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2023 MarsdenLR 1863
COURT OF APPEAL PUTRAJAYA
PENGARAH TANAH DAN GALIAN SELANGOR & ANOR – Appellant
Versus
PNSB ACMAR SDN BHD & ANOR AND ANOTHER APPEAL – Respondent
[Civil Appeal Nos: B-01(A)-451-09-2020 & B-01(A)-470-09-2020]
Actual possession of land prior to issuance of formal notice bars withdrawal from compulsory acquisition; compensation must be awarded based on established possession.
Headnote:(A) Land Acquisition Act 1960 - Sections 18, 22, 29, and 35 - Compulsory acquisition of land - Validity of withdrawal from acquisition - Court held that actual possession was established before issuance of Form H, thus withdrawal was not permissible - Compensation awarded for both acquisition and withdrawal - Appeal No 451 dismissed, Appeal No 470 allowed. (Paras 22-23, 35-36)
(B) Judicial Review - The court emphasized the importance of actual possession in determining the validity of withdrawal from acquisition, ruling that once possession is taken, withdrawal is no longer possible. (Paras 22-23)
Facts of the case:
PNSB Acmar challenged a notice of withdrawal of compulsory acquisition of land for the LRT 3 project, claiming the withdrawal was invalid as actual possession had been taken prior to Form H issuance. The High Court ruled in favor of PNSB Acmar, leading to appeals by the land authorities. (Paras 1-11)
Findings of Court:
The court found that actual possession was taken before Form H was issued, thus affirming the High Court's decision that withdrawal was invalid and awarding compensation accordingly. (Paras 22-23)
Issues: The main issues were whether possession was taken upon issuance of Form H, the applicable interest rate for late payment charges, and the liability for compensation. (Paras 18-20)
Ratio Decidendi: The court ruled that possession could be established through actual occupation prior to formal possession, and that withdrawal from acquisition is barred once possession is taken. The applicable interest rate for late payment charges was determined to be 8%. (Paras 22-23)
Result: Appeal No 451 dismissed; Appeal No 470 allowed with costs.
| Table of Content |
|---|
| 1. judicial review appeals overview (Para 1 , 2 , 3) |
| 2. compulsory acquisition notice issued (Para 4 , 5 , 6) |
| 3. compensation for withdrawal of acquisition (Para 8 , 9 , 10) |
| 4. actual possession and evidentiary standards (Para 12 , 13 , 14 , 15 , 16 , 17) |
| 5. key issues on possession and withdrawal (Para 18 , 19 , 20) |
| 6. interpretation of possession under the act (Para 22 , 23 , 24 , 25) |
| 7. applicable interest rate for late payment (Para 52 , 53 , 54 , 56) |
| 8. liability of the director general (Para 58 , 59) |
Introduction
[1] There were two appeals before this court. They related to an application for judicial review made by the PNSB Acmar Sdn Bhd, the 1st respondent in both cases. At the High court, PNSB Acmar successfully obtained an order declaring (among others) that a notice of withdrawal of a compulsory acquisition of a portion of its land was null and void.
[2] The appellants in both the appeals before us sought to challenge the decision of the High court. In Appeal No 451, the appellants were the Director of Land and Mines for the state of Selangor and the land administrator for the district of Klang. In Appeal No 471, the appellant was the Director General of the Department of Land and Mines of the Federal Government.
[3] We dismissed Appeal No 451 but allowed Appeal No 470. The reasons for our decision are set out here. This is the judgment of the court.
Material Facts
Notice Of Compulsory Acquisition
[4] PNSB Acmar owned a piece of land in Klang. On 16 February 2017, it received notice in Form D prescribed under the Land Acquisition Act 1960 that 0.8401 hectares of its land was to be compulsorily acquired for the purposes of the construction of the LRT 3 project, which is intended to connect Klang to the existing light rail network in Kuala Lumpur and Petaling Jaya. The paymaster agency was Prasarana Malaysia Berhad.
Enquiry And Issuance Of Form H
[5] An enquiry was held in accordance with the provisions of the Land Acquisition Act 1960 and the amount of compensation awarded to the 1st respondent was RM266,972,147. The relevant Form H was issued on 21 February 2018.
The Notice Of Withdrawal
[6] On 3 July 2018, the Prime Minister's department wrote to the Director General of Land and Mines (the appellant in Appeal No 470), informing him that the subject land was surplus to requirements and that the Bandar Baru Klang station would now be constructed on lands already acquired. On 7 September 2018, the district land administrator of Klang issued a notice of withdrawal from acquisition in the prescribed form. The notice of withdrawal was subsequently published in the Selangor Government gazette on 11 October 2018.
[7] Section 22 of the Land Acquisition Act 1960 provides for the taking of formal possession of acquired lands by the issuance and service of a notice in Form K to the occupants and proprietor of such lands. It is not in dispute that the Form K was never issued in respect of the subject land.
Compensation For The Withdrawal
[8] An inquiry was subsequently held to ascertain the amount of compensation payable to the 1st respondent for the withdrawal of the compulsory acquisition. The final amount of compensation was ascertained on 13 February 2019 to be RM64,056,219.00, which included the costs of repurchase of units on the land that had been sold, the costs of cancelling financing facilities and reputational damage suffered by the 1st respondent.
[9] This amount was paid to PNSB Acmar, and was received by it under protest.
At The High court
[10] PNSB Acmar challenged the withdrawal of the compulsory acquisition through its judicial review application at the High court. PNSB Acmar sought (among others) an order of certiorari quashing the decision of the Klang land administrator to withdraw the compulsory acquisition and a declaration that the withdrawal was null and void. In essence, PNSB Acmar sought to hold the authorities to their decision to compulsorily acquire the subject land, for which PNSB Acm
