KUALA LUMPUR (Oct 23): Even if it is against the state's interest, the land title for the Duta enclave — the 263.27-acre (106.54-hectare) land in Mukim Batu that currently hoses various government complexes and facilities — has to be transferred back to Semantan Estate (1952) Sdn Bhd as it is the right thing to do, according to the High Court judge who directed that the deed be done.
In the written grounds of his August judgement released on Wednesday, Datuk Ahmad Shahrir Mohd Salleh said it is essential to recognise the incontrovertible fact established in the 2009 High Court judgement that the original acquisition of the land was improperly executed by the government.
The 2009 judgement, made by then High Court judge Zura Yahya, was also upheld by the Court of Appeal and the Federal Court, while a subsequent application for a review of the decision by the government had been dismissed, Ahmad Shahrir noted.
“That has resulted in the conclusion that there was no lawful acquisition by the government of the 263.272-acre land.
“On the premise of this fact and circumstances, can it be validly or sensibly argued that while the government is in unlawful occupation of the land, it can still remain in possession of it, and the land's title should not be transferred back to the plaintiff? I find such a proposition untenable to say the least, if not utterly ludicrous,” Ahmad Shahrir said.
The courts also have wide powers under Section 417 (1) of the National Land Code to effectuate a ruling or judgement on the registrar or any land administrator in proceedings related to land, hence it was only right for it to restore the title to Semantan Estate, he said.
The 263.272 acres were acquired by the government in 1956 to be transformed into what is called “the Duta enclave”.
The senior federal counsel appearing for the government had argued before the August judgement that the land cannot be transferred back to Semantan Estate despite the 2009 decision, and subsequent decisions by the superior courts, as the 2009 ruling merely declared that the land's beneficial ownership remains with Semantan Estate.
The counsel also argued that there must first be a judgement or order which states that Semantan Estate has the land title, or that it is the rightful proprietor of the land.
Ahmad Shahrir found the government’s argument to be superficial.
“Section 417(1) of the Code is applicable regardless of the specificity of the judgement or order. Section 417(1) of the Code is not limited to terms explicitly stated in the judgement or order. It is sufficiently broad to include all judgements and orders provided that the order sought for does not conflict with the terms of the judgement or order given in the land proceedings,” Ahmad Shahrir said.
'Court has to uphold fundamental rights, not engage in riddles'
Ahmad Shahrir also noted that prior to the acquisition, the land belonged to Semantan Estate.
“Had the acquisition been valid and lawful, the land would belong to the government. However, when the acquisition was held to be invalid and the occupation of the land by the government became unlawful, why should the land not revert back to the plaintiff (Semantan Estate)?” he asked.
“If one were to extend the matter just a teeny step further in this manner, since the acquisition of the land was held to be invalid, the government was found liable to pay damages for trespassing, and it was held that beneficial interest remained with that of the plaintiff, could it still be argued that the title of the land may still remain in the name of the Federal Land’s Commissioner? I can only answer this question with a simple no. Anything more would be too cryptic.”
Ahmad Shahrir also said Section 417's purpose is to give effect to any judgement or order following the reliefs sought from the court, and this was what was asked for by Semantan Estate.
He added that the court is not oblivious to the impact of Zura’s decision 15 years ago, and is cognisant of the ensuing repercussions.
“Nevertheless, in performing its judicial function to uphold the sanctity of the Federal Constitution, it is imperative for this court to uphold and accord the fundamental rights entrenched in the Constitution its rightful status without sanctimony. It is indeed a daunting function which must be performed in upholding judicial impartiality as a matter of fairness for all, not a select few.
“Indeed, that is one of the hallmarks of an independent judiciary. When called upon to uphold fundamental rights as enshrined under the Constitution, the courts do not engage in riddles and whitewashes in protecting against transgressors over those rights. So sacrosanct are these fundamental rights that not even the powers of the state could encroach upon [them],” he reminded the government.
The government is presently appealing against Ahmad Shahrir’s decision, and has been granted a stay of the judge's order for the land title transfer. The hearing of the government’s appeal at the Court of Appeal, together with an opposing appeal by Semantan Estate to compel the government to surrender the land and buildings on the land, will be heard together on Nov 7.
The government is also negotiating with Semantan Estate for a settlement of the issue.
Following Ahmad Shahrir's decision in August, Prime Minister Datuk Seri Anwar Ibrahim had expressed concern about the serious implications of the court’s decision and proposed that the government relook into the matter.