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 Court of Appeal of Malaysia (Appellate Jurisdiction) Civil Appeal No. B-01(A)-533-07/2022 Between Orchard Circle Sdn. Bhd. … Appellant And 1. Pentadbir Tanah Daerah Hulu Langat 21/03/2025 10:21:10 01(f)-3-02/2024(B)

Sistem Lingkaran Lebuhraya Kajang Sdn. Bhd. …Respondents] [In the matter of the High Court in Malaya at Shah Alam Land Reference No. 15-99-09/2012 Between Orchard Circle Sdn. Bhd. … Appellant And Pentadbir Tanah 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 Page 3 of 75 CORAM HASNAH MOHAMMED HASHIM, CJM RHODZARIAH BUJANG, FCJ NORDIN HASSAN, FCJ JUDGMENT OF THE COURT (Dissenting) [1] We heard oral submissions by all learned counsels representing the respective parties and at the end of those submissions, we indicated that we needed time to consider the respective submissions. We have now reached our decision. What follows below are my deliberations on the issues raised and my reasons as to why I have so decided. [2] This appeal emanates from a decision of the High Court in the land reference proceedings where the Learned Judge decided as follows:

that the area of land measuring 17,284.67 square meters has been surrendered (the Surrendered Area) by Orchard Circle Sdn Page 4 of 75 Bhd (OCSB) and that the compensation awarded by the Land Administrator in the nominal sum of RM10.00 for the Surrendered Area is reasonable;

in respect of the area measuring 1,839.10 square meters of the Land (area not surrendered), the learned High Court Judge maintained the Land Administrator's award of RM514,948-00;

late payment charges at the rate of 5% per annum on the sum of RM514,948-00 from the date of issuance of Form “K” on 20.2.2003 until the date of full and final settlement;

costs for the government assessor in the sum of RM500-00 and costs for the private assessor in the sum of RM500-00 to be borne by OCSB and SILK had been paid; and

the deposit for the Land Reference No. 15-99-09/2012 and the Land Reference No. 15-100-09/2012 be returned to OCSB and SILK. [3] The issues in this appeal are as follows:

whether the Surrendered Area has been surrendered is a question of law and if the answer affects an award of Page 5 of 75 compensation, is such a question an issue relating to compensation or a pure question of law?

whether OCSB had a right of appeal against the High Court ’s decision in light of the provisions under the Land Acquisition Act 1960 (LAA) in particular Sections 37(2),40D and 49(1) of LAA and Section 68(1)(d) of Court of Judicature Act 1964 (CJA);

whether the fact that OCSB had surrendered the Surrendered Area is the correct test to determine ‘adequate compensation’?

whether OCSB had effectively surrendered the Surrendered Area in accordance with the provisions of the National Land Code (NLC) is irrelevant consideration in determining ‘adequate compensation’;

whether the Court of Appeal is correct in its finding that just because the requirements under the NLC for surrender of lands have not been complied with, nominal value could not be ascribed to the said land that have been surrendered especially when the Court agreed that OCSB had intended to surrender the Land for its development?

whether the Court of Appeal is correct in remitting the matter back to the High Court for an assessment of the value of the Surrendered Area on the basis that it has not been surrendered when the learned High Court Judge had considered the issue?

whether the Court of Appeal was correct in its finding that OCSB was not accorded the right to present its case on the basis that the Surrendered Area had yet to be surrendered, when in fact OCSB in its valuation report, had valued the compensation of the entire acquired land, including the Surrendered Area, at market value and claimed for compensation in the sum of RM16,056,000.00. The Statutory Provisions [4] It is helpful to refer to the relevant provisions of the National Land Code (NLC) and the Land Acquisition Act 1960 (LAA) before discussing the facts and the proceedings in respect of this appeal. [5] For ease of reference in respect of the surrender the relevant provisions of the NLC are, sections 196(1)(c), 196(2)(a), 200 and 201 of the NLC are reproduced as follows: Page 7 of 75 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 Page 8 of 75 or part, being a tenancy protected by an endorsement on the register document of title; and

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. Applications for approval of surrender of part. 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 (c) of sub-section (1) of section 196; and

subject to sub-section (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 sub-section (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 sub-section (2) of section 244 or, as the case may be, sub-section

of section 281, for the production of the document at the Land Office within fourteen days of the date thereof.

In a case falling within sub-section (3), no action shall be taken on the application until the issue document, or a Page 10 of 75 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 sub-section, 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 (c) of sub-section (1) of section 166. Procedure on applications. 201 (1) Where any application under sub-section (1) of section 200 relates to land the surrender of which requires the approval of the State Director, the Land Administrator shall refer the application to him, together with his recommendations thereon.

If on any application under the said sub-section the Land Administrator or, in a case referred to him as aforesaid, State Director is satisfied -

(Deleted by Act A832).

that the conditions specified in sub-section (1) of section 196 are fulfilled, and

that approval ought not to be withheld on the grounds specified in sub-section (3) of that section, he shall approve the surrender.

In any other case, the Land Administrator or, as the case may be, State Director shall reject the application.

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.

On rejecting, or being informed by the State Director that he has rejected, the application, the Land Administrator shall-

notify the proprietor; and

cancel, or cause to be cancelled, the note endorsed on the register document of title pursuant to sub-section (2) of section 200. [6] The procedure on land acquisition and the relevant provisions of the LAA in respect of this appeal are as follows. [7] Section 7 of the LAA provides that when any lands are required for any purposes as stated in section 3 of the LAA the Land Administrator shall prepare and submit to the State Authority the following:

a plan of the whole area of such lands, showing the particular lands, or parts thereof, which it will be necessary to acquire; and

a list of such lands, in Form C. [8] Section 8 LAA provides that when the State Authority decides that any of the lands referred to in section 7 are needed for any of the purposes referred to in section 3 LAA then a declaration in Form D as prescribed shall be published in the Gazette. The declaration in Form D shall be conclusive evidence that all the scheduled land referred to therein is needed for the purpose specified therein. [9] Section 8 (4) LAA further stipulates that 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 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 subsection 14(1) of the same Act within the said period of two years. 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. [10] The proposed land to be acquired must be marked out and a notice must be entered on the register document of title as required under

Upon the publication pursuant to section 8 of the declaration in Form D that any land is needed for the purpose specified in such Form, then—

the Land Administrator shall cause the areas affected by the acquisition to be marked out upon the land, unless this has already been done to his satisfaction; and

the Land Administrator or other registering authority shall make a note of the intended acquisition in the manner specified in subsection (2).

The note of the intended acquisition required by paragraph

(1)(b) shall be made—

where the scheduled land is held by registered title—

on the register document of title; and

(ii) in the case of land with subdivided building or land, on the relevant strata register under section 4 of the Strata Titles Act 1985 [Act 318]; or Page 15 of 75

where the scheduled land is occupied in expectation of title, upon the Register of Approved Applications, Register of Holdings or other appropriate register. [11] Under the LAA the Land Administrator must conduct an enquiry. Section 12 LAA reads as follows:

On the date appointed under of subsection 10(1) the Land Administrator shall make full enquiry into the value of all scheduled lands and shall as soon as possible thereafter assess the amount of compensation which in his opinion is appropriate in each case, according to the consideration set out in the First Schedule: Provided that the Land Administrator may obtain a written opinion on the value of all scheduled lands from a valuer prior to making an award under section 14.

