DISPOSAL BY ALIENATION
Saturday, 11 November, 2023 12:07 PM
Sections in National Land Code (mention in intro)
• Section 40
• Section 41
• Section 42
Alienation- convey/transfer/give away a right + title of a state land to another party (described in Section 43)
- Section 42(1)(a)- disposal by alienation
○ Alienation is the best mode of disposal because
Ownership will be transferred to proprietor
Proprietor feels secured to develop and invest in the land
Can claim for compensation if the land is acquired for public purpose by State Authority
STEPS ALIENATING LAND
STEPS NOTES AND CASES
1) Application for the land under • Who can apply?
alienation - Section 43 NLC; Any person/body (natural person)
- Can apply for leasehold (99 years) or freehold (perpetuity)
- Only State Authority can alienate a land
• Case: Sidek Haji Mohammed v Gov. of Perak
- Facts: Appellants were squatters and was asked to open up a large part of the jungle
area. In return, it was alleged by a news article that each settler family would receive 5
acres of land from the state director of lands and mines. However, the district officer
made promises to give 3 acres of land which is gotten by some.
- Issue: Whether the statement by the State Director of Land and Mines in the
newspaper has a binding effect on the land
- Held: No authority to bind the government to alienate State land to the settler as this
can only be done by the SA.
2) Approval stage and conditions • The application will be reviewed and decided by the State Authority, whether to
to be imposed by State approve the application or not
Authority
• Section 79(2); if approved by SA, some matters need to be determine such as
- Number of years for which land is alienated (FH or LH)
- Form of final title under which land will ultimately to be held (only if survey has
been done)
- Rate of annual rent (lesser than assessment rent)
- Category of land use (building/industry/agriculture)
3) Payment of land revenue • Section 81- payment of land revenue needs to be made before approval for alienation
takes place
• Items considered as land revenue:
- 1st year annual rent
- Premium rent (this depends on whether SA wants to make it and if yes, pay after
approval of alienation)
- Survey fees
- Fees for preparation and registration of document of QT and FT
• Time frame to pay land revenue:
- Section 81(2): by notice in Form 5A, shall require intended proprietor to pay
within the specified time that has been stated in the notice.
- If the payment is not made within the time limit, the approval shall lapse
- If the intended proprietor still wants to continue, need to apply for a fresh
application
• Case: Teh Bee v K Maruthamuthu
- Facts: Appellant being the applicant of land under alienation made payment of land
revenue beyond specified time. The payment was accepted and registration of title in
her name was perfected. However, the respondent, a TOL holder, who occupies the
land challenged the alienation to appellant and claimed that approval made had already
lapsed when payment was made, therefore SA had acted ultra vires the NLC.
- Held: SA did not ultra vires the NLC. Based on the evidence of the trial, it is clear that
the appellant was the only applicant for the alienation of the land in question. There
was no other applicant to whom it could have been alienated after the approval. The
fact that the appellant was registered as a proprietor necessarily raised the inference
that the SA on payment of the premium had given a fresh approval for the alienation of
the land to her.
- Decision shows that: Payment of land revenue to be made within time is not
mandatory, only directory and SA has the discretion to accept payment even if it is
made beyond time limit
DEPOSIT?
- Up to the SA to ask for a deposit as part of the land revenue
- Deposit can be a way to ensure that the proprietor comply with the conditions imposed
by SA
- Notice in F5A will be served for payment and must be done within a specified time
- If fail, application will be withdrawn
4) Survey for alienation under • Survey will be conducted by SA for a title to be issued to the applicant, to determine
Final Title (only applicable boundaries which will be carried out by Survey Officer according to s396.
when issuing FT)
• At the time of approval (before survey), the area of land for alienation is provisional
(QT) as it is not definite and temporary only.
• Land may became smaller or bigger after survey BUT it must be as near as what is
stated in the plan and description to which has been approved.
• Section 83(3): if there is a different/discrepancies in the area approved after survey has
been conducted and the Director of Survey and Mapping is satisfied that the
boundaries is substantially different from the provisional area, he will;
- Refer matter to SA
- Cause the area to be re-determined
- Section 83(4); In cases of differences in areas, proprietor cannot take action
against SA if area is smaller
• Case: Yap Lai Yoke v Chin Fook Wah
- Facts: Respondent, proprietor of QT claimed that appellant had unlawfully
encroaching on respondent’s land. Appellant’s defence was that a road had been sited
incorrectly and thus, reducing the size of their lots. This means that the area stated in
the title differ from what they actually had.
- Held: Appellant has no right to extend his building on another’s land to make up his
lost land. It was the problem between the authorities and proprietors, and no excuse for
the encroachment. It does not give any owner of QT the right to encroach on the land
of another owner of a QT to make up for his lost land by unlawful extension of his
building thus encroaching on another’s land.
