SPECIAL-MADE IRON & STEEL SDN. BHD. v 1. ) Pentadbir Tanah Daerah Petaling (BA-25-2-01/2022)

1.

MAJLIS BANDARAYA SHAH ALAM (MBSA) …RESPONDEN-RESPONDEN 17/07/2024 11:04:41 Kand. 49 JUDGMENT Introduction [1] This application for judicial review by the applicant seeks to obtain the following:

an order for certiorari to quash and/or set aside the award of compensation in Form G dated 5 May 2003; and

(ii) an order for mandamus to compel the Land Administrator to conduct a fresh enquiry for the purpose of determining the present value of the land and to assess the amount of compensation to be awarded to the applicant. Reliefs Sought [2] The applicant sought the following reliefs as reproduced below: “a. Suatu perintah kebenaran bagi permohonan untuk semakan kehakiman terhadap jumlah awad pampasan dalam Borang G bertarikh 5.5.2005, yang dikeluarkan oleh Responden di bawah seksyen 14 Akta Pengambilan Tanah 1960 terhadap pengambilan tanah-tanah yang dipegang di bawah hakmilik H.S(D) 304281, PT 712, pekan Subang, Daerah Petaling Negeri Selangor (dahulunya HSM 11194, Lot 3999) dan H.S.(D) 304282, PT 713 Pekan Subang, Daerah Petaling, Negeri Selangor (dahulunya HSM 10443, PT 4000) (Tanah-Tanah tersebut); b. Suatu perintah Certiorari bagi mengenepikan jumlah awad pampasan dalam Borang G bertarikh 5.5.2003 tersebut; c. Suatu Perintah Mandamus yang mengarahkan Responden untuk: i. Membuat siasatan semula di bawah Seksyen 12 Akta Pengambilan Tanah 1960 untuk menentukan nilai pasaran semasa Tanah-Tanah tersebut berdasarkan status dan ciri-ciri Tanah-Tanah tersebut ketika Perintah ini dikeluarkan; dan ii. Memberikan Pemohon suatu awad pampasan yang mencukupi terhadap pengambilan Tanah-Tanah tersebut. d. Kos permohonan ini ditanggung oleh Responden; e. Masa untuk permohonan ini difailkan dilanjutkan sehingga permohonan ini difailkan; dan f. Perintah untuk relif selanjutnya yang difikirkan adil dan suaimanfaat oleh Mahkamah selaras dengan kausa-kausanya di bawah Aturan 53 Kaedah-Kaedah Mahkamah 2012 dan/atau Perenggan 1 dalam jadual kepada Akta Mahkamah Kehakiman 1964.” Factual background [3] The applicant at the material time was the registered proprietor of two lands held under H.S.(D) 304281, PT 712, Pekan Subang, Daerah Petaling, Negeri Selangor (previously known as HSM 1194, Lot 3999) and H.S.(D) 304282, PT 713 Pekan Subang, Daerah Petaling, Negeri Selangor (previously known as HSM 10443, PT 4000) (hereinafter will be referred to as “the lands”). [4] The subject lots were acquired on behalf of MBSA for the purpose of “Projek Pembinaan Jalan Berturap dan Longkang Konkrit di Sepanjang Simpanan Laluan/Saliran Anak Sg. Pelumut dan di Lorong ID, Kg. Baru Subang, Seksyen U6, Shah Alam” (“the project”). [5] On 11 April 2002, the acquisition of the lands was gazetted. On 24 September 2002, the applicant was notified via two Form E documents to attend an enquiry to determine the value of the lands and assess the compensation amount. [6] On 5 May 2003, the Land Administrator issued two awards in Form G under section 14 of the Land Acquisition Act 1960 for the applicant’s lands. The compensation awarded was RM48,358.35 for Lot 3999 and RM63,801.00 for Lot 4000. The applicant did not file any objections to the awards. [7] On 5 May 2003, two Form H documents were also issued to the applicant. The compensation was not paid to the applicant, prompting the applicant to file this application. [8] The first respondent claimed in its Affidavit in Reply that the obligation to pay the compensation to the applicant lies with the second respondent. The second respondent argued that it did not receive any notice from the first respondent to make the payment. [9] The applicant contended that the compensation awarded has not been paid by the respondents since 2003. Therefore, the applicant is seeking the court to quash the compensation award and compel the Land Administrator to conduct a fresh enquiry to determine the current value of the land for compensation assessment. Issues before this court [10] Succinctly, the issues raised for this court’s consideration are:

whether this application is time-barred as it was only filed on 6 January 2022 which is 18 years after the said decision;

