Kam

- vs -

The Collector of Land Revenue

(District of Barat Daya, Penang)

Judgment

Raja Abdul Aziz Addruse JC

1. On an application made ex parte on 16 August 1980 leave was given by this court to the Applicants to apply for an Order of Certiorari to remove into this court and to quash the decision and award of compensation made by the Collector of Land Revenue, on 7 February 1980 for the acquisition of certain lands registered in the name of the Applicants. Pursuant to the leave given, the Applicants applied for the Order of Certiorari by Notice of Motion dated 27 October 1980 which was served on the Respondent, the Collector of Land Revenue, on 8 January 1981. When the Motion came to be heard on 23 January 1981, the Senior Federal Counsel appearing for the Respondent applied for an adjournment on the ground that through an inadvertence, the Respondent did not instruct him until the day before the hearing. It was, however agreed by Counsel for the Applicants and the Senior Federal Counsel that the former would make his submission on the Motion on 24 January 1981 and that the hearing be thereafter adjourned to another date when the Senior Federal Counsel would make his submission in reply. I, accordingly, heard Mr Karpal Singh’s submission on 24 January 1981 and thereafter adjourned the matter to 28 February 1981.

2. When the matter came up for hearing on 28 February 1981 Mr Lim Beng Choon, Senior Federal Counsel, appearing for the Respondent, raised a preliminary issue and applied for these proceedings to be stayed on the ground that the Respondent’s award now sought to be quashed had been referred by the Applicants to the High Court under s 38(5) of the Land Acquisition Act, 1960. It was argued that as this court when considering the reference, would be dealing with the same points involved in this Motion, these proceedings should be stayed until the reference had been disposed of.

3. For the purpose of determining whether or not the application to stay should be granted, it is necessary that I consider what powers the High Court has when hearing the reference made under s 38(5) of the Act, in particular, whether the High Court can, at the hearing of the reference, deal with the several issues raised in the present proceedings, bearing in mind that the Court ought not to refuse to grant an Order of Certiorari, unless it is clearly satisfied that there are other remedies available to the Applicants which are more appropriate. The law on this is referred to in Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663, 695 where, Lord Denning, after stating the general rule that the issue of Certiorari is a matter of discretion for the High Court, said—

   ....a subsidiary rule has been laid down to the effect that where the Applicant is a party grieved who has no other remedy, the court will grant [the Order of Certiorari] ex debito justitiae: See Reg v Surrey Justices (1870) LR 5 QB 466; Reg v Manchester Legal Aid Committee [1952] 2 QB 413.

4. The power conferred on the High Court by s 38(5) of the Land Acquisition Act, 1960 does not, in my view, permit it to go into the issues raised in these proceedings, namely:—

   1. whether the Collector’s award ought to be quashed by reason of failure on the part of the Collector to observe the rules of natural justice when conducting his enquiry; and

   2. the other issues raised by the Applicants in thee proceedings which this court will have to consider.

5. I am, therefore, of the view that the Applicants will not be able to obtain the remedy they seek by these proceedings, in the reference under s 38(5) of the Act. For that reason, the application of the Respondents to stay these proceedings should be dismissed, and I accordingly dismissed it.

6. In coming to this conclusion, I have not overlooked the provisions of s 68 of the Act, to which my attention was drawn by the learned Senior Federal Counsel. That section says that no order or award of the Collector made under the Act should be set aside. In construing that section and indeed, the Act itself, regard must be had to Article 13 of the Federal Constitution which provides that no person shall be deprived of property save in accordance with law and, even then, subject to the payment of adequate compensation.

7. In my view s 68 of the Act must be read in conjunction with the right guaranteed to the individual by the said Article 13. It is inconceivable that Parliament, in promulgating the Act, had intended to confer upon the Collector a power so absolute as to exclude altogether the supervisory power of the High Court in relation to decisions and awards improperly made under the Act. If s 68 were to be given a literal interpretation, the fundamental right guaranteed by Article 13 would be rendered nugatory. In my view, s 68 applies only to decisions and awards which have been properly made by the Collector.

Cases

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663; Reg v Surrey Justices [1870] LR 5 QB 466; Reg v Manchester Legal Aid Committee [1952] 2 QB 413

Legislations

Land Acquisition Act 1960: s.38

Federal Constitution: Art.13

Representations

Karpal Singh (Balwant Singh Purba with him) for the applicant.

BC Lim Beng Choon, Senior Federal Counsel (Sabaruddin Othman, State Legal Adviser, Penang with him) for the respondent.