High Court Strikes Out Civil Suit against SUKE Expressway Concessionaire

On 7 March 2023, the Kuala Lumpur High Court struck out a civil suit against the concessionaire of the SUKE Expressway, Projek Lintasan SUKE (“PLSUKE”).1 The civil suit related to a portion of land which had been compulsorily acquired for the construction of the SUKE Expressway pursuant to the Land Acquisition Act 1960 (“LAA”).
Background Facts
The recently launched SUKE Expressway is a 24.4km, three-lane, dual-carriage expressway running from Sri Petaling to Ulu Kelang which significantly reduces traffic congestion in parts of Kuala Lumpur. It is considered to be one of the most complex elevated expressways ever built in Malaysia.
In February 2016, by way of a declaration of intended acquisition pursuant to the LAA, it was declared that a portion of the plaintiff’s land was intended for compulsory acquisition for the construction of the SUKE Expressway.
Following lengthy land enquiry proceedings, in January 2018 a notice of award was issued which awarded the plaintiff the sum of approximately RM46.7 million in compensation for the compulsory acquisition of a portion of the plaintiff’s land (“the Acquired Land”). The plaintiff accepted the award without commencing land reference proceedings to challenge the amount of compensation or judicial review proceedings to challenge the legality of the acquisition.
The Plaintiff’s Civil Suit
In May 2022, shortly before the construction of the SUKE Expressway was completed, the plaintiff filed a civil suit against the Director of Lands and Mines Selangor, the Chief Minister of Selangor, the Land Administrator for the District of Hulu Langat, the Malaysian Highway Authority and PLSUKE to challenge the legality of the land acquisition.
The crux of the plaintiff’s civil suit was that the Acquired Land, which the SUKE Expressway had been built over, included part of a small building owned by the plaintiff which contained a water reticulation underground suction room tank which the plaintiff’s tenant used to pump water to a nearby shopping centre (“Pump House”).
In this regard, the plaintiff relied on Section 34 of the LAA which states inter alia that the LAA shall not apply for the purpose of acquiring part of a building if:
(a) such part is reasonably required for the full and unimpaired use of the building; or
(b) the person interested in such building desires that the whole thereof shall be acquired.
Based on the above provision, the plaintiff sought, amongst others, a declaration that the land acquisition had been unlawful given that it had acquired part of the plaintiff’s Pump House. In the alternative, the plaintiff sought an order that the defendants take the necessary action to acquire the portion of the plaintiff’s land which included the whole of the Pump House.
PLSUKE’s Striking Out Application
All five defendants filed striking out applications against the plaintiff’s civil suit.
In the case of PLSUKE, the primary contention in support of its striking out application relied on Section 68 of the LAA which states that no suit shall be brought to set aside an award or apportionment under the LAA.
PLSUKE submitted that the plaintiff was statutorily barred from filing a civil suit to challenge the legality of the land acquisition and instead ought to have commenced judicial review proceedings within three months from the issuance of the notice of award. However, the plaintiff had failed to proceed by way of the proper procedure or within the prescribed time limit. Moreover, the plaintiff had failed to raise any objections regarding the Pump House during the land enquiry proceedings and it was too late for such a challenge to now be raised.
PLSUKE further averred that the plaintiff did not have any cause of action against PLSUKE because PLSUKE was merely responsible for the construction of the SUKE Expressway and had neither acquired the land nor administered the acquisition of the land. 
High Court’s Decision
On 7 March 2023, the High Court struck out the plaintiff’s civil suit against PLSUKE. The High Court’s decision serves as a reminder that when a decision is made by a public body which involves sufficient public law elements, as is typically the case with compulsory land acquisition under the LAA, any party seeking relief against such a decision is generally constrained to proceed by way of the judicial review procedure and ought to abide by the three-month time limit required for the same. 
Note: The High Court will render its decision on the striking out applications by the other four defendants on 25 May 2023.
PLSUKE was represented by our Partners Loshini Ramarmuty and Tatvaruban Subramaniam, and our Senior Associate Eric Gabriel Gomez. 

1 Destar Nurani (M) Sdn Bhd v Director of Lands and Mines Selangor and Others (Kuala Lumpur High Court Case WA-24NCvC-1358-05/2022).

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