Prasarana Malaysia Berhad v Pentadbir Tanah Daerah Klang (BA-15-75-11/2020)

Double Award Issue;

(ii) Termination Issue;

(iii) Restoration Issue. Factual Background [3] The facts of this application as gleaned from the documents filed by parties are as follows. [4] This land reference relates to the temporary occupantion or use of a piece of land held under HSD 298847, Lot No. PT 2562, Seksyen 13, Mukim Bandar Shah Alam, Daerah Petaling, Negeri Selangor Darul Ehsan (“the Subject Land”). [5] Shah Alam City Centre Sdn Bhd (“SACC”) is the registered proprietor of the Subject Land. [6] The temporary occupation or use of the Subject Land was procured by the respondent (“Land Administrator”) for the construction of the project of Light Rail Transit 3 (LRT) from Bandar Utama to Johan Setia, Klang (“Project”) for a term of three (3) years (1.11.2017 until 31.10.2020). [7] On 11.10.2017, the Land Administrator made an award for compensation of the temporary occupation or use of the Subject Land to SACC (“the First Award”). Pursuant to the First Award the compensation sum of RM7,946,637.60 for the Subject Land is payable by Prasarana to SACC every six (6) months for a three (3) year term of temporary occupancy of the Subject Land. [8] On 12.11.2018, Notice of Restoration of the Land was issued via Form 9, to inform SACC that an investigation of the Subject Land will be conducted for the termination of the temporary occupation or use of the Subject Land pursuant to Section 59 of the LAA 1960. [9] At the material time, the rental for the unexpired period of the temporary occupation (of two years) totalling RM31,786,550.40 under the First Award remained unpaid; [10] Following the early termination of the temporary occupation, the Land Administrator had, after the enquiry, awarded a sum of RM31,786,550.40 via Form R dated 19.5.2020 as a compensation/damage done to the Subject Land/restoration of the Subject Land (“the Second Award”). [11] Dissatisfied with the Second Award, Prasarana filed Form N dated 24.6.2020 (“Prasarana’s Form N”) to object against the quantum of the Second Award on the ground that the total compensation awarded by the Land Administrator in the sum of RM31,786,550.40 was too high. [12] Following the lodgement of the Form N by Prasarana, the Land Administrator on 9.11.2020 referred Prasarana’s objection to this court. [13] Following the filing of Prasarana’s Form N by Prasarana, SACC applied for an extension of time to file Form N dated 12.1.2021 (“SACC’s Form N”) and a declaration that SACC has the right to be heard and/or participate any proceedings in relation to/challenging the compensation or award by the respondent via Originating Summons No.: BA-24NCVC-983-09/2020. The learned High Court Judge, had granted/allowed the reliefs prayed as stated in the sealed Order dated 8.1.2021 (“Order 983”). [14] In furtherance to the filing of Prasarana’s Form N and SACC’s Form N by the respective parties, the Land Administrator had referred both Form N to this court, namely, Land Reference No.: BA-15-75- 11/2020 (“Prasarana’s Land Reference”) and Land Reference No.: BA-15-10-03/2021 (“SACC’s Land Reference”). [15] Prasarana had on numerous case management fixed by the court in Prasarana’s Land Reference failed, refused and/or neglected to comply with this court’s directions and/or to attend. The High Court had then, heard Prasarana’s Land Reference and SACC’s Land Reference together and ordered that, inter alia, Prasarana’s Land Reference to be struck out; and SACC’s Land Reference be withdrawn with the liberty to reinstate if Prasarana’s Land Reference is reinstated. [16] Subsequently, Prasarana filed an application to reinstate Prasarana’s Land Reference and the said application was allowed by this Honourable Court on 6.10.2022. [17] On 21.12.2022, Prasarana filed a leave application to raise additional grounds of objection in Prasarana’s Land Reference (Enclosure 51). Governing Law [18] In Prasarana’s application before this court, Prasarana quoted subsection 38(2) of the LAA. Subsection 38 (2) of the LAA provides: “38. (2) Every application under subsection (1) shall state fully the grounds on which objection to the award is taken, and at any hearing in Court no other grounds shall be given in argument, without leave of the Court.” [19] Caselaw has established that the applicant is not entitled to raised additional grounds unless leave of court had been sought and granted. [Sin Yee Estate Sdn Bhd (now known as Y & Y Estate Sdn Bhd) v Pentadbiran Tanah Daerah Kinta [2006] 1 MLJ 12.] [20] The procedure to raise additional grounds is by way of a formal application supported by an affidavit, in accordance with the requirements of the Rules of High Court 1980. [Tan Yen Foon v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2008] 1 MLJ 250]. [21] In the Supreme Court case of Damansara Jaya Sdn Bhd v. Pemungut Hasil Tanah Petaling [1992] 2 MLJ 660, it was held that before an objector is allowed to raise a new ground of objection to an award of the Collector in the course of the reference proceedings, the leave of the court must be obtained by making a separate application to the court supported by an affidavit explaining the reasons for the additional grounds of objection in accordance with the Rules of the High Court 1980. Analysis and Findings [22] Prasarana submitted that there was no affidavit in reply filed by the Land Administrator in opposition of Prasarana’s affidavit in support of Enclosure 51. In support of this contention, the applicant cited the cases of Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287 and Ng Hee Thong v Public Bank Bhd [1995] 1 MLJ 281. [23] However, there were affidavit filed in opposition by SACC, the landowner. SACC’s affidavits have not been unrebutted or admitted. [24] This court will first consider the issue of SACC’s locus standi. Locus Standi of SACC [25] Pertaining to the issue of SACC’s locus standi which was raised by Prasarana, Prasarana’s objection are:

SACC is not a party to Prasarana’s Land Reference;

(ii) no application was filed by SACC to intervene in the present land reference; and

(iii) no order was made by this court to consolidate both Prasarana’s Land Reference and SACC’s Land Reference. [26] The facts of this application are that SACC is the land owner of the Subject Land of the Prasarana Land Reference. The High Court had granted an order that SACC had a right to be heard and/or participate in nay proceedings in relation to/challenging the compensation or award by the respondent. The sealed order is dated on 8.1.2021 (Order 983). [27] In the Federal Court case of Spicon Products Sdn Bhd v Tenaga Nasional Bhd [2022] 2 MLJ 721, Her Ladyship Mary Lim FCJ stated the following at paragraphs 83 and 84: “[83] With respect, we disagree. Given our earlier observations on how references are more in the character of a contested originating process, that there are parties to the reference, that the reference is on an objection which relates ultimately to the matter of determining the question of adequacy of compensation under art 13 of The Federal Constitution, the landowner obviously and rightly has an interest to be added as a party and to appear at the reference proceedings. Intervention for this purpose is far from converting the appellant from a person who has accepted the award without protest and who has no objections to the award, to a person who now objects to the award. [84] The landowner’s appearance and participation at the reference proceedings is, in our view, consistent with its rights and interests under art 13 and the construction and interpretation of Act 486 should always have that as a forefront consideration. In fact, its participation is consonant with the rules of natural justice and will assist the court in its determination of the objection lodged.” [28] SACC is the land owner of the Subject Land in Prasarana’s Land Reference. On 23.9.2021, the High Court Judge had stated that both Prasarana’s Land Reference and SACC’s Land Reference should be heard together as both the land reference proceedings are concerned with the same Subject Land. [29] Moreover, it must be mentioned that Prasarana had served a copy of this application in Enclosure 51 to SACC. This in itself indicates to this court that Prasarana is well aware and acknowledges that SACC being the landowner of the Subject Land has an interest and a right to be heard during the application in Enclosure 51. [30] For the aforementioned reasons, this court is satisfied that SACC has locus standi in this application. Enclosure 51 [31] Having considered the issue of SACC’s locus standi, this court will proceed to consider the application for leave additional grounds of objection [Enclosure 51]. [32] Prasarana is seeking to obtain leave of this court to raise additional grounds of objection in the course of land reference proceedings. The additional grounds which Prasarana seeks to include are Double Award Issue, Termination Issue and Restoration Issue. [33] SACC as the landowner of the Subject Land objected to this application. [34] In order for leave to be granted to Prasarana to raise additional grounds of objection in a land reference proceedings, the test to be applied by this court is the sufficient reasons test. This test was expounded in case law authorities. [35] In Pamol Plantations Sdn Bhd v. Pentadbir Tanah Kluang [2009] 5 MLRH 364, it was held at page 368 of the law report: “[28] The only requirement imposed was that an affidavit in support explaining the reasons for the additional grounds of objection had to be filed as a preliminary step before the hearing of the actual reference (see page 664 of the judgment). It would appear that as long as sufficient reasons are shown, leave should be granted. [30] I am of the view that based on the reasons disclosed, the door should also not be shut for the applicant to raise this new ground of objection to the award of the Land Administrator.” [Emphasis added] [36] It was submitted by learned counsel for Prasarana the Double Award Issue and Termination Issue concerns the validity of the law and hence should be raised in Prasarana’s Land Reference