Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v Orchard Cirlce Sdn Bhd (01(f)-3-02/2024(B))

1.

PENTADBIR TANAH DAERAH HULU LANGAT … RESPONDENTS [In the Matter of the Court of Appeal Malaysia Appellate Jurisdiction Civil Appeal No. B-01(A)-533-07/2022 Between Orchard Circle Sdn. Bhd … Appellant

Pentadbir Tanah Daerah Hulu Langat

Sistem Lingkaran Lebuhraya Kajang Sdn. Bhd. … Respondents] 21/03/2025 10:16:25 01(f)-3-02/2024(B) Kand. 63 [In the matter of the High Court of Malaya at Shah Alam Land Reference No. 15-99-09/2012 Between Orchard Circle Sdn. Bhd. … Appellant And Pentadbir Tanah Hulu Daerah Hulu Langat … Respondent Consolidated pursuant to Court Order dated 26.11.2012 In the matter of the High Court in Malaya at Shah Alam Land Reference No. 15-100-09/2012 Between Sistem Lingkaran Lebuhraya Kajang Sdn. Bhd. … Appellant And Pentadbir Tanah Daerah Hulu Langat … Respondent BROAD GROUNDS OF JUDGMENT (Majority Decision) [1] This is an appeal by SILK against the decision of the Court of Appeal on 25.8.2023 that set aside the decision of the High Court which among others, maintained the compensation awarded by the Land Administrator for the alleged surrendered land (impugned land) in the nominal sum of RM10. The Court of Appeal further ordered that the case be remitted to the Shah Alam High Court before the same judge for a hearing of the assessment of the impugned land. The main issues [2] The main issues in the present appeal are as follows:

the application of the proviso of section 49(1) of the Land Acquisition Act 1960 (LAA 1960).

(ii) what amounts to a question of law?

(iii) was there a question of law in the present case?

(iv) whether there was a valid surrender of the impugned land by Orchard Circle to the State Authorithy. The application of the proviso of section 49(1) of the LAA 1960. [3] Section 49(1) of the LAA 1960 provides: “49. (1) Any person interested, including the Land Administrator and any person or corporation on whose behalf the proceedings were instituted pursuant to section 3 may appeal from a decision of the Court to the Court of Appeal and to the Federal Court: Provided that where the decision comprises an award of compensation there shall be no appeal therefrom” [4] The reading of the above proviso is clear that there shall be no appeal on a decision that comprises the award of compensation. However, if there is a question of law concerning compensation, the door is still open for further appeal to the Court of Appeal and the Federal Court. [5] The interpretation of the proviso has been made by this Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526 where this was said: “[155] To sum up, the proviso to sub-s. 49(1) of the Act does not represent a complete bar on all appeals to the Court of Appeal from the High Court on all questions of compensation. Instead, the bar to appeal in sub-s. 49(1) of the Act is limited to issues of fact on ground of quantum of compensation. Therefore, an aggrieved party has the right to appeal against the decision of the High Court on questions of law.” [6] On this interpretation of the proviso to s.49(1), in another case of Pentadbir Tanah Daerah Johor v Nusantara Daya Sdn Bhd [2021] 4 MLJ 570, this Court acknowledged the proposition of law in Semenyih Jaya but added that the question of law must be given a narrow interpretation. The Court explained: “[37] Although the Federal Court in Semenyih Jaya decided that there was still a right of appeal from a decision of the High Court on compensation if the appeal was on questions of law, that the bar was ‘limited to issues of fact on ground of quantum of compensation’, there was, however, no definition or indication as to what may amount to a question of law within the context and purpose of s 49(1), especially its proviso. Certainly, at no time did the Federal Court in Semenyih Jaya define or even attempt to define in any manner whatsoever, the meaning to be ascribed to the phrase ‘question of law’. And, we must immediately dispel any thoughts harboured to the effect that the six questions of law or even the two constitutional questions posed in Semenyih Jaya necessarily fall within the ambit and meaning of question of law as envisaged in para [155] of its decision.” ….. [61] Yet another reason why a narrow construction must be given to the phrase ‘question of law’ is that in Semenyih Jaya, the specific question of law posed in respect of s 49(1) itself was directed at whether there could nevertheless be an appeal on compensation where it involves a question of law. To this, the Federal Court answered in the affirmative. [81] The allegations of acting without evidence or acting against the evidence of a particular witness or report; or how a particular piece of evidence is to be treated, as raised in the questions posed, are actually complaints generally made in order to meet the general principles for appellate intervention. The views expressed by Michael Barnes in The Law of Compulsory Purchase and Compensation and by Lord Denning MR in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, that such complaints are points of law which may be raised on appeal and for which reasons the appellate court may interfere in the trial court’s findings, is generally correct in the context and in relation to appeals sans the proviso to s 49(1). But for the clear terms of the proviso, such appeals on points of law may be entertained even if the appeal is on compensation or the amount of compensation. However, in the presence of the plain terms of the proviso, and the restrictive reading which we must give to the meaning of question of law as allowed in Semenyih Jaya, such complaints or grounds do not render or make the questions posed, questions of law.” What amounts to a question of law? [7] A question of law essentially involves the interpretation of the law and the application of the law to the facts of the case. There is a plethora of cases that discussed the meaning of the question of law and among others the Federal Court case of Amitabha Guha & Anor v Pentadbir Tanah Daerah Hulu Langat [2021] 3 CLJ 1 which discussed the issue as follows: “What Is A Question of Law? [46] It follows from the preceding paragraph that appeals to the Court of Appeal and to the Federal Court may only be mounted on questions of law. In a general sense, a question of law is an issue involving the interpretation of law (statutes or legal principles) and the application of the law to the facts of each individual case. What is a question of law has also been discussed and formulated in a line of cases:

