1. ) Dato' Jitendra Chhotalal Doshi v 1. ) PENGARAH TANAH DAN GALIAN SELANGOR (BA-25-52-08/2023)

JITENDRA CHHOTALAL DOSHI

KIRON CHHOTALAL DOSHI (NO. K/P: 690810-10-6335) …PEMOHON-PEMOHON

1.

PENTADBIR TANAH DAERAH GOMBAK …RESPONDEN-RESPONDEN

MALAYSIA RAIL LINK SDN BHD (No. Syarikat: 1203035-K)

CHINA COMMUNICATIONS CONSTRUCTION (ECRL) SDN BHD (No. Syarikat: 1236384-H) …PENCELAH-PENCELAH YANG DICADANGKAN GROUNDS OF JUDGMENT [1] This is an application in Enclosure 17 by China Communications Construction (ECRL) Sdn Bhd (“Proposed Invervener”) to intervene in the Shah Alam High Court Application for Judicial Review No: BA- 25-52-08/2023, and to subsequently be added as a respondent pursuant to Order 53 Rule 8(1) of the Rules of Court 2012. S/N dCyoFpa9EiVxDrZ2s63ew [2] This court allowed the application in Enclosure 17. Dissatisfied with the decision of this court, the applicant has appealed this decision. [3] This is the grounds of this court’s decision for Enclosure 17. Factual Background [4] The facts are garnered from documents filed by parties with modifications. [5] On or around 24 October 2023, the applicants initiated legal proceedings against the Proposed Intervener and another co-defendant in the Shah Alam High Court under Suit No.: BA- 22NCVC-425-10/2023 (“Civil Suit”). [6] The Proposed Intervener became aware that the applicants had also initiated this judicial review application against the respondents after the Proposed Intervener reviewed the case documents of the Civil Suit. The judicial review application concerns two parcels of land, namely, Geran 44416, Lot 2979, Mukim Setapak, Daerah Gombak, Negeri Selangor (“Lot 2979”) and GM 981, Lot 3217, Mukim Setapak, Daerah Gombak, Negeri Selangor (“Lot 3217”) (hereinafter collectively referred to as the “Said Lands”). [7] The subject of this judicial review application is also central to the Civil Suit filed by the applicants, where they allege that the Proposed Intervener and another co-defendant trespassed onto lands owned by the applicants. S/N dCyoFpa9EiVxDrZ2s63ew [8] In the Civil Suit, the applicants further allege that the Proposed Intervener breached the tenancy agreement and assert that the agreement was unlawful and made without the applicants’ consent. [9] Both the Proposed Intervener and the co-defendant have filed their respective defences in the Civil Suit. [10] The respondents also acquired parts of Lot 2979 and Lot 3217 after the State Government of Selangor gazetted portions of the said Lands under section 8 of the Land Acquisition Act 1960 (Form D) in the Government Gazette on 22 December 2022. [11] Additionally, the applicants received compensation payments on 9 October 2023, and accepted the compensation in accordance with Form H of the Land Acquisition Act 1960 (“LAA 1960”). [12] In summary, the Proposed Intervener is the main contractor for the ECRL Project and the Proposed Intervener is to commence its work for the ECRL Project on the part of Lot 2979 and Lot 3217. The Law [13] The law in relation to intervening a Judicial Review application is set out under Order 53 Rule 8(1) of the Rules of Court 2012 as reproduced below:

“Other persons who may be heard (O. 53, r.8)

Upon the hearing of an application for judicial review, any person who desires to be heard in opposition to the application and appears to the Judge to be a proper person S/N dCyoFpa9EiVxDrZ2s63ew to be heard may be heard notwithstanding he has not been served with the cause papers in the matter.” [Emphasis added] [14] The Court of Appeal in the case of Semantan Estate (1952) Sdn Bhd v. Kerajaan Malaysia & Ors [2021] 8 CLJ 627, stated the legal principle relating to intervening in a judicial review application. The Learned Court of Appeal Judge, Kamaludin Md Said JCA held as follows: “[23] As correctly held by the learned HCJ and submitted by both parties in this appeal that there is a specific framework for the determination of applications for judicial review, whereby O. 53 r. 8(1) of the Rules of Court 2012 specifically drafted to cater for persons claiming an interest in a judicial review proceeding who wish to be heard in opposition. It reads:

Upon the hearing of an application for judicial review, any person who desire to be heard in opposition to the application and appears to the Judge to be a proper person to be heard may be heard not withstanding that he has not been served with the cause papers in the matter. [24] In this respect, there are plethora of cases on the test to determine whether a party is a proper person and it will be suffice to cull and refer to a few to restate the well-established principle. In the landmark case of Majlis Agama Islam Selangor v. Bong Boon Chuen & Ors [2009] 6 CLJ 405; [2009] 6 MLJ 307 at pp. 319 to 320, the Federal Court was of the view that the phrase "proper person" stipulated in O. 53 r. 8(1) of the Rules of Court 2012 must S/N dCyoFpa9EiVxDrZ2s63ew be read as referring to persons with direct interest. It is significant that the party not having any direct interest will not be allowed to be joined as a party, particularly in judicial review proceedings. [25] The legal principle enunciated in the case of Majlis Agama Islam Selangor (supra) was adopted in the Court of Appeal case of Advance Synergy Capital Sdn Bhd v. The Minister Of Finance, Malaysia & Anor [2011] 7 CLJ 557at pp. to 570; [2011] 6 MLJ 376 at pp. 385 to 386, where the judgment given by Justice Low Hop Bing (as he then was) at paras. [26] to [28] is reproduced herein: [26] In addition, O. 53 r. 8(1) confers upon the judge a wide discretion to hear a proper party or person in opposition to an application for judicial review ' so long as the conditions contained therein have been fulfilled, viz:

the person desires to be heard in opposition to the application; and

that person appears to the judge to be a proper person to be heard, notwithstanding that he has not been served with the cause papers in the matter. [27] In the instant appeal, so long as the judge has demonstrated a proper exercise of discretion under O. 53 r. 8(1), on the basis of the facts and circumstances prevailing in each particular case, and established judicial principles, this court would be slow in embarking on an appellate interference. S/N dCyoFpa9EiVxDrZ2s63ew [28]... In the context herein, justice and fairness dictate the necessary inclusion of the second respondent as a party to canvass their opposition on a subject matter directly affecting their interest... [26] Having outlined the principle relating to intervention in a judicial review proceeding, it is well noted that the courts take a liberal approach in granting leave to a non-party with direct interest to intervene in a judicial review proceeding, and exclude indirect interest. [27] In this respect, the test to determine whether the eighth respondent is a proper person to be heard, is whether the eighth respondent has direct interest.” [Emphasis added] [15] In short, the Court of Appeal held that the courts take a liberal approach in granting leave to a non-party with direct interest to intervene in a judicial review proceeding and the test to determine is whether the person who intervene is a proper person to be heard, is whether the person has direct interest. [16] Further, the Court of Appeal in the case of Advance Synergy Sdn Bhd (formerly known as Advance Synergy Capital Bhd) v. The Minister of Finance, Malaysia & Anor [2011] 7 CLJ 557, held that the Proposed Intervener is able to intervene the judicial review application include both stages i.e. the leave application at the threshold stage as well as substantive stage. The Court of Appeal held as follows: S/N dCyoFpa9EiVxDrZ2s63ew “[25] First of all, it is noteworthy that O. 53 is captioned "application for judicial review". The word "application" in this caption would cumulatively cover the two stages ie, the leave application at the threshold stage as well as the substantive stage after leave has been granted. Similarly, the expression "an application for judicial review" in O. 53 r. 8(1) and (2) would also include the two stages which are the essential characteristics prevailing in an application for judicial review. Leave at the threshold stage is a sine qua non to the judicial review proceedings, as the absence of leave would inevitably render the particular judicial review proceedings incomplete and inchoate. By no stretch of imagination can the essential requirement for leave be jettisoned or truncated to leapfrog to the substantive motion. In our view, the submission presented for ASC that leave may be granted to ACE to intervene at the substantive application for judicial review should also apply equally to the threshold stage as well. There is no plausible reason to exclude a proper party or person to be granted leave to intervene as a respondent at the leave stage. In such circumstances, inclusivity rather than exclusivity should be the norm, so as to ensure fairness to the party who has a direct interest in the matter. (I am grateful to my learned brother Mohamed Apandi bin Ali JCA for this input). [17] Founded on these principles, this court will consider this application to intervene in this application for judicial review. S/N dCyoFpa9EiVxDrZ2s63ew Analysis [18] The Proposed Intervener argued that it was necessary for the Proposed Intervener to intervene and be made a respondent in this judicial review for the following grounds as reproduced below: “(a) that the applicants have made following allegations against the Proposed Intervener which the Proposed Intervener will need to address, rebut and refute:

that the Proposed Intervener is the agent of the respondents; and

(ii) that the Proposed Intervener has trespassed onto the lands owned by the applicants.

the relief sought by the applicants in their judicial review application will directly affect the Proposed Intervener who is the main contractor for the said ECRL Project and the proposed intervener’s commercial and/or pecuniary interest in respect of the ECRL Project;

in the event the court granting the order/s relief sought by the applicants, it means that the acquisition of the said Lands will be reverted to the position prior to the land acquisition process and it will directly affect the proposed intervener’s defence in the Civil Suit;

it will also affect the whole ECRL Project as the Proposed Intervener’s works on the said Lands will be forced to stop and it will hinder the completion of the whole ECRL Project to the detriment of not only the Proposed Intervener but also to the public at large;

if the proposed intervener’s works on the said Lands are forced to be stopped, the ECRL Project will be delayed and S/N dCyoFpa9EiVxDrZ2s63ew that arising from these delays, the Proposed Intervener well suffer losses and damages (including but not limited to the Liquidated and Ascertained Damages (LAD);

these delays are not something that can be adequately compensated by damages only since it concerns the public interests;

any orders/reliefs sought by the applicants, if granted, will negatively impact and hinder the completion of the ECRL

further, the ECRL Project was already postponed and delayed due to matters which are not within the control of the respondent i.e. the Covid-19 Pandemic and any further delay will negatively increase the costs further.” [19] The applicant objected to the application in Enclosure 17. According to the applicant, the Proposed Intervener is not a public official or a public body which is carrying out official duties. The proposed intervener, it was submitted is the main contractor for the MRL who is the paymaster for the ECRL Project. [20] It was argued by the applicant that the Proposed Intervener as the main contractor does not have a direct relationship with the respondents. The Proposed Intervener has only a pecuniary interest. [See: Majlis Agama Islam Selangor v. Bong Boo Chuen [2009] 6 CLJ 405; Pegang Mining Company Ltd v. Choong Sam [1973] 1 LNS 107; Tohtonku Sdn Bhd v. Superace (M) Sdn Bhd [1992] 1 CLJ Rep 344] S/N dCyoFpa9EiVxDrZ2s63ew [21] In summary, the applicant’s grounds for opposing the Enclosure 17 application are as reproduced below: “(i) PYD tidak menunjukkan atau membuktikan yang mereka mempunyai kepentingan undang-undang secara langsung terhadap prosiding dan/atau proses semakan kehakiman di sini (has no direct legal interest);

(ii) PYD bukanlah pihak yang terlibat dalam proses keputusan pengambilan balik tanah pemohon-pemohon oleh Pihak Berkuasa Negeri Selangor;

(iii) Tanah pemohon-pemohon yang diambil balik akan dikembalikan milikan kepada Pihak Berkuasa Negeri Selangor iaitu bahagian tanah tersebut menjadi tanah milik kerajaan Negeri Selangor;

(iv) Kepentingan atau penglibatan PYD hanya dalam prjek ECRL sebgai kontraktor utama kepada MRL yang merupakan pemilik asset dan projek ECRL yang mana melibatkan kepentingan kewangan semata-mata iaitu dibayar oleh MRL untuk kerja-kerja yang dijalankan; dan

