Back
2009 MarsdenLR 3899
RICHARD MALANJUM, AUGUSTINE PAUL, JAMES FOONG
TENAGA NASIONAL BHD – Appellant
Versus
ONG SEE TEONG – Respondent
The term 'upgrading' in the Electricity Supply Act is interpreted contextually to encompass significant improvements rather than limited to minor works, aligning with public interest considerations.
Headnote:(A) Electricity Supply Act 1990 - Section 13 - Interpretation of 'upgrading' - The court ruled that 'upgrading' is not limited to minor works and can include significant improvements, affirming the necessity for a context-based interpretation that serves public interest (Paras 6, 8, 11, 49).
(B) Compensation - The court clarified that compensation under the Electricity Supply Act is consistent with Article 13 of the Federal Constitution and the need for full compensation must be adhered to (Paras 50-54).
Facts of the case:
The appellants sought to upgrade transmission lines from 33kV to 275kV, impacting landowners in a village. The High Court upheld their right, but the Court of Appeal found the upgrade constituted a significant alteration rather than a mere maintenance (Paras 30, 36, 48).
Findings of Court:
The court agreed with the Court of Appeal's finding that the scope of upgrading as defined in the Act does not allow for extensive developments to be categorized as minor upgrades (Para 48).
Issues: Interpretation of 'upgrading' in the context of the Act; the adequacy of compensation under the Act and the Federal Constitution.
Ratio Decidendi: The interpretation of 'upgrading' must consider the intent of the Act, ensuring that public interest supersedes individual hardship (Paras 6, 11, 49).
Result: Appeal dismissed with costs.
| Table of Content |
|---|
| 1. factual background about parties and law questions (Para 1 , 2 , 26 , 27 , 28 , 29) |
| 2. appellants' arguments regarding s. 13 interpretation (Para 3 , 18 , 19 , 20) |
| 3. definition and implications of upgrading in s. 13 (Para 4 , 5 , 6 , 7 , 8 , 11) |
| 4. court's findings on limitations of upgrading (Para 14 , 15 , 16 , 17) |
| 5. court declares compensation issues as academic (Para 22 , 23 , 24) |
| 6. judicial review and findings by high court and court of appeal (Para 34 , 35 , 36 , 37) |
| 7. discussing constitutional rights and compensation (Para 50 , 52) |
| 8. final judgment on appeal and costs (Para 55) |
Augustine Paul FCJ:
[1] The facts of the case have been sufficiently dealt with in the judgment of my learned brother James Foong FCJ and it is superfluous for me to repeat them.
[2] The appellants had been granted leave to appeal to the Federal Court on eight questions of law. They are as follows:
(1) Whether s. 13 of the Electricity Supply Act 1990 ("the Act") is subject to the implied limitation that not all manner of upgrading works may be carried out by Tenaga Nasional Bhd. on existing installations under that provision?
(2) Whether s. 13 of the Act is subject to a qualitative assessment of the type of upgrading works intended to be carried out on existing installations so that 'major' works are to be excluded?
(3) Whether the determination of whether the works are 'major' or not is suitable for decision by a court of law as opposed to the public body in whose technical judgment Parliament has reposed the carrying out of upgrading works?
(4) Whether s. 13 of the Act is limited in application to only upgrading works in the nature of repairs and maintenance?
(5) Whether the public purpose factor necessitates that s. 13 of the Act be read purposefully in order that the contemplated works could be carried out expeditiously in the public interest?
(6) Whether the compensation payable to affected landowners under s. 13 read with s. 16 of the Act on a 'full compensation' basis is meant to be inferior to compensation payable under the Land Acquisition Act 1960 ?
(7) Whether art. 13 of the Federal Constitution is breached where the injury to property is caused by works authorized under a written law providing for 'full compensation' to affected landowners?
(8) Whether art. 13 of the Federal Constitution is breached where the injury to land is an interference or "deprivation" authorized by written law?
As submitted by the appellants the questions may be classified as follows:
1. The proper construction of s. 13 of the Act. This is contained in Question Nos 1-5.
2. The payment of compensation under s. 13 read with s. 16 of the Act and art. 13 of the Federal Constitution . This is contained in Question Nos 6-8.
[3] I shall now consider the two classifications.
The First Classification
[4] This relates essentially to the meaning to be accorded to the word "upgrading" in s. 13 of the Act which reads as follows:
Whenever it is necessary so to do for the purpose of maintaining, repairing or upgrading any licensed installation or any part thereof, the licensee, or any person authorized by him in that behalf, may at all reasonable times enter upon any land on, under or over which supply lines have been laid, placed or carried, or upon which posts or other equipment have been erected, and may carry out all necessary repairs, and may, in the course thereof, fell or lop trees, remove vegetation and do all other things necessary to the said purpose, causing as little damage as possible and paying full compensation in accordance with section 16 to all persons interested for any damage that may be caused thereby for which compensation has not already been assessed under section 11.
[5] In order to ascertain whether the works carried out by the appellants amount to an 'upgrading" within the scope of s. 13 of the Act, it is first necessary to determine the meaning of the word. It is defined in the Concise Oxford Dictionary as follows:
1. Rai
