KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT [LAMPIRAN 9] A. INTRODUCTION [1] This is a leave application to commence judicial review proceedings against the decision of the Respondents to not proceed with a land swap exercise which they had represented to the Applicant they would. [2] Ultimately, the Applicant was forced to put its position to the Respondents by way of its letter dated 27.2.2025, giving them two weeks (by 14.3.2025) to revert on the promised land swap, failing which, the Applicant would take it that they no longer intended to proceed with the promised land swap. [3] The Respondents did not respond and the decision under review is the Respondents refusal to proceed with the promised land swap. That decision was made on 14.3.2025 and the judicial review application was filed on 5.6.2025. B. BACKGROUND FACTS [4] The Applicant is a subsidiary of MEASAT Broadcast Network Systems Sdn Bhd (“MBNS”). MBNS was granted a license back in 1994 to undertake and operate Malaysia’s first digital Direct To Home (DTH) Multi – Channel television service (“DTH”). [5] 1st Respondent is the Federal Lands Commissioner and a body corporate under section 3, Federal Land Commissioner Act 1957 vested with immovable property under section 7. 2nd Respondent is the Director General of Land appointed pursuant to section 6, National Land Code (NLC). The 2nd Respondent in practice manages federal lands under the name of the 1st Respondent and the 3rd Respondent is the Government of Malaysia. [6] In preparation to undertake Malaysia’s first DTH service, MBNS established the Applicant to own and manage the broadcasting facility for the said purpose. On or about 1.4.1997, the Applicant and the 1st Respondent entered into a lease agreement where the Applicant was to lease the entire H.S(D) 80871 P.T No. 4044 and part of H.S(D) 80870 P.T No. 4043 marked as Zones 1,2 and 3 (“Demised Property”) to build and operate the broadcasting facility. [7] The Applicant would lease only the Demised Property measuring 20 acres as indicated in the Recitals of the Lease Agreement which the 1st Respondent consented to being used by the Applicant as an outdoor production set. The Applicant was to build the broadcasting facility which could also be used by other national broadcasters such as RTM and TV3. [8] The Applicant took possession of the Demised Property on or about April 1997 and commenced payment of the Annual Lease Payment at the same time. The requisite Form 15A under section 221 NLC was registered on 22.1.1998 to give effect to the creation of the Applicant’s interest under the Lease. [9] However due to economic downturn and financial crisis that struck in 1997, the Applicant was unable to develop the broadcasting facility between 1997 to 2004 but the Applicant continued to make the Annual Lease payment. The Respondents did not take any issue with the Demised Property not having been used or developed in the manner contemplated under the Lease. [10] In 2005, the Applicant submitted its application for the proposed development of the Broadcasting and Multimedia Training Centre to Dewan Bandaraya Kuala Lumpur (DBKL). On 24.10.2005, DBKL rejected the Applicant’s application for the proposed development of the Demised Property on the ground that such proposed development did not have a proper access road and was not aligned with DBKL’s development plan for the area which was to be maintained as a green lung. [11] A meeting was held on 7.2.2006 between representatives of the Applicant, Respondents and DBKL and DBKL: i. confirmed its decision to reject the said application for the proposed development of the Broadcasting and Multimedia Training Centre; ii. confirmed that the green lung in Kuala Lumpur was to be retained. Any development which would compromise the green lung would not be allowed; The Applicant explained that it was prepared to surrender the Demised Property subject to it being given replacement land and it being fairly compensated. [12] On 3.4.2006, the Applicant issued a letter to the 1st Respondent informing them that the Applicant was agreeable to handing over the Demised Property to the 1st Respondent provided that: i. The 1st Respondent identified an alternative land situated in Kuala Lumpur which was not less than the current size of the Demised Property; ii. The alternative land was to be leased to the Applicant for a period of 60 years with an option to extend the lease for another 30 years, provided that reasonable conditions are agreed upon; iii. All expenses paid by the Applicant including lease payments, architect fees, surveyor fees and monies paid for the preparation of the development plan submitted to DBKL be reimbursed; iv. Until the alternative land was alienated to the Applicant, the existing lease was still in force and the Applicant retained its rights to the Demised Property. However, in light of the pending surrender, all further payments were to be waived with immediate effect. [13] The 1st and 2nd Respondents did not issue any formal response to the