JUDGMENTBY: HASHIM YEOP A SANI FJ

(delivering the Judgment of the Court): This is an appeal against the judgment of the High Court Penang in Originating Motion No. 16 of 1980. The learned judge made the following orders:--

(1) GN 89 dated March 30, 1972 in respect of the applicants lands

together with all subsequent proceedings including the enquiry before the

Collector and the award of the Collector and all subsequent proceedings be

quashed;

(2) Any acquisition or taking into possession of the applicants lands by

the Collector be declared null and void and that the Registrar of Land Titles

Penang to do everything necessary to expunge such entry or entries from the

Interim Register of Titles or Document of Titles;

(3) That the Collector do deliver possession of the lands back to the

owners.

There are many grounds of appeal but considered collectively the grounds are fourfold.

(1) That the allegation of denial of natural justice to the owners of the

land in the enquiry before the Collector is without basis. The finding of the

learned judge in the Originating Motion to the effect that the owners of the

land were denied natural justice was therefore wrong.

(2) Since the subject of the application for certiorari in the Originating

Motion was the Collectors award dated February 7, 1980 section 68

of the Land Acquisition Act 1960 would disbar any proceeding

against the acquisition and the judge has no power to go into the validity of

the whole acquisition proceedings and in particular to quash GN 89 dated

March 30, 1972.

(3) That the finding of the judge that the delay of eight years

tantamounts to an abuse of power was wrong.

(4) That the order made by the judge directing the Collector to deliver

possession of the Lands to the owners was contrary to section 29 of the

Government Proceedings Ordinance, 1956.

It can be seen from the grounds of this appeal that this appeal is distinguishable from Pemungut Hasil Tanah Daerah Barat Daya, Pulau Pinang v Ong Gaik Kee [1983] 2 MLJ 35 dealt with by this court where this court held inter alia that long delay between the Gazette Notification and finalisation of the enquiry tantamounted to an abuse of power and rendered the enquiry and subsequent proceedings null and void.

To get our perspective right it will be necessary to refer first to the background facts of this case. On an application ex-parte on August 16, 1980 leave was granted by the High Court Penang to the owners of the lands to apply for an order of certiorari to remove into the court and to quash the award made by the Pemungut Hasil Tanah, Daerah Barat Daya, Pulau Pinang (hereinafter referred to as "the Collector") made on February 7, 1980 in respect of the lands. Pursuant to the leave a Notice of Motion was taken out on October 27, 1980. It did not ask for any other declaration. This Motion came to be heard on January 23, 1981. There were a number of adjournments at the request of one or the other of the parties. The Motion was finally heard by the learned judge on August 13, 1982 which again was adjourned pending the decision of the Federal Court in Ong Gaik Kees case, supra. Judgment was handed down on April 8, 1983 giving the orders which became the subject of the present appeal.

According to the statement supporting the Notice of Motion two main grounds were canvassed on behalf of the owners of the lands and these two grounds also became the basis of the judgment under appeal. The first ground was that the owners of the land were not given an opportunity to be heard during the enquiry before the Collector under section 10(1) of the Land Acquisition Act, 1960. More specifically this complaint came out in the statement as follows:--

(a) The Collector did not comply with the requirement of section 10(1) of

the Land Acquisition Act;

(b) The Collector disregarded evidence adduced by the owners of the land;

(c) The Collector was wrong in disallowing counsel for the owners to

submit on facts and law;

(d