Mohd Azman Bin Yaacob v Tenaga Nasional Berhad (D-02(NCvC)(W)-673-04/2023)

The Appeal before us is a claim for trespass by a subsequent landowner against the Respondent, Tenaga Nasional Berhad (“TNB”) for existing electrical transmission towers and transmission lines which were erected across the subject land prior to the Appellant’s subsequent purchase and ownership of a subdivided portion subject land.

Essentially, the Appellant (“Mohd Azman bin Yaacob”) contended that TNB had not lawfully obtained an ‘izin lalu’ or ‘wayleave’ under section 53 of the Electricity Act 1949 (now section 11 of the Electricity Supply Act 1990) and section 56 of the Electricity Act 1949 (now Section 15 of the Electricity Supply Act 1990).

On the other hand, TNB contended that there was no trespass or continuing trespass as they had appropriately obtained a wayleave from the previous registered proprietor of the subject land via the proper compliance of statutory procedures prescribed under section 53 of the Electricity Act 1949 (“1949 Act”) circa 1979 approximately thirty-eight (38) YEARS BEFORE the Appellant’s registered proprietorship over a subdivided portion of the subject land.

The High Court had dismissed the Appellant’s claim and thus, the Appellant filed the present Appeal before us. In any case, before we delve into the substance of our deliberations, it is necessary to state the underlying facts of the case.

Circa 1978, [TNB - at that time Lembaga Letrik Negara (“LLN”) “the Respondent”] had commenced a project (known as Aliran Elektrik 33kV dari Machang ke Pasir Puteh, Kelantan) for the primary objective of providing basic electricity supply to the public especially in the rural areas of Kelantan. To achieve this public objective, TNB / LLN (“the Respondent / LLN / TNB”) would have to necessarily erect electricity transmission towers and power lines across plots of land in Kelantan. B(i) The Respondent’s obtainment of Wayleave well before the Appellant’s registered proprietorship of a subdivided portion of the subject land

It had long been the Respondent’s standard practice that the requirement for reserve area for 33kV transmission lines, must necessarily be an area of 132 feet (or 2 chain rentice) (as per TNB’s guideline in Medium Voltage bre Overhead Line Handbook:

Wan Jawahir Binti Harun

Mohd Khuzaimi Bin Mohd Salleh

Messrs. Seteven Thiru & Sudhar Partnership

David Mathew

David Ng Yew Kiat

Subject as hereinafter provided, whenever it is necessary so to do for the purpose of installing any system of distribution of energy under this Act, the Board or a licensee may lay, place or carry on, under or over any land, other than State land, such supply lines and may erect in or upon any land, other than State land, such posts and other apparatus as may be necessary or proper for the purposes of the Board installation or licensed installation, as the case may be, and may take such other action as may be necessary to render the installation safe and efficient, paying full compensation in accordance with section 58 to all persons interested for any disturbance, damage or disability that may be caused thereby;...” [emphasis added] Page 5 of 29 [9] This authority is conditional upon full compliance of all the requisites and procedures as laid down in the subsections of the same provision of the 1949 Act: “(2) Before entering on any land for the purpose specified in subsection (1), the Board or the licensee as the case may be, shall give notice stating as fully and accurately as possible the nature and extent of the acts intended to be done. The notice shall be substantially in the form set out in the Fourth Schedule, and may, with the permission of the State Authority, specify a date upon which the State Authority will enquire into any objections that have been made as hereinafter provided.

The aforesaid notice shall be given:-

in the case of alienated land, to the registered owner or occupier…

Any of the persons mentioned in subsection (3) may, within fourteen days of the receipt of the notice therein referred to, lodge an objection to the intended acts of the Board or licensee, as the case may be. The objection may be made to the Collector of Land Revenue, either verbally or in writing, and the Collector shall give notice of the objection to the State Authority and to the Board or licensee, as the case may be.

