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Company loses final bid for compensation for re-entry of land

0 month ago, 09-Apr-2021

The counsel argued that under Article 13 of the Federal Constitution, KWD was entitled to compensation as the re-entry was unlawful.

KUCHING (April 9): The Federal Court yesterday dismissed an appeal by Kuching Waterfront Development Sdn Bhd (KWD) for compensation for land which the company claimed was unlawfully re-entered by the state government for failing to resume works on the construction of the proposed Jade Hotel.

The land, Lot 276 Section 48 Kuching Town Land District, is where the Astana Wing of Riverside Majestic Hotel is now built.

A three-member bench comprising Justices Dato Sri Zawawi Mohd Salleh, Dato Mary Lim Thiam Suan and Dato Rhodzariah Bujang ruled that although an unlawful entry of land by the government would allow a land owner to claim compensation, in this case, KWD was not entitled to compensation because it had pursued the specific remedy provided by Section 33A(6) of the Land Code, by petitioning to the State Cabinet who had agreed to return the land to KWD.

KWD however was not able to fulfil the condition imposed by furnishing security deposit for the completion of Jade Hotel within five years and thus lost its land.

The company had in 1991 obtained approval from Kuching North City Commission (DBKU) to build the 18-storey Jade Hotel.

Construction works started and excavation for a three-storey basement car park was carried out, but works were abandoned and the excavated pit was left exposed and filled with water and debris, becoming a public nuisance.

KWD was issued notice by the Land and Survey Department Kuching Superintendent in 1995 to resume works but failed to do so.

Ten years later in 2005, two further notices were issued requiring KWD to recommence construction works.

The Superintendent found that there was no resumption of works but only de-watering of the site had taken place.

On Feb 13, 2013, the land was re-entered and became state land.

Upon petitioning to the State Cabinet, the government agreed to allow ownership of the land to be restored to KWD subject to a security deposit of RM12,788,941 be lodged with DBKU for completion of Jade Hotel.

KWD did not provide the security deposit and lost the opportunity to reclaim the land, which was then auctioned and sold by the state government to Sarawak Economic Development Corporation (SEDC).

The company then sued the Superintendent and the state government for unlawful entry of the land and sought for compensation.

The High Court at the time ruled that the re-entry was unlawful, null and void and awarded a sum of RM11,430,640 being the value of the land to KWD.

However, the Court of Appeal set aside the High Courts decision on Jan 23, 2018, leading to KWD to appeal to the Federal Court to restore the High Courts judgment.

Lawyer Tan Thiam Teck, appearing for KWD, told the Federal Court that KWD was deprived of the land by the governments unlawful entry and forfeiture of the land.

The counsel argued that under Article 13 of the Federal Constitution, KWD was entitled to compensation as the re-entry was unlawful.

State Legal Counsel Dato Sri JC Fong replied that following the re-entry and forfeiture of the land, KWD had petitioned the State Cabinet against the re-entry.

The State Cabinet agreed to restore ownership of the land to KWD subject to KWD furnishing a security to ensure that the construction of Jade Hotel would be completed within five years upon return of the land to KWD.

As KWD failed to provide the security deposit, KWD lost the land. It was not the government who deprived KWD of the land, said Fong.

Company loses final bid for compensation for re-entry of land Borneo Post Online.





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