Sofazaida Binti Shukor v Pengarah Tanah dan Galian Wilayah Persekutuan, Kuala Lumpur (WA-25-122-05/2025)

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HELNI BIN MOHD KAMIL ... APPLICANTS AND PEJABAT TANAH DAN GALIAN WILAYAH PERSEKUTUAN … RESPONDENT

This was an application by the Applicants pursuant to O. 53, r. 3(1) of the Rules of Court 2012 (‘RC 2012’) for leave to commence judicial review proceedings against the Respondent (‘leave application’) for, among others, an order of certiorari to quash the Respondent’s decision made on 29.3.2024 (‘said Decision’) in rejecting the Applicants’ application for the alienation of land pursuant to s 76 the National Land Code 1965 (‘NLC’) in relation to Lot 259, Jalan Haji Yahya Sheikh Ahmad, Seksyen 41, Kampung Bharu, Kuala Lumpur (‘Lot 259’).

The Attorney General (‘AG’) objected to the leave application on the ground that it was filed beyond the three months’ time frame as stipulated under O. 53, r. 3(6) of the RC 2012.

The Court had considered the cause papers and the Applicants’ and AG’s oral and written submissions and was of view that there were merits in the AG’s objection and therefore, on 15.12.2025, the objection was allowed. Consequently, the leave application was dismissed.

The Applicants are dissatisfied with the decision and a Notice of Appeal was filed on 13.1.2025.

These are my full grounds of judgment for the decision.

The background facts as can be gleaned from the Statement (encl. 2) are as follows.

The Applicants are the Administrators of the Estates of Halimah binti Mohamad Noor, Rahmah binti Haji Mohamed Noor, Mohd Kamil bin Haji M Nor and Ahmad Ismet Noor (‘Deceased’)

30.5.2018, 11.6.2018 and 30.5.2018, respectively.

The Deceased were the beneficial owner of the land listed in the Schedule of Assets and Liabilities which had been filed, known as Lot No. 1020-B, Section 41, Kampong Periok Jalan Raja Bot, Kuala Lumpur and bearing postal address Lot 259, Jalan Haji Yahya Sheikh Ahmad, Section 41, Kampung Bharu, Bandar Kuala Lumpur (‘said Land’).

The said Land is situated within the administrative area of the Malay Agricultural Settlement (M.A.S.), Kampong Bharu, Kuala Lumpur (‘LPMAS’).

LPMAS had confirmed that the last registered names recorded in the Settlement Register M.A.S. Kampong Bharu (Volume II: Folio 107) dated 10.2.1952 were in the names of the Deceased.

As the said Land has not been granted ownership, an application under Schedule 1 of the Federal Territory of Kuala Lumpur Land Rules 1995 was submitted by Messrs. Nur Syamiza Zainal & Partners through the e-Tanah WP Kuala Lumpur Public Portal on 27.9.2019 together with the required documents and payment of

The said application for grant of ownership was supported by certification issued by LPMAS relating to the chronology of beneficial ownership as verified and confirmed through documents issued from LPMAS’ own records.

However, the said application was rejected by the Respondent vide the letter dated 29.3.2024 (‘29.3.2024 Letter’).

The Applicants contacted LPMAS to obtain clarification on the status of the said application and were directed to another lot, namely Lot 2553, Section 41, Bandar Kuala Lumpur, which is an adjacent lot to the said Land that had already been granted ownership and registered on 30.3.2023.

Consequently, the Applicants appointed their solicitors to submit a letter of representation in order to obtain feedback and reasons for the rejection of the application for ownership of the said Land.

The Applicants’ solicitors sent a letter dated 26.2.2025 (‘26.2.2025 Letter’) to the Respondent but to date, there was no response by the Respondent.

