Whether late payment charges under section 32 of the Land Acquisition Act 1960 is applicable to the compensation sum awarded by the High Court, when this sum should have been awarded by the Land Administrator in the first place? [2] For ease of reference, the parties will be referred to as their names in abbreviation, the applicant/appellant Kaochern Corporation Sdn. Bhd. as KCSB and the respondent, Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur, as PTWP. Brief Background Facts [3] KCSB at all material time is the registered owner of two parcels of land known as Lot 54992, Geran 80178, Mukim and District of Kuala Lumpur (Lot 54992) and Lot 54993, Geran 80176, Mukim and District of Kuala Lumpur (Lot 54993). Collectively, the Lands will be referred to as "the subject lands". [4] The subject lands were partially acquired (scheduled lands) for the purpose of constructing the Lebuhraya Setiawangsa - Pantai Expressway (SPE) via Gazette Notification No. 21857 dated 30.12.2020. It is an undisputed fact that the concessionaire for the SPE, Lebuhraya DUKE Fasa 3 Sdn. Bhd. (DUKE) had entered the scheduled lands and took physical possession of the scheduled lands on 3.2.2017. [5] On 28.10.2021, PTWP conducted an inquiry and issued a notice of award in Form H on 31.12.2021. At the conclusion of the inquiry, PTWP awarded the Appellant a sum totalling RM6,792,120.00 as compensation for the market value of the scheduled lands valued at RM10,000 per square metre (psm). PTWP compensated KCSB for the early entry by DUKE onto the scheduled lands through an award based on the annual rent of the scheduled lands from 3.2.2017 to 28.10.2021 which is approximately 57 months, valued at RM11.00 psm amounting to RM425,866.95. PTWP did not give any award on the injurious affection claimed by KCSB on the remaining land of the subject lands. On 16.2.2022, PTWP took formal possession of the scheduled lands by issuing a notice in Form K. [6] Dissatisfied with the decision, KCSB filed the requisite Form N to object to the award given by PTWP and referred the matter to High Court. [7] At the High Court, KCSB accepted that the value as assessed by PTWP at RM 10,000.00 psm is the market value of the scheduled lands. Hence, no issue arises on the amount awarded by PTWP to KCSB for the scheduled lands. The main point submitted by the parties during the land reference proceeding was on the issue of injurious affection and also the late payment charge that ought to be assessed and determined by the LJC. High Court's Decision [8] At the end of the land reference proceeding, the LJC decided to maintain PTWP's award as follows: i. the market value for both subject lands at RM10,000.00 psm, as there is no dispute on the subject lands' value; and ii. compensation for early entry to the subject lands by DUKE at the rental rate of RM11.00 for 57 months, amounting to RM425,866.95. Besides that, the LJC allowed KCSB's claim for Injurious Affection to the remaining land of the subject lands caused by the setback area (30% reduction in market value), impairment due to loss of visibility from the Federal Highway (5%), and impairment on the remaining land of the subject lands (5%), amounting to RM3,450,605.60. The LJC also ordered that PTWP pay KCSB the late payment charges at the rate of 5% per annum from the date Form K until full settlement of all compensation awarded. Finally, the LJC ordered that the deposit to be returned to KCSB and that KCSB to pay the assessor's fee. [9] Dissatisfied with the decision of the High Court in part, KCSB filed notices of appeal on the issue of the late payment charges on the compensation for the scheduled lands awarded by PTWP, and also the late payment charges on the award for injurious affection decided by the LJC. KCSB's Appeal [10] Learned counsel for KCSB argued that KCSB is entitled, as a matter of law to be paid late payment charges at the rate of 8% under s 32 of the Land Acquisition Act 1960 (LAA1960) for the amount of any compensation awarded under the LAA 1960 from the date of taking physical possession of the scheduled land by DUKE on 3.2.2017 until the time of such payment. It is also argued that the late payment charges under s 32 of the LAA 1960 apply to the compensation sum awarded by the High Court, in a situation where the PTWP did not award any sum for injurious affection, and in deciding whether s 32 or s 48 of the LAA 1960 is applicable, the Court should resolve any doubt in favour of KCSB as landowner. Our Decision [11] Upon hearing the parties' submission and deliberating on the issue of late payment charges, we unanimously decided to allow KCSB's appeals in part. [12] Based on the peculiar facts of the case, we find that the LJC erred in his decision in not awarding the late payment charges under section 32 of LAA 1960, which is mandatory in nature. We find that late payment charges ought to be calculated based on the physical possession of the scheduled lands by DUKE which is from 3.2.2017 to the date of payment made by PTWP on 17.1.2022. As the physical possession of the schedule lands took place prior to the amendment of the LAA 1960, which took effect from 1.12.2017, the late payment charges at the rate of 8% per annum is applicable. Therefore, the amount due to KCSB as the late payment charges is RM2,693,029.06. With that, we find that the award of rental for 57 months in the amount of RM425,866.95 as decided by the LJC is erroneous. We allow KCSB's appeal on this issue. [13] As to the late payment charges for the injurious affection which was allowed by the High Court in the Land Reference, we find that the LJC is correct in his decision to allow late payment charges at the rate of 5% per annum under s 48 of the LAA 1960 from the