JUDGMENT

Zailan Adzam Ghani JC:

The plaintiffs by a summon in chambers applied for an interlocutory injunction against the two defendants to restrain them from demolishing the Sri Muniswaran temple at Jalan Kisap, Kuah, Kedah. They are the committee members of the said temple. The first defendant is the Majlis Perbandaran Langkawi and the second defendant is the State Government of Kedah. The application was ex parte accompanied with a certificate of urgency and an affidavit in support. After a brief hearing the interlocutory injunction was granted against the first defendant but not against the second defendant as the facts in their affidavit disclosed that only the first defendant was actively involved in the impending demolition exercise. The matter was then adjourned to enable the plaintiffs to serve the two defendants the necessary documents for an inter partes hearing. That hearing was then conducted on two dates and hence this decision.

The facts of this matter before me are briefly as follows. The plaintiffs claimed that the temple has been in existence at the location since 1928. It was built and used by plantation workers on a rubber plantation owned by a British company with the consent of the owners. The estate was subsequently bought by Boon Siew Sdn. Bhd. and that company also consented to the existence of the temple. According to the plaintiffs a small road originally existed beside the temple and in 1986 it was replaced with two lane tar road. The temple was used for religious ceremonies including firewalking ceremony and until 2002 the police even issued permits for them to conduct religious procession. The plaintiffs averred that there was no new temple built at the site but admitted that repairs and renovations were done to the original temple.

In their supplementary affidavit the plaintiffs admitted that the first defendant did acquire the land near the temple from Boon Siew Sdn. Bhd. and in 1986 built the two lane tar road. At all times the main shrine was at the same location but that location was subsequently declared a road reserve. They however admitted that the tar road that was built near the temple was not done on purpose, although there was ample area on the other side, but was something that had happened. On 26 February 2003 the plaintiffs were served with a notice dated 16 February 2003 under s 72 of the Street Drainage and Building Act 1974 by the first defendant to demolish the said temple. The first defendant called the plaintiffs for discussion and negotiation on two occasions but nothing was resolved.

The first defendant in their affidavit in reply admitted that the temple had existed for a long time but it was restored from an old building to a new building without acquiring the prior approval from them and without submitting the necessary plans. That failure of the plaintiffs was in contravention of s 70 of the Street, Drainage and Building Act 1974 which is an offence under s 72 of the same Act . Their affidavit also exhibited an investigation report which revealed an ongoing construction done on the site involving the restoration of the old temple into a new building and the addition of other new structures. The construction was without any written approval of the first defendant and the reconstructed temple encroached into the road reserve with a set back of only 26 feet from the middle of the road. The minimum set back from the middle of the road allowed was 90 feet. The four photographs exhibited showed the ongoing construction work and the location of the temple. The other exhibits included copies of the notice issued, the plans of the road reserve and the sketch plan of the temple site showing the encroachment of the road reserve.

The first defendant filed a supplementary affidavit which revealed that the land on which the temple is situated (ie, Land Title CRN 36370, Lot No. 1311) was originally owned by Boon Siew Sdn. Bhd., Pulau Pinang. The said land was acquired by the State Governmen