1. ) Saiful Bahri bin Md Jun v 1. ) Pihak Berkuasa Negeri Selangor (BA-21NCvC-47-08/2019)

SAIFUL BAHRI BIN MD JUN (menyaman bagi pihak diri sendiri dan Puan Aminah binti Hussain) (No. K/P : 550310-10-6297)

ENCIK SANI SHARIFF (No. K/P : 560408-04-5401 3. ENCIK RAZEE MUJAHID BIN AMIR (No. K/P : 760121-10-5549 …PLAINTIF-PLAINTIF

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PENDTADBIR TANAH DAERAH SEPANG …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs are aggrieved that the lands they worked on as pioneer settlers in Kampung Pulau Meranti, were not alienated to them. Their applications for alienation were rejected by the 1st Defendant, hence the instant suit. 28/06/2023 09:58:59 BA-21NCvC-47-08/2019 Kand. 98 The Plaintiffs’ case [2] The 1st and 2nd Plaintiffs (“P1, P2”) were pioneer settlers in Kampung Pulau Meranti in the 1980’s. The 3rd Plaintiff (“P3”) is the son of a pioneer settler who is now deceased. [3] The settlors were individually assigned plots of land to work on. They cleared and tilled the land, constructed the infrastructure on their respective lands for amenities, planted fruit trees and built houses to live in. [4] Sometime in 2002, they applied for alienation of the plots worked on. Their application received support from Jawatankuasa Kemajuan dan Keselamatan Kampung, Kampung Pulau Meranti. [5] However, on 9.8.2007, P1 was informed vide letter issued by the 3rd Defendant (“D3”) that “Dukacita dimaklumkan bahawa Pihak Berkuasa Negeri melalui Majlis Mesyuarat Kerajaan Negeri Selangor Bil. 17/2007 pada 06.06.2007 telah menimbang dan menolak permohonan tuan/puan.” Both P2 and P3 also received similar letters dated 20.9.2007 and 4.10.2007 respectively. [6] The Plaintiffs were aggrieved and disappointed at the rejection of their application, particularly when it came to their knowledge that other settlors were alienated the plots they worked on. Subsequent to the rejection decision, P1 and P2 applied for and was granted a Temporary Occupation Licence (“TOL”) by D3 for one year from 13.2.2008 to 31.12.2008. The TOL was renewed upon its expiry to

31.12.2009. This further heightened their expectation that they would subsequently be alienated the plots of land they worked on. [7] Sometime later, D3 sent a letter dated 11.1.2010 requesting P1 to attend an interview in respect of his application. However, the said letter was not received by him. He complains that he was denied an opportunity to present his case. [8] Subsequent to the 1st letter of rejection in 2007, P1 and P2 were again informed vide letters 30.9.2011 and 11.5.2012 respectively that their application could not be approved. This time however, reasons were given. P1 was told that “tiada lagi plot-plot yang sesuai yang boleh dipertimbangkan bagi tujuan tapak gentian di Kawasan tersebut kerana hampir keseluruhan Kawasan di Kg. Pulau Meranti ini telah diluluskan permberimilikan dan dikeluarkan hak milik.” As for P2, the reason for the rejection was, “kerana Pihak Berkuasa Negeri hanya memberi kelulusan kepada peneroka tegar sahaja.” [9] Some years passed before the Plaintiffs revived their application for alienation in 2017 through the efforts of P1. A discussion with D3 was held on the matter. D3 gave an undertaking that he will endeavor to find out if there were available plots for alienation to the Plaintiffs. Subsequent to the discussion, a physical inspection and survey on P1 and P2’s plot of land was done. [10] Nothing resulted from the promise by D3. P1 again wrote to D3, on behalf of himself and the other Plaintiffs on 12.3.2018. He requested that their applications be reviewed and considered in a professional and fair manner. There was no response, hence the instant suit. Till today, the Plaintiffs continue to work on their respective plots of land. [11] The Plaintiffs claim that the conduct of the Defendants had caused a legitimate expectation on their part that they would be alienated the lands. They rely on the following instances:-

in granting the TOL, D3 gave an undertaking that the TOL was granted pending the approval for alienation; and

at a meeting on 21.11.2011 attended by P1, D3 made representations that the Plaintiffs’ application alienation for alienation was pending the resolution of the boundary issue. In 2007, the Defendants came to know that the plots Plaintiffs worked on were not within the jurisdiction of the Defendants. In view of this quandary, D3 agreed that the Plaintiffs ought to be alienated alternative plots. [12] In addition, they claim that the Defendants had acted unreasonably in that there were plots alienated to persons who were not pioneer settlers. These persons were identified in their claim. [13] The Plaintiffs therefore seek the following reliefs:-

a declaration that the Defendants’ decision to reject the application for alienation is unreasonable and wrong in law;

