Teng Fuh Holdings Pte Ltd v Collector of Land Revenue

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong J
• Judgment Date: 16 June 2006
• Neutral Citation: [2006] SGHC 93
• Date: 16 June 2006
• Subject Matter: Administrative Law,Plaintiff alleging acquisition made in bad faith,Whether plaintiff proving prima facie case of reasonable suspicion that bad faith existing,Whether satisfactory reason for plaintiff's delay in making application existing,Ambit,Plaintiff compensated for acquisition of land and continuing to occupy land as licensee after acquisition,Plaintiff's land compulsorily acquired for "public purpose" under s 5(1) Land Acquisition Act,Whether conclusive evidence provision in s 5(3) of Land Acquisition Act precluding court from questioning decision of government authority,Sections 5(1), 5(3) Land Acquisition Act (Cap 152, 1985 Rev Ed),Judicial review,Plaintiff seeking leave to apply for certiorari and mandamus 22 years after acquisition of land,Plaintiff challenging bona fides of acquisition,Compulsory acquisitions,Subsequent change in purpose of land,Civil Procedure,Section 5(1) Land Acquisition Act (Cap 152, 1985 Rev Ed),Order 53 r 1(6) Rules of Court (Cap 322, R 5, 2004 Rev Ed),Delay,Plaintiff's land compulsorily acquired,Whether plaintiff's application made out of time,Land
• Docket Number: Originating Summons No 1379 of 2005
• Published date: 20 June 2006
• Defendant Counsel: Eric Chin Sze Choong and Ho Su Ching (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Plaintiff Counsel: Zaheer Merchant and Sophine Chin (Madhavan Partnership)

16 June 2006

Andrew Phang Boon Leong J:

Introduction and background

1 The present proceedings concerned an application for leave to be granted to the plaintiff to apply for an order of certiorari as well as for an order of mandamus. I held that leave could not be granted because the plaintiff had not made its application within three months after the date of the proceeding as set out in O 53 r 1(6) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed), and that no satisfactory reason had been tendered by the plaintiff for such a delay. On this ground alone, the application had to be dismissed. Nevertheless, I further held that, in any event, the plaintiff had not satisfied the very low threshold for leave to be granted as established in the case law. It was clear that the power of acquisition was exercised by the defendant in good faith and in accordance with the relevant requirements stipulated in s 5 of the Land Acquisition Act (Cap 152, 1985 Rev Ed) (“the Act”). The plaintiff has appealed against my decision. I now set out the detailed grounds for my decision.

2 As is customary, a brief rendition of the factual backdrop is not only appropriate but also important.

3 The plaintiff was, until 26 February 1983, the owner of the land and property thereon situated at Mukim 25 Lots 498, 348 and 350 at 20–22 Geylang Road (“the land”). The land was gazetted for acquisition under s 5 of the Act and the declaration to this effect was published in the Government Gazette of 26 February 1983 (GN No 638/1983). In the declaration itself, it was stated that the land was “needed for a public purpose, viz.: General Redevelopment”. This was some 22 years ago. Compensation was in fact awarded to the plaintiff based on the market value of the land as at 30 November 1973.

4 The main bone of contention, in so far as the plaintiff is concerned, is that the land has, as the plaintiff in its statement to the originating summons filed says, “been left in substantially its original physical condition and has been licensed by the Respondent to the Applicants for the Applicants’ occupation and use vide a license [sic] agreement in writing and renewed periodically”; indeed, “[t]he licence has continued to date since the compulsory acquisition of the land”. What is of interest in this regard is that the plaintiff actually continued in occupation of the land as a licensee throughout the 22-year period. It also had the use of the compensation referred to in the preceding paragraph during this entire period. As we shall see, it is prepared to return these moneys in return for the land. What it did not highlight in its application was the fact that the present market value of the land is far in excess of the original compensation it had received. It was only after a query by the court that it was revealed by the plaintiff that, even based on a rough desktop calculation, the present market value of the land was extremely high indeed. This is not surprising, given both the intense scarcity of land in Singapore (which is, incidentally, why the Act was promulgated in the first instance), coupled with the remarkable economic growth that has taken place in Singapore during the interim period which has contributed to soaring land values.

