TANG GUAN GIM v Pejabat Daerah dan Tanah (MA-24NCvC-403-09/2025)

PEJABAT TANAH DAN GALIAN MELAKA ... DEFENDANTS GROUNDS OF JUDGMENT A. INTRODUCTION [1] This is an application by Originating Summons by which the Plaintiff seeks an order compelling the Defendants the District and Land Office of Melaka Tengah and the Land and Mines Office of Melaka to furnish and to communicate to him, within fourteen days, a decision upon his written application dated 22.04.2025. The application is expressed to be founded upon section 133 of the National Land Code, Order 92 rule 4 of the Rules of Court 2012, and the inherent jurisdiction of the Court. [2] The Plaintiff was formerly the registered proprietor of land held under Geran 12429, Lot 93, Kawasan Bandar XXVII, Daerah Melaka Tengah, known as No. 2, Jalan Chan Koon Cheng, Bandar Hilir, Melaka. It is common ground that the land was subsequently forfeited to the State Authority for non-payment of quit rent. The order of forfeiture was made on 30.01.2013 and was subsequently published in the Government Gazette on 28.03.2013. The Plaintiff thereafter submitted an application under section 133 of the National Land Code by letter dated 22.01.2018, which was rejected by letter dated

02.2019. The present proceedings arise from a further application dated 22.04.2025, upon which, as at the commencement of these proceedings, no decision had been communicated to the Plaintiff. [3] The relief sought is, by design, narrow. The Plaintiff does not ask this Court to set aside the forfeiture, nor to declare him restored to the register, nor to direct that the land be realienated to him. He asks only that the Defendants be compelled to make and to communicate a decision upon the application of 22.04.2025. [4] The controversy is therefore not whether the forfeiture was valid. It is whether the law imposes upon the Defendants a duty, enforceable by this Court, to consider and to communicate a decision upon that application; and, if so, whether the manner in which these proceedings have been commenced permits the Court to grant the relief sought. [5] Gathered around that controversy are several subsidiary questions: whether the Defendants are functus officio by reason of the disposal of the earlier application; whether the application is met by limitation or by the doctrine of laches; and whether the disputed questions concerning service of the statutory notices fall to be determined in these proceedings at all. B. MATERIAL FACTS AND PROCEDURAL HISTORY [6] The Plaintiff became the registered proprietor of the land in 1995. That he was the registered proprietor immediately before forfeiture is admitted on the affidavits. [7] It is not disputed that the land became the subject of proceedings for forfeiture on account of arrears of quit rent. A Notice of Demand in Form 6A issued pursuant to sections 97 and 98 of the National Land Code, dated 30.09.2011, demanded payment of arrears amounting to RM9,918.20 and was published in the Government Gazette dated 02.08.2012. Thereafter, an order of forfeiture under section 100 was made on 30.01.2013, and the Notification of Forfeiture in Form 8A was published as Gazette Notice No.262 in the Government Gazette dated 28.03.2013 pursuant to section 130 of the National Land Code. The existence and contents of those Gazette notifications are not disputed. The Plaintiff, however, contends that the statutory forfeiture process was invalid because the requisite notices were not served in accordance with the National Land Code, an issue to which I shall return later in this judgment. [8] Personal service of the Form 6A notice of demand and of the Form 8A notice of forfeiture was not effected. On the affidavit of Junaidah binti Mohamad Haniapah affirmed on 03.12.2025 (the first Defendant's affidavit in reply, Enclosure 5), substituted service was effected under section 432 of the National Land Code by affixing the notices at the property and at the notice board of the Land Office, and by publication in the Gazette, that service being said to be verified by the statutory declarations of the process server dated 05.11.2012 and 26.05.2014. [9] The Plaintiff disputes the sufficiency of that substituted service. In his Supporting Affidavit affirmed on 02.10.2025 (Enclosure 3) and his Reply Affidavits affirmed on 14.01.2026 (Enclosures 8 and 9), he deposes that the Form 6A Notice of Demand was addressed to "Lot 94, Jalan Banda Kaba" and contends that the process server's statutory declarations likewise refer to notices having been affixed at that address, which he says is the adjoining property rather than the subject land, namely Lot 93. The Plaintiff accordingly maintains that the statutory notices were not validly served. The validity and sufficiency of the substituted service are disputed on the affidavits and remain matters in issue. [10] On 22.01.2018, through his then solicitors, Messrs S.F. Pang & Chandra, the Plaintiff submitted an application under section 133 of the National Land Code seeking the annulment of the forfeiture. That application was rejected, and the rejection was communicated by letter dated 14.02.2019. The making of that application and its rejection are matters that are not in dispute. [11] On 22.04.2025, through his present solicitors, the Plaintiff submitted a further written application addressed to the Director of Lands and Mines, Melaka. The application referred to the earlier rejection of the Plaintiff's petition in 2019, relied