Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat; (01(f)-63-12/2017(B))

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1 IN THE FEDERAL COURT OF MALAYSIA CIVIL APPEAL NO: 01(f)-63-12/2017(B) BETWEEN ORCHARD CIRCLE SDN BHD …APPELLANT

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Jadual Akta Mahkamah Kehakiman 1964; Dan 5 Dalam Perkara Mengenai Aturan 53 Kaedah-Kaedah Mahkamah Tinggi, 1980; Dan Dalam Perkara Mengenai Keputusan bertarikh 20.4.2012 di bawah atau selaras dengan Akta Pengambilan Tanah 1960 berkenaan dengan 9,005.08 meter persegi tanah di bawah Lot 8630 dan 10,118.69 meter persegi tanah di bawah Lot 2630 yang kedua-duanya dipegang di bawah Geran No: 30006 dalam Mukim Kajang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan. Antara Orchard Circle Sdn Bhd …Pemohon Dan 1. Pentadbir Tanah Daerah Hulu Langat 2. Pengarah Jabatan Ketua Pengarah Tanah dan Galian (Persekutuan) Negeri Selangor 3. Kerajaan Negeri Selangor 4. Kerajaan Malaysia 5. Sistem Lingkaran Lebuhraya Kajang Sdn Bhd (No Syarikat: 371220-V) ...Responden-Responden] 6 CORAM: VERNON ONG LAM KIAT, FCJ ABDUL RAHMAN SEBLI, FCJ ZABARIAH MOHD YUSOF, FCJ JUDGMENT [1] The appeal by the appellant is against the whole decision of the Court of Appeal dated 21.7.2017 which, inter alia: (i) allowed the respective respondents’ appeals (Appeal Nos: B-01(A)-114-04/2016, B-01(A)-121-04/2016 & B-01(A)- 122-04/2016) with costs; (ii) dismissed the appellant’s appeal (Appeal No: B-01(A)-131- 04/2016) with no order as to costs; (iii) set aside the High Court Order dated 7.3.2016 (save for the order refusing damages); (iv) held that Form D dated 10.12.2001 is valid; and (v) directed that all objections with respect to the decision of the Land Administrator on the issues of compensation and surrender be determined in the pending land reference proceedings. 7 [2] The appellant was granted leave to appeal to the Federal Court on 4.12.2017 on the following questions of law: “(1) Whether, pursuant to section 8 (4) of the Land Acquisition Act 1960, a declaration in Form D lapses and ceases to be of any effect where an award of the Land Administrator is made within the stipulated two year period but subsequently quashed resulting in a subsequent award made outside the two year period”; “(2) Whether issues of res judicata and estoppel can clothe a declaration in Form D, which would otherwise lapse and cease to have any effect pursuant to section 8 (4) of the Land Acquisition Act 1960, with legal effect.” BACKGROUND [3] The appellant (hereinafter referred to as “Orchard Circle”) was the registered owner of two parcels of land, namely, Lot 8630 and Lot 2630, both held under Grant 30006, Mukim Kajang District of Selangor, out of which 9005.08 square meters of Lot 8630 and 10,118.69 square meters of Lot 2630 (the lands) were acquired by the State Authority. Hence the State Authority acquired a total of 19,123.77 square meters of land. [4] On 10.12.2001, Form D of the Land Acquisition Act 1960 (LAA) was issued to compulsorily acquire the lands for the purpose of building the Kajang Traffic Dispersal Highway (SILK Highway). 8 [5] On 24.12.2002, an inquiry before the Land Administrator was held in respect of the acquisition of 19,123.77 square meters of land on 10.12.2001 (the 1st land inquiry). Orchard Circle was subsequently informed that the award for the acquisition of 19,123.77 square meters of land was a nominal RM1. Reason being, that a portion of the lands had already been surrendered to the State Authority. Form G and Form H dated 24.12.2002 were issued in relation to the 1st land inquiry (1st award). The 1st Judicial Review Proceedings [6] On 30.1.2003, Orchard Circle filed an application for judicial review in the High Court Shah Alam for an order, amongst others, to quash the 1st award of compensation and alternatively for a declaration that the acquisition of the lands is null and void (1st judicial review application). In this 1st judicial review application, Orchard Circle alleged that it was not given a right to be heard at the 1st land inquiry. [7] On 10.12.2010, (after 9 years from the date of Form D, and 7 years from the date of filing of the 1st judicial review application), the learned Judge of High Court Shah Alam, Hinshawati Shariff J allowed the 1st judicial review application and made the following orders: (i) A certiorari to quash the 1st award; and (ii) A mandamus to remit the matter back to the Land Office for a fresh 2nd land inquiry. [8] Hence, pursuant to the order of the High Court dated 10.12.2010, an inquiry was conducted by the Land Administrator on 17.2.2011- 9 17.11.2011 (the 2nd land inquiry). At the 2nd land inquiry before the Land Administrator, Orchard Circle raised the following issues: (a) Form D had lapsed because no award was made within 2 years from the date of Form D (premised on section 8(4) of the LAA); and (b) Orchard Circle did not surrender any portion of the lands to the State Authority. [9] On 20.4.2012, the Land Administrator in the 2nd land inquiry made the following orders: (a) The issue in relation to a lapsed Form D did not arise as his award is but an extension of the 1st award when the High Court on 10.12.2010 in the 1st judicial review application ordered for a fresh land inquiry; (b) 17,284.67 square meters of the lands were surrendered to the State Authority. A nominal compensation of RM1 was awarded for the surrendered portion; and (c) 1,839.10 square meters of the lands were not surrendered. Hence RM514,948 was awarded for this portion. (hereinafter referred to as “the 2nd award”) 10 [10] Dissatisfied with the decision of the Land Administrator in the 2nd land inquiry, Orchard Circle filed the 2nd judicial review application on 30.5.2012. [11] Both Orchard Circle and the 5th respondent (SILK) filed Form N in objection to the 2nd award on 31.5.2012. The Land Reference Proceedings in Form N filed by both Orchard Circle and SILK against the 2nd award, were consolidated and stayed until the final disposal of the 2nd judicial review application. The 2nd Judicial Review Proceedings [12] In the 2nd judicial review application, the learned High Court Judge, Mohd Yazid Mustafa J, premised his decision mainly on the interpretation of section 8(4) of the LAA. [13] His Lordship allowed the 2nd judicial review application and made the following orders: (a) Pursuant to section 8(4) of the LAA, the validity of Form D was only for a period of 2 years from the date of its publication in the Gazette. Form D was dated 10.12.2001. Therefore, the land inquiry exercise by the Land Administrator must be completed before the expiry of 2 years i.e. on or before 10.12.2003. In this case the 2nd award was handed down on 20.4.2012, 9 years after the expiration of Form D. As a result, the learned Judge quashed Form D dated 10.12.2001, Form G and Form H, both dated 20.4.2012 and all proceedings following 11 thereon. The learned Judge adopted and follow the decision of the Court of Appeal in Pengarah Tanah Dan Galian Negeri Kedah & Anor v Emico Development Sdn Bhd [2000] 1 CLJ 86; [2000] 1 MLJ 257 (Emico) which according to him, is binding. (b) The court was of the view that the issue as to whether the portions of land which are to be acquired or had been surrendered is to be determined by the Collector. (c) A declaration that: (i) The acquisition or taking into possession of the lands by the respondents was null and void and of no legal effect; and (ii) Orchard Circle was the lawful proprietor of the lands and was entitled to possession thereof. (d) A re-inquiry of the acquisition of the lands was ordered and after re-issuance of a new Form D; (e) The court dismissed Orchard Circle’s alternative prayers for: (i) a declaration that there was no surrender of 17,284.67 square meters of the lands; and 12 (ii) an order of mandamus to direct the 1st and/or the 2nd respondents to make an award of compensation for the entire lands acquired in the sum of RM17,774,664 with interests thereon from 20.12.2001 until full payment. (f) The court also dismissed Orchard Circle’s reliefs for the following: (i) Damages and/or punitive, aggravated and/or exemplary damages to be paid to Orchard Circle by the respondents; and (ii) An inquiry and/or an assessment of damages and/or punitive, aggravated and/or exemplary damages to be paid to Orchard Circle by the respondents. [14] Dissatisfied with