If no objection is lodged within the time limited for that purpose by subsection (4), the Board or licensee, as the Page 6 of 29 case may be, may forthwith enter on the land and do all or any of the acts specified in the notice given under subsection (2).” [10] Based on the above provisions, the wayleave procedure under section 53 of the Electricity Act 1949 would entail the following steps: a. LLN / TNB to identify the lands affected or involved in the project; b. LLN / TNB to write to the state authority for permission, and to inform the state authority of the lots involved or affected in the project; c. The State Authority (being the authority with all the material information and records as to land proprietorship and the authority to “inquire into any objections”) shall then issue the Statutory Notices in the Form prescribed under the 4th Schedule of the Electrcity Act 1949 (“Statutory Notice”) to all land owners affected by the project; d. Landowners who were served the Statutory Notice may lodge an objection against the wayleave within 14 days from the service of the Statutory Notice; and [11] If there were no objections by the Landowners, then LLN / TNB shall be deemed to have obtained the appropriate wayleave to enter into the land and erect the necessary apparatuses for the supply of electricity. In due compliance of the above procedures, the Page 7 of 29 Respondent had first identified that the subject land, formerly held under title No. NEMR 277, Lot 90, Daerah and Mukim Ulu Sat, Jajahan Machang, Kelantan, will be affected by the project. Via a letter dated 29.6.1978 the Respondent had applied for the permission of the State Authority to proceed with the wayleave procedure against all the affected lands (which also included the subject land). In the same Letter, the Respondent had sought the assistance of the State Authority to serve the Statutory Notices to the Landowners of which the addresses were within the State Authority’s record: Page 8 of 29 [12] It was then identified that the subject land (at that time) was owned by Noriah Bt Idris and Awang B. Botook. In total, it was identified that there were one hundred and six (106) Statutory Notices to be issued for the district of Pasir Puteh and five hundred and seventy-three (573) Statutory Notices to be issued for the District of Machang. The State Authority (being the District & Land Office of Machang, Kelantan) undertook to serve all of the Statutory Notices. [13] By 31.12.1978, the LLN / TNB proceeded to seek an update on the service of the Statutory Notices from the State Authority. The State Authority replied via its letter dated 4.1.1979 that all of the requisite Statutory Notices have been appropriately served to all affected landowners with the last notice being served on 1.1.1979: Page 9 of 29 [14] Thereafter, past the fourteen (14) statutory days for objection by any landowner, the State Authority informed via its letter dated 21.1.1979 that none of the Landowners had lodged any objections against the intended wayleave. Thus, in absence of any objections against the Wayleave, the LLN / TNB shall be deemed to have legally obtained a right of entry and right for Wayleave over the lots affected by the project: Page 10 of 29 [15] Upon obtaining the Wayleave, LLN / TNB had already entered the subject land and erected the necessary electrical transmission towers and lines in furtherance of the project. [16] In the present case, the Wayleave was obtained in 1979 and the law as it stood at that time did NOT statutorily require that the Wayleave be endorsed onto the instrument document title of the subject land (prior to the enforcement of Section 53(9A) which was added via the Electricity (Amendment) Act 1984). Thus, there was no contravention of any law at that time, albeit that the Wayleave was never endorsed onto the subject land’s instrument document title. B(ii) The Appellant’s subsequent proprietorship of the subdivided lot (after the Wayleave was legally obtained) [17] The subject land was subsequently held under title number GM 2689, Lot 2092, Kg Belukar, Mukim Ulu Sat, Jajahan Machang, Kelantan which later was divided into five (5) separate lots. One of the subdivided lots were held under title number PT 3991, HSM 1420, Kg Belukar, Mukim Ulu Sat, Jajahan Machang, Kelantan (“subdivided lot”). Approximately 38 years since the obtainment of the Wayleave, the Appellant became the registered proprietor of the subdivided lot on 5.3.2017. [18] It is critical to highlight that the electrical tower and lines had already been erected on the subdivided lot at the time the Appellant purchased the subdivided lot. Thus, the Appellant had purchased the subdivided lot despite his own full knowledge that Page 11 of 29 there was already in existence LLN / TNB ’s electrical tower and lines erected upon a portion of the subdivided lot. [19] Upon the Appellant’s ownership over the subdivided lot, the Appellant then applied for a planning permission for a proposed layout plan for the development of nine (9) units of terraced houses on the subdivided lot (“the Application”). [20] In response to the Application (and in continuance of the legally obtained Wayleave since 38 years ago) the Planning Authority of the District of Machang via a letter dated 30.10.2017 had informed the Appellant of its conditional approval (pre-conditioned and subject to the preservation of the original one hundred and thirty-two

