Tenaga Nasional Berhad v Majlis Daerah Segamat (J-01(A)-484-07/2018)

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: J-01(A)-484-07/2018 ANTARA TENAGA NASIONAL BERHAD (No. Syarikat: 200866-W) … PERAYU DAN MAJLIS DAERAH SEGAMAT (No. Syarikat: 237168-T) … RESPONDEN [DALAM MAHKAMAH TINGGI MALAYA DI MUAR DALAM NEGERI JOHOR DARUL TAKZIM PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO: JB-25-04-08/2017 Dalam perkara keputusan Mesyuarat Jawatankuasa Cukai Harta Bertarikh 14.3.2017 dan 12.4.2017 yang disahkan oleh Mesyuarat Penuh Majlis Daerah Segamat pada 26.4.2017 berkenaan Cukai Taksiran yang dikenakan di atas menara-menara talian penghantaran elektrik yang terletak dalam rentis laluan yang dinyatakan sebagai Laluan Gemas Bahru, Laluan PMU Jementah, Laluan Paya Lebar ke Kg Paya Dalam, Laluan Paya Dalam ke PMU Lebuhraya Segamat-Kuantan, Laluan Gelang Chincin/Jabi, Laluan PMU Bukit Siput dan Laluan Jalan Segamat/Labis yang kesemuanya terletak di Daerah Segamat, Johor Darul Takzim Dan Dalam Perkara Seksyen 11, 12 dan 16, Akta Bekalan Elektrik, 1990 (Akta 447). Dalam Perkara Seksyen 127, 137 dan 141 Akta Kerajaan Tempatan 1976 (Akta 171). Dan Dalam Perkara Aturan 53 Kaedah 2, 3, 4 dan 5 serta Aturan 92 Kaedah 4 kaedah-Kaedah Mahkamah 2012. 2 Antara TENAGA NASIONAL BERHAD (No. Syarikat: 200866-W) … PERAYU Dan MAJLIS DAERAH SEGAMAT (No. Syarikat: 237168-T) … RESPONDEN] CORAM: BADARIAH SAHAMID, JCA SURAYA OTHMAN, JCA NOR BEE ARIFFIN, JCA JUDGMENT OF THE COURT INTRODUCTION [1] This is the Appellant’s appeal against the decision of the Learned High Court Judge dated 26.6.2018 in dismissing the Appellant’s application for judicial review on a preliminary objection raised by the Respondent. By the Judicial Review application, the Appellant sought to review the Respondent’s decision in respect of assessment of improved value and rates levied on the Appellant’s Pylons within the Respondent’s area of jurisdiction (“Pylons”). 3 [2] We heard the appeal and had unanimously allowed the same. The case was then remitted to the High Court to be heard on merit. We now give our reasons. THE BACKGROUNDS FACTS [3] The Appellant (Tenaga Nasional Berhad) is a public listed company which supplies electricity. The Respondent (Majlis Daerah Segamat) is a local authority within the meaning of the Local Government Act 1976 (‘the Act’). The Appellant owned and operated the pylons that support high voltage transmission lines situated within the jurisdiction of the Respondent. On 24.11.2014, the Appellant received a Notice dated 13.11.2014 from the Respondent informing them that the Respondent had prepared a new valuation list of the Appellant’s holdings pursuant to Section 141 of the Act. Attached to the notice was a list setting out particulars and revised improved value of 211 holdings all located within the Respondent’s area of jurisdiction. It listed 198 substations, 4 Main Intake Stations (Pencawang Masuk Utama [PMU]), 7 high tension transmission lines, an office building and a store building. [4] By its letter dated 25.11.2014, the Appellant lodged its objections against the Respondent’s assessment of improved value and rates levied on all the 211 holdings. [5] On 12.10.2015, the Appellant received a notice dated 17.8.2015 from the Respondent (“the Respondent’s 1st Decision”) informing that the 4 “Mesyuarat Penuh Majlis Daerah Segamat” had considered the Appellant’s objections against the assessment of the improved value and rates levied on part of the Appellant’s holdings and had agreed to reduce the assessment of improved value and rates levied earlier in its notice dated 13.11.2014. [6] By its letter dated 28.10.2015, the Appellant requested the Respondent to reconsider and review the Respondent’s 1st Decision in relation to the Pylons on the ground that the Appellant is not the owner of the lands where the high voltage transmission lines and Pylons are situated. Consequently, payment of rates cannot be levied under the Act on the occupier. The Appellant has only a right of way on the said lands which is acquired pursuant to Section 11 of the Electricity Supply Act, 1990. [7] The Appellant was invited by the Respondent on 20.2.2017 to hear its objections on the assessment of the improved value and rates levied by the Respondent on the Pylons together with the Appellant’s objections on the assessment of improved value and rates levied on four Main Intake Stations, an office building and a store building. With regards to the Pylons, the Appellant had again reiterated at the meeting that the Appellant is not the owner of the lands where the transmission lines and Pylons are situated and therefore rates cannot be levied against the Appellant under the Act. [8] On 23.5.2017, the Appellant received a notice dated 16.5.2017 from the Respondent stating that after considering the Appellant’s objections, the “Mesyuarat Penuh Majlis Daerah Segamat” had decided to reject the objections on the ground that the Pylons are defined as “building” under the Act and therefore are subjected to assessment of improved value and payment of rates under the Act (“the Respondent’s Decision”). 5 [9] On 22.8.2017, the Appellant filed its application for leave to commence Judicial Review against the Respondent’s Decision under Order 53 Rule 3