said letter. However, the 2nd Respondent had from 2006 assisted the Applicant in identifying locations as alternatives to the Demised Property (“Land Swap”). A discussion was then held between representatives of the Applicant and the Minister of the Federal Territories on 12.7.2007 and the Minister said that Cabinet had approved for an alternative land for the Land Swap, leaving it for the Applicant, 1st and 2nd Respondents to agree on which land would be used for Land Swap. [14] Between October 2006 and September 2007, several meetings were held by parties to agree on which land to be used for the Land Swap. On 26.9.2007, a meeting was held between representatives of the Applicant, Respondents and DBKL, the outcome of the meetings were: i. The Applicant was informed that Cabinet had decided for the Demised Property to be handed back to the 3rd Respondent to build a large-scale public park; ii. However, the issue of surrendering the Lease had first to be resolved. The Applicant indicated that it had no objections to surrendering the Lease subject to a suitable Land Swap. iii. 2nd Respondent said that the Lease had to be terminated soon in order for the construction of the public park to begin as this had already been decided by the Cabinet; iii. The Applicant expressed concerns that the process of identifying an alternative land could take time, and that the Lease should only be terminated once such land is found; iv. The Applicant stood its ground that it would only surrender the Lease if an alternative land was found. It was eventually decided that the 2nd Respondent would assist in identifying an alternative land for the Land Swap. [15] Until all these issues were resolved, the Respondents insisted that the Applicant continue to pay the Annual Lease payments, despite requests by the Applicant to have the said payments deferred pending the identification of an alternative land. [16] On or about 20.8.2007, FLC issued a ‘Notis Perlanggaran Syarat Perjanjian Pajakan ‘to MDSB giving MDSB a period of 6 months to pay its arrears. This notice of breach was issued pursuant to clause 6 of the Lease, with a view to terminate the Lease in the event the payments were not made within the stipulated 6-month remedy period. This reflected the 1st Respondent being insistent on the Applicant making the Annual Lease payments notwithstanding its inability to utilise the Demised Property. [17] On 18.3.2008, 1st Respondent issued a ‘Notis Penamatan Pajakan Tanah Persekutuan Geran 50043 Lot 54268 dan HS(D) 80871 PT4044 Kuala Lumpur’ to the Applicant stating that the Applicant had failed to pay its arrears within the stipulated 6-month period as demanded in the Notice of Breach. The Lease is terminated with effect from the date of this notice and any appeals are to be submitted within 14 days of this notice. [18] The Applicant made payment of its arrears on 31.3.2008 and both the Applicant and 1st Respondent continued to conduct themselves in a manner that was consistent with the Lease continuing to be in force. The 1st Respondent had by its conduct affirmed the Lease Agreement. They also continued to engage on the Land Swap. A few meetings were held on the issue of land recommended to the Applicant by the 1st Respondent but then the discussion on the land that the Applicant agreed to reached a standstill again due to subsequent position taken by the 1st and 3rd Respondent. [19] The 1st and 3rd Respondents now took the position that the Unit Kerjasama Awam Swasta (“UKAS”) would consider the matter further. This was stated as being prompted by the fact that there were only 10 years left on the lease, whereas the Applicant sought a 99 year lease under the proposed Land Swap. It was thus decided unilaterally by the 3rd Respondent that UKAS would look into the matter and present its proposal to Cabinet. The Applicant was not consulted before this decision was made. [20] On 7.4.2015, the Applicant submitted a concept paper to UKAS for the Broadcasting Facility, which now would include additional facilities given developments that have taken place since 1997, such as the introduction of multimedia courses in various universities and MBNS having already set up its own broadcasting network. [21] At a meeting with UKAS on or about 20.10.2015, the Applicant was informed that a replacement land located at Lot HS(D) 119633 PT 9331, Kuala Lumpur has been identified for a lease period of 99 years and this was communicated by UKAS in writing via email dated 13.11.2015 along with two (2) lease payment options for the lease of PT 9331 (“the said land”) The Applicant responded on 16.12.2015 indicating that it opted for a 1st year payment of RM 483,000.00 and an increment of 5% each year. The Respondents finally made a decision for Land Swap for the said land. [22] On 29.3.2016, 1st Respondent issued a letter informing the Applicant that parties were to negotiate for the lease of the said land and that Cabinet had on 10.2.2016 agreed: i. The Cabinet’s decision in 1995 in respect of the lease of the Demised Property