Amitabha Guha v Pentadbir Tanah Daerah Hulu Langat (B-01(A)-217-03/2018)

This is an appeal under the Land Acquisition Act 1960 [“LAA”] by the Appellants against the decision of the learned High Court Judge, given on 16.3.2018, in awarding an additional sum of RM1,703,566.92 in respect of the Acquired Lands.

The Appellants were the registered proprietors of the properties comprising two contiguous parcels of land identified as Lot 719 and Lot 1286, both in Mukim of Kajang, District of Hulu Langat, Selangor [“Subject Properties”]. A portion of Lot 719 and Lot 1286 [“Acquired Lands”] had been acquired by the Respondent for the construction of Sistem Lingkaran Lebuhraya Kajang [“SILK Highway”].

The Appellants were also the registered proprietors of four contiguous lots, namely, Lot 716, 717, 718 and 1285, all in Mukim 3 of Kajang, District of Hulu Langat, Selangor, adjoining the Subject Properties [“4 Contiguous Lots”].

The map showing the Subject Properties and the 4 contiguous Lots is reproduced below: Note: the black shaded areas were the Acquired Lands for SILK Highway. 4

The declaration of the intended acquisition (Form D) of the Acquired Lands for the SILK Highway was gazetted on 25.11.1999.

After the enquiry, the Respondent issued its award of compensation dated 7.4.2000 for the following amounts: Lot No Title and Area Area Acquired Compensation Awarded [RM] 719 1.9326 hectares 2112.29m2 (=0.21129 hectares) 228,127.32 1286 1.7579 hectares 1124 m2 (=0.1124 hectares)

121.392.00 Total Compensation 394,519.32

The awarded compensation sum of RM349,519.32 was paid to the Appellants on 8.5.2000 which the Appellants accepted under protest.

The Appellants thereafter filed objections to the awarded compensation sum which were then referred to the High Court for determination.

The High Court delivered its decision on 30.11.2010 awarding the total sum of RM1,057,740.98, an increase of RM708,221.66. The excess sum was paid to the Appellants on 6.6.2011.

The Appellants then appealed to the Court of Appeal. While pending the hearing in the Court of Appeal, the Appellants filed an 5 application to refer certain constitutional questions to the Federal Court, which was allowed by the Court of Appeal on 17.4.2013.

On 20.4.2017, the Federal Court decided the constitutional question and remitted the matter to the Court of Appeal. In view of the Federal Court’s decision, the Court of Appeal on 25.5.2017 remitted the matter to the High Court for rehearing.

The High Court reheard the matter and delivered its decision on 16.3.2018 and made an award in the total sum of RM2,761,307.90 which comprised of the following: No.

Market value of the acquired potion of Lot 719 (computed at RM410 per square metre) 866,038.90

Market value of the acquired portion of Lot 1286 (computed at RM410 per square metre) 460,840.00

Injurious affection in respect of the remainder of Lot 719 (computed at RM41 per square metre) 705,774.00

Injurious affection in respect of the remainder of Lot 1286 (computed at RM41 per square metre) 674,655.00

A building situated on the acquired lands 54,000.00 Total (RM)

Dissatisfied, the Appellants brought the present appeal against the decision of the High Court dated 16.3.2018. 6 Questions of Law 14. The Appellants raised the following questions of law in this appeal: Schedule to the Land Acquisition Act 1960 [LAA], the principle of equivalence and the decision of the Federal Court in Semenyih Jaya Sdn. Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 [Semenyih Jaya], the High Court was right to disregard some of the Appellants’ comparables including the acquisition comparables – that is, the amount of compensation awarded by the Land Administrator for lands (which were situated within the vicinity of the subject lands) when assessing the market value of the Acquired Lands [“Comparable Acquisition Issue]; Acquired Lands were held under the category of land use “Bangunan” with express condition “Bangunan Perniagaan” when assessing market value of the

injurious affection was awarded for the remainder of the Acquired Lands (owned by the Appellants, of 7 which a portion was compulsorily acquired by the Respondent under the LAA);

(ii) the said 4 Contiguous Lots suffered from the same negative impact as the remainder of the Acquired Lands and were restricted to only one inadequate access road hence significantly impairing its development potential; and

(iii) both assessors awarded injurious affection for the said 4 Contiguous Lots. [“Injurious Affection for Contiguous Lots Issue”] LAA. [Questions (4) and (5) are inter-related and are taken together as “Meaning of Possession Issue”. 8 (Amendment) Act 2016, that is the Amending Act No. A1517 [“the Amending Act”] – in particular, the amended rate of late payment charges, that is, 5% per annum under sections 32 and 48 of LAA – which came into force on 1 December 2017, apply to land reference proceedings pending before the High Court on 1 December 2017 in view of section 43 of the Amending Act. [“Retrospective Issue”]; and Question (1): Comparable Acquisition Issue 15. For the purpose of determining the market value of the Subject Properties, both the Appellants and the Respondent had engaged their respective valuers.

The Appellants’ valuers, Jones Lang & Wooton [“JLW’] , selected six comparables of which three are based on acquisition compensation awarded by the Government for other lands acquired for public purposes in the larger vicinity of the Subject 9 Properties, that is, Acquisition Comparables 1 to 3 and the rest are sales of similar properties, that is, Sale Comparables 1 to 4.

The Respondent’s valuers, Jabatan Penilaian dan Perkhidmatan Harta (JPPH), also adopted the comparison method and had selected 8 sales of properties, that is, Sale Comparables 1 to 8 respectively.

Of the 8 selections chosen by the Government valuer, the Government assessor who sat with the learned High Court Judge chose Sale Comparable 4 as the most suitable comparable to determine the market value. He opined: Hanya Perbandingan 4 (Lot PT 12066 Mukim Dengkil) yang sesuai digunakan sebagai asas penentuan nilai tanah. Hanya faktor lokasi sahaja yang perlu dilaraskan. Pelarasan Pergandingan 4. Lot PT 12066 mukim Dengkil Nilai asas RM373.94 smp (+) lokasi 10% x 1.1 RM411.344 smp Katakan RM410.00 smp1

The private assessor who sat with the learned Judge, however, chose two best comparables, namely, Sale Comparable 1 selected by the private valuer and the Sale Comparable 4 chosen by the Government valuer. He opined2: 1 Ikatan Teras Penghakiman Bersama, Lampiran 1, pages 35-40, paragraph iv) page 37. 2 Ikatan Teras Penghakiman Bersama, Lampiran 2, pages 41-46, paragraph 5.2, page 44. 10 Penyelarasan Perbandingan Perbandingan Swasta No. 1- Sebahagian Lot 5452 Mukim dan Daerah Petaling Faktor Penyelarasan (+,-) Analisa (RM699 smp) Masa 0% Faktor-faktor lain Lokasi -20% Keluasan 0% Jenis Pegangan 0% Kategori Kegunaan Tanah 0% Pembangunan Setempat -10% Akses -5% Jumlah Penyelarasan (%) -35% Nilai Penyelarasan, katakan RM454.00 (RM42 skp) Perbandingan Kerajaan No. 4 – Lot PT12066 Mukim Dengkil Faktor Penyelarasan (+,-) Analisa (RM373 smp) Masa 0% Faktor-faktor lain Lokasi -10% Keluasan +10% Jenis Pegangan 0% Kategori Kegunaan Tanah +10% Pembangunan Setempat 0% Akses 0% Jumlah Penyelarasan (%) +10% Nilai Penyelarasan, katakan RM410.00 (RM38 skp) Berdasarkan kepada penyelarasan di atas, nilai dianggarkan pada RM430 semeter persegi.

In arriving at the market value of the Subject Properties, the learned trial Judge adopted only one sale comparable which is Sale Comparable 4 in respect of the property identified as PT 11 12066, Mukim Dengkil, Cyberjaya, which was selected by the Government assessor as well as the private assessor as the most suitable comparable, and disregarded all other comparables including the Acquisition Comparables. His reasons are as follows: 7 Perbandingan Swasta 16. Saya telah meneliti 7 perbandingan swasta. Saya mendapati 4 bukti perbandingan tersebut (perbandingan 4 hingga 7) hendaklah ditolak atas alasan 4 bukti perbandingan ini pindah miliknya dibuat dalam tempoh tahun 1995 hingga 1999.

Saya juga menolak Perbandingan 3 atas alasan didapati pindah milik ke atas perbandingan ini tidak lengkap kerana ianya melibatkan pindahmilik 3 lot.

Saya juga menolak perbandingan 1 kerana ianya tidak didaftarkan (Pengapit Swasta menggunakan lot ini sebagai lot perbandingan)

Saya berpendapat hanya perbandingan kedua (Lot plot no Presint 2.2 Pusat Bandar Shah Alam) yang boleh dijadikan asas penilaian. (Perbandingan ini telah diguna sebagai perbandingan oleh Pengapit Kerajaan). 8 Perbandingan Kerajaan 20. Saya menolak 7 bukti perbandingan kerajaan kerana bukti-bukti perbandingan ini merupakan tanah-tanah untuk 12 perumahan. Walaupun kesemua tujuh bukti perbandingn ini terletak berhampiran dengan lot subjek, ianya tidak boleh dijadikan asas dalam penentuan pampasan kerana ketujuh-tujuh perbandingan ini berbeza dari segi kategori dan syarat nyata lot subjek iaitu kategori bangunan untuk perniagaan.

Saya mendapati perbandingan terbaik adalah perbandingan empat Lot PT 12066 Mukim Dengkil. Saya juga mendapati kedua-dua pengapit juga menggunakan perbandingan ini.

Bagi perbandingan 4, Pengapit Kerajaan berpendapat hanya faktor lokasi sahaja yang perlu diselaraskan dengan kadar +10%. Selepas pelarasan, Pengapit Kerajaan mendapati kadar selaras bagi perbandingan 4 adalah pada kadar RM410.00 semeter persegi.

Pengapit swasta juga menggunakan perbandingan 4 sebagai bukti perbandingan dan selepas pelarasan faktor-faktor berikut:- I. -10% faktor lokasi II. +10% faktor keluasan III. 0% jenis pegangan IV. +10% kategori penggunaan tanah V. 0% bagi faktor pembangunan setempat dan akses. Kadar pelarasan adalah pada RM410.00 13

Bagi perbandingan 4, saya bersetuju dengan kaedah-kaedah pelarasan yang digunakan oleh Pengapit Kerajaan dan Pengapit Swasta.

Saya memutuskan kadar yang munasabah nilaian tanah subjek bagi kedua-dua lot adalah pada kadar RM410.00 (x2112.29mp (lot 179) dan 1124mp (lot 1286) jumlah RM1,326,878.90.

Saya menolak perbandingan 1 Swasta yang juga digunakan oleh Pengapit Swasta atas alasan ianya tidak didaftarkan selepas pelarasan Pengapit Swasta mendapati kadar terlaras adalah RM454 semeter persegi.

It is the contention of the Appellants that the learned trial Judge was wrong to disregard the following comparable acquisitions relied on by the Appellants’ valuer, JLW, because they fall within the definition of “….any suitable method of valuation” envisaged under paragraph 1(A) of the First Schedule of the LAA. ITEM TITLE DETAILS TRANSACTION

Part of Lot No. PT 16731, Mukim and District of Petaling, Selangor Darul Ehsan (Date of Acquisition : 7.11.1996) RM1,076.39m2 2. Lot No 28063, Mukim and District of Petaling, Selangor Darul Ehsan (Date RM1,022.57m2 14 of Acquisition : 7.11.1996)

Part of Lot No. 11195, Mukim Of Kajang, District of Hulu Langat, Selangor Darul Ehsan (Date of Acquisition: 15.8.1996)

Learned counsel for the Appellants submitted that although the acquisition comparables took place on 7.11.1996 and 15.8.1996 respectively, which is more than two years from the valuation date, that is, 25.11.1999, they are still relevant as the two-year limitation referred to in the First Schedule of the LAA only applies to the value of sale comparable. In any event, as 1996 is only one year outside the two-year limitation, the value can be adjusted to take into account the time factor.

Learned counsel for the Appellants further submitted that Acquisition Comparable 3 is especially relevant as it has the same category of land use (that is, Building/Commercial) and located in the same District of Hulu Langat and Mukim of Kajang. It merely requires an upward adjustment for time factor.

Learned Assistant State Legal Adviser (ALA) for the Respondent submitted that based on paragraph 1 (1A) of the First Schedule of the LAA, only sale comparables can be used to assess the market value of the Subject Properties. Acquisition comparable is not envisaged in the said paragraph of the First Schedule. 15

Another reason why the acquisition comparable is not suitable, as submitted by the learned ALA, is as explained in paragraph 4 of the Respondent’s rebuttal Report3 as follows:

Sub-paragraph 1 (1A) of the First Schedule of the LAA states:

Our reading of the word “any suitable method of valuation” in the said provision is that the valuer may, for the purpose of determining the market value of the scheduled land, use any suitable method of valuation as long as the price of recent sales of 3 CB Jilid 1, pages 196-197, especially page 196. 16 land of similar features of the scheduled land located in the vicinity of the scheduled land may also be considered but such sales must be within two years period from the date of the acquisition. It clearly shows that comparable sales in the vicinity of the scheduled land is an important component to be considered in assessing the market value of the acquired land but nowhere can it be read to suggest that only sale comparable can be considered for assessing the market value.

In our view, the court is not limited to only sale comparable, but can also use any suitable method of valuation, including acquisition comparable. We find support in the Federal Court case of Bertam Consolidated Rubber Co Ltd v The Collector of Land Revenue, Province Wellesley North Butterworth4, where Mohamed Azmi FC [as he then was] upheld the lower court’s decision to use comparable acquisition award to assess market value and observed as follows at page 165, paragraphs F-I, right column; page 166, paragraphs A-B, left column: … In considering the three previous acquisition awards in respect of Bertam Estate, the learned Judge reminded himself of what was stated at page 205 of Aggrawalla, 3rd Edition, which says that evidence of previous acquisition awards which were accepted are relevant to show the market value, and that prices which are given by the Collector to people whose lands are acquired and who accepted them are valuable evidence in ascertaining the market value of the property. Although he rejected Mr. Loh's valuation, he held in favour of the appellants by enhancing the Collector's award from $12,600/- to $15,000/- per acre. In doing so he used KEMAS Centre acquisition on 4 [1984] 1 MLJ 164. 17 August 30, 1979 as the cornerstone of his valuation. As set out above, KEMAS Centre was acquired at $20,000/- per acre from the appellants. The two acres for KEMAS Centre just as the 20 acres of subject land formed part of Bertam Estate. In our view, KEMAS Centre acquisition award which was offered and accepted by the appellants is relevant in determining the market value, but adjustments must be made as to size, time factor and other dissimilarities between the land previously acquired and the subject land. This the learned Judge had sufficiently done….

Further, Semenyih Jaya Sdn. Bhd. v Pentadbir Tanah Daerah Hulu Langat and another case 5 also held that land acquisition awards can also be used as a basis to determine market value. It held: [214] A pertinent observation is that para 1(1A) in the First Schedule was inserted by Act A999 so as to allow flexibility when assessing the amount of market value of a land acquired. Paragraph 1(1A) reads: In assessing the market value of any scheduled land, the valuer may use any suitable method of valuation to arrive at the market value provided that regard may be had to the prices paid for the recent sales of lands with similar characteristics as the scheduled land which are situated within the vicinity of the scheduled land and with particular consideration being given to the last transaction on the scheduled land within two years from the date with reference to which the scheduled land is to be assessed under subparagraph (1). 5 [2017] 3 MLJ 561. 18 [215] In view of the above, although comparable sales in the vicinity of the acquired land is an important component in the computation of market value of an acquired land, ‘any suitable method of valuation’ is also allowed. Therefore any appropriate method that serves to provide equivalent compensation to affected persons can be applied. Such methods may include compensation paid on the basis of replacement costs.

