PUTRAJAYA (May 28): The Court of Appeal (COA) has denied an application by 131 Musang King durian planters around Raub, Pahang, to allow them to enter the cordoned-off durian orchards in the area to cultivate and maintain the durian trees, pending the disposal of an appeal against the Pahang government's decision to issue eviction notices against them.

Court of Appeal judge Datuk Lee Swee Seng denied the application by the farmers after hearing arguments from legal representatives of all parties involved.

Lee was the only judge hearing this matter, as Section 44 (1) of the Courts of Judicature Act states that “any interim order to prevent prejudice to the claims of parties, pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered, may at any time be made by a Judge of the Court of Appeal”.

Because of the “a Judge of the Court of Appeal” in Section 44, a previous three-judge bench of the COA ruled last week that only one judge must hear this application.

Lee also ruled that there would be no destruction of structures on the land without leave of the court and until the appeal proper is dealt with.

Previously, the lawyer representing the farmers, Brendan Navin Siva, told the COA that his application was an interim preservation relief until the appeal is disposed of. He said his application was to seek the court's permission to allow the planters to go into the land (which has now been sealed off) to maintain the durian trees.

“We want to enter merely to cultivate, trim, fertilise and water the durian trees. Durian trees are very sensitive,” he said.

However, in Tuesday’s decision, Lee did not allow this and ordered the co-respondent in the farmers’ appeal, the Pahang State Agricultural Development Corporation (PKPP), to maintain the trees.

PKPP was represented by Pahang State Legal Adviser Datuk Saiful Edris Zainuddin, while the other respondent in the case, Royal Pahang Durian Resources PKPP Sdn Bhd, was represented by Tan Sri Cecil Abraham.

Lee also ordered PKPP to file an affidavit every month to account for the durians, grades and selling prices.

The land in question encompasses land around Sungai Ruan, Sungai Chalit, Sungai Klau and Tranum, Gali, Sang Lee, Kampung Sungai Chetang, Tras and Mukim Tras — all within the Raub district — and the Gunung Benom forest reserve, where the durian trees are planted.

In August 2020, the Musang King durian farmers filed the application to obtain permission for a judicial review against a state government order for them to vacate their farms in various areas in Raub, including in Sungai Ruan, Sungai Chalit, and Sungai Klau, measuring about 2,167ha.

They named the Raub district land administrator, Pahang forestry director, state authorities, the Pahang state government, the Pahang State Agricultural Development Corporation (PKPP), and the Royal Pahang Durian Resources PKPP Sdn Bhd as respondents.

The application was dismissed by the Kuantan High Court in December 2020, which prompted the farmers to appeal to the COA.

In 2021, the COA allowed their application to stay the land eviction notice issued to them to vacate the plantations, pending the hearing of the judicial review leave application.

In April this year, the Kuantan High Court dismissed the judicial review application by the planters to challenge the Pahang government's decision to issue eviction notices against them.

Judge Datuk Mohd Radzi Harun ruled that the 186 planters involved had no legal right to be on the land in question. The court also confirmed their status as squatters and that the state government's action to evict them was not malicious.

The application at the COA is an appeal against this decision.