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2022 MarsdenLR 2171
HIGH COURT MALAYA SEREMBAN
TENAGA NASIONAL BERHAD – Appellant
Versus
MAJLIS MESYUARAT KERAJAAN NEGERI NEGERI SEMBILAN & ORS – Respondent
[Judical Review Application No: 25-7-06/2021]
The court found that the award of late payment interest was beyond statutory authority under the Electricity Supply Act 1990 and unreasonable due to delay not attributable to the applicant.
Headnote:(A) Electricity Supply Act 1990 – Sections 11 and 16 – Judicial review application by the national electricity utility company to quash decision imposing late payment interest regarding land compensation – Award of late payment interest found to be beyond statutory powers conferred, and unreasonable as delay not attributable to applicant. (Paras 2, 32, 37)
(B) Justiciability of administrative decisions – The court retains supervisory jurisdiction despite legislative provisions indicating finality of decisions at the administrative level. (Paras 26, 28)
Facts of the case: Applicant paid compensation pursuant to the Electricity Supply Act 1990 for land usage without knowing it was privately owned; later challenged late payment interest awarded by the state government, which lacked statutory authority. (Paras 1-3)
Findings of Court: The court upheld that the state authority could not award late payment interest under the Electricity Supply Act and determined that no delay was attributable to the applicant. (Paras 30, 44)
Issues: The central issues involved the legality of awarding late payment interest and accountability for the delay in determining compensation. (Paras 22, 42)
Ratio Decidendi: The court reasoned that any award of late payment interest was ultra vires and irrational since TNB did not cause the delay; thus, interest was not payable until compensation was ascertained. (Paras 31, 49)
Result: Judicial review application allowed with costs.
JUDGMENT
Introduction
[1] The applicant in this case, Tenaga Nasional Berhad ("TNB"), is the national electricity utility company. It applied for judicial review to quash the decision of the Majlis Mesyuarat Kerajaan Negeri of Negeri Sembilan (the first respondent) and/or the state government of Negeri Sembilan (the third respondent) to impose late payment interest on TNB in connection with compensation paid by TNB to the fifth respondent, Lambang Kelana Sdn Bhd ("Lambang Kelana"). This compensation was paid by TNB pursuant to the provisions of the Electricity Supply Act 1990 , because TNB had installed power transmission lines across a portion of land belonging to Lambang Kelana located in Bukit Galla on the outskirts of Seremban.
[2] I allowed the application, on the basis (among others) that:
(a) the Electricity Supply Act 1990 did not empower the Majlis Mesyuarat Kerajaan Negeri to award late payment interest; and
(b) even if there was the power to do so, the decision to award late payment interest on TNB was unreasonable in the Wednesbury sense, as at no point was there any delay that could reasonably be attributable to TNB.
[3] These reasons are explained in detail below.
Material Background Facts
The Initial Wayleave Procedure
[4] In or about 2004, TNB commenced the procedure under s 11 of the Electricity Supply Act 1990 to obtain a wayleave in order to construct an electricity supply line from the Jimah Power Station in Port Dickson to a sub-station in Lenggeng. The alignment of the power lines was to cross the Bukit Galla forest reserve located north of Seremban.
[5] TNB engaged a licensed surveyor to undertake a survey of the affected lands and to propose an alignment plan. This plan was devised based on data obtained from the Department of Survey and Mapping (Jabatan Ukur dan Permetaan, frequently referred to by its initials, "JUPEM"). The data obtained from JUPEM did not indicate that the proposed alignment would bisect lands owned by Lambang Kelana.
[6] The requisite notice was duly given to the Negeri Sembilan Department of Forestry. This notice, among others, informed the Department of Forestry that a swathe of land 50 metres wide would be cleared for the purposes of the transmission lines, and that the total affected land area would be 20.902 hectres. Subsequent correspondence between the Department of Forestry and TNB did not reveal any reason for TNB to believe that the affected lands were anything other than forest reserve lands or that any portion of it had been alienated into private hands.
[7] On 29 December 2006, TNB paid compensation of RM889,790 to the Department of Forestry pursuant to s 16 of the Electricity Supply Act 1990 . Thereafter, land clearing works commenced sometime in 2007.
Lambang Kelana's Land
[8] On 11 June 2007, the solicitors of Lambang Kelana wrote to TNB informing it that it had trespassed over lands belonging to Lambang Kelana. TNB undertook investigations and discovered that the transmission lines would in fact cut across leasehold land belonging to Lambang Kelana. The affected portion of the land measured 2.602 hectares.
[9] According to the evidence before the court, this was the first time that TNB was first made aware that the transmission lines would cross over lands that were not forest reserve and that land belonging to Lambang Kelana was affected.
[10] TNB proceeded to issue to Lambang Kelana the statutory notice prescribed pursuant to s 11(2) of the Electricity Supply Act 1990 . This notice was issued on 10 July 2007.
Enquiries By The District Land Administrator
[11] Under s 11(6) of the Electricity Supply Act 1990 , if an objection has been recorded to a notice issued under s 11(2), the District Land Administrator must hold an enquiry giving all parties the right to be heard. The District Land Administrator has the power, following the enquiry, to authorise or to prohibit the proposal for the wayleave. He or she must also assess the compensation that is to be paid by T
