1. Citrasama Projek Sdn Bhd v 1. Permodalan Nasional Selangor Bhd (Pnsb) (25-67-2011)

(100)/ MPSJ/09-/2008(70) di antara Tetuan Permodalan Negeri Selangor Berhad (PNSB), Tetuan Citrasama Projek Sdn Bhd dan Tetuan 2 Benua Ehsan Sdn Bhd yang direkodkan di Lembaga Rayuan Selangor; Dan Dalam Perkara Keputusan Lembaga Rayuan Selangor yang dimaklumkan pada 30.3.2011 bahawa keseluruhan prosiding Rayuan No. LR Sel.

(100)/MPSJ/09-2008(70) dibatalkan; Dan Dalam Perkara Keputusan Lembaga Rayuan Selangor bertarikh 8.4.2011 dalam prosiding Rayuan No. LR Sel. (100)/MPSJ/09-2008(70) yang mengekalkan keputusan Lembaga Rayuan Selangor (yang dimaklumkan pada 30.3.2011) bahawa keseluruhan prosiding Rayuan No. LR Sel.

(100)/MPSJ/09-2008(70) dibatalkan; Dan Dalam Perkara Keputusan Majlis Mesyuarat Kerajaan Negeri Selangor (MMKN) yang dimaklumkan oleh Permodalan Negeri Selangor Berhad (PNSB) melalui surat bertarikh 25.4.2011 bahawa Majlis Mesyuarat Kerajaan Negeri Selangor (MMKN) yang disahkan melalui kertas EXCO-MTES No. 6/27/2010 bertarikh 25.8.2010 telah bersetuju untuk membatalkan projek perumahan yang dimajukan secara usahasama oleh Perbadanan Setiausaha Kerajaan Selangor dan Citrasama Projek Sdn Bhd dan Benua Ehsan Sdn Bhd kerana perjanjian telah tamat tempoh; Dan Dalam perkara Bahagian III, IV dan VI Akta Perancangan Bandar dan Desa 1976 dan Rancangan Struktur Negeri Selangor 2020; Dan 3 Dalam Perkara Kaedah-Kaedah Lembaga Rayuan 1999 dan garis panduan-garis panduan perancangan bagi pembangunan di kawasan bukit dan tanah tinggi; Dan Dalam Perkara Permohonan Untuk Perintah Certiorari dan Mandamus di bawah Aturan 53, Kaedah 2(1) Kaedah-kaedah Mahkamah Tinggi 1980 dan Perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964; Dan Dalam Perkara Permohonan Untuk Deklarasi di bawah Aturan 53, kaedah 2(2) Kaedah-Kaedah Mahkamah Tinggi 1980; Dan Dalam Perkara Permohonan Semakan Kehakiman di bawah Aturan 53, Kaedah-kaedah Mahkamah Tinggi 1980; Dan Dalam Perkara Permohonan Perlaksanaan Spesifik di bawah Akta Relif Spesifik 1950. ANTARA

CITRASAMA PROJEK SDN BHD

BENUA EHSAN SDN BHD PEMOHON

1.

SETIAUSAHA KERAJAAN NEGERI SELANGOR (PERBADANAN)/ ‘STATE SECRETARY SELANGOR (INCORPORATION)’ 4

3.

MAJLIS PERBANDARAN SUBANG JAYA (MPSJ)

LEMBAGA RAYUAN NEGERI SELANGOR RESPONDEN GROUNDS OF JUDGMENT (Judicial Review) BACKGROUND FACTS [1] The Applicants in the present case are Citrasama Projek Sdn Bhd (1st Applicant) and Benua Ehsan Sdn Bhd (2nd Applicant). Both the Applicants hereinafter will be referred to as “the Applicants”. [2] The Applicants here apply for reliefs in declaration, certiorari, mandamus and injunctions against a series of administrative decisions rendered by the Respondents in relation to a development project and a series of Joint Venture Agreements entered into between the Applicants and the 1st and 2nd Respondents. [3] There are five (5) respondents in this case. They are namely; 1st Respondent - Permodalan Negeri Selangor Bhd (PNSB) 5 2nd Respondent - Setiausaha Kerajaan Negeri Selangor (Perbadanan)/ ‘State Secretary Selangor (Incorporation)’ 3rd Respondent - Kerajaan Negeri Selangor 4th Respondent - Majlis Perbandaran Subang Jaya (MPSJ) 5th Respondent - Lembaga Rayuan Negeri Selangor. [4] The Respondents have been alleged by the Applicants to have rendered improper decisions in vitiating the project with the Applicants, to which, the Applicant is challenging vide the present application for Judicial Review under Order 53 of the Rules of Court

