Holding

A judge who previously dealt with a case, even for routine purposes, is not per se disqualified from hearing the appeal as a member of a Division Bench.

Summary

Kuldeep Singh appealed to the Supreme Court after the Delhi High Court, both at the Single Judge and Division Bench levels, denied his request to have his share in a plot converted from leasehold to freehold, holding that such a conversion would require amendment of the layout plan and would disturb development control norms. Singh contended that the Division Bench, which included Justice S.K. Kaul, should not have heard the appeal because Kaul had previously dealt with the matter as a Single Judge. The respondents argued that Singh never raised this objection before the Division Bench and that Kaul had not issued a final order. The Supreme Court examined whether a judge who earlier dealt with a case, even for routine matters, is barred from sitting on a Division Bench hearing the appeal. It held that no universal rule precludes such a judge, especially when the prior involvement was not brought to the bench’s notice and the final merit-based view of the Single Judge was affirmed. Consequently, the appeal was dismissed.

Issues considered

Whether a Division Bench can include a judge who earlier dealt with the same matter as a Single Judge.
Whether the High Court was correct in refusing to direct conversion of leasehold share to freehold on planning and development control grounds.
Whether the appellant’s grievance about prior judicial involvement warrants interference.

Legislation cited

Delhi Development Authority Act, 1957

Subjects

leaseholdfreeholdsub-divisionlayout planDelhi Development Authoritydivision benchsingle judgeprocedural lawplanning normsletters patent appeal

Judgment

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
notice in the matter as Single Judge of High Court-:--Plea that Division c
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
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made out to interfere with the view expressed by Single Judge on merits as
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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 .
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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
of time before the Division Bench of High Court that Justice Kaul had earlier
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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
980 SUPREME COURT REPORTS [2007] 9 S.C.R.

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 ofJ&K and Ors., (1998) 9 SCC 677, referred to.
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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
F DR. ARIJIT PASA YAT, 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.[PASAYAT,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
amended.
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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
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said premises the lease of which is hereby renewed or any part
thereof, within one calendar month thereafter deliver a notice of such
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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
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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
982 SUPREME COURT REPORTS [2007] 9 S.C.R.

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 ofJ&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.
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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.