JUDGMENT

The 1st defendant is a company governed by the Electricity (Successor Company Act) 1990. It was previously a statutory body known as the National Electricity Board of the States of Malaya (known in Bahasa Malaysia as Lembaga Letrik Negara Tanah Melayu - LLN) set up under the Electricity Act 1949. For convenience, unless it is otherwise stated, I would refer to LLN and the successor company as TNB.

Sometime in July 1988 TNB decided to have an upgrading exercise of the then existing supply or transmission lines from Kuala Lumpur East to Pudu Hilir. The object was to upgrade the 33 kilovolts transmission lines to 275/132 kilovolts. That, however, meant carrying over land new lines along the same route that the old transmission lines took. And it also meant that new towers or pylons had to be [2] erected to take the new lines entailing the building of new foundation for the footings of these pylons. Sometime in April 1990 construction work started for the replacement of the lines. This was done by the 2nd defendant, the contractor of TNB. Awholly new installation of 275/132 kilovolts transmission lines has replaced the 33 kilovolts lines Pembangunan Tanah Bahagia Sdn Bhd (now known as Dolomite Industrial Park Sdn Bhd) (the plaintiff) appeared at the time of the trial, as the registered proprietor of three contiguous pieces of land, PT NO 21478 HSD 18661, PT NO 21479 HSQ)) 18662, PT NO 21480 HD (D) 18663, Mukim Batu, District of Gombak, Selangor Darul Ehsan. These 3 pieces of land (the said land) were originally Lot 10240 before subdivision. The said land had its southern and western boundaries basically running alongside the old transmission lines strung across the old towers.

The plaintiff had obtained the appropriate official approval to develop the said land into an industrial and commercial park to be ultimately sold to third parties. The complaint of the plaintiff is that some of the new pylons encroach into and the new transmission lines have been carried across and they encroach into the said land and in many areas the lines and pylon footings are built too close to the boundary of the said land affecting adversely the buildings put up in accordance with the approved plan. The plaintiff claims that the acts of TNB and of the 2nd defendant in constructing the pylons very close to the boundary of the said land and the encroachment in some locations into the said land constitute a nuisance in that the plaintiff's right to quiet [3] enjoyment is rendered dangerous or has been frustrated by the closeness of TNB electrical transmission lines.

The plaintiff has further or in the alternative pleaded trespass on the ground that the transmission lines have physically encroached upon the said land or airspace of the plaintiff.

The plaintiff claims for the following -

(a) a declaration that TNB and the 2nd defendant are not entitled to build the pylons as are presently erected;

(b) an injunction restraining TNB and/or the 2nd defendant, their servants and/or agents from erecting the electrical transmission lines;

(c) an order requiring the 1st and/or the 2nd defendant to remove the foundations which have encroached upon the plaintiff's properties;

(d) damages and costs.

On 12.2.1996 during the course of the trial, TNB amended its defence. The amended defence (see paragraph 4) is that the construction work carried out by TNB's contractor, i.e. the 2nd defendant, was within an already existing "electrical wayleave" [4] which was on the affected portion of the plaintiff's land very much earlier, and prior to the plaintiff becoming the owner of the said land.

TNB also asserts (see paragraph 6) that the actual existing "electrical wayleave" of TNB is already inside the plaintiff's boundary and that as such the allegation that the "electrical wayleave" by the plaintiff is outside the plaintiff's boundary is not correct.

TNB also contends (see paragraph 7) that the building of the pylon foundations was very much wi