PUTRAJAYA (June 23): The Court of Appeal (COA) will decide a pivotal matter on Tuesday, on whether to allow the federal government’s appeal over a mandamus order to transfer the 263.272-acre prime Kuala Lumpur land, known as the “Duta enclave”, back to Semantan Estate (1952) Sdn Bhd, following a High Court decision last August.
At the same time, the three-member bench, led by recently elevated Federal Court judge Datuk Lee Swee Seng, will also deliver its decision over a cross-appeal by Semantan Estate on a 2021 High Court decision in dismissing the handover of the land and the government buildings built there to the company.
The bench will also decide on an appeal by Semantan Estate over the Kuala Lumpur High Court’s decision to grant a stay on the title transfer, which was supposed to be done by the Federal Territory land registrar within three months from the Aug 7, 2024 decision.
This protracted land case that began in 1956 — even before Merdeka — saw the government acquiring the land in 1956 for RM1.3 million, which the company accepted under protest.
However, the government’s action was deemed as being an illegally trespass in a 2009 High Court decision. This was further affirmed by the COA and Federal Court.
The government’s attempt to review the Federal Court’s decision was also dismissed by a separate five-member apex court bench in November 2018, resulting in the trespass ruling against the government being upheld.
The joint hearing of the appeals were heard last November, and also in February this year.
More than 60 years on, much of the land has been developed, with several vital government buildings erected, namely the Inland Revenue Board’s headquarters, as well as the National Examinations Syndicate, the Shariah Court Complex, the Federal Territory Mosque, the National Archives, and the Tun Razak Hockey Stadium.
Other structures are the National Tennis Complex, Integrity Institute of Malaysia (IIM), Malaysian Anti-Corruption Academy, Institute of Islamic Understanding Malaysia (IKIM), and the Duta bus terminal. There remain pockets of land that have yet to be developed.
On the land is also the main road, and an overhead bypass from Jalan Duta (now known as Jalan Tuanku Abdul Halim) leading to Segambut.
Other issues to be decided
The COA bench that also consists of Datuk Azimah Omar and Datuk Wan Ahmad Farid Wan Salleh had also asked both the government and Semantan Estate’s lawyers to also make submissions on these points:
- Whether Section 29(1)(b) of the Government Proceedings Act (GPA) 1956 and Section 8(3) of the Specific Relief Act 1950 (SRA) prohibit the court from granting the mandamus order and Section 417 of the National Land Code (NLC) order to give possession pursuant to the Aug 7, 2024 High Court order; whether these two provisions are unconstitutional for being ultra vires (beyond the powers of) Article 13 (Rights to Property) of the Federal Constitution;
- Whether in lieu of an order for transfer of the title to Semantan Estate and delivery of possession, this COA may order compensation with the directive that the evaluation that the compensation be based on is at the current market value of the land, or whether the compensation ordered should be at the date of the possession taken by the commissioner of land; and
- Whether the COA has the jurisdiction to remit this case to the High Court, with directions to make a full assessment of damages for compensation under the Rules of Court or an appeal under Section 417 of the NLC.
Against this backdrop, an important and much anticipated judgement is expected on Tuesday. However, this case may not end at the COA, as grieving parties can make their final appeal at the Federal Court.
At the same time, the Kuala Lumpur High Court is also separately hearing the mesne profit claim by Semantan Estate — where the company that has gone under voluntary liquidation claimed at between RM3.1 billion to RM12 million compensation for the over 60-year period, while the government has valued it to be RM290 million.
The hearing for mesne profit — which are profits an entity receives following wrongful possession — is still ongoing and will resume next month.
