JUGAJORTHY A/P VISVANATHAN … PERAYU PERTAMA 2. JUGAJORTHY A/P VISVANATHAN (Sebagai Pentadbir Harta Pusaka bagi mendiang suaminya Sivasegaran a/l Kandiah, simati) … PERAYU KEDUA v PENTADBIR TANAH DAERAH, DAERAH SEBERANG PERAI TENGAH PULAU PINANG … RESPONDEN PERTAMA (P-01(NCVC)(W)-303-09/2015)

DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: P-01(NCVC)(W)-303-09/2015 ANTARA

1. JUGAJORTHY A/P VISVANATHAN … PERAYU PERTAMA

2. JUGAJORTHY A/P VISVANATHAN (Sebagai Pentadbir Harta Pusaka bagi mendiang suaminya Sivasegaran a/l Kandiah, simati) … PERAYU KEDUA DAN

1. PENTADBIR TANAH DAERAH, DAERAH SEBERANG PERAI TENGAH PULAU PINANG … RESPONDEN PERTAMA

2. JABATAN KETUA PENGARAH TANAH DAN GALIAN PULAU PINANG … RESPONDEN KEDUA

3. J.K.P SDN. BHD. … RESPONDEN KETIGA

4. PEJABAT MARA NEGERI PULAU PINANG … RESPONDEN KEEMPAT

5. BAHAGIAN KEMAJUAN PERBADANAN PEMBANGUNAN BANDAR UDA … RESPONDEN KELIMA (Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Pulau Pinang Guaman Sivil No. 21NCVC-10-05/2014 Antara

1. Jugajorthy a/p Visvanathan … Plaintif Pertama

2. Jugajorthy a/p Visvanathan (Sebagai Pentadbir Harta Pusaka Bagi Mendiang Suaminya Sivasegaran a/l Kandiah, Simati) … Plaintif Kedua Dan

1. Pentadbir Tanah Daerah, Daerah Seberang Perai Tengah Pulau Pinang … Defendan Pertama

2. Jabatan Ketua Pengarah Tanah Dan Galian Pulau Pinang … Defendan Kedua

3. J.K.P Sdn. Bhd. … Defendan Ketiga

4. Pejabat Mara Negeri Pulau Pinang … Defendan Keempat

5. Bahagian Kemajuan Perbadanan Pembangunan Bandar Uda … Defendan Kelima) CORAM MOHD ZAWAWI SALLEH, JCA VARGHESE A/L GEORGE VARUGHESE, JCA ABDUL RAHMAN SEBLI, JCA JUDGMENT OF THE COURT Introduction [1] The appeal stems from the decision of the High Court at Penang dated 4.8.2015, dismissing the appellants’/plaintiffs’ claim with costs of RM15,000.00 to be paid to each respondents/defendants except the 4th respondent/defendant. [2] The appellants/plaintiffs had filed a civil suit against the respondents/defendants for declaration and damages for an alleged wrongful and fraudulent acquisition of an undivided land known as Lot No. 29, GRN GM No. 86, Daerah Seberang Perai Tengah MK1 Pulau Pinang (“the said land”) by the 1st respondent/defendant which is owned by the 1st appellant/plaintiff and her deceased husband. [3] The appellants/plaintiffs sought, inter alia, for a declaration that the acquisition of the said land is null and void and that the 4th and 5th respondents/defendants have no rights or interest upon the said land. [4] We have heard learned counsel for the parties and perused the impugned judgement as well as material on record. We dismissed the appeal and affirmed the decision of the learned trial Judge. We made no order as to costs. We gave brief reasons for our decision at that time and we now elaborate on those reasons. Facts of the Case [5] In order to appreciate the legal issues involved in this appeal, it is necessary to state a few relevant facts as follows –

5.1. The 1st appellant/plaintiff and her deceased husband respectively own ½ the undivided share of the said land. The said land has been charged to MARA (the 4th respondent/defendant) as security for a loan of RM70,000.00 to one Ismail bin Ahmad and Senthilvel a/l Visvanathan.