The Applicants claimed that –

they were the heirs of the beneficial owner of the said Land and were entitled under the law to apply for the grant of ownership and registration of the said Land in accordance with the prescribed procedures;

their beneficial ownership was supported by records and/ or endorsements contained in the official records of LPMAS pursuant to the Malay Agricultural Settlement Rules 1950, namely Selangor Gazette Notice Nos. 505/51, 66/51 and 480/54, which govern land matters, planning and administration relating to Kampung Bharu;

the authority vested in LPMAS has never been repealed or revoked, nor has it been abolished under any existing law. Therefore, the information and records contained in the “Settlement Register” M.A.S. Kampong Bharu constitute valid records, capable of being implemented and registered for the purpose of determining beneficial ownership pursuant to the NLC; and

their application for grant of ownership was rejected and not considered by the Respondent vide the letter dated 29.3.2024 without providing any reasons, thereby depriving the Applicants of the opportunity to submit any appeal or representation.

The reliefs sought by the Applicants by way of the judicial review proceedings are as follows:

an order of certiorari to review and/ or quash the said Decision, particularly where there existed a similar application for the purpose of grant of ownership under s 76 of the NLC made for the same purpose, which application had been approved by the Respondent;

a declaration that the application for grant of ownership under s 76 of the NLC and/ or any existing statutory provisions by the heirs of the beneficial owner within the area administered by LPMAS is lawful, capable of being implemented and registrable under the provisions of the NLC, subject to all statutory requirements relating to the administration of the estate of the Deceased being complied with and duly obtained under the

a declaration that all information and/ or the latest endorsements contained in the records maintained by LPMAS constitute valid and lawful information for the purpose of determining beneficial ownership.

In Kelab Pembina-Pembina Selangor (Selangor Builders’ Club) v Ketua Pengarah Hasil Dalam Negeri [2025] MLJU 4674, this Court said: “24. The learned SFC had cited several case authorities which have expounded on the role of the AG and these may be summarised as follows:

under O. 53 of the RC 2012, the application for judicial review must be served on the AG because judicial review is a principal tool of public law applicable to public bodies. As the guardian of public interest, the AG is a nominal party in all judicial review applications. This is to ensure that the AG vets all judicial review applications in order to ascertain if his participation is warranted. The AG’s function is to safeguard public authorities or public institutions from unwarranted litigation and to deter ill-founded claims that might otherwise paralyse the administration of public functions. This role serves to balance access to judicial review with the need for efficient governance [see Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] 4 MLJ 656 (CA) and Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole proprietor) v Arifin bin Zakaria & Anor [2020] 5 MLJ 207 (CA)];

if the AG elects to appear at the leave stage, he does so, not as a representative of the respondent, but in his own right as the AG, in discharging his public duty [see Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 (FC)];

as the leave stage is not concerned with the merits of the judicial review application, the AG is not required under the law to file any affidavit in reply (‘AIR’). The AG’s role is to assist the court in sieving out frivolous applications by showing whether the applicant has an arguable case and has met the threshold for leave for judicial review as explicated by the Court of Appeal in Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 as follows: “[33] A court hearing a judicial review application must determine whether ‘prima facie there is a genuine case for review’. It is accepted that the threshold requirement is low, for leave will only be refused where an application is:

frivolous and vexatious or hopeless;

made by busybodies with misguided or trivial complaints of administrative errors;

misconceived;

unarguable or groundless;

where there is a more appropriate alternative procedure; or

where an application for judicial review is an inappropriate procedure.” (see too, Peguam Negara Malaysia v Chin Chee

if, for instance, the applicant is a busybody; the application is made out of time or against a person or body that is immunised from being impleaded in legal proceedings; or the subject matter of the review is one which by settled law is non-justiciable, and the court is satisfied that the threshold is not met, the application for leave should be refused and dismissed in limine [see Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 (CA)].”.

The AG’s role at the leave stage of judicial review is not to defend the said Decision but rather to ensure that the threshold criteria for judicial review are met. The AG’s involvement does not create an obligation to contest or verify evidence; it merely grants the AG a procedural right to be heard in determining whether the threshold for leave has been met.

The relevant provision in the determination of the leave application is O. 53 of the RC 2012 which reads as follows: “Leave (O. 53, r. 3)

(1) An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule.

An application for leave must be made ex parte to a Judge in Chambers 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 affidavits verifying the facts relied on.

The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General’s Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits.

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

The grant of leave under this rule shall not, unless the Judge so directs, operate as a stay of the proceedings in question.