questions of law are questions about what the correct legal test is. Questions of mixed law and fact are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research v. Southam Inc, [1997] 1 SCR 748);

(ii) a question of law is a question concerning the legal effect to be given to a set of undisputed facts. This includes an issue which involves the application or interpretation of a law (Carrier Lumber Ltd v. Joe Martin & Sons Ltd [2003] BCJ No. 1602);

(iii) the question of whether a decision-maker has jurisdiction to determine a particular matter is usually considered a question of law reviewable by a court on a standard or correctness (Premium Brands Operating GP Inc v. Turner Distribution Systems Limited [2010] BCJ No. 349);

(iv) questions of law involve errors of law committed by a decision-maker. Errors of law includes the application of the wrong law, or a finding of fact in complete absence of any evidence (Southam, supra at [39]; I-Ntelink Inc v. Broadband Communications North Inc [2017] MBQB 146);

questions where there is real doubt as to the law on a particular point (Datuk Syed Kechik Syed Mohamed & Anor v. The Board of Trustees of

(vi) questions of law include the correctness of (a) pure statements of law (eg, as to correct interpretation of a statutory provision), and (b) the inferring of a conclusion from the primary facts (where the process inference involves assumptions as to the legal effect of consequences of the primary facts) (Director-General of Inland Revenue v. Rakyat Berjaya Sdn Bhd [1984] 1 CLJ 219; [1984] 1 CLJ (Rep) 108; [1984] 1 MLJ 248, 252 (FC))” [8] This Court in the Nusantara Daya had accepted the proposition set down in the Amitabha Guha with a rider that it should not be given a liberal reading that negates the clear intent of s. 49(1) of the LAA 1960 and amounts to an appeal on compensation. At paragraphs [51] and [52] of the case, this was said: “[51] As a starting point, we would adopt the general proposition as set down in Amitabha Guha No 2, that ‘In a general sense, a question of law is an issue involving the interpretation of law (statutes or legal principles) and the application of the law to the facts of each individual case’, but with a strong rider and only to that extent. This general proposition must be appreciated, understood, and applied in the context of the proviso to s 49(1), ruled by this court in Semenyih Jaya to be a valid provision of law, that s 49(1) limiting the right of appeal does not violate arts 13 and 121(1B) of the Federal Constitution.. [52] This general proposition also is not to be taken as suggesting, even for the slightest moment, that s 49(1) is to be given a liberal reading so as to render nugatory the clear intent of precluding appeals from decisions of the High Court on compensation. This proposition is not to be read as allowing in any way, what in pith and substance, are appeals on compensation..” [9] In the Nusantara Daya, it was decided that the questions posed were not questions of law, and the issues raised fell within the parameter of the proviso of s. 49(1). The ten questions posed in that case relate to three main points which are:

the issue of making a 10% deduction from the market value.

(ii) the double counting of 5% for location; 10% for access; and yet another 5% for layer when all are three sides of the same pyramid and that separate deductions for similar if not identical characteristics of the scheduled land is a clear instance of double counting.

(iii) finding that the potential development value of the scheduled land had already been factored into the transacted value of Comparable No.1 when that comparable had no development potential. [10] It was further held in that case that the questions posed were all about the award of compensation and no real questions of law. Paragraphs 79 and [111] of the case states as follows: “[79] Having examined all the questions posed, whether we take the ten questions as posed or as grouped into the ‘three issues’, these questions or issues are all about the award of compensation that was made by the High Court, how the final amount was arrived at and how that amount was wrong. At the end of the day, the High Court, assisted by the assessors, made various deductions in order to arrive at the market value. The High Court, as a Land Reference Court was entitled to make those deductions for the reasons stated, as those deductions are very much fact-based decisions, based on evidence adduced, the analysis of such evidence involving the court’s appreciation and impression of such evidence when applying principles of valuation to the facts. Room must be given for a divergence of opinion on the evaluation of such evidence; more so when the appeal is statutorily limited.” … [111] None of the questions posed by the respondent at the Court of Appeal were real questions of law. We thus unanimously allow the appeal and set aside the decision of the Court of Appeal and restore the decision of the High Court dated 9 August 2018.” Was there any question of law in the present case? [11] Before answering the above question, it is appropriate to set down the important facts concerning the issue of question of law in the present case. [12] On 7.6.2011, a 2nd land inquiry was held concerning Orchard Circle’s acquired land by the State Authorithy, the decision of the High Court in a Judicial Review application by Orchard Circle. In this land inquiry, there were two main issues adjudicated by the Land Administrator which were the issues of the surrender of land by Orchard Circle and the issue of compensation. The issue of surrender of the land relates to the Orchard Circle’s 17,284.67 sq meters of land which were said to have been surrendered to the State Authority and was awarded nominal compensation of RM10 for the surrendered portion. In the land inquiry notes of proceedings dated 7.6.2011, it states: LA: Tujuan inquiri pada pagi ini adalah untuk menentukan samada bahagian tanah tersebut telah diserahkan atau pun tidak. Kami akan mendengar keterangan mengenai penyerahan. Siasatan sambungan akan dijalankan bagi menentukan penilaian…” …. LA: Pada pagi ini, kami akan membuat penentuan mengenai isu penyerahan. Bukan berkenaan penilaian. Boleh kita bersambung dulu mendengar keterangan saksi berkenaan penyerahan.” [13] On 20.4.2012. the Land Administrator decided that there was a surrender of the said land by Orchard Circle to the State Authority which is reflected in his grounds of judgment as follows: “3.0 Keputusan

3.1 Di dalam pelan pra-perhitungan pecah sempadan (pelan bil. MPKj/PB/KM/6- 98) yang diluluskan bertarikh 3 September 1998, rezab jalan dan Lorong ditandakan di bawah “kemudahan” Bersama-sama dengan Rezab rawatan najis, pencawang Tenaga Nasional Berhad, Simpanan parit, Taman Bandar, Simpanan kolam takungan, Kawasan lapang/hijau dan Tempat letak kereta. Selain daripada itu, buffer zone juga diserahkan melalui Borang 12B (Seksyen 200 KTN 1965, walaupun tidak ditandakan dengan petunjuk). Berdasarkan kepada Borang 12B yang diserah hantar dan diluluskan oleh Pengarah Tanah dan Galian Negeri Selangor pada 11 Januari 1999 maka telah berlaku penyerahan sebahagian daripada tanah bagi lot-lot berkenaan. Maka tanah-tanah tersebut telah menjadi tanah kerajaan (State Land) pada tarikh 11 Januari 1999 dan pihak Orchard Circle Sdn Bhd tidak lagi mempunyai kepentingan ke atas tanah tersebut.” [14] In this regard, the Land Administrator among others, considered section 200 of the National Land Code in coming to his decision that there was a surrender of the impugned land by Orchards Circle to the State Authority. [15] The matter was later taken up to the Court of Appeal in Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v Orchard Circle Sdn Bhd & Ors and Other Appeals [2018] 1 CLJ 239 which decided among others that the issue of compensation payable and the issue of surrender of the lands be addressed by parties at the land reference proceedings. The order is as follows: “[37] For reasons stated above, we dismiss Appeal 131 and allow the Appeals 114, 121, and 122 and make the following orders:

(a);(b)..

an order that all objections taken in connection with the Land Administrator’s findings in the second land inquiry with regard to compensation payable and the issue of surrender of the lands be addressed by the parties at the land reference proceedings;” [16] In the land reference proceedings at the High Court, based on the written submission, both parties submitted at length the two issues directed by the Court of Appeal which were the issue of the surrender of the impugned land by Orchard Circle and the issue of compensation. In essence, counsel for Orchard Circle submitted that there was no surrender of the lands under the NLC as the provisions of sections 196(1)(c), 200(1), and 201(4) had not been complied with. Conversely, it was submitted on behalf of SILK that Orchard Circle is estopped from denying that it had agreed to surrender the land based on its conduct in particular, the filing of Form 12B for the surrender which was eventually approved by the Pentadbir Tanah Galian Selangor. Pentadbir Tanah Daerah Hulu Langat also took the same position in its submission. [17] The High Court also considered both issues of the surrender of the lands and compensation separately. As regards the issue of surrender of lands, the High Court was of the view that the provision of section 200 of the NLC had been complied with, and as such the surrender of the lands by Orchard Circle was effective. In the grounds of judgment, this was said: “[38] In the case before this court, since Form 12B was signed and submitted by OC in compliance with section 200 of the NLC and the Land Office approved the surrender. In the view of this court, even without OC surrendering their original title so in order for endorsement to be made, the surrender is still effective.” [18] Similarly, the High Court had considered section 200 of the NLC and its compliance, in coming to a finding that the surrender of lands by Orchard Circle was effective and maintained the nominal award granted by the Land Administrator for the surrendered land. [19] At the Court of Appeal, counsel for Orchard Circle among others, raised the same question on the issue of the validity of the surrender of the impugned land. In the Orchard Circle’s written submission, the question below was crafted for the determination of the Court: “QUESTION OF LAW (SURRENDER) A. WHETHER THE LEARNED JUDGE WAS CORRECT IN UPHOLDING THE LAND ADMINISTRATOR’S FINDING THAT THERE WAS SURRENDER OF 17,284.67 SQUARE METERS OF ORCHARD’S LAND” [20] It was then submitted, as was raised before the Land Administrator and the High Court, that the provisions of sections 196(1)(c), 200(1), 201(4) of the NLC had not been complied with and as such there was no surrender of the impugned land by Orchard Circle to the State Authority. [21] Counsel for SILK, on the other hand, among others, submitted that apart from the proviso of section 49(1) of the LAA 1960 is applicable that bars Orchid Circle’s appeal, the validity of the surrender of the lands is irrelevant as no value can be ascribed to the land that has been surrendered. [22] The Court of Appeal as reflected in the grounds of judgment, decided that there were questions of facts and law in the appeal. The issue of whether the procedure for the surrender of land had or had not been complied with is a question of fact and whether the surrender of the impugned land took place is a question of law. At paragraphs [11], [12], and [16] of the grounds of judgment, this was said: “[11] It is trite that there shall be no appeal against the decision of the High Court when the decision comprises of an award of compensation (see s.49(1) of the LAA). In the instance case, the appellant raised a question which is whether the impugned land had or had not been surrendered. This question, in the opinion of this Court, raises a question of fact as well as law. [12] The finding of whether the procedure for surrender of the impugned land had or had not been complied with is indeed a question of fact. However, the finding of when the surrender of the impugned land took effect is a question of law, in order to determine the latter, it is inevitable that the exercise has to encroach onto the former. Therefore, the question raised by the appellant contains a mixture of both fact and law. The 2nd respondent’s counsel’s submission that there was no question of law raised before this Court is not entirely correct.” … [16] This Court finds it is necessary to examine the provisions of the NLC in Part Twelve – Surrender of Title, particularly from s. 196 to 201 of the NLC, in order to determine when the surrender of the impugned land had been effected under the NLC. The question raised by the appellant is in the form of a question of fact, but in substance is a question of law. Hence, this Court is of the considered view that the appellant’s appeal has met the threshold of appealability under s.49(1) of the LAA.” [23] The Court of Appeal also concluded that the issue before the Court is not on the adequacy of the compensation but on whether the value of the impugned land ought to be assessed. This could only be done if the legal issue of the surrender of the impugned land is determined. The Court of Appeal at paragraph [17] explained: [17] Flowing from the above, the outcome of the finding of the question of law will definitely have