the decision of Mohd Yazid Mustafa J: (i) Orchard Circle appealed against the decision on the refusal to award damages (Appeal No: B-01(A)-131- 04/2016); and (ii) The respective respondents appealed against the decision of the High Court Judge in allowing the 2nd judicial review application, namely: (a) Appeal No: B-01(A)-114-04/2016 was the appeal by SILK; 13 (b) Appeal No: B-01(A)-121-04/2016 was the appeal by Pentadbir Tanah Daerah Ulu Langat & Kerajaan Selangor; and (c) Appeal No: B-01(A)-122-04/2016 was the appeal by Pengarah Jabatan Ketua Pengarah Tanah dan Galian (Persekutuan) & Kerajaan Negeri Selangor. Proceedings At The Court of Appeal [15] In a unanimous decision, the Court of Appeal allowed the respondents’ appeals and dismissed the appeal by Orchard Circle. The Court of Appeal stated that the issues that needed to be determined were: (a) whether the learned Judge, Mohd Yazid Mustafa J was correct in finding that the Land Administrator’s decision in respect of the 2nd land inquiry contravened section 8(4) LAA; and (b) whether the learned Judge was correct in not awarding damages to Orchard Circle. [16] In allowing the appeal by the respondents and dismissing the appeal by Orchard Circle, the Court of Appeal premised its decision on the following grounds: (a) The learned Judge in the High Court, Mohd Yazid Mustafa J did not decide on the 1st judicial review application which was filed on 30.1.2003 and a decision handed down on 14 10.12.2010. The 1st judicial review application was decided by Hinshawati Shariff J. In allowing the 1st judicial review application, Hinshawati Shariff J premised primarily on the complaint by Orchard Circle that it was not given the right to be heard, thus breaching the principle of natural justice. Hence Her Ladyship quashed the 1st award and made a consequential order that a fresh land inquiry be held before another Land Administrator. Orchard Circle did not appeal against the decision of the 1st judicial review application when Hinshawati Shariff J did not declare the acquisition as null and void, but participated in the 2nd land inquiry which was conducted pursuant to the Form D issued on 10.12.2001. Consequently, the principle of estoppel applies to Orchard Circle due to its conduct in failing to appeal against the decision of the 1st judicial review application and by the High Court in refusing to declare the acquisition of the lands as void. This issue has thus become res judicata. It would not be just and equitable to allow Orchard Circle to ventilate on the issue of a lapsed Form D now. Hence the original Form D is valid. (b) The emphasis of section 8(4) LAA is to ensure that the Land Administrator performs his or her duty expeditiously. In the present case, section 8(4) of the LAA was complied with when the 1st award was handed down by the Land Administrator on 24.12.2002 which was well within the 2 years period from Form D dated 10.12.2001. Although Orchard Circle filed a judicial review application on the decision of the 1st land inquiry by the Land Administrator, 15 the litigants took more than 2 years to pursue the matter in court. The purpose intended in section 8(4) of the LAA would be defeated if a strict interpretation was adopted since the Land Administrator has no control over the legal challenges mounted by the litigants. (c) Emico’s case which was relied upon by the learned High Court Judge, Mohd Yazid Mustafa J can be distinguished on its facts from our present case. (d) All objections concerning compensation and issue of surrender be dealt with at the Land Reference proceedings filed at Shah Alam High Court Land Reference No: 15-99- 09/2012 and No: 15-100-09/2012. SUBMISSION BY ORCHARD CIRCLE [17] Mohd Yazid Mustafa J gave effect to the provision and held that Form D was quashed and hence the 2nd award had no legal effect. [18] Counsel for Orchard Circle submitted that section 8(4) of the LAA provides a statutory safeguard for the protection of the landowner to ensure that he/she receives not just compensation but adequate compensation guaranteed under Article 13(2) of the Federal Constitution. If Form D is not quashed, the landowners will not receive adequate compensation as the compensation would be based on the market value of the acquired land as at the original date of the Gazette in 2001 thus defeating the constitutional guarantee of adequate compensation. 16 [19] It was submitted that the Court of Appeal’s reliance on the 1st award is erroneous as the effect of quashing an order vide the 1st High Court decision was to invalidate the decision and deprive it of legal effect since its inception. It is as though the decision was never made. The 1st award is therefore irrelevant since it was subsequently quashed resulting in there being no award at all in law. [20] On the issue of res judicata and estoppel, counsel for Orchard Circle submitted that a statutory provision like section 8(4) cannot be defeated or overridden by estoppel or res judicata. Counsel placed reliance on the Privy Council decision in Pemungut Hasil Tanah Daerah Barat Daya (balik Pulau), Pulau Pinang v Kam Gin Paik [1986] CLJ (Rep) 33 whereby the Privy Council observed that the delay of 7 years between the Gazette Notification and the appellant’s notice of inquiry on 22 March 1979 had the effect that the latter was given, in contravention of the statutory requirements and did not constitute a valid exercise of power. Counsel for the appellant could argue that the respondents not having taken any steps to prevent an inquiry being held, but on the contrary having allowed it to proceed to the stage of an award, were not now entitled to have the proceedings set aside. It sought to distinguish Pemungut Hasil Tanah Daerah Barat Daya, Pulau Pinang v Ong Gaik Kee [1983] 2 MLJ 35, on the ground that there the landowner objected, albeit ineffectually, to the holding of the inquiry. However, their Lordships rejected this argument and said that “…the failure to object ab ante (i.e in advance of or before hand) to an illegal proceeding cannot convert it into a legal one”. 17 SUBMISSION BY SILK [21] The 1st award by the Land Administrator was made within the 2 years period after Form D dated 10.12.2001 was issued as prescribed under section 8(4) of the LAA albeit was subsequently quashed 7 years later at the behest of the application for the 2nd judicial review by Orchard Circle. [22] Section 8(4) has to be read with sections 8(5) and 35 of the LAA and with the necessary modifications, namely an acquisition of any land will not lapse or cease after possession has taken place. The lands in question have already been taken formal possession of on 20.2.2003 and SILK Highway had already been completed on 11.6.2004. The highway has been operating since then. The LAA has no provision that permits a reversal of the acquisition as the land has already been vested in the State Authority. [23] Section 8(4) of the LAA ought to be given a purposive interpretation as a literal meaning would result in absurdity, namely: (i) it is unprecedented that for a land that has been vested in the State Authority and being used as a highway be reverted back to the previous owner; and (ii) It is impossible for a fresh Gazette of Form D to be issued for the lands because the lands are now State land. [24] From the facts, estoppel and res judicata apply. Although one of the reliefs prayed for was for a declaration that the acquisition was void, 18 Hinshawati Shariff J in the 1st judicial review application did not make any declaration that the acquisition was null and void and she also did not order that Orchard Circle was entitled to possession. Instead Her Ladyship only quashed the 1st award and remitted the matter for a fresh land inquiry before the Land Administrator. The refusal by the learned Judge in making an Order that the land acquisition was null and void means that the original Form D was still intact. There was no appeal against the said decision by Orchid Circle, instead Orchard Circle proceeded and participated in the 2nd land inquiry. The 2nd land inquiry was therefore premised on the original Form D. [25] Now Orchard Circle seeks to challenge the validity of the original Form D. This is where Orchard Circle is estopped from challenging the validity of the original Form D. [26] The Court of Appeal did not err when it exercised its discretion in not allowing