Judgment

Abdul Hamid, JCA

(delivering the judgment of the court)

1. Gasing Meridian Sdn Bhd, the appellant in this court is the registered proprietor of various lots of land in Kuala Lumpur ("the lands") which it purchased on October 31, 1995 for RM60 million. To pay for part of the purchase price, the appellant took a loan of RM34 million from a bank. In 1998 part of the lands was acquired pursuant to the Land Acquisition Act 1960. The appellant's intention was to develop the lands for sale –

   1. with bungalows constructed on them and/or

   2. as land suitable for the construction of bungalows.

2. By a letter dated August 5, 1996, the appellant applied for the respondent's approval:

   1. To carry out the construction of roads and drains to service the lands;

   2. To carry out the earthworks with respect to the aforementioned roads and drains.

3. On June 11, 1999, the respondent issued an approval for the first stage of the works. Upon completion of the first stage, the appellant was required to make a fresh and separate application for approval of the second stage. The appellant was unhappy with the stage-by-stage approval. The appellant said that it was not possible to carry out the works pursuant to the two-stage approval. The appellant appealed to the Planning Appeal Board pursuant to s 23 of the Federal Territory (Planning) Act 1982 ("the Act").

4. On August 25, 2000, the Planning Appeal Board gave its decision, as follows:

   (a)

   [edited] We agree with the company's submission that it would be prohibitive and not viable for the land to be developed in two stages. The two stage development which City Hall proposed cannot be carried out by the company because of viability and other factors as pointed out by the company. Taking into consideration City Hall's view that the land (the 82 lots) as a whole is too steep and is not suitable for the development which the company proposed in their development plan. We visited the site and agreed with City Hall's view that the company's proposal to carry out the entire development in a single phase could not be implemented because the contour of the land especially at the upper side is too steep. The appeal by Gasing Meridian Sdn Bhd for one stage approval is therefore dismissed.

   (b)

   [translated] Order for respondent after hearing. This appeal was heard before the Appeal Board on August 25, 2000. It is hereby ordered that the appeal be dismissed with costs. Dated August 25, 2000.

5. Subsequently, on September 13, 2000, the appellant wrote to the respondent asking the respondent to issue a requisition notice under s 30 of the Act. The respondent through their solicitors by letter dated September 27, 2000 declined the request.

6. On October 18, 2000, upon request by the respondent, the appellant applied to the Planning Appeal Board for clarification of the order of August 25, 2000. By a letter dated December 8, 2000 the Board clarified the decision as follows [translated]:

   (i)	The appeal by Gasing Meridian Sdn Bhd was dismissed with costs.
   (ii)	In the view of the Company, from the point of practicality and economy the land cannot be developed in two stages.
   (iii)	The land cannot be developed in a single stage as it is too steep.

7. On October 4, 2000 the appellant filed an ex parte originating motion praying for the following orders:

   (a)	An order of mandamus directing as follows: That the respondent within 14 days from the date of the order issue to the applicant the "requisition notice" pursuant to s 30 of the Federal Territory (Planning) Act 1982 with respect to the applicant's lands held under Lots No 37180 to Lot No 37255 (inclusive) and Lots No 37257 to No 37262 (inclusive) all in the Mukim of Kuala Lumpur, Wilayah Persekutuan ("lands") less the lots and/or parts of the lots already acquired pursuant to the Land Acquisition Act 1960 ("acquired lots").
   (b)	In the alternative to paragraph (a) above, declarations declaring as follows: (i) That the order pronounced by the Appeal Board (as established pursuant to s 45 of the Federal Territory (Planning) Act 1982) on August 25, 2000 amounts to a "requisition notice" by the respondent to the applicant with respect to the lands (less the acquired lots) pursuant to s 30 of the Federal Territory (Planning) Act 1982. (ii) That consequent to paragraph (b) (i) above, the applicant be entitled to issue a purchase notice to the respondent with respect to the lands (less the acquired lots) pursuant to s 46 of the Federal Territory (Planning) Act 1982.
   (c)	Further and in addition to paragraph (a) or (b) above, for the following: (i) An order that the respondent do pay to the applicant damages equal to the interest accrued on the loan obtained by the applicant from Arab-Malaysian Bank Bhd, commencing from June 11, 1999 to the date the respondent makes full payment of the sum to be paid to the applicant for the acquisition, requisition and/or purchase of the lands (less the acquired lots) pursuant to the Federal Territory (Planning) Act 1982 and/or the Land Acquisition Act 1960. (ii) An order that the respondent do pay to the applicant interest at the rate of 8% per annum on the sum to be paid to the applicant for the acquisition, requisition and/or purchase of the lands (less the acquired lots) pursuant to the Federal Territory (Planning) Act 1982 and/or the Land Acquisition Act 1960, commencing from June 11, 1999 to full payment thereof.
   (d)	All such other consequential orders with respect to any one or more of the above, as the honourable court shall deem fit.

8. On July 18, 2001 the High Court dismissed the application. The appellant appealed to this court. On April 8, 2003, we heard the appeal and dismissed it with costs.

9. We think it is important, at the outset, to get a clear picture of the order that the appellant was asking the court to make.

10. The appellant bought the lands with a view to developing it, selling the bungalows and bungalow lots and make a profit. For that purpose it applied for the planning permission from the respondent. The respondent gave the approval for the first stage first. The appellant will have to apply for the approval for the second stage after the first stage is completed. The appellant was not happy with that. The appellant wanted an approval for both stages to be given simultaneously, because a two-stage approval is more costly and time consuming. But, according to the respondent it was inevitable as it was a "hillslope development" and the respondent had to take into account, which it did, in attaching the conditions such factors as safely, environmental preservation, prevention of disruption to the neighbouring residential area, pollution, flooding etc. Having failed to get what it wanted, the appellant filed the originating motion for an order of court to order the respondent to issue the requisition notice under s 30 of the Act. The purpose was to enable the appellant to serve a purchase notice on the commissioner with a view to cause the commissioner to initiate steps to acquire the lands in accordance with the provisions of the Land Acquisition Act 1960 and get compensated for it. To achieve its purpose, the appellant had come to court, requesting the court to exercise its powers of judicial review to order the respondent to issue the requisition notice.

11. To appreciate the rationale of the appellant's application in the High Court, we should briefly trace the scheme of the Act, in so far as it is relevant to the case. The preamble of the Act says that it is –

    an Act to make provisions for the control and regulating of proper planning in the Federal Territory ....

12. By s 5, the commissioner appointed under the Federal Capital Act 1960 was appointed to exercise all the functions and powers conferred and to perform the duties imposed on him by the Act. By s 6, the functions of the commissioner "shall be to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings ...." which include to "prepare and implement the development plan." Part III, ss 7-18 talks about development plans. Part IV, ss 19-30, deal with planning control. Section 19 provides that –

    no person shall use or permit to be used any land or building or commence, undertake or carry out any development otherwise than in conformity with the development plan or any planning permission granted under this Act in respect of the development.

13. Section 20 prohibits development without planning permission. Section 21 provides the manner in which the application for planning permission is to be made to the commissioner. Section 22 provides, inter alia, that –

    the commissioner shall have power exercisable at his discretion to grant planning permission or to refuse to grant planning permission in respect of any development irrespective of whether or not such development is in conformity with the development plan ....

14. Such permission, if granted may be with or without conditions. Section 23 provides that an appeal against the decision of the commissioner may be made to the Appeal Board by an applicant aggrieved by the decision of the commissioner in refusing his application for planning permission or who is aggrieved by any condition imposed by the commissioner in granting permission in respect of his application. Subsection (3) provides for the type of orders that the Appeal Board may make. They are:

    (a)	confirming the decision of the commissioner and dismissing the appeal; or
    (b)	allowing the appeal by directing the commissioner to grant planning permission subject to such conditions as the Appeal Board may think fit; or
    (c)	allowing the appeal by directing the commissioner to remove or modify any condition subject to which planning permission has been granted or to replace such condition with such other condition as the Appeal Board may think fit.

15. Section 45(12) provides:

    An order made by the Appeal Board on an appeal before it shall be final, shall not be called into questioned in any court, and shall be binding on all parties to the appeal or involved in the matter.

16. We go back to s 30. As this section featured prominently in the course of the arguments, the section, though quite lengthy should be reproduced:

    30.

    Requisition notice (1) Without prejudice to s 27, if the commissioner is satisfied – (a) that any use of land should be discontinued; or (b) that conditions should be imposed on the continued use thereof; or (c) that any building or works on any land should be altered or removed, the commissioner may, by notice, which in this Act is referred to as the "requisition notice", served on the owner of the land – (i) require the discontinuance of that use; or (ii) impose such conditions for the continued use of the land as may be specified in the requisition notice; or (iii) require such steps as may be specified in the requisition notice to be taken for the alteration or removal of the buildings or works as the case may be; and the owner shall, within such period as may be specified in the requisition notice, not being less than one month from the date of service of the notice, comply with such requirements or conditions. (2) A person aggrieved by a requisition notice may, within the period stated therein and in the manner prescribed, appeal to the Appeal Board. (3) If an appeal is filed under subsection (2), the requisition notice shall be suspended until the determination or withdrawal of the appeal. (4) In considering an appeal under subsection (2), the Appeal Board shall hear the appellant and the commissioner. (5) If the owner of the land to which the requisition notice relates has, in consequence of complying with the notice, suffered damage in the form of a depreciation in the value of the land or incurred expenses or costs in carrying out works in compliance with the notice, he may claim from the commissioner, within the time and in the manner prescribed, compensation as the commissioner considers adequate. (6) If a claim is made under subsection (3) the commissioner shall, after giving the person making the claim an opportunity co be heard, offer him such compensation as the commissioner considers adequate. (7) If the person to whom compensation is offered under subsection (6) is aggrieved by the amount thereof, he may, within the time and in the manner prescribed, appeal to the Appeal Board and the Appeal Board shall assess the amount of compensation to be paid. (8) A person who fails to comply with a requisition notice served on him under subsection (1) within the period specified therein or, where an appeal has been made under subsection (2), within such period after the determination or withdrawal of the appeal as may be specified by the commissioner commits an offence and is liable, on conviction, to a fine not exceeding ten thousand ringgit and, in the case of a continuing offence, to a further fine which may extend to five hundred ringgit for each day during which the offence is continued after the conviction for the first commission of the offence. (9) Without prejudice to subsection (8) if within the time specified in the requisition notice, there is no compliance, the commissioner or any person so authorised by him, may enter with or without workmen upon the land and take such seeps as may be necessary to execute the requisition notice including the demolition or alteration to any building or works or removal of any goods, vehicles or things from any building or land and in such event subsections (2) and (3) of section 29 shall mutatis mutandis apply.

17. Briefly, the section provides that if the commissioner is satisfied that any use of land should be discontinued etc., the commissioner may issue and serve a requisition notice on the owner of the land requiring the owner of the land to discontinue the use of the land and the owner must comply with the notice. If the owner is aggrieved by the requisition notice, he may appeal to the Planning Appeal Board. If, in consequence of complying with the notice, the owner had suffered damage in the form of a depreciation in the value of the land or incurred expenses or costs, he may claim compensation for the damage, expenses or costs from the commissioner. The commissioner may then offer the owner such compensation as the commissioner considers adequate. If the owner is aggrieved by the amount offered, again he may appeal to the Planning Appeal Board and the board shall assess the amount of compensation to be paid to the owner. Subsection (8) makes it a criminal offence for a person who had been served with the requisition notice but failed to comply with the notice. The commissioner may also enter the land and take such steps as may be necessary to execute the requisition notice including the demolition of any building and so on.

18. We now go to Part VIII (Purchase Notice and Acquisition of Land) which consists of only one section, s 46. This section, inter alia, enables a registered proprietor of land who claims that, by reason of compliance with a requisition notice under s 30, the land is incapable of reasonable beneficial use, may serve on the commissioner a purchase notice, the final effect of which is that the land will be acquired in accordance with the Land Acquisition Act 1960 and the registered proprietor will be compensated for it.

19. Is s 30 applicable on the facts of this case? First, s 30(1) reads [emphasis added] –

    if the commissioner is satisfied .... that any use of land should be discontinued ....

    It is the commissioner who has to be satisfied. Only then the rest of the provision will follow. It is not for the court to be satisfied and then force it on the commissioner. What the appellant is doing here is to substitute the court for the commissioner, to exercise the powers provided bys 30. That is clearly misconceived. The situation here is different from that where the commissioner has exercised his discretion under the section and the appellant applies to court for a judicial review to quash the decision byway of certiorari. In such a situation the court may look at the decision making process and other relevant factors to see whether the commissioner has come to a decision which is legal and reasonable. But, that is not the case here. Here the court is asked to decide for the commissioner and to direct the commissioner to accept it as his decision. Or, to put it the other way, the court is being asked to tell the commissioner "You must be satisfied and do what you have to do". That is a very ridiculous proposition. To do that is to do a most injudicious act in the name of judicial review.

20. Secondly, subsection (1) of that section uses the words that any use of the land "should be discontinued' and not "is discontinued" or "has been discontinued". What it means is that, under the scheme of the Act, if the commissioner is satisfied that any land use is to be discontinued, e.g. in the present case, the land use of "building" is to be discontinued, then the commissioner may issue the requisition notice.

21. In the instant case, the land use was not discontinued and the commissioner did not decide that it should be discontinued. It remains "building". The question whether the earthworks is to be done in one or two stages has nothing to do with discontinuing the use of the lands.

22. Reliance was placed on what was alleged to have been said by the chairman of the Appeal Board during the hearing of the appeal before the Appeal Board. But, the question is, what did the Appeal Board decide? For that we should look at the order. Unfortunately, the "Order" dated August 25, 2000 does not follow the normal format of an order. It contains what appears to be the grounds for the decision given by the Board in English followed by the order in Malay. Thus the first paragraph, in particular, has given some grounds for making the application in question. However, the only order made by the Board is contained in one sentence:

    It is hereby ordered that the appeal be dismissed with costs.

    If anyone has any doubt what the appeal is about, the "order" also makes it very clear when it states:

    The appeal by Gasing Meridian Sdn Bhd for one stage approval is therefore dismissed.

23. Actually, the clarification by the Appeal Board was completely unnecessary. However, of the three sub-paragraphs in the clarification letter, only paragraph (i) is of any significance and it confirms what the order says, namely, that the appeal against the decision of the respondent giving approval for the first stage and requiring an application for approval to be made subsequently was dismissed. So, the original approval of the respondent stands.

24. Hence paragraph (a) of s 30(1) is not applicable. What about paragraph (b)? That paragraph talks about a situation where the commissioner is satisfied that conditions should be imposed on the continued use of the land. In other words, even though the use of the land is not discontinued, but the commissioner is satisfied that conditions should be imposed, then he may issue the requisition notice. Everything that we have said regarding paragraph (a) applies here. Again the respondent did not impose conditions on the (continued) use of the land. So, the case is not covered by paragraph (b) of s 30(1).

25. Paragraph (c) of s 30(1) is completely unconnected with the facts of the instant case. Paragraph (c) talks about building or work on any land should be altered or removed in which case the commissioner, if so satisfied, may issue the "requisition notice".

26. So, the provisions of s 30 regarding the issuance of the requisition notice are not applicable to the facts of the instant case. The section clearly cannot be invoked.

27. In the alternative the appellant had prayed for a declaration that the order of the Planning Appeal Board dated August 23, 2000 amounted to a requisition notice under s 30 and that the appellant be entitled to issue a purchase notice to the respondent within the definition of s 45 of the Act and to claim for damages and other consequential orders. This, we think is a preposterous request. First, the person having the authority to issue the requisition notice, if he is satisfied, is the commissioner, not the Planning Appeal Board. Secondly, the appeal to the Planning Appeal Board was over the two stage approval, not over the issue or the refusal or failure to issue the requisition notice. That too was the subject matter of the decision of the Planning Appeal Board.

28. Furthermore, it must be stressed that s 30 does not impose a duty on the commissioner to issue a requisition notice. It only empowers him to do so, if he is satisfied that one of the conditions required by s 30(1) is satisfied. So, even if the conditions are satisfied (in this case, they are not) still it is a matter of discretion of the commissioner whether to exercise the power or not. And, before exercising it he has to be satisfied that the matter falls within the provisions of the section. The court should nor usurp the power given to the commissioner, exercise it and direct the commissioner to carry it out. On top of that mandamus, by itself, is a discretionary remedy. Even if all the conditions are satisfied (which are not), it is still within the discretion of the High Court whether to issue it or not.

29. On these grounds we dismissed the appeal with costs and ordered that the deposit be paid to the respondent on account of taxed costs.

Legislations

Federal Capital Act 1960

Federal Territory (Planning) Act 1982

Land Acquisition Act 1960

Representations

Cecil Abraham and N Segaran (SK Yeoh & Partners) for appellant

Romesh Abraham &nd.Janice Leo (Shook Lin &: Bok) for respondent

Notes:–

All Translation are not a part of the original judgment. The texts in the original judgment were expressed in Malay Language.

This decision is also reported at [2004] 1 AMR 594