JUDGMENT

Abdul Wahab Patail J:

The Plaintiff

[1] The plaintiff is the president and in this action acting on behalf of the Kwong Tong Cemetery Management Kuala Lumpur (formerly known as the Kwong Tong Cemetery Kuala Lumpur).

Agreed Facts

[2] It was agreed between the parties that this case is to be the test case for a series of cases as follows: 24-3083-2002; 24-3084-2002; 24-3085-2002; 24-3089-2002; 24-3091-2002; 24-3096-2002; 24-3098-2002 and 24-3087-2002.

[3] It is not disputed that subject matter otherwise known as Kg. Kerayong, Lot 3164 in Mukim Kuala Lumpur, the Federal Territory of Kuala Lumpur, is state reserved land for the purpose of a Cantonese cemetery under F.M.S. Government Gazette No. 510 dated 16 January 1920. It is also not disputed that the defendants are currently occupiers on the land. They have occupied the land from time immemorial. There is no record they objected to the land being gazetted as a Chinese cemetery.

The Issues

[4] The submission of the parties are centred on three issues ie, locus standi , applicability of O. 89 and the relevance of a Court of Appeal decision on matters of public nature.

Locus Standi

[5] The defendants questioned the locus standi of the plaintiff upon the ground that since the land is reserved land, s. 425 of the National Land Code is applicable. It was submitted the right of remedy under s. 425 is with the State Authority.

[6] It was also submitted that since the defendants are squatters, the power to remove the defendants lie with the local authority under reg. 4 of the Essential (Clearance of Squatters) Regulations 1969. [PU(A): 395/1969].

[7] Thirdly, it was submitted the application under O. 89 of the Rules of the High 1980 was inapplicable.

Grounds

[8] Section 425 provides:

425. Unlawful occupation, etc., of State land, reserved land or mining land.

(1) Any person who, without lawful authority:

(a) occupies, or erects any building on, any State land, reserved land or mining land, or

(b) clears, ploughs, digs, encloses or cultivates any such land or part thereof; or

(c) cuts or removes any timber or produce on or from such land,

shall be guilty of an offence, and liable on conviction to a fine not exceeding ten thousand ringgit, or imprisonment for a term not exceeding one year.

(1A) Any person who abets the commission of an offence under sub-s. (1) shall be guilty of an offence, and liable on conviction to a fine not exceeding ten thousand ringgit, or imprisonment for a term not exceeding one year, or to both.

(2) For the purpose of this section, state land shall include all land held by or on behalf of Federal or State Government a local authority or a statutory authority exercising powers vested in it by Federal or State law.

[9] Section 425 created offences where reserved land is used for an unauthorised purpose. It is of no direct application to this case. In Setapak Tin Mines Syndicate Ltd v. Khoo Mean Tee , [1970] 2 MLJ 191 FC the Federal Court held:

... We are of the opinion that section 425 gives the landowner an additional remedy and that the section does not prevent him from coming straight to the Court to have unlawful occupiers ejected and that he does not first have to apply to the Collector to act under that section.

[10] In other words, the plaintiff could have gone to the Collector of Land Revenue for the latter to take action, but it does not bar the plaintiff from taking proceedings of his own.

[11] Regulation 4 of the Essential (Clearance of Squatters) Regulations 1969 provides for the local authority to have the power to enter and demolish any squatter hut. It is of no relevance to this case which has been commenced by the plaintiff who is not the local authority.

[12] The plaintiff asserted that it is her right to the possession of the land. But other that that its name is Kwong Tong Cemetery Management Kuala Lumpur, and formerly known as the Kwong Tong Cemetery Kuala Lumpur, there is no evidence that the plaintiff is an association authorised by the relevant autho