feet reserve area for TNB’s electrical towers and lines originally obtained via the Wayleave procedure circa 1978 to 1979). [21] Dissatisfied with the conditions placed by the Planning Authority, the Appellant appealed to TNB via a letter dated 3.12.2017 requesting that the reserve area be cut down to half from 132 feet to a mere sixty-six (66} feet (which was well below the required reserve area under TNB’s guideline and less than the reserve area legally obtained via the Wayleave). In the same letter, the Appellant had unequivocally admitted to having prior knowledge of the prior erection of TNB’s electrical tower and lines (well before the Appellant’s purchase of the subdivided lot) when the Appellant proposed that the existing tower and electrical lines be moved to run along the subdivided lot’s rizab sungai in the southern area of the subdivided lot. Page 12 of 29 [22] Thus, even if there was the hypothetical ‘deprivation of use of land’ as complained by the Appellant (which there was none), it was the Appellant himself who had knowingly bought himself into the ‘deprivation’ as the author of his own ‘misfortune’. If the Appellant was truly genuine with his endeavour to develop the subdivided lot (with full knowledge of TNB’s structures already erected upon the subdivided lot) he should have enquired into the legality of TNB’s electrical tower and power lines before he proceeded to buy into the ‘risk’ of being ‘deprived’ of the use of certain portions of the subdivided lots which were already reserved for the erection of TNB’s structures. It is more probable than not that the Appellant had bought into the subdivided lot with the intention to turn a quick profit against TNB. This is further reflected by the Appellant’s outright ‘readiness’ to abandon the Appellant’s original development plan and concede the 132 feet reserve area if in case TNB was willing to agree to pay compensation for the 132 feet reserve area that TNB (that TNB had legally obtained Wayleave to enter some 38 years before the Appellant’s proprietorship). [23] The Respondent via its letter dated 22.1.2018 had rejected the Appellant’s request and insisted on the preservation of the 132 feet reserve area obtained via the Wayleave. Again, the Appellant via its surveyor submitted another appeal now to the Planning Authority against the Respondent’s insistence on the 132 feet of reserve area. The Planning Authority rejected with finality the Appellant’s Page 13 of 29 appeal and also insisted on the same 132 feet of reserve area for which the Respondent had lawfully obtained the Wayleave. [24] Following the Planning Authority’s rejection, the Appellant commenced the suit before the High Court primarily citing that the Respondent had never lawfully obtained any Wayleave and that they had trespassed and continuously trespassed onto the Appellant’s subdivided lot. [25] After full trial, the learned Judicial Commissioner (now High Court Judge) had dismissed the Appellant’s claim primarily on the following grounds: a. The Respondent has proven that it has appropriately complied with all the requisites and procedures laid down under section 53 of the Electricity Act 1949 and thus, had lawfully obtained the Wayleave to enter and erect the TNB structures ontop of the subject Land (now subdivided lot); b. The evidence via the letters issued by the State Authority confirming successful service of the Statutory Notice and non-objection against the Statutory Notice were sufficient to prove that the necessary procedures prescribed to serve the Statutory Notice under the provision had been duly complied with (see Mahani bt Desa dan lain-lain lwn Tenaga Nasional Bhd [2021] MLJU 1833); c. Since TNB’s entry and erection of the TNB structures had been legally carried out 38 years before the Appellant’s ownership of the subdivided lot, the Appellant’s subsequent ownership of the Page 14 of 29 subdivided lot does not revoke or invalidate the Wayleave duly obtained by TNB; and d. Since TNB’s Wayleave shall survive despite the Appellant’s subsequent ownership of the subdivided lot, TNB had never trespassed or continuously trespassed upon the Appellant’s subdivided lot. [26] Disgruntled by the High Court’s dismissal of his claim, the Appellant filed the present Appeal before us against the entirety of the High Court’s decision. C. THE APPEAL BEFORE US [27] We have thoroughly perused the Memorandum of Appeal, the High Court’s Grounds of Judgment, the Record of Appeal and the parties’ respective written submissions and we are of the view that the instant Appeal before us can be simply disposed off by determining the following singular issue: “Whether the High Court was correct in finding that the Respondent had duly complied with all of the requisites and statutory procedures under section 53 of the Electricity Act 1949 to obtain and maintain its Wayleave on top of the Appellant’s subdivided lot.” Page 15 of 29 D. WHETHER THE HIGH COURT WAS CORRECT IN FINDING THAT THE RESPONDENT HAD DULY COMPLIED WITH ALL OF THE REQUISITES AND STATUTORY PROCEDURES UNDER SECTION 53 OF THE ELECTRICITY ACT 1949 TO OBTAIN AND MAINTAIN ITS WAYLEAVE ON TOP OF THE APPELLANT’S SUBDIVIDED LOT [28] The chief complaint mounted by the Appellant was that the High