Bayangan Sepadu Sdn. Bhd. v 1. ) Jabatan Pengairan dan Saliran Negeri Selangor (BA-21NCVC-20-03/2017)

JABATAN PENGAIRAN DAN SALIRAN NEGERl SELANGOR

2.

KERAJAAN NEGERl SELANGOR DARUL EHSAN ...DEFENDANTS JUDGMENT A. THE CLAIM [1] The Plaintiff claims against the Defendants are for: [a] An injunction restraining the Defendants from trespassing on the land known as Lot PT 18903, HS(M) 20109, Mukim Klang, Tempat Bukit Kemuning, Daerah Klang (the Land). 2 [b] An Order that the Defendants remove the fence and/or other structures and restore the Land to the condition in which it was before such fences and/or structures were erected or constructed. [c] An Order that the Defendants, jointly and/or severally, pay damages for trespass on the Land from 25.3.2011 or a date this Court deems fit to the date the Defendants cease trespass. [d] Interest and cost. [2] The Defendants also counterclaim against the Plaintiff for the following reliefs:- [a] a declaration that the Land belongs to the State of Selangor. [b] an order that the Defendants are entitled for damages and the Plaintiff to bear the construction cost of the retention pond. [c] exemplary damages. [d] interest and cost. 3 B. BACKGROUND [3] The present dispute involves a plot of land, known as Lot PT 18903, HS(M) 20109, Mukim Klang, Tempat Bukit Kemuning, Daerah Klang (the Land) measurings 762,283 square feet or 70816.0907 square meters or 17.49 acres. The previous owners of the Land were Newacres Sdn Bhd and Bumi-Murni Sdn Bhd (Previous Owners). [4] The Plaintiff had on 25.3.2011 purchased the Land at a public auction held by the Klang Land Office. The public auction was held on the application of the chargee bank, CIMB Bank Berhad. According to the proclamation of sale dated 25.3.2011, there was a retention pond on the Land and nothing stated therein that any part of the Land was surrendered or ought to be surrendered and no registered interest was stated on the Land. The Plaintiff conducted a land search which does not show that the portion of the Land where the retention pond and the structure were built was surrendered to the Defendants. The Plaintiff was then the successful bidder and subsequently purchased the Land for RM3.66 million. After the auction, the Plaintiff carried out another land search on 4.5.2011 which also does not show that the portion of land where the retention pond and the structures were built was never surrendered to the Defendants. 4 [5] However, sometime on or about July 2011, the Plaintiff engaged PW2, a licensed land surveyor to carry out a survey on the Land and it revealed that the retention pond were on the Land. There were also the structures, such as TNB, staff quarters, huts and store room surrounding the retention pond which part of the Land, i.e. being 9.554 acres out of 17.49 acres. PW2 also confirmed that the certified plan of the Land with the Department of Survey and Mapping Malaysia showed that the retention pond was part of the land and the Defendants had fenced up and erected the structures next to the retention pond. The Plaintiff‟s agents wrote to, inter alia, the 1stand 2nd Defendants requesting for information and documents justifying the latter‟s occupation of the Land. [6] By way of a letter dated 25.10.2013, the 1st Defendant replied to the Plaintiff‟s letter dated 27.9.2013 stating that they are in the process of collecting the relevant documents/information on the project and the retention pond on the Land and that a meeting to discuss this matter will be held once the relevant documents/information obtained. Subsequently, by the letter dated 11.9.2014, the 1st Defendant wrote to Klang Land Administrator to apply to enter a Registrar Caveat on the Land and the caveat was entered on 19.9.2014. 5 [7] On 10.12.2014, the Plaintiff filed an application in the Shah Alam High Court via Originating Summons No. 24-1381- 12/2014 against the 1st and 2nd Defendants for discovery and to provide necessary documents to justify their occupation on the Land and this was allowed by the Court on 23.7.2015. [8] On 11.03.2015, the Defendants lodged a police report No. SEK9/002493/15 stating that they were unable to locate the project file namely “Projek Rancangan Tebatan Banjir Taman Sri Muda Seksyen 25 Shah Alam” and intended to gather documents and plan from Majlis Bandaraya Shah Alam (MBSA). [9] The 1st and 2nd Defendants then produced the documents below:

