TEE KIM TIN v Pentadbir Tanah dan Daerah (BA-15-262-08/2018)

BA-15-234-07/2018

(ii) BA-15-235-07/2018

(iii) BA-15-236-07/2018

(iv) BA-15-237-07/2018

BA-15-262-08/2018

(vi) BA-15-269-08/2018

(vii) BA-15-283-08/2018) BETWEEN TEE KIM TIN (No. K/P: 560712-10-6037) …APPLICANT DAN PENTADBIR TANAH DAERAH KLANG … RESPONDENT DAN WEST COAST EXPRESSWAY SDN BHD (NO. SYARIKAT :339890-P) … INTERVENER S/N eRxt3z19MkmdWwwhGqAMKg GROUNDS OF JUDGMENT Introduction [1] The present proceedings arise from 8 objections filed in Form N by co-owners to the amount of compensation decided by the Land Administrator. Their land identified as PT 1552 GRN 45760 Mukim Kapar, Daerah Klang (“scheduled land”) was compulsorily acquired by the Selangor State Authority. One of the objectors have since passed on, and the representatives of the estate have been substituted as the Applicant. (Land Reference No: BA-15-283-08/2018). [2] West Coast Expressway Sdn Bhd (“WCE”) is a party interested these land reference proceedings. Background facts [3] By way of Selangor Gazette Notification No.587 dated 18.2.2016, the scheduled land measuring 16,497.00 square metres 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. [4] Consequent thereto, the Land Administrator exercised his functions under the Land Acquisition Act 1960 (“LAA”), to determine compensation. The initial acquisition caused the Applicants’ land to be separated into Portion A and Portion B. S/N eRxt3z19MkmdWwwhGqAMKg [5] During the enquiry, the Land Administrator decided to include a Portion A measuring 2,379.00 square metres from Lot 1552 into the acquisition, making a total area of acquired land 18,876.00 square metres. In view of this, only Portion B remains as the Applicants’ land after the acquisition. S/N eRxt3z19MkmdWwwhGqAMKg [6] On 24.10.2017, the Land Administrator made an award in Form H. The award is as represented below. S/N eRxt3z19MkmdWwwhGqAMKg The award for injurious affection stated in percentage form, is 15%. [7] The Applicants were dissatisfied with the amount of compensation, and filed their objections in Form N dated 28.11.2017 with the Land Administrator. [8] By a reference in Form O, the Land Administrator referred the Applicants’ objection to the Court on 30.7.2018. S/N eRxt3z19MkmdWwwhGqAMKg [9] The land reference was heard and decided by the High Court on 14.7.2020. At the material time, only two parties were heard in the proceedings, namely the Applicants and the Land Administrator. The High Court decided to increase the compensation payable to the Applicants. No appeal was filed by either party in respect of the decision to increase compensation. [10] However, WCE then filed Originating Summonses in two High Courts in Shah Alam to set the judgment of court dated 14.7.2020 and to participate in the land reference, which it sought to be re-heard. [11] On 17.5.2023, the High Court granted the Originating Summonses filed in its court. No appeal was brought against the decision of the High Court. As a result of the judgment, parties in the other court consented for the same orders to be granted on 8.11.2023. [12] Following the setting aside of the judgment of 14.7.2020 to allow an increase in compensation, all the 8 land reference in the present proceedings are now re-heard. Objection in Form N [13] The grounds of objection by all the Applicants are as stated in Form N as follows:-

Nilai tanah yang rendah; S/N eRxt3z19MkmdWwwhGqAMKg

Nilai kos pembangunan yang rendah; dan

Nilai kecederaan yang rendah sebab tanah telah dipecah pisah selepas pengambilan dan sebahagian besar daripada baki tanah tidak mempunyai jalan masuk selepas pengambilan. The contention of the parties The claims of the parties can be summarized as follows. Applicants’ contention [14] The Applicants, adopting the comparison method, contend that the market value of the scheduled land is RM 542.53 per square metre (“psm”). The scheduled land sits in an industrial zone according to the planning information provided by the State Director of Town and Country Planning for Lot 1552. The market value determined by the Land Administrator failed to take into account this material factor. [15] The acquisition caused Lot 1552 the remaining land to become triangular in shape, making it difficult and less economical to develop after allowing for set back. It will also lose its frontage and access. Premised on these facts, the severance/injurious affection will cause a drop of 50% in value. [16] In addition, the remaining land will be injuriously affected by the acquisition from the pollution, disturbance and hoardings erected S/N eRxt3z19MkmdWwwhGqAMKg for work to be done on the acquired portion. Arising therefrom, the Applicants claim for a drop of 10% in value for damage suffered from injurious affection. WCE’s contention [17] WCE seeks to maintain the award of the Land Administrator in respect of market value of the scheduled land. Taking into account factors such as location, accessibility, planning conditions, shape, size/land area, its valuer contends that the market value of RM

137.78 psm is fair market value. The Applicants’ claim to increase the market value of the scheduled land is without any basis. [18] The claim by the Applicants for an increase in the award for injurious affection ought to be disregarded as there was no claim for such in the Borang N. As for the claim for severance, it does not arise as the Land Administrator had included Portion A into the total area acquired. There is no separation of the Applicant’s land into two. [19] WCE also seeks to set aside the total development costs of RM 47,700.00 awarded by the Land Administrator as the valuation report of the Applicants made no claim for development costs. Respondent’s contention [20] As for the Respondent, its valuer is of the opinion that although the land is not subject to any category of land use, it is within the industrial zone. In view of this, there is potential for industrial S/N eRxt3z19MkmdWwwhGqAMKg development. Taking this into account, the market value of RM 190 psm is reasonable compensation. [21] In respect of the claim for severance, the Respondent takes the same position as WCE in that there is no basis for the claim as Portion A was subsequently included in the acquisition. Even if a claim can be made, there is also no proof that the value of the land has dropped as a result of the severance. As for injurious affection, the increase claimed by the Applicants’ is not reasonable as the balance land is still capable of development. Analysis and decision of this Court [22] I shall start by stating the principles to borne in mind in arriving at a decision of the issues before me. [23] On the question of burden of proof, the Court of Appeal in Pengerang Farm Sdn Bhd v Pentadbir Tanah Daerah Kota Tinggi [2017] MLJU 214 had this to say, [11] Notwithstanding the aforesaid, the applicant is asking for judgment on its claim for compensation. In law, the party who desires the court to give judgment as to any legal right or liability bears the burden of proof (s 101(1) of the Evidence Act 1950). The burden of proof on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the claimant is on the balance of probabilities. S/N eRxt3z19MkmdWwwhGqAMKg [24] I would add that the burden rests equally on WCE if it seeks a reduction in the award of the Land Administrator. [25] Next, the valuation report of each party cannot be overstated. The Third Schedule of the LAA expressly states,

Valuer’s report and oral evidence

The applicant’s valuer’s report alone must establish a prima facie case for the applicant. …

The respondent’s valuer’s report must be sufficient to rebut the applicant’s valuer’s report. [26] The contents of each parties’ valuation report must therefore substantiate their case for an increase/reduction in the award. Market value of the scheduled land [27] As the market value is the primary issue to consider, the starting point to determine market value is the First Schedule to the LAA which sets out the principles relating to the determination of compensation viz a viz market value. [28] In Nanyang Manufacturing Co. v The Collector of Land Revenue, Johore [1954] 1 MLJ 69, Buhagiar J proffered a definition of market value as, “The market value of land may be roughly described as the price that an owner willing and not obliged to sell might reasonably expect to obtain S/N eRxt3z19MkmdWwwhGqAMKg from a willing purchaser with whom he was bargaining for the sale and purchase of the land.” [29] Whilst various methods of valuation can be adopted in determining market value, the most common and safest method is the comparison method. In Ng Tiou Hong v Collector of Land Revenue, Gombak [1984] 2 MLJ 35, the Federal Court held, The safest guide is evidence of sales of similar lands of similar quality or position in the locality at or prior to the time of acquisition. The prices paid for such sales can be used as comparables subject to making allowances for all the circumstances. (See also: Bukit Rajah Rubber Co Ltd v Collector of Land Revenue, Klang [1968] 1 MLJ 176; Nanyang Manufacturing Co v The Collector of Land Revenue, Johore [1954] 1 MLJ 69). [30] This method also receives statutory recognition in subparagraph

of the First Schedule to the LAA. [31] The valuers for all three parties adopted the comparison method to arrive at the market value. WCE’s valuation of market value of RM

137.78 psm is closest to the Land Administrator’s at RM 143.75 psm. Although 3 comparables were considered by WCE, the market value it eventually arrived at is much lower than all its comparables. Having examined the report, I find the valuer’s opinion on the market value is not supported with any basis nor explanation for its analysis to eventually arrived at the market value. S/N eRxt3z19MkmdWwwhGqAMKg [32] The Government valuer (JPPH) for the Respondent has a higher market value at RM 190 psm. The Applicants submit that JPPH’s recommended market value should form the minimum opening fair market value. In making their contention, reliance is placed on the Court of Appeal case of Khor Kheng Long v Pentadbir Tanah Daerah Seberang Perai Selatan [2024] 1 MLJ 370 which held, [33] We are of the considered view that the learned High Court judge fell into error when His Lordship failed to address his mind to consider the ‘minimum opening’ fair market value offered by JPPH in its report and accepted the private assessor’s market value which was far below than the ‘minimum opening’ fair market value. [34] We are also of the considered view that it is not permissible for the respondent to now argue that the learned High Court judge was correct to come to a market value which was lower than what it was previously willing to offer to pay per the JPPH’s report. [35] Although there is no doubt that the learned High Court was entitled to come to his own conclusion of what the fair market value was for the schedule land, His Lordship must be guided by the evidence presented before him. Here, the learned High Court judge awarded a sum lower than the market value which JPPH/the respondent was willing to offer and pay. This could not be legally correct when viewed through the lens of ‘adequate compensation’ from a constitutional right perspective. [33] I am guided by the authority above and for the reasons afore stated, I would disregard the market value of WCE. S/N eRxt3z19MkmdWwwhGqAMKg [34] The task of arriving at an appropriate market value is made easier when there is a common comparable between the parties. In this particular instance, Lot 5135 GM 5061 is a common comparable. It was transacted on 10.7.2014 for a consideration of RM 592.12 psm. [35] Although there is a common comparable, it rare to find striking similarities with the scheduled land. However, adjustments can be made for the dissimilarities. It is not possible for adjustments to be made with mathematical precision. This court is merely to arrive at a fair estimate of market value. In arriving at the market value, the estimates by assessors both of whom are experts in the field of valuation, have been of great assistance. (See: Jitender Singh a/l Pagar Singh & Ors v Pentadbir Tanah Wilayah Persekutuan and another appeal [2012] 1 MLJ 56). [36] Both the assessors considered Lot 5135 as the most suitable comparable as it is a common comparable. The government made adjustments as follows:- Analisa Balasan : RM 592.12 smp

Masa (18/2/2016 vs 10/7/2014 : +5% ____________________________________________________

RM 621.72 smp Kategori (Tiada vs Pertanian : 0%

Perancangan (sebanding: Perindustrian) : 0%

Lokasi (Kg Bt Kapar vs Pekan Meru) : -20%

Jalan Masuk (sebanding: Jalan Sekunder) : 0%

Luas tanah (30,135 smp vs 18,843 mp) : -10% S/N eRxt3z19MkmdWwwhGqAMKg

Rupabumi (sebanding) : 0%

Rupabentuk (sebanding) : 0% Jumlah Pelarasan : 0.7 RM 435.00 smp [37] Based on the adjustments, she arrived at a market value of RM 435 psm. [38] The private assessor was of a similar view as far as the best comparable is concerned. She then made the following adjustments:- Asas Nilaian RM 592.18 smp a) Masa July 2014 vs Februari 2016 5% RM 621.79 smp Faktor Pelarasan b) Lokasi (Pekan Meru vs Jauh dari Pekan) -20% c) Luas *(18,840 smp vs 30,351 smp) -5% d) Potensi Pembangunan (Tanah kosong vs Kelapa sawit tua) -5% Kadar Terlaras RM 435.25 smp KATAKAN RM 435.00 smp [39] Although her detailed adjustments differed from that of the government assessor, her conclusion as to the market value of RM 435 psm is the same. S/N eRxt3z19MkmdWwwhGqAMKg [40] Both the assessors and the Applicant’s valuer started on the same premise by adjusting the value of the land upwards by 5% for time factor to RM 621.72 psm. However, the adjustments thereafter differed. The biggest adjustment was made for location. Both the assessors were of the view that the location of the scheduled land is much less favourable from the comparable and therefore reduced the market value by 20%. On the other hand, an adjustment of only 10% was made by the Applicant’s valuer. [41] The adjustment of 20% was made as the scheduled land in Kampung Bukit Kapar is much less favourable location compared to the location of Lot 5135 which is proximate to Pekan Meru. Having considered both assessors’ reasons for the adjustment, I find no reason to disagree. WCE’s adjustment of 60% is considered to be too high. Similarly, JPPH’s adjustment of 40% is also too considerable. [42] I find both the assessors’ valuation to be well reasoned. I am aware that I am not obliged to accept either of their views and I can come to a decision of my own on the authority of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another case [2017] 3 MLJ 561. However, I find no reason to disagree with their opinion on the market value of the Scheduled Land based on the provisions of the LAA and the relevant principles in decided cases. S/N eRxt3z19MkmdWwwhGqAMKg Severance [43] The Applicants have included a claim for severance. This claim is objected to by WCE there is no issue of severance since Portion A was subsequently included in the acquisition at the enquiry. [44] Both the assessors also hold a similar view in that the issue of severance does not arise for the same reason proffered. I am in agreement on this issue in the light of the provision in paragraph 2(c) of the First Schedule which refers to severance as “the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator’s taking possession of the land by reason of severing such land from his other land.” [45] In order for severance to occur, the land must from the acquisition, result in two separate portions. Here, only Portion B remained after the acquisition. Injurious affection [46] The Land Administrator awarded a 15% reduction in market value of the remaining land as a result of the acquisition. However, the Applicants’ valuer contends that the value of the land has reduced by as much as 60% computed as follows:-