5.2. Part of the land was acquired for a public purpose, i.e. for “Project Pembangunan Kawasan Jawatankuasa Pemandu”. The 5th respondent/defendant was the pay master. The 2nd respondent/defendant was appointed pursuant to section 12 of the National Land Code (“NLC”) to be in charge and responsible for the acquisition.

5.3. Notice of Enquiry (Form E) was issued. The enquiry was held on 10.1.1995 before one Encik Mohamad Amin bin Abu Bakar in the presence of the officers from the respondents/defendants –

(ii) Lam Siew Phah (Officer from Department of Valuation & Property Management, Butterworth); and

(iii) Wan Jaafar bin Wan Abdullah (UDA Representative).

5.4. The 1st appellant/plaintiff had failed to attend the hearing of the acquisition of the said land.

5.5. During the said hearing, it was decided that the total compensation sum of RM186,435.00 is to be made payable to the 4th respondent/defendant being the chargee of the said land. It was also decided that any sum remaining upon payment of the loan should be made payable to the appellants/plaintiffs.

5.6. Subsequently, the 1st respondent/defendant issued the following forms –

27.6.1995 – Written award of compensation in Form G;

26.7.1995 – Notice of award and offer of compensation in Form H; and 13.9.1995 – Notice that possession had been taken of the said land (Form K) under section 22 of the Land Acquisition Act 1960 (“LAA 1960”).

5.7. Forms E, G, H and K were not served on the appellants/plaintiffs because the 1st defendant could not locate the appellants/plaintiffs.

5.8. On 21.9.1998, the 5th respondent/defendant paid to MARA (the 4th respondent/defendant) a sum of RM97,126.43 being the unsettled loan sum. The sum of RM89,308.57 was due to the appellants/plaintiffs upon full settlement of the loan sum which the appellants/plaintiffs had refused to accept.

5.9. Thus, on 1.8.2011, Penang High Court vide summons No. 24-11-1274-2011, had directed the compensation sum of RM89,308.57 to be paid into Court pursuant to section 29(2) of LAA1960.

5.10. The appellants/plaintiffs filed a civil suit against the respondents/defendants seeking for declarations and damages for an alleged wrongful and fraudulent acquisition of the said land as follows – “i) Suatu deklarasi bahawa pengambilan tanah oleh defendan melalui seksyen 22 pengambilan tanah lot No. 29, GRN GM No. 86 Daerah Seberang Perai Tengah, MK 1, Pulau Pinang adalah terbatal dan salah (null and void) dan bertentangan kepada Perkara 13 Perlembagaan Persekutuan dan juga bertentangan dengan Seksyen 11, 12 dan 16 Akta Pengambilan Tanah 1960 dan bahawa pengambilan tanah tersebut hendaklah terbatal dan dikembalikan kepada Plaintif. ii) Suatu deklarasi bahawa pampasan yang dikatakan diawardkan adalah tidak mencerminkan harga pasaran yang terkini. iii) Suatu deklarasi bahawa penglibatan Defendan Kedua adalah tidak menepati maksud pengambilan Hartanah bagi kegunaan awam. iv) Suatu deklarasi bahawa Defendan-Defendan Ketiga dan Kelima tidak ada hak atau kepentingan atas Hartanah tersebut sedang tiada apa-apa pembangunan bagi tujuan memajukan Hartanah tersebut. v) Pada alternatifnya Defendan membayar pampasan yang munasabah sejajar dengan harga pasaran yang terkini bagi Hartanah tersebut. vi) Defendan Pertama membayar ganti rugi khas atas kehilangan menggunakan Hartanah tersebut. vii) Kerugian yang dialami oleh Plaintif-Plaintif atas pencerobohan yang dilakukan oleh defendan atau pihak-pihak di bawahnya. viii) Defendan Ketiga hendaklah membayar ganti rugi khas atas menyebabkan pencerobohan atas Hartanah Plaintif dan juga gagal mengambil tindakan susulan bagi maksud kegunaan awam. ix) Defendan Keempat hendaklah memulang balik wang tebusan yang diterima kepada Defendan Pertama atas sebab pengambilan Hartanah bagi maksud kegunaan awam telah gagal. x) Suatu Perintah mengarahkan Defendan (Pentadbir Tanah Daerah) dan/atau pihak berkuasa berkenaan Pendaftaran Hakmilik Tanah hendaklah melakukan yang sepatutnya untuk memberi efek atau kesan kepada Perintah ini. xi) Kos. xii) Lain-lain Perintah atau relif yang Mahkamah Yang Mulia ini anggap suaimanfaat”.

