Duta enclave: Govt says Semantan Estate is not entitled to recovery of land, only compensation

• Senior Federal Counsel (SFC) Shamsul Bolhassan told a three-member bench led by Datuk Lee Swee Seng that this in accordance with Section 29(1)(b) of the Government Proceedings Act 1956 (GPA).

PUTRAJAYA (Feb 20): The Federal Territory Land Registrar and the government told the Court of Appeal on Thursday that Semantan Estate (1952) Sdn Bhd is not entitled to the recovery of the 263.272 acres of prime Kuala Lumpur land known as the "Duta enclave", but it is entitled to receive compensation.

Senior Federal Counsel (SFC) Shamsul Bolhassan told a three-member bench led by Datuk Lee Swee Seng that this in accordance with Section 29(1)(b) of the Government Proceedings Act 1956 (GPA).

“However, based on Article 13 of the Federal Constitution, the company is entitled to compensation, based on the value of the land at the time of acquisition in 1956,” the SFC said.

Section 29 of the GPA on nature of relief stipulates that in any proceedings against the government for the recovery of land or other property, the court shall not make an order for the recovery of the land or the delivery of the property, but may, in lieu thereof, make an order declaring that the plaintiff is entitled as against the government to the land or property or to the possession thereof.

Shamsul further said that based on this, the court cannot make a declaration for the return of the land title.

However, as with the High Court decision in 2009, which was upheld by the Federal Court, Shamsul said that the court could make an order of mesne profit be assessed.

A mesne profit is a sum expected to be paid by someone or the government for wrongfully occupying property of the rightful owner.

However, Shamsul said that the calculation for the mesne profit order should end on the day the Court of Appeal makes the order on the compensation.

Shamsul said the court should act within the 2009 High Court order, and based on the GPA, the company is not entitled to get back the land.

He further said that the presence of the government buildings on the land has also made it impossible for the land to be returned, as ruled by the High Court in 2021, when it rejected Semantan Estate’s judicial review.

In 2021, then-High Court judge Datuk Ahmad Kamal Md Shahid (now a Court of Appeal judge) had dismissed Semantan Estate’s judicial review application to compel the government to revert possession of the land back to the company, despite the High Court, Court of Appeal, and Federal Court’s ruling that the government had trespassed on the land.

The High Court argued that the presence of the government buildings as a reason for the dismissal.

2009 decision only declaratory, not to re-register

This led to Lee and Datuk Wan Ahmad Farid Wan Salleh, another member of the bench, to question the government’s counsel on what the appellate bench was to do with the 2009 decision by the High Court, and affirmed further by the Federal Court, that the government had trespassed and that the land acquisition was illegal.

The government’s legal officer said that the 2009 High Court and Federal Court decisions were declaratory rather than executory.

“Semantan [Estate] retained its beneficial interest in the 263.272 acres of the land in Mukim Batu of which the government had taken unlawful possession.

“The government maintains that the 2009 High Court order did not impose any positive obligation on, or any executable orders against, the government. To be specific, there are no orders directing the Registrar of Titles to re-register the titles back to Semantan [Estate],” he said.

Can the appellate court determine mesne damages or is it for the High Court to decide?

When asked by the appellate bench whether this court could directly assess the mesne damages or compensation, Shamsul said the compensation can be assessed by this court following Section 69 of the Courts of Judicature Act, which empowers the court to do so.

Another SFC, however, told the appellate bench that Semantan Estate would only be entitled to mesne profit until 2009 and not beyond that, following the 2009 court order.

However, Lee and Wan Ahmad Farid questioned whether this would mean that the government buildings that continued to occupy the land from 2009 till today would be getting free rental for those properties.

This led Lee to call for a short recess, and the judge asked Shamsul and the government counsels to properly coordinate submission.

The mesne profit is still pending before the High Court, and it is being handled by another team of SFCs, as it is facing continued hearing.

At the High Court hearing, the Semantan valuers had told the court that they estimated the mesne profit to be between RM3.1 billion and RM12 billion on calculations based on simple and compounding interests, while the government’s valuation of the land, as testified by the Valuation Department, was RM290 million.

During the 1956 acquisition, Semantan Estate was only paid RM1.3 million compensation for the land, which the Land Commissioner had ruled in 1958 that the acquisition and compensation was insufficient.

It was previously reported that the previous government under then-prime minister Tan Sri Muhyiddin Yassin had offered a compensation of RM5 billion to settle the pre-Merdeka dispute, as this was raised by Kota Bharu MP Datuk Takiyuddin Hassan who was the de-facto Law minister then.

However, the present leadership under Prime Minister Datuk Seri Anwar Ibrahim had rejected the sum, and hence the ongoing and long-standing pre-Merdeka dispute will likely have to be settled by the court.

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