1. ) GOVINDARAJ A/L G. NARAYANASAMY v Pentadbir Tanah Daerah Gombak (BA-25-3-01/2025)

ANTARA GOVINDARAJ A/L G. NARAYANASAMY

CHELAIDHARAI A/L KALIMUTHU

N. THARUMARAJAH A/L G. NARAYANASAMY

MAHESWARI A/P N. PONNUSAMY

KRISHNAN A/L NARAYASAMY

ALI KUTY BIN A. KADAR

RAMESH A/L VATHIAH

PRAKASH A/L NADARAJAN

RAJASEGAR A/L SUBRAMANIAM (NO. K/P: 711009-08-5081) …PEMOHON-PEMOHON

DAN

PEJABAT DAERAH DAN TANAH GOMBAK …RESPONDEN-RESPONDEN ALASAN PENGHAKIMAN (Lampiran 1)

Vide Enclosure 1, the Applicants (excluding Applicant 2) prayed for leave to file for Judicial Review for the following reliefs –

an order of certiorari to quash the Respondents’ decision alleging that the residents of Kampung Indian Settlement (Settlement) are occupying Government land without permission;

(ii) an order of mandamus to maintain the present plots as is; and

(iii) an order of prohibition to prevent the Respondents from asking them to vacate the Settlement and demolishing the existing structures.

After careful consideration of the cause papers and submissions on behalf of the Applicants and the Honourable Attorney General Malaysia (AG), this Court allowed the AG’s objections and dismissed Enclosure 1. The following is the reasons for the decision. Background facts

The Applicants filed Enclosure 1 on 9.1.2025 to challenge the Respondents’ allegation that the residents of the Settlement were occupying Government land without permission of the State Authority.

The Respondents issued notice dated 10.9.2024 (First Notice) notifying the residents of the Settlement that they had committed an offence under section 425 National Land Code 1965 which made them liable to a fine of RM50,000.00 or a term of imprisonment not less than 5 years or both unless they vacated the Settlement or demolished the structures thereon within 60 days of the notice.

On 13.9.2024, the Applicants attended a session with the Respondents wherein they were told why they were trespassing on Government land and the need to demolish the structures built thereon.

The Respondent then issued another notice dated 14.10.2024 (Second Notice) of the offence and giving the residents until 10.1.2025 to vacate the Settlement. AG’s objection - time

The AG objected to Enclosure 1 arguing that the application was filed out of time contrary to O.53 r.3 (6) Rules of Court 2012 (ROC) which reads – “An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant”

The AG cited several cases wherein this provision was examined including Wong Kin Hoong & Anor (Suing For Themselves And On Behalf All Of The Occupants Of Kampung Bukit Koman, Raub, Pahang) v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161 wherein Raus Sharif PCA (as His Lordship then was) held at 171 – “The time frame in applying for judicial review prescribed by the Rules was fundamental. It goes to jurisdiction and once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, the court no longer has the jurisdiction to hear the application for leave for judicial review. Whether the application has merits or not, is irrelevant.”

The AG argued that the date when the grounds of this application first arose was the date of the First Notice. The time to file any challenge to that notice expired on 9.11.2024. The Applicants’ application which was filed on 9.1.2025 was 30 days outside this period.

Contrary to the Applicants’ contention that time starts to run from the date of the Second Notice, the AG pointed out that the Second Notice merely gave the residents an extension of time to vacate the Settlement. It is not a new decision.

The Applicants did not apply for extension of time and therefore the application was incompetent (Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ1; [2017] 1 MLJ 563 at 589).

The Applicants responded that the application was within time because the challenge was mounted on the Second Notice.

In particular the Applicants argued that they were not merely challenging the notices to vacate but the entire decision of the Respondents alleging them to have occupied the Settlement without permission.

In their submissions the Applicants referred to the chronology of events leading to the issuance of the First Notice where several organisations had sent letters to the State Authority on behalf of the residents of the Settlement on their right to stay put. Principles of law regarding Judicial Review

O.53 ROC sets out a specific procedure for applying for reliefs under the First Schedule Courts of Judicature Act 1964 (Act 91).

In particular, O.53 r.3(6) ROC mandates that an application for such reliefs should be made promptly, within 3 months from the date when the grounds of application first arose.

The dicta as to this provision enunciated by the Federal Court in several cases is clear and binds this Court; this Court has no jurisdiction to hear any application that is filed outside this time frame without regard of the merits of the application.

Despite the Applicants’ counsel earnest plea that the two notices are different, they are not. Both inform the residents of the Settlement that they are in occupation without the permission of the State Authority and that they should vacate the Settlement; failing which they could be prosecuted.

The Second Notice merely extends the time given for vacating the site.

The Applicants’ own narrative shows that the status of their occupation of the Settlement was in issue even before the notices were issued.

If as the Applicants contend – “Pemohon-Pemohon sesungguhnya menegaskan bahawa keputusan yang dicabar adalah keseluruhan keputusan Responden-Responden yang mendakwa Pemohon-Pemohon telah menduduki tanah Kerajaan tanpa kebenaran yang sah daripada pihak berkuasa negeri …” (para 11 Enclosure 27), then they are clearly out of time.