5.11. As alluded to earlier, the learned trial Judge dismissed the appellants’/plaintiffs’ claim with costs of RM15,000.00 to be paid to each respondents/ defendants except the 4th respondent/ defendant.

5.12. Dissatisfied with the impugned decision, the appellants/plaintiffs appealed to this Court. Hence, this appeal before us. Findings of the Learned Trial Judge [6] The learned trial Judge, after considering the evidence on record, held that the appellants/plaintiffs had failed to prove their case against the 1st respondent/defendant rendering other allegations against the 2nd, 3rd and 5th respondents/defendants as baseless and without merit. [7] The reasoning of the learned trial Judge in reaching the conclusion that he did, may be summarised as follows –

13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.”. 2nd Ground [17] Learned counsel for appellants/plaintiffs vehemently argued that the Forms G, H, and K were not served on the appellants/ plaintiffs rendering the entre process of acquisition on the said land invalid and/or unlawful. [18] Learned counsel for the appellants/plaintiffs submitted that since the mandatory requirements under sections 14(1) (Written award of compensation), 16(1) (Notice of award and after of compensation) were section 22 (Notice that possession has been taken of the land) of LAA 1960, are not complied with by the 1st respondent/defendant while acquiring the said land, the entire acquisition proceedings ought to have been declared as null and void by the High Court. [19] The requirement was a substantial right and could not be taken away as a side wind. Acquisition of land is a serious matter. It may result in depriving a registered owner of the land not only of his property but also his profession, livelihood and social security. Therefore, all the formalities of serving notice to the registered owner of the land has to be mandatorily complied with in the manner provided under the LAA 1960. [20] With respect, in the circumstances of the present appeal, we disagree with the submission. The non-service of the relevant Forms on the appellants/plaintiffs was not due to negligence or oversight or due to any ulterior reasons on the part of the 2nd respondent/ defendant. According to SP2, Form E could not be served on the appellants/plaintiffs because the appellants’/plaintiffs’ address was not stated in the Document of Title of the said land. Form E was served on MARA (the 4th respondent/defendant) because the said land has been charged to the 4th respondent/defendant as security for a loan of RM70,000.00. [21] During the enquiry, the 2nd respondent/defendant was informed by the representative of the 4th respondent/defendant of the charge held in its favour over the land which had been compulsorily acquired, and laid claim to payment of the compensation monies pursuant to the terms of charge in the sum of RM186,435.00. [22] As the chargee of the said land, the 4th respondent/defendant is entitled to payment of the amount owing in the sum of RM186,435.00 and any sum remaining upon payment of the loan should be made payable to the appellants/plaintiffs. [23] The 4th respondent’s/defendant’s security interest under the charge has not been acquired nor can it be acquired pursuant to LAA

1960. The 4th respondent/defendant is, therefore, entitled to the unsettled loan sum of RM97,126.43 from the payment of the compensation of the said land. [24] It must be noted that section 2 of the LAA 1960 defines the term “person interested” to include every person claiming an interest in compensation to be made on account of the acquisition under LAA

