TMI Blog2017 (6) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that: - The review petitions are not maintainable, for not having challenged the finding in the common verdict in W.A. Nos. 630 and 649 of 2012, which stands in tact. The petitioner was importing Boric acid, based on the interim orders passed by this Court, which was made subject to the result of the proceedings pending before this Court. Since the petitioner has lost the battle, by virtue of the interference made by the Division Bench, the petitioner is all the more liable to satisfy the liability, as the principle of "actus curiae neminem gravabit" (an act of the Court shall prejudice no man) is attracted. Review petition dismissed - decided against petitioner. - R.P. No. 1002 of 2014 in W.A. No. 617 of 2012,R.P. No. 1005 of 2014 in W.A. No. 648 of 2012, R.P. No. 1006 of 2014 in W.A. No. 1653 of 2013 - - - Dated:- 28-2-2017 - P. R. Ramachandra Menon And A. Hariprasad, JJ. FOR THE PETITIONER : SRI.E.K.NANDAKUMAR (SR.) SRI.P.GOPINATH, SRI.KURYAN THOMAS FOR THE RESPONDENT : SRI.K.SHRI HARI RAO, CGC ORDER Ramachandra Menon J. These review petitions have been filed by the same petitioner, who was the first respondent in the Writ Appeals. The nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the provisions of the Act will not apply to Boric acid imported for 'non-insecticidal' purpose. Apart from placing reliance on Section 38 of the Act, a plea of discrimination was also raised, which was mainly of two fold. Firstly, that there was an instance of discrimination in relation to other toxic chemical substances, which were having greater toxicity than Boric acid and still standing outside the purview of the Act/Circulars/Notifications, whereas 'Boric acid', according to the petitioner was not even a toxic chemical, as it was largely used in the manufacture of 'eye-drops'. Second instance of discrimination was with reference to the position enjoyed by the 'Local manufacturers' (very few in number) who were not having any registration under the Act and still were manufacturing and selling the product without any restriction. 4. The Writ Petitions filed by the petitioners (as mentioned already) were considered along with W.P.(C) Nos. 26432 of 2006 and 10934 of 2007. After hearing both the sides, a learned single Judge of this Court held that the condition in the import policy requiring the petitioners to take out registration under the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea of discrimination by the Bench is not correct. It is stated that the question of discrimination, with reference to the product 'Boric acid' in relation to other chemicals, has been considered by the Bench in paragraphs 46 to 53 of the verdict; while the alleged discrimination with reference to the petitioner/importer and the local manufacturers has been dealt with in paragraph 45 and elsewhere in the verdict. The learned counsel submits that the alleged impossibility to obtain import permit, for want of 'end-use certificate', has also been dealt with by the Court in paragraphs 24 to 29 and 34 and alleged non-consideration of this aspect can be appreciated as unfounded by virtue of the observations in paragraphs 43 to 45 of the very same verdict. Reference is also made to the observations in paragraphs 30 to 32 as to the contents of the Circular dated 22.06.2011. The learned counsel submits that the petitioner, if at all aggrieved, has to pursue the remedy by way of appeal and not otherwise. 8. Mr. Sreelal K. Warrier, the learned counsel appearing for the Customs Department submits that, in so far as the Department of Customs is concerned, they have to go by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance it provides for three principles. Equals must not be treated as unequals. Unequals must not be treated as equals. Last, but not the least, the action of the State must be free from arbitrariness as arbitrariness is a sworn enemy of equality. In this case, apparently the argument is that by the imposition of the impugned clause there is discrimination in so far as while restriction is imposed on imported boric acid on no other insecticide, it is imposed. Many insecticides are more dangerous than boric acid. The government does not display the same level of concern as is projected in the case of boric acid. In this regard, we may refer to the pleading in the writ petition from which W.A. No. 617/2012 arises. What is stated in ground E is as follows: E. Ext.P5 is grossly discriminatory and not issued on the basis of any justifiable reasonable classification. The onerous policy condition of obtaining an import permit from the Central Insecticides Board Registration Committee imposed vide Ext.P5 has not been extended to other technical grade inorganic chemicals falling under chapter 28 of the ITC (HS) which also finds a place in the Schedule to the Insecticides Act, 1968. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petitions such. The contention of the local manufacturers is that importers and the local manufacturers may not fall in the same category as such but we leave the issue open. We only would observe that in the matter of enforcement of law relating to taking out registration by local manufacturers and other requirements, they are certainly meant to be enforced with utmost strictness. The Act is aimed at controlling insecticides with a view to ensure the safety of the human beings and animals. It is an Act which therefore relates to the security of human beings as also the animals as defined in the Act. We only would point out that it is bounden duty of the authorities if it is found that the Act is being the violated, they will take appropriate action. We make this observation, as it is pointed out by Shri. Gopinath Menon, that none of the local manufacturers have got themselves registered under Section 9. In fact, the learned counsel for the appellant also does not appear to dispute that there is no registration by the local boric manufacturers under section 9. Certainly this is a matter which must be looked into by the authorities and they are bound to take action if there is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.A. Nos. 630 and 649 of 2012 which stands against the petitioners [though they were not parties], stands intact and unless the said verdicts are also subjected to challenge, relief cannot be granted to the review petitioners, if at all they are entitled to have such relief. It may be true that the review petitioners were not parties to the Writ Appeal Nos. 630 and 649 of 2012, but, it was quite obligatory for them to have challenged the said verdicts as well, by obtaining the 'leave' of this Court by way of appropriate proceedings, which course has not been chosen to be done. The verdict passed by the Division Bench of this Court in 2016 (4) KHC 353 [cited supra] was rendered, following the dictum laid down by the Constitution Bench of the Apex Court in AIR 1962 SC 338 [Badri Narayan Singh Vs. Kamdeo Prasad Singh] and the subsequent ruling in AIR 1976 SC 1645 [Lonankutty Vs. Thomman]. The observations with reference to the question of 'res judicata' as considered in paragraphs 20 to 24 of the said verdict passed by the Division Bench are in the following terms : Res judicata: 20. Res judicata is a common law principle of preclusion, devised to deter endl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y stated, on a common issue two rival contenders, let us assume, take out independent legal proceedings before a court of law. The court, we further assume, allows one and dismisses the other. The aggrieved party files one appeal. Though the initial adjudication was through one single judgment, it actually amounts to two decisions, notionally. As no appeal is filed against the other decision, the finding notionally attributable to it attains finality. In such an event, the single appeal arising out of a case dismissed or allowed, as the case may be, is hit by the principle of res judicata. This is precisely the situation obtained in Badri Narayan Singh v. Kamdeo Prasad Singh AIR 1962 SC 338, a decision rendered by a Constitution Bench of the Supreme Court. The same proposition of law stands affirmed in Lonankutty v. Thomman (1976) 3 SCC 528, too. 14. After hearing, we are of the view, that the legal position made clear by this Court in 2016 (4) KHC 353 [cited supra] is squarely applicable to the cases herein as well. The review petitions are not maintainable, for not having challenged the finding in the common verdict in W.A. Nos. 630 and 649 of 2012, which stands in tact. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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