LAM ENG RUBBER FACTORY (M) SDN BHD v PENGARAH ALAM SEKITAR, NEGERI KEDAH DAN PERLIS & ANOR.

The appellant operated a rubber factory in Sungai Petani, Kedah since 1940. In November 1993, the appellant applied for the licence from the Department of Environment, Kedah. The first respondent, the director of environment for Kedah and Perlis responded in mid-February 1994, saying that the appellant’s land had not been converted from agriculture to industry and for that reason the appellant’s application for a licence could not be considered. In actual fact, an earlier court judgment of KC Vohrah J between the appellant and the state director, Kedah and the land administrator, Kuala Muda, Sungai Petani, Kedah had held that the appellant had not infringed the condition of the issue document of title to their land — therefore, there was no necessity for the appellant to apply for a change of land user. After some correspondence and a reminder from the appellant, the department did not respond further. The following year, the appellant applied for the licence for 1995. Its application was refused, the reason given was that the area surrounding the factory had become a residential area and it was unsuitable for the appellant to carry on operations there. The appellant was dissatisfied and appealed to the Appeal Board created by the Enviroment Quality Act 1974 (‘the EQA’). However, its appeal was purportedly refused by the first respondent. The appellant accordingly moved to the High Court for certiorari to quash the first respondent’s decision. Its application failed. The High Court held that since the appellant had no licence for the year 1994 they had carried on their factory illegally and had no legitimate expectation to have a licence for 1995. The Court held, allowing the appeal with costs, remitting the appeal to the Appeal Board and setting aside the orders of the High Court): In the first place, it was the wrongful conduct of the first respondent that led to the appellant having had no licence for 1994. The first respondent had told the appellant that the licence for 1994 was not forthcoming unless the condition of land use was altered. That objection was of no consequence in the light of KC Vohrah J’s ruling. So the appellant was legitimately entitled to have the licence issued to it. Parliament had conferred upon the first respondent the discretion to decide whether to issue the licence or not. But the law requires him to exercise this power or discretion fairly, justly and without misdirecting himself on the law or the facts Any reasonable man in would have been led by the words and conduct of the first respondent to believe that the 1994 licence would be issued once the problem about the condition in the title to the land had been resolved. As for conduct, he accepted the payment made by the appellant and also did not respond at all to the appellant’s reminder. Then atthe hearing came the suggestion that the appellant was not entitled to relief because it carried out its operations in 1994 without a licence. There was a smacking of unfairness and injustice in administration. The only issue that the court had to decide was whether the decision of the first respondent that the appeal could not be considered was lawful. The decision was obviously unlawful. The appellant’s appeal being a matter within the jurisdiction of the Appeal Board, it was not for the first respondent to decide that the appeal could not be considered. It was for the Appeal Board to decide the fate of the appeal.