DAMIEN THAMAN DIVEAN v Pengarah Jabatan Perhutanan Negara Cawangan Negeri Selangor (01(i)-28-09/2024(B))

1.

LIM TECK WYN … APPELLANTS

MAJLIS EKSEKUTIF NEGERI SELANGOR DARUL EHSAN

PENGARAH JABATAN PERHUTANAN NEGARA CAWANGAN

PENGARAH JABATAN TANAH DAN GALIAN SELANGOR

KERAJAAN NEGERI SELANGOR DARUL EHSAN … RESPONDENTS 02/04/2026 16:17:27 01(i)-28-09/2024(B) Kand. 121 [In the Court of Appeal Malaysia (Appellate Jurisdiction) Civil Appeal No.: B-01(IM)-870-12/2022 Between

Damien Thaman Divean I/c No: 740302-08-5809) (Mewakili Pertubuhan Pelindung Khazanah Alam) (Registration No: PPM-028-10-24022011)

Lim Teck Wyn (I/c No: 750201-10-01032016) (Registration No: PPM-036-10-01032016) … Appellants And

Majlis Eksekutif Negeri Selangor Darul Ehsan (EXCO)

Pengarah Jabatan Perhutanan Negara Cawangan Negeri Selangor 3. Pengarah Jabatan Tanah Dan Galian Selangor Petaling 4. Kerajaan Negeri Selangor Darul Ehsan 5. YCH Development Sdn Bhd (Company No: 200001023696 (526304-A) … Respondents] CORAM: MAJORITY JUDGEMENT Introduction [1] This case concerns the application for leave for judicial review (“JR”) at the High Court (“HC”). The application was dismissed at the same court. Subsequently that decision of the HC was appealed to the Court of Appeal (“COA”) and the latter dismissed the appeal and affirmed the decision of the former. All parties then came before us for the appeal against that decision of the COA. [2] Both the HC and the COA came to the same conclusion that the application for leave for JR by the appellants should not be allowed. The application for this leave is essentially to challenge the gazette notification that had degazetted 406.22 hectares of the Bukit Cerakah Forest Reserve (“land”). It is also to challenge the decision to allow for the development of the land. The leave application for JR also sought for a declaration that the requirement for a public investigation as stipulated in the National Forestry Act (Adoption) (Amendment) Enactment 2011 (“Enactment ABU BAKAR JAIS, PCA RHODZARIAH BUJANG, FCJ LEE SWEE SENG, FCJ 2011”) must be complied with by the respondents as a prerequisite before the de-gazettement of any land can be allowed in the state of Selangor. [3] The appellants also applied before us for all actions, proceedings, executory proceedings or any other cause of action that may arise because of the decision to degazette be stayed, until the application for the JR has been decided and resolved in its entirety and with finality or until it was ordered otherwise by this court. Parties [4] The first appellant is the legal officer of Pertubuhan Perlindung Khazanah Alam ("PEKA"). PEKA was established in 2010 with the vision to save the rain forest and its biodiversity from extinction and to ensure the conservation and the protection of the environment. The second appellant is the legal officer of Persatuan Rimba Komuniti Shah Alam ("SACF"), an association that was officially formed in March 2016 to essentially protect forest areas. [5] The first respondent is the State Executive Council or Majlis Kerajaan Negeri. The second respondent is the State Director of Forestry Department. The third respondent is the Director of the Petaling Land and Mineral Department. The fourth respondent is the State Government of Selangor. The fifth respondent is a private company. The sixth respondent is Perbadanan Kemajuan Negeri Selangor (PKNS), the legal and beneficial owner of 133 hectares of the said land. That land was alienated to PKNS in December 2016 for development purposes. The seventh respondent is Restu Mantap Sdn Bhd, another private company that was given part of the land and had entered into a joint-venture agreement with fifth respondent for development of the area of the land given to seventh respondent. Background Facts [6] The land started to be a permanent forest reserve on smaller scale in 1909 when the same was gazetted for that purpose. Thereafter, the land was degazetted since 1976 for the purposes of development. [7] On 20.11.2000 the first respondent decided to degazette the land as forest reserve. Certain areas were also cleared for the construction of residential buildings on top of the land. The decision to degazette part of the land as a permanent reserve forest and to be alienated to entities or companies including:

