ABDUL MAJID BIN MD HANIFF v Majlis Perbandaran Selayang (BA-25-129-11/2024)

On 23.4.2025, the Applicant was granted leave to file an application for judicial review against the Respondent.

Enclosure 19 is the Applicant’s substantive application for – S/N 1pKoTt6qN0q6yG544xNg0w

an order of certiorari to quash the Respondent’s decision to seal the premises at No: 2 (Gerai MPS) Simpang Pasar Borong, Selayang Baru Fasa 3, 68100 Batu Caves,

(ii) a declaration that the Respondent does not have jurisdiction over the Premises.

After careful consideration of the cause papers and the oral and written submissions of the parties, this Court decided to dismiss the application in Enclosure 19. The following are the reasons for the decision. Background facts

The facts leading to the Decision and this application are as follows. The Applicant operated a business at the Premises. When he applied to renew his business licence, he was informed by the Respondent that the Premises came under the administration of Dewan Bandaraya Kuala Lumpur (DBKL) (Exhibit “AM1” Enclosure 3). When he approached DBKL, he was told that the area was within their jurisdiction but that applications for business licences were temporarily frozen.

The Respondent issued warning notices that they would seal the Premises on 10.7.2024 and 23.7.2024 respectively for arrears of rental. They did so on 22.8.2024. S/N 1pKoTt6qN0q6yG544xNg0w

The Applicant’s lawyers received the Respondent’s letter dated 25.9.2024 that they were agreeable to extending the Applicant’s tenancy for the Premises until 31.12.2024. The tenancy was however terminated vide the Respondent’s notice dated 27.11.2024.

The Applicant contended that the Decision was contrary to public law as it was an abuse of power. The Decision is illegal and irrational as the Premises came under the purview of DBKL as confirmed by the Respondent themselves in their letters dated 5.2.2024 and 25.9.2024.

He contended that at all material times he was willing and able to pay the rental for the Premises and was awaiting a response from DBKL.

The Applicant also argued the decision did not follow procedure as he was not informed as to why the Premises were sealed nor given a list of things seized from the Premises.

The Respondent’s affidavit in reply was affirmed by Puan Fazlin Mariam binti Mustaffa, their valuation officer. She affirmed that –

although the local authority for the area was DBKL, the Premises belonged to them; S/N 1pKoTt6qN0q6yG544xNg0w

(ii) the Applicant had been renting the Premises since 2003 RM350.00 per month and had frequently failed to pay the rental causing them to issue notices for the arrears;

(iii) the last rental agreement expired on 31.12.2023 and there were still outstanding rental arrears;

(iv) although there is no rental agreement for 2024, the Applicant continued to occupy the Premises and operate his business;

in fact, he paid rental for the Premises from January to

(vi) the Premises was sealed because the Applicant failed to pay the rental as evident from the notices dated 23.7.2024 and 22.8.2024.

The Respondent maintained that the Decision was a contractual matter between parties and therefore not subject to judicial review. Analysis and findings Respondent’s jurisdiction

The Applicant challenged the Respondent’s jurisdiction over the Premises and argued that the Respondent could only exercise authority over the area gazetted within their limits. Therefore, S/N 1pKoTt6qN0q6yG544xNg0w the mode to challenge the Decision was by way of judicial review.

I agree with the Applicant. In Ahmad Jefri bin Mohd Jahri @ Md Johari v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145; [2010] 5 CLJ 865, James Foong FCJ clarified the ratio of the case at 156 – “… if the claim for infringement is based solely on substantive principles of public law then relief must be by way of an application for judicial review under O 53 of the RHC. If it was commenced by writ or by originating summons then this would be considered an abuse of the court’s process and should be struck out under O 18 r 19(1) of the RHC. But if the matter is under private law though concerning a public authority, O 53 of the RHC is not a suitable. But the distinction and the boundaries between public law and private law are difficult to ascertain in practice though in principle it is clear. Further, what would happen if a matter is a mixture of public law and private law? In our instant appeal, there is also the argument that O 15 r 16 of the RHC to be read with s 41 of the Specific Relief Act 1967, which allows a claimant seeking declaratory relief to commence his claim by writ or originating summons.”