date on which PTWP took possession of the scheduled lands on 16.2.2022 to the date of payment of the compensation which is on 16.10.2024 amounting to RM450,122.06. With that, we affirmed the LJC's decision and dismissed KCSB's appeals on the late payment charges for the injurious affection. [14] Aggrieved with part of our decision, that is on the issue of late payment charges for the compensation on injurious affection, KCSB filed two notices of appeal to the Federal Court. However, no appeal was filed by PTWP against our decision in allowing KCSB's appeal on the issue of late payment charges under section 32 of LAA 1960 and setting aside the LJC's decision on the award of rental. Our Finding [15] Based on the fact that KCSB's appeal is only against part of our decision, that is on the issue of late payment charges for the compensation on injurious affection, and no appeal was filed by PTWP against our decision to allow KCSB's appeal on the issue of late payment charges under section 32 of LAA 1960, we will confine our reasoning in our grounds of decision to address only the issue of late payment charges for the compensation on injurious affection. [16] To begin with, the law on the late payment charges is well settled. Federal Court in the case of Amitabha Guha & Anor v. Pentadbir Tanah Daerah Hulu Langat [2021] 3 CLJ 1 (Amitabha Guha's case) clearly defined the distinction of late payment charges in sections 32 and 48 of the LAA 1960 as follows: [59] Section 32 provides for late payment charges to be paid by the LA on the amount of compensation whereas the late payment charges under s. 48 relates to the excess which is awarded by the court over and above the award made by the LA. Nevertheless, there are two important distinctions to note between ss. 32 and 48. First, under s. 32, time is calculated from the "due date" until the time of such payment whereas under s. 48, time runs from the date on which the LA took possession of the land to the date of payment. Second, whilst the late payment charges under s. 32 is mandatory, that in respect of the excess amount under s. 48 is not mandatory as it provides that the court "may" direct that the LA shall pay the late payment charges. [17] Coming back to the appeal before us, the sole issue that we have to deal with is whether the High Court's decision in awarding the compensation for injurious affection, which was not awarded by PTWP, attracts the late payment charges under s 32 or s 48 of the LAA 1960? [18] Before us, learned counsel for KCSB submitted that KCSB ought to have been awarded late payment charges for the injurious affection claim under section 32 instead of under s 48 of the LAA 1960, as the injurious affection claim falls within the ambit of section 32 of the LAA 1960, that is, regarding the amount of any compensation awarded in respect of any land is not paid. It was argued that the injurious affection should have been awarded by PTWP in the first place since all evidence adduced showed that the subject lands had been reduced in value due to the injury to the remaining land of the subject lands. A failure or omission by PTWP to award injurious affection is not an "award" and therefore cannot give rise to an "excess" to justify invoking s 48 of the LAA 1960. It was further argued that the interpretation which is in favour of the landowner should be given due to the clear words of s 32 and s 48 of the LAA 1960, and the failure to award late payment charges under s 32 of the LAA 1960 would result in a significant monetary loss to KCSB. [19] Per contra, learned Federal Counsel representing PTWP argued that the LJC is correct in his decision on this issue since at the Land Inquiry, PTWP decided not to give any award for injurious affection on the basis that it has no merit. From the records, it is clearly shown that after hearing the submissions of the parties, reading the affidavits filed, and analysing the expert reports tendered, the High Court has decided to allow the claim for injurious affection plus late payment charges under s 48 of the LAA 1960. It was further argued that, based on the clear provision of the law and the Federal Court decision in Amitabha Guha's case, it is a trite law that the upward adjustment made by the High Court on top of the award given by PTWP is regarded as additional compensation that warranted late payment charges under section 48 of the LAA 1960. [20] In deciding the issue, first and foremost, we have to look at the distinction between the two provisions of the law. As decided by Federal Court in Amitabha Guha's case, s 32 provides for late payment charges to be paid by the Land Administrator on the amount of compensation awarded, whereas the late payment charges under s. 48 relate to the excess which is awarded by the court over and above the award made by the Land Administrator. See paragraphs [60], [61], and [62] of Amitabha Guha's case. Federal Court further emphasised the distinction at paragraph [70] by saying that "As stated in para. [60] above, the late payment charges under s. 32 are in respect of the amount of compensation awarded by the LA, whereas that under s. 48 relates to the excess, if any awarded by the High Court." [21] With the clear distinction made by the Federal Court on the late payment charges to be charged either under s.32 or s.48 of the LAA 1960, we are left with no choice but to follow the said decision based on the principle of stare decisis. Even though the Federal Court did not expressly define the phrase "in excess", aligned with the Federal Court decision, we would say that the words 'in excess' used in s 48 of the LAA 1960 must be construed in their ordinary meaning. The definition of the phrase "in excess" can be found in