Gopal Sri Ram JCA:

The Datuk Bandar of Kuala Lumpur has appealed to this Court to reverse an order of certiorari issued by the High Court quashing a building approval given by him. We heard oral argument in the appeal on 26 November 1996 after which we granted Counsel leave to supplement their submissions by putting in a written note. We then reserved judgment. Counsel having filed their written submissions, we are now in a position to pronounce our decision and provide reasons for it.

The matters relevant to the appeal arose in this way.

Jalan U Thant is quite a prestigious part of the city. It is mainly residential. Many foreign missions have their offices in the vicinity. The official residences of several Ambassadors and High Commissioners are also located along Jalan U Thant and the neigbouring road, Jalan Langgak Golf. All this is common knowledge.

The respondent is the registered proprietor of a piece of land along Jalan U Thant. There is a dwelling house on the respondent's land. It is a bungalow.

The respondent and his family reside there.

A company called Tradium Sdn. Bhd. ('Tradium') also owns property in the same area. It is located along Jalan Langgak Golf. But it is adjacent to the respondent's property and shares a common boundary with the respondent's land. For convenience, we will refer to it as 'the subject property.' At some point in time there was also a bungalow on the subject property.

Tradium wanted to develop the subject property by demolishing the bungalow and constructing a three storeyed apartment building. The development involved an increase in the population density ratio. To do all this, Tradium required approval from the appellant. It submitted its plans.

On 4 October 1990, the appellant approved the development proposed by Tradium and issued an order ('the first development order'). In the result, there was an increase in residential density of the locality from 11 persons per acre to 56 persons per acre.

The respondent was not notified of Tradium's proposed development before the first development order was issued. He was given no opportunity to object to it although he had a right to do so. There had been procedural unfairness. This is a concept of wider import than the expression 'natural justice.' It has its roots in the Federal Constitution. It was first introduced into our jurisprudence by the classic judgment of Edgar Joseph Jr. J (as he then was) in Rohana bte Ariffin v. University Sains Malaysia [1989] 1 MLJ 487. That decision has had an extremely beneficial impact upon, and has forever changed, the approach of our Courts to administrative law in this country.

The respondent came to know about the first development order. He applied to have it quashed. He succeeded. The same Judge who heard the present case also heard the earlier application. But he did not remit the matter to the appellant for re-consideration. There has been some argument about it before us on the effect of this omission. We think that it may be conveniently dealt with at this juncture.

Counsel for the respondent informed us that the appellant had made an application to have the matter remitted but that the Judge had refused it. He says that the refusal has serious consequences. The development order was valid for only a year. It lapsed after that. Since the Judge had not remitted the original application back to the appellant for re-consideration, there was nothing for the appellant to re-consider. Tradium had therefore to make a fresh application. It did not. So, there was nothing before the appellant on which he could make a decision.

The respondent took this point in the Court below. But the Judge thought there was nothing in it. He said so in his judgment.

Dato' Zaki Tun Azmi, who also appeared for the appellant in the earlier proceedings told us quite frankly that he has no recollection of having made such an application. He has, however, argued that the Judge was correct in rejecting the r