Is TNB Obligated To Supply Electricity To Everyone?
Is TNB obligated to supply electricity to everyone? While the legislation that empowers them seems to suggest that it is the case, a recent Federal Court decision seems to point in the opposite direction. Today, let us briefly explore the case of Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd and determine once and for all if TNB is obligated to do so.
Brief facts of the case
Bukit Lenang Development (‘the Developer’) purchased a piece of land for development purposes in Johor from the Johor government in 1996. However, the land could not be developed as there were squatters squatting on the land that was bought by the developer. In 2000, the developer brought a legal action against the squatters to demand the squatters to vacate the land. The courts (both the High Court and subsequently the Court of Appeal), found in favour of the developer’s claim.
While the squatters were living on the land, they were also supplied with electricity by Tenaga Nasional Bhd (‘TNB’). To evict the squatters within their means, the developer had on two occasions (once during the trial against the squatters in 2002 and once after obtaining a judgment against the squatters in the High Court in 2004) demanded TNB to cease supplying electricity to the squatters. This was ignored by TNB. They contended that they were merely doing their job i.e. to supply electricity to people occupying land as prescribed under the Electricity Supply Act (‘the Act’). The developers were left with no options but to bring legal action against TNB for trespassing onto their land to supply electricity to the squatters.
The High Court found in favour of the developer, stating that TNB had no obligation to supply the squatters with electricity and in doing so has trespassed onto the developer’s land from the date when the developer informed TNB that they have obtained judgment against the squatters until the date the judgment was executed, during which TNB finally decided to remove all their infrastructures that were on the developer’s land. The High Court’s decision remained the same even when TNB appealed the decision to the Court of Appeal and the Federal Court.
The findings of the court
The court acknowledges that the Act was created to ensure anyone who occupies a property regardless of whether they are the owners or occupiers of the property is able to enjoy the use of electricity. However:
- The court noted that the intention of the Act is to ensure that only people who are legally occupying a property can be supplied with electricity, as allowing just anyone to have access to electricity would open the floodgates where anyone can occupy another person’s land without their consent and then subsequently ask for electricity supply from TNB. This effectively encourages anyone to trespass and also allows TNB to trespass onto another person’s land without their consent to supply electricity to a wrongdoer.
- The interpretation above (i.e. allowing just anyone to obtain electricity supply) would also mean that the fundamental rights of the owner to enjoy the use of his property without interference, as guaranteed under the Federal Constitution, would have been corroded by the Act itself. The court held that unless a legislation makes it very clear that the fundamental rights of an individual of being taken away, the above interpretation cannot stand and any interpretation that might encroach upon the rights of an individual (in this case, the owner of a land) guaranteed under the Federal Constitution must be interpreted strictly to ensure that the individual rights guaranteed under the Federal Constitution is protected by such an interpretation.
- Such an interpretation must also ensure that any duties or obligations that are carried out by TNB is carried out in a lawful manner. Otherwise, TNB can carry out their duties free from legal restraint and consequences, which in return could affect the interest of the owner of the land.
As the court puts it: “It is no defense to a claim in tort to say that the act was carried out in the public interest”. While it seems honorable to carry out public functions in a way that could benefit the public interest at large, TNB must carry out those acts in a lawful manner to ensure that individual rights are protected and that no one exploits the law for their own gain to the detriment of others.
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