The Land Administrator shall also enquire into the respective interests of all persons claiming compensation or who in his opinion are entitled to compensation in respect of the Page 16 of 75 scheduled land, and into the objections, if any, made by any interested person to the area of any scheduled land.

The Land Administrator may for a sufficient cause to be recorded by him in writing postpone any enquiry or adjourn any hearing of an enquiry from time to time.

The Land Administrator shall record all the evidence during the enquiry. [12] Reference to Court by the Land Administrator is provided under section 36 LAA:

No reference to Court under this Act shall be made otherwise than by the Land Administrator.

The Land Administrator may, at any time of his own motion by application in Form M refer to the Court for its determination any question as to—

the true construction or validity or effect of any instrument;

the person entitled to a right or interest in land;

the extent or nature of such right or interest;

the apportionment of compensation for such right or interest;

the persons to whom such compensation is payable;

the costs of any enquiry under this Act and the persons by whom such costs shall be borne.

Without prejudice to the powers of the Court under this Part, the costs of any reference under subsection (2) shall be borne by such person as the Court may direct or, in the absence of such direction, by the Land Administrator.

After an award has been made under section 14 or compensation made under section 35 or Part VII the Land Administrator shall refer to the Court for determination any objection to such award or compensation duly made in accordance with this Part. [13] Section 37 LAA reads as follows: Any person interested in any scheduled land who, pursuant to any notice under section 10 or 11 or any person interested pursuant to any compensation made under section 35 or Part VII Page 18 of 75 who, has made a claim to the Land Administrator in due time and who has not accepted the Land Administrator’s award thereon, or has accepted payment of the amount of such award under protest as to the sufficiency thereof, may, subject to this section, make objection to—

the measurement of the land;

the amount of the compensation;

the persons to whom it is payable;

the apportionment of the compensation. [14] Any objection made under section 37 shall be made by a written application in the prescribed Form N to the Land Administrator requiring that he refer the matter to the Court for its determination. Such application 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 (Re: Section 38 (1) LAA). [15] In respect of appeal, section 49 LAA provides as follows:

Any person interested, including the Land Administrator and any person or corporation on whose behalf the proceedings were instituted may appeal from a decision of the Court to the Court of Appeal and to the Federal Court: Page 19 of 75 Provided that where the decision comprises an award of compensation there shall be no appeal therefrom. Factual Background [16] OCSB decided to surrender part of its land and submitted an application vide the prescribed Form 9A dated 5.9.1998 to surrender a portion of land to the Land Administrator of Hulu Langat District pursuant to Section 200 of the NLC for construction of "Jalan, Simpanan Parit JPS, Kolam Takungan Air JPS, Taman Bandar, Tempat Letak Kereta, Buffer Zone” by filing the prescribed Form 12B as required by the law. The construction of the road and others were necessary as part of a commercial development project known as "Pusat Dagangan Putra Kajang”. OCSB is the owner and developer of the said project. The application was approved by the State Authority on 11.1.1999. [17] Subsequently, on 10.12.2001 Form D as prescribed under the LAA was issued to OCSB by the government to compulsorily acquired the lands held under Lots 8630 (9.005.08 sqm) and 2630 (10,118.69 sqm), Geran No.: 30006 in Mukim Kajang, District of Hulu Langat, Selangor Darul Ehsan (the Lands) belonging to OCSB to construct the Kajang Traffic Dispersal Highway (SILK Highway). A total of 19,123.77 sqm of land was acquired. The Selangor State Authority published in the Page 20 of 75 Selangor Government Gazette dated 20.12.2001 Form D pursuant to Section 8 of the LAA 1960 declaring that the Lands would be acquired for public purpose. [18] The first land inquiry was held on 24.12.2002 about the acquisition (1st Land Inquiry). OCSB was awarded nominal compensation of RM1.00 (1st Award) on the basis that a portion of the Lands had already been surrendered by OCSB to the State Authority. Form G and Form H dated 24.12.2002 were issued in relation to the first land inquiry. [19] On 30.1.2003 OCSB filed the first judicial review application for an order, among others, to quash the 1st Award and a declaration that the acquisition of the Lands was null and void (1st JR Application). In its application, OCSB alleged that it was not given a right to be heard at the first land inquiry. The Lands had already been formally taken possession of when Form K was issued on 20.2.2003 in accordance with Section 22 of the LAA 1960. The memorial was endorsed in the register document of title after the issuance of Form K. [20] The 2nd Land Inquiry was subsequently held by the Land Administrator on 17.2.2011 and on 20.4.2012 the Land Administrator ordered as follows: Page 21 of 75

17,284.67 square meters of the Land have been surrendered by OCSB to the State Authority (Surrendered Area). The Land Administrator awarded nominal compensation of RM10.00 for the Surrendered Area; and

1,839.10 square meters of the Lands were not surrendered and the Land Administrator awarded compensation of RM514,948.00 (the 2nd Award), [21] The 2nd Award replaced the 1st Award, as ordered by the High Court in the 1st JR Application. Unhappy with the Land Administrator’s decision, OCSB filed a second judicial review against the Land Administrator, Director of the Department of the Director-General of Lands and Mines State of Selangor, Government of the State of Selangor and Government of Malaysia (the 2nd JR Application). Both OCSB and Sistem Lingkaran Lebuhraya Kajang Sdn. Bhd. (SILK) filed Form N objecting to the 2nd Award on 31.5.2012. The land reference proceedings in Form N filed by both OCSB and SILK were consolidated and stayed until the final disposal of the 2nd JR Application. SILK applied to, among others, intervene in the 2nd JR Application (“SILK’s Intervening Application”) and on 19.8.2013 SILK’s application was allowed. The hearing of the 2nd JR Page 22 of 75 Application was heard on 6.1.2016 and on 7.3.2016 the High Court made the following orders:

an order of certiorari to quash a Form D dated 10.12.2001 issued pursuant to section 8(1) of the LAA 1960 and all proceedings following therefrom for the acquisition of the Lands belonging to Orchard Circle;

an order of certiorari to quash Form G dated 20.4.2012 and Form H dated 20.4.2012 issued pursuant to sections 14(1) and 16(1) of the LAA 1960 and all proceedings therefrom;

a declaration that –

the acquisition or taking into possession of the Lands by the respondents is null and void and of no legal effect; and

(ii) OCSB is the lawful proprietor of the Lands and it is entitled to possession thereof;

