1
IN THE HIGH COURT OF MALAYA
AT SHAH ALAM
CIVIL SUIT No. 21-322-2009
BETWEEN
SEE MING HOI
PLAINTIFF
AND
1.
ASMAWI BIN KASBI,
PENTADBIR TANAH DAERAH KUALA LANGAT
2.
UNIT PERANCANG EKONOMI NEGERI SELANGOR
3.
JAWATAN KUASA KHAS PENGAMBILAN TANAH,
NEGERI SELANGOR
4.
KERAJAAN NEGERI SELANGOR
DEFENDANTS
GROUNDS OF JUDGMENT
Introduction
1. This is a tortious action for compensation pursuant to an aborted
acquisition under the Land Acquisition Act 1960.
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2. The Plaintiff is the registered proprietor of the piece of land known as
GM 1416 Lot 2626, Batu 13,Telok, Mukim Teluk Panglima Garang, Daerah
Kuala Langat (‘the Land”).
3. The First Defendant was at the material time the District Officer cum
Land Administrator of Kuala Langat.
4. The Second Defendant is the Selangor State Economic Planning Unit
which is part of the Selangor State Government.
5. The Third Defendant is the Special Committee for Land Acquisition of
Selangor.
6. The Fourth Defendant is the Selangor State Government.
The Trial Process
7. By consent of the parties, the trial was split into liability and quantum of
damages or compensation to be determined separately. The trial on liability
lasted 2 days on 27 and 28 March 2014.
8. The trial documents are Bundles A to D which included documentary
evidence in Bundles B, B1, B2, B3 and B4. There were further documents
being witness statements marked as Exhibits P1, D2 and D3 admitted in
evidence in the course of the trial.
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9. The parties called the following witnesses:
i)
See Ming Hoi (PW1), the Plaintiff himself;
ii)
Muhammad Hafiz Bin Shaari (DW1) who was the Deputy District
Officer (Land) of the District/Land Office of Kuala Langat; and
iii)
Wan Zahari Bin Sulong (DW2) who is presently the Deputy District
Officer of the Land Development Unit of the District/Land Office of
Kuala Langat.
10. After the close of trial, the parties concurrently submitted their written
closing submission in chief and in reply. The oral clarification of the
submissions took place on 30 May 2014 and the parties thereafter
submitted further written submission on certain points raised during the
clarification.
Background Facts
11. The Plaintiff has been the registered proprietor of the Land since 24
September 1990. The Land is 1.4164 hectares in size and the original
category of land use for the Land was ‘agriculture’.
12. The Plaintiff on 8 March 1993 applied to the Director of the Kuala
Langat Land Office for conversion of the land use from ‘agriculture’ to
‘industry’.
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13. The application was approved and by letter dated 10 August 1994, the
Land Administrator wrote to the Plaintiff that the approval was subject, inter
alia, to the following conditions:
i)
The approved category of land use is ‘Industry’ with the express
condition that it is used solely for ‘light industry’;
ii)
The preparation of the site layout plan must comply with the land use
as fixed by the Majlis Mesyuarat Kerajaan Negeri Selangor; and
iii)
The proprietor of the Land must comply with the requirements of the
Environmental Quality Act 1974.
14. The Plaintiff accepted the conditions and paid the required premium on
12 January 1995.
15. Accordingly, the Plaintiff developed the Land to house 3 units of factory
premises. The factory premises were actively used for the manufacturing of
automobile components such as shock absorbers, springs, coil springs,
casings, holders, etc.
16. On 11 March 2004, the State Director of the Land and Minerals Office
Selangor via the Selangor State Government Gazette no. 435/2004
declared that the Land was required for the purpose of a water canal for
flood mitigation between Sungai Klang and Sungai Langat.
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17.
The Form D notification dated 24 February 2004 on the intended
acquisition of the Land pursuant to s 8 of the Land Acquisition Act 1960
(“the Act”) was thereafter served on the Plaintiff.
18. Subsequently the Forms E and F notifications dated 18 October 2004
pursuant to s 10 of the Act were served on the Plaintiff. These notifications
were for the purpose of an inquiry for hearing of claims to compensation for
all interests in such land affected by the proposed acquisition.
