1. Tan Wei Mia v 1. Pentadbir Tanah Gombak (24-754-06/2014)

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TAN BOON CHIT ... PLAINTIFFS (As Trustee and Executor of the estate of Tan Bok Yin @ Tan Hong Yin)

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PEJABAT TANAH DAN GALIAN SELANGOR ... DEFENDANTS 2 GROUNDS OF JUDGMENT (Enclosure 1 – Originating Summons) A. BACKGROUND FACTS [1] The present case amidst its complex underlying facts is a simple claim for a declaration with regard to the categorisation of lands held by the Plaintiffs. What the Plaintiffs sought to claim here is that owing to the fact that their lands were Registry Title Lands alienated before the commencement date of the National Land Code 1965 (“Code”) the Plaintiffs no longer need to adhere to Section 124 of the Code in order to have their land categorised as building land on the grounds that Section 53(3) of the Code renders the lands to be impliedly, inherently or innately ‘building’ lands although the titles to the land do not categorise the lands into any categories. The Court will briefly allude to the facts of the case below. [2] The Plaintiffs in the present application are Tan Mei Mia (1st Plaintiff), Tan Wei Cheong (2nd Plaintiff), Tan Wai Chong (3rd Plaintiff) and Tan Boon Chit ( 4th Plaintiff as the Trustee and Executor of Tan Bok Yin @ Tan Hong Yin’s estates). 3 [3] All the Plaintiffs are holders and proprietors of 4 plots of alienated land which are Lots 841 and 843 located along Jalan Hulu Kelang, Mukim Hulu Kelang (“acquired lots”) and Lots 842 and 844 located behind the acquired lots (“adjacent lots”). All of these lots were alienated on 28.6.1929 which is before the date of commencement of the Code. Owing to the fact that the lots were alienated before the Code’s commencement date, the titles of the lots were not specified with any specific category of use (see Exhibits TBC-1 to TBC-4 of the Plaintiff’s Affidavit in Support (“AIS”)). [4] The 1st Defendant (Pejabat Tanah Daerah Gombak) is the Land Administrator having jurisdiction in the District of Gombak in which the Plaintiffs’ Lots are within the 1st Defendant’s jurisdiction. [5] The 2nd Defendant ( Pejabat Tanah dan Galian Selangor) is the Land Office of the State of Selangor, whose jurisdiction also covers the lots owned by the Plaintiff. [6] Ofisgate Properties Sdn Bhd (“Ofisgate”), a private limited company intends to develop the Plaintiff’s Lots 842 and 844 in a project known 4 as ‘Agro Pelancongan’. In pursuing this development project, Ofisgate has applied to the 1st Defendant for the Planning Permission to commence the Agro Pelancongan development project vide its letter dated 27.12.2010. [7] The 1st Defendant in turn replied that in light of the fact that the titles of Lots 842 and 844 do not specify the category of land use, it is incumbent upon the Plaintiffs to first, apply for a variation of the title to change the Lots’ land use from “Tiada” to “building”. (see Exhibit TBC-5 of the AIS): “ 2.3 Kategori kegunaan tanah dan syarat nyata tanah hakmilik terlibat adalah Tiada. Kelulusan pengenaan kategori kegunaan tanah dan syarat nyata dari Tiada kepada Bangunan dan Bangunan Perniagaan perlu diperolehi terlebih dahulu sebelum sebarang pembangunan dilaksanakan.” [8] Consequently, the Plaintiffs vide their letter dated 3.10.2013 objected to the requirement to apply for the affixing or variation of the land use category of the Lots as required by the 1st Defendant. The ground of 5 their objection was that the Court of Appeal has previously in two separate references for compensation regarding the acquisition of the acquired lots and the adjacent lots, allegedly has decided that the Lots should be categorised as ‘building’ land, and thus, it is incumbent upon the Defendants to make the necessary variations without the necessity of the Plaintiff making an application to the Defendants. (See Exhibit TBC-6 of the AIS) [9] Nonetheless, the 2nd Defendant in response to the letter above, responded vide its letter dated 19.11.2013 that the decision of the Land references for compensation referred and appended by the Plaintiffs is not related to the procedure of varying the category of land use of the Lots regarding the Plaintiffs’ application for planning permission. The decisions of the Court of Appeal are only relevant in determining the appropriate compensation from the acquisition of the acquired land. (See Exhibit TBC-6 of the AIS) Brief facts of the Acquisitions of the acquired lots 6 [10] This Court must highlight at this juncture that all of the proceedings discussed below in this heading is ultimately relevant only to the determination of the appropriate quantum of compensation following the acquisition of the acquired Lots. Any discussion to the category of land use is not exclusive to the categorisation of the land use but was discussed and decided merely to determine the appropriate amount of compensation payable. [11] Simply put, the acquired lots were acquired under Section 8 of the Land Acquisition Act 1960 for two separate projects namely the “Projek Lebuhraya Jalan Duta – Hulu Kelang (DUKE)” and “Projek Skim Bekalan dan Pengagihan Air Langat II – Fasa 1 (Cadangan Jajaran Paip Air Koridor Utara), Mukim Hulu Kelang, Daerah Gombak, Negeri Selangor (KTAK)”. The former was published in the Selangor State Government Gazette No. 460 and the latter was published in the Selangor State Government Gazette No. 3521. [12] The Plaintiffs in objecting the amount of compensation from the two acquisitions filed two Land references for each of the respective acquisitions namely the Shah Alam High Court Land Reference No. 7 15-129-2007 (“DUKE Land Reference”) and the Shah Alam High Court Land Reference No. 15-79-2009 (“KTAK Land Reference”). [13] Prior to the hearing of the land references on 26.11.2010, the High Court has adjudged that for the purposes of calculating compensation, the acquired Lots were categorised as “tanah pertanian yang mempunyai potensi komersial”. (See Exhibit TBC-7 of the AIS). [14] Entailing this adjudication, the High Court on 8.4.2011 has decided the rate of the market value of the acquired Lots for both the Land References based on the Order dated 26.11.2010 above. [15] The Plaintiffs filed two separate appeals against the High Court’s decision on 26.11.2010 (in Civil Appeals Nos. 01-36-2011 and B-01- 314-2011) and 8.4.2011 (in Civil Appeals Nos. B-01-37-2011 and B- 01-317-2011). The Court of Appeal has allowed the appeals against the decision on 26.11.2010. The Court of Appeal has also allowed the appeals against the decision on 8.4.2011 and ordered the Land 8 References to be reheard in the High Court. (See Exhibit TBC-9 of the AIS for the Orders of the Court of Appeal). Injurious Affection on Lots 842 and 844 [16] More pertinently, the Plaintiffs have filed a Notis Permohonan (Untuk Keputusan bagi isu-isu yang perlu Dihakimi oleh Mahkamah) on 21.3.2014 mainly requesting the Court to decide on the compensation for injurious affection of Lots 842 and 844 which is adjacent to the acquired lots. (See Exhibit TBC-10 of the AIS). [17] Accordingly, the High Court has decided that for the sake of quantifying compensation for the injurious affections on the adjacent lots, the adjacent lots should be categorised as ‘building’ lands. (See Exhibit TBC-11 of the AIS): “2. Pemohon-Pemohon berhak untuk menuntut kesan kemudaratan untuk Lot-Lot 842 dan 844…yang bersebelahan dengan Tanah Terjadual… walaupun tidak tertakluk kepada Pengambilan Tanah; 9