Orchard Circle to ventilate the same issue that has already been raised in the 1st judicial review application because it is not just and equitable to do so. There is no basis for any appellate intervention with the Court of Appeal’s exercise of discretion. [27] Certiorari and mandamus are discretionary remedies in which relief in public law will be denied if public interests outweigh Orchard Circle’s grievance. SILK Highway has been operating since 2004 and serving the needs of the public. If the contention of Orchard Circle is to be adopted, in that Form D was quashed and the whole acquisition is a nullity, it would create an absurd situation and detrimental to public interest as the lands now forms the SILK Highway and are being used by public. How is the premise of valuation of the lands to be done? If the 19 original Form D is quashed, and a new one issued, would the valuation be based from the date of the new Form D, given that the lands are no longer in its former physical state and value when it was acquired by the State Authority from Orchard Circle in 2001 when the original Form D was issued?. That cannot be the case. (The 1st, 2nd, 3rd and 4th Respondents adopted the submission by SILK) OUR DECISION THE 1st QUESTION [28] The determination of the first question posed hinges on the interpretation of section 8(4) of the LAA. For clarity we reproduce the said provision: “A declaration under subsection (1) shall lapse and cease to be of any effect on the expiry of two years after the date of its publication in the Gazette and in so far as it relates to any land or part of any land in respect of which the Land Administrator has not made an award under section 14 (1) within the said period of two years, and, accordingly, all proceedings already taken or being taken in consequence of such declaration in respect of such land or such part of the land shall terminate and be of no effect.” [29] The provision is clear in that a declaration under subsection 1 of section 8 is only effective within 2 years after the date of its publication in the Gazette. As far as the facts of the present case are concerned, the 1st award was made within the 2 year period on 24.12.2002. 20 [30] However, Orchard Circle alleged that it was never given the right of hearing at the 1st land inquiry and hence applied for the 1st judicial review application on 30.1.2013. Unfortunately, the 1st judicial review application was only determined by the learned High Court Judge, Hinshawati Shariff J on 10.12.2010, which was already beyond the 2 year period. Hinshawati Shariff J ordered for: (a) a certiorari quashing the 1st award; and (b) a mandamus remitting the matter back to the Land Office for a 2nd land inquiry. Notably, there was no order by Hinshawati Shariff J quashing the original Form D and neither was there any order declaring that the land acquisition was null and void, although the reliefs for a declaration that the land acquisition was null and void was pleaded as an alternative prayer to the relief of damages and compensation. In other words, from the reading of the order of Hinshawati J, Form D was still maintained. There was no appeal by Orchard Circle on the Order of Hinshawati Shariff J dated 10.12.2010. [31] Pursuant to the High Court Order dated 10.12.2010, the Land Administrator conducted a fresh land inquiry pursuant to section 12 of the LAA. The order for mandamus which still subsisted at that point in time was for the Land Administrator to commence inquiry for compensation within 30 days. It has got nothing to do with section 8(4) here. By the time Hinshawati Shariff J made the order for a fresh 2nd land inquiry, it was already 9 years after the date of Form D. 21 [32] A literal reading of section 8(4) of the LAA would show that the said provision only applies (i.e. Form D shall lapse and cease to be of any effect) if the Land Administrator has not made an award within 2 years from the date of Form D. The fact shows that the 1st award was well within the 2 year period of Form D. It is unfortunate that the Court through the order of Hinshawati Shariff J took almost 7 years to make a determination on the 1st judicial review application filed by Orchard Circle. Even before the Land Administrator conducted the 2nd land inquiry, it was already beyond the 2 year period. [33] Given the factual matrix of the present case, we are of the view that it cannot be said that the Land Administrator in the 2nd land inquiry had contravened section 8(4) of the LAA when it made the 2nd award beyond the 2 year period as stipulated. The 2nd land inquiry was only to substitute the 1st land inquiry as the issue of the land acquisition and taking possession of the lands and Form D were never declared as null and void by the court. [34] In addition, in determining the issue at hand, and given the facts of the present case, apart from referring to section 8(4) of the LAA, regard must also be given to the other provisions of the LAA and the provision must be read together or in the context of the relevant provisions of the LAA relating to land acquisition proceedings. The relevant provisions of the LAA must be interpreted based on a purposive and literal construction, namely it follows the literal meaning of the Act when that meaning is in accordance with the legislative purpose and applies where the literal meaning is clear and reflects the purpose of the enactment. To read section 8(4) of the LAA in isolation would lend to an unnatural meaning to that provision. Although it was contended by the 22 appellant’s counsel that the words of the said section are clear and unambiguous and thus its plain and natural meaning must be given effect, that in our view may be so if and only if that is the only provision in the said section. Regard must also be given to the other clauses of the provision in the Act so as not to stray from the true purport and meaning of that section. In this connection we refer to the Federal Court case of Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2015] 3 CLJ 861 where it relates to the issue as to when a particular decision was communicated to the appellant and the Court held at page 888: “[92] In order to determine the issue before us in the present appeal, the words “the date when the decision is first communicated to the applicant” as found in 0 53 r 3(6) of the RHC 1980 must be read together or in the context of the relevant provisions of the LAA relating to land acquisition proceedings. All those relevant provisions must be interpreted based on “a purposive and literal construction which is one which follows the literal meaning of the enactment where that meaning is in accordance with the legislative purpose and applies where the literal meaning is clear and reflects the purpose of the enactment. [93] It is perhaps necessary to refer to some relevant provisions of the LAA and the relevant forms issued relating to land acquisition proceedings under the said Act.” [35] A similar stand was also taken by this Court in Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2018] 2 MLJ 590 when the court held at page 613 said that: 23 “[56] In interpreting s 12 of the TUA (Trade Union Act) 1959, an interpretation which meets the purport and design of that provision ought to be considered. It is a cardinal rule of interpretation of statutes that the provisions must be read as a whole. Section 12 of the TUA 1959 consists of three subsections and in our view all the same must be read together and as a whole. To read in isolation sub-s (1) of the same would lead to an unnatural meaning to that provision. It was contended by the appellant’s learned counsel that the words of sub-s (1) is clear and unambiguous and thus it’s plain natural meaning must be given effect. That in our view may be so if and only if that is the only provision in the said section. Regard must also be given to the other clauses of the provision in order to give the true purport and meaning of that section.” [36] The purpose and intent of Parliament in legislating section 8 (4) of the LAA is to ensure that land proprietors whose lands are compulsorily acquired for public purpose are compensated speedily. The insertion of section 8 (4) of the LAA is in line with the decision of the Federal Court in Pemungut Hasil Tanah Daerah Barat Daya (Balik Pulau), Pulau Pinang v Ong Gaik Kee [1983] 2 MLJ 35. [37] Together with this purpose, Parliament had also amended the First Schedule to the LAA by inserting paragraph 1A so that in determining the market value of the scheduled land, consideration is given to the last transaction on the scheduled land within two years from the date with reference to which the scheduled land is assessed. [38] Section 8(5) of the LAA provides that where a declaration has lapsed, sections 35(2), (3) and (4) of the LAA shall apply. Section 35 provides for compensation to be paid for the damage, if any, done to such 24 land as a result of the intended acquisition, where the Authority withdraws from any intended acquisition. However there is a rider to this provision, namely section 35(1) which provides that the State Authority can only withdraw the acquisition of any land of which possession has not taken place. For clarity we reproduce the relevant provision: “Withdrawal from acquisition 35. (1) The State Authority shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (1A) A notification in Form LA shall be published in the Gazette and all proceedings already taken or being taken in consequence of the declaration in subsection 8(1) in respect of the land shall cease to have effect. 