Interpretation
In this Part, unless the context otherwise requires— “licensee” includes— (a) a person who holds an individual licence or authorization granted under Chapter 2 of Part XIII; (b) a person who is exempted from holding an individual licence granted under this Act; and (c) a person who holds, controls or operates assets which form part of a public water supply system or public sewerage system.
Licensee to inform Commission
Any licensee which considers that— (a) it is insolvent; or (b) it has suspended payment to any extent that prejudices its operations, shall immediately inform the Commission of the fact.
Action of Commission in respect of licensee in certain circumstances
(1) Where the Commission— (a) has been informed by a licensee of any circumstances referred to in section 112; or (b) is satisfied— (i) that the licence or authorization of a licensee has been revoked and the licensee continues to provide water supply services or sewerage services in contravention of this Act and its subsidiary legislation; (ii) that there has been or is a contravention by the licensee of any direction by the Commission as is serious enough to make it inappropriate for the licensee to continue to hold its licence; (iii) that the licensee is insolvent or has suspended payment to any extent that prejudices its operations or that there are facts or circumstances which is likely to lead to the licensee becoming insolvent or to the licensee suspending payment to any extent that prejudices its operations; or (iv) that the licensee has contravened any provision of this Act or its subsidiary legislation or has contravened any condition of its licence as is serious enough to make it inappropriate for the licensee to continue to hold its licence, the Commission may, by order published in the Gazette, exercise any one or more of the following powers, as it deems necessary: (A) require the licensee to take any step, action or to do or not to do any act or thing in relation to the licensee or its business, directors or officers as may be specified, and within the period set out, by the Commission in the order; (B) notwithstanding anything in any written law or any limitations contained in the constituent documents of the licensee, remove an officer of the licensee from his office with effect from a date as may be set out in the order; (C) notwithstanding anything in any written law or any limitations contained in the constituent documents of the licensee, in particular, a limitation as to the minimum or maximum number of directors— (i) remove any director of the licensee from his office with effect from a date as may be set out in the order; or (ii) appoint one or more persons as a director or directors of the licensee and provide for any of the persons so appointed to be paid by the licensee such remuneration as may be set out in the order; or (D) appoint a person to advise the licensee in relation to the proper conduct of its business and provide for the person so appointed to be paid by the licensee such remuneration as may be set out in the order. (2) The powers of the Commission under paragraphs (1)(B), (C) and (D) shall be exercised only with the prior concurrence of the Minister. (3) If any of the circumstances as set out in paragraphs (1)(a) and (b) exist in respect of a licensee and the Commission is of the opinion that it is necessary in the public interest, the Commission may, whether or not it has exercised any of its powers under paragraph (1)(A), (B), (C) or (D), make a recommendation to the Minister— (a) for the Commission to assume control of the whole of the property, business and affairs of the licensee and carry on the whole of its business and affairs; (b) for the Commission to assume control of such part of the property, business and affairs of the licensee as may be specified by the Commission and carry on such part of the business and affairs; or (c) for the Commission to appoint any person to exercise any of the powers of the Commission under paragraph (a) or (b) on behalf of the Commission; and (d) for the expenses of the Commission, or the remuneration of the person so appointed under paragraph (c), as the case may be, to be payable out of the assets of the licensee in priority to all other claims whether secured or unsecured. (4) If the Minister agrees with the recommendation of the Commission under subsection (3), he shall make an order to be published in the Gazette specifying his decision and the action to be taken by the Commission accordingly. (5) An order of the Commission under subsection (1), or an order of the Minister under subsection (4), may from time to time be amended or replaced by a further order under subsection (1) or (4), as the case may be. (6) No order under subsection (1), (4) or (5) shall be made unless— (a) the licensee in respect of which the order is to be made; and (b) in the case of an order under paragraph (1)(B) or subparagraph (C)(i), the officer or director who is to be removed from office, has been given a reasonable opportunity of making representations against, or otherwise in respect of, the proposed order. (7) Notwithstanding subsection (6), if in the opinion of the Commission— (a) in the case of an order to be made by the Commission under subsection (1) or (5); or (b) in the case of an order to be made by the Minister under subsection (4) or (5), any delay would be detrimental to the interests of the consumers or to the public or to any section of the public, the order may be made first and the opportunity to make representations against or otherwise in relation to the order shall, in such case, be given immediately after the order has been made, and the order may, in consequence of such representations either be confirmed or be amended or replaced under subsection (5), or be revoked under subsection (8). (8) The Commission or the Minister may at any time revoke an order in the same manner as the order was made under subsection (1), (4) or (5), as the case may be. (9) A person who contravenes an order of the Commission under paragraph 113(1)(A), (B), (C) or (D) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.
Action of Minister in respect of licensee in national interest
(1) Notwithstanding any other provisions of this Act or any other written law, the Minister may, if he thinks it necessary for national interest, by order published in the Gazette, direct— (a) the Commission to assume control of the whole of the property, business and affairs of a licensee and to carry on the whole of the licensee’s business and affairs; (b) the Commission to assume control of such part of the property, business and affairs of a licensee as may be specified by the Minister and to carry on such part of the licensee’s business and affairs; or (c) the Commission to appoint any person to exercise any of actions directed in paragraph (a) or (b) on behalf of the Commission; and (d) for the expenses of the Commission, or the remuneration of the person so appointed under paragraph (c), as the case may be, to be payable out of the assets of the licensee in priority to all other claims whether secured or unsecured. (2) The determination of what amounts to national interest shall be made by the Minister and such determination shall be final and binding upon all persons and shall not be challenged, appealed against, reviewed, quashed or questioned in any court. (3) The power of the Minister under this section shall only be exercised with the prior approval of the Federal Government.
Provisions in relation to appointment under section 113
(1) A person appointed by the Commission under subparagraph 113(1)(C)(ii), paragraph 113(1)(D) or subsection 113(4) shall be appointed for such period as may be determined by the Commission not exceeding, in any case, two years, but may be reappointed for three further consecutive periods not exceeding one year each. (2) The terms and conditions of an appointment referred to in subsection (1) shall, subject to the order under which the appointment is made, be determined by the Commission and shall be binding on the licensee. (3) The appointment of a director or directors under subparagraph 113(1)(C)(ii) shall not affect any provision of the constituent documents enabling the licensee to have additional directors where the maximum number of directors allowed under the constituent documents has not already been reached or exceeded by the appointment or appointments under subparagraph 113(1)(C)(ii). (4) A person holding any appointment as is referred to in subsection (1) shall not incur any obligation or liability solely by reason of his holding such appointment.
Provisions in relation to removal from office under section 113
(1) Any officer or director of a licensee who has been removed from his office under paragraph 113(1)(B) or subparagraph 113(1)(C)(i), as the case may be, shall cease to hold the office with effect from the date set out in the order, and shall not after that date hold any other office in the licensee or, in any manner, whether directly or indirectly, be concerned with, take part or engage in, any activity, affairs or business of or in relation to that licensee. (2) The removal of an officer or director under paragraph 113(1)(B) or subparagraph 113(1)(C)(i) shall be lawful notwithstanding anything contained in any contract of service or other contract or agreement, whether express or implied, whether individual or collective, and whether or not made or provided for under any written law, and a person so removed from office shall not be entitled to claim any compensation for the loss or termination of office.
Provisions in relation to assumption of control under section 113 or 114
(1) If the control of a licensee has been assumed under an order made under subsection 113(4) or section 114, the licensee and its directors and officers shall— (a) submit its property, business and affairs to such control to the Commission or the appointed person, as the case may be; and (b) provide to the Commission or the appointed person, as the case may be, all such facilities as may be required to carry on the business and affairs of the licensee. (2) If the control of a licensee has been assumed in pursuance of an order made under subsection 113(4) or section 114, the Commission, or the appointed person, as the case may be, shall remain in control of the property, business and affairs of the licensee concerned, and carry on the business and affairs of that licensee in the name and on behalf of that licensee, as provided in the order, until such time when the order is revoked. (3) During the period that an order made under subsection 113(4) or section 114 is in force— (a) all the powers of the licensee and of its directors under the licensee’s constituent documents, or exercisable by the licensee or its directors under any written law, shall be vested in the Commission or in the appointed person, as the case may be, regardless whether such powers are exercisable by resolution, special resolution or in any other manner and any difficulty arising from the vesting may be resolved by the Minister by a direction in writing; (b) no director of the licensee to which the order relates shall, either directly or indirectly, engage in any activity in relation to the licensee, except as may be required or authorized by the Commission or the appointed person, as the case may be, and no remuneration or any payment shall accrue or be payable to any director of the licensee, except such as may be approved in writing by the Commission or the appointed person, as the case may be, in relation to any activity required or authorized as aforesaid by the Commission or the appointed person, as the case may be; and (c) the Commission or appointed person, as the case may be, shall manage the assets and affairs of the licensee to continue the supply of water and the provision of sewerage services to the public. (4) An order under subsection 113(4) or section 114 shall not have the effect of conferring on or vesting in the Commission or the appointed person, as the case may be, any title to or any beneficial interest in any property of the licensee to which the order relates. (5) Where the control of a licensee has been assumed in pursuance of an order made under subsection 113(4) or section 114, the Federal Government, Minister, Commission, any member of the Commission, any employee or agent of the Commission and the appointed person shall not be liable to any action or proceedings in a court by any party for any loss or damage caused by any act or matter done or omitted to be done by the Minister, Commission, any member of the Commission, any employee or agent of the Commission and the appointed person in good faith and in the intended exercise of any function or power under this Part. (6) A person who contravenes subsection (1) or paragraph (3)(b) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both. (7) For the purpose of this section, sections 118 and 119, “appointed person” means the person who has been appointed by the Commission to assume control over the whole or part of the property, business and affairs of a licensee on behalf of the Commission under an order made by the Minister under subsection 113(4) or section 114.
Effect of obstructing or hindering Commission or appointed person
(1) If control of a licensee has been assumed by the Commission or the appointed person under an order made under subsection 113(4) or section 114, no person shall obstruct or hinder the exercise of any duty, right or power by the Commission or the appointed person. (2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.
Moratorium
(1) The Minister may, on the recommendation of the Commission, if he considers it to be in the interest of the consumers or to the public or any section of the public, by order published in the Gazette, authorize the Commission or the appointed person to apply to the High Court for an order staying the commencement or continuance of all, or any class, category or description of, actions and proceedings of a civil nature against the licensee. (2) An order under subsection (1) may, from time to time, be amended, replaced or revoked by a further order under subsection (1).
Order to be final
An order of the Minister under this Part shall be final and shall not be challenged, appealed against, reviewed, quashed or questioned in any court.
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Text as at 1 August 2006 (LOM reprint); amendments made after that date may not be incorporated. Read the official text ↗
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).