Hotel Sentral (JB) Sdn Bhd

v
Pengarah Tanah dan Galian Negeri
Johor, Malaysia & Ors

Presented by: Hui Li Juan

U2004098
 Intro
High Court in Johor Bahru
Judicial Review
Parties -
Applicant: Registered owner of Lot 2897 where the Hotel Sentral is situated
1st Respondent: Pengarah Tanah dan Galian Negeri Johor
2nd Respondent: Registrar
3rd Respondent: Majlis Bandaraya Johor Bahru
4th Respondent: Registered Owner of Lot 3270

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1
Facts of The Case
 Facts of The Case
● 4th Respondent applied from the State Authority to alienate the said land to him.
● The said land had been utilised by public at large. Applicant’s Hotel Sentral also used the said land
as the ingress and egress to the basement car park.
● The State Authority disposed the said land to the 4th Respondent and now, the Former Lot 3270
and the said land had been amalgamated into the New Lot 3270, owned by 4th R. This allowed him
to commence construction work on the said land, and there were heavy machines mobilised on the
said land.
● Thus, the applicant seeks to declare that the decisions made by the 1st, 2nd and 3rd respondents
to firstly revoke the said land and thereafter, to alienate the said land to the fourth respondent
to be null and void and of no effect and that an order be granted to quash the aforesaid decisions.

New Lot 3270 (4th Respondent)

Lot 2897 (Applicant)

The Former Lot 3270
Said (4th Respondent)
Hotel Sentral with
Land
basement car park

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2
Contentions from
Applicant
Applicant’s First Contention

● S.5: “reserved land” means land for the time being reserved for a public purpose…
● Pursuant to S.40 of the NLC, the State Authority’s power to alienate land (S.41, 42,
S.76 of NLC) is confined only to State lands, but not reserved land. (exceptions under
S.62(4)(a), but irrelevant to this case)
● S.64(2): Where it is proposed to revoke any reservation in pursuance of subsection
(1), notice of the proposal shall be published in the Gazette……
● Assume the said land is a reserved land.
● In this case the “reserved land” was not gazetted, Applicant contended that the
State Authority had failed to abide by S.64 of the NLC and thus the revocation can
not be effected under S.64.
● Without revocation, the status of the said land remain as a “reserved land”
● Alienation of the said land to the 4th R is null and void.

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Applicant’s Second Contention

● Even if the said land is a State land, the alienation would still have been
unlawful since S.76 of the NLC stipulates that an alienation in perpetuity
can only be undertaken if the State land is used for a public purpose
(S.76(aa)(ii)) or there are special circumstances (S.76(aa)(iii)).
● Applicant contended that since the land is for a private development project
but not for a public purpose.
● The alienation is ultra vires S.76(aa) of NLC.

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Applicant’s Third Contention

● The alienation has caused Hotel Sentral to be in violation of various

legislation, rules and regulations, relying principally on the affidavit of the
architect’s professional opinion.

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3
Contentions from
Respondents
1st Respondent (Pengarah Tanah dan Galian Negeri Johor) &
2nd Respondent (Registrar)

● The said land had never been gazetted as a reserved land under the NLC
and thus it is not a reserved land. No revocation of any reserved land was
necessary.
● Alienation in perpetuity had been lawfully undertaken in pursuance of
S.76(aa)(iii) - special circumstances

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3rd Respondent (Majlis Bandaraya Johor Bahru)

● Nothing to do with the decisions of revocation and alienation since 3rd R was not
empowered under any provisions of the Local Government Act 1976 to reverse any
decisions made by the State Authority
● Any comments or opinions cannot be construed as a decision which is reviewable in
these proceedings
● 3rd R submitted that applicant’s argument that the alienation of the said land had
adversely affected its interest since the only access into and exit from basement is
via the said land is illogical, no matter the said land is a state land or a reserved
land, it was not for a private benefit.

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4th Respondent (Owner of Lot 3270)

● Applicant is not an aggrieved person and has no locus standi to institute these
judicial review proceedings.
● Applicant should not have conveniently assumed the said land to be a reserved
land.
● Alienation in perpetuity was not ultra vires as S.76(aa)(iii) of the NLC concerning
“special circumstances” would apply. This is because the 4th Respondent’s original
title for Lot 3270 which was surrendered for amalgamation had previously been
held in perpetuity.

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 4
Evaluation and Findings of the
Court

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 Issues
1) Whether the said land is a reserved land in law?
● Whether the requirements provided in S.64 is mandatory
or directory?
2) Whether the applicant adversely affected by the decision to
“revoke” & alienate? (Right to apply for judicial review)
3) Whether the alienation in perpetuity is ultra vires?
4) Whether the alienation has caused Hotel Sentral to be in
violation of law?
5) Whether the applicant has correctly named the 1st and 2nd
Respondents in this action instead of the State Authority?

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1) Whether the said land is a reserved land in law?

● S.5: “reserved land” means land for the time being reserved for a public purpose…
● S.62(1): The State Authority may by notification in the Gazette reserve any State
land for any public purpose.
● It is in fact not disputed that the said land was never gazetted.
● As such, the said land cannot be considered as a reserved land in law within the
meaning and ambit ascribed to it by S.5 and S.62(1) of the NLC.
● The said land continue and remain to be State land, including at the material time
when it was alienated to the 4th Respondent.
● It is manifest that the issue of whether the status of the said land as a reserved
land is validly revoked in accordance with S. 64 does not arise.
● Accordingly, there is thus no decision that is susceptible to judicial review because
there is no offending act or omission to speak of.

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1) Whether the said land is a reserved land in law?

