Malaysia Rail Link Sdn. Bhd. v Pengarah Tanah dan Galian Selangor (BA-24NCvC-2593-12/2023)

KIRON CHHOTALAL DOSHI …DEFENDAN-DEFENDAN JUDGMENT Introduction [1] In this Originating Summons, the Plaintiff seeks an extension of time to serve Form N under the Land Acquisition Act 1960 (“LAA”) on the Second Defendant, enabling it to challenge the latter’s award as set out in Form H of the LAA dated 17 August 2023. [2] Section 37 of the LAA grants any person interested the right to invoke section 38, with section 38(4) serving as the key provision for consideration in this case. [3] This is not the first case to invoke these provisions, requiring the Court’s determination and exercise of discretion, nor will it be the last. The Overarching Issues [4] At the heart of this Originating Summons lie two pivotal questions. The first concerns the Plaintiff’s standing — whether it qualifies as a person interested under section 37 of the LAA. This threshold issue determines the Plaintiff’s locus standi. [5] Should the answer be in the affirmative, the next question is whether special circumstances exist to justify an extension of time beyond the six-week period prescribed in section 38(3)(a) of the LAA. The Parties and the Apposite Background Facts [6] To all intents and purposes, there are three distinct interested parties in the present Originating Summons proceedings. [7] These first of the three distinct interested parties is the Plaintiff. [8] The second interested party would be the First and Second Defendants. [9] The Third and Fourth Defendants, who had applied to intervene and have been added as co-Defendants in this Originating Summons proceedings are the third distinct interested party. [10] The Plaintiff is a special purpose public transport company which is incorporated to undertake the East Coast Rail Link Project (“Project”) as the project owner and/or paymaster. The Plaintiff is wholly owned by the Minister of Finance (Incorporated) (“MOF Inc”). [11] The Project is a Federal Government Project and/or a National Infrastructure Project whereby the financing structure involves leveraging on the support of Government guarantees and Government funds. [12] The Second and Third Defendants are the Director General Land and Mines, Selangor and the Land Administrator, District of Gombak respectively. [13] On 22 December, 2022, part of GRN 44416, Lot 2979, Mukim Setapak, Daerah Gombak, Negeri Selangor (“Lot 2979”) and GM 981, Lot 3217, Mukim Setapak, Daerah Gombak, Negeri Selangor (“Lot 3217”) were declared for acquisition vide Form D published in the Selangor State Gazette No. 5732 dated 22 December, 2022. [14] The Third and Fourth Defendants are the registered proprietors (“Landowners”) for which each of them owns an equal half (½) of Lot 2979 and Lot 3217 (“Scheduled Lands”). [15] On 17 August, 2023, an inquiry was held before the Second Defendant (“Inquiry”) and this resulted in an Award made by the Second Defendant. [16] It is not disputed that the Inquiry was attended by the Plaintiff’s representatives together with the Plaintiff’s Valuers, JAZ International Malaysia Sdn Bhd (“Valuer”). [17] The Plaintiff was served with Form H dated 17 August 2023 on 11 September, 2023. Form H awarded a total sum of RM17,179,674.34 for Lot 2979 and RM3,326,160.00 for Lot 3217 (“Compensation”). [18] Pursuant to section 38(3)(a) of the LAA, the Plaintiff ought to have submitted Form N within 6 weeks from the date the award was given on 17 August, 2023, that is, on or before 23 October, 2023. [19] On 29 December, 2023, the Plaintiff filed the Originating Summons herein, inter alia, for an extension of time for the Plaintiff to make its objection against the Second Defendant’s award as stated in Form H dated 17 August, 2023 by way of the Plaintiff’s Form N [20] There is therefore a delay of approximately two months by the Plaintiff in submitting Form N. [21] On 2 May, 2024, the Landowners filed an application to intervene in the proceedings herein. The parties did not object to the said application and the Landowners were subsequently added as the Third and Fourth Defendants in the proceedings herein. The Competing Contentions The Plaintiff’s Case [22] The Plaintiff submitted that its Originating Summons ought to be