An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.

The Court may, upon an application, extend the time specified in rule 3(6) if it considers that there is a good reason for doing so.

An application to extend time must be served on all respondents and shall be heard inter partes.”.

Apart from the case of Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 as quoted earlier, the Applicants had cited other cases such as WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478 and Members of the Commission of Enquiry v. Tun Dato' Sri Ahmad Fairuz Dato' Sheikh Abdul Halim [2011] 1 LNS 1926 which have clearly established that the threshold to obtain leave is low and an applicant is only required to show that it has an arguable case and that the judicial review challenge is not frivolous or vexatious [see too, Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 which was referred to by the learned Senior Federal Counsel (‘SFC’)].

The AG objected to the leave application on the following grounds:

the leave application was filed beyond the three months’ period as provided under O. 53, r. 3(6) of the RC 2012. The said Decision was made on 29.3.2024 and this was the date when the grounds of application arose (for the distinction between the date when the grounds of application arose and the date when the decision is first communicated to the applicant, the learned SFC relied on the case of P Maradeveran Periasamy & Ors v. Suruhanjaya Pilihan Raya & Anor [2019] 3 MLRA 567). However, the leave application in encl. 1 was filed only on 25.5.2025. The learned SFC cited several case authorities to support this ground of objection, namely, Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161, Ketua Pengarah Hasil Dalam Negeri v Genting Malaysia Bhd [2025] 2 MLJ 822, Lim Wei Meng & Ors v Datuk Bandar Kuala Lumpur & Anor [2024] MLJU 989, Tan Sri Abdul Aziz bin Zainal (applying for himself and on behalf of Jawatankuasa Sementara Permohonan Memansuhkan Akta Bank Rakyat) & Ors v Lembaga Pengarah Bank Kerjasama Rakyat Malaysia Bhd & Ors [2023] 6 MLJ 776 and Visa Letchumy a/p Raju & Ors v Menteri Pendidikan,

based on the recent decision by the Federal Court in Peguam Negara v UEM Land Berhad [Appeal No. 01(i)-14- 05/2025(W)] (‘UEM Land’s case’) where one of seven questions of law was whether the term “decision” in O. 53, r. 2(4) of the RC 2012 includes the respondent’s presumption with regards to the decision made by the Minister when there is no response from the Minister. The Federal Court answered the question in the negative and concluded that “… there is no available decision because a ‘deemed decision’ at the behest of the Respondent is not a decision within the ambit of Order 53. In the instant case it cannot be said that the Minister refused or omitted to make a decision because he was never accorded a reasonable opportunity to do so. A time line was simply thrust on the Minister arbitrarily and it was then deemed to amount to a refusal or omission. That is insufficient in our view. …”. As a “deemed decision” at the behest of the Applicants in the leave application is not a decision within the ambit of O. of the RC 2012, the Applicants cannot rely on the Respondent’s non-response to the 26.2.2025 Letter as a basis to institute or sustain the judicial review proceedings; and

based on the leave application and the Affidavit In Support in encl. 3 (‘AIS’), the Applicants did not apply for an extension of time pursuant to O. 53, r. 3(7) of the RC 2012.

The Court has perused the background of the matter in the Statement and the Applicants’ averments in the AIS and finds that the Applicants had submitted their application to the putative Respondent for alienation of the said Land on 27.9.2019.

The putative Respondent replied vide the 29.3.2024 Letter that “... permohonan tuan telah dipertimbangkan dalam mesyuarat Jawatankuasa Kerja tanah Wilayah Persekutuan Kuala Lumpur ... bertarikh 16 Februari 2024 dan memutuskan permohonan berkenaan ditolak.”. It was not the Applicants’ pleaded case that –

they were not served with the 29.3.2024 Letter;

they did not receive the 29.3.2024 Letter; or

time starts to run only when the said Decision was first communicated to the Applicants.

Hence, much of what was submitted by the learned counsel for the Applicants at the hearing regarding some of the Applicants not having received the 29.3.2024 Letter was submission from the bar.

As regards the 26.2.2025 Letter, the Applicants’ solicitors wrote to the putative Respondent as follows: “Dengan segala hormatnya kami merujuk kepada perkara diatas dan surat Pengarah Tanah & Galian Wilayah Persekutuan (PTGWP) bertarikh 29/3/2024 sebagaimana Lampiran 1. Kami mengesahkan bahawa kami mewakili Pemohon-Pemohon di atas. SEHUBUNGAN DENGAN PENOLAKAN terhadap Permohonan Pemberimilikan di bawah Jadual 1 (Kaedah-Kaedah Tanah Wilayah Persekutuan Kuala Lumpur 1995)(Kaedah 3) dan peruntukan yang sama di bawah Seksyen 76 Kanun Tanah Negara 1965, kami telah diarahkan oleh Anakguam untuk mendapatkan Maklumbalas dan Alasan-Alasan terhadap Penolakan tersebut bagi memulakan suatu Permohonan Semakan Kehakiman di bawah Aturan 53 Kaedah-Kaedah Mahkamah 2012. JUSTERU ITU kami juga telah diarahkan untuk mendapatkan maklumbalas tersebut dalam tempoh EMPATBELAS (14) hari dari tarikh surat ini DAN SEKIRANYA tiada maklumbalas daripada pihak Tuan dalam tempoh tersebut, kami juga telah diarahkan oleh Anakguam untuk meneruskan tindakan ini melalui peruntukan undang-undang yang berkenaan dan segala kos yang berkaitan dibawah tanggungan Tuan.”.

The Court accepted the AG’s submission that the law as it stands now, with the decision by the apex court in the UEM Land’s case, is that a “deemed decision” at the behest of the Applicants is not a “decision” within the ambit of O. 53, RC 2012. In this regard, O. 53, r. 2(4) of the RC 2012 reads as follows: “Applications (O. 53, r. 2)

…

Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function shall be entitled to make the application.”.

Notably, the case of Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704, which was heavily relied upon by the learned counsel for the Applicants, was in fact submitted by the AG in the UEM Land’s case.

In the circumstances, the Applicants cannot rely on the 26.2.2025 Letter in contending that the failure by the putative Respondent to respond within 14 days from the date of the letter is an “omission” or a non-decision within the meaning of O. 53, r. 2(4) of the RC 2012 and that time starts to run from the 26.2.2025 Letter when the putative Respondent was requested to state the grounds for rejecting the Applicants' application for alienation of the said Land.

Moving on to the Applicants’ submission in relation to sub-s 298(4) of the NLC which provides that: “Rejection or suspension for unfitness, or absence of certain documents 298 …

On rejecting any instrument pursuant to sub-section (1) or (2), the Registrar shall mark it with the word "Rejected", return it to the person or body by whom it was presented together with a note of the reasons therefor, and cause a note of the rejection to be made in the Presentation Book.”, the requirement is for the Registrar to give reasons for any rejection of the instrument submitted for registration. There is no express requirement for the Applicants to obtain the reasons from the Registrar before an application for judicial review is filed. In fact, the failure to give reasons in the 29.3.2024 Letter by itself can be a ground to apply for judicial review of the decision. By wanting to seek the reasons for the rejection of the Applicants’ application for alienation of land, the Applicants have acted to their own detriment because time has started to run from the date when the grounds of application first arose i.e. on the date of the 29.3.2024 Letter.

Finally, the Applicants have clearly not applied for an extension of time as provided under O. 53, r. 3(7) of the RC 2012 in the leave application.

Based on the foregoing reasons, the leave application was dismissed with no order as to costs.

After the decision was pronounced, the Applicants’ counsel sought clarification on whether the Court has made any finding on the validity of the 29.3.2024 Letter. The Court responded that the issue on whether the 29.3.2024 Letter was valid or otherwise was for the substantive stage of the judicial review proceedings. As the Applicants have failed to pass the threshold for leave to be given, the Court did not have to decide the issue. DATED: 30.1.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant: W. Mohd Eirman Fairooz Bin Mohamad Messrs. W. Mohd Eirman & Co. Solicitors for the Respondents: Nur Irmawatie binti Daud