IMPORTANT POINTS
Plea being based on legal submission will not be hit by Res judicata or constructive res judicata.
Central and State Acts on the same subject under Concurrent list may operate simultaneously but in case of repugnancy, the Central Act shall prevail to the extent of repugnancy.
Tenants occupying premise under State Act since prior to coming into force of Public Premises Act, 1971 will continue to be governed by the State Act.

ORDER

Leave granted.

2. We have heard Mr. Harin P. Raval, learned senior counsel in support of this appeal and Mr. Vikas Singh, learned senior counsel appearing for the respondents.

3. This appeal seeks to challenge the judgment and order dated 13.07.2012 passed by a Division Bench of the Delhi High Court in L.P.A. No.250/2012, whereby the Division Bench confirmed the order passed by the learned Single Judge as well as the orders passed by the District Judge and the Estate Officer. The appellant has been directed to be evicted under these orders from the concerned premises situated at 18/90, Connaught Circus, New Delhi-110001.

4. The case of the appellant is that the appellant has been occupying these premises right from 26th March, 1952 and the respondent-Bank became owner of this property only on 31.12.1978. There were some initial notices issued to the appellant to vacate the premises, but ultimately it is the notice dated 15.11.1999 with which we are concerned in the present matter. It was the notice issued by invoking the provisions of Section 106 of the Transfer of Property Act. This was followed by the proceeding to evict the appellant which has led to the eviction order passed by the Estate Officer, and which has been confirmed, as stated above, all throughout.

5. Mr. Raval submits that the appellant had raised the point of not being covered under the Public Premises Act, 1971 at all stages. He has drawn our attention to the order passed by the Estate Officer, wherein it has been recorded that the appellant canvassed that the appellant's tenancy continued under the protection of Delhi Rent Control Act, and the respondents were not capable of terminating the tenancy by mere service of the notice. That submission was specifically rejected by the Estate Officer by relying upon the judgment of this Court in Ashoka Marketing Limited and another vs. Punjab National Bank and others reported in (1990) 4 SCC 406.

6. Mr. Raval submits that the said plea was reiterated before the District Judge, and it is reflected in paragraph 5 of the order of the District Judge. Thereafter, this plea has been raised before the learned Single Judge, and also in the Special leave petition before this Court. Mr. Raval has drawn the attention of this Court to the judgment in the case of Dr. Suhas H. Pophale vs. Oriental Insurance Co. Limited reported in 2014 (2) SCALE 223. In this judgment, to which one of us (H.L. Gokhale, J.) was a party, this Court has held that the Public Premises Act cannot be applied to the premises where the occupants have come in possession thereof, prior to the application of the Act, i.e., prior to 16th September, 1958. In the circumstances, Mr. Raval submits that all these orders should be set aside, the appeal should be allowed and the eviction proceedings should be dismissed.

7. On the other hand, it was submitted by Mr. Vikas Singh, learned senior counsel appearing for the respondent-Bank that the appellant had raised at an intermediate stage the plea of not being covered under the Public Premises Act, and had subsequently dropped that plea. They had then relied upon guidelines and, therefore, the plea, which is sought to be raised at a second stage, cannot be allowed to be raised now on the ground of res judicata, as well as constructive res judicata. As far as this objection of Mr. Vikas Singh is concerned, inasmuch as the plea raised by Mr. Raval is based on a legal submission, we would not like the appellant to be denied the opportunity of raising the legal plea and, therefore, we do not accept this submission.

8. There are two other submissions raised by Mr. Vikas Singh. Firstly, he drew our attention to the fact that in Ashoka Marketing Limited (supra), there were two properties involved, namely, one that was of Ashoka Marketing Limited and the second was of M/s Sahu Jain Services Limited. Both the parties were occupying the premises concerned since 1.7.1958, i.e., prior to the date when the Public Premises Act became