A re-inquiry of the acquisition of the Lands is ordered after re-issuance of a new Form D. Page 23 of 75 [22] SILK and the other respondents appealed to the Court of Appeal against part of the decision of the High Court. OCSB appealed to the Court of Appeal against part of the decision of the High Court. OCSB also filed a cross-appeal. Given the appeals, the land reference proceedings were stayed pending the disposal of the appeals and cross-appeal to the Court of Appeal by way of a consent order dated 24.5.2016. [23] The Court of Appeal unanimously allowed SILK and the other respondents' appeals dismissed OCSB’s appeals, and ordered that the HC Order for the 2nd JR Application be set aside. [24] OCSB proceeded to apply for leave to appeal to the Federal Court on 17.8.2017. The land reference proceedings were stayed pending the final disposal of OCSB’s appeal to the Federal Court by way of an order dated 3.11.2017. On 4.12.2017 the Federal Court allowed leave of the following two questions:

whether, pursuant to section 8(4) of the LAA 1960, a declaration in Form D automatically lapses and ceases to be of any effect where an award of the Land Administrator is made within the stipulated two-year period but Page 24 of 75 subsequently quashed resulting in a subsequent award made outside the two-year period; and

whether the 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 LAA 1960, with legal effect. [25] The Federal Court opined that OCSB had benefitted from the 1st judicial review, the effect of which the first award was quashed (certiorari) and proceeded with a second land inquiry (mandamus) whereby OCSB participated. The order for mandamus by the 1st Judge of the High Court (Hinshawati Shariff J) concluded that Form D was still valid. Hence, OCSB was precluded and estopped from challenging the validity of Form D in the 2nd judicial review application. By proceeding with the second land inquiry before the Land Administrator and participating in the enquiry, OCSB had elected and accepted that the issue before the Land Administrator was on the decision and award of compensation and damages only. That was the position taken by OCSB after the 1st judicial review proceeding. Thus, the doctrine of estoppel applied in this case. Page 25 of 75 [26] The validity of the acquisition proceedings and whether OCSB was still the lawful proprietor of the said lands were previously raised in the 1st judicial review application before the COA. The COA opined that it would be an abuse of the court process to allow OCSB to renew its challenge on the propriety of the land acquisition proceedings in the second judicial review proceeding as the issues raised were caught by the doctrine of res judicata. [27] The second question as framed did not appear to flow from the facts of the case. The applicability of the doctrine of estoppel and res judicata was an election made by OCSB in the conduct of litigation, which was peculiar. There was no issue of Form D lapsing because the original Form D was still valid even during the second land inquiry. The doctrine of estoppel and res judicata was not applied to override Section 8(4) of the LAA as there was no contravention of that particular provision in the first place because the first award was made within two years. These issues ought to have been raised in the first judicial review application, in which the issues or matter had been decided in finality. [28] The Federal Court affirmed the decision of the COA which had ordered that all objections taken in connection with the Land Administrator's findings in the second land inquiry with regard to Page 26 of 75 compensation payable and the issue of surrender of the lands be addressed by the parties at the land reference proceedings before the High Court Judge. The High Court [29] The High Court considered and addressed the issue of surrender of the lands. The learned High Court Judge concluded that there was a proper surrender of land prior to the land being acquired. Her Ladyship explained in her Grounds of Judgment: [34] In the considered view of this court, it does not matter that the SILK Highway only came into being after OC had surrendered the land. This is because the fact of the matter remains that OC had already surrendered the land. While it was argued by OC that the surrendered portion was used for the SILK Highway, this court is of the considered view that regardless of whether the surrendered portion was used for SILK Highway or not, the surrendered portion still falls within the ambit of public utility as opposed to private usage. The use of the SILK Highway, in the view of this court is clearly not for private usage. … Page 27 of 75 [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. … [40] Founded on the authority quoted and the facts of this case, even though there was no endorsement on the title, this court is of the considered view the surrender has happened. The endorsement on the title could not be carried out as OC did not surrender the original title to the land office for the purpose of endorsement. In the view of this court, this does not negate the fact that there was a surrender prior to SILK concessionaire coming into the picture. The Court of Appeal [30] Aggrieved with the decision of the High Court OCSB appealed to the Court of Appeal. Only one issue for determination is whether a total of 17,284.67m2 (which is the Surrendered Area) out of 19,123.77m2 of the subject land for acquisition, namely Lot 2630 and Lot 8630 (the subject land), had or had not been surrendered to the State Authority according Page 28 of 75 to the NLC under Part Twelve which deals with the surrender of title as at 20.12.2001. [31] The COA concluded that the surrender of the impugned land could only be construed as effected upon the compliance of Section 201(4)(a) to (c) of the NLC. The word "shall" connote a mandatory obligation on the part of the Land Administrator to comply with the requirements under the aforesaid section. In this present case, there was no revision of the payable rent, no notification to the appellant of the approval and any revised rent and no memorial of the surrender was made on the register and issue documents of title to the impugned land on or before 2.12.2001, the date of the Gazette or 10.12.2001, the date stipulated in Form D. [32] The COA agreed with OCSB that since the provisions of the NLC were not adhered to and there was no plan showing the details of the proposed surrendered land and the delivery of the issue document of title as required under the provisions in the NLC grave doubt is therefore cast on the validity of the surrender on 11.1.1999. [33] The COA opined that the approach taken by the High Court for the compensation in relation to the Surrendered Area on the basis that the Page 29 of 75 land had already been surrendered was not correct and hence, the High Court fell into error of law in accepting that the Surrendered Area could not be assessed because it had already been surrendered. The COA opined that the fact that the impugned land was originally intended to be surrendered for the purpose of the appellant's development project would be a relevant factor to be considered in determining the land value in the assessment of the compensation amount. Analysis and Decision [34] For ease of reference, the salient chronological background of this appeal is summarised as follows: Date 11.1.1999 Event OCSB submitted Form 12B to surrender a portion of its land to the Land Administrator. The application was approved by the Land Administrator.

10.12.2001 Form D of the LAA was issued to compulsorily acquire the lands for the purpose of the "SILK Highway".

24.12.2002 The first land inquiry was held in relation to the acquisition. OCSB was awarded nominal compensation of RM1.00 on the basis that a portion of the lands had already been surrendered to the State Authority. Form G &H was issued in relation to the first land inquiry ("first award").

30.1.2003 OCSB filed the first judicial review application for an order among others, to quash the first Award ("first JR Application").

10.12.2010 Shah Alam High Court ordered as follows in relation to the first JR application ("HC order for first JR application"):

a certiorari to quash the first award; and

a mandamus to remit the matter back to the Land Office for a second land inquiry ("second land inquiry"). In the oral grounds of the High Court's decision, the learned judge had found that OCSB was not given a right to be heard at the first land inquiry.

17.2.2011 The second land inquiry was held by the Land Administrator. At the second land inquiry, OCSB raised the following issues -

Form D had lapsed because no award was made within two years of the date of Form D; and

OCSB did not surrender any portion of the lands to the State Authority.

20.4.2012 Land Administrator decided as follows: a) The issue of a lapsed Form D did not arise as his award is but an extension of the first award when the High Court in the first judicial review ordered a fresh land inquiry.

17,284.67 sq meters of the lands were surrendered by OCSB to the State Authority and awarded nominal compensation of RM1.00 for the surrendered portion; and

1,839.10 sq meters of the lands were not surrendered and the LA awarded compensation of RM514,948.00 - ("second award").

