Zulkefli Makinudin JCA:

[1] This is an appeal by the applicant from the decision of the High Court at Alor Setar pursuant to a reference under s. 36(1) of the Land Acquisition Act 1960 ("the Act"). The learned judge of the High Court had dismissed the applicant's claim for damage sustained or likely to be sustained due to severance and/or injurious affection to the remainder of the land Lots No. 88 and 243, Mukim of Tawar, District of Baling, State of Kedah Darul Aman belonging to the applicant.

[2] The declaration of intended acquisition of the scheduled lands under s. 8 of the Act was published in the Government of Kedah Darul Aman Gazette on 8 December 1994 under Gazette Notification No. 760. The material date for the purposes of determining the market value is thus 8 December 1994. The purpose of the acquisition as stated in the said Gazette Notification is as follows:

Tujuan Awam iaitu Cadangan Pengambilan Balik Tanah untuk Projek Jalan Raya Timur-Barat Fasa II Pakej V - Titi Karangan Ke Kampong Kangar, Negeri Kedah Darul Aman.

The particulars of the property scheduled for acquisition are as shown below:

Lot No. Title Original Area Area to be acquired

Acre Rood Pole Acre Rood Pole

88 G36807 210 1 35 6 1 24.32

243 G25100 418 2 32 3 0 36.00

Total acquired area 9 2 20.32

==================================

The Scheduled Lands formed part of a large rubber and palm estate known as Stothard Estate which comprised 2,429.2895 acres.

[3] On 14 October 1997, the Land Administrator awarded the applicant the sum of RM51,600 for the acquisition on Lot 243 and RM102,432 for the acquisition on Lot 88 (equivalent to the sum of RM16,000 per acre), as well as a drainage cost of RM16,000. The total compensation should be RM170,032 for the scheduled lands. Payment was however made only for the award on Lot 88 and for drainage cost, amounting to RM118,432.

[4] The applicant referred the matter to the High Court for non-payment of the sum of RM51,600 due for the acquisition on Lot 243 and for failure by the Land Administrator to award severance and injurious affection for both Lots 88 and 243. On 18 May 1998, the learned judge of the High Court recorded the parties' consent for the payment of the sum of RM51,600 but dismissed the applicant's objection on the claim for severance and injurious affection for both Lots 88 and 243. The applicant is now appealing only on this claim for severance and injurious affection.

[5] At the outset we noted that the value of the land is not disputed. The respondent paid, and the applicant accepted the sum of RM16,000 per acre. It is not in dispute that the acquired land cuts the estate into two. The area of land affected by this division is approximately 364.29 acre. The dispute is whether the applicant should be compensated for the severance and injurious affection. The estimated depreciation of the market value is 30% and the applicant's claim for the severance and injurious affection for both Lots 88 and 243 is therefore for an amount of RM16,000 x 30% x 364.29 acres = RM1,748,592.

[6] The learned judge of the High Court in his grounds of judgment had stated that even though there is a severance taking place in respect of the said Lots 88 and 243, the severance in this case had not resulted in the remaining portion of the land lots becoming unproductive to be worked on or that there has been an injurious affection to the land. The learned judge took the view that the construction of the highway project across the two divided portions of the land would in fact facilitate the movement into and out of the said land and this would enhance the value of the land. With respect, we could not agree. The learned judge erred in holding there is an enhancement in value when there is no evidence of such enhancement. We find the land lots in question are a working palm oil estate, and the building of a road or highway across the estate severing it into two and opening the area up to traffic cannot in any