The declaratory reliefs are generally for declarations of alleged improper decisions. The certiorari reliefs are generally to quash the Respondents’ alleged improper decisions and improper decision making processes while the mandamus reliefs are generally to order the Respondents to perform their obligations under the Project and Joint Venture Agreements. Meanwhile, the reliefs in injunctions are to restrain the Respondents from dealing with the lands involved in the development against the interest of the Applicants. 6 [5] The Applicants are private limited companies incorporated in Malaysia under the Companies Act 1951 which are involved in the business of property development. [6] The 1st Respondent (“PNSB”) is the investment arm incorporated and operated under the 3rd Respondent (“State Government”). [7] The 2nd Respondent is a statutory body incorporated pursuant to Enakmen Setiausaha Kerajaan Negeri Selangor (Perbadanan) 1955 (“State Secretary”). [8] The 3rd Respondent is the Selangor State Government (“State Government”) [9] The 4th Respondent, Majlis Perbandaran Subang Jaya, is the local planning authority for the district of Subang Jaya, and the area of Permatang Kubang, Mukim Daerah Petaling, all of which is within the locality of the state of Selangor (“MPSJ”). 7 [10] The 5th Respondent is a statutory body established pursuant to Section 36 of the Town and Country Planning Act 1976 (Act 172) which among others hears appeals from the 4th Respondent’s decisions (“Appeal Board”). [11] Now, there were a series of Joint Venture Agreements (“JVAs”) which were entered into circa the year 1995 of which, ultimately the Applicants and PNSB as well as the State Secretary has agreed undertake a development project (“development project”) of an approximately 168.27 acres of land in Lot 6648, Mukim Petaling, Daerah Petaling, Selangor Darul Ehsan, owned by PNSB and the State Secretary (“project land”). [12] The State Secretary has vide a Power of Attorney dated 24.6.1992 assigned all of its rights and powers on the said project land to PNSB. [13] This Court is mindful that there were numerous presentations of layout plans and applications for planning permission stretching from the year 1998 until the year 2008. This Court is of the preliminary view that it is unnecessary for the Court to categorically elaborate in 8 this judgment every single applications and rejections historically. Nonetheless, in due course of this Court’s findings, judgment and final order, this Court will delve into the mass of applications, approvals and rejections of plans with regards to the project land and the JVAs as and when this Court deems necessary where these applications are relevant. [14] Here are the facts most recent in time which led to the Cause of Action in the present case: 1st and 2nd Applications for Planning Permission [15] By the year 2004, MPSJ has authorised the 1st and 2nd Planning Permission presented by the Applicants. In fact, upon the same approvals the Respondents have issued 141 individual titles to the Applicants for the project land. The Applicants have even paid the premium for the issuance of all the 141 individual titles. (See Exhibit A-3, Enclosure 2). 9 [16] MPSJ then have declined the Applicants’ application for extension of the 2nd Planning Permission on the grounds that the Jawatankuasa Teknikal Pembanguan Kawasan Sensitif Alam Sekitar (“JTPKSAS”) found that the project land comprises of 70% class IV slopes (slopes) in which developments are not allowed. (See Exhibit A-7, Enclosure 7). [17] However, this Court must highlight that the assertion above is factually inaccurate as it was submitted by the Applicants through their Geotechnical Assessment Report and Terrain Mapping Report and acknowledged by the Respondents’ own technical department, Institut Kerja Raya Malaysia (currently known as Ikram Sdn Bhd) (“IKRAM”) vide its Letter of No Objection dated 27.3.2006 (“LONO”) that only 5.52% of the project land is classified as class IV slopes. Admittedly, this Court must take note this vast miscalculation of the JPTKSAS and MPSJ on the classification of the project land. (See Exhibit A-1, page 332 of Enclosure 2 for IKRAM’s LONO). Evidently, even IKRAM has addressed the 5.52% classification of class IV slopes without a single trace of protest or disagreement. Even more pertinent, upon presentation of the 3rd Planning 10 Permission together with the reports above, IKRAM has no objections for the works under the project to be performed: “3. Pihak kami tiada halangan bagi kerja-kerja pembangunan tersebut dijalankan tertakluk kepada pematuhan ULASAN-ULASAN…” 3rd Application for Planning Permission [18] It is verily important that at this juncture, after IKRAM has issued its LONO, MPSJ has already abandoned their contention of rejecting the planning permission on the grounds of the project land’s classification. Entailing IKRAM’s LONO, MPSJ has abandoned their initial qualms on the project land’s classification and by their own volition asked for a fresh presentation of a new layout plan (the 3rd Application for Planning Permission) merely with the condition that the development does not involve buildings which are more than 4- storeys high. In this letter requesting for a fresh presentation, there is absolutely no contention at all on the project land’s 11 classification. All that MPSJ asks for is for the above condition and also that the Applicants present a new Environmental Impact Assessment Report (“EIA Report”) only because the current EIA Report at that time has expired:

Sukacita dimaklumkan Mesyuarat Majlis Perbandaran Subang Jaya bil. 04/2006 bertarikh 27 April 2006 telah membuat keputusan menangguh permohonan ini dengan alasan-alasan seperti berikut: “a. Pemaju perlu mengemukakakn pelan susunatur baru bagi pembangunan berdensiti rendah dan tidak dibenarkan pembangunan melebihi 4 tingkat… b. Pemaju perlu mengemukakan Laporan EIA baru memandangkan laporan yang dikemukakan sebelum ini telah tamat tempoh.” [19] And even more paramount here is that JTPKSAS (the same technical department that rejected the 2nd Planning Permission on the ground 12 of the project land’s classification) has in fact and instead approved the 3rd Application Planning Permission and Layout Plan even in the face of the fact that the project land comprises of class III and class IV slopes. (See Exhibit A-13, Enclosure 3): “3.10.1. Mesyuarat menimbang dan bersetuju meluluskan permohonan ini dengan syarat pembangunan yang hendak dijalankan mestilah berdensiti rendah…

