Pentadbir Tanah dan Daerah Petaling v Bandar Utama City Corporation Sdn Bhd (B-01(A)-151-04/2017 & B-01(A)-152-04/2017)

DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. B-01(A)-151-04/2016

1. PENTADBIR TANAH DAN DAERAH PETALING

2. KERAJAAN NEGERI SELANGOR

3. PENGARAH TANAH DAN GALIAN SELANGOR

4. JABATAN PERANCANGAN BANDAR DAN DESA NEGERI SELANGOR ... PERAYU-PERAYU

1. BANDAR UTAMA CITY CORPORATION SDN BHD (Dahulunya dikenali sebagai Damansara Jaya Sdn Bhd) (No. Syarikat: 14165-U)

2. BANDAR UTAMA TECHNOLOGY PARK SDN BHD (No. Syarikat: 324415-V) ... RESPONDEN-RESPONDEN DIDENGAR BERSAMA DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. B-01(A)-152-04/2016 MAJLIS BANDARAYA PETALING JAYA ... PERAYU

1. BANDAR UTAMA CITY CORPORATION SDN BHD (Dahulunya dikenali sebagai Damansara Jaya Sdn Bhd) (No. Syarikat: 14165-U)

2. BANDAR UTAMA TECHNOLOGY PARK SDN BHD (No. Syarikat: 324415 -V) RESPONDEN RESPONDEN ... RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Shah Alam Dalam Negeri Selangor Darul Ehsan Permohonan Untuk Semakan Kehakiman No. 25-4-02/2015