(ii) whether the applicant is estopped by principle of res judicata from filing this application as there was an application of judicial review filed by the applicant via BA-25-75-09/2020 dated 11 September 2020 on the same facts and issues;

(iii) whether there the enquiry conducted by the first respondent was done incompliance with the Land Acquisition Act 1960 (“LAA”); and

(iv) whether the grounds relied by the applicant justify this court to exercise its discretion to nullify the award of the Land Administrator dated 5 May 2003 and order a fresh enquiry to determine the amount of compensation; Principles relating to Judicial review [11] Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review. [12] It is trite law that a decision in relation to the exercise of public duty or function may be reviewed on grounds of illegality, irrationality, procedural impropriety or disproportionality. [13] These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [14] On the grounds for judicial review, see also the cases of Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537; and R Rama Chandran v. Industrial Court Of Malaysia & Anor [1997] 1 CLJ 147. [15] Further, in the case of Syarikat Kenderaan Melayu Kelantan v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317, the error of law has been described as follows: “It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” [16] Founded on the principles of judicial review, this court will proceed to consider the grounds raised by the applicant in this case. Analysis [17] In this application for judicial review, based on the reliefs sought, the applicant is requesting for an order of certiorari to set aside the compensation award that has been given and subsequently a writ of mandamus for this court to direct the Land Administrator to conduct a reassessment of the acquired lands. [18] To consider this application for judicial review, this court will examine the issues raised before this court.

Whether this application is time-barred as it was only filed on 6 January 2022 which is 18 years after the said decision.

(ii) Whether the applicant is estopped by principle of res judicata from filing this application as there was an application of judicial review filed by the applicant via BA-25-75-09/2020 dated 11 September 2020 on the same facts and issues. [19] These issues will be considered together. The facts are that the applicant filed a judicial review application (JR1) on 11 September 2020, which was scheduled for a hearing on 21 October 2021 before the former High Court Judge. During the hearing, the first respondent raised an objection regarding the applicant's failure to comply with the time limit as prescribed under Order 53 rule 3 of the Rules of Court 2012. Subsequently, the applicant withdrew JR1, agreeing to pay RM1,000.00 in costs to the respondent. [20] Currently before this court, the applicant has submitted the same application as JR1, with the added request for an abridgement of time to file this application. The first respondent argues that the objection and subsequent withdrawal of JR1 can be viewed from two perspectives. Firstly, that the applicant acknowledges their late filing in challenging the compensation award and secondly, the first respondent asserts that the action is time-barred, and limitation is their defence. [21] In this regard, it was submitted by the first respondent that this application for judicial review is akin to correction of the defect in the previous pleading. As such, it was argued that this application for judicial review shall be estopped. [See: Section 115 of the Evidence Act 1950 and the Federal Court in Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283]. [22] Pertaining to the issue that the judicial review is filed out of time, it is observed the Honourable Attorney General did not object to this application. The applicant submitted that the delay in the filing of this application is due to the applicant having discussions with the respondents. It was further argued that the applicant’s constitutional right had been contravened as the applicant had yet to be paid the compensation sum. [23] In this regard, this court is allowed pursuant to Order 53 of the Rules of Court 2012 to abridge the time should an application for judicial review be filed out of time. Order 53 rule 3(6) of the Rules of Court 2012 states that an application for judicial review shall be made promptly and in any event within 3 months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. [24] The need for a strict and stringent adherence to the time period which has been provided in Order 53 rule 3(6) of the Rules of Court 2012 is meant to ensure the public authority has finality in their decision. It is intended to protect those entrusted with the enforcement of public duties against groundless harassment and to reduce delays in resolving applications in the interest of good administration. [See: Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865 and Ketua Pengarah Kastam Dan Eksais v. Coach Malaysia Sdn Bhd [2019] 4 CLJ 454] [25] The Rules of Court 2012 make provision for the court to grant an extension of time to file the judicial review application should there be a good reason for the court to do so. In this regard, reference is made to Order 53 rule 3(7) of the Rules of Court 2012 which is reproduced below: “53. 3(7) The Court may, upon an application, extend the time specified in rule 4(1) and if it considers that there is a good reason for doing so.” [26] The facts in this application is clear. This application is out of time. The applicant had previously on 21 October 2021 withdrew JR1 as it was out of time, agreeing to pay RM1,000.00 in costs to the respondent. [27] The applicant has now filed this application with a prayer seeking this court to abrige time. This court is mindful that this application relates to the applicant’s rights pursuant to Article 13 of the Federal Constitution. Article 13(1) of the Federal Constitution guaranties that no person shall be deprived of property save in accordance with law. Specifically, pertaining to compulsory land acquisition, Article 13(2) of the Federal Constitution provides that no law shall provide for the compulsory acquisition or use of property without adequate compensation. [See: Tegas Sejati Sdn Bhd v. Pentadbir Tanah dan Daerah Hulu Langat & Anor and another appeal; MMC Tepat Teknik Sdn Bhd v. Pentadbir Tanah Daerah Klang & Anor and other Appeals [2023]9 CLJ] [28] As this application for judicial review relates to the applicant’s constitutional right as provided for under Article 13 of the Federal Constitution, this court is of the considered view that the extension of time sought by the applicant ought to be allowed. Hence, the issue that this application is time-barred no longer is an issue. [29] With regard to the issue of res judicata, JR1 was withdrawn by the applicant before the learned High Court Judge heard the matter. In other words, the matter in JR1 was not heard and disposed off. This court is therefore satisfied that the issue of res judicata does not arise and is not an issue before this court.

