RUSMAINI BINTI ABDUL TALIB v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur (WA-15-36-05/2023)

The Applicant is the registered owner of the land under title Lot No. 2116, Seksyen 41, Pajakan Negeri 21256, Bandar Kuala Lumpur, Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur, with a land area of 152.541 square metres (sqm). A 1½ storey terrace house is situated on the Applicant’s lot which is located at No. 65, Jalan Datuk Abdullah Yassin, Kampung Bharu, 50300 Kuala Lumpur (‘Subject Property’).

The Subject Property is a 99 years lease which will expire on 12.4.2078. This means that there is a remaining tenure of 57 years. The land use category is “Bangunan” while the express condition is “Rumah Kediaman”.

The Subject Property was compulsorily acquired for the Projek Pembangunan Semula Kampung Sungai Baru Bandar Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur vide Federal Government Gazette No. 9412 dated 21.6.2021 (‘Said Acquisition’).

Thereafter, the Respondent conducted an enquiry pursuant to the provisions of the Land Acquisition Act 1960 [Act 486] (‘LAA 1960’) in order to ascertain the value of the Subject Property so as to compensate the Applicant for the Said Acquisition. At the end of the enquiry, the Respondent made an award of compensation for the Applicant in the total sum of RM1,023,000.00.

The Applicant, being dissatisfied with the Respondent’s award, then filed an objection under s 37, LAA 1960 in Form N dated 25.9.2022 requiring the Respondent to refer the matter to the Court for determination as provided under subsection 38(1), LAA 1960. The Applicant’s objection was duly referred to the Court vide the Respondent’s Form O dated 27.12.2022, which was filed on 29.5.2023.

This matter finally came up for hearing on 9.1.2025 together with Land Reference No. WA-15-32-05/2023 Norizan Binti Jamaludin v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur as there was no Judge in this Court following the retirement of my predecessor. The hearing was adjourned to 27.1.2025 as the parties were exploring an amicable settlement. However, on 27.1.2025, the Court was informed that there was no settlement and the learned counsels for the parties are relying on their respective written submissions.

Having read the written submissions by the learned counsels for the Applicant and the Respondent, the Valuation Reports prepared by Jabatan Penilaian Dan Perkhidmatan Harta (‘JPPH’) as the Government Valuer (‘GV’) and Transasia Property Consultancy Sdn Bhd as the Private Valuer (‘PV’); the Opinions by the Government Assessor (‘GA’) and the Private Assessor (‘PA’); and the Bundle of Documents as per encl. 4, on 26.2.2025, I decided that the Respondent’s Award is to be maintained.

The Applicant is dissatisfied with my decision and I now provide my full grounds of judgment for purposes of the appeal.

In her application in Form N of the LAA 1960, the Applicant stated that the compensation awarded in sum of RM1,000,500.00 is too low for the following reasons: “i. gagal menggambarkan nilai pasaran atau nilai sebenar tanah tersebut (failed to reflect the market value or true value of the said land); ii. telah dinilai tanpa memberi pertimbangan yang sewajarnya kepada semua prinsip-prinsip pampasan di bawah undang-undang dan/atau di bawah Jadual Pertama Akta Pengambilan Tanah 1960 (selepas ini dikenali sebagai "APT") dengan mentafsirkan prinsip-prinsip tersebut secara luas (failed to adequately consider the principles for compensation under the 4 law and/or under Schedule 1 of the Land Acquisition Act 1960 as interpreted in their broadest sense); iii. gagal mengambil kira nilai potensi komersial yang sepenuhnya keseluruhan pembangunan atas Lot 2116; iv. gagal menggambarkan kesan sepenuhnya kesan kemudaratan/pemutusan alas baki tanah (failed to reflect the full extent of the injurious affection/severance loss on the remaining land); v. telah dinilai selepas mengambil kira perkara-perkara atau dakwaan-dakwaan yang tidak relevan di bawah undang-undang dan/atau di bawah Jadual Pertama APT; vi. gagal mengambil kira Laporan Penilaian bertarikh 03.08.2022 oleh Transasia Property Consultancy Sdn Bhd; vii. gagal menilai pampasan secara menyeluruh dengan mengambil kira kesan pengambilan tanah untuk Lot 2116 (failed to assess the compensation in totality by taking into account the effect of the acquisition on Lot 2108); viii. kerana pampasan keseluruhan tidak meletakkan pemilik dalam kedudukan kewangan seolah-olah tanah tersebut tidak diambil selaras dengan Prinsip Kesetaraan (as the total compensation does not put the owner in a financial position as if the land had not been acquired consistent with the principle of equivalence); ix. gagal mengambil kira kesemua aspek kerugian yang dialami menurut pengambilan tanah (failed to take into account all aspects of the loss suffered following the acquisition land). x. gagal mengambil kira kenaikan nilaian oleh binaan tambahan/renovasi/pembaikan pada struktur rumah; xi. gagal mengambil kira kaedah penilaian tambahan selain kaedah perbandingan yang dikemukakan oleh penilai pemilik; xii. gagal mengambil kira tawaran pengambilan yang dikemukan oleh pihak Kementerian Wilayah pada 2019 melalui Menteri Wilayah, Khalid Samad, dan xiii. gagal mengambil kira ketidaksesuaian transaksi-transaksi yang dirujuk oleh JPPH.”. The Government Valuation, Private Valuation and Respondent’s Award

The details as to the assessments by the GV, PV and the award made by the Respondent are tabulated as shown below: Description GV’s Assessment PV’s Assessment Respondent’s Award on 24.8.2022 Land and Building Land replacement cost Moving Cost Deposit for rental of new residence 12 months rental for new residence Total RM870,000.00 (RM5,703.38 psm/ RM530.00 per sq ft) Nil RM5,000.00 Nil RM9,000.00 (RM1,500.00 x 6 months) Proposed Compensation: RM884,000.00 Land: RM3,050,820.00 (RM20,000 psm/ RM1,858.06 per sq ft) Building: RM433,692.00 RM253,822.91 RM10,000.00 RM10,500.00 RM42,000.00 Proposed Compensation: RM3,800,834.91 RM1,000,500.00 (RM6,558.89 psm/ RM610 per sq ft) Nil RM4,500.00 Nil RM18,000.00 RM1,023,000.00

Both the PV and GV used the comparison method to ascertain the land value of the Subject Property. The PV relied on five comparables, the details of which were tabulated by the PA in her report dated

25.1.2025 and reproduced in ANNEXURE A to these grounds of judgment. [12] The GV also used five comparables, albeit different ones from that used by the PV, as shown in the table in ANNEXURE B. [13] The matter was heard on 26.2.2025. The Court received the GA’s Report on 10.1.2025 and the PA’s Report on 25.1.2025. In line with the guidance propounded by the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 that the opinion of the Assessors are to be recorded by the Judge, I will firstly state in brief the opinion of the GA and the PA. [14] On the Land and Building Value, the GA stated that the comparables used by the PV were at a further distance compared to the GV’s comparables. No common comparable can be found. The GA cited the case of Nanyang Manufacturing Co. v. The Collector of Land Revenue, Johore [1953] 1 MLRH 564 for the legal principle that “The safest guide to determine the fair market value is the evidence of sales of the same land or similar lands in the neighbourhood.”. [15] The GA was of the opinion that the comparables provided by the GV suits the best characteristic of best comparison as compared to the comparables by the PV which are far away and different in the category of land use and size. Similar characteristics for the GV’s comparables are that they are residential terrace land with the same zoning, similar land size and within the same vicinity. Due to nearest date of transfer vs. the date of valuation, two comparables should be taken into consideration, namely, Comparable No. 1 and Comparable No. 2. [16] Based on the adjustments made by the GV for both these comparables, the GA did not find any inconsistency and inaccurateness. Hence, the GA opined that the Land Value is at RM4,100.00 per sqm:

152.541 sqm x RM4,100.00 per sqm = RM625,418.10 [17] As for the Value of the Building, the GV and PV provided different measurements and the valuation varies from RM245,926.00 for the GV and RM433,692.00 for the PV. Based on the building specifications provided, the GA was of the view that the rate by the PV looks reasonable except there should be 20% reduction for depreciation: RM433,692.00 minus 20% depreciation = RM346,953.60 [18] As regards the Other Awards, the GA referred to the case of Dr. J.B. Ponnampalan & Mrs. E.J. Ponnampalan v. The Collector of Land Revenue, Federal Territory & The Director-General, Public Works Department (Civil Suit No. F 22 of 1980) dated 21.5.1982 for the proposition that only costs and expenses supported by receipts or bills are approved by the Court. In this case, the GA stated that no proof was provided for the land replacement cost such as agent fee, stamp duty and lawyer fee. [19] The GA then cited subparagraph 2(e) of the First Schedule, LAA 1960 where one of the matters to be considered in determining the amount of compensation to be awarded for any scheduled land acquired under LAA 1960 is the reasonable expenses incidental to a change of residence as a consequence of the acquisition. Based on this provision, the GA took the view that, if the Applicant can produce evidence of such expenses, the claim may be allowed. The GA opined that, taking into account the location of the Subject Property within rapid development of residences and abundant choice of new places to stay, the compensation awarded for moving cost and rental cost of the new residence is adequate and reasonable. [20] In summary, the GA’s opinion was that the award by the Respondent should be retained. [21] Proceeding next to the PA’s opinion, as regards the five comparables adopted by PV, the PA referred to subparagraph 1(2A) of the First Schedule, LAA 1960 which reads as follows: “In assessing the market value of any scheduled land which is Malay reservation land under any written law relating to Malay reservations, or a Malay holding under the Malay Reservations Enactment of Terengganu [Terengganu En. No. 17 of 1360 (A.H)], or customary land in the State of Negeri Sembilan or the State of Malacca, the fact that it is such Malay reservation land, a Malay holding, or customary land shall not be taken into account except where the scheduled land is to be devoted, after the acquisition, solely to a purpose for the benefit of persons who are eligible to hold the land under such written law.”, and stated that, as per the PV’s Written Reply, “Kawasan Kg Sungai Baru walaupun terletak di luar Malay Agricultural Settlement (‘MAS’) ianya masih dalam kawasan pentadbiran Perbadanan Kg Baru (‘KBDC’) yang mengawal selia Pembangunan di Kawasan tersebut. The PA expressed her agreement with the PV’s statement. [22] Therefore, in the PA’s opinion, JPPH “… by analyzing the 5 sales within Kg Sungai Baru which are of similar characteristic with the subject property under valuation, i.e. whereby the Restriction In Interest of the subject land and the 5 sales stated the land cannot be transferred, leased or charged unless obtained approval from the local authority are not correct.”. [23] In relation to the Building Value, the PA was of the view that “As we are valuing the subject land as land with commercial development potential with a plot ratio of 1: 10, whatever erected on the subject land i.e. in this case, an intermediate single storey terrace house which have been renovated to become a one and half storey terrace house, should not be taken into consideration.”. [24] The PA concluded, among others, that “the Government’s Valuation Report which adopted 5 sales within Kg Bharu, i.e. within similar Restriction. Taking into consideration under the First Schedule (2A), I’m of the opinion, the sales adopted by the Respondent’s valuer i.e the Government Valuer need to be disregard. … based on the Transasia Valuation Report which provided 5 Comparables, using the same Comparables, the land value derived is RM8,608 per square metre (RM800 per square foot). … Therefore, I recommend the land and building value to be revised from RM6,558.89 per sq metre to RM8,608 per square metre. For the rest of the claim namely building cost and other related costs, I’m of the opinion, the awards … are sufficient and adequate. Therefore, the revised total land and building value is RM1,313,073.00 with a total compensation value for land and building value awarded by the Land Administrator at RM1,000,500.00 i.e. a difference amounting to RM312,573 to be paid to the applicant.”. [25] The gist of the Applicant’s submission are as follows:

the GV considered the size of the original building without taking into consideration the modifications made by the Applicant;

the comparisons used by the GV are unsuitable to reflect the open market value as required under the LAA 1960. Specifically, Comparisons Nos. 1, 2 and 5 are unsuitable because (i) their locations are within the administrative area of KBDC and are difficult to transfer in open market transactions; (ii) the purchaser, Kasturi Kinta Sdn. Bhd. is a Malay-owned company; and (iii) the transaction date for Comparison No. 5 is 4.68 years from the valuation date and exceeds the two years’ timeframe. Comparisons Nos. 3 and 4 are also unsuitable for the same reason as (i) and (iii) above whereby the transaction dates are 2.54 years and 3.65 years respectively from the valuation date and further, the comparison properties and the scheduled land are implicitly under MAS restrictions;

the comparisons used by the PV are appropriate as they are located outside the KBDC administrative zone to indicate the market value of the scheduled land in the open market; and

the Applicant is entitled to additional costs, namely, Land Replacement Costs. The Applicant did not object to the relocation costs, rental deposit and rental costs as awarded by the Respondent. [26] On the other hand, the Senior Federal Counsel submitted for the Respondent that –

the Applicant has failed to discharge the burden of establishing a prima facie case that the Respondent’s award of compensation is inadequate (see Ong Yan & Anor v. Collector of Land Revenue Alor Gajah Malacca [1986] 1 M.L.J. 405 at p 4070);