several authoritative English dictionaries, including Merriam-Webster, Cambridge English Dictionary, Collins English Dictionary, and the Oxford English Dictionary, and all major dictionaries define the phrase "in excess" as "more than" or "greater than". As a matter of interpretation, what the Court should do is to apply the ordinary meaning of the words in the statute, rather than create a technical definition. See inter alia Federal Court decisions in Krishnadas Achutan Nair & Ors v. Maniyam Samykano [1997] 1 MLJ 94 at pages 100 - 101, All Malayan Estates Staff Union v. Rajasegaran & Ors [2006] 4 CLJ 195 at page 212, Thein Hong Teck & Ors v. Mohd African bin Hussain and Another Appeal [2012] 1 CLJ 49, at page 60, and AJS v. JMH and another appeal [2022] 1 MLJ 778 at page 801. [22] Further, if we look at the arrangement or the sequence of the provision of the law on late payment charges, it clearly shows the distinction as observed by the Federal Court in Amitabha Guha's case. Section 32 of the LAA 1960 is placed under sub-heading "Payment of Compensation" of PART IV titled "TAKING POSSESSION OF LAND". Subsection 29(1) of the LAA 1960 which provides that the Land Administrator shall, as soon as may be, make payment of each amount awarded to the person entitled thereto after a notice of award in Form H has been served upon all interested persons. Subsection 32(1) of the LAA 1960 then provides that when the amount of any compensation awarded is not paid or deposited on or before the due date, the Land Administrator shall pay the amount awarded with late payment charges thereon from the due date until the time of such payment or deposit. In other words, the payment charges under s 32 of the LAA are confined only to the late payment t, if any, as a consequence of the proceedings of the Land Inquiry before the Land Administrator. [23] In contrast, s 48 of the LAA 1960 is placed under PART V titled "REFERENCE TO COURT" and under the subtitle of "Decision and Award". It is without doubt that the "Decision and Award" in the subtitle must refer to the decision and the award of the Court's in the Land Reference proceedings, even though the shoulder note of s 48 stated that "Land Administrator may be required to pay late payment charges". Therefore, the phrase "If the sum which in the opinion of the Court the Land Administrator ought to have awarded as compensation is in excess of the sum which the Land Administrator did award as compensation," used in s 48, must refer to the award awarded by the Court in the Land Reference and if there is any extra amount awarded by the Court such extra amount should be considered as "in excess" of the amount awarded by the Land Administrator in the Land Inquiry. [24] On this matter, we are of the considered view that the Courts have to treat the Land Administrator's award as the total sum awarded, whether or not it includes all heads of claim that can be considered under paragraphs 2 and 3 of the First Schedule of the LAA 1960. If one head is omitted by the Land Administrator, in our case, the claim for injurious affection, the award of the Land Administrator is still an award, albeit incomplete. In other words, even if the Land Administrator had awarded nothing under a particular head of claim, that omission must also form part of the award. Therefore, when the Court subsequently grants compensation under the omitted head in the Land Reference, the sum awarded by the Court is necessarily greater than the sum awarded by the Land Administrator, and thus falls within the meaning of 'in excess' and the Land Administrator may be required to pay late payment charges under s 48 and not s 32 of the LAA 1960. [25] Back to the appeals before us, the notes of inquiry prepared by PTWP during the Land Inquiry clearly show that PTWP did consider the claim by KCSB for the injury suffered by the subject lands affected by the acquisition of the scheduled lands. The handwritten notes made under para 4 of the "Perintah Award" stated that "Pentadbir Tanah tidak mempertimbangkan tuntutan Kesan kemudaratan (IA) atas tanah baki kerana tidak bermerit". Without doubt, the notes show that the claim for injurious affection by KCSB was duly deliberated and considered, and PTWP decided to reject it on the ground that it was not meritorious. Based on that fact, we find that PTWP's decision to reject KCSB's claim for the injurious affection should be considered as part of the PTWP's award, and the subsequent decision by the High Court to allow the claim in the Land Reference must be "in excess" of the amount awarded by PTWP. Thus, the late payment charges as provided under s 48 of the LAA 1960 should apply. [26] In relation to the same issue, another question raised by KCSB is when the date of the late payment charges is due. Learned counsel for KCSB submitted that since the compensation on injurious affection attracted the late payment charges under s 32 of the LAA 1960, KCSB is entitled as a matter of law to be paid late payment charges at the rate of 8% from the date of taking physical possession of the scheduled land by DUKE on 3.2.2017. In answering the question raised, we once again refer to the Federal Court decision in Amitabha Guha's case. In interpreting the meaning of the word "possession" to determine the effective date of the late payment charges, the Federal Court made the following finding: [60] Insofar as it relates to the meaning of possession, it is necessary to determine whether on a proper interpretation of ss. 32 and 48, the imposition of the late payment charges runs from the date of possession in law or in fact. As ss. 32 and 48 are two distinct provisions in this respect, we shall deal with s. 32 first. [61] Section 32(1C) provides: