(viii) Shah Alam High Court Application for Judicial Review No. BA- 25-27-06/2023 (“JR27”) – Challenges the Minister of Works' decision to withdraw the land acquisition. [9] Among the nine legal proceedings, JR 74 is particularly relevant to the current case. JR 74 involved the applicant’s judicial review against (1) the Land Administrator, District of Gombak, and (2) the Director of Land and Mines, Selangor, seeking payment of the compensation awarded under Form H. The court ruled in favor of the applicant, and a Certificate of Judgment under Section 33 of the Government Proceedings Act 1956 (“Section 33 Certificate”) was issued on 15 June 2023. [10] Through a letter dated 6 September 2022, the applicant’s solicitor demanded payment of the certified sum, including interest, totaling RM13,223,471.18, from the State Legal Advisor for Selangor, with a copy sent to the Land Administrator. [11] The State Authority has yet to make any payment to the applicant. [12] Subsequently, by way of the applicant’s solicitor’s letter to the respondent, the applicant demanded for the payment of the certified sum together with interest totalling RM13,819,845.41. [13] To date, the respondent has not made any payment to the applicant. Analysis [14] The applicant argued that the respondent, the Selangor State Financial Officer has a statutory duty to pay the certified sum and the interest accrued pursuant to section 33 (3) of the Government Proceedings Act 1956. [15] According to the applicant, the respondent is responsible for making payment as the respondent is the State Financial Officer. It was further contended that as there was no appeal against the High Court Order dated 4 August 2022, Order dated 15 June 2023 and the section 33 certificate dated 15 June 2023, the respondent is compelled to honour the section 33 certificate. [16] In this regard the Applicant submitted that Pursuant to Article 52(1)(c) read together with Article 85(1)(c) of the Laws of the Constitution of Selangor 1959, any money required to satisfy any judgment should be charged to the consolidated fund of the State and the State Financial Officer is the principal officer in charge of financial affairs of the State. Therefore, the respondent must ensure that the State Authority complies with the court orders and make payment in accordance with the Section 33 Certificate. [17] The respondent opposed this application for mandamus. According to the respondent, the crux of this case is to determine on whether the respondent has the legal duty to make the payment by virtue of the certificate issued under section 33 of Government Proceedings Act. [18] The respondent contended that the key point is that it is undisputed that the payment in question is related to compensation for land acquisition. The applicant's Affidavit refers to a gazette under section 8 of the Land Acquisition Act 1960, indicating that the land was acquired for the EKVE project. Since the acquisition is for the purpose of constructing a highway ("lebuhraya"), the question arises whether this falls within the respondent's jurisdiction. [19] In support the respondent cited the cases of Beta Tegap Sdn Bhd v Majlis Perbandaran Sepang (Attorney General of Malaysia, the intervener) [2013] 10 MLJ 240 which alluded to Article 74 clause (1) of the Federal Constitution: “(h) art 74 cl (1) of the Federal Constitution empowers Parliament to make laws with respect to any matter enumerated in the Federal List in the Ninth Schedule to the Federal Constitution. If we look at the Federal List, one of the matters is communication and transport which includes roads, if declared to be federal by or under federal law; regulation of traffic by land within one state, carriage of passengers or goods by land and mechanically propelled vehicles.” [20] It was argued by the respondent that the power to legislate on highways falls under the Federal Government's jurisdiction. The Lembaga Lebuhraya Malaysia (LLM) and the Ministry of Works (KKR) oversee highway planning and land acquisition under the Land Acquisition Act (LAA). The Concession/Privatisation Agreement must be adhered to, but since the respondent is not a party to it, the respondent ought not be held liable for contractual consequences. As parties to the agreement, KKR and LLM have a legal interest in the compensation due to EKVE and act as the paymaster, making them "persons interested" in the compensation process. The respondent cited the case of Sistem Penyuraian Trafik KL Barat Sdn Bhd v Kenny Heights Development Sdn Bhd & Anor [2009] 3 MLJ 809 in support of this contention. [21] The fact of this case is that the certificate under section 33 of the Government Proceedings Act 1956 was issued for non-payment of compensation from a land acquisition. The land acquisition