V.S. Deshpande, J.
(1) The eviction of tenants in Delhi was formerly controlled by the Delhi and Ajmer Rent Control Act, 1952 (hereinafter called the Act of 1952) the provisions of which were repeated and were re-enacted by the Delhi Rent Control Act, 1958 (hereinafter called the Act of 1958) which is now in force. The construction of section 17 of the Act of 1952 (corresponding to section 22 of the Act of 1958) arises for consideration in this reference to Division Bench.
(2) The Hindustan Housing Factory, a. private limited company registered under the Companies Act, is the owner and the landlord of the premises which were let for a period of three months to Rajinder Singh (respondent) with effect from 16-1-1955. But as Rajinder Singh did not vacate the premises, a notice terminating the tenancy from 28-2-1957 was given to him on 31-1-1957. As he still refused to vacate the premises, the landlord filed a suit for eviction against him under section 17 of the Act of 1952. This suit was pending when the Act of 1958 came into force and according to section 57(2) of the Act of 1958, the provisions of the Act of 1952 were to govern the disposal of the suit as if the Act of 1958 had not been passed and the Act of 1952 was still in force. The suit was resisted by Rajinder Singh. It was found as a fact, however, that the premises were required by the landlord for the use of the employees of the company. Rajinder Singh in his written statement filed in the trial Court did not raise the plea that either by the notice' to quit dated 31-1-1957 or by the acceptance of rent of the premises, the tenancy was renewed by the landlord in his favor. The parties and the trial Court proceeded on the footing that the tenancy of Rajinder Singh was effectively terminated. The trial Court held that Rajinder Singh had acted in contravention of the terms of the tenancy which required him to vacate the premises on the termination thereof and he was also in unauthorized occupation of the premises He was, thereforee, liable to be evicted under clauses (b) and (c) of section 17 of the Act of 1952. In the appeal by the tenant, the Senior Subordinate Judge considered an argument advanced by Rajinder Singh that his possession after the termination of the tenancy was with the consent of the landlord inasmuch as the notice dated 31-1-1957 called his possession to be 'tenancy'' and thereforee, Rajinder Singh was holding over under section 116 of the Transfer of Property Act. This plea was, how- ever, not raised in the pleading of Rajinder Singh and could not have, thereforee, been legitimately considered by the Senior Subordinate Judge. However, it persuaded the learned Senior Subordinate to hold that Rajinder Singh was not in unauthorized occupation of the premises. He had also not contravened any condition of the tenancy during the continuance of the tenancy. Following the decision in Brigadier K. K. Verma v. Union of India, : AIR1954Bom358 , thereforee, the first appellate Court held that Rajinder Singh could not be evicted either under clause (b) or clause (c) of section 17 of the Act of 1952. This revision by the landlord was referred to a Division Bench mainly because of the Bombay decision followed by the first appellate Court.
(3) The question before us is whether Rajinder Singh (respondent) was liable to be evicted either under clause (b) or clause (c) of section 17 of the Act of 1952 (corresponding to clauses (b) and (c) of section 22 of the Act of 1958), Section 17 of the Act of J952 was as follows :-
'SPECIAL provision for recovery of possession in certain cases--Where the landlord in respect of any premises is any company or other body corporate or any local authority, or any public institution and the premises are required for the use of employees of such landlord or in the case of public institution, for the furtherance of its activities then. notwithstanding anything contained in section 13, the court may, on an application of such landlord, place him in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the court is satisfied -
(A)that the tenant, to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment; or
(B)that the tenant has acted in contravention of the terms, express or implied, under which he was authorized to occupy such premises; or
(C)that any person is in unauthorized occupation of such premises; or
(D)that the premises are bona fide required by the public institution for the furtherance of its activities.'
