Zamrud Tulin Sdn. Bhd. v 1. Selangor Director of Land and Mines (BA-241158-11/2016)

LAND ADMINISTRATOR OF SEPANG, SELANGOR …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 1) 3 A. INTRODUCTION [1] The Plaintiff in its Originating Summons (Enclosure 1) sought inter alia for these following orders: i. that the Plaintiff be allowed to appeal against the purported forfeiture of the land held under Title HS(D) 28767, P.T. 9111, Mukim Sepang, Daerah Sepang, Selangor (the "Land") by the State Authority, as the purported order following 5.100 of the National Land Code 1965 (the "Purported Order") and the purported forfeiture was performed outside the legal authority and power provided by the National Land Code 1965 ("the NLC") and any other law; and a declaration that the Purported Order and the following purported forfeiture by the State Authority over the Land (the "Purported Forfeiture") was made and performed outside the legal authority and power given by the NLC and any other law; and ii. a declaration that the Purported Order and the Purported Forfeiture by the State Authority over the Land are all null and void and be set aside and/or cancelled. That the relevant registrations, endorsements and changes to this effect be made at the registered document of title; and 4 iii. a declaration that this action is not time-barred as the Purported Order and the Purported Forfeiture by the State Authority upon the Land is null and void; and iv. a declaration that all issued and gazetted Forms 6As and Form 8A Notices leading to the Purported Forfeiture, were issued outside the powers and authority provided by the NLC, are therefore null and void and be set aside and/or cancelled. That the relevant registrations, endorsements and changes to this effect be made at the registered document of title; and v. a declaration that the Plaintiff is the current proprietor of the Land as the Purported Order and Purported Forfeiture are null and void. That Defendants within 7 days from the date of this order, instruct the relevant land officers, cause to make and/or make the relevant registrations, endorsements and changes to this effect at the registered document of title; and vi. and the relevant outstanding quit rent be paid by the Plaintiff as proprietor of the Land to the Land Office of Sepang; and vii. costs of this action. 5 [2] From the intitulement appearing on the Plaintiff’s application, it appears that the Plaintiff had moved this Court seeking the reliefs in Enclosure 1 pursuant to sections 97, 98, 100, 134, 418, 431 dan 432 of the National Land Code 1965 (“NLC”). However, this Originating Summons is essentially an appeal under section 418 of the NLC. B. BACKGROUND FACTS [3] The background facts which have led to the filing of Enclosure 1 by the Plaintiff are as follows:

3.1 The Plaintiff is a company running its business under the name of Zamrud Tulin Sdn Bhd (“Zamrud Tulin”) which was incorporated on 19.10.1999 by its Director cum first company secretary, Azman bin bin Ahmad (LS 01781). The Notice of Situation of Registered Office and Office Hours and Particular of Changes in Form 44 of the Companies 1965 dated 19.10.1999 (Form 44) was lodged by Azman Amnas & Associates Sdn. Bhd. The Plaintiff’s registered office appearing in this Form 44 is Lot 3.02, 6 Tingkat 2, Medan Mara, Jalan Raja Laut, 50350 Kuala Lumpur.

3.2 Vide Form 44 dated 25.10.1999 the Plaintiff’s new company secretary (Harris Bakar Management Sdn Bhd), lodged a change of address from Lot 3.02, Tingkat 2, Medan Mara, Jalan Raja Laut, 50350 Kuala Lumpur to 03-32, 3rd Floor, PKNS Complex, 40000 Shah Alam, Selangor.

3.3 Two weeks later, on 10.11.1999, the Plaintiff again changed its registered address to Lot 2118-1, Tingkat 1, Kg. Manikam, Off Jalan Bangi Permai 3, Bangi, 43000 Kajang Selangor.

3.4 Thereafter, on 19.01.2009 vide another Form 44 dated 19.1.2009 the Plaintiff had again changed its registered address from Lot 2118-1, Tingkat 1, Kg. Manikam, Off Jalan Bangi Permai 3, Bangi, 43000 Kajang Selangor to 7 No. 29-3, Jalan 1/116B, Kuchai Entrepreneurs Park, Off Jalan Kuchai Lama, 58200 Kuala Lumpur.

3.5 It is not in dispute that originally the Plaintiff was the proprieter of two (2) pieces of land with the following titles:

Title HS (D) 28767, P.T. 9111, Mukim Sepang, Daerah Sepang, Selangor ("PT9111 Land"); and

Title HS (D) 28768, P.T. 9112, Mukim Sepang, Daerah Sepang, Selangor ("PT9112 Land"), wherein both PT9111 Land and PT9112 Land are adjoining lands.

3.6 It is also not in dispute that the PT9111 Land was forfeited by the Selangor State Authority (“State Authority”) pursuant to section 100 of the NLC. 8

3.7 The forfeiture order in respect of the PT9111 Land was made pursuant to section 100 of the NLC for non-payment of rent. The said forfeiture order in Form 8A Notice was then published by the 2nd Defendant.

