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2014 MarsdenLR 2663
COURT OF APPEAL PUTRAJAYA
BANDAR NUSAJAYA DEVELOPMENT SDN BHD – Appellant
Versus
TENAGA NASIONAL BERHAD – Respondent
[Civil Appeal No: J-02-2968-11-2011]
The State Authority's decision on compensation is final and unappealable under Section 16(2) of the Electricity Supply Act 1990, reaffirming the authority's inability to review its own decisions.
Headnote:(A) Electricity Supply Act 1990 - Section 16 - Judicial review - Compensation assessment - State Authority's decision under s 16(2) of the Act affirmed as final and unappealable, quashed decision of the learned High Court Judge allowing respondent's application for certiorari to nullify initial compensation order - Found that subsequent decisions inconsistent with the first were null and void. (Paras 16, 20, 22)
(B) Judicial review process - It was incorrect for the learned judge to assume that the State Authority's initial decision did not have procedural fairness issues as parties had received notice and opportunity to present evidence. (Paras 26, 28, 32)
Facts of the case:
The appellant owned 26 parcels of land and sought higher compensation following construction activities by the respondent under Electricity Supply Act 1990, resulting in a controversial compensation decision. (Paras 4-10)
Findings of Court:
The court found that the learned judge erred in reasoning and law allowing the judicial review application, confirming the authority's decision and establishing the final nature of the decision under s 16(2) of the Act. (Paras 23, 33)
Issues: The main issues concerned the finality of the State Authority's decision regarding compensation and procedural fairness afforded to the respondent. (Paras 14, 28)
Ratio Decidendi: The court held that the State Authority's decisions under s 16(2) must be final and cannot be reviewed, and procedural fairness was adequately provided to both parties during initial hearings. (Paras 20, 32)
Result: Appeal allowed with costs.
| Table of Content |
|---|
| 1. overview of compensation decisions (Para 1 , 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. final ruling and order (Para 13) |
[1] This appeal stems from the decision of the learned High Court Judge in Johor Bahru who had allowed the respondent's (ie TNB) application for an order of certiorari to quash the decision of the Land Administrator Johor Bahru contained in letter dated 23 November 2010, which had, inter alia, ordered or directed the respondent to pay the appellant (Bandar Nusajaya Development Sdn Bhd) the compensation sum of RM34,522,099.00.
Background Facts
[2] As pointed out by the learned judge in her decision (see pp 37-39 of the Record of Appeal (RA) Jld 1, Bah A), the State Authority in this case appeared to have made three decisions which, to quote the learned judge were as follows:
"(i) R/M Bil 307/2002 dated 6 February 2002 (P4 in L4) wherein the SA had acceded to the appeal of the 2nd respondent and increased the Land Administrator's (LA) award of RM11.4 million to RM34.5 million (first decision).
(ii) R/M Bil 539/2008 dated 2 April 2008 (P8 in L15) wherein the SA had similarly acceded to the appeal of the applicant and increased the LA's award by only 30% (second decision).
(iii) R/M 1351/2009 dated 26 October 2009 (P7 in L4) wherein the SA had reverted to its first decision and declared the first decision to be MUKTAMAD (final) and that the second decision was "TIDAK TERPAKAI dan TERBATAL" (third decision)."
[3] The facts giving rise to the aforesaid decisions are set out below.
[4] The appellant was the owner of 26 parcels of land in Johor (the said lots).
[5] In 1996, the respondent TNB proposed the following project.
[6] "Projek Talian Penghantaran Elektrik dari PMU Gelang Patah Ke PMU Perling (2 rantai) dan dari PMU Gelang Patah ke PMU Tg Kupang (3 rantai), Johor" (the said Project). The said Project involved the respondent entering into, inter alia, the said lots and erecting transmission towers and leading cables through it under the Electricity Supply Act 1990 (the said Act).
[7] Pursuant to an enquiry held under s 16(1) of the said Act, the Land Administrator on 17 October 1995 and 17 June 1997 assessed the compensation to be paid by the respondent to the appellant at RM11,426,555.70 (the said compensation). Aggrieved by the Land Administrator's assessment the appellant appealed to the State Authority under s 16(2) of the said Act.
[8] Following the said appeal, the State Authority made a decision on 6 February 2002, directing the respondent to pay RM34,522,099.00 to the appellant instead of the said compensation of RM11,426,555.75, (ie the first decision (supra)).
[9] The respondent then wrote to the Menteri Besar of Johor on 14 August 2002 requesting the latter to review the first decision. Vide letter dated 25 June 2008 the Land Administrator informed the respondent that the State Authority had acceded to their "appeal" and handed down a decision dated 2 April 2008, which increased the said compensation by a mere 30% and directed the respondent to pay an additional compensation of RM2,735,613.00 only, (ie the second decision (supra)).
[10] On 8 October 2010, a representative of the appellant, one En Muntaza bin Mohd Zain handed to the respondent a letter from the Land Administrator dated 23 October 2010 addressed to the respondent (exh P7) stating that the State Authority's first decision was final and "memerintah/mengarahkan supaya TNB membayar Pampasan Tambahan (that is the RM34,522,099.00 in the first decision) kepada responden kedua..." (ie the third decision (supra)).
[11] In other words as stated by the learned judge "the State Authority reverted to its first decision and declared the first decision to be MUKTAMAD (final) and that the second decision was "TIDAK TERPAKAI dan TERBATAL" in accordance with the State Authority's decision dated 26 October 2009 R/M 1351/2009.
[12] Following therefrom the respondent filed their application for judicial review to quash the said third decisi