19. The Plaintiff appointed IPC Island Property Consultants Sdn Bhd to
produce a valuation report to support the Plaintiff’s intended compensation
claim.
20. The Plaintiff attended the inquiry that was held on 1 December 2004.
21. However, by a further Selangor State Government Gazette no.
2726/2006 dated 7 December 2006, the State Director of Land and Mines
Office Selangor declared that the intended acquisition of the Land has been
withdrawn.
22. As the result the Plaintiff attended another inquiry that was held on 21
December 2010 for hearing of compensation claims due to the withdrawal
of the intended acquisition pursuant to s 35 of the Act.
23. Before the conclusion of the inquiry could be given, the Plaintiff already
commenced this action.
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The Plaintiff’s Contentions
24.
The Plaintiff argued that following from the receipt of the Form D
notification of the intended acquisition of the Land, the Plaintiff shifted out
all its business activities and assets on the Land to another place since
March 2005.
25. However and notwithstanding that the Defendants have withdrawn the
intended acquisition of the Land on 7 December 2006, the Defendants did
not compensate the Plaintiff for its losses and damages suffered. The
entitlement to compensation of the Plaintiff as claimed is premised on the
following:
i)
The issuance of the Form D notification is conclusive evidence that
the Land would be acquired based on s 8 of the Act and the Federal
Court case of Syed Omar Bin Abdul Rahman Taha Alsagoff v
Government of the State of Johore [1975] 1 MLJ 241; and
ii)
The letter from the Pejabat Daerah/Tanah Kuala Langat dated 3
August 2005 notifiying Public Bank Berhad that the compensation is
sufficient to pay back the loan of Kah Hong Engineering Industries
Sdn Bhd ( a company that is related to the Plaintiff ) was an
admission of the Defendants’ decision to compensate the Plaintiff;
26. Since the intended Land acquisition lapsed and/or has been withdrawn,
the Plaintiff must still be compensated for the costs of shifting out its
machines and material stocks housed in the factory buildings on the Land,
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the valuation report fee spent on the appointment of IPC Island Property
Consultants Sdn Bhd as well as other loss and damage suffered by the
Plaintiff as in the amended pleading. The Plaintiff emphasized that its claim
here is fair as its other pleaded claim for costs of construction and
demolition of the factory buildings on the Land, loss of tenancy and loss of
business profits have been abandoned.
At the clarification hearing on 30 May 2014, the Plaintiff has identified and
categorized its items of claim pleaded in the statement of claim (“SOC”)
under the following heads as presented in its closing submission:
i)
Costs of shifting machineries and material stocks
a)
Cost of installation and un-installation of machine and machinery
amounting to RM 1,850,000.00 (paragraph 16(i) SOC);
b)
Cost of installation and un-installation of air-conditioners amounting to
RM 6,000.00 (paragraph 16(ii) SOC);
c)
Cost of installation and un-installation of closed-circuit television
(CCTV) and computer amounting to RM 1,000.00 (paragraph 16 (iii)
SOC);
d)
Cost of un-installation of conveyorised powder coating line machine
amounting RM 697,000.00 (paragraph 16 (iv) SOC);
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e)
Cost of transportation and moving of all equipment amounting to RM
497,000.00 ( paragraph 16 (v) SOC).
f)
Premium payment to insure the office equipment, machine,
machinery and stock during the removal amounting to RM
489,000.00 (paragraph 16 (vi) SOC);
g)
Cost of renting temporary office and warehouse amounting to RM
288,000.00 (paragraph 16 (vii) SOC); and
h)
Cost of property agent to acquire office building and warehouse
amounting to RM 48,000.00 (paragraph 16(viii) SOC)
ii)
Valuation report fee
Valuer’s fee amounting to RM 44,558.00 (paragraphs 16 (xv) and 18
(xi) SOC)
iii)
Other loss and damage
a)
Loss of deposit for cancelling of purchase of machine and machinery
amounting to RM 822,000.00 (paragraph 16 (xii) SOC);
b)
Cost of gate destruction amounting to RM 239,000.00 (paragraph 18
(iii) SOC);
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c)
Cost of electrical wiring amounting to RM 3,384,740.00 (paragraph 18
(iv) SOC);
d)
Cost of piping amounting to RM 70,000.00 (paragraph 18 (v) SOC);
e)
Cost of property agent to acquire a new industry site amounting to
RM 188,750.00 (paragraph 18 (vii) SOC);
f)
Legal cost for preparing new site amounting to RM 32,600.00
(paragraph 18(viii) SOC); and
g)
Cost of preparing new building plan amounting to RM 343,000.00
(paragraph 18 (x) SOC).
27. Consequently, the Plaintiff asserts that the Defendants were negligent
and/or in breach of statutory duty when they made and then cancelled the
decision to acquire the Land and ultimately did not compensate the Plaintiff
at all.
The Defendants’ Contentions
28.
The Defendants’ contentions in defence against the Plaintiff’s
compensation claim are principally five-folds:
i)
The Plaintiff have not sued or properly brought in the correct parties
in this suit;
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ii)
The suit has been prematurely commenced because the process
pursuant to s 35 of the Act has not yet been completed;
iii)
The factory buildings on the Land were illegally constructed without
planning permission;
iv)
The activities carried out in the factory buildings on the Land
contravened the approved condition for land use; and
v)
The Defendants are protected by the immunity pursuant to s 22 of the
National Land Code 1965.
Findings of the Court
Parties to the action
29. I will first deal with the legal issue of parties to the suit.
30. The Defendants’ contention is firstly that the Third Defendant is not a
legal entity that can be subject to a lawsuit. The Third Defendant is in fact a
nonexistent entity as submitted by the Defendants’ counsel and this is
unchallenged by the Plaintiff.
31. Next as to the Second Defendant, it is plain that the Second Defendant
is not a body corporate under the Companies Act 1965 or any other Act of
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Parliament. In fact it is a division or department of the Fourth Defendant. As
submitted by the Defendant’s counsel, it is superfluous besides also a
misjoinder to include the Second Defendant since the Fourth Defendant is
already a party.
32. As for the First Defendant, it is contented that the Plaintiff has not
precisely specified and submitted on the role and involvement of the First
Defendant that supported its causes of action. From the pleading, the
Plaintiff has nevertheless stated that the First Defendant was involved in
the Land acquisition process by having declared the intended acquisition
on 11 March 2004 and thereafter cancelled the intended acquisition on 7
December 2006. From the testimony of the parties and the documentary
evidence adduced, it does not appear that the First Defendant was involved
in the declaration and cancellation. Both processes were in fact done by a
Dato Ahmad Termizi Hj. Puteh and Abd. Nasir Bin Hassan respectively.
The First Defendant was also not involved in the compensation process of
the intended acquisition of the Land save for having issued the letter dated
12 December 2007 in respect of the compensation claim. The evaluation of
the Plaintiff’s claims as compiled in the valuation report submitted by the
Plaintiff was in fact discussed between PW1 and a Mohd Ikhsan Bin Mukri,
Ketua Penolong Pegawai Daerah Kuala Langat.
At the clarification hearing, counsel for the Defendants has conceded that
since the First Defendant has signed on the letter dated 12 December
2007, he was properly joined in this suit.
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33.
In respect of the Fourth Defendant, it is initially submitted by the
Defendants’ counsel that the Fourth Defendant cannot be made vicariously
liable based on tortious causes of action in the absence of adding the
tortfeasor as a party. This is made clear in the Federal Court case of
Kerajaan Malaysia & Ors v Lay Kee Tee & Ors [2009] 1 CLJ 663 where
Nik Hashim FCJ held: “Thus I entirely agree with the views expressed by
Abdul Aziz J (later FJ) in Haji Abdul Rahman, supra. Contrary to the finding
of the Court of Appeal, Haji Abdul Rahman was correctly decided and
should be upheld. Therefore, on the proper construction of ss 5 and 6 of
Act 359, in any claim in tort against the Government who was responsible
for the alleged tortuous act must be a party and his liability be established
before the Government can be
made vicariously liable as principal. It
would be insufficient to merely identify the officer without joining the officer
as a party because liability by evidence needs to be established. It is only
upon a successful claim against the officer personally can a claim be laid
against the Government.
In the present case, all the eight causes of actions are action in tort or tortbased premised on the act or omission of an individual. None of the
Governments sued is capable of committing the wrong pleaded. Since the
Governments’ liability in tort can only be vicarious by virtue of ss 5
and 6 of the Act 359, and as officers who were responsible for the
alleged wrongdoing were not joined as defendants to the action, it is
therefore not possible in law to maintain a successful claim in tort
against the Government as primary tortfeasors. That being so, the
applicant’s application to strike out the respondents’ actions is
meritorious… In this respect, I agree with the appellants that this is
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not just a case of joining wrong parties but bringing an action against
the wrong parties…” (emphasis added).
34. The Court of Appeal subsequently in Government of the State of
Sabah v Syarikat Raspand [2010] 7 CLJ 945 adopted the same position
and Low Hop Bing JCA stressed: “Section 6 expressly prohibits the
bringing of any proceedings against the Government for damaged under s
5 unless the action for such wrongful act, neglect or default would have laid
against the officer personally. This is a substantive provision that goes to
the jurisdiction of the court. Liability can only be attributed to the
Government where the officer’s act, neglect or default is proved to
have established the liability for the officer personally. In the absence
of the officer’s liability (which can only arise and bind the officer(s) if
and when the officer or officers are cited as defendants), no
proceedings shall lie against the Government. Where no such
proceedings could lie against the Government, the court is in no position to
exercise any jurisdiction in relation thereto.” (emphasis added).
35. Since counsel for the Defendants has conceded that the First
Defendant has been properly joined as the officer who was responsible for
the assessment of the compensation payable, the claim against the Fourth
Defendant can thus be maintained as the principal vicariously liable for the
tort of the First Defendant.
36. In the premises it is plain in regard to the first issue that the Plaintiff’s
suit against the Second and Third Defendants is bad ad limine. In other
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words, the claim can only be maintained against the First and Fourth
Defendants.
Premature action
37. That notwithstanding, I will proceed to determine the other issues as
raised by the parties. The second issue is also a legal one as to whether
the action has been prematurely brought in court. It is the contention of the
Defendants that the compensation payable to the Plaintiff has not yet been
determined conclusively by the Land Administrator pursuant to the Act.
38. As far as the Plaintiff is concerned, it seems it is the Plaintiff’s position
that the tortious causes of action relied upon by the Plaintiff accrued on the
issuance of the letter dated 12 December 2007 and the writ was filed in
October 2009 particularly out of precaution to avoid limitation setting in
pursuant to the Public Authorities Protection Act 1948.
39. Since the intended acquisition of the land is cancelled, the procedure
for compensation is prescribed in s 35 of the Act. However s 35 is silent as
to whether an award of the Land Administrator is to be made unlike s 14 of
the Act which prescribes the procedure that would culminate in the Land
Administrator’s award if the intended acquisition is completed. In that
situation, it is plain that any challenge on compensation must await the
award either by way of land reference pursuant to s 36 of the Act or by way
of judicial review.
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40. In the circumstances, it is my view that the Plaintiff here is able to
embark on legal action if the Plaintiff is dissatisfied with the inaction of the
Land Administrator that constituted negligence or a breach of statutory
duty.
41. Besides there is also the argument made by DW1 in the course of his
testimony at the trial that as a matter of fact, the Plaintiff had acted
prematurely by actively acquiring an alternative property and therefore
unnecessarily incurring costs before Form J is issued. Form J contains a
stipulation that requires the vacation of the building within a prescribed
time. In this regard, the Plaintiff had already acted after having received
Form E which is the conclusive evidence of intention to acquire the Land. I
accept the explanation of PW1 that it would be unreasonable to await till
the issuance of Form J because the Plaintiff has no control over the date of
vacation of the Land and that it would take a while to seek for a suitable
alternative property. The Plaintiff could not afford to have its business that
was being carried out on the Land subjected to prolonged interruption.
