Hashim Yeop A Sani J:

This is a Notice of Motion in which the applicant/appellant, Ipoh Garden Berhad, a housing developer, is asking for an order that the decision of the Pengarah Tanah dan Galian, Perak, contained in his letter dated 23 August 1977 pursuant to application for sub-division of the applicant/appellant in respect of certain lands be varied. It appears from the Notice of Motion that the appeal is against the said decision "insofar as it relates to the question of the surrender of the said lands and the issue of leasehold titles in lieu of the freehold titles." The applicant is also asking that the Court direct the respondent to approve the application for subdivision aforesaid in the terms of the aforesaid letter with the exception of certain conditions imposed in that letter, the most important among which was that the lots comprised in the sub-divided titles would be held under leases for 99 years.

A little background of the facts of the case is necessary. On 18 May 1976, the applicant pursuant to s. 135 of the National Land Code applied to the State Authority for sub-division of the applicant's lands held under freehold titles namely, Certificates of Titles Nos. 5801, 5869, 9031, 9032, 9033, 9034, 9035, 9036, 9037 for Lots Nos 25238, 25241, 29864, 29865, 29866, 29867, 29868, 29869 and 29870 respectively, in the Township of Ipoh. Pursuant to the said application the respondent by his letter dated 23 August 1977 (i.e. nearly sixteen months later) gave his reply to the applicant. In his letter the respondent informed the applicant that the State Government would be prepared to approve the building scheme to be undertaken by the applicant in accordance with the proposal for sub-division upon the terms and conditions as set out in the letter. Other than the usual terms, the terms and conditions contained in the said letter include the following:

(1) The applicant to voluntarily surrender the said land held under the said Certificates of Titles to the government upon which surrender subdivided titles would be issued.

(2) That the lots comprised in the sub-divided titles would be held under leases for 99 years.

It is primarily with these two conditions that the applicant feels aggrieved. The applicant filed an affidavit dated 25 November 1977 setting out the grounds upon which it purports to rely to obtain an order from the Court to declare that the said terms as contained in the letter of the respondent referred to above are ultra vires and/or null and void of the National Land Code and/or the Constitution of Malaysia in that, inter alia,

(1) in accordance with s. 138 of the National Land Code the State Commissioner has no alternative but to approve the application for subdivision where the conditions specified in sub-section (1) of s. 136 are satisfied;

(2) nowhere in the National Land Code are there any provisions that the respondent can impose on the applicant for sub-division the condition requiring the surrender of the lands in question;

(3) no provisions in the National Land Code where-under upon approval for sub-division the respondent has the power to change the terms of the holding of the said lands from freehold to leasehold titles; and

(4) the decision of the respondent contained in the said letter is an infringement of the proprietary rights of the applicant and therefore contrary to article 13 of the Constitution of Malaysia which provides that no person shall be deprived of his property save in accordance with law.

In the affidavit of the respondent he contends that his letter dated 23 August 1977 did not purport to convey a decision on the said application for subdivision. According to his affidavit that letter was purely a letter conveying an offer from the State Authority to the applicant as to the "technique of processing" the State Authority proposes in the said letter in order to assist the applicant in realising his known aim to develop the said lands for purposes of building s