3.11.1. Mesyuarat telah menimbang dan bersetuju secara dasar meluluskan permohonan ini…(referring to the 3rd Application for Planning Permission)” [20] Furthermore, this 3rd Application for Planning Permission was also supported by the Respondents’ own Planning Authority which is the Jabatan Perancang Bandar dan Desa Negeri Selangor (“JPBDS”) which issued a series of LONOs regarding the project land. (See Exhibit A-14 of Enclosure 3) 13 4th Application for Planning Permission [21] Following the various vetting and reviews as well as approvals by the Respondents’ various technical departments above, MPSJ itself vide its letter dated 20.2.2008 has requested for another presentation of amended layout plans for the approval of planning permission as per the amendments requested by MPSJ and other technical departments (4th Application for Planning Permission). (see Exhibit A-19 of Enclosure 4) [22] It entailed that MPSJ has conducted a One Stop Centre (“OSC”) meeting with regard to the project land and the Applicants’ presentation of the amended layout plans and planning permission. [23] Now, the minutes of this OSC meeting, by and large, reveals the overwhelming approval of the various technical departments of the Respondents and to an extent even MPSJ’s own approval. 14 MPSJ [24] It is verily noteworthy here that even MPSJ acknowledges and is aware that the whole of the building development project only involves slopes ranging from classes I, II and III while class IV slopes are only going to be utilised for wide spaces and road works. There are no buildings to be erected on class IV lands. (See Exhibit A-20, page 622 of Enclosure 4). “Pembangunan yang dicadangkan meliputi kawasan berkecerunan Kelas I, II dan III. Kelas IV dicadangkan untuk kawasan lapang dan jalan.” [25] Not only that, it was acknowledged by MPSJ that developments involving class III slopes which were approved before 8.3.2008 is allowable albeit with certain conditions. (See Exhibit A-20, page 621 of Enclosure 4) 15 Jabatan Mineral dan Geosains Wilayah Persekutuan/ Kuala Lumpur (“JMG”) [26] The JMG even in acknowledging the fact that the project land comprises of class IV slopes has agreed to the amended planning permission albeit with certain recommendations and conditions. Ultimately the JMG supports the amended layout plans. (See Exhibit A-20, page 623 of Enclosure 4). Jabatan Alam Sekitar Negeri Selangor (“JAS”) [27] Even more noteworthy was that the state’s environmental arm itself has approved of the EIA report submitted by the Applicants. Thus the expired EIA is no longer an issue to be considered. IKRAM [28] IKRAM echoes its earlier LONO towards the development works on the project land albeit with certain recommendations to be complied with. And it must be noted that IKRAM’s non-objection and approval 16 were reached after their own preliminary geotechnical assessment on the project land. “Pihak IKRAM telah menjalankan penilaian awal geoteknikal ke atas tapak cadangan dan tiada halangan bagi kerja-kerja pembangunan tersebut dijalankan tertakluk kepada pematuhan ULASAN-ULASAN…” JPBDS [29] Similarly, even the planning authority of the state has no objection and supports the approval of the project albeit with certain conditions. Classification of project land is a non-issue [30] It is apparent to this Court that at this juncture, the classification of the project land involving class III and class IV slopes no longer poses an issue or an obstacle to the development project and its planning permission. It is apparent that all of the environmental and technical arms of the state all approve the works of the development project as 17 long as there is a compliance of numerous conditions and recommendations. Ultimately, the development is sound. Although the gradient of the slopes is a concern, the responses of the environmental and technical arms of the state have unanimously indicated that the project is within the realm of technical possibility to be performed as long as conditions and recommendations are met. [31] Furthermore, the conduct of MPSJ itself is enough to indicate that it has abandoned the issue of the classification of the project land as a factor of consideration. This is apparent from MPSJ’s call for the 3rd Application for Planning Permission and layout plan which only indicate the requisites of the buildings should not be more than 4- storeys high and that the Applicants submit a fresh EIA report. Even the requisite of the EIA report was required only for the reason that the previous report has expired and not at any point in time because of anything related to the classification of the project land. MPSJ’s 1st sudden change of stance 18 [32] Subsequent to the OSC meeting, MPSJ has a sudden change of air and turned against all of the positive recommendations and approvals from the OSC meeting. MPSJ has instead, raised the stale issue of the classification of the project land (which MPSJ itself had initially abandoned, and now no longer an issue) and made an administrative decision to decline the planning permission. In blowing hot and cold, MPSJ has based this sudden change of air on the fact of a supposed new circular (“Circular”) which was issued by the State Government. (See Exhibit A-21 of Enclosure 4) (see page 255 of Enclosure 8 for the State Government’s Circular) Appeal by PNSB and the Applicants against MPSJ’s decision at the Appeal Board [33] Appalled by the sudden shift of stance and rejection by MPSJ, PNSB and the Applicants filed for an Appeal to be heard at the Appeal Board. (see Exhibit A-22 of Enclosure 4 for the Notice of Appeal) However, in the midst of this appeal, the State Government has issued a new guideline for hill slope development aptly called the “Draf Garis Panduan Perancangan Pembangunan di Kawasan 19 Bukit dan Tanah Tinggi Negeri Selangor”. This new guideline inter alia allows for developments to be conducted albeit conditionally, on class III lands. The classification of the project land’s slopes is a non-issue even during the Appeal at the Appeal Board [34] Even at this juncture, similarly, the classification of the project land remains a non-issue and MPSJ has rejected the application for planning permission for no apparent or valid and justifiable reason. Entry of Consent Order in light of the new guidelines [35] In fact, in light of the fact the new guidelines allows development of class III lands, the parties have entered into a consent order in order to ascertain the extent of applicability of the new guidelines and also the prospect of the development project to be continued to be performed. The parties have mutually agreed to prepare technical and additional reports in view of the new guidelines. (See Exhibits A- 27 and A-28 of Enclosure 4) 20 [36] Now, pursuant to this Consent Order, the Applicants have diligently endeavoured to prepare the technical and financial reports together with IKRAM. MPSJ’s 2nd sudden change of stance [37] Seemingly unable to cling onto the issue of classification of the project land, MPSJ had instead attempted to weasel out of the development project on the ground that the State Government has instructed PNSB to discontinue the development project. Again, it must be highlighted that the issue of classification of the project land has been totally abandoned and MPSJ now seeks to put the JVAs to its demise from a different tangent. PNSB’s affirmation of the Contract after expiry of the JVAs [38] In light of the supposed instruction by the State Government, the Appeal Board directed PNSB to write and notify its stand with regard to the JVAs and also the appeal filed by PNSB itself. 21 [39] To which, PNSB has clearly issued a letter of affirmation dated 3.3.2011, affirming the continuity and subsistence of the JVAs even after its expiration. Furthermore, PNSB wrote that it still intends to continue with the appeal filed. (see Exhibit A-30 of Enclosure 4). In affirming and confirming the continuity of the JVAs, PNSB had written the following: “2. Dimaklumkan bahawa Perjanjian Usahasama yang ditandatangani di antara Setiausaha Kerajaan Selangor (Perbadanan) (PSKS), Permodalan Negeri Selangor Berhad (PNSB) dengan Syarikat Citrasama Projek Sdn Bhd dan Syarikat benua Ehsan Sdn Bhd bagi memajukan projek ini telahpun tamat.