1. BANDAR UTAMA CITY CORPORATION SDN BHD (Dahulunya dikenali sebagai Damansara Jaya Sdn Bhd) (No. Syarikat: 14165-U)

2. BANDAR UTAMA TECHNOLOGY PARK SDN BHD (No. Syarikat: 324415 -V) ... Pemohon-Pemohon

1. PENTADBIR TANAH DAN DAERAH PETALING

2. KERAJAAN NEGERI SELANGOR

3. PENGARAH TANAH DAN GALIAN SELANGOR

4. LEMBAGA LEBUHRAYA MALAYSIA

5. JABATAN PERANCANGAN BANDAR DAN DESA NEGERI SELANGOR

6. MAJLIS BANDARAYA PETALING JAYA ... Responden-Responden] CORUM: UMI KALTHUM BINTI ABDUL MAJID, JCA ZALEHA BINTI YUSOF, JCA YAACOB BIN HAJI MD SAM, JCA GROUNDS OF JUDGMENT Introduction [1] There are two appeals before us which were heard together. For convenience parties will be referred to as they were in the High Court. [2] Appeal No.151 is the first (Pentadbir Tanah dan Daerah Petaling), second (Kerajaan Negeri Selangor), third (Pengarah Tanah dan Galian Selangor) and fifth (Jabatan Perancangan Bandar dan Desa Negeri Selangor) respondents' appeal. Appeal No.152 is the sixth respondent's (Majlis Bandaraya Petaling Jaya) appeal. [3] Both appeals were lodged by the respondents in respect of the decision made by the High Court on 17.3.2016 in allowing the applicants' application for judicial review to quash the decision of the first, second and third respondents to compulsorily acquire an area of 1,320 square meters of land which forms part of the whole land of the second applicant (Bandar Utama Technology Park Sdn. Bhd.) held under Grant No. 54943, Lot 27680, Section 39, Bandar Petaling Jaya, Daerah Petaling, Selangor. [4] After considering the written and oral submissions of the respective counsel and the records of appeal, we had unanimously allowed both the appeals. These are the reasons for our decision. BACKGROUND FACTS [5] The first applicant owned a few pieces of land in Mukim of Sungai Buloh, Selangor. It entered into a joint venture agreement (JVA) with the second applicant to develop the land into a mixed development township known as 'Bandar Utama'. The second applicant purchased from the first applicant Lot 27680 located within Bandar Utama. The second applicant is a fully owned subsidiary of the first applicant. They shared the same registered address at No.1, Dataran Bandar Utama, Bandar Utama, 47000 Petaling Jaya, Selangor. [6] Prior to the development of Bandar Utama, the first applicant submitted a layout plan of the land to the first and fifth respondents for approval. It was duly approved. [7] In 1991, the fifth respondent amended the layout plan in view of the development of an adjoining piece of land by Tropicana Golf & Country Resort Berhad ("Tropicana"). It was approved by the first respondent. The amendments by the fifth respondent were to provide an access in and out of the Tropicana's development through the first applicant's land. The access road was later known as Jalan Hilir. The first applicant was also required to construct Jalan Hilir at its own costs which is about RM2 million. [8] Tropicana commenced its development during the development of Bandar Utama. In 1993, the first applicant and Tropicana entered into an agreement where the subject land was to be used as a temporary access in and out of Tropicana's development pending the completion of Jalan Hilir. [9] The temporary access was connected through the second applicant's private road, Jalan Tanjung on Lot 27680 and then the fourth respondent's land (LLM) which was previously acquired from the first applicant for the purpose of its use as part of the North Klang Valley Expressway (NKVE). [10] The construction of Jalan Hilir was completed at the end of 1996. It was said that the fourth respondent granted an irrevocable licence as to the use of its land and gave assurance that the temporary access will be closed upon the completion of Jalan Hilir. [11] However, the second and sixth respondents continued directing the first applicant to keep the temporary access open pending Tropicana to connect its development to Jalan Hilir. [12] In 2008, Tropicana completed connecting its development to Jalan Hilir. Despite the completion, the first applicant was not allowed to close the temporary access on the ground that the construction of a twin tunnel along Jalan Hilir had not been completed. It was completed in early 2009. [13] On 28 August 2009, the first applicant terminated the agreement with Tropicana and closed the temporary access due to the traffic congestion along Jalan Tanjung and the temporary access. [14] There were then discussion among Tropicana, the first applicant and the then Menteri Besar of Selangor. A proposal was put forth to construct a bypass which will disperse the traffic from Tropicana's development to the NKVE/SPRINT Highway directly and to alleviate the traffic congestion at Jalan Hilir. It was alleged by the applicants that the Menteri Besar had agreed to give a grant of RM1 million to the applicants upon completion of the bypass. [15] Despite the discussion, on 6 January 2010, the first respondent issued Forms E and F under the Land Acquisition Act 1960 (LAA 1960) to compulsorily acquire the subject land. [16] The applicants then filed an application for judicial review to quash the said decision ("the first judicial review"). The High Court allowed the first judicial review and the first, second and third respondents appealed to the Court of Appeal. [17] However, in 2014 pending the appeal of the first judicial review, the first respondent issued Forms E and F to re-acquire the subject land. As a result, on 13.2.2015, the applicants commenced the present application for judicial review. Applicants' Grounds for Judicial Review [18] The grounds for judicial review as may be gleaned from the Statement filed pursuant to Order 53 r. 3(2) Rules of Court 2012 are as follows:

1. Nama dan perihalan pemohon-pemohon ialah Bandar Utama City Corporation Sdn Bhd (dahulunya dikenali sebagai Damansara Jaya Sdn Bhd)(No. Syarikat: 14165-U) dan Bandar Utama Technology Park Sdn Bhd (No. Syarikat: 324415-V) kedua-duanya beralamat di No.1, Dataran Bandar Utama, Bandar Utama, 47400 Petaling Jaya, Selangor Darul Ehsan.

2. Pemohon pertama adalah pemilik berdaftar bidang tanah Geran 25102 Lot 12125 dan Geran 25103 Lot 100 (Hartanah asal) manakala pemohon kedua adalah pemilik berdaftar suatu bidang hartanah yang dipegang di bawah Geran No. 54943, Lot No. 27680, Seksyen 39, Bandar Petaling Jaya, Daerah Petaling, Negeri Selangor ("hartanah tersebut").

3. Responden pertama adalah Pentadbir Tanah bagi Daerah Petaling.

4. Responden kedua adalah Kerajaan Negeri Selangor dan juga Pihak Berkuasa Negeri sepertimana yang ditakrifkan di dalam Akta Pengambilan Tanah 1960.

5. Responden ketiga adalah Pengarah Negeri Jabatan Tanah dan Galian sebagaimana ditakrifkan di dalam Akta Pengambilan Tanah 1960.

6. Responden keempat adalah pihak berkuasa lebuhraya di Malaysia dan adalah pemilik beneficial suatu bidang hartanah yang digelar dalam afidavit yang difailkan bersama-sama di sini sebagai "Tanah LLM".

7. Responden kelima adalah pihak yang berkuasa untuk meluluskan pelan pembangunan dan meluluskan pembangunan di Negeri Selangor sebelum pelaksanaan Town & Country Planning Act 1973 (Act 172).

8. Responden keenam adalah pihak berkuasa tempatan untuk meluluskan pelan di kawasan Petaling Jaya selepas pelaksanaan Seksyen 5 Akta 172.

