Raja Azlan Shah J:

This is an appeal by Home Luck Investments Sdn. Bhd. against the decision of the Pesuroh Jaya Ibu Kota, Kuala Lumpur, confirming the annual value of the land held under Grant for land No. 1616 for Lot No. 12 s. 67, Town of Kuala Lumpur of $11,060. The appeal is directed solely to the question of rateability.

The appellants are a Company incorporated in Malaysia and is the registered proprietor of the said land. The area of the said land is approximately 67,887 sq. feet (about 1 1/2; acres). It is a level piece of land situated at Jalan Horley and suitable for buildings or similar uses. The said land was first assessed at an annual value of $7,400 on the basis of the estimated gross rental of the temporary houses on it. The appellants bought the said land in December 1964 for $429,000 i.e., at $6.87 per sq foot. The said temporary buildings were demolished in 1965 and as a result the annual value of the land was assessed as vacant land with effect from 1 July 1965 at $42,900, which is 100f the purchase price. No objection was taken by the applicants to this annual value and rates were paid by them from 1 January 1965 on that annual value. In July 1965 they applied for planning permission to build 56 flats on the said land. That application was refused under s. 145(ii) of the Town Boards

Enactment, on the ground that, that part of the said land may be required for a proposed road over it. The matter rested there and the appellants did not object to the same annual value of $42,900 published in November 1965 for the year 1966. However, in January 1966 they applied to the respondent for the reduction in the annual value for the year 1966. The respondent was precluded from considering this request because there was no statutory provision to make any reduction in rates under those circumstances. When the assessment list for the year 1967 was published in November 1966 they lodged an objection to the annual value under the provisions of s. 40 of the Town Boards Enactment. As a result of the objection, the annual value was reduced to $11,060 with effect from 1 January 1967. It was assessed in the basis of vacant land - 100f the improved value under the second proviso to s. 2 of the Town Boards Enactment. The assessment of the annual value was made on the basis of $2 a square foot, which is comparable to the prices of neighbouring land. In arriving at that figure, account was taken of the proposed road. The value of the part of the land affected by the proposed road was calculated on a deferred or reduced value because it was considered that the land would have the full market value when it will be acquired in the future and therefore the present value is the reduced value.

Under the approved town plan, the said land is zoned for open development, that is, for educational, religious or welfare purposes. Under the draft town plan gazetted on 6 April 1967 there is a proposed major road 122 feet wide running across Jalan Imbi and the said land and joining Jalan Pekeliling. This proposed middle ring road would affect approximately 30,387 sq feet of the said land which would be frozen. The unaffected part, approximately 34,500 sq feet, is still available for development. Under the draft town plan the unaffected part can still be used, e.g., construction of 32 units of flats of five persons per unit. It is established that after the first unsuccessful application to build 56 flats, the appellants, apart from making one enquiry, had made no attempt to sell the said land or any part thereof or made any application to the respondent for alternative user.

It is alleged by the appellants that the said land is struck with sterility for the present and in the future. Consequently as the land to use the words of Lord Cranworth in Cameron v. Mersey Docke 1405 at 1429 is "neither yielding nor capable of yielding any profit from its occupation" it is not a rateable holding. The basis of that allegation is that the respon