JUDGMENT

Peh Swee Chin J:

At the outset of this case, learned State Legal Adviser raised a preliminary objection which I feel I ought to dispose of first of all. He argued that the 1st defendant, the State Government of Negeri Sembilan should not have been sued and that the action should have been only against the 2nd defendant, the State Commissioner of Lands and Mines, Negeri Sembilan. Learned Counsel for the plaintiffs, in reply, referred to the various declarations sought against the 1st defendant. I indicated then I would hold over my decision until the conclusion of the case. In my view, the 1st defendant, because of the various declarations sought against it, should be a proper and necessary party and ought to be heard, for the purpose of completely adjudicating on all the issues herein. I therefore dismiss the preliminary objection.

At the early part of the hearing, all Counsel, in response to a suggestion from me to try to narrow down issues of facts and law, had commendably agreed on certain issues of facts, and learned Counsel for the plaintiffs, in particular, had elected to proceed only on the two issues or two of the prayers of the statement of claim in this case.

One of the two issues, is as framed in prayer (5) in the statement of claim in the following words:

(5) A Declaration that in any event in the allotment and alienation by the 1st and 2nd defendants to the 3rd defendant Company (made in disregard of the previous Gazette Notification as to the use thereof as Vegetable Garden Reserve) of all those pieces of land held under H.S. (D) 14294 for New Lot No. P.T. 2 (formerly known as Lot 3181), H.S. (D) 14295 for New Lot No. P.T. 3 (formerly known as Lot 3182), H.S. (D) 14297 for New Lot No. P.T. 5 (formerly known as Lot 3184), H.S. (D) 14298 for New Lot No. P.T. 6 (formerly known as Lot 3185) all situate in the Mukim and District of Seremban is illegal, null and void and of no effect and ought to be set aside.

It will be convenient to deal with this issue first. The 1st defendant had alienated to the 3rd defendant five pieces of land concerned in this case. They used to form part, in turn, of a larger piece of land, the latter having been earlier gazetted as a vegetable garden reserve, videgazette notification No. 3700 of 1927 (AB1) pursuant to s. 9 of the former Land Enactment, 1911. There was, before the said alienation to the 3rd defendant, partial revocation of portions of such vegetable garden reserve by virtue of gazette notification Nos. 632 of 1951 (AB2) and 731 of 1952 (AB3) respectively. Thus as at the time of hearing, only four of the said five pieces of land alienated contained portions of such vegetable garden reserve.

Learned Counsel for the plaintiffs argued that the alienation of the said four pieces of land was null and void, as being contrary to s. 62(4) of the National Land Code (the Code). Now s. 62(1) says that any State land may be by a notification in the Gazette reserved for any public purpose, and s. 62(2) and (3) deal with the contents and publication of such reserved land. Section 62(4) sets out as follows:

Without prejudice to the provisions of any other written law for the time being in force, reserved land shall not be-

(a) disposed of by the State Authority except to the extent permitted by, and in accordance with the provisions of, s. 63 and Chapters 2 and 3 of this Part, or

(b) used for any purpose other than that for which it is reserved except in pursuance of a disposition made by virtue of any of those provisions.

Section 63, referred to in s. 62(4), provides for grant of lease for a term not exceeding 21 years to an officer in control of such reserved land or to other person having first obtained approval from such officer. The 3rd defendant, here, has been a private company set up to carry on the business of a housing developer. "Chapters 2 and 3 of this Part" referred to in s. 62(4), deal with the issue of temporary occupation of licence of such reserved land and the issue of permit