Court had failed to appreciate that the Respondent had insufficient evidence to prove that the proper procedures had been complied with so as to entitle the Respondent a Wayleave over of the subdivided Lot. This main complaint had been mounted in reliance of a few sub-contentions: a. The Respondent had failed to adduce the Statutory Notice itself and the proof of service of the Statutory Notice to the previous owner of the subject land; b. The Respondent’s Wayleave could not have been legitimate considering the fact that the Wayleave was never registered or endorsed upon the instrument document title; c. The Respondent’s Wayleave could not have been legitimate considering the fact that the Respondent had never paid any compensation to the previous owner of the subject land; and d. There had not been any Wayleave Agreement entered so as to entitle the Respondent to the Wayleave. Page 16 of 29 [29] In any case, we should first be minded of the basic law, concepts, and principles underlying the granting of Wayleave. Wayleave per se is self-explanatory. It is simply a land right for TNB to have right of way to enter and erect electrical structures for the purposes of supplying electricity under the prevailing law at the time. Of course the granting of the Wayleave is conditional to specific requisites and procedures. [30] Now, the first point in divergence (and even confusion on the part of the Appellant) is on the manner and method that the same singular Wayleave can be obtained. The first method would be to initiate the procedures (“Wayleave Procedures”) enumerated within section 53 of the Electricity Act 1949. Upon compliance of these procedures, then TNB shall be deemed to have obtained a valid Wayleave. [31] On the other hand, the same 1949 Act also provides for ‘savings’ or ‘exception’ in cases where the right of entry and Wayleave can be mutually negotiated and codified into an Agreement (“Wayleave Agreement”). This saving or exception is prescribed under section 56 of the Electricity Act 1949. [32] Section 56 of the 1949 Act is not the be all and end all provision to determine the validity of a Wayleave. Nor should section 56 of the 1949 Act be read conjunctively with section 53 at all times. The only instance where section 56 becomes relevant is when the entry and Wayleave of TNB had allegedly been codified under an Agreement. In such case that an Agreement shall govern TNB’s Wayleave into any private land, then the parties are exempt from redundantly Page 17 of 29 complying with the procedures under section 53 of the same 1949 Act. [33] In both respective cases of obtainment of Wayleave (either via Wayleave Procedure or Wayleave Agreement), the burden lies on TNB to prove that either all the requisites and procedures of the Wayleave Procedure had been complied with (or for TNB to prove the existence of the supposed Wayleave Agreement entered into). It is certainly not incumbent upon TNB to prove both at the same time. a. For t of Wayleave to be obtained via the Wayleave Procedures under section 53 of the Electricity Act 1949 (now Section 11 of the Electricity Supply Act), the failure to serve the Statutory Notice to the landowner (or service of Statutory Notice to an unrelated third party) shall render the purported Wayleave and entry by TNB to be unlawful (see: Syarikat Pengangkutan Kesejahteraan Sdn Bhd & Anor v Tenaga Nasional Berhad; Ng Ah Boon (Third Party) [2010] 1 CLJ 625); b. For obtainment of Wayleave via an alleged Wayleave Agreement under section 56 of the Electricity Act 1949 (now Section 15 of the Electricity Supply Act 1990), the failure to substantiate or prove the existence of the alleged Wayleave Agreement shall also render the purported Wayleave and entry by TNB to be unlawful (see: TENAGA NASIONAL BHD v DOLOMITE INDUSTRIAL PARK SDN BHD [2000] 2 MLJ 133). Page 18 of 29 [34] We are aware that there was a prior Court of Appeal decision in TENAGA NASIONAL BHD v DOLOMITE INDUSTRIAL PARK SDN BHD [2000] 2 MLJ 133 that had expressed (although with due respect, per incuriam) that a Wayleave Agreement under section 56 (Section 15 in the new Act) can only be realized after due compliance with the procedures under section 53 (Section 11 of the New Act). However, we must respectfully depart from this position as the literal words within section 56 as a savings or exeptions provision unequivocally and plainly stipulate that: “NOTHING in Section 53 or Section 55 shall (a) AFFECT the right of the Board or a licensee to enter into an agreement, commonly known as a wayleave agreement, with the owner or occupier of any land for the purpose of carrying a supply line across the land;…” (emphasis added.) [35] Considering the plain and literal stipulation above, it is clear that the entire pre-requisites and procedures under section 53 should not override a Wayleave that was obtained via a Wayleave Agreement entered into under section 56 of the 1949 Act. [36] Nor did the Court of Appeal in Dolomite expand or justify its brief finding per incuriam: “All that we need to say on these provisions is as follows. Before the appellant can take advantage of s 56 of the Electricity Act 1949, it must satisfy s 53 of the said Act, in particular the procedure prescribed by sub-ss (2),