allowed based on the following reasons: • The are grounds and/or special circumstances for this Court to grant an extension of time; • The Plaintiff was not given the opportunity to be heard and/or raise its objections during the inquiry when the Land Administrator made its award of compensation for the acquisition of the Scheduled Lands; • The Plaintiff has a right to be heard under Article 10 of the Federal Constitution on the issue of valuation of the Schedule Land; • The Plaintiff’s delay in filing the Form N, if any, will not cause the Defendants to suffer any prejudice; • Conversely, the Plaintiff would suffer great prejudice as there would be a fundamental breach of the Plaintiff’s constitutional right to be heard and a breach of natural justice; and • There is no necessity to bring the landowners as parties in the current proceedings. The First and Second Defendants’ Arguments [23] The First and Second Defendants objected to the Plaintiff's application on the basis that this application for an extension of time to file Form N “is unreasonable and should not be considered” by this Court. [24] The First and Second Defendants also averred that the Plaintiff was not serious in pursuing this objection as it was made only after approximately 2 months from the date of 17 August, 2023 which is the date of award. The First and Second Defendant highlighted the fact that the Plaintiff's representative was present in person during the investigation and there was no reasonable excuse to support this delay. [25] According to the First and Second Defendant, they will be prejudiced if the Plaintiff's application is allowed. [26] It was further argued by the First and Second Defendants that a landowner or any interested party who is not satisfied with the award of the Land Administrator is required to file an objection through Form N and the use of the term “shall” in section 38(3) of the LAA connotes that “it is mandatory”. [27] The First and Second Defendant cited cases such as Singapore Para Rubber Estate Ltd v Pentadbir Tanah Daerah, Daerah Rembau, Negeri Sembilan [2009] 1 CLJ 13; [2008] 6 MLJ 763; [2008] 2 MLRA 469 (“Singapore Para Rubber Estate Ltd”), Damai Motor Kredit Sdn Bhd & Anor v Kementerian Kerja Raya Malaysia [2015] 1 AMR 205; [2015] 1 CLJ 44; [2012] MLJU 1803; [2014] 4 MLRAU 371 (“Damai Motor Kredit”), Arthur Ponniah Gurubatham & Satu Lagi v Pentadbir Tanah Wilayah Persekutuan [2008] 3 CLJ 17; [2007] MLJU 728; [2007] 3 MLRH 444, Tan Bun Cheong v Pentadbir Tanah, Pejabat Derah dan Tanah Bukit Mertajam Pulau Pinang [1992] LNS 85; [1992] MLJU 82; [1992] 1 MLRH 57, in support of their opposition to the Plaintiff’s application. [28] The upshot of the First and Second Defendants’ contention is that: … berdasarkan kepada nas-nas undang-undang dan otoriti-otoriti yang telah dikemukakan, mengambil kira fakta-fakta kes di hadapan Mahkamah ini jelas sekali TIDAK WUJUD KEADAAN KHAS untuk membolehkan permohonan lanjutan masa oleh Plaintif ini dipertimbangkan. [29] The First and Second Defendants also argued that the Plaintiff’s application ought to be dismissed by drawing from the concept or doctrine of dismissal for want of prosecution, as enunciated in Birkett v James [1977] 2 All ER 801. The Third and Fourth Defendants’ Contentions [30] As noted, the Third and Fourth Defendants are the Landowners of the Scheduled Lands. Dissatisfied with the award made by the Land Administrator, they have accordingly filed and served Form N within the time period as provided in section 38(3) of the LAA. [31] The Third and Fourth Defendants have joined the First and Second Defendants in contesting the Plaintiff’s application for an extension of time to serve Form N. [32] The Third and Fourth Defendants are relying on two main grounds. The first is that the Plaintiff is not a “person interested” within the meaning as envisaged in section 37 of the LAA and thus lacks the locus standi to serve Form N on the Land Administrator. [33] On this locus point, the Third and Fourth Defendants made reference to sections 2, 37, 38(3) and 38(4) of the LAA and the following four cases, namely,

Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn Bhd; [2017] 6 AMR 114; [2017] 8 CLJ 392; [2017] MLJU 1107; [2017] 5 MLRA 633;

Cahaya Baru Development Bhd v Lembaga Lebuhraya Malaysia [2011] 3 AMR 23; [2010] 8 CLJ 761; [2011] 2 MLJ 729; [2010] 2 MLRA 403 (“Cahaya Baru”);

Tenaga Nasional Berhad v Unggul Tungkas Sdn Bhd & Anor [2018] 4 CLJ 285; [2020] 2 MLJ 721 (Federal Court), [2016]

Spicon Products Development Sdn Bhd v Tenaga Nasional Berhad & Anor [2022] 4 AMR 228; [2022] 4 CLJ 195; [2022] 2 MLJ 721; [2022] 3 MLRA 307 (Federal Court), [2020] 1 LNS 868 (Court of Appeal). [34] The second ground raised by the Third and Fourth Defendants is that there are purportedly no special circumstances to warrant an extension of time. [35] The Third and Fourth Defendants asserted that:

Tempoh masa 6 minggu telah tamat.

Alasan-alasan yang dikemukakan oleh Plaintif adalah ‘afterthought’ dan tidak logik kerana Plaintif mendakwa award pampasan yang diberikan oleh Pentadbir Tanah adalah ‘terlalu tinggi secara luar biasa, melampau dan tidak munasabah’ tetapi pada masa sama tidak failkan Borang N dengan segera.

Alasan sebenar Plaintif hendak failkan Borang N kerana mendapat maklumat yang Defendan Ke-4 telah failkan Borang N pada 29.09.2023 dan perkara ini dibangkitkan oleh Responden ke-3 dan ke-4 di dalam dokumen kertas kausa dalam tindakan guaman sivil no BA-22NCVC-425-10/2023 di dalam Jawapan kepada Pembelaan Defendan Pertama (Plaintif dalam Tindakan ini).

Sekiranya fakta di perenggan 12 di atas tidak diketahui atau disampaikan kepada Plaintif, tiada permohonan sedemikian akan dibuat oleh Plaintif kerana pada hakikatnya Plaintif telah berpuashati dengan award pampasan yang diberikan oleh Pentadbir Tanah.

Tiada apa-apa keadaan khas atau keadaan istimewa (special circumstances) telah ditunjukkan oleh Plaintif. Sebaliknya Plaintif hanya mendedahkan sikap sambil lewa, kepincangan atau kelemahan prosedur operasi standard (SOP) pihak Plaintif yang lemah, tidak kompeten dan longgar.

Tiada apa-apa kesalahan yang berkait dengan pihak ketiga di atas kegagalan Plaintif untuk failkan Borang N dalam tempoh masa yang ditetapkan. Plaintif sepatutnya menyalahkan diri sendiri di atas kegagalan untuk failkan Borang N dalam masa yang ditetapkan. [36] The Third and Fourth Defendant also referred this Court to Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman [2015] 2 AMR 89; [2015] 3 CLJ 861; [2016] 1 MLJ 544; [2015] 1 MLRA 255 and Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah [2015] 5 AMR 577; [2015] 3 CLJ 1017; [2016] 1 MLJ 200; [2015] 1 MLRA 355, in addition to the cases relied by the First and Second Defendants, such as Singapore Para Rubber Estate Ltd and Damai Motor Kredit. The Relevant Law and Applicable Principles [37] For ease of reference, the relevant provisions of the LAA are as follows:

2.

In this Act, unless the context otherwise requires — … “person interested” includes every person claiming an interest in compensation to be made on account of the acquisition of land under this Act, but does not include a tenant at will; Application to Court

(1) Any person interested in any scheduled land who, pursuant to any notice under section 10 or 11, has made a claim to the Land Administrator in due time and who has not accepted the Land Administrator’s award thereon, or has accepted payment of the amount of such award under protest as to the sufficiency thereof, may, subject to this section, make objection to —

the measurement of the land;

the amount of the compensation;

the persons to whom it is payable;

the apportionment of the compensation.

Where the total amount awarded in compensation in respect of any interest in any scheduled land does not exceed three thousand ringgit the written award of the Land Administrator shall be final with regard to both the measurement of the land and the amount of compensation awarded, and no objection may be made under subsection (1) in respect thereof.

Where the total amount of any award in respect of any scheduled land exceeds fifteen thousand ringgit any Government or any person or corporation undertaking a work which in the opinion of the State Authority is of public utility, and on whose behalf such land was acquired pursuant to section 3, shall be deemed to be a person interested in any scheduled land under subsection (1), and may make objections on any of the grounds specified in subsection (1). Form and content of application, etc.

(1) Any objection made under section 37 shall be made by a written application in Form N to the Land Administrator requiring that he refer the matter to the Court for its determination, and a copy thereof shall be forwarded by the Land Administrator to the Registrar of the Court.

Every application under subsection (1) shall state fully the grounds on which objection to the award is taken, and at any hearing in Court no other grounds shall be given in argument, without leave of the Court.

Every application under subsection (1) shall be made —

if the person making it was present or represented before the Land Administrator at the time when the Land Administrator made his award, within six weeks from the date of the Land Administrator’s award under section 14;

in other cases, within six weeks of the receipt of the notice from the Land Administrator under section 16 or within six months from the date of the Land Administrator’s award under section 14 whichever period shall first expire.

The period of six weeks prescribed by paragraph (3)(a) and the periods of six weeks and six months prescribed by paragraph (3)(b) shall not be capable of enlargement by any Court, except in such special circumstances as the Court may think fit.

On receiving any application under subsection (1) the Land Administrator shall, subject to section 39, within six months refer the matter to the Court by a reference in Form O.

Where the Land Administrator has failed to make a reference to the Court within the period specified in subsection

(5), the Land Administrator or any person interested may apply to the Court for an extension of the said period.

Where the Land Administrator has failed to make a reference to the Court within the period specified in subsection

or within any extension of such period under subsection

(6), the Court may, on application by any person interested deal with the objection under subsection 38(1) in such manner as it deems fit, and in order to enable the Court to do so, the Court may give such directions to the Land Administrator or to any person interested as it deems necessary or expedient, and without prejudice to the generality of this power, such directions may include a direction requiring the Land Administrator or any other person to appear before the Court to give evidence, or to produce before the Court such records, or other documents, as the Court may specify. The Decision of this Court [38] It falls upon this Court to determine two overriding questions: first, the issue of locus standi, and second, the existence of special circumstances warranting an extension. The Locus Point [39] As the paymaster in this land acquisition matter, the Plaintiff qualifies as a “person claiming an interest in compensation” under section 2 of the LAA. Accordingly, as a person interested within the meaning of the law, the Plaintiff has the right to file an objection via Form N against the compensation awarded by the Second Defendant Land Administrator. [40] This finding is reinforced by the Federal Court’s decision in Cahaya Baru, where the apex court unequivocally held that the defendant in that case “had an interest to object to the quantum of the award as a person interested in the context of section 37 of the Act.” The defendant in Cahaya Baru, much like the Plaintiff in the present case, was the paymaster. As the Federal Court observed: "We agree with the view taken by the Court of Appeal that the defendant, as the ‘paymaster,’ should be construed as a ‘person interested’ within the meaning of section 37(1) read with section 37(3) of the Act.” (at para [11]) [41] The Federal Court in Cahaya Baru also referred to two Indian Supreme Court decisions — Himalaya Tiles and Marble (P) Ltd v Francis Victor Coutinho (Dead) by LR & Ors AIR [1980] 1118 SC and Sunderlal v Paramsukhdas & Ors AIR [1968] 366 SC — concluding that “a liberal approach must be adopted in construing the term ‘person interested.’” (at para [13]) [42] This Court’s finding that the threshold is met is further supported by cases such as Tegas Sejati Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor and another appeal [2023] AMEJ 0852; [2023] 6 CLJ 269; [2023] 3 MLJ 795; [2023] 4 MLRA 441 and Lim Wah Tian v Pentadbir Tanah Daerah Klang & Another Case [2024] CLJU 1063; [2024] MLJU

Special Circumstances [43] It bears reiteration that the time limit prescribed in section 38(3) of the LAA to file Form N is not absolute. The court is conferred with a discretion to enlarge time under section 38(4) of the LAA. That said, this Court is mindful of the Federal Court’s reminder in Singapore Para Rubber Estate Ltd that judicial discretion in such matters is neither absolute nor unqualified and must be exercised sparingly (para [51]). [44] The Plaintiff was forthright in conceding that there was a delay on its part, resulting in non-compliance with section 38(3)(a) of the LAA (as its representative was present at the inquiry). [45] This Court has considered the reasons advanced by the Plaintiff, namely that upon learning of the decision and award made by the Land Administrator, the Plaintiff had then immediately consulted its Valuer on the matter to consider if there were any grounds to object against the Land Administrator’s award. The Plaintiff further explained that it only received the valuation report from its valuer on 21 September, 2023 where it observed a discrepancy of approximately RM14,686,584.30 for Lot 2979 and RM2,249,567.18 for Lot 3217 between the Plaintiff’s valuation and the Land Administrator’s award [46] The Plaintiff further clarified that “sometime in October 2023, the Plaintiff’s management team engaged in multiple discussions with its valuers to discuss the multiple variables relating to the Land Administrator's award”. [47] As noted in para [20] above, by the time this application for extension of time to serve Form N was made, there has been a delay of over two months. [48] The Plaintiff candidly admitted that the delay stemmed from the fact that, between June and August 2023, it was handling a dossier of 827 cases as the paymaster for the Project. [49] As far as the First and Second Defendants were concerned, “berdasarkan kepada nas-nas undang-undang dan otoriti-otoriti yang telah dikemukakan, mengambil kira fakta-fakta kes di hadapan Mahkamah ini jelas sekali TIDAK WUJUD KEADAAN KHAS untuk membolehkan permohonan lanjutan masa oleh Plaintif ini dipertimbangkan”. [50] The Third and Fourth Defendants too asserted that there do not exist any special circumstances to warrant an exercise of this Court’s discretion to enlarge time under section 38(4) of the LAA (see para [35] above). [51] This Court observes that the cases cited by both parties neither conclusively support nor weaken their respective contentions. [52] The exercise of discretion in this Originating Summons ultimately hinges on the specific facts of the case. [53] The cases cited by the First and Second Defendants are distinguishable, as the delays in those instances exceeded six months. [54] While it is easy to selectively cite favourable precedents, counsel, as officers of the court, have a paramount duty to highlight the distinguishing features of the authorities they rely on – even if doing so weakens their case. [55] On the allegation by the First and Second Defendants that “the Plaintiff was not serious in pursuing this objection” as it was made only after approximately 2 months from the date of 17 August, 2023, this Court accepts the reasons and explanations advanced by the Plaintiff. [56] This Court is unable to agree with the First and Defendants’ contention that they will be prejudiced if the Plaintiff's application is allowed. [57] The First and Second Defendants argued that the term ‘shall’ in section 38(3) of the LAA renders the prescribed period mandatory. However, this argument is untenable given the discretion provided under section 38(4) of the LAA. [58] The submissions by the Third and Fourth Defendants that the grounds and justifications advanced by the Plaintiff are nothing but mere afterthoughts are without merits. [59] Having considered all the arguments put forward by the parties, the authorities cited and the events leading to the present application, this Court is of the considered view that this is a proper case for it to invoke the provision in section 38(4) of the LAA. [60] Order in terms as per prayers (1) and (2) in Enclosure 1. [61] The Plaintiff shall pay costs of RM5,000 to the First and Second Defendants, and no other party shall be entitled to costs. Dated: 7 April, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Denise Phang Hui Xian and Noelle Au Yong Li Ying for the Plaintiff (Messrs. Mah Weng Kwai & Associates) Etty Eliany binti Tesno for the First and Second Defendants (Pejabat Penasihat Undang-Undang Negeri Selangor) Siti Masturah binti Mat Amin and Noor Farihainie binti Abd Manan for the Third and Fourth Defendants (Messrs. Masturah Law Chambers)