- When actual land area is determined after survey, it may differ and thus, there will be
re-computation of land revenue:
If land is smaller, land revenue will be refunded as it is overpaid, and next year’s rent
will be reduced (opposite for when land is bigger)
- Proprietor cannot take action against the SA as it has provides remedies
5) Preparation of Title • Section 77(1): After payment has been made, SA need to issue title which is either QT
(before survey) or FT (after survey)
• After survey has been done, it will determine what form of final title to be issued by
looking at the type of land in accordance with Section 51
○ Registry title [Section 77(3)(a)]; consists of town land, village land and country
land that is more than 4 hectares which can be in the form of QT or FT (doesn’t
matter if survey is done or not)
○ Land Office Title [Section 77(3)(b)]; consists of country land which does not
exceed 4 hectares but according to the proviso, SA may issue registry title even if
less than 4 Hectares
• After determining whether it falls under RT or LOT, SA must then prepare 2 forms of
document title:
○ RDT – Register Document Title (kept at the land office)
○ IDT – Issue Document Title (kept by the proprietor)
○ The one preparing the documents will depend on where the land is being situate
Registry title (Section 86)
○ Form 5B (Freehold- Grant)
○ Form 5C (Leasehold- State Lease)
Land Office Title (Section 87)
○ Form 5D (Freehold- Mukim Grant)
○ Form 5E (Leasehold- Mukim Lease)
6) Registration • Section 78(3)
- Alienation will only takes place upon registration of RDT
- Land that is being alienated will remain as state land until registration is
completed
• Case: Dr. Ti Teow Seow v Pendaftar Geran-Geran
- Facts: Land has been alienated to the first applicant with a RII where “the land hereby
leased shall not be transferred or leased for a period of 15 years without the consent of
the Ruler in council”. The first applicant made transfer of land then the other 2
applicants, executed a charge to the last applicant but it was rejected by the respondent
on the ground that the RII was still subsisting.
- Issue: Whether the RII commenced from the date endorsed on the title or the date of
alienation was registered.
- Held: RII commenced from the date of registration of the register document of title
(alienation happened) The respondent relied on the calculation of the period of 15
years and it relies also on section 78(3) NLC which states that the alienation of state
land shall take effect upon registration and the date of registration, the period of 15
years has not ended. Registration is the cornerstone of the Torrens System and it is the
one that gives and extinguishes title under the NLC, and the land shall remain state
land until registration completed.
Alienation can only be perfected and effected :
○ FT – s83 to 92
○ QT – s176 to 182
○ Registration will have the authentication /signature and seal of the Registrar/Land
Administrator on the RDT (form 5BCDE)
Effects of registration
○ S.89 – Mirror and curtain principle
○ Proprietor may sub, part and amal (x QT)
○ Proprietor may transfer, lease, charge and dispose land by will
○ Subjected to paramount and subsidiary rights
*Under leasehold, proprietor are allowed to renew term 10 years before expiry.
CAN ALIENATION BE REVOKED?
CASE 1: NORTH EAST PLANTATION SDN BHD v PENTADBIR TANAH DAERAH DUNGUN & ANOR
- Facts: The State Executive Council of Terengganu rejected the appellant’s payment of premium for alienated land and revoked the previously
approved alienations
- Held: The court held that alienation of land takes effect upon registration, as stated in Section 78(3) of NLC.
The procedure of registration was not completed. Thus, the SA is allowed to revoke the approval of alienation.
It is observed in the second limb of that subsection that until the date of registration, the land shall remain state land.
What amounts to registration is the making of a prescribed memorial of the dealing in the register document of title under the hand and seal of
the registering authority. Therefore, if any such memorial is made without signing and sealing, there would be no registration.
CASE 2: PIAGAMAS MAJU SDN BHD v PENGARAH TANAH & GALIAN NEGERI SELANGOR & ANOR
- Facts: After the application was made by the appellant on 25/5/99, the Selangor State Govt approved the alienation of 116 hectares of state land
in 3 area in Selangor to the appellant to carry out mixed development. However, part of the land was occupied by Orang Asli. A series of
meetings were held between appellant, various state govt and representatives of Orang Asli to resolve issues relocating the Orang Asli including
payment of compensation.
- The appellant was asked to pay premium of the said land on condition that title will not be issued to the appellant until resolution of Orang Asli
issue occupying part of the land. Notice F5A was issued. Appellant successfully made the payment. However, the appellant has been notified
that their application for alienation was rejected
- Held: The court followed the decision in North East Plantations where the judge stated that the revocation is valid as it has not been registered.
The court also stated that s 78(3) provides that alienation only takes effect upon registration. The SA has power to revoke alienation as long as
there is no registration.
- It also stresses on s 80(3) where approval of the SA to alienation of any land whether under this Act or under the provisions of any previous land
law has been given, subject to subsection (3) of section 80, documents of QT shall be prepared, registered and issued by the land administrator or
registrar, as the case may be. Then, registration can take place.
