GOH BENG HOCK v Pentadbir Tanah dan Daerah (BA-15-229-07/2018)

This Court allowed the application with RM1,000.00 in costs.

An appeal has been lodged against the decision. Background Facts [4] The applicant is a registered owner of a piece of land held under Lot 5554, GRN 35012, Mukim Kapar, Klang District, Selangor.

The applicant is dissatisfied with the award regarding his land acquisition and objected by submitting Form N on 24-3-2017 at the Land Office.

It is undisputed that Form O was submitted more than six months after the applicant submitted Form N.

The applicant and the respondent do not dispute the timeline of this land reference proceeding. They are as follows: Date About

2.3.2017 Form G & H issued by the

24.3.2017 Form N, filed by the Applicant

19.6.2017 Form H, filed by the Applicant

30.7.2018 Form O, filed by the Respondent [8] WCE asserted that non-compliance with Section 38(5) of the LAA 1960 directly impacts this Court’s jurisdiction regarding the consideration of the matter. [9] WCE argued about the effect of the word “shall”, as it appears in Section 38(5) of the LAA1960, which imposed mandatory compliance. [10] The applicant argued that Section 38(5) of the LAA is a directory provision rather than a mandatory one. The Issue to be Tried [11] Does non-compliance with the statutory requirement under Section 38(5) of the LAA 1960 affect this Court's jurisdiction to hear the land reference? Decision of the Court [12] The late filing of Form O is undisputed in this matter. [13] The applicant referenced the High Court case in Projek Lintasan Kota Sdn Bhd v Wisma Denmark Sdn Bhd [2012] MLJU 837 to argue that Section 38(5) of the LAA 1960 is a directory rather than a mandatory procedural requirement. [14] The LAA 1960 constitutes a complete and comprehensive legislative act governing substantive law, procedural guidelines, and the requisite forms applicable to all parties involved. [15] The LAA 1960 has been established to ensure landowners receive proper compensation, enabling acquiring authorities to advance their projects while safeguarding the public interest. Failing to adhere to the prescribed procedures will disrupt this balance, resulting in unnecessary project delays and adversely affecting the interests of all parties involved. [16] In the Court of Appeal decision in the case of Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v Inch Kenneth Kajang Rubber Ltd & Anor [2011] 4 MLJ 403, it was decided that the LAA 1960, being a special act, must be strictly adhered to and applies to all relevant parties concerned. [17] Whether the term “shall” in specific legislation is mandatory or directory hinges on the legislature's intention, which can be discerned by analysing the overall scope of the statute that is to be construed. The High Court's decision in the case of Chan Eng Keat v Liang Zhi Qiang & Anor [2012] 8 MLJ 167 is referenced. [18] Consequently, analysing how the Court interprets the remaining subsections in the LAA 1960 is pertinent. [19] The Federal Court's decision in Sin Yee Estate Sdn Bhd v Pentadbir Tanah Daerah Kinta [2005] 4 CLJ 653 established the mandatory nature of Section 38(2) of the LAA 1960. [20] Likewise, the Court of Appeal decision in Pentadbir Tanah Seremban v Inisiatif Jaya Sdn Bhd & another appeal [2017] 9 CLJ 1 confirmed the mandatory nature of Section 38(2) of the LAA

It was decided as follows: “[59] It is clear that the requirement stipulated in s 38 (2) abovementioned is mandatory by the usage of the word “shall”, which precedes the requirement to state fully. The word “fully”, being a non-technical must be understood in its natural and ordinary meaning. The Concise Oxford English Dictionary interprets the word “fully” to mean ‘completely or entirely, to the fullest extent. [60] Thus, we are of the opinion that s 38 (2) of Act 486 requires that the grounds of any objection to an award must be stated expressly and in specific terms in Form N in order to comply with the abovementioned requirement.” [21] Section 38(3) of LAA 1960 is similarly mandatory. In a High Court case, Victory Investment Co Sdn Bhd v Pentadbir Tanah Daerah Johor Bahru & Anor [2014] 7 MLJ 888, it was held that failure to file Form N within the stipulated timeframe precludes objections being raised unless special circumstances can be demonstrated. [22] Similarly, in the High Court case, West Coast Expressway Sdn Bhd v Pentadbir Tanah Daerah Klang & Anor [2024] 9 MLJ 813, it was determined that the timeline stipulated under Section 38(3) of the LAA 1960 must be strictly adhered to, and any failure to comply is at the party’s own risk. [23] It is important to note that if the land administrator fails to file Form O within the timeframe prescribed in the LAA 1960, as occurred in this instance before me, Sections 38(6) and 38(7) of the LAA 1960 allow any interested person to apply to the High Court for appropriate directions, which the applicant failed to do in this case. It can be inferred that the applicant neglected his legal rights. [24] It remained undisputed that neither the applicant nor the respondent had applied for an extension. The applicant must ensure that his claims and objections are filed and pursued promptly as prescribed under the LAA 1960. [25] On this point, I refer to the Federal Court decision in Spicon Products Sdn Bhd v Tenaga Nasional Bhd & Anor [2022] 4 CLJ 195, which held that compliance with Section 38(5) of the LAA 1960 is mandatory. It was decided as follows at page 15: “Any prejudice or injustice, if at all, caused to the appellant is actually the result of their own attitude. Had the appellant remained vigilant in making the application for enlargement of time, they would have had the opportunity to ventilate their case before the High Court. But the appellant had chosen to remain nonchalant and treated their right with apathy.” [26] The applicant referred to the High Court decision in Projek Lintasan Kota Sdn Bhd v Wisma Denmark Sdn Bhd & Anor [2012] MLJU 837, submitting that section 38(5) of the LAA 1960 is directory only. [27] After meticulously reviewing the case details, I find that the case mentioned above differs from the case currently before this court in the following aspects:

