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2011 MarsdenLR 1691
HIGH COURT, SANDAKAN
THIEN KHIN SIONG & ORS – Appellant
Versus
JABATAN KERJA RAYA SABAH & ORS – Respondent
[Application For Judicial Review No: S-25-10 Of 2010]
Judicial review does not extend to substituting policy decisions unless a clear procedural violation is established; acquisition deemed proper when complying with statutory requirements and serving public purpose.
Headnote:(A) Land Acquisition Ordinance (Sabah Cap. 69) - Sections 2 and 3 - Judicial Review - Matter concerning compulsory acquisition of land for public purpose for constructing a road - Applicants challenged the acquisition on grounds of lack of agreement, public purpose justification, and breach of natural justice - Court found that all procedural requirements of the Ordinance were met. (Paras 1-4)
(B) Judicial Review - Standards - Judicial review must not assume the roles of evaluating policy decisions unless there is a clear violation of law or procedural impropriety established. (Para 3)
Facts of the case:
Applicants are registered co-owners of land measuring 3.184 hectares, of which 0.970 hectares was compulsorily acquired by the Respondents for road construction under the Land Acquisition Ordinance - The Applicants contended the acquisition was unnecessary and lacked proper process. (Paras 1-2)
Findings of Court:
The court dismissed the application, holding that the Respondents complied with legal requirements of the Land Acquisition Ordinance and the acquisition served a public purpose, as per statutory definitions. (Paras 4[1], 4[2])
Issues: The primary issues were whether the acquisition was authorized under the Land Acquisition Ordinance, the existence of a public purpose, and adherence to natural justice principles. (Paras 1, 4[2])
Ratio Decidendi: The court ruled that the Respondents had complied with the necessary legal requirements, dismissing claims of mala fides and procedural impropriety, emphasizing that without evidence of such violations, judicial intervention is unwarranted. (Paras 4[1]-[4])
Result: Application for Judicial Review dismissed with costs awarded to the Respondent.
| Table of Content |
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| 1. judicial review application for land acquisition. (Para 1 , 1 , 2) |
| 2. court's analysis on the merits of land acquisition. (Para 3) |
1. [1] In this Application for Judicial Review, pursuant to Order 53 Rule 3, the Applicants sought the following reliefs:
[i] For an Order of Certiorari pursuant to Order 53 Rules 2(1), 3(a) and 3(2) of the Rules of the High Court 1980 to quash the fallowings:
[a] the Declaration of Land to be Acquired under section 3(2) of the Land Acquisition Ordinance dated 11/6/2010 issued by the 2nd Respondent in respect of the land measuring 0.970 hectares only (from 3.184 hectares) of the land described under Sandakan Country Lease NO: 075115525 situated in the locality of Jalan Sungai Batang, Sandakan (hereinafter referred to as "the said land") for the unnecessary purpose of the construction of road for upgrading of Jalan Sungai Batang, Sandakan, in the state of Sabah;
[b] the Notice of Acquisition under Section 7 (1) of the Land Acquisition Ordinance dated 11/6/2010 issued by the 2nd Respondent for the said land;
[c] the Government of the State of Sabah Gazette Notification NO: 196 of 2010 to gazette the said land;
[d] further or alternatively, the 2nd and 3rd Respondents' purported decision to acquire the said land under section 3 of the Land Acquisition Ordinance (Sabah Cap 68);
[e] further or alternatively, the 1st Respondent implementing the purported decision by the 2nd and 3rd Respondents purported decision to acquire the said land under section 3 of the Land Acquisition Ordinance (Sabah Cap 68) for the unnecessary purpose of the construction of road for upgrading of Jalan Sungai Batang, Sandakan in the State of Sabah
[ii] Leave be granted to the 1st to 8th Applicants to apply for an Order of Mandamus directed to the 1st and/or 2nd and/or 3rd Respondents that the said 1st and/or 2nd and/or 3rd Respondents:
[a] do cancel or withdraw the 2nd Respondent's purported notification letters dated 30/6/2009 bearing reference NO: LS.713.1.129/Jld.l/(39)/(YA/asb) of the decision and/or pronouncement by the 1st and/or 2nd and/or 3rd Respondents to acquire the said land; and
[b] do cancel or to withdraw the purported offer by the 2nd Respondent vide notification letters dated 30.06.2009 bearing reference no: L.S.713.1.129/Jld.l/(39)/(YA/asb) to the 1st to 8th Applicants in respect of the decision and/or pronouncement by the 1st and/or 2nd and/or 3rd Respondents to acquire the said land.
[iii] Leave be granted to the 1st to 8th Applicants to apply to this honourable Court for an Order of Prohibition directed to the 1st and/or 2nd and/or 3rd Respondents and/or their servants and/or agents, prohibiting them further proceeding with the intended plan for the unnecessary purpose of construction of road for upgrading of Jalan Sungai Batang, Sandakan, in the State of Sabah.
BACKGROUND
2. The Applicants are the registered co-owners of all that parcel of land held under Country Lease 075115525 measuring approximately 3.184 hectares, situated in the locality of Jalan Sungai Batang, Sandakan, A portion of the said Country Lease 075115525, measuring approximately 0.970 hectare (hereinafter called "the said land") was compulsorily acquired by the Respondents, by way of a declaration under section 3 of the Land Acquisition Ordinance (Sabah Cap. 69) vide Gazette Notification NO: 196 published on 11th March, 2010 and repeated on 18th March, 2010.
[2] The Applicants being aggrieved by the compulsory acquisition of the said land then filed this application for judicial review.
CONSIDERATION OF THE APPLICATION
3. In considering a substantive application for judicial review, I am guided by the statement of Gopal Sri Ram JCA fas he then was J in delivering the decision of Supreme Court in Kumpulan Perangsang Selangor Bhd v. Zaid Hj Mohd Noh , as follows:
"An examination of the merits of a decision followed by a result that no reasonable person or body similarly circumstanced could have come to the conclusion in question and a makin
