A three-member Federal Court bench said the appeals court correctly applied a 2015 apex court ruling to the present case.
Justice Zabariah Yusof, who chaired the panel, said MBPJ’s refusal to allow the residents’ association to require non-paying residents to operate the boom gates at the premises in Sunway Damansara, Petaling Jaya, was unlawful.
In proceedings conducted online, the apex court also ordered MBPJ to pay RM100,000 in costs to the association and its current president, Lim Keng Jit.
Also on the bench hearing the appeal were Justices Hasnah Hashim and Vazeer Alam Mydin Meera.
Lawyers Malik Imtiaz Sarwar and A Surendra Ananth represented the association, while counsel Gurdial Singh Nijar and Yatiswara Ramachandran appeared for MBPJ.
In April last year, a three-member Court of Appeal bench said there was a need to balance the interests of the community as a whole and those of non-paying residents.
Justice Has Zanah Mehat, who has since retired, said the appeals court’s ruling was aligned with an earlier Federal Court’s decision in the case of Au Kean Hoe v Persatuan Penduduk D’Villa Equestrian.
In that case, the apex court ruled that the construction of a guardhouse and boom gates did not amount to an “obstruction” under Section 46(1)(a) of the Street, Drainage and Building Act 1974.
Section 46(1)(a) makes it an offence for any person to erect an obstruction in any public place.
Has Zanah, who sat with Justices Che Ruzima Ghazali and See Mee Chun, said it would be unreasonable for non-paying residents to enjoy the benefits of a security system without having to contribute towards it.
That ruling overturned a High Court decision handed down in 2022, which held that the residents’ association could not impose such conditions on those who refuse to pay the monthly service fees levied.
The proceedings began in 2021, with the association’s then president Chow Hau Min filing for judicial review after MBPJ refused to allow the association to make non-paying residents and non-members operate the boom gates themselves.