Kabra Holdings Sdn Bhd v Ahmad bin Shahlan & Ors & Persons Unknown

Lim Xin Yi Lim Sze Han Lim Yew Yi

Fact Of The Case

An application made by the 65 defendants by way of notice of motion to set aside the order of possession granted by this Court on 2 May 1989 in respect of the land held under of which the plaintiff was and still is the registered proprietor.

On 9 March 1989, the P applied by way of originating summons for an order that the P be allowed to recover possession of the disputed land on the ground that the P is entitled to possession and that the D are in occupation without licence or consent. The P wanted to develop the disputed land into a housing estate and had obtained the necessary approval from the Pejabat Tanah Daerah Ulu.
How about those squatters? Most of them vacated. Except 65 defendants refused to do so.

D was not disputing that the plaintiff was the registered owner of the land in dispute but said that there was a dispute as to how the Ps name came on the register. 1. D prayed that the execution of the said order of possession be stayed on the ground that 104 other occupants sought a declaration in the Shah Alam court that the alienation of the disputed land by the 3 defendants in that action namely the (Menteri Besar of Selangor, Executive Council of Selangorand the plaintiff) was unreasonable and therefore invalid.

He claimed that if the claim in the Shah Alam Court case should succeed then the claim of the P in the present action and the possession order issued by this court on 2 May 1989 would be extinguished. 2.Besides, the D had been staying on the said land pursuant to an oral agreement given by the Menteri Besar of Selangor since 1969 and the present Menteri Besar of Selangor confirmed the previous Menteri Besars oral agreement made to the defendants in January 1989.

3. At the time when the land was alienated to the P, it had no financial ability(RM2 paid up company) to develop the disputed land. Besides, when the plaintiff obtained the approval letter to develop the disputed land into a housing estate from the Pejabat Tanah, Ulu Langat on 10 August 1988 it did not have a housing developers licence. 4. D complaint that even though the P was Kabra Holdings Sdn. Bhd. the applicant for the order of possession was KAB Sdn. Bhd.

5. D also claimed that P had charged the land to MBF Finance Bhd. in respect of loans given to third party and thus P had no locus standi in this action.

1. Whether the promise given by the Menteri Besar of Selangor is binding?

The defendants can only have right to occupy the disputed land by way of the NLC. - ss.48 and 341 of the NLC So, who actually can properly alienate lands to any person or corporation? - Only the state authority as defined in s. 5 of the said Code - Yet, certain mandatory steps have to be taken to have a right to occupy any State land. Why whatever promise made by the Menteri Besar cannot in law and in equity be pleaded against the state authority? - No provision in NLC
*In Lesco Dvpt. Corp. Sdn. Bhd. v. Yap Chong Lan & Ors
An equity against the state authority cannot be sustained. WHY? it is wrong to introduce into public administrative law concepts such equitable estoppel which are essentially aids to the doing of justice in private law.

2. Whether the alienation of the disputed land was illegal due to want of financial capacity and the fact that plaintiff didnt obtain developers license?
- The discretion to alienate land lies completely with the state authority and it is for them to impose any condition in alienating the land which condition would be endorsed on the grant. Here, there are no conditions in the grant that the alienation of the disputed land to the plaintiff requiring the plaintiff to be financially sound to develop the land and that it must be in possession of a developers licence. There is nothing to stop the state authority to alienate the said land to the plaintiff.

3. Whether the pending suit instituted in the Shah Alam High Court has to be considered in dealing with the execution of the order of possession granted to the plaintiff?
Whatever decision that would be made by the Shah Alam High Court would not render decision nugatory because both court have concurrent jurisdiction. There is no statutory or inherent power for the court to stay the execution of the order. The decision only binds the defendants in the present case The matter can only be dissolved by the Supreme Court.

4. Whether the irregularity of the name (Kabra Holdings Sdn. Bhd. or KAB Sdn. Bhd) was fatal to Ps a ction?
- P had applied to regularise the mistake and it was allowed by the Senior Assistant Registrar of this Court (the SAR) - the error was in the nature of a misnomer and could not have misled the defendants

5. Whether the plaintiffs have locus standi to maintain the action after charging the disputed land to a finance company and allowing it to be developed?
- It is no concern of the defendant. - The matter is between the state authority and the plaintiff and should the plaintiff breach any of the conditions of the alienation of the land it is answerable to the state authority. - Whether there is a breach does not in any way affect the status of the defendants as illegal squatters of the disputed land.

Opinion
1. It seems unequitable for not giving effect to the promise made. - it is natural for ordinary citizens to attach certain degree of formality towards the promise made by figures such as Menteri Besar. - s13 of NLC only provides delegation of SAs to State Director, Registrar / Land Administrator.

2. Promissory Estoppel is under development in the scope of Public Administrative Law. - The courts are required examine whether the injustice done to an individual outweighs the disadvantages to public interest.