3.8 Consequently, a memorial in relating to the Form 8A Notice was entered at the register document of title of PT9111 Land on 19.09.2013 via No. 3531/2013 (which was one year after the gazette of Form 8A). [4] The Plaintiff being aggrieved by the said forfeiture had alleged that the said forfeiture was performed or carried out by the State Authority outside the legal authority and power provided by the NLC and any other written law. [5] The Plaintiff had also alleged that the Defendants (i. Pengarah Tanah Dan Galian Selangor, ii. Pentadbir Tanah Sepang, Selangor) had not followed the statutory mandatory procedures of the NLC in forfeiting the PT9111 Land. 9 [6] Aggrieved by the forfeiture of the PT9111 Land by the State Authority, the Plaintiff filed this Originating Summons. B. THE PLAINTIFF’S CASE [7] The Plaintiff’s Originating Summons is supported by an affidavit of Support affirmed by Chew Kian Seng, the Plaintiff’s director on 10.10.2016 (Enclosure 2). [8] To understand the complaint put forth by the Plaintiff, this Court needs to set out the Plaintiff’s narratives which are as follows: a. The Plaintiff claimed that it did not know that there were outstanding quit rents to be paid to the State Authority in respect of the Lands as the Plaintiff and its directors did not receive any notices or Bil Hasil Tanah from the Sepang District Land. b. The Plaintiff also claimed that it only came to know about the outstanding quit rents in respect of the PT9111 Land on 7.9.2013 when Er Leong Hui and Kang Ah Hin had 10 received Form 6A Notice of the NLC to pay the sum RM2992.50, being the outstanding quit rents for the PT 9112 Land. c. The Plaintiff claimed that Er Leong Hui had received the Form 6A Notice in respect of the PT 9112 Land as the Form 6A was sent to Er Leong Hui’s residential address at No.38, Jalan Cempaka, Bluewater Estate 43300 Seri Kembangan, Selangor. d. The Plaintiff also claimed that Chew Kian Seng had also received a Form 6A Notice in respect of the PT 9112 Land on 20.9.2013, demanding payment of the outstanding quit rents for the PT 9112 Land amounting to the sum of RM2992.50. Chew Kian Seng claimed that the said Form 6A Notice was sent to his old residential address at DG-2, Putra Indah Condominium, Jalan SR 8/6, 43300 Seri Kembangan, Selangor. 11 e. On 18.9.2013, the Plaintiff’s director, Chew Kian Seng had rushed to the Sepang District Land Office Registry to pay the outstanding quit rents of RM6,397.10 for PT 9112 Land. While at the Land Office, Chew Kian Seng had made inquiries whether there was any outstanding quit rents in respect of the PT9111 Land. f. However, Chew Kian Seng was informed that he was not allowed to pay the outstanding quit rents amounting to RM850.70 in respect of the PT9111 Land as the l and had been forfeited by the State Authority. g. Upon discovering that the PT9111 Land had been forfeited by the State Authority, the Plaintiff then made a series of visits to the Sepang District Land Office inquiring about the relevant procedures to be taken to recover the PT9111 Land. h. Thereafter, on 23.9.2013, the Plaintiff had submitted to the Ketua Pengarah Pentadbir Tanah Sepang a Petition 12 for Annulment of the forfeiture in respect of the PT9111 Land pursuant to section 133 of the NLC ("First Petition to Annul"). The Plaintiff also claimed that upon advice by an officer at the Ketua Pengarah Pentadbir Tanah Sepang’s office, the Plaintiff vide a separate letter dated 25.9.2013 had included justifications for the First Petition to Annul. i. The Plaintiff wrote a letter dated 28.5.2014 to inquire the status of the First Petition to Annul since there was no response from the Ketua Pengarah Pentadbir Tanah Sepang. j. The Plaintiff claimed that in a strange twist of events, the legal officer of the Selangor Land and Mines Office, Sariza Binti Ismail, submitted a letter dated 16.06.2014, to the Sepang District Land Office. The Plaintiff further claimed that the said letter did not state whether the PT911 Land was rightfully forfeited by the State Authority. 13 k. The Plaintiff had written another letter dated 19.11.2014 to the Ketua Pengarah Pentadbir Tanah Sepang wherein the Plaintiff set out the chronology of events leading up to the forfeiture and had requested for a decision to be made with regard to its First Petition to Annul. l. Eight months later, the 2nd Defendant, by a letter dated 28.4.2015, informed the Plaintiff that the Plaintiff’s First Petition to Annul cannot be taken into consideration as the PT9111 Land had been gazetted as Government land. The 2nd Defendant further advised the Plaintiff to apply for re-alienation of the PT9111 Land under section 76 of the NLC by filing and lodging the relevant NLC Forms. m. The Plaintiff had also sought further advice from a member of the State Executive Committee; Y.B. Ean Yong Hian Wah ("Y.B. Ean Yong") who had assured that the Application to Re-alienate the PT9111 Land back to the Plaintiff would be approved in due course. 14 n. On 6.4.2016, the Sepang District Land Office wrote a letter to the Plaintiff stating that the Application To Re-alienate the PT9111 Land back to the Plaintiff had been rejected by the State Executive Council for agricultural reasons, the conservation of mangroves and ecology ('bagi tujuan pertanian untuk dikekalkan sebagai kawasan paya bakau bagi tujuan pengekalan ekologi'). o. The Plaintiff further conducted searches at the Sepang District Land Office for the zoning of the land. Such searches yielded a report and an addendum showing the planning for the local District of Sepang by 'Majlis Perbandaran Sepang' until the year 2020. Both the report and the addendum at respectively, have classified the PT9111 Land as commercial (‘Perdagangan’) and zoned it as a tourist beach zone (‘Zon Pantai Pelancongan’). p. The Defendant had also affected a memorial relating to Form 8A to be entered at the register document of title of 15 PT9111 Land on 19.09.2013 via No. 3531/2013 which was one year after the gazette of Form 8A. q. On 27.5.2016, the Plaintiff had applied through its solicitors a petition for the annulment of the said forfeiture (“Second Petition to Annul"). r. The Plaintiff thereafter submitted a letter dated 9.6.2016 to the State Authority inquiring about the status of its Second Petition to Annul. A second letter dated 1.7.2016 was sent to the State Authority seeking a decision, absence of which the Plaintiff takes it that the State Authority refuses to make a decision in regard to its petition. s. The 1st Defendant's office wrote a letter to the Plaintiff dated 26.7.2016 in reply to the Plaintiff’s letter dated 1.7.2016 to inform the Plaintiff that the District Land Office of Sepang is still examining and reviewing the Second 16 Petition to Annul in detail ('masih dalam penelitian dan semakan terperinci'). t. The Plaintiff sent a third letter on 29.7.2016 to the State Authority informing the State Authority that should the State Authority omit and/or fail to reply to the Plaintiff within l4 days from the date of the letter, the Plaintiff will resort to legal action without further notice to the State Authority. u. According to the Plaintiff, the State Authority had not, at all material times, made any decision nor replied to the Plaintiff with regards to the Second Petition to Annul until this Originating Summons is filed by the Plaintiff. C. THE PLAINTIFF‘S ALLEGATIONS [9] As stated earlier, the allegations by the Plaintiff in respect of forfeiture of the PT 9111 Land are in two folds, namely; the forfeiture was carried out outside legal authority and power given under the NLC, and that the Defendants had not followed 17 the mandatory statutory procedures of the NLC in forfeiting the PT 9111 land. [10] The Plaintiff had contended that upon the discovery of the forfeiture, the Plaintiff had conducted three official land searches on 27.9.2013, 18.3.2016 and 25.4.2016 respectively on PT 9111 Land. [11] Upon these three official land searches, the Plaintiff had discovered the following facts.

