The Kampong Kuantan Rubber Company Limited v 1. ) Pengarah Tanah dan Galian Negeri Kelantan (DA-25-4-08/2025)

MAJLIS DAERAH KUALA KRAI ... RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT Background Facts

This is the Applicant's application for discovery pursuant to Order 24 Rules 3,5,7,9 and/or 10 of the Rules of Court 2012 in relation to the judicial review proceedings filed by the Applicant challenging the proposed acquisition of part of the Applicant's land under the Land Acquisition Act 1960 ("LAA 1960").

The judicial review application concerns the decision of the Respondents to acquire part of the Applicant's land held under Geran No. Hakmilik 60324, Lot 16744, Mukim Kuala Pahi, Daerah Jajahan Kuala Krai, Negeri Kelantan by way of a Declaration of Intended Acquisition published in the Kelantan Government Gazette dated 22.5.2025.

The Applicant's case in the substantive judicial review is, inter alia, that the acquisition process was undertaken in breach of the procedural requirements under the LAA 1960 and the Land Acquisition Rules 2017 ("LAR 2017"), and that the acquisition process was tainted by mala fide and constituted an abuse of statutory power.

In response to the substantive judicial review, the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Respondents averred that all statutory procedures had been complied with, including the submission of Form 1 and the transmission of Form 4 pursuant to the LAR 2017.

However, the Applicant contends that notwithstanding the Respondents' averment of compliance with the statutory procedure, several material documents forming part of the acquisition process were not disclosed nor exhibited in the Respondents' affidavits. The Applicant therefore filed the present application seeking discovery of the relevant documents. The Application

By way of the Notice of Application (encl. 37), the Applicant seeks an order that the 1st to 3rd Respondents disclose the following documents: "1.1The accompanying documents that are required to be transmitted to the State Economic Planning Unit together with Form 1 of the LAR 2017 pursuant to Rule 2(2) LAR 2017, including but not limited to:

(a) the project proposal;

(b) the layout and land acquisition plan; and

(c) the preliminary valuation report of the land to be acquired;

2 The Notice of Negotiations (Form 3) of the LAR 2017;

3 The Notice to the Jawatankuasa Khas Pengambilan Tanah (Form4) of the LAR 2017;

4 The Notice of Approval (Form 5) of the LAR 2017;

5 The full report of negotiation under Rule 7(1) LAR 2017;

6 The recommendation made by the State Economic Planning Unit under Rule 7(4)(b) LAR 2017; and 1.7 Minutes of the meeting of the State Economic Planning Unit relevant to the present matter."

The Applicant contends that the documents sought are relevant existing, and within the possession, custody or power of the Respondents, and are necessary for the fair disposal of the judicial review proceedings.

The Respondents on the other hand oppose the application principally on the grounds that certain documents are irrelevant certain documents do not exist, and some documents are not proper to be disclosed. The Law

Order 24 Rule 3(1) empowers the Court to order discovery by requiring a party to disclose documents which are or have been in its possession, custody or power. Further, Order 24 Rule 3(4) provides that discovery may be ordered in respect of documents relied upon by a party, documents which may adversely affect a party's own case or another party's case, or documents which may support another party's case.

Order 24 Rule 7 further empowers the Court to order discovery of particular documents where the documents sought are sufficiently identified and are relevant to the issues in dispute.

The principles governing discovery were succinctly stated in Yekambaran s/o Marimuthu v Melayawata Steel Berhad [1993] MLJU 96, where Edgar Joseph Jr SCJ held: "The essential elements for an order for discovery are threefold, namely first, there must be a 'document', secondly, the document must be 'relevant' and thirdly, the document must be or have been in the 'possession, custody or power' of the person against whom the order for discovery is sought."

The Court of Appeal in Rekapacific Bhd v Securities Commission & Anor and other appeals [2005] 2 MLJ 269 further recognised that discovery may be ordered in judicial review proceedings where necessary for the fair disposal of the matter. The Court held: "Since it is for the public decision-maker to give reasons for his decision, it is open to a court for the just disposal of a judicial review application to require the decision-maker to make discovery of the material on which he based his decision. This would assist the court to determine whether any reasonable person similarly circumstanced as the decision-maker in question would have acted in like fashion."