to the Applicant was cancelled; ii. A termination agreement for the Lease Agreement was to be entered into between the Applicant and the 1st Respondent pursuant to which the Applicant was to surrender the Demised Property; iii. The 2nd Respondent was to negotiate a new lease agreement with the Applicant for the said land; iv. The lease period was to be for 30 years with an option to extend for a further term of 30 years and the lease rental is to be negotiated based on the current market rental value. The Applicant was to use the land to develop a broadcasting training and multimedia centre; v. The lease payments which the Applicant had paid to date (RM 14,053,333,39) would not be reimbursed; and vi. The Applicant was further required to settle all outstanding and unpaid lease payments until the termination date of the existing lease agreements. [23] The Respondents thus represented that the Applicant would be provided a substitute land and that this was subject to the Applicant continuing to pay Annual Lease Payment under the lease. The Cabinet decision also had the effect of endorsing the use of the said land for the Land Swap. [24] The Applicant engaged with the 1st and 2nd Respondents and the relevant government agencies to finalise the terms of the lease agreement for the said land including obtaining a valuation of the land in order to determine the market rental value. There were also issues regarding the market value given by Jabatan Penilaian dan Perkhidmatan Harta (“JPPH”) and finally the Applicant agreed to the valuation of RM 5,540,000 for a 60-year lease period without the need for any future review on the valuation. [25] Whilst discussions were going on between parties, 2nd Respondent issued letters dated 23.1.2018 and 5.2.2018 requesting the Applicant to pay its arrears of the Annual Lease Payment for 2015 to 2018 and the Applicant made payment of its arrears on 14.2.2018. [26] Then there is a change of the ruling government in 2018 due to the 14th General Elections. In October 2018, the then Member of Parliament of Segambut Hannah Yeoh (also the then Deputy Minister of Women, Family and Community Development), expressed a view that Bukit Kiara (in which the said land was located) be preserved as a green lung. To this, discussions were held to discuss the possibility of terminating the proposed lease in respect of the said land and exploring the possibility of a new suitable site as a replacement for the Land Swap. [27] A meeting was held on 18.12.2018 between the Jabatan Landskap Negara and representatives from the Applicant and 2nd Respondent. However, no positive response from the Respondents pertaining to the Land Swap, and until the issues were resolve, the lease remained in force and the Annual Lease Payments had to be made. Throughout this period, 2nd Respondent maintained that the lease payments remain due and payable to avoid a breach of the lease and that any delay in payment would be subject to 8% interest per Clause 2(b) of the Lease Agreement. Thus, the Applicant was thus constrained to comply and made payments up until 2023. [28] A meeting was held on 7.2.2024 between the representatives of the Applicant, 2nd Respondent and other related agencies to discuss Land Swap and the Applicant was asked to reconsider other land proposed in particular TPM land which appeared to be the most suitable option considering the zoning of the land and the Applicant’s development needs. On 4.8.2024, the Applicant expressed its agreement for the proposal of TPM Land and sought confirmation from the 2nd Respondent that the said land was still available. On 9.10.2024, 2nd Respondent informed the Applicant that a letter had been sent to Mranti Corporation (“Mranti”) the owner of the TPM Land regarding the availability of sub leasing the said land to the Applicant and the 2nd Respondent suggested that the Applicant approach MRANTI directly. [29] On 8.11.2024, a meeting was held between the Applicant and MRANTI and the Applicant was informed that the TPM Land was not available but there may be smaller pieces available within the same area but no update to date. [30] On 17.12.2024, 2nd Respondent issued a letter requesting for payment of the Annual Lease Payment for 2025 and imposing penalty for the delayed payment of the Annual Lease Payment for year 2024. Applicant received that said letter on 26.12.2024. The Applicant issued a letter to the 1st Respondent on 27.12.2024 expressing their unsatisfactory state of affairs: i. 1st Respondent to identify and revert on the land at TPM which is available for lease, as a replacement of the Demised Property, and to expedite the conclusion of the Land Swap; ii. The lease payments made by the Applicant to date amounting to RM 22.32 million be reimbursed; iii. The obligation to make further Annual Lease payments be suspended until the replacement of the Demised Property is satisfactorily achieved; and iv. The late payment penalty amounting to RM 16,262.30 as stated in the 17.12.2024 letter be waived. [31] No reply was