was conducted by the state authority. In the view of this court, regardless of the purpose of the land acquisition, be it for federal or state purpose, the authority that carried out the land acquisition is the state authority. [22] Moreover, before this court, there is a Section 33 Government Proceedings Act 1956 which has been issued. This section 33 certificate still stands. There was no appeal against this certificate issued. Nor was the certificate set aside. The section 33 Government Proceedings Act 1956 certificate therefore stand and is valid. The law pertaining to this is that the duty to pay is not discretionary. [23] The respondent also raised an argument that due to ongoing court cases, [BA-15-140-06/2019, BA-15-141-06/2019, BA-25-122- 11/2019, BA-25-123-11/2019, BA-24NCVC-1294-09/2019, BA- 21NCVC-31-06/2019 and BA-21NCVC-23-05/2020] there is no finality in the amount to be paid. Respectfully, this court finds this argument untenable as the certificate pursuant to section 33 GPA has been issued and the respondent did not file an appeal or set aside the certificate. [24] Pertaining to the argument that the acquisition is for the Federal Government purpose, the acquisition enquiry and the process of the land acquisition was conducted by the Federal’s Officer from Jabatan Ketua Pengarah Tanah dan Galian (“JKPTG”) i.e. Encik Hasnan bin Abdullah. Due to this, it was submitted that the land acquisition is performed and falls within the purview of the Federal Government’s jurisdiction. [25] This court took an analogy of the State Financial Officer and the State Legal Officers who are federal officers but carrying out the state functions. Just because the officers are federal officers, does not immediately mean that function carried out is for the federal government. This argument, in the view of this court does not hold water. [26] In Menteri Besar Negeri Pahang Darul Makmur v Seruan Gemilang Makmur Sdn Bhd [2010] 5 CLJ 123 case, Sulaiman Daud JCA stated: “[38] In MP Jain’s Administrative Law of Malaysia and Singapore (2nd Ed, 1980) the learned author said, at pp 449 and 450: … Mandamus can be granted only when a legal duty is imposed on an authority and the applicant has a legal right to compel the performance of the public duty prescribed by law, and to keep the subordinate bodies and officers exercising public functions within the limit of their jurisdiction. Mandamus is thus a very wide remedy which is available against a public officer to see that he does his duty. What can be enforced through mandamus is a duty of a public nature the performance of which is imperative and not optional or discretionary with the concerned authority. Thus, if an officer has a power rather than a duty, and he does not use his power, mandamus cannot be issued. [39] Section 44(1) of the SRA also empowers the court to make an order in the nature of mandamus against any person holding public office requiring him to do certain specific acts subject to the fulfillment of the five provisos set out therein (see MP Jain’s Administrative Law of Malaysia and Singapore, at p 452). However it expressly provided in sub-s (2)(b) thereof that nothing in that section ‘shall be deemed to authorize a Judge to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a claim upon that Government’. [40] It is clear from the aforesaid passages that the order of mandamus could be issued to enforce the performance of a public duty where there has been a failure to perform the same. However it cannot be used as a remedy to compel the exercise of a power by any person or authority. In the present case, the question as to whether there is a duty on the part of the appellant to pay the judgment sum pursuant to the s 33 certificate could, in my view, be answered by reference to the provisions of the state Constitution and the laws relating to financial matters for the time being force in the state. … [46] In the present case the effect of the order against the appellant is to compel him to make the payment of the judgment sum pursuant to the s 33 certificate. It is clear from the passages referred to above that the order of mandamus is to compel the performance of a duty and not the exercise of a power. As such the question here is not whether the appellant has the power to make or order the making of such payment but rather whether he has a duty or obligation to make such payment. Upon perusal of the provisions of the state Constitution and the FPA, I find nothing therein that imposes such a duty or an obligation upon the appellant. The duty to make payment in satisfaction of a judgment debt against the state relates to financial affairs of the state which lies in the hands of the state financial officer. As such, I am of the view that the learned trial