Sudhir Narain, J.
1. This writ petition is directed against the order dated 16.8.1994 passed by the prescribed authority releasing the disputed shop under Section 21(1)(b) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972 (hereinafter referred to as the Act) and the order of the appellate authority dated 31.7.1995 affirming the said order in appeal.
2. Respondent Nos. 3 to 6 filed application under Section 21(1)(b) of the Act with the allegations that they had purchased the property from the erstwhile owner of the property under a registered deed on 9.9.1988. The petitioners were already tenants and after the purchase of the property they were tenants of the respondents. The disputed premises was constructed 100 years ago and was in a dilapidated condition. It requires demolition and reconstruction. They have got a plan prepared as contemplated by Rule 17 of the Rules framed under the Act and have sufficient financial capacity to reconstruct the same.
3. The petitioners contested the application. It was alleged that Swaraj Prakash Gupta and Omkar Nath were owners of the property. They executed an agreement to sell the disputed property in favour of the petitioner Nos. I to 3 on 23.12,1987 and thereafter they were occupying it in their own right under the agreement. They denied relationshipof landlords and tenants between the parties. They further denied that the premises in question was in a dilapidated condition. The prescribed authority, on consideration of material evidence on the record, came to the conclusion that the disputed premises was in a dilapidated condition. The land lord-respondents have complied with the requirements as provided under Rule 17 of the Rules framed under the Act. There was relationship of landlord and tenant between the parties and on these findings the application was allowed by order dated 16.8.1994. The petitioners preferred an appeal against the said order. The appeal has been dismissed by respondent No. 1 on 31.7.1995. These orders have been challenged in the present writ petition.
4. I have heard Sri R. C. Shukla, learned counsel for the petitioners and Sri Ravi Kiran Jain, learned senior counsel for the contesting respondents.
5. Learned counsel for the petitioners contended that the mere fact that the building was very old is itself not a sufficient ground to hold that :the building is in a dilapidated condition. He has placed reliance upon the decision Smt. Chando Devi and others a. IIIrd Additional District Judge, Mathura and others. 1984 (1) ARC 10, wherein it has been held that the word 'dilapidated' should be understood Jn the sense that it is beyond repairs. It is a question of fact in each case as to whether a Building is in a dilapidated condition. The age of the building may not Itself be criteria for holding that a building is in a dilapidated condition but it is also one of the relevant factors for determining the condition of the building. The material used in the building for its construction has its life and it starts decaying after certain period and even if any repair is made it shall not last long.
6. The finding of the prescribed authority is based on consideration of the reports of the experts. The landlord-respondents had filed the report of G. S. Birdie, Architect and Engineer, who had given the details ofthe premises in question, its nature and condition and gave opinion that it is in a dilapidated condition and requires demolition and reconstruction. He had also filed affidavit in support of his report. They had also filed photographs and the affidavit of the photographer. The tenant-petitioners had also filed report of Sandeep Singh. Architect and the photographs taken by Dilip Kumar, photographer. The prescribed authority, on an application for local inspection to be made by the Engineer to ascertain the condition of the building, ordered for the issue of Commission. The petitioners did not permit the Engineer to make Inspection. The prescribed authority on 7.9.1992 observed that if the petitioners do not permit the Engineer to make local inspection Inside the building, an adverse Inference shall be drawn against them. The finding was recorded by the prescribed authority on consideration of material evidence on the record that the premises in question is in dilapidated condition. This finding has been again examined and has been affirmed by the appellate authority. Learned counsel for the petitioners has taken me to various documents and on perusal of the documents I do not find that there is any manifest error of law in the findings recorded by the authorities below.
7. The next submission of the learned counsel for the petitioners is that the erstwhile owners of the property had executed an agreement to self the property in favour of petitioner Nos. 1 to 3 on 23.12.1987 and in violation of the said agreement, they have sold it out to respondent Nos. 3 to 6 on 9.9.1988. They have also filed Suit No. 132 of 1990 for specific performance of the agreement pending in the civil court. It is urged that till the suit is decided, the rights of the parties cannot be finally determined. The mere agreement to sell does not confer any interest in the property. Section 54 of the Transfer of Property Act provides that the agreement does not, of Itself, create any interest in or charge on such property. The purchaser ofproperty has right to file application under Section 21 of the Act and the prescribed authority is to determine it in accordance with law. The mere pendency of suit filed by the party will not take out his jurisdiction to decide the application on merits.
8. The petitioners have laid great emphasis upon Section 53A of the Transfer of Property Act which provides that where any person contracts to transfer for consideration of any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an Instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued tn possession, other than a right expressly provided by the terms of the contract.
9. The authorities below have considered in detail this aspect. A copy of the agreement for sale dated 23.12.1987 has been annexed as Annexure-1 to the writ petition. The agreement nowhere states that the possession was being delivered to the petitioners or they may continue in possession in pursuance of the agreement. The petitioners were required to pay Rs. 2,00.000 under the agreement but admittedly the amount has never been paid. The respondents have denied that the erstwhile owners had ever executed any such agreement in favour of the petitioners. As the petitioners were not put in possession in pursuance of the agreement, Section 53A of the Transfer of Property Act is not applicable to the facts of the present case.
10. Learned counsel for the petitioners vehemently urged that the respondent No. 1 has made observation regarding validity of the agreement and the conduct of the petitioners which will affect the decision of the suit filed by them for 'specific performance of the agreement, the observation of respondent No. 1 shall be taken in so far as the decision of this case but will have no effect on the Court deciding the regular suit.
11. Learned counsel for the petitioners submitted that the landlord-respondents may not construct the building as given tn the map filed by them as no condition has been imposed by any of the authorities to make constructions within specified time. Section 24 of the Act provides that on reconstruction of the building, it shall be allotted to the previous tenants from whom the accommodation was got vacated under Section 21 (1) (b) of the Act on an application being filed by him before the District Magistrate. Section 24 of the Act does not provide time limit when the construction is to be made. Rule 17 of the Rules framed under the Act. however, provides that the map has been submitted by the landlords and they have financial capacity to reconstruct it. The condition imposed by this Rule is only with a view that in the event the constructions are demolished, the landlord reconstructs the same expeditiously as the map is already their and he has financial capacity. This Court, however, considering the facts and circumstances in appropriate cases, can pass an order directing the landlord to make construction within specified time so that the tenant who has been evicted may get the premises allotted after a reasonable time. The application under Section 21 (1) (b) is allowed with a view that the building will be demolished and it will be reconstructed and thereafter put the tenants in its possession in accordance with the provisions of Section 24 of the Act.
12. Considering the facts and circumstances of the case thelandlords are directed to make construction as sanctioned by the municipal authorities possibly within one year from today as they have already obtained possession in pursuance of the order passed by the authorities below.
13. The writ petition is dismissed subject to the observations made above.