(ii) an order that the Defendants fulfill their promise to alienate the plots of land;

(iii) in lieu of alienation, damages as assessed by the court to be paid to them;

(iv) an order for aggravated and exemplary damages; and

costs of this action. The defence case [14] The Defendants’ defence is essentially this. Firstly, the discretion to alienate state land lies solely with the State Authority. Secondly, the Plaintiffs’ claim premised on legitimate expectation is baseless. There are no facts to substantiate their reliance on legitimate expectation. The Plaintiffs had totally misconceived the conduct of D3’s representatives. In any event the doctrine of legitimate expectation cannot override the express statutory powers vested in the State Authority. Thirdly, the mode of commencement resorted to by the Plaintiffs is misconceived as they ought to have applied for a judicial review of decision to refuse alienation. Issues to be tried [15] The rival contentions of the parties gives rise to the following broad issues to be determined by this court:-

whether the proceedings ought to have been commenced by way of judicial review:

(ii) whether the doctrine of legitimate expectation applies in matters of alienation; and

(iii) whether the Plaintiff’s own evidence supports the application of the doctrine of legitimate expectation. Analysis and decision of this court Whether the Plaintiffs ought to have commenced their action by way of judicial review [16] I shall deal first with the issue on the appropriate mode of commencement of proceedings. The Defendants contend that as the Plaintiffs are essentially challenging the decision not to alienate the lands to them, they ought to have filed judicial review proceedings instead. [17] The authorities are replete on this point. The law was settled in Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 where the Federal Court stated the rationale for subjecting challenges to decisions of public authorities to judicial review proceedings. Expounding on the stringent conditions of leave and observation of time frame in filing judicial review proceedings, the Federal Court held, [16] One may ask what is the purpose of these conditions? The basic objective is to protect those entrusted with the enforcement of public duties 'against groundless, unmeritorious or tardy harassment that were accorded to statutory tribunals or decision making public authorities by O 53, and which might have resulted in the summary, and would in any event have resulted in the speedy disposition of the application, is among the matters fit to be taken into consideration by the judge in deciding whether to exercise his discretion by refusing to grant a declaration …' as described in the celebrated case of O'Reilly v Mackman [1982] 3 All ER 1124 at p 1133. Further, there is also the need to reduce the delay in resolving such application in the interest of good administration. As Lord Diplock in O'Reilly v Mackman reiterated, 'The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision'. [17] Set against the conditions laid down above against the facts of this instant case, one will notice that the appellant is handicapped by limitation of time (among other things) in bringing an application under O 53 r 3(6) of the RHC for judicial review. [18] The critical determination when such an issue is raised is whether the subject matter of the suit has sufficient public law element to compel the Plaintiffs to commence their action by way of judicial review. The Federal Court had this to say, [21] In view of this, let us begin by first asking ourselves a preliminary question: is the appellant's complaint or grievance amenable for judicial review (before even considering whether the procedure adopted by him is appropriate). If his complaint is not amenable for judicial review then he can commence his action by writ or originating summons; there is no issue on the process. So first we have to determine the parameter of matters amenable for judicial review. It is widely accepted that not every decision made by an authoritative body is suitable for judicial review. To qualify there must be sufficient public law element in the decision made. For this, it is necessary to examine both the source of the power and the nature of the decision made; whether the decision was made under a statutory power (see para 61 [2010] 3 MLJ 145 at 157Halsbury's Laws of England (4th Ed, 2001 Reissue) Vol 1(1). ….. [19] In Majlis Perubatan Malaysia & Anor v Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) [2019] 1 MLJ 471 the Court of Appeal held that it would be contrary to public policy and an abuse of process to allow an individual to impugn the decision of a public authority through an ordinary action rather than resorting to O 53 of the Rules of the High Court which provision exists for the protection of public authorities. (See also: Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor and another appeal [2016] MLJU 1649). [20] The primary relief sought by the Plaintiffs in this action is contained in paragraph 32(a) of its Statement of Claim. They seek for a declaration that the decision to reject the Plaintiffs’ application is unreasonable and wrong in law. They are evidently challenging D1’s decision not to alienate land to them. The decision was made pursuant to statutory powers in the National Land Code. This clearly falls in the domain of public law. [21] Further, the grounds of the challenge are also grounds founded in public law. This is apparent from the entire tenor of the Statement of Claim. P1 alleges the Defendants to have denied him natural justice by not affording him an opportunity to be heard. (paragraph 20.1 of the Amended Statement of Claim). The decision to reject was said to be unreasonable as there was procedural unfairness (paragraph 21C of the Amended Statement of Claim). The conduct of the Defendants had given rise to a legitimate expectation on the Plaintiff’s part to be alienated their plots of land (paragraphs13 and 15 of the Statement of Claim). All these taken cumulatively sufficiently satisfies the public law element as enunciated in the authorities. [22] The Plaintiffs argue that a final decision has yet to be made at as the D3’s letter of 30.11.2017 appears to suggest that they are in the midst of taking action. Therefore, the issue of filing a judicial review application does not arise. [23] Having examined the contents of the letter, I find it the Plaintiffs to have misconstrued its import. It states that D3 informed P1 that his office agreed to conduct a review to ascertain if the latter’s land is within the jurisdiction of Cyberjaya. He further agreed to ascertain if there were available plots in Pulau Meranti for alienation. [24] In any event, for the Plaintiffs to take the position that a decision is yet to be made is incongruous as the Plaintiffs are seeking a declaration that the decision to reject their application for alienation is wrong in law. This presupposes that a decision has been made. It is evident that it has, from the letters of rejection conveyed to the Plaintiffs in 2007, and again in 2011 and 2012. [25] I am of the view that in view of the Plaintiffs’ pleaded case, the proper mode for ventilating the complaints contained in the statement of claim is by judicial review proceedings. However, to do so would have posed a legal hurdle to them as the Plaintiffs are undoubtedly out of time. They have gone far beyond the 3 months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. (Order 53 rule 3(3)). [26] I must mention that in 2019, the Defendants took out an application to strike out the suit filed. The Defendants succeeded in the High Court, but on appeal, the decision was reversed. The Plaintiffs then amended their Statement of Claim in 2021 to include D1 and D2 and to also amend the body of the claim. [27] Although the issue on the appropriate mode was argued earlier, I am not precluded from considering the objection now taken again by the Defendants as it is a legal point. Having given the matter due consideration, I am of the view that there is merit in the point raised. On this ground alone, the Plaintiffs’ case fails. [28] Nonetheless, for the sake of completeness, I shall also deal with the merits of the Plaintiffs’ case. Whether the doctrine of legitimate expectation applies in matters of alienation [29] The provisions of the National Land Code 1965 (“NLC”) cannot be any clearer on the powers of the State Authority to alienate land. The starting point is section 40 which provides that all State land within the territories of the State shall be vested solely in the State Authority. In respect of these lands, the State Authority has the power of disposal of property vested in it (See: section 41 of the NLC). Next, the State Authority shall have powers under the NLC to alienate State land in accordance with the provisions of section 76 (See: section 43 of the NLC), which in turn defines the circumstances in which land can be alienated by the State Authority. All these provisions read together can only mean that the discretion to alienate land lies solely with the State Authority. [30] This position was affirmed by the Federal Court in North East Plantations Sdn Bhd lwn Pentadbir Tanah Daerah Dungun dan satu lagi [2018] supp MLJ 293 where the approval for alienation to the Plaintiff had been given, but was subsequently revoked before the premium had been paid, and prior to the land being registered in the plaintiff’s name. The Federal Court held that such approval cannot give rise to a legitimate expectation, which in any event cannot override the express statutory power vested in the State Authority. The relevant portion of the judgment reads, Kami mendapati bahawa keputusan Yang Arif Hakim Mahkamah Tinggi yang menyatakan bahawa kelulusan yang diberikan kepada perayu tidak memberikan apa-apa hak jangkaan munasabah kerana semasa pembatalan dilakukan tanah tersebut masih lagi tanah Kerajaan dan tiada hakmilik berdaftar diberikan kepada perayu adalah tepat dan wajar dan keputusan ini adalah bertepatan dengan prinsip didalam kes Rahimah bt Ali (lihat ms 52–54 RR). [29] Kami juga berpendapat bahawa keputusan majoriti Mahkamah Rayuan adalah tepat apabila dinyatakan ‘Whether or not the doctrine of legitimate expectation applies depends on the facts of each case, it cannot and should not override the express statutory power vested in the State Authority.’ [31] More importantly, the Federal Court in North East Plantations Sdn Bhd (supra) held that the fact of approval cannot give rise to a legitimate expectation on the part of the plaintiff to be alienated land, which is an exercise of statutory powers under the National Land Code. [32] Similarly, in this case, the fact that the Plaintiffs here had worked on and been granted TOL in respect of the said lands, cannot ipso facto give rise to a legitimate expectation that they will be alienated the lands. D1 retains the sole discretion in matters of alienation. [33] The Court of Appeal in My Premium Logistic Sdn Bhd v Pentadbir Tanah Kota Tinggi [2018] 1 LNS 1500 adopted the principle in North East Plantations Sdn Bhd (supra). The Applicant in that case claimed that part of its land had been subjected to two previous acquisitions and on both occasions, the Appellant was compensated, but not this particular instance. [34] The Court of Appeal stated as follows, [32] However, we agreed with the learned ALA‟s submission that legitimate expectation could not and should not override the express statutory power vested by a statute, that is, subparagraph 1(3A) of the First Schedule of the Act as in the instant appeal before us. This principle has been decided by the Federal Court in North East Plantations Sdn Bhd v. Pentadbir Tanah Daerah Dungun & Satu Lagi [2011] 4 CLJ 729: “[29] Kami juga berpendapat bahawa keputusan majoriti Mahkamah Rayuan adalah tepat apabila dinyatakan “Whether or not the doctrine of legitimate expectation applies depends on the facts of each case, it cannot and should not override the express statutory power vested in the State Authority.” [33] The same principle was followed by this court in Ong Ah Hooi v. Pentadbir Tanah Larut Matang dan Selama & Anor [2017] 2 MLJ 256 where it was stated: [18] With respect, it seems to us that this submission is a complete non-starter. In our view, the learned JC was correct in holding that there cannot be a legitimate expectation against clear provisions of law. There is a plethora of authorities in support of this proposition. In North East Plantations Sdn Bhd (supra) Abu Samah JCA (as he then was), delivering the majority judgment of the Court of Appeal, held: “In our judgment, legitimate expectation cannot override the express statutory provisions of the Code.” [35] Based on the above authorities, this court has no jurisdiction to grant the relief sought for, in that the Defendants be ordered to fulfill their promise to alienate the plots of land. This would be impinging on the powers solely vested in the State Authority. [36] To conclude, I am of the view that the doctrine of legitimate expectation cannot apply to impede the decision of the State Authority in deciding whether or not to alienate land. Whether the Plaintiffs’ own evidence supports the application of the doctrine of legitimate expectation [37] Although I had decided that the doctrine has no application here, I will nonetheless deal with the evidence relied on by the Plaintiffs. In this regard, the Plaintiffs’ reference to several authorities and the principles stated therein have been of valuable guidance. [38] In Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1, the Federal Court held that whilst the doctrine may apply in a given factual matrix, a balance is to be struck between the existence of the legitimate expectation of the individual and the discretion of the decision maker. It held, After referring to the potential antithesis between the object of the protection of the legitimate expectation (legal certainty) and the object of the 'no fettering' doctrine (flexibility) and observing that the issue may not always be resolved in favour of the latter, de Smith says (at para 13- 035): Although free to alter its policy, the authority is by no means free to ignore the existence of a legitimate expectation. Now that legitimate expectation has been accepted in Law as an interest worthy of protection, its existence becomes a relevant consideration which must be taken into consideration in the exercise of a discretion. It is placed on the scale and must be properly weighed. Dealing with the balancing exercise, de Smith, says this (in the same paragraph): The weighing is, as we have noted many times, a matter principally for the authority, but the courts may intervene where the expectation is entirely ignored or given manifestly improper weight (see R v Inland Revenue Commissioners; ex p MFK Underwriting Agents Ltd & Ors [1990] 1 WLR 1545 per Bingham LJ when he said breach of an expectation may be unfair 'particularly' if the promisee acted on it. Cf the approach of Laws J in Secretary of State for Transport; ex p Richmond-upon-Thames London Borough Council & Ors [1994] 1 WLR 74). On the other hand, in R v Ministry of Agriculture, Fisheries and Food; ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 Sedley J accepted the existence of the substantive legitimate expectation). Continuing on the same theme, de Smith says this (at para 13-035): It is at this point that the fact that