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CASE NO.: Appeal (civil)  4266 of 2007

PETITIONER: Kuldeep Singh

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 14/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   4266         OF 2007 (Arising out of S.L.P. (C) No. 19279 of 2005)  

Dr. ARIJIT PASAYAT, J.

1.      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 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 ’DDA’) 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 premises, it was stated that prayer is acceptable.  Reliance was placed on Clause 11 of the Indenture dated  22.8.1919 to contend that lessee is permitted 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 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 amended.          

4.      Order of learned Single Judge was assailed before the  Division Bench.  The Division Bench noted that condition  no.10 reads as follows:-

"The Lessee shall upon every assignment, sub- lease or transfer of the 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

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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 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 Bench observed that no doubt  construction can be carried out by number of 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 DDA to permit and the record  reveals that the DDA was willing to consider conversion from  freehold of the plot as a whole and not in part.  The appellant  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 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  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 passed the earlier order as a  learned Single Judge, there is no 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.

10.     We find that 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 about Justice Kaul having passed the order of  admission.

11.     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 issue of process or rectification of  defect or even to pass an order of adjournment, that would

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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 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.