The case does not pertain to a land reference issue. The concessionaire initiated the setting aside of the judgment issued by another Court. The case number 21NCVC-98-2011 is self-explanatory.

(ii) It differs from the current case before this court, in which WCE has succeeded in setting aside an earlier award granted to the applicant and is now proceeding with the actual hearing regarding the land reference.

(iii) In the hearing regarding this land reference, WCE seeks to strike out due to non-compliance with Section 38(5) of the LAA

1960.

(iv) The mandatory nature of the other provisions in Section 38 of the LAA 1960 was not addressed in that Court;

The case in question is an outdated matter resolved in 2012. It has not been reassessed in light of the judicial sentiments expressed in contemporary Federal Court rulings, such as Tegas Sejati Sdn Bhd v Pentadbir Tanah dan Daerah Hulu Langat & Lembaga Lebuhraya Malaysia [2024] 4 CLJ 1 and Spicon Products Sdn Bhd v Tenaga Nasional Bhd & Anor [2022] 4 CLJ 195. [28] Considering all the previously determined cases and the key facts of the matter before this Court, I concur with WCE's argument that Sections 38(2) and 38(3) of the LAA 1960 are mandatory. Section 38(5) of the LAA 1960 must similarly be interpreted as mandatory. [29] It would undoubtedly contradict the intent of the ACT to regard Sections 38(2) and 38(3) as mandatory while treating Section 38(5) of the LAA 1960 as discretionary. [30] The recent judicial approach has further enhanced it, with the provisions in LAA 1960 being interpreted strictly. In determining the appropriate compensation, the interests of the applicant, the respondent, and the acquiring authority, or the paymaster in this case, WCE, must be balanced. The relevant case is the Federal Court decision in Tegas Sejati Sdn Bhd v Pentadbir Tanah dan Daerah Hulu Langat & Lembaga Lebuhraya Malaysia [2024] 4 CLJ 1, which was decided as follows: “[36] Under Article 13 of the Federal Constitution, the High Court in assessing the complaint of adequacy of compensation is bound to balance competing interests of the appellant, the landowner and the 2nd respondent, the acquiring authority or paying master under Act 486.” [31] The six-month timeframe specified in Section 38(5) of the LAA 1960 aims to prevent unnecessary delays and ensure adherence to all statutory requirements. Consequently, this Court must uphold the statutory framework by ensuring compliance with all mandatory timelines. When a default occurs, the relevant party must submit the necessary application for an extension of time as stipulated in the LAA 1960. [32] The applicant submitted that Order 53, Rules 6 and 7, Rules of Court 2012, are not applicable. There was no thorough deliberation on this argument. [33] However, WCE made an analogy with judicial review proceedings under Order 53, Rules 6 and 7 of the Rules of Court 2012, emphasising that failure to adhere to time frames is critical and goes to the very root of a court's jurisdiction in hearing cases. The Federal Court decision in Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower & Anor [1983] CLJ (Rep) 266 was cited, wherein it was held that failing to comply with the prescribed time frame without first seeking an extension led to the court lacking jurisdiction to hear an application. The Federal Court decisions in Kijal Resorts Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2015] 3 CLJ 861, Wong Kin Hoong & Anor v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193, and the Court of Appeal decision in P Maradeveran a/l Periasamy & Ors v Suruhanjaya Pilihan Raya & Anor [2019] 6 CLJ 173 are referenced. [34] In light of all the cases cited above, I fully concur with WCE's argument that failing to comply with the timeframe mandated by Section 38(5) of the LAA 1960 affects this Court’s jurisdiction to hear the land reference. [35] Therefore, this Court lacks the jurisdiction to hear the matter, and the case was struck out. Conclusion [36] Interpreting Section 38(5) of the LAA 1960 as directory would render its temporal limitations insignificant, undermining the legislative intent to ensure efficiency and finality in land reference proceedings. Such an interpretation could lead to excessive delays, significantly burdening the paymaster. [37] The case was struck out with costs of RM1,000.00. Dated: 28th April 2025 (INDRA NEHRU SAVANDIAH) Judicial Commissioner High Court NCVC 6 Shah Alam Selangor Date of decision: 28th February 2025 Counsels: For the Applicant: Choo Wei Sern & Wong Yen Woon, [Messrs Sern & Lee] For the Respondent: Etty Eliany Tesno, [State Legal Advisor, Chambers of Selangor State Legal Advisor] For the Interested Party: Shahman a/l Segaran, [Messrs Kumar