DALAM MAHKAMAH RAYUAN MALAYSIA
( BIDANG KUASA RAYUAN )
RAYUAN SIVIL NO. N-01-33-01/2014 ANTARA
PENTADBIR TANAH SEREMBAN …PERAYU
INISIATIF JAYA SDN. BHD. …RESPONDEN
DIDENGAR BERSAMA N-01-34-01/2014
( Dalam Mahkamah Tinggi Malaya di Seremban Dalam Negeri Sembilan Darul Khusus, Malaysia Rujukan Tanah No. 15-20-07/2013)
Dalam perkara Seksyen 29/36 Akta
Pengambilan Tanah 1960
Dalam perkara Pengambilan Tanah Lot 5641 (4412) Geran 73171, Mukim Lenggeng, Daerah Seremban, Negeri Sembilan Darul Khusus
INISIATIF JAYA SDN BHD PEMOHON
PENTADBIR TANAH SEREMBAN RESPONDEN
DI DENGAR BERSAMA RUJUKAN TANAH: 15 NCVC-1-01/2013
BALIA YUSOF BIN HJ. WAHI, HMR DR. HJ. HAMID SULTAN BIN ABU BACKER, HMR DR. BADARIAH BINTI SAHAMID, HMR
Majority judgment of Balia Yusoff bin Hj Wahi, HMR (as he then was) and Dr. Badariah binti Sahamid,HMR.
Dr. Hj. Hamid Sultan bin Abu Backer, HMR, dissenting.
Parties will be referred to as they were in proceedings before the High Court.
 This is an appeal against the decision of the learned High Court judge in Seremban delivered on 17.12.2013, in respect of two land reference cases that were heard together due to the close proximity of the lands in terms of site and location.
 The two land reference cases were in respect of the acquisition of Lot 4412 and Lot 1515 (“the subject lots”).
 The two land reference cases arose from an objection filed by the Applicant/Landowner in respect of the inadequacy of compensation paid by the Respondent to the Applicant.
A summary of the background facts is derived from the grounds of judgment of the learned High Court judge, with suitable modifications.
 The subject lots are part of the Sungai Beranang Estate which comprises 5 lots of agricultural land with a total area of approximately 516 hectares (1, 275 acres).
 In respect of Lot 1515, the acquired area is 5.3685 hectares, (13.2657 acres) while in respect of Lot 4412, the acquired area is 7.2697 hectares (17.9636 acres).
 Both the subject lots are first-layer land and have frontage along their western boundaries onto the Broga- Mantin trunk road.
 At the time of inspection, the Sungai Beranang Estate (“the Estate”) is planted with oil palm and rubber trees.
 There are agricultural buildings within the Estate, which includes a field office, storage buildings, smoke houses, workers’ quarters, a Hindu temple, a surau, an estate manager’s house and staff quarters.
 According to the private valuer’s report, the Estate is well served by a network of motorable laterite roads, field drains, culverts and small bridges. Maintenance of the Estate is observed to be good.
 Public utilities such as water and electricity are connected to the subject lots.
 The subject lots are not stipulated for any specific use in the title documents. From the Rancangan Tempotan Daerah Seremban 2015, the subject lots are zoned for residential use.
 The subject lots have been described as having close proximity to two large developments i.e.
(i) the Main Intake Electrical Station belonging to Tenaga Nasional Bhd.
(ii) a large township development called Bandar Akademia, a project of the Lion Group, consisting of mainly detached houses and vacant bungalow lots with a clubhouse and a public park.
 Other notable developments in the vicinity include University Nottingham of Malaysia,Taman Pelangi Semenyih, and Bandar Tasik Semenyih.
 On 24.11.2011, the state government of Negeri Sembilan had gazetted for acquisition the subject lots in accordance with subsection 3 (1) (a) of the Land Acquisition Act, 1960 (Act 486).
 Pursuant to the above, the Land Administrator had conducted an enquiry under Section 12 of Act 486. The enquiry was attended by the following persons:
(a) Low Kim Hock, representative of the Respondent;
(b) Tan Soon Sem, representative of the Respondent;
(c) Ervinna Teo, representative of Ambank (M) Bhd.
(d) Othman bin Mamat, representative of Tenaga Nasional Bhd.
