1. ) Noor Sita Binti Osman v Majlis Bandaraya Petaling Jaya (BA-25-4-01/2024)

NURAZAWIYAH BINTI ABD JALIL

ROSMAHADIYAZI BIN MAHMOOD

SRI SANGAR A/L ARUNASALAM

MAT KHAIRUDDIN BIN LEBAI IBRAHIM

MUHAMMAD REDHUAN BIN YACOB

MOHD FAZLI BIN MOHAMMAD YUSOF

MOHD NAZRIN BIN MOHD RAMLI

ABDUL RAZAK BIN ZAINI

HAZLIZAM BIN BIDIN

NORZILA BINTI MOHAMMAD YUSOF

MOHD SHAHRIZAL BIN SHADZILI

ARUNASALAM A/L SUPPRAYAN

PIPAH BINTI YUSOF …APPLICANTS AND MAJLIS BANDARAYA PETALING JAYA …RESPONDENT

In this application for judicial review, the Applicants seek an order of Certiorari to quash the decision of the Respondent in issuing a Notice of Demolition dated 10 April 2023 (the Impugned Decision) and ancillary reliefs.

The Applicants are stall holders of Gerai Wawasan 2020 (PJS2) in Taman Medan, Petaling Jaya (“the Stalls”). The Stalls were built in 1993 with the approval of the Selangor Government. A plan with the layout of the Stalls were given sight to the Applicants.

Each stall holder paid RM8,600.00 for purposes of the construction of the Stalls and were issued licenses until 2008 when the licenses were no longer renewed.

The Respondent, in 2018 gave notice to the Applicants of the widening, drainage and similar work and hence required the Applicants to cease their business and vacate the Stalls.

The Applicants explained that they had obtained licences and paid for them.

However, in response, the Respondent stated that between 2006 and 2008, the Applicants were issued temporary licences and permits.

The Respondent had issued out a notice dated 27 September 2021 to the Applicants to stop all business activities at the said stalls. However, it was ignored by the Applicants.

The Respondent then issued out a notice dated 29 October 2021 which stated “DENGAN INI, pihak Majlis akan mengambil tindakan penguatkuasaan untuk menyita serta meruntuhkan struktur binaan tanpa kebenaran di atas kawasan lapang, Jalan PJS 2 tersebut. Pihak tuan/puan adalah DIARAHKAN untuk mengosongkan bangunan tersebut dalam tempoh tiga puluh

hari daripada tarikh notis ini disampaikan.”

The Respondent’s instruction for the Applicants to vacate the stalls was disregarded until 30 November 2022, when the Applicants formally requested the Respondent to postpone the demolition of the stalls.

In response, the Respondent, through a letter dated 26 January 2023, approved the Applicants’ request and agreed to postpone the demolition until 28 February 2023.

The Respondent on 10 April 2023 issued an order for the demolition of the Stalls (“Impugned Decision”). Principles relating to Judicial Review

Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review.

It is trite law that a decision in relation to the exercise of public duty or function may be reviewed on grounds of illegality, irrationality, procedural impropriety or disproportionality.

The Federal Court in the case of Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 1 MLJ 563 held as follows: “[70] Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, at p 1174 had occasion to state that a judicial review ‘is not an appeal from the decision but a review of the manner in which a decision is made’. The book authored by Mr Michael Supperstone QC and Mr James Goudie QC in Judicial Review at p 72, was also referred to, and reads: It is easy to understand why this is so. The paradigm case of a Judicial Review challenge arises where a body whose functions are conferred by statute are said to have acted in a manner in which the law does not allow. But if the only complaint is that the body has reached a decision unfavourable to the applicant on the facts, and the claim put forward is a plea to the court in effect to substitute a different decision, the proceedings would amount to an invitation to the court to exercise the very function which statute had confided to the body reviewed; to accede to such an invitation would be to usurp the will of Parliament. Since, of course, Parliament includes the elected element of the legislature, any such stance by the court might reasonably be castigated as undemocratic … [71] However, the Federal Court in the landmark decision of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 held that the decision of an inferior tribunal may be reviewed on the grounds of ‘illegality’, ‘irrationality’ and possibly ‘proportionality’, which not only permits the courts to scrutinise the decision making process but also the decision itself.”

On the grounds for judicial review, see also the cases of Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537; and R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1

Further, in the case of Syarikat Kenderaan Melayu Kelantan v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317, the error of law has been described as follows: “It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.”

Founded on the principles of judicial review, this court will proceed to consider the grounds raised by the applicant in this case.

