9.24 It is this withdrawal of offer and termination of contracts that form the basis of the Plaintiff’s present Originating Summons and the reliefs sought. [10] Thus, in the present Originating Summons, the Plaintiff intends to challenge the legality and validity of the unilateral termination of the 2nd Contract, the failure to perform the 3rd Contract and the interference of the 1st Defendant causing the termination and non-performance in the course of the 1st Defendant’s public duty. [11] This Court must also emphasise that although this case involves the state government, however by and large the present dispute revolves around the non-performance of contracts entered between the Plaintiff and the 2nd and 3rd Defendants regarding the relocation of the Plaintiff under a housing scheme planned by the State Government of Selangor. [12] Inthis present case, this Court must not lose sight of the fact that the Plaintiff here has not only been offered a deal for relocation, but the Plaintiff has been offered the same deal twice and the Plaintiff accordingly has accepted three (3) different contracts (1 18 contract for the 1st deal and 2 contracts in the 2nd deal) in view of gaining the same property under the relocation scheme. [13] It must be firmly noted that all letters and contract by the Defendants were addressed to the personal name of the Plaintiff. As a matter of fact, the 1st Defendant has lawfully passed good title of the Property to the Plaintiff while Delpuri has contracted with the Plaintiff to develop and construct the house according to the Project. B. WHETHER THERE ISA REQUIREMENT TO BE AN ORIGINAL SQUATTER TO BE QUALIFIED IN THE PROJECT AND TO BE ELIGIBLE FOR THE HOUSING SCHEME [14] The Court does not have to go at lengths to determine this issue as a simple reading of the contemporaneous documents and correspondence is sufficiently telling that the requirement of being an original squatter was never a term in the offer, acceptance, and the contracts themselves. All of the documents and correspondences were addressed to the Plaintiff personally, and all of the documents and correspondences acknowledge and admit the Plaintiff’s entitlement to the Property. At no point in time in any 19 of the documents even since the offer in 2003 leading up to the 2nd and 3rd Contracts that there was ever any mention the requisite of being an original squatter. i. Admission in State Government Gazette [15] It has already been admitted by the State Government through Warta Kerajaan Negeri Selangor dated 5.11.2009 at page 3467 that it was recorded that the Plaintiff was the “Tuanpunya berdaftar atau Penduduk yang Direkodkan” ii. The 2005 offer by the 1st Defendant for alienation and the 2005 offer by Delpuri for the 1st Contract never mentioned the requirement to be an original Settler [16] When the 1st Defendant approves the alienation to the Plaintiff, it was approved under the scheme entitled “RANCANGAN PENEMPATAN SEMULA SETINGGAN SELAYANG MUTIARA (BUKIT BOTAK)”. The Project per se was made clear to the general qualification of a setinggan and not a setinggan asal. If indeed the requirement to be setinggan asal is that essential, then it should have been explicitly mentioned so. But it was never mentioned. The same letter even referred to the Plaintiff as Pemilik 20 Tanah without any mention of the requirement to be an original squatter. [17] Similarly, the requirement was also never mentioned in Delpuri’s demand for payment for the execution of the Project as well as the “projek pembinaan” (Construction Contract) iii. The 2nd Contract with the 2nd Defendant has no mention of the requirement [18] The 2nd Defendant’s letter of offer dated 22.3.2009 was personally addressed to the Plaintiff with clear admission of the Plaintiff being the “Penduduk” qualified under the Project. The 2nd Defendant had called the Plaintiff to enter into a new construction contract (2nd Contract) under the Project without any fuss about having to be an original settler. iii. Notice in Forms E and G under the Land Acquisition Act 1960 also admits to Plaintiff’s entitlement [19] Even in the column for Tuanpunya Berdaftar atau Penduduk Yang Direkodkan in Form E was ascribed the full name, ic number and 21 the Plaintiff’s shares over the Property notwithstanding the fact that the Plaintiff was not a setinggan asal. The Plaintiff’s full name, ic number and shares over the property was also ascribed in Form G’s column for Orang yang berkepentingan notwithstanding the fact that the Plaintiff was not a setinggan asal. iv. The 3rd Defendant’s Letter of Offer and Undertaking admits to Plaintiff’s qualification with no mention of the requirement [20] Even the 3rd Defendant’s letter dated 28.2.2011 was addressed personally to the Plaintiff and has admitted to the Plaintiff’s qualification to enter into the 3rd Contract and continue to participate in the Project without a single mention of the requirement. The requirement of an original squatter was never an issue or never discussed and was never a term [21] Thus, it is patently clear that all the while since the year 2003 when the Plaintiff was first offered alienation of the property, it remains consistent right through time leading up to the existence of the 1st, 2nd, and 3rd Contracts, that the requirement for the Plaintiff to be a 22 Setinggan Asal was never a term, consideration, or even mentioned to begin with. If there was any “penyelewengan” it is more likely to be the Defendants’ fault. It was never communicated at all material times when the contracts were entered into, that the Defendants intended the Project only to cover original squatters. It is vividly clear that the requirement was never intended to be part of the Project or the Contracts. [22] Thus, the Defendants cannot be allowed to turn back on their own representation and acknowledgment of the status quo for at least 8 years before the 1st Defendant introduced the requirement utterly late in the Project and the Contracts. For this Court to allow the Defendants to do so is akin to the Court allowing the Defendants to approbate and reprobate as well as