proceedings. In support of this contention, learned counsel made reference to the cases of Perbadanan Pengurusan Sunrise Garden Kondominium v Sunway City (Penang) Sdn Bhd & Ors And Another Appeal [2023] 2 CLJ 333, Peringkat Istimewa Sdn Bhd v Pua Kim An [2016] MLRHU 1347 and Bank Bumiputra Malaysia Bhd v Emas Bestari Sdn Bhd [2014] 2 MLJ 49. [37] It was further argued that the land reference proceeding is an original hearing at the High Court and not a mere process of court scrutinizing records. [See: Spicon Products Sdn Bhd (supra)] [38] Prasarana argued the Second Award to be defective. The Second Award, it was submitted could be set aside by this court using the inherent powers of this court. [See: Badiaddin Mohd Mahidin & Anor v Arab Malaysia Finance Bhd [1998] 2 CLJ 75] [39] In support of its application in Enclosure 51, Prasarana admitted to its inadvertent omission to include the restoration issue in Form N, and now seeks this court’s leave to add this objection in Prasarana’s Land Reference. [40] According to Prasarana, it was not legally represented at the land enquiry and when filing Form N. In short, Prasarana is stated that it did not have the benefit of legal advice and had no intention to waive its objection to the second award. [41] Subsection 38 (1) of the LAA states any objection made under section 37 shall be made by a written application in Form N to the Land Administrator requiring that he refer the matter to the Court for its determination. [42] Subsection 38 (2) of the LAA provides that every application under subsection (1) shall state fully the grounds on which objection to the award is taken. At the hearing in court no other grounds shall be given in argument, unless with the leave of the Court. [43] Subsection 38(2) of the LAA allows an applicant for a land reference under the LAA to raise additional grounds only if leave of court has been obtained. [44] Leave of court to raise additional objections in a land reference proceedings maybe done by way of a formal application supported by an affidavit, in accordance with the requirements of the Rules of High Court 1980. [Tan Yen Foon v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2008] 1 MLJ 250]. [45] The test to be applied by court in determining whether leave ought to be granted is the sufficient reason test. In this Enclosure 51 application, Prasarana stated that Form N was filed without the benefit of any legal advice and inadvertent omission. [46] To consider this application by Prasarana, this court alluded to the Federal Constitution which guarantees a person to a right to property in Article 13. [47] Proceedings relating to land acquisition are governed by the LAA which must be strictly adhered to. [See: Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v. Inch Kenneth Kajang Rubber Ltd & Anor Other Appeals [2011] 4 MLJ 403] [48] Under the LAA, awards of compensation for compulsory acquisition are assessed and decided on by a land administrator under Section 14 of the LAA. Section 36 of the LAA then goes on to confers jurisdiction on the High Court to determine any objection in respect of an award made by the land administrator. [49] Section 37 of the LAA provides the basis on which an aggrieved party may have the right to object to the award of the land administrator by way of a land reference to the High Court provided that the total amount awarded in compensation in respect of the acquired land is not less than three thousand ringgit. [50] An aggrieved party may have the right to object make objection to the measurement of the land; the amount of the compensation; the persons to whom it is payable; and the apportionment of the compensation. [51] In the Form N filed by Prasarana objecting to the award of the land administrator, Prasarana had stated “Jumlah pampasan yang ditawarkan oleh pentadbir tanah terlalu tinggi sebanyak RM3,786,550.40 memandangkan lot ini merupakan tanah yang ditarik balik mengikut Seksyen 35, Akta Pengambilan Tanah 1960”. [52] According to Form N filed by Prasarana, Prasarana was objecting to the amount of compensation awarded by the land administrator. Prasarana now seeks to include the following in its objection:

