PUTRAJAYA (Sept 8): Some 200 Raub Musang King durian farmers have today obtained leave from court to have the merits of their judicial review application against the Pahang government to quash its eviction order against them be heard.
This follows the unanimous decision by a three-member Court of Appeal bench led by Justice Datuk Mohamad Zabidin Md Diah, to allow the appeal by the durian farmers, who were alleged to have illegally occupied the land since the 1960s, against the decision by the Kuantan High Court on Dec 23 last year that dismissed their judicial review application.
The other two members of the bench were Datuk S Nantha Balan and Datuk Daryl Goon Siew Chye.
Justice Zabidin said it is without doubt that a notice had been issued by the first respondent — the Raub District Land Office — to the farmers to vacate the land under Section 32 of the National Land Code.
“If it is implemented, it will cause the applicants to vacate and lose their livelihood in durian farming. They have applied for a licence from the state of Pahang since or around 1961, but there has not been any response.
“There is no rebuttal to this (licence application). The state authorities said the applicants are considered to be squatters or trespassers on the affected land. In any event, the respondents' allegations are questionable and should be decided substantively in the judicial review application. It (the application) cannot be said to be vexatious,” he said.
As such, Justice Zabidin further said this appellate court was allowing the appeal, adding the stay order against the authorities that was made by this court last January would be in force until the disposal of the case.
The judge also directed that the case be mentioned at the Kuantan High Court on Sept 22. The respondents were also ordered to pay a total cost of RM20,000 to the applicants.
The durian farmers' counsel Brendan Navin Siva applied to the court for the case to be heard by another High Court judge, but Justice Zabidin told the lawyer to take it up at the High Court.
Their application
The farmers are divided into two groups, one with 94 people led by Young Kah Kiat, while the other comprises 115 people led by Chin Yoon. In both their applications, the farmers name the Pahang State Agriculture Development Corp, the director of the Forestry Department, the Raub Land District office, Royal Pahang Durian Resources PKPP Sdn Bhd and the Pahang government as respondents.
The farmers filed the judicial review to obtain leave (permission) to initiate the full hearing of the review against the Pahang government's order for them to vacate the land in Raub, which measures 2,167ha. The eviction notice was issued on Dec 21 last year, and the famers were ordered to vacate the land by Jan 4.
Apart from reviewing the order to vacate the land made under the National Land Code 1965 and the National Forestry Act 1984, the applicants also want to obtain a judicial review on an alleged decision by the state government to grant lease and farmland use rights for the same plot of land to Royal Pahang Durian Resources PKPP.
The applicants also want a review on the state government's decision to sublease the land involved to them, and the mandatory requirement imposed to sell durians to a single entity nominated by Royal Pahang Durian Resources PKPP.
On Dec 23, Kuantan High Court judge Justice Zainal Azman Ab Aziz dismissed the planters' judicial review application on grounds that they should not have applied for a judicial review as the eviction notice issued by a land administrator was not something that could be reviewed in court, and that the court found the farmers had trespassed on the land.
"As trespassers, they do not have locus standi to file this application for judicial review," the Kuantan court ruled and ordered the planters to pay RM10,000 to the AGC.
The farmers, however, obtained a stay of the eviction from the Court of Appeal earlier this year. The appellate court's bench at the time, which was led by Datuk Yaacob Md Sam, with the two other members being Justice Nantha Balan and Datuk M Gunalan, allowed the stay until the disposal of the judicial review.
Brendan, who appeared with Siew Choon Jern then, argued in court then that the farmers should not be considered as trespassers following the many times they had applied to have a licence to operate on the land.
According to him, the case was not only about their eviction but also the Pahang government's decision to form Royal Pahang Durian Resources to lease these lands, and allegedly try to force the farmers to be there for 30 years. "The farmers are challenging the decision to have them go with Royal Pahang Durian Resources with regard to selling their durians and also to be on the land further. We say there is an arguable case and it is not a vexatious matter," he said at the time.
Senior federal counsel Noor Fadzilla Ishak and Farahah Mohd Nazari from the Attorney General Chambers, however, responded that the fact that the farmers did not have the ownership of the land showed that they did not have the locus standi (legal standing) to initiate the judicial review.
And as they did not have legal standing to be heard as they were considered trespassers, then the farmers did not have an arguable case, they said. "The state had given them 30 days to vacate their land but they refused," they added.
However, all three judges who heard the appeal today asked why there was no affidavit in response to the farmers' claim that they did apply for a licence but did not get any response. In the end, the bench allowed the appeal.
"The Musang King durian is now famous, (and) suddenly there is this action," a member of the bench remarked, referring to the eviction notice issued by the state government.