Walaubagaimanapun, PNSB yang masih merupakan salah sebuah pihak perayu dan juga pemegang wakil kuasa (‘power of attorney’) kepada PSKS masih berhasrat untuk memajukan projek ini dan akan meneruskan proses rayuan yang telah difailkan…” 22 [40] Thus, it is evidently clear in vivid obviousness that the parties of the JVAs have mutually in unison agreed to the subsistence, extension and prevalence of the JVAs beyond its expiration period. Thus, the JVAs still persist. Striking Out of the Appeal [41] It is entirely unsurprising given the state’s unrelenting refusal to perform the valid JVAs that the Appeal Board unilaterally decided to strike out the Appeal. [42] It was only soon afterwards that it was learnt that PNSB has issued a letter dated 10.3.2011 expressing its intent to no longer carry on the appeal in line with the State Government’s instruction Court’s preliminary finding on this letter above [43] It is this Court’s preliminary finding that the above letter is not a valid letter to vitiate the JVAs which were already given a new lease of life 23 from PNSB’s own letter of affirmation just a week earlier on 3.3.2011. As the JVAs now still persist, PNSB cannot simply opt to vitiate the contract. Such unilateral conduct would be a wrongful administrative decision which amounts to a breach of contract. The State Government cannot simply direct PNSB, a core partisan to the contract to breach valid contracts which are still in operation. [44] It was also later learned that the State Government had decided to revoke the said project on the purported though fallible reason that the JVAs have lapsed. This was informed by PNSB vide its letter dated 25.4.2011. (See Exhibit A-36, page 880 of Enclosure 4) [45] Thus, in light of all the above facts, it is the Applicants’ case that, generally the administrative decisions of the Respondents in: i. rejecting the Applicants’ numerous applications for planning permission; ii. unilaterally attempting to vitiate the JVAs; 24 iii. unilaterally opt to absolve themselves from performing the JVAs; and iv. unilaterally striking out the Appeal at the Appeal Board were all wrongful administrative decisions which were culminated vide an improper, unreasonable decision making process which is devoid of a single spec logical and legal justification. This allegation forms the underlying cause of action of the Applicants’ application for Judicial Review under Order 53 of the Rules of High Court 1980. [46] It is also the Applicants’ case that it is within the Applicants’ legitimate expectation that the JVAs are performed and the development project should be continued. [47] Unsurprisingly, the Respondents’ defences against the Applicants’ lengthy submissions seemingly indicate the Respondents’ attempt to eschew from the task to directly address the alleged unlawful decisions in rejecting the applications for planning permission. 25 Collectively per se, the defences set up by the Respondents are as follows: i. Allegedly, as time is of the essence of the JVAs, the JVAs have already lapsed and expired. ii. The Respondents have validly rejected the applications for planning permission in light of the concerns over the classification of the project land which comprises of class III and class IV slopes. iii. PNSB has validly terminated the JVAs vide its letter dated 3.3.2011 in view of the JVAs alleged expiration. iv. In case the JVAs still persist, the Applicants’ application for Judicial Review is an abuse of process as the dispute is allegedly a private law dispute and not a public law dispute. 26 v. The JVAs are allegedly impossible to perform on the mere reason that the State Government has instructed PNSB to discontinue the development project. [48] This Court is of the view that the mass of issues in the present case can be condensed and simplified into the following issues to be determined:

Do the JVAs remain as persisting, subsisting and enforceable contracts even after its expiration or lapsing?

(ii) Is the present dispute a private law dispute or a public law dispute?

(iii) Were the Respondents’ decisions with regard to the development project, properly, and appropriately reached?

