Lai Siew Shiang v Pengarah Tanah dan Galian Wilayah Persekutuan, Kuala Lumpur (WA-24NCvC-2594-07/2024)

LAI SIEW SHIANG (NO. K/P: 680422-10-6115) ...PLAINTIF PENGARAH TANAH DAN GALIAN WILAYAH PERSEKUTUAN, KUALA LUMPUR … DEFENDAN

The Plaintiffs have applied to the Court by this Originating Summons (“OS”) for a Declaration that the land tenure of 99 years issued by the Land Office to be reverted to a tenure in perpetuity as it was originally was. Brief facts

The Plaintiffs are holders of individual title of 11635, Lot 29280, Mukim Batu, Daerah Kuala Lumpur. This plot of land was originally held under land grants having tenure in perpetuity.

This land grants were surrendered to the Land Office for purposes of sub divisions for the development of a housing project undertaken by Taman Bukit Maluri Sdn Bhd for the Bukit Maluri. Upon sub-division and new titles being issued, the tenure in perpetuity was changed to a 99 years lease. S/N jriAQk/ftkmzxbZOoR1G6g

The Plaintiffs allege that the conversion of the tenure from perpetuity to a 99 years lease is unlawful and unconstitutional. By this OS the Plaintiff applies for a Declaration from the Court to declare that the land is held in perpetuity instead of 99 years. The intitulement

Order 7 Rule 1A the Rules of Court 2012 (“the Rules”) states the rules governing intitulement in the OS as follows:

Forms of originating summons (O. 7 r. 2)

Every originating summons shall state in its intitulement any provision of these Rules and any provision of any written law under which the Court is being moved.

In the intitulement to the present OS, 2 provisions of law are stated i.e. Section 417 of the National Land Code (Revised 2020) (“NLC”) and Article 13(1) of the Federal constitution (“FC”).

For ease of reference both the provisions are reproduced here:

The Court or a Judge may by order direct the Registrar or any Land Administrator to do all such things as may be necessary to give effect to any judgment or order S/N jriAQk/ftkmzxbZOoR1G6g given or made in any proceedings relating to land, and it shall be the duty of the Registrar or Land Administrator to comply with the order forthwith.

Where, pursuant to any order made by virtue of this section, the Registrar or any Land Administrator—

cancels any instrument relating to land, or any memorial or other entry on any such instrument, or

makes any other amendment of, or addition to, any such instrument,

Article 13 of the Federal Constitution 1) No person shall be deprived of property save in accordance with law.

No law shall provide for the compulsory acquisition or use of property without adequate compensation.

It is starkly that both this provisions of the law do not empower the Court to give a Declaration sought for. Section 417 NLC only binds the Registrar or Land Administrator to comply with a court order once given. The provision does not empower the Court to give an order applied for in this case. In this case the source of power empowering the Court to make such an order is not stated. The Court cannot be expected to guess by itself the applicable S/N jriAQk/ftkmzxbZOoR1G6g provisions of law without the Plaintiffs themselves stating the applicable provision of law.

Article 13 of the FC is totally inapplicable as the Plaintiffs in have not alleged that they have been unlawfully deprived of their land. The complaint is that the land tenure has been reduced. The Court rules that change of the land tenure does not amount to deprivation of land as envisaged in Article 13 of the FC.

The proper provisions of the law that should have been stated in the intitulement are the provisions of the National Land Code with regards to surrendering of the title and re-alienation of the land. None of this provisions are stated in the intitulement. As there are numerous provisions with regards to surrendering of a title and re alienation the Court is again left guessing the applicable provisions. This failure of the intitulement cannot be corrected by way of mere submissions by the counsel.

In the face of a failure in stating the exact provisions of law applicable the Court rules that the OS is defective and is non-compliant with the Rules. Executive power

The National land Code is replete with provisions of surrender of title, the effects of the surrender and the powers of the State Authority on the title being surrendered. The common feature in all S/N jriAQk/ftkmzxbZOoR1G6g this provision is that powers to deal with the land are given to the State Authority which is the Executive arm of the government.

The powers to deal with the land being given to the State Authority can the courts usurp this powers and encroach in executive matters? To do so would be a clear departure from the concept of separation of powers recognised under the Federal Constitution.

This limitation of the powers of court in encroaching into executive powers was recognised way back in the case of Pengarah Tanah Dan Galian Wilayah Persekutuan V Sri Lempah Enterprose dn Bhd [1]979] 1 MLJ 135 which determined the same issue at hand with regards to changing the tenure from in perpetuity to a lease of 99 years.

It was decided in this case that the Government had no power to make the applicant give up its freehold title and receive in exchange a lease of 99 years. However, the Court decided that the matter should be reverted to the Land Executive Committee for reconsideration. The Court did not deem it fit to make any Declaration of reverting the tenure of the land to its original status.

Suffian LP stated as follows: “After holding that the Committee does not have the power it claims, should this court order it to approve the developer’s applications but leave intact the freehold title? S/N jriAQk/ftkmzxbZOoR1G6g I do not think so As was said by Lord Greene MR at page 685 in Associated provisional Picture Houses Ltd V Wednesbury Corporation, the power of a court to interfere in this planning matters is not that of an appellate authority to override a decision of the approving authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the approving authority has contravened the law by acting in excess of the powers which the Parliament had confided in it. Mode of challenging the executive powers

In this case the Court rules that the Court cannot grant the Declaration sought for and the matter should be referred to the Statue Authority for a reconsideration.

In the event the State Authority fails to reconsider or makes a decision in reconsideration in contravention of any law, then the proper mode is to apply by way of judicial review to quash the decision by way of Certiorari and direct by way of Mandamus the State Authority to comply with the law.

In the upshot the Court dismissed the OS with no order as to cost. S/N jriAQk/ftkmzxbZOoR1G6g Dated: 4.6.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N jriAQk/ftkmzxbZOoR1G6g PARTIES For the Plaintiff: Nama Peguamcara: Sern Wei Tze Tetuan B K Soong & Ng No. D-3-12, Pusat Komersial Jalan Kuching (Boulevard Business Park), No. 115, Jalan Kepayang Off Jalan Kuching, 51200 Kuala Lumpur., For the Defendant: Nama Peguamcara: Atikah Jabatan Peguam Negara Malaysia Cawangan Wilayah Persekutuan Kuala Lumpur Tingkat 5 & 7, Wisma Chase Perdana, Off Jalan Semantan, Damansara Heights, 50512 Kuala Lumpur. S/N jriAQk/ftkmzxbZOoR1G6g