(a) Perbadanan Kemajuan Negeri Selangor (350 acres);

(b) SAS Estate Sdn Bhd (50 acres);

(c) Excel Nobel Const Sdn Bhd (50 acres);

(d) Permaddun Sdn Bhd (50 acres); and

(e) the seventh respondent, Restu Mantap Sdn Bhd (50 acres). [8] In 2007, part of the land for development was given for the construction of a residential area. [9] Thereafter a residential enclave known as Alam Budiman was erected at the said location. [10] On 29.4.2011, Enactment 2011 introduced the requirement to hold a public inquiry into the de-gazettement process. [11] On 5.5.2022 the secretary of the first respondent had caused to be published a gazette (Selangor State Government Gazette No.1645 dated 14.04.2022 [PHN Sel. 100 1/9/1 Jld.2 (11): P.U. Sel. (ADV) PS.05/4/5]). This gazette notifies that the land had been degazetted. Prior to the de-gazettement, no public inquiry was held with regards to the de-gazettement of the land. The questions of law [12] The present appeal before us is premised on the following questions of law: a) Whether the National Forestry Act 1984 (“NFA 1984”) allows for retrospective legislation? b) Whether the Selangor National Forestry Act (Adoption) Enactment 1985 (“Enactment 1985”) allows for retrospective legislation despite there being no specific provision for retrospective legislation under Enactment 1985 and/or NFA 1984? c)

(a) specifying the situation and extent of such land; and

(b) declaring that such land shall cease to be a permanent reserved forest from a date fixed by the notification.

20.11.2000. S.13 above forms the basis of the gazette notification which allows for that date to be stated. From a clear reading of the above provision of s.13, there is no bar to that date being stated. Nowhere does it state that the effective date of that cessation can only happen on the date of the gazette i.e.14.4.2022 or when it was published on 5.5.2023. Neither could both these dates be imputed to mean they are the only dates for the cessation of the land as forest reserve. The provision of s.13 does not mean that a date much earlier could not be stated as the date of a particular land to cease as a forest reserve. That written law also does not mean that the cessation as forest reserve can only be effective on the date of the gazette, in this case 14.4.2022 or the publication of the same, in this case on 5.5.2023. [30] It is also permissible for the gazette in 2022 to be used to validate the decision made in 2000 in the cessation of the land as forest reserve. This is because the HC correctly found that s.20 of the Interpretation Acts 1948 and 1967 (“IA”), allows for subsidiary legislation to operate retrospectively, provided it does not impose penalties. This provision states as follows: Notwithstanding the absence of any express provision in any Act or other written law, where such Act or other written law empowers any person to make subsidiary legislation, such subsidiary legislation may be made to operate retrospectively to any date which is not earlier than the commencement of the Act or other written law under which it is made or, where different provisions of that law come into operation on different dates, the commencement of that law under which it is made: Provided that no person shall be made or shall become liable to any penalty in respect of any act done before the date on which the subsidiary legislation was published. [Emphasis Added] [31] What is the meaning of “subsidiary legislation” stated above? S. of IA gives the meaning and it states as follows: Subsidiary legislation means any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect. [Emphasis Added] [32] Following this provision, the words “notification” and “other instrument” above should include the gazette and the same has legislative effect. Therefore, it is correct for the HC to determine that s.20 of IA, allows for subsidiary legislation to operate retrospectively, provided it does not impose penalties. [33] Hence, it is incorrect for the appellants to submit that they were in time to challenge the decision to degazette the land as forest reserve by way of application for leave of the JR. The application for leave of the JR, as stated earlier can only be taken within 3 months of the decision i.e.