A copy of official search and Form 11B for the Land (page 63- 66 Bundle B);

Letter dated 16.09.1996 by Newacres Sdn Bhd to MBSA (page 70 Bundle B);

Site Plan, Location Plan and Source Plan (page 71

Layout Plan dated 8.6.2006 (page 74 Bundle B). [10] Notwithstanding the above, the Plaintiff‟s solicitors wrote to the 1st Defendant by letter dated 16.03.2017 asking for irrevocable and unconditional undertaking among others for the 6 delivery of vacant possession of the Land and removal of the fence and structures within three days. The Plaintiff then proceeded with filing of this suit on 20.03.2017. The Defendants filed an application for striking out under Order 18 Rule 19 Rules of Court 2012 on 26.10.2017 but later withdrawn to proceed with the trial. [11] The thrust of the Defendants‟ defence to justify their occupation of the Land is that the previous owners had validly surrendered the portion of the Land to them to be used as a retention pond based on 5 documents which are:- [a] A letter dated 21.8.1996 from Y Y Woo Akitek (YYW) to MBSA where the previous owners, had appealed against a reduction in 'density‟ by stating that 41% of the project, i.e. a portion of a land measuring 14 acre had been “surrendered" to build a retention pond. [b] A letter dated 16.9.1996 to MPSA from the previous owner had agreed to build and surrender the retention pond to MBSA for maintenance thereafter, as a condition to receive planning permission. [c] A letter dated 24.7.1997 from one Ahmad Zamri bin Kamaruddin, Ketua Jabatan Perancang Bandar of MBSA to YYW informing that MPSA has imposed a condition for the construction of a retention pond for development on Lot 18908. 7 [d] The layout Plan of “Cadangan Pembinaan Kediaman, Asrama, Kompleks Sukan dan Kolam Tadahan Air di atas Lot 38618” as approved on 26.9. 1996 and was registered 18.7.1997. [e] A letter by MBSA dated 20.4.2006, in respect of Planning Permission on Lot 38618. C. LIST OF WITNESSES [12] The Plaintiff‟s witnesses are: [a] Mr. Lee Hoy Voon – SP1 – The Plaintiff‟s Director. [b] Ir. Lau Swee Seng – SP2 – Land Surveyor. [13] The Defendants‟ witnesses are [a] Ir Mohd Sa‟id bin Dikon – SD1 – Jurutera Perancang, Ketua Penolong Pengarah of the 1st Defendant. [b] Cheremi bin Tarman – SD2 – Pengarah Kejuruteraan MBSA. [c] Azman bin Yahya – SD3 – Jurutera Awam – Timbalan Pengarah 1st Defendant. 8 [d] Yusri bin Abdul Jalil – SD4 – Jurutera Awam – Timbalan Pengarah Operasi 1st Defendant. [e] Nor Azlina binti Mamat – SD5 – Penolong Pegawai Daerah Klang. [f] Aniza binti Osman – SD6 – Pegawai Perancang Bandar MBSA. D. ISSUES [14] The agreed issues to be tried: [a] Whether there was a valid surrender of a part of the Land which according to the Defendants measures approximately 14 acres by the previous owners of the Land to the State Authority of Selangor to build a retention pond and its structures. [b] Whether the retention pond and the structures that was built on the Land which according to the Defendants measuring approximately 14 acres belonged to the State Authority of Selangor. [c] Whether the Plaintiff when he bought the Land is subject to the terms and conditions of the auction sale, particularly clause 18 of the Proclamation of Sale. 9 [d] Whether the Defendants are trespassing on the Land by occupying and/or continue to occupy the retention pond and the Structures. [e] Whether the Plaintiffs action is amounting to laches and/or barred by Section 2(a) of the Public Authorities Protection Act and/or Section 6 and/or 9 of the Limitation Act 1953, and/or against section 5,6 and/or 7 of the Government Proceedings Act 1956. [15] Counterclaim [a] Whether the Plaintiff had failed to take reasonable steps and had therefore waived its rights over the retention pond and the structures. [b] Whether the public interest in maintaining the retention pond and structures overrides the Plaintiff‟s ownership in the same. E. EVALUATION AND FINDINGS [16] Since the issues [a] and [b] in the main claim are very closely related, I will deal both the issues together as to whether there was a valid surrender of the Land by the previous owners to the State Authority of Selangor. 10 [17] The Plaintiff submitted it is the registered owner of the Land with an area of 762,283 square feet or 70816.0907 square meters or 17.49 acres after the auction on 25.3.2011. Therefore, the Plaintiff being the registered proprietor of the Land possesses an indefeasible title to or interest and the use of the Land for the purpose of which it has been alienated. A total of 5 land searches in year 2009, 2011, 2014, 2016 and 2017 were executed did not at any time revealed the Defendant‟s interest therein and were surrendered to the Defendants. The promise made by the Defendants to build the retention pond and the structures was for Lot 18909 and Lot 18908 and was not on Lot 18903. There is no evidence to support the Defendants‟ contention that a part of the Land had been surrendered to the Defendants and in fact, the Defendants' witnesses agreed that the lot agreed to be surrendered was not the Land. [18] The Defendant on the other hand contended that the previous owner of the Land had validly surrendered it to the Defendant. The Defendant depends on 5 documents to support of the valid transfer of the Land as mentioned under paragraph [11]. [19] By a letter dated 24.7.1997, MBSA agreed to grant planning permission to previous owners for Lot 18908 with part of the conditions is that they are to build and surrender a retention pond measuring 14 acres on Lot 18908. As for Lot 18909 by a letter dated 16.9.1996, the previous owners agreed to build, 11 bear the cost of building a retention pond and surrender it as part of the conditions to obtain planning approval for Lot 18909. DW 6 in her evidence relates the background of the planning permission as follows; “5. S: Boleh beritahu Mahkamah latar belakang Kelulusan Perancangan tersebut? J: Pemilik asal iaitu Tetuan Newacres Sdn Bhd dan Bumi-Murni Sdn Bhd lebih kurang pada tahun 10.04.1996 telah mengemukakan permohonan untuk mendapatkan kelulusan perancangan bagi cadangan pindaan pelan tataatur daripada Majlis Perbandaran Shah Alam (MPSA) ketika itu melalui perunding arkitek iaitu Tetuan Y.Y. Woo Akitek. Oleh yang demikian, kelulusan telah diberikan pada 26.09.1996 dan telah dimaklumkan kepada perunding melalui surat bertarikh 24.07.1997 dengan syarat-syarat tertentu dan salah satu syarat ialah kolam perlu dibina dan diserahkan kepada MPSA.

