JUDGMENT
Badar Durrez Ahmed, J.
1. The petitioner No. 2, who is the owner of plot No. 32, Lajpat Nagar, Part -I, New Delhi is aggrieved by the issuance of the letter dated 16.5.2002 by the respondent whereby she has, inter alia, been asked to make the payment of Rs. 24, 42, 227/- by way of penalty for belated construction from 1.7.1977 to 31.12.2003 within thirty days failing which her case for grant of `No Objection Certificate’ in respect of the said premises would be closed. The case of the petitioner No. 2 is that penalty for belated construction for the period 1.7.1977 to 31.12.2003 cannot at all be charged at least during the period within which the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the said Act) was in operation. The petitioners’ case is that under the said Act there was a prohibition on construction and, accordingly, the petitioner could not carry out any construction during that period and consequently no penalty could be imposed on the petitioner in respect of such period.
2. It is clear that the said Act came into operation in Delhi with effect from 17.12.1975 as indicated in Section 6 thereof. The said Act continued to apply and operate till its repeal on 22.3.1999 by virtue of the Urban Land (Ceiling & Regulation) Repeal Act, 1999. It is the petitioners’ contention that during this period, i.e. 17.2.1975 to 22.3.1999 the petitioners could not contruct on the said plot in view of the prohibition under the said Act. If at all any penalty was to be charged it could be charged for the period subsequent to 22.3.1999.
3. The brief facts of the case are that the said plot No. 32 and adjoining plot No. 33 were subject matter of a Lease Deed dated 28.10.1959. The lessee sold plot No. 32 to the petitioner No. 2. After purchase of the said plot the petitioner No. 2 sought mutation of the property in her name. The property was inspected and it was found that despite there being a clause in the lease that construction would be carried out within twenty four months, no construction had been made thereon. Thus, by a notice dated 3.4.1975 the respondent (being the Lesser) re-entered the premises, i.e. plot No. 32 and directed the lessee to hand over vacant possession of the same on 19.5.1975. The breaches were thereafter regularised on payment of penalty of Rs. 5, 854/- up to 30.6.1974. The re-entry was, therefore, cancelled. The payemnt of the penalty amount as well as amount of ground rent and interest thereon was made on 10.6.1975.
4. Thereafter, by a letter dated 9.10.1975 the petitioner No. 2 was informed that the property had been mutated in her name in the same terms and conditions as laid down in the original lease executed on 28.10.1959. She was, accordingly, informed that the property now stands in the books of the respondent in her name (Smt. Vimla Rani). The letter categorically mentioned that construction over the plot must be completed up to 30.6.1976. However, as construction was not done by that date the respondent issued a notice to the petitioner No. 2 to remove the breaches otherwise it would exercise the powers of re-entry and cancel the lease deed. In reply, by a letter dated 24.1.1977 the petitioner No. 2, stating that the mutation had been carried out only on 9.10.1975, requested that two years’ time for construction on the plot be granted. In the said letter it was also indicated that the petitioner No. 2 was prepared to proceed with the construction of the plot and for which she has already applied to the Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 for release of the plot and that release orders were awaited. The permission, it is an admitted fact, was never granted under the said Act. By a letter dated 21.5.1977 the respondents decided to accede to the request of the petitioner No. 2 for extension of time up to 30.6.1977 for completion of the building on the said plot without levy of penalty. It was further made clear in the letter that no further extension would be granted beyond this date.
