Land Acquisition - Appeal on Question of Law ?

PENTADBIR TANAH DAERAH JOHOR v. NUSANTARA DAYA SDN BHD

FEDERAL COURT, PUTRAJAYA

MOHD ZAWAWI SALLEH FCJ; HASNAH MOHAMMED HASHIM FCJ; MARY LIM THIAM SUAN FCJ

[CIVIL APPEAL NO.: 01(f)-24-08/2019(J)]

20 MAY 2021

[60] The facts and decisions in Calamas and Syed Hussain were examined with the Federal Court in Semenyih Jaya concluding that these decisions do not represent a bar to appeal against any decision of the High Court on compensation; that on the facts, both decisions dealt with appeals against an order of compensation made by the High Court:

"...It is obvious that the subject matter of the appeals in both cases was purely on the inadequacy of quantum of compensation awarded by the High Court. It was on this basis that Hashim Yussoff [sic] FCJ in Calamas (supra), concluded that:

It would appear that from the grounds of judgment of the Court of Appeal (at p 16 appeal record volume I), the issue put forward before the Court was whether the learned Judge was correct in determining the amount of compensation to be awarded to the appellant (emphasis added).

... I am of the view that the said section clearly stipulates that "Any decision made under this section is final and there shall be no further appeal to a higher court on the matter."

[61] Yet another reason why a narrow construction must be given to the phrase question of law' is that in Semenyih Jaya, the specific question of law posed in respect of section 49(1) itself was directed at whether there could nevertheless be an appeal on compensation where it involves a question of law. To this, the Federal Court answered in the affirmative.

[62] Over and above these reasons is the existence of another material aspect to section 49 which may have been overlooked thus far - that there is actually a right to appeal where the decision of the High Court does not comprise an award of compensation. The decision of the High Court may well not comprise an award of compensation but may be in respect of measurement of the scheduled land, the persons to whom compensation is to be paid, or the apportionment of compensation; or the matters set out in section 36(2).

[63] Section 49 confers a right of appeal "from a decision of the Court to the Court of Appeal and to the Federal Court" subject to the terms of its proviso. What the decision of the High Court depends on the reasons for the reference to the High Court in the first place. Section 49 actually must be read with sections 14, 36, 37 and 47.

[64] Section 14 deals with awards by the Land Administrator upon conclusion of enquiries held pursuant to section 12. The Land Administrator is obliged to prepare a written award in the prescribed Form G covering essential details such as the value of the scheduled land acquired; the apportionment of compensation awarded, and whether persons interested in the scheduled land have or have not appeared in the enquiry.

[65] Sections 36 and 37 provide for references to Court under Act 486. Under section 36(1), "no reference to Court under this Act shall be made otherwise than by the Land Administrator". However, the reference may be by the Land Administrator or by any person interested in the scheduled land. Where it is by the Land Administrator, it may be where the Land Administrator is seeking the Court's determination on any of the questions as to any of the matters specified in section 36(2)(a) to (f):

(2) The Land Administrator may, at any time of his own motion by application in Form M refer to the Court for its determination any question as to-

(a) the true construction or validity or effect of any instrument; (b) the person entitled to a right or interest in land; (c) the extent or nature of such right or interest; (d) the apportionment of compensation for such right or interest; (e) the persons to whom such compensation is payable; (f) the costs of any enquiry under this Act and the persons by whom such costs shall be borne.

[66] Where it is by "any person interested in any scheduled land", it is on that person's application to the Land Administrator who in turn will refer the application to Court for determination. Such person is either one who has not accepted the Land Administrator's award or who has accepted it under protest and the grounds for objection to the award are those listed in section 37(1)(a) to (d) – measurement of the land; the amount of compensation; persons to whom the compensation is payable; the apportionment of the compensation.

[67] Appreciating thus that a reference to the High Court may be on matters other than compensation or the amount of compensation, that the reference may concern the measurement of the scheduled land; persons to whom the compensation is payable; the apportionment of the compensation; or on matters referred by the Land Administrator under section 36(2), it is clear that the right to appeal in those other respects are preserved and are not affected by the proviso to section 49(1).

[68] This position is further reflected in section 47 where there is a distinctive use of the term award' when it refers to compensation:

47. (1) Every decision made under this Part shall in writing signed by the Judge and the assessors.

(2) Where such decision comprises an award of compensation it shall specify-

(a) the amount awarded on account of the market value of the land under paragraph 2(a) of the First Schedule; (b) the amount, if any, deducted under paragraph 2(b) of the First Schedule; (c) the amounts, if any, respectively awarded under paragraphs 2(c), (d) and (e) of the First Schedule; and (d) in respect of each amount, the grounds for ordering or deducting the said amounts. (3) Every such written decision or award...

[69] Consequently, there are many aspects to the right of appeal in section 49, that the prohibition of the right of appeal on compensation is but only one of the many respects.

[70] We, thus, agree with the general proposition as suggested in Amitabha Guha No. 2 but insofar as the suggestions or examples cited are concerned, those remain purely general suggestions, examples or illustrations and are not indicative of what is a question of law in the limited right of appeal on compensation under section 49(1) or even under Act 486. When properly viewed, those examples or illustrations are more appropriately principles in respect of the exercise of powers of intervention.

[71] Before proceeding further, we state that we will disregard any reliance on section 40D(3) since the whole of section 40D was declared unconstitutional and invalidated in Semenyih Jaya. After it was invalidated, the provision was only referred to in order to drive home the finality of High Court decisions and the lack of a right of appeal under section 49(1) where the decision comprises an award of compensation. It is unfortunate that following this Court's decision in Semenyih Jaya in 2017, section 40D though invalidated by the Court, has remained in the statute books and has not been deleted so as to avoid confusion, lest it is accidentally applied. This exercise ought to have been undertaken by the relevant agencies, ministries or the Attorney General's Chambers and we urge urgent action in this regard.

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