Portion B being an oddly triangular shaped-land : 10%;

(ii) Portion B being smaller in size : 10%;

(iii) Portion B’s loss of frontage and access to Jalan Iskandar : 30%; and S/N eRxt3z19MkmdWwwhGqAMKg

(iv) Block in view, pollution and disturbance during construction, undesirable aesthetics : 10%. [47] WCE contends that the claim for increase in IA deserved no consideration as the Applicants’ Borang N is silent on the issue of IA. Having considered the contents therein, I am of the view that the wordings employed ought to be given some latitude as they were unrepresented at the material time. [48] Both the assessors opine that there is a valid basis to make an award for injurious affection. However, they are of the view that the 15% reduction in value of the remaining land suffices as compensation. As the 60% reduction in value based on the factors stated above are not supported by evidence, I am minded to maintain the percentage determined by the Land Administrator. However, the necessary adjustments will have to be made in view of the increase in the market value. Development costs [49] In the Borang N filed, the Applicants’ have sought for an increase in the development costs of RM 47,700.00 awarded by the Land Administrator. However, their valuer’s report makes no mention in respect of this claim. Premised on this, WCE seeks for the entire award for this head of claim to be set aside. [50] I find no basis to set aside the entire award. If the Applicants’ valuer’s report is silent, it merely means that the report has failed to establish a prima facie case for the Applicants’ and the court has S/N eRxt3z19MkmdWwwhGqAMKg to maintain the award of the Land Administrator. If WCE seeks to set aside the award for developmental costs, it ought to have filed a Borang N, but it did not. Conclusion [51] Premised on the foregoing, I find reasons to increase the compensation awarded by the Land Administrator only in so far as it relates to the market value of the scheduled land. However, the increase in the market value would cause a corresponding increase in the award for injurious affection even though the 15% decided by the Land Administrator for injurious affection is maintained. [52] The increase in compensation for each of the Applicants is as tabulated below:- Land Reference No. Applicant Increase in award for market value Increase in award for IA BA-15-231-07/2018 Tee Kim Hock (1/9) BA-15-234-07/2018 Tee Kim Ong (1/9) BA-15-235-07/2018 Tee Kim Sang (1/9) BA-15-236-07/2018 Tee Chin Heng (1/9) BA-15-237-07/2018 Tee Kim Chin (2/9) RM 1,221,696.67 RM 111,409.50 BA-15-262-08/2018 Tee Kim Tin (1/9) S/N eRxt3z19MkmdWwwhGqAMKg BA-15-269-08/2018 Tee Kim Boon (1/9) BA-15-283-08/2018 Tee Jin Teong (1/9) [53] I therefore make the following orders:-

Applicants in BA-15-231-07/2018, BA-15-234-07/2018, BA- 15-235-07/2018, BA-15-236 07/2018, BA-15-262-08/2018, BA-15-269-08/2018 and BA-15-283-08/201 are to each receive additional compensation amounting to RM 666,553.08;

(ii) Applicant in BA-15-237-07/2018 is to receive additional compensation of RM 1,333,106.17;

(iii) Late payment charges of 5% is to be paid by the Land Administrator from the date of Borang K until full payment;

(iv) Assessors fees of RM 2000.00 for each assessor is to be paid by the Applicants;

Deposit of RM 3,000.00 is to be refunded to each of the Applicants; and S/N eRxt3z19MkmdWwwhGqAMKg

(vi) Each party to bear own costs. Dated : 15th April 2025 -sgd- ....………………..….... Alice Loke Yee Ching Judge High Court in Malaya at Shah Alam Counsel for the Applicants : Ms. Brenda Chan Qing Wen (Ms. Chan Zi Yan with her) Counsel for the Respondent : Ms. Etty Eliany binti Tesno Pejabat Penasihat Undang-Undang Negeri Selangor Counsel for the Intervener : Mr. Steven How (Mr. S. Shahman with him) Messrs. Kumar Jaspal Quah & Aishah S/N eRxt3z19MkmdWwwhGqAMKg S/N eRxt3z19MkmdWwwhGqAMKg