(iv) Is it within the Applicants’ legitimate expectations that the JVAs should remain operable beyond its expiration period 27 and that the development project should have been performed and approved by the Respondents? ISSUE (i): DO THE JVAs REMAIN AS PERSISTING, SUBSISTING AND ENFORCEABLE CONTRACTS EVEN AFTER ITS EXPIRATION OR LAPSING? [49] Quite apparently, the Respondents hung onto the purported expiration of the JVAs desperately, in order to attempt to demonstrate and prove the propriety of their decisions to revoke and discontinue the development project. The Respondents submit that as there is a definite expiration date, time is of the essence of the contract. The Respondents go on to refer to the mass of cases which uphold the trite principle. To cite a few are the cases of Mat Ziki v Mokhtar Bin Amin [1996[ 2 MLJ 687 and also Loke Yuen Cheng & Anor v Vimtex Sdn Bhd [1998] 4 MLJ 169. 28 [50] Undoubtedly, the JVAs entered by the parties, even with the extensions of the supplementary agreements entered, have all lapsed. The JVA entered between PNSB and the 1st Applicant has lapsed on 23.7.2008 while the JVA entered between PNSB and the 2nd Applicant has lapsed on 13.6.2010. [51] This Court does not intend to contra the above precedents into this trite and tested principle. However, even in the same case referred to by the Respondents, the case of Loke Yuen Cheng, it is already sufficiently held that the trite principle is not without an exception. The exception in simple terms would be that although time is made an essence in a contract, time would no longer be of essence, if the parties conduct themselves against that essence by keeping negotiations after and beyond the contract’s expiration or lapsing. The Court succinctly held: “When time is of the essence of the contract and when the party who is in the right allows the time fixed for completion to pass and the parties go on negotiating, then time is no longer regarded as essence of the contract” 29 [52] There are a multitude of reasons which negates this contention by the Respondents, and this Court shall categorically delve into those reasons: Conducts affirming the continuity, subsistence and operation of the JVAs beyond their expirations i. Letter of Affirmation by PNSB dated 3.3.2011 (Exhibit A-30 of Enclosure 4) [53] It is clearer than daylight that the parties have not only kept negotiations, but in fact aggressively fought for the operation of the JVAs even after the expiration of the JVAs. It could not have been clearer with PNSB’s own letter which envisages in distinct, vivid and unwavering words that PNSB affirms the subsistence of the JVAs even after its expiration: “2. Dimaklumkan bahawa Perjanjian Usahasama yang ditandatangani di antara Setiausaha Kerajaan Selangor (Perbadanan) (PSKS), Permodalan Negeri Selangor 30 Berhad (PNSB) dengan Syarikat Citrasama Projek Sdn Bhd dan Syarikat Benua Ehsan Sdn Bhd bagi memajukan projek ini telahpun tamat.

Walaubagaimanapun, PNSB yang masih merupakan salah sebuah pihak perayu dan juga pemegang wakil kuasa (‘power of attorney’) kepada PSKS masih berhasrat untuk memajukan projek ini dan akan meneruskan proses rayuan yang telah difailkan…” [54] It is already largely evident here that time is no longer of the essence within the contract. PNSB is a party to the JVA and at this point in time, their conduct has given the JVA a new lease of life beyond its expiration date. Thus, at no measure at all that the Respondents can now contend that the JVA has expired. ii. There is no proper notice of termination 31 [55] Furthermore, the clauses in the JVAs regarding the avoidance of the contract, namely clauses 8.12 and 8.13 of the JVA, all require for such termination to be made vide a notice. [56] It is verily perplexing that PNSB would contend against the clear unadulterated words of its own letter of affirmation above, that this letter was the notice of termination of the JVAs. [57] It is in fact astonishing that PNSB would paint a totally inaccurate position of this supposed letter of termination. Exhibit A-30 of Enclosure 2 is NOT a notice of termination. In fact, it is the exact opposite of a notice of termination. The letter is instead a letter affirming the JVA even after its supposed expiration. The PNSB had only quoted a portion of the whole letter (in paragraph 2) to suit their inhibitions, which is verily an inaccurate reading of the letter. The ensuing paragraph 3 after the partial quotation of the 1st Respondent reads: “3. Walaubagaimanapun, PNSB yang masih merupakan salah sebuah pihak perayu dan juga pemegang wakil 32 kuasa (‘power of attorney’) kepada PSKS masih berhasrat untuk memajukan projek ini dan akan meneruskan proses rayuan yang telah difailkan…” [58] Furthermore, this Court has already found that the ensuing letter dated 10.3.2011, just one week after the letter of affirmation, is NOT a valid letter of termination. The earlier letter of affirmation has already given the JVAs new leases of life. Thus, in the JVAs subsistence, the Respondents can no longer vitiate the contract at their own unilateral whims and fancies. The affirmation came first in time, validating the contract’s subsistence before the ensuing wrongful and invalid letter of termination. [59] Thus, it stands that there was never a proper notice of termination furnished by PNSB. iii. The Appeal to the Appeal Board was filed together with PNSB [60] Adding to the weight of this contention, is the fact that PNSB itself has vigorously fought for the subsistence of the JVAs even after the 33 expiration of the JVAs by joining in hands with the Applicants to file the appeal at the Appeal Board against the decision of MPSJ in rejecting their applications. (see Exhibit A-22 of Enclosure 4) [61] Thus, in light of all the above, it is this Court’s considered view that the JVAs remain subsisting as well as operable and are valid contracts binding the parties even after its expiration and lapsing. [62] This Court also finds