BERJAYA HILLS RESORT BERHAD v Pengarah Pejabat Tanah dan Galian Kerajaan Negeri Pahang (C-01(A)-592-09/2024)

This Grounds of Judgment shall serve as the reasons for the unanimous decision of this Court for the five appeals that were heard together. The five appeals are as below: Appeal No: Appellants: High Court JR No: C-01(A)-590-09/2024 Berjaya Hills Resort Berhad CB-25-1-04/2023 C-01(A)-591-09/2024 Aventi Sdn. Bhd and 5 others CB-25-2-04/2023 C-01(A)-592-09/2024 Berjaya Hills Resort Berhad CB-25-3-04/2023 C-01(A)-593-09/2024 Berjaya Hills Resort Berhad CB-25-4-04/2023 C-01(A)-594-09/2024 Berjaya Hills Resort Berhad CB-25-5-04/2023

The backdrops leading to the present appeals are briefly explained as below.

The respective appellants were the applicants in the Judicial Review applications in the court below. The respective appellants filed the Judicial Review applications to challenge the decision of the respondent, the Director General of Lands and Mines of the State of Pahang, to issue the Quit Rents for the year 2023 (dated 12.1.2023 and other dates) in respect Page 3 of 22 of 330 parcels of land which are situated in the District of Bentong, Mukim Bentong, in the State of Pahang (hereafter “the Lands’).

The chargeable quit rents for the year 2023 in respect of the Lands were increased substantially, and the chargeable rates applied retrospectively as well. The new chargeable rates were applied to quit rents for previous years 2020, 2021 and 2022. The respective appellants being the respective registered proprietors of the Lands were adversely affected by the decision of the respondent in exercising his public duty or function. Consequently, the appellants filed the Judicial Review applications to challenge the respondent’s decision. On 19.8.2024, the High Court dismissed all five Judicial Review applications. Dissatisfied with the decision, the respective appellants filed the respective appeals to the Court of Appeal.

Essentially, the appellants contended that the increase of the rent rates for the Lands was ultra vires and void on the following complaints:

The Pahang Land (Amendment) (No. 4) Rules 2019 which came into force on 1.1.2020 (which substituting the existing rule 22 of the Pahang Land Rules 1992) that provided for new revised rent rates for the Lands is unlawful and void because the State Authority failed to satisfy the statutory condition for the prior approval of the National Land Council under s. 101(5) of the National Land Code (hereafter “NLC”);

(ii) The declaration of the “Subdistrict of Genting” as “Town Land” via the State Gazette No. 2501 published on 21.11.2019 which came into effect on 11.11.2019 is unlawful and void because the State Authority failed to satisfy the statutory condition of a prior survey by the Director of Survey and Mapping designating the Lands as “Town Land” under s. 11(d) of the NLC;

(iii) The issuance of the Quit Rent Bills applying the revised rent rates is unlawful and void because the documents of title for the Lands have yet to be endorsed with the revised rent rates, as required under s.101(6) of the NLC; and

(iv) The State Authority acted unlawfully in January 2023 by amending the substituted rule 22(1) of the Pahang Land Rules 1992 to remove the word “new” from the phrase “new alienated lands…” and deemed the amendment to have come into operation on 1.1.2020, which has a retrospective effect. [6] The first three complaints concern procedural impropriety. Failure to comply with procedures as laid down by statute may invalidate a decision of the administrative action or decision. The fourth ground is a complaint of substantive challenge in that the State Authority is alleged to have acted ultra vires in passing a state legislation to amend principal Rules which has retrospective effect. Page 5 of 22 Analysis and findings of this Court Appellants’ first complaint – non-compliance of s. 101(5) of NLC [7] Initially, the appellants’ counsel submitted that the respondent failed to obtain the approval of the National Land Council for the revision of the rent rates in the State of Pahang, and as a result, the increase of the revised rent rates was invalid and void for failure to comply with the requirement as set out in s. 101(5) of the NLC. Section 101(5) of the NLC states as follow: “(5) Revision of rent under this section shall be made at such times as the State Authority may, with the approval of the National Land Council, determine, but –

In the case of the first such revision, not so as to have effect earlier than the beginning of the year 1970; and

