Salleh Abas CJ:

This is an appeal from the decision of V.C. George J arising out of the trial of a consolidation of seven civil suits, namely: Civil Suits Nos. 256, 237, 258, 259, 274, 263 and 257 of 1978.

The facts which are not in dispute are as follows: The appellant, a housing developer under Licence No. 232/72 issued on 18 September 1972, was proposing to develop two pieces of land in Kuantan into a housing estate to be known as Lucky Garden.

The first piece, namely Lot 953 held under EMR No. 530 was a piece of rubber land registered under the appellant's name. The appellant applied to Pahang State Government for conversion and subdivision of the land into 32 building lots of which 9 lots were for semi-detached houses and the remaining 23 lots for single-storey terrace houses. The application was made on 12 December 1972 and approval was given on 28 October 1974. In the meantime, presumably in response to the appellant's invitation members of the public started to book the proposed lots with buildings to be erected thereon. They even did so before the appellant had obtained its developer's licence. The plaintiff in CS No. 237/78 made a booking as early as 18 August 1972, whilst the three plaintiffs in CS Nos. 256, 258 & 263 of 1978 booked their lots on 12 December 1972, the day when the appellant submitted its application for conversion and subdivision of the land, each paying RM600 booking fee - upon signing a booking form. All the 32 proposed subdivided lots were booked before approval for conversion and subdivision was obtained. The approval which the Pahang State Government gave was made subject to a condition to the effect that at least 3 out of the 9 semi-detached housing lots and 7 out of the 23 terrace housing lots should be reserved for Pahang State Economic Corporation which would hold them for would-be Bumiputra purchasers. In other words, 10 building lots with houses built on them should be reserved.

The second piece of land was lot 948 held under EMR 3659. This land was also a piece of rubber land formerly registered in the name of a Bumiputra woman, named Tengku Sepiah. She transferred it to Futo Trading Company Sdn. Bhd. (Futo) for the purpose of developing it into a housing estate in return for the 4 units of semi-detached houses to be built thereon for her. As Futo had no developer's licence, it entered into an arrangement with the appellant whereby the land was to be subdivided into 4 semi-detached housing lots and 24 terrace housing lots. Application for conversion and subdivision was approved by the Pahang State Government on 20 November 1973. The 4 semi-detached housing lots were completely built for Tengku Sepiah, but the 24 terrace-housing lots remained unbuilt. All the 24 lots booked by members of the public, of whom were the plaintiffs in C.S. Nos. 274, 257 and 259 of 1978, each paying a booking fee of RM500 upon signing a booking-form. The booking transaction were between the respondents and the appellant, although the land was not registered in its name. Like the first piece of land, the approval of conversion and subdivision of the second piece of land was also given subject to a special condition that at least 30% of the houses built thereon should be reserved for Pahang State Economic Corporation for would-be Bumiputra purchasers.

The 32 lots in respect of the first piece of land and the 24 lots in respect of the second piece of land were all booked before conversion and subdivision approval was obtained and they were all booked by non-Bumiputra purchasers. It is therefore clear that compliance with the special condition would mean that 10 houses in respect of the first piece of land and at least 8 houses in respect of the second piece of land would have to be reserved. It is a matter of difficulty, if not impossibility for the appellant to determine who amongst these buyers should give up their purchases. A suggestion by Futo to determine them by ballots was not acceptable to the pu