S: Kemudian apakah tindakan yang diambil oleh Tetuan Newacres Sdn Bhd dan/atau Tetuan Y.Y. Woo Akitek? J: Tetuan Y.Y. Woo Akitek melalui surat pada 21.08.1996 telah mengemukakan rayuan untuk menaikkan densiti dengan alasan sebahagian daripada Tanah tersebut iaitu seluas 14 ekar telah diserahkan kepada Kerajaan. Selanjutnya Tetuan Newacres Sdn Bhd melalui surat pada 16.09.1996 juga telah mengesahkan penyerahan tanah seluas 14 ekar kepada Kerajaan untuk pembinaan kolam takungan. 12

S: Jadi apakah yang puan dapati selepas itu? J: Berdasarkan permohonan kebenaran merancang pendirian bangunan bagi cadangan membina 2 Blok Apartment Kos Sederhana Tinggi (840 Unit) yang terdiri daripada a) Fasa 1 - Blok 1&2 (Tingkat 4-21) b) Fasa 2 - Blok 3&4 (Tingkat 4-21) yang mengandungi tempat letak kereta di tingkat bawah, basement 1, basement 2 dan tingkat 1, kemudahan pangsapauri di tingkat „mezzanine‟ 4 unit pondok pengawal dan 2 unit pusat pungutan sampah sarap, pihak Jabatan Perancangan MBSA telah memberi kelulusan kebenaran merancang pada 31.10.2005 berdasarkan surat 20.04.2006 (“Kebenaran Merancang Pendirian Bangunan tersebut”). Kelulusan yang diberikan ini hanva untuk pembinaan pangsapuri sahaia tanpa melibatkan kolam takungan. Ini menunjukkan bahawa pemilik asal tidak menafikan penyerahan tapak kolam takungan tersebut dan mereka hanva akan membina tapak pangsapuri sahaia.