The Applicants submitted that in or around 2018, the Respondent abruptly announced plans for road widening and related works, ordering the Applicants to stop their business and vacate their stalls without prior consultation or notice. The Applicants, were disregarded. The Respondent justified the action by citing traffic concerns but failed to engage with or consider the Applicants’ interests. It was argued by the Applicant that this lack of explanation or consultation renders the decision at least irrational and unfair.

In support of this contention the Applicants cited the case of Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2018] 2 MLJ 590 at 620, where Balia Yusof Wahi JCA stated the following: “It is also settled public law principle and principle of natural justice that a public decision making body is under a duty to give reasons for its decision. Indeed, a reasoned decisions can be an additional constituent of the concept of fairness (Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487 and Kelab Lumba Kuda Perak v Menteri Sumber Manusia, Malaysia 7 Ors [2005] 5 MLJ 193). The giving of reason is also one of the fundamentals of good administration. The absence of any provision in the statute requiring the decision maker to give reasons ought not to be understood or taken to mean that there is no such duty to give reason unless that very statute specifies that no reason needs be given. The absence of such a provision ought not to be regarded as a cloak under which the decision maker can hide his rationale for making the decision, privy only to himself but a mystery to the interested parties or the public at large.”

It was also argued that the Respondent's failure to provide a valid reason for permanently removing the Stalls suggests a lack of good faith. Although they initially cited drainage improvements, no supporting evidence was provided. Instead, the Respondent abruptly destroyed the Stalls, which were built over 20 years. In a letter dated 27 September 2021, the Respondents claimed the Stalls lacked proper authorization.

It was further argued by the Applicants that the Applicants were granted licenses after 2008 and operated the Stalls continuously, establishing equitable rights. They relied on these rights, having invested financially in maintaining and running their businesses. The Respondent never claimed ownership of the Stalls or offered to cover any related expenses, reinforcing the Applicants’ belief in their entitlement to occupy the land. This gave rise to a legitimate expectation that the Respondent was obligated to honour.

In support of this, the Applicant cited the case of Perbadanan Pengurusan Sunrise Garden Kondominium v Sunway City (Penang) Sdn Bhd & Ors and another appeal [2023] 2 MLJ 621 where the Federal Court stated the following: “Apart from their statutorily entrenched rights, they also enjoy rights as citizens who have a legitimate interest to know how important decisions affecting their surrounding areas, and which have the potential to affect the quality of their lives, have been reached.”

It was further submitted that the Respondent had permitted the Applicants to occupy and run their livelihood-based businesses on the land. Over time, the Applicants and their families became fully dependent on these businesses. They gained equitable rights along with a license to occupy the land. However, the Respondent has now acted unlawfully and without justification by attempting to evict them through a Demolition Order. This court was therefore urged to prevent the Respondent from destroying the lives of the Applicants by quashing its decision to issue Notices to remove the Stalls.

The Applicant argued that the decision was in consistent with the Applicant’s continuous right in land after decades of occupying the land. It was submitted that the Impugned Decision is irrational under the Wednesbury unreasonableness standard. It asserts that no public authority should act in such a manner.

It was also argued that the Applicant was not give a right to be heard and therefore this is a breach of the principles of natural justice. The Applicant cited Pihak Berkuasa Tatatertib Majlis Pembandaran Seberang Perai & Anor v Muziadi bin Mukhtar [2020] 1 MLJ 141 and Islamic Renaissance Front Bhd v The Minister of Home Affairs [2020] 5 MLJ 399.

The Respondent, on the other hand, argued that the 2018 notice is irrelevant to the current judicial review, which challenges the Respondent’s decision dated 10 April 2023. Despite the 2018 notice, the Applicants have continued operating their businesses, and the Respondent had, at their discretion, postponed the demolition at the Applicants’ request. The Applicants claim they have contractual or land-related rights and argue that the demolition decision was irrational due to a lack of consultation. In response, the Respondent argued that there is no established practice requiring them to consult the Applicants before making such a decision.

The Respondent argued that the Applicants have not held valid business licenses since 2008, except for temporary six-month permits limited to food stall operators. As such, none of the Applicants had legal authorization to operate on the land. Consequently, the Respondent claims there was no contractual relationship with the Applicants, and therefore, they lack the legal standing (locus standi) to assert a right to be heard or to challenge the Respondent’s actions.

The Applicants argued that the Respondent’s long-term non-interference in their businesses created a legitimate expectation of continued operation. However, the Respondent contended that no such legitimate expectation exists, as there was no promise or undertaking by the Respondent or State Authority to support such a claim.