and (4). Unfortunately, the appellant was unable to Page 19 of 29 produce the document prescribed by s 53 of the said Act.”(emphasis added.) [37] Nevertheless, save and except for this singular finding per incuriam (which we respectfully depart from) the Court of Appeal still astutely concluded that a Wayleave via a pleaded Wayleave Agreement cannot legally stand if TNB fails to substantiate or prove the existence of the alleged Wayleave Agreement: “Under these circumstances, we are entirely satisfied that there was no wayleave agreement as pleaded by the appellant. The learned judge was accordingly right in holding against the appellant upon this issue.” (emphasis added,) [38] The above considered, the Appellant’s argument that a Wayleave was governed ‘only’ by section 56 of the Electricity Act 1949 is in our view, misplaced. The remedy provided under the two provisions was one and the same Wayleave. The only difference being the manner, method, and procedure for obtaining the Wayleave by the Respondent . If the Respondent pleads that it had opted for the Wayleave Procedure, then the Respondent bears the burden to prove due compliance with the procedures. On the other hand if the Respondent pleads that they had entered into a Wayleave Agreement, then the Respondent bears the burden to prove the existence of the alleged Wayleave Agreement. Page 20 of 29 [39] Since the Respondent here pleaded that it had obtained a Wayleave via the Wayleave Procedures, then they need only to prove that they had duly complied with all the requisites and procedures under section 53 of the Electricity Act 1949. Hence, based on this premises, we will now examine the the Respondent’s defence. [40] One of the Appellant’s primary argument was that the Respondent had failed to adduce the actual Statutory Form, and proof of service of the Statutory Form on the previous owners. On the contrary, the Respondent sought to prove due compliance of the requirement to serve the Statutory Notice to the registered proprietors at that time via its reliance on the State Authority’s service of the Statutory Notice and inquiry into the Wayleave Procedure. So the question arises on whether or not the reliance upon (and involvement of) the State Authority in the service of the Statutory Notice and the inquiry was appropriate under the provision. [41] The question above can be answered via a plain reading and appreciation of subsections (2) and (4) of section 53 of the Electricity Supply Act 1949. Under subsection (2) it is a statutory requirement that the State Authority be involved in the Wayleave Procedure as it was incumbent upon TNB to first apply for and obtain the State Authority’s permission. Upon the State Authority’s permission, it was the State Authority that “will enquire into any objections that have been made”. Under subsection (4), the affected landowners can lodge an objection against the Wayleave by lodging an objection to the Collector of Land Revenue (who in turn shall “give notice of the objection to the State Authority”…). Page 21 of 29 [42] Considering the fact that the State Authority was indeed actively involved in the statutory enquiry under the Wayleave Procedure (and the fact that the State Authority would have the necessary information and record of the Landowners’ addresses and particulars) it was abundantly proper and reasonable for TNB to cooperate with the State Authority to optimize the procedure and maximise the probability to ensure that the Statutory Notice be duly served on all of the affected Landowners. [43] For completeness, there was neither negative stipulation nor restriction under the 1949 Act that would restrict TNB from cooperating with and relying on the State Authority (Land Office) to serve the Statutory Notices to the Landowners. [44] Thus, since the State Authority itself via its Letters dated 4.1.1979 and 21.1.1979 had clearly confirmed that the Statutory Notices had been duly served to all of the affected Landowners (inclusive of the previous Landowners of the subject Land), it is reasonable to conclude that the Respondent had successfully and sufficiently proven that the Statutory Notice had been duly served to the previous owners of the Subject Land. Thus, we are in agreement with the Learned Judge who correctly found that the procedures undertaken by TNB with the cooperation and involvement of the State Authority were sufficiently proper and were in full compliance of section 53 of the Electricity Act 1949 at the time (see also Mahani bt Desa dan lain-lain lwn Tenaga Nasional Bhd [2021] MLJU 1833): [18] Menerusi surat tersebut, pihak LLN telah memaklumkan kepada Pemungut Hasil Tanah Jajahan Pasir Mas berkaitan satu Page 22 of 29 set plan yang menunjukkan talian aliran eletrik yang berkaitan serta hasrat LLN untuk memasuki tanah-tanah persendirian yang terkesan. Ia dilaksanakan berdasarkan kepada seksyen 53 Ordinan Letrik 1949 (nama perundangan ketika itu sebelum ditukar nama kepada Akta Letrik 1949). Ia bagi tujuan pembinaan menara-menara dan merentang di atasnya talian elektrik. LLN turut mengemukakan senarai yang mengandungi butiran lot-lot tanah yang terlibat beserta satu salinan notis yang dialamatkan kepada para pemilik. [19] Mahkamah mendapati bahawa LLN pada ketika itu, telah melampirkan 940 notis kemasukan di bawah seksyen 53 Akta 116 ke atas pemilik-pemilik tanah berkenaan bagi mendapatkan hak izin lalu. Notis tersebut adalah untuk disampaikan oleh Pejabat Tanah Jajahan Pasir Mas kepada setiap pemilik. Di dalam surat tersebut tidak menyenaraikan nama-nama pemilik namun di dalam notis dinyatakan “sapertimana disenarai yang dikembarkan bersama-sama ini”. Senarai yang dikembarkan adalah satu plan yang menunjukkan kawasan jajaran laluan Talian Penghantaran Elektrik 33kV yang turut meliputi tanah tersebut. [20] Plaintif menghujahkan bahawa tiada dokumen yang dapat membuktikan notis tersebut telah diserahkan kepada pemilik tanah tersebut ketika itu dan Plaintif sendiri hanya membuat pernyataan tanpa keterangan secara lansung memandangkan pemilik tanah tersebut telahpun meninggal dunia. Mahkamah berpandangan bahawa setakat keterangan yang ada, tidak memungkinkan mahkamah ini untuk merumuskan secara tuntas bahawa Defendan tidak memenuhi keperluan di Page 23 of 29 bawah seksyen 53 Akta 116 untuk mengemukakan notis kemasukan kepada pemilik tanah tersebut ketika itu. [21] Selain itu Mahkamah turut mendapati bahawa di dalam kes ini, LLN melalui surat bertarikh 12/1/1974 telah membuat pembayaran tuntutan penghantaran notis-notis kemasukan kepada Pemungut Hasil Tanah Jajahan Pasir Mas. Ia dibuktikan melalui ekshibit “TNB- 3” di kandungan 10. Mahkamah berpandangan Pemungut Hasil Tanah Jajahan Pasir Mas adalah merupakan entiti kerajaan yang rasmi dan oleh itu tindakan untuk menyampaikan notis tersebut adalah merupakan tindakan rasmi. Sejajar dengan itu mahkamah boleh menganggap tindakan rasmi tersebut telah dilaksanakan mengikut aturan. Ia bersandarkan kepada seksyen 114 Akta Keterangan 1950 di misalan (e)…” (emphasis added.) [45] The other complaint raised by the Appellant was that the Wayleave was invalid as it was never endorsed or registered onto the instrument document title of the subject land. Suffice that we reiterate our initial finding above that the subject Wayleave in this case was obtained in 1979 prior to the enforcement of section 53(9A) which was added later via the Electricity (Amendment) Act 1984). Thus, at the material time, the law did not statutorily require for Wayleaves to be endorsed upon the instrument document title. Thus, the Respondent cannot be faulted for the non-registration or non-endorsement of the Wayleave as the law did not require the Respondent to do so at that time. Thus, the Appellant’s contention here also does not at all impugn the validity of the Respondent’s Wayleave. The learned counsel for the Respondent had aptly Page 24 of 29 referred to the case of OAKFIELD ENTERPRISES SDN BHD v TENAGA NASIONAL BHD [1998] MLJU 70 which had dealt with this exact issue: “ With respect, I cannot see how the LLN can be faulted for omitting to submit those documents under the circumstances discussed earlier. When the Collector gave the authority to the LLN to enter the said land to carry out the said project on 9 November 1974, there was no such provision. With the introduction of the said section 53(9A), the Registrar is only obliged to make such a note on the register document of titleafter the coming into force of the said subsection if the LLN forwards such a document to him. From my reading, the said subsection is not a mandatory provision and as such I cannot see how non-compliance of that subsection can be said to be fatal.”(emphasis added.) [46] The Appellant also contended that the absence of any compensation paid was also indicative of an improperly obtained Wayleave. On the contrary, the non-payment of compensation was aptly explained by the Respondent and was appropriately appreciated by the Learned Judge. There were 3 reasons why no compensation was paid under the Wayleave procedure specifically in this case: a. Firstly, the initial subject land at that time (prior to subdivision) was categorised as an agricultural land and was in fact a rice plantation at the time. The subject land was subject to an express condition that the land must be solely used for rice cultivation. Thus, since the subject land was only intended Page 25 of 29 to be a rice plantation, then the TNB structures would not affect the use and utility of the subject land as a rice plantation. Considering this fact, the State Authority did not offer any compensation to the Landowners when the Wayleave Procedure was underway; b. Secondly, despite the State Authority’s service of the Statutory Notice to the Landowners and the State Authority’s call to enquire into Landowners’ objections (if any), there were no objections mounted by any of the Landowners as against the Wayleave and even as against the non-offer of compensation; and c. The fact that 38 years had passed since the initial entry by TNB without any objections or appeal for compensation whatsoever by the previous Landowners (despite the clear erection of the electrical tower and power lines) resoundingly proved that it was more probable than not that the previous owners had full knowledge and notice of the Wayleave and still had no objections against the non-offer of compensation by the Respondent. We refer to the case of Fairise Odyssey Sdn Bhd v Tenaga Nasional Bhd [2015] 8 MLJ 625 which had held the following: “43. On the evidence, it is clear that since 1992, the transmission line has been on the subject land. There is no evidence that any of the original owners had ever objected to the presence of the transmission line. Where there is a lengthy period during which materials remain on the land without objection or without a request for those materials Page 26 of 29 to be removed, the law does not permit a landowner to assert a claim in trespass.”(emphasis added.) (The Court of Appeal and Federal Court later affirmed the decision in Fairise Odyssey (supra) at Appeal. See FAIRISE ODYSSEY (M) SDN BHD v TENAGA NASIONAL BHD [2019] 2 MLJ 84 ; Fairise Odyssey (M) Sdn Bhd v Tenaga Nasional Bhd [2019] 6 MLJ 281) [47] Considering the justification above, we agree with the Learned Judge that there was nothing inherently improper or malicious from the non-payment of compensation by the Respondent to impugn the validity of the Wayleave. [48] Furthermore, we are in full agreement with the Learned Judge’s finding that the Wayleave shall necessary survive and persist despite the subsequent subdivision and change of ownership of the subdivided lot to the Appellant. The Learned Judge astutely referred to the decision in Mahkamah Tinggi Muar Guaman Sivil No JB22NCVC-9-02/2019 Md Hassan Bin Ibrahim v Tenaga Nasional: “[17] Mahkamah ini telah menolak hujahan Plaintif tersebut dan bersetuju dengan hujahan Defendan bahawa rizab izinlalu rentis dua rantai telah diperolehi sebelum tanah dimiliki oleh Saemah binti Hassan dan kemasukan tersebut adalah ke tanah milik Kerajaan Johor sebelum tanah diracik-racik