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YOKE SAN & ORS
v. PENTADBIR TANAH, WILAYAH PERSEKUTUAN KUALA LUMPUR & ORS
HIGH COURT MALAYA, KUALA LUMPUR
ABDUL WAHAB PATAIL J
[ORIGINATING SUMMONS NO: S6-21-196-2003]
30 AUGUST 2006
JUDGMENT
Abdul Wahab Patail J:
LAND LAW: Acquisition
of land - Compensation - Injurious affection - Acquired land includes
service road and parking bays utilised by building owners running businesses
alongside - Whether building owners injuriously affected by acquisition -
Whether building owners entitled to share in compensation awarded to
registered proprietor of acquired land
[1] The plaintiffs are at all times the registered proprietors of land
bearing the registration GRN 45803, Lot No 3910, Mukim Kuala Lumpur, Daerah
Kuala Lumpur, Wilayah Persekutuan. A portion of the land was compulsorily
acquired under the Land Acquisition Act 1960 (Act 486) by the 1st defendant
on behalf of Jabatan Kerja Raya (JKR) on 1 February 2001 (vide Warta
Kerajaan No. 882 dated 1 February 2001) for the purpose of upgrading the
roads along Jalan Kelang Lama, Kuala Lumpur. The acquired land is
hereinafter referred to as the "schedule land".
[2] An inquiry was conducted by the Land Administrator (the 1st defendant),
Kuala Lumpur on 13 March 2002, 15 April 2002 and 17 May 2002, and an award
for compulsory acquisition was made on 17 May 2002. The 1st defendant made
an award of compensation in the sum of RM3,086,888.60 to the plaintiffs. No
similar award was made for the 2nd to 16th defendants for the "scheduled
land" although defendants no. 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 15 and 16
attended the inquiry. Their compensation was only for interruption/prejudice
to their businesses during the development works. Because the 2nd to 16th
defendant (except the 13th defendant) had objected, pursuant to s. 29(1)(c)
of Act 486, and filed notice in Form N of Act 486 on 28 June 2002, the 1st
defendant deposited the whole awarded sum into court until further order
vide the Penolong Kanan Pendaftar’s Order dated 30 January 2003.
[3] Briefly the plaintiffs now claim for the following:
(i) A declaration that the objections put forward by the defendants namely
the 2nd to 16th defendants, against the award by the 1st defendant, is
illegal and ought to be struck down by this Honourable Court.
(ii) That the ex parte order of the court dated 30 January 2003 be set
aside.
(iii) That the 1st defendant be ordered to pay the said sum of
RM3,086.888.60 forthwith to the plaintiffs.
(iv) Interest.
(v) Costs.
[4] The 2nd to 16th defendants were purchasers of buildings erected upon Lot
3910 which had not, at all material times, been subdivided and transferred
to the defendants. The 2nd to the 16th defendants that they were ‘aggrieved’
by the award of the 1st defendant made on 17 May 2002 namely:
(i) The amount of compensation (jumlah pampasan).
(ii) Persons who are to receive a share of the compensation (orang-orang
yang akan menerima pampasan).
[5] It was submitted for the 2nd to 16th defendants that, they had completed
their part of their bargain by paying full consideration whilst the
plaintiffs and/or the developers have failed in their obligations since to
date the plaintiffs have failed to subdivide the land and issue individual
titles to the defendants as agreed. Hence, it was submitted, the 2nd to 16th
defendants had a beneficial and undivided interest in the land, and the
plaintiffs hold the land in trust for the 2nd to 16th defendants, and have
an interest in the compensation paid.
[6] It was submitted for the 2nd to 16th defendants that the plaintiffs
and/or the developers of the said land had entered into various sale and
purchase agreements with the 2nd to 16th defendants wherein the plaintiffs
and/or the developers had agreed, inter alia;
(i) To bear all the costs to subdivide the said land,
(ii) To apply to the relevant authorities to convert from agriculture to
commercial.
(iii) To obtain on behalf of the respective owners of the buildings, namely
2nd to 16th defendants, the individual title of ownership and to ensure
their names being registered in the respective titles.
[7] It was explained in submissions that the 2nd to 16th Defendants were
aggrieved because:
(i) Being owners of the buildings erected on the said land they have been
awarded compensation for only disruption to their businesses
(ii) Being owners of the buildings erected on the said land, the area
compulsorily acquired constitutes the service road (frontage) of the said
land in question which is directly in front of the 2nd to 16th defendants’
buildings.
(iii) For so many years, being owners or the buildings erected on the said
land, the 2nd to 16th defendants have been utilizing the service road as
well as large car parking bays available along the service road. By virtue
of these, the 2nd to 16th defendants have been injuriously affected. By the
developments along the service road there is a physical interference with
the 2nd to 16th defendants’ enjoyment of the right which the defendants make
use in connection with their businesses in the buildings, and which gives it
a marketable value. This physical interference diminishes the value of the
said whole land in question which brings about the claim to compensation for
injurious affection.
(iv) Hence, the persons actually aggrieved are the 2nd to 16th defendants
and not the plaintiffs because the former have been running their respective
businesses for so many years in the buildings alone the service road in
front of their buildings. In the event, the plaintiffs had taken steps to
have the individual titles issued to the 2nd to 16th defendants, the lands
in questions thus belonging to the defendants would have attracted a large
compensation thereby reducing the compensation to the plaintiffs. Hence, the
2nd to 16th defendants interest in the sum of RM3,086,888.60.
[8] Under Act 486, only persons interested in any scheduled land as defined
has locus, for example, to give notice under s. 10 or 11 or to apply to
court. "Person interested" is defined in s. 2 of Act 486 as including every
person claiming an interest in compensation to be made on account of the
acquisition of land under the Act but does not include a tenant at will. The
meaning of "person interested" was dealt with in Magasu Sundaram T Magasu &
Ors v. Pentadbir Tanah Wilayah Persekutuan [2003] 2 CLJ 422. It is clear the
term includes a person who has an interest in the land acquired, or
compensation but only in respect of the scheduled land. The scheduled land
is only that portion of the land being acquired and not the whole of the
land described in a title, since not the whole of the land described in the
title was compulsorily acquired.
[9] The evidence before the court and the submissions for the 2nd to 16th
defendants show that the plaintiffs are acknowledged as the registered
proprietors of the land bearing the registration GRN 45803, Lot No 3910,
Mukim Kuala Lumpur, Daerah Kuala Lumpur, Wilayah Persekutuan. Although the
2nd to 16th defendants bought houses built upon the land, there had been no
subdivision made and no separate titles issued. Thus, the plaintiffs remain
as the registered proprietors of the land and is prima facie entitled to the
compensation from the 1st defendant in respect of that part of the land that
was acquired (the scheduled land). The 2nd to the 16th defendants have no
direct claim against the 1st defendant as registered proprietors under the
National Land Code.
[10] The 2nd to the 16th defendants rely upon the inclusive interpretation
of "persons interested" under Act 486 would include persons having an
equitable title, there is clear equitable title only in respect of that part
of the land upon which their buildings were built. The scheduled land,
however, did not include that part of the land upon which their buildings
stand. Further, although the 1st defendant may not have referred their
objections to the court, the 2nd to 16th defendants (except 10th, 13th and
14th defendants) attended the inquiry and have not made complaint in their
submissions before this court on this ground. That being the case their
remaining claim is against the plaintiffs for a share of the compensation
awarded to the plaintiffs, and not against the 1st defendant.
[11] Stopping short of claiming they had bought the part of the scheduled
land upon which the service road and parking bays alongside it were built,
the 2nd to the 16th defendants base their claim on the fact they had use of
the service road in front of the buildings they had bought and paid for, and
of the large car parking bays along the service road.
[12] There is no evidence before the court that the land upon which the
service road and the parking bays along the service road are built, or any
land other than the buildings, had been sold to the 2nd to the 16th
defendants. There is no evidence which part of the service road and parking
bays alongside are within the scheduled land and which are not. There is no
basis for a finding that the 2nd to 16th defendants had any right to those
parts of the scheduled land as to base a claim for any share of the
compensation from the plaintiffs. Indeed, upon close examination, it is also
clear there is no evidence of which part of the land upon which the service
road and parking bays are built belonged to which defendant amongst the 2nd
to the 16th defendants.
[13] The fact the 2nd to the 16th defendants had been allowed by the
plaintiffs to use the service road and parking bays on the land of which the
plaintiffs are the registered owners cannot defeat the plaintiffs’ title
under the National Land Code to that part of the land. The 2nd to the 16th
defendants are at best tenants at will, which is insufficient to constitute
a "person interested" under Act 486.
[14] The foregoing make it clear that the 2nd to the 16th defendants have
failed to establish any substantive claim upon any part of the scheduled
land to set up any locus to appear in respect of any award of compensation
for the acquisition of the scheduled land against the 1st defendant, or as
against the plaintiffs, for any share of the compensation awarded to the
plaintiffs. There is, therefore, no reason for the 1st defendant to refer
the 2nd to the 16th defendants’ objections to the court under Act 486.
However, since the claims by the 2nd to the 16th defendants also involve a
dispute as to receive a share of any compensation paid, the 1st defendant
properly paid the compensation into court under s. 29(2) of Act 486.
[15] For these reasons the court, after hearing the parties, granted a
declaration that the objections filed by the 2nd to 16th defendants dated 28
June 2002 against the award by the 1st defendant dated 17 May 2002 is null
and void, and ordered that the amount paid into court by the 1st defendant
be released to the plaintiffs. The court also ordered that the 2nd to 16th
defendants pay costs to the plaintiffs. No order as to costs was made
against the 1st defendant.
[Amount paid into court by 1st defendant to be released to the plaintiffs;
the said defendants to pay costs.]
Case(s) referred to:
Magasu Sundaram T Magasu & Ors v. Pentadbir Tanah Wilayah Persekutuan [2003]
2 CLJ 422 HC
Legislation referred to:
Land Acquisition Act 1960, ss. 2, 10, 11, 29(1)(c), (2)
For the plaintiffs - Jeev Anand; M/s How Zul & Low
For the 1st defendant - Mohd Zaki Mohd Yasin (Norliza Zulkifli with him);
SFC
For the 2nd-16th defendants - Sri Dev Nair; M/s Sri Dev & Maila
Reported by Usha Thiagarajah |