2) Whenever the State Authority withdraws from any acquisition under subsection (1), the Land Administrator, after notifying the person interested in Form LB, shall— (a) determine the amount of compensation due for the damage, if any, done to such land by action taken under section 5 and not already paid for under section 6, and pay such amount to the person injured; (b) pay to the persons interested all such costs as shall have been incurred by them by reason or in consequence of the proceedings for acquisition, together with compensation for the damage, if any, which they may have sustained by reason or in consequence of such proceedings; and 25 (c) prepare and serve on each person interested a notice in Form LC. (3) The First Schedule shall apply, so far as may be, to the determination of the compensation payable under this section. (3A) For the purpose of this section, subsection 14(5) shall be applicable if necessary. (4) The Land Administrator or other registering authority shall make a note of any withdrawal under this section in the manner specified in subsection 9(2). (5) Notwithstanding anything contained in this section, the State Authority shall reserve the right to forfeit an amount which is sufficient to defray the amount of costs and damages incurred by any person interested and such amount shall be determined by the Land Administrator and shall be deducted from the deposit under paragraph 3(3)(d) in the event of any withdrawal made under this section.” In the present case, the lands have already been formally taken possession of when Form K was issued on 20.2.2003 in accordance with section 22 of the LAA. The memorial was endorsed in the register document of title after issuance of Form K as evidenced by the Search made on the title dated 7.5.2014. Section 23 of the LAA provides that: “23. The proper registering authority, upon receipt of the notice in Form K, or the Land Administrator of his own motion after completing Form K, shall, upon the register document of title or other appropriate record in his possession as specified in subsection 9 (2) or (3), make with respect to any scheduled land a memorial- 26 (a) That the whole of such land has been acquired and has vested in the State Authority or, in the case of a parcel of a subdivided building, in the person or corporation on whose behalf the parcel has been acquired; or (b) That so much of the land as is specified in the last column of the schedule to such Form has been acquired.” [39] In our present case, not only that the lands have been taken possession of, by the State Authority, it has already been vested in the State Authority. Once the lands are vested with the State Authority, there are no provisions in the LAA to revert the lands back to the owner. [40] In this regard, it is apposite to refer to the Indian LAA. Section 11A of the Indian LAA is similar to our section 8(4) of the LAA except that it has an additional proviso and an explanatory note. For convenience we reproduce section 11A of the Indian LAA which reads: “Period within which an award shall be made. 11A. The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, the award shall be made within a period of two years from such commencement. Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to 27 be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded.” [41] The Supreme Court of India had occasion to consider the effect of section 11A of the Indian LAA in Satendra Prasad Jain and others v State of U.P. and others AIR 1993 SC 2517. It involved a notification under section 4 of the Indian LAA which was issued out on 29.7.1986 to acquire the appellant’s land for public purpose and in view of the urgency of the public purpose, section 17(4) of the LAA was applied. Section 48(1) may also be noted where it provides that “the Government shall be at liberty to withdraw from acquisition of any land of which possession has not been taken”. The petition to challenge the acquisition proceedings by the land owner was dismissed on 19.1.1987. The appeal to the Supreme Court was dismissed on 19.1.1987. The possession of the land was taken on 27.2.1987 and handed to the 3rd respondent. The 3rd respondent subsequently decided not to proceed with the acquisition of the lands due to paucity of funds. This resulted in the appellants therein filing a writ of petition to direct to the respondents by way of writ of mandamus to make and publish an award. The respondents being the acquiring authority relied on section 11A in support of its act. The High Court held that “….by the mere fact that possession had been taken in pursuance of ss. 17(1), the necessity of giving an award, as mandated by section 11A, within a period of two years from the date of publication of the notification under section 4 could not be dispensed with”. The Supreme Court allowed the appeal and held at page 2520: “14. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking 28 of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of Section 6 declaration. In the ordinary case, therefore, when the Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11A, lapse. When Section 17(1) is applied by reason of urgency, the Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which the land statutorily vested in the Government can revert to the owner.” [42] In the case of Messrs Delhi Airtech Services Pvt Ltd v State of UP AIR 2012 573, the Supreme Court of India also dealt with section 11A of its LAA. There was a divergence of opinion however which resulted in the matter being referred to the Chief Justice of India for reference to a larger Bench to resolve the divergent views. There has not been any reported decision of the larger bench however the decision of Swatante Kumar J is illustrative where he said at page 627: “162….. 29 (A) I hold and declare that Section 11A of the Act has no application to the acquisition proceedings conducted under the provisions of Section 17 of the Act; Once the acquired land has vested in the Government in terms of Section 16 or 17(1) of the Act, possession of which has already been taken, such land is incapable of being re-vested or reverted to the owners/persons interested therein, for lack of any statutory provision for the same under the Act.” [43] In Mahadoe (D) Through Lrs & Ors v State of U.P & Ors (Civil Appeal No 1944 of 2013) the Supreme Court held that the High Court cannot direct an order for mandamus to withdraw from the acquisition. The relevant portion of the judgment reads at page 1632: “ ….Clearly, Section 11A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which the land statutorily vested in the Government can revert to the owner. 