9. Responden ketiga telah mengeluarkan Notis dalam Borang A Akta Pengambilan Tanah.

10. Responden kedua telah memutuskan ("Keputusan tersebut") untuk mengambil secara wajib kesemua 1320 meter persegi hartanah yang merupakan sebahagian daripada hartanah tersebut. Responden pertama dan kedua telah bersama-sama menyebabkan dikeluarkan Notis-notis di dalam Borang E dan F, Akta Pengambilan Tanah terhadap pemohon-pemohon menurut keputusan tersebut.

11. Responden kelima telah pada setiap masa matan meluluskan suatu pelan tatatur terpinda dan mensyaratkan yang sama ke atas pemohon pertama dan kesemua pelan-pelan lain untuk membenarkan pembangunan di atas hartanah asal, keseluruhan Bandar Utama dan kesemua pembangunan-pembangunan yang berdekatan dengan Bandar Utama.

12. Secara khususnya, responden kelima telah menghendaki bahawa suatu jalan yang lambat launnya diberi nama Jalan Hilir Bandar ("Jalan Hilir") dibina untuk membenarkan akses dari dan kepada pembangunan-pembangunan yang berdekatan Bandar Utama.

13. Secara khususnya, pelan-pelan tersebut memperuntukkan suatu rangkaian jalan yang menyeluruh yang memberi khidmat kepada semua pembangunan-pembangunan yang terkait kepadanya.

14. Di dalam pelan-pelan tersebut, ada jalan akses diperuntukkan ke 3 tangki air di situ dan kepada Geran 54943 Lot 27680 dan Geran 54945 Lot 27679 Seksyen 39, Bandar Petaling Jaya, Daerah Petaling, Negeri Selangor.

15. Pemohon pertama telah melakukan sedemikian atas galakan responden pertama, kedua, ketiga dan kelima kepada penjejasannya (detriment).

16. Responden pertama, kedua, ketiga dan kelima adalah diestop dari membelakangi pelan-pelan tersebut.

17. Responden pertama telah memperolehi Tanah LLM secara pengambilan wajib dari pemohon pertama.

18. Sekiranya responden keempat tidak memerlukan Tanah LLM tersebut, respoden keempat sebagai pemilik berdaftar Tanah LLM tersebut pada masa kini patut memindah milik tanah tersebut balik kepada pemohon pertama.