It is therefore settled that discovery may be ordered in judicial review proceedings where the documents sought are relevant and necessary for determining the legality of the impugned decision making process. Issues for Determination

The issues for determination are as follows:

Having carefully considered the affidavits filed, the submissions of parties and the authorities relied upon, I am of the considered view that the present application ought to be allowed in part.

At the outset, it is noteworthy that the present application arises in the context of judicial review proceedings challenging the legality of the acquisition process undertaken under the LAA and the Land LAR. The Applicant's challenge is not confined merely to the ultimate decision to acquire the land. The Applicant specifically alleges among others, procedural impropriety, abuse of statutory power, and mala fide.

The Applicant relies heavily on the contention that the documents sought are integral to determine whether the acquisition process was lawfully undertaken and whether the discretion under section 3B of the LAA 1960 had been properly exercised. In this regard, I find that the documents sought in paragraphs 1.1, 1.3, 1.4 and 1.6 of the Notice of application are relevant to this contention.

Specifically, in relation to prayer 1.1, the documents sought comprise the accompanying documents required to be transmitted together with Form 1 pursuant to Rule 2(2) of the LAR, namely the project proposal, layout and land acquisition plan, and preliminary valuation report. These documents are expressly contemplated under the statutory framework, namely s. 3(3) of the LAA.

The Applicant contends that the said documents are relevant to determine whether the acquisition process was genuinely undertaken for a permissible statutory purpose and whether the Respondents had properly exercised their statutory powers. The Applicant further alleges that the acquisition process was abused for the purpose of facilitating a housing development project for the benefit of the $ 4^{\mathrm{th}} $ Respondent.

I find that the documents sought in prayer 1.1 are relevant to those allegations. The project proposal and land acquisition plan would directly reveal the nature and intended purpose of the acquisition exercise. Likewise, the preliminary valuation report forms part of the statutory acquisition process and is connected to the decision making process.

More importantly, the Respondents themselves contends that all statutory procedures under the LAA and the LAR had been complied with. Having adopted such a position, the Respondents cannot at the same time resist disclosure of the underlying documents forming part of the decision making process by contending that the documents are irrelevant.

Further, I am also satisfied that the documents sought in prayer 1.1 are sufficiently identified and are not speculative in nature. The Applicant has identified the statutory source from which the documents arise and has demonstrated their nexus to the issues raised in the substantive judicial review. They are documents specifically listed in s. 3(3) of LAA and are shall be submitted in support of the application for acquisition. In the circumstances, the request cannot be said as a fishing expedition.

With regard to the document sought in prayer 1.3, the Respondents themselves admit the existence of Form 4 and had in fact exhibited the same in Enclosure 41. The Respondents further rely on the transmission of Form 4 as evidence that the statutory procedure under Rule 7 of the LAR 2017 had been complied with.

In the circumstances, Form 4 is relevant to the Applicant's challenge regarding procedural compliance under the statutory acquisition framework. Since the Respondents themselves rely upon the said document in support of their defence to the judicial review proceedings, fairness dictates that the Applicant be permitted to inspect and rely upon the same.

Prayer 1.4 relating to Form 5 should also be allowed. Although the Respondents contend that Form 5 is "not proper to be disclosed", no satisfactory explanation has been advanced as to why disclosure ought to be refused.

As stated above, the Applicant's challenge concerns the legality and propriety of the decision making process leading to the acquisition. Form 5 forms part of that statutory framework and cannot be said to be irrelevant or unnecessary. The disclosure of the same is necessary for the purposes of scrutinizing the decision making process. In my view, the disclosure sought is neither oppressive nor disproportionate.

Further, the Respondents have not established any recognised privilege or confidentiality that would justify withholding the document altogether. Mere assertions that a document is "not proper to be disclosed" are insufficient to defeat an otherwise proper application for discovery.

Prayer 1.6 concerning the recommendation made by the State Economic Planning Unit under Rule 7(4)(b) should similarly be allowed. I am satisfied that this document goes to the very core of one of the principal disputes in the substantive judicial review, namely whether the proviso to section 3B of the LAA 1960 had been properly considered and applied.

