SEPTEMBER 13 — The following facts appeared in the judgment of Judicial Commissioner Gan Techiong in the case of KL City Gateway Sdn Bhd (Dikenali sebelum ini sebagai Ritzy Gloss Sdn Bhd) v Md Shafie bin Dikir & Ors dated April 28.

Sometime in 2016, the KL City Gateway Sdn Bhd (formerly known as Ritzy Gloss Sdn Bhd) (the Plaintiff) was invited by Persatuan Pemilik Hartanah Kampung Sungai Baru (PPHKSB) to redevelop properties located in Kampung Sungai Baru, Kuala Lumpur, in line with an urban renewal policy announced by the Ministry of Federal Territories, through Perbadanan Perkampungan Kampong Baru (PPKB).

The redevelopment project (the Project) is to redevelop the land on which 64 old terrace houses and 264 dilapidated flats stand.

Proposals were made for those property owners to enter into a joint venture agreement (JVA) whereby the owners and/or beneficiaries of the estates of deceased owners, would vacate their respective unit and authorise the Plaintiff to redevelop the land.

In consideration thereof, they would receive, inter alia, new apartments with essential facilities and infrastructure, as well as monetary compensation.

Apparently, the owners of 27 out of the 64 terrace houses and 192 out of the 264 flats signed the JVA. According to the Plaintiff, since the majority support the Project, the Government decided to approve the Project.

It was decided that the Land Acquisition Act 1960 (LAA) would be used to acquire those units belonging to owners who declined to enter into the JVA, by paying them compensation based on market price – in compliance with the said Act.

The Plaintiff further said it had fully paid compensation, through the office of the Land Administrator (LA), to the owners of 37 terrace houses and 72 flats – that is, those who declined to enter into the JVA. The compensation paid was pursuant to the Notices of Awards (Form H) issued by the LA under the LAA.

The land acquisition proceedings having been fully completed, with payment of compensation to the owners of houses having been made and the flats acquired, the LA issued Form K for formal possession of the land, following which the Plaintiff was alienated with those acquired lands by the issuance of 26 new titles.

Consequently, the Plaintiff became, and remains as, the registered proprietor of the 26 lots.

The 26 lots are within Section 41, Bandar Kuala Lumpur, District of Kuala Lumpur, Federal Territory of Kuala Lumpur.

The Plaintiff’s stand in its action commenced by way of an Originating Summons (OS) is straightforward: having performed its part of the JVA, paid full compensation as awarded by the LA and being issued with new land titles, the Plaintiff expects to be able to evict all the occupiers of the 26 lots (Plaintiff’s Land).

There were 179 Defendants in the action, 178 of whom were specifically named. The 179th Respondent was stated as: “TIAP- TIAP ORANG LAIN YANG MENDUDUKI HARTANAH- HARTANAH TERSEBUT”.

Only 23 out of the 178 Defendants had solicitors to oppose the Plaintiff’s OS, occupying 17 out of the 26 lots of the Plaintiff’s Land.

The learned judge had earlier decided in favour of the Plaintiff – that a registered proprietor of land may apply under Order 89 of the Rules of Court 2012 to evict occupiers of land who had received payment of compensation pursuant to the Land Acquisition Act 1960.

The learned judge made a finding that the Defendants are persons who are remaining in occupation of the Plaintiff’s Land without the consent or licence of the Plaintiff or its predecessor-in-title.

Accordingly, the Court ordered for vacant possession to be delivered within 60 days from the date of decision.

The Defendants sought a stay of the eviction order. The Plaintiff objected to the stay application, asserting that there were no special circumstances to justify a stay order, and that the Plaintiff should not be deprived of its rights to commence development of the Plaintiff’s land without delay.

In his decision, the learned judge said as follows:

“Even though I have found that the Defendants have no right to continue to occupy the Plaintiff’s Land, I am of the view that this Court should not ‘shut out’ the Defendants completely, and a short stay for a fixed period would be justified. I hold this view because my decision to allow the Plaintiff’s substantive application was based primarily on my interpretation of Order 89 Rules of Court 2012 and Section 18 of the Land Acquisition Act 1960 – and not just on finding of facts.

“Even though it is my humble view that I have construed the law accurately and applied it to the facts of this case correctly, I must bear in mind that the Court of Appeal has the power to overrule my decision.

“Order 89 rule 6(3) Rules ot Court 2012 empowers this Court to fix the time for the Defendants to vacate the Plaintiff’s Land. I had earlier fixed 60 days from the date of the eviction order. Obviously, the period of 60 days has not been sufficient for the Defendants to vacate, especially when the Plaintiff had erected a zinc barrier barring the Defendants from accessing their homes – which would bar them from moving out their belongings.

“I … rely on Order 45 rule 11 Rules of Court 2012 to grant a stay for a fixed period of only one month. The said rule empowers this Court to consider matters which have occurred since the date ot the order – which in this case was the Applicant’s act of erecting the zinc barrier which prevented the Respondents from having access to their homes before the expiry of the 60 days period stipulated in this Court’s earlier order.

“[In conclusion], I decided that it would be fair to dismiss the Defendants’ application for a stay until the disposal of their appeal to the Court of Appeal [and] to order a stay for a fixed period, to be in force for one month until 28th May 2025 — so as to give the Defendants sufficient time to try to apply for a stay at the Court of Appeal and/or to find new homes to relocate themselves and move out of the Plaintiff’s Land.”

For the records, the land acquisition was made pursuant to a declaration under Section 8 of the LAA vide Gazette Notification No. 9412 dated June 21, 2021.

Don’t the facts above speak for themselves, or are we influenced not by facts but by our interpretation of the facts?

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.