19. Keputusan tersebut dan/atau Notis-notis tersebut adalah: a. Mala fide; b. Menyalahi undang-undang; c. Suatu penyalahgunaan kuasa-kuasa oleh responden responden pertama, kedua dan ketiga; d. Tidak rasional dan selainnya tidak wajar; e. Bertentangan dengan kesemua prinsip-prinsip bersekadaran (principles of proportionality); f. Ultra vires responden-responden pertama, kedua dan ketiga. [19] The crux of the applicants' case for judicial review is that the decision or action of the respondents had affected the rights and the legitimate expectation of the applicants. Findings of the High Court [20] On 17.3.2016, the High Court allowed the applicants' application for judicial review. [21] The following paragraphs of the learned Judge's Grounds of Judgment are relevant (paras 19, 20 and 21): "19) After hearing the submissions by parties, I am in agreement with the submission of the Applicant's counsel, Datuk Seri Gopal Sri Ram and therefore allowed this application in prayer 1. 20) The reasons in allowing prayer 1 are as follows: a) It is settled principle that in exercising its power, a public body must act legally, reasonably and fairly (referred to the cases of Datuk Bandar Kuala Lumpur v Zain Azahari bin Zainal Abidin [1997] 2 MLJ 17, Majlis Perbandaran Seberang Perai v Tropiland Sdn Bhd [1996] 3 MLJ 94, Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor [1999] 3 MLJ 1 & Abdul Rahman Brothers Sdn Bhd bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur [2008] 6 MLJ 704). b) The crux of the Applicant's case for Judicial Review is that the decision or action of the Respondents had affected the rights and the legitimate expectation of the Applicants. c) It was not disputed that the planning authority unilaterally amended the development plan and requested the Applicants to construct Jalan Hilir on its own costs and without any compensation. d) Pending the construction of Jalan Hilir, Applicants were supposed to give a temporary access to the Tropicana. The Applicants abided the request to provide temporary access to the Tropicana Developments. e) I would like to emphasis it is also not in dispute that the Respondents had given assurance once the construction of Jalan Hilir completed, a temporary access will be given back to the Applicants. f) Therefore I find that the temporary access was never meant to be a permanent road. g) Based on this undisputed fact, principle of legitimate expectation surely applies as the Applicants are expected to be given back the subject land upon completion the construction of Jalan Hilir. h) In addition to the above, I also make a finding that the act of the Respondents serving on the Applicants Form E and F is an abuse on two grounds. Firstly, it is not in dispute that the Form E & F were issued with full knowledge that an Appeal was pending. Secondly, it is also noted the First Judicial Review Application was dismissed by the Court. I am of the view the act of the Collector issuing Form E & F is blatantly an abused of power. Case laws have repeatedly enunciated that the power to acquire must be exercise reasonably. i) I further make a finding and agreed with the Counsel of the Applicants' that the act of the Respondents acquiring the subject land was for the purpose of assisting Tropicana Developments and not for any public purpose. The Respondents' submission that they wish to acquire the subject land to improve the traffic flow was devoid of merit and further contradict the opinion of the consultant report of the Applicants. Even more damaging is the fact that the Respondents had chosen to rely on the report of the traffic flow prepared by the Tropicana Developments in which the report was prepared after the decision to re-acquire was made. 21) Based on the above reasons, I find the Respondents had acted unreasonably and irrationally without regard to any consideration whatsoever. Therefore the Respondents had clearly abuse its statutory discretion and had acted in excess of its jurisdiction and in breach of the Applicants' legitimate expectation." [22] In essence, the High Court found that the respondents were in breach of the applicants' legitimate expectation and there was an abuse of power on the part of the respondents in the decision to re-acquire the subject land. [23] Hence, the learned High Court Judge has made the following order: a) Suatu perintah Certiorari dikeluarkan untuk memindahkan ke dalam Mahkamah Tinggi untuk ianya dibatalkan keputusan Responden Pertama, Kedua dan Ketiga ("Keputusan Tersebut") untuk memperolehi secara wajib kesemua 1320 meter persegi tanah yang membentuk sebahagian daripada tanah yang dipegang di bawah Geran No. 54943, Lot No. 27680, Seksyen 39, Bandar Petaling Jaya, Daerah Petaling, Negeri Selangor ("Tanah Tersebut") termasuk dan tidak terhad kepada pengeluaran ke atas Pemohon Pertama Notis-Notis dalam Borang A, E dan F masing-masing menurut Seksyen 4, 8, 10 dan 11 Akta Pengambilan tanah 1960 ketigatiganya bertarikh 17.11.2014. 22.12.2014 dan 22.12.2014 ("Notis-Notis tersebut"); b) Suatu perintah Larangan dikeluarkan melarang Responden Pertama daripada meneruskan sebarang tindakan berturutan dengan Keputusan tersebut dan Notis-Notis tersebut dan daripada membuat suatu awad selepas daripada itu; c) Suatu Deklarasi bahawa sebarang tindakan-tindakan tercadang oleh Responden-Responden sama ada secara kumulatif atau secara perseorangan atau melalui mana-mana ejen-ejen atau pengkhidmat-pengkhidmat atau selainnya yang diperhitungkan untuk melaksanakan sebarang langkah atau mempunyai kesan menafikan Pemohon-Pemohon akan kegunaan, penikmatan dan pembangunan Tanah tersebut berturutan dengan kelulusan-kelulusan yang sebelum ini diberikan termasuk pelan tatatur terpinda yang didaftarkan oleh Responden Kelima sebagai JPBD/B9/34/91/PD melalui apa jua cara termasuk pemakaian Akta Pemerolehan Tanah adalah batal dan tidak sah; dan d) Tiada perintah terhadap kos. [24] Aggrieved with the decision, the first, second, third, fifth and sixth respondents filed notices of appeal to this Court as stated in paragraph [2] above. The Appeals [25] Before us the parties argued on 3 issues:

(ii) acquisition of the subject land;