18. Indisputably, land in question was acquired by the State Government for the purpose of expansion of city i.e. construction of residential/commercial building under planned development scheme by the Meerut Development Authority and that major portion of the land has already been utilized by the Authority. Merely because some land was left at the relevant time, that does not give any right to the authority to send proposal to the Government for release of the land in favour of the land owners. The impugned orders passed by the High Court directing the Authority to press the Resolution are absolutely unwarranted in law.” 30 [44] Hence given the substantial similarity of the Indian section 11A of its LAA to our section 8(4) of the LAA, and the absence of provision in which land which had been vested in the State Authority to be reverted to the land owner, we are of the view that the principles as applied by the Supreme Court in the aforesaid cases are applicable to our situation. Although the sections in the Indian LAA are not exactly the same as ours, substantially they are similar. Therefore, applying the principle as set in the aforesaid cases to our present case, the State Authority, upon taking possession and the memorial endorsed in the register document of title after the issuance of Form K, the land shall vest with the State Authority as state land, free from encumbrances. [45] Consequently, section 8(4) of the LAA does not apply when the acquisition proceedings is completed and the lands are already vested in the State Authority as in our present case. Section 8(4) of the LAA only applies to cases where proceedings are taken or being taken within the period of two years if the land acquisition has not been completed. [46] In any event to revert the land back to Orchard Circle is absurd in the circumstances because the 1st judicial review application was decided, only after 7 years after it was filed. By then the SILK Highway project has been constructed and completed. Thus, it cannot be the case that Orchard Circle is still the owner of the land where the Highway has been constructed (refer to Mahadoe (D) Through Lrs & Ors v State of U.P & Ors). 31 Interpretation of section 8(4) of the LAA [47] To advert to the contention of Orchard Circle that section 8(4) of the LAA ought to be given its literal and natural meaning, that the Form D ought to be quashed as the Land Inquiry was made beyond the 2 year period provided for under the same, is to our mind misconceived of the application of the section to the factual matrix of the present case. [48] This contention is certainly flawed because, firstly, it ignores the reason as to why the 2nd land inquiry was made beyond the 2 year period. After the 1st judicial review application was filed on 30.1.2003 there was no active pursuit by Orchard Circle to have the application heard within the 2 year period of Form D. It was left in abeyance and was only heard and decided on 10.12.2010, 7 years later. It was in the interest of Orchard Circle to have it heard as soon as possible, but it was not done. Orchard Circle was the author of its predicament through no fault of the respondents. One cannot also fault the Land Administrator at the 2nd land inquiry as by the time it came to him it was already beyond the 2 year period. It fact it was already 7 years after the date of Form D by the time Hinshawati Shariff J delivered her decision on the 1st judicial review application directing for a fresh land inquiry to be held. [49] Secondly, such literal and ordinary interpretation of section 8(4) of the LAA in the context of our present case, would lead to absurdity. Such provision as enacted did not envisage a factual situation as in our present scenario, namely, the setting aside of an award by the Land Administrator some 7 years later and that an order by the court for a 2nd Land Inquiry be conducted on a land which has been vested in the State Authority and the purpose of the land being acquired had achieved its 32 purpose, vis-à-vis the completion of the SILK Highway. Such was not the intention of the Legislature and neither was such scenario anticipated by the provision. Therefore deference must be given to the purposive approach of interpretation of the section. [50] Statutory recognition has been given to the purposive interpretation of statutes when section 17A of the Interpretation Acts 1948 and 1967 was inserted via Act A996 which reads: “17A Regard to be had to the purpose of the Act In the interpretation of provision of an Act, a construction that would promote the purpose of object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.” [51] Lord Denning in his book “The Discipline of Law, Lexis Nexis Butterworths, Indian Reprint at page 16, commented on the purposive approach of legislative interpretation: “The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the ‘purposive approach’ …….In all cases now in the interpretation of statutes we adopt such a construction as will ‘promote the general legislative purpose’ underlaying the provision. It is no longer necessary for the judges to wring their hand and say : ‘There is nothing we can do about it’. Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to 33 remedy it - by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind.” [52] Viscount Simon LC in Nokes v Donkaster Amalgamated Collieries Ltd [1940] AC 1014, a decision of the House of Lords, wherein His Lordship addressed the situation where at times courts are faced with a choice of interpretations. He said at page 1022: “If the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about the effective result.” [53] This court had adopted the purposive approach in legislative interpretation in various of its judgments, and one such instance is Tan Kim Hock Product Centre Sdn Bhd & Anor v Tan Kim Hock Tong Seng Food Industry Sdn Bhd [2018] 2 MLJ 1 where this court held that: “Section 9(1) of Act 730 merely provides that any person ‘may apply to the High Court….’ Supplementing the words ‘ex parte’ into the provision would certainly achieve the very purpose for the enactment of the provision and satisfy the mischief which the provision seeks to overcome. It is also in accord with the provisions of s 17A of the Interpretation Acts 1948 and 1967 on the purposive approach of interpretation. To borrow the words of Denning LJ in the Seafood Court Estates case, it is to give ‘force and life’ to the intention of the legislature.” 34 [54] Therefore, distilling from principles as laid out in the aforesaid cases, in construing the true purpose and object of the underlying statute by the Legislature, it is the function of the court to adopt an approach which produces a result that is fair, just and not bordering on absurdity. The approach is one that promotes the purpose and object of the statute concerned, albeit that such purpose or object is not expressly set out therein (refer to the Federal Court cases of Palm Oil Research and Development Board Malaysia v Premium Vegetable Oils Sdn. Bhd. [2005] 3 MLJ 97 at page 130 [79]; DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn. Bhd. [2002] 2 MLJ 11 at 26E; United Hokkien Cemeteries, Penang v The Board Majlis Perbandaran Pulau Pinang [1979] 2 MLJ 121 at 123 C-E. [55] Hence a purposive interpretation of section 8(4) of the LAA is required as opposed to a literal interpretation because: (i) This can lead to abuse of section 8(4) of the LAA. Quashing Form D in our case will send the wrong message and create a precedent which is unhealthy where proprietors of land could seek to invalidate acquisition of land by filing judicial review applications and thereafter delay the proceedings until over and beyond the 2 years of the acquisition gazette and claim damages. (ii) In applying for judicial review of the 1st land Inquiry, there was no application for stay of the land acquisition proceedings. By invalidating the entire land acquisition proceedings which includes the taking of formal possession after completion of the intended purpose of the 35 acquisition will create anomaly where public interest project will vest with private land owners. (iii) In this case upon taking formal possession after the issuance of Form K, an endorsement memorial was registered that the land has been acquired and has vested in the State Authority. Therefore a new Form D cannot be issued to acquire a land which is effectively already State Land and neither could the other provisions to acquire the land under the LAA would apply to State Land. (iv) In land acquisition, for land of which possession has been taken by the State Authority, the State Authority cannot withdraw from the acquisition by virtue of section 35 (1) of the LAA. (v) For a new Form D to be issued, the principles relating to the determination of compensation as stated in the First

Schedule