5 I should add that the plaintiff was no babe in the woods. It is an established company with considerable experience in property transactions. All these facts – and more, as we shall see – are of great relevance in so far as the present proceedings are concerned, especially since the plaintiff has alleged, time and again, ultra vires conduct as well as bad faith on the part of the defendant throughout the present proceedings and has sought to portray itself as an individual who has been treated most unfairly and unjustly. Indeed, these last-mentioned allegations are serious ones and must be addressed by the court whose task is, indeed, to ensure that justice and fairness is in fact achieved – in particular, to ensure that there is no abuse of power by the relevant government authorities (here, the Collector of Land Revenue, Singapore). Any abuse of governmental power cannot – indeed, must not – be tolerated; it must be ferreted out and eradicated forthwith if the very idea as well as ideal of the rule of law is not to be undermined. Quite apart from the fact that any such abuse is inherently repugnant to the very concept as well as (more importantly) practice of justice and morality itself, any such undermining would have serious and inimical implications on much broader national as well as international levels. Indeed, as we shall see, the plaintiff’s task in the present proceedings was especially straightforward. This was an application for leave to apply for the orders concerned and, as I shall point out below, entailed a relatively low standard of proof on the part of the plaintiff.

6 Returning to the particulars in the present application, some 22 years after the original acquisition of the land, the plaintiff filed, on 30 September 2005, an ex parte originating summons for the following orders.

7 The first order sought, contained in prayer 1, was that:

The Applicants be granted leave of Court to apply for an Order of Certiorari to quash the Declaration in the Gazette whereby the Applicants’ land in the Gazette was compulsorily acquired for the “public purpose viz. General Redevelopment”.

8 The second order sought, contained in prayer 2, was that:

The Applicants be granted leave to apply for an Order of Mandamus directing the Respondent does [sic] convey, transfer and/or otherwise do all things necessary to return the land to the Applicants in consideration of the refund and/or repayment or payment by the Applicants to the Respondent of the monies received as compensation for the said acquisition and/or for a declaration that the acquisition be declared void and/or invalid and/or illegal and/or of no effect and/or as if the said acquisition had not taken place in consideration of the aforesaid (as applicable).

9 The third order sought, contained in prayer 3, was for:

[S]uch further or other orders and directions pursuant to the Order(s) aforesaid, including but not limited to such consequential orders for the rectification of the Registry of Deeds to reflect the conveyance and transfer of the land to the Applicants, consideration to be furnished and gazetting of the land to give effect to the aforesaid relief sought as necessary, be granted or made as the Honourable Court deems fit and/or just.

10 As I have already mentioned, this application was one for leave to apply for the orders referred to above. The standard of proof, as I have also alluded to above, was not one that would be required if this were the actual substantive hearing itself. The legal principles applicable in proceedings such as the present are well established. However, I need to consider, first, a no less important threshold issue – was the application for leave in the present proceedings out of time in the first instance?

Was the application out of time?

11 As alluded to at the outset of this judgment, the operative provision is O 53 r 1(6) of the Rules of Court. Order 53 r 1 is reproduced in full to place the aforesaid provision in context, as follows:

No application for order of mandamus, etc., without leave (O. 53, r. 1)

1.—(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave to make such an application has been granted in accordance with this Rule.

(2) An application for such leave must be made by ex parte originating summons and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by an affidavit, to be filed when the application is made, verifying the facts relied on.

(3) The applicant must serve the ex parte originating summons, the statement and the supporting affidavit not later than the preceding day on the Attorney-General’s Chambers.

(4) The Judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit.

(5) The grant of leave under this Rule to apply for an order of prohibition or an order of certiorari shall, if the Judge so directs, operate as a stay of the proceedings in question until the determination of the application or until the Judge otherwise orders.

(6) Notwithstanding the foregoing, leave shall not be granted to apply for an order of certiorarito remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made within 3 months after the date of the proceeding or such other period (if any) as may be prescribed by any written law or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Judge to whom the application for leave is made; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

[emphasis added]

12 Counsel for the plaintiff, Mr Zaheer Merchant, tendered a rather ingenious argument. I set out, at some length below, the relevant portion of the notes of evidence where this argument is embodied – both for accuracy as well as context:

Ct (Court): Move on to issue of delay?

PC (Plaintiff’s/ Applicant’s Counsel): The 3 month period runs from the time that we received notice from the Ministry of Law. Also, they have made reference to the licence agreement. Pg 35 of affidavit of Mr Lim Teng Neng – licence is a personal privilege. We have no interest as licensees and therefore there is no obligation or duty of the applicants to investigate the plans the authorities have for the land. It was only in September last year, upon realisation of these facts (that the change had taken place and that the land was now residential), that solicitors were...