valuable guidance from the decision of Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 which has referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with 34 case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) [63] Thus, it is this Court’s considered view that all the parties of the JAVs have conducted themselves in a manner indicative of an affirmation 35 of the JVAs’ subsistence even beyond its expiration. Thus, neither of the parties, especially the Respondent should be allowed to contend otherwise. To allow such fickle change of stance would bestow immeasurable injustice to partisans to any contract. There is no supervening impossibility to frustrate the JVAs [64] It is beyond any stretch of legal and logical justification that PNSB deems the JVAs impossible to perform merely because the State Government decided to revoke the project. PNSB desperately sought to rely on section 57(2) of the Contracts Act. [65] Even the State Government in its own submissions has pushed for the doctrine of separate legal entity, demarcating its liability as against the other Respondents partisan to the JVAs. [66] Absolutely none of the Respondents’ own technical departments concluded that the project was impossible to be performed. The long stretch of delay was MPSJ’s own undoing in refusing to take heed to the technical departments’ approvals over the development project. 36 [67] The State Government cannot simply vitiate the contract. The contract is well within the realm of possibility to be performed. It is not frustrated. The objects and purposes of the JVA can still be met if development was properly approved and carried out as per the JVAs. [68] There is no supervening impossibility in the present case. The state of non-performance was a conscious and deliberate choice, not an inevitable conclusion. ISSUE (ii): IS THE PRESENT DISPUTE A PRIVATE LAW DISPUTE OR A PUBLIC LAW DISPUTE? [69] In another feeble attempt to justify the wrongful process in the Respondents have made their decisions, the Respondents submitted that if in case the JVAs subsist, then the whole dispute is within the ambit of private law and thus, deeming the application for judicial review as an abuse of process of the Court. The Respondents fallibly submits that this present dispute ought to fall within the ambit of section 4 of the Government Proceedings Act 1956 merely on the 37 misconceived grounds that the Applicants’ cause of action arose solely from the breach of the JVAs. This is indubitably, a gross misconception. [70] Indeed the present Application is a hybrid of both public and private law and it is within the discretion of this Court to decide which of the two realms of law bears more weightage and relevance in the present dispute. This Court finds valuable guidance from the Federal Court decision in the case of Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865: “If it is a mixture of public and private law, then the court must ascertain which of the two is more predominant. If it has a substantial public law element then the procedure under O.53 RHC must be adopted.” [71] And indeed, this Court without a single shade of doubt is of the view that by and large, the present case is predominantly a public law dispute as compared to a private law dispute. 38 [72] The decisions that the Applicants are challenging are administrative decisions of the Respondents in unnecessarily and unlawfully rejecting their applications. [73] Furthermore, the present case weighs far greater in the sphere of public law when the decision challenged is also the decision of the Appeal Board which definitely is an administrative decision. The Appeal Board has no contractual relations whatsoever with the Applicants. [74] Indeed with the JVA still subsisting, all conducts of the Respondents in vitiating the JVAs are breaches to the contracts. However, these breaches all emanate from the wrongful administrative decisions of the Respondents. Thus, although on the surface the conducts of the Respondents are breaches of the contracts, it does not negate that the decisions of the Respondents in opting to breach the Contract are made in their administrative capacity and administrative duty. The fact of the matter is the breach is merely an inevitable consequence to the Respondents’ abuse of discretion in making their administrative decisions. 39 [75] MPSJ’s authority and duty as the municipal council, also includes the approvals of planning permissions for development. Thus, all wrongful decisions approving/disapproving such plans are administrative decisions. MPSJ is not even a party to the JVA which further highlights the relevance of public law in the present case. [76] Furthermore, the decisions challenged also include the decisions which were made by the State Government who is not a party to the JVA. Similarly, the decisions challenged are also inclusive of the wrongful decision of the Appeal Board in striking off the Appeal in the first place. This is indeed not any contractual breach but is exactly a wrongful administrative decision. There are no viable justifications to reason out the process in which the Respondents have reached their wrongful decisions. 40 [77] Thus, it is this Court’s considered view that the present application is a valid application and not in any manner an abuse of process of the Court. ISSUE (iii): Were the Respondents’ decisions with regard to the development project, properly, and appropriately reached? [78] Before this Court categorically address the numerous decisions of each respective Respondents, this Court shall briefly allude the laws and principles of judicial review relevant to the present case. [79] The State Government is quick to remind the Court that the process of judicial review is to question the decision making process behind administrative decisions and not merely scrutinising the merits of such decisions. They relied on the case of Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 6 CLJ