unilaterally varying and adding foreign terms into the contracts. [23] The Court refers to the decision of the Court of Appeal in the case of Cheah Theam Kheang v City Centre Sdn Bhd& Other Appeals (2012) 2 CLJ 16 which had held that: “In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others (1990) 23 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitude towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [24] Further guidance can be drawn from the decision of the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 where the Federal Court referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through 24 them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” [25] Similarly in the present case, the Defendants cannot be allowed to blow hot and cold and contend two contradicting stances under one and the same breath. And considering the constant and consistent status quo that the requirement was never an issue or consideration in the correspondence, the Project and the 25 Contracts, it is this Court’s finding that it is verily more probable than not that there was never any requirement for the Plaintiff to be a Setinggan Asal for the Plaintiff to be qualified under the Project. [26] No evidence has been exhibited or contended by the Defendants that there was any element of “penyelewengan” on the part of the Plaintiff as there are also no evidence that the Plaintiff was even asked to confirm if she was an original settler or otherwise. C. WHETHER THE DEFENDANTS WERE RIGHT IN DISQUALIFYING THE PLAINTIFF FROM THE PROJECT The 2nd and 3rd Defendants’ wrong in contract [27] Reiterating the above findings, it is clear that the 2nd and 3rd Defendant are contractually bound to the Plaintiff vide the 2nd and 3rd Contracts respectively. Upon the 1st Defendants wrongful discovery of the Plaintiff’s disqualification from the Project, the 2nd Defendant had terminated the contract with the Plaintiff while the 3rd Defendant remained with non-performance of the 3rd Contract. 26 [28] Thus, the 2nd Defendant has unlawfully terminated the 2nd Contract with the Plaintiff while the 3rd Defendant has persisted to unlawfully fail to perform its obligations under the 3rd Contract. Both wrongs are wrongs against contracts and are breaches to the contracts. [29] This Court does not find any necessity to discuss whether the 2nd Contract and 3rd Contract were merely undertakings or promises as in essence, even if the 2nd Contract or the 3rd Contracts were undertakings or promises, it remains that the same obligations are enforceable against the 2nd and 3rd Defendants. This Court refers to the King’s Bench decision in the case of Central London Property Trust Limited v High Trees House Limited [1947] 1 KB 130 which had held that: “…where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promise, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it…” 27 [30] Furthermore, owing to the nature of the correspondences having offers, terms, lawful considerations as well as acceptance letters by the Plaintiff, it is ultimately indicative that there were valid contracts between the Plaintiff and the 2nd and 3rd Defendants and not mere undertaking or promises. (see Section 10 of the Contracts Act 1950) [31] Thus, it is this Court’s finding that the 2nd Defendant (in cancelling and terminating the 2nd Contract,) and the 3rd Defendant (in failing to perform the 3rd Contract) is in total breach of the Contracts with the Plaintiff. 1st Defendant’s wrong in the course of its duty [32] Echoing the earlier finding, it is utterly clear that the 1st Defendant has pulled the requirement and the 1985 bancian (which was never an essential term of qualification for the Project) as an afterthought in attempting to defeat the Plaintiff’s rights over the Property and the Project. [33] And this Court is inclined to agree that the 1st Defendant had breached its public duty to respect and uphold the Plaintiff’s 28 entitlement over the property when there is no reason at all to deny the Plaintiff from her entitlement. All the while since the alienation of the Property to the Plaintiff, the 1st Defendant is under a statutory and public duty to protect and respect the Plaintiff’s rights over the Property. Furthermore, the whole exercise of the state acquisition of the Property was conducted on the understanding and acknowledgment that the Plaintiff is entitled to the Property. For the 1st Defendant now to defeat this understanding and acknowledgment is a wrongful exercise of the 1st Defendant’s statutory and public duty. [34] Thus, it is this Court’s finding that the 1st Defendant owes a public and statutory duty to protect and uphold the Plaintiff’s rights over the Property and consequently the 1st Defendant has breached the same public and statutory duty against the rights of the Plaintiff. D. FINDINGS OF LIABILITIES AND THE ISSUE OF LIMITATION [35] Now, before this Court embarks to discuss the issue of liabilities with the issue raised on limitation, this Court must stress again, that as found earlier, all of the Defendants committed wrong against the Defendant. 29 [36] However, owing to the issue of limitation raised it is this Court’s finding that the Plaintiff’s action against the 1st Defendant is unfortunately time-barred. This is because the limitation period of 36 months as per Section 2(a) of the Public Authorities Protection Act 1948 (“PAPA”) applies in the context of the 1st Defendant’s wrongful exercise of statutory and public duty. [37] The differing application of the provision between Defendants was made for a simple reason. And that reason is that, the 1st Defendant has committed a wrong in the exercise of its public or statutory duty while the 2nd and 3rd Defendants had committed wrongs in the performance of the 2nd and 3rd Contracts. [38] It is settled law that the limitation in the Section 2(a) of the PAPA only applies when the public authority complained of has committed wrong in the exercise of its public or statutory duty. Section 2(a) reads: Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in 30 pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect: