On 24 June 2025, the Court of Appeal in
Semantan Estate (1952) Sdn Bhd v The Government of Malaysia and Ors (Civil Appeal No.: W-01(A)-668-11/2021) delivered its decision in respect of the ownership of 263.272 acres of prime land in Jalan Duta, Kuala Lumpur, better known as the Duta Enclave (“
Duta Enclave”). The Duta Enclave as many may know is home to the Federal Territory Mosque, the Institute of Islamic Understanding Malaysia, the National Archives, the Inland Revenue Office Complex, the National Hockey Stadium and several other government buildings and facilities which serve significant public purposes.
In 2009, the Kuala Lumpur High Court had determined that the Duta Enclave had been unlawfully acquired by the Government of Malaysia from Semantan Estate (1952) Sdn Bhd (“
SE”) back in 1956. Consequently, the Kuala Lumpur High Court declared that the Duta Enclave belonged to SE, and ordered mesne profits to be assessed.
In 2017, SE sought for the recovery and transfer of the Duta Enclave back to it. The legality and viability of its claim is the subject of the three appeals before the Court of Appeal here.
Ultimately, the Court of Appeal held that monetary compensation was a more appropriate remedy than compelling the authorities to transfer the Duta Enclave to SE. The Court of Appeal then remitted the matter back to the High Court and ordered that an assessment of compensation be conducted within 90 days, with the assistance of expert valuation reports.
The decision of the Court of Appeal is yet another twist in a dispute that dates back almost 70 years. This article considers the Court of Appeal’s decision and its approach in determining this matter.
Facts
This long-drawn saga relates to a land acquisition matter that can be traced back to pre-Merdeka when the country was still under British rule.
In 1956, the parties agreed for 250 acres of land in the Mukim of Batu to be acquired by the Selangor Government for a public purpose, to wit, a Diplomatic Enclave. However, parties clashed on the compensation sum to be paid. The Government paid RM 5,282 per acre, as determined by the Collector of Land Revenue. However, SE wanted RM 13,000 per acre.
Due to the impasse, SE referred the matter to the High Court by way of a land reference under the Land Acquisition Enactment
1. However, the High Court declined jurisdiction on the basis that there were procedural irregularities which parties could not waive
2. The procedural irregularity here was the difference between the land area and what was stated in the gazette notification.
On 3 December 1956, the Collector of Land Revenue took possession of the Duta Enclave with the title(s) being issued subsequently in the name of the Federal Lands Commissioner. Thereafter, the relevant authorities proceeded to build various government buildings and infrastructures in the Duta Enclave, thereby transforming the rubber estate into a thriving area.
In the early 1980s, SE applied for an order of
mandamus against the Collector of Land Revenue to complete the acquisition proceedings in accordance with the Land Acquisition Act 1960. SE’s application was eventually dismissed by the Supreme Court
3.
Subsequently in 1989, SE filed an action against the Government of Malaysia for trespass, claiming that (i) SE retained beneficial interest in the land; (ii) the taking of possession of the Duta Enclave was unlawful and wrongful; and (iii) it was entitled to mesne profits as damages for trespass. SE’s action was struck out by the High Court but was reinstated on appeal by the Supreme Court.
SE then filed a fresh writ action in 2003 on the same grounds, and succeeded. The High Court found that SE retained its beneficial interest in the Duta Enclave and was entitled as against the Government of Malaysia to possession thereof. The High Court also ordered mesne profits to be assessed for the trespass (“
2009 High Court Order”). The decision was affirmed on appeal by the Court of Appeal. The Government’s application for leave to appeal to the Federal Court was dismissed. An attempt to review the dismissal of the Federal Court leave application was also dismissed.
Thereafter, the consequential assessment of damages for mesne profits proceeded slowly and sporadically due to meetings being held between the parties to explore an amicable settlement. Ultimately, these negotiations did not bear fruit.
In an attempt to force the issue, SE, in early 2017, filed: (i) a Judicial Review for mandamus (“
Mandamus Application”) to compel the Government to transfer the Duta Enclave back to SE as a result of the 2009 High Court Order. The High Court dismissed the Mandamus Application in 2022 (“
2022 High Court Order”)
4; and (ii) an application against the Registrar of Titles (Federal Territory) (“
Registrar of Titles”) to transfer the title(s) to the Duta Enclave back to SE pursuant to section 417 of the National Land Code (“
NLC”) based on the 2009 High Court Order. The High Court granted an order for the transfer of the Duta Enclave back to SE as a necessary consequence of the 2009 High Court Order (“
2024 High Court Order”).
The Present Appeal before the Court of Appeal
The three appeals heard together before the Court of Appeal are as follows:
The Decision of the Court of Appeal
Issue 1: Whether the 2009 High Court Order, being a declarative order, is not amenable to a subsequent mandamus to compel the Government to transfer the Duta Enclave back to SE?
The Court of Appeal first considered that the 2009 High Court Order did not order the Government to transfer the Duta Enclave back to SE from the Federal Lands Commissioner. Accordingly, the Court of Appeal took the view that as there was no order for the transfer of the Duta Enclave to SE to begin with, an order for declaration cannot be executed as it is only declarative of the rights of the parties.
In support of this view, the Court of Appeal had considered the earlier Federal Court decision of
Takako Sakao v Ng Pek Yuen & Anor (No 3) [2010] 1 CLJ 429. The Court of Appeal held that a declarative order has limited utility in that it merely declares the rights or legal relationships between parties which is devoid of any sanction of specific performance. A declarative order like the 2009 High Court Order is thus not executable or enforceable by a subsequent
mandamus order.
Issue 2: Whether a mandamus to compel the Government to transfer the Duta Enclave back to SE is precluded by section 29(1)(b) of the GPA?
Section 29(1)(b) of the GPA provides 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.
By giving a literal interpretation to section 29(1)(b) of the GPA, the Court of Appeal found that there is distinction between the orders that may be made in proceedings by or against the Government as opposed to proceedings between the subjects. Insofar as the recovery of land is concerned (like in this case), the court cannot make an order for recovery of the land against the Government. Instead, the Court is limited only to declare that the land belongs to the claimant.
In doing so, the Court of Appeal found that there is a limit to the legal recourse available against the Government, even in this case where the delivery of land is concerned. This, the Court of Appeal found, was in line with the “
broader principle of administrative law that protects public entities from certain types of claims that could disrupt public administration and governmental functions”. This disruption would be clear here as any order for recovery and transfer granted here would result in the transfer of the building and infrastructure that form the Duta Enclave, including various government buildings housing various public facilities.
The Court of Appeal added that an order for recovery and transfer of the Duta Enclave would not just result in the transfer of ownership of the buildings and infrastructure erected on the land to SE but that SE as part of the incidents of proprietorship would be able to prevent the public from entering the land and the buildings thereon and from using the roads. SE would also be able to fence off the whole area and charge a licence fee for anyone wanting to pass through it.
The Court of Appeal acknowledged SE’s position that, if allowed by the law, SE wants the Government to transfer back the Duta Enclave to them and the Government may then acquire the same the next day at the current market value. However, the Court of Appeal was of the view that the based on various authorities
5 and a plain reading of section 29(1)(b) of the GPA, the law does not provide for an order for recovery of the Duta Enclave by way of a transfer back to SE. Therefore, the relief prayed for by SE, which resulted in the 2009 High Court Order, clearly abided with what was precluded and permitted under section 29(1)(b) of the GPA.
Issue 3: Whether section 29(1)(b) of the GPA should be read in tandem with Article 13 of the Federal Constitution such that there should be a proper assessment as to what is adequate compensation for the Duta Enclave acquired?
On this issue, the Court of Appeal at the outset took the view that whilst section 29(1)(b) of the GPA is silent on adequate compensation where land is concerned, it also does not prohibit adequate compensation from being payable to the party whose land could not be recovered and transferred back to them. This is consistent with the protection found in Article 13 of the Federal Constitution, read together with Article 162(6) of the Federal Constitution.
The Court of Appeal acknowledged that in this case, SE’s prayer for
mandamus to compel the Collector of Land Revenue to complete the acquisition process was dismissed in
Semantan Estate (1952) Sdn Bhd v Collector of Land Revenue Wilayah Persekutuan [1987] CLJ (Rep) 329. As such, the Court of Appeal found, in reality, SE had been actually deprived of the opportunity to challenge the compensation sum for the acquisition of the Duta Enclave. Accordingly, considering the preclusion in section 29(1)(b) of the GPA and the protection under Article 13 of the Federal Constitution, the Court of Appeal ordered an assessment of adequate compensation for the Duta Enclave acquired.
In coming to its view, the Court of Appeal duly considered the Government’s argument that: (i) if the 2009 High Court Order was to be interpreted as entitling SE to compensation
in lieu of the recovery of the Duta Enclave this would result in double recovery as SE had been granted mesne profits under the 2009 High Court Order; and (ii) as a result it would be unfair to the Government who never had the opportunity to put forward any evidence to address this compensation issue as the 2009 High Court Order was limited to mesne profits alone.
The Court of Appeal found that the Government’s concern was unfounded as there would be no double recovery as mesne profits, in the context of this matter, would be damages for unlawful occupation of the Duta Enclave. It will continue until full and fair compensation is paid to SE for the acquisition of the Duta Enclave. In simple terms, once SE receives full and fair compensation as envisaged under Article 13(2) of the Federal Constitution there will no longer be any unlawful occupation of the Duta Enclave to require the payment of mesne profits.
As to the Government’s concerns that it had not been able to put forward any evidence on the compensation issue, the Court of Appeal remitted the matter back to the High Court for assessment of compensation to be carried out.
Issue 4: Whether the compensation should be the market value as at the date the Government took possession of the Duta Enclave or the current market value?
On this issue, the Court of Appeal agreed with the Government’s argument that compensation is to be assessed as at the date the Government took possession of the Duta Enclave, i.e. the date SE was deprived of its possession of the Duta Enclave. Pursuant to section 44 of the Land Acquisition Enactment that date was 3 December 1956.
This was premised on the Court of Appeal’s finding that to have the compensation assessed as at the current date would be to reward delay on the part of SE as it only commenced this originating proceedings in 2003, and the Mandamus Application in 2017. There is no basis to suggest that SE would not have obtained similar reliefs as the 2009 High Court Order had it pursued a similar action back in 1956 or thereabouts. As such, any delay in obtaining any declarative orders by SE similar to the 2009 High Court Order was not in any way caused by the Government and the Government should not therefore be held responsible for the delay.
As there is already an on-going assessment exercise under the 2009 High Court Order where an order for assessment of mesne profit is being undertaken, the Court of Appeal dismissed the Mandamus Appeal and remitted the matter back to the High Court for assessment of adequate compensation as envisaged under the Land Acquisition Act 1960 taking into account the factors then prevailing in December 1956.
Issue 5: Whether the 2024 High Court Order should be set aside?
Given that the Court of Appeal dismissed the Mandamus Appeal, the Court of Appeal accordingly allowed the appeal of the Registrar of Land Titles in the section 417 NLC Appeal and set aside the 2024 High Court Order compelling the said Registrar to transfer the Duta Enclave back to SE. Accordingly, the Court of Appeal also dismissed the Stay Appeal of SE as well.
Conclusion
The Court of Appeal’s decision raises concerns about constitutional safeguards and the limits of property rights enforcement.
It is not difficult to see how it would be impractical for the Government, to return the Duta Enclave with the numerous significant government buildings and public infrastructures on it. However, the fact remains that if the land acquisition process is not validly completed, legal ownership of the Duta Enclave cannot pass, and the Government should incur the financial consequences as a result thereof. Instead it seems to be that even if there are a series of errors made by the Collector of Land Revenue in the land acquisition proceedings, landowners like SE are limited to monetary compensation.
Moving forward, it remains to be seen how the Court of Appeal’s decision will impact future similar cases that arise from botched land acquisitions. At the time this article is written, it has been reported that SE may file an application for leave to appeal to the Federal Court against the Court of Appeal’s decision. It would be interesting to see the questions to be answered by the Federal Court for this matter as there evidently seems to be a gap between legal rights and enforceable remedies arising from this matter.
Case note by Nimalan Devaraja (Partner) and Suhaib Ibrahim (Partner) of the Dispute Resolution Practice of Skrine.