S: Apakah yang beriaku selepas itu? J: Pemilik asal tidak melaksanakan pembangunan pangsapuri tersebut dalam tempoh satu tahun menyebabkan ia terbatal." [20] Although the letter refers to Lot 18909 and not on Lot 18903, the previous owners did not object as to the construction of the retention pond at the proposed area on the Land. This was explained by DW 2 during their meeting on „Pencegahan Banjir Taman Sri Muda Seksyen 25‟ on 24.10.1997. Refer to (Minit 13 Mesyuarat mukasurat 88-89 Bundle B) in accordance with the new layout plan for the placement of the retention pond. DW 2 in his evidence informed that:

S. Kemudian apakah tindakan yang dikenal pasti diambil oleh encik? J: Saya telah mempengerusikan satu mesyuarat Projek Pencegahan Banjir di Taman Sri Muda Seksyen 25, Shah Alam Selangor Darul Ehsan - Fasa 2 pada 24.10.1997 yang mana dihadiri oleh pihak dan agensi teknikal yang terlibat antaranya JPS, Jurutera Daerah, Jabatan Pengairan dan Saliran Daerah Klang, wakil-wakil pemilik asal Tetuan Newacres Sdn Bhd dan Kontraktor JPS bertujuan untuk menyelaraskan Projek Rancangan Tebatan Banjir Fasa 1 dan 2. Dalam mesyuarat tersebut, pemilik asal iaitu Tetuan Newacres Sdn Bhd tiada halangan untuk pembinaan kolam takungan banjir di tempat yang dicadangkan oleh JPS dan MBSA dan oleh yang demikian, telah diputuskan kedudukan kolam takungan banjir di tempat tersebut. [21] It was revealed by DW 2 that the previous owners failed to construct the retention pond instead it was built by a 3rd party, Jamtan Sdn Bhd and was completed in October 1998. 14

S: Jadi apakah yang berlaku selepas itu? J: Kolam takungan banjir telah mula dibina oleh Kontraktor Tetuan Jamtan Sdn Bhd dan telah siap dibina pada lebih kurang Oktober tahun 1998. ” [22] I am satisfied that there are sufficient evidences to support that the previous owners had consented and given their permission to surrender part of their Land for the purpose of constructing the retention pond. By the letter dated 16.9.1996, the previous owners undertake to build the retention pond at their own costs and upon completion will hand over to MBSA for the maintenance process. The letter dated 16.9.1996 (B3 page 7 & 8) was not disputed on their existence and the Plaintiff agreed that the document to be put in Part B reads as follows:- 15 16 17 [23] I also took cognizance of the Layout Plan at page 74 of Bundle B which support the facts that : [a] the letter dated 16.9.1996 was taken into consideration for the purpose of amendment to building plan/Planning Permission as per the title of that letter at page 7 of Bundle B3, signed by the director of previous owners. [b] the Council Meeting of MBSA had approved the project with the Layout Plan on 26.09.1996 as per the endorsement therein. The Layout Plan was registered on 18.07.1997 as PELAN NO: MPSA/PRG/PT 25C-3-97 FAIL NO: MPSA/PRG/2016-96 (25C) TARIKH: 18.7.1997 [c] the Layout Plan was based on the Letter by MPSA dated 24.07.1997, referring to the endorsement on the plan which stated that “Pe/an ini adalah berdasarkan surat

