Not every non observance of the procedure outlined by law, would result in the revocation of an expropriation. This was held in Ivory Venue Limited -v- L-Awtorita tal-Artijiet, a decision delivered by the Lands Arbitration Board presided by Magistrate Dr Simone Grech, on 17 September 2021.
The Company explained in its application that on 18 February 2021 the Chairman of the Lands Authority published in the Government Gazette that their land in Zebbug, Gozo was needed for public use. The Company purchased the property in August 2020. The Company complained that the procedure outlined in Article 40 of the Government Lands Act was not followed, since a notice was not fixed on the property.
The property was occupied by the Company by means of its representative, but the Lands Authority failed to notify the company by a judicial act of the expropriation. The Company asked the Board to revoke the order published by the Authority that it is to become government property due to these failings and due to the fact that it is not needed for public use.
The Lands Authority defended the action, by presenting a statement of defence. The Authority held that the Company has to prove that the property is theirs and it held that the procedure was used as outlined by the law. The Authority argued that it was not in a position to notify the Company, because the provides that such notification is subject to whether this is possible and the law does not state that the transfer is null because of lack of notification. The property is required for Triq Marsalforn is to be widened and therefore this is for a public use.
The Board in its decision dealt with whether the Company has to prove root of title as owner of the property. The Company did present a contract when the acquired the property together with affidavits of witnesses confirming the Company as the owner. The Board was satisfied.
Magistrate Simone Grech continued by quoting from the Government Lands Act. Article 40 reads:
“40. (1) So long as this is physically possible, the authority shall by not later than fourteen days following the publication of the Declaration of the Chairperson of the Board of Governors of the Lands Authority in the Gazette and at least a one-time announcement in two daily or Sunday local newspapers, attach a copy of the Declaration and of the site plan upon or near the land in respect of which the Declaration was issued.
(2) The authority shall also ensure that within the same time, the notice of such Declaration is shown on the notice board of the office of the Local Council and of the Police station in the locality where the land is situated.
(3) When the required land for public purpose is occupied by any person, the authority shall, by means of a judicial act presented in the register of the Arbitration Board, forward a copy of the Declaration and the plan to those persons occupying the land:
Provided that the fact that any notification has been served upon any person shall not be taken as an admission by the competent authority that the person on whom such notice has been served or any other person has any ownership or interest in the land or any part of the land specified in the notice, and shall not debar the authority from alleging in any proceedings under this Act or otherwise that all rights in or in relation to such land are vested in the Government of Malta. “
From the evidence produced the declaration was published in two local newspapers and was placed in the Local Council. Article 40 lays down on how the owner should be notified. The directors of the company told the Board that they received a telephone call from the Ministry for Gozo, in which it was explained that the parcel of land was going to be expropriated. This is not a formal notification as prescribed by law. As to the Authority’s duty to file a judicial act, the same law does not stipulate when this has to be done.
As to whether the expropriation was for public use, Article 41 of the government Lands Act outlines this point. Any person may challenge the declaration on this point within 50 days from publication. After this period has passed nobody can make use of the action.
The Board then moved to declare that the procedure under Article 40 of the Government Lands Act was not observed, but did not annul the expropriation.
Avv Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article is available on MaltaToday.
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