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Introduction

Alienate is defined as dispose of State land in perpetuity or for a term of years,


in consideration of the payment of rent, and otherwise in accordance with the provisions
of Section 76... 1 Upon the approval of the alienation, the grantee shall follow terms and
conditions as stated in section 76 (b) and (c) and section 81 (1) (a) to (d) that including
paying a premium, survey fees, other fees relating to registration, first year rent and
annual rent every year without fail.2 If the grantee failed to pay the premium at a given
period as stated in Form 5A, the alienation shall be lapsed. 3 However, in Teh Bee v. K.
Maruthamuthu [1977] 2 MLJ 7, the court did not follow this section. Distinguishes
between the case law and section 81(2) will be further discussed in Discussion of Issues.
After the premium and other fees have been settled, a qualified title will be
issued.4 Final titles are issued after final survey has been done. 5 According to Section
77(1) (a), there are two types of final title can be issued which are registry title and land
office title. For town or village land and every country land which is more than four
hectares are issued under registry title whereas for country land which is less than four
hectares are registered under land office title. 6 Hence, land administrator shall issue the
titles according to the classification of land.
According to Section 76(d) and (e), State Authority could, upon the alienation,
state a condition of land use and restriction in interest for the alienated land. Condition of
land use and restriction in interest are different. For each land which will be awarded to
1 Section 5.
2 Salleh Buang, 2007. Malaysian Torrens System. Ampang: Dawama Sdn. Bhd.
3 Section 81(2).
4 Section 77(2).
5 Section 77(2) (a) and (b).
6 Section 77(3) (a) and (b).

an individual, it will have its category classification. Based on section 51 of the National
Land Code 1965, the land is classified into two categories, namely (a) the land is higher
than the seafront, and (b) the shore and seabed. For the category of higher ground from
the edge of the sea shall be classified into urban land, the land of the town and also the
village land.
According to section 125(2), if there is a condition require proprietor to do
something but he did not fulfil the requirement within the stipulated time or vice versa, it
is considered a breach of condition. Upon any breach arising from such conditions in
accordance with Section 127(1) (a) and (b), any alienated land will face forfeiture by the
State Authority, except in the case of fines.
Forfeiture will be carried out when notification has been made in the Gazette. 7
Cause of forfeiture may include failure on paying of the rent or breach of any condition.
Form 8A will be broadcasted as a notice of forfeiture by the land administrator before
performing the forfeiture.8 When the forfeiture is done, the land will be returned to the
State Authority as State land.9
On the other hand, restriction in interest for alienation land shall start after the premium is
paid and this is explained further in Dr. Ti Teow Seow & Ors. v. Pendaftar Geran-Geran
Tanah Negeri Selangor.10 This is because registration is the central of Malaysian Torren
System.11 The restriction in interest must be continuously imposed by the proprietor until
the reversion of State Authority or the end of the stated period. 12 However, if the
7 Section 130(1A)
8 Ibid.
9 Section 131(a)
10 [1982] 1 MLJ 38.
11 Ibid, p. 39.
12 Section 105(2).

proprietor wishes to stick off the restriction in interest, he can apply to the State Authority
under section 124 (1) (b). Therefore, restriction in interest must be followed by the owner
unless he had applied to the State Authority.

Issues:
From the question, several issues can be identified:
1. Relating to late payment of premium, whether the Land Administrator has the
power to accept and issue title under Section 81(2)?
2. Whether Land Administrator can register a country land that less than 4 hectare as
Registry Title under Section 77(3)?
3. Whether Mariam can construct two bungalows?
4. Relating to restriction in interest, whether Mariam is still restricted from leasing
her land?

Discussion
Issue 1: Relating to late payment of premium, whether the Land Administrator has the
power to accept and issue title under Section 81(2)?
In the alienation process of State land, the person who accepts the alienation must pay a
premium within a specific period.13 According to Section 81(2), if a person failed to pay
the premium within the given time stated in Form 5A given by the Collector, the
alienation shall thereupon lapse. In Mariam situation, she has delayed the payment of the
premium. Therefore, the alienation should be lapsed. Nevertheless, the Registrar of Title
still accept the payment from Mariam and issue document of title of the land to Mariam.
The situation is quite similar in Teh Bee v. K. Maruthamuthu.14 In this case, Teh Bee was
alienated by the State Authority a piece of land which Maruthamuthu lived for 21 years.
The Bee received Form 5A from Land Administrator which requests her to pay a sum of
13 Section 81(1)(b) and Section 81(2).
14 [1977] 2 MLJ 7.

