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2018 MarsdenLR 2310
HIGH COURT MALAYA SHAH ALAM
KIRUBAKARAN T KARTHIGASU – Appellant
Versus
SETIAUSAHA NEGERI SELANGOR & ORS AND ANOTHER CASE – Respondent
[Application For Judicial Review Nos: BA-25-28-06/2017 & BA-25-41-07/2017]
The court upheld the lawful amendment of the land's intended use by the state, affirming its authority under relevant land laws.
Headnote:This judgment deals with two judicial review applications concerning Lot 4539 in Kajang, originally reserved for Hindu internment. The court affirmed that the amendments made to the purposes of the lot were lawful under the National Land Code, citing ss. 62 and 40. The court stated the crucial issue was whether amendments to prior Gazette Notifications were valid, ultimately finding the state acted within its authority to correct the use of the land. The applications were dismissed, confirming the rejection of planning permissions.
| Table of Content |
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| 1. judicial review applications concerning land use and planning. (Para 1 , 4 , 11) |
| 2. the historical context and initial proclamation of land use are crucial for the case. (Para 5 , 10) |
| 3. amendments to land designations must be based on lawful authority and procedure. (Para 9 , 18) |
| 4. proper procedural adherence is necessary for changes in land planning permissions. (Para 14) |
| 5. consent requirements for planning and development applications. (Para 22 , 31 , 43) |
| 6. court's supervisory role in reviewing administrative decisions. (Para 45) |
[1] The underlying proceedings pertain to two inter-related judicial review applications concerning a graveyard/crematorium situated on Lot 4539, Mukim of Kajang, District of Ulu Langat, Selangor ("Lot 4539"), namely Judicial Review No BA-25-28-06/2017 ("JR-1") and Judicial Review No BA-25-28-06/2017 ("JR-2"). The Applicant in both JR-1 and JR-2 is Kirubakaran a/l T Karthigesu, suing as the President and Public Officer of a registered society known as Jawatankuasa Kuil Sri Subramaniya Swami Kajang, Jalan Reko Kajang ("the Society"). The Society manages a temple known as Kuil Sri Subramaniya Swami, Kajang, Jalan Reko, 43000 Kajang, Selangor ("the Temple") built on part of Lot 4539 and also maintains a Hindu graveyard and crematorium on parts of the said land.
[2] The Respondents in JR-1 are:
(i) the Selangor State Secretary ("SS") as the 1st Respondent;
(ii) the Selangor State Government ("SSG") as the 2nd Respondent;
(iii) the Majlis Perbandaran Kajang ("MPKj") as the 3rd Respondent; and
(iv) the Selangor Menteri Besar ("Selangor MB") as the 4th Respondent.
[3] Whilst, the Respondents in JR-2 are:
(i) the Selangor State Secretary ("SS") as the 1st Respondent;
(ii) the Majlis Perbandaran Kajang ("MPKj") as the 2nd Respondent; and
(iii) the Selangor State Government ("SSG") as the 3rd Respondent;
[4] Both JR-1 and JR-2 relates mainly to two matters:
(i) the first concerns the proclamation of the use of Lot 4539 originally as "a reserve for the purpose of a place for the internment and cremation of the dead of the Hindu community of Kajang", which was amended by the State Authority to "for a place for the internment of non-Muslims" and then further amended to "Hindu Cemetery"; and
(ii) the second concerns the rejection of the Society's application for extension of the Planning Permission or Kebenaran Merancang for the development of Lot 4539 by MPKj.
[5] By way of background, the following facts are relevant to the issues at hand. A notification dated 15 February 1928 in respect of Lot 4539 was made in the F.M.S. Government Gazette published on 2 March 1928 bearing Gazette Notification NO 1183, and that reads:
"In exercise of the powers vested in him by s 24(i) of the "Land Code, 1926", the Resident of Selangor hereby proclaims all the land comprised in lot No: 4539, in the mukim of Kajang, district of Ulu Langat, having a total area of 10 acres 16 poles, and delineated upon revenue survey plan NO 12,951, deposited in the office if the Superintendent of Revenue Surveys, Selangor, to be a reserve for the purpose of a place for the internment and cremation of the dead of the Hindu community of Kajang, to be maintained by Muthupalanipillai son of Ramasamy Pillai and Thamboo son of Velupillai, and their successors duly appointed with the approval of the British Resident, as trustee on behalf of the Hindu community of Kajang."
[6] Hence, by that proclamation in the year 1928, Lot 4539 was gazetted as a reserve for public purpose, to wit, a place for the internment and cremation of the dead of the Hindu community in Kajang. Pursuant to s 24(i) of the Land Code 1926, two individuals, namely, Muthupalanipillai son of Ramasamy Pillai and Thamboo son of Velupillai, ("the Trustees") were named as trustees on behalf of the Hindu community of Kajang, appointed to maintain the reserve in Lot 4539. The trustees had passed away some years ago and the Applicant does not have any further information about them or if a