in adopting the comparable method, as was done by the GV and the PV, it is best to compare the Subject Property with other lands in the same vicinity, locality and with similar features, provided that some adjustments may be made to reflect the actual market value of the Subject Property; and

the GV has considered the factors influencing the market value of the Subject Property (see paragraph 14.0 of the GV’s Report) and the award by the Land Administrator is significantly higher than the market value proposed by the GV. The award is adequate, reasonable and should not be disturbed. The Findings of the Court [27] It is trite law that the burden of proof is on the Applicant to establish her claim that the amount of compensation awarded by the Respondent is too low and the standard of proof is on the balance of probabilities (see Pengerang Farm Sdn Bhd v. Pentadbir Tanah Daerah Kota Tinggi [2017] MLRAU 541). [28] The term “market value” for purposes of the LAA 1960 is explained in subparagraph 1(1) of the First Schedule in the following words: “1. Market value

For the purposes of this Act the term “market value” where applied to any scheduled land shall mean the market value of such land –

at the date of publication in the Gazette of the notification under section 4, provided that such notification shall within twelve months from the date thereof be followed by a declaration under section 8 in respect of all or some part of the land in the locality specified; or

in other cases, at the date of the publication in the Gazette of the declaration made under section 8. [29] The date of the section 4 Gazette Notification is 18.6.2021 while the date of the section 8 Gazette Notification was within 12 months thereof i.e. on 21.6.2021. Therefore, the date for valuation in this case is 18.6.2021. The GV, the PV and the Applicant have correctly taken this position as seen from their Valuation Reports and written submission, respectively. [30] Having read the written submissions by the learned counsels for the Applicant and the Respondent; the Valuation Reports prepared by the GV and the PV; the Reports by the GA and the PA; and the Bundle of Documents as per encl. 4, my findings are as follows:

There are no valid reasons to disturb the Award by the Land Administrator for Land and Building. While I agree with the Applicant that Comparison Nos. 3, 4 and 5 in the GV’s Report are not suitable as the transaction dates have exceeded the two years’ timeframe prior to the valuation date, the properties in Comparison Nos. 1 and 2 in the GV Report were transacted within the permitted timeframe. In the GV’s Written Reply to the PV’s Report, it was observed that there are no common comparables and that both Valuers had used “asas nilaian yang sama iaitu Nilai Pasaran bagi menentukan pampasan” whilst the GV had used “Kaedah Perbandingan” in determining “Nilai Pasaran” and the PV had used both “Kaedah Perbandingan dan Kaedah Kos” in determining the same. Further, the GV gave detailed explanation on why the comparables used by the PV are unsuitable based on the factors of location, size and “analisa balasan yang salah” (see subparagraphs 7.1.1 to 7.1.4 at pp 8 - 20 of the GV’s Written Reply). The GV went on to comment on the PV’s “Pendapat Nilaian” and “Penilaian Pampasan Yang Dituntut” (see paragraphs 7.2 and 7.3 at pp 21 - 26 of the GV’s Written Reply) and significantly, it was opined that the PV “… telah menuntut kadar nilai pasaran bagi harta tanah terjadual yang terlalu tinggi dan tidak munasabah” and “… gagal menggunakan perbandingan yang sebanding bagi menyokong tuntutan nilai pasaran tanah yang telah dibuat”. In her summation, the GV additionally pointed out that the PV “… telah keliru dengan asas nilaian yang digunakan olehnya apabila telah menilai harta tanah terjadual dengan Nilai Cantuman … sedangkan nilai cantuman bukanlah Nilai Pasaran seperti mana yang dinyatakan di dalam Malaysian Valuation Standards Sixth Edition 2019.”. On the issue of MAS, the PA herself acknowledged that the Subject Property is located in an area which is outside the MAS, therefore subparagraph 1(2A) of the First Schedule, LAA 1960 does not apply. It is my considered view that the comparables as submitted by the Applicant are unacceptable for the reasons as given by GV. Of the five comparisons used by the GV, Comparables 1 and 2 are the most suitable. This is also the view of the GA. In respect of the Applicant’s claim for the Building Value of RM433,692.00, I accept the PA’s opinion on why this amount should not be taken into consideration. In two previous Land Reference cases, the Land and Building Value was increased to the value of RM6,500.00 per sqm or RM600.00 psf (refer to Land Reference No. WA-15-30-05/2023 Mokhtar Bin Mohd Lip v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur and the Order made by this Court on 4.12.2024 and Land Reference No. WA-15-27-05/2023 Ibrahim Bin Alias v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur and the Order made by the Kuala Lumpur High Court (NCvC1) on 23.5.2024).

As regards the Applicant’s contention on the Land Replacement Costs, she herself acknowledged that these Costs have not materialised and are merely estimates and hence, there is no evidence of the actual costs incurred. In the circumstances, there is no valid basis for the Court to allow the Land Replacement Costs as claimed. [31] In the premises, the Respondent’s award is maintained. [32] The amount of deposit is to be returned to the Applicant and payment shall be made into the client’s account of the Applicant’s solicitor. [33] The Applicant is ordered to pay the GA and the PA the fees for their services at the rate of RM500.00 a day in accordance with subsection 40B(5) of the LAA 1960. They attended Court on 9.1.2025 and 27.1.2025, therefore RM1,000.00 was ordered to be paid to each Assessor within 14 days from the date of the Order by the Court. Dated: 30 April 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT (NCvC2) KUALA LUMPUR Counsels/ Solicitors: For the Applicant: Siti Hadijah binti Ahmad (Nabila binti Sulaiman with her) Messrs. Azlan Hadijah & Associates L-2-3, Plaza Damas 60, Jalan Sri Hartamas 1 Sri Hartamas 50480 Kuala Lumpur For the Respondent: Norazlin binti Mohamad Yusoff Peguam Kanan Persekutuan Jabatan Peguam Negara Cawangan Wilayah Persekutan Kuala Lumpur Unit Penasihat, Tingkat 5 Wisma Chase Perdana Off Jalan Semantan 50512 Damansara Heights Kuala Lumpur ANNEXURE A Comparable Title / Lot No. Address Land Area Type/ Tenure Transacted Price Date of Transaction Analysis Per sq ft No. 1 GRN 35605 Lot No. 193, City of Kuala Lumpur Along Jalan Mayang, Off Jalan Yap Kwang Seng 1,439 sq metres (15,489.49 sq ft) Vacant development land (zoned Commercial) with a plot ratio of 1:8 Freehold RM34,300,000/-

30.10.2020 RM23,835.58 per sq metre (RM2,214.40 per sq ft) No. 2 GRN 36400 Lot No. 56, City of Kuala Lumpur Along Jalan Liew Weng Chee, Off Jalan Kwang Seng 1,149 sq metres (12,359.75 sq ft) Vacant development land (zoned Commercial) with a plot ratio of 1:6 Freehold

28.11.2019 RM15,501.73 per sq metre (RM1,440.16 per sq ft) No. 3 GRN 45235 Lot No. 584, Along Jalan Kamunting, Off 149 sq metres (1,599.96 sq ft) Two storey pre war terrace

9.11.2020 RM14,576.47 per sq metre Comparable Title / Lot No. Address Land Area Type/ Tenure Transacted Price Date of Transaction Analysis Per sq ft City of Kuala Lumpur Jalan Dang Wangi shop (nicely renovated - F & B row) (zoned Commercial) with a plot ratio of 1:6 Freehold (RM1,354.20 per sq ft) (Land plus building value) No. 4 GRN 25009 Lot No. 168, City of Kuala Lumpur Jalan Sin Chew Kee, Off Jalan Pudu 139 sq metres (1,496.42 sq ft) Two storey pre war house Zoned commercial with a plot ratio of 1:7 Freehold

22.1.2021 RM16,107.31 per sq metre (RM1,496.42 per sq ft) (Land plus building value) No. 5 GRN 993 Lot No. 197, City of Kuala Lumpur Jalan Sin Chew Kee, Off Jalan Pudu 164 sq metres (1,759.94 sq ft) Two storey pre war house Zoned commercial with a plot ratio of 1:7 Freehold

19.3.2020 RM17,124.93 per sq metre (RM1,590.96 per sq ft) (Land plus building value) ANNEXURE B Perbandingan No. 1 Maksud Nilaian Duti Setem No. Lot Lot 1910 Seksyen 41 No. Hakmilik GRN 3935 Bandar Kuala Lumpur Daerah Kuala Lumpur Luas Tanah 160.50 meter persegi (square metre) Tarikh Pindahmilik 15.2.2021 Jenis Pegangan Kekal (Selama-lamanya) Kategori Tanah Bangunan Syarat Nyata Tiada Sekatan Kepentingan Tiada Balasan