Lee Hun Hoe CJ (Borneo):

This appeal is against the decision of Harun J in striking out an application for an order of mandamus.

Semantan Estate [1952] Sdn. Bhd., the appellant, is a company incorporated in Malaysia in 1952 under the Companies Ordinance 1940 and has been carrying on the business of planters, cultivators, growers, exporters of and in rubber and other crops. It was in possession of over 700 acres of land held under C.T. 12530 Lot 4647. The Selangor government decided to acquire considerable acreage of land in the vicinity. So, pursuant to s. 4(i) of the Land Acquisition Enactment (Cap. 140) (hereinafter called "the Enactment") the Selangor government published notification 401 in the Selangor government gazette on 26 July 1956. This was followed by the declaration under s. 6(i) of "the Enactment" and published as notification 577 in the said gazette on 25 October 1956. Hearing was fixed on 20 November 1956. At the hearing the appellant was given a plan showing the boundaries of the areas to be acquired amounting to 250 acres. The appellant raised various objections and at the appellant's request hearing was postponed to 27 November 1956. The appellant asked for RM13,000 per acre. Award was made for RM5,282 per acre for 250 acres. Possession was duly taken on 3 December 1956. Subsequently, the Selangor Government gave notice of withdrawal under s. 49 of "the Enactment" from the acquisition on 22 January 1958 in respect of an area known as plot "B" consisting of 22 acres 1 rood 24 poles. Two plots of land known as plots "C" and "D" were found to be outside the acquisition. By another notification 117 published in the said gazette on 6 March 1958 the Government proposed to acquire the said two plots "C" and "D" consisting of 60 acres 2 roods 27.5 poles. The result was that the area finally acquired was 263.272 acres. Hearing was fixed on 18 June 1958 but postponed a number of times and was finally abandoned on 24 March 1959. To resolve the difficulty the parties agreed to waive all irregularities. A reference was made to the High Court in Semantan Estate [1952] Ltd. v. Collector of Land Revenue[1960] . The position was made clear by Ong J, as he then was, at p. 302:

... Thereafter it was sought to solve the problem by agreement to the effect that the whole area finally acquired by Government was to be deemed to have been acquired by virtue of the Notification No. 401 of 26 July 1956, and that the award by the Collector in respect of such area was at the rate of RM5,282 per acre, as against a claim of RM13,000 per acre by the applicants.

The additional acquisition under Notification 117 of 6 March 1958, cannot possibly be included in the award of 27 November 1956, or in the reference, as has been done. No award has ever been made in respect of this additional area. The only way it could have been included in that award was under the provisions of s. 51, which was in the circumstances impossible.

I therefore hold that I have no jurisdiction under the Enactment to entertain the reference because it is not, in fact, a reference based upon the award of 27 November 1956, or any award. The Court has jurisdiction only under s. 22. The parties themselves cannot, by an agreement to waive irregularities in procedure and to seek a reference, confer jurisdiction on the Court dehors the Enactment. Only Parliament can do so. Since this reference is expressly made under s. 22 of the Enactment, there is only one proper course open to me, and I must decline to act.

Thereafter, following an exchange of correspondence between the parties, the matter came to rest. In 1963 the acquired land was subdivided into 38 lots and each given a separate title - all in the name of the Federal Land Commissioner.

Then by an ex parte originating motion dated 9 August 1983 the appellant made an application for leave to apply for an order of mandamus directed at the respondent to complete the acquisition procedure. On 8 December 1983 Hamzah J