judge has erred in law in granting the order of mandamus against the appellant to compel him to pay the said judgment sum pursuant to the s 33 certificate.” [27] In the case of Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 the Federal Court stated: “[48] In the present case it is not in dispute that the respondent had complied with the provisions of the said s 33 but no payment was forthcoming from the appellant. In the light of that the respondent applied to the court by way of judicial review for an order of mandamus to direct the appellant to make payment of the judgment sum. In respond the appellant contends that the judicial review does not lie against the appellant to enforce payment of a judgment sum for to allow such an application would tantamount to allowing enforcement proceeding to be taken against the state government through the back door. [49] There is no dispute that under sub-s (3) of s 33 of the GPA the appellant is legally obliged to satisfy the judgment sum. This is conceded by the learned State Attorney General, appearing for the appellant. But having said that he then argued that the said subsection is expressly subjected to the words in the parenthesis which reads ‘subject as hereinafter provided’, as contained in the said subsection. In other words the provisions of sub-s (3) has to be read subject to such impediment or restriction as may thereafter be provided. [50] Such an impediment is found in sub-s (4) of the s 33 which states in clear terms that no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the government of any such money or costs as aforesaid and no person shall be individually liable under any order for the payment by the government or any officer of the government as such, of any such money or costs. The subsection opens with the words ‘save as aforesaid’ which clearly indicate that any enforcement of money judgment against the government can only be proceeded with in accordance with the provisions as provided earlier. In short the ordinary procedure for enforcement of judgment as between subjects does not apply to the government. The word ‘government’ here by definition includes the state government as in the present case (see s 2 of the GPA). In my view the words in the parenthesis in sub-s (3) and as further fortified by the opening words of sub-s (4) clearly support the appellant’s contention that the ordinary enforcement procedures available as between subjects do not and could not apply to the government. … [72] On that premise I am of the view that once a certificate is issued under s 33(1) of the GPA and duly served on the state government it is then obligatory on the state government to make the necessary payment. In other words s 33(3) of the GPA creates a statutory duty on the part of the state government to pay the amount as certified. The next question is whether an order of mandamus may be issued against the Minister of Finance, Government of Sabah, the appellant in the present case directing the appellant to pay the sum as stated in the certificate. … [92] From the above, the position in law is that, there is a duty on the part of the government to pay the amount stated in the certificate issued under s 33(3) of the GPA to the respondent. It is not a matter of discretion for the government whether to pay or not to pay. As a statutory duty it is of course binding on the state government. And it is incumbent upon the court to give effect to such statutory duty and if necessary through the coercive force of the order of mandamus. … [96] But, for the reasons given above, I disagree with the learned judge that the court is helpless or powerless to put right what is plainly wrong in law. Lack of fund is no excuse, as the Constitution of the State of Sabah in art 29(2) stipulates that any moneys required to satisfy any judgment, decision or award against the State by any court or Tribunal shall be charged and paid out of the consolidated fund. Therefore, the money need not be provided for through any supply bill, as it is chargeable directly to the state’s consolidated fund. In the final analysis I find no excuse whatsoever for the appellant not to comply with the certificate issued under s 33(3) of the GPA” [28] In summary, the government has a statutory duty to pay the amount specified in a certificate issued under subsection 33(3) of the Government Proceedings Act 1956. This obligation is binding and not discretionary. Conclusion [29] Founded on the cases of Seruan Gemilang (supra) and Petrojasa (supra) which this court is bound to follow as per the doctrine of stare decisis, and applying the principles of these cases to the facts of this case, this court is satisfied that this application for mandamus by the applicant ought to be granted. This court orders: