(delivering the judgment of the Court): Preliminary: The Facts And Background

The State Authority of Malacca within the definition of the National Land Code, 1965 has fallen victim to the bureaucratic bungling of a land office functionary, with disastrous consequences and leaving in its wake frustrated officialdom—that is the moral and indeed the net effect of the requisite orders we made on the conclusion of somewhat brief submissions by counsel on both sides in allowing this appeal from the decision of Wan Yahaya J., involving the validity of the purported forfeiture of a parcel of land in Malacca by the Collector of Land Revenue, Alor Gajah, in the exercise of his powers conferred by the relevant provisions of the National Land Code (‘the Code').

The facts of the matter are clear and simple and not in dispute; what is in issue is a pure question of law. It is necessary by way of background in considering the question of law involved to briefly set out a narrative of the facts and circumstances culminating in these proceedings to appreciate and evaluate the events that have transpired, the necessity for the appellants to resort to judicial process for the determination of their rights and the judgment delivered in this regard by the learned judge. To avoid tautology, all references to statutory provisions in this judgment that the Torrens system of land registration and conveyancing as applied by the Code has as one of its principal objects to give certainty to title to land and registrable interests in land (at page 214). The respondent accepts the decision on this aspect and has not cross-appealed on this issue.

The learned judge, however, went on to hold that the Collector has since tightly or wrongly, as he puts it, completed the forfeiture and the land is now State land and that the order sought by the appellants to set aside the forfeiture amounts in effect to proceedings for the recovery of the land from the State Authority which he says are debarred by the provisions of section 29 of the Government Proceedings Ordinance, 1956. He went on perhaps by way of solatium to suggest that it is open to the appellants to claim damages against the respondent or the Collector or to seek relief by way of ‘a declaratory order in more specific terms under the Specific Relief Act, 1950'. It is only against this part of his decision refusing to set aside the forfeiture that the appellants have appealed, and the only issue for consideration before us is the validity of the forfeiture and whether it can and should be set aside. The Issue In Law: Is The Forfeiture Valid?

There have been several infractions of the provisions in the Code relating to the machinery for forfeiture of alienated land for arrears of land rent in respect of the forfeiture of the land in question and it will therefore be necessary to consider the effect of these as a result on the forfeiture purported to have been ultimately effected. We would just mention en passant as a matter of interest that the equivalent conglomerate provisions of section 129 prescribing the mechanism for action to enforce forfeiture for breach of condition of title encompass identical requirements on the material aspects arising in this matter contained in sections 97 to 100.

The matter resolves ex facie in the first instance into a conventional invocation and consideration of the traditionally formulated distinction between mandatory and directory requirements in a statute which perhaps underlies the practical and realistic recognition of the fact that adherence to legislative prescriptions cannot always be too literal or rigid lest the machinery of administration is not allowed a little play in its joints. The locus classicus explaining this distinction and the consequences for non-compliance in either case is Howard v Bodington (1877) 2 PD 203, 210 and 211. The principle involved is too well-known to require setting out in extenso that part of the judgment of Lord Penzance