● S.78(3): The alienation of State land shall take effect upon the registration of
a register document of title thereto …… notwithstanding that its alienation has
been approved by the State Authority, the land shall remain State land until
that time.
● North East Plantation Sdn Bhd v Pentadbir Tanah Daerah Dungun:
○ Federal Court held that under S.78(3), since the process of alienation
has not been completed and document of titles not issued, the relevant
lands remained as State lands until registration of a register document
of title
● S.40(a): There is and shall be vested solely in the State Authority the entire
property in all State land within the territories of the State.
● In this instant case, the High Court held that similar to the outcome in North
East case and by virtue of S.40(a) of the NLC, the said land remain vested
solely in the State Authority.

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Applicant went on argued that the State Authority cannot be allowed to
take advantage of its own failure.
● It is entirely within the discretionary power of the State Authority to decide
whether or not to reserve any State Land.
● If, having identified a piece of land to be made reserved land, the State Authority
for whatever reasons does not subsequently proceed to gazette the same, it cannot
legitimately be said that there is any form of failure or non-compliance on the part
of the State Authority.
● It merely means that the requisite steps for the creation of a reserved land, such
as the gazette and notification under s. 62 are not complete and thus no reserved
land.
● The State Authority is under no legal duty to ensure the gazetting of a land
proposed to be reserved.
● In order to avail oneself of this principle it is trite that a breach on the part of the
party said to be taking advantage of his own wrong must first be established. In
the instant case, it has not been shown what is the breach or non-compliance on
the part of the State Authority that could give rise to the application of the
principle.
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Sub issue under issue 1: Whether the requirements provided in S.64 are
mandatory or directory?

● The Federal Court in the case of Government Of The State Of Negeri Sembilan v.
Yap Chong Lan & Ors:
○ “We must dissent on his conclusion as to the purport and effect of Section
64. The compelling provisions of Section 64 can hardly be said to be
merely directory, and the phraseology of the provisions of sub-section (2)
thereof clearly connotes a mandatory requirement which necessitates.”
● Ng Yit Seng & Anor v. Syarikat Jiwa Mentakab Sdn Bhd & Ors, it is clearly
manifest that until and unless revocation has been effected under Section 64,
reserved land will continue as such, and compliance with this statutory
requirement as a prerequisite to revocation cannot be circumvented by treating
an essential legislative stipulation as a mere formality.
● Thus, the requirements provided in S.64 of the NLC are mandatory.

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2) Whether the applicant adversely affected by the
decision to “revoke” & alienate?

● O.53 r. 24 of the Rules of Court 2012: any person who is adversely affected by the
decision in relation to the exercise of a public function is entitled to make an
application for judicial review
● (1) Even if the said land is a reserved land, any benefit accruing to the Applicant is
on the same basis of what others could have similarly enjoyed and benefited from.
A reserved land will not solely benefit the applicant.
● (2) Applicant’s misconception of the status of the land does not make him an
aggrieved party.
● Furthermore, in the absence approved building plans, difficult in determining
whether access to the car park had actually been approved to be through the said
land. Much reliance is placed on the affidavit containing the expert report.

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3) Whether the alienation in perpetuity is ultra vires?

● The power of alienation is vested exclusively in the State Authority.

● S.42(1)(a): Subject to subsection (2), the State Authority shall have power under
this Act to alienate State land in accordance with S.76
● S.76(aa): The alienation of State land under this Act shall consist of its disposal by
the State Authority in perpetuity
○ (ii)where the State Authority is satisfied that the land is to be used for a
public purpose; or
○ (iii)where the State Authority is satisfied that there are special circumstances
which render it appropriate to do so;
● The alienation is in pursuance of an amalgamation which involved another land
of the 4th Respondent already held in perpetuity. It could reasonably be said to
be a legitimate basis of special circumstances.
● The status of the land being alienated shall be no different from that which is
earlier surrendered for subdivision prior to the said subsequent alienation.

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4) Whether the alienation has caused Hotel Sentral to be in violation of law?

● Conclusion of the expert (architect) report that the effect of alienation is to render
Hotel Sentral to be in breach of the Street, Drainage and Building Act 1974 and
the Uniform Building By-Laws 1984 clearly constitutes an opinion of law which is
not admissible.
● Relevant local authority did not suggest that any form of violation of law that
would ensue after the alienation.

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Additional point

● Additional point raised by the court: applicant cannot benefit from S.44(1)(b)
of the NLC which entitles applicant to the support of its land in its natural state
by any adjacent land.
● (1) Hotel and the basement car park is a relatively recent development, not
part of the natural state of applicant’s land
● (2) s. 44(1)(b) contemplates a situation where activities (for example,
excavation works) on one land cause some form of withdrawal of support, in a
physical sense, to the adjoining land such as resulting in land subsidence
suffered by the latter
● The situation in the instant case involves the “withdrawal” of the said land
which is claimed to affect not the conditions of the natural physical support or
stability to the land, but instead the access to the carpark of the hotel of the
applicant, does not fall within the ambit of the provisions of s. 44(1)(b) of the
NLC.

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5) Whether the applicant has correctly named the 1st and 2nd Respondents
in this action instead of the State Authority?

● S.16(2)(b): The State Director may, on behalf of the State Authority, commence,
prosecute and carry on in the name of his office any action, suit or other
proceedings relating to any contract concerning land to which the State Authority
is a party.
● Any action, suit or other proceedings relating to land in which it is sought to
establish any liability on the part of the State Authority must be brought against
the State Director in the name of his office.

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 5
1) The said land is not a reserved land
but a state land.
2) Decision to alienate in perpetuity is
not ultra vires.
3) Applicant failed to establish himself
as a person adversely affected by the
decision to alienate the said land. Held
4) The application for judicial review is
denied and dismissed with costs.

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 Personal
Commentary

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