20.11.2000 and there is no dispute that the appellants were well beyond the 3 months in filing the application from that date. The Appellants must have known [34] On the decision to degazette the land in 2000, in my opinion the COA also correctly found as follows: Even if the appellants have no knowledge of the impugn decision made in year 2000 (as they were only established in 2010 and 2016 respectively), the grounds of the application would have arisen when parts of the said lands were alienated to the other parties, including the 7th respondent and the 6th respondent between 2001 to 2016 respectively. Thereafter, the said parties have developed the said land into housing estates, including Taman Budiman and the Universiti Teknologi MARA, UiTM (Kampus Puncak Perdana). Therefore, from the date of the decision in 2000, to the alienation of the state land in 2001 to 2016, we are of the considered opinion that the application to review the 2000 decision is clearly out of time and this goes to the issue of jurisdiction. [35] Thus, with respect, it is incorrect to arrive at the conclusion that any parties in similar position as the appellants had no opportunity at all to know about the decision to degazette the land in 2000. The developments on the land is too massive for anyone not to notice what was happening at that time. The appellants were simply too late in challenging the de-gazettement. Public Inquiry [36] There is also no need for public inquiry when the decision was made to degazette the land in 2000. That requirement for a public inquiry under s. 11 of the Enactment 1985 only came into effect in 2011, of course more than a decade after 2000. It is wrong to say the decision to degazette the land then must be preceded by a public inquiry. It was instead permissible to go on to degazette the land without a public inquiry as there was no requirement for one in the year 2000. In this regard, the COA too correctly interpreted the amending legislation regarding the amended s.11 of Enactment 1985 on the requirement of a public inquiry takes effect only on the date of the gazette, i.e. 19.5.2011. This obviously could not apply to degazette the land as part of the forest reserved in 2000. [37] It is also incorrect for the appellants to submit that by backdating the de-gazettement to the year 2000, the first respondent had sought to circumvent the express requirement of holding a public inquiry under s. 11 of the Enactment 2011. This is because there is actually no real backdating as s.13 allows for the decision to degazette the land to be made on the date of the decision but may be announced much later as demonstrated in this present case. [38] In my view, there is also no reason for this court to depart from the interpretation of s.13 of the NFA 1984 by the COA. The COA correctly noted that the gazette notification is not a decision to excise or for want of a better word, carve out the land from a permanent reserve forest. The decision to excise the land as permanent forest reserve or degazette the land was already made in the year 2000. The gazette notification in this regard, was merely to comply with the statutory requirement of the provision of the said s.13. No Plain Error [39] Further, the HC was not plainly wrong in the decision to deny the leave for JR. This court on the same point in the case of Uem Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor (2010) 9 CLJ 785 held as follows: [26] ... It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. [40] The reasons as highlighted above given by the HC to refuse that leave are indeed cogent and simply could not be unwarranted and unfounded. It is also incorrect for the appellants to say there was insufficient judicial appreciation of evidence by the lower courts. I am of the opinion the reasons given to deny the leave application for JR as explained above by the lower courts were not without sufficient basis or without judicial appreciation of evidence. The converse is that the reasons as highlighted above are indeed easily understood and not something that could not be fairly appreciated. Threshold Not Met [41] On another point, I note the case decided by the Supreme Court in Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association [1990] 1 CLJ Rep 33, to the effect that the threshold at the leave stage of a judicial review application is low. What is required according to this case is only to show prima facie evidence that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application. However, with respect, I am of the opinion in the present case before us, even this threshold has not been met by the appellants. This is because when the decision to degazette the land was made, the appellants were not even in existence. They were formed only a decade or more after that decision to degazette the land. Therefore, even when the threshold is low, unfortunately the appellants did not achieve this threshold as it is glaring and obvious they had not attained any rights or interests when the decision to degazette the land was made. It should never be the case that because the threshold is low, any parties can walk in and be given the leave. That is precisely why it is called the leave stage as opposed to the substantive stage. The leave stage is when the court sieves through the case to determine among others, whether in the first place any parties are justifiably and correctly before the court to further proceed to the substantive stage. Conclusion [42] Based on all that have been explained, answers to the questions of law posed are as follows: a) Whether the NFA 1984 allows for retrospective legislation? – Answer: Affirmative. b) Whether Enactment 1985 allows for retrospective legislation despite there being no specific provision for retrospective legislation under the Enactment 1985 and/or NFA 1984? – Answer: Affirmative. c)