Lot-Lot 842 dan 844 patut dikategorikan sebagai tanah bangunan dan kesan kemudaratan terhadap Lot-Lot 842 dan 844 patut ditentukan berdasarkan asas ini;” [18] Now, the majority of the facts discussed above in relation to the acquired and adjacent lots are only relevant to the present case in the Plaintiff’s argument that the above decisions warrants the operation of Issue of Estoppel which allegedly warrants this Court’s exercise of discretion to declare the adjacent lots to be building lands without the Plaintiffs having to apply for a variation under Section 124 of the Code. [19] In the simplest manner possible, in reference to the facts of the land acquisitions and references, the Plaintiffs seek to sidestep the procedures under Section 124 of the Act to vary the category of land use of the adjacent lots in order to obtain the planning permission for the Projek Agro Pelancongan. In that, the Plaintiffs claim for: 10 i. a declaration that the adjacent lots’ category of land use is ‘building’ land; ii. other Orders that this Court see fit; and iii. costs for the present proceedings be borne by the Defendants. [20] Sieving through the plethora of facts, appeals and decisions above, the paramount issue to be determined in the present case is: [21] Whether the Plaintiffs are required to comply with Section 124 of the Code and apply for the variation of the titles of the Adjacent Land to change the category of land use from ‘Nil’ to ‘Building’, in light of the following facts: i. The decisions of the Court of Appeal and the High Court decision on the 21.3.2014; and 11 ii. The fact that the adjacent land were alienated before the commencement of the Code and were not specified of any category of land use. B. THE ADJACENT LOTS’ POSITION UNDER SECTION 53(3) AND SECTION 124 OF THE CODE [22] The Plaintiff’s stance on the adjacent lots’ category of land use is as follows: i. The adjacent lots are innately or inherently already ‘building’ lands by purview of Section 53(3) of the Code. Therefore, allegedly there is no change of category of land use. Thus, it is not necessary for the Plaintiffs to apply for a variation of the titles under Section 124 of the Code. ii. Section 124 of the Code does not cover instances where the variation of category of land use alike the instant case namely from ‘Nil’ to ‘building. Thus, Section 124 of the Code is not applicable in the present case. 12 [23] The Defendants’ case is simply that, notwithstanding the implied, inherent or innate category of land use of the adjacent lands, it doesn’t defeat the fact that the titles are still written as or affixed with the category of land use ‘Tiada’ or ‘Nil’. Thus, it is still incumbent upon the Plaintiffs to apply to the 1st Defendant under Section 124 of the Code and follow the procedures set therein, in order to change the written category of land use ‘Tiada’ to ‘Building’ or ‘ Bangunan’. Adding to that, it is also the Defendants’ case that Section 124 of the Code is sufficiently wide enough to cover instances where the variation of category of land use alike the instant case namely from ‘Nil’ to ‘building. [24] Now, this Court is in agreement that the adjacent lots fall squarely on the application of Section 53(3) of the Code owing to the fact that the lots were alienated before the commencement date of the Code and also was not affixed with any specific category of land use. Furthermore, it is appropriate that the adjacent lots be applied under Section 53(3) of the Code on the ground that the lots are held under Registry Title, thus precluding the operation of Section 53(2) of the Code. Section 53(3) of the Code reads: 13 “53. Conditions affecting use of lands alienated before commencement until category of land use is imposed