Official land search conducted on 27.9.2013 ( Exhibit “CKS- 24”, Enclosure 2) a. From the endorsement appearing on the register document of title (the “RDT”), it appears that the Form 6A Notice was duly served on the Plaintiff on 30.01.2012 14.03.2012, 9:24:36 a.m. No Pers 1462/2012 Notis Cukai tidak dibayar (Notis 6A) Telah disampaikan pada 30 Januari 2012 Didaftarkan pada 14 Mac 2012 jam 9:24:36 pagi (No Rujukan Fail: BIL.(11).PDS(H)9/98/2011(421)28767) 18 b. On the endorsement in respect of Urusan-urusan dalam perserahan yang belum didaftarkan, the notation appears is as follows: No. Perserahan: 3531/2013 Notis Perampasan Tanah (Notis 8A) diserahkan pada 19 September 2013 jam 10:24:03 pagi.

(ii) Official land search conducted on 18.3.2016 ( Exhibit “CKS-24”, Enclosure 2) The endorsement pertaining Form 6A is similar. However there was a change in the memorial with regards to Notice Form 8A. The memorial now reads: No. Perserahan: 3531/2013 Notis Perampasan Tanah (Notis 8A) didaftarkan pada 19 September 2013 jam 10:24:03 pagi. No Warta: 3789 bertarikh 13 September 2012 (No Rujukan Fail: BIL.(32)DLM.PDH(H) 9/98/2011(421)28767)

(iii) Official land search conducted on 25.4.2016 (Exhibit “CKS-24”, Enclosure 2) The same endorsement and memorial appearing in the RDT on 18.3.2016‘s land search. [12] The Plaintiff had also discovered that the Form 6A was gazetted twice at the Selangor Government’s gazette. The first 19 gazette was on 10.5.2012 (“Gazette No. 1867), while the second gazette was on 5.7.2012(“Gazette No.2634”). [13] The Plaintiff had also discovered that the Form 8A was gazetted at the Selangor Government’s gazette on 13.9.2012 (Gazette No.3789). According to the Plaintiff, the gazetting of this Form 8A was done just 2 months and 9 days after the gazetting of the Second Gazetted Form 6A (gazetting date being 5.7.2012). [14] The 2nd Defendant had only entered a memorial of the said gazette Form 8A after one (1) year and 6 days from the date of its gazetting. [15] Upon the discovered facts, the Plaintiff had raised the following contentions: i. The Form 6A was gazetted twice in the Selangor Government gazette; ii. The two gazettes of the Forms 6A were not endorsed on the RDT; and 20 iii. The memorial with regard to the Form 8A appearing in the RDT on the official search on 27.9.2013 differs from the searches made on 18.3.2016 and 25.4.2016; in the former search, the words used were, being served on 19.09.2013 (diserahkan pada 19.09.2013). While in the latter search, the words used were, registered on 19.09.2013 (didaftarkan pada 19.09.2013). [16] Based on the above contentions, it was submitted on behalf of the Plaintiff, that the State Authority did not follow the mandatory statutory procedures under the NLC. Hence, the Plaintiff claimed that the forfeiture of the PT 9111 Land purportedly made pursuant to S.100 NLC is invalid. D. THE DEFENDANTS’ OBJECTION [17] The Defendants had strenuously opposed the Plaintiff’s application. In opposing the Plaintiff’s application, the Defendants filed an Afidavit Jawapan Defendan-Defendan which was affirmed by Firdaus Azwan bin Omar, the Assistant 21 Land Administrator attached at Sepang Land Office on 13.2.2017 (Enclosure 3). [18] The Defendants had opposed the Plaintiff’s application on the following grounds: i. The Defendants had complied with all the mandatory statutory requirements under the NLC. ii. The Plaintiff’s appeal under section 418 of the NLC was time barred. iii. The Plaintiff’s application is prejudicial to the State Authority as the PT 9111 Land has been vested to the State Authority namely the Goverment of Selangor who is not a party to this proceeding. E. ISSUES FOR DETERMINATION

(A) i. WHETHER THE FORFEITURE OF THE PT 9111 LAND WAS CONDUCTED OUTSIDE LEGAL AUTHORITY. 22 ii. WHETHER MANDATORY STATUTORY PROCEDURES UNDER THE NLC HAD NOT BEEN COMPLIED WITH BY DEFENDANTS IN FORFEITING THE LAND PURSUANT TO SECTION 100 OF THE NLC. (These two issues will be dealt together since the issues are related). [19] Before this Court proceeds to determine the issues, it is only apt for this Court to set out the relevant provisions under the NLC pertaining to the forfeiture of land in Malaysia. [20] The provisions relating to rent are governed by Part Six, Chapters 1 and 2 of the NLC. Sections 94 and 95 of the NLC require the proprietor of any alienated land or any one on his behalf to pay the rent reserved in respect of the said land at the office of the Collector or such other place as may be prescribed. Such rent is payable from the beginning of the calendar year in which the land is alienated. However, if it is 23 alienated after the end of September in that year, it is payable from the beginning of the calendar year next following. [21] The rent payable in respect of any calendar year falls due in full on the first day of that year and if not sooner paid, is treated as in arrear on the first of June of that year. In such a case under section 97 of the NLC, the Collector has the power to cause to be served on the proprietor of the land a notice of demand in Form 6A. [22] By virtue of section 100 of the NLC, the Collector is empowered to declare the land forfeited to the State Authority if the whole sum as stipulated in the notice has not been tendered to him within the time specified therein. [23] Section 100 of the NLC provides as follows: “100. Forfeiture for non-payment of sum demanded. The Collector shall not during the period specified in any notice under section 97 accept the tender by or on behalf of any person or body of a lesser amount than the sum thereby demanded; and if by 24 the end of that period the whole of that sum has not be tendered to him, he shall there-upon by order declare the land for forfeit to the State Authority, and the provisions of Part Eight shall have effect with respect thereto accordingly.”. [24] Section 130 of the NLC requires the Collector soon thereafter to publish a notification of such forfeiture in Form 8A in the Gazette. Copies of such notification will be affixed at conspicuous places as required by section 433 of the NLC. The effect of the forfeiture renders the land in question to revert to and vest in the State Authority as State land including any buildings existing thereon. [25] This Court shall now address the issues raised in the present case. The Plaintiff had contended that the Defendants had not complied with the procedures under the NLC which renders the forfeiture action invalid. 25 The validity of Form 6A issued to the Plaintiff. [26] The Plaintiff had contended that the Form 6A Notice was not personally served to the Plaintiff. The Plaintiff had also contended that it has no knowledge of the outstanding quit rents amounting to RM850.70 in respect of the PT9111 Land. The Plaintiff claimed that it only became aware of the forfeiture when its director, Chew Kian Seng, went to the Sepang Land Office on 18.9.2013 to pay the outs tanding quit rents in respect of PT 9112 Land. [27] The Defendants had refuted the Plaintiff’s contention. On the contrary, the Defendants raised the following contentions: i. before the Form 6A Notice was sent to the Plaintiff, the 2nd Defendant had first issued a warning letter dated 27.10.2011 (Exhibit “FAO-2”, Enclosure 3) to the Plaintiff’s address appearing on the RDT, that is; Lot 03- 32 3rd Floor, Kompleks PKNS Shah Alam 40000 Selangor (PKNS’s address) to inform the Plaintiff of the outstanding quit rent amounting to RM830.70. In this 26 letter, the Plaintiff was also warned to settle the outstanding quit rents within seven (7) days upon receipt of the letter to avoid the PT 9111 Land bring forfeited. ii. However, the Plaintiff failed to settle the oustanding quit rents within the time specified in the warning letter. iii. The Plaintiff’s failure to comply with the said warning letter had triggered the 2nd Defendant to issue the Form 6A dated 14.12.2011 (Exhibit “FAO-3”, Enclosure 3) to the Plaintiff in accordance with section 97 of the NLC demanding payment of the oustanding quit rents amounting to RM850.70. iv. The Form 6A was sent to the Plaintiff at Lot 03-32, 3rd Floor, Kompleks PKNS Shah Alam 40000 Selangor via registered post. The registered post was received by the Plaintiff’s representative by the name of Nur Afiqah Idris (I.C No. 921118-10-5614) on 30.1.2012 who had acknowledged the receipt of the registered post by 27 affixing her signature and her identity card number in Part B of the acknowledgement of receipt portion (Exhibit “FAO-4”, Enclosure 3] v. Notwithstanding the fact that the Plaintiff had received the Form 6A via the registered post, the 2nd Defendant had taken an additional step in serving the Form 6A by effecting a substituted service of the same Form 6A on the Plaintiff in accordance with section 432 of the NLC on 18.4.2012 (Exhibit “FAO-4”, Enclosure 3). vi. Upon the service of the Form 6A, as required under section 97(2) of the NLC, the 2nd Defendant had endorsed the note of service of the notice on the register document title (RDT) of the PT 9111 Land. The note of service appearing on the RDT reads as follows: Nombor Perserahan: 1462/2012 Ingatan pendaftaran di buat dalam Suratan-suratan Hakmilik bermula Pada jam 9:24 Pagi/petang pada 14.03.2012 28 [28] The Plaintiff however claimed that Nur Afiqah was not its representative and that this Nur Afiqah was an unknown individual to the Plaintiff. The Plaintiff also claimed when the Form 6A was sent to the Plaintiff, it was sent to the PKNS’s address instead of its Kuchai Lama’s address. [29] The Plaintiff had contended that it had informed the Defendants on its new registered address, being No. 29-4, Jalan 1/1168, Kuchai Entrepreneurs Park, Off Jalan Kuchai Lama, 58200 Kuala Lumpur (Kuchai Lama’s address). [30] On the Plaintiff’s contention that this Nur Afiqah was an unknown person to the Plaintiff and she was not the Plaintiff’s reprensentative, this Court must refer to the A.R. Advice Akuan or the Akuan Terima which was produced by the Defendants to prove the Form 6A was received by the Plaintiff (Exhibit “FOA-4”). [31] It must be stated here that this Exhibit “FOA-4” (A.R Advice) is the Pos Malaysia Berhad’s (Pos Malaysia) document which is 29 issued by the postal body to notify the sender whether the documents that they have sent had been successfully delivered to the receipient. Exhibit “FOA-4” was an acknowledgement receipt sent by Pos Malaysia to the 2nd Defendant’s office (Pejabat Daerah Sepang) that the registered letter they had sent to the Plaintiff (Zamrud Tulin Sdn Bhd) had been received. The registered letter was received by Nur Afiqah Idris (I.C No. 921118-10-5614) on 30.1.2012. [32] This Court observes that Nur Afiqah’s name, identity card number and signature were entered in their respective columns in Part B of the AR Advice. The most pertinent observation in this AR Advice was the fact that it was endorsed and rubber stamped by the “Penyelia Posmen Cawangan Shah Alam A 40670 Shah Alam”. For clarity, the rubber stamps appearing on part B is reproduced below: 30 [33] In this instance, this Court must take judicial notice that this form of acknowledgement is issued when the recipient of the document had personally collected the document from the post office as demonstrated by Exhibit “FOA-4”. 31 [34] When the registered letter was personally collected by Nur Afiqah from the post office, the following questions arise; i. How would Nur Afiqah be aware that a document for the Plaintiff needed to be collected from the Shah Alam’s post office if she was not the Plaintiff’s representative? ii. Why would Nur Afiqah go and collect the document at the post office if she was not the Plaintiff’s representative? iii. Would the Penyelia Pos allow Nur Afiqah to collect the document if she was not the Plaintiff’s representative and has the authority to collect the registered letter? [35] Based on the above observations and questions, this Court is of the considered view that the Plaintiff’s contention on Nur Afiqah (not being a representative) is a mere bare denial. In addition, if this Nur Afiqah was an outsider and unknown to the Plaintiff, upon such evidence produced by the 2nd Defendant, the most logical action for the Plaintiff to do is to lodge a police report against this Nur Afiqah for fraudulently posing as a 32 Zamrud Tulin’s representative which was not carried out by the Plaintiff. The Plaintiff was merely denying paragraph 17 of Enclosure 3 (Afidavit Jawapan Defendan-Defendan) by stating in its paragraph 11 Enclosure 4 as follows:

Saya merujuk kepada perenggan-perenggan 17, 72(i), 72(ii), 73 dan 74 Afidavit Jawapan Pertama Defendan-Defendan dan kepada perenggan 10 diatas. Plaintif tidak pernah menerima Surat amaran Tersebut, Borang 6A Yang Dikatakan Telah Diposkan ataupun mengesahkan mengesahkan menerima di Kad A.R. Berdaftar iaitu eksibit FAO-4 Afidavit Jawapan Pertama Defendan-Defendan. Plaintif tidak tahu identiti orang yang telah menandatangani kad tersebut, orang ini bukanlah pekerja Plaintif, bukanlah wakil Plaintif dan tidak di dalam apa cara pun mempunyai apa-apa kaitan dengan Plaintif. Berkenaan dengan ini, Defendan-Defendan adalah diletakkan beban pembuktian yang ketat dan kukuh. [36] It is infinitely more probable than not that since Nur Afiqah is very well aware of such document needs to be collected at the post office, Nur Afiqah must have been instructed, or at the very least informed by the Plaintiff that the document needs to be collected at the post office on the Plaintiff’s behalf. 33 [37] On the contention that the Plaintiff had informed the Defendants of its change of address to Kuchai Lama’s address, this Court must refer to the provision under the NLC pertaining to change of address of the land proprietor/owner. [38] Part Twenty-Six of the NLC provides for general powers and duties of the registrar. These duties include safe keeping of registers and matters arising from the safe keeping. Changing of address in the register is within the power of the registrar. [39] Therefore, any application to change the address of service shall be made to the Pendaftar Hakmilik, PTG Selangor as the PT9111 Land and PT9112 Land are held by the Pejabat Pendaftaran. [40] Section 378 reads as follows: “378. Changes of name by proprietors, etc. The Registrar may, upon the production to him of evidence (whether in the form of a deed poll, official certificate, statutory declaration or 34 other-wise) from which he is satisfied of a change of name on the part of any person or body in whom any alienated land or interest is for the time being vested, or at whose instance a caveat has been entered in respect of any land or interest, make a memorial of the change in the relevant register document of title and in any issue document of title or other instrument relating to the said land or interest.”. [41] Section 379 of the NLC provides: “379. Changes of address by proprietors, etc.

Any person or body in whom any alienated land or interest is for the time being vested, or at whose instance a caveat has been entered in respect of any land or interest, shall within the prescribed time notify the Registrar in Form 26A of a change of his address, and the Registrar shall make an appropriate record thereof.

Where the new address notified under subsection (1) is an address outside the federation, the notification shall specify also an address within the federation, for the service on the person or body in questions under this Act. 35

Any address for the service of notices supplied to the Registrar pursuant to sub-section (2) or any other provision of this Act may, by notification to the Registrar, be changed at any time to another address within the Federation, and the Registrar shall make an appropriate record of the change.”. [42] It must be pointed out that the Plaintiff had purportedly informed the Defendants of its new address namely; No. 29-4, Jalan 1/1168, Kuchai Entrepreneurs Park, Off Jalan Kuchai Lama, 58200 Kuala Lumpur by sending a letter dated 8.7.2009 vide A.R Registered to the the 2nd Defendant. The Plaintiff had not complied with the provision of section 379 of the NLC as section 379 requires a notification in Form 26A to be used in any application to change address of service. [43] Thereto, it is patently clear at this juncture that the Plaintiff cannot put the Defendants at fault for not sending the Form 6A to the Plaintiff’s Kuchai Lama address. The Plaintiff cannot expect to adhere to the supposed change of addresses when 36 the Plaintiff itself opted to not adhere with the proper law and procedures of changing addresses. [44] Going back to the issue of the propriety of service of the Form 6A. As mentioned earlier in addition to the fact that Plaintiff had received the Form 6A vide Exhibit “FOA-4”, the 2nd Defendant had gone an extra length namely; to serve again the Form 6A by substituted service. The 2nd Defendant had gone above and beyond a perfect personal service and proceded to conduct substitute service in ensuring that the Plaintiff is made aware and have the opportunity to respond to the Form 6A. [45] Section 432 of the NLC provides that:

“Substituted service

The Registrar or the Land Administrator, where he is satisfied that a notice affecting land in the State cannot be served personally or by post (either because the person to be served is evading service or for some other reason), may cause the service to be effected— 37

by affixing a copy of the notice in a conspicuous position -

on the land where possible; and

(ii) on a court-house, mosque or penghulu's office or balai, or a community hall or other public place as he thinks fit, in the area in which the land is situated; and

by publishing a copy of the notice in the Gazette and, if he thinks fit, in one or more of the newspapers circulating in the State.

For the purposes of subsection (1) a notice relating to document of title to any land shall be deemed to be a notice affecting the land”. [46] The Plaintiff had faulted the 2nd Defendant in effecting the substituted service (SS). The Plaintiff had contended that since the Defendants are admitting that the serving of the Form 6A to the Plaintiff by AR post is a valid service, the Defendants 38 cannot contend that it had also affected the service by SS. According to the Plaintiff, by affecting the SS, the 2nd Defendant had taken the position that the earlier posting of Form 6A was an imperfect service. [47] Further according to the Plaintiff, the alleged reason why the Land Administrator of Sepang, Dato’ Haji Mohd Amin had ordered that SS to be effected to the Plaintiff, was that he took a position that the Form 6A which was earlier posted cannot be deemed as proper service. [48] The Plaintiff had contented there cannot be two mode of services of the Form 6A. When the Defendants had served the Form 6A by personal service namely by registered post thereafter gazetted the service twice, the 2nd Defendant was thereby functus officio. The Plaintiff had contended that the Defendants cannot now go back on their decision to allege the validity of the posting and proceeded with the SS. 39 [49] In other words, the Plaintiff is contending that the 2nd Defendant having served the Form 6A to the Plaintiff by personal service, it was wrong for the 2nd Defendant to again serve the Form 6A by SS as SS can only be affected under section 432 of NLC if the Form 6A cannot be served personally on the Plaintiff. [50] On this issue, this Court instead is in agreement with the counsel of the Defendants that section 97 of the NLC does not specify any method of service to be strictly followed. For ease of reference, section 97 provides as follows:

“Notice of demand

Where any rent payable in respect of any alienated land is in arrear, the Collector may cause to be served on the proprietor thereof a notice of demand in Form 6A.

A note of the service of any such notice shall be endorsed, by or at the instance of the Collector, on the register document of title to the land to which the notice relates.”. 40 [51] In view of the provision above, the Court is of the view that the Defendants had sucessfully served the Form 6A to the Plaintiff. Reference must also be made to sections 430 and 431 of the NLC where these sections do not require the Defendants to follow specific method of service. The Form 6A can be served by any method either personally, via A.R Registered Post or by substituted service. [52] This Court must emphasize here that in complying strictly with the statutory requirements of the forfeiture order in the NLC, the Defendants had made an endorsement and registered the description of service on the Document of Title for PT9111 Land on 14.3.2012 via No. 1462/2012. [53] In Sungei Tukang Rubber Co. Bhd. v. The Government of the State Of Kedah [1982] CLJ (Rep) 775, the Court held that— “[2] It is clear that the intention of Parliament is that whatever method of service is adopted the notice and 41 contents thereof must reach the person or body concerned either directly or indirectly before any further steps such as forfeiture could be taken.”. [54] Further, by analogy, if there is specific method of service that needs to be adhered, the parties should be adopting that specified proper method of service (which in the present case, the law does not make provide for such explicit or specific method of service). In A.P.T. Pelajaran Nasional Indonesia v. Joo Siang & Co. Ltd. [1958] 24 MLJ 113 wherein it was held inter alia: “where the law provides a particular method or form of procedure for affecting service, or a particular place at which, or to which, service may be affected, then there must be strict compliance with those provisions, and the Court would set aside a judgment obtained by default where the requirements have not been complied with.”. 42 [55] This Court refers to the case of Craig v.Kanssen [1943] 1 K.B. 256, 262, 263, Lord Greene M.R. said: “... That refers us to O. LXVII r. 2, which, in case where personal service is not requisite, provides that service will be sufficient if the document to be served is left at the address for service of the person to be served, or if it is posted in a prepaid registered envelope addressed to the person to be served at that address.”. [56] Taking the above authorities into consideration, it is this Court’s judgment that the Form 6A was properly served to the Plaintiff. [57] As a result for not paying the outstanding quit rents, on 13.8.2012, the Re-Alienation Form 8A was issued by the Second Defendant on the Plaintif following the order from the Land Administrator. 43 [58] The Plaintiff took an issue of the different wording appears on the RDT in respect of the Form 8A on the land searches conducted. The Plaintiff complained on the words used diserahkan (served) and didaftarkan (registered). [59] This Court is of the view that the complaint raised by the Plaintiff is a baseless complaint. What the 2nd Defendant is required to do under the NLC is utterly clear in that; when the Form 6A had been duly served on the Plaintiff and the endorsement of service under section 97(2) has been entered on the RDT, and the Plaintiff still fails or refuse to pay the outstanding quit rents within the stipulated time, the 2nd Defendant shall declare the PT 9111 Land to be forfeited to the State Authority. Thereafter, under section 130 of the NLC, the 2nd Defendant had published in the Gazette of the forfeiture in Form 8A. Upon the publication of the gazette, the forfeiture shall take effect. [60] In the present case, it is patently clear that the said Form 8A was published in the State Government Official Gazette 44 No. 3789 on 13.9.2012. By virtue of section 130 of the NLC, the Plaintiff’s PT9111 Land was forfeited on 13.9.2012 upon the publication of the Form 8A in the Government of Selangor Gazette.