The Respondent made reference to the case of Law Pang Ching & Ors v Tawau Municipal Council [2010] 2 CLJ 821 where Abu Samah Nordin JCA traces the history of doctrine of legitimate expectation in his judgment: “[24] The phrase “legitimate expectation” was first employed in Schmidt v. Secretary of State for Home Affairs [1969] All ER 904. In that case a foreign student sought review of the Home Secretary’s decision not to grant an extension of his temporary permit to stay in the United Kingdom…. [31] The doctrine of legitimate expectation had been invoked by the Supreme Court (as it then was) in JP Bethelson v. Director General of Immigration, Malaysia & Ors [1987] 1 MLJ 134. In that case the Supreme Court held that the appellant, an American working in Kuala Lumpur as a staff correspondent with Asian Wall Street Journal had a legitimate expectation that his employment pass would not be cancelled prior to giving him a right to make representations. Abdool Cader SCJ, at p. 138 said that, “all that need be given was an opportunity to the appellant to make representations”. [32] A common trait in all these cases is that the aggrieved parties stand in direct relationship – without any go-between – with the decision makers. The expectation arises where a person responsible for taking a decision has induced in someone who may be affected by the decision a reasonable expectation that he will receive or retain a benefit or that he will be granted a hearing before the decision is taken. See De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th edn. paras 8-37.” [Emphasis added]

The facts of this judicial review is that the Applicants were operating the Stalls without a licence. The Respondent was aware the Applicants were operating the Stalls. The Respondent had delayed the demolition od the Stalls upon the request of the Applicants. The Respondent had issued out a notice dated 27 September 2021 to the Applicants to stop all business activities at the Stalls which was not adhered to by the Applicants.

On 30 November 2022, the Respondents had instructed the Applicants to vacate the Stalls, but the Applicants had sought a deferment. The Respondent, via a letter dated 26 January 2023, had approved the application and/or request of the Applicants for the demolition to be postpone until 28 February 2023.

The notice dated 10 April 2023 for the Applicants was issued by the Respondents to vacate the Stalls. Prior to that several notices from the Respondent that had been issued out and the postponement of the demolition of the Stalls had also been granted at the request of the Applicants.

This court alluded to the case of North East Plantations Sdn Bhd v Pentadbir Tanah Daerah Dungun & Anor [2011] 2 CLJ 392 Abu Samah Nordin JCA again had opportunity to further elaborate on the doctrine where he ruled for the majority that: “Legitimate Expectation [31] The basis of the appellant’s contention that it had a legitimate expectation that qualified titles to the said lots would be issued is based on the facts that the State Authority had approved the alienation of the said land to it and that it had duly paid the sum due pursuant to Form 5A notices within time. [34] What the appellant is claiming here is not just a right to a fair hearing before the State Authority revoked its approval of alienationof the said land. Its complaint is not confined to procedural impropriety on the part of the State Authority. It goes beyond that. It expects to get the ‘substance’ of the expectation itself, namely, the qualified titles to the said lots once it had shown that it was deprived of its legitimate expectation. [35] Decided cases however had shown that the doctrine of legitimate expectation cannot be applied indiscriminately in all cases. It does not apply to every single case of denial of a fair hearing or opportunity to make representation before a decision is made. [36] It had not been shown to us that the denial of a right of fair hearing or the opportunity to make representation, which Lord Diplock referred to as “procedural impropriety” would entitle the appellant to the actual substance of the expectation, which in this case, is the qualified titles to the said lots. No case was cited to us in support thereof. The basis of the appellant’s contention here is that it had a legitimate expectation to the titles of the said lots by reason of s. 80(3) of the Code after having made the payment as specified in Form 5A notices, within time. In short, the appellant insisted that the respondents must perform their duty by issuing titles to the said lots. … [43] In our judgment, legitimate expectation cannot and should not, override the express statutory provisions of the Code. The appellant here is in a worse situation. It has no legitimate expectation that titles would be issued to it when the State Authority had validly revoked the approval of alienation of the said lots. At the time of revocation, the said lots were still State Land.”

The fact is that the Applicants are no longer licensed to operate the Stalls. The proposed demolition of the Stalls is for purposes of widening of the road due to traffic congestion. It is also observed that new stalls were built approximately 850 meters away from the current location of the Stalls. In fact, some of the Applicants have moved to the new stalls.