(6) of the Rules of Court 2012 (“ROC 2012”). Leave was granted by the High Court on 2.11.2017 to commence Judicial Review proceedings against the Respondent’s Decision. [10] The Appellant filed its substantive application for Judicial Review on 7.11.2017. The judicial review is only concerned with the Respondent’s decision in assessment of improved value and rates levied on the pylons of the 7 high tension transmission lines. At the hearing of the judicial review application, the Respondent raised a preliminary objection. The Respondent argued that, instead of commencing Judicial Review proceedings under Order 53 of ROC 2012, the Appellant should have filed an appeal to the High Court under Section 145 (1) of the Act within the 14 days timeline prescribed by Section 145 (1) and (2) upon receiving the Respondent’s decision. HIGH COURT DECISION [11] On 26.6.2018, the High Court upheld the Respondent’s preliminary objection and dismissed the Judicial Review application. Hence, the Appellant appealed to this Court. [12] The Learned High Court Judge held that the Appellant ought to have filed an appeal to the High Court by way of a Notice of Motion under Section 145 (1) and (2) of the Act instead of a Judicial Review application under Order 53 of the ROC 2012 to quash the Respondent’s Decision. The Learned High Court Judge was of the view that Section 145 (1) and (2) of the Act are specific provisions providing for appeal to the High Court against any 6 decision of a local authority concerning rates. The procedural rules under the said section should be preferred when compared to Order 53 of the ROC 2012 which provides for procedural rules of general application for judicial review of any administrative decision in relation to the exercise of public duty. [13] The learned High Court Judge further held that the timeline to file the Appellant’s appeal under Section 145 of the Act began from 12.10.2015 when the Appellant received the notice dated 17.8.2015 from the Respondent of the decision made by its “Mesyuarat Penuh Majlis Daerah Segamat” in relation to the assessment of the improved value and rates levied on the Pylons (“the Respondent’s 1st Decision”). THE APPEAL Appellant’s Submission [14] In arguing the preliminary objection raised, the learned counsel for the Appellant contended that for Section 145 of the Act to be applicable, the Appellant’s objections must fall within the ambit of any of the specific grounds expressed in Section 142 (1) (a) to (e) of the Act. The Appellant submitted that it’s objection in its letter dated 28.10.2015 was premised on the basic ground that the Appellant is not the owner of the lands where the transmission lines and Pylons are situated and therefore payment of rates cannot be levied under the Act on the Appellant who is a mere occupier. The Appellant has only a right of way over the said lands which was acquired pursuant to the Electricity Supply Act 1990. Thus, the Appellant’s objection in its letter dated 28.10.2015 does not fall within the ambit of any of the 7 grounds enumerated in Section 142 (1) (a) to (e) and therefore, cannot be encapsulated by Section 145 (1) and (2) of the Act. [15] The Appellant further submitted that the Learned High Court Judge had misapplied the Latin maxim of “generalia specialibus non derogant” in this case. Apart from mentioning in general terms that the Appellant ought to have proceeded to file an appeal under Section 145, the Learned High Court Judge has not identified any of the grounds in Section 142 (a) to (e) which is specifically applicable to TNB’s objection. [16] The Appellant argued that the Learned High Court Judge has failed to consider that the subject matter of the Judicial Review was the “Respondent’s Decision” and not the “1st Respondent’s Decision” because the 1st Respondent’s Decision dated 17.8.2015 had been effectively superseded by the Respondent’s Decision dated 16.5.2017. The Appellant further submitted that it’s Judicial Review application against the Respondent’s Decision has been duly filed within the three (3) months timeline on 22.8.2017 as prescribed under Order 53 Rule 3 (6) of ROC 2012. Respondent’s Submission [17] The Respondent on the other hand submitted that a Judicial Review application cannot be filed on the tax value issues under the Local Government Act 1976. The Respondent relied on the case of Loke Wan Yat Realty Sdn Bhd v Datuk Bandar Kuala Lumpur [2016] 1 CLJ 107. The Respondent further submitted that the Appellant has to challenge the decision of the Respondent based on the provisions of a specific law under the Local Government Act 1976 ie by filing an appeal under Section 145 of 8 the Act. The Respondent argued that if there are special provisions under Section 145 of the Act, then it must be followed, and general provisions under Order 53 of ROC 2012 is not applicable. The Respondent cited the case of M-10 Builders Sdn Bhd v Tunas Selatan Consortium Sdn Bhd [2014] MLJU 1847 and Segamat Parking Services Sdn Bhd v Majlis Daerah Segamat Utara & Another Case [2009] 1 CLJ 942; [2008] 3 MLRH 348 in support of its contention. OUR DECISION [18] We heard the appeal on 7.5.2019 and found merits in the Appellant’s appeal. We allowed the appeal and set aside the decision of the Learned High Court Judge. The case was remitted to the High Court to be heard on merit. We now give our reasons for doing so. [19] The Appellant’s objection is premised on the basic ground that the Appellant is not the owner of the lands where the high voltage transmission lines and pylons are situated and therefore payment of rates cannot be levied under the Act as the Appellant is a mere occupier. [20] Section 2 of the Act defined the word “holding" as follows: “any land, with or without buildings thereon, which is held under a separate document of title and in the case of subdivided buildings, the common property and any parcel thereof and, in the case of Penang and Malacca, "holding" includes messuages, buildings, easements and hereditaments of any tenure, whether open or enclosed, whether built on or not, whether public or private, and whether maintained or not under statutory authority.” 9 [21] Section 163(1) of the Act provides a provision for rating buildings on State or reserved land which reads as follows: Provision for rating buildings on State or reserved land

163. (1) In the case of buildings situated on State land or on land reserved for a public purpose and not occupied by the Federal or State Governments the local authority, with the approval of the State Authority, may impose the rates referred to in section 127 upon the annual value or improved value of all or any of such buildings, and the occupiers of such buildings shall be liable to pay the said rates.

(2) The provisions of this Part shall apply to any rate imposed under subsection (1) except that in the application thereof references to a "holding" shall be deemed to be references to a "building", and references to the "owner" of a holding shall be deemed to be references to the "occupier" of a building. [22] Section 163 (1) of the Act expressly sets out that in the case of buildings situated on State land or on land reserved for a public purpose, the local authority may impose the rates referred to in Section 127 on any such buildings, and the occupiers of such buildings shall be liable to pay the said rates. Section 163 (2) of the Act states that the provisions of Act with regards to rates shall apply to any rate imposed under subsection (1) except that in the application of the provisions, references to a “holding" shall be deemed to be references to a "building", and references to the "owner" of a holding shall be deemed to be references to the "occupier” of a building. [23] Section 163 is applicable for rates to be imposed by the local authority if the “building” is situated on State or reserved land. In our appeal, the list 10 attached to the Respondent's notice dated 13.11.2014 informing the Appellant that the Respondent had prepared a new valuation list of the Appellant's holdings pursuant to Section 141 of the Act did not state that the Pylons are situated on the State Land or on the reserved land. It merely sets out that the Pylons are located on hundreds of locations where the status of the lands were obviously unknown/privately-owned lands within the area administered by the Respondent. Therefore without stating the status of land, whether it is State or reserved land, the Respondent cannot use Section 163 of the Act to mount its claim. CONCLUSION [24] For the reasons enumerated above and after considering the Appeal Records and submission of parties, we were unanimous in our view that the learned Judge had erred in dismissing the Judicial Review application on the preliminary objection. We therefore allowed the appeal with costs of RM5,000.00 subject to the payment of allocator fees. We set aside the order of the High Court dated 26.6.2018 and the matter is remitted to the High Court for the substantive hearing of the judicial review application. Appeal allowed with costs. Deposit, if any, refunded. -signed-Dated: 22 February 2021 (SURAYA OTHMAN) Judge Court of Appeal Malaysia 11 CASE(S) REFERRED TO:

1. Loke Wan Yat Realty Sdn Bhd v Datuk Bandar Kuala Lumpur [2016] 1 CLJ 107;

2. M-10 Builders Sdn Bhd v Tunas Selatan Consortium Sdn Bhd [2014] MLJU 1847; and 3. Segamat Parking Services Sdn Bhd v Majlis Daerah Segamat Utara & Another Case [2009] 1 CLJ 942; [2008] 3 MLRH 348. LEGISLATION REFERRED TO:

1. Section 141, 142 (1) (a) to (e), Section 145 (1) and (2), Section 163(1) and (2) of the Local Government Act 1976 (Act 171);

2. Section 11 of the Electricity Supply Act 1990 (Act 447); and 3. Order 53 Rule 3 (6), of the Rules of Court 2012 (ROC 2012). COUNSEL: For the Appellant : Gurmel Singh Messrs Kenth Partnership (Kuala Lumpur) Suite J-3-7 Solaris Mont' Kiara 2 Jalan Solaris 50480 Kuala Lumpur For the Respondent : Mohd Radzi Bin Yatiman Messrs Rahim & Lawrnee (Segamat) No 124-125 Tingkat 1, Jalan Sia Her Yam 85000 Segamat, Johor