Constitutional Law & Civil Rights

Court dismisses Bid to restrain Developer from entering Temple Site

Date: 13 February 2019; Type: Legal News; Source: Bernama

SHAH ALAM, Feb 13 (Bernama) - The High Court here today dismissed with cost an application for an interlocutory injunction by 50 devotees of the Sri Maha Mariamman Temple in Subang Jaya to restrain One City Development Sdn Bhd, the developer-owner of the temple site, from entering the land for the purpose of its demolition.

The plaintiffs also had sought among others, an order to stay the execution of a writ of possession dated Nov 14, 2017, obtained by One City Development.

Judge Wong Kian Kheong made the decision after finding that the plaintiffs had no cause of action against the developer and did not have locus standi under Section 9 (c) of the Societies Act 1966 to institute the action.

“This suit is barred by both limbs of res judicata doctrine and to grant an order in terms of the plaintiffs' application is to allow the continuous breach of two court orders,” he said.

Besides One City Development, the plaintiffs had also named K. Chellapan, who was sued as a public officer on behalf of the temple management committee; Sime UEP Properties Bhd; the Selangor Town and Country Planning director and the Selangor government as defendants.

Judge Wong had also dismissed with cost the plaintiffs’ application to stay all proceedings in the suit pending the ‘intervention’ by the Attorney-General (AG) to settle amicably all matters regarding the temple.

“The plaintiffs have failed to discharge the onus to satisfy this court that there exists special circumstances in this case to justify a stay order. The AG’s intervention does not constitute a special circumstance to stay this suit because this suit concerns the land which is registered in the name of the fifth defendant (One City Development).

“The fifth defendant’s ownership and rights over the land have been conferred by the National Land Code (NLC), indeed, such proprietary rights of the fifth defendant in the land are guaranteed by Article 13 (1) of the Federal Constitution. Under the NLC and any other written law, the AG has no power over the land or any ‘alienated land’ for that matter,” he said.

He added that up to the date of today’s judgment, the AG had not intervened in the suit and furthermore, there was no inkling whether AG’s intervention will ever be made in the case.

Commenting further on his judgment that the plaintiffs’ statement of claim (SOC) had no cause of action, Judge Wong said the SOC essentially concerns the use of part of the land by the temple and more importantly, the SOC does not allege that the plaintiffs’ fundamental liberty of religion has been infringed in the case.

“I am also constrained to reject any reliance on Hindu customs at the expense of the NLC. A custom or usage can only be enforced if it can be shown that the custom or usage has the ‘force of law’ and in this case, there is no proof that Hindu customs have the force of law.

“In any event, any custom or usage cannot override the express and codified provisions of the NLC regarding the rights of a registered proprietor of land which are guaranteed under Article 13 (1) of the Federal Constitution,” he said.

In the same proceedings, Judge Wong allowed the applications by One City Development, Sime UEP Properties, the Selangor Town and Country Planning director and the Selangor government to strike out the devotees’ suit.

He also ordered the plaintiffs to pay the damages and interest at the rate of five per annum on the amount of damages to One City Development regarding all losses suffered by the developer arising from its undertaking.

In the suit, the plaintiffs claimed among others, the temple was built in the 1880’s by the plaintiffs’ ancestors when they worked for the ‘Seafield Rubber Estate’ and they claimed that on Aug 16, 2005, the Selangor State Executive Committee had ‘confirmed’ that the temple would remain on the land.

Meanwhile, counsel Claudia Cheah Pek Yee, who represented One City Development, told reporters after the proceedings that the judgment today meant that the developer has the liberty to continue with execution of their writ of possession.

“At liberty…whether (my client) is going to (go ahead) or not is another issue,” she said.

The issue of the relocation of the temple triggered riots on Nov 26 and 27 last year near the temple, resulting in a firefighter, Muhamad Adib Mohd Kassim, 26, being seriously injured, several other people also hurt, 23 cars torched and a section of the One City Mall damaged.

Muhamad Adib, who was a member of the Emergency Medical Rescue Service (EMRS) of the Subang Jaya Fire & Rescue Station, died at the National Heart Institute on Dec 17.

MY Bernama

Asean LIP works with Bernama to bring you the latest Malaysian legal news. Bernama is the national news agency of Malaysia. You shall not reproduce the above/ attached materials in whole or in part without the prior written consent of the Publishers and/or Bernama. Neither the Publishers nor Bernama will be liable for any loss, injury, claim, liability, or damage caused directly, indirectly or incidentally to errors in or omissions from the above/ attached materials. The Publishers and Bernama also disclaim and exclude all liabilities in respect of anything done or omitted to be done in reliance upon the whole or any part of the above/attached materials. The access to, and the use of, Asean LIP and contents herein are subject to the Terms of Use.

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