Chen Lim Hoi @ Lim Quay Hwa v Pentadbir Tanah Daerah Kuala Langat PENCELAH West Coast Expressway Sdn Bhd

Case Significance

Illustrates the mandatory construction of the procedural requirements in section 38 of the Land Acquisition Act 1960: the word 'shall' is read as imposing jurisdictional pre-conditions, so a land reference that fails to comply with section 38(5) is liable to be struck out, the court emphasising certainty and finality in land-reference proceedings.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Indra Nehru Savandiah, concerns a challenge to the competence of a land-reference proceeding on the ground of non-compliance with the statutory time framework in the Land Acquisition Act 1960. The applicant, a landowner, had referred to the High Court a dispute arising from the compulsory acquisition of land in the District of Kuala Langat; the respondent was the Land Administrator, and West Coast Expressway Sdn Bhd (WCE), for whose benefit the acquisition had been made, appeared as an interested party. WCE applied to strike out the land reference for non-compliance with section 38(5) of the Land Acquisition Act 1960, the question being whether the requirements of section 38, and in particular the word "shall" in section 38(2) and (3), were to be construed as mandatory or merely directory, and how that bore on the court's jurisdiction under section 38(5).

The court struck out the land reference. It construed the word "shall" in the relevant provisions of section 38 as imposing mandatory requirements rather than directory ones, so that compliance with the statutory scheme for bringing a land reference before the court was a condition of the court's jurisdiction to entertain it. It reasoned that treating the time framework as merely directory would undermine the certainty and finality that the land-reference regime is designed to secure, and could lead to excessive delays that significantly burden the paymaster responsible for compensation. Because the reference had not complied with section 38(5), the court held it could not properly be entertained and struck it out with costs of RM1,000. The court treated the point as going to jurisdiction rather than to mere irregularity, so that the defect could not be cured or waived and the court had no discretion to overlook it. The judgment is a useful illustration of the mandatory construction of the time and procedural requirements in section 38 of the Land Acquisition Act 1960 as jurisdictional pre-conditions to a valid land reference.