The Applicant contends that the Respondents failed to properly exercise the discretion under the proviso to section 3B, particularly on the issue whether it was appropriate or necessary in the interest of the registered proprietor that the registered proprietor participate in the project.

In support of that contention, the Applicant relies on the decision of the Federal Court in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, where Raja Azlan Shah AG CJ (Malaya) held: "Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably."

The recommendation under Rule 7(4)(b) would therefore be directly relevant to determine whether the discretion under section 3B had in fact been exercised, whether the relevant considerations had been taken into account, and whether the Respondents had properly applied their minds to the statutory requirements imposed under the LAA.

The Respondents themselves rely on the position that section 3A did not apply and that negotiations were therefore unnecessary because there was no prior development approval or application by the landowner. That very position makes the recommendation under Rule 7(4)(b) all the more relevant because it would reveal whether the proviso to section 3B was in fact considered before the Respondents concluded that negotiations were unnecessary.

However, I do not find merit in the Applicant's request under prayers 1.2 and 1.5. The Respondents have expressly stated that no negotiations were conducted and that no documents relating to negotiations exist. The Respondents' position throughout is that no statutory obligation arose requiring negotiations with the Applicant because section 3A of the LAA 1960 did not apply in the circumstances of the present case.

Once the Respondents have positively asserted on affidavit that such documents do not exist, the Court cannot compel the production of documents which do not exist. Discovery cannot extend to documents which are non-existent.

Whether the absence of negotiations ultimately renders the acquisition process unlawful is a matter to be determined during the hearing of the substantive judicial review itself. At this interlocutory stage, the Court is only concerned with whether the documents sought exist and whether disclosure ought properly to be ordered.

As for prayer 1.7 concerning the minutes of meetings of the State Economic Planning Unit, I am not persuaded that such disclosure is necessary for the fair disposal of the present proceedings.

The Court must exercise caution before ordering disclosure of internal governmental deliberations. In my view, the recommendation under Rule 7(4)(b), which this Court has ordered to be disclosed, sufficiently addresses the Applicant's concern regarding whether the proviso to section 3B had been considered. Disclosure of the minutes of internal deliberations would go considerably further into the executive meeting process and is not necessary at this stage.

Accordingly, I find that the interests of justice would best be served by allowing the application only in respect of prayers 1.1, 1.3, 1.4 and 1.6, whilst dismissing the application in respect of prayers 1.2, 1.5 and 1.7. Conclusion

As stated above, the documents sought in prayers 1.1, 1.3, 1.4 and 1.6 are documents which are statutorily mandatory for the purposes of acquisition. There is no reason for the Respondents not to disclose them for the purposes of this court to evaluate the decision making process. It is not sufficient for the Respondents to state in the Affidavits that they have complied with the statutory requirements but on the other hand refuse to disclose the mandatory documents.

In the circumstances, the Applicant's application is allowed in part. The 1st to 3rd Respondents are ordered to disclose the documents sought in prayers 1.1, 1.3, 1.4 and 1.6 of the Notice of Application dated 16.2.2026. The application in respect of prayers 1.2, 1.5 and 1.7 is dismissed, and costs in the cause. This Grounds of Judgment is dated 19.5.2026 SHAMSUL BAHRIN BIN ABDUL MANAF Pesuruhjaya Kehakiman Mahkamah Tinggi (3) Kota Bharu Kelantan PIHAK-PIHAK: Peguam bagi pihak Pemohon:Tetuan MahWengKwai & Associates Tingkat 10-1, Menara B, Menara Prima, Jalan PJU 1/39, Dataran Prima, 47301 Petaling Jaya, Selangor.Peguam Bagi pihak Responden Pertama, Kedua dan Ketiga:Penolong Penasihat Undang-Undang Pejabat Penasihat Undang-Undang Negeri Kelantan, Blok 5, Aras Bawah, Kota Darulnaim, 15050 Kota Bharu, Kelantan.Peguam bagi pihak Responden Keempat:Tetuan Abdul Razak Muhidin & Associates PT 2928, Tingkat Atas, Bandar Baru Pasir Pekan, 16250 Wakaf Bharu, Kelantan.