This section applies to all land alienated before the commencement of this Act other than land which, immediately before that commencement, is subject to an express condition requiring its use for a particular purpose.

All other land to which this section applies shall become subject at the commencement of this Act to an implied condition that it shall be used neither for agricultural nor for industrial purposes.” [25] The crux of the Plaintiffs’ submission is that, as per Section 53(3) of the Code, it is inherent or innate that the adjacent lots are categorised as building lands owing to the fact that it is subject to the condition that “it shall be used neither for agricultural nor for industrial purposes”. The inference the Plaintiffs intend to draw is that since there are three categories of land use (agricultural, industrial, and 14 building), the adjacent lands inherently are a building land, since the lots are neither for agricultural or industrial use. Thus, the Plaintiffs argued that there is not any or no necessity of a variation of title to be applied to the 1st Defendant. [26] The Defendants’ case however is that, notwithstanding the implied, inherent or innate categorisation of the adjacent lots, the titles remained affixed with ‘Tiada’ for its land use. Thus, it is still incumbent of the Plaintiffs to apply for a variation or change of category of land use to the 1st Defendant to set the variation in motion to affix the titles with the land use of ‘building’. Thus, the Code has already provided a remedy in the form of set procedures which would allow the Plaintiffs to vary or change the land use of the adjacent lots vide an application under Section 124 of the Code which reads: VARIATION OF CONDITIONS, RESTRICTIONS AND CATEGORIES

Power of State Authority to vary conditions, etc. on application of proprietor 15

The proprietor of any alienated land may apply to the State Authority under this section for –

the alteration of any category if land use to which the land is for the time being subject or, where it is not so subject, for the imposition of any if it is not so subject, for the imposition of any category thereon [27] The Defendants find support in the Federal Court decision in the case of Collector of Land Revenue, Federal Territory v Garden City Development Berhad [1979] 1 MLJ 223. This case is directly in point to the present case as it dealt with a land falling within the ambit of Section 53(3) of the Code and the propriety of an application to vary the category of land use under Section 124 of the Code. The Federal Court succinctly held in allowing the appeal:

The land in question was town land and on the coming into force of the National land Code came under provisions of section 53(3) of the Code which provides 16 that it shall be used neither for agricultural nor industrial purposes;

in order to use the land for building, the owners have to apply for the imposition of category of building under section 124 of the National Land Code” This Court may still refer to the Federal Court’s decision in Garden City’s with regard to the propriety of the application under Section 124 notwithstanding the Privy Council’s decision on appeal in the same case [28] Now, indeed this Court appreciates that the counsel for the Plaintiffs to refer the Court to the Privy Council decision which was the ensuing decision from the Federal Court decision. Indeed, the Privy Council has allowed the appeal. The Plaintiffs at this juncture contends that the decision in the Federal Court is bad law. [29] This Court must stress that this Court has had the opportunity to scrutinise the decision of the Privy Council. And from this scrutiny, it 17 is this Court’s considered view that insofar as the Federal Court’s decision regarding the propriety of an application under Section 124 of the Code is concerned, this portion of the Federal Court decision was not reversed or even canvassed in the Privy Council decision. Thus, the Federal Court’s decision on the propriety of the application under Section 124 of the Code remains a good law. [30] The Privy Council decision decides or reverses nothing on the propriety of Section 124 of the Code. In fact, it is vividly clear from the report that the Privy Council does not even consider Section 124 of the Code, and what more the procedures of the variation of land categories of alienated lands. The catchwords of the report on the Privy Council decision reads: “Land Law – Classification of land – Land alienated before the coming into force of National Land Code – Town Land held under Registry Title – Land to be used neither for agricultural nor industrial purposes – Whether there was need to apply for imposition of category of use of land to be used for building – 18 Time for appeal – National Land Code, ss 53, 110, 116, 127, 128,& 148” [31] A plain reading of the catchwords above would reveal that Section 124 of the Code was specifically omitted from being deliberated in the decision of the Privy Council. [32] Furthermore, even what was held by the Privy Council in its decision mentions nothing at all on the propriety of an application under Section 124 of the Code. The Privy Council has never made any finding on the propriety of an application under Section 124 of the Code. The decision reads: “(1) the stamping of the words "Lease for agricultural land" on the original lease could not in itself have the effect of imposing a condition for use for agriculture only and in the circumstances it was not possible to infer from the lease an intention to restrict the use of the land to agriculture; 19

as the land was town land held under registry title, the provisions of section 53(3) of the National Land Code applied to the land with the result that there was an implied condition that it shall be used neither for agricultural nor for industrial purposes;

there is no ground for reading into section 53 (3) of the National Land Code a general prohibition against use for building purposes;

in a timeous appeal against the section 128 notice, the appellants were in a position to open up all questions upon which its validity depended, in particular the questions whether their land was subject to the condition of agricultural use only and whether on a proper construction of section 53 use of it for building purposes was prohibited” 20 [33] The decision only touches on the rights to appeal under Section 418 of the Code and also a more or less an academic question on the reading of Section 53(3) of the Code on whether it prohibits the use of land to erect buildings or otherwise. [34] Thus, it is reiterated that the Federal Court’s decision on the propriety of an application under Section 124 of the Code for a variation of category of land use in light of lands under Section 53(3) of the Code, remains a good law. Therefore, this Court is bound to follow the decision of the Federal Court. An application under Section 124 of the Code remains a requirement albeit the adjacent lands are impliedly, inherently or innately ‘building’ lands [35] Even if the lot is impliedly a ‘building’ land, it remains that in order for the title to be varied from ‘tiada’ to ‘building’, it goes without saying that the Plaintiff is still subject to the remedies and procedures under the Code in order to have such variations registered and affixed on the title. 21 [36] Arguing that the adjacent lots are impliedly, innately or inherently ‘building’ land does not escape or allow the Plaintiff to eschew from the compliance to the remedies and procedures set under the Code. It still stands now that the title is affixed the word ‘tiada’ (notwithstanding that it is inherently ‘building’) and should be changed or varied into ‘building’. This is a variation on the title and one such variation which falls squarely on the ambit of Section 124 of the Code. [37] On the same point regarding the implied nature of the adjacent lots, the Plaintiffs contended that this Court ought to distinguish the present case from the Federal Court decision in Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135. However, it is reiterated here that there is and there will be a necessary variation of category of land use on the titles notwithstanding the fact that the adjacent lots are impliedly ‘building’ lands. Thus, this Court finds no reason at all to distinguish the present case from the decision in Sri Lempah. 22 Section 124 of the Code is verily wide enough to cover the adjacent land in the present case [38] Although fallible, the Plaintiffs also contended that Section 124 of the Code is not sufficiently wide to cover lands which were not affixed with any land use. It was argued that Section 124 of the Code only covers variations of titles which are already affixed with a particular land use, example being from agricultural to industrial or industrial to building. [39] This Court finds no hesitation to wholly disagree with this contention. A simple and plain reading of the section would reveal that the section expressly covers and caters to instances alike the adjacent land. The term “any alienated land” in the section [40] It is without a single shade of doubt that the State Authority’s power under Section 124 of the Code is encompassing and applies to any alienated land notwithstanding its land use. The section reads: 23

Power of State Authority to vary conditions, etc. on application of proprietor

The proprietor of any alienated land may apply to the State Authority under this section for… Section 124(1)(a) specifically covers variations of land use of lands which was not affixed or subjected to any category of land use [41] It is as clear as day that Section 124(1)(a) of the Code specifically covers instances of “the imposition of any category” on land which is “not so subject (to a category of land use) affixed with any category of land use. This sub-section reads:

the alteration of any category if land use to which the land is for the time being subject or, where it is not so subject, for the imposition of any if it is not so subject, for the imposition of any category thereon 24 [42] Thus, in light of the above, it is this Court’s considered view that Section 124 of the Code is sufficiently wide to cover the variation of category of land use of the adjacent lots. C. DOES ISSUE ESTOPPEL OPERATE TO ESTOP THE DEFENDANTS FROM CONTENDING AGAINST THE DECISIONS IN THE LAND REFERENCES? [43] The Plaintiffs in their submissions have contended very briefly in passing that issue estoppel allegedly operates against the Defendants and thus the Defendants are estopped from contending against issues which were already decided in the Land References. [44] Nonetheless, this contention of the Plaintiffs falls short from any merits. Firstly, the decisions and orders made were only in the view of a land reference. As such the orders and decisions were made exclusively for the purposes of the determination of the appropriate compensation payable. 25 [45] Secondly, the orders and decisions only go as far as to indicate the correctness of the adjacent lots to be categorised as building land. But it does not render it incumbent of the Court to usurp the jurisdiction of the State Authority and forego the set remedies and procedures under the written law of the Code. [46] There is no issue estoppel here. The pertinent issue in the present case is NOT at all on the propriety of the categorisation as decided in the Land References. But instead it is on the proper mode of varying and affixing the proper category onto the titles of the adjacent land. And thus it is reiterated here, that notwithstanding the correctness of the implied land use of the adjacent lots, the Plaintiffs must still go through the proper procedures and remedies set forth under the Code in Section 124 of the Code to affix the proper category of land use on the titles of the adjacent lots. There is no reason to warrant this Court to exercise its discretion under Section 25 of the Court of Judicature Act 26 [47] On the same note of the above, this Court is of the considered view that the circumstances of the present case do not warrant the exercise of this Court’s discretion in granting such declaratory order to the Plaintiffs. [48] Amidst the Plaintiffs’ submission at length on this issue, the fact that Section 124 of the Code is the proper procedure and remedy which is readily available to be opted by the Plaintiffs totally negates any necessity of the Court to exercise its discretion to usurp the statutory authority and jurisdiction afforded by the Code onto the State Authority. [49] This Court is definitely not the proper authority to set the variation of the titles in motion when the written law of the Code has already afforded such proper authority and jurisdiction to the State Authority. This Court is guided by Federal Court decision in the case of Badiaddin Bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393: 27 “(Per Gopal Sri Ram JCA) As a general rule, orders of a court of unlimited jurisdiction may not be impugned on the ground that they are void in the sense that they may be ignored or disobeyed. However, it is well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law” [50] Furthermore, there is also NO necessity to exercise such discretion when there is a sufficient remedy under the Code which is readily available to the Plaintiffs. This Court is guided by the Court of Appeal decision in the case of Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (Executor of the Estate of Loo Cheng Ghee) [1998] 4 MLJ 651: “It is beyond dispute that the remedy of declaration is discretionary in nature. Section 41 of the Specific Relief Act 1950 reads as follows: Any person entitled to any legal character, to any right as to any property, may institute a suit against any person 28 denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so. Explanation — A trustee of property is a 'person interested to deny' a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.' (Emphasis added.) Although s 41 is not a complete code upon the subject of declaratory decrees (Attorney General of Hong Kong v Zauyah Wan Chik & Ors and another appeal [1995] 2 MLJ 620) and the power to make a declaration is almost unlimited (Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at p 507 per Lord Sterndale MR), yet, the remedy of declaration may be 29 refused upon settled principles. Thus, generally speaking, the court will not grant a declaratory judgment where an adequate alternative remedy is available (Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41) D. COURT’S FINDING [51] In light of all the above deliberations, it is this Court’s considered view that notwithstanding the fact that the adjacent lots under Section 53(3) of the Code are impliedly, inherently or innately ‘building’ lands, it does not preclude the operation of Section 124 of the Code for the Plaintiffs to apply for a variation of the category of land use unto the titles of the adjacent lots to affix the titles with the proper land use. [52] Furthermore, it is also this Court’s considered view that the previous orders and decisions in the land references do NOT warrant the exercise of this Court’s discretion to grant the declaratory relief sought for by the Plaintiffs. 30 E. COURT’S DECISION AND DIRECTIONS [53] In light of all of the above findings, it is this Court’s decision that the Plaintiffs have indeed failed to prove their case. [54] This Court hereby dismisses the Plaintiffs’ case. On the issue of costs [55] Having heard the submissions from the counsels for the Plaintiffs and the Defendants, this Court hereby orders the Plaintiffs to pay the Defendants a global sum of RM5,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 13th day of July, 2015 31 For the Plaintiffs - Tetuan Mah Weng Kwai & Associates Encik Raymond Mah Cik Choo Mun Wei For the Defendants - Kamar Penasihat Undang-Undang Negeri Selangor Cik Nurfariza bt. Ridzuan