(iii) Whether there the enquiry conducted by the first respondent was done incompliance with the Land Acquisition Act 1960 (“LAA”)

(iv) Whether the grounds relied by the applicant justify the Court exercise its discretion to nullify the award of the Land Administrator dated 5 May 2003 and order a fresh enquiry to determine the amount of compensation [30] The applicant contended that the compensation awards should be nullified and reassessed based on the current value of the lands. The applicant argued that the applicant had incurred costs for extending the lease, paying quit rent, and the premium for changing the land use, all without knowing the lands had been acquired by the first respondent in 2003. [31] The facts in this application for judicial review demonstrate the first respondent conducted inquiries on 31 October 2002 and 27 March

The applicant attended the inquiry on 27 March 2003. Afterward, on 2 April 2003, the applicant issued a letter (“MF-13” of Afidavit Jawapan Responden, Enclosure 8) stating that the applicant had no objection to the acquisition and that the applicant requested the first respondent to reconsider the awarded amount, taking into account the property’s value, renovations, and the factory's rental on the land. [32] The first respondent then issued the statutory form of Form G dated 5 May 2003 (“Written Award of Compensation”) as required under section 14 of the LAA. Subsequently, Form H (“Notice of Award and Offer of Compensation”) dated 5 May 2003 was issued by the respondents pursuant to section 16 of the LAA. [33] Both Forms G and H were served on the applicant, who did not file any objection to the awarded amount as required by the mandatory provision under section 38 of the LAA. The applicant's only reason for failing to file any objection is their claim of being unaware of the acquisition, as it was managed by the previous director. [34] In the view of this court, the enquiry conducted by the respondent was done in compliance with the LAA. Both Forms G and H were served to the applicant and the applicant did not file any objection to the said decision. [35] Did the applicant have knowledge that the lands had been acquired by the first respondent in 2003? The applicant’s letter dated 2 April 2003 demonstrates the applicant was aware of the land acquisition by the first respondent. Moreover, this court finds no evidence presented before this court to demonstrate that only one director had knowledge of the land acquisition. There was no averment that the letter was prepared without the authority or the document was forged or the person who signed the letter was not authorized. [36] The law recognizes the separate entity of the directorship and the company itself. The claim of the applicant of having no knowledge is inconsistent with their actions of holding meetings to settle the compensation. [37] There is also no evidence before this court to indicate that the director exceeded his authority in handling the land acquisition. If the applicant were unaware of the land acquisition and are now challenging the compensation, the applicant, in this court’s view, should have filed for an abridgement of time to submit Borang N. [38] Grounded on the evidence available before this court, this court finds the contention by the applicant that they did not know of the land acquisition untenable. This court is therefore satisfied the applicant was aware and had knowledge of the land acquisition. This court therefore cannot agree with the contention by the applicant that they were unaware of the land acquisition. [39] The applicant further asserts that they became aware of the acquisition while applying for the development order in 2016 but took no action at that time. The applicant had surrendered part of the land (same with the land that involved in acquisition) for Planning Permission to the second respondent despite the acquisition. The first respondent argued that the applicant’s claim is