Abdull Hamid Embong JCA (delivering judgment of the court):

This appeal is lodged against the decision of the learned High Court judge in dismissing the appellants’ application for judicial review with costs.

In the High Court, the appellants sought to challenge an administrative decision taken by the first respondent (ie, Datuk Bandar Kuala Lumpur) in connection with a proposed burial ground neighbouring the appellants’ condominium. The learned judge found that:

(a)the preliminary issue raised by the respondents were sufficient to dismiss the application; and

(b)in any event, the learned judge concluded that the grounds advanced by the appellants in support of the judicial review proceedings were not made out and dismissed their substantive motion.

Earlier, on 18 November 2003, an originating summons (‘OS’) was filed by the Desa Kiara Condominium Residents and Owners Association (‘DKORA’) against the first respondent seeking for the following prayers:

(a)An injunction prohibiting Majlis Agama Islam Wilayah Persekutuan, (now the second respondent), and Datuk Bandar Kuala Lumpur, (now first respondent) from developing or using Lot 84 (formerly Lots 920, and 921) and Lot 1560 as a burial ground;

(b)An injunction prohibiting Datuk Bandar Kuala Lumpur from issuing a licence or permit or granting or agreeing to develop Lot 84 and Lot 1560 as a burial ground, in the alternative;

(c)In the event the licence or permit or grant or agreement has been given, an order that Datuk Bandar Kuala Lumpur withdraw or revoke the licence or permit or grant or agreement;

(d)A prohibitive order against the Pengarah Jabatan Tanah dan Galian Wilayah Persekutuan from using or allowing the use of Lot 84 and Lot 1560 as a burial ground;

(e)A declaration that the development on Lot 84 and Lot 1560 was against the law and illegal; and

(f)Damages.

The OS was dismissed with costs. On 31 March 2004, DKORA lodged an appeal which they subsequently withdrew on 14 July 2004.

In this judgment, the references to DKORA and appellants are used interchangeably since the latter are members of the former, and privy to the actions of the former.

FACTS

The salient facts as we now perceive them from the various affidavits, are as follows:

(a)The appellants are the owners of residential units in Desa Kiara Condominium (the condominium) which is situated on Lot number 922, Jalan Damansara, Kuala Lumpur. The first respondent is the local authority in charge with administering the municipal affairs of the city of Kuala Lumpur. It includes ascertaining suitable lands to be used as burial grounds;

(b)there is an existing Muslim burial ground located on Lot 51567, Jalan Damansara, Kuala Lumpur (existing burial ground) which is located about 136 meters from the condominium. The existing burial ground is about 4,199 hectares in size and had been in existence since 1984, under the care, management and control of the second respondent;

(c)Lot Number 84 and Lot 1560, is government land located between the condominium and the existing burial ground. The said land about 3.88 hectares in area, is the subject matter of this appeal. The appellants had referred to the said land as the ‘buffer land’; and we borrow this reference in our judgment;

(d)in 1976, the government had acquired the buffer land for the purpose of constructing a sewerage treatment plant (‘STW’). However, the project to construct the STW was relocated to another site;

(e)due to insufficient space in the existing burial ground, the second respondent ie, Majlis Agama Wilayah Persekutuan made a request to Jawatankuasa Kerja Tanah Wilayah Persekutuan (the Land Authority), who is the authority having jurisdiction on land situated in the Federal Territory of Kuala Lumpur, to extend the existing burial ground to the buffer land;

(f)the Land Authority had by letter dated 6 May 2003 (first respondent’s affidavit(2)) granted the approval to reserve the buffer land as a Muslim burial ground pursuant to s 62 of the National Land Code, 1960 (NLC).

(g)Subs