(B) WHETHER APPLICATION MADE BY THE PLAINTIFF WAS TIME BARRED? [61] Section 418 of the NLC provides as follows:

“Appeals to the Court

Any person or body aggrieved by any decision under this Act of the State Director, the Registrar or any Land Administrator may, at any time within the period of three months beginning with the date on which it was communicated to him, appeal therefrom to the Court.

Any such appeal shall be made in accordance with the provisions of any written law for the time being in 45 force relating to civil procedure; and the Court shall make such order thereon as it considers just.

In this section "decision" includes any act, omission, refusal, direction or order.” [62] The Defendants contended that the appeal filed by the Plaintiff vide this originating summons was utterly outside the three months’ period provided under section 418 of the NLC. [63] The Defendants had submitted that under subsection 134(1) of the NLC, the Plaintiff cannot challenged the validity of any forfeiture order made under the NLC in any court except by way of an appeal under section 418 of the NLC. The appeal must be filed within three months from the date of decision of the forfeiture order. Section 134(1) of the NLC also provides that no such appeal shall be commenced after the expiry of the period of three months allowed for bringing an appeal under said section 418. 46 [64] Thus, it was the contention of the Defendants that the Plaintiff should have filed an appeal if the Plaintiff is not satisfied with the decision of the State Authority pursuant to section 134(1) of the NLC. In the present case, according to the Defendants, the Plaintiff is obviously way out time. [65] Subsection 134(1) of the NLC provides as follows:

“Appeal against forfeiture

The validity of any forfeiture under this Act shall not be challenged in any Court except by means of, or in proceedings consequent upon, an appeal under section 418 against the order of the Collector under section 100 or, as the case may be, section 129; and, notwithstanding anything in any other written law, no such appeal shall be commenced after the expiry of the period of three months allowed for the bringing thereof by the said section 418.”. [66] However, the Plaintiff contended that the procedure by way of appeal as provided in subsection 134(1) does not apply to the 47 Plaintiff since the Plaintiff did not challenge the validity of the forfeiture but the purported order of the Collector on the ground that the required notice which is a condition precedent to making such order, has not been properly served on the Plaintiff as required by section 431 of the NLC and therefore a nullity. [67] To this point, the Court must emphasize that the Form 6A was properly served to the Plaintiff; hence section 418 shall be applicable to the Plaintif. [68] The Plaintiff had filed this application on 3.11.2016 which is a whopping nineteen (19) months from 28.4.2015, the date on which the Plaintif was informed of the decision of the State Authority on the First Annul Petition. [69] It is not in dispute that by a letter dated 28.4.2015, Pejabat Daerah Tanah/Sepang had notified the Plaintiff of the decision of the State Authority with regard to the Plaintiff’s First Petition 48 To Annul the Forfeiture. The relevant excerpt / portion of the letter dated 28.4.2015 is reproduced below: “… Tuan, PETISYEN UNTUK PEMBATALAN PERINTAH PERAMPASAN TANAH YANG DIWARTAKAN PADA 13 SEPTEMBER 2012 Saya merujuk kepada surat tuan bertarikh 19 November 2014 mengenai perkara di atas.

Dimaklumkan bahawa permohonan rayuan pembatalan pelucuthakan tanah di bawah Seksyen 133 Kanun Tanah Negara ke atas hakmilik HSD28767 PT9111 Mukim Sepang, tidak dapat dipertimbangkan kerana tapak tanah telah diwartakan sebagai tanah kerajaan.

Oleh yang demikian, pihak Tuan dinasihatkan untuk membuat permohonan pemberimilikan tanah dibawah seksyen 76 Kanun Tanah Negara dengan mengisi Jadual 1. …” (Emphasis given) [70] The Plaintiff contended that the said letter dated 28.04.2015 by the 2nd Defendant is not a decision of the State Authority within the meaning of the NLC with regard to the First Application to Annul. 49 [71] According to the Plaintiff, the decisions by the State Authority must necessarily be issued by the Selangor State Secretary or any officer in the office on behalf of the State Authority. [72] The Plaintiff continues to argue that Letter of Rejecting Re-alienation from the Sepang District Land Office is not a decision of the State Authority as this letter is not from the State Authority. The Plaintiff alleges that the letter merely informs the Exco's views of the matter. Nonetheless, this Court is not in agreement with the Plaintiff’s contention here. [73] It is this Court’s judgment that the letter issued by Pejabat Daerah Tanah/Sepang dated 28.4.2015 is a decision of the the State Authority which was communicated vide the 2nd Defendant to the Plaintiff. The letter had clearly mentioned that the decision was made in respect of the Plaintiff’s petition pursuant to section 133 of the NLC. 50 [74] Section 133 of the NLC provides the exclusive power vested on the State Authority to annul forfeiture, or re-alienate to previous proprietor on new terms, etc. [75] Section 133 clearly provides as follows: “133. Power of State Authority to annul forfeiture, or re-alienate to previous proprietor on new terms, etc.

Any person or body who was the proprietor of any alienated land immediately before its forfeiture under this Act may at any time apply to the State Authority for the annulment of the forfeiture.

The State Authority may in its absolute discretion refuse or allow any petition under this section, and, if it allows the petition, may do so conditionally upon payment by the petitioner-

if the forfeiture was for non-payment of rent, of such penalty, not exceeding six times the sum which he was required to pay by the notice of demand served on him under section 97, as the State Authority may think fit to impose; 51

if the forfeiture was for breach of any condition, of such amount as the State Authority may determine in respect of the expenses occasioned by the forfeiture.