dan diserahmilik kepada Saemah. Pertukaran hakmilik telah tidak menjadikan hak izinlalu Defendan menjadi tidak sah, dan Mahkamah menggunapakai keputusan Mahkamah Rayuan di Page 27 of 29 dalam kes Oakfield Enterprise Sdn Bhd v. Tenaga Nasional Berhad [2010] 8 CLJ 42 yang memutuskan:- “… that the fact that the appellant became the new registered owner of the said Land with the issuance of new separate titles on 5 October 1988 to replace the original title does not change the fact that the respondent had been authorised by the Land Office of 9 November 1974 to enter the said Land to carry out the installation of high tension cables”. (emphasis added.) [49] Since the Respondent’s entry into the subject land (and later subdivided lot) was statutorily justified under the prevailing Electricity Act 1949 at the time, it follows that the Respondent had not and could not have trespassed or continuously trespassed upon the Appellant’s subdivided lot. We need only refer to Oakfield Enterprises (supra): “I have earlier found that the LLN have entered the said land in 1974 by authority of the law. Justification of its entry was afforded by operation of law and hence its entry upon the said land is not trespass if it be justifiable. It is trespass to place anything on or in land in the possession of another but in the instant case, since the erection of the pylons on the saidland was by authority of the law, there cannot be trespass. The LLN have entered upon the said land under an authority given by law and there is nothing to show that the LLN or TNB subsequently abused that authority.”(emphasis added.) (see also Syarikat Air Negeri Sembilan Sdn Bhd lwn One Visa Sdn Bhd [2017] 1 MLJ 711) Page 28 of 29 [50] Upon our deliberations and findings under this heading, we accordingly answer the singular issue under this heading (D) in the POSITIVE. The High Court was indeed correct in finding that the Respondent had duly complied with all of the requisites and statutory procedures under section 53 of the Electricity Act 1949 to obtain and maintain its wayleave over of the Appellant’s subdivided lot. [51] As an aside, we opine that instead of impugning the validity of the wayleave (and alleging TNB of improperly obtaining a Wayleave under the 1949 Act), the Appellant should have instead opted and applied for the remedy of requisition for removal or alteration of supply lines under section 14 of the Electricity Supply Act 1990. However, there is no guarantee that under this provision the Respondent’s structures will eventually be removed or altered. But the provision does provides the appropriate rules and specific procedures (under subsections (2) to (4) of section 14 of the Electricity Supply Act 1990) so as to determine either the propriety of a landowner’s Application for requisition (for removal or alteration) or the propriety of TNB’s insistence to maintain or preserve the original state of the TNB structures (see Section 14 (1) of the Electricity Supply Act 1990): “14. (1) Where a supply line has been laid, or posts or equipment erected, on any land under section 11, and if any of the persons mentioned in subsection 11(3) desires to use the land in such a manner as to render it necessary or convenient that the line, posts or equipment should be removed to another part of the land, or to land at a higher or lower level, or be altered in form, he Page 29 of 29 may require the licensee, to remove or alter the line, posts or equipment accordingly.” E. OUR DECISION [52] All of the above deliberations considered, we find that there are no appealable errors in the decision of the Learned Judge that merited our intervention. The Appellant’s Appeal here is devoid of merit and we hereby dismiss this Appeal with costs. Accordingly, the High Court’s decision is affirmed. [53] Finally, we order costs of RM 15,000.00 to be paid by the Appellant to the Respondent (subject to allocator). Dated 5th February 2025 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL For the Appellants - Messrs. Wan Jawahir & Takiyuddin