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TitleIpoh Garden v Ptg Perak
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ORIGINATING MOTION

LAWYERS: RR Chelliah ( Dato Seri V Jeyaretnam, Dato Sheikh Abdul Rahman
and NH Chan with him) for the applicant.

Shaikh Daud, Legal Adviser, Perak, for the respondent.

JUDGMENTBY: HASHIM YEOP A SANI J

This is a Notice of Motion in which the applicant/appellant, Ipoh Garden Berhad, a
housing developer, is asking for an order that the decision of the Pengarah Tanah
dan Galian, Perak, contained in his letter dated August 23, 1977 pursuant to
application for sub-division of the applicant/appellant in respect of certain lands
be varied. It appears from the Notice of Motion that the appeal is against the said
decision "insofar as it relates to the question of the surrender of the said lands
and the issue of leasehold titles in lieu of the freehold titles." The applicant is also
asking that the court direct the respondent to approve the application for sub-
division aforesaid in the terms of the aforesaid letter with the exception of certain
conditions imposed in that letter, the most important among which was that the
lots comprised in the sub-divided titles would be held under leases for 99 years.

A little background of the facts of the case is necessary. On May 18, 1976, the
applicant pursuant to section 135 of the National Land Code applied to the State
Authority for sub-division of the applicant's lands held under freehold titles
namely, Certificates of Titles Nos. 5801, 5869, 9031, 9032, 9033, 9034, 9035,
9036, 9037 for Lots Nos. 25238, 25241, 29864, 29865, 29866, 29867, 29868,
29869 and 29870 respectively, in the Township of Ipoh. Pursuant to the said
application the respondent by his letter dated August 23, 1977 (i.e. nearly sixteen
months later) gave his reply to the applicant. In his letter the respondent
informed the applicant that the State Government would be prepared to approve
the building scheme to be undertaken by the applicant in accordance with the
proposal for sub-division upon the terms and conditions as set out in the letter.
Other than the usual terms, the terms and conditions contained in the said letter
include the following:--
(1) The applicant to voluntarily surrender the said land held under the
said Certificates of Titles to the government upon which surrender
sub-divided titles would be issued.
(2) That the lots comprised in the sub-divided titles would be held under
leases for 99 years.

It is primarily with these two conditions that the applicant feels aggrieved. The
applicant filed an affidavit dated November 25, 1977 setting out the grounds
upon which it purports to rely to obtain an order from the court to declare that
the said terms as contained in the letter of the respondent referred to above are
ultra vires and/or null and void of the National Land Code and/or the
Constitution of Malaysia in that, inter alia, --
(1) in accordance with section 138 of the National Land Code the State
Commissioner has no alternative but to approve the application for
sub-division where the conditions specified in sub-section (1) of section 136
are satisfied;
(2) nowhere in the National Land Code are there any provisions that the
respondent can impose on the applicant for sub-division the condition
requiring the surrender of the lands in question;
(3) no provisions in the National Land Code whereunder upon approval for

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sub-division the respondent has the power to change the terms of the holding
of the said lands from freehold to leasehold titles; and
(4) the decision of the respondent contained in the said letter is an
infringement of the proprietary rights of the applicant and therefore
contrary to article 13 of the Constitution of Malaysia which provides that no
person shall be deprived of his property save in accordance with law.

In the affidavit of the respondent he contends that his letter dated August 23,
1977 did not purport [*272] to convey a decision on the said application for
sub-division. According to his affidavit that letter was purely a letter conveying an
offer from the State Authority to the applicant as to the "technique of processing"
the State Authority proposes in the said letter in order to assist the applicant in
realising his known aim to develop the said lands for purposes of building
shophouses and residential houses. The intention of the said offer is "merely to
obtain consent from the applicant to subject the said land to the processes of
surrender under section 195 of the National Land Code and alienation under
section 42(1)(a) of the National Land Code." It is further contended in the same
affidavit that the conditions proposed in the letter are not ultra vires the National
Land Code or the Constitution of Malaysia. This contention is presumably on the
same ground that the said letter of the respondent was not really a decision but
an "offer" made to the applicant and has not affected the applicant's proprietary
rights at all.

During the hearing of the Notice of Motion the same arguments were amplified by
the learned Legal Adviser who categorically stated that the offer was based on a
new policy of the State Government in accordance with the objective of
encouraging conversion from freehold to leasehold. Learned counsel for the
applicant argued that the rights conferred under section 92(1) of the National
Land Code are indefeasible and that section 92(2) confers a right to sub-division.
It was also argued on behalf of the applicant that all the conditions required
under sections 135(1) and 136(1) of the National Land Code on procedure of
the application for sub-division and the conditions for approval of sub-division
have been fully complied with by the applicant in this case and there was no
reason whatsoever to reject or delay the application for sub-division. It was also
pointed out on behalf of the applicant the relevance of the provision of section
138(2) of the National Land Code which provides that if on any application
under sub-section (1) thereof it appears to the Collector or the Commissioner that
the conditions for approval of the sub-division specified in section 136(1) are
satisfied, or that those conditions would be satisfied if the proposals in the
application were modified in one or more minor respects, the Collector or
Commissioner, as the case may be, shall approve the sub-division in accordance
with the said proposals, modified where necessary as mentioned. Therefore since
all the conditions are satisfied in this case the respondent has no alternative but
to approve the application for sub-division. The letter of the respondent dated
August 23, 1977 instead of approving the application imposed certain conditions
outside the scope of the National Land Code. Therefore it is contended that an
approval subject to surrender of the freehold titles would be illegal and ultra
vires.

Learned counsel for the applicant cited Sri Lempah Enterprise Sdn Bhd v Land
Executive Committee, Federal Territory [1979] 1 MLJ 135 at 136, which was then
pending before the Federal Court. The learned Legal Adviser submitted that the
case of Sri Lempah Enterprise Sdn. Bhd. was distinguishable from the present
case as the letter referred to in that case directed the surrender of the title but
not in this case which was only an offer to surrender.

The Federal Court has now decided in the Sri Lempah Enterprise case [1979] 1

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