30.5.2012

6.1.2016

7.3.2016 April 2016

9.8.2017 OCSB filed the second judicial review application ("second JR application") and filed Form N in objection to the second award. The hearing of the 2nd JR. The High Court made the following Orders:

an order of certiorari to quash the Form D dated 10.1.2001 and all proceedings;

(ii) an order of certiorari to quash Form G dated 20.4.2012 and form H dated 20.4.2012;

(iii) a declaration that the acquisition of the Lands is null and void;

(iv) OCSB is the lawful proprietor; and

A re-inquiry of the acquisition of the Lands after a reissuance of a new Form D OCSB and Silk filed an appeal against the High Court’s decision The COA dismissed the appeal on damages and made the following orders:

the High Court order dated 7 March 2016 be set aside;

an order that Form D dated 10 December 2001 and all the acquisition proceedings therefrom are valid; and

an order that all objections taken in connection with the Land Administrator’s findings in the second land

4.12.2017

13.11.2020 inquiry with regard to compensation payable and the issue of surrender of the lands be addressed by the parties at the land reference proceedings; and

costs The Federal Court allowed leave of 2 questions of law:

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;

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. The Federal Court dismissed the appeal by OCSB with costs of RM25,000 to the first and third respondents, RM25,000 to the second and fourth respondents and RM50,000 to fifth respondent. The decision of the Court of Appeal is affirmed. [35] The main argument advanced by OCSB as a respondent in the COA is that the State Authority failed to comply with the provisions of Part Twelve of the NLC. Such non-compliance would render the surrender of the Surrendered Area on 11.1.1999 invalid for the purpose of assessment of compensation upon land acquisition. It is OCSB’s contention that the Page 33 of 75 Surrendered Area was never surrendered because the provision of the NLC was not complied when Form D dated 10.12.2001 was published in the Gazette on 20.12.2001. The Land Administrator, as well as the High Court Judge, were wrong to find that OCSB had surrendered the impugned land before the Gazette was published. Further, the Land Administrator's award of only a nominal sum of RM10 as the compensation award for the impugned land which was affirmed by the High Court was erroneous in law. [36] In its judgment the COA reasoned as follows:

In respect of the non-compliance with section 201(4) of the NLC on or before 10.12.2001 (the date of Form D) or 20.12.2001 (the date of Gazette): [26] This court is of the considered view that the surrender of the impugned land could only be construed as effected upon the compliance of s. 201(4)(a) to (c) of the NLC. The word "shall" connotes a mandatory obligation on the part of the Land Administrator to comply with the requirements in s. 201(4)(a) to (c) of the NLC. In this present case, there Page 34 of 75 was no revision of the payable rent, no notification to the appellant of the approval and of any revised rent and no memorial of the surrender was made on the register and issue documents of title to the impugned land on or before 20 December 2001 (the date of the Gazette) or 10 December 2001 (the date in the Borang D).

The Court of Appeal referred to the case of Bayangan Sepadu v Jabatan Pengarian dan Saliran Negeri Selangor & Ors [2022] 2 CLJ 1 where the Federal Court held that the failure to comply with the relevant provisions in the NLC, particularly sections 201(4)(a) to (c), could result to grave doubt being cast on the validity of the surrender on 11.1.1999: [34] In Bayangan Sepadu Sdn Bhd v. Jabatan Pengairan Dan Saliran Negeri Selangor & Ors [2022] 2 CLJ 1; [2022] 1 MLJ 701, one of the questions of law posed before the apex court, which is relevant to our case, was "whether there was a valid surrender of any part of the land to the State Authority under s. Page 35 of 75 196(1)(c) read with s. 196(2)(a) of the NLC when the chargee's consent to the same had not been obtained. [35] One of the reasons the apex court allowed the appeal was that the provisions in the NLC in relation to the surrender of the land were not strictly adhered to. In our present case, failure to comply with the relevant provisions in the NLC, particularly s. 201(4)(a) to (c), could result in grave doubt being cast on the validity of the surrender on 11 January 1999. [36] This court also finds that there were provisions of the NLC other than s. 201(4) that were not adhered to. There was no plan showing the details of the proposed surrender land (specifically the impugned land) and the delivery of the issue document of title as required under ss. 200(1)(b) and (d) of the NLC, and read together with sub-ss. (3) and (4) of the same provision. [37] The approach taken by the High Court for the compensation in relation to the impugned land was on the basis that the impugned land had already been Page 36 of 75 surrendered. Hence, this court finds the High Court fell into error of law in accepting that the impugned land could not be assessed because it had already been surrendered. [38] This court further finds that the fact that the impugned land was originally intended to be surrendered for the purpose of the appellant's development project would be a relevant factor to be considered in determining the land value in the assessment of the compensation amount. [39] This court opines that whether the impugned land would have any commercial value because it was intended to be surrendered for the appellant's development project ought to be determined by the High Court Judge assisted by the assessors. This issue was not considered by the High Court Judge because the High Court Judge dismissed it on the footing that the impugned land had already been surrendered.

Since there was no plan showing the details of the proposed surrender of land and delivery of the issue document of title as required under sections 200(1)(b) and (d) of the NLC read together with sections 200(3) and (4) of the same. The High Court erred in accepting that the Surrendered Portion could not be assessed as the approach taken by the High Court for the compensation was on the basis that the Surrendered Area had already been surrendered. Question of Law v. Question of Fact [37] The starting point to address is whether the complaint with regard to the formalisation of the surrender of the Surrendered Area raised by OCSB is a question of law or otherwise. This issue is important as it has a determinative effect on whether OCSB has the right to appeal as envisaged under Section 49 LAA. Section 49 LAA prohibits any appeal in respect of compensation. The COA opined that the finding of whether the procedure for surrender of the impugned land had or had not been complied with is a question of fact. However, the finding of when the surrender of the impugned land took effect is a question of law. Hence it was concluded by the COA that to determine the validity of the surrender, “….it is inevitable that the exercise has to encroach onto the former.” In Page 38 of 75 other words, the question raised by OCSB contains a mixture of both fact and law. [38] The Federal Court in Amitabha Guha & Anor v. Pentadbir Tanah Daerah Hulu Langat [2021] 3 CLJ 1 (Amitabha Guha 2) laid down guidelines to be applied in determining whether an issue raised in land acquisition matter is a question of law or not: 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 Page 39 of 75 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 include 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 The Sabah Foundation & Ors [1999] 1 CLJ 325 (FC);

