PUTRAJAYA: The plot of land known as the "Duta Enclave" belongs to the government, the Court of Appeal has ruled.
This came after it allowed an appeal by the Federal Territory of Kuala Lumpur Land Registrar in a dispute between the government and Semantan Estate Sdn Bhd (SESB), involving the land that spans 106.54ha (263.272 acres) here on Tuesday (June 24).
A three-judge panel, chaired by Federal Court judge Justice Datuk Lee Swee Seng, however, said that SESB should be compensated for the land and ordered that the amount be assessed by the High Court within 90 days with the help of experts.
Other judges on the bench were appellate court judges, Justices Datuk Azimah Omar and Datuk Wan Ahmad Farid Wan Salleh.
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Justice Lee said it was important to note that a High Court decision in 2009 did not include any directive for the government to transfer the land back to SESB.
“There was no executable order requiring the government to act. A declaratory order merely defines the legal rights of the parties involved.
“It does not carry with it the power of enforcement, such as specific performance. Such orders are non-executable by nature," he said.
Justice Lee said such a declaratory order was "limited in scope" and only served to affirm the legal relationship between the parties.
In cases involving recovery of land from the government, he said the court could only issue a declaration that a party is entitled to possession and not an order compelling the government to return the land.
This, he said, was based on broader principles of administrative law that were meant to protect public bodies from disruptions to the performance of their public duties.
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“In this case, nearly 70 years have passed since the government took possession of the land in December 1956. At that time, the land consisted only of old rubber trees.
“Today, it has been transformed into a fully developed township with roads, highways, flyovers, and numerous government buildings.
“If the court were to order the transfer of the land back to SESB, it would result not only in the estate gaining ownership of the land, but also of all the public buildings and infrastructure constructed there.
“As the legal proprietor, the estate could lawfully exclude the public from entering the area, including the buildings and roads, or even fence off the land and impose charges for access,” Justice Lee said.
Meanwhile, in his supporting judgment, Justice Wan Ahmad Farid said the High Court judge who ordered for the land to be returned to SESB in August last year had made an appealable error that warranted the appellate court's intervention.
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"The learned judge should not have made an order for the impugned land to be transferred and registered in the name of Semantan Estate when there was no such order stated in the sealed copy of the order dated Dec 29, 2009 by Judicial Commissioner Zura Yahya, nor was there any clarification sought by SESB at the material time before the learned JC.
"The transfer order is therefore set aside," he said.
SESB's lawyer Cyrus Das told the reporters that the company would be appealing today's decision at the Federal Court.
"We will be filing questions of law to obtain leave from the apex court for the appeal," he said.
On Aug 7 last year, High Court judge Justice Ahmad Shahrir Mohd Salleh ordered the government to transfer the land to SESB after allowing the company's originating summons against the Federal Territory of Kuala Lumpur Land Registrar.
The judge also ordered the Land Registrar to fulfil the required conditions within three months and instructed the government to pay RM50,000 in costs.
Additionally, the judge instructed the Land Registrar to register SESB as the proprietor of the land, finalise all transfer documentation, and issue the land title documents in the plaintiff's name, free from any encumbrances or liabilities.
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The government and the Land Registrar then filed an appeal against the High Court's decision at the Court of Appeal.
In 2003, SESB filed a civil lawsuit against the government, alleging encroachment due to illegal acquisition of the land.
In 2009, JC Zura ruled that SESB had retained its beneficial interest in the land, declaring the government’s action as trespass.
The government subsequently filed an appeal, but it was struck out on May 18, 2012.
The Federal Court denied the government’s application for leave to appeal on Nov 21, 2012, and in 2018, it dismissed an application for a review of the previous decision.
