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2020 MarsdenLR 1226
HIGH COURT MALAYA KUALA LUMPUR
FUN FATT – Appellant
Versus
KERAJAAN MALAYSIA & ANOR – Respondent
[Judicial Review Application No: WA-25-95-02/2019]
Withdrawal from land acquisition is invalid after possession has been taken, constituting a violation of statutory and constitutional provisions.
Headnote:(A) Land Acquisition Act 1960 – Sections 18(a), 22, 35 – Judicial review – Withdrawal from land acquisition by the state authority after possession taken is ultra vires – The court found that possession had been taken post issuance of Form H, thus the withdrawal contravened s 35(1) of the Act. (Paras 12, 13, 14, 36)
(B) Procedural fairness – Basic rules of natural justice must be observed in decisions affecting parties – The Respondents failed to adhere to procedural rules, causing bias against the Applicant in the withdrawal decision. (Paras 34, 35)
Facts of the case: The Applicant, owner of land, contested the Withdrawal of Acquisition by the State Authority which occurred after the land was occupied for highway construction, seeking judicial review for the decision being illegal and irrational.
Findings of Court: The court ruled the Withdrawal illegal as possession had been taken under the Act, rendering the Withdrawal procedure improper and ultra vires. The Respondents were found liable for breaching constitutional rights concerning property.
Issues: Whether the Withdrawal of Acquisition was valid under s 35 of the Act after possession had been taken.
Ratio Decidendi: The court established that once possession is taken as defined by the Act, the state authority cannot withdraw from acquisition; thus, the withdrawal was found excessive and against statutory provisions.
Result: Application for judicial review allowed.
Introduction
[1] This is the Applicants application for judicial review which seeks inter-alia for the followings:
i. An order for certiorari to quash and/or set aside the decision of the 1st Respondent to withdraw from the acquisition vide Federal Government Gazette Notification No 696 dated 4 January 2019 publishing a Notice of Withdrawal From Acquisition dated 27 December 2018 pursuant to s 35 of the Land Acquisition Act 1960 in respect of Land held under Mukim 104, Lot 1009, Mukim Ampang, Daerah Kuala Lumpur Wilayah Persekutuan (the Land) scheduled to be acquired as published in the Federal Government Gazette Notification No 808 dated 27 March 2017 (the Withdrawal).
ii. A declaration that the Withdrawal is ultra vires and/or illegal and/or irrational and/or unreasonable and/or procedurally improper and/or an abuse of process.
iii. An order of mandamus directed at the 2nd Respondent to complete the acquisition of the Land by taking the following steps below:
a. Issuing and serving Form K in accordance with s 22 of the Land Acquisition Act 1960 in respect of the Land;
b. Making a memorial on the register document of title of the Land stating that the said Land has been acquired and vested in the 1st Respondent.
iv. A consequential order that a certificate be issued by the court against the 2nd Respondent pursuant to s 33(3) of the Government Proceedings Act, 1956 for the payment of compensation in the sum of RM10,171,885.50 as stated in Form H dated 9 October 2017 together with RM579,658.12 as late payment charges calculated at the rate of 5% per annum from 9 January 2018 to date and continuing.
v. Costs.
vi. Such further and other relief deemed necessary and suitable by the court.
Background Facts
[2] Lo Pang @ Fun Lim (the Deceased) is the owner of the Land. Vide an order of the High court of Kuala Lumpur dated 28 July 2017, the Applicant was appointed as the administrator of the Deceaseds estate and it was declared that the title to the Land be vested in the Applicants name.
[3] On 27 April 2017, a declaration in Form D pursuant to s 8 of the Land Acquisition Act 1960 (the Act) was published in the Government Gazette declaring that the whole Land was needed for the purposes of the Setiawangsa-Pantai Expressway Sdn Bhd Project (SPE Project). The construction and completion of the SPE Project is undertaken by a company known as Lebuhraya Duke Fasa 3 Sdn Bhd (DF3). Hence, the acquisition of the Land by the 1st Respondent and the subsequent possession of the Land by the 2nd Respondent are done for the benefit of DF3, as the concessioner appointed by the Respondents.
[4] On 7 August 2017, a Notice of Inquiry in Form E was issued by the 2nd Respondent pursuant to s 10 of the Act informing that the land inquiry shall take place on 7 September 2017. The Applicant attended the inquiry on 7 September 2017 but it was postponed to 26 September 2017 as the 2nd Respondent advised the Applicant to submit a valuation report on the acquisition exercise.
[5] The Applicant then appointed Messrs Azmi & Co (the Valuer) to carry out a valuation on the Land to determine an appropriate compensation sum payable on the acquisition exercise. The Valuer then produced its report estimating that the appropriate compensation payable is RM23,228,684.00 (the Valuation Report).
[6] Upon conclusion of the Second Inquiry on 26 September 2017, the 2nd Respondent awarded the sum of RM10,171,885.50 (the Compensation Sum) for the acquisition of the whole Land. The award made by the 2nd Respondent was recorded in Form G pursuant to s 14 of the Act. Despite the Valuers estimation that the appropriate compensation was approximately RM23 million, nonetheless, the Applicant decided to accept the Compensation Sum and did not wish to commence land reference proceedings to raise objections on the award.
[7] Subsequently, on 9 October 2017, a Notice of Award and Offer of Compensation in Form H pursuant to s 16 of the Act was issued and served to the Applicant.