premium. She applied to the State Authority to exempt her premium. Due to ther
application, Teh Bee was late to pay the premium of the alienation but she managed to
obtain the document of title. In Federal Court, Ali AG CJ (Malaya) held that:
There was no other applicant to whom it could have been alienated after the approval to
the applicant lapsed on her failure to pay the amount $4,327.50 within the specified
timethe State Authority did not seem to have any intention of giving or alienating the
land to anyone else other than the appellant. The fact that she was registered as
proprietress in April 1968 necessarily raised the inference that the State Authority on the
amount having been paid in October 1967 had given fresh approval. The reason for the
provision relating to the lapse of approval under section 81(2) of the Code, in my view, Is
to enable the State Authority to give the land to someone else in the event the approved
applicant does not want the land or is unable to pay the necessary fees under section
81(1). 15

This means that the acceptance of the payment by Collector can by implication treated as
an act of re-alienation by the State Authority. In this circumstance, a question can be
arising from the decision. Whether, the Collector has the power to alienate a State land?
In National Land Code 1965, any alienation must be approved by State
Authority.16 According to Section 5, State Authority shall referred to Ruler or Govenor
of the State, which may referred to the State Executive Council. In Sidek Bin Haji
Muhamad & 461 Ors. v. The Government of the State of Perak & Ors, 17 the court had
clearly stated that State Authority is the only power that can approve alienation. Raja
Azlan Shah CJ held that:
Assuming what the State Director of Lands and Mines said in the Utusan Melayu is true,
can he bind the State Government? The short answer is that he had no authority to bind
the government to alienate State land to the settlers. For this a formal resolution of the
15 Ibid, p. 12.
16 Section 42.
17 [1982] 1 MLJ 313.

State Authority is necessary. The want of authority was clearly pleaded, and is a
formidable obstacle to any contention that the appellants' claim lay in estoppels. 18

This can clearly show that only the State Authority has the right and power to alienate a
State land, not even the State Director.
On the other hand, in Sykt Perusahaan Seri Connolly Sdn Bhd V Pengarah Tanah
Dan Galian, Negeri Perak & Anor19, the court had explained the power of the land
administrator. In this case, plaintiff claimed that defendant do not fulfill their obligation
to issue qualified title. Plaintiff got an alienated land from State Authority before the land
was applied for subdivision to 1,462 individual lots. After the subdivision, the alienation
of the land was revoked and replaced with the alienation with those subdivided lots. After
nine years, plaintiff request defendant to issue a qualified title for the land instead of
those individual lots. The request was rejected by the defendant in the view that State
Authority had revoked the alienation of the land. In Federal Court, Kang Hwee Gee J
held that:
Section 80(3), it is clear, does not impose on the registrar a duty to make a decision
whether or not he should issue the title butmerely a perfunctory duty to prepare,
register and issue the title after the state authority has alienated the land and all the
requisite fees have been paid.20

It is clearly seen that Land administrator does not have the power to alienate any land to
other parties. The acceptance of the premium by Land Administrator cannot act as a fresh
approval from State Authority. Therefore, neither in Teh Bee v. K. Maruthamuthu or
Mariams land, the alienation should become lapse after they failed to pay the premium
on time.

18 Ibid, p. 314.
19 [1998] 3 MLJ 404.
20 Ibid, p. 411.

Issue 2: Whether Land Administrator can register a country land that less than 4 hectare
as Registry Title under Section 77(3)?
In Mariam case, the alienated land is one acre country land. Generally, the final
title of the land should be issued under Land Office title. However, land administrator
issued a Registry Title for her land.
The State Authority may award the land for a period not exceeding ninety nine
years or forever21. State land can be owned by either Registry Title and Land Office Title
or ownership conditional. Land can be alienated conditional upon approval by the State
Authority.22
For the category of land ownership, it is divided into two namely Registry Title and
Land Office Title. The ownership of the Registry, namely:
i.
ii.
iii.

village land or town land


country land more than four hectare
any part of the foreshore or seabed

Land office title is issued to any country land lots which have no more than four
hectares area. However, provided that the State Authority may approve the alienation of
any lot of country land under the ownership of the Registry Title, although the area of the
land is not more than four hectares if deemed appropriate (Section 77) (3).

Issue 3: Whether Mariam can construct two bungalows?