forthcoming and a follow up reminder was subsequently issued by the Applicant on 20.1.2025 to the 1st Respondent indicating that it will suspend payments for year 2025 until a response is received in respect of the above. On 22.1.2025, 2nd Respondent issued a letter to the Applicant reminding it to make payment of the 2025 Annual Lease Payments and another reminder was sent on 18.2.2025 demanding for late payment interest for the 2024 Annual Lease payment. [32] On 27.2.2025, the Applicant was constrained to write to the 2nd Respondent to state that in the event it did not receive a response to its December 2024 letter by 14.3.2025, specifically for a detailed proposal on the Land Swap, the Applicant would take it that the 1st Respondent no longer wishes to proceed with the Land Swap. No response was forthcoming and the Applicant sent a further letter to the 2nd Respondent on 24.3.2025 to put on record that the 1st Respondent had made a decision not to proceed with the Land Swap contrary to the representations by the Respondents. C. REPLY BY THE RESPONDENTS [33] There was a delay in this leave application as the impugned decision namely the Cabinet rescission in 2018 and the delay has occurred more than six years prior to the filing of this application. [34] The Applicant’s application herein is frivolous and vexatious since there is no decision made by the Respondent that could be subjected to judicial review. The Applicant cannot arbitrarily assume that the Respondent had decided merely on the basis that a reply was not received by the Applicant within the time dictated by the Applicant in their letter dated 24.3.2025. [35] It is outrageously inappropriate and wrong for the Applicant to assume within a week as stipulated by the Applicant, implies that the Respondent has decided not to consider their request for a direction on the land swap. On this basis the application for leave to commence judicial review proceedings with respect to non-existent decision renders it not susceptible to judicial review. Judicial review is available only against public law decisions made pursuant to statutory powers. The Cabinet’s internal deliberation and subsequent rescission of its 2016 policy approval do not constitute a “decision” under public law; rather they are executive or policy decisions falling within non-justiciable discretion. D. DECISION OF THE COURT [36] This is the application filed by the Applicant to seek leave to apply for judicial review for the following reliefs: i. A declaration the Respondents are obliged to provide the Applicant with a suitable replacement land for the Demised Property under the lease, for the purpose agreed to in the lease; ii. An order in the nature of a mandamus to compel the Respondents to provide a suitable replacement land for the Demised Property under the lease (subject to the Applicant’s approval) and execute a lease agreement with the Applicant on terms to be agreed with respect to the said land, within a time frame to be determined by this Honourable Court; iii. In the event the Mandamus order above is granted, for any incidental or necessary directions to ensure that the mandamus order is complied with, including liberty for parties to apply; iv. Damages in the sum of RM 17,775,431.02 or any other amount deemed just and appropriate by this Honourable Court; and v. Such further or other relief as is considered just pursuant to the powers of the Court under paragraph 1 of the Schedule to the Courts of Judicature Act 1964 . [37] The involvement of the Attorney General (“AG”) at the leave stage is expressly recognised by O.53 Rules of Court 2012 which requires the applicant to serve the leave application, statement and affidavit on the AG. Upon being served with the cause papers, AG can choose to appear or not to appear at the leave stage. If the AG appears, the Court has no jurisdiction not to hear him. The AG’s appearance at the leave stage is not for the Respondent but in the capacity as the AG (see : Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544) [38] The learned SFC submitted that under O.53 rule 3(6), an application for leave must be made within three months from the date the grounds for the application first arose. The impugned decision namely, the Cabinet rescission in 2018 occurred more than six years prior to the filing of this application. In answer to this, the Applicant submits that they did not challenge the revocation but Respondent’s refusal to proceed with the land swap es evinced by its non-response to the December 2024 letter, that is the subject matter of the judicial review. [39] The learned SFC also submits that the Applicant’s application herein is frivolous and vexatious since there is no decision made by the Respondent that could be subjected to judicial review. The Applicant cannot arbitrarily assume that the Respondent had decided merely on the basis that a reply was not received by the Applicant within the time dictated by the Applicant in their letter dated 24.3.2025. In reply, the Respondents submits that