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    Land Law: Alienation

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    Maisarah Mustaffa
    The document discusses the power of the State Authority (SA) to revoke approval for the alienation of state land in Malaysia. It analyzes relevant sections of the National Land Code (NLC) and case law to address three issues: 1) Whether alienation of state land only takes effect upon registration, 2) Whether approved land remains state land until registration, and 3) Whether the SA has power to revoke approval without reasons. The summary concludes that based on the NLC and case precedents, the SA has implied statutory power to revoke with reasons required depending on the circumstances of the case.

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    Land Law: Alienation

    Uploaded by

    Maisarah Mustaffa
    118 views17 pages
    The document discusses the power of the State Authority (SA) to revoke approval for the alienation of state land in Malaysia. It analyzes relevant sections of the National Land Code (NLC) and case law to address three issues: 1) Whether alienation of state land only takes effect upon registration, 2) Whether approved land remains state land until registration, and 3) Whether the SA has power to revoke approval without reasons. The summary concludes that based on the NLC and case precedents, the SA has implied statutory power to revoke with reasons required depending on the circumstances of the case.

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    Tutorial task Pembinaan Batu Jaya Sdn Bhd v Pengarah Tanah dan Galian Selangor & Anor (2016) 2 MLJ

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    The document discusses the power of the State Authority (SA) to revoke approval for the alienation of state land in Malaysia. It analyzes relevant sections of the National Land Code (NLC) and case law to address three issues: 1) Whether alienation of state land only takes effect upon registration, 2) Whether approved land remains state land until registration, and 3) Whether the SA has power to revoke approval without reasons. The summary concludes that based on the NLC and case precedents, the SA has implied statutory power to revoke with reasons required depending on the circumstances of the case.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    118 views17 pages

    Land Law: Alienation

    Uploaded by

    Maisarah Mustaffa
    The document discusses the power of the State Authority (SA) to revoke approval for the alienation of state land in Malaysia. It analyzes relevant sections of the National Land Code (NLC) and case law to address three issues: 1) Whether alienation of state land only takes effect upon registration, 2) Whether approved land remains state land until registration, and 3) Whether the SA has power to revoke approval without reasons. The summary concludes that based on the NLC and case precedents, the SA has implied statutory power to revoke with reasons required depending on the circumstances of the case.

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    UUUK3033 LAND LAW

    ALIENATION
    Pembinaan Batu Jaya Sdn Bhd v
    Pengarah Tanah dan Galian,
    Selangor & Anor [2016] 2 MLJ
    Prepared by :
    WONG CHUN MING A155141
    LIYANA NADHIRAH BINTI RUSLAN A154178
    REHAN PUTERI QADISA BINTI ABU BAKAR A153974
    DINI AMALINA BINTI MOHAMAD A154768
    MAISARAH BINTI MUSTAFFA A153509
    The appellant submitted pre-
    computation plans to the district
    office and to the local council but
    The Selangor State Authority was informed 4 years later by the
    (SA) had approved the appellant's District and Land Office that the
    application for alienation of a 70 approval for alienation of the land
    acre plot of state land to carry had been revoked by the SA.
    out a development.

    By way of an application for judicial


    The High Court found that review at the High Court, the appellant
    there was no merit in fact or sought to quash the decision on the
    in law to justify the court in grounds that the respondents had ,
    quashing the respondent's acted illegally, irrationally, in excess of
    decision to cancel the jurisdiction and unreasonably and that
    alienation of the state land. the failureto give any reason for the
    revocation was absurd and illogical.
    1. State Authority has the power to revoke order of alienation on the proper construction of
    S.76 (3) of the National Land Code.

    State Authority has the power to revoke by necessary implication although no express
    words in NLC that said so.

    It was an implicit power given to State Authority and has already became a settled law.

    2. The decision of State Authority in revoking the alienation was not due to the nature of
    prerogative.

    S.42 of NLC had specifically outlined the manner about the alienation.
    3. S.42 of NLC provided the nature of power of the State Authority which was
    vested the power of disposal of state land within the territory of a state.
    State Authority's power to alienate state land in S.42 should be in accordance to
    S.76.
    S.76 provided that extent of alienation would only be complete upon registration
    on the Register of Titles.
    Within the sections provided, the power of State Authority was indeed fully
    circumscribed.
    4. State Authority has the power to deal with all state lands.
    Includes the power to revoke the order of alienation made previously in any state
    lands.
    In accordance to law, the power of State Authority was not due to the nature of
    prerogative.
    It was a statutory power with necessary implication, to revoke an order of alienation
    previously made in the piece of state land.
    5. Appellant was almost done with completing the alienation process to obtain the
    registered ownership of the land. Applications and paper works were sent to the State
    Authority.
    After 2 years of waiting, the appellant was then only be informed that the order of the
    alienated land was revoked. It was alienated to the other parties where no reason were
    given. Appellant demanded for reasons.
    Still, no reasons were given but in the fact of law, State Authority has the power to
    revoke the alienation although it was a bad action.
    Appeal was allowed with RM20000.
    I. Whether alienation of State Land (SL) only took effect upon
    registration of register document of title.

    II. Whether land approved for alienation by State Authority (SA)


    remained SL until registration.

    III. Whether SA had power to revoke approval of alienation of SL without


    reasons.
    S.40
    Property in SL, S.76
    minerals and rock Meaning of Alienation
    material

    S.42 S.78
    Powers of Disposal by How Alienation is
    the SA Effected

    S.77
    Titles under Which
    Land May Be
    Alienated
    S.40
    • SA is vested with power over the SL within the state.
    • Can’t just alienate SL to just anybody, has to follow set parameters .

    S.42
    • SA’s power to alienate SL shall be in accordance with the provisions
    as contained under s.76.

    S.76
    • Sets out the extent of the alienation in that it will only be complete
    UPON REGISTRATION ON THE REGISTER OF TITLES

    S.77
    • Titles under which SL may be alienated are of final and qualified
    title.
    Final Title
    (s.189-s.194)

    LAND
    TITLES

    Qualified Title
    (s.176-s.182)

    S.78(3)
    • Alienation of SL shall take effect upon the registration of a register
    document of title pursuant to the provisions referred to sub
    section (1); under final title or (2);qualified title.
    • Section 42 of National Land Code 1965
    • Section 76 of National Land Code 1965
    • Section 78(3) of National Land Code 1965
    S.42(1)(a) S.76

    S.78
    • SECTION 42(1)(a) • SECTION 76
    • Subject to subsection (2), the State • The alienation of State land under
    Authority shall have power under this Act shall consist of its disposal
    this act :- by the State Authority –
    • (a) to alienate State land in • (a) for a term not exceeding 99 years
    accordance with the provisions of • (aa) in perpetuity –
    section 76; • …

    • SECTION 78(3)
    • The alienation of State land shall take effect upon the
    registration of a register document of title thereto pursuant
    to the provisions referred to in subsection (1) or (2), as the
    case may be, and, notwithstanding that its alienation has
    been approved by the State Authority, the land shall remain
    State land until that time
    NORTH EAST
    PLANTATION SDN BHD
    V PENTADBIR TANAH
    DAERAH DUNGUN &
    ANOR [2011]
    • S.78(3) clearly provided that as long
    as the land is not registered in the
    appellant’s name, it was still owned
    by the state government.
    • Implicitly the state government had
    the power to revoke the previous
    approval and reject the payment
    made by the appellant.
    • There was no express provisions in
    the NLC which stated that the state
    government must accept the
    payment made by way of Form 5A.
    • Thus, the act to reject and return
    the payment made by the appellant
    was valid and proper following the
    provisions of S.78(3) of NLC
    Power to Revoke Approval of Alienation of State Land

    • Power to REVOKE approval of alienation of state land lies exclusively within the
    province of the SA and the SA alone.
    • However, it was a Statutory Power which it was implied from the reading of
    s.40,s.42, s.76(3) and s.78 of the NLC. Thus it was not an absolute discretion.
    • Statutory power must be done according to legal principle and good conscience.
    • The rule of law on the exercise of decision-maker of his statutory power was lied
    down by the former Lord Chief Justice Of England and Wales
     Should be exercised in a good faith
    The duty to give reasons
    • Was not provided in any statute.
    • Determined on a case by case basis as it was not provided in NLC.
     R v Secretary of State For Trade and Industry 1989
    - The only significance of the absence of reasons is that if all other known facts and circumstances appear to point
    overwhelmingly in favour of a different decision, the decision –maker who has given no reasons, cannot complain if the court
    draws the inference that he had no rational reason for his decision.

     Rohana bte Ariffin v USM 1988


    - A reasoned decision can be an additional constituent of the concept of fairness.

     Minister of Labour, Malaysia v Sanjiv Oberoi & Anor 1990


    - It would be strange to provide in a statute that affirmatively prohibit a public officer, as a decision-maker in the discharge
    of his public duty without assigning any reason as it will portray unaccountability of public officer and bad governance.
    - However, the silent in a statute does not mean there was no duty at all to give reasons. The silent cannot be used by the
    decision-maker as a cloak to find refuge for the rationality in his decision.
    • Such duty is ipso facto = it is reasonable to
    believe something based on facts that
    already known
    • If the case was straightforward and no need for
    deeper rationalism, the duty to give reason by
    the decision-maker, may not arise.
    • If the circumstance of the case clearly suggested
    that decision A ought to be granted but then the
    outcome was contradict which decision B was
    instead given, then the balance must tip in
    favour of assigning a reason.
    THANK YOU!

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