Introduction

The Federal Court in the case of Tegas Sejati Sdn Bhd v Pentadbir Tanah dan Daerah Hulu Langat & Anor [2024] MLJU 416; [2024] CLJU 330; (Civil Appeal No.01(f)-46-11/2022(B)) held that the written opinions of assessors that assist the High Court Judge during land reference proceedings must be provided to the parties involved in the proceedings.

The Federal Court in this case found that there was non-compliance of Section 40C of the Land Acquisition Act 1960 (Act 486) (“LAA 1960”) as the written opinions of the assessors were never made available to the parties. The Federal Court ruled the non-compliance to be serious warranting appellate intervention and ordered the matter to be remitted to the High Court for a rehearing.

Background Facts
In 1987, the Appellant, Tegas Sejati Sdn Bhd (“TSSB”) entered into a joint venture agreement with Perbadanan Setiausaha Kerajaan Selangor (“PSKS”) to develop several lots of land located at Section 15, Daerah Hulu Langat in the State of Selangor. PSKS is the registered proprietor of the lands. Pursuant to the joint venture agreement, PSKS relinquished its rights to the land to TSSB.

Several lots of the land were acquired by the State Government for the purpose of the project known as “Projek Lebuhraya Bertingkat Sungai Besi – Ulu Kelang” (SUKE Expressway). The 2nd Respondent, Lembaga Lebuhraya Malaysia (“LLM”) was the paymaster for this acquisition.

After the enquiry held on 16.5.2027, the 1st Respondent, the Land Administrator handed down an award for compensation on 16.5.2017. The award was objected by both LLM and TSSB.

Land Reference Proceedings (High Court)
Both LLM and TSSB filed their objections via Form N, culminating in two land reference proceedings before the High Court. Both land reference proceedings were consolidated and heard together.

On 22.9.2020, TSSB applied to strike out the LLM’s land reference proceedings. TSSB’s application was heard together with the merits of the land reference proceedings with the assistance of two assessors.

On 14.2.2020, the High Court dismissed TSSB’s striking out application. The High Court also dismissed TSSB’s land reference and allowed LLM’s land reference.

TSSB appealed against the decision of the High Court to the Court of Appeal. On 4.10.2022, the Court of Appeal dismissed TSSB’s appeal and allowed LLM’s cross-appeal.

Questions/ Issues Before The Federal Court
TSSB appealed to the Federal Court. The Federal Court heard submissions from the parties on 18.8.2023. However, the proceedings were adjourned to ascertain whether there was compliance of Section 40C of the LAA 1960.

Section 40C the LAA 1960 provides that:

“40C. Opinion of assessors

The opinion of each assessor on the various heads of compensation claimed by all persons interested shall be given in writing and shall be recorded by the Judge.”

The Federal Court registry requested from the registry of the High Court for a sight of the written opinion of the assessors involved in the land reference proceedings in the High Court. Upon obtaining the written opinions, the Federal Court registry sent them to the parties.

One of the main issues before the Federal Court in this case is whether the written opinions of the assessors which are to be recorded by the judge hearing a land reference, necessarily for the eyes of the judges of the High Court, Court of Appeal and Federal Court only, and not the parties?

Grounds Of Judgment Of The Federal Court
1. Role of Assessors in Land Reference Proceedings

Section 40A (2) of LAA 1960 provides that for land reference proceedings concerning an objection over the adequacy of compensation, the Court shall appoint two assessors for the purpose of aiding the Court in determining the objection and in arriving at a fair and reasonable amount of compensation. The two assessors will sit with the High Court Judge in hearing the objections over the amount of compensation.

The written opinions of the assessors are intended to assist the Court in arriving at a decision on the amount of compensation. These written opinions form and must be part of the records of the land reference proceedings.

2. Adequacy of Compensation

Article 13(2) of the Federal Constitution provides that “no law shall provide for compulsory acquisition or use of property without adequate compensation”. In the interpretation and construction of Section 40C of LAA 1960, the Courts must give real meaning and adopt a construction which preserves the rights enshrined under Article 13(2) of the Federal Constitution.

Although Section 40C does not explain in detail how the written opinions of the two assessors are to be handled, it cannot be denied that the written opinions form part of the proceedings. The High Court in assessing the complaint of adequacy of compensation is bound to balance competing interests of TSSB, the landowner and LLM, the acquiring authority or paying master. Therefore, it is necessary that all relevant material is placed before the Court for that assessment and determination.

If these written opinions of the assessors are not made available, the question of adequacy of compensation cannot be properly addressed, which would be contrary to the right enshrined in Article 13(2) of the Federal Constitution.

3. Availability of the Written Opinions

The question of adequacy of compensation can only be properly determined if all the parties concerned have had the opportunity to address the reasons, factors or circumstances which are relevant and necessary when computing or calculating that compensation.

Therefore, the written opinions of the assessors who assisted the High Court Judge in determining there is adequate compensation must be made known to the landowners and those affected by the compulsory acquisition. The obligation to make known the reasons or factors extends to everyone who has any role to play in that decision, be it the judge or the assessors.

Land reference proceedings are open Court proceedings and it is integral to the rule of law that there is transparency and fairness not just in the conduct of those proceedings but in the manner any evidence, including opinion evidence is received and treated by the Court. Once available, the written opinions of the assessors must be provided to the parties.

The Federal Court found that there was non-compliance of Section 40C in this case as the written opinions of the assessors were never made available to the parties or even called for by the Court of Appeal. The Federal Court set aside the orders of the High Court and Court of Appeal and ordered the matter to be remitted to the High Court for a rehearing before another judge.

About the author

Chew Jin Heng
Associate
Dispute Resolution
Halim Hong & Quek
jhchew@hhq.com.my