MAH CHIN BOOI v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur (WA-15-1-01/2023)

The sole issue in this Judgment is whether the written opinions of the two assessors in a Land Reference under section 40D of the Land Acquisition Act 1960 [Act 486] (“LAA”) must be given to parties for counsel to submit on their contents before the High Court delivers its decision; or the written opinions need only be released to parties after the High Court delivers its decision for inclusion in the appeal records for an appeal [if any] to the Court of Appeal.

Counsel for the applicant submits that a close reading of the recent Federal court decision in Tegas Sejati Sdn Bhd v Pentadbir Tanah dan Daerah Hulu Langat & Anor and another appeal [2024] 3 MLJ 329 FC [“Tegas Sejati”] requires the written opinions of the two assessors in a Land Reference under section 40D of the LAA to be given to parties for counsel to submit on their contents before the High Court delivers its decision.

Counsel for the respondent does not agree or disagree but leaves it to the court.

The issue arose because of these passages of the judgment in Tegas Sejati –

If judges are required to provide their reasons for arriving at any decision, all the more, the opinion of the assessors, which the law mandates must be in writing S/N 33omiL7fo0uc8KBRditA6g **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 must be made available to the parties. Although these opinions are intended to assist the court in arriving at a decision on the amount of compensation, it is imperative that parties have the opportunity to consider them and to respond, if necessary. At its most basic level, these opinions form and must be part of the records of the land reference proceedings, aside from the learned judge recording the fact that the written opinions were provided.

As part of the records of the proceedings, these opinions become part of the records of appeal, should there be an appeal. The parties can then adequately prepare their appeals and the appellate courts will similarly be able to properly scrutinise these opinions and evaluate the complaints and concerns of the parties and how the same were addressed by the learned judge. See for instance Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487. If these written opinions are not made available, worse not form part of the records of appeal until and unless specifically sought for by any party, how is the question of adequacy of compensation to be properly addressed. How is the right enshrined in art 13(2) to be upheld? [Emphasis added]

There are ten Land References fixed for hearing before me. In all these references the applicants are represented by the same firm and counsel whereas the respondents are all represented by Jabatan Peguam Negara Malaysia.

The applicants all contend that the monetary compensation awarded by the Land Administrator are too low. [See Enclosure 42 applicant’s written submission at paragraph 10]. S/N 33omiL7fo0uc8KBRditA6g **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

All parties have agreed that my decision in this Land Reference will bind the other nine Land References.

I heard counsel on 21-03-2024 and 21-05-2024. Thereafter I was transferred to another court. At the request of parties to the Chief Judge of Malaya, these ten Land References were remitted back to me on 10- 01-2025 for final disposal. Thus, the ten cases were fixed for continued hearing on 15-01-2025 before me and the two assessors appointed to assist me pursuant to section 40A of the LAA.

After the conclusion of oral submissions, I brought up to counsel the new decision by the Federal Court in Tegas Sejati which requires the two assessors to prepare their respective assessors’ reports which then have to be furnished to counsel for their perusal and further submissions on their contents to the court before I deliver my decision.

The applicant in its written submissions Enclosure 56 submits that the written opinions of the two assessors must be made available to all parties during the proceedings at the High Court.

The respondent leaves the matter to the discretion of this Honourable Court.

Before I consider the issue, it is best I set down the law on land acquisition hearings and the changes in the procedure over the years so that Tegas Sejati can be better understood. S/N 33omiL7fo0uc8KBRditA6g **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell

The doctrine of cuius est solum, eius est usque ad coelum et ad inferos (Latin for "whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell") states that land owners have the rights not only to the plot of land itself, but also the air above and the ground below. This principle is often referred to as the ad coelum doctrine.

This right of ownership over land has been restricted by section 44 of the National Land Code, which provides that the landowner shall be entitled to “the exclusive use and enjoyment of so much of the column of airspace above the surface of the land, and so much of the land below the surface, as is reasonably necessary to the lawful use and enjoyment of the land”.

The Federal Constitution guarantees a person to a right to property. However, it is not an absolute right. Article 13 of the Federal Constitution reads: “(1) No person shall be deprived of property save in accordance with law.

No law shall provide for the compulsory acquisition or use of property without adequate compensation.” Legal Framework of Land Acquisition S/N 33omiL7fo0uc8KBRditA6g [16] Proceedings pertaining to land acquisition are governed by the LAA which is a special Act governing the land acquisition process and procedure in Malaysia and must be strictly adhered to. [See Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v Inch Kenneth Kajang Rubber Ltd & Anor Other Appeals [2011] 4 MLJ 403 CA] [“Sistem Lingkaran”]]. [17] The Court of Appeal in Sistem Lingkaran at pages 406 - 407 held as follows: “[4] The LAA 1960 is a special Act relating to the acquisition of land, the procedure for the assessment of compensation to be made on account of such acquisition and all matters incidental thereto, including the manner, procedure, and circumstances upon which any dissatisfied party to an award of compensation may pursue legal redress in the court. In view of it being a special Act we are unanimous that the statutory provisions therein must be strictly adhered to and made applicable to all relevant parties. All procedural steps leading for a final determination of any award shall be in accordance with the provisions of LAA 1960. This is clearly recognised in respect of all proceedings in the court, as can be seen from s 45(2) of the LAA 1960 which reads:

Save in so far as they may be inconsistent with anything contained in this Act, the law for the time being in force relating to civil procedure shall apply to all proceedings before the Court under this Act. [Emphasis added] The Land Reference Court S/N 33omiL7fo0uc8KBRditA6g [18] Section 36(4) of the LAA confers jurisdiction upon the High Court to determine any objection in respect of an award made by the land administrator under section 14 of the Act. It reads as follows: 36(4) After an award has been made under section 14 the Land Administrator shall refer to the Court for determination any objection to such award duly made in accordance with this Part.” [19] Following thereto, section 37 provides that an aggrieved party has a legal right to object to the award of the land administrator by way of a land reference to the High Court provided that the total amount awarded in compensation in respect of the acquired land is not less than three thousand Ringgit. The High Court here is referred to as the Land Reference Court. [20] Specific statutory provisions governing the Land Reference Court are in sections 40A (Constitution of the Court), 40B (Assessors), 40C (Opinion of Assessors) and 40D (Decision of the Court on Compensation) of the LAA. [21] However, a major change came when the Federal Court in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 [“Semenyih Jaya”] declared section 40D of the LAA to be ultra vires the Federal Constitution and that it should be struck down. The Federal Court said- “[115] For all the reasons above, we find s 40D of the Act to be ultra vires the Federal Constitution and that it should be struck down.” S/N 33omiL7fo0uc8KBRditA6g [22] The Federal Court further said: “(a) by s 40A, the matters are to be heard before a single judge. The court shall appoint two assessors to assist the judge in determining the objection made by the appellants against the amount of compensation awarded by the land administrator;

at the end of the proceedings, the assessors are required to give their opinions in writing as to the appropriate amount of compensation to be awarded in this case pursuant to s 40C of the Act. The assessors must give due consideration to all the heads of compensation claimed by the appellant under the Act;

the opinion of the assessors are to be recorded by the judge. The judge has a duty to consider both of the opinions of the assessors. The judge is to exercise his mind in determining the amount of compensation to be awarded to the appellant, based on the principle of equivalence; and

the provisions of sub-s 36(4) of the Act are to be given full effect. The judge shall not be bound to conform to the opinions of the assessors. In the event of any disagreement between the assessors with regard to the amount of compensation, the judge may elect to consider which of the two opinions in his view is appropriate in the circumstances of the case. The judge is also at liberty to depart from the opinion of either of the assessors and decide on the reasonable amount of compensation to be awarded to the appellant by giving reasons for so doing. [23] Following Semenyih Jaya, a practice direction was issued by the Chief Judge of Malaya via Arahan Amalan Hakim Besar Malaya Bil. 1 Tahun 2017, dated 06-06-2017 setting out the steps to be taken by the court in order to comply with Semenyih Jaya. [See The Law on Land S/N 33omiL7fo0uc8KBRditA6g Acquisition by Su Tiang Joo and Pang Kong Leng, CLJ Publication 2018 ed]. The Federal Court decision in Tegas Sejati [24] In 2024 the Federal Court made a second major pronouncement in respect of the LAA in Tegas Sejati. [25] In Tegas Sejati, the appellant entered into a joint-venture agreement with Perbadanan Setiausaha Kerajaan Selangor (‘PSKS’) to develop several lots of land. PSKS, as the registered proprietor received the entire consideration under that joint-venture agreement and relinquished its rights to the appellant in respect of those lands. Some of the land involved in the development was subdivided. These subdivided lots were initially acquired by the state government for the purpose of a highway project. Lembaga Lebuhraya Malaysia (‘LLM’) i.e. the second respondent, was the paymaster for this acquisition. [26] At the enquiry held on 16-05-2017, the land administrator (‘LA’) i.e. the first respondent, handed down an award for compensation to which both LLM and the appellant objected. Both LLM and the appellant filed their respective objections and this led to two land reference proceedings before the High Court. [27] The High Court dismissed the appellant’s land reference but allowed LLM’s land reference. The appellant appealed and LLM cross-appealed, seeking to vary part of the High Court’s decision and a return or repayment of an excess sum of over RM 31 million together with interest. The Court of Appeal dismissed the appellant’s appeal but S/N 33omiL7fo0uc8KBRditA6g allowed LLM’s cross-appeal and directed a refund of a portion of the sum together with interest. [28] The appellant appealed to the Federal Court. However, the Federal Court did not hear the merits of the appeal. Instead the Federal Court asked for submissions on whether there was compliance with section 40C of the LAA. [29] Section 40C reads as follows- 40C Opinion of assessors The opinion of each assessor on the various heads of compensation claimed by all persons interested shall be given in writing and shall be recorded by the Judge. [30] The Federal Court held at [34] that “Although these opinions were intended to assist the court in arriving at a decision on the amount of compensation, it was imperative that parties had the opportunity to consider them and to respond, if necessary”. [31] As these opinions of the assessors were not given to parties the Federal Court held that there was non-compliance with section 40C of the LAA, allowed the appeals and remitted the matter back to the High Court for a re-hearing. [32] Although the Federal Court in Tegas Sejati did not expressly say that the earlier Court of Appeal’s reasoning in Persatuan Pemandu-Pemandu Perempuan Malaysia v Pentadbir Tanah Wilayah S/N 33omiL7fo0uc8KBRditA6g Persekutuan Kuala Lumpur [2022] 5 MLJ 21 CA - which held that the assessors’ opinions are solely for the perusal, consideration and records of the High Court judge, and should any party wants sight of those opinions an application will then have to be made to court - should no longer be followed, it is clear by implication that Persatuan Pemandu-Pemandu Perempuan Malaysia is no longer good law. [33] I note that the Federal Court in Tegas Sejati remitted the matter back to the High Court for a re-hearing. This must mean that the assessors’ opinions must be given during the High Court proceedings and not at the appeal at the Court of Appeal. Retrospective or prospective? [34] Although not raised before me, I would like to touch on whether the declaration of law in Tegas Sejati has retrospective effect or is only prospectively effective from its decision. [35] The Federal Court in Tegas Sejati did not declare that its decision be prospectively effective from its decision. It would therefore be open to litigants in pending Land Reference appeals before the Court of Appeal and Federal Court to raise the same ground to set aside the decisions of the courts below, unless a subsequent Federal court declare that the decision in Tegas Sejati is to be applied prospectively effective from its decision. [36] A similar scenario happened in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd (and 4 Other Appeals) [2024] 6 AMR 813 FC where Hasnah Mohammed Hashim FCJ [speaking for the Federal S/N 33omiL7fo0uc8KBRditA6g Court] declared the prior Federal court’s decision of Ang Ming Lee & 34 Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor (and 5 Other Appeals) [2019] 8 AMR 297 FC [“Ang Ming Lee”] to be prospectively effective from its decision after surveying the jurisprudence set out by the courts in America, India, England, Canada and Malaysia. [37] This is what Hasnah Mohammed Hashim FCJ said-Prospective overruling [137] The Federal Court in Ang Ming Lee having ruled that reg 11 of the HDR is ultra vires, did not address or discuss the issue whether such ruling applies prospectively or retrospectively. Nor whether by virtue of the declaration of the reg 11(3) ultra vires, that all extensions granted by the Controller before Ang Ming Lee are invalid. Learned counsels for Obata and Vignesh argued that since the Federal Court in Ang Ming Lee did not