Afeef Abdulqader Mansoor v Pentadbir Tanah Wpkl (W-01(NCVC)(A)-62-01/2018)

1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: W-01(NCVC)(A)-62-01/2018 ANTARA AFEEF ABDULQADER MANSOOR ... PERAYU DAN PENTADBIR TANAH WPKL … RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur, Rujukan Pengambilan Tanah No: S-15NCVC-2-09/2014 Antara Afeef Abdulqader Mansoor ... Pemohon Dan Pentadbir Tanah WPKL … Responden] CORAM: UMI KALTHUM BINTI ABDUL MAJID, JCA SURAYA BINTI OTHMAN, JCA STEPHEN CHUNG HIAN GUAN, JCA 2 JUDGMENT OF THE COURT INTRODUCTION [1] This appeal emanated from the decision of the learned High Court Judge (“learned Judge”) in a land reference, Suit No: S-15NCVC-2-09/2014 dated 11.12.2017, in which the Appellant’s objections (the Applicant in the court below) towards the Respondent’s award dated 10.6.2014 for the acquisition of the land known as Lot 25900, Mukim Setapak, Kuala Lumpur (Scheduled Land) was dismissed. [2] For ease of reference, parties will be referred to as they were in the High Court. The Appellant, Afeef Abdul Qader Mansor will be referred to as the Applicant and the Respondent, Pentadbir Tanah Wilayah Persekutuan as the Land Administrator. BACKGROUND FACTS The Applicant was the owner of the Scheduled Land. [3] On 28.12.2012, the Scheduled Land (said land) and its surrounding lands located at Jalan Puncak Setiawangsa 2, were severely affected by the collapse of a concrete embankment in Bukit Setiawangsa due to a landslide which substantially damaged/destroyed the Applicant’s house. 3 [4] Prior to the calamitous incident, the said land was a 967 square meters’ land area and on it stood a renovated double-story detached house with a swimming pool (Applicant’s house). [5] As a result of the landslide, Dewan Bandaraya Kuala Lumpur (DBKL) had to demolish the remaining structure of the Applicant’s house on the said land due to public safety. The demolition of the remaining structure was done on 31.12.2012 and since the demolition, the said land was left barren/vacant by the Applicant. [6] About 16 months later, on 1.4.2014 the Land Administrator acquired the said land under section 8 of the Land Acquisition Act 1960 (Act 486) for the purpose of reparation, that is repairing and rehabilitating the condition of the hill slope (Projek Memperbaiki Runtuhan Cerun di Jalan Puncak Setiawangsa 2, Setiawangsa, Kuala Lumpur). The Land Administrator made the necessary enquiries on 14.5.2014 and 10.6.2014 and on 10.6.2014 made the following award of compensation of RM 2,790,000.00 for the said land with another RM 100,000.00 awarded for the cost of moving and other miscellaneous costs, making the total award at RM 2,890.000.00. The breakdown of the award is as follows: Head of compensation Award

1. Land Value RM 2,790,000.00

2. Moving cost and all other miscellaneous costs RM 100,000.00 Total RM 2,890.000.00 4 [7] The Applicant, dissatisfied with the amount awarded accepted the award under protest. Subsequently, the Applicant filed the requisite Form N on the grounds that he ought to have been compensated for the house and the contents therein that was erected/stood on the said land before the occurrence of the landslide. [8] The Land Reference was heard before the learned Judge on 11.12.2017 where the learned Judge dismissed the Applicant’s objections and ordered that the Land Administrator’s award dated 10.6.2014 be maintained. DECISION OF THE HIGH COURT [9] The findings of the learned Judge can be summarized as follows:

(ii) that under section 2(d) of the First Schedule of Act 486, the Applicant was only entitled to compensation for damage sustained to his land or property at the time the Land Administrator acquired the said land which was on the date the 5 said land was gazetted under section 8 of Act 486 which was on 1.4.2014.

