1. ) Jw Properties Sdn Bhd v 1. ) Pentadbir Tanah Daerah Kuala Selangor (BA-21NCvC-57-10/2019)

JW PROPERTIES SDN BHD (No. Syarikat : 397435-M)

EVERGROWTH AQUACULTURE SDN BHD (No. Syarikat : 584028-H) ...PLAINTIF-PLAINTIF

1.

KERAJAAN NEGERI SELANGOR …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs’ claim has its origins in the enquiry held by the Land Administrator in land acquisition proceedings. The Plaintiffs did not receive any award of compensation for their claim. Aggrieved at the decision, they filed land reference proceedings in the Shah Alam High Court. 30/08/2023 16:20:52 BA-21NCvC-57-10/2019 Kand. 68 S/N tDUtZKkjoUahhopu2qTZlA [2] The High Court upheld the Land Administrator’s decision not to make an award of compensation. [3] The Plaintiffs pursued their claim by appealing to the Court of Appeal. The Court of Appeal allowed the appeal. In allowing the appeal, a specific order was issued for the Land Administrator to determine compensation. [4] Subsequent thereto, the Land Administrator took steps to seemingly comply with the order of the Court of Appeal, by engaging the Plaintiffs in a series of meetings and correspondence. The Plaintiffs now allege that the Land Administrator’s actions had culminated in an award of compensation of RM 56,992,100.30 being made in their favour, which the Defendants are legally obliged to pay. The instant suit filed is to compel payment of the award. The salient facts [5] The background facts which led to the filing of the Plaintiffs’ claim, are in the narration of events in the Statement of Claim. They are as follows. [6] On or about the year 2002, the 2nd Defendant, the State Government of Selangor (“State Government”) invited the 1st Plaintiff (“JW Properties”) to participate in a prawn farming project in Selangor (“the Project”) on lands identified as HSD 13555PT 4172, HSD 13556 PT 4173 and HSD 13557 PT 4174 (“the lands”). At the material time, the lands on which the Project was earmarked S/N tDUtZKkjoUahhopu2qTZlA to be carried out belonged to Perbadanan Kemajuan Pertanian Selangor (“PKPS”), the State Government’s agricultural arm. To give effect to the intention of the parties, on 8.11.2002, PKPS entered into a joint venture agreement (“JVA”) with JW Properties to execute the Project. [7] As the lands were originally swamps in the coastal area of Selat Melaka, the land had to be first rehabilitated into proper lands to support the infrastructure required for prawn cultivation farms.

HSD 13555 PT 4172, Mukim Api-Api 2. HSD 13556 PT 4173. Mukim Api-Api 3. HSD 13557 PT 4174, Mukim Api-Api Pengambilan Balik Tanah Bagi Tujuan Pemuliharaan Tanaman Bakau Mukim Api-Api Daerah Kuala Selangor Dengan hormatnya merujuk kepada perkara di atas.

Untuk makluman tuan, Bersama-sama ini dikemukakan award pampasan bertulis bagi JW Properties Sdn Bhd dan Evergrowth Aquaculture Sdn Bhd. Bayaran pampasan tersebut boleh dibayar kepada Evergrowth Aquaculture Sdn Bhd, kepada akaun Malayan Banking Berhad, Cawangan Kuala Selangor no. akaun 512138001279. Bersama-sama ini juga disertakan sesalinan surat daripada syarikat JW Properties Sdn Bhd untuk makluman dan tindakan pihak tuan selanjutnya. S/N tDUtZKkjoUahhopu2qTZlA

Kerjasama dan perhatian pihak tuan dalam perkara ini amatlah dihargai dan diucapkan ribuan terima kasih. Sekian. “MEMBANGUN BANGSA MEMAKMUR NEGERI” “BERKHIDMAT UNTUK NEGARA” Saya yang menurut perintah, t.t (HAZANA @ HARTINI BINTI HISAMUDDIN) b.p Pentadbir Tanah Kuala Selangor. s.k.:

Pegawai Kewangan Negeri Perbendaharaan Negeri Selangor Tingkat 2, 8-12, Bangunan Sultan Salahuddin Abdul Aziz Shah

Pegawai Undang-Undang Negeri Selangor Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan Tingkat 4, Podium Utara

JW Properties Sdn Bhd 84-A, First Floor, Jalan Burhanuddin Helmi

Evergrowth Aquaculture Sdn Bhd 84-A, First Floor, Jalan Burhanuddin Helmi Taman Tun Dr. Ismail 60000 KUALA LUMPUR S/N tDUtZKkjoUahhopu2qTZlA [20] The attachment to the EPU letter (“disputed award”) is reproduced below:- [21] The EPU letter was copied to the Plaintiffs. This letter, particularly the disputed award, is the very basis upon which the Plaintiffs’ case now rests. The Plaintiffs contend that the Land Administrator, by the disputed award, had made a final award of compensation under the provisions of the Land Acquisition Act, 1960. [22] Subsequent to the EPU letter, the Land Administrator issued a letter dated 16.7.2018 to the Plaintiffs requesting them to furnish S/N tDUtZKkjoUahhopu2qTZlA its Audited Reports in order to process the payment for compensation. The Plaintiffs responded to register their objection at the request and to complain about the delay in making payment for the award issued on 10.10.2017. [23] On 3.9.2018, the Land Administrator appeared to take an about-turn when he informed both Plaintiffs that that no award of compensation for the amount of RM 56,992,100.30 had been made. The reason proffered, evident from the letter, was “Ini kerana Borang G and Borang H belum dikeluarkan oleh Pentadbir Tanah kepada anak guam tuan kerana siasatan pengambilan tanah belum selesai sehingga semakan semula terhadap salinan resit-resit yang dikemukakan dikendalikan dan jumlah award pampasan dimuktamadkan dengan pengeluaran Borang G dan Borang H oleh Pentadbir Tanah.” The Plaintiffs were again reminded to furnish the requisite documents to substantiate their claim for compensation. [24] The Plaintiffs objected to the stand taken by the Land Administrator to dispute that no award had been made. Dissatisfied, they instructed their solicitors to issue a Notice of Demand for payment of RM 56,992,100.30. It is against this backdrop that the Plaintiffs have filed the instant suit. The claim of the Plaintiffs [25] The Plaintiffs contend that the Land Administrator had completed the enquiry when it prepared the disputed award dated 10.10.2017. The EPU letter by the Land Administrator requesting the State S/N tDUtZKkjoUahhopu2qTZlA Economic Planning Unit to make payment of RM 56,992,100.30 to the Plaintiffs, further confirmed that an award had been made. [26] In view of these actions taken, the Land Administrator is now estopped from denying that the ulangan siasatan has concluded and that an award of compensation had in fact been made. Its refusal to make payment amounts to a breach of statutory duty on the part of the Land Administrator, for which the State Government is vicariously liable under the provisions of the Government Proceedings Act, 1956. [27] Apart from the principal contention that an award had been made by the Land Administrator, the Plaintiffs’ Statement of Claim also contains numerous allegations against the State Government. It was alleged that the State Government had failed to uphold its end of the bargain when it invited JW Properties to participate in the Project. It also agreed that JW Properties was to bear only 70% of the costs of the Project. It failed to ensure that PKPS was to bear the remaining 30%. In addition, contrary to the representation made to the Plaintiffs by the State Government that Evergrow would be given a 99 year lease to recover the costs expended, the latter was granted only a 50 year lease. [28] The Plaintiffs also alleged that the stated purpose of the compulsory acquisition was mala fides and unreasonable as the Plaintiffs had already filled up the swamp lands to developed lands. In view of this, the acquisition to carry out rehabilitation of the swamp lands was suspect. Added to that, the State Government had profited at the expense of the Plaintiffs as the latter had solely S/N tDUtZKkjoUahhopu2qTZlA borne and paid for the costs to improve the said lands. The State Government had therefore acted in bad faith and an oppressive manner. [29] At the trial, these allegations were not strenuously pursued. The Plaintiffs’ claim was principally premised on the fact that the Land Administrator had clearly made an award of compensation on 10.10.2017 for the sum of RM 56,992,100.30. The Defendants are now not entitled to withhold payment. [30] By failing to pay the Plaintiffs, the Defendants had breached their statutory duties under the Land Acquisition Act, 1960. The Plaintiffs thereupon seek an order that the Defendants pay the award of compensation of RM 56,992,100.30 to the Plaintiffs. The payment of such award is to carry late payment charges under section 32. [31] The Plaintiffs also seek to be awarded aggravated and exemplary damages against the Defendants for having acted in contumelious disregard for the Plaintiffs’ rights to the compensation monies, which the Plaintiffs regard as oppressive and mala fides. The Defence of the Defendants [32] The Defendants’ position is that the Land Administrator had complied with the Court of Appeal’s order of 10.12.2014 by conducting the ulangan siasatan. However, it did not conclude with the issuance of an award. They contend that no award had been made by the Land Administrator. The disputed award in the document dated 10.10.2017 and relied on by the Plaintiffs, is not a S/N tDUtZKkjoUahhopu2qTZlA statutory award in Form G under the Land Acquisition Act, 1960. Further, it was not followed with a notification in Form H to the Plaintiffs. [33] The Plaintiffs’ claim that an award had been made is not borne out by the oral and documentary evidence before this court. In short, the entire claim of the Plaintiffs is without merit and not proven. Issues for determination [34] Arising from the respective positions taken, the central issue for determination is whether the Land Administrator had made an award of compensation for RM 56,992,100.30 vide the disputed award dated 10.10.2017. The other reliefs sought by the Plaintiffs rests upon a determination of this principal issue. Analysis and decision of this court [35] The Plaintiffs and the Defendants relied on both documentary and oral evidence to prove their case. The Plaintiffs called one of their directors to testify on their behalf. He adduced evidence on the historical background to the dispute as well as the basis of the Plaintiffs’ claim. [36] As for the Defendants, the Land Administrator who issued the disputed award testified. Her evidence was to explain in particular, the import of the EPU letter and the disputed award. S/N tDUtZKkjoUahhopu2qTZlA [37] Having considered the evidence adduced by the parties, I am of the view that the determination of this case turns mainly on the documents before this court. The order of the Court of Appeal [38] I shall revert again to the order which led to the instant dispute. The order of the Court of Appeal in respect of the 6 appeals reads,

Rayuan dibenarkan;

Perintah Mahkamah Tinggi bertarikh 19 September 2013 diketepikan;

Perkara ini diremitkan kepada Pentadbir Tanah Kuala Selangor untuk taksiran jumlah pampasan kepada

Kos sebanyak RM 3,000.00 dibayar kepada Perayu;

Deposit dikembalikan kepada Perayu. [39] With respect, I find the order in paragraph (c) puzzling for the following reasons. [40] Firstly, the matter before the Court of Appeal emanated from the decision of the High Court in land reference proceedings. Under the Land Acquisition Act 1960 (“LAA”), land reference proceedings are filed in the High Court where there is an objection filed in Form S/N tDUtZKkjoUahhopu2qTZlA N against the award of the Land Administrator. The High Court then hears the land reference assisted by two assessors appointed pursuant to provisions in the LAA. In this case, the High Court made a decision on 19.9.2013 to disallow the objection of the Plaintiffs. An appeal was then brought to the Court of Appeal in respect of his decision. [41] Therefore, when the appeal was allowed, the High Court’s decision was ordered to be set aside. This would be followed with an order for the matter to be remitted to the High Court to be re-heard. Instead, an order for the matter to be remitted to the Land Administrator to determine compensation, was made. [42] Secondly, I am doubtful if the Land Administrator could re-hear the claim for compensation. The law makes no provision for him to re-hear the Plaintiffs’ claim in respect of the same acquisition. [43] The order to remit the matter to the Land Administrator, was therefore, surprising. Unfortunately, I do not have the benefit of knowing if parties made any attempt to seek clarification on the order of the Court of Appeal, which may well have thrown some light on the matter. [44] In any event, as matters stand, the Land Administrator made attempts to comply with the order of the Court of Appeal by conducting an ulangan siasatan. S/N tDUtZKkjoUahhopu2qTZlA Whether the Land Administrator had made an award of compensation [45] The Plaintiffs’ contend that the ulangan siasatan concluded with a final award on 10.10.2017, evidenced by the disputed award. [46] The Plaintiffs contend that the document was, for all intents and purposes, a written award in Form G pursuant to section 14(1) of the LAA. Their reasons for so saying are as follows:-

the format and content of the disputed award complies with the provisions of the LAA. In this regard, the court must have regard to substance over form;

a purposive approach is to be adopted to conclude that the act of the Land Administrator in conducting the ulangan siasatan was in due compliance with the provisions of section 12, 14 and 16 which resulted in an award of compensation; and

EPU’s letter of 10.10.2017 which was signed by the Land Administrator and copied to the Plaintiffs, is proof of an award having been made. [47] The Defendants contend otherwise as the disputed award does not comply with Form G of the LAA. As far the Land Administrator is concerned, no award had been made as the process of making an award had not been completed. S/N tDUtZKkjoUahhopu2qTZlA [48] Upon considering the documentary evidence referred to, I find the Plaintiffs’ contention that an award under section 14 of the LAA had been made, to be wholly misconceived. [49] The process by which an award in section 14 is arrived at begins with the Land Administrator exercising his functions in accordance with the provisions of section 10 by giving public notice in Form E and fixing the date of an inquiry for the hearing of claims to compensation in respect of all interests in such land. [50] He then proceeds to hold an enquiry in section 12 to assess the amount of compensation which will conclude with a written award in Form G pursuant to section 14. For ease of reference, I have set out the relevant portions of both provisions below,

(1) On the date appointed under of subsection 10(1) the Land Administrator shall make full enquiry into the value of all scheduled lands and shall as soon as possible thereafter assess the amount of compensation which in his opinion is appropriate in each case, according to the consideration set out in the First Schedule: Provided that the Land Administrator may obtain a written opinion on the value of all scheduled lands from a valuer prior to making an award under section 14.

The Land Administrator shall also enquire into the respective interests of all persons claiming compensation or who in his opinion are entitled to compensation in respect of the scheduled land, and into the objections, if any, made by any interested person to the area of any scheduled land. S/N tDUtZKkjoUahhopu2qTZlA

The Land Administrator may for a sufficient cause to be recorded by him in writing postpone any enquiry or adjourn any hearing of an enquiry from time to time. Award of the Land Administrator

(1) Upon the conclusion of the enquiry under section 12 relating to any scheduled land the Land Administrator shall prepare a written award under his hand in Form G, in which he shall, in respect of each separate area of scheduled land, make a separate award in respect of each person whose interest in the land has been established in such enquiry.

Every award prepared under subsection (1) shall be filed in the office of the Land Administrator and shall be final and conclusive evidence of the area of any scheduled land, of its value in the opinion of the Land Administrator, and of the apportionment of the compensation awarded by the Land Administrator, whether the persons interested therein have or have not appeared at the enquiry. …… [51] Reading all these provisions together, I am of the view that the only award envisaged under section 14 is the award made following the procedures laid down in the LAA, namely section 10 and section

This is the process by which an award for compensation is made by the Land Administrator in land acquisition proceedings. The disputed award was made in an ulangan siasatan which was not the procedure laid down in the law. In the circumstances, the disputed award cannot be said to be an award made pursuant to section 14. S/N tDUtZKkjoUahhopu2qTZlA [52] In addition, an award made under section 14(1) must be followed with a service of a notice in Form H (See: section 16 of the LAA). This was not done. [53] DW1 in her testimony explained the issuance of the EPU letter, attaching the disputed award. She was the Land Administrator at the material time. She explained that the EPU letter was issued on the instructions of EPU. Her evidence was as follows, “Dokumen ini dikeluarkan berdasarkan perbincangan bersama wakil UPEN. Surat ini dihantar kepada UPEN bagi tindakan seterusnya kerana wakil UPEN memaklumkan perlu mengemukakan kepada Pejabat Kewangan Negeri Selangor. Berdasarkan ulangsiasatan kedua, jumlah tuntutan berdasarkan resit yang dikemukakan berjumlah RM 56,992,100.30 dan Pentadbir Tanah akan mendapatkan maklumbalas daripada UPEN dan PWN sebelum award pampasan dimuktamadkan. Sehubungan itu, dokumen MS 190-193 dikeluarkan. Berikutan resit yang dikemukakan sepanjang ulangsiasatan iaitu resit yang difotokopi, Pentadbir Tanah telah dinasihatkan agar meminta syarikat mengemukakan Penyata Kewangan Beraudit (MS 194). Berdasarkan dokumen MS 198,, tiada award pampasan berjumlah RM 56,992,100.30 telah diputuskan oleh Pentadbir Tanah Kuala Selangor. S/N tDUtZKkjoUahhopu2qTZlA Borang G dan H belum dikeluarkan kepada syarikat sehingga semakan semula terhadap salinan resit-resit selesai dimuktamadkan. Berdasarkan dokumen MS 198, jumlah RM 56,992,100.30 yang dikatakan adalah award pampasan tersebut adalah tidak dimuktamadkan berikutan plaintif gagal mengemukakan dokumen Penyata Kewangan Beraudit. [54] She categorically denied that she had made a final award. Notwithstanding rigorous cross examination by the Plaintiffs’ counsel, she insisted that an award had yet to be made. [55] Counsel for the Plaintiffs submitted that her evidence is entirely irrelevant and inconsequential as it is for the court to construe whether the disputed award is a written award under section 14(1) of the LAA. To that extent, I agree with the submission of the Plaintiffs’ counsel. Her evidence however, offers some explanation on the position taken by the Defendants to oppose the Plaintiffs’ claim. [56] In any event, regardless of her explanation on the actions taken subsequent to the Court of Appeal order, I find that that the provisions of the LAA does not provide for a Land Administrator to conduct an ulangan siasatan. [57] To do so would be tantamount to ignoring the applicable provisions on the process by which an award of compensation is arrived at. S/N tDUtZKkjoUahhopu2qTZlA The process of making an award for compensation lies only within the four corners of the LAA. [58] The Plaintiffs strenuously argued that a purposive approach ought to be adopted to conclude that an award had been made under section 14(1). The EPU letter is relied on to bolster this argument. [59] I find the argument to be fallacious for 2 reasons. Firstly, it would be giving a very strained interpretation to the provisions of the LAA for an award under section 14(1) to cater for the disputed award made in an ulangan siasatan. To reiterate, an award under section 14 comes about only by the process laid down in the preceding sections. The principles on statutory interpretation are well established. This court is not entitled to read into the law words which are non-existent. (See: AJS v JMH and another appeal [2022] 1 MLJ 778, Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721). [60] Secondly, the EPU letter was merely copied to the Plaintiffs. Its attachment, in the form of the disputed award cannot, by any stretch of imagination, be construed as an award within the meaning of section 14(1) of the LAA. [61] Further, the scheme of the LAA also provides for an objection to be made against the award of the Land Administrator. The Plaintiffs’ main relief in this action is found in paragraph 72 (1) of its Statement of Claim where an order is sought “That the Defendants S/N tDUtZKkjoUahhopu2qTZlA shall pay the award of compensation in the sum of RM 56,992,100.30.” If the contention of the Plaintiffs is right in that an award had been made under section 14(1), to grant such a relief would be to allow the Plaintiffs to circumvent the provisions of the LAA as the party paying the compensation monies would be deprived of the opportunity to make an objection to the award. [62] In the circumstances, I am of the view that this court cannot grant the main relief sought for. The claims for late payment charges and damages [63] For the sake of completeness, I shall make mention of the other reliefs sought. [64] Apart from claiming to be paid the amount of RM 56,992,100.30, the Plaintiffs also seek to be awarded late payment charges pursuant to section 32 of the LAA. This claim is consequential and contingent to the main claim being allowed. In view of my decision on the main relief, the question of late payment charges does not arise. [65] With regard to aggravated and exemplary damages, this claim is premised on the refusal of the Land Administrator to pay compensation after the disputed award. Again, in view of my decision on the main relief, the issue of damages does not arise. S/N tDUtZKkjoUahhopu2qTZlA Conclusion [66] Premised on the reasons aforementioned, the Plaintiffs case fails and must be dismissed. I also order that costs of RM 15,000 be paid by the Plaintiffs’ to the Defendant. Dated : 30 August 2023 -SGD- ...………………..….... Alice Loke Yee Ching Judge High Court of Malaya at Shah Alam Counsel for Plaintiffs : Mr. Jason Lai Tetuan Munhoe & Mar Counsel for Defendants : Khairul Nizam bin Abu Bakar (Ms. Etty Eliany Tesno and Muhammad Shah Faris with him) Pejabat Penasihat Undang-Undang Negeri Selangor S/N tDUtZKkjoUahhopu2qTZlA