Che Minah

- vs -

The Besut Land Office

Judgment

Nik Hahim, J

1. The plaintiff is the registered proprietor of a parcel of land[a] (the said land). The stated category of use of the said land is "agriculture". There are several buildings on the said land including a sundry shop and a surau.

2. In December 1999, the Besut Land Office, the first defendant, wrote to the plaintiff notifying that the buildings had occasioned a breach of s 115 of the National land Code 1965 (the Code). Hence the plaintiff was given 14 days to apply to the relevant authorities to have the category of use of the said land changed. The plaintiff duly made an application to change the category of use of the said land but the application was rejected.

3. The plaintiff was directed by a notice to appear before the first defendant on April 30, 2001 and to show cause why the said land should not be forfeited. The plaintiffs solicitors wrote to the first defendant seeking an adjournment of the enquiry that was scheduled for April 30, 2001 as the counsel having conduct of the matter had only just been appointed and on that day the counsel was engaged in the Kuala Lumpur High Court. 

4. Neither the plaintiff nor the counsel attended the enquiry on the appointed date, and the first defendant proceeded with the enquiry ex parte. By notice dated April 30, 2001 (the order), the plaintiff was ordered:

   Mestilah meremedikan kategori penggunaan dan syarat nyata tanah ini dalam masa 15 hari daripada tarikh perintah ini dikeluarkan. Semua kos remedi hendaklah ditanggung oleh tuan punya tanah. Sekiranya pihak puan gagal mematuhi perintah ini, susulan di bawah Kanun Tanah Negara (Akta 56/1965) akan diambil. (sd) Pentadbir Tanah Besut Tarikh: 30.04.2001. [Emphasis added]

5. To avoid repetition, all references to statutory provisions in this judgment are in respect of the Code unless otherwise specifically indicated.

6. The plaintiff, by an originating summons, prays for a declaration that the order does not comply with s 129(4)(b) as it fails to specify precisely what the plaintiff needed to do in order to remedy the breach of the use of the said land. That being the case, learned counsel for the plaintiff, Mr. Haris Mohamed lbrahim, contends that the order is ambiguous and uncertain in its terms and is therefore void and unenforceable.

7. The learned State Legal Adviser, YB Dato' Haji Ab Karim, on the other hand, has submitted that the court should not exercise its discretion to grant the declaratory relief sought as the plaintiff had failed to appeal against the order pursuant to s 418 or to make use of s 34(1) to re-open the enquiry and to vary the order.

   Section 129(4)(b) states:

   129.

   Action to enforce forfeiture for breach of condition (4) Upon the date, and at the time and place, specified in any such notice, the Land Administrator shall hold an enquiry in accordance with the provisions of this Act, and, on the conclusion thereof - (b) if it appears to him just that time (or where a notice under section 128 has already been served in respect of the breach, further time) should be allowed for remedying the breach, shall make an order specifying the action to be taken for that purpose, and the time within which it is to be taken. [Emphasis added]

8. The above provision is clear and self-explanatory. Thus, in the exercise of his power under s 129(4)(b) to grant time to remedy the breach, the Land Administrator is duty bound at the conclusion of the enquiry to make an order:

   1. specifying the action to be taken for the purpose of remedying the breach; and

   2. specifying the time within which it is to be taken for the purpose of remedying the breach.

9. In other words, the section imposes a duty on the Land Administrator to state precisely what needs to be done and the time within which it is to be taken for the purpose of remedying the breach.

10. Collins Cobuild English Dictionary offers the following examples of the meanings of the word "specifying":

    (i)	If you specify something, you give information about what is required or should happen in a certain situation. They specified a spacious entrance hall... He has not specified what action he would like them to take.
    (ii)	If you specify something should be done, you tell someone precisely what you want doing or how something should be done. Each recipe specified the size of egg to be used ... One rule specifies that learner drivers must be supervised by adults ... Patients eat together at a specified time.

11. What the Land Administrator did in the instant case was to notify the plaintiff that she was given 15 days to remedy the category of land use and the express condition of the said land. The time requirement within which it is to be taken for the purpose of remedying the breach was specified in the order. However, what action that the Land Administrator would like the plaintiff to take in order to remedy the breach was not specified. Here, it is to be noted that the word meremedikan (to remedy) is not a common word that can easily be understood by a Malay. Unless the word meremedikan is followed by the words, for example, dengan merobohkan bangunan-bangunan seperti berikut... (to demolish the following buildings ...), the order as it stands is ambiguous and indeed insufficient. 

    Professor David Foulkes in Administrative Law, 6th Edn 1986 at pp 223 and 224 said:

    Where an administrative decision or rule is expressed in ambiguous language - capable of bearing more than one meaning - the Court will have to decide in the light of all the relevant circumstances what meaning is to be given. Where a penal liability is involved, it is to be interpreted strictly, for 'A man is not to be put in peril upon an ambiguity.' Where it is impossible to resolve an ambiguity or where the decision capable of no sensible meaning, it will be void for uncertainty. Uncertainty however most likely to be invoked in administrative law where a decision or rule lacks that precision which the circumstances require, in particular where a prohibition supported by criminal penalties is enforced on the citizen, he is entitled to know with some precision what he must not do.

12. Non-compliance with a valid order issued pursuant to s 129(4)(b) has serious consequences to the registered proprietor of the land in question. Section 129(5)(b) provides that if such order is not complied with, the Land Administrator shall, on the expiry of the period specified in the order, take temporary possession of the land as he may be directed by the State Authority or in the absence of such a direction, make an order declaring the land forfeited to the State Authority. Therefore, before any action under s 129(5)(b) is taken, it is important that the requirements imposed under s 129(4)(b) are complied with strictly by the Land Administrator, for any defect in the order, as in this case, will surely be challenged by the land owner.

