Is TNB obligated to supply electricity to everyone? Can they do so without observing the law? This issue was recently mooted and dealt with by the Federal Court in Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2019] 1 CLJ 42.

Brief facts of the case

Bukit Lenang purchased a piece of land from the Johor government in 1996. They intended to develop the land. However, they could not proceed with their plan as there were squatters on the land. A chain of events transpired from this point onward:

1. Bukit Lenang brought a legal action against the squatters in 2000. They demanded (in the suit) the squatters to vacate the land. The High Court and Court of Appeal sided with Bukit Lenang on this issue.
2. As the squatters were supplied with electricity by Tenaga Nasional Bhd (‘TNB’), Bukit Lenang had on two occasions (once during the trial against the squatters in 2002 and once after obtaining a judgement against the squatters in the High Court in 2004) demanded TNB to cease supplying electricity to the squatters.
3. TNB ignored Bukit Lenang’s demand, stating that it is within their rights to do so and they were merely doing what they are suppose to do i.e. supplying electricity to individuals/ household occupying a land as prescribed under the Electricity Supply Act (‘the Act’) [Specifically, section 24(1) and 24(5) of the Electricity Supply Act 1990].
4. More legal actions ensued. This time, Bukit Lenang sued TNB for trespassing onto their land to supply electricity to the squatters.

The court’s stance

The High Court, Court of Appeal and Federal Court sided with Bukit Lenang, stating that TNB had no obligation to supply the squatters with electricity considering that they had clearly trespassed onto the Bukit Lenang’s land (by virtue of them supplying the squatters with electricity).

What does the court say?

While the Act was created to ensure that everyone is able to enjoy electricity within their respective households, this does not mean that TNB should just supply it to anyone and everyone. In this regard:-

1. If that is the correct interpretation of the Act, it would effectively encourage any Tom, Dick and Harry to trespass into another’s land and illegally set up an abode there. TNB then would have no choice but to provide electricity to them. And by the same breath, TNB would have to trespass onto the owner’s land without their consent to supply electricity to a wrong doer;
2. It 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 eroded by the Act itself. Until and unless a legislation makes it very clear that the fundamental rights of an individual are being taken away by a specific legislation, such an idea cannot stand and any such interpretation must be interpreted in tandem with the individual rights guaranteed under the Article 13 Federal Constitution; and
3. TNB is bound by the law- Albeit merely carrying out their duties as a utilities provider, they nevertheless are still subject to any existing laws in performance thereof.

As the Court puts it:

While it might sound honourable (and to ensure that individual rights are protected and that no one exploits the law for their own gain to the detriment of others), TNB cannot do so (i.e. supplying electricity to everyone) without observing the rights of the individual to the land/ without due regards to the law.