(iii) application of doctrine of estoppel. The Respondents' Submission/Appeal [26] On legitimate expectation which was raised as the main issue before us, learned counsel for the respondents submitted that before legitimate expectation could be raised, the applicants need to show that the respondents have made any legitimate representation to the applicants. And if there was a representation, whether the public authority had acted in breach of that representation. [27] On the argument raised by the applicants that they had planned and submitted for "Development Order" and as such had legitimate expectation to carry the project accordingly, learned counsel for the respondents submitted that the argument devoid any merit because if it is to be accepted, the public authority will never be able to commence any public interest project due to everybody affected by any acquisition would raise the similar arguments. It was further submitted that the applicants can be compensated by compensation arising out of the intended acquisition which was made for public purpose "Bagi Tujuan Menaiktaraf Simpanan Jalan 2 Lorong Kepada 3 Lorong, Jalan Tanjung Bandar Utama Damansara Ke Seksyen 39 Bandar Petaling Jaya, Selangor". [28] On the contention of the applicants that the State Authority and Lembaga Lebuhraya Malaysia (LLM) had given an assurance that once the construction of Jalan Hilir is completed, the subject land will be given back to the applicants, it was submitted for the respondents that the letter dated 13.9.1991 issued by the LLM did not involve the State Authority who is the acquiring authority. It was further submitted that the LLM has no authority to represent or act on behalf of the State Authority since under the law any acquisition can only be made by the land administrator on behalf of the State Authority. [29] On the contention of the applicants that the applicants had relied on the commitment given by the former Menteri Besar of Selangor on the alternative proposal with a grant of RM1 million, it was submitted for the respondents that such conditional proposal was made by the former Menteri Besar in his personal capacity and never been intended to bind the State Authority. [30] Several authorities were cited to support the respondents' argument, including the Court of Appeal decision in LBCN Development Sdn Bhd & Anor v Pengarah Tanah dan Galian Selangor & Ors [2014] 3 CLJ 970; Law Pang Ching & Ors v Tawau Municipal Council [2010] 2 CLJ 821; North East Plantations Sdn Bhd v Pentadbir Tanah Daerah Dungun & Anor [2011] 2 CLJ 392; the Federal Court decisions in Majlis Perbandaran Pulau Pinang v Syarikat Kerjasama-sama Serbaguna Sg Gelugor Dengan Tanggungan (supra); North East Plantations Sdn Bhd v Pentadbir Tanah Daerah Dungun & Satu Lagi [2011] 4 CLJ 729; and the High Court case in Zaiton Musa Iwn Kerajaan Negeri Johor [2012] 1 CLJ 1047. [31] Hence, it was submitted that the learned High Court Judge has erred in law and facts in finding that the applicants legitimate expectation is applicable to bar the respondents in particular the State Authority from exercising its statutory power to acquire the subject land under section 3(1)(a) of the LAA 1960 for public purpose when the applicants legitimate expectation cannot override section 8(3) of the LAA 1960 based on the principle laid down in North East Plantations Sdn Bhd v Pentadbir Tanah Daerah Dungun & Anor (supra) that the doctrine of legitimate expectation "cannot and should not override the express statutory power vested in the State Authority". [32] On the acquisition of the subject land, learned counsel for the respondents submitted that the learned High Court Judge has totally ignored the principle enunciated in the case of LBCN Development Sdn Bhd & Anor v Pengarah Tanah dan Galian Selangor & Ors (supra) where it was held that "The scheme of the Land Acquisition Act 1960 does not give any powers in a personal capacity in the manner complained of against the 5th defendant. Under s. 3. Acquisition is done by the 'State Authority'. The 5th defendant (Menteri Besar) at the most is a mouth piece for the 'State Authority' or its organ." [33] It was further contended that the purpose of acquisition of the subject land is to upgrade Jalan Tanjung from 2 ways traffic to 3 ways traffic for public usage and to elevate massive traffic congestion in the surrounding area of Bandar Utama. The sixth respondent has spent the sum of RM3,159,674.00 to repair and upgrade Jalan Tanjung from 2 ways traffic to 3 ways traffic before it was blocked by the applicants. It was submitted that Jalan Tanjung has a strategic importance in organizing the distribution of traffic and serves one of the alternative access across NKVE into SPRINT Highway inspite of using Persiaran Tropicana and Persimpangan Surian. It is the closest and fastest route heading eastward toward the SPRINT Highway from Tropicana. The trip that was originally takes less than 2 kilometers with a ride time of 3 minutes will turn to 6 kilometers with a ride time of 12 minutes if Jalan Tanjung is to be closed. Thus the acquisition of the subject land is significant and necessary for the respondents to exercise its public function as the state government and local authority in overcoming severe traffic congestion along Jalan Tanjung and its surrounding connecting to the main road Lebuh Bandar Utama and will benefit a general interest of the public as a whole. [34] It was further submitted that the acquisition of the subject land is for public purpose and not solely for Tropicana Development as the upgrading of Jalan Tanjung will benefit the public and in conformity with the test of "public purpose" in S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204 where the court said "... the expression 'public purpose' is incapable of precise definition...But in my view, it is still best to employ a simple common sense test, to see whether the purpose serves the general interest of the community." [35] On the finding of the learned High Court Judge that the proposed traffic mitigation