(e) Rosman bin Mokhtar, representative of Tenaga Nasional Bhd.
Valuation of Subject Lots
The Private Valuer
 To arrive at the present market value of the subject lots, the private valuer adopted the Comparison Approach.
 Under this approach, the value of the property is determined by comparing it with recent sales and/ or listings of similar properties in the vicinity, or if unavailable, within similar localities. As no two properties are identical, adjustments are made for differences in factors such as location, and physical characteristics.
 Accordingly, the private valuer compared the subject lots with Lot Nos. 1135 and 1137, which lots are part of the Tarun Estate, located near the Selangor/ Negeri Sembilan state boundary. A compensation was offered by the Land Office in respect of a compulsory acquisition of the said lots on August 17, 2006.
 The private valuer had also included in the report compensation for Severance as well as Injurious Affection arising from loss of direct access to the trunk road and consequentially, loss of development potential for a portion of the subject lots.
 The above Severance and Injurious Affection would render the subject lots to suffer a diminution in value to the remaining property. The value reduction was estimated to be RM7, 742,540.
 Premised on the foregoing, the private valuer is of the opinion that the present Market Value of the subject lots free from all encumbrances and with vacant possession is RM 12, 087, 349 which comprises as follows:
(i) Acquired portion
Lot Acquired Value Per
No. Area Acre
1515 13.2657 x RM130,000 = RM 1,724,541
4412 17.9636 x RM130,000 = RM2,335,268
Estate Manager’s house RM 175,000
Staff Quarters Fencing
(ii) Severance and Injurious Affection
(iv) Cost of valuation Report
(v) Landowner’s travel and miscellaneous
RM 12, 087,349
The Government Valuer
 The government valuer used as comparables, Lots 561, 966 and 3338.
 Lot 561 is uneven with hilly relief. It is located at the third layer Off KM 35.7 of the Kuala Lumpur-Seremban Highway whereby the zoning is residential.
 Lot 966 is uneven hilly relief. It is located at the 2nd layer Off Jalan Sungai Jai- Lenggeng. The zoning is agricultural.
 Lot 3338 is rectangle in shape and of hilly terrain. It is situated at the first layer from Seremban- Lenggeng road. Zoning is agricultural.
 The government valuer was of the view that the average valuation after considering the comparable lots of Lot 561, 966 and 3338 was between RM150, 000-RM160, 000 per hectare after considering the relief, size, location and time of the transaction of the respective lands used as comparables.
 The government valuer was of the view that the reasonable valuation at the time it was gazetted for acquisition on 24.11.2011 after the necessary adjustments is RM 160,000 per hectare.
 Hence, the Government valuation of the subject Lots is as follows:
Lot Acreage Value Prevailing Value Total
No. (hectares) per hectare Market rate of building
1515 5.3685 RM160,000 RM858,960 i) Manager’s RM1,058,960
ii) Workers’ quarters RM6,500
iii) Fencing & gate RM 15,000
4412 7.2697 RM160,000 RM1, 163,153 Nil RM 1,163,152
 The government valuer however, did not consider that an award ought to be given for Severance and Injurious Affection as a result of the acquisition as the remainder of the lots after acquisition can still operate as estate land in accordance with section 214A of the National Land Code.
 At the end of the enquiry, the Land Administrator had awarded the amount of RM 160,000 a hectare for the subject lots with a total compensation award of RM858, 960. The award was delivered to the Respondent by Borang H.
 However, the Respondent was dissatisfied with the valuation of the subject lots and the amount of compensation awarded and on 22.10.12 accepted the award but recorded their objection via the
submission of Borang N with the Land Administrator, to be referred to the High Court for consideration.
 The grounds stated in Borang N, abovementioned are as follows:
“4. Alasan-alasan bantahan say a a da la h seperti berikut:
Jumlah pampasan yang diberi untuk tanah dan bangunan yang terlibat tidak menggambarkan nilai pasaran sebenar bagi tanah dan bangunan tersebut atau dibawah harga pasaran pada masa yang berkenaan (below market value at the material time)
Issues before the High Court
 The primary issue before the High Court may be summarised as follows:
Whether, the issue of inadequacy of compensation premised on Severance and Injurious Affection can be raised at the Land Reference stage when:
(i) It was not expressly stated in Borang N, and
(ii) it had been raised before the Land Administrator and rejected.