an afterthought and demonstrates ignorance of the law. [See: Syarikat Pukin Ladang Kelapa Sawit Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 6 CLJ 1032] [40] The applicant argued that they had to change the use of the lands in 2007 because they planned to build a steel factory for Oh Tung Sang’s company on the lands. However, the applicant’s factory had been on the lands since 2007. The factory was part of the second respondent’s “Program Pemutihan Kilang Tanpa Kebenaran di Negeri Selangor” which aimed to legalize factories built without approval and without a development order. [41] Based on the development order the second respondent never required the applicant’s 10,929 sqft factory to be demolished since the acquired land was only 8,942.77 sqft, affecting only the factory gate. Therefore, this court is of the considered view that the applicant’s claim that they had to change the land use to build a steel factory for Oh Tung Sang’s company is unsupported. [42] This court is satisfied the grounds relied on by the applicant to justify this court to exercise its discretion to nullify the award of the Land Administrator dated 5 May 2003 and order a fresh enquiry to determine the amount of compensation is without merit. [43] In the view of this court, this application was filed solely because the applicant was dissatisfied with the compensation amount. In the event the applicant is dissatisfied with the amount of compensation awarded, the LAA provides for an appropriate course of action. The applicant would be required to file Form N (“Application That An Objection Be Referred To Court”) as provided under section 38(1) of the LAA. [See: Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v. Inch Kenneth Kajang Rubber Ltd & Anor Other Appeals [2011] 4 MLJ 40] [44] In terms of the procedural requirement at the land enquiry, this court finds no procedural non compliance by the first respondent when the first respondent made the award which the applicant is now challenging. [45] This court observes that the acquisition of the lands was conducted urgently under sections 18(b)/19 of the LAA. Forms K and I were issued simultaneously on 2 April 2003. However, there was no endorsement on Form K as required by section 23 of the LAA, which is necessary for the completion of the acquisition and the vesting of the land to the state authority. In the case of United Allied Empire Sdn Bhd v. Pengarah Tanah dan Galian Selangor & Ors [2017] 8 CLJ 173, the Court of Appeal ruled that the endorsement of the memorial on the issue of Form K on the Issue Document of Title of the acquired land is mandatory. No explanation was given by the second respondent as to why there is no endorsement in Form K. [46] As there is no endorsement on Form K, this court finds the acquired land to be with the applicant as the lands was never vested. The applicant had enjoyed and continues to enjoy the acquired land to this day. Conclusion [47] For the aforementioned reasons, this court is of the considered view there is no illegality, irrationality, Wednesbury’s unreasonableness or proportionality, to enable this court to grant an order of certiorari and a subsequent order for mandamus. This court therefore dismisses this application for judicial review with no order as to costs. Date: 17 July 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For the applicant: Nazri Yahya Tetuan Nazri Yahya & Co. Advocates & Solicitors 177-2, Jalan Lanchang, Taman Sri Bahtera, Cheras, 56100 Kuala Lumpur. nyco.legal@gmail.com +6 03 9134 1587 For the 1st respondent: Khairul Nizam bin Abu Bakar Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan, Tingkat 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah 40512 Shah Alam, Selangor. +6 03 5544 7183 For the 2nd respondent: Azmer bin Saad, Nur Zalikha binti Noor Kashfi Tetuan Lainah Yaacob & Zulkepli Advocates & Solicitors No. 7C-2, Tg. 3, Jalan Medan Tuanku, 50300 Kuala Lumpur. lyzliti@gmail.com +6 03 2697 1781