a direct bearing on the award of compensation. However, the issue here in relation to the award of compensation is not about whether the acquisition of the land was adequately compensated or not. The real issue is whether the value of the impugned land ought to be assessed or not. If the law requires the value of the impugned land ought to be assessed or not. If the law requires the value of the impugned land to be assessed, but it was not done, then the issue is not about award of compensation. The material issue is whether the proper adjectival law was administered and accorded to the appellant for the compulsory acquisition of the impugned land. Therefore, in substance, this appeal is not a complaint pertaining to the award of compensation, but pertains to whether the appellant had the right of fair assessment for its impugned land.” [24] Having considered the material facts in the present case and the issue of the surrender of the land by Orchard Circle, it is clear that the issue of the surrender of the land is pertinent to be determined by the court and it is a question of law as the validity of the surrender of land has been laid down in the NLC, particularly from sections 196 to 201. Here, it involves the interpretation and the application of the said provisions to the facts of the present case as were done by the Land Administrator, the High Court, and the Court of Appeal in coming to their decision. The guidelines for determining the question of law in Amitabha Guha’s have been satisfied in the present case and even the narrow interpretation of the question of law in Nusantara Daya’s have been complied with. The appeal in the present case, in pith and substance, was not an appeal against the inadequacy of compensation. [25] Further, the question posed in the present case has some similarities with the 2nd question of law posed and answered by this Court in Bayangan Sepadu Sdn Bhd v Jabatan Pengairan dan Saliran Negeri Selangor & Ors [2022] 1 MLJ 701 which was as follows: “Assuming that Subject Land Lot 18903 was the agreed lot to be surrendered to Majlis Perbandaran Shah Alam (which is denied) whether there was a valid surrender of Subject Land Lot 18903 under sections 196(1)(c) read with 196(2)(a) of the NLC when the consent of the chargee had not been obtained.” [26] As a result, there was a question of law in the present case and as such, the appeal of Orchard Circle to the Court of Appeal and this Court is not barred by the proviso of section 49(1) of the LAA 1960. Whether there was a valid surrender of the impugned land by Orchard Circle to the State Authority [27] The National Land Code, in particular sections 196 to 201, has laid down the conditions and requirements for a valid surrender of land. These statutory conditions and requirements must be complied with and adhered to strictly to make the surrender of land legally valid. Parliament enacted the law with the purpose, among others, of protecting the interest of the registered proprietor. The provisions are not meant to be nugatory or otiose. The non-compliance of the statutory requirements would only result in the non-surrendering of the land under the law. [28] On this issue, the Federal Court in Bayangan Sepadu Sdn Bhd v Jabatan Pengairan dan Saliran Negeri Selangor & Ors (supra) succinctly explained in the following words: “[51] It is clear that in order to be a valid surrender, the procedure under s 200 of the NLC must be complied with. With respect, we are of the view that the High Court and the majority in the Court of Appeal erred in law in reaching the decision that there was a valid surrender as the previous owners did not object to the construction of the retention pond and structures on the land. On the factual matrix of the present case, as alluded to earlier in the judgment, there was no evidence to show that any of the procedures in ss 196, 200, and 201 of the NLC had been adhered to. There was no consent in writing from the person or body who has registered interest in the land (CIMB/chargee) as required by s 196(1)(c) read together with s 196(2)(a) of NLC. [52] We would like to emphasis that the surrender of any private land must be made with the consent of both the registered proprietor and the State Authority and must be strictly complied with the relevant statutory provisions of the NLC. We venture to say that these provisions are made for the purpose of safeguarding the interest of the registered proprietor. Where the procedures as stipulated by the provisions of the NLC are not adhered to, grave doubts are cast on the validity and/or legality of the surrender. In the absence of the consent of CIMB/chargee and by merely relying on the documents and/or letters produced by the respondents as enumerated in para [7] of this judgment, it cannot be assumed that all mandatory requirements under the provisions of the NLC had been adhered to when the State Authority gave its consent for the transfer.” [29] In the Bayangan Sepadu, this Court held, among others, that as there was no written consent for the surrender of the land from the chargee, CIMB Bank, the provisions of section 196(1)(c) read with section 196(2)(a) has not been complied with, resulting the surrender of land invalid. In that case, there are 2 questions of law posed for the determination of the Federal Court which were:

Assuming that Subject Land Lot 18903 was the agreed lot to be surrendered to Majlis Perbandaran Shah Alam which is denied) whether the right of the appellant as the registered owner under sections 89 (conclusiveness of register documents of title) and 340 of the NLC (registration to confer indefeasible title) can be defeated by a promise to surrender the said property made by the Previous Owners; and

(ii) Assuming that Subject Land Lot 18903 was the agreed lot to be surrendered to Majlis Perbandaran Shah Alam (which is denied) whether there was a valid surrender of Subject Land Lot 18903 under sections 196(1)(c) read with 196(2)(a) of the NLC when the consent of the chargee had not been obtained. [30] This Court, in that case, answered both questions in the negative as reflected at paragraph [64] of the judgment as follows: “[64] For the foregoing reasons, we would answer both the questions of law posed for our determination in the negative…” [31] Reverting to the present case, it is apt to refer to the relevant provisions of the NLC. Firstly, section 196(1) and (2) states as follows:

“Conditions for approval of surrender

No surrender, whether of the whole or a part only of any alienated land, shall be approved by the State Director or, as the case may be, Land Administrator unless the following conditions are satisfied:

that no item of land revenue is outstanding in respect of the land; (aa) that the land will not create or cause any liabilities to the State Authority;

that the land is not under attachment by any court; and

that every person or body specified in subsection (2) has consented in writing to the making of the application.

The said persons and bodies are—

any person or body who, at the time when the approval was applied for, was entitled to the benefit of any registered interest affecting the land or, as the case may be, the part to be surrendered (including a charge of any lease or sublease);

any person or body having at that time a lien over the said land or part, or over any lease or sublease thereof;

any person or body entitled at that time to the benefit of any tenancy exempt from registration affecting the said land or part, being a tenancy protected by an endorsement on the register document of title; and (d) any person or body having at that time a claim protected by caveat affecting the said land or part or any interest therein.

No surrender of a part only of any alienated land shall be approved if, in the opinion of the State Director or, as the case may be, Land Administrator, the area of the part is such that a subdivision of the land ought first to be effected.” [32] In the present case, Orchard Circle was the registered proprietor of the impugned land and Arab Malaysian Merchant Bank was the chargee of the land since 4.11.1997. Both entities had legal interest over the impugned land and thus, under section 196(1)(a) read with section 196(2)(a), their consent in writing needs to be obtained before the surrender of the land be approved by the State Director. Unfortunately, there was no such consent in the present case. Hence, the provision of section 196(1) has not been complied with. [34] In this regard, counsel for SILK submitted that the filing of Form 12B under section 200 of the NLC shows that Orchid Circle had consented to the surrender of the impugned land. This contention is flawed for the following reasons. First, Form 12B filed by Orchard Circle was not a written consent by Orchard Circle envisaged under section 196(1)(c) of the NLC. Section 196(1)(c) states that there must be written consent to the making of the application. Therefore, there must be prior separate written consent to the making of the application for surrender of the land through Form 12B. This is also mentioned in Form 12B itself which states: “Huraian – Persetujuan dengan bertulis adalah dikehendaki daripada tiap-tiap orang –

Yang berhak mendapat faedah daripada apa-apa jua kepentingan berdaftar mengenai bahagian tanah yang hendak diserahkan balik itu (termasuk gadaian apa-apa jua pajakannya)

(ii) …

(iii) …

(iv) …” [35] Further, section 200(1) of the NLC provides:

200.(1) Any application for approval by a proprietor wishing to surrender a part only of the land comprised in his title shall be made in writing to the Land Administrator in Form 12B, and shall be accompanied by—

such fee as may be prescribed;

a plan showing the details of the proposal, together with such number of copies thereof as may be prescribed or, in the absence of any such prescription, as the Land Administrator may require;

all such written consents to the making of the application as are required under paragraph 196(1)(c); and (d) subject to subsection (3), the issue document of title to the land.