measures does not require the acquisition of the subject land based on the acceptance of the former Menteri Besar to the alternative proposal with a grant of RM1 million, it was submitted for the respondents that there was no conclusive agreement reached between the former Menteri Besar and the applicants based on the correspondences between the applicants in two letters in Exhibit 28 and letter of conditional acceptance by Menteri Besar [Exhibit 28 at Rekod Rayuan Bahagian C Jilid 3(3)]. It was further submitted that the applicants' counter proposal to have a by-pass road was never agreed by the Menteri Besar. [36] On the issue that the re-acquisition of the subject land was made in mala fide by the respondents, it was submitted that there was no stay order against the acquisition pending appeal and that the granting of the relief sought in the first judicial review application was not on the acquisition itself but merely on procedural defect i.e. Form A was not issued. It was argued that the finding of the High Court that the action of re-acquisition as 'blatantly abuse of power' was wrong. The Applicants' Submission/Appeal [37] Learned counsel for the applicants submitted that the applicants have a legitimate expectation that the subject land would be returned to them upon the completion of Jalan Hilir. It was argued that the temporary access (Jalan Tanjung) was never meant to be a public road in the amended layout plan. It was further submitted that the re-acquisition of the subject land resulted in such unfairness to the applicants amounting to an abuse of power justifying intervention by the court. It was submitted that the High Court had correctly applied the principle of legitimate expectation. Several authorities were cited to support the applicants' argument: Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasamasama Serbaguna Sungai Gelugor Dengan Tanggungan (supra); Regina v North and East Devon Health Authority, Ex Parte Coughland [2000] 2 WLR 622; Ng Siu Tung v Director of Immigration [2002] HKLRD 561. [38] On the point of abuse of power, it was submitted that the High Court correctly rejected the respondents' contention that the purported acquisition will alleviate the traffic congestion. It was further contended that the finding of abuse of power was further evinced by the conduct of the sixth respondent while the first judicial review was pending. The sixth respondent imposed, inter alia, a condition on Bandar Utama Capitol Sdn Bhd to surrender the subject land in granting planning approval of another building project of the applicants in the area. It was contended that such condition is made mala fide which aims to pressure the applicants and to render the judicial review academic. Our deliberation and decision Principles of Judicial Review [39] Before we embark on the discussion of the issues raised in this appeals, let us first state the law and principle in judicial review. [40] The established principle in judicial review cases is that judicial review is not about challenging decision but it is about decision making process. In Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 6 CLJ 473, the Court of Appeal states that: "[15] Judicial review is not concern with reviewing the merits of the decision but rather the decision making process itself. Lord Hailsham of St. Marylebone LC in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at 1160, [1982] 3 All ER 141 at 143 puts it politely in this manner: [16] The legal positions in England, Hong Kong and Malaysia have always been that in judicial review proceedings, the court's sole function is simply to scrutinize the decision-making process and not to question the decision itself...". [41] It must be shown to the satisfaction of the Court that the decision which the applicants sought to quash is illegal, irrational, made with procedural impropriety and disproportionate. In the well-known case of Tenaga Nasional Bhd v Ong See Teong & Anor [2010] 2 CLJ 1, Ausgustine Paul FCJ said: [38] To begin, it must be reminded that the respondents' application before the High Court is for judicial review on the decision made by an administrative body. It is common ground between the parties that in such proceedings, the court will not conduct an examination into the merit of the decision but rather to the decision-making process unless the decision is illegal, irrational, made with procedural impropriety and disproportionate...". Legitimate expectation of the applicants [42] As alluded earlier, the crux of the applicants' case for judicial review is that the decision or action of the respondents had affected the rights and the legitimate expectation of the applicants. [43] The learned High Court Judge in paragraph (20) of his Grounds of Judgment gave the following reasons for his findings: a) The crux of the Applicant's case for Judicial Review is that the decision or action of the Respondents had affected the rights and the legitimate expectation of the Applicants. b) It was not disputed that the planning authority unilaterally amended the development plan and requested the Applicants to construct Jalan Hilir on its own costs and without any compensation. c) Pending the construction of Jalan Hilir, Applicants were supposed to give a temporary access to the Tropicana. The Applicants abided the request to provide temporary access to the Tropicana Developments. d) I would like to emphasis it is also not in dispute that the Respondents had given assurance once the construction of Jalan Hilir completed, a temporary access will be given back to the Applicants. e) Therefore I find that the temporary access was never meant to be a permanent road. f) Based on this undisputed fact, principle of legitimate expectation surely applies as the Applicants are expected to be given back the subject land upon completion the construction of Jalan Hilir. [44] Learned counsel for the respondents argued that the learned High Court Judge has erred in his findings in para (20) of the Grounds of Judgment for the following reasons:

1. Tropicana Golf & Country Resort Sdn Bhd. Level 15 Shahzan Prudential Tower 30 Jalan Sultan Ismail 50250 Kuala Lumpur (u/p: En. Harminder Singh)

2. Damansara Jaya Sdn. Bhd. 1, Persiaran Bandar Utama Bandar Utama 47400 Petaling Jaya Selangor Darul Ehsan (u/p : En. Joseph S.K. Tan) Tuan, PER : (A) CADANGAN PEMBANGUNAN DI ATAS LOT 2813, MUKIM SG. BULOH DAERAH PETALING : JALAN KELUAR/MASUK (OLEH TROPICANA GOLF AND COUNTRY RESORT SDN. BHD.)

2. We are in agreement to your proposal to connect directly onto Sprint Highway bypassing Jalan Tanjung as stated in paragraph 3 in your letter. We hope that you can implement the proposal until completion subject to all technical requirements and procedures set out (by) the relevant authorities.

3. In consideration to this, the State Government and Majlis Daerah Petaling will be giving you RM1 million grant upon completion of the said road.

4. However, due to public interest, Jalan Tanjung will remain open to public at existing condition.

5. We thank you for your proposal to help ease the traffic condition at the area and your cooperation to the State Government. Thank you. Kind regards sg. (TAN SRI DATO' ABDUL KHALID BIN IBRAHIM) Dato' Menteri Besar Selangor cc. Y.BHG. DATO' HJ MOHAMAD ROSLAN BIN SAKIMAN Datuk Bandar MBPJ Majlis Bandaraya Petaling Jaya (MBPJ) Jalan Yong Shook Lin 46675 Petaling Jaya. YB PUAN ELIZABETH WONG Ahli Majlis Mesyuarat Kerajaan Negeri Pejabat EXCO Tingkat 2, Bangunan SSAAS 40503 SHAH ALAM YB TUAN RONNIE LUI THIAN KHIEW Ahli Majlis Mesyuarat Kerajaan Negeri Pejabat EXCO Tingkat 15, Bangunan SSAAS 40503 SHAH ALAM YB TUAN SIVARASA RASIAH Ahli Parlimen Subang No.3, Jalan 14/31 46100 Petaling Jaya PENASIHAT UNDANG-UNDANG, MBPJ Majlis Bandaraya Petaling Jaya (MBPJ) Jalan Yong Shook Lin 46675 Petaling Jaya PENGARAH JABATAN KEJURUTERAAN, MBPJ Majlis Bandaraya Petaling Jaya (MBPJ) 46675 Petaling Jaya Y.BHG. DATO' MANPAL SINGH President of Bura No.35,BU 4/2 Bandar Utama 47800 Selangor." [52] Based on these two purported letters, learned counsel for the applicants argued that the applicants have a legitimate expectation that the subject land would be returned to them upon the completion of Jalan Hilir. It was contended that the acquisition of the subject land resulted in such unfairness to the applicants and an abuse of power on the part of the respondents. It was also contended that the acquisition exercise is done for inadmissible purpose or on irrelevant grounds that is being done for the purpose of assisting Tropicana Development, not for any public purpose. It was argued that the second respondent as the acquiring authority failed to take into consideration the assurance given to the applicants by LLM and the Menteri Besar of Selangor, that once the construction of Jalan Hilir completed Jalan Tanjung will be closed and the applicants can have the subject land back. It was also submitted that the alternative route proposed by the applicants to the Menteri Besar was accepted by the Menteri Besar and the acquisition became unnecessary. [53] Learned counsel for the respondents, on the other hand, submitted that in order for legitimate expectations to exist, the applicants must show that the representation made by the respondents gave direct and clear undertaking. The applicants reliance on representation that forms an undertaking is based on the letter dated 13.9.1991 from the Ketua Pengarah Lembaga Lebuhraya (LLM) to the first applicant and Tropicana Development and secondly, the letter from Menteri Besar of Selangor dated 10.12.2009. It was further contended that notwithstanding the approval of the layout plan for a such major scale development in Bandar Utama and surrounding area by the Jabatan Perancang Bandar dan Desa Negeri Selangor in 1989, the requirement for public purpose will arise or foreseeable and land acquisition exercise is expected to be carried out by the state authority for public benefit. [54] It was further contended that the applicants did not lodge any appeal or challenge on the amendment to the layout plan made by the respondents in 1991 under the Town and Country Planning Act 1976 and the times for such has passed. The amendment made to layout plan will cater for the new road access not only to the applicants but also to Tropicana Development. [55] We observed from the evidence that the first applicant's layout plan was approved by Jabatan Perancang Bandar dan Desa (JPBD) in 1989. JPDB amended the first applicant's plan in 1991. The amendment among others contained Jalan Hilir as a means of access to both Bandar Utama and Tropicana. The first applicant accepted the amended layout plan and proceeded to conclude "Jalan Damansara Link Overhead Bridge Agreement" with Tropicana for the benefit of their development. [56] What is so plain to us is that there is no evidence that the State Authority made any representation or undertaking to the applicants that the amended layout plan will not be affected by a compulsory acquisition exercise. Similarly, there is no evidence that