It cannot be that the legitimate expectation of the Applicant can override the express provision of the law, that is that the Applicants are required to hold a licence to operate the Stalls. Moreover in Law Pang Ching & Ors v Tawau Municipal Council [2010] 2 CLJ 821, the Court of Appeal in a majority decision had stated: “The appellants were not the licenceholders. They had no direct dealing with the respondent. The licenceholder was the landowner. The appellants had been allowed to do business under a licence granted to the landowner on the land owned by the latter that had been approved for a commercial development. The verbal assurance by the respondent’s President was made at a luncheon hosted by the latter in the presence of some stallholders. It would not be correct to say that they were invited guests. There was no suggestion that they co-hosted the function. The only logical and reasonable conclusion was that the assurance or representation must have been made or given to the landowner although it was welcome news to the appellants.”

In short, the fact that even though the Applicants may have a legitimate expectation, the statutory provision ie that the Applicants ought to have a licence to operate the Stalls cannot be overridden.

The law allows the local authority to make and improve streets as provided in section 5 of the Street, Drainage an building Act 1974: “5. The local authority may, with the consent of the State

lay out and make new streets and back-lanes;

build and construct bridges and tunnels;

turn, divert, discontinue or stop up any public street; and (d) widen, open, enlarge or otherwise improve any public street”

It is also the function of the local authority pursuant to section 6 of the Town and Country Planning Act 1976 to: “(a) to regulate, control and plan the development and use of all lands and buildings within its area;

to undertake, assist in, and encourage the collection, maintenance, and publication of statistics, bulletins, and monographs, and other publications relating to town and country planning and its methodology; and

to perform such other functions as the State Authority or the Committee may from time to time assign to it. (2) A local planning authority may perform any other functions that are supplemental, incidental, or consequential to any of the functions specified in subsection (1) and do all such things as may be necessary or expedient for carrying out its functions under this Act.”

The Local Government Act 1976 in sections 8 and 9 reads: Administration of local authority areas

The affairs of every local authority area shall be administered by a local authority established by and in accordance with this Act: Provided that where in the application of this Act to the Federal Territory there is any conflict between the provisions of this Act and the Federal Capital Act 1960, or the regulations made thereunder, the provisions of the Federal Capital Act 1960, shall prevail. Power of State Authority to issue directions

(1) The State Authority may from time to time give the local authority directions of a general character, and not inconsistent with the provisions of this Act, on the policy to be followed in the exercise of the powers conferred and the duties imposed on the local authority by or under this Act in relation to matters which appear to the State Authority to affect the interests of the local authority area, and the local authority shall as soon as possible give effect to all such directions. (2) The local authority shall furnish the State Authority with such returns, accounts and other information with respect to the property and activities of the local authority as the State Authority may from time to time require.

The provisions of the law aforementioned give due regard to the role of the local authority in carrying out its duties. This includes the duty to the safety and health of the public at large. It cannot be that the Applicants’ “legitimate interest” will override the statutory provisions which empower the local authority to conduct its affairs and functions.

The Respondent, in the considered view of this court, had on several occasions differed the demolition of the Stalls at the behest of the Applicants. This act of the Respondents is now being used by the Applicants to argue their rights have been transgressed. It cannot be denied and the fact remains the Applicants are unlicensed. The Respondent, in the view of this court, is merely carrying out its statutory functions.

Moreover, the Respondent had provided new stalls for the Applicants to operate which is approximately 850 metres from the Stalls. Some of the Applicants had already moved to the new stalls. Hence, does the issue of legitimate expectation still anse?

For the aforementioned reasons, this court finds no illegality, irrationality or unreasonableness in the conduct of the Respondent which would allow this court to grant the reliefs sought by the Applicants. This application for judicial review is hereby dismissed with no order as to costs. Dated: 10th July 2025 SHAHNAZ BINTI SULAIMAN JUDGE HIGH COURT OF MALAYA, SHAH ALAM Counsel: For the Applicants: Rueben Mathiavaranam Sufiah binti Yusoff Messrs Zaid Ibrahim Suflan T H Liew & Partners Advocates & Solicitors Unit 2.01, Level 2, Plaza Damansara Block A, Bukit Damansara, 50490 Kuala Lumpur. For the Respondent: Kamaruzaman bin Muhammad Arif Sofiah binti Omar Messrs Kamaruzaman Arif & Sofiah Advocates & Solicitors Crystal Chambers, No. 4, Jln Kristal 7/67A, Seksyen 7, 40000 Shah Alam Selangor.