The difference between public law and private law was explained in Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor & Another Appeal [2016] MLJU 1649 wherein Harun Idrus JCA (as His Lordship then was) held at para [30] – S/N 1pKoTt6qN0q6yG544xNg0w “Before proceeding, we wish to deal briefly with the difference between public law and private law rights. Public law, we apprehend, governs relationships between Governments or public authorities and subjects, where the authority concerned has power in matters that affects the rights of subjects such as the matter before us that is land acquisition. Additionally, public law also governs relationships that are of direct concern to society such as criminal law. In short, public law powers cannot be exercised by any private individual or entity. Private law on the other hand, deals with the relationships between private individuals or entities with which the State is not directly concerned, as in the relations between husband and wife, the law of contract and law of torts. Governments and public authorities too can be subjected to private law as in cases where the government contracts with a private individual or a corporation to enter into a transaction. Private law is the counterpart to public law.”

The Respondent’s argument that this is a contractual matter and therefore private law cannot stand in the face of the application and the fact that there was no tenancy agreement for 2024 with the Respondent. S/N 1pKoTt6qN0q6yG544xNg0w

The challenge to the Respondent’s jurisdiction was premised on the letter dated 5.2.2024 (Letter). The Letter was written in response to a letter in support for the renewal of the Applicant’s business license. The Letter is reproduced here – S/N 1pKoTt6qN0q6yG544xNg0w

The Letter is misleading because although it was written in respect of business licence renewals, it does state that Premises comes within DBKL’s jurisdiction. There was no tenancy agreement for 2024, therefore he did not know why they were seeking arrears rental from him. The Applicant was right to be confused. How was he to know that the area come under DBKL but the Premises did not.

It is unfortunate that the Respondent did not respond to the Applicant solicitor’s letter dated 15.8.2024 requesting for clarification. It was only vide their letter dated 25.9.2024 that the matter was clarified as they informed – “3. Sebagai makluman, bangunan gerai ini adalah MPS. Sehubungan itu, pihak MPS telah melaksanakan tindakan sewaan mengikut garis panduan yang telah ditetapkan. Berdasarkan kepada rekod, anak guam tuan telah menjelaskan bayaran sewaan bulan Januari 2024 sehingga bulan Mei 2024 dan tunggakan sewaan bermula Jun 2024 sehingga September 2024. Rekod sewaan menunjukkan anak guam tuan telah menyewa premis MPS sejak tahun 2003.”

By then the Premises had been sealed.

However, this cannot be the basis for granting the prayers sought by the Applicant. The Respondent has averred – S/N 1pKoTt6qN0q6yG544xNg0w “6.1. Walaupun Premis tersebut terletak dalam kawasan pentadbiran Dewan Bandaraya Kuala Lumpur, hak milik ke atas bangunan tersebut masih kekal pada Responden. Sehubungan itu, Responden mempunyai hak yang sah untuk mengenakan dan/atau memungut sewa daripada Pemohon sepanjang tempoh Pemohon menjalankan perniagaan di Premis tersebut.”

This Court is satisfied that this is so. This therefore, entitled them to collect rentals for the Premises. There is no issue that they do not have the jurisdiction to do so.

Despite pleading that he was confused, the Applicant did pay rental for the Premises until May 2024 and thereafter defaulted.

By his own admission, the Applicant did occupy the Premises in 2024 and as owners the Respondent is free to rent or evict tenants who do not pay the rental at their premises.

This whole debacle could have been avoided if the Respondent acted timely and ensured that tenancy agreements were signed at the beginning of the rental period. S/N 1pKoTt6qN0q6yG544xNg0w S/N 1pKoTt6qN0q6yG544xNg0w