(iii) that since the house and swimming pool were destroyed on 28.12.2012 and the land was left barren/vacant of any structure or building (the house and swimming pool were no longer there) on the date of acquisition on 1.4.2014, the Applicant was not entitled for compensation for these items. MEMORANDUM OF APPEAL [10] The grounds of appeal of the Applicant rest on 2 main grounds as follows:

(ii) failure to take into account the principle of injurious affection under section 2(d) of the First Schedule of Act 486. ON APPEAL Respondent’s submission [11] The appeal came up for hearing on 13.8.2018. At the outset of the appeal, learned Federal Counsel, Encik Ahmad Faiz Razali, appearing for 6 the Respondent raised a preliminary objection contending that the appeal was an incompetent appeal in view of the provisions of sections 40D(3) and 49(1) of Act 486 and that the Notice of Appeal filed by the Applicant ought to be dismissed. [12] The learned Federal Counsel argued that there can be no right of appeal under sections 40D(3) and 49(1) of Act 486 on a question of fact. The right of appeal under these sections is only on a question of law. The learned Federal Counsel referred to the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & another [2017] 3 MLJ 561 whereby the Federal Court held that section 49(1) is not a complete bar to appeals from the High Court to the Court of Appeal on all questions of compensation. It is only a bar if the appeal on the quantum of compensation is limited to the issues of fact. It is not a bar if the compensation relates to a question of law. [13] The learned Federal Counsel submitted that it was evident from the Applicant’s memorandum of appeal that this instant appeal did not involve any questions of law but revolved or was founded on the factual matrix of the Applicant’s complaint that he was not compensated for the house, its content and the loss of the swimming pool. In other words, the Applicant was appealing for compensation for the losses which did not arise from the acquisition. This he could not do since he was barred from doing so as it involved purely a question of fact which the learned Judge had adjudicated upon and found that the Applicant was not entitled to these compensation. Thus, since the question of fact had been answered by the learned Judge 7 and there was no question of law raised, the Applicant’s appeal was incompetent and ought to be dismissed. Applicant’s submission [14] The Applicant on the other hand insisted that his grievance over compensation was not purely on fact but involved a question of law, that is, he was entitled to reinstatement and injurious affection. The Applicant further argued that the issues of reinstatement and injurious affection were brought to the attention of the learned Judge, however, it was not addressed and dealt with in the learned Judge’s written grounds of judgement (GOJ). [15] The Applicant submitted that he ought to be reinstated to his original position where he should be compensated for the value of the house, its contents and the loss of the swimming pool to enable the Applicant to purchase another residential land of similar characteristic consonant with section 1(2C) of the First Schedule of Act 486. [16] The Applicant further submitted that the Land Administrator had erred in only granting compensation in relation to the said land and not on the house, its contents and the loss of the swimming pool and the learned Judge had similarly erred when His Lordship affirmed the same. Despite the fact that the house was no longer in existence at the time the acquisition and the assessment were made, the Applicant argued that the Land Administrator should have taken into account the fact that, had the 8 Local Authority (DBKL) undertook the reparation work without compulsorily acquiring the said land, the Applicant would not be deprived of the ownership of this prime residential land. [17] The Applicant summed up that in such circumstances, he was not adequately compensated and made reference to Article 13(2) of the Federal Constitution and the the case of Tan Yen Foon v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2008] 7 CLJ 267 that upheld the rights of an owner of a private land who had been deprived of his property through compulsory acquisition to receive adequate compensation. Injurious Affection [18] On his claim for injurious affection, the Applicant submitted that this issue was a separate matter from market value in determining compensation. He quoted, inter alia, the Supreme Court’s case of Damansara Jaya Sdn Bhd v Pemungut Hasil Tanah Petaling [1992] 2 MLJ at pp 662-663, where it was held that under section 2 of the First Schedule, injurious affection was under paragraph (d) and was a separate matter from market value which was under paragraph (a) and had to be dealt with separately in determining the amount of compensation to be awarded. The Applicant quoted a passage from Damansara Jaya (Supra) at page 663, as follows: “It is obvious from the provisions of s 2 of the Schedule that injurious affection under para (d) is a separate matter from market value under para 9

1. “Market value

(1) For the purposes of this Act the term “market value” where applied to any scheduled land shall mean the market value of such land—