Mariam cannot build two bungalows because the State Authority ordered one acre
of land handed over to Mariam for the purpose of building a bungalow. According to
Section 105(2), every condition continued interest and any restrictions should be in force
until the return of the land and every condition subject to a period in accordance with the
will. Alienation of State land under this Act shall be subject to any conditions or
21 Section 76
22 Ibid.

restrictions imposed by the State Authority23. Land awarded to Mariam is the category of
"building" which provided that no part of any land could be used for agricultural or
industrial purposes24.
Refer the case Collector of Land Revenue v Johor Bahru. South Malaysisa
Industries Bhd., respondent were given a lease for 60 years for light industrial land
category. Respondents wanted to meet space land acquired by building a store to store the
chemicals and fertilizer factory next door. Respondent flouted the rules for building a
store for the material that is not light industry25.
In allowing the appeal, Raja Azlan Shah J. held :
We must construe the special condition endorsed on the document of the title as they
stand and as a whole to see what is the intention of the partiesThe State Authority has
and did exercise its power to impose restrictions as to user of the factory premises erected
on the land in question, i.e. for the purpose of a light industry 26

According to the issue of the use of the premises for storing industrial chemicals
and fertilizers, the court held that :
To use part of the factory premises for an alien and totally unconnected industrial project
is inconsistent with the express conditions in the said lease. 27

Through this case demonstrates breach of any conditions can cause the land can
be in forfeiture by the State Authority. After any breach conditions applicable to any
alienated land, then the land shall be insured to forfeiture to the State Authority. 28 Land
administrators can take action where it appears that the breach could be remedied by the
23 Section 76(e)
24 Section 116(1) (b)
25 Salleh Buang, 2007. Malaysian Torrens System. Ampang: Dawama Sdn. Bhd.
26 Ibid., p. 82.
27 Ibid., p. 82 & 83.

proprietor in a reasonable period by submitting Form 7A. If the action is felt to be


inappropriate or owner fails to comply with any notice of the Land Administrator shall
serve a notice in Form 7B.29
After the command in Section 129 where an order declaring the land was forfeited
to the State Authority for breach any condition, the Land Administrator shall publish in
the Gazette a notice of forfeiture in Form 8A and commencement.30
If Mariam also want to continue with the intention to build two bungalows on
their land in the past 10 years, the application must be made to the State Authority.
Pursuant to Section 124 (1) of the owner of alienated land may apply to the State
Authority under this section. According Section 124(1)(c), the proprietor of any alienated
land may apply to the State Authority under this section for the amendment of any
express condition or restriction in interest endorsed on, or referred to in, the document of
title thereto, or the imposition of any new express condition or restriction in interest.
The State Authority may approve any application of proprietor either in the terms
in which it was submitted or, with the consent of the applicant and any other persons or
bodies whose consent thereto was required under the proviso to that sub-section, subject
to such modifications as it may think fit, and shall, in either case, direct as appropriate
(Section 124(4)).
The amendment of any condition or restriction in interest endorsed on the
document of title to the land (Section 124(4)(a)). The State Authority may approve the
application in accordance with the terms in which it is presented or with the consent of
the applicant and any other person whose consent is required under the proviso to
paragraph (c) of subsection (1), subject to suitability to modify, and shall be either one of

28 Section 127(1)
29 Section 128 & 129
30 Section 130

the cases, which directs as appropriate according to the amendment of any conditions or
restrictions of the endorsed on the document title to the land.
Upon approval by the State Authority under this section, the Land Administrator
shall sign a memorandum in Form 7C in accordance with the direction of the State
Authority and shall present the same, and on the memorial thereof being made, the
Registrar shall make an entry on the register and issue documents of title to the land and
shall note the date thereof and the authority therefor, and authenticate the same under his
hand and seal (Section 124(7)).
After being approved by the State Authority, the Land Administrator shall sign a
memorandum in Form 7c accordance with the instructions of the State Authority and
shall submit the memorandum. The Registrar will make an income on the register and
issue documents of title to land and will record the date and authority for him, and
confirm memorandum to handle it. Premium will be charged on the change conditions or
restrictions or categories by: The rent and premium in any direction issued by the State Authority under this
section shall become due to the State Authority at the time when it approves the
application and the Land Administrator shall cause to be served on the proprietor a notice
in Form 7G requiring him to pay such sum within the specified time and if any such sum
is not paid within such time the approval of the State Authority shall thereupon lapse
(Section 124(8))
Rent and premium in any direction State Authority at the time it approves the
application and the Land Administrator shall cause to be served on the proprietor of a
notice in Form 7G, and if any amount is not paid within this period, the approval of the
State Authority will expire thereafter.

