This article first appeared in The Edge Financial Daily on May 24, 2019

KUALALUMPUR: The High Court in Melaka yesterday granted Sime Darby Plantation Bhd (SDP) leave to challenge the compulsory acquisition of its land at below market price by a Taiwan-controlled company that claimed it was acting in the interests of the former Yang di- Pertuan Agong, Sultan Muhammad V.

Justice Datuk Ahmad Nasfy Yasin also granted a stay of all proceedings until the disposal of the full hearing of the judicial review filed by SDP with regard to the acquisition of the 75ha in Merlimau for RM35.282 million.

The Attorney-General’s (AG) Chambers had notified SDP’s lawyers (from Messrs Lee Hishammuddin Allen & Gledhill), that it would not be objecting to leave being granted, SDP’s lawyer Rosli Dahlan told The Edge Financial Daily.

However, the obstacle for SDP to gain leave came from GI A Resources Sdn Bhd, whose lawyers David Matthews and David Lee (from Messrs Steven Thiru & Sudhar Partnership) argued that SDP’s application was filed out of time and that the issue was non-justiciable as it involves the former king and the palace.

Rosli said SDP told Justice Datuk Ahmad Nasfy that the government-linked corporation was within time of filing the action as the award was made on March 27 and that Form H (written notice of the award of compensation by the land administrator to the affected party) was served on the company on May 2.

“So clearly, SDP was well within the 90-day period to file the challenge,” said Rosli.

“GI A Resources’ assertion is highly misconceived. Neither Istana Negara nor the YDPA (the Yang di-Pertuan Agong) is a party to this action. The action is against the Melaka government, the state land and mines department, and the Jasin District Land Office, as respondents in the application whom SDP alleged had conspired with GI A Resources to forfeit its land for a foreign interest,” added Rosli.

The judicial review application was first reported by The Edge Financial Daily on April 30. SDP, which is majority owned by the Employees Provident Fund and Permodalan Nasional Bhd, had subsequently related the filing of its legal action in a Bursa Malaysia filing.

SDP head of land management Mohd Razlan Mohd Rahim had in an affidavit dated May 10 accused the Jasin District Land Office of proceeding to facilitate the compulsory acquisition of the land by issuing Form H.

The form was issued just three days after SDP filed its application on April 29.

Rosli had told the court yesterday that GI A Resources’ “sudden appearance in court amounted to an ambush by this foreign-owned company who never gave us notice”.

“It is a clear attempt to prevent this matter from being ventilated in court. It is surprising that this foreign interest is strongly contesting this judicial review application whereas the AG’s Chambers has already indicated that they have no objection.

“The stand taken by the AG’s Chambers is commendable as it shows that it, being the government’s legal adviser, will not condone administrative misconduct by state officers, state agencies and state government,” he said.

Leave for judicial review applications is usually an ex-parte matter without the other side contesting, but in some cases the opposing side does make its appearance.

SDP in its judicial review application, claimed it had written to Melaka Chief Minister Adly Zahari several times — specifically on Oct 29, Nov 13, and March 25 this year — to appeal against the state-compelled acquisition. But there has been no reply from Adly’s office.

Hence, SDP said it was forced to file the court application with the hope of gaining leave for the full merits of its application to be heard, with the aim of quashing the acquisition.

Mohd Razlan, in his affidavit, claimed that GI A Resources had failed to clearly state the purpose of the acquisition, which he said is an anomaly under the Land Acquisition Act 1960.

He noted that GI A Resources only said the land would be used for a proposed “Bandar Pendidikan Bestari” mixed development.

“The Jasin District Land Office had, on March 27, 2019, granted an oral award of RM35.282 million [for this compulsory acquisition] but this value does not represent the market value of the said land,” he said in the affidavit, adding that the land also has historic value, as it has a 66-year-old colonial bungalow erected on it that is used for estate management purposes.