PUTRAJAYA (Feb 28): The old Buddhist Dhamma Sakyamuni Caves Monastery in Gunung Kanthan, Hulu Kinta, Perak, on Wednesday failed to set aside an eviction notice by Associated Pan Malaysia Cement Sdn Bhd (APMC).
This follows a three-member Federal Court bench unanimously dismissing the monastery’s bid for leave to challenge the eviction, rendering a Court of Appeal decision made last Sept 5 valid.
Federal Court judge Datuk Zabariah Mohd Yusof ruled that the monastery’s proposed leave questions had not surpassed the Section 96 threshold under the Courts of Judicature Act as it involves questions of fact.
“Hence the motion is dismissed with no order as to costs,” said Judge Zabariah who sat with Federal Court judges Datuk Seri Hasnah Mohamed Hashim and Datuk Nordin Hassan.
Earlier, the bench also dismissed the monastery’s bid to adduce further evidence to support the leave questions as it ruled that it failed to pass the threshold for the Federal Court to allow the evidence as this was not produced at the High Court or at the Court of Appeal.
The monastery through counsels Ranjit Singh, Yeoh Cho Kheong and Chan Kok Keong had proposed three questions of law to be considered by the bench for the appeal proper.
For civil cases at the apex court level, leave (permission) has to be gained on questions which are novel for the bench to consider before hearing the merits to the case.
Yeoh argued that as the predecessor owner, which was the Perak government, had consented on the structure of the land (for the monastery) before it was leased to Associated Pan Malaysia Cement, then the court should consider the monastery’s presence as the structure was allowed to be there.
APMC’s counsel, Nahendran Navaratnam had argued that the monastery did not dispute that the company was given the right to lease the land and hence, the monastery and the other occupants should be considered to have wrongfully entered into the land.
The decision by the apex court on Wednesday comes at the back of last week’s Court of Appeal decision not to grant a stay of the eviction notice as there were no special circumstances for it to grant so.
The appellate bench however, last week said the bench could file a fresh bid for a stay.
Monastery filed suit last month to nullify extension
Despite Wednesday’s decision, the monastery had last month filed a writ and statement of claim at the Ipoh High Court, to seek a declaration to nullify a 30-year extension of a land lease in the area to APMC where the administrators of the temple named the Perak Land and Mines Department and APMC as defendants
It claimed that the declaration that the extension of the lease registered vide presentation No 1213/2020 on April 29, 2020 is null and void, and an order that the department cancel the entry or memorial in the register of titles.
In addition, the monastery is seeking to set aside the appellate court's decision on the eviction order, along with damages, exemplary damages and interests.
It alleged that according to former Perak state exco member Abdul Aziz Bari, the application for extension of the lease of the land was never tabled to the Perak exco.
The monastery is also home to its golden Buddha statue, and it claimed that the entire monastery’s construction had cost some RM10 million.
APMC had secured a lease from the state on a 146.4ha plot of land for quarrying activities. The 30-year extension, provided by the Perak Land and Mines Department, is effective Oct 17, 2020 till Oct 17, 2050.
In January 2022, APMC sought the Ipoh High Court to order the eviction of all squatters on Lot No 46497 in Hulu Kinta where Gunung Kanthan is located. The application was dismissed in October 2022, but APMC successfully appealed against the decision on Sept 5 last year.
APMC said that it had been given rights to the quarry land since 1963, during the time of first prime minister Tunku Abdul Rahman Putra Al Haj.
It claimed that the lease was given to the company to assist with Malaysia's development, and that it had secured renewals or extensions since. The company further questioned the year in which the association managing the monastery was incorporated.