41 [80] The State Government also submits the case of Tenaga Nasional Bhd v Ong See Teong & Anor [2010] CLJ 1 FC in which the Federal Court in this case has laid down the exception to the general rule above in that the Court WILL look into the merits of the decision itself as opposed to the decision-making process, if the decision is “illegal, irrational, made with procedural impropriety and disproportionate”. [81] This Court is also minded that the rationality of an administrative decision and also the propriety of the decision-making process of such decision is also dependent upon the factors in which the administrative body has or has not taken into account. It is also a proof of a misdirection of an administrator’s discretion if it can be proven that he has either considered irrelevant facts or failed to consider relevant facts. This Court is guided by the case referred by the Employee herself in KPMG Consulting (ASPAC) Sdn Bhd v YB Menteri Sumber Manusia Malaysia & Ors [2004] 1 MLJ 26: “…the Court can interfere with the Minister’s decision if he…has taken into consideration matters which he ought not have 42 taken into account or vice versa; or has otherwise gone wrong in law” Impropriety of the decision making-process and irrationality of MPSJ’s decision in rejecting the numerous Applications for Planning Permission by the Applicants [82] Here, the wrongfulness of MPSJ’s decision is two-folds, both in its decision-making process and also on the irrationality of the decision per se. [83] This Court cannot stress enough that the fickle conduct of MPSJ is indicative that the classification of the project land is a non-issue. In fact, the ultimate reason that the planning permission is rejected is not because the project land comprises of class III and class IV slopes, but merely because purportedly, the JVAs have expired. At the end of MPSJ’s twists and turns, MPSJ contends on the vitiating of the JVAs on their supposed expiration, and not on the classification of the project land. 43 [84] MPSJ have twice raised the issue of classification and proceeded to totally abandon the contention. And the abandonments ensue after the technical departments of the Respondent approves of the development project as well as all of its plans submitted (during the process of the 3rd Application for planning permission) and after the State Government has issued a new policy allowing development on class III slopes (albeit with certain conditions) which basically defeats the very ground in rejecting the planning permission in the first place (in the midst of the Appeal at the Appeal Board). [85] On both accounts that the issue of classification of project land arose, the same issue was rendered a non-issue and abandoned by MPSJ. [86] At this juncture, MPSJ has taken into consideration two factors which it ought not to consider. Firstly, it was wrong for MPSJ to base their decision on the misconceived fact that the JVAs have expired. Secondly, it was wrong for MPSJ to base their decision on the classification of the project land which innately is a non-issue. MPSJ 44 also has failed to take into account the fact that the JVAs are still subsisting and operable beyond its expiration date. [87] MPSJ’s numerous decisions to reject the Applicants’ application for planning permission is also irrational to begin with. Against all of the technical and environmental concerns, all of the Respondents’ core authorities in Geotechnical Assessments, planning and the environment have all approved the development project, albeit with certain conditions and recommendations. [88] All the technical departments have approved and supported the plans submitted. The development plan vide these strenuous vetting and review should be sound as per the approval and support of the technical departments. In fact, the guidelines never prohibited the development on class III lands in toto. Development Project is sound although with conditions and recommendations 45 [89] Furthermore, although the technical departments have expressed conditions and concerns, ultimately the technical departments have approved and supported the plans, albeit with certain conditions. It suffices that the plans were sound to be executed after extensive vetting and reviewing of the plans. [90] Indeed this court does not discount the probability, or the higher risks of untoward occurrences in the hilly slopes of the project land. However, it must be noted that such risks exist in any development of any hilly lands. And such risks are necessary and unavoidable to be taken to further the development of the state especially when the risks have been carefully calculated and approved by the state’s own technical departments. [91] Adding to this issue, the Applicants are more than willing to comply with all the recommendations and conditions set forth by the technical departments. It is indeed irrational to revoke the development project when the Applicants as developers were not even given the opportunity to comply with the said conditions and recommendations. 46 [92] Thus, it is this Court’s considered view that MPSJ’s decision in rejecting the Applicants’ applications for planning permission is a wrongful decision as it was irrational and also improper in MPSJ’s process of decision-making. Is the Circular issued by the State Government dated 2.4.2008 prohibiting development on class III slopes and PNSB’s reliance on the said Circular valid administrative decisions? [93] It is the Applicants’ contention that the State Government’s Circular Directive dated 2.4.2008 was invalid and unlawful as it contravenes the law particularly the provisions of the Town and Country Planning Act 1976 (“Act”) and also the Selangor Structure Plan 2020 which was gazetted pursuant to same Act and was already in force since 14.6.2007. Undoubtedly the Act and the Structure Plan (upon gazetting) carries a statutory effect for compliance. [94] Section 22(2) of the Act stipulates that the local planning authority (in the present case, MPSJ) in considering applications for planning permissions shall take into consideration such matters as are in its 47 opinion expedient or necessary for proper planning and in particular, the provisions of the development plan. Section 2 of the Act has defined “development plan” to include: a. the local plan for the area; or b. if there is no local plan for the area, the structure plan for the area. [95] True enough, the Selangor Structure Plan 2020 indeed permits medium density development on class III slopes (25 degrees to 35 degrees gradient), and even allows construction of infrastructure and utility system on class IV (above 35 degrees gradient) slopes: “Memastikan pembangunan di kawasan berkecerunan 25 – 35 darjah dibangunkan hanya untuk pembangunan berkepadatan sederhana dan memenuhi syarat-syarat yang telah ditetapkan. Walaubagaimanapun bagi kawasan berkecerunan melebihi 35 darjah tiada sebarang pembangunan dibenarkan system perhubungan infrastruktur dan utilliti” 48 [96] It is exceedingly astonishing that all of the Respondents in the present case have posed little to none contest at all against this contention of the Applicants. All the Respondents were bent to prove their case vide proving the expiration of the JVAs (which this Court disagrees) and also on the classification of the project land. Literally, none of the Respondents even attempt to contra this contention. All of the Respondents have kept their silence and totally eschewed from the task of replying to this contention by the Applicants. [97] Thus, this Court finds that the Circular is indeed illegal as it contravenes clear statutory provisions. Consequently, it is also this Court’s considered view that MPSJ’s blind reliance onto this Circular is equally an improperly reached decision and is utterly flawed in its decision-making process. The State Government’s decision to revoke the development project is an unlawful administrative decision. 49 [98] The State Government has decided to revoke the development project on the ground that the JVAs have all expired. This was explained by vide PNSB’s letter dated 25.4.2011. It is verily simple to see that the State Government has considered, again this gross misconceived fact that the JVAs have indeed lapsed. [99] Thus it is this Court’s considered view that the State Government has considered a misconceived fact which it ought not have taken into consideration in its decision-making process. Therefore, the State Government’s administrative decision here is utterly unlawful and invalid. The Appeal Board’s decision to strike out the Applicants’ and PNSB’s appeal on 10.3.2011 and its decision to maintain the earlier striking out on 8.4.2011 is unlawful and invalid. [100] This Court does not find it necessary to go at lengths discussing all the surrounding facts of the Appeal Board’s decision in striking out the Applicants’ and PNSB’s appeal. 50 [101] Suffice that reference is made to the Appeal Board’s Grounds of decision for this Court to find that indeed the Appeal Board’s decision is unlawful and invalid. This is simply for the reason that the Appeal Board has considered the misconceived fact that the JVAs have expired which purportedly totally dissipates the subject of the dispute. The decision reads (see Exhibit A-38 of Enclosure 18): “As Appellant 2 & 3 are parties in this joint venture agreement which had terminated and not renewed…there is no longer the subject matter of the appeal. Being so Appellant 2 & 3 who were once partners in the joint venture had no more subject matter to appeal. Because of this the Lembaga struck off their appeal and also Appellant 1’s appeal” [102] Thus, it is this Court’s considered view that the Appeal Board’s decision in striking out the Applicants’ and PNSB’s appeal is indeed an unlawful and invalid administrative decision. 51 [103] In view of all of the above, it is this Court’s considered view that indeed all of the above administrative decisions of the Respondents are unlawful and invalid as they are either irrational, or utterly flawed in its decision-making process for the reason that the Respondents have considered misconceived facts which they ought not consider at all and have failed to consider the fact that the JVAs persist and subsists well beyond its expiration dates.

