JUDGMENT
R.J. Shah, J.
1. This Letters Patent Appeal arises under the following circumstances:
Appellant-petitioner was serving as a Chief Officer of Bharuch Nagarpalika since 1972. Petitioner vide his letter dated 3-8-1988, Annexure ‘D’ to the petition, had asked for permission to retire with effect from 5-9-1988 and to proceed on leave for the period from 4-8-1988 to 4-9-1988. The President of the Municipality made an endorsement on the said letter to the effect that in anticipation of the approval of the general body, the application for leave was sanctioned and further directed that the charge in respect of the leave period should be entrusted to one J. C. Dorawala, who was working as the Secretary of the Municipality. Thereafter, the petitioner wrote another letter dated 8-8-1988, Annexure ‘F’, to the President of the Nagarpalika wherein he had sought to withdraw his aforesaid letter dated 3-8-1988 in which he had prayed for earlier retirement, as stated above. He also gave an intimation that he had cancelled his leave with effect from 10-8-1988 and that he would resume office from that day. The petitioner thereafter wrote a further letter dated 10-8-1988, Annexure ‘G’, wherein he had stated that he would not be able to resume duty on 10-8-1988, but would do so from 17-8-1988.
2. It transpired that respondent No. 3 herein had moved the respondent No. 2 under Section 258 of the Gujarat Municipalities Act, 1963 (hereinafter referred to. as “the Act” for short)’ on 16-8-1988 and the respondent No. 2 passed an order thereon, directing the President not to permit the petitioner to discharge his functions as a Chief Officer and the hearing of the said appeal was fixed on 22-8-1988. On 17-8-1988, it appears that the respondent No. 2 passed another order, Annexure ‘A’, whereunder he has stated that the petitioner had remained present for duty on 16-8-1988 and, therefore, his absence from duty from 4-8-1988 to 15-8-1988 be treated as leave preparatory to retirement and to restore the position as if the petitioner had gone on leave preparatory to retirement prior to 16-8-1988.
3. Amongst other things, in the aforesaid letter dated 16-8-1988, Annexure ‘A’, the following has been stated :
Learned Advocate for the appellant has been heard regarding the contents, Chief Officer Harendra Pandya has been alleged to be guilty of many accusement in the appeal memo. The allegations are of serious nature. Prior to this, there were orders issued to investigate into the matter of former such applications, whereof investigation is held. For this reason, the record may be affected of illegal improvements if it is not prevented and it may perhaps more be spoiled likewise. So, it is necessary to prevent the spoiling and illegal process of defacing the record. On this ground, I, D. Jagadish Pandian, I.A.S. Collector of Bharuch District, order to respondent No. 1 not to allow the respondent No. 2 on his duty in the office till further orders from this office.
4. Since it came to the notice of respondent No. 2 that inspite of the above order passed on 16-8-1988 as per Annexure ‘A’ the petitioner had reported on duty in the office on 16-8-1988, respondent No. 2 thought it fit on 17-8-1988 to pass a further order wherein inter alia it has been provided as under:
So, it is directed to opponent Nos. 1 and 2 to maintain the position as before to 16-8-1988, meaning thereby that Mr. H.R. Pandya who was on pre-retirement leave between 4-8-1988 to 15-8-1988 should be so maintained by both of you. The position be restored accordingly.
It is further directed to do needful in accordance with Section 48 of the Gujarat Municipalities Act, if necessary. The hearing of this matter is fixed on 22-8-1988 at 16-00 P.M. You are requested to remain present on the day and time of the hearing.
This letter dated 17-8-1988 was addressed to the President of the said Nagarpalika.
5. The petitioner had, therefore, challenged in his petition the competence of the Collector to entertain the said application filed by present respondent No. 3 and the validity and legality of the orders dated 16-8-1988 and 17-8-1988 passed by the respondent No. 2, as also the validity and legality of the two letters written by the President of the Bharuch Municipality to the petitioner, which were at Annexures ‘C’ & ‘I’ respectively to the petition. As said above, the aforesaid orders were passed by respondent No. 2 under Section 258(1) of the said Act. The said provision reads as under:
258(1) If, in the opinion of the Collector, the execution of any order or resolution of a Municipality, or the doing of anything which is about to be done or is being done by or on behalf of a Municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the Municipality is already commenced or completed direct the Municipality to restore the position in which it was before the commencement of the work.
(2) When the Collector makes any order under this section he shall forthwith forward to the Municipality affected thereby a copy of the order with a statement of the reasons for making it and also submit a report to the State Government along with copies of such order and statement.
(3) Against the order made by the Collector under Sub-section (1), the Municipality may prefer an appeal to the State Government within thirty days from the date on which it receives a copy of the order. The State Government may on such appeal being preferred rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force, with or without modification, permanently or for such period as it may specify:
Provided that the order shall not be revised, modified or confirmed by the State Government without giving the Municipality reasonable opportunity of showing cause against the order.
On a plain reading of Section 258(1), it is apparent that if in the opinