The 110-year-old Vivekananda Ashrama building and its surrounding land will remain a heritage site.
Its owner failed to get leave to initiate judicial review proceedings to compel the National Heritage Department to reconsider its proposal to gazette only the building as a heritage site.
The owner – the Vivekananda Ashrama Kuala Lumpur – is a company which wants to develop the surrounding land of the building and be allowed to use the property as it deemed fit.
Yesterday, High Court (Appellate and Special Powers) judge Justice Hanipah Farikullah dismissed an application for leave for a judicial review with no order as to costs.
Speaking to reporters yesterday after the decision was made in chambers, the applicant’s lead counsel Datuk David Gurupatham said the court had dismissed their application on a “technicality”.
He said he would seek instructions from his client on whether they wanted to appeal against the court order.
Senior Federal Counsel Mazlifah Ayob said she raised an objection that the application was filed prematurely before the appeal process to the Tourism Minister was exhausted.
“The applicant appealed to the Tourism Minister via a letter dated Oct 7, 2015. But before the minister could decide, this application was filed on Oct 13, 2015.
“Subsequently, the minister had refused their appeal on Oct 29 last year and maintained the land as a heritage site,” she said.
SFC Mazlifah said “the attack should be made on the decision by the Tourism Minister and not against the Commissioner of the National Heritage Department.”
“The court accepted our arguments on this,” she said.
Mazlifah and the intervener’s co-counsel Sudesh Singh confirmed to the press that the court outcome meant that the minister’s decision to designate the ashrama and the surrounding land as a heritage site remained.
In the application, the applicant alternatively sought for RM60mil in damages from the respondents on grounds that it had been denied its fundamental right to use the building for the purposes of development as initially planned.
The company applied for a declaration that the area surrounding the building in Brickfields is not to be defined as a natural heritage or cultural heritage.
In its application for leave, the company named the department, its commissioner Dr Zainah Ibrahim, Tourism and Culture Ministry and its minister as respondents.
Among others, the company had asked for a temporary injunctive order to restrain the respondents from taking any action against it and the building site until final disposal of these proceedings.
Apart from that, the company wanted to claim its monetary compensation on grounds that their right under the Federal Constitution had been infringed.