(iv): IS IT WITHIN THE APPLICANTS’ LEGITIMATE EXPECTATIONS THAT THE JVAS SHOULD REMAIN OPERABLE BEYOND ITS EXPIRATION PERIOD AND THAT THE DEVELOPMENT PROJECT SHOULD HAVE BEEN PERFORMED AND APPROVED BY THE RESPONDENTS? [104] It is also the Applicants’ case that it is also within their legitimate expectations that the JVAs remain operable beyond its expiration period and that the development project should have been performed and approved by the Respondents. The learned counsel for the 52 Applicants have succinctly categorised such legitimate expectations in the light of the present case: i. Legitimate expectation when a body makes representation of certain types of permitted development vide publication of statutory provisions and guidelines (referring to the Act, the Selangor Structure Plan 2020 and also the State Government’s Circulars) ii. Legitimate expectation when an interest is protected and permissible by provisions of law and procedural fairness. iii. When a situation requires an administrative body to act reasonably and fairly [105] The above simplification is based on the decision of the Court of Appeal in Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan Berhad v Majlis Perbandaran Pulau Pinang [1996] 3 CLJ 335 at pages 379 – 381. 53 [106] This Court has no qualms at all in agreeing that there were various legitimate expectations which were denied by the Respondents in their administrative decisions. Legitimate expectation that the JVAs remain subsisting, operable and binding against all partisans [107] This legitimate expectation begs for no further elaboration. This Court at length have discussed earlier that MPSJ has clearly conducted itself in a manner representing its affirmation of the JVAs beyond its expiration date. The Applicants’ interest is protected under the JVAs which operate under the provisions of the Contracts Act. [108] Thus, the decision of PNSB in withdrawing its appeal and attempting to vitiate the JVAs directly contradicts against this legitimate expectation. Similarly, the State Government’s decision to revoke the development project on the basis of the same misconceived fact also contradicts this legitimate expectation. Furthermore, the Appeal Board’s decision in striking out the Appeal also goes against the same legitimate expectation. 54 Legitimate expectation that the application for planning permission and the development project be allowed [109] It is reiterated again that the classification of the project land is a non-issue. Furthermore, even the Act and the Structure Plan allows for development over class III and class IV slopes albeit with certain conditions. Adding to the same effect, all of the core technical departments of the Respondents have supported and approved of the development project. Thus, the Applicants’ interest here is firstly, protected by the provisions of the law. Secondly, the ensuing policies, Structure Plans which were brought forth by the Respondents themselves is a representation that a development project may be allowed even if it involves class III and class IV hill slopes. Thirdly, in the face of all the positive approvals of the core technical departments of the Respondents, it is the Applicants’ legitimate expectation that MPSJ should act fairly and reasonably and thus, approve of the planning permission and development project. There is an absence of any valid reason for MPSJ to decline the planning permission. This Court has already dealt with the technical concerns 55 and recommendations of the technical departments and found that ultimately the technical departments have approved of the development project. The risks of untoward occurrences were calculated risks which even in consideration of such risk, the technical departments still saw the development project to be sound, albeit with compliance with their own respective conditions and recommendations. [110] In light of the above, it is this Court’s considered view that indeed the Respondents have deprived the Applicants off of their legitimate expectations vide their unlawful and invalid administrative decisions. COURT’S DECISION AND DIRECTIONS [111] In light of all of the above findings, it is this Court’s decision that the Applicants have indeed successfully proven that the Respondents have indeed arrived to a series of improper decisions in vitiating the projects with the Applicants. 56 [112] This Court hereby grants the following orders: A. Declarations that: i. The JVAs executed between PNSB, the State Secretary and Applicants are valid and subsisting. ii. MPSJ’s decision on 14.10.2008 in rejecting the Applicants application for planning permission on the ground that the said project land comprises of class III and class IV land is null and void. iii. Both of the Appeal Board’s decision in striking out the Applicants’ and PNSB’s appeal is null and void. iv. The State Government’s decision to revoke the development project on the ground that the JVAs have expired is null and void. 57 v. The State Government’s policy to not allow developments on class III and class IV slopes is null and void. B. Certiorari and Mandamus Orders i. Certiorari to quash the decisions above which are declared to be null and void ii. Mandamus to direct MPSJ to duly and accordingly issue Planning Permission to the Applicants, PNSB and the State Secretary to enable them to perform the development project C. Injunction and Specific Performance i. Injunction to restrain PNSB and the State Secretary from carrying out any transaction or dealing on the project land ii. Specific Performance that PNSB and the State Secretary to carry on and continue with the JVAs and Power of Attorney for the development project and perform the said project. 58 On the issue of costs [113] Having heard the submissions from the counsels for the Applicants and the Respondents, this Court hereby orders the Respondents to pay the Applicants a global sum of RM 30,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 6th day of August, 2015 59 For the Applicants - Tetuan Chambers of Firdaus Encik LS Leonard Encik David Samuel For the 1st and 2nd Respondent - Tetuan Kamaruzaman Arif Amran & Chong Dato’ Kamaruzaman bin M. Arif Cik Sofiah Omar For the 3rd Respondent - Kamar Penasihat Undang-Undang Negeri Selangor Tuan Ahmad Fuad bin Othman For the 4th Respondent - Tetuan Lathika & Associates Cik Lathika Prabhakaran