Schedule LAA will not apply as the land is no longer private land but State Land. (vi) If a new Form D is issued, the date would be based on the current date and the principles relating to the determination of the market value would be based on the date of the new Form D. This would be highly prejudicial to the acquiring authority as the intended public interest project, namely the SILK Highway has been completed on the land. The value of the land as of the date of the new Form D would certainly be higher than on the date of the 1st Form D (which was in 36 2002), by leaps and bounds in view of the time period from 2002 and the presence of the SILK Highway. That is certainly not the mischief section 8(4) of the LAA was enacted to satisfy. (vii) The LAA has to be read in a holistic fashion, in that, section 8(4) has to be read with sections 8(5) and 35 of the LAA, with the necessary modifications. The acquisition of the land will not lapse or cease after formal possession has been taken. [56] In light of the foregoing, a strict interpretation of the section would not only cause grave injustice and absurdity, it would also cause great inconvenience. [57] The Court of Appeal’s approach in interpreting section 8(4) of the LAA is correct, and does not warrant any appellate intervention. [58] Reverting to the first question, the way it is framed does not reflect or arise from the facts of the present case and neither does it flow from the decision of the High Court dated 10.12.2010. The Form D in our case had not lapsed and neither did the order of the High Court dated 10.12.2010 quash the said Form D. The 1st land inquiry was within the 2 year period from the date stated in Form D. Therefore Form D was very much alive even until the 2nd land inquiry. Hence we do not see the need to answer the 1st question. [59] In forming his view that section 8(4) of the LAA is clear and unambiguous where the validity of Form D is only for a period of 2 years 37 from the date of its publication in the Gazette, Mohd Yazid Mustafa J said in his judgment that he adopted the decision of the Court of Appeal case of the Emico’s case without really explaining how the aforesaid case is applicable to our present case. His Lordship was of the view that the 2nd land inquiry was “tainted for breach of section 8(4) of the LAA wherein the Form D which the second inquiry was premised upon had lapsed and has no legal effect”. He further said that “the second inquiry has no legal effect and made beyond the scope of the Land Acquisition Act”. [60] The aforesaid reasoning by the learned Mohd Yazid Mustafa J, failed to judicially appreciate the factual matrix of the present case. It is not a straightforward and isolated application of section 8(4) of the LAA. Hence the application by the learned Judge of the said section to the facts of our present case is flawed. [61] The facts of Emico can be easily distinguished. In Emico’s case the 1st inquiry and award for compensation was made on 18.10.1995 and was quashed on 3.8.1996. On the same date of 3.8.1996, an order for mandamus was issued directing the Land Administrator to conduct a 2nd land inquiry for the purpose of making a fresh award. The 2nd land inquiry was decided by the Land Administrator on 6.8.1997. Since Form D was published on 3.8.1995, the 2 year period under section 8(4) lapsed on 2.8.1997. Clearly in Emico’s case the mandamus order by the High Court was within the 2 year period but the 2nd award by the Land Administrator in pursuant to the court order dated 3.8.1996 was made after the 2 year period had lapsed. Unlike our present case the 1st award was within the 2 year period. When the 1st judicial review application was decided by the Hinshawati J in the 1st judicial review application, the 2 year period had already lapsed. But there was no order invalidating the land acquisition or 38 the original Form D as the Order of the Hinshawati Shariff J was only to proceed with a fresh inquiry before the Land Administrator. The further difference of Emico’s case is that, the land was acquired for and on behalf of Permodalan Kedah Bhd, not for public interest but for commercial purpose. Hence the issue of “public interest” does not arise as compared to our present facts where the acquisition was for the construction of a highway, namely the SILK Highway which is already completed and in full operation for public use. In addition, in Emico’s case there was no evidence that the acquiring authority had taken possession of the land and had carried out its intended commercial purpose, unlike the facts in the present case where the lands are already vested in the State Authority and the SILK Highway was already completed and being used by the public. The facts in Emico which led to the exposition of the law on section 8(4) of the LAA is only peculiar to the facts of that case and was never intended to be applied as a general exposition of the law on section 8(4) of the LAA irrespective of the facts. THE 2nd QUESTION [62] The 2nd question deals with the principle of res judicata and estoppel. It is whether res Judicata and estoppel can insulate a declaration in Form D, which would otherwise lapse and cease to have any effect pursuant to section 8(4) of the LAA, with legal effect. 39 Estoppel [63] It was argued by Orchard Circle that estoppel cannot be applied to prevent/evade the operation of a statute. Once there is a contravention of a provision of any statute, the doctrine of estoppel cannot be applied to prevent a person from contending what was done was illegal or void. Orchard Circle relied on Tenaga Nasional Berhad v Ichi Ban Plastics Sdn Bhd & Ors [2018] 3 CLJ 557 & Rhyl Urban District Council v Rhyl Amusements Ltd [1959] 1 WLR 465. We do not dispute the correctness of this contention by Orchard Circle in this respect, however the exposition of the doctrine to the facts of the case cited cannot be taken out of context. [64] In Tenaga Nasional Berhad’s case, the exposition of the law is that estoppel cannot apply when its effect is to stop a statutory body from enforcing its statutory right, namely to prevent Tenaga Nasional Berhad from collecting its scheduled rates which it was entitled to collect under the Electricity Act 1949. It is in this context that it was said that the Act enacted for the benefit of a section of the public and it is not open to the Court to allow the party bound by the statutory obligation to be barred from carrying it out by the operation of an estoppel. [65] The Tenaga Nasional Berhad’s case adopted the proposition of law in Public Textiles Berhad v Lembaga Letrik Negara [1976] 2 MLJ 58 and Ko Hoong v Leong Cheng Kweng Mines Ltd [1964] 1 AER 300. [66] The Federal Court in Public Textiles Berhad has set the guidelines to look for, when deciding whether the principle of estoppel applies in a particular case: 40 “Accordingly in cases of this kind the first duty of the court is to determine the nature of the obligation imposed by the statute on the parties which prevents the plea of estoppel being raised. If the statute is enacted for the benefit of someone other than the person against whom the estoppel is pleaded, then the doctrine of estoppel is excluded. Because the statute must be obeyed, it is sometimes called a “positive”, or an “imperative” statute. It is not always easy to decide whether a particular statute is laying down a positive duty or a negative one. Hence the issue is one of considerable difficulty, and importance.” [67] In the Privy Council case of Kok Hoong it sets down the principle that limits the application of estoppel in cases where statutory provisions are infringed: “Thus, despite the principle that limits estoppels where statutes are infringed, a litigant may be shown to have acted positively in the face of the court, making an election and procuring from it an order affecting others apart from himself, in such circumstances that the court has no option but to hold him to his conduct and refuse to start again on the basis that he has abandoned.” [68] In our present case, section 8(4) of the LAA was enacted solely for the benefit of the land owners. It is to ensure landowners whose land are affected by the acquisition are compensated adequately. The section is not meant to protect the public or a certain section of the public. In our present case, the principle of estoppel was not raised to bar a statutory obligation or to deprive any benefit to the public. It is in fact the opposite, namely, the mandamus order obtained was to direct the 1st respondent to conduct the 2nd land inquiry. 