GOH BENG HOCK v Pentadbir Tanah dan Daerah PENCELAH West Coast Expressway Sdn Bhd

Case Significance

Reinforces, in a parallel land reference, that the procedural and time requirements of section 38 of the Land Acquisition Act 1960 are mandatory jurisdictional pre-conditions: a reference that fails to comply with section 38(5) is struck out, the mandatory construction of 'shall' serving the regime's need for certainty and finality.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Indra Nehru Savandiah, is a companion land-reference matter raising the same jurisdictional point about compliance with the time framework in the Land Acquisition Act 1960. The applicant, a landowner whose land in the District of Klang had been compulsorily acquired, had referred the compensation dispute to the High Court; the respondent was the Land Administrator, and West Coast Expressway Sdn Bhd (WCE), the beneficiary of the acquisition, appeared as an interested party. As in the related reference, WCE applied to strike out the proceeding for non-compliance with section 38(5) of the Land Acquisition Act 1960, putting in issue whether the word "shall" in section 38(2) and (3) was mandatory or directory and its effect on the court's jurisdiction under section 38(5).

The court struck out the reference. It held that the word "shall" in the relevant provisions of section 38 imposes mandatory requirements, so that adherence to the statutory scheme is a condition of the court's jurisdiction to entertain a land reference, and that the applicant's failure to comply with section 38(5) was fatal to the proceeding. It emphasised the policy underlying the regime — the need for certainty and finality in land-reference proceedings, and the avoidance of excessive delays that would significantly burden the paymaster liable to pay compensation — and reasoned that a directory construction would defeat that policy. Having found the reference non-compliant, the court struck it out with costs of RM1,000. As in the parallel matter it decided at the same time, the court treated the defect as jurisdictional and therefore incurable, holding that it had no discretion to overlook a failure to satisfy the statutory pre-conditions to a valid reference. The judgment reinforces, in a parallel factual setting, that the procedural and time requirements of section 38 of the Land Acquisition Act 1960 are mandatory jurisdictional pre-conditions, and that a reference which does not meet them cannot be entertained.