JUDGMENT

K.C. Vohrah J:

Lam Eng Rubber Factory (M) Sdn. Bhd., the applicant company, is presently the registered owner of a piece of land, Lot 1217, Surat Putus Kecil 3124, Mk. Sungei Pasir, Sungei Petani, Kedah. The former title to this land was Surat Putus Besar 22720 but Surat Putus Kecil 3124, the present title, shows that on 21 Muharram 1370 (1 November 1950) the land was granted to one Lim Seng Tiew for use as a rubber estate.

Background:

On the said land stands a rubber processing factory (the factory) which the applicant com-pany claims was built at least in 1940 but which the respondents claim was built in 1970. My view is that it was already in existence in 1940, when the said land was part of a bigger area of land planted with rubber and that on this bigger area not only was the said factory but other ancillary buildings like a smokehouse and workers' quarters had been built thereon (see uncontradicted paragraph 9 appearing in affidavit of Yeoh Soon Lin affirmed on 15 March 1993 - Enclosure 38).

In November 1983 the applicant company ap-plied for conversion of the said land from category of land use "rubber" to category of land use "industrial" under the National Land Code (the NLC). In 1987 the application for conversion was rejected by the State Authority. And the 2nd respondent by letter dated 2

August 1987 gave notice in Form 7A to the applicant company under s. 128 of the NLC to demolish the factory on the said land within 3 months from the date of the notice and to plant rubber trees on the said land within the said period.

Nature of application

The applicant company in its appeal under s. 418 of the NLC has applied for the following:

2. An order quashing the said notice to remedy a breach of condition pursuant to s. 128 of the National Land Code 1965 issued by the 2nd respondent and a decision of the 1st respondent made pursuant to s. 124 of the National Land Code 1965 rejecting the applicant's application for variation of category of land use from rubber to industrial of Lot 1217 Mukim of Sungei Pasir, District of Kuala Muda, State of Kedah comprised in SPK 3124; or in the alternative 3. an order suspending until final determina-tion of these proceedings the operation of the notice to remedy a breach of the condition pursuant to s. 128 of the National Land Code 1965; 4. an order that the matter of a notice to remedy a breach of condition pursuant to s. 128 of the National Land Code 1965 dated 2 August 1987 and made by the 2nd respondent and a decision of the 1st respondent pursuant to s. 124 of the abovementioned Code notified by letter dated 2 August 1987 rejecting the applicant's application for variation of category of land use from rubber to industrial of Lot 1217 Mukim of Sungei Pasir, District of Kuala Muda, State of Kedah comprised in SPK 3124 may be remitted to the 1st respondent for re-hearing and determination, together with the opinion or directions of the Court according to law.

In addition, in the same application, the appli-cant company has applied for a declaration that the notice sent to the company and the rejection of the application for conversion of the land are null and void for being in contravention of Articles 13 and18 of the Federal Constitution and of s. 53 of the NLC and for non compliance with the rules of natural justice.

Prayer for declaration in appeal application not proper

The matter properly before the Court is an appeal pursued under the provisions of s. 418 of the NLC read with O. 55 r. 13 of the Rules of the High Court (the RHC) and is by way of originat-ing motion. What the applicant has done in the appeal is to mix the appeal, which is a right given by a statutory provision (s. 418 of the NLC), with an alien matter, a prayer for declaratory relief under O. 15 r. 16 RHC which should have been begun either by writ or origi-nating summons (see O. 5 r. 4 and also Puntar v. Ministry of Pension and National Insurance [1963] 1 All ER 275 and Lim Cho Hock V. Speaker, Pe