Amount of compensation
42.
The Plaintiff has framed in its case in negligence and breach of
statutory duty but the duty and the breach have not been clearly and
cogently proved by the Plaintiff from the evidence adduced. The
justification for the breach appears to stem purely from the dissatisfaction
of the Plaintiff for not having been compensated for the claims made by the
Plaintiff.
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43. The Plaintiff has further contended that the amount of compensation
herein must be based on intended acquisition that lapsed instead of a
withdrawn intended acquisition under s 35(1) of the Act. It is because the
Form D declaration would lapse and cease to be of effect after 2 years as
prescribed in s 8(4) of the Act. In this case the Form D declaration was
gazetted on 11 March 2004 and it therefore expired on 10 March 2006
whereas the withdrawal declaration was only gazetted on 7 December
2006.
44. The Plaintiff is correct in this regard that the intended acquisition had
already lapsed at the point of issuance of the withdrawal declaration.
Nevertheless, this is inconsequential as held by Wan Adnan Bin Ismail J
(as he then was) in Straits Credit Sdn Bhd v Pentadbir Tanah Daerah
Wilayah Persekutuan Kuala Lumpur [1994] 2 CLJ 855. In that case His
Lordship said: “Section 35 of the Act should be given a literal interpretation.
The consequence of a lapse under s 8(4) of the Act should be the same as
a withdrawal under s35 of the Act. Section 35(2) of the Act is also
applicable when a declaration for acquisition lapses under s 8(4) of the
Act”.
45. Accordingly it is pertinent to examine the provisions of s 35(2) of the
Act which reads:
“When the State Authority withdraws from any acquisition under subsection
(1), the Land Administrator shall:
(a) determine the amount of compensation due for damage, if any, done to
such land by action taken under section 5 and not already paid for under
section 6 and pay such amount to the person injured; and
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(b) pay to the persons interested all such costs as shall have been
incurred by them by reason or inconsequence of the proceedings for
acquisition, together with compensation for the damage, if any, which
they may have sustained by reason or in consequence of such
proceedings.”
as well as s 35(3) of the Act which reads: “The First Schedule shall apply,
so far as may be, to the determination of the compensation payable under
this section.”
The relevant provisions are in paragraph 1 (3A) and 2 of the First Schedule
which prescribe:
“1(3A). The value of any building on any land to be acquired shall be
disregarded if that building is not permitted by virtue of –
(a) the category of land use; or
(b) an express or implied condition or restriction,
to which the land is subject or deemed to be subject under the State Land
law.
2. In determining the amount of compensation to be awarded for any
scheduled land acquired under this Act there shall be taken into
consideration the following matters and no others:
(a) the market value as determined in accordance with section 1 of
this Schedule;
(b) any increase, which shall be deducted from the total compensation, in
the value of the other land of the person interested likely to accrue from the
use to which the land acquired will be put;
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(c) the damage, if any, sustained or likely to be sustained by the person
interested at the time of the Land Administrator taking possession of the
land by severing such land from his other land;
(d) the damage, if any, sustained or likely to be sustained by the person
interested at the time of the Land Administrator taking possession of the
land by reason of the acquisition injuriously affecting his other property,
whether movable or immovable, in any other manner;
(e) if, in consequence of the acquisition, he is or will be compelled to
change his residence or place of business, the reasonable expenses,
if any, incidental to such change; and
(f) where only part of the land is to be acquired, any undertaking by the
State Authority, or by the Government, person or corporation on whose
behalf the land is to be acquired, for the construction or erection of roads,
drains, walls, fences or other facilities benefiting any part of the land left
unacquired, provided that the undertaking is clear and enforceable.”
(emphasis added).
