NINAN Vs. EXECUTIVE OFFICER

JUDGEMENT

(1.) THESE writ petitions challenge the vires of R.10 of the Kerala Food Adulteration Rules. In respect of the contravention of the Rule, there was a criminal prosecution of the petitioners in these writ petitions. The validity of the Rule was canvassed in revision proceedings before this Court under S.482 of the Criminal Procedure Code. The Rule was upheld-vide Gopinathan Nair v. Executive Officer, Anikkad (1975 KLT. 549). THESE writ petitions are now filed to declare the Rules ultra vires.

(2.) THE learned Advocate-General placed before us the decision of this Court reported in 1975 KLT. 549. He also cited the Supreme Court decision in Shankar Ramchandra Abhavankar v. Krishnaji Dattatraya Bapat (AIR 1970 SC. 1) where it was ruled by the Supreme Court that where on the revisional jurisdiction, the High Court dismisses the revision after hearing both the parties the order of the appellate court becomes merged with the order made in revision, and thereafter the appellate order cannot be challenged or attacked by another set of proceedings in the High Court under Art.226 or 227 of the Constitution. THE principle of merger of orders of inferior courts would not become affected or inapplicable by making any distinction between a revision and an appeal. It was also ruled that the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. When the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court, and it can interfere for the purpose of rectifying the error of the court below. S.115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction, but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. In view of the above principle laid down by the Supreme Court and of the prior decision in 1975 KLT. 549, we see no merit in these writ petitions. We dismiss them with no order as costs.

(3.) THERE can be no doubt that the contention regarding the validity of the Rule was expressly raised before this Court on the earlier occasion, in proceedings which this Court had jurisdiction to deal with and decide; and that there was an express decision by this Court in the said proceedings. The said decision operates as res judicata against the writ petitioners. On this ground these writ petitions must fail. They are accordingly dismissed with no order as to costs. Counsel for the petitioners attempted to raise other contentions before us, such as that the prosecution had been instituted without the consent of the Panchayat as required by S.20 of the Act. But this is a matter to be urged before the criminal court and not in these writ proceedings. Dismissed.