K. M. Joseph, J. The petitioner is the appellant. The prayer sought in the writ petition is as follows:
“(i). issue a writ or such other appropriate writ, direction or order declaring Section 17(D)(5) of the KGST Act as unconstitutional, arbitrary and strike down the same as being violative of Article 14 of the Constitution of India.
(ii). Call for the records leading to Ext.P1 notice dated 27/12/2010 and Ext.P2 and Ext.P3 orders dated 26/2/2011 of the 2nd respondent and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order.
(iii). Issue a writ of certiorari or such other appropriate writ, direction or order quashing Ext.P4, Ext.P4(a), Ext.P5, Ext.P5 (a) Demand/Attachment Notices dated 7/7/2011 of the 5th and 4th respondents respectively.
(iv).Declare that Ext.P1 notice dated 27/12/2010 and Ext.P2 and Ext.P3 order dated 26/2/2011 of the 2nd respondent are illegal and ultra vires the provisions of the Kerala General Sales Tax Act, 1963 and /or Rules ”
2. Appellant has earlier filed two writ petitions viz.
W.P.(C) Nos.5774/2012 & 5775/2012. The matters were allowed to be withdrawn without prejudice to the right of the appellant to pursue any remedy in accordance with law. Thereafter, the appellant approached the Civil Court by filing O.S. No.807/2012. The case of the appellant in the present writ petition is that on better wisdom, she has realised and she was advised that the suit is not maintainable and therefore she has decided to file the present writ petition.
3. The learned Single Judge found that, giving liberty to the appellant to file a fresh petition, this court dismissed the two writ petitions as withdrawn by a common judgment. It is found that the present writ petition is not maintainable.
4. We heard the learned counsel for the appellant as well as the learned Government Pleader.
5. The learned counsel for the appellant would point out that the principle that the petitioner in a writ petition, which is allowed to be withdrawn without reserving a permission to institute fresh writ petition, cannot file a fresh writ petition in respect of the same cause of action, was evolved with a view to avoid mala fide abuse by the party and to prevent Bench-hunting. In this connection, the learned counsel for the appellant, no doubt, drew our attention to the decision in Sarguja Transport Service v. S.T.A. Tribunal, Gwalior ( AIR 1987 Supreme Court 88). The learned counsel also invited our attention to the decision reported in Sarva Shramik Sanghatana (KV) v. State of Maharashtra {(2008) 1 Supreme Court Cases 494}. The counsel also refers to the decision Daryao v. State of U.P. (AIR 1961 Supreme Court 1457).
6. We would think that the appellant may not be justified in seeking to avoid effect of the principle enunciated in Sarguja Transport Service v. S.T.A. Tribunal, Gwallor (cited supra). It is a case where the appellant approached this court earlier by filing two writ petitions and sought permission to withdraw the writ petitions with liberty to pursue any other remedy.
In such circumstances, we are of the view that the finding of the learned Single Judge, that the writ petition is not maintainable, is correct. Accordingly, the appeal is dismissed.
Sd/-
K. M. JOSEPH, JUDGE Sd/-
A.K.JAYASANKARAN NAMBIAR, JUDGE dpk. /true copy/ PS to Judge.