MD Nahar Bin Noordin v Tadbir Tanah Daerah Hulu Langat … Responden (15 – 94 – 06/2016)

The Applicant’s land was acquired under the Land Acquisition Act

The declaration to acquire the Applicant’s land was made in Form D dated 7.11.2013. The enquiry only commenced some 2 years 2 later on 23.4.2015. The Respondent delivered his award in Form H dated 9.6.2015 but only served it on the Applicant on 23.7.2015.

The Applicant was dissatisfied with the Respondent’s award and filed his objection in Form N on 3.9.2015. The Respondent referred the objection to the High Court pursuant to section 38(5) of the Land Acquisition Act 1960. The Respondent filed the reference bundle under Ikatan Borang O dated 13.6.2016 but did not serve it on the Applicant.

The hearing of the land reference under section 45 of the Land Acquisition Act 1960 was fixed on 17.7.2017. The Applicant had filed his private valuer’s valuation report and the rebuttal report. The Applicant also served a notice to direct the Respondent’s appearance in Court and to cross-examine the Respondent on the basis and amount of the Respondent’s award in Form H.

The notice issued by the Applicant to the Respondent fulfilled all the requirements of section 43 of the Land Acquisition Act 1960 in that it gave sufficient notice to the Respondent - date on which the Court will proceed to hear and determine the objection; the details of the land and the direction to appear before the Court at such hearing. For all purpose and intent, the objective of the mandatory requirement of section 43 of the Land Acquisition Act 1960 has been fulfilled by the Applicant’s notice 5. On the hearing date, the Respondent was present. In the presence of the two assessors, the Government assessor Mohd Rofi Bin Yusof and the private assessor Mohd Azuan Bin Abu Mansol as the private 3 assessor, the State Legal Officer/Federal Counsel Mohd Abdul Hakim bin Mohd Ali, raised an objection that the Respondent cannot be compelled to appear in Court nor to be cross-examined. Due to this objection, I adjourned the land reference and directed both sides to address me on whether a PTD can be compelled to appear and be cross-examined in a land reference hearing.

Both sides filed their written submissions on the aforesaid issues. I heard counsel from both sides on 12.9.2017 and fixed this matter for decision on 26.9.2017. I thank the Applicant’s counsel, Mr. Rosli Dahlan and Ms. Ho Ai Ting for a very detailed submission that has assisted me in coming to the ruling that I am making herein. These are the grounds of my decision.

The parties to a land reference are principally the land owner as Applicant and the Pentadbir Tanah Daerah (PTD) as Respondent.

In my 2 years of conducting land reference cases in Shah Alam, I have observed that the PTD has never been cross-examined on his award. This has resulted in an impression that the PTD cannot be cross-examined, and hence the objection by the Federal Counsel when faced with this request by the Applicant’s counsel.

It is often forgotten that there is an express statutory provision on the requirement for the PTD to attend Court at the land reference hearing. This is specifically set out in section 43 of the Land Acquisition Act 1960 which states: 4 “On receiving a reference from the Land Administrator pursuant to section 38 (5), the Court shall cause a notice in Form P, specifying the day on which the Court will proceed to hear and determine the objection contained in such reference, to be served on the following persons, and directing their appearance before the Court at that hearing-

the applicant;

the person or corporation, if any, on whose behalf the proceedings were instituted pursuant to section 3;

all persons interested in the objection, except such, if any, as have consented without protest to receive payment of the compensation awarded; and

if the objection is in regard to the area of the land or to the amount of the compensation, the Land Administrator. (emphasis added)

The word “shall” in section 43 of the Land Acquisition Act 1960 connotes a mandatory requirement for the PTD to be served with a notice to appear before the Court at the land reference hearing whenever his award is challenged in regard to the area of the land or to the amount of compensation (see Coutts v. Commonwealth (1985) ALR 699 at p. 713; Azman bin Jufri v. Medtronic Australasia Pty Ltd [2015] 6 MLJ 841 at p. 855; Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 at p. 579 and 580) which established the principle that the word ‘shall’ or ‘must’ is prima facie a mandatory provision which must be complied with without exception. 5

It is to be noted that section 43(d) of the Land Acquisition Act 1960 is in pari materia with section 20(c) of the Indian Land Acquisition Act of 1894 which states: “The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely: -

if the objection is in regard to the area of the land or to the amount of the compensation, the Collector.”