(4) The scheme of the Acts of 1952 and 1958 is that a suit or a petition by a landlord for the eviction of a tenant would be governed exclusively by these two Acts notwithstanding the provisions of any other law. Section 21 of the Act of 1952 (corresponding to section 25 of the Act of 1958) makes the, order of eviction passed against a tenant binding on 'all persons who may be in occupation of the premises ........ provided that nothing in this section shall apply to any person who has an independent title to such premises'. The meaning of the words 'all persons', is thereforee, obviously limited to those persons who claim through the tenant. This is why they can be evicted in execution of the decree or order passed against the tenant though they were not parties to the suit or proceedings which had been filed by the, landlord against the tenant. On the other hand, if any person claims 'title' meaning the right to occupy the premises independently of the tenant, then he would not be liable to be evicted in execution of the decree obtained by the landlord against the tenant. It is to be noted that if a person claiming an independent title does not claim to be a tenant of the landlord at all then the provisions of neither the Act of 1952 nor the Act of 1958 would apply to him. Further, the word 'tenant' is used in the Act of 1952 to include a tenant whose contractual tenancy may have been terminated by a notice to quit. For, a 'tenant' is defined in section 2(J) to mean any person by whom or on whose account rent is payable for any premises including a sub-tenant o).- other persons as have derived title under the tenant under the provisions of any law before the commencement of the Act of 1952. The word 'rent' seems to be used in a general sense to include even the payment due from a tenant whose contractual tenancy has been terminated though such payment strictly speaking would be damages for use and occupation or mesne profits. As pointed out by us in Batto Mal v. Rameshwar Nath, 2nd (1970) I Delhi 748(2) a landlord cannot file a petition for the eviction of a tenant under the Act of 1958 without first terminating the contractual tenancy. The same observation holds good in respect of the Act of 1952. This would show that throughout the Act of 1952 (as in the Act of 1958) the word 'tenant' means a person whose contractual tenancy has been terminated but whose possession is still protected by the statutes.
(5) It is in the light of this background that we have to consider the meaning of section 17 of the Act of 1952 (corresponding to section. 22.of the Act of 1958). Section 17 applies only when the landlord seeks to evict his tenant and 'every other person who may be in occupation' of the premises. As already pointed out above, the words 'every other person' have to be understood to mean every other person claiming through the tenant. For, if he were to claim independently of the tenant, then he cannot be evicted in view of section 21 of the Act of 1952 (corresponding to section 25 of the Act .of 1958). Clause (a) is not applicable to the present case as the fixed term tenancy was given to Rajinder Singh after he had ceased to be in service of the company. The first question thereforee, is whether the refusal of Rajinder Singh. to vacate the premises after the termination of the contractual tenancy firstly by the efflux of time and secondly by the notice to quit amounted to a 'contravention of the terms, express or implied, under which he was authorized to occupy such premises' within the meaning of clause (b) of section 17. Firstly, it is to be noted that the words 'authorised to occupy' are used in respect of the initial occupation of the tenant. This means that the tenant was initially authorized to occupy the premises by the landlord. Initially, thereforee, his possession was authorized by the terms of the tenancy. If he commits a breach of any of the terms of the tenancy, what is the effect of such breach If the possession was authorised only by the lease, then after the breach of the lease, the possession could not be considered to be authorized by the lease. It must thereforee be considered to be possession otherwise than the one which was authorised by the lease. it would, thereforee, be firstly possession in contravention of the lease. Secondly, it would be unauthorized possession because the authorization to possession was solely given by the terms of the lease. Section 108 of the Transfer of Property Act implies certain terms between the landlord and the tenant in the absence of a contract to the contrary. One such term implied by section 108(q) of the said Act is that on the determination of the lease, the lessee is bound to put the Lesser into possession of the property. This term is agreed to between the parties at the inception of the tenancy. it binds the parties during the subsistence of the tenancy. it is capable of being broken by the tenant only when the tenancy is terminated and when the tenant, fails to vacate the premises. The word 'tenant' in the Acts of 1952 and 1958, however, means a tenant whose contractual tenancy has been already terminated. thereforee, the word 'tenant' in clause (b) to section 17 also means a tenant whose contractual tenancy has been already terminated. The failure to vacate the premises, was, thereforee, a breach of an implied term of the lease by Rajinder Singh. He thereby became liable to be evicted under section 17(b) of the Act of 1952 (corresponding to section 22(b) of the Act of 1958).
(6) The second question is whether Rajinder Singh was a person in 'unauthorized occupation of such premises' within the meaning of clause (c) of section 17 of the Act of 1952. The key to the meaning of the word 'authorized' is supplied by the use of the word in section 17(b). There the tenant is said to be authorized to occupy the premises under the terms of the lease. This means that he was authorized solely by the lease and not by anything else. It follows that when he commits a breach of the lease, the terms of the lease cease to authorize him to occupy the premises. His possession, thereforee, becomes unauthorized. Rajinder Singh must, thereforee after the termination of the lease be considered to be 'any person in unauthorized occupation of such premises' within the meaning of section 17(c) of the Act of 1952 (or section 22(c) of the Act of 1958).
(7) How is it then that the learned Senior Subordinate Judge took a contrary view of the meaning of clauses (b) and (c) of section 17? The reason is that he purported to follow the Bombay decision. The error into which he has fallen illustrates the dangers of following a (decision based on the words used in different statute with a totally different object and scheme. The Bombay decision is concerned with the provisions of the Government Premises (Eviction) Act 1950. Firstly, that Act was not concerned with the eviction of a tenant by a landlord. Secondly, under section 3 of the said Act, the competent authority could evict two types of persons, namely, (a) a person who was initially authorized to occupy the premises but who has sublet them without the permission of the Government or who has otherwise acted in contravention of the terms under which he was authorized to occupy the premises. and (b) any person who was in unauthorized occupation of any Government premises. The dichotomy there was between an authorized person covered by clause (a) and an unauthorized person covered by clause (b) of section 3 This was why a person whose possession was initially authorized was regarded as the authorized person while a person whose possession was initially unauthorized was regarded as an unauthorized person or a trespasser. Unlike the Government Premises (Eviction) Act. 1950. the Acts of 1952 and 1958 who which we are concerned do not divide the persons to be evicted there under into (a) authorized and (b) unauthorized. On the contrary. all persons to be evicted under the Acts of 1952 and 1958 are initially in authorized possession inasmuch as they were inducted info the premises as tenants. But the possession of all of them becomes unauthorized when their contractual tenancies arc terminated. The possession of persons claiming through them becomes unauthorized simply because the possession of the tenants itself becomes unauthorized. It would be seen, thereforee, that the reasoning in the Bombay decision can never be applied to section 17 of the Act of 1952 or section 22 of the Act of 1958. Even under section 116 of the Transfer of Property Act, the possession of a tenant whose tenancy had been terminated would have to be regarded as unauthorized inasmuch as the only authority by which the tenant holding over occupied the premises was the contractual tenancy which no longer exists after it is terminated. The possession of the tenant holding over is converted into authorized possession only when the tenancy is renewed in his favor by the landlord either expressly or by necessary implication from the conduct of the landlord.
(8) Shri F. C. Bedi learned counsel for the respondent also referred to the Supreme Court decision in Tayabaji Jaferbhai Tankiwala v. M/s. Ahsan and Co., : 2SCR554 . The distinguishing feature of the facts of that case was that the landlord showed his awareness of waiving the previous notice to quit under section 113 of the Transfer of Property Act by giving a subsequent notice to quit and by treating the amount due from the tenant as rent up to the second termination of the tenancy and as damages for use and occupation thereafter. In the present case the landlord did not have any such intention. The present case would, thereforee, appear to be governed by the ratio of the Supreme Court decision in Ganga Dull Murarka v. Kartik Chandra Das, : 3SCR813 followed by this Court in Raj Kishan Jain v. Master Hoshiar Sinqh, : AIR1971Delhi213 .
(9) At any rate it was the admitted case of both the parties that the tenancy of the respondent had been terminated and his stay in the premises thereafter was not under any contractual tenancy but only under the protection given, by the Act of 1952. The question whether there was a revival of tenancy in favor of the respondent after the tenancy had been determined so as to bring the case under section 113 of the Transfer of Property Act is a mixed question of fact and law inasmuch as the intention of the parties has to be determined. Such a question could not be raised for the first time before the first appellate Court contrary to the admitted case of the parties before the trial Court and particularly because it was never pleaded by the respondent in his written statement. We cannot, thereforee. consider it at this stage.
(10) The revision is. thereforee, allowed. The decision of the Senior Subordinate Judge is set aside and that of the trial Court restored. The conduct of the respondent has been reprehensible. By resorting to technicalities, he has defied the law and stayed in unauthorized possession of the premises from 1957 to 1971. He is, thereforee. ordered to pay the costs of the appellant Hindustan Housing Factory in all the three courts, namely, the trial Court, the Court of the Senior Subordinate Judge and this Court.