Double Award Issue;

(ii) Termination Issue;

(iv) Restoration Issue. [53] Prasarana contendes that when Form N was filed, Prasarana was not legally represented at the enquiry. Prasarana did not have legal advice. It was not Prasarana’s intention to waive the additional grounds. There was an inadvertent omission on the part of Prasarana. [54] The fact is that Prasarana is a public listed company. It is not an individual who had no access to legal advice. Prasarana’s position can be distinguished from a lay person. This court finds it perplexing that as a public listed company with its own in-house legal department, Prasarana failed to file the Form N without any legal advice. [55] Prasarana is a corporation which has access to a team of valuers and legal advisers. It appears to this court that Prasarana who has a team of valuers and legal advisers had slept on its rights. In the view of this court, Prasarana cannot now come to the court seeking leave for additional grounds when Prasarana had all the support and manpower to ensure Form N was filed to reflect the objection of Prasarna to the Land Administrator’s award. [56] This court is therefore satisfied, the reasons put forth by Prasarana is insufficient reasons and there are no reasonable reasons or justification which would allow this court to allow this application. See: Singapore Para Rubber Estate Lt d v Pentadbir Tanah Daerah Rembau, Negeri Sembilan [2009] 1 CLJ 13; [2008] 6 M LJ 763. Amendment to Form N [57] The land reference proceedings are premised on Form N which is filed. This is by virtue of sections 37 and 38 of the LAA. The Form N is the “terms of reference” for which the land reference proceedings are to be conducted. In the event an applicant does not include his or her objection in Form N, the court cannot consider this objection. [58] In the cases of Noor Azzah binti Jaafar v Jabatan Ketua Pengarah Tanah dan Galian Persekutuan [2021] MLJU 1885 and Perbadanan Bekalan Air Pulau Pinang Sdn Bhd v Pentadbir Tanah Daerah Seberang Perai Tengah dan Satu Lagi [2022] MLJU 633, the High Courts had laid out the requirement to amend Form N to include the additional grounds of objection by the applicant. [59] In this application, Prasarana had failed to file an amendment to Form N together with its application seeking leave from this court for additional grounds of objection. Conclusion [60] For the aforesaid reasons, this court dismissed this application with no order as to costs. Date: 08 August 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For the Applicant Justin Leong Chee C’jon Tetuan Christopher & Lee Ong Advocates & Solicitors Level 22, Axiata Tower, No. 9, Jalan Stesen Sentral 5, Kuala Lumpur Sentral. 50470 Kuala Lumpur. yee.keat.heng@christopherleeong.com +6 03 2273 1919 For the Respondent: Mohd Abdul Hakim bin Mohd Ali Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan, Tingkat 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah 40512 Shah Alam, Selangor. +6 03 5544 7183 For the Landowner Lum Kok Kiong, Tan Ming Chu Tetuan Lum Kok Kiong & Co. Advocates & Solicitors L-7-16, Level 7, Office Suites, Brem Mall, Jalan Kepong 52000 Kuala Lumpur. general@lkkco.com.my +6 03 6242 9768