JW Properties Sdn Bhd v Pentadbir Tanah Daerah Kuala Selangor (BA-25-9-01/2024)

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

EVERGROWTH AQUACULTURE SDN BHD (No. Syarikat: 584028-H) …PEMOHON-PEMOHON DAN PENTADBIR TANAH DAERAH KUALA SELANGOR …RESPONDEN JUDGMENT LEAVE FOR JUDICIAL REVIEW [1] This is an application under Order 53 Rule 3 of the Rules of Court 2012 by the applicants, JW Properties Sdn Bhd and Evergrowth Aquaculture Sdn Bhd for leave of court to commence judicial review proceedings against the Kuala Selangor Land Administrator for the following reliefs: “(i) An Order of Certiorari to quash the respondent’s decision to fix and/or hold and/or proceed with the ulangan siasatan perbicaraan baru on 07.11.2023 (“Impugned Decision”) in relation to the compulsory acquisition of the lands held under:

HS(D) 13555 PT 4172;

HS(D) 13556 PT 4173; and

HS(D) 13557 PT 4174. all in Mukim Api-Api, District of Kuala Selangor, State of Selangor Darul Ehsan (hereinafter collectively referred to as the “Lands”);

(ii) A declaration that the ulangan siasatan perbicaraan baru held by the respondent on 7 November 2023 in relation to the compulsory acquisition of the Lands is null and void and/or invalid;

(iii) A declaration that the purported award of compensation in the sum of RM1,299,600.00 made by the respondent at the ulangan siasatan perbicaraan baru on 7 November 2023 (“Purported Award of Compensation”) in relation to the compulsory acquisition of the Lands is null and void and/or invalid;

(iv) Further or in the alternative to paragraph (iii) above, an Order of Certiorari to quash the Purported Award of Compensation;

An Order of Certiorari to quash the respondent’s decision to issue and serve on the applicants the Notis Award Dan Tawaran Pampasan in the form of Form H dated 8 November 2023 for the Purported Award of Compensation in the sum of RM1,299,600.00

(vi) Further or in the alternative to paragraph (v) above, a declaration that the Form H issued and served by the respondent on the applicants is null and void and/or invalid;

(vii) An Order of Prohibition to prohibit the respondent from:

fixing and/or holding any ulangan siasatan perbicaraan baru and/or any fresh or new enquiry;

making any new purported award of compensation; and/or

issuing and/or serving any new notis award dan tawaran pampasan in the form of Form H in respect of any such new purported award of compensation; in relation to the compulsory acquisition of the Lands until the applicants’ rights under Article 13 of the Federal Constitution and/or the Court of Appeal Orders all dated 10 December 2014 and/or the Land Acquisition Act 1960 (“LAA 1960”), including but not limited to the rights arising from the Award of Compensation in the sum of RM56,992,100.30 made by the respondent on 5 October 2017 as formalised in writing by the Award Pampasan Bertulis dated 10 October 2017, are fully and finally determined by the courts of Malaysia.” Factual background [2] The State Government of Selangor proposed a joint venture prawn farming project and appointed the first applicant to carry it out. The designated lands were originally swamps in the coastal area, requiring significant filling before development. The lands were transferred to Perbadanan Kemajuan Pertanian Selangor (PKPS), which then entered into a joint venture agreement with the first applicant. Under the agreement, PKPS was responsible for 30% of the project costs, including land filling and infrastructure development. Although RM34 million was approved for PKPS's share, PKPS defaulted and contributed nothing. [3] In the 2009 Land Inquiry, the respondent issued an award on 15 September 2009 denying compensation to the applicants, even though the second applicant is a lessee and occupant of the lands, and both applicants had invested in developing the prawn farms. The applicants objected to this decision, leading to Land Reference Proceedings in the Shah Alam High Court. On 27 June 2013, the High Court ruled that the applicants were entitled to receive compensation. [4] Following the Court of Appeal’s orders on 14 October 2014, the matter was remitted to the respondent for assessment of the compensation due to the applicants. Between 2016 and 2017, three inquiries were conducted to assess the compensation, with the final inquiry on 5 October 2017 resulting in an award of RM56,992,100.30. The compensation was formalized in a written award on 10 October 2017. [5] Four months after the Award of Compensation was issued, the respondent had not paid the applicants. In a meeting on 21 February 2018, the respondent proposed paying the compensation partially in cash and partially through land allocation. Nonetheless, no payment was made. The respondent then claimed that the award was not final until certain forms were issued and additional documents were needed to complete the assessment, asserting that the 2017 Land Inquiry was still incomplete. [6] As the Award of Compensation remained unpaid, the applicants filed Suit 57 against the respondent and the State Government of Selangor, seeking payment of RM56,992,100.30, along with late payment charges under section 32 of the LAA 1960. However, the High Court dismissed Suit 57 after a full trial on 31 May 2023. The applicants appealed the decision to the Court of Appeal on 15 June 2023, and the appeal is still pending. [7] Around 31 October 2023, four months after the applicants filed their appeal and less than a month after submitting their Memorandum of Appeal, the respondent called for a new inquiry (ulangan siasatan perbicaraan baru) scheduled for 7 November 2023. The respondent notified the applicants and other relevant parties via a letter dated 26 October 2023. In response, the applicants, through their solicitors, sent letters on 06 November 2023 and 07 November BA-25-9-01/2024 2023, urging the respondent to withdraw or revoke the decision to hold the new inquiry, citing its potential negative impact on the pending issues before the Court of Appeal. [8] Despite the applicants’ request and awareness that the appeal was pending, the respondent, in an email dated 7 November 2023, unilaterally decided to proceed with the “ulangan siasatan perbicaraan baru” on the same date, resulting in the Impugned Decision. [9] On 7 November 2023, the applicants attended the “ulangan siasatan perbicaraan baru” under protest and on a without prejudice basis. However, the inquiry did not start at the scheduled time of 2:30 p.m. as stated in the respondent’s letter. The respondent requested preparation for the inquiry to be recorded and asked the applicants’ representative and solicitors to leave the room for a private meeting with other attendees. When they were called back around 3:00 p.m., approximately 20 people were already present in the room for the inquiry. [10] The applicants’ representatives and solicitors were asked to sign an attendance list, but the respondent did not identify other attendees at the “ulangan siasatan perbicaraan baru” on 7 November 2023. The respondent clarified that this meeting was not a new inquiry but a continuation of the 2017 Land Inquiry mandated by the Court of Appeal. They confirmed receipt of the private valuer’s report, the Jabatan Penilaian Dan Perkhidmatan Harta report, and the applicants’ documents from the 2017 Land Inquiry, stating these were sufficient for assessment and award, with no new documents requested from the applicants. [11] After confirming there was sufficient documents to make an assessment, an award of compensation for the applicants was announced, which included:

RM541,000.00 for the land value;

(ii) RM758,500.00 for the building value; and

(iii) RM100.00 for attendance costs. [12] The respondent did not provide any explanation for reducing the previously awarded compensation of RM56,992,100.30 made to the applicants on 5 October 2017 to RM1,299,600.00, especially without conducting any further inquiry or assessment during the “ulangan siasatan perbicaraan baru” on 7 November 2023. [13] The respondent inquired whether Form H for the Purported Award of Compensation was ready for signing and, upon receiving confirmation, requested the applicants’ representatives to sign it immediately for the amount of RM1,299,600.00. The respondent insisted that any objections could be submitted to the court using Form N. The applicants were surprised at this request, especially since it contradicted the previous Award of Compensation of RM56,992,100.30 granted during the 2017 Land Inquiry. Consequently, the applicants refused to sign the Form H at that time. On 19 December 2023, Form H dated 8 November 2023 was served to the applicants’ solicitors. Principles for granting leave [14] There are two stages in judicial review proceedings as provided under Order 53 of the Rules of Court 2012. These stages are the leave stage and the substantive stage. [15] In this regard, the Federal Court in Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193 stated: “the procedure relating to the filing of a judicial review application is set out in O. 53 of the RHC. An application for judicial review is a two-stage process. The first stage is the leave application and the second stage is the hearing of the substantive application arguments on its merits, should leave be granted.” [16] The Court of Appeal in Omar Suhaimi Abu Hassan v. Mahkamah Perusahaan Malaysia & Anor [2014] 3 CLJ 720 stated the following: “(i) Approaching the court for judicial review is a two-stage process. The first stage (consisting of two parts) is by seeking leave and it must be done by ex parte application which in practice would also stand as the originating application for the judicial review…

(ii) The second stage is to give notice of hearing of the originating process (which had the prayer for leave and was granted) and that has to be done in Form 110…” [17] To determine whether leave ought to be granted or not, the case of WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478; [2012] 4 MLJ 296 provided guidance: “At the leave stage, on a quick perusal of the material available, if the court thinks that subsequently at the substantive hearing stage an arguable case may be disclosed, and the relief sought may be granted, leave should be granted ...Without the need to go into depth of the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though ie, unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged. [18] Moreover, in the case of Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 1 CLJ 927, the court stated: “(1) Applications for leave under O. 53 are made - and they must be made - through a two-stage process. The High Court should not go into the merits of the case at the leave stage. Its role is only to see if the application for leave is frivolous. If, for example, the applicant is a busybody, or the application is made out of time or against a person or body that is immunised from being impleaded in legal proceedings then the High Court would be justified in refusing leave in limine. So too will the court be entitled to refuse leave if it is a case where the subject matter of the review is one which by settled law (either written law or the common law) is non-justiciable, eg, proceedings in Parliament. (paras 5 & 10)” [Emphasis added] [19] Hence, from the perusal of the material made available to the court, the court will grant leave if the applicant is able to demonstrate there is an arguable case. In other words, that there is some substance for further investigation in favour of granting reliefs sought at the substantive stage. [20] The threshold for leave is low. Leave will be refused should there be categorically no success envisioned. Otherwise, leave will be allowed if the application is not thought of as frivolous or vexatious. Analysis [21] The learned Senior Federal Counsel on behalf of the Attorney General objected to this leave application for judicial review. [22] The grounds of objection is that this judicial review application is frivolous and vexatious as the applicants had filed an objection to the Land Administrator Award in Form N pursuant to subsection 38(1) of the LAA 1960. As such, it was submitted by learned Senior Federal Counsel that the applicants ought to exhaust their statutory rights in the land reference proceedings before the High Court. [23] It was further submitted that that this application is frivolous and vexatious as there are three pending proceedings in the High Court dealing with the same issue. [24] The Court of Appeal in the case Five Heritage Sdn Bhd & Ors v. Peguam Negara Malaysia & Ors [2019] 1 MLJ 317 stated the following: “[17] It is trite, that it is the function of the court in exercising its power to grant leave for judicial review to sieve through the application before it and determine that the application is not frivolous and vexatious and that there is an arguable case to merit further argument on the substantive motion. See: Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of Appointment of Judges v Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim [2011] 6 MLJ 490; [2012] 1 CLJ 805. The court must always bear in mind the following principles in respect of such an application:

if it is clear to the judge that there is a point for further investigation on a full inter partes basis with all evidence as is reasonably necessary on the facts and all such arguments on the law then leave ought to be granted;

if the judge hearing the leave application is satisfied that there is no arguable case the judge should dismiss the application for leave to move for leave for judicial review;

if the judge is not really sure whether there is or is not an arguable case, the judge may invite the putative respondent to attend and submit as to whether or not leave ought to be granted; and

in exercising the powers in an inter partes leave application the test applicable by the court must be the same approach as the test adopted in deciding whether to grant leave to appeal against the arbitrator’s award. The court has to consider the facts and law before it and ask itself whether the court is satisfied that there is a case fit for further consideration or otherwise. See: R v Secretary of State for the Home Department, ex p Rukshanda Begum [1990] COD 107; [1990] Imm AR 1. [18] In the instant appeal we found that the application for leave was clearly frivolous and vexatious as there already existed two pending suits dealing with the same issues which until now have not been disposed off.” [25] It was submitted by learned Senior Federal Counsel for the Honorable Attorney General that there is a land reference proceeding pending as well as an appeal to the Court of Appeal from the decision of the High Court in suit 57 where the High Court dismissed the applicants’ claim to the amount stated in the document dated 10 October 2017. Hence, it was argued that this application for judicial review is frivolous and vexatious. [26] The facts of this case reveal that the judicial review application was filed for amongst others: “(i) Suatu Perintah Certiorari untuk membatalkan keputusan Responden untuk menetapkan dan/atau mengadakan dan/atau meneruskan dengan ulangan siasatan perbicaraan baru pada 07.11.2023 Keputusan Yang Dipersoalkan wajib tanah-tanah hakmilik: (a) HS(D) 13555 PT 4172; (b) HS(D) 13556 PT 4173; dan (c) HS(D) 13557 PT 4174 kesemuanya di Mukim Api-api, Daerah Kuala Selangor, Negeri Selangor Darul Ehsan (selepas ini secara kolektif dirujuk sebagai Tanah-Tanah tersebut

(ii) Suatu deklarasi bahawa ulangan siasatan perbicaraan baru yang diadakan oleh Responden pada 07.11.2023 berhubung dengan pengambilan wajib Tanah-Tanah tersebut adalah terbatal dan tidak sah dan/atau tidak sahih.” [27] This application for judicial review, in the view of this court, pertains to the “ulangan siasatan perbicaraan baru” on 7 November 2023. It is, in the considered view of this court, not pertaining to the compensation for the land acquisition which would be heard in a land reference. Hence, the issue of multiplicity of proceedings does not arise. [28] In this regard, this court is mindful that the threshold for leave in judicial review cases are low. This court alluded to the Supreme Court judgment of the case of Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Bank Association [1990] 2 CLJ 734; [1990] 1 CLJ (Rep) 33; [1990] 3 MLJ 228 SC Ajaib Singh J held that: “In his grounds of judgment, the learned Judicial Commissioner had gone further than the leave stage and embarked on substantial issues on merit. We did not think that this was the right approach when the application for leave to apply for an order of certiorari is made. The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application.” [29] What this entails is this court is required at this stage to make a perusal of the material to determine that the application is not frivolous or vexatious. Having regard to the facts of this case, this court is satisfied that this application is not frivolous or vexatious, and there is an arguable case. [30] This is best stated by Varghese JCA in Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional [2018] 2 CLJ 762; [2015] MLJU 2268 CA as reproduced below: “an aggrieved person in such circumstances has a right to seek the courts’ supervisory powers over decision-makers and ought not to be shut out summarily”. Conclusion [30] For the aforementioned reasons, this court allows this application for leave to commence judicial review proceedings. An order of stay for all the land reference proceedings is granted until the disposal of this judicial review. Date: 27 December 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For the applicant: Tan Tong Fang, Jason Lai Tetuan Munhoe Advocates & Solicitors Suite J-3-12, Solaris Mont Kiara No. 2 Jalan Solaris 50480 Kuala Lumpur info@munhoelaw.com +603 6203 0355 For the respondent: Puan Noerazlim binti Saidil, Loh Xian Yee Jabatan Peguam Negara Bahagian Sivil, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya.