JUDGMENT

Peh Swee Chin J:

[1] This is an unusual case involving as it does, the consideration of principles upon which a private right of way may be granted against a landowner under the National Land Code.

[2] It is an appeal against an order of the Collector of Land Revenue, Port Dickson, granting to the 2nd respondent (hereinafter called the Grantee), a private right of way over the piece of land, being Lot No 293 (and more fully described in this originating motion), against the 1st appellant, its registered owner; 2nd appellant, its registered lessee; and 3rd appellant its registered chargee.

[3] The Grantee's own land, being a kind of a second-layer land from the sea shore or foreshore, has no frontage to the sea shore and is sandwiched between the said Lot 293 on one side, and another piece of land belonging apparently to the Royal Malaysia Police Force, (hereinafter called the police land). The private right of way was granted over Lot 293 in which all the appellants are interested in the ways mentioned above.

[4] It is common ground, that on 2 March 1982, the application for the private right of way was heard in the absence of those interested parties, save the Grantee and his Counsel, and the Collector, named Encik Hamzah bin Ali (hereinafter called the said Collector), without much ado, granted an order for such private right of way.

[5] From the Land Office file in question, it appears that the said Collector's superior officer has directed the said Collector to reopen the enquiry and hear the said application de novo, apparently on account of the order being made in the absence of the interested parties. The application, after an adjournment on 8 November 1982, was fixed for 11 December 1982 when it was heard for the second time, in the presence at least of all Counsel for the appellants who were heard. There was some dispute at the hearing earlier as to when the decision of the said Collector was actually delivered, or even made, but nothing really very much turns on this as it is common ground that an order was in fact made granting the private right of way complained of.

[6] The arguments of learned Counsel for the appellants before the said Collector were surprisingly brief as apparent from the record of such proceedings. They made similar submissions there to the effect that the Grantee should have applied for a private right of way over the police land before the police built their concrete wall or partitioning wall on both sides of the police land as the Grantee was then having an access to the sea through the police land. Any private right of way granted over Lot 293 would interfere with the peace and quiet of the Lot 293, and that there was doubt if the police land had been gazetted as a security area. Learned Counsel for the Grantee argued before the said Collector that she had protested at the construction of their wall by the police but she could not stop them. Every citizen had a right to the sea shore and that her client could not use Lot 293 then, because it was already fenced up.

[7] The said Collector then made the order complained of, stating that he had inspected Lot 293 and the police land and had found the wall built by the police, possibly from the point of view of security (reasons) and that it was more logical (lojik) and appropriate (wajar) that the private right of way be granted, hence this appeal.

[8] It appears that before me, all the learned Counsel for the appellants had some sort of division of labour among themselves in making their submissions so that each would argue on two or three different points, and I regard this as commendable practice as it has saved time in avoiding a great deal of repetitions. Such being the case, I would refer to arguments of Counsel without specifying as from whom any particular argument has emanated.

[9] The 1st contention raised for the appellants was that Lot 293, being town land, no private right of way could have been created over it by the said Collector,