Decision of the High Court judge together with the assessors
 The findings are stated as follows:
“The court is of the view that although it has not been stated expressly in Borang N that the objection is specifically to severance and IA (Injurious Affection), however, since it was raised before the Land Administrator and that has been refused,
issue on severance and IA may be considered at the Land Reference stage,”
 The learned High Court, after hearing the matter, made an order in the following terms:
A: additional compensation for the lands to be paid to the
(i) An additional compensation of RM290,788 be made for Lot 4212.
(ii) An additional compensation of RM 214,740 to be made for Lot 1515.
Total additional compensation to be paid to the Applicant is
B: For severance
(iii) For Lot 4412, balance land area as per JPPH report at page 7 of 185,8303 hectares at RM200,000 per hectare comes to RM1, 858,303
(iv) For Lot 1515, balance land area as per JPPH report at page 7 of 74.1015 hectares at RM200,000 per hectare comes to RM741,015.
Total compensation for severance is RM2,599,318.
C: Injurious Affection (IA)
Balance of Lot 4212 portion A, of 111,9523 hectares at 5%
reduced for IA of the market rate amounting to RM1, 119,523.
 Therefore, total compensation due to the Applicant is RM 4,224,369.
Grounds of Appeal
 The Respondent’s grounds of appeal may be summarised as follows:
1. The learned High Court judge had erred in fact and law in awarding compensation for Severance and Injurious Affection of the subject lots when the issues were not raised by the Respondent at the enquiry before the Land Administrator on 28.06.2012.
2. The learned High Court judge had erred in fact and law in awarding compensation for Severance and Injurious Affection of the subject lots when the Respondent had not raised these issues in the Borang N, and this decision is contrary to subsection 38(2) of Act 486.
3. The learned High Court judge had erred in allowing the Respondent to raise a new issue without prior leave of the court, and this was contrary to sub-section 38 (2) of the Act 486.
 The thrust of learned counsel for the Applicant’s argument is premised on Sections 40 D (3) and 49(1) of Act 486 which precludes any party from appealing against the award of compensation by the High Court and assessors.
 The relevant provisions abovementioned are reproduced below:
40. Decision of the Court on compensation.
(3) Any decision made under this section is final and there shall be no further appeal to a higher Court on the matter.
The above position is reinforced by section 49(1) which states:
49. Appeal from decision as to compensation
(1) Any person interested, including the Land Administrator and any person or corporation on whose behalf the proceedings were instituted pursuant to section 3 may appeal from a decision of the Court to the Court of Appeal and to the Federal Court:
Provided that where the decision comprises an award of compensation there shall be no appeal therefrom.
 Learned counsel for the Applicant also referred us to inter alia two Federal Court decisions in support of the above contention.
 In the case of Calamas Sdn Bhd v Pentadbir Tanah Batang Padang (2011) 4 CU, 125, Hashim Yusoff ,FCJ had referred to the effect of the two sections abovementioned thus:
“It is trite law that courts must give effect to the clear provisions of the law. In the instant appeal, I do not see anything ambiguous in ss40D (3) and 49(1) of the Act. In view of this, I am of the view that the appellant is precluded from appealing against the order of compensation issued by the learned trial judge”.
 The Federal Court in the recent case of Syed Hussein SyedJunid & Ors v Pentadbir Tanah Negeri Peril’s (2013) 9 CU 152, had held as follows:
“While s. 49(1) of the Act allows any interested person to appeal against the decision of the High Court to the Court of Appeal, s. 40D appears to have restricted the ambit of such an appeal. Section 40 D (3) of the Act clearly provides that any decision as
to the amount of compensation awarded shall be final and there shall be no further appeal to the higher court on the matter”.
 Learned counsel for the Applicant contends that sections 40 D (3) and 49(1) of Act 486, read together with both the Federal Court decisions abovementioned, and clearly precludes the Respondent from appealing against the award of compensation by the learned High Court judge and assessors.
 The Respondent is attempting to circumvent the abovementioned provisions in Act 486 by disguising this appeal as a point of law, purportedly on the ground that Severance and Injurious Affection were not raised by the Applicant in Form N or in the enquiry proceedings before the Land Administrator.
 In response to the Respondent’s contention that the Applicant did not state that the grounds of objection in Form N is in respect of the issues of Severance and Injurious Affection, the Applicant submits as follows.
 Form N is a standard form which is usually filled up by landowners who are laypersons and not familiar with legal principles. Form N merely states that the grounds of objection are in regard to the inadequacy of compensation which was deemed to be below the market value at the material time. This would cover the issues of Severance and Injurious Affection.
 In any event, if prior leave of the court is required to raise new grounds of objection not stated in Form N, pursuant to section 38(2) of Act 486, the learned High Court judge in hearing the new objections is deemed to have impliedly given leave of the Court pursuant to section 38(2) abovementioned.
 The primary issue raised in this appeal is not the issue of compensation, which is clearly disallowed by section 40D (3) and the proviso to section 39(1) of the Land Acquisition Act, 1960 as well as the Federal Court decisions of Calamas Sdn Bhd v Pentadbir Tanah Batang Padcmg (2011) 4 CLJ, 125 and Syed Hussein SyedJunid & Ors v Pentadbir Tanah Negeri Perlis (2013) 9 CLJ 152.
 The issue raised in this appeal is in respect of the following points of law i.e:
Whether the Applicant can raise the objection in respect of severance and injurious affection at the Land Reference stage when the same was not expressly stated in the Applicant’s Borang N? In other words, is the requirement to expressly state the grounds of objection in Form N a mandatory requirement?
Following from the above issue, another point of law raised in this appeal is in respect of section 38(2) of the Land Acquisition Act, 1960 which permits an Applicant to raise a new ground of objection not stated in Form N subject to prior leave of the Court?
 In the instant case, can prior leave be deemed to have been obtained by the conduct of the learned High Court judge and assessors in proceeding to hear the new objections of the Applicant not raised in Form N?
Issues before Us
 The crux of the issue before us is whether this appeal is in respect of compensation and thus is not allowed pursuant to sections 40D (3) and the proviso to section 39(1) of the Land Acquisition Act, 1960 as well as the Federal Court decisions of Calamas Sdn Bhd v
Pentadbir Tanah Batang Padang (2011) 4 CLJ, 125 and Syed Hussein SyedJunid & Ors v Pentadbir Tanah Negeri Perlis (2013) 9 CLJ 152?
 In the alternative, does this appeal raise issues of points of law in respect of the requirements of sub-section 38(2) of the Land Acquisition Act, 1960?
 After careful consideration of learned counsel’s oral and written submissions as well as the Appeal Records, my brother Justice Balia Yusof and I are of the considered opinion that there are merits in this appeal. We set out our reasons below.
 We agree with the contention of the learned Appellant that the appeal raises several points of law for the consideration of this Court.
First, what is the scope and ambit of the requirement stipulated by section 38(2) of Act 486?
 Section 38(2) abovementioned provides as follows:
“38. Form and content of application, etc.
(1) Any objection made under section 37 shall be made by a written application in Form N to the Land Administrator requiring that he refer the matter to the Court for its determination, [ and a copy thereof shall be forwarded by the Land Administrator to the Registrar of the Court].
(2) Every application under subsection (1) shall state fully the grounds on which objection to the award is taken, and at any hearing in Court no other grounds shall be given in argument, without leave of the Court.”
 It is a well-established principle of statutory interpretation that when the words in a statute have not acquired any technical meaning, the natural and ordinary meaning of the words should be given effect to. This principle has been well enunciated by Justice Steve Shim in the case of PP v Tan Tatt Eek & Other Appeals  1 CLJ 717, as stated below.
“The primary duty of the court is to give effect to the intention of the Legislature in the words used by it. It is a well-established canon of interpretation that the intent of the Legislature is to be gathered from the words used and that if the words used have not acquired any technical meaning, they should be deemed to have been used in their ordinary meaning. If the words of the statute are in themselves precise and unambiguous, then no more is necessary than to expound those words in their natural and ordinary sense. The words themselves alone in such cases best declare the intent of the law giver.”
 It is clear that the requirement stipulated in section 38(2)abovementioned is mandatory by the usage of the word “shall” which precedes the requirement to “state fully”. The word “fully”, being a non-technical term must be understood in its natural and ordinary meaning. The Concise Oxford English Dictionary interprets the word “fully” to mean “completely or entirely, to the fullest extent”.
 Thus, we are of the opinion that section 38(2) of Act 486 requires that the grounds of any objection to an award must be stated expressly and in specific terms in Form N in order to comply with the abovementioned requirement.
 In the instant case, the particulars in Borang N that was submitted by the Applicant were in the following terms:
“4. Alasan-alasan bantahan saya adalah seperti berikut:
Jumlah pampasan yang diberi untuk tanah dan bangunan yang terlibat tidak menggambarkan nilai pasaran sebenar bagi tanah dan bangunan tersebut atau dibawah harga pasaran pada masa yang berkenaan (below market value at the material time) “
 It is clear from the words abovementioned that the only ground of objection to the award stated in Borang N is that the amount of compensation does not reflect the current market value of the subject lots. There was no specific mention of Severance or Injurious affection in Borang N.
 We disagree with learned counsel for the Applicant’s contention that the ground stated above is sufficiently wide and general to include objections on the grounds of Severance and Injurious Affection. Such an interpretation would fly in the face of the express and unambiguous intention of the legislature that an Applicant, “shall state fully” any grounds of objection to an award in Form N.
 The Applicant may, nevertheless raise a ground not stated in Borang N, provided prior leave of the court has been obtained. This was laid down by the Federal Court in the case of Damansara Jaya Sdn Bhd v Pemungut Hasil Tanah Petaling  2 MU 660, where the Federal Court had occasion to determine the ambit of section 38(2) of the Land Acquisition Act, 1960 as follows.
“On a plain reading of s. 38(2) of the Act, the door is not completely shut for an objector to make a fresh claim or raise a new ground of objection to an award of the Collector in the course of the reference proceedings which he had failed to do at the inquiry before the Collector or in the application for reference to the court. The objector must, however, obtain the leave of the court before he can do so. In view of s. 45(2) of the Act which provides:
Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the law for the time being in force relating to civil procedure shall apply to all proceedings before the Court under this Act.
The leave of the court is obtained by making separate application to the court supported by an affidavit explaining the reasons for the additional grounds of objection in accordance with Rules of the High Court 1980 for such application as a preliminary step before the hearing of the actual reference.
Such application for leave will afford the Collector an opportunity to make necessary inquiries to file in reply and, where necessary, to object to the application. The additional ground should not be made, as was done here, by throwing it in the face of the court for the first time at the hearing of the reference proper which caught the Collector and the court by surprise.”
 The above position was confirmed by the Federal Court in the case of Sin Yee Estate Sdn Bhd (now known asY&Y Estate Sdn Bhd) v Pentadbir Tanah Daerah Kinta (2006) 1 MU 12, which held that the Appellant, having not pleaded a claim for injurious affection was not entitled to raise the claim unless leave of the court had been asked for and granted.
 In the light of the above established authorities, there is clearly no merit in the Applicant’s submission that the prior leave required by section 38(2) of Act 486 may be deemed to have been obtained by the conduct of the learned High Court judge and assessors in proceeding to hear the new objections of the Applicant.
 Thus we are of the opinion that the Applicant is not entitled to raise a claim for Severance and Injurious Affection and accordingly, we allow this appeal and set aside the decision of the learned High Court judge in her additional award of compensation in respect of Severance and Injurious Affection.
 Based on the aforesaid grounds, by majority, we accordingly allow this appeal with costs of RM 15,000 for both appeals.
DATUK DR. BADARIAH SAHAMID JUDGE, COURT OF APPEAL PUTRAJAYA
ON BEHALF OF APPELLANT:
Penasihat Undang-Undang Negeri Negeri Sembilan
Pejabat Penasihat Undang-Undang Negeri Negeri Sembilan Jalan Campbell
ON BEHALF OF RESPONDENT:
TETUAN Krishna Dallumah, Manian & Indran
Peguambela & Peguamcara
No 62 & 63-1, Jalan S2 D36
Regency Avenue 2, Seremban 2