MBG MBG1223: Land Planning and Environmental Law Temporary Occupation Licenses (TOL) By: Farrah Azwanee bt Aminuddin and Nur Jazliana bt Samsudin
Question On 30 June 2009, the State Authority issues one TOL to Rahul for residential purpose and one TOL to Ah Seng for purpose of operating a motor vehicle repair workshop. Rahul builds a house on his land and rent it out to Rahim who uses it as a sundry shop. Ah Seng construct a brick building on his land and sells it to Rickie Lim for the same purpose. When Rahul dies on 20 February 2010, his son, Rajoo continues to collect the monthly rent from Rahim. However, the Land Administrator rejects Rajoo‟s attempts to renew the license under Rahul‟s name. There after Rahim stops paying Rajoo the monthly rent. Rajoo contemplates removing Rahim out of the house for trespassing. Rickie Lim pays the sale price to Ah Seng but he then refuses to give Rickie Lim possession of the Building. Rickie contemplates to claim in court remedy for specific performance of the sale contract.
By referring to the relevant statutory provisions and case law, discuss the issues in the above case and advise Rajoo and Ah Seng Accordingly.
Answer
In the matter relating to TOL of Rahul, the issues identified are:
What are the rights of Rahul as the TOL holder before he dies?
Does Rahul have the right to grant tenancy to Rahim?
Does Rahul have the right to inherit the TOL to Rajoo?
Does Rajoo have the right to collect monthly rent from Rahim?
Can Rajoo sue in trespass on behalf of the TOL holder on Rahim?
The first issue raised is what are the rights of Rahul as the TOL holder before he dies? According to Torrens System, although Rahul as the TOL holder does not own the land, the right of support and right of access also are guaranteed under section 44 of the NLC. From section 4A, of the General Form of TOL, considers the permitted purpose of the general purpose of TOL as including such as private residence. Under Clause (4) “the “the land may not be
used for any purpose other than those permitted and stipulated in the licence”. From this clause, it is clearly that Rahul has the right as the TOL holder to build a house for residential use accordingly as what is permitted in the licence.
The second issue is does Rahul have the right to grant tenancy to Rahim? In reference with the case of Ban Seng v Yap Pek Soo (1967), The Court held by Judge Gill J. state that “although the R ule 41 of Land Rules prohibit the transfer of a temporary occupation licence. It does not prohibit any dealing which do not relating to transfer ”. Therefore, if the holder of TOL builds a house on the land and let it out on rent, the renting does not amount to a transfer of TOL. This is decision of judicial precedent of Judge Ismail Khan in the case of Govindaraju v Krishnan). Therefore, the ratio in the cases above was extended that the right of Rahul as the TOL holder to grant a tenancy to Rahim was reaffirmed.
On the other hand, the third issue raised is does Rahul have the right to inherit the TOL to Rajoo? For this matter, facts of the case are much similar to the case of Papoo v Veeriah (1965). The Court Judge Good J. held that “a temporary licence is exactly what the name implies. It is a licence to occupy and nothing more. The licence is personal belongs to the holder, it dies with the holder”. This case has therefore established that the land or anything erected on the land can not be transferred inter vivos by the Rahul as the TOL holder to Rajoo during his lifetime to someone else or even aft er his death.
Fourthly, the issue raised in this situation is does Rajoo have the right to collect monthly rent from Rahim? Under the same provision, in the case of Fatimah v Moideen Kutty (1969) , Jugde Suffian F. J. held that “whatever the deceased or their heir right between the TOL holder‟s death end of the year of the death, the government has the right to refused the application of the heir application of TOL renewal in the name of the deceased or anyone else because upon the death no one has any right of any kind of whatsoever on the land”. Section 116 of the Evidence Ordinance (1950) summarise that neither the deceased nor the heir had any title of TOL after the title holder‟s death. Since Rahul‟s right is not capable to let him to inherit the TOL of the said land to Rajoo, thus Rajoo is not entitled as the TOL holder and he has no right to collect monthly rent from Rahim upon the land on behalf of Rahul or himself.
Last but not least is the issue whether Rajoo can sue in trespass on behalf of the TOL holder on Rahim? Given the TOL licence can not be inherited after the death of Rahul to
Rajoo, thus Rajoo is not a valid TOL licensee of the land. Hence Rajoo has no right to sue Rahim in trespass from the land. In fact, the TOL licensee of the land does not belong neither to Rahul nor Rajoo nor Rahim anymore. Whoever intended to TOL holder of the land must make an application to State Authority for the intended purposes.
On the other hand, in the matter of relating to TOL of Ah Seng, the issue identified is:
Does Ah Seng have the right to sell the land and can Ric kie Lim claim for specific performance sale contract.
State Authority issued a TOL licence to Ah Seng for the purpose of operating a motor vehicle repair workshop. Ah Seng then constructed a brick building and sell the building to Rickie Lim for that purpose. The issue raised regarding to this is does Ah Seng have right to sell the land? And the problem becomes more complicated when Rickie Lim wished to claim in court for remedy for specific performance of the sale contract since Ah Seng refused to hand in the land possession to Rickie Lim. According to Torrent System, S65 of NLC states that TOL holders have no right of sales but TOL holder can rent out his premises, either wholly or in part. 1 Authority related this fact can be referred by the court decision for the case of Hee Cheng v. Krishnan (1955), where Thomas J. held that „‟The alleged contract (for the sale of the house) was in truth and in fact an attempt to sell and purchase the defendant‟s right under the temporary occupation license. As much, it was in my opinion, unlawful by reason of Section 24 of the contract (Malay States) Ordinance 1950….‟‟. Hence, Ah Seng have not right to sell the land to Rickie Lim and since there is no legal contract been made between the two parties, Rickie Lim can not to claim for specific performance for breach of contract.
