The principle of equivalence in compensation for compulsory land acquisition mandates fair reimbursement to landowners based on market value, with acknowledgment of pre-amendment rights in pending cases.

Vernon Ong FCJ:

Introduction

[1] The appellants were the registered proprietors of two contiguous parcels of commercial land known as Lot 719 and Lot 1286, adjoining the SILK Highway ("Subject Properties"). This appeal relates to the acquisition of portions of two contiguous plots of land ("Acquired Lands") belonging to the appellants for the "Projek Penyuraian Trafik Jalan Lingkaran Kajang (SILK) - Pembinaan Persimpangan Bertingkat Berhampiran Plaza Tol Kajang)" ["SILK Highway"] in 1999 pursuant to the Land Acquisition Act 1960 (LAA 1960). The declaration of intended acquisition was gazetted vide Form D on 25 November 1999.

[2]Following an enquiry, the Land Administrator issued the following awards of compensation on 7 April 2000:

[3]The LA's Awards sum of RM349,519.32 was paid to the appellants on 8 May 2000. The appellants accepted the LA's Awards under protest and filed objections on the compensation amount under Form N. In due course, the matter was referred to the High Court. After hearing of parties, on 30 November 2010 the High Court awarded the total excess sum of RM1,057,740.98; increasing the LA's Awards by a sum of RM708,221.66 ("2011 High Court Order"). The excess sum was paid to the appellants on 6 June 2011.

[4] Dissatisfied, the appellants appealed to the Court of Appeal. Meanwhile, the appellants filed an application to refer certain constitutional questions to the Federal Court. On 20 April 2017, the Federal Court's ruling on the questions posed by the appellants are as follows:

(i) Sections 40D(3) and the proviso to s 49(1) of the LAA 1960 and s 68(1)(d) of the Courts of Judicature Act 1964 (CJA 1964) are not ultra vires art 121(1B) of the Federal Constitution particularly when read in the context of art 13 of the Federal Constitution; and

(ii) Sections 40D(1) and (2) of the LAA 1960 are ultra vires art 121 of the Federal Constitution read in the context of art 13 of the Federal Constitution.

[5] In view of the Federal Court's decision, the Court of Appeal on 25 May 2017 remitted the matter to the High Court for rehearing. Consequently, the 2011 High Court Order was set aside. After a rehearing of the matter, the High Court gave its decision on 16 March 2018 whereby the High Court allowed an excess sum of RM2,411,788.58 over and above the LA's awards. The particulars of the total amount awarded by the High Court are as follows:

[6] The appellants appealed to the Court of Appeal on eight questions of law:

Question 1 - Comparable Acquisition Issue

Whether in accordance with para 1(1A) of the First Schedule to the LAA 1960, the principle of equivalence and the decision of the Federal Court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case, 2017 MarsdenLR 3044 (Semenyih Jaya), the High Court was right to disregard some of the appellants' comparables including the acquisition comparables - that is, the amount of compensation awarded by the Land Administrator for lands (which were situated within the vicinity of the Acquired Lands) when assessing the market value of the Acquired Lands;

Question 2 - Category of Land Use Issue

Whether the High Court could disregard the undisputed fact that prior to and at the time of the acquisition, the Acquired Lands were held under the category of land use "Bangunan" with express condition "Bangunan Perniagaan" when assessing market value of the Acquired Lands;

Question 3 - Injurious Affection for Contiguous Lots Issue

Whether the High Court was legally obliged to award injurious affection for all the four contiguous lots (adjacent to the Acquired Lands) owned by the appellants in view of the following factors:

(a) Injurious affection was awarded for the remainder of the Acquired Lands (owned by the appellants, of which a portion was compulsorily acquired by the respondent under the LAA 1960);

(b) The said lots suffered from the same negative impact as the remainder of the Acquired Lands and were restricted to only one inadequate access road hence significant