- (1.) The appellant-plaintiff is aggrieved of the concurrent findings of fact, whereby the suit simpliciter for permanent injunction without claiming declaration, is maintainable or not and therefore, whether the respondent-defendant can be injuncted from recovering and levying the amount of penalty imposed by the office of Municipal Corporation, in view of the provisions of Section 116 of the Punjab Municipal Corporation Act, 1976 (hereinafter called 'the 1976 Act'). This Court, while issuing the notice of motion, passed the following order on 23.02.2015:- "Learned counsel appearing for the appellant, inter-alia, contends that as per Section 116 of the Punjab Municipal Corporation Act, 1976, penalty of twenty five times the value of such octroi or to fifty rupees, whichever may be greater is to be levied for evasion of octroi and that power is only with the criminal court and not with the authorities of the Municipal Corporation. She further submits that no such order of assessment has ever been served upon the appellant-plaintiff while impounding the truck and during the pendency of the suit, the appellant-plaintiff had forgone the relief of declaration and mandatory injunction, but continued with the relief of permanent injunction. On an application filed under Order 39, Rule 1 & 2 CPC and on deposit of Rs. 30,000/- and furnishing of bank guarantee, the truck was released. She further contends that the Courts below have committed an illegality and perversity in not granting the relief of permanent injunction on the premise that the appellant-plaintiff has forgone the main relief of declaration and mandatory injunction. In support of her aforementioned contention, relies upon the judgment of the Hon'ble Supreme Court in "Baddu Mal v. Cantonment Board, Jullundur, 1960 AIR(P&H) 561", to contend that only the criminal court has no jurisdiction and relief of permanent injunction can be entertained. Notice of motion for 13.8.2015. In the meantime, the direction given to the Municipal Corporation to encash the bank guarantee shall remain stayed."
(2.) Mr. Kanwal Goyal, learned counsel appearing on behalf of the appellant submits that as per ratio culled out by the Hon'ble Supreme Court rendered in "Municipal Corporation Ludhiana v. Commissioner of Patiala Division, Patiala,1995 1 RRR 659", it has been held that the power to invoke the penalty, vests with the Criminal Court and not by an Officer of the Municipal Corporation, and as per the Division Bench judgment of this Court rendered in "Baddu Mal v. Cantonment Board, Jullundur, 1960 AIR(P&H) 561", the suit simpliciter for permanent injunction, is maintainable and thus, urges to this Court to formulate the following substantial questions of law:- 1. Whether in view of the ratio decidendi culled out by the Division Bench judgment of this Court rendered in "Baddu Mal's case , the suit for permanent injunction is maintainable or not. 2. Whether, the action of the Municipal Corporation lacks jurisdiction in levying and recovering the penalty as envisaged under Section 116 of the 1976 Act.
(3.) Mr. H.K. Aurora, learned counsel appearing on behalf of the respondent-Corporation submits that the driver of the truck, in the affidavit, opted for compounding of the offence, and therefore, the suit is not maintainable. There is no illegality and perversity in the judgment and decree of both the Courts below. There is no dispute to the ratio decidendi culled out by Hon'ble Supreme Court in "Municipal Corporation, Ludhiana's case . In view of the peculiar facts and circumstances of the case, the suit has rightly been dismissed.;