Upon receiving any such application, the Land Administrator shall endorse, or cause to be endorsed, a note thereof on the register document of title to the land.

An application under subsection (1) may be submitted without the issue document of title if that document is in the hands of any person as chargee, or has been deposited with any person as security for a loan; but in any such case, the application shall be accompanied instead by a copy of a request by the proprietor, served on that person under subsection 244(2) or, as the case may be, subsection 281(4), for the production of the document at the Land Office within fourteen days of the date thereof.

In a case falling within subsection (3), no action shall be taken on the application until the issue document, or a replacement thereof, is in the hands of the Land Administrator; and accordingly, if the document is not produced pursuant to the request referred to in that subsection, or to any notice served under section 15 on default in compliance with the request, title in continuation (or, where appropriate, a duplicate issue document only) shall be prepared under Chapter 3 of Part Ten as if the circumstances were as specified in paragraph 166(1)(c). [36] Hence, section 200(1)(c) requires the application for the surrender of land through Form 12B to be accompanied, among others, by a written consent as envisaged under section 196(1)(c). [37] In the circumstances, the contention that Form 12B was the written consent by Orchard Circle under section 196(1)(c) is untenable. Besides, it is an undisputed fact that the chargee of the surrendered land, the Arab Malaysian Merchant Bank also has not given any written consent for the surrender of the land. [38] The High Court in coming to its decision that there was an effective surrender of the impugned land, had failed to address the pertinent issue of no written consent by Orchard Circle, the proprietor, and the Chargee, Arab Malaysian Merchant Bank, as envisaged in section 196(1) of the NLC. [39] Be that as it may, the Land Administrator in the present case also failed to comply with the procedure of section 201(4) of the NLC upon approval of the surrender of the impugned land, that is the Land Administrator is required to revise the rent payable by the proprietor, notify the proprietor of the approval and make a memorial of the surrender on the register and the documents of title. These were not done. Section 201(4) provides:

On approving, or being informed by the State Director that he has approved, the surrender, the Land Administrator shall—

revise (by reference to the estimated area of the part to be retained) the rent payable by the proprietor;

notify the proprietor of the approval and the revised rent; and

make, or cause to be made, a memorial of the surrender on the register and issue documents of title to the land.” [40] In determining the issue at hand in the present case, the Federal Court case of Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180 is of no assistance as the issue of surrender of Orchard Circle’s impugned land under the NLC was not canvassed in that case. [41] The provisions of the NLC on the conditions of a valid surrender of land alluded to earlier are unambigous, of general application and without any exception. [42] As there was no valid surrender of the impugned land to the State Authorithy, the compensation for the impugned land needs to be assessed and as such, the order of the Court of Appeal to remit the case to the High Court for the assessment of the impugned land is most appropriate. Conclusion [43] Based on the aforesaid reasons, there is no merit in the appellant’s appeal for the intervention of this Court. The appeal is dismissed with costs. The decision of the Court of Appeal is affirmed. My learned sister, Justice Rhodzariah has read this broad grounds of judgment in the draft and has agreed to it. My learned sister, Chief Judge of Malaya, Justice Hasnah dissenting. Dated this 12 March 2025 (DATO’ NORDIN BIN HASSAN) Judge Federal Court of Malaysia Counsel: For the Appellant: Thangaraj Balasundram (with him Karen Lee Foong Voon, Cheah Kha Mun & Ho Zhi Yee) [Messrs Wong Kian Kheong] For the Respondents: 1st respondent: Etty Eliany Tesno (with her Nor Fariza Ridzuan) [Penasihat Undang-Undang Negeri Selangor] 2nd respondent: Sri Dev Nair (with him Mohd Hafiz Mahmund & Ashok Kumar Puri (Messrs Sri Dev and Naila)