41 [69] The argument by SILK in relation to estoppel is with regard to the act or conduct of Orchard Circle and has nothing to do with estoppel against an ultra vires act under a statute. In the 1st judicial review application, Orchard Circle applied for the following reliefs: “ (1) An Order for Certiorari to remove into this… court and to quash the decision and award of compensation made by the Land Administrator of the District of Ulu Langat on 24.12.2002 for the acquisition of parts of Lots 8630 and 2630 held under Geran No. 30006 in the Mukim of Kajang, District of Ulu Langat, State of Selangor Darul Ehsan; (2) An Order of Mandamus directed to the Land Administrator to make an award of compensation in the sum of RM 16, 745,970.00 or in accordance with the law and taking into account the Valuation Report dated 2.9.2002 to arrive at a just reward in the circumstances of the case; (3) Alternatively to paragraph (2) above, that the applicant be granted damages in the sum of RM 16, 745, 970.00 based on the evidence before the Land Administrator namely the Valuation Report dated 2.9.2002; (4) That alternatively to paragraphs (1), (2) and (3) above the Applicant be granted a Declaration that the acquisition or taking into possession of the Applicant’s lands which form parts of Lots 8630 and 2630 held under Geran No. 30006 in the Mukim of Kajang, District of Ulu Langat, State of Selangor Darul Ehsan by the State Authority and/or the Land Administrator of the District of Ulu Langat is null and void and of no effect; 42 (5) That further to paragraph (d) above the Applicant be granted a Declaration that the Applicant is the lawful proprietor of the said lands and entitled to possession thereof or in lieu thereof damages; (6) That the Applicant be at liberty to apply for all reliefs provided for under Paragraph 1 of Schedule to the Courts of Judicature Act 1964 and Section 25 of the same Act (7) ……. (8) ……..” [70] The 1st judicial review application was allowed when Hinshawati Shariff J made the following orders: “(1) suatu Perintah Certiorari yang memindah ke Mahkamah yang mulia ini dan membatalkan keputusan dan award pampasan yang dibuat oleh Responden Pertama pada 24 Disember 2002 untuk pengambilan sebahagian Lot-Lot 8630 dan 2630 yang dipegang di bawah Geran No: 30006 dalam Mukim Kajang, Daerah Ulu Langat, Negeri Selangor Darul Ehsan (Tanah-Tanah tersebut); (2) suatu Perintah Mandamus bahawa perkara ini dikembalikan kepada Responden Pertama untuk menjalankan satu siasatan penuh atas pengambilan Tanah-tanah tersebut di bawah Akta Pengambilan Tanah 1960 di mana siasatan tersebut dikehendaki bermula dalam tempoh masa 30 hari dari tarikh Perintah ini; (3) satu Perintah pihak-pihak diberi kebenaran untuk memohon berkenaan perlaksanaan terma-terma perintah ini; dan 43 (4) suatu Perintah bahawa Responden-Responden membayar kos yang ditaksirkan kepada Pemohon.” [71] It is to be observed that despite Orchard Circle praying in its relief for a declaration that the acquisition or taking into possession of the Applicant’s lands by the State Authority and/or the Land Administrator is null and void and of no effect, in the 1st judicial review application, Hinshawati Shariff J did not grant such relief in her Order dated 10.12.2010. Neither did she quash Form D. This means Form D and the acquisition and the taking of possession of the land is valid. Orchard Circle did not appeal against this Order dated 10.12.2010. [72] In compliance with this Order by the court dated 10.12.2010, the Land Administrator proceeded with the 2nd land inquiry based on the original Form D pursuant to section 12 of the LAA. Orchard Circle had participated in the 2nd land inquiry. [73] It was at the 2nd land inquiry that Orchard Circle raised the issue on the Form D which had lapsed because it was beyond the 2 years from the date of Form D. The election by Orchard Circle not to appeal on the Order dated 10.12.2010 to take this course of action and has benefited under or arising out of the course of conduct which they have first pursued and with which their subsequent conduct, is inconsistent with their election. After taking advantage and benefitting from their election, they must be precluded from saying that it is invalid and ask to set it aside. [74] It was argued by counsel for Orchard Circle that the reason why Orchard Circle did not appeal against the order of Hinshawati Shariff J was that they had succeeded in getting a certiorari which means that Form 44 D was quashed. This argument has no leg to stand on because Hinshawati Shariff J did not make any order of declaration that the land acquisition or the taking into possession of the lands was null and void and neither did she quash Form D. Therefore Orchard Circle should have appealed against the decision of Hinshawati Shariff J if they wish to have Form D quashed and declare the land acquisition void. [75] On a similar issue, the case of Meng Leng Development Pte Ltd v JIP Hong Trading Co. Pte. Ltd [1985] 1 MLJ 7 is instructive. There the relief prayed for was for specific performance. However the learned Judge granted damages in lieu of specific performance because the property in question was already sold to a third party. The appellants appealed for a reduction of the damages granted to the respondent. However the respondent enforced the order for damages and obtained the payment for the damages which was awarded by the court. On appeal to the Court of Appeal the order for specific performance was granted on a cross appeal which was filed by the respondent after the Court of Appeal pointed out that the right of specific performance is not affected by the act of the sale to third party. On appeal to the Privy Council it was held that: “In Spencer, Bower and Turner “The law relating to Estoppel by Representation” 3rd Edition (1977), paragraph 310 summarises the doctrine of election as applied to the law of estoppel as follows: “When A dealing with B, is confronted with two alternative and mutually exclusive courses of action in relation to such dealing between which he may make his election, and A so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course, and 45 definitely to reject or relinquish the other, and B in such belief alters his position to his detriment, A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting. It is of the essence of election that the party electing shall be “confronted” with two mutually exclusive courses of action between which he must, in fairness to the other party, make his choice.” In the present case the purchaser could not take the damages and obtain specific performance. By demanding and accepting the deposit of the damages the purchaser chose to adopt the order of the trial Judge and relinquished the right to appeal for that order to be set aside and for specific performance to be substituted. The vendor altered its position to its detriment by raising and paying $297, 500 on November 12, 1981. The vendor had been deprived of that sum ever since. After the judgment of A.P. Rajah J. the purchaser was indeed confronted with two alternative and mutually exclusive courses of action, namely, to enforce the award of damages or to seek to persuade the Court of Appeal to set aside the award of damages and to substitute the remedy of specific performance. By procuring the payment of the damages of $297,500 the purchaser accepted the judge’s order. If the purchaser had served a notice of appeal seeking specific performance or had informed the vendor that the purchaser intended to seek an order for specific performance from the Court of Appeal, the vendor would have been able to refuse to place the damages on deposit and would have been entitled to renew and to succeed in an application for a stay of execution with regard to the damages pending the hearing of the purchaser’s appeal seeking specific performance. 