46. Counsel for the Plaintiff referred to the Court of Appeal case of Ee
Chong Pang & Ors v The Land Administrator of the District of Alor
Gajah & Anor [2013] 2 MLJ 16 where Mohd Hishamudin JCA held: “The
Act is meant to safeguard the constitutional right to property under art 13(1)
of the Federal Constitution , as it prescribes the procedure to be followed
by the state authority for the acquiring of a person’s land, including the
determination of the amount of fair and reasonable compensation to be
paid. The Land Acquisition Act is a legislation that empowers a state
authority to deprive a person of his property. As such, we are of the view
that the provisions of the Act must be strictly interpreted in favour of
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the person who is deprived of his property so as to give meaning to
the constitutional protection of a person’s right to his property (see
Ismail bin Baker & Ors v Director of Lands & Mines, Kedah Darul Aman
[2011] 5 MLJ 197; [2010] 9 CLJ 810)” (emphasis added). It is noted that
the Court of Appeal granted a certiorari order because the land acquisition
exercise therein was not carried out in accordance with the Act by the
failure to publish Form A in the gazette. This is however not a case that
dealt with compensation.
47. Be that as it may, the Court of Appeal had earlier in Pentadbir Tanah
Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 MLJ 489 held that the
respondent who had built on the land without planning permission ought
not to have any compensation for the building situated on the land that was
subject to acquisition. The construction of the building without planning
permission amounted to an unlawful act and paragraph 1(3)(b) of the First
Schedule to the Land Acquisition Act 1950 excludes from consideration a
building built unlawfully on that land. In that case, Gopal Sri Ram JCA (as
he then was) held; “Encik Ahmadi, the learned legal advisor, had argued
that the warehouse, in the admitted absence of planning permission, was
illegally located on the subject property. The respondent, he argues, ought
not to benefit from his own wrong. He has further submitted that para 1(3)
(b) of the First Schedule when properly interpreted excludes from
consideration a building built unlawfully upon land that is being acquired. I
am in full agreement with his submission. Quite apart from the
construction of para 1(3)(b) of the First Schedule, there is a great
principle of great antiquity that a litigant ought not to benefit from its
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own wrong. Although of universal application, it has been restated
when applied to a particular context…” (emphasis added).
48. The Defendants’ argument here is similar in that the factory building on
the Land was erected without planning permission as well as that the
building was in contravention of the permissible land use and restriction. In
this regard, it is clear that the approved category of land use was ‘Industry’
with the express condition solely for ‘light industry’ and a further express
condition that the development on the Land must comply with the
requirements of the Environmental Quality Act 1974 that is administered by
the Department of Environment of the Ministry of Science Technology and
the Environment. The Department of Environment published the Guidelines
for the Siting and Zoning of Industries which has been in force since 1994
and therefore binding on the Plaintiff.
49. The rejection of the Plaintiff’s claim is cogently explained in the
following testimony of DW1:
“Q : Apa alasan tuntutan Plaintif ditolak?
A : Sebaimana surat tersebut. Alasan-alasan tuntutan tersebut adalah
seperti berikut:
(i)
Pengambilan balik tanah Lot 2626 GM 1416 Mukim Telok Panglima
Garang telah dibatalkan pada 7 Disember 2006. Borang K Akta
Pengambilan
Tanah
1960
masih
belum
dikeluarkan
pada
tarikh
pembatalan award.
(ii)
Aktiviti kilang dikategorikan sebagai Industri Berat di mana bercangah
dengan syarat nyata tanah iaitu Industri Ringan. Ini bertentangan dengan
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seksyen 127 Kanun Tanah Negara. Perkara ini dapat dilihat berdasarkan
Guidelines for the Siting and Zoning Industry yang digunapakai oleh
Jabatan-Jabatan Negeri Selangor termasuklah Pejabat Tanah.
(iii)
Bangunan-bangunan yang dibina di atas tanah tersebut tidak
mendapati kelulusan daripada Pihak Berkuasa Tempatan (Majlis Daerah
Kuala Langat) dan Jabatan Perancangan Bandar dan Desa. Ini adalah
bertentangan dengan Akta Jalan Parit dan Bangunan.
(iv)
Bangunan-bangunan yang didirikan di atas tanah tersebut telah
disewakan kepada tiga syarikat. Berdasarkan dokumen perjanjian sewa
tuan tanah perlu mendapat kelulusan terhadap apa-apa penggunaan
tanah. Dalam perkara ini tuan tanah telah tidak mematuhi peraturan
semasa.