MPSA/PRG/2016-96 (25C) bertarkh 24.7.1997', [e] the land involved in this case is PT 18903 which at that time presumably formed part of “Lot PT 18909 and Lot 82” which originally Lot 38618, referring to the title namely “Pindaan Pelan Tatatur Kepada Pelan Kelulusan No. JPBK B4/18/87/PD Bertarikh 25hb. Mac 1987' and project title 'Cadangan Pembangunan Kediaman, Asrama Komplek Sukan Dan Kolam Tadahan Air Diatas Lot 38618 (34 Ekar) 18 Disebahagian Seksyen 25, Shah Alam, Selangor Darul Ehsan Untuk Tetuan Bumi Murni Sdn. Bhd. ", and [f] Subsequently, after meeting on 24.10.1997, previous owners had no objection on the placement of the retention pond and the construction of the retention pond had been completed in 1998, (refer to Minutes of Meeting at page 88-89). [24] I am guided by the trite law as to the mirror principle when dealing with the land, the registered owner and the interest therein. In this present case, it is not disputed that the Land was once belongs to the previous owners. At that material time, it was the absolute right of the previous owners to do anything on its land so long as it does not contrary to the law. By surrendering the Land to MBSA to construct a retention pond for the purpose of preventing the recurring flood was within the previous owners‟ decision and prerogative. Eventhough the previous owner‟s letter dated 16.9.1996 to MBSA had mentioned Lot 18909 but at no material time the previous owners had not objected as to the construction and the relocation of the retention pond on Lot 18903. [25] I also took cognizance that from 24.10.1997 until to the date of auction, 25.3.2011, there is no evidence at any material time to show that the previous owners had objected to the construction and location of the retention pond on the Land in accordance to 19 the new layout plan which was approved on 26.9.1996 and registered on 18.7.1997. [26] As to the Plaintiff contention that the application to surrender of the Land must be in accordance to Section 204 and Section 204D National Land Code 1965. I am of the view that those sections are incumbent on the previous owner‟s consent and approval by the State and did not have relation to the Plaintiff being the present owner. At that material time, the non-endorsement is a matter between the previous owners and the Defendant. The reason that the surrender process could not take place at that time was because there was a charge by the bank on the Land. This was supported by a letter issued by DW 6 to the Plaintiff dated 5.7.2016 confirming the Planning Permission on the Land in which it is still enforceable since the retention pond has been built as per the Planning Permission. Thus it is clear that the portion of the retention pond and the structures were surrendered to the State Authority of Selangor in accordance with law. (See page 21-21 of Bundle B3). 20 21 22 [27] Therefore, I find that there was a valid surrender of part of the Land measuring approximately 14 acres to build a retention pond and its structures by the previous registered owners to the Defendant and this would also answered the issue No. 2 as in the affirmative. [28] As to the 3rd issue: Whether the Plaintiff when he bought the Land is subject to the terms and conditions of the auction sale, particularly clause 18 of the Proclamation of Sale. [29] The Defendant submitted that the Plaintiff is subject to the terms and condition of the auction sale contracts, particularly clause 18 when the Plaintiff signed the contract and this had been agreed by the Plaintiff as testified by PW 1. [30] For ease of reference, clause 18 of the auction sale contracts provides as follows: “Hartanah ini adalah dipercayai dan hendakiah dianggap sebagai diperihalkan dengan betul dan dijual tertakluk kepada semua ismen, kaveat, tenansi, tanggungan dan hak (jika ada) yang wujud di atas atau terhadapnya tanpa apa-apa tanggungan yang timbul untuk mengtakrifnya dan tiada kesilapan, pernyataan khilaf atau perihal khilaf boleh membatalkan jualan ini dan tiada bayaran gantirugi dibenarkan mengenainya. ” [31] I am of the view that the terms and conditions in the Proclamation of Sale are not applicable to the Defendant as it is a contract between the chargee bank and the Plaintiff as a successful bidder. Since the Plaintiff is a party to the contract, it 23 is subject to the terms and condition of the auction sales. In this instant case, the Plaintiff did not claim for damages against the chargee bank but only claiming against the Defendant for trespass of the land. [32] Further the auction sales contract is based on “as is where is basis” and no damages shall be claimed in due regard. In the case of One Visa Sdn Bhd v. Telekom Malaysia Bhd [2015] 10 CLJ 569 it was held that: “(4) The Plaintiff purchased the lands on the basis of “as is where is" as evidenced by the proclamation of sale for the public auction. The application of “as is