Tambahan pula kepentingan dan hak undang-undang PYD, jika ada, dikawal, dilindungi dan dijaga oleh responden-responden (pada masa yang sama menjaga hak kepentingan MRL)” [22] The facts of this intervener application in Enclosure 17 reveal that the Proposed Intervener is the main contractor for the ECRL Project and is to commence work for the ECRL Project on part of Lot 2979 and Lot 3217. S/N dCyoFpa9EiVxDrZ2s63ew [23] The question before this court therefore is whether the Proposed Intervener is a proper person to be heard in the applicant’s judicial review application. [24] In the case of Jerry WA Dusing & Anor v. Majlis Agama Islam Wilayah [2017] 1 CLJ 133, the Court of Appeal made reference to the Australian High Court case of Levy v. State of Victoria & Ors [1997] 146 ALR 248 and stated: “[21] The test for intervention is not one and the same in all jurisdictions. The Australian position appears to be one that the individual or organisation must have direct or indirect interests in the proceedings. The courts there, have gone to say that a direct interest is established where a non-party will be bound by the court's decision and accordingly, intervention to protect their interest must be permitted. (See Levy v. State of Victoria [1997] 189 CLR 579; Article - 'Interveners or Interferers: Intervention in Decision to Withhold and Withdraw Life-Sustaining Medical Treatment' by Lindy Willmot, 'Ben White' and Donna Cooper).” [Emphasis added] [25] The subject of the judicial review application is relevant to the ECRL Project and the Proposed Intervener, as the lands in question are integral to the project, with the railway track planned to pass through parts of Lot 2979 and Lot 3217. S/N dCyoFpa9EiVxDrZ2s63ew [26] The respondents acquired portions of Lot 2979 and Lot 3217 after the Selangor State Government gazetted the land under the Land Acquisition Act 1960 on 22 December 2022. The applicants received and accepted compensation for this acquisition on 9 October 2023, in accordance with the Act. [27] In the event this court allows the applicants’ judicial review application, the land acquisition will no longer be valid and the process will be reversed. In such a circumstance, the ECRL will be affected and consequently, the Proposed Intervener will be affected should the ECRL Project be stopped. [28] Over and above that, more importantly, the applicant has made allegations against the Proposed Intervener. It was alleged that the Proposed Intervener had trespassed onto the applicants’ lands. These allegations, in the considered view of this court ought to be addressed by the Proposed Intervener. [29] Another allegation by the applicant is that the Proposed Intervener is the agent for MRL. This too, in the view of this court ought to be addressed by the Proposed Intervener. [30] The presence of the proposed intervene in this application for judicial review, in the considered view of this court, would assist this court in determining the facts before this court as well as obtaining the full and clear picture as to the facts. This in turn, will assist this court in coming to its decision in the application for judicial review. S/N dCyoFpa9EiVxDrZ2s63ew Conclusion [31] For the aforesaid reasons, this court allowed the proposed intervener’s application in Enclosure 17. No order was made as to costs. Date: 20 August 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam S/N dCyoFpa9EiVxDrZ2s63ew Counsel: For the applicant: Siti Masturah Binti Mat Amin Tetuan Masturah Law Chambers Advocates & Solicitors A-02-06, Tamarind Square, Persiaran Multimedia, Cyber 10, 63000 Cyberjaya, Selangor Darul Ehsan. +6 03 8682 3702 info@masturahlawchambers.com For the respondent: Natrah binti Mazman Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan, Tingkat 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah 40512 Shah Alam, Selangor. +6 03 5544 7183 For the Proposed Intervener: Neo Chi Chyn Tetuan Firoz Julian, Advocates & Solicitors 19-1, Menara Milenium, Pusat Bandar Damansara, 50490 Kuala Lumpur, +6 03 9772 2450. general@fjlaw.com.my S/N dCyoFpa9EiVxDrZ2s63ew