Judgment M.R. Shah, J.—Rule. Mr. Vijay Patel, learned Advocate waives the service of notice of rule on behalf of the Respondent No. 1 and Mr. Pranav Desai, learned Assistant Government Pleader waives the service of notice of rule on behalf of the Respondent No. 2. 2. With the consent of the learned Advocates appearing on behalf of the respective parties and in the facts and circumstances of the case, present petition is taken up for final hearing today. 3. The petitioners – Councilors / members of the Manavadar Municipal Borough have prayed for appropriate writ, order and/or direction, directing the Respondent No. 1 - President of Manavadar Municipality, not to act contrary to the Resolutions passed by the Manavadar Municipal Borough passed in General Board on 22/1/2011. It is also further prayed for appropriate writ, order and/or direction directing the Respondent No. 2 – Collector, Junagadh not to proceed further with the hearing of Appeal No. 2 of 2011 in view of withdrawal proceedings tendered by the present petitioners in light of development of passing of Resolution by the Manavadar Municipal Borough in the General Board on 22/1/2011. It is also prayed to issue appropriate writ, order and/or direction quashing and setting aside the order passed by the Collector dtd. 11/2/2011 passed by the Collector, Junagadh in Appeal No. 2 of 2011, by which the earlier interim order has been modified by the Collector, Junagadh. 4. Mr. Ashish Dagli, learned Advocate appearing on behalf of the petitioners has vehemently submitted that as such the impugned modified interim order passed by the Collector, Junagadh in Appeal No. 2 of 2011 dtd. 11/2/2011 is not only illegal but contrary to the resolutions passed by the Manavadar Municipal Borough in its General Board on 22/1/2011. 5. Mr. Ashish Dagli, learned Advocate appearing on behalf of the petitioners has further submitted that when the petitioners submitted application permitting the appellants to withdraw the Appeal No. 2 of 2011 filed by them unconditionally in view of the subsequent development, the Collector ought not to have proceeded further with the said appeal and ought not to have modified the earlier interim order and the Collector ought to have permitted the petitioners herein – original appellants in the appeal to withdraw the Appeal No. 2 of 2011. It is submitted that not permitting the petitioners herein – original appellants to withdraw the aforesaid appeal and then modifying the earlier interim order is absolutely illegal and most arbitrary, which cannot be sustained and the same deserves to be quashed and set aside. 6. Mr. Ashish Dagli, learned Advocate appearing on behalf of the petitioners has further submitted that as such by taking disadvantage of the modified interim order dtd. 11/2/2011 passed by the Collector, Junagadh, Junagadh Municipal Borough and the public at large has lost approximately Rs. 1.36 Crores which has been spent by the Respondent No. 1 illegally just within a period of 10 days and illegal payments have been made to various parties / contractors. Submitting accordingly, it is requested to allow the present petition. 7. Mr. Vijay Patel, learned Advocate appearing on behalf of the Respondent No. 1 – President of the Manavadar Municipal Borough has stated at the bar that, in fact, the Respondent No. 1 himself has submitted pursis before the Collector on 9/3/2011 stating that he has no objection if the petitioners herein – original appellants are permitted to withdraw the Appeal No. 2 of 2011 filed by them. 8. Mr. Vijay Patel, learned Advocate appearing on behalf of the Respondent No. 1 – President of the Manavadar Municipal Borough has further submitted that no amount is incurred illegally as alleged by the petitioners herein and whatever the payments have been made, the same are legal one and the said expenditure has been made as per the instructions of the third party – agencies. 9. Mr. Vijay Patel, learned Advocate appearing on behalf of the Respondent No. 1 – President of the Manavadar Municipal Borough has stated at the bar that the Respondent No. 1 has no objection if the payments made by the Respondent No. 1 during last six months are verified and scrutinized by the Collector and even by an independent agency. 10. Mr. Vijay Patel, learned Advocate appearing on behalf of the Respondent No. 1 – President of the Manavadar Municipal Borough has further submitted that according to the Respondent No. 1 even the resolution passed by the General Board on 22/1/2011 has not been approved in the subsequent meeting which is disputed by Mr. Dagli, learned Advocate appearing on behalf of the petitioners by submitting that in fact, against the Resolution of the General Board dtd. Dagli, learned Advocate appearing on behalf of the petitioners by submitting that in fact, against the Resolution of the General Board dtd. 22/1/2011 even an appeal has been preferred by one of the members named Mr. Rakesh Dadhani, before the Collector, Junagadh. 11. Mr. Pranav Dave, learned Assistant Government Pleader appearing on behalf of the Collector, Junagadh has tried to justify the interim order passed by the Collector dtd. 11/2/2011 by submitting that the earlier interim order has been modified by the Collector, Junagadh vide order dtd. 11/2/2011 in the interest of Municipal Borough and for smooth administration and management of the Municipal Borough. It is submitted that as such there was no malafide intention on the part of the Collector, Junagadh in not permitting the petitioners herein – original appellant to withdraw the appeal and to modify the earlier interim order, vide order dtd. 11/2/2011. 