MBPJ gets leave to appeal against decision for RA to impose condition on non-paying members to operate boom gate themselves

PUTRAJAYA - The Petaling Jaya City Council (MBPJ) has obtained leave from the Federal Court to appeal against a Court of Appeal’s decision that a residents' association (RA) in the city council area to impose a condition for non-paying members to operate the boom gates themselves without the assistance of security guards.

A three-member bench comprising Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah and Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Abdul Karim Abdul Jalil granted the leave to MBPJ yesterday.

Justice Mohamad Zabidin, who chaired the bench, when reading out the decision, said MBPJ fulfilled the threshold requirements under Section 96 of the Courts of Judicature Act 1964 and that the matter required further argument on three legal questions.

Counsel Abraham Au, one of the lawyers representing MBPJ, confirmed this when contacted by Bernama.

On the three legal questions, he said, the first was whether local authorities can enact guidelines, regulations and /or impose conditions when regulating guarded community schemes in residential areas to ensure no impediments to the rights of residents.

Another question is whether it is permissible for residents’ associations to restrict the rights of non-paying and non-members of the residents association to use public roads in its residential area by requiring these persons to operate the boom gates leading into their residential areas on their own.

The third question is whether a local authority like MBPJ can balance the rights of residents who live within a residential area and who want a guarded community scheme and those who do not want such a scheme by prohibiting those in favour of the scheme from restricting the rights of those not in favour of the scheme to use public roads leading to the scheme?

The previous chairman of Parkville RA, Chow Hau Mun, who had been replaced by Lim Keng Jit, had filed for a judicial review on behalf of Parkville Residents' Association seeking, among others, a declaration that the residents' association is entitled to impose a rule that non-paying owners and residents or non-members of the association in the residential area have to operate the boom gates by themselves without the assistance of security guards.

This was after MBPJ, on March 30, 2021, rejected the association's application for permission to impose the condition.

In July last year, the Shah Alam High Court dismissed the judicial review by MBPJ and ruled that the city council’s decision not to allow the association to impose the condition was not illegal, irrational or unreasonable.

On April 17, this year, the RA succeeded in its appeal to the Court of Appeal to overturn the High Court decision.

The Court of Appeal had allowed the RA’s judicial review to quash MBPJ’s decision that had rejected the association’s application to impose the condition that non-paying owners and residents or non-members of the association operate the boom gates by themselves.

In yesterday’s court proceedings, a team of lawyers comprising Datuk Dr Gurdial Singh Nijar, Au, Yatiswara Ramachandran and Kenny Ng acted for MBPJ while the Parkville RA was represented by lawyer Datuk Malik Imtiaz Sarwar.- BERNAMA