Q : Berdasarkan Guidelines terkini, apakah kategori tanah Plaintif
berdasarkan maklumat daripada lapuran Penilaian IPC Island Property
Consultants Sdn Bhd?
A : Berdasarkan Guidelines ini, pembuatan bahagian- bahagain kenderaan
jatuh di bawah kategori 3 iaitu Medium Type Industries (Industries
Sederhana) seperti di mukasurat 48 Guidelines tersebut. “Manufacture of
parts and accessories for motor vehicles” seperti dijalankan oleh Plaintif
jatuh di bawah kategori berkenaan yang dinyatakan di mukasurat 109
Guidelines tersebut. Justeru, berdasarkan Guidelines terdahulu pada 1994
dan yang terkini, Plaintiff gagal mematuhi Syarat Nyata tanah berkenaan
iaitu semata-mata untuk ‘Perusahaan Ringan’.
Q :
Tadi peguam juga kata bahawa dia tidak ada menuntut untuk
bangunan dan Encik Hafiz bertegas bahawa Jadual 3 menyatakan bahawa
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sekiranya syarat nyata tidak dipatuhi, Plaintif tidak berhak untuk mendapat
pampasan atas pembatalan pindahmilik ini. Jadi adakah syarat nyata ini
mengikat pada bangunan ataupun apa-apa sekali di atas tanah?
A : Syarat nyata ini dia akan mengikat kesuluruhannya.
Q : Adakah termasuk barangan-barangan yang terdapat atas tanah?
A : Dia akan mengikat aktiviti di atas tanah. Itu sebab kita kenakan syarat
nyata itu kegunaan tanah itu untuk apa. Kalau perusahaan ringan dan
aktiviti dia perlu mengikut syarat tersebutlah, perusahaan ringanlah. Kalau
perusahaan berat dan dia akan ikut syarat itu. Itu yang akan mengikat
aktivit tersebut untuk elemen kawalan yang Arif.”
50. The heads of the Plaintiff’s claim is firstly for the shifting costs to wit:
removal and relocation of assets such as machinery and material stocks
used for production in the factory building. The Plaintiff took the view that
the express condition on the land did not in any way prevented the Plaintiff
from storing these machinery and material stocks on the Land so long their
storage is consistent with the rights of ownership. The general rights of
ownership are that accorded by s 44 of the National Land Code 1965. I
disagree with the Plaintiff’s simplistic stand and I share the view adopted by
DW1 that the amount of compensation pursuant to s 35 of the Act read with
the First Schedule must take into consideration the permissible land use
including the restriction thereto. I am mindful that this head of claim is
arguably covered under clause 2(e) of the First Schedule which unlike
clause 2(a) does not expressly cross refer to clause 1 (particularly sub
clause 1(3A)) of the same Schedule. It is my view that the provision must
nevertheless be purposively construed here to be equally subject to clause
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1 following the principles in Carter v Bradbeer [1975] 1 WLR 1204. The
right to compensation for costs associated with machinery and material
stocks is accordingly dependent on their purpose brought onto the Land. I
find conceptual support from the old Court of Appeal, Negri Sembilan case
of Goh Chong Hin & Anor v The Consolidated Malay Rubber Estates
Ltd 5 FMSLR 86 in relation to the law on fixtures and chattels where it was
held that chattels affixed to land for its improvement or better enjoyment or
its greater utility for the purpose for which the land is applied is treated as
being part of the land. Thus if the machinery and material stocks formed
part of the business activity that is prohibited on the Land, they are to my
mind not to be considered in the amount of compensation.
51. The Plaintiff has through PW1 conceded that the activities carried out
in the factory building comprised of manufacturing of automobile
components such as APM shock absorbers. In my opinion, the
manufacturing of automobile components constituted at least ‘medium
industry’ if not ‘heavy industry’ activities and this contravened the
permissible land use for only ‘light industry’. It is clear that the Guidelines
for the Siting and Zoning of Industries defined the manufacture of motor
vehicle parts and accessories as a ‘heavy industry’ activity.