In the case of any subsequent revision, not so as to have effect before the expiry of a period of ten years beginning with the most recent date as from which any rents in the State were revised under this section.” [8] The respondent’s counsel submitted that the affidavit-in-reply of Hamadan@Hamdan Bin Hussin affirmed on 16.1.2024, who was the Director of the Pahang Lands and Mines Office at that material time, stated, particularly in paragraph 13(d), that the National Land Council had given its recommendation (“pengesyoran”) to the State Government of Page 6 of 22 Pahang for the exercise of the revision of rent rates in the State of Pahang. The respondent’s counsel further submitted that the “recommendation” given by the National Land Council was an approval as envisaged or required under s. 101(5) of the NLC. The appellant’s counsel then challenged the respondent’s counsel to produce the approval, if any. [9] The respondent’s counsel then sought for an adjournment of the hearing to allow the respondent to obtain a copy of the approval. The respondent’s counsel submitted that the “approval” was recorded in the minutes of meeting of the National Land Council (“the Minutes”), and the Minutes was classified as an official secret document kept with the then Ministry of Natural Resources and Environment (Kementerian Sumber Asli dan Alam Sekitar [NRE]). The Minutes were required to be first declassified before they could be produced in court. [10] On 10.10.2025, the respondent’s counsel filed a Notice of Motion supported with an affidavit affirmed by one Razihan Bin Adzharuddin, the Director of Pahang Lands and Mines Office, dated 10.10.2025, to produce the Minutes as further/fresh evidence before this Court. On 15.12.2025, this Court allowed the respondent’s application to adduce the Minutes as further/fresh evidence to facilitate the hearing of the appellant’s appeal. [11] This Court was of the considered view that the Minutes was necessary in the interest of justice to be admitted as further/fresh evidence so as to determine the appellant’s challenge that there was no such approval in the first place. In addition, the further/fresh evidence was not available to the respondent seeking to use it at the hearing in the court below because the Minutes was classified as official secret and kept with the then Ministry of Natural Resources and Environment, as such, the Page 7 of 22 Minutes was not in the possession of the respondent. In the event the Minutes do show the National Land Council had given its approval to the State Government of Pahang to exercise the revision of rent rates, then it would have had or would have been likely to have had a determining influence upon the decision of the High Court. [12] On these peculiar facts, it would have had a strong determining influence upon the decision of the High Court and it would have countered the appellant’s challenge that there was no such approval from the National Land Council from the outset. [13] The respondent produced the relevant parts of the Minutes of Meetings of the 70th and 71st National Land Council Meetings dated 18.8.2014 and 14.12.2015 respectively to support the fact that the National Land Council had in fact approved the State Government of Pahang to carry out a revision exercise of the rent rates in the State of Pahang. [14] In the 70th National Land Council Meeting held on 18.8.2014, the Chairman drew the attention of the Members to several issues, and one of the issues was to consider reviewing the rent rates in the states. It is recorded in paragraph 1.2(v) as follows: “(v) Pihak Berkuasa Negeri mempunyai kuasa untuk menyemak kadar cukai tanah setiap 10 tahun dari tarikh semakan sebelum. Justeru itu, adalah wajar Kerajaan Negeri menyemak semula kadar cukai tanah semasa memandangkan kadar cukai yang dikenakan sejak 10 Page 8 of 22 tahun lalu secara relatifnya adalah rendah berbanding perkembangan dan pertumbuhan ekonomi negara;” [15] The Chief Minister of Pahang thanked the Federal Government for the suggestion that the state authorities should consider reviewing the rent rates of the states. It is recorded in paragraph 4.2.2(i) as follows: “(i) YAB Menteri Besar Pahang mengucapkan terima kasih kepada Kerajaan Persekutuan terhadap cadangan tersebut memandangkan sejak tahun 1997, Kerajaan Negeri Pahang tidak pernah menyemak kadar cukai tanah.” [16] At the close of the discussion on this issue, the National Land Council approved the following matters: “4.2.3 Majlis bersetuju supaya:

Pihak Berkuasa Negeri (PNB) menyemak semula kadar cukai tanah sebelum tamat tempoh 10 tahun bermula dari tarikh yang paling terdekat dari tarikh semakan sewa sebelumnya selaras dengan peruntukan Seksyen 101

(ii) Pelaksanaan semakan kadar cukai tanah disemak semula bermula pada 1 Januari 2014 bagi negeri-negeri yang melaksanakan semakan terakhirnya pada 1 Januari 2004; dan

(iii) Negeri-negeri yang telah menangguhkan pelaksanaan semakan kadar cukai kemudian dari 1 Januari 2004, Page 9 of 22 pelaksanaan untuk semakan cukai ini hendaklah dilaksanakan tidak kurang daripada tempoh 10 tahun dari Tarikh pelaksanaan semakan cukai yang telah ditungguhkan itu. Tindakan: Kerajaan-kerajaan Negeri” [17] The above excerpts of the Minutes clearly show the National Land Council had given a blanket approval to all the States to review and revise the rent rates in the respective states. [18] In the following year, the 71st National Land Council Meeting was held on 14.12.2015. The Minutes of Meeting for the previous year was approved without amendment. In paragraph 3.10 of the Minutes of Meeting (the 71st Meeting) it was recorded as follows: “Merujuk kepada perkara 4.2 minit, Majlis mengambil maklum bahawa Kerajaan Negeri Sabah, Selangor, Pulau Pinang, Kedah dan Kelantan telah menyemak semula kadar cukai tanah masing-masing manakala Kerajaan Negeri Melaka, Pahang, Negeri Sembilan dan Perak sedang dalam tindakan meneliti semakan kadar cukai.” [19] The National Land Council was fully aware of the situations in the respective States with respect to the revision of the rent rates. Based on the above evidence, the appellants’ counsel’s contention that there was no approval from the National Land Council for the revision of the rent rates is unsustainable. Page 10 of 22 [20] After the respondent had produced the Minutes of Meetings of the National Land Council, the appellants’ counsel then further argued that the Minutes produced by the respondent still did not satisfy s. 101(5) of the NLC because the Minutes did not show the National Land Council had approved the revised rent rates. The Minutes only revealed the National Land Council had given its consent to the State Government of Pahang to revise the rent rates, it was not an approval of the revised rent rates, the appellant’s counsel submitted. [21] The appellants’ counsel submitted that s.101(5) of the NLC should be construed to require the revised rent rates to be approved by the National Land Council. The contents of the Minutes of Meeting merely show the National Land Council approved the exercise for revision of the rent rates. The revised rent rates were implemented with the substitution of rule 22 of the Pahang Land Rules 1992 via the Pahang Land (Amendment) (No. 4) Rules 2019 which came into force on 1.1.2020. There is no evidence to suggest that the final revised rent rates were approved by the National Land Council, the appellants’ counsel further submitted. [22] This Court is of the considered view that the construction of s. 101(5) of the NLC must be read with the objective of the legislature in mind. In Detik Ria Sdn Bhd v Predential Corporation Holdings Ltd & Anor [2025] 4 CLJ 159, 196, the Federal Court states as follows: “[28] When interpreting legislation, the courts should employ the statutory purposive approach to discern the purpose and object of the legislation pursuant to s. 17A of the Interpretation Acts 1948 and 1967. Section 17A gives statutory recognition to Page 11 of 22 the purposive approach such that the courts should adopt a construction which would promote the general legislative purpose underlying the relevant provision (see DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] 2 CLJ 57).” [23] Based on the above guidance laid down in the decision of the Federal Court, it is instructive to understand the purpose and objective of the roles of the National Land Council in the NLC. Section 9 of the NLC states as follows: “9. National Land Council: initiation of action with respect to certain matters.

Where under Article 91 of the Constitution of the National Land Council formulates any policy to be followed by the Federal and State Governments, or prepares advice with respect to any matter on which it has been consulted by any of those Governments, it shall be lawful for the Minister, on behalf of the Council, to notify the Governments or Government concerned thereof, and to make such enquiries as may appear necessary for the purpose of keeping the Council informed as to the implementation of the policy or, as the case may be, the adoption of the advice.

If it appears to the National Land Council, in considering in the exercise of any of their functions under the said Article any matter relating to the administration of this Act, that any of the provisions of the First, Fifth, Sixth or Tenth Schedule ought to be amended in any respect, or repealed, it shall be Page 12 of 22 lawful for the Minister, by an order made on the recommendation of the Council and notified in the Gazette of the Federation, to make the amendment or repeal in question.” [24] The duty of the National Land Council is stated in Article 91(5) of the Federal Constitution as follows: “(5) It shall be the duty of the National Land Council to formulate from time to time in consultation with the Federal Government, the State Governments and the National Finance Council a national policy for the promotion and control of the utilization of land throughout the Federation for mining, agriculture, forestry or any other purpose, and for the administration of any laws relating thereto, and the Federal and State Governments shall follow the policy so formulated.” [25] Essentially, the duty of the National Land Council is to formulate national policy and to give advice in relation to the administration of the NLC. In the instant case, the National Land Council had during the 70th National Land Council Meeting held on 18.8.2014 given its advice to the State Governments to consider a revision of the rent rates in their respective states, and had approved a revision exercise to be carried out. The respective states had adopted the advice and reported back to the National Land Council. In the 71st National Land Council Meeting, the Council took note of the progress of the revision exercise in the respective states. Page 13 of 22 [26] This Court is of the considered view that it is not the duty or function of the National Land Council to approve the revised rent rates of each state as suggested by the appellants’ counsel. The revised rent rates are to be determined by the respective State Governments in accordance with the power conferred under s. 14(1)(e) of the NLC which states as follows: “14. Power of State Authority to make rules

Subject to subsection (2), the State Authority may make rules generally for carrying out the objects and purposes of this Act within the State, and in particular, but without prejudice to the generality of the foregoing, may by such rules make provision with respect to – …;

the rate (being rates per hectare or other lesser unit of area) at which the rent to be reserved on, and the premium (if any) to be charged in respect of, the alienation under this Act of land of any class or description are, subject to the provisions of this Act, to be calculated; ….” [27] There is no provision in the NLC that suggests any revised rent rates to be reserved and determined by the State Authority must be approved by the National Land Council. If the counsel for the appellants is correct in his interpretation of s.101(5) of the NLC, the actual quantum of revision of the rent rates in every sub-district, district and state in the States of Page 14 of 22 Peninsular Malaysia by the State Governments shall require specific approval by the National Land Council. [28] This Court is of the considered view that the true construction of the words “with the approval of the National Land Council” in s. 101(5) of the NLC is in reference to the time in which the State Authority decides to revise the rent rates, it is not in reference to the approval of the quantum of the revised rent rates. This interpretation can be supported by reading the preceding parts of s. 101(5) which are reproduced below: “101 Power of State Authority to revise rents periodically

Subject to the provisions of subsection (5), the State Authority may from time to time revise in accordance with the following provisions of this section the rents payable in respect of alienated lands within the State.

Any revision under this section shall extend to all alienated lands within the State except land of any class or description which the State Authority may think fit to exempt therefrom.

On any revision under this section, the State Authority may –

increase or reduce by the same proportion the rents payable in respect of all lands to which the revision extends; or

make different provision for different classes or descriptions of such lands, being, in the case of each such class or description, either –

provision for increasing or reducing rents by the same proportion; or

(ii) provision imposing a new rate of rent thereon.

In the exercise of the powers conferred by this section the State Authority shall take no account of increases in land values attributable to improvements.” [29] Section 101(1) of the NLC confers the power to the State Authority from time to time to revise the rent rates payable, but subject to the restrictions as set out in subsection (5). The restrictions set out in subsection (5) are in relation to the period of times the State Authority may exercise such power to revise the rent rates payable. [30] The restrictions of period which the State Authority may exercise a revise of the rent rates is that “(a) in the case of the first such revision, not so as to have effect earlier than the beginning of the year 1970; and (ii) in the case of any subsequent revision, not so as to have effect before the expiry of a period of ten years beginning with the most recent date as from which any rents in the State were revised under this section.” [31] The two restrictions above are clearly in reference to the period in which the State Authority may exercise a revision of the rent rates. A fortiori, the approval of the National Land Council must also be in reference to the time in which the State Authority may carry out a revision exercise. [32] To rephrase s. 101(5), it can be understood as follows: “Revision of rent under this section shall be made at such times as the State Authority may determine, with the approval of the National Land Council, but….” Page 16 of 22 [33] The approval of the National Land Council is clearly in reference to the period or time(s), i.e., at such time, the State Authority intends to exercise a revision of rent rates in the state. Summation [34] Based on the above analysis and adopting a purposive approach of the interpretation of s. 101(5) of the NLC, this Court is of the considered view that:

the duty and function of the National Land Council is to implement policy and to give advice to the Federal and State Governments;

(ii) it is not the duty and function of the National Land Council to scrutinize any revised rent rates that are to be determined by a State Authority;

(iii) s. 14(1)(e) of he NLC confers the power to the State Authority to determine the rent rates at which the rent is to be reserved;

(iv) s. 101(3) of the NLC confers the power to the State Authority to increase or reduce the rents payable, or to make different provisions for different classes or descriptions of such lands either to increase or reduce the rents, or to impose a new rate of rent;

it is not the duty and function of the National Land Council to approve the rent rates to be determined by the State Authority exercising its powers under s. 14(1)(e) read together with s. 101(3) of the NLC; and

(vi) the State Authority must get prior approval from the National Land Council for the time for the State Authority to exercise a Page 17 of 22 revision of the rent rates, and approval is in reference to the time to exercise the revision, it is not in reference to the rent rates; and

(vii) the time to exercise such revision are also restricted by the conditions as set out in s. 101(5)(a) and (b) of the NLC. [35] In conclusion, this court finds the first complaint of the appellants is unsustainable and no procedural impropriety had been committed that could warrant an order to quash the respondent’s decision to issue the quit rents. Appellants second complaint – non-compliance of s. 11(d) of the NLC [36] When the State Authority of Pahang published Gazette No. 2501 dated 21.11.2019 declaring the “District-Bentong, Township-Genting, Number-DW 496, Area-6,668.63 (hectares)” as Town Land for the Subdistrict of Genting, exercising its power under s. 11(d) of the NLC, the declaration was made prior to the final survey done by the Director of Survey and Mapping. This fact is not in dispute by the respondent, because the survey plan was endorsed by the Director of Survey and Mapping only on 20.2.2020. [37] On 12.4.2020, the State Authority of Pahang published Gazette No. 1065 which is a Corrigendum amending the earlier declaration in Gazette No. 2501 to the effect as “District-Bentong, Subdistrict-Genting, Township-Genting, Plan No.-P.W. 5437, Area-6,669 (Hectares)” to rectify the earlier Gazette that did not cite the survey plan number. [38] In response to this second complaint, this Court is of the considered view that the State Authority’s power to amend, rectify and correct any Page 18 of 22 shortcoming of its exercise of powers conferred by NLC cannot be restricted. If restriction is imposed, it will unnecessarily curtail the administration of the NLC by the State Authorities. In this present case, the amendment did not adversely affect the appellants’ rights to land or their proprietorship of the Lands. [39] The appellants’ counsel submitted that since the revised rates came into force on 1.1.2020, and the correction was only made on 12.4.2020, therefore, the chargeable revised rent rates which began on 1.1.2020 would be illegal, because as at 1.1.2020, the Lands were not properly gazetted as “Town Land” yet. [40] This Court is of the considered view that the error made by the State Authority could not vitiate the entire exercise of the revision of rent rates of the Lands concerned. The amendment or substitution of rule 22 of the Pahang Land Rules 1992 was done according to the power conferred by s. 14(1)(e) of the NLC, therefore the application of the revised rent rates and the effective date of the revised rent rates are premised on the Pahang Land (Amendment)(No.4) Rules 2019. The exercise of the revised rent rates had been approved by the National Land Council. The Pahang State Authority carried out the exercise in accordance with the NLC with the approval. [41] The declaration under s. 11(d) of the NLC is a distinct exercise from the exercise of s. 14(1)(e) of the NLC by the State Authority. Therefore, mere technical error committed while exercising the power under s.11(d) of the NLC would not by extension invalidate the exercise of the power under s. 14(1)(e) of the NLC, or cause the exercise of power under s. 14(1)(e) of the NLC to become unlawful. Page 19 of 22 [42] In any event, the technical error committed by the State Authority had been rectified by the Corrigendum Gazette 1065 dated 12.4.2020. Therefore, although the declaration of “Town Land” came into effect on 11.11.2019, before the survey plan was endorsed on 20.2.2022, the error could not vitiate the entire declaration itself. Further, the declaration was premised on the earlier draft plan before it was endorsed as final by the Director of Survey and Mapping. This is not a case where the declaration was premised on a draft plan that was entirely different from the endorsed plan. This Court finds that the error could not be construed as a procedural impropriety, and there was no miscarriage of justice. Appellant’s third complaint - s.101(6) of the NLC; [43] With regard to the third complaint, this Court finds the complaint has no merit because the requirement to amend the amount of rent endorsed on the document of title under s.101(6) of the NLC is merely a subsequent action to be taken by the Land Administrator. It is purely an administrative requirement which does not affect the validity of the exercise of revision of rent rates within the NLC. Further, there is no time frame fixed by the law for the Land Administrator to do so. The section allows the Land Administrator to amend the rent endorsed on the document of title as soon as possible. The complaint here is unsustainable and clearly does not involve procedural impropriety within the purview of administrative law. Appellant’s fourth complaint – removal of the word “new” with retrospective effect Page 20 of 22 [44] The respondent’s counsel submitted that the State Authority’s removing of the word “new” with retrospective effect in the substituted rule 22 of the Pahang Land Rules 1992 via the Pahang Land (Amendment)(No.8) Rules 2022 dated 27.1.2023 (which was Gazetted on 1.2.2023) was essentially a clarification to ensure the legislative texts are consistent with the intention of the State Authority. [45] The substituted rule 22 of the Pahang Land Rules 1992 which came into effect on 1.1.2020 via Pahang Land (Amendment)(No.4) Rules 2019 published on 31.10.2019 [Phg. P.U.54/2019] was intended to reflect the intention of the State Authority to revise the rent rates, and the revised rent rates were intended to take effect on 1.1.2020. There is nothing sinister about the retrospective effect and it was not done with mala fide intention, but was merely a corrective exercise to make clear the intention of the State Authority. [46] This Court finds that the initial wording of substituted rule 22(1) which reads “Unless stated otherwise in subrule (2), the rates of annual rent for new alienation of lands shall be…” was in substance intended to refer to the existing alienated lands, not new alienated lands. If the effect was only for new alienated lands, then the entire exercise of revision of rents in the State of Pahang under ss. 101 and 14(1)(e) of the NLC would be in vain, if it only applies to future alienated lands. This will lead to application of two different rates, the old rates and the new rates, in the same lands located in the same district and having the same classification. Surely, this was not the intention of the State Authority of Pahang when it exercised the revision of the rent rates in 2019. Hence, although the amendment has retrospective effect, it could not have prejudiced the interest of the appellants. This Court finds that the Page 21 of 22 amendment, i.e., Pahang Land (Amendment)(No. 8) Rules 2022, could not be construed as ultra vires in the substantive challenge of the administrative decision of the respondent to issue the Quit Rents for year 2023, 2022, 2021, and 2020. Conclusion [47] For the above reasons, this Court finds the appellants’ appeals are without merit, and therefore, the appellants’ appeals are hereby unanimously dismissed with costs of RM20,000.00 in each appeal to the respondent (subject to allocator). -sgd- (CHOO KAH SING) Judge Court of Appeal Malaysia Page 22 of 22 Counsel(s) for the appellants: Tan Sri Tommy Thomas (Chuar Kia Lin, Valerie Seaw Ja Hui, Wong Ying Ying and Sharrin Kaur with him) Messrs. Chuar Kia Lin Counsel(s) for the respondent: Dato’ Muhammad Saifuddin B Hashim Musaimi Senior Federal Counsel (Munirah Binti Shamsudin @ Baharum dan Ahmad Fazrul Zahari (Federal Counsels) with him) The Attorney General’s Chambers