the former O. 53 rule 3(6) Rules of the High Court 1980 only uses the word “decision”, but as explained by Wan Ahmad Farid J (as he then was, now CJ) in Loh Mun Hoe v Pendaftar Kelahiran dan Kematian [2022] MLJU 788, the word “omission” now used in O. 53 rule 2(4) Rules of Court 2012, includes a non-response to a letter. [40] The test for leave is well settled, at this stage the Applicant needs to show that they have an arguable case (see : WRP Asia Pacific Sdn Bhd v Tenage Nasional Bhd [2012] 4 MLJ 296 FC, pages 302- 303). The threshold for granting leave is low. This Court should not at this stage indulged in the substantial issues on merits for it can be argued by parties at length in open court at judicial review stage. [41] The basis of the Applicant’s application is not the revocation by Cabinet in 2018 on the Demised Property which was leased to the Applicant but the 3rd Respondent merely not to use the Demised Property known as PT 9331 for the land swap. Since 2006, the 2nd Respondent had been engaging with the Applicant to identify a suitable land for the land swap and this has been ongoing until 2015 when UKAS came into the picture. The basis of the Applicant’s application for judicial review is they were put to the understanding and legitimate expectation (due to the conduct of the Respondents) though there is revocation by the Cabinet that took place on the land that was first leased to the Applicant for development, a new land was offered to the Applicant (PT 9331) subject to terms including lease payment and duration. Even after the revocation, Respondents continued to represent to the Applicant that an alternative land would be identified and the Applicant ultimately agreed to the TPM land in the interest of resolving the issue, only to be told later that the said land not available. [42] The Respondents insisted that the Applicant continue to pay the Annual Lease Payments without any reduction and it was represented to the Applicant that a suitable alternative would be provided subject to mutual agreement and the Applicant had continuously paid the Annual Lease Payment. [43] As for the submission by the learned SFC that the impugned decision is not amenable to judicial review for there is no decision made by the Respondent. Non-reply to the Respondent’s letter dated 24.3.2025 cannot be construed as Respondent had decided on the issue of land swap. This Court is agreed with the submission put forward by the Applicant’s solicitors that throughout the years between 2021 to 2023, the Applicant continued to follow up on the status of PT 9331 as the most suitable alternative and sought a deferral of the Annual Lease payment for 2021 and 2023; this can be seen through emails and letters dated 3.6.2021, 17.8.2021 and 7.2.2022. [44] There were correspondence between parties regarding the status of PT 9331 but still no resolution. Up until this application is filed, there is no decision as to whether the Respondent is agreeable to the land swapping; all in all, is that Respondents continued to represent to the Applicant that it will find a suitable land for the purpose of the land swap. [45] This court finds that the Applicant had shown that they have an arguable case and the non-reply to the December 2024 letter amounts to an omission as per O53 rule 2(4) amenable for a judicial review. [46] As for the stay, the Applicant contends there are special circumstances warranting the stay of the Annual Lease payments. The Annual lease payments were made on the basis of the land swap. The impugned decision now undermines the very basis of the Annual Lease payments. The learned SFC submits the stay jurisdiction is exceptional, its purpose is merely to preserve the status quo, not to alter existing rights or revive rescinded decisions pending disposal of the judicial review. The alleged “special circumstance” relied upon by the Applicant that it continues to pay lease rentals on the 1997 lease does not justify judicial interference with an executive policy decision. Payment of rent arises from a voluntary contractual obligation, not from the impugned Cabinet decision. No irreparable prejudice will be suffered by the Applicant if the lease remains in force; any alleged loss is purely monetary, compensable by damages if liability were ever be established. [47] As for the stay of the Annual Lease Payments is concerned, this Court agrees that this payment is an executive policy decision and will not interfere with it. There will be no irreparable prejudice to the Applicant for the lease is still continuing except the issue of land swapping had not been resolved. If there is any alleged loss is purely monetary and can be compensated by damages if liability were ever established later against the Respondent. Therefore, the application for a stay is hereby dismissed. Dated: 26.6.2026 tt (NORLIZA BINTI OTHMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK 1) Solicitors for the Applicant : Yvonne Lim Messrs. Surendra Ananth Solicitors for the Respondents : Syahriah bt Shapiee