52. The nature of the claims for shifting costs for machinery and material
stocks under this head are undoubtedly for machinery and materials
utilized for the manufacturing activities that were in contravention of the
permissible land use of the Land. In the circumstances, I find and hold that
the shifting costs are therefore not compensable to the Plaintiff. It is also
clear from the Court of Appeal decision in Pentadbir Tanah Daerah
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Petaling v Swee Lin Sdn Bhd supra that a party cannot be permitted in
such circumstances to take advantage of its own wrong to seek
compensation from the court.
53. As testified by DW1 and conceded by PW1, it is seen that the factory
building was also built without securing the planning permission from the
Pejabat Daerah Hulu Langat. The factory building is thus unlawful as was
the warehouse as so found in Pentadbir Tanah Daerah Petaling v Swee
Lin Sdn Bhd supra and is itself another ground to deny the Plaintiff its
claim for compensation of the shifting costs of the machinery and materials
that were utilized for manufacturing activities in this illegal factory building.
54. Consequently. I reject this head of claim for shifting costs.
55. As to the other head of claim of loss and damage allegedly suffered by
the Plaintiff for loss of opportunity and consequential loss, the nature of the
claims are likewise also all directly connected with the manufacturing
activities of the Plaintiff including the relocation expenses of the business.
Accordingly I also reject them for the same reason as the shifting costs.
56. The only head of claim that is fairly and reasonably in my view
compensable is the fee for valuation report by reason that the Plaintiff
would ordinarily be expected to have engaged a valuer consequent to the
receipt of Form F. The agreed amount of compensation for this head is RM
44,558.00 as stated by the First Defendant vide letter dated 12 December
2007.
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57. In the circumstances, I do not find that the First and Fourth Defendant
were negligent or in breach of statutory duty as alleged by the Plaintiff.
They have at all material times acted properly and in good faith in
accordance with the Act. From my interpretation of the First Defendant’s
letter dated 12 December 2007, the Land Administrator has determined the
amount of compensation pursuant to s 35(2) of the Act at RM 44,558.00
which this Court concurs as fair and reasonable. Accordingly, there is no
necessity to consider the final defence of the Defendants on immunity
pursuant to s 22 of the National Land Code 1965.
Conclusion
58.
Since I have found that the Second and Third Defendant were
misjoined as well as that the First Defendant and accordingly the Fourth
Defendant were not negligent or in breach of statutory duty, the Plaintiff’s
claim against the Defendants for damages as prayed is dismissed.
59. That notwithstanding, it is noted that the Plaintiff has prayed for further
and other reliefs too. Though this trial was fixed for liability only and for the
assessment of the quantum damages or compensation to be determined
later, the position as found is that the Plaintiff is only entitled to be
compensated for the fees of the valuation report. Since this fees have
already been determined at RM 44,558.00, there is no need for further
assessment and judgment by admission should instead be entered
accordingly by reason that this sum of RM 44,558.00 has not yet been paid
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by the First Defendant being the Land Administrator to the Plaintiff pursuant
to s 35 (2)(b) of the Act.
60.
I therefore order that judgment be entered for the sum of RM
44,558.00 for the Plaintiff against the First Defendant only. There is no
order as to costs in the circumstances because the Plaintiff succeeded for
a meagre sum against only one out of the four Defendants named who are
all represented by the same counsel and solicitor.
Dated this 20 June 2014
T.T.
LIM CHONG FONG
JUDICIAL COMMISSIONER
HIGH COURT OF MALAYA
SHAH ALAM
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COUNSEL FOR THE PLAINTIFF: MURALIDHARAN KALIDASS (LEE
WING HONG WITH HIM)
SOLICITORS FOR THE PLAINTIFF: S.N. NAIR & PARTNERS
COUNSEL FOR THE DEFENDANTS: MOHAMAD MUSTAFFA BIN P
KUNYALAM
SOLICITORS FOR THE DEFNDANTS: KAMAR PENASIHAT UNDANGUNDANG NEGERI SELANGOR DARUL EHSAN