the State Authority had given the assurance to the respondent that once the construction of Jalan Hilir is completed, the temporary access road (Jalan Tanjung) will be given back to the applicants and that the temporary access was never meant to be a permanent road. In fact, it was the first applicant's letter dated 9.12.2009 that suggested to construct by-pass which connected directly onto SPRINT Highway, by-passing Jalan Tanjung. In response to the first applicant's letter, the Menteri Besar insisted that "...due to public interest, Jalan Tanjung will remain open to public, at existing condition". Following that, on 15.12.2009 the applicants made a counter-proposal to the Menteri Besar on the "Proposed By-pass For Direct Access Onto Sprint Highway" but there was no response forthcoming from the office of Menteri Besar. The record also showed that the applicants never secured any agreement from the Menteri Besar or the State Authority on their proposal. From the facts and circumstances we have highlighted above, we are of the view that there is no representation or assurance made by the Menteri Besar or by the State Authority that the acquisition of the subject land is not necessary or never been intended. [57] In LBCN Development Sdn Bhd & Anor v Pengarah Tanah Galian Selangor & Ors (supra), the Court of Appeal explained that "The scheme of the Land Acquisition Act 1960 does not give any powers in personal capacity to the Menteri Besar (the 5th defendant). Under s. 3, acquisition is done by the State Authority. The Menteri Besar at the most is a mouth piece for the State Authority or its organ." Thus, it is our view that the purported Menteri Besar's 'undertaking' is just a red herring on the part of the applicants. [58] We turn now to the LLM's letter. We observed that the LLM's letter dated 13.9.1991 was a reply to the applications made by the first applicant and Tropicana Development to LLM for the benefit of their developments. We note that the LLM's letter was never copied or forwarded to any of the respondents/appellants here. As alluded earlier, the applicant must show that the State Authority or the respondents/appellants here gave direct and clear undertaking. By reading the LLM's letter, we are in the agreement with the respondents that the LLM's letter does not bind the respondents and the State Authority. In other words it is not a decision of the decision makers, i.e. the first, second, third and fifth respondents. We are mindful that the applicants may have some reasonable basis or expectation but the LLM's letter was never issued on behalf of the respondents or with instruction of the respondents. In Darahman bin Ibrahim & Ors v Majlis Mesyuarat Kerajaan Negeri Perlis & Ors [2008] 4 MLJ 309, the Court of Appeal held that the representations can only be made by people having the authority under the law. [59] In light of the foregoing, we are inclined to agree with the respondents' submission that the learned High Court Judge has erred in his finding that the planning authority unilaterally amended the layout plan on 31.5.1991. We agree with the respondents that the LLM's letter showed that the requirement to provide temporary access was imposed by LLM as a result of the first applicant's own application to build an overhead bridge where cost sharing arrangement was agreed between the first applicant and Tropicana Development. It would be irrational on the part of the applicants after 23 years from the "Jalan Damansara Link Overhead Agreement" for the applicants to claim now that all steps taken by the applicants were to its detriment in complying with the amended layout plan. Bearing in mind that the policy-makers have the discretion to change their policies, we do not find that the action of the respondents to be illegal, irrational or unfair to the applicants. [60] Therefore, in the factual matrix of this case, the doctrine of legitimate expectation should not be enforced against the respondents where respondents had acted within its statutory powers in the interest of a larger section of the community. In any event, the second applicant as the registered owner of the subject land is entitled to compensation under the LAA 1960. Acquisition of the subject land [61] We now come to deal with the second issue, the acquisition of the subject land. [62] On the issue of acquisition of the subject land, the learned High Court Judge, inter alia made the following findings (para 20 of the Grounds of Judgment): "(h) In addition to the above, I also make a finding that the act of the Respondents serving on the Applicants Form E and F is an abuse on two grounds. Firstly, it is not in dispute that the Form E & F were issued with full knowledge that an Appeal was pending. Secondly, it is also noted the First Judicial Review Application was dismissed by the Court. I am of the view the act of the Collector issuing Form E & F is blatantly an abused of power. Case laws have repeatedly enunciated that the power to acquire must be exercise reasonably.