KULDEEP SINGH A > v.

UNION OF INDIA AND ORS.

SEPTEMBER 14, 2007

[DR. ARIJIT PASAYA T AND 0.1(. JAIN, JJ. J B

Practice and procedure:

Division Bench of High Court comprising of a Judge who had issued c notice in the matter as Single Judge of High Court-:--Plea that Division Bench comprising of that judge ought not have taken up the matter-Held: It was not brought to the notice of Division Bench of High Court regarding Judge having issued notice-Moreover, it is not a rule of universal application that whenever any Single Judge had dealt with a case even for routine purposes that would preclude him from hearing the appeal-Hence, no case D made out to interfere with the view expressed by Single Judge on merits as

} affirmed by Division Bench.

The appellant filed writ petition seeking issuance of direction to sanction conversion of the appellant's share in the plot from leasehold to freehold . • Single Judge of High Court was of the view that prayer cannot be granted as E it would amount to direction to amend the lay-out plan and would also have the effect of upsetting development control and planning norms. Division Bench of High Court affirmed the same.

In the appeal to this court, appellant contended that that the High Court's approach is erroneous and that in any event the Division Bench of the High F

Court consisting of the Chief Justice and Justice S.K. Kaul ought not to have taken up the matter as at an earlier point of time, Justice Kaul had dealt with the matter.

Respondent contended that the appellant had not pointed out at anyiij; o1nt G of time before the Division Bench of High Court that Justice Kaul had earlier dealt with the matter and, therefore, it will not be open to the appellant to make a grievance and that Justice Kaul had not passed the final order and, .... therefore, the order does not call for any interference particularly when there ..,,_

is 110 merit in the appeal. 979 H

A Dismissing the appeal, the Court

HELD: Justice Kaul had issued notice and had in fact granted interim protection to the appellant It is not shown that the appellant had brought to the notice of the Division Bench of the High Court about Justice Kaul having passed the order of admission. It cannot be laid as a rule of universal B application that whenever any Single Judge had dealt with a case even for routine purposes like issue of process or rectification of defect or even to pass an order of adjournment, that would preclude him from hearing the appeal. The appellant has not made out a case to interfere. Though it is factually correct, that Single Judge had issued Rule, that factual aspect was C not brought to notice of Division Bench. But the final view expressed by the

Single Judge on merit as affirmed by the Division Bench does not suffer from any infirmity to warrant interference.

(Paras 10 nd 11) (982-E, F, GI

S.K. Warikoo v. State of J&K and Ors., (1998) 9 SCC 677, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4266 of2007.

From the Judgment and Order dated 16.5.2005 of the High Court of Delhi at New Delhi in LPA No. 79 of2005.

E Dinesh Kumar Garg for the Appellant.

Amarjeet f?gh, A.S.G., Ashwani Kumar, R.S. Rana and V.K Verma for the Respondents. •

The Judgment of the Court was delivered by

DR. ARIJIT PASA Y AT, J. I. Leave granted.

2. Challenge in this appeal is to the order passed by the Division Bench diSmissing the Letters Patent Appeal filed by the appellant. The Division . Bench dismissed the Letters Patent Appeal filed against the orders passed by G the learned Single Judge in Writ Petition (Civil) No.7990/2002 decided on 3.12.2004. The basic issue was whether sub-division of land was permissible.

The prayer in the writ petition was that direction be issued to the Delhi Development Authority (in short 'ODA') to sanction conversion of the appellant's share in the plot from leasehold to freehold. Stand of the appellant was that he was a co-sharer. Since lessee is permitted to assign a part of H premises, it was stated that prayer is acceptable. Reliance was placed on

KULDEEPSINGHv. U.0.1.[PASA YAT, J.] 981

>· Clause 11 of the Indenture dated 22.8.1919 to contend that lessee is permitted A to assign even part of the demised premises.

3. Learned Single Judge was of the view that if prayer is granted it would amount to a direction to amend the layout plan. It would also have the effect of upsetting development control and planning norms. With reference to Delhi Development Authority Act, 1957 (in short the 'Act') it was observed B

that the said Act envisaged preparation of a Master Plan, Zonal Development Plan and at the lowest level of planning the lay out plan. Development Code

~ under the master plan reveals that in the lay out plan as prepared, individual plots stand earmarked. Building control norms apply in the context of an individual plot. Sub-division cannot take place until and unless lay out is c amended.

4. Order ofleamed Single Judge was assailed before the Division Bench.

The Division Bench noted that condition no. I 0 reads as follows:-

"The Lessee shall upon every assignment, sub-lease or transfer of the D said premises the lease of which is hereby renewed or any part

!) thereof, within one calendar month thereafter deliver a notice of such assignment, sub-lease or transfer to. the Lessor or to any officer appointed by him in this behalf, setting forth the names and description of the parties thereto and the particulars and effect thereof, and all such assignees, sub-lessees and transferees and the heirs of the E lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefore."

5. The DDA is the perpetual lessor of the land unless and until it is provided by the lessor, there is no question of dividing the plot. The Division

J Bench observed that no doubt construction can be carried out by number of F

persons together and they may be the owners jointly or individually in certain proportions. It does not mean that land is also sub-divided when the layout plan is not amended. The Division Bench observed that it was for the DOA to permit and the record reveals that the DOA was willing to consider conversion from freehold of the plot as a whole and not in part. The appellant G was not willing to pay the entire amount and, therefore, he approached the High Court. Therefore, the Division Bench found no merit in the appeal. ...

6. Learned counsel for the appellant submitted that the High Court's ..::

approach is erroneous. In any event the Division Bench consisting of the Chief Justice and Justice S.K. Kaul should not have taken up the matter as H

A at an earlier point of time, Justice Kaul had dealt with the matter.

7. Learned counsel for the respondents submitted that the appellant had not pointed .out at any point of time before the Division Bench that Justice Kaul had earlier dealt with the matter and, therefore, it will not be open to the appellant to make a grievance. It was submitted that Justice Kaul had not B passed the final order and, therefore, the order does not call for any interference particularly when there is no merit in the appeal.

8. Though the learned counsel for the appellant stated that' it was brought to the notice of the Division Bench who heard the matter that Justice Kaul had assed the earlier order as a learned Single Judge, there is no C evidence of such plea having been taken. It was urged that a decision .of this Court in S.K. Warikoo v. State of J&K and Ors., [1998] 9 SCC 677 was cited to contend that the Division Bench of which Justice Kaul is a member should not hear the appeal. We called for records of the High Court to see if in any of the orders mention was made about such a stand being. taken.

9. In S.K. Warikoo case (supra), it was observed that a learned Single Judge who had earlier dealt with the matter should not decide the matter as a member of the Division Bench.

IO. We find that Justice Kaul had issued notice and had in fact granted E interim protection to the appellant. It is not shown that the appellant had brought to the notice of the Division Bench about Justice Kaul having passed the order of admission.

I I. It cannot be laid as a rule of universal application that whenever any learned Single Judge had dealt with a case even for routine purposes like F issue of process or rectification of defect or even to pass an order of adjournment, that would preclude him from hearing the appeal. As contended by the respondents, the appellant has not made out a case to interfere.

Though it is factually correct, as contended, learned Single Judge had issued Rule, that factual aspect does not appear to have been brought to notice of G Division Bench. But the final view expressed by the learned Single Judge on merit as affirmed by the Division Bench does not suffer from any infirmity to warrant interference.

12. The appeal is dismissed. There will be no order as to costs.

H D.G.

Appeal dismissed.

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