TEE KIM ONG v Pentadbir Tanah dan Daerah (BA-15-234-07/2018)

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1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR, MALAYSIA GUAMAN SIVIL NO.: BA-15-234-07/2018 ANTARA TEE KIM ONG (No. K/P: 580629-10-5699) …PEMOHON DAN PENTADBIR TANAH DAERAH KLANG …RESPONDEN DAN WEST COAST EXPRESSWAY SDN BHD (NO. SYARIKAT :339890-P) … PIHAK BERKEPENTINGAN GROUNDS OF JUDGMENT Introduction [1] The present proceedings arise from the Applicant’s objection to the amount of compensation decided by the Land Administrator in respect of a portion of his land which was compulsorily acquired by the Selangor State Authority. The Applicant was one of the 8 co-owners of the said land identified as Lot 1552 GRN 45760 Mukim Kapar, Klang, Selangor. [2] West Coast Expressway Sdn Bhd (“WCE”) is a party interested these land reference proceedings. WCE has applied to strike out Form O by which these proceedings were commenced, on the ground that Form O filed by the Land Administrator on 30.7.2018, was filed beyond the 6 months from Form N, as stipulated in the Land Acquisition Act 1960. [3] In response thereof and in order to regularize the present proceedings, the Applicant then applied for an extension of time to file Form O to 30.7.2018, the date it was filed. Factual background [4] A history of litigation precedes the present proceedings. I shall also add that the material facts upon which both the applications rely on, are not in dispute. [5] By way of Selangor Gazette Notification No.587 dated 18.2.2016, the Applicant’s land was required to be taken in acquisition for a project known as Projek Lebuhraya Persisiran Pantai Barat (LPB) Seksyen 6, Mukim Kapar Daerah Klang, Selangor. [6] Consequent thereto, the Land Administrator exercised his functions under the Land Acquisition Act 1960, (“Act 486”) to determine compensation. [7] On 24.10.2017, the Land Administrator made an award in Form H. The Applicant was dissatisfied with the amount of compensation. He filed an objection in Form N dated 28.11.2017 with the Land Administrator. [8] By a reference in Form O, the Land Administrator referred the Applicant’s objection to the Court on 30.7.2018. [9] The land reference was heard and decided by the High Court on 14.7.2020. Only 2 parties were heard in the proceedings, namely the Applicant and the Land Administrator. The High Court increased the compensation payable to the Applicant. No appeal was filed by either party in respect of the decision to increase compensation. What remained to be done was for the Land Administrator to pay the increase in compensation to the Applicant. [10] On 4.11.2022, in a surprising move, WCE filed Originating Summonses against 5 of the co-owners of the said land together with the Land Administrator in the Shah Alam High Court (“1st OS”). WCE sought to set the judgment of court dated 14.7.2020 and to participate in the land reference to be re-heard. Another set of Originating Summonses were filed against the other 3 co-owners in another court seeking the same orders (“2nd OS”). [11] On 17.5.2023, the orders sought in the 1st OS were granted. No appeal was brought against the decision of the High Court. As a result of the judgment, parties in the 2nd OS consented for the same orders to be granted on 8.11.2023. The suit against the Applicant belonged to the 1st OS. [12] Following the setting aside of the judgment of 14.7.2020 to allow an increase in compensation, the present land reference had to be re-heard. The requisite notices to all parties were then sent out in compliance with the provisions of Act 486. [13] After several case managements, this court then set the present land reference for hearing on 21.11.2024. Before the land reference could be heard, WCE filed enclosure 50 to strike out Form O, prompting the Applicant herein to file enclosure 52 for an extension of time. Contention of the parties [14] WCE contends that firstly, Form O ought to be filed in court within 6 months from Form N as mandated by s. 38(5) of Act 486. Form N was dated 28.11.2017, but Form O was filed only on 30.7.2018 which was beyond the stipulated six months. Secondly, the provisions of s. 38(5) are mandatory, and that being the case, this court has no jurisdiction to hear the land reference, hence it ought to be struck out. [15] The Applicant contends in reply that the provisions relied on are not mandatory. Further, the filing of Form O is not within his control as it is the duty of the Land Administrator to do so, upon receipt of the Applicant’s objection in Form N. On the Applicant’s part, he had complied with his statutory obligation by filing his objection in Form N within the period stipulated. Lastly, even if Form O was filed out of time, he is now applying to extend the time provided for pursuant to s. 38(6) of Act 486 in order to regularize the land reference. Analysis and decision of this Court [16] The material dates are not in dispute. To recapitulate, Form N was filed with the Land Administrator on 28.11.2017. Form O which had to be statutorily filed within 6 months of Form N, was only filed on 30.7.2018. [17] For ease of reference, the provisions of s.38 of Act 486 is set out below, Form and content of application, etc.

Subsection

(2) Every application under subsection (1) 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.

Subsection

(3) Every application under subsection (1) shall be made—

Subsection

(4) The period of six weeks prescribed by paragraph (3)(a) and the periods of six weeks and six months prescribed by paragraph (3)(b) shall not be capable of enlargement by any Court, except in such special circumstances as the Court may think fit.

Subsection

(5) On receiving any application under subsection (1) the Land Administrator shall, subject to section 39, within six months refer the matter to the Court by a reference in Form O.

Subsection

(6) Where the Land Administrator has failed to make a reference to the Court within the period specified in subsection (5), the Land Administrator or any person interested may apply to the Court for an extension of the said period.

Subsection

(7) Where the Land Administrator has failed to make a reference to the Court within the period specified in subsection (5) or within any extension of such period under subsection (6), the Court may, on application by any person interested deal with the objection under subsection 38(1) in such manner as it deems fit, and in order to enable the Court to do so, the Court may give such directions to the Land Administrator or to any person interested as it deems necessary or expedient, and without prejudice to the generality of this power, such directions may include a direction requiring the Land Administrator or any other person to appear before the Court to give evidence, or to produce before the Court such records, or other documents, as the Court may specify. [18] WCE contends that the word ‘shall’ employed in s. 38(5) must therefore mean that the requirements of the provisions are mandatory. Any non-compliance would result in the court not seized with jurisdiction to hear. [19] I am not persuaded by the contention. The mere use of the word ‘shall’ does not necessarily mean that the requirements of the provisions are mandatory. The answer to the question whether a provision is mandatory or directory lies in the effect of its non-compliance. [20] In the Federal Court case of Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155, Abdoolcader J (later FCJ) speaking for the Federal Court held that:- "The matter resolves ex facie in the first instance into a conventional invocation and consideration of the traditionally formulated distinction between mandatory and directory requirements in a statute which perhaps underlies the practical and realistic recognition of the fact that adherence to legislative prescriptions cannot always be too literal or rigid lest the machinery of administration is not allowed a little play in its joints. The locus classicus explaining this distinction and the consequences for non¬compliance in either case is Howard v Bodington (1877) 2 PD 203, 201,& 211. The principle involved is too well-known to require setting out in extenso that part of the judgment of Lord Penzance, Dean of Arches, propounding it (at pages 210-211) but he went on to say that no formula existed to determine whether a particular provision was mandatory or directory (at page 211): "I. believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory." [21] His Lordship further quoted with approval the pronouncement of the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council & Anor [1980] 1 WLR 182, 189, where Lord Hailsham of St. Marylebone, L.C., in the course of his judgment said (at page 189): "When Parliament lays down statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or. defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint." [22] In Projek Lintasan Kota Sdn Bhd v Wisma Denmark Sdn Bhd & Anor [2012] MLJU 837, the issue of non-compliance of s. 38(5) was raised to contend that the non-compliance vitiated the land reference and the court had no jurisdiction to hear it. Justice Vazeer Alam Mydin Meera JC (now FCJ) was of the view that if the provisions allow for an extension of time, it is not mandatory. His Lordship referred to the judgment of Lord Woolf MR in Reg v Home Secretary For The Home Department, Ex parte Jeyeanthan [2000] 1 WLR 354 and said, It is worth noting that in that case, Lord Woolf MR made this very important observation -"... a requirement may be clearly directory because it lays down a time limit but a tribunal is given an express power to extend the time for compliance." (See page 359 of the judgment) This is precisely the case with section 38(5) read with section 38(7) LAA, where the court is empowered to extend time. [23] Guided by the authorities referred to above, I therefore find that the provisions of s. 38(5) are not mandatory as s. 38(6) allows for an extension of time where the Land Administrator has failed to make a reference to the Court within the period specified in subsection (5). Consequently, the contention taken by WCE that the failure to comply with s. 38(5) ousts the jurisdiction of the court to hear this land reference, is not tenable. [24] The Applicant has now filed Enclosure 52 to extend the time for the filing of Form O to 30.7.2018, i.e the date it was filed. WCE further argues that s. 38(6) can be invoked only when Form O has not been filed. WCE relies on the wordings employed therein, i.e ‘Where the Land Administrator ‘has failed to make a reference…’, to contend that it must therefore mean that the reference has yet to be made. Where Form O has been filed in contravention of s. 38(5), the court has no jurisdiction to hear the matter. Instead, the present land reference should be struck out and either the Land Administrator or the Applicant is to first apply for an extension of time. Only upon the grant of extension can Form O be filed. [25] I am of the view this contention gives an extremely pedantic construction to s. 38(6). The law cannot intend such an absurd course of action as suggested by counsel to be taken, serving no useful purpose but to delay the hearing of the Applicant’s objection and resulting in further costs on his part. [26] I therefore find no legal impediment for an extension of time to be made where there is a failure to observe the time frame and an extension of time is applied here to regularise the proceedings. Land reference proceedings stems from an objection to compensation arising from one’s land being compulsorily acquired. Adequate compensation in land acquisition is a fundamental right guaranteed under Article 13(2) of the Federal Constitution, and any attempt to stifle that right with technical objections cannot be allowed to succeed. [27] In any event, the filing of Form O is not within the control of the Applicant. It is that of the Land Administrator. His statutory duty is merely to ensure that he files Borang N within 6 weeks from the time he received the award in Form H. It is pertinent to note that if he fails to do so within 6 weeks, the law allows him to apply for an extension (See: s. 38(4)), provided he shows that special circumstances exist to grant the enlargement of time. [28] I do not think the Applicant should suffer any injustice or be penalised for the actions of a third party when he had duly filed his Form N within the time stipulated. In any event, the delay was only about 2 months. Form O should have been filed on or before 28.5.2018 but was filed on 30.7.2018. [29] In addition, I fail to see any prejudice occasioned to WCE in this particular instance from the delay on the Land Administrator’s part in filing Form O of time. It is inexplicable that WCE chose to raise this issue at the eleventh hour before the hearing of the land reference proceedings. [30] When WCE filed the Originating Summons on 4.11.2022 to set aside the judgment of court dated 14.7.2020, it could not have been aware of Form O as the said judgment emanate from the filing of Form O. Ordinarily, a litigant would have been apprised of the cause papers filed before applying to set aside a judgment made in that case. Even if it was not aware of Form O and the date it was filed, the solicitors would have had all the necessary cause papers when parties attended before the Registrar of this court for case management on 18.1.2024 to obtain directions for the hearing of this land reference. It could not have been ignorant of the filing of Form O. To raise the issue of non-compliance of s. 38(4) at this late hour, just 2 weeks before the hearing of the land reference raises questions as to the genuineness of its application in Enclosure 50. [31] Upon considering in totality the circumstances within which the application of WCE is made, I find the application has no merits. Conclusion [32] For the foregoing reasons, the application of WCE in Enclosure 50 is dismissed, and the Applicant’s application in Enclosure 52 to extend the time for filing Form O, is allowed. Costs of both the applications will be costs in the cause. Dated : 3rd January 2025 -sgd- ....………………..….... Alice Loke Yee Ching Judge High Court in Malaya at Shah Alam Counsel for the Applicant : Miss Brenda Chan (Mr. Seah Jay Shearn with her) Messrs. Meng Wai & Asociates Counsel for the Respondent : Tn. Mohd Abdul Hakim bin Mohd Ali Pejabat Penasihat Undang-Undang Negeri Selangor Counsel for Party Interested : Mr. Steven How (Mr. S. Shahman with him) Messrs. Kumar Jaspal Quah & Aishah