Issue 4: Relating to restriction in interest, whether Mariam is still restricted from leasing
her land?

This issue is concerned about the restriction in interest. In the National Land Code 1965,
State Authority has the right to impose restriction in interest that it may think fit. 31 In
Mariams situation, State Authority has stated the restriction in interest when the land is
alienated, which is should not transfer, charge or lease the land in the period of ten years
from the date of alienation.
Although the date that the Johore State Executive Council passes the alienation
resolution is at 14 June 2000, the commencement of the restriction in interest should be
started from the date of registration as stated in Section 78(3):
The alienation of State Land shall take effect upon the registration of a register document
of title thereto and, notwithstanding that its alienation has been approved by the State
Authority, the land shall remain State land until that time.

This is one of the characteristic of Malaysian Torrens System where the registration is
everything.

32

The same situation goes to Dr. Ti Teow Siew & Ors. v. Pendaftar Geran-

Geran Tanah Negeri Selangor33. In this case, the first applicants land was imposed
restriction in interest where the land could not be transferred in 15 years without consent
of Ruler in Council. The date of commencement of title was 18 August 1964. However,
the premium and other fees for alienation of the land were paid at 9 November 1967.
The land was sold to second and third applicants on 25 March 1980. The
registration of the dealing was rejected by the relevant authority. This was because the
authority thought that the date of commencement for the restriction in interest was started
at 9 November 1967. At last, Hashim Yeop A. Sani J. held that the date of
commencement should be started only when the registration of the land was done with
referred to the Section 78(3)34.
31 Section 120(1).
32 Teh Bee v. Maruthamuthu [1977] 2 MLJ 7 (FC).
33 [1982] 1 MLJ 38.
34 Ibid.

This means that the restriction in interest for Mariams land should be begun at 12
January 2002 and will only be expired at 11 January 2012. Therefore, the refusal of the
registration of leasing at 21 June 2010 is a correct action from the State Authority.
However, restriction in interest is subject to changes according to Section 113. In
Toh Huat Khay v Lim A Chang (in his capacity as the executor of the estate of Toh Hoy
Khay, deceased)35, the court had take the oppurtunity to explain on the effect of restriction
in interest and the procedure for a proprietor to resists the restriction in interest. Mohd
Ghazali FCJ, delivering judgment of the Federal Court held that:
That being the situation, I am of the view that the said land due to the said restriction in
interest endorsed on the document of titlecannot be transferred by TKC to the
defendant unless TKC as proprietor hadapplied to the state authority for the striking off
or the rescission of the said restriction in interest. 36

Therefore, Mariam cannot lease her land to Maniam within the period of the
restriction in interest unless she applied to the State Authority to resists the restriction in
interest endorsed on a document of title. 37 If the State Authority approves the application,
it shall direct that the restriction in interest to be struck off or prepare a note of its
rescission to be indorsed on the document.38 Next, the land administrator shall sign a
memorandum in Form 7(c) and register the rescission before issue a new document of
title for the land. 39

35 [2010] 4 MLJ 312.


36 Ibid, p. 322.
37 Section 124(1)(b).
38 Section 124(3).
39 Section 124(7).

Conclusion
For Issue 1, it has shown that the late payment of Mariam can lead to the lapse of her
alienated land. The only action that Mariam can do is to reapply the alienation of the land
from the State Authority.
For Issue 2, based on the case Mariam, the land can be registered under the Land
Office Title and Registry Title. Mariam land not exceeding four acres and is duly
registered under the Land Office Title, but according to Section 77 (3), the land can be
registered under Registry Title with the requirements of the State Authority to approve it
and the feel of the land according to the list below Register Title.
For Issue 3, according to Mariam cases, action Mariam built two bungalows is
wrong in terms of land use. Mariam first create a variation of the conditions before the
construction of two bungalows. According to Section 124, the power to change the
conditions is under the authority of the State Authority on the application of the land
owner. Provided that the State Authority will not entertain any application unless all
payments have already been commissioned. Because of Mariam has built two bungalows
before the application is made, Mariam necessary to demolish one of the bungalows have
been built on the land.
Lastly, for issue 4, since the restriction in interest of Mariams land is still valid,
Mariam can only wait for 11 January 2012 before she can lease her land to Maniam.
However, if Mariam wants to lease her land before expiration date, she can also apply to
the State Authority to stick off the restriction in interest according to Section 124(1) (b).

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