13. The said land is liable to forfeiture based on the finding of the first defendant that there had been a breach of the implied conditions affecting the land and such liability to forfeiture would cease only if the plaintiff remedies the breach complained of. The first defendant stated that the contravention of the implied conditions under s 115 arose from the fact that practically the entire land area of the said land had been built upon by the construction of residential houses, a hall and other buildings. However, s 115(4) read together with s 121(1)(d) would appear to allow the plaintiff to construct more than one dwelling house on the said land. Section 115(4)(a) restricts the land area on which the dwelling house to be occupied by the plaintiff to no more than 1/5th of the land area of the said land. Moreover, s 115(4)(e) would seem to suggest that the sundry shop and the surau that are built on the land may not be in contravention of the Code. 

14. Thus, the question will surely arise: what number of houses that are presently erected on the said land are in compliance with s 115 and what number are not.

15. The first defendant had directed the plaintiff by the order to remedy the breach. But the plaintiff complained that she had not been told precisely the nature of the breach and precisely what she must do in order to remedy the breach as required under s 129(4)(b). To my mind, her complaints are justifiable. Obviously in this case, the Land Administrator had failed to exercise his legal authority meticulously in accordance with the statutory requirement when he failed to specify in the order the action that needed to be taken for the purpose of remedying the breach.

16. In stressing the need to comply with a statutory requirement to the minutest details when exercising legal authority. Lord Hailsham of St Marylebone, LC in London & Clydeside Estate Ltd v Aberdeen District Council [1980] 1 WLR 182 at p 189 said:

    When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest details.

17. Hence, for an order to be effective, the order must be certain and complete in its terms. Any omission to state any statutory requirement in the order will vitiate the order, and thus, it will be void and of no effect for uncertainty. In the instant case, the omission is substantial.

18. Thus, in my view, s 129(4)(b) is mandatory in its terms by reason of the word "shall" in the section. Accordingly, strict compliance with its provision is called for and failure to specify the action that needs to be taken, even though the time within which it is to be taken to remedy the breach was specified, will render the order incomplete and uncertain and hence, defective in law. A defective order is as good as no order at all.

19. It is the contention of the defendants that the declaratory relief now sought is inappropriate given that it is open to the first defendant to re-open the enquiry and to vary the said order pursuant to s 34(1). Given the refusal of the first defendant to adjourn the enquiry on April 30, 2001 and the insistence to proceed with the same ex parte, there would appear to be no good reason why the plaintiff ought to have expected that such an application by her to re-open the enquiry and to vary the order would be entertained by the first defendant. It is to be noted that this proceeding was brought only after the first defendant chose not to respond to the letter from the solicitors of the plaintiff dated August 9, 2001 wherein the said solicitors suggested that the Besut Land Office ought properly to obtain legal advice as to the validity or otherwise of the order and requested confirmation that in the interim, the Besut Land Office would not take any further action. It must be remembered that this letter was sent after a site visit to the said land by an officer of the Besut Land Office who threatened to enter upon the said land subsequent thereto and to demolish the buildings thereon. Given that scenario, the plaintiff cannot be faulted, if ever she can be faulted, for not resorting to s 34(1) to re-open the enquiry and to vary the order. Indeed, the power to re-open an enquiry and to vary an order under that section is given to the Land Administrator and not to the plaintiff.

20. Regarding the plaintiff's failure to resort to s 418, I with due respect, agree with Mr. Haris that the appeal is not necessary in the present case. Therefore, the decision of the Federal Court in Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Bhd [1981] 1 MLJ 234, FC, is not quite applicable to this case.

21. What the plaintiff sought in this proceeding does not touch on the correctness or otherwise of the enquiry conducted by the first defendant on April 30, 2001. What is sought is that the order made by the first defendant in that enquiry is uncertain and unenforceable. In Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37, FC, the appellant vide his counter-claim in a writ action had sought, inter alia, a declaration that the first of two orders of the Collector of Land Revenue was still subsisting. The correctness of the appellant's contention turned on the second order of the Collector being null and void. Before the Federal Court, which had found the second order of the Collector to be null and void and of no effect, the respondent argued that the second order still stood until and unless it had been set aside, and that the failure of the appellant to appeal against the order pursuant to s 418 was fatal and that it was not open to the appellant to challenge the validity of the order by those proceedings.

    Abdoolcader J in delivering the judgment of the Federal Court at p 40 said:

    The decision of this court in Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Bhd to the effect that s 418 which provides for an appeal is the exclusive remedy of an aggrieved person or body against a decision inter alia of a Collector of Land Revenue and precludes any claim for declaratory relief, on which the respondent seeks to rely, has no application to the present proceedings as the decision sought to be impugned in that case was made within jurisdiction and was not a nullity. We reiterate the second in the matter before us is invalid and wholly dehors the provisions of the Code and no appeal is therefore essential or necessary to impugn its validity and it can be subject to collateral attack in the instant proceedings.

22. Likewise, in the present case, the order is invalid and unenforceable because it is contrary to the mandatory provision of s 129(4)(b) and therefore, no appeal is essential to impugn its validity. In the exercise of my discretion, I hereby grant the declaration as prayed.

Cases

Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37, FC; Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Bhd [1981] 1 MLJ 234, FC; London & Clydeside Estate Ltd v Aberdeen District Council [1980] 1 WLR 182

Legislations

National land Code 1965: s.34(1), s.115, s.115(4), (4)(a), (e), s.121(1)(d), s.129(4)(b), (5)(b), s.418

Authors and other references

Collins Cobuild English Dictionary

David Foulkes, Professor, Administrative Law, 1986, 6th Edn

Haris Mohamed lbrahim (Haris & Co) for Plaintiff