1.4 million which was substantially destroyed by the landslide on 28.12.2012. The Applicant argued that though he did not blame the landslide for his loss, but “due to the nexus in relation to the incident (of the landslide) as well as the purpose of the land acquisition (to repair and rehabilitate the condition of the hillslope), he ought to be compensated in relation to what has been lost”. [25] It must be noted that after the landslide, whatever structure or building that was left on the Applicant’s land had to be demolished by DBKL on 31.12.2012 for safety reasons since reparation works had to be done to repair and rehabilitate the hillslope. For these reasons, the land was acquired under section 8 of Act 486 by the Land Administrator on 1.4.2014. In such circumstances, is the Applicant entitled to be compensated for the loss of his house, its contents and the loss of the swimming pool which was destroyed by the landslide and whatever remained after had to be demolished by DBKL for safety reasons? Does the principle of reinstatement in such a scenario takes into account the loss of the house, its contents and swimming pool to be incorporated into the market value of the land? [26] The Applicant argued that the issue of reinstatement was brought to the attention of the learned Judge, however, it was not addressed and dealt with in the learned Judge’s written GOJ. Having perused the GOJ of the learned Judge, we found that the Applicant’s allegation that the issue of reinstatement was not addressed and dealt with in the learned Judge’s written GOJ was baseless. The learned Judge had deliberated on this 14 issue when he focused his judicial mind on the condition of the scheduled land on the date of the acquisition which was on 1.4.2014. Paragraphs 7, 8, 9, 10, 11, 15 and 16 of the learned Judge’s GOJ are testimony to that which stated as follows: “[7] Peguam pemohon dalam penghujahannya di mahkamah terbuka menyatakan, bahawa pemohon tidak mempertikaikan awad berhubung nilai tanah dan kos perpindahan serta kos-kos lain yang telah di awadkan oleh responden tetapi hanya mempertikaikan tiadanya pampasan yang diberikan berhubung bangunan iaitu rumah dan isi bangunan atas tanah berjadual tersebut. [8] Penegasan peguam pemohon ini selaras dengan Borang N yang difailkan oleh pemohon di mana Borang N ini difailkan kerana tidak berpuashati dengan awad responden. Dalam Borang N ini antara lain dinyatakan: “saya merujuk kepada pendengaran perbicaraan pengambilan No. 2/201 dan Borang H bertarikh 17.6.2014 yang telah memutuskan jumlah pampasan kepada saya yang meliputi pampasan kepada nilai tanah sahaja. Saya membantah atas alasan tiada pampasan diberikan kepada bangunan dan isi bangunan yang telah didirikan di atas tanah tersebut.” [9] Berdasarkan fakta dan hujahan pihak-pihak dalam kes ini, hanya terdapat satu isu sahaja yang perlu diputuskan oleh mahkamah ini iaitu sama ada pemohon layak menerima pampasan berhubung rumah dan kolam renang atas tanah berjadual tersebut yang telah dirobohkan pada 28.12.2012 iaitu 1 tahun dan 4 bulan sebelum 15 pengambilan tanah pemohon dibuat di bawah Akta Pengambilan Tanah, 1960. [10] Berhubung isu ini, pemohon sendiri mengesahkan bahawa semasa pengambilan tanah pemohon dibuat, rumah dan kolam renang di atas hartanah tersebut telah dirobohkan iaitu 1 tahun 4 bulan sebelum itu. lni juga disahkan oleh pihak Jabatan Penilaian dan Perkhidmatan Harta yang membuat lawatan tapak pada 16.4.2014 dan mendapati tanah berjadual tersebut merupakan tanah kosong yang menurun dan bercerun ke bawah serta tiada sebarang struktur atau bangunan di atasnya. [11] Undang-undang adalah jelas bahawa pampasan yang diberikan antara lain hendaklah terhadap kerosakan harta alih atau tidak alih semasa Pentadbir Tanah mengambil milik tanah tersebut. Ini dinyatakan di bawah seksyen 2(d), Jadual Pertama, Akta Pengambilan Tanah, 1960 iaitu seperti berikut: “2. Perkara-perkara yang hendak dipertimbangkan dalam menentukan pampasan: Dalam menentukan amaun pampasan yang hendak diawardkan bagi mana-mana tanah dijadualkan yang diambil di bawah Akta ini pertimbangan hanya boleh diberi kepada perkara-perkara yang berikut sahaja:

2. In determining the amount of compensation to be awarded for any scheduled land acquired under this Act there shall be taken into consideration the following matters and no others:

40D. (1) In a case before the Court as to the amount of compensation or as to the amount of any of its items the amount of compensation to be awarded shall be the amount decided upon by the two assessors. 22

(2) Where the assessors have each arrived at a decision which differs from each other than the Judge, having regard to the opinion of each assessor, shall elect to concur with the decision of one of the assessors and the amount of compensation to be awarded shall be the amount decided upon by that assessor.

(3) Any decision made under this section is final and there shall be no further appeal to a higher Court on the matter.” [Emphasis added] And section 49(1): “Appeal from decision as to compensation

49. (1) Any person interested, including the Land Administrator and any person or corporation on whose behalf the proceedings were instituted pursuant to section 3 may appeal from a decision of the Court to the Court of Appeal and to the Federal Court: Provided that where the decision comprises an award of compensation there shall be no appeal therefrom.” [Emphasis added] [35] In the case of Semenyih Jaya (supra), the Federal Court had re-examined the provisions of sections 40D(3) and 49(1) of Act 486 in its entirety and distinguished its earlier decisions in Calamas Sdn Bhd v Pentadbir Tanah Batang Padang [2011] 5 CLJ 125 and Syed Hussain bin Syed Junid & Ors v Pentadbir Tanah Negeri Perlis & another appeal [2013] 6 MLJ 626 and held that section 49(1) is not a complete bar 23 to appeals from the High Court to the Court of Appeal on all questions of compensation. It is only a bar if the appeal on the quantum of compensation is limited to the issues of fact. It is not a bar if the compensation relates to a question of law. Zainun Ali, FCJ, (as she then was) summed up the Court’s decision on section 49(1) in Semenyih Jaya (supra) at paragraphs 151, 152, 153, 154 and 155 at pp 604 and 605 as follows: “[151] We have perused the facts and the decisions of this court in Calamas (supra) and Syed Hussain (supra). The cases do not represent a bar to appeal against any decision of the High Court on compensation. Even if Calamas (supra) and Syed Hussain (supra) represent a bar to appeal against any decision which comprises compensation, the Federal Court in these two cases were not invited to consider issues of constitutionality or the restrictive dimension of subsection 49(1) in the face of art 13 of the Federal Constitution, since it was never raised there. Instead, the issues in these two cases merely revolved around the construction of subsection 40D(3) and subsection 49(1) of the Act. [152] In our view, what needs clarification here is the phrase "against the order of compensation made by the High Court" which was used by the Federal Court, both in Calamas (supra) and Syed Hussain (supra). The question is whether such expression denotes any decision issued by the High Court with regard to compensation. [153] In our view, this does not appear to be the case. It is obvious that the subject matter of the appeals in both cases was purely on the inadequacy of quantum of compensation awarded by the High Court. It 24 was on this basis that Hashim Yussof FCJ in Calamas (supra), concluded that: It would appear that from the grounds of judgment of the Court of Appeal (at p 16 appeal record vol 1), the issue put forward before the court was whether the learned judge was correct in determining the amount of compensation to be awarded to the appellant [emphasis added]. ... I am of the view that the said section clearly stipulates that "Any decision made under this section is final and there shall be no further appeal to a higher court on the matter.” It is trite law that courts must give effect to the clear provisions of the law. In the instant appeal I do not see anything ambiguous in ss 40D(3) and 49(1) of the Act. In view of this, I am of the view that the appellant is precluded from appealing against the order of compensation issued by the learned trial judge. [154] The position is reinforced by the restrictive approach taken by the Federal Court in the interpretation of the proviso to subsection 49(1) of the Act. In Syed Hussain (supra), His Lordship Raus Sharif PCA held that because of its legislative background, the proviso to subsection 49(1) of the Act must be read together with the provision of subsection 40D(3) of the Act. The intention of Parliament is clear. There can be no appeal against the decision of the High Court on the amount of compensation. The relevant part of the judgment reads: "Thus while s 49(1) of the LAA allows any interested person to appeal against the decision of the High Court to the Court of Appeal, s 40D appears to have restricted the ambit of such an appeal. Section 40D(3) clearly provides that any decision as to the amount of compensation award shall be final and there shall be no 25 further appeal to the higher Court on the matter. This non-appealable provision of s 40D(3) is further reinforced by the proviso of s 49(1) which reads: Provided that where the decision comprises an award of compensation there shall be no appeal therefrom. Historically speaking, s 40D is a new section introduced by the Land Acquisition (Amendment) Act 1997 (Amendment Act 1997). The Amendment Act 1997 had also inter alia amended the proviso of s 49(1) of the LAA." [155] To sum up, the proviso to sub-s 49(1) of the Act does not represent a complete bar on all appeals to the Court of Appeal from the High Court on all questions of compensation. Instead the bar to appeal in sub-s 49(1) of the Act is limited to issues of fact on ground of quantum of compensation. Therefore an aggrieved party has the right to appeal against the decision of the High Court on a question of law.” [Emphasis added] [36] On perusal of the Applicant’s memorandum of appeal it was evident, as submitted by the learned Federal Counsel, that this instant appeal did not involve any questions of law but revolved or was founded on the factual matrix of the Applicant’s complaint that he was not compensated for his house, its contents and the loss of the swimming pool. In other words, the Applicant here was merely complaining on the amount of compensation which had been evaluated by the learned Judge. As correctly argued by learned Federal Counsel, the learned Judge had adjudicated on this pure question of fact and had concluded that the Applicant was not entitled to 26 compensation for these items. Thus, since the question of fact had been answered by the learned Judge and there was no question of law raised, the Applicant was barred from appealing under section 49(1) of Act 438 and the appeal was consequently rendered incompetent and ought to be dismissed. [37] We need to emphasize that we were of the opinion that the issues raised by the Applicant in this appeal before us was not on a question of law but rather a back door attempt by the Applicant to revive his claim on quantum of compensation which was a question purely of fact which had been dismissed by the learned Judge. This instant appeal, in substance, pertained to the alleged inadequacy of compensation awarded by the Land Administrator and subsequently affirmed by the High Court. In the proceeding before the High Court, the Applicant had sought “compensation for the destroyed house, its contents and the loss of the swimming pool”. However, when the Applicant came before us, the terms were replaced with “reinstatement and injurious affection” and yet, they both referred to one and the same thing. Therefore, in essence, the Applicant was challenging the award of compensation granted by the Land Administrator dated 10.6.2014 and affirmed by the learned Judge on 11.12.2017. In the face of Semenyih Jaya (supra), section 49(1) of Act 486 operated against the Applicant from pursuing this appeal. In other words, the Applicant was barred from doing so and the appeal was therefore rendered incompetent and ought to be dismissed. 27 CONCLUSION [38] For the reasons stated above, we dismissed this appeal with costs of RM5,000.00. The award of the Land Administrator dated 10.6.2014 which was affirmed by the learned Judge on 11.12.2017 was affirmed. Deposit, if any, was to be refunded to the Appellant. -sgd-Dated: 8th August 2019 (SURAYA OTHMAN) Judge Court of Appeal Malaysia 28 CASE(S) REFERRED TO: 1) Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & another case [2017] 3 MLJ 561; 2) Tan Yen Foon v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2008] 7 CLJ 267; 3) Damansara Jaya Sdn Bhd v Pemungut Hasil Tanah Petaling [1992] 2 MLJ 662-663; 4) Land Administrator, District of Gombak v Huat Heng (Lim Low & Sons) Sdn Bhd [1990] 3 MLJ 464; 5) Calamas Sdn Bhd v Pentadbir Tanah Batang Padang [2011] 5 CLJ 125; and 6) Syed Hussain bin Syed Junid & Ors v Pentadbir Tanah Negeri Perlis & another appeal [2013] 6 MLJ 626. LEGISLATION REFERRED TO: 1) Article 13(2) of the Federal Constitution; 2) Sections 40D(3) and 49(1) of the Land Acquisition Act 1960 (Act 486); and 3) Sections 1(1), 1(1)(b), 1(2C), 2(d), 2(f) of the First Schedule (Act 486). COUNSEL: For the Appellant - Wan Aizuddin Wan Mohammed Messrs Shafee & Co No. 25, Jalan Tunku Bukit Tunku 50480 Kuala Lumpur 29 For the Respondent - Ahmad Faiz Razali Jabatan Peguam Negara Cawangan W.P. Kuala Lumpur Aras 5&7, Wisma Chase Perdana Bukit Damansara 50512 Kuala Lumpur