46 Paragraph 322 of the cited work by Spencer, Bower and Turner relating to election in the conduct of litigation is in these terms- “Where a litigant has taken the benefit, in whole or in part, of a decision in his favour, he is precluded from setting up in any subsequent proceedings between the same parties, by way of appeal or otherwise, that such decision was erroneous , or, though correct as to the part which was in his favour, was wrongly decided as to the residue.” [76] Similarly, in our present appeal, Orchard Circle had benefitted from from the 1st judicial review, the effect of which was the quashing of the 1st award (certiorari) and proceeded with a 2nd land inquiry (mandamus) of which Orchard Circle had participated. The order for mandamus by Hinshawati Shariff J indicated that Form D was still valid. Hence Orchard Circle is precluded and estopped from challenging the validity of Form D in the 2nd judicial review application. By proceeding with the 2nd land inquiry before the Land Administrator and participating in it, it is to be taken that Orchard Circle elected and accepted that the issue before the Land Administrator then is on the decision and award of compensation and damages only. [77] That was the position taken by Orchard Circle after the 1st judicial review proceedings, but is now taking a different stance. Clearly the doctrine of estoppel applies in this case. Res Judicata [78] The issues regarding the validity of the acquisition proceedings and whether Orchard Circle is the rightful proprietor of the said Lands 47 were issues before the learned Judge in the 1st judicial review proceedings, premised on the reliefs sought for in the same. The current reliefs sought by Orchard Circle in the 2nd judicial review application are the same reliefs which had been denied by Hinshawati Shariff J in the 1st judicial review application. Hence the issues have been disposed in finality by parties then. It would be an abuse of process to allow Orchard Circle to renew its challenge on the propriety of the land acquisition proceedings when it challenged Form D in the 2nd judicial review proceedings. This would amount to a back door appeal against the High Court Order dated 10.12.2010 in the 1st judicial review application. Peh Swee Chin FCJ in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 in delivering the judgment of the Court explained the concept of Res judicata which means that when a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata as the judgment becomes the truth between the parties. The rationale is that there should be finality in litigation and that no one should be vexed twice for the same cause or issue. [79] For the doctrine to apply, the same issue must have been raised and decided in an earlier proceeding or action in which the parties are represented. It is not open for the same issue to be litigated afresh between the same parties. 48 Lord Sumption sitting in the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Limited [2013] UKSC 46, described the doctrine as: “…a portmanteau term which is used to describe a number of different legal principles with different judicial origins”. [80] The thrust of the doctrine is to prevent a party from re-litigating an issue or a defence which has already been determined (known as cause of action estoppel or issue estoppel) or which could have previously been litigated. The latter principle had been established in the case of Henderson v Henderson (18430 3 Hare 100) and ensured, as a matter of important public policy, the finality of judgments so as to prevent a party from being vexed twice and a waste of judicial resources. As it is not always easy to identify where one concept begins and another ends, Lord Sumption (in delivering the unanimous judgment of the Supreme Court) in the Virgin Atlantic case gave some clarification to the term with identifying the six principles which make up the doctrine, which are: (a) A party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel); (b) If a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (i.e. to recover further damages); 49 (c) The doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the Claimant’s only right is the judgment itself; (d) A party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel); (e) A party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the ‘Henderson v Henderson’ principle); (f) There is a general procedural rule against abusive proceedings. It must also be shown that the earlier judgment necessarily and with precision determined the point in issues to constitute res judicata. (See Hoystead v Taxation Commissioner [1926] AC 155;Carl –Zeiss-Stiftung v Rayner & Keeler Ltd & Ors [1966] 2 AER 536 at page 565;Tong Lee Hwa & Another v Lee Yoke San [1976] MLJ 24; [81] Apart from the issue of section 8(4) of the LAA, the fact remains that the issues regarding the validity of the acquisition proceedings and whether Orchard Circle was still the lawful proprietor of the said lands were previously raised in the 1st judicial review application and it will be an abuse of court process to allow Orchard Circle to renew its challenge on the propriety of the land acquisition proceeding in the 2nd judicial review proceeding. Clearly these 2 issues are caught by the doctrine of res judicata. (Refer to Lai Yoke Ngan & Another v Chin Teck Kwee & 50 Anor [1977] 2 MLJ 565 and Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133). [82] Therefore, Orchard Circle is estopped from claiming for an order of certiorari to quash Form D now (Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 at 293 C-F and 294 H-I). The Court of Appeal was correct to have found that it would not be just and equitable to allow Orchard Circle to ventilate on the issue of Form D in the 2nd judicial review application. [83] The 2nd question as framed, does not appear to flow from the facts of this case. The applicability of the doctrine of estoppel and res judicata was an election made by Orchard Circle in the conduct of litigation, which is peculiar to the case before us. There was no issue of Form D lapsing in our case because the original Form D is still valid even during the 2nd land inquiry. [84] In the present case, the doctrine of estoppel and res judicata was not applied to override section 8(4) of the LAA as there was no contravention of section 8(4) of the LAA in the first place because the 1st award was made within the 2 year period. [85] Hence the 2nd question framed by Orchard Circle is therefore misconceived. It was never the argument by SILK that the doctrine of estoppel and res judicata clothed Form D with legal validity which would otherwise be invalid. It is the conduct of Orchard Circle in not appealing against Hinshawati Shariff J’s Order which estopped it from raising the issue of Form D/section 8(4) of the LAA in the 2nd judicial review proceedings. These issues ought to have been raised in the 1st judicial 51 review application, in which the issues or matter had been decided in finality. [86] Therefore we do not see the need to answer the 2nd question as framed, in view of the facts of the case. CONCLUSION [87] To sum up: (i) for the 1st question, it does not arise from the facts of the present case and neither does it flow from the decision of the High Court dated 10.12.2010. Form D did not lapse and neither did the High Court Order dated 10.12.2010 quash Form D; (ii) for the 2nd question, it was never the submission of SILK that estoppel/res judicata clothed Form D with legal validity, which would otherwise be invalid. It was the conduct of Orchard Circle in not appealing against Hinshawati Shariff J’s order which estopped it from raising the issue of Form D/section 8(4) of the LAA in the 2nd judicial review proceedings. Those issues ought to have been raised in the 1st judicial review application, in which the issues or matter had been decided in finality. Hence, we find no necessity to answer both the questions posed. 52 [88] Given the aforesaid, we hereby unanimously dismissed the appeal by Orchard Circle with costs of RM25,000.00 to 1st and 3rd Respondents, RM25,000.00 to 2nd and 4th Respondents and RM50,000.00 to 5th Respondent. The decision of the Court of Appeal is affirmed. Signed by: Zabariah Mohd Yusof Judge of the Federal Court, Putrajaya. Dated: 13.11.2020 COUNSEL: Dato’ Cyrus Das, Dato’ Ambiga Sreeneevasan, Shireen Selvaratnam for the Appellant [Messrs Sreenevasan] Dato’ Masri Mohd Daud, Siti Fatimah Talib, Etty Eliany Tesno for the 1st and the 3rd Respondents [State Legal Advisor Office of Selangor] Zaliha Mohd Janis for the 2nd and 4th Respondents [Attorney General’s Chamber] B. Thangaraj, Karen Lee Foong Voon, Carmen Cheah Kha Mun for the 5th Respondent [Messrs Wong Kian Kheong]