Is the power of Land Administrator absolute

As what had been stated under Section 390 (3) of the National Land Code 1965, it is stated that the Land Administrator is the one that has the power to grant the applicant the right of way. However, the issue of whether the power of the Land Administrator is absolute in giving the right of way to the applicants should be discuss in detail.

By referring to Section 390 (2) of the National Land Code 1965, it was found that before the Land Administrator grants someone the right of way, he has to make some reasonably inquiries and investigations as he thinks appropriate. This means that, even if the Land Administrator has the power to grant the right of way, but he has to ensure that it is reasonable for him to grant the right of access to the party. And it is after the enquiries and investigations, and the Land Administrator still think that it is appropriate to grant the right of access, and then only the order for granting the access can be made.

From what has been mentioned under Section 390 (2) of the National Land Code 1965, we can see that there are some limitations for Land Administrator to exercise his power of granting the right of way. As in the case of Mamat Yan v Penolong Pentadbir Tanah, Pejabat Tanah dan Jajahan Kota Bharu & Satu Lagi [1] , the granting of the right of way by the Land Administrator was being challenged at court, on the grounds that the Land Administrator did not comply with the procedures required under the National Land Code. The court in considering whether the Land Administrator had done all necessary steps before granting the right of way, i.e. the notice of investigation to the plaintiff, dismissed the application, because it was proven that the Land Administrator had done whatever is necessary in his part.

In determining on whether the Land Administrator had complied with all the procedures before granting the right to access to another land, one may refer to the case of Tong Tiong Lim v Pentadbir Tanah Daerah, Johor Bharu [2] , which the judge held that, before granting the applicant the right to access, Land Administrator has the duty to ensure that there is no other alternative ways for the applicant to access, and then only the applicant can be granted the right to access to another’s land.

From the 2 cases above, it shows that notwithstanding the Land Administrator has the power to grant right of way to someone, it is subjected to some requirements, and without the requirements being fulfilled or satisfied, the Land Administrator is said to violate his discretion. Thus, besides determining whether reasonably means conveniently, the Land Administrator can only grant the right to access when he thinks it is expedient for him to do so. And this is the way to determine to what extent it may be expedient to grant the right of way, i.e. by determining whether there is another alternative way and etc.

Situation when the right of way is being rejected

As what had been discussed above, the Land Administrator has the power to grant the applicant the right of way when he thinks it is appropriate to do so. Similarly, he may also reject the right of way when he thinks that it is inexpedient to do so. For instance, in the case of Thankam de Silva v Pentadbir Tanah, Daerah Larut dan Matang, Taiping [3] , the applicant appealed to the High Court due to the refusal of Land Administrator to grant him a private right of way to access to another land. But the court dismissed the appeal, on the ground that if the right of access is to be granted, it may cause troublesome to the owner of the land. Besides, the court also found that there was another road can be accessed by the applicant. In this case, it is shown that the Land Administrator has the right not only to grant the right of access, but also the right to refuse the right of access, provided that he had done necessary enquiries and investigations before the decision is made.

Whether the Land Administrator has absolute discretion?

After determining several issues above, we are in the opinion that even though the Land Administrator has discretion in granting the right of way to someone for accessing the land of another, but the right may not be absolute. This is not merely because of the arguments and discussions above, but also because of some authorities had proven this statement. For instance, in the case of Si Rusa Inn Sdn. Bhd. & Ors v The Collector of Land Revenue, Port Dickson & Ors [4] , the court in determining whether the word ‘expedient’ means ‘unfettered discretion’, referred to other authority [5] and quoted the judgment of Raja Azlan Shah, saying that:

“…Unfettered discretion is a contradiction in terms….every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint: where it is wrongly exercised, it becomes the duty of the court to intervene…"

In our opinion, the judgment above is a very strong point to prove that the power of the Land Administrator is not absolute. This is because whenever the Land Administrator acted wrongly or gave the wrong decision in granting the right of access to someone, the aggrieved party can always take action to the court. And if the court is in the opinion that it is inappropriate for the Land Administrator to grant the right of way, the decision of the Land Administrator can be quashed.

The statement above can be proved by Section 418 of the National Land Code 1965, whereby Section 418 (1) of the National Land Code 1965 states that if a person is aggrieved by any decision made by the Land Administrator, he or she may appeal to the court within 3 months from the date on which the decision was communicated to him. And Section 418 (3) of the National Land Code 1965 also defines ‘decision’ includes refusal, act, omission, direction and also order. This means if the Land Administrator did not comply with the provisions under the National Land Code 1965 while making the decision, regardless of whether he order to grant or to refuse the granting of right of way, the person affected by the decision may appeal to court.

This section, in our opinion, has proven that the power of the Land Administrator is not absolute, as its decision can always be challenged by the aggrieved party and reviewed by the court. When there are some errors, the decision of the Land Administrator can always be set aside.

In order to strengthen our point of view, we would like to refer to another significant case, which illustrated to what extent the power of Land Administrator may be limited. In the case of Syarikat Perusahaan Seri Connolly Sdn. Bhd. v Pengarah Tanah dan Galian, Negeri Perak & Anor [6] , in this case, Kang Hwee Gee J had established the principle of whether the decisions of Registrar, Land Administrator and State Director are appealable. It is stated that in order for the decisions to be appealable, the decisions must be related to acts where they are required to adjudicate, which means, they are required to make decisions in the acts. This means that the matter must be regarding the power to decide but not merely the duty to act. As what was stated in the case:

“For instance, a decision of the Land Administrator to create a private right of way over an alienated land after conducting due enquiry under Section 390 of the National Land Code is an act that relates to his power to grant the right and is therefore appealable under Section 418 of the National Land Code."

The case, once again, has shown that the power of the Land Administrator is not absolute. This is because the judge stated that the decision of the Land Administrator is similar to Registrar and also State Director, is subjected to appeal under Section 418 of the National Land Code.

As a conclusion, the Land Administrator’s duty had been clearly stated under Section 390 of the National Land Code, which is to grant the right of way to the applicant if he thinks it is expedient to do so. Thus, in order to determine whether it is expedient or otherwise, the Land Administrator has to make some enquiries and investigations before making the decision. While making the decisions, it should also be taken notice that reasonably does not mean conveniently. Thus, while making the decision, if the Land Administrator found out that there is another alternative way for the applicant to pass through, the application for right of way may not be successfully granted. And last but not least, one should also take note that the power of the Land Administrator to grant the right of way is not absolute, because it is subjected to some requirements, and if the Land Administrator does some errors, his decisions are appealable under Section 418 of the National Land Code.