5. Thereafter, nothing happened till the year 2000. On 9.11.2000 the petitioner No. 2 moved an application before the respondent for the issuance of a “No Objection Certificate” for sanctioning of the building plan. It was also indicated in the letter that if any dues were pending she was ready to pay the same and that a early action in the matter be taken as she was wanting to construct the house and get the plan sanctioned from the MCD. On 14.3.2001, the Petitioner No. 2 sent a reminder reiterating her earlier request. Here, again, she mentioned that she was ready to clear dues if any, like ground rent etc. In response to the said application dated 9.11.2000, the impugned letter dated 16.5.2002 has been issued by the respondent No. 2 whereby a penalty of Rs. 24, 42, 227/- is sought to be levied upon the petitioner for belated construction from 1.7.1977 to 31.12.2003. It is clear that the respondent is, on principle, not opposed to the granting of the No Objection Certificate. However, it has made the grant of No Objection Certificate conditional on the petitioner paying the penalty amount of Rs. 24, 42, 227/- . The petitioner, on the other hand, disputes its liability to pay any such penalty.
6. The short question that arises for consideration in this case is whether the levy of penalty for belated construction for the period 1.7.1977 to 31.12.2003 is justified or not? There is no dispute with regard to the rate on which penalty is being imposed. The only question is with regard to the period.
7. The learned counsel for the petitioners submitted that from 17.2.1975 to 22.3.1999 the Petitioner No. 2 could not construct on the plot in question as the said Act was in operation and she had not been granted any exemption which she had applied for under Section 22 of the said Act. Learned counsel further submitted that the petitioner No. 2 was prevented from constructing any building on the said plot in view of the provisions of Section 29 and 30 of the said Act. To analyze the contention of the petitioners it would be pertinent to set out the provisions of Section 29 of the said Act as under:-
“29. Regulation of construction of building with dwelling units.- No person shall construct any building with a dwelling unit having a plinth area, –
(a) where the building proposed to be constructed is situated in an urban agglomeration falling within category A or category B specified in Sch. I, in excess of three hundred square meters;
(b) where the building proposed to be constructed is situated in an urban agglomeration falling within category C or category D specified in Sch. I, in excess of five hundred square meteRs. ”
From the aforesaid provision, it is clear that what is prohibited is the construction of any building with a dwelling unit having a plinth area in excess of 300 square meters insofar as Delhi is concerned as it would fall within a category (A) urban agglomeration. It is clear that Section 29 does not impose a ban on construction, it merely regulates construction. It states that the construction proposed to be carried out ought not to have a plinth area in excess of 300 square meteRs. Therefore, the provisions of Section 29 would be of no help to the petitioners and the petitioners cannot be permitted to urge that on account of Section 29 of the said Act, the petitioners were prohibiting from carrying out any construction at all.
8. Insofar as the question of exemption under Section 20 of the said Act is concerned, the petitioners cannot take this as a ground for non-construction. The petitioners apparently had excess land. It sought an exemption of the plot in question from the Competent Authority under the said Act. That exemption never came. It is only a matter of providence that the said Act was repealed in 1999. That, however, does not enable the petitioners to take advantage and submit that they could not construct because of the non-grant of exemption under Section 20 of the said Act. It is to be seen that this plot which has been leased out by the respondent on a 99 years lease with effect from 29.10.1958 has been lying vacant without any construction thereon for over forty years. Even after the petitioner No. 2 had purchased the property she had not carried out any construction thereon. When she moved an application for extension of time for construction on 24.1.1977 the said Act had already been come into operation. The extension of time was granted by the letter dated 25.5.1977 up to 30.6.1977. She accepted this position without any demur. The property was not re-entered because of this. Thereafter, for twenty two years the petitioner made no application nor did the respondent take any steps for re-entry. Be that as it may, the position is clear that the petitioner No. 2 did not construct during this period. Even now the property is not sought to be re-entered and, on principle, the petitioner No. 2 is being granted the `No Objection Certificate’ subject to payment of the said amount of penalty.
9. In view of the foregoing discussion, I do not see any reason as to how the petitioners can avoid the payment of the penalty. Accordingly, the writ petition is dismissed. The petitioners are, however, permitted to make the payment of the penalty amount within sixty days of this judgment and upon payment of such sum the respondent shall issue the `No Objection Certificate’.
10. The writ petition is, accordingly, disposed of.