1960. In our view, the 2nd respondent/defendant was correct in serving Form G on the 4th respondent/defendant. This is because the 4th respondent/defendant as the chargee of the said land should be construed as a “person interested therein” within the meaning of section 14 of LAA 1960. (See Cahaya Baru Development Bhd v Lembaga Lebuhraya Malaysia [2010] 8 CLJ (761); [2011] 2 MLJ 729). [25] In Perbadanan Kemajuan Pertanian Negeri Selangor v JW Properties Sdn Bhd [2017] 8 CLJ 392, the Federal Court held at para [47] that the notice under Form E (Second Schedule) of the LAA 1960 is required to be served on person interested to appear before the land administrator which includes all persons having interest in the said land, whether as proprietor, occupier, lessee, chargee, tenant or otherwise. [26] It is clear that non-service of Form E on the appellants/plaintiffs would not invalidate the inquiry conducted on 10.1.1995 and the award made thereto. Proviso to section 11(1) provides – “Provided that no omission or failure to serve such notice upon any person falling under paragraph (b) or (c) shall invalidate any enquiry held pursuant to the notice or any award made upon the conclusion of the enquiry if, by reason of damage or deterioration of the register document of title to such land, such person cannot be ascertained.”. [27] Further, section 56 of LAA 1960 provides –

56. “Omission, etc., not to invalidate proceedings No omission or failure to make due publication of a notice or to make due service upon persons and parties interested as provided for in this Part shall invalidate any proceedings under this Act.”. 3rd Ground [28] In our view, the appellants/plaintiffs had failed to prove on the balance of probabilities that the said land was not used for a public purpose but was instead occupied by squatters as pleaded in the Amended Statement of Claim. We say so for the following reasons –

(2) it would not be possible or practical to specify the exact purpose of any particular lot. If the land was acquired for a public purpose the plaintiffs had no choice but to surrender the land to the Government, and it was immaterial to them for what purpose the land was used, as long as it was for a public purpose;

(3) there was no need for the State authority to confine its acquisition of land to purposes which came under one head only, i.e. either under section 3(a), 3(b) or 3(c). They may use either head individually or may combine one or two of them as the case may be.”. [31] In Syed Omar bin Abdul Rahman Taha Alsagoff & Anor v Government of the State of Johore [1975] 1 MLJ 241, the Federal Court held that – “the declaration issued under section 8 of the Land Acquisition Act in this case was conclusive evidence that the lands referred to therein were needed for the purpose specified therein and therefore there was no merit in the contention that the acquisition proceedings were null and void.”. Conclusion [25] We have given our anxious consideration to issues raised by the appellants/plaintiffs and found them to be totally bereft of merit. Resultantly, we dismissed the appeal with no order as to costs. So ordered. Dated: 5th December 2017 sgd (DATO’ SETIA MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia Counsel for Appellants: N Ahilan Tetuan N. Ahilan & Associates Peguambela dan Peguamcara No. 45, Bishop Street 10200 Penang. Counsel for the 1st Respondent: Siti Fatimah Talib (Charanjit Singh with her) Pejabat Penasihat Undang-Undang Negeri Pulau Pinang Aras 10, Bangunan Persekutuan Jalan Anson 10400 Pulau Pinang. Counsel for the 2nd Respondent: Nurul Huda bt Mohd. Salehuddin Peguam Kanan Persekutuan Jabatan Peguam Negara Persiaran Perdana, Presint 4 62100 Putrajaya. Counsel for the 3rd Respondent: Badrul Hisham Messrs Badrul, Samad, Faik & Co No. 17-1 & 17-2 Pusat Perniagaan Bandar Perda Jalan Perda Utara Bandar Perda 14000 Bukit Mertajam. Counsel for the 5th Respondent: Leslie Bala (Jasreen Kaur with her) Othman Hashim & Co Suite 10.02 & 10.04 10th Floor, Menara Zurich No. 170, Jalan Argyll 10050 Penang.