The refusal of any petition under this section shall not be taken to prejudice the power of the State Authority to re-alienate the land to the previous proprietor at any time, and, for the purposes of any such re-alienation, the State Authority shall, at the time when it gives approval thereto, re-determine as it may consider appropriate the various matters specified in sub-section (2) of section 79.”. [76] The Plaintiff’s contention that this letter is not a decision of the State Authority as this letter is not from the State Authority and it merely informs the Exco's views of the matter are grossly incorrect. [77] Notwithstanding that the person who had signed the letter was Roslina binti Md Jani, the Land Administrator of Sepang (Pegawai Daerah Sepang), the decision to reject the Plaintiff’s First Petition to Annul the forfeiture was the decision of the 52 State Authority. Roslina’s duty here was to communicate the decision of the State Authority to the Plaintiff. [78] Hence, it is an undisputable fact that the Plaintiff had filed its appeal under section 418 of the NLC far beyond the three months’ period provided under section 418 of the NLC. [79] The legal position in compliance of the time in cases where the provision of the law has clearly set out the time within which an act to be done is trite and settled.This Court needs only refers to the following authorities: i. Section 38 Government Proceedings Act 1956 Limitation of Acts

Any written law relating to the limitation of time for bringing proceedings against public authorities may be relied upon by the Government as a defence in any civil proceedings against the Government. 53 ii. Alias bin Ismail v Hairuddin bin Mohamad & Anor [1997] 4 CLJ 669, the Court of Appeal held: “The Court has no discretion to set aside a defence of limitation.” iii. Credit Corp. (M) Bhd. V. Fong Tak Sin [1991] 1 CLJ 69, the Supreme Court held: “The limitation law is promulgated for the primary object of discouraging plaintiffs from sleeping on their actions and more importantly, to have a definite end to litigation. This is is accord with the maxim interest reipublicae ut sit finis litiup that in the interest of the State there must be an end to litigation. The rationale of the limitation law should be appreciated and enforced by the Courts.”. [80] It is utterly clear that the Plaintif’s appeal pursuant to section 418 of the NLC is time barred. [81] Further, this Court is an agreement with the counsel for the Defendant that, if the Plaintiff is dissatisfied or unhappy with the the decision made by the Majlis Mesyuarat Kerajaan Negeri Selangor on 16.3.2016 (Kertas MMK. No. 18/9/2016, 54

(1)dlm.PTS/03/PB01/11/0415(R),32)dlm.MMK.SEL.(R)31008/1 Jld.17) in rejecting the Plaintiff’s application for re-alienation of the PT 9111 Land to the Plaintiff pursuant to section 76 of the NLC, the Plaintiff should have applied for a judicial review under Order 53 of the Rules of Court 2012. This Originating Summons would not be the proper mode for the Plaintiff. [82] To this, the Court refers to The State Government of Sabah & Ors v. Clarence Chiuh Ken Loong & Ors [2017] 2 CLJ 379, the Court held that— “The Federal Court in Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865; [2010] 3 MLJ 145 had made clear that a complaint and the procedure to challenge the exercise of statutory powers by public authority has been explicitly provided under O. 53 of Rules of the High Court 1980 (now O. 53 of Rules of Court 2012). As a general rule, an application for reliefs against public authority as in the instant case which involves the question of the proper exercise of the 55 statutory powers of the defendants as public authority should have proceeded under that rule. The failure of which should stand the suit liable to be struck out.”.

(C) WHETHER PLAINTIFF’S APPLICATION WOULD CAUSE PREJUDICE TO THE STATE AUTHORITY AS THE PT 9111 LAND HAS NOW BEEN VESTED TO THE STATE AUTHORITY NAMELY THE GOVERMENT OF SELANGOR WHO IS NOT A PARTY TO THIS PROCEEDDINGS. [83] After the forfeiture order is issued, the land reverts back to and vests onto the State Authority. In the present case, the Plaintiff had only attempted to pay arrears due after the said land had been lawfully forfeited. Supposedly, as the registered owner of the land, the Plaintiff should have been more diligent in paying the quit rent. Once the Form 8A was gazetted, then the PT9111 Land is deemed officially forfeited and now belongs to the State Authority. 56 [84] Although the Form 6A was twice gazetted in the State gazzette, i.e. the first one was in 10.5.2012 via No. 1867 and the second one was in 5.7.2012 via No. 2634, it is this Court‘s considered view that the repeated gazzeting of the Form 6A neither gave rise to any defects to the gazette nor does it amount to non-compliance of the NLC which can render the gazette a nullity. [85] This Court is in total agreement with the counsel for the Defendants that there was a clear breach by the Plaintiff in not paying the outstanding amount of quit rents. The Defendants had duly and dutifully complied with all the procedural provisions under the NLC pertaining to the forfeiture of the PT 9111 Land and the said land now belongs to the State Authority. [86] Therefore, if this Court were to allow Plaintiff’s application, then it will prejudice the State Authority as the holder of the PT9 111 Land as the power to alienate the PT9 111 Land falls under the jurisdiction of the State Authority. In the present case, the State Authority was not a party in this suit. 57 [87] It must be also be noted that the Plaintiff had also filed petition to the State Authority under paragraph 133(2)(a) of the NLC for the annulment of the forfeiture. The State Authority may in its discretion, allow the petition conditional upon the making of such payment as may be required of him. However, the petition filed by the Plaintiff was rejected by the State Authority. CONCLUSION [88] In view of the aforemention deliberations, this Court hereby dismisses the Plaintiff’s application in Enclosure 1 with costs. [89] This Court further orders that the Plaintiff to pay the Defendants RM5,000.00 each in costs. ………………………………………….. (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated 9th January 2018 58 For the Plaintiff - Tetuan Y A Liew & Partners Cik Sonya Liew En Roger Chan For the Defendant - Pegawai Undang-Undang Negeri Selangor, Kamar Penasihat Undang-Undang Negeri Selangor