Be that as it may, we do not agree with learned counsel for the Appellants who submitted that the learned trial Judge had erred in failing to use the acquisition comparable in particular Acquisition Comparable No. 3, which, according to the Appellants, is “especially relevant”.

As noted earlier, the learned trial Judge was assisted by two assessors and they both had chosen Sale Comparable 4, that is, PT12066 as a suitable choice for determining the market value of the Subject Properties and decided to adopt the same.

A comparison of the Subject Properties, PT12066 and Acquisition Comparable No. 3 revealed as follows: Lot 719 Lot 1286 Sale Comparable 4 [PT 12600] Acquisition comparable

15.11.1999 (acquisition)

15.11.1999 (acquisition)

9.7.1999 (sale)

15.8.1996 (acquisition Award) Category Bangunan Bangunan Bangunan Bangunan Lease Perpetual Perpetual Perpetual Perpetual 19

1.9326 hectres

1.7579 hectres

61.959 mp

0.853 hectres Location (all fronted highway) Mukim Kajang Mukim Kajang Cyberjaya Mukim Kajang 33. After carefully comparing the Subject Properties, PT 12066 and Acquisition Comparable 3, we notice that Acquisition Comparable 3 and the Subject Properties share similarities in terms of their title, land use and category. Both are in the same vicinity and fronted the main road. There is however, a significant variance in terms of land area and the time of award. The land in Acquisition Comparable 3 is far smaller than the Subject Properties and the Court takes cognizance of the general knowledge that a smaller land generally fetches higher value. Also, the acquisition award was made three years prior to the valuation date of the Subject Properties. We note that the valuer JLW did not make any adjustment to these dissimilarities.

On the other hand, we also note that the Subject Properties and PT 12066 are similar in all respect except the locality and the land area. Cyberjaya is farther from the Subject Properties compared to Acquisition Comparable 4. PT 12066’s land area is also larger than the Subject Properties. 20

Given that both the Government and private assessors have opined that PT 12066 is the most suitable comparable for determination of the market value of the Subject Properties and considering that they have taken into account the dissimilarities and adjusted accordingly, we take the view that the learned trial Judge was not wrong in adopting PT 12066 as the most suitable comparable in arriving at the market value of the Subject Properties.

Accordingly, our answer to Question (1) is in the affirmative.

Learned counsel for the Appellants submitted that the learned trial Judge had failed to attribute the potential value of the Subject Properties because his lordship assumed that the category of land use for the Subject Properties was “general/no category”. Whereas the issue document of title to the Subject Properties6 as well as the issue document of title to the four contiguous lots 7 show the indorsement “Bangunan Perniagaan” thereon.

Learned counsel for the Appellants further submitted that the learned trial Judge also erred by relying on the Sale Comparable 4 in respect of PT 12066 in Cyberjaya which has limited potential commercial value (being a multimedia hub which was not fully developed at the time). Further, the land area in PT 12066 is much bigger than the Subject Properties (18.3 acres vs 0.8 acres) 8. 6 CBD (2) pages 440-446. 7 CBD(2) pages 424-439. 8 CBD (2) pages 301 -301 for Knight Frank’s comments on Cyberjaya comparable i.e. Sale Comparable 4 used by the government valuer. 21

Learned counsel for the Appellants submitted that if Sale Comparable 4 in respect of PT 12066 is accepted as a reliable comparable, there should be an upward adjustment for the market value to reflect the full potential commercial market value of the Subject Properties.

We find no merit in this contention, even though the learned trial Judge had erred in describing the category of land use of the Subject Properties as “general” when the actual category of land use was “bangunan” with express condition “Bangunan Perniagaan”, as the two assessors had correctly described the category of land use for the Subject Properties as “Bangunan/Perniagaan”.9 Subject Properties with the Sale Comparable 4 [PT 12066] and arrived at the market value of RM 410.00 (RM38 skp), which comes to the same market value as assessed by Government assessors.

Since the learned trial Judge had accepted the market value as assessed by the both assessors based on the Sale Comparable 4 [PT 12066], any effect of the mistake he had made in describing the Subject Properties’ category of land use as “General” has come to naught. 9 Ikatan Teras Penghakiman Bersame, Lampiran 2 pages 41-46, page 43/Lampiran 1 pages 35-40, page 35. 22

Accordingly, our answer to Question (2) is in the negative. However, for reasons given above, the consequence of the mistake on the part of the learned Judge has no negative effect on his assessment of the market value. Question (3): Injurious Affection for four Contiguous Lands

Learned counsel for the Appellants submitted that the High Court awarded injurious affection for the remaining of the Subject Properties at 10% of the market value on the basis that:-

prior to the acquisition, the Subject Properties were on the same level as the main road;

as the result of the acquisition and the construction of SILK Highway, the Subject Properties are ten feet lower than the highway level and the access road into and out of the Subject Properties are difficult and have limited site clearance.

It was submitted that notwithstanding that the 4 Contiguous Lots suffered the same “fate” as the Subject Properties, the High Court did not award any compensation in respect of the said 4 Lots.

It was submitted that both the assessors opined that injurious affection ought to be awarded for the 4 Contiguous Lots. As such, there is no rationale for the High Court not to award injurious affection for the same. 23

The Respondent, as we noted, did not seriously dispute this question other than saying that in Borang N10, the Appellants did not claim for injurious affection.