(vi) questions of law include the correctness of (a) pure statements of law (e.g., as to the correct interpretation of a statutory provision), and (b) the inferring of a conclusion from the Page 40 of 75 primary facts (where the process of 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) [39] This court in Pentadbir Tanah Daerah Johor v Nusantara Daya Sdn Bhd [2021] 7 CLJ 1 (Nusantara) adopted the general proposition enunciated in Amitabha Guha 2 that a question of law is an issue involving the interpretation of the law (statutes or legal principles) and the application of the law to the facts of each individual case. The Federal Court in Nusantara elucidated that it is material to decide whether any question posed to the Court of Appeal is indeed a question of law as envisaged in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (FC) (Semenyih Jaya). Thus, the general proposition must be appreciated, understood and applied in the context of the proviso to section 49(1) LAA. In Nusantara the Federal Court clarified 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. What Page 41 of 75 is a question of law has also been discussed and formulated in a line of cases. [40] The circumstances and meaning of what may amount to a ‘question of law’ under the proviso to Section 49(1) LAA must be 'narrowly and strictly construed'; the definition must not be extensive as it would undermine the clear intent of the proviso to Section 49(1) LAA that is, there is no right of appeal in respect of decisions comprising an award on compensation. [41] The Federal Court further explained in Nusantara that: [58] Consistent with that approach, the circumstances and meaning of what may amount to a "question of law" under the proviso to s. 49(1) must also be "narrowly and strictly construed"; that the definition must not be extensive as it would undermine the clear intent of the proviso to s. 49(1) - that there is no right of appeal in respect of decisions comprising an award on compensation. [59] Next, according to s. 49(1) a narrow and strict construction to bring it in line with art. 13 of the Federal Constitution and Page 42 of 75 ensure that acquisitions are in accordance with law and that compensation is adequate, in our view, this court in Semenyih Jaya had nevertheless expressly recognised and endorsed the approach earlier adopted in Calamas - that the amendment to the proviso to s. 49(1) is very clear, it is to preclude any party from appealing against the final order of compensation made by the High Court. At para. [150], this court expressed the view that "limiting the right to bring an appeal is a way of encouraging finality. If an examination of the language and policy of the Act granting the right of appeal concludes that Parliament intends to limit an appeal, the court must give effect to it". The fact that the Federal Court in Calamas did not discuss the constitutionality of s. 49 makes no difference to this conclusion. [60] The facts and decisions in Calamas and Syed Hussain were examined with the Federal Court in Semenyih Jaya concluding that these decisions do not represent a bar to appeal against any decision of the High Court on compensation; that on the facts, both decisions dealt with appeals against an order of compensation made by the High Court… Page 43 of 75 [42] The Federal Court in Nusantara concluded that when the complaints concerned issues of facts together with the application of valuation principles as well as the computation of compensation then such issues are not to be regarded as a question of law: [82] We are of the firm view that the complaints of the respondent essentially concerned issues of fact and/or application of valuation principles when computing the amount of compensation to be awarded for the acquisition. Such issues of fact as well as the application of valuation principles as we have said repeatedly, are not questions of law; certainly not within the narrow and limited remit of what or how such a question of law may be properly and validly taken on appeal under the amended s. 49(1). [83] We agree with the submissions of the appellant that the respondent's complaints relate solely and ultimately to the amount or inadequacy of compensation because of the deductions and adjustments made by the learned judge, a methodology and exercise that a High Court Judge, sitting as the land reference court is perfectly entitled to undertake to determine the market value of the scheduled land. That is Page 44 of 75 precisely the exercise required of the High Court under Act 486. The market value of any land is not a matter of saying so but is subject to proof by evidence and according to the principles for determining compensation as statutorily provided in the First Schedule to Act 486. Those principles have been carefully prescribed so that adequate compensation under art. 13 of the Federal Constitution may be determined. [43] In Semenyih Jaya the Federal Court through the judgment of Her Ladyship Zainun Ali FCJ explained: [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 the ground of the quantum of compensation. Therefore, an aggrieved party has the right to appeal against the decision of the High Court on questions of law. [44] Therefore, the question of whether the Surrendered Area had or had not been surrendered is a question of fact, the determination of which will ultimately result in the computation of compensation. The COA itself Page 45 of 75 conceded that 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. [45] OCSB itself applied to surrender the Surrendered Area and the surrender was approved by the State Authority. The consistent position taken by OCSB that there was no effective surrender of the Surrendered Area as there was no specific written consent by OCSB to surrender the aforesaid Surrendered Area and, that there must be a separate document in writing with its consent is based on the facts of this appeal. [46] OCSB’s appeal at the Court of Appeal was undeniably an appeal in respect of compensation, that is the nominal sum of compensation awarded for the Surrendered Area. Such an appeal falls squarely within the prohibition in the proviso to Section 49 LAA and stands barred. However, OCSB successfully invoked the exception or reservation and persuaded the COA that the questions posed were questions of mixed law and fact and not purely on compensation. I have examined the mixed question of facts and law posed. The question or issues are all related to the sum of compensation that was made by the High Court. Why the amount awarded for the Surrendered Area was calculated and how that sum awarded was wrong? The Learned High Court Judge, assisted by Page 46 of 75 the assessors, having considered all the facts and evidence before her concluded that the area was legally surrendered and that the sum awarded by the Land Administrator was fair and reasonable. The Federal Court in Nusantara reminded that “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.” [47] Therefore, the complaints of OCSB essentially concerned issues of fact and/or application of valuation principles when computing the amount of compensation to be awarded for the acquisition. Such issues of fact as well are not pure questions of law but issues which relate solely and ultimately to compensation, that is, the amount or inadequacy of the nominal compensation awarded. And, where a decision affects compensation, albeit based on a question of law, such a decision is non-appealable. Page 47 of 75 The validity of the surrender of the land [48] In Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v. Orchard Circle Sdn Bhd & Ors And Other Appeals [2018] 1 CLJ 239 (Orchard Circle 1). The complaint by OCSB that was argued and addressed extensively is the infringement of section 8(4) LAA, that is, the lapsed Form D. The COA held that OCSB elected and accepted that the issue before the Land Administrator was on the decision and award of compensation and damages only by participating in the 2nd Land Inquiry, and that the doctrine of res judicata applied to the issue of validity of the acquisition proceedings. Therefore, the issue of surrender is only concerning the decision and award of compensation. [49] The issues before the court in Orchard Circle 1 were whether the learned Judge was correct in finding that the Land Administrator's decision in respect of the second land inquiry contravened Section 8(4) LAA and whether the learned Judge was correct in not awarding damages to OCSB. The COA concluded that: However, we are of the considered view that looking at the totality of the circumstances in this case, it would not be "just and equitable" to allow Orchard Circle to ventilate this issue in the second JR application. Page 48 of 75 [20] As for the doctrine of res judicata, the law is established. (See Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783) In the context of this case, the contention is premised on the fact that Form D which is dated 10 December 2001 is the crucial document in the whole scheme of things was never challenged by Orchard Circle until the second land inquiry. As alluded to earlier, Orchard Circle could have raised the lapsed Form D issue in the first JR application and also could have appealed against the orders of the learned judge in the first JR application. The plea of res judicata also of course applies not only to points on which the court was required to form a view and pronounce a judgment but to every point which belongs to the subject of litigation and which the parties exercising reasonable diligence, might have brought forward at the time (see Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313). [50] It was pointed out by the COA that OCSB did not appeal against the decision of the first JR application by the High Court on its refusal to void the acquisition exercise but instead participated in the second land inquiry. Hence, according to the COA the conduct of OCSB gave rise to a situation where the doctrine of estoppel could be and should be applied. Page 49 of 75 [51] Dissatisfied with the decision of the COA in Orchard Circle 1, OCSB proceeded to file an appeal to the Federal Court. The Federal Court in Orchard Circle 2 set out the main grievances of OCSB that is, it was never given the right of hearing at the first land inquiry and hence applied for the first judicial review application on 30 January 2003. Unfortunately, the first judicial review application was only determined by the learned High Court Judge in 2010. The High Court ordered as follows:

a certiorari quashing the first award; and

a mandamus remitting the matter back to the land office for a second land inquiry. [52] There was no order by the High Court to quash 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, Form D remained intact and valid and further there was no appeal by OCSB against the order of the High Court dated 10.12.2010. As a consequence of the High Court Order 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 Page 50 of 75 in time was for the Land Administrator to commence inquiry for compensation within 30 days. [53] The Federal Court in Orchard Circle 2 held as follows:

that OCSB had benefitted from the first judicial review, the effect of which was the quashing of the first award (certiorari) and proceeded with a second land inquiry (mandamus) in which OCSB had participated. The order for mandamus indicated that Form D was still valid and hence OCSB was precluded and estopped from challenging the validity of Form D in the second judicial review application. By proceeding with the second land inquiry before the Land Administrator and participating in it, OCSB elected and accepted that the issue before the Land Administrator then was on the decision and award of compensation and damages only. That was the position taken by OCSB after the first judicial review proceeding, but in Orchard Circle 2 OCSB took a different stance. Clearly, the doctrine of estoppel applied in this case.

