LANDMARK RULING – NO LAND GRAB EVEN FOR ‘MEGA MOSQUE’: COURT DECLARES JAIS’ LAND GRAB ILLEGAL

PUTRAJAYA -In a landmark ruling today, the Court of Appeal declared the Selangor Islamic Religious Department’s (Jais) compulsory acquisition of a private company’s 26-acre land to build a purported “mega mosque” as unlawful and invalid.

Lawyer Rosli Dahlan, who represented the private landowner United Allied Empire Sdn Bhd (UAE) that had accused the Selangor Islamic body of abuse of power for the alleged land grab, said today’s ruling meant that the land will have to be returned to his client.

“The Court of Appeal has declared the acquisition of 26 acres to build a mosque as an illegal acquisition; it is mala fide, it is not genuine,” he told reporters when met here after the decision was delivered, using the legal term for “in bad faith”.

Landmark ruling

Rosli said today’s court decision was also a “landmark” ruling which effectively enhanced the protection of landowners’ rights in Malaysia, by clarifying the procedural requirements and process in law that public bodies must fulfill before forcibly acquiring private land.

“The Court of Appeal strengthened the right of landowners by insisting on Form A and Form K to be construed in accordance with the Land Acquisition Act,” he said.

The Selangor authorities had previously admitted failure to issue the Form A — a public notice to notify that the land will be acquired and the very first step in a compulsory acquisition process — for the UAE land. They had also failed to show documentary evidence in court that they had registered the required changes in land title records after issuing Form K, which is a notice of formal possession of the acquired land.

“It (today’s decision) has a wide implication because in the past, the PTDs (District Land Administrators) and PTGs (Land and Mines Directors) just bypass the requirement to gazette Form A. Now this court says that is a mandatory requirement.

“Secondly on Form K, that Form K does not shut the door to landowners,” Rosli said

He said the court’s ruling today that the issuing of Form K alone does not end the landowners’ rights to pursue a challenge against a land acquisition departed from the landmark 2014 land case of Ishmael Lim Abdullah.

The issue of Form K’s effect was crucial to determine if UAE still had the legal standing to continue with its lawsuit, with UAE’s lawyers having argued that a landowner’s’ rights will only end after the endorsement of memorial or the recording of the state’s rights over the acquired land.

Failure to fulfill compulsory acquisition requirements

The developer claims Jais’ declared intention for land acquisition in a government gazette contradicts a notice of MAIS’s proposed project, which is seen in front of the existing Masjid Ar-Ridwan mosque in Batang Berjuntai. — Picture by Choo Choy MayThe Court of Appeal panel today ruled in favor of UAE as it found that the Selangor Islamic authorities had failed to comply with the land acquisition process, also granting all 24 reliefs that the private company had sought — including a court order compelling the Selangor bodies to declare their actual intention for acquiring the massive plot of land in Selangor’s Bestari Jaya.

The Court of Appeal granted a total of RM100,000 in costs to UAE for proceedings here and in the High Court, with half of it to be paid by four respondents — the Selangor Land and Mines Department director, the Kuala Selangor land administrator, Jais and the Selangor government.

The other half is to be paid by two others which UAE had sued, namely the Selangor Islamic Religious Council (Mais) and Selangor Zakat Board (LZS).

The Court of Appeal panel was chaired by Datuk Abang Iskandar Abang Hashim and composed of judges Datuk Zamani A. Rahim and Datuk Zaleha Yusof.

Today’s decision was on UAE’s appeal against the Shah Alam High Court’s December 3, 2015 dismissal of the local developer’s lawsuit against the six Selangor authorities.

The ethnic Chinese-owned company had filed for a judicial review in April 2013 as a last resort to revoke the compulsory acquisition of its land that was roughly the size of 20 international football fields.

In the lawsuit, UAE had accused the Selangor authorities of purported racial oppression and violation of its constitutional rights, claiming that the religious bodies had abused their powers to avoid paying fair compensation for the land and had shored up their land bank for future development.

According to UAE, compulsory acquisition of private land was only allowed under Article 13 of the Federal Constitution if it benefited the public and if property owners received adequate compensation.

In a typical compulsory acquisition process, property owners can expect to be paid lower than the market value, or lower than the sum they may have received if they had sold the property.

During the appeal hearing last November, Rosli told the Court of Appeal that Jais has no justification for the compulsory acquisition of so much land to build such a large mosque when the Muslim population in Bestari Jaya — a Kuala Selangor district formerly known as Batang Berjuntai — was relatively small.

Rosli had pointed out that there were 22 mosques in the area on top of an existing mosque occupying 0.2 acres of the 26 acres of land, with the latter at times struggling to even have one full row of Muslims during prayer times. In its development plans for the entire plot of land, UAE had, on its own initiative, set aside 0.8 acres for the existing mosque’s expansion.

Selangor’s assistant legal adviser Naziah Mokhtar had then argued however that the planned “mosque” on the 26 acres of land includes a religious school and a burial site, insisting that the acquisition was for public purposes and was not in bad faith, and that there was no evidence to show it had breached any laws.

– Malay Mail