12. Mr. Vijay Patel, learned Advocate appearing on behalf of the Respondent No. 1 as well as Mr. Pranav Dave, learned Assistant Government Pleader appearing on behalf of the Collector, Junagadh have submitted that some modality is to be worked out so that day-to-day affairs and administration of the Municipal Borough may not suffer. 13. Heard the learned Advocate appearing on behalf of the respective parties at length. 14. At the outset, it is required to be noted that the petitioners - original appellants of Appeal No.2 of 2011, as such submitted pursis / application before the Collector, Junagadh permitting them to withdraw the said appeal unconditionally in light of the Resolution of the General Board of the Municipal Borough dtd. 22/1/2011, despite the same, the Collector, Junagadh instead of permitting the petitioners herein – original appellants to withdraw the appeal preferred by them, modified the earlier interim order, by order dtd. 11/2/2011, which cannot be sustained. Once the original appellants – petitioners herein sought permission to withdraw the appeal, unless it is found that attempt on the part of such appellants to withdraw the appeal is malafide and/or the appellants have taken benefit of some interim order passed in the appeal, the appellants can withdraw the appeal unconditionally and the appellants have right to withdraw such appeal preferred by them unconditionally. Therefore, the action of the Collector, Junagadh in not permitting the petitioners - original appellants to withdraw Appeal No.2 of 2011 and to modify the earlier interim order, by impugned order dtd. Therefore, the action of the Collector, Junagadh in not permitting the petitioners - original appellants to withdraw Appeal No.2 of 2011 and to modify the earlier interim order, by impugned order dtd. 22/2/2011 cannot sustain and the same deserves to be quashed and set aside. 15. When the appeal itself is to be withdrawn, in that case the interim orders passed in the appeal would automatically go and the same cannot continue. 16. Under the circumstances, present petition is allowed in part. The petitioners - original appellants are permitted to withdraw Appeal No. 2 of 2011 unconditionally as per their earlier application / pursis submitted before the Collector, Junagadh and consequently the Collector, Junagadh is hereby directed to dispose of Appeal No. 2 of 2011 as withdrawn. Since the appeal is withdrawn, all the interim orders passed in the appeal would automatically go and they cannot continue and hence the interim order as well as subsequent modified interim order passed by the Collector, Junagadh Appeal No. 2 of 2011 in dtd. 11/2/2011 also cannot sustain and the same are hereby quashed and set aside. 17. The request of the learned Advocate appearing on behalf of the respective parties to issue certain directions or make some observations with respect to day-to-day affairs and administration of the Municipal Borough deserves consideration, it is reported that against the Resolution of the General Body dtd. 22/1/2011, one of the member – Mr. Rakesh Dadhani, has preferred appeal before the Collector, Junagadh under Section 258 of the Gujarat Municipalities Act and therefore, the Collector, Junagadh can certainly issue appropriate directions in the said appeal in the interest of Municipal Borough and for smooth administration and day-to-day affairs of the Municipal Borough. Even otherwise, independently also the Collector, Junagadh can certainly issue appropriate directions for smooth administration and day-to-day affairs of the Municipal Borough, however, the same shall be only in the public interest and in the interest of Municipal borough and for smooth administration and day-to-day affairs of the Municipal Borough only and the same is not in conflict of any decision of the General Board which is passed by majority. 18. 18. It goes without saying that if the Collector is of the opinion that the resolution passed by the General Board is illegal and/or is not in consonance with the provisions of the Gujarat Municipalities Act or not in the interest of Municipal Borough,in that case also the Collector can certainly issue appropriate directions in exercise of suo-motu powers under Section 258 of the Gujarat Municipalities Act and can pass appropriate order. 19. By this order it may not be construed that any of the powers of the Collector, Junagadh or this Court has precluded the Collector, Junagadh from exercising powers under Section 258 of the Gujarat Municipalities Act. 20. So far as the allegations made by the petitioners against the Respondent No. 1 that after the impugned interim order passed by the Collector, Junagadh, the Respondent No. 1 has made payments illegally to the extent of approximately Rs. 1.36 Crores is concerned, the Collector, Junagadh is hereby directed to look into the same and as agreed by the Learned Advocates appearing on behalf of the respective parties, even he may verify the accounts and payments made by the Respondent No. 1 and/or the Municipal Borough made in the last six months and if he deems fit, he may got it verified / audited by any independent agency also. However, he shall complete the said exercise within a period of four weeks from the date of receipt of the present order. The Respondent No. 1 and office bearers of the Manavadar Municipal Borough are directed to cooperate the learned Collector, Junagadh. It will also be open for the petitioners herein to submit a detailed representation to the Collector, Junagadh with respect to the aforesaid allegations of illegal expenditure of approximately Rs. 1.36 Crores, which shall also be considered by the Collector, in accordance with law and on merits. 21. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. Direct Service is permitted. P P P P P