(ii) The issues regarding the validity of the acquisition proceedings and whether OCSB was still the lawful proprietor of Page 51 of 75 the said lands were previously raised in the first judicial review application and it would be an abuse of court process to allow OCSB to renew its challenge on the propriety of the land acquisition proceedings in the second judicial review proceeding. These two issues were caught by the doctrine of res judicata. [54] The Form N filed by the OCSB did not state that the main objection to the acquisition and the computation of compensation was the defective surrender. If indeed it was an important question of law which would affect the acquisition and not solely on compensation then OCSB should have raised the complaint earlier and stated such complaints in Form N. This was never the complaint of OCSB as we can glean from the judgments in both Orchard Circle 1 and Orchard Circle 2. The issue if at all ought to have been specifically stated in Form N and raised before the Land Administrator which OCSB failed to do so and, in the first judicial review application, in which the issues or matter had been decided in finality. [55] Suffian, LP in the case of Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 (FC) (Sri Lempah) explained: Page 52 of 75 When a developer surrenders part of his land for use as access roads, etc., he acts under section 200 of the Code and if it satisfies the conditions set out in subsection (2) of section 201, the approving authority has no alternative but to approve the surrender.

Various steps follow approval and they are all set out in section The approving authority revises the quit rent, notifies the applicant of approval and the revised quit rent makes a memorial of the surrender on the register and issues documents of title, subsection (4). Then the part of the land retained by the applicant is re-surveyed and on completion of the survey the Registrar or Collector, as the case may be, takes action under paragraph (a) of sub-section (3) of section 202. … [56] The approving authority has to approve the surrender of land upon satisfying the conditions under section 201(2) of the NLC, and the steps under section 201(4) of the NLC are merely steps which follow the approval of the surrender of land. This was duly done by the State Authority. Therefore, based on the reasons stated above the COA erred when it decided that it was a mix of facts and law and concluded that the Page 53 of 75 Surrendered Area had not been surrendered to the State Authority according to the NLC. [57] Once the land is surrendered, it would revert and vest in the State Authority as State land, and such land would have the effect of being forfeited under section 131 of the NLC which would render it freed and discharged from all titles and interests subsisting or capable of arising immediately before the forfeiture took effect. Therefore, OCSB's argument, that there was no surrender as the Surrendered Area via Form 12B was for an access road for its commercial development and not for the building of a tolled expressway, is untenable. [58] The High Court having considered the facts and evidence before her concluded that the Surrendered Area had been duly surrendered to the State Authority according to provisions NLC. Her Ladyship explained: [30] This court is of the view that since OC had already surrendered the land in 1998, and the acquisition only took place 1 year later, OC would not have suffered any losses, as that land has been surrendered and no longer belongs to OC. [31] Therefore to compensate OC for any value more than a nominal compensation would be against the intention of the LAA. Page 54 of 75 [59] The acquisition is completed when a memorial is made in respect of all the scheduled land or any part of it to the effect that it has been acquired and has vested in the State Authority. OCSB had agreed to surrender the lands on 23.8.1998 and Lembaga Lebuhraya Malaysia

had notified OCSB of the proposed highway alignment by the appellant on 7.12.1999. The delay to formalise the surrender by endorsing on the physical title was because OCSB did not surrender the original physical title. [60] If the proprietor, in this case, OCSB for some reason is unable to produce the issue document of title because it is in the hands of any person or body as chargee or lienholder, the application shall be accompanied instead by a copy of a request by the proprietor, served on that person or body 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. Upon receipt of such an application, the Land Administrator shall endorse, or cause to be endorsed, a note thereof on the register document of title to the land. [61] OSCB itself had applied to surrender the land and it was approved by the Land Administrator on 11.1.1999. However, OCSB failed to produce the issue document of title as it was in the possession of the Page 55 of 75 bank as chargee of the land. Thus, the endorsement could not be made on the title due to OCSB’s own inability to surrender the title to the land office as required under the law. [62] Following the approvals to the aforesaid applications for sub-division and surrender, a development order was issued to OCSB on 3.6.1998 (1st DO). It was a condition in the 1st DO that the approval was given based on the 1st Layout Plan. OCSB had accepted the conditions in the 1st DO and by accepting the conditions no developments are permitted on all and any portion of the lands that are reserved for public utilities such as roads. [63] Therefore, based on the reasons I have explained I find no error by the High Court Judge in concluding even without OCSB giving the original title for endorsement to be made the surrender of the Surrendered Area is effective and valid. OCSB had effectively surrendered the Surrendered Area in accordance with the provisions of the law. Consequently, there can be no loss suffered by OCSB as that land has been surrendered and no longer belongs or is in the possession of OCSB. Page 56 of 75 Compensation [64] In Land Administrator, District of Gombak v Huat Heng (Lim Low & Sons) Sdn Bhd [1990] 3 MLJ 464 (SC) (Huat Heng), the land administrator who was the appellant appealed against the order of compensation made by the High Court about the acquired land for the project for the widening of the Kepong-Selayang Pandang Highway, the High Court awarded compensation in the sum of $20 per sq. ft. Before this, the land administrator issued an order for the value of compensation of $10 as nominal compensation. The acquisition was declared under section 8 of the LAA 1960 via the Gazette of the State of Selangor dated 31.07.1986, which was also the date of valuation. [65] The subject land in Huat Heng was purchased from Syarikat Selangor Development in 1980 for agricultural use. After the transfer was completed in 1983, the respondent who was the current proprietor applied to the Government of the State of Selangor for a change of condition of the subject land from agriculture to building. Subsequently, such an application was approved by the Selangor State Executive Council on 24.1.1985. The respondent was then informed of the approval on 26.4.1985 through a letter from the District Land Office, which notified that such approval was subject to several express conditions including the following condition to surrender the land: Page 57 of 75 (xv111) The proprietor is requested to surrender to the Government the lands which will be used for public purposes as indicated in the site plan. [Translated from Bahasa Malaysia.] [66] The Supreme Court allowed the appeal and restored the order of the land administrator, upon the following grounds:

The express condition to surrender the land had been accepted by the respondent who was the proprietor of the land, which had made all the payments required for such approval.

The relevant principle concerning compensation is well settled, that is the compensation awarded should as far as practicable place the claimant in the same financial position as he would have been in had there been no acquisition of the land.

It is not proper for the proprietor of the land to submit that it must be awarded compensation according to the market value.

Furthermore, the proprietor of the land must not be allowed to deny the express condition which it had accepted when receiving the approval for the change of condition of the land. [67] The meaning of 'market value' under section 1 of the First Schedule to the LAA is inapplicable to the land given the facts of that case, i.e. the date of declaration of the acquisition (31.7.1986) is after the date of the imposition of the condition (26.4.1985) and the date when the approved plan was registered (11.12.1985). [68] The underlying principle enunciated in the case of Huat Heng is that the compensation awarded should as far as practicable place the claimant in the same financial position as he would have been in had there been no acquisition of the land, as follows: We are of the opinion that the judge of the High Court has failed to apply the true principle of compensation. The relevant principle concerning compensation is well settled, that is the compensation awarded should as far as practicable place the claimant in the same financial position as he would have been in had there been no acquisition of the land. This principle is stated Page 59 of 75 in the textbook Compulsory Acquisition and Compensation by Sir Frederick Corfield QC and RJA Carnwath at p 161 as follows: The basic principle of the law of compensation is that the sum awarded should as far as practicable place the claimant in the same financial position as he would have been in had there been no question of his land being compulsorily acquired. [Original text] Applying the above principle to the present case we are of the considered view that it is not proper for the proprietor of the land to submit that it must be awarded compensation according to the market value. It is clear to us that the proprietor of the land must not be allowed to deny the express condition that it had accepted when receiving the approval for the change of condition of the said land. It is clear that the approval permits the said land to be used for industrial buildings in accordance with the site plan as certified by the Director of Town and Country Planning, state of Selangor. The site plan prepared by the respondent itself had also been approved by the said department and the relevant government departments and agencies and the plan had also been registered on 11 December 1985 as plan no Page 60 of 75 JPBK/B11/98/85/PD. The land acquired is reserved land in the said plan in accordance with the condition as stated above. [69] In Tan Yen Foon v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2008] 7 CLJ 267, Abdul Malik Ishak J applied the principles expounded in Huat Heng and concluded that even though there is no endorsement to show the surrender of the subject property in the land office but the plaintiff Appellant had by conduct surrendered the Scheduled Land to the State Authority for road reserve. Further, it was decided that when a development order is issued, there must be set back for road reserve which has to be surrendered to the State Authorities. [70] OCSB had on its motion applied to surrender the land and the application for surrender was approved by the authorities for its development before the Gazette was published. Form 12B was signed and submitted by OCSB as required under the NLC. The Federal Court Orchard Circle 2 in its grounds of judgment said that “… 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 to the owner.” Page 61 of 75 [71] Based on the Layout Plan submitted and the Development Order approved, OCSB knew that the Surrendered Area was reserved for public utility. The Land Administrator had conducted a site visit on 22.6.2011 to determine the actual area that was not surrendered by OCSB and OCSB had also prepared a plan showing the area that was not surrendered by OCSB. The only reason why the surrender was not endorsed on the title was due to OCSB’s refusal to surrender the original issue document of title for the Land Office to endorse the surrender. However, the endorsement was made in 2012. Even before the endorsement, based on the facts and evidence there was a valid surrender of the Surrendered Area by OCSB. The fact that OCSB had effectively surrendered the Surrendered Area in accordance with the provisions NLC is a relevant consideration in the determination of adequate compensation. Hence, the Surrendered Area cannot be assessed based on market value as the land is no longer in the possession of OCSB. Thus, nominal value can be ascribed in the determination of compensation relating to the Surrendered Area. Bayangan Sepadu [72] I find it necessary to distinguish the facts and the issues in Bayangan Sepadu and this present appeal. The question posed in Bayangan Sepadu was whether it is a mandatory requirement Page 62 of 75 under section 196(1)(c) read with 196(2)(a) of NLC that consent in writing in respect of the CIMB charge must first be obtained before the previous owners can surrender the land to the third respondent, and whether it is an undisputed fact that there was no consent in writing has been obtained by the previous owners from CIMB to surrender the land to the third respondent. [73] Bayangan Sepadu and the appeal before us are distinguishable. The main distinctive fact is that in Bayangan Sepadu the land in dispute was not subject to an acquisition but a judicial sale. The plaintiff had on 25.3.2011 purchased the land by a public auction. The judicial sale was on the application of the chargee bank, CIMB Bank Berhad (CIMB). The plaintiff conducted a search; however, the search did not show the existence of the retention pond and the structures built on the land nor did it indicate that the portion of the land had been surrendered to the defendants by the previous owners. The plaintiff successfully bid for the land in the public auction and purchased the land for RM3.66 million. After the auction, the plaintiff carried out another land search on 4.5.2011 which, according to the plaintiff, indicated that the portion of the land where the retention pond and the structures were built was never surrendered to the defendants. Page 63 of 75 [74] Sometime in July 2011, the plaintiff engaged a licensed land surveyor to conduct a survey of the Land which revealed that the Retention Pond was on the Land and that there were also other permanent structures on the Land; a Tenaga Nasional Bhd (TNB) substation, staff quarters, huts and storeroom (the Structures) surrounding the retention pond which form part of the Land, about 9.554 acres out of 17.49 acres. The plaintiff confirmed that the certified plan of the Land with the Department of Survey and Mapping Malaysia shows that the retention pond is part of the Land and that the Defendants had fenced up and erected the structures next to the retention pond. [75] Despite the absence of some documents, the plaintiff's solicitors wrote to the 1st defendant on 16.3.2017 and demanded an irrevocable and unconditional undertaking among others, the delivery of vacant possession of the Land and removal of the fence and structures within three days. The plaintiff then proceeded to file the suit on 20.3.2017. The defendants then filed an application for striking out on 26.10.2017 but the application was subsequently withdrawn and the matter proceeded for trial. [76] It is the plaintiff’s case that Lot 18903 has never been validly transferred or surrendered to the defendants to construct the retention Page 64 of 75 pond and the structures as CIMB’s consent as the chargee was never obtained as required under section 204 of the NLC. The main complaint in Bayangan Sepadu was the existence of the retention pond and the structures and whether the land that was auctioned included the retention pond and the structures. Whether the purchaser in the public auction is bound by a promise made by the previous owner as such a promise gives rise to an unregistered interest and whether the defendants had committed trespass by wrongly entering and proceeding to construct the retention pond on the wrong lot. The surrender was not registered on the title. The Federal Court in Bayangan Sepadu held that there was no evidence to show that any of the procedures as provided under sections 196, 200 and 201 NLC had been adhered to. There was also no consent in writing from CIMB as the chargee with a registered interest in the land as required by section 196(1)(c) read together with section 196(2) of the same Act. [77] It was held by the Federal Court in Bayangan Sepadu that the surrender of any private land must be made with the consent of both the registered proprietor and the State Authority and the relevant statutory provisions of the NLC must be strictly to ensure the interest of the registered proprietor are safeguarded. There was no consent of CIMB/chargee and the parties had relied on the documents and/or letters Page 65 of 75 produced in particular in relation to the existence of the retention pond and the structures on the land. Thus, on the facts, 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. [78] In this appeal, OCSB as owner of the land had applied to voluntarily surrender the Surrendered Area to the State Authority and the said application by OCSB was approved by the State Authority. The State Authority could not proceed with the endorsement as the title was with the bank as the chargee of the Surrendered Area, a fact of which OCSB was well aware. The title was only given to the State Authority in 2012 and steps were taken to endorse on the title. [79] The reliance by the Court of Appeal of the Bayangan Sepadu case is therefore misplaced, and as I have alluded to, the facts and the law applicable are entirely different. In the appeal before us, the title was not endorsed as the appellant had not surrendered the issue document of title upon the approval of the surrender by the Land Administrator on 11.1.1999. The title was only given in 2012 making it possible for the endorsement to be effected as required by the law. Page 66 of 75 [80] In Orchard Circle 2, Zabariah Mohd Yusof FCJ eloquently explained that the State Authority can only withdraw the acquisition of any land of which possession had not taken place, as follows: [38] Section 8(5) of the LAA provides that where a declaration has lapsed, ss. 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 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 s. 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

(1) The State Authority shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

A notification in Form LA shall be published in the Gazette and all proceedings already taken or being taken in Page 67 of 75 consequence of the declaration in subsection 8(1) in respect of the land shall cease to have effect.

Whenever the State Authority withdraws from any acquisition under subsection (1), the Land Administrator, after notifying the person interested in Form LB, shall:

determine the amount of compensation due for the damage, if any, done to such land by action taken under s. 5 and not already paid for under s. 6, and pay such amount to the person injured;

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

prepare and serve on each person interested a notice in Form LC.

The First Schedule shall apply, so far as may be, to the determination of the compensation payable under this section.

For the purpose of this section, subsection 14(5) shall be applicable if necessary.

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).

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 February 2003 in accordance with s. 22 of the LAA. The memorial was endorsed Page 69 of 75 in the register document of title after issuance of Form K as evidenced by the search made on the title dated 7 May 2014. … [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.” [Emphasis added] [81] Hence in the appeal before us, the acquisition of the Lands was effected after the taking of possession and vesting of the Lands in the State Authority. Accordingly, the issue of the validity of the surrender of the Surrendered Area would not have any bearing on the calculation of the compensation. [82] This Court in Orchard Circle 1 held that OCSB had benefited from the 1st JR Application, which had granted an order of certiorari to quash the 1st Award and a mandamus for the 2nd Land Inquiry participated by OCSB, indicating that Form D was still valid. Therefore, OCSB was precluded and estopped from challenging the validity of Form D in the 2nd Page 70 of 75 JR Application. Further, OCSB had elected to accept that the issue before the Land Administrator was on the decision and award of compensation and damages only by participating in the 2nd Land Inquiry. [83] Orchard Circle 1 held that the doctrine of res judicata applied to the issues regarding the validity of the acquisition proceedings and whether Orchard Circle was still the lawful proprietor of the Lands. These two issues were raised in the 1st JR Application, and as such it would be an abuse of court process to allow OCSB to challenge the propriety of the land acquisition proceedings in the 2nd JR Application. [84] The applicability of the doctrine of estoppel and the doctrine of res judicata was an election made by OCSB in the conduct of litigation and hence OCSB was not allowed to raise the issues regarding the validity of the acquisition proceedings and whether it was still the lawful proprietor of the Lands. By participating in the 2nd Land Inquiry, OCSB has elected and accepted that the issue before the Land Administrator was on the decision and award of compensation and damages only. [85] As enunciated in Nusantara the appeals must not relate to a decision which comprises an award of compensation as stipulated in the proviso to section 49 (1) LAA. To ensure the finality of decisions on Page 71 of 75 compensation there shall be no further appeal on the matter. If the High Court's decision is a decision on compensation, there shall be no appeal to the Court of Appeal. Section 68(1)(d) of the CJA 1964 provides that no appeal shall be brought to the Court of Appeal where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final. [86] OCSB’s appeal to the Court of Appeal is centred on compensation on the basis that there was no valid surrender of the Surrendered Area. In light of the provisions under LAA and in particular Sections 37(2),40D and 49(1) of LAA and Section 68(1)(d) of Court of Judicature Act 1964 (CJA) and applying the principles laid down by this court in Semenyih Jaya and Nusantara, OCSB has no right of appeal as the central issue is the amount of compensation awarded by the High Court. The complaints by OCSB concerned issues of facts together with the application of valuation principles as well as the computation of compensation and hence such issues cannot to be regarded as a question of law. [87] The issue of the failure to endorse the memorial by the Land Administrator; and thus, there was no effective surrender due to non-endorsement on the title, was only raised when OCSB was informed of Page 72 of 75 the acquisition of the SILK Highway. OCSB had already agreed to surrender the Surrendered Area when they applied for the surrender which was subsequently approved in January 1999. Therefore, no market value can be ascribed to the said Surrendered Area. Furthermore, the non-endorsement of the surrender on the title has no relevance to the determination of the market value of the land as OCSB has agreed to surrender the Surrendered Area. [88] There was a serious misdirection by the Court of Appeal remitting the matter to the High Court for an assessment of the value of the Surrendered Area on the basis that it had not been properly surrendered. At all material time before the High Court OCSB was not denied the right to present its case on the basis that the Surrendered Area had yet to be surrendered. [89] To permit a party, in this case, OCSB, to appeal a claim on compensation on the basis of non-endorsement on the title due to the delay by OCSB itself to surrender the title to the Land office will have far-reaching consequences. It will open the floodgates which will ultimately result in a dramatic increase of appeals on compensation. In essence, contravening and circumventing the provisions of the LAA as well as the principles enunciated by this Court in Semenyih Jaya and Nusantara. Page 73 of 75 [90] Based on the aforementioned reasons and in the light of the above settled principles, I find there are merits in the issues raised by the appellant. Having carefully considered the submissions of all parties and for all the reasons aforesaid, the appeal is allowed with costs. The decision of the Court of Appeal is set aside and the decision of the High Court is affirmed. (HASNAH MOHAMMED HASHIM) Judge Federal Court of Malaysia Putrajaya Dated: 12 March 2025 AUTHORITIES Legislation referred to: Land Acquisition Act (“LAA”) 1960, s. 3, s. 7, s. 8, s. 8(4), s. 9, s. 12, s. 36, s. 37, s. 49. National Land Code (NLC), s. 196(1)(c), s. 196(2)(a), s. 200 & s. 201. Cases referred to: Amitabha Guha & Anor v. Pentadbir Tanah Daerah Hulu Langat [2021] 3 CLJ 1. Bayangan Sepadu v. Jabatan Pengairan dan Saliran Negeri Selangor & Ors [2022] 2 CLJ 1. Page 74 of 75 Land Administrator, District of Gombak v. Huat Heng (Lim Low & Sons) Sdn. Bhd. [1990] 3 MLJ 464. Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn. Bhd. [1979] 1 MLJ 135. Pentadbir Tanah Daerah Johor v Nusantara Daya Sdn. Bhd. [2021] 7 CLJ

Semenyih Jaya Sdn. Bhd. v. Pentadbir Daerah Hulu Langat and another case [2017] 3 MLJ 561, FC. Sistem Lingkaran Lebuhraya Kajang Sdn. Bhd. v. Orchard Circle Sdn. Bhd. & Ors And Other Appeals [2018] 1 CLJ 239. Tan Yen Foon v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2008] 7 CLJ 267. Counsel for the Appellant Thangaraj Balasundram Karen Lee Foong Voon Cheah Kha Mun Ho Zhi Yee Messrs Wong Kian Kheong D1-U5-01, Solaris Dutamas No. 1, Jalan Dutamas 1 50480 Kuala Lumpur Counsel for the 1st Respondent Sri Dev Nair Mohd Hafiz Mahmund Ashok Kumar Puri Page 75 of 75 Messrs Sri Dev & Naila 619, Menara Mutiara Majestic, 15, Jalan Othman Seksyen 3 46000 Petaling Jaya Selangor Darul Ehsan Counsel for the 2nd Respondent Etty Eliany Tesno Nor Fariza Ridzuan Pejabat Penasihat Undang-Undang Negeri Selangor Tingkat 4, Bangunan SSAAS 40503 Shah Alam