However, we do not agree that there is no claim for injurious affection for the 4 Contiguous Lots. Item 4(b) of Borang N states, “Pampasan tidak memberi pertimbangan kepada perkara-perkara dalam Jadual Pertama, Akta Pengambilan Tanah 1969.” It is clearly provided in paragraph 2(d) of the First Schedule under the title “Matters to be considered in determining compensation”, one of the matters to be considered is, “the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator’s taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner.” Thus, when the High Court failed to consider the injurious affection allegedly suffered by the 4 Contiguous Lots in determining the compensation, it clearly falls within item 4(b) of Borang N.

The “Alasan Penghakiman” showed that the learned Judge refused to award compensation for injurious affection for the 4 Contiguous Lots for the following reasons: Lot-Lot Baki

Saya telah meneliti hujahan pihak-pihak dan saya mendapati Pengapit Kerajaan berpendapat award IA pada kadar 1% daripada baki tanah. Pendapat beliau adalah sebagaimana berikut: 10 CB Jilid 1, page 5. 24 Pengiraan IA dan Severance untuk lot-lot berdampingan (Lot 716, Lot 717, Lot 718, Lot 1285). Pelan pengambilan yang dikemukakan oleh kedua-dua Penilai Kerajaan dan Penilai Swasta menunjukkan lot-lot ini tidak terlibat dengan pengambilan namun kesan dari pengambilan, lot-lot ini kehilangan direct access dari jalan utama. Walau bagaimanapun, lot-lot ini masih boleh di akses melalui Lot 719 yang merupakan akses utama sebelum dan selepas pengambilan. Pihak Lembaga Lebuhraya Malaysia (acquiring authority) telah bersetuju untuk menyediakan laluan (slip road) ke lot-lot ini yang memberi akses lebih baik dari jalan masuk sedia ada. Rebuttable Penilai Kerajaan dan lawatperiksa pada 28.2.2018 adalah dirujuk. Atas alasan tersebut saya berpendapat kadar 1% dari RM410.00smp wajar dipertimbangkan seperti berikut: Lot 716: 11,490 mp x RM4.10smp = RM47, 109.00 25 Lot 717: 14,019mp x RM4.10smp = RM57,447.90 Jumlah : RM104,586.90

Pengapit Kerajaan berpendapat 1% berdasarkan lot-lot tersebut kehilangan direct access dari jalan utama, walau bagaimanapun ketiga-tiga lot ini masih boleh diakses melalui lot 719 yang merupakan akses utama sebelum dan selepas pengambilan.

Pengapit Kerajaan juga berpendapat pihak LLM (acquiring authority) telah bersetuju untuk menyediakan laluan (slip [sic] road) ketiga-tiga lot ini yang memberi akses lebih baik dari jalan masuk sedia ada (rebuttal Penilai Kerajaan dan lawat periksa pada 28.2.2018 adalah dirujuk).

Manakala Pengapit Swasta berpendapat kadar yang berpatutan adalah 2% daripada baki tanah. Justifikasi Pengapit Swasta pada kadar 2% adalah atas alas an tanah baki akan lebih rendah dari cadangan lebuh raya dan meninggalkan kesan negatif pada akses. Walaupun ketiga tiga lot ini tidak terlibat dengan pengambilan, juga diberikan penjejasan memandangkan lot-lot ini secara tidak langsung 26 juga akan menerima kesan negatif kerana akses hanya melalui lot-lot yang terlibat dengan pengambilan.

Saya mendapati Pemohon tidak wajar dipampaskan untuk IA dan severance bagi ketiga tiga lot ini kerana kesan pengambilan keatas Lot 719 dan Lot 1286 tidak mejejaskan mana-mana bahagian lot-lot baki. Sebelum dan selepas pengambilan, lot-lot baki masih menggunakan akses yang sama (akses tunggal).

IA hanya dibenarkan sekiranya ada pembuktian penurunan nilai tanah, yang mana gagal dibuktikan.

As we have alluded to earlier, compensation for injurious affection is provided for under paragraph 2(d) of the First Schedule to the LAA. The Federal Court in Collector of land Revenue v Looi Lam, 11, per Raja Azlan Shah (CJ) (Malaya) (as he then was) held: Be it noted that our provision [paragraph 2(d) of the First Schedule of the Act] is stronger than the Indian, for ours provides that not only must regard be had to the damage actually sustained by the owner but also damage likely to be sustained.

It can be seen from the map at paragraph 4 above that of the 4 Contiguous Lots, Lot 716 adjoins Lot 717, Lot 717 adjoins Lot 718 11 [1981] 1 MLJ 300 held at page 301: 27 which adjoins Lot 719, that is, the acquired land. Like Lot 719, these three lots are first layer land fronting the trunk road before the acquisition. Before the acquisition, Lot 718 access to the trunk road was through Lot 719. Lot 2185 is a second layer land sharing the same boundary as Lot 719 and Lot 2186, that is, the other Acquired Lands. Prior to the acquisition, Lot 2185 had access through Lot 719.

It is to be noted that although the these 4 Contiguous Lots were affected by the acquisition in terms of the loss of access from the trunk road, this problem, however, has been remedied by the slip road built by LLM which provides better access for the 4 Lots [we believe “ketiga-tiga lot” in paragraph 43 of the grounds of judgment meant the 4 Contiguous Lots]. As noted by the learned Judge, Lot 718 and Lot 2185 continue to enjoy access to the main road through Lot 719 just as they did prior to the acquisition. To put in another words, the problem of access of these 4 Contiguous Lots to the main road no longer exists.

It is a fact that Lots 716, 717 and 718 are now lower in height compared to the SILK Highway. According to the private valuer, this has negative effect on the said lots. He did not however state what are these negative effects but we are inclined to think otherwise. Judging from the common sight of residential houses and shop lots built on the lower grounds along the highways and based on the improved accessibility through the slip road, it is not wrong for the learned Judge not to award damages in absence of evidence of damages likely to be suffered or has been suffered. 28

Accordingly, our answer to Question (3) is in the negative.

The general power to take possession of land that has been acquired in accordance with the LAA is provided for under Part II of the same Act.

Section 18 of the LAA states: Provided that the Land Administrator shall not take possession of any part of any land under paragraph (b) which is occupied by any building, except in accordance with section 20.

29

Reading the two provisions above, there is a clear distinction between the taking of possession under section 18 and the formal possession under section 22. We agree with learned counsel for the Appellants that the phrase “taking possession of the land” in sections 32 and 48 of the LAA should be accorded its ordinary meaning, and that is, following the definition in Collins English Dictionary, physical control or occupancy of land.

It is undisputed that prior to the issuance of the required notice of acquisition, the Appellants had on 19.9.1999 consented, upon SILK’s request, to let SILK’s contractor enter the Acquired Lands 30 for the purpose of carrying out works on the Acquired Lands. By a letter dated 22.9.1999 from SILK,12 SILK took physical possession of the Acquired Land.

Premised on the above fact that SILK had taken physical possession of the Acquired Lands on 19.9.1999, it was contended for the Appellants that the late payment charges awarded under sections 32 and 48 of the LAA must be computed from 19.9.1999 and not 31.5.2000 [the date stated in Borang K]. It was submitted that the learned Judge was wrong in law in holding that “taking possession of the land” means taking formal possession under section 22 of the LAA.

With respect, we are unable to agree with this proposition. Here are our reasons. Pursuant to section 18(a) of the LAA, the land administrator takes possession of the land only after the due process of inquiry and upon conclusion of the inquiry, the making of the award under section 14 of the LAA. However, situations may arise where there is urgent need to take possession of the land even before the conclusion of the inquiry.

In this respect, section 19 of the LAA provides for power to take possession in urgent cases, it states: Where any land, described in any notice in Form E given under section 10, is in the opinion of the State Authority urgently required for use for a public purpose, or for a public utility in the case of an acquisition under 12 CB Jilid 2, pages 422-423 31 paragraph 3(1)(b), the State Director may, on or after the expiration of fifteen days from the date of the giving of such notice, issue a Certificate of Urgency directing the Land Administrator to take possession of such land, subject to section 20. [Underline added]

Section 48 of the LAA, which is more relevant to the question at hand, states: If the sum which in the opinion of the Court the Land Administrator ought to have awarded as compensation is in excess of the sum which the Land Administrator did award as compensation, the award of the Court may direct that the Land Administrator to pay late payment charges on such excess at the rate of five per cent per annum from the date on which the Land Administrator took possession of the land to the date of payment of such excess to the Court or to the person interested.

It is clear from section 48 of the LAA, read together with section 18 of the LAA, that the Land Administrator is the only authorized body to take possession of the scheduled land. It is significant to note that the party taking possession of the Acquired Lands on 19.9.1999 was SILK and not the Land Administrator. There is no evidence that SILK took possession with the Certificate of Urgency issued under section 19 of the LAA. 32

Under the circumstances, the Respondent is under no legal obligation to pay the late payment charges for the period from 19.9.1999 until the formal possession on 31.5.2000 occupied by SILK. Nor should be Respondent be made to pay for the period occupied by SILK for to do so would impose unjustified financial burden on the Respondent.

Our answer to Question (5) is that the phrase “taking possession of the land” in section 48 of the LAA means physical possession of the land. However, for reasons aforesaid, we find that there was no possession taken by the Land Administrator on 19.9.1999. Question (6): Retrospective Issue 67. Learned counsel for the Appellants submitted that the learned Judge had erred in law in failing to appreciate that the provisions of the Land Acquisition (Amendment) Act 2016, that is, Amending Act No. A 1517 [“Amending Act”] which came into force on 1.12.2017 does not apply to the present land reference proceedings which were still pending before the High Court prior to 1.12.2017 when the Amending Act came into force.

Section 43 of the Amending Act states: All proceedings, actions or other matters required to be done under sections 3F and 28, subsections 37(2) and (3) of the principal Act which are still pending or if already in progress, immediately before the coming into operation of this Act, shall be continued or 33 concluded as if the principal Act had not been amended by this Act. [Underline added]

It was submitted that pursuant to section 43 of the Amending Act, since the present land reference proceedings were still pending before the Amending Act came into force, the pre-amendment rate of interest at 8% per annum should apply to the present case.

We agree with the submission of the learned ALA that section 43 expressly mentioned proceedings in relation to three provisions, namely, sections 3F and 28, subsections 37(2) and (3) of the LAA, which are still pending or in progress prior to section 43 of the LAA coming into force, shall not be affected by the amendment.

In response, learned counsel for the Appellants submitted that even if the Court finds that the wordings in section 43, does not have a retrospective effect for the proceedings under section 37(1) of the LAA, it should be nevertheless construed to have retrospective effect because the Amending Act did not expressly provide that section 30(1)(b) of the Interpretation Acts 1948 and 1967 shall not apply. Thus, there is doubt whether the legislature had intended to impair the existing right of the landowner to be awarded late payment chares at 8% instead of 5%, and an ambiguity must be construed in favour of the landowner. 34

The approach of the court in interpreting whether a new law is retrospective or prospective can be distilled from the Privy Council’s case of Yew Bon Tew & Anor v Kenderaan Bas Mara.13 In that case, the question for determination by the Privy Council was whether the Amendment Act applied retrospectively or prospectively. The Privy Council, inter alia, opined that “Whether a statute is to be construed in a retrospective sense, and if so to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and the relevant provisions of any interpretation statute.”

This view was shared by this court in Sim Seoh Beng @ Sim Sai Beng & Anor v Koperasi Tunas Muda Sungai Ara Berhad,14 which said: The traditional approach to the interpretation of statutes (which includes subsidiary legislation such as the Rules of the High Court 1980) in this area is contained in the general rule that, in the absence of express words or necessary implication, statutes affecting substantive rights are prospective while those affecting procedure are retrospective. In the case of rules of Court, there is a rider to the general proposition. It is this. A rule of Court should not be given an interpretation that would result in unfairness or produce manifest injustice: Bank of America, Etc. v 13 [1983] 1 MLJ, 1 p. 3 paragraphs C-D, left 14 [1995] 1 ClJ 491, page 495, paragraphs e-f, page 496, paragraphs a 35 Chai Yen [1981] 1 MLJ 198 at p 199 (an authority not cited to the judge or to us by either side). ……. In our judgment, the correct test to be applied to determine whether a written law is prospective or retrospective is first ascertain whether it would affect substantive rights if applied retrospectively. If it would then, prima facie that law must be construed as having prospective effect only, unless there is a clear indication in the enactment that it is in any event to have retrospectivity. Contra, where the written law does not affect substantive rights.

In the Federal Court’s case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd,15 notwithstanding that parties conceded that regulation 11(2) of the Licensee Supply Regulations 1990, post amendment in 2002, has retrospective effect, the Court took the opportunity to reiterate that it is a rule of construction that a statute should not be interpreted retrospectively to impair an existing right or obligation, unless such a result is unavoidable by reason of the language used in the statute (Yew Bon Tew & Anor v Kenderaan Bas Mara [1983] 1 MLJ 1 per Lord Brightman, delivering the advice of the Board).

The guiding principle that can be distilled from the cases above is that in general, in the absence of express words or necessary 15 [2014] 2 MLJ 749 36 implication, statutes affecting substantive rights are prospective while those affecting procedure are retrospective.

Our understanding from the close reading of section 43 of the Amending Act is that all pending proceedings, actions, and other matters under sections 3F and 28, subsections 37(2) and (3) of the LAA shall not be affected by the Amending Act; they are to continue as if the LAA has not been amended by the Amending Act. The necessary implication that can be drawn from the plain language in section 43 is that the Amending Act shall apply to all other pending actions which do not come within sections 3F and 28, subsections 37(2) and (3) of the LAA. Clearly, the present land reference proceeding which arose from the objection by the Appellants under subsection 37(1) does not come within the ambit of section 34. Accordingly, the post-amended rate of five per cent under sections 32 and 48 of the LAA applies.

Thus, our answer to Question (6) is in the positive.

Premised on the principle that Parliament does not amend wordings of statues in vain, learned counsel for the Appellants submitted that the amendment vide the Land Acquisition (Amendment) Act 1997 (Act A999) which substituted the term “interest” with the term “late payment charges” was intentional. It was submitted that the term “late payment charges” must “encompass a larger paradigm” of compensation in line with the constitutional rights of landowners, and the necessity to ensure 37 adequate compensation consistent with the principle of equivalence.

It was submitted that guided by the principle of equivalence, the only way for the Appellants to be adequately compensated and put in the position as it was before the acquisition is to award late payment charges on a compound basis.

Learned counsel for the Appellants had referred to cases from foreign jurisdiction which used the concept of interest on the award of compensation. We do not find these cases from other jurisdiction to be useful because our LAA does not recognize interest.

The underlying purpose of the scheme of compensation under the LAA is to give effect to Article 13 of the Federal Constitution which guarantees that no person shall be deprived of his property save in accordance with the law. That such law shall provide for the compulsory acquisition or use of property with adequate compensation is envisaged in Article 13 Clause (2).

The intention of amending the LAA in 1997 to replace the original interest based payment with late payment charges, as reflected in the Hansard, is consonant with the spirit of Article 13 of the Federal Constitution, which is to ensure a fairer assessment of the value of the acquired land, as well as to ensure that the interest of the landowners are protected. The excerpts of the Hansard dated 15.5.1997, read as follows: … Antara objektif pindaan akta ini ialah: 38

(ii) untuk memperjelaskan cara-cara pelaksanaan seksyen 3(b) dan 3(c) supaya ianya seragam, lebih telus, rasional, bertanggungjawab dan boleh melindungi kepentingan tuan tanah secara total; ….

(iv) untuk menentukan asas penilaian pampasan yang lebih tepat, cepat dan lebih adil kepada semua pihak serta menggambarkan nilaian sebenar tanah yang diambil.

We regret we are not persuaded by the Appellants’ submission. The LAA is a special law which specifically deals with compulsory acquisition of land. In Bungsar Hill Holdings Sdn. Bhd. Bhd v Damansara Realty Berhad, 16 the Federal Court speaking through Rohana Yusuf JFC, is instructive on the legal position concerning special enactment like the LAA. In that case the Federal Court is posed with the question of law as to whether Damansara Realty being unsuccessful in the claim for a share of the compensation is liable to pay interest on the compensation sum. Acknowledging that LAA is a special and specific law to regulate the compulsory acquisition of land, Her Ladyship stated:- [29] One acceptable principle of interpretation of a statute is that, when a statute provides for a specific remedy, it necessarily excludes any other remedy not provided for by that statute. The House of Lords’ decision in Pasmore v The Oswaldtwistle Urban 16 [Civil Appeal No. 01(f) – 13 – 05/2016 (W). 39 District Council [1898] AC 387 had often be [sic] referred to on this legal position. In the speech of the Earl of Halsbury L.C. he said: The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy or any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law. [30] The above principle was accepted by the Court of Appeal in Parkson Corp Sdn. Bhd. v Fazaruddin bin Ibrahim [2002] 4CLJ 18; [2002] 4 MLJ 122, as well as in Persatuan Pegawai-Pegawai Bank, Semenanjung Malaysia (ABOM) v Ketua Pengarah Kesatuan Sekerja, Malaysia & 2 Ors [2014] 5 CLJ 562; [2014] 2 AMR 285. It was further observed by the Court of Appeal in Parkson Corp Sdn. Bhd. (at page 25 (CLJ); page 128 MLJ) in relation to section 16 of the Trade Description Act 1972 that, “If Parliament had wished to confer jurisdiction upon a court making an order under s 16 of the Act to also award damages, it would have said so expressly”. Since under that Act the intention was only to criminally punish the infringer of merchandising marks amongst others, the contention on section 16 was rejected. This Court had also accepted this principle of interpretation in Land Executive Committee of Federal Territory v 40 Syarikat Harper Gilfillan Berhad [1980] ILNS 150; 1 MLJ 234. [31] We agree with counsel for the respondent therefore, that the maxim expresso unius est exclusion alterius, express mention of one thing implies the exclusion of another thin not so mentioned, applies in interpreting these provisions of the LAA. This principle of interpretation and the maxim is already well entrenched as is also found in the decision of this Court in Jamaluddin bin Mohd Radzi & Ors v Sivakumar a/l Varatharaju Naidu (claimed as Yang Dipertua Dewan Negeri Perak Darul Ridzuan), Election Commission, intervener [2009] 4 CLJ 347; [2009] 4 MLJ 593. The expressed provisions in sections 29A(5), 32 and 48 of the LAA which provide for late payment charges therefore necessarily exclude any payment of interest to be paid by the Land Administrator or by any other person.

Section 48 of the LAA expressly provides that late payment charges may be imposed by the Land Administrator on such excess compensation at the rate of five per cent per annum from the prescribed period.

Guided by the high authority in Bungsar Hill, supra, and bearing in mind that the jurisdiction of the court in land reference is as conferred by the LAA and the Court must therefore keep within those confines, it is our view that there is no place to impose 41 compound interest on the excess sum as contended by the Appellants.

Accordingly, our answer to Question (7) is in the negative.

Learned counsel for the Appellants submitted that the Appellants were not awarded costs before the Land Administrator nor in the High Court. It was submitted that if not for the compulsory acquisition of their Subject Properties in 1999, the Appellants would not have incurred costs to pay for valuers or Solicitors as well as to expend their time over the last 19 years. To be consistent with the principle of equivalence, the only way to put the Appellants in their pre-acquisition position is to allow costs on a reimbursable basis.

The LAA has an expressed provision pertaining to the issue of costs under section 51, which states:

In any proceedings arising from an objection to the amount of an award, costs shall be borne in accordance with the following provisions:

where the amount of the Court award does not exceed the sum awarded by the Land Administrator the costs shall be paid by the applicant;

where the amount of the Court award exceeds the sum awarded by the Land 42 Administrator, the costs shall ordinarily be paid by the Land Administrator, but if the Court is of opinion that the claim of the applicant was so excessive or that he was so negligent in putting his case before the Land Administrator that some deduction from his costs should be made, or that he should pay a part of the Land Administrator's costs, the Court may make such order as to costs as it may think fit;

where the claim of the applicant exceeds by twenty per cent or more the amount of the Court award, he shall not be entitled to his costs. [Underline added]

As submitted by learned ALA, the additional compensation sum of RM2,411,788.58 awarded by the High Court compared to the sum of RM12,004,000.00 claimed by the Appellants, shows that the claim by the Appellants has exceeded by 20%.

In the premises and pursuant to subsection 51(1)(c) of the LAA, the Appellants are not entitled to their costs.

Accordingly, our answer to Question (8) is in the negative. Conclusion 43

For all the reasons aforesaid, we unanimously dismiss the appeal with costs of RM20,000.00. Dated: 10th October 2019 signed (YEW JEN KIE) Court of Appeal Judge For Appellants : 1) Ambiga Sreenevasan 2) Shireen Selvaratnam 3) Heng Yee Keat 4) Limm Wei Jie [CHRISTOPHER & LEE ONG] For Respondents: 1) Siti Fatimah binti Talib (ALA) 2) Etty Eliany binti Tesno (ALA) [PEJABAT PENASIHAT UNDANG-UNDANG NEGERI SELANGOR] Notice: This copy of the court’s reasons for judgment is subject to editorial revision.