As the Malaysian Land Acquisition Act 1960 is based on the then Indian Land Acquisition Act of 1894, assistance can also be found in the Indian cases. In Bishnu Prosad v. Binoy Krishna A.I.R. (32) 1945 Calcutta 142, the High Court of Calcutta at p.143 held: “The proceeding in Court below was misconceived and defective from the beginning. The Collector ought to have been given notice under s.20 of the Act and the case should have been tried as a valuation case”.

Prima facie, section 43(d) of the Land Acquisition Act 1960 makes it mandatory for the PTD to be required to attend a land reference hearing whenever the PTD’s award is being challenged. There is good reason for that statutory provision.

The subject matter of the land reference hearing is a challenge against the amount of the Respondent’s award. Therefore, the Respondent must be heard at the hearing to defend his award consistent with the principle of audi alteram patem. In the Privy Council case of B Surinder Singh Kanda v. The Government of 6 the Federation of Malaya [1962] 1 LNS 9, Lord Denning at p. succinctly described that natural justice entails: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.”

The manner in which the Respondent defends his position is by the process of examination and cross-examination. This fundamental principle has time and again been reaffirmed including recently by the Court of Appeal in Ramasamy Amaippan v. Kwan Lee Pin; Majlis Peguam Malaysia (Intervener) [2017] 1 LNS 718 at p. 6 and 7: “[12] No one could have described it any better. A denial of cross examination is a material non-compliance amounting to a breach of natural justice. In the celebrated case of Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 (“the CCSU case”) a non-compliance of natural justice qualifies as a ground to quash the impugned decision on the ground of procedural impropriety, which Lord Diplock had explained as a decision that was made in defiance of set procedures prescribed by a statute or where the ‘rules of natural justice’ have not been adhered to by the decision-maker. The twin pillars upon which the rules of natural justice are hoisted consist of the rule against bias or Nemo iudex in causa sua, which basically means that a man ought not to be a judge in his own cause, and secondly, the audi alteram patem rule, which encapsulates the right of the other side to be heard. In an article entitled “The Rule against Bias” by Mathew Groves (2009) UMonashLRS 10 it was observed that while the hearing rule, being the right to be heard, governs the procedural features of decision making, the bias rule governs the attitude or the state of mind of the decision maker. 7 We found that observation to be an apt one. It captures in gist, what the rules of natural justice entail in practical terms, in the context of judicial and quasi-judicial proceedings. An astute adherence to this important concept will invariably result in impartiality, a much sought-after commodity in all forms of tribunals which decide on the rights and liabilities of litigating parties.”

Once section 43 of the Land Acquisition Act 1960 makes it mandatory for the PTD to appear at the land reference hearing, then it must be for a purpose. It cannot be that the PTD is required to appear only to watch the proceedings from the public gallery. Sanjiva Row’s Law of Land Acquisition and Compensation, 8th Edition by Justice K Shanmukham at p. 544 and 545 explains that the word “appearance” in section 20(c) of the Indian Land Acquisition Act of 1894 means as follows: “Section 20(c) requires a notice to be served on the Collector when the dispute relates to the area of the land acquired or to the amount of compensation….. The section is silent as to what a notice under cll (b) and (c) of the section would contain. Presumably, the notice contemplated is a substitute for a summons on a defendant under the Civil Procedure Code ‘to appear and answer the claim’ made by the applicant. Consequently, the High Court of Calcutta has held that on receipt of notice under cl (c), the Collector must enter appearances and should defend the case exactly as he would defend a government suit. It is the duty of the Collector to see that evidence is forthcoming to show the fairness of the amount which he has given as compensation. The Collector must remember that the court will decide on the evidence before it about the amount of compensation that should be given, and he must, 8 therefore, be prepared with reliable evidence at the trial. In a proceeding for ascertainment of compensation, on a reference under s 18, the claimant is to be regarded as the plaintiff and the government as the defendant. No proceeding can properly go on in the absence of the representative of the government. In valuation references under cl (c), the answer on the part of the Collector is already contained in his reference to the court and all that is left for the government is to appear and defend the award… Since, as has been already stated, a notice under this section is a substitute for summons under the Code of Civil Procedure, it follows that if a person interested fails to appear on being served with notice under this section, the consequences following upon such failure to appear will be the same as those for non-appearance of a plaintiff or of a defendant on service of summons under the provisions of the Code of Civil Procedure.” (See also Commentary on The Land Acquisition Act by Om Prakash Aggarwala and V.G. Ramachandran’s The Law of Land Acquisition and Compensation, 8th Edition by Justice G.C. Mathur.)

Therefore, I am of the view that the express provision of section 43 of the Land Acquisition Act 1960 requires the PTD to appear in person at the land reference hearing to give evidence to defend the award that he had made in respect of the area of land or, in this case the amount of compensation. The express provision of the statute is not devoid of meaning. It must be given its full and plain effect (Navaradnam v. Suppian Chettiar [1973] 1 MLJ 173 at p. 176, FC; Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor [2010] 2 MLJ 312 at p. 325 and 326, FC; Hari Bhadur Ghale v. P P [2012] 7 CLJ 789 at p. 795, FC). 9

I should also address the concern that the PTD cannot be compelled to appear and be cross-examined because in conducting the land enquiry and making his award, the PTD was carrying out a quasi-judicial role 19. In my view and for reasons that I will explain, that contention is misconceived. There are numerous instances where the PTD has been called to be cross-examined in land matters in their exercise of quasi-judicial functions (see Tong Tiong Kim v. Pentadbir Tanah Daerah Johor Bahru & Anor [1994] 4 CLJ 916 at p. 918 and 919; Oliver Young v. Collector of Land Revenue, Batu Pahat [1972] 2 MLJ 208 at p. 209).

It is also misconceived to liken the role of a PTD under the Land Acquisition Act 1960 to that of the President of an Industrial Court because of the express wording of section 24(2) of the Industrial Relations Act 1967 which specifically prohibits the President from being made a witness or a party, as submitted by the Federal Counsel, as follows: “(2) Notwithstanding anything to the contrary in any written law, no member of the Court shall be compelled by any court to appear as a witness or party in any proceedings before that Court in relation to any act, matter or thing performed by him as a member of the Court under this Act.”

There is no such similar express provision under the Land Acquisition Act 1960. On the contrary, the whole scheme of the Land Acquisition Act 1960 necessarily requires the PTD to be a party on behalf of the State Authority who acquires the private land. This is clearly borne 10 out by section 43(d) of the Land Acquisition Act 1960 which compels and makes the appearance of the PTD a mandatory requirement at the land reference hearing.

It has often been said that the Land Acquisition Act 1960 is a draconian legislation with specific safeguards built in to it where the special provisions of the Land Acquisition Act 1960 must be strictly adhered to by the relevant public authorities and made applicable to all relevant parties. Strict compliance with the prescribed procedures under the Land Acquisition Act 1960 is mandatory and cannot be dispensed with willy-nilly (see Ee Chong Pang & Ors v. The Land Administrator of the District of Alor Gajah & Anor [2013] 3 CLJ 649 at p. 656 and 657, CA; Ng Kim Moi & Ors v. Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus [2004] 3 CLJ 131 at p. 144, CA; Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v. Inch Kenneth Rubber Ltd & Anor & Other Appeals [2011] 1 CLJ 95 at p. 100, CA)

I have considered the two cases cited by the Federal Counsel (Setia Usaha Tetap Kementerian Pelajaran v. Collector of Land Revenue [1972] 2 MLJ 155 and Mohd Saperi Mohd Nasir v. Pentadbir Tanah Daerah, Alor Gajah [1998] 1 CLJ Supp 287) and I am of the view that they do not apply to the present case.

The scheme of the Land Acquisition Act 1960 requiring the PTD to be cross-examined is to enable the peculiar facts and circumstances of this case, the credibility or otherwise of the JPPH’s Report, the appropriateness of the PTD’s Award and what is a fair, reasonable and adequate compensation to be paid to the Applicant to be 11 ascertained by this Court assisted by the Learned Assessors as prescribed by sections 12, 40A and 47 of the Land Acquisition Act 1960 consistent with the intent and spirit of Article 13 of the Federal Constitution.

Therefore, I hold as follows: a) Section 43 of the Land Acquisition Act 1960 mandatorily requires the PTD to appear in person at a land reference hearing; b) The PTD’s appearance is to defend the case exactly as he would defend a government suit as he is a party to the suit; c) In making his appearance, it is the duty of the PTD to see that evidence is forthcoming to show the fairness of the amount which he has given as compensation; d) Therefore, it is mandatory for the PTD to appear and be prepared with reliable evidence at the land reference hearing to answer the claim made by the land owner/ applicant by way of cross-examination. YA DATO’ HAJI MOHD YAZID BIN HAJI MUSTAFA JUDGE (LJC) SHAH ALAM HIGH COURT 9 OCTOBER 2017 12 Parties PP: Encik Rosli Dahlan bersama Ms Ho Ai Ting