the promisee relied on the expectation to his detriment may be relevant. Detrimental reliance will add to the weight of the legitimate expectation. It may be overridden by competing public interest, but the greater the evident detriment to the promissee, the greater the countervailing weight of the public interest in order to override an expectation that is held to be legitimate. [39] Thus, a legitimate expectation arises where there is promise or inducement on the part of the decision maker which was relied or acted upon. In Pentadbir Tanah dan Daerah Petaling & Ors v Bandar Utama City Corp Sdn Bhd (previously known as Damansara Jaya Sdn Bhd) & Anor and another appeal [2021] 4 MLJ 689, the Court of Appeal stated as follows, [47] In Law Pang Ching & Ors v Tawau Municipal Council [2009] 3 MLJ 452; [2010] 2 CLJ 821, Abu Samah Nordin JCA (as he then was) traces the history of doctrine of legitimate expectation in his judgment as follows: [24] The phrase ‘legitimate expectation’ was first employed in Schmidt v Secretary 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 Berthelsen 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. Abdoolcader SCJ at p 138 said that ‘all that need to 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 decision makers. The expectation arises where a person responsible for taking a decision had 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 Ed paras 8–37. [40] In the context of the present case, P1 and P2 rely on the fact that TOL was granted to them from 13.2.2008 to 31.12.2008 and subsequently renewed for another year. I am of the view that the granting of the TOL cannot in law, give rise to a legitimate expectation to be alienated lands as the TOL was granted after the letters of rejection were sent in 2007 to all the Plaintiffs. [41] Next, the Plaintiffs rely on a meeting on 16.8.2017 wherein DW2 on behalf of D3, had promised to give alternative plots of lands to the Plaintiff. The minutes of the meeting tendered in evidence speaks for itself. At paragraph 2, under KEPUTUSAN, and in reference to P1, it was stated, “2) Manakala permohonan bagi penama di bil. 3 pula, memandangkan pemohon mendakwa telah meneroka tanah sejak dahulu sehingga kini, maka PPT akan membuat semakan usaha di atas tapak (PT 25) dan membuat semakan kekosongan plot di Pulau Meranti.” [42] It would be totally misconstruing the contents of the said minutes to contend that DW2 made a promise to grant alternative plots of land. I do not find any hint of a promise anywhere in the said minutes. [43] The stand of D3 to reject the application for alienation was again communicated to P1 vide letter by DW2 dated 30.11.2017. The letter reiterated D1’s rejection of P1’s application for alienation. P1 was also informed that there were no alternative plots to be considered for alienation. Nonetheless, the Sepang Land Office will check on the status of his plot PT 25 which he was said to have worked on. However, it was impressed on P1 that this action “hanyalah bertujuan untuk membuat semakan serta pengesahan dan bukannya satu (1) persetujuan bagi memberikan tanah ganti kepada Y. Bhg Dato’ kerana Pentadbiran ini masih berpegang kepada keputusan Mesyuarat EXCO-MTES Bil. 13/2012 oleh MMKN Bil. 16/2012 bertarikh 2 Mei 2012.” [44] I therefore do not find any evidence to establish that there were promises made by the Defendants which were relied on by the Plaintiffs to their detriment. It is incumbent on the Plaintiffs to establish this fact, as ruled in Zakiah bte Ishak v Majlis Daerah Hulu Selangor Darul Ehsan [2005] 6 MLJ 517, where the Court of Appeal held, In law for legitimate expectation to arise there must be evidence of a promise or undertaking made by the respondent to that effect. We find no such evidence before the court. On that premise we find that her claim for breach of legitimate expectation is wholly unsustainable. [45] In further reliance on the legitimate expectation point, the Plaintiffs contend that they were not called for any interviews in respect of their application. The Plaintiffs rely on DW1’s oral evidence that interviews were directed to be carried out as there were allegedly overlapping claims. I am of the view that the interview was merely conducted on an ad-hoc basis. It was not an established practice. [46] The evidence relied on by the Plaintiffs therefore, do not support in the application of the doctrine. The documentary evidence refutes it. The witnesses called by the defence who represent D3, deny any representation on their part. In any event, none of them were in any position to give any promise that can bind the State Authority. Conclusion [47] For the foregoing reasons, the Plaintiffs’ case against all the Defendants is dismissed. I order that costs of RM 15,000 be paid by all the Plaintiffs jointly to the Defendants. Dated: 22nd June 2023 - SGD - ...………………..….... Alice Loke Yee Ching Judge High Court of Malaya at Shah Alam Counsel for the Plaintiffs : Mr. Ling Hua Keong (Miss Audrey Chong Pei Ying and Mr. Thomas Teh Zhi Yuan with him) Tetuan Ling & Mok Counsel for the Defendants : Miss Siti Radziah binti Kamarudin Pejabat Penasihat Undang-Undang Negeri Selangor