where is‟‟ was in relation to the plaintiff‟s purchase of the lands according to its existing condition. The plaintiff ought to have known or was otherwise deemed to have known about the exercise of the defendant‟s infrastructure and of any squatters prior to the purchase of the lands... As such, the plaintiff‟s claim against the defendant for trespass and damages pursuant to it with regards to the presence of the squatters on the lands was without basis and could not be sustained. ” [33] Further, in this case, the Plaintiff admitted that it is aware about the retention pond in the proclamation of sale since “before the auction” (see page 18-19 NOP). The Proclamation of Sale stated under the heading “The Location and Description of the Property” where there is a retention pond which covered a major part of the subject property. In fact PW 1 in his evidence did not deny and even admitted the existence of the retention pond when the Plaintiff purchased the Land. The Plaintiff‟s 24 knowledge was also manifested by the letter dated 15.4.2013 when KF requested permission from the Defendant to have access to the retention pond area for the purpose of site visit. This indirectly demonstrates that the Plaintiff has acknowledged the ownership of the Defendant and in this suit therefore is estopped from claiming trespass as to the existence of the retention pond and the structures which are meant for the purpose of maintaining the retention pond. Therefore, I find that the Plaintiff has full knowledge and even accepted the location and description of the Land including the retention pond which covered the major part of the Land has been surrendered to the State Authority of Selangor. [34] As to 4th issue. Whether the Defendants are trespassing on the Land by occupying and/or continue to occupy the retention pond and the Structures. [35] Since I have decided that part of the Land consisting of 14 acres of retention pond and structure was validly surrendered to the Defendant, it follows that the Defendant cannot be said have committed an act of trespass by occupying and or continues to occupy the retention pond and the structures. [36] As to 5th issue: Whether the Plaintiffs action is amounting to laches and/or barred by Section 2(a) of the Public Authorities Protection Act and/or Section 6 and/or 9 of the Limitation Act 1953, and/or against section 5, 6 and/or 7 of the Government Proceedings Act 1956. 25 [37] In view of my findings that there was a valid surrender to the Defendant by the previous owners and there was also no act of trespass being committed by the Defendant, therefore the 5th issue, to my mind, is no longer an issue to be dealt with. [38] Having heard the evidences before me and submissions from both learned counsels and after having given much consideration, I, on the balance of probabilities, finds that the Plaintiff has failed to prove its case and the claims against the Defendants is dismissed. F. COUNTERCLAIM [39] 1st Issue of counterclaim: Whether the Plaintiff had failed to take reasonable steps and had therefore waived its rights over the retention pond and its structures. [40] 2nd issue of counterclaim: Whether the public interest in maintaining the retention pond and its structures override the Plaintiff‟s ownership in the same. [41] For the both issues in the counterclaim, I find the 1st issue is no longer relevant since there was a valid surrender of part of the Land in respect of the retention pond and its structures. As to the 2nd issue as to the surrendering part of the Land for the purpose of retention pond and its structures was finalized before the Land was registered under the Plaintiff. Therefore the issue of ownership and trespass does not arise. I also find 26 that acquiring the Land via the Land Acquisition Act 1960 for public purpose is not applicable since there was consent on the part of the previous owner. [42] I also take judicial notice that the purpose of constructing and maintaining the retention pond in year 1998 was intended to prevent frequent flooding in the area of Taman Sri Muda Section 25 Shah Alam. Hitherto, it was proven that the retention pond was built for public purposes and falls under the supervision of the State Authority. [43] Upon the reason stated above, the counterclaim is allowed as per paragraph 42.1 of the Statement of Defence with an agreed costs of RM15,000.00. ROZANA ALI YUSOFF JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT DATED: 03 SEPTEMBER 2018 27 Counsel for the Plaintiff Tetuan Rhiza & Richard M-2-7 & M-3-7, Plaza Damas, 60 Jalan Sri Hartamas 1 50480 Kuala Lumpur. Counsel for the Defendant Penasihat Undang-Undang Negeri Selangor Tingkat 4 Podium Utara Bangunan Sultan Salahuddin Abdul Aziz Shah 40512 Shah Alam Selangor Darul Ehsan. References:- I. One Visa Sdn Bhd v. Telekom Malaysia Bhd [2015] 10 CLJ 569 II. Limitation Act 195 III. Government Proceedings Act 1956.