state that its decision has prospective effect it would necessarily mean that the Ang Ming Lee's declaration of invalidity applies retrospectively. [138] The doctrine of prospective overruling originated in the American judicial system. Cardozo J the creator and propounder of prospective overruling laid down this doctrine in the case of Northern Railway v Sunburst Oil and Refining Co 287 US 358 (1932) where he refused to make the ruling retroactive… [141] In India the doctrine of prospective overruling was discussed and adopted in the case of Golak Nath v State of Punjab AIR 1967 SC 1643 and it has been applied in many case laws. In the Golak Nath's case the court defined the doctrine of overruling as being: ... a modern doctrine suitable for a fast-moving society. It does not do away with the doctrine of stare decisis but confines it to past S/N 33omiL7fo0uc8KBRditA6g transactions. While in strict theory it may be said that the doctrine "involves the making of law, what the court really does is to declare the law but refuse to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds the law and that it does make law and it finds law but restricts its operation to the future. It enables the court to bring about a smooth transition by correcting, its errors without disturbing the impact of those errors on past transactions. By the application of this doctrine the past may be preserved and the future protected. Our Constitution does not expressly or by necessary implication speak against the doctrine of prospective overruling. … [146] The basic objective of prospective overruling is to overrule a precedent without having a retrospective effect. Retrospective invalidation of governmental acts may have far reaching consequences especially when many parties have relied on the act and there are financial considerations and consequences involved. [147] In Re Spectrum Plus Ltd [2005] UKHL 41 the House of Lords through the judgment of Lord Nicholls of Birkenhead discussed the application of prospective overruling and highlighted the basic features of the judicial system… … [150] The House of Lords in Spectrum did not apply the doctrine of prospective overruling but said that prospective overruling may be necessary in certain circumstances to administer justice fairly: [40] Instances where this power has been used in courts elsewhere suggest there could be circumstances in this country where prospective overruling would be necessary to serve the underlying objective of the courts of this country: to administer justice fairly and in accordance with the law. There could be cases where a decision on an issue of law, S/N 33omiL7fo0uc8KBRditA6g whether common law or statute law, was unavoidable but the decision would have such gravely unfair and disruptive consequences for past transactions or happenings that this House would be compelled to depart from the normal principles relating to the retrospective and prospective effect of court decisions. [41] If, altogether exceptionally, the House as the country's supreme court were to follow this course I would not regard it as trespassing outside the functions properly to be discharged by the judiciary under this country's constitution. Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. "Never say never" is a wise judicial precept, in the interest of all citizens of the country [151] Lord Nicholls said that judges had been described as "developing" the law for some time when making novel decisions, and that judges are not free to repeal laws or distance themselves from bad laws; their only power is to impose a new interpretation. His Lordship held that in exceptional cases, it would be open to the court to hold that a new interpretation of the law should be applied only prospectively: But, even in respect of statute law, they do not lead to the conclusion that prospective overruling can never be justified as a proper exercise of judicial power. In this country the established practice of judicial precedent derives from the common law. Constitutionally the judges have power to modify this practice. [152] What can be discerned from the House of Lords' decision in Re Spectrum is that there can be exceptional circumstances where it is necessary in the interest of justice that the decision of the court must be prospective. S/N 33omiL7fo0uc8KBRditA6g [153] The Canadian Supreme Court in Canada (Attorney General) v Hislop [2007] SCR 429 addressed the subject of retrospectivity of laws and its judgment said: People generally conduct their affairs based on their understanding of what the law requires. Governments in this country are no different. Every law they pass or administrative action they take must be performed with an eye to what the Constitution requires. Just as ignorance of the law is no excuse for an individual who breaks the law, ignorance of the Constitution is no excuse for governments. … [155] Prospective overruling and retrospectivity have been discussed and applied in many cases decided by the Federal Court… [38] In my view, the statement of law by the Federal Court in Tegas Sejati need not be given a prospective overruling. There is no serious prejudice to land owners or the acquiring party if a matter is remitted back to the High Court for consideration on the quantum of compensation to be awarded. The danger highlighted by the House of Lords in Re Spectrum, set out below, does not exist – … prospective overruling would be necessary to serve the underlying objective of the courts of this country: to administer justice fairly and in accordance with the law. There could be cases where a decision on an issue of law, whether common law or statute law, was unavoidable but the decision would have such gravely unfair and disruptive consequences for past transactions or happenings that this House would be compelled to depart from the normal principles relating to the retrospective and prospective effect of court decisions. S/N 33omiL7fo0uc8KBRditA6g

[39] For the reasons above, my answer to the issue presented is as follows-The written opinions of the two assessors in a Land Reference under section 40D of the LAA must be made available to parties for counsel to submit on their contents before the High Court delivers decision on the Land Reference. ………(signed)…………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Dated: 25th February 2025. COUNSEL: 1) Kabilan A/L K. Mathavan and Lim Woi Kein for applicant. (WK Lim & Partners (Petaling Jaya)) 2) Attorney General of Malaysia Kuala Lumpur: Iskandar Zulkarnaen, (Jabatan Peguam Negara, Wilayah Persekutuan Kuala Lumpur (Kuala Lumpur)) S/N 33omiL7fo0uc8KBRditA6g

ASSESSORS Assessor from the private sector: Zaifunur'ain binti Zainal Abidin.

Assessor who is a valuation officer employed by the Government: Mohd Zamri bin Awang. CASES REFERRED TO: 1) Ang Ming Lee & 34 Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor (and 5 Other Appeals) [2019] 8 AMR 297 FC. 2) Canada (Attorney General) v Hislop [2007] SCR 429. 3) Golak Nath v State of Punjab AIR 1967 SC 1643. 4) Northern Railway v Sunburst Oil and Refining Co 287 US 358 (1932). 5) Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd (and 4 Other Appeals) [2024] 6 AMR 813 FC. 6) Persatuan Pemandu-Pemandu Perempuan Malaysia v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2022] 5 MLJ 21 CA. 7) Re Spectrum Plus Ltd [2005] UKHL 41. 8) Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487 HC. 9) Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 FC. 10) Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v Inch Kenneth Kajang Rubber Ltd & Anor Other Appeals [2011] 4 MLJ 403 CA. 11) Tegas Sejati Sdn Bhd v Pentadbir Tanah dan Daerah Hulu Langat & Anor and another appeal [2024] 3 MLJ 329 FC. S/N 33omiL7fo0uc8KBRditA6g LEGISLATION REFERRED TO: 1) Federal Constitution Article 13. 2) Land Acquisition Act 1960 [Act 486] sections 14, 36(4), 40A, 40B ,40C, 40D and 45(2). 3) National Land Code section 44. PUBLICATIONS REFERRED TO: 1) Arahan Amalan Hakim Besar Malaya Bil. 1 Tahun 2017. 2) The Law on Land Acquisition by Su Tiang Joo and Pang Kong Leng, CLJ Publication 2018 ed. S/N 33omiL7fo0uc8KBRditA6g