1. ) LEE KWONG LENG 2. ) CHAN LAI CHEE v PENGARAH TANAH DAN GALIAN WILAYAH PERSEKUTUAN, KUALA LUMPUR

Case Significance

Illustrates the court's reluctance to grant a declaration that would usurp the land authority's discretion over land tenure: rather than declare a 99-year lease reverted to perpetuity, the court dismissed the originating summons and held the proper course was to remit the matter to the Land Executive Committee for reconsideration, with mandamus available if it fails to act lawfully.

This High Court decision at Kuala Lumpur, delivered by Judge Dato' Haji Akhtar bin Tahir, concerns an attempt to obtain, by declaration, the reversion of land tenure from a 99-year lease to a tenure in perpetuity, and the limits on the court's power to substitute its own decision for that of the land authority. The plaintiffs, registered owners of a residence on a lot in Mukim Petaling, Kuala Lumpur, applied by originating summons for a declaration that the 99-year tenure issued by the Land Office be reverted to the tenure in perpetuity under which the land was originally held. They invoked section 417 of the National Land Code and Article 13(1) of the Federal Constitution, which protects against deprivation of property save in accordance with law, and relied on authority from 1979 that had held the Government had no power to compel an owner to give up a freehold title in exchange for a 99-year lease.

The court dismissed the originating summons. While recognising the force of the authority relied on, and the concern about changing a tenure from perpetuity to a leasehold term, the court held that it could not itself grant the declaration sought, because to do so would trespass on the discretion and functions of the land authority. It reasoned that the proper course was for the matter to be referred back to the Land Executive Committee for reconsideration, rather than for the court to substitute its own decision by declaring the tenure reverted; and it indicated that, in the event the State Authority failed to reconsider or to comply with the law, the appropriate remedy would be to compel it by way of mandamus. It accordingly dismissed the originating summons, with no order as to costs. The judgment illustrates the reluctance of the court to grant a declaration that would usurp the land authority's discretion, and its preference for remitting the matter for reconsideration with mandamus available as a longstop.