upon the subsequently discovered Government Gazette notifications and the alleged defects in the service of the statutory notices, sought the re-alienation of the land pursuant to section 133(3) of the National Land Code, and expressed the Plaintiff's willingness to pay the outstanding quit rent, the prescribed statutory penalties and such further conditions as the State Authority might impose. Receipt of the application was acknowledged. It is common ground that, as at the commencement of these proceedings, no decision on that application had been communicated to the Plaintiff. [12] The Originating Summons was filed on 29.09.2025. The application proceeded on affidavit evidence, comprising the Plaintiff's Supporting Affidavit, the Reply Affidavits of both Defendants, including the Second Defendant's Reply Affidavit affirmed by Muhammad Luqman Nurhakim bin A ldrus on 04.12.2025 (Enclosure 6), and the Plaintiff's Reply Affidavits. No oral evidence was adduced. C. ISSUES FOR DETERMINATION [13] The issues, as I would frame them, are these. First, as a threshold, whether relief compelling a public authority to perform a public function may be obtained by Originating Summons founded on section 44 of the Specific Relief Act 1950 and the inherent jurisdiction, or whether it must be sought by judicial review under Order 53 of the Rules of Court 2012. Secondly, and dispositively, whether the National Land Code imposes upon the Defendants a duty, enforceable by this Court whether by mandamus or under section 44 of the Specific Relief Act 1950, to consider and to communicate a decision upon the application of 22.04.2025 for re-alienation under section 133(3). Thirdly, whether the disposal of the 2018 application for annulment renders the Defendants functus officio, and whether the application is barred by limitation or laches. Fourthly, whether the disputed questions concerning service of the statutory notices fall for determination in these proceedings. The second issue is dispositive; the remaining issues either fall away or become immaterial once it is resolved, but I address each because each was put in contest. The Statutory and Legal Framework [14] The validity of the forfeiture does not fall for determination in these proceedings. The provisions governing the issuance and service of the statutory notices, in particular sections 97,98, 100 and 432 of the National Land Code, and the consequences of any non-compliance therewith, therefore do not require extended consideration except insofar as they provide the factual context to the Plaintiff's application under section 133. This is reinforced by section 134 of the National Land Code, which provides that the validity of a forfeiture may be challenged only by way of an appeal under section 418, and not in proceedings of the present nature. The real issue before the Court concerns the operation of section 133, and whether the Defendants were under a duty to consider and communicate a decision on the Plaintiff's application made pursuant to that provision. D. ANALYSIS AND DETERMINATION Threshold: Mode of Commencement [15] The governing principle is well settled. Relief compelling a public authority to act, whether under section 44 of the Specific Relief Act 1950 or by the common law remedy known as mandamus, presupposes that the act sought to be compelled is one which the law makes clearly incumbent upon the authority. Such relief may require an authority to perform its public duty or to consider and determine a matter where the law obliges it to do so, but it does not lie to dictate the manner in which a lawful discretion is to be exercised. Equally, it cannot be granted where the authority is under no legal duty to exercise the discretion at all. The application of those principles to the structure of section 133 of the National Land Code is the matter to which I now turn. [16] It is said that the relief sought ought to have been pursued by judicial review under Order 53 of the Rules of Court 2012, and not by Originating Summons. In Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145; [2010] 5 CLJ 865, the Federal Court held that where a claim is founded solely on substantive principles of public law, the proper procedure is judicial review under Order 53, and proceedings commenced by writ or originating summons may amount to an abuse of process. Conversely, where the matter is essentially one of private law, the mere involvement of a public authority does not make Order 53 appropriate. Where both elements are present, the Court must determine whether the public law element is predominant. [17] The characterisation of the present matter as one of predominantly private law cannot be accepted. The duty asserted is a statutory duty said to be owed by public authorities in the administration of State land under the National Land Code, and the complaint is of the non-exercise of a statutory function. That is the domain of public law. Although the subject matter concerns land, the Plaintiff does not advance a private law cause of action in contract, tort, or a dispute of proprietary rights between private parties. The passage in Ahmad Jefri relied upon by the Plaintiff, concerning private law matters involving public authorities, therefore does not assist him. On the contrary, because the present complaint is public in character, the reasoning in Ahmad Jefri supports the Defendants' objection that the proper procedure was judicial review under Order 53. [18] Relief under section 44 of the Specific Relief Act 1950 is, however, also invoked, and such relief may properly be sought by Originating Summons. Whether the failure to proceed by way of judicial review under Order 53 is, of itself, fatal is a question which I need not finally determine. The decisive issue, common to either procedural route and more fundamental than the choice of procedure, is whether the Defendants were under a legal duty capable of being compelled in relation to the Plaintiff's application under section 133 of the National Land Code. I therefore assume, without deciding, that the procedure adopted was available to the Plaintiff, and proceed to consider that question. Whether the Defendants Are Under a Duty to Decide the Application of 22.04.2025 [19] The dispositive question is whether the National Land Code casts upon the Defendants a duty, enforceable by this Court, to consider and communicate a decision upon the application dated 22.04.2025. The relief sought is in the nature of mandamus, with section 44 of the Specific Relief Act 1950 invoked in aid. Both routes share a common and indispensable foundation. Mandamus lies to compel the performance of a public duty imposed by law, as explained by the Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641; [2008] 5 CLJ 321. Relief under section 44 is similarly available only where the act sought to be compelled is, under the law for the time being in force, clearly incumbent upon the person or authority against whom the order is sought. The authorities, including Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481 and Workon Sdn Bhd v The Director of Lands & Surveys, Sabah & Ors [1999] 4 MLJ 177, are consistent with that requirement. Whichever route is taken, the threshold is the same: a legal duty must be shown. [20] It is equally well settled that neither mandamus nor an order under section 44 of the Specific Relief Act 1950 lies to compel the exercise of a discretionary power in a particular manner, or to require a public authority to confer a benefit which the law leaves to its discretion rather than to perform a duty imposed by law. An illustration of that principle is found in Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33 (FC), where the Federal Court recognised that the issue of a passport was a matter of governmental discretion and not of legal entitlement. The Court may compel an authority to decide a matter which the law requires it to decide; it may not dictate the decision, nor compel the exercise of a discretionary power which the authority is under no legal obligation to exercise. [21] The duty contended for is said to arise from section 133 of the National Land Code. It is convenient to set out the structure of that section. Subsection (1) entitles any person or body who was the proprietor of alienated land immediately before its forfeiture to apply, at any time, to the State Authority for the annulment of the forfeiture. Subsection (2) provides that the State Authority may, in its absolute discretion, refuse or allow any petition under the section and, if it allows the petition, may do so subject to the conditions there specified. Subsection (3) further provides that the refusal of a petition shall not prejudice the power of the State Authority to re-alienate the land to the previous proprietor at any time and that, for the purposes of any such re-alienation, the State Authority shall, at the time when it gives approval thereto, re-determine such of the matters specified in subsection 79(2) as it considers appropriate. [22] The Plaintiff's argument proceeds in two stages. First, it is said that subsection (2), by providing that the State Authority may refuse or allow "any petition under this section", necessarily extends to a request for re-alienation under subsection (3). Secondly, it is contended that the word "shall" appearing in subsection (3) imposes a mandatory duty upon the State Authority to consider and determine the Plaintiff's application dated 22.04.2025. In my judgment, neither proposition is supported by the language or structure of section 133. [23] As to the first, subsection (3) is materially different in structure from subsections (1) and (2). Subsection (1) expressly provides for an application to the State Authority for the annulment of the forfeiture, and subsection (2) regulates the State Authority's disposition of such petition by providing that it may, in its absolute discretion, refuse or allow it. Subsection (3), by contrast, does not prescribe a petition procedure for re-alienation. It preserves the power of the State Authority to realienate the land to the previous proprietor at any time notwithstanding an earlier refusal of a petition. Although a former proprietor may request re-alienation, subsection (3) does not convert such a request into a petition which the State Authority is under a statutory duty to entertain and determine. [24] As to the second, the mandatory word "shall" in subsection (3) does not bear the weight which the Plaintiff seeks to place upon it. It is conditional and consequential in operation. It applies "for the purposes of any such re-alienation" and "at the time when [the State Authority] gives approval thereto." Grammatically and contextually, the imperative attaches to the obligation to re-determine the matters specified in subsection 79(2), once approval for re-alienation has been given. It presupposes that the State Authority has already decided to re-alienate the land. The subsection therefore imposes a duty as to the manner in which effect is to be given to an approval already granted; it does not impose a duty to grant such approval, or to consider and determine every request that re-alienation be approved. To construe it otherwise would be to transform a contingent and consequential provision into a free-standing obligation, a construction which the language of the subsection cannot fairly bear. [25] That the power of re-alienation preserved by subsection (3) is discretionary, and not one which the State Authority is under a statutory duty to determine upon request, is consistent with both the language of the provision and established principle. The mere fact that a former proprietor requests the State Authority to exercise that power does not, without more, convert the existence of the power into a corresponding legal duty to consider and determine the request. Were it otherwise, every discretionary statutory power could be transformed into a mandatory obligation simply by the making of an application. Such a construction would be inconsistent with the nature of a statutory discretion and is illustrated by the reasoning of the Federal Court in Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33, which recognised that the existence of a discretionary statutory power does not, without more, create a corresponding legal entitlement in the applicant. A former proprietor may invite the State Authority to exercise the power preserved by subsection (3); he cannot compel it to determine that invitation. [26] The authorities relied upon do not carry the matter further. In United Malayan Banking Corporation Bhd v Pemungut Hasil Tanah, Kota Tinggi [1979] 2 MLJ 202, the Court observed that a former proprietor has two courses open to him, namely to seek annulment and, after refusal, to seek realienation. That describes the avenues available to him. It does not establish that the State Authority is bound in law to determine a request for re-alienation, much less that its failure to do so may be compelled by mandamus. Menteri Besar Negeri Pahang Darul Makmur v Seruan Gemilang Makmur Sdn Bhd [2010] 4 MLJ 360 (CA) concerned mandamus in the context of enforcement of a certificate issued under section 33 of the Government Proceedings Act 1956. It does not convert the discretionary power of re-alienation under section 133(3) into a duty to entertain and determine an application for it, and is therefore distinguishable. [27] Nor does the material concerning the Shah Alam proceedings assist the Plaintiff. The order said to have directed a rehearing of a petition under section 133 was, according to the Plaintiff's own evidence in his Reply Affidavit (Enclosure 8), unaccompanied by written grounds of judgment, and no appeal was pursued. An unreasoned order establishes no ratio decidendi and therefore carries no precedential value for the proposition advanced. Likewise, the reported decisions in S.E.A. Housing Corporation Sdn Bhd v Pentadbir Pejabat Daerah dan Tanah Petaling [2024] MLJU 1903 and Pentadbir Pejabat Daerah dan Tanah Petaling v S.E.A. Housing Corporation Sdn Bhd [2025] MLJU 2668 concerned the disposal of a petition for annulment in circumstances involving the issuance of an overlapping lot. They do not decide whether section 133(3) imposes a statutory duty upon the State Authority to entertain and determine a request for re-alienation, and are therefore distinguishable. [28] It follows that the Defendants were under no legal duty, enforceable by this Court, to consider, determine and communicate a decision upon the Plaintiff's application dated

04.2025. The further question, whether the absence of any communicated decision amounted to an unlawful failure to exercise a statutory discretion, must likewise be answered in the negative. There can be no unlawful failure to exercise a statutory discretion where the authority is under no legal obligation to exercise that discretion in response to the request made. Accordingly, the absence of any communicated decision does not, without a corresponding legal duty, found a claim for relief by way of mandamus or under section 44 of the Specific Relief Act 1950. Functus Officio, Limitation and Laches [29] The contention that the Defendants are functus officio cannot be accepted, though for reasons that do not assist the Plaintiff. The doctrine prevents an authority from reopening a decision it has already made; it has no application to a power which the statute keeps open. Section 133(3) expressly provides that the refusal of a petition shall not be taken as prejudicing the power to re-alienate at any time. The disposal of the 2018 application for annulment therefore did not exhaust the State Authority's power to re-alienate, and the functus contention is misconceived. But that the power subsists is not the same as a duty to exercise it; the survival of the power does not supply the duty whose absence is decisive against the application. [30] The contentions founded upon limitation are equally misdirected. Section 2(a) of the Public Authorities Protection Act 1948, the three-month period under Order 53 of the Rules of Court 2012, and section 418 of the National Land Code are all directed to a challenge to the forfeiture of 2013. By section 134(1), the validity of a forfeiture may be challenged only by means of an appeal under section 418, brought within the three months there allowed; and, by section 418, such an appeal lies against a decision of the State Director, the Registrar or the Land Administrator, and not against the State Authority's exercise of its discretion under section 133. These proceedings mount no such challenge. They are confined to the Defendants' response to an application made in 2025. A period of limitation running from the forfeiture does not bar a complaint about the want of a decision upon a later application, and the doctrine of laches, which is directed to delay in the assertion of a right, does not fit the relief presently sought. For the same reason, the power of re-alienation under section 133(3), being that of the State Authority, attracts no appeal under section 418, and no three-month bar arises in respect of it. These contentions do not arise, I need not decide them, and they form no part of the basis upon which the application is determined. The Disputed Questions of Service [31] Whether Forms 6A and 8A were validly served, and in particular whether they were affixed at Lot 93 or at the adjoining Lot 94, Jalan Banda Kaba, is sharply contested on the affidavits. The Plaintiff's Supporting Affidavit (Enclosure 3) and Reply Affidavits (Enclosures 8 and 9) assert that the statutory notices were directed to, and the process server's statutory declarations refer to, Lot 94, Jalan Banda Kaba rather than the subject property, while the First Defendant's Reply Affidavit (Enclosure 5) maintains that substituted service was duly effected pursuant to section 432 of the National Land Code. These disputed questions do not fall for determination in the present proceedings. The validity of the 2013 forfeiture is not the subject of the Originating Summons, the relief sought being confined to an order compelling the Defendants to furnish a decision on the Plaintiff's application dated 22.04.2025. Moreover, section 134(1) of the National Land Code provides that the validity of a forfeiture may be challenged only by an appeal under section 418, a course which was not pursued. The disputed issues concerning service therefore form part only of the factual background to the Plaintiff's application and do not arise for determination in deciding the present Originating Summons. [32] I therefore make no finding upon those disputed issues. The authorities relied upon by the Plaintiff concerning the consequences of defective service, namely Khoo Cheng & Ors v Pentadbir Tanah Muar [2008] 3 CLJ 534 and Sungei Tukang Rubber Co Bhd v The Government of the State of Kedah [1982] CLJ (Rep) 775, are directed to the validity of forfeiture proceedings. Since the validity of the forfeiture does not arise for determination in the present Originating Summons, those authorities do not call for consideration. For the same reason, it is unnecessary to address the Plaintiff's reliance upon Article 13(1) of the Federal Constitution, that contention likewise being directed to the lawfulness of the forfeiture rather than to the narrow question whether the Defendants were under a legal duty to determine and communicate a decision on the Plaintiff's application dated 22.04.2025. E. CONCLUSION [33] The application is determined upon a single, dispositive ground. The National Land Code imposes no duty upon the Defendants, enforceable by this Court, to consider, determine and communicate a decision upon the Plaintiff's application dated 22.04.2025 for re-alienation under section 133(3). The power of re-alienation preserved by that subsection is a discretionary power of the State Authority exercisable at any time; it is not a power which the State Authority is under a statutory duty to exercise or determine upon the request of a former proprietor. Neither mandamus nor an order under section 44 of the Specific Relief Act 1950 can compel the performance of a duty which the law does not impose. [34] It is unnecessary for me to determine the Defendants' further contentions that they are functus officio or that the Plaintiff's application is barred by limitation or laches, those matters being immaterial to the disposition of the present Originating Summons and forming no part of the reasoning by which it is decided. The disputed questions concerning the validity of service likewise do not fall for determination, and I make no finding upon them. The application fails for one reason only, namely that the National Land Code imposes no enforceable legal duty upon the Defendants to consider, determine and communicate a decision on the Plaintiff's application dated 22.04.2025. F. ORDERS OF THE COURT [35] In the result, I make the following orders:

The Originating Summons (Enclosure 1) is dismissed.

The Plaintiff shall pay the Defendants costs, which I fix at RM 7,500.00. In fixing that amount, I have taken into account that, although the Defendants have succeeded in resisting the application, not all of the grounds advanced in support of their opposition have been accepted. Dated 10 July 2026 (MELAKA) Lawyer For Applicant : Encik Gurbinder Singh Gill bersama Cik Au Ching Yi dan Cik Nurul Fadhilah binti Kamarulzaman Tetuan Manjit Singh Sachdev, Mohammad Radzi & Partners Peguambela dan Peguamcara Suite 18.05A, Level 18, Johor Bahru City Square, No. 106-108, Jalan Wong Ah Fook, 80000 Johor Bahru, Johor. Lawyer For Defendants : Puan Anis Wahidah binti Mohamad Pejabat Penasihat Undang-Undang Negeri Melaka Pejabat Setiausaha Kerajaan Negeri Melaka, Aras 1, Blok Laksamana, Seri Negeri, Ayer Keroh, 75450 Melaka.