. [ 17 ] However, this must be done within 6 hebdomads from the day of the month of award of compensation. [ 18 ]
Mentions
1. Ainul Jaria Maidin, Ratna Azah Rosli, Fauziah Md Nor and others, Principles of Malayan Land Law ( 1st, Malayan Law Journal Sdn Bhd, Petaling Jaya, Selangor Darul Ehsan 2008 ) 531
2. Sir Frederick Corfield QC and RJA Carnwath, Compulsory Acquisition and Compensation ( 1st, , Butterworths 1978 ) 161
3. Raymond Mah and Sunitha Balasundaram, ‘Compulsory Land Acquisition in Malaysia, Compensation and Disputes ‘ ( mahwengkwai.com ) & A ; lt ; hypertext transfer protocol: //www.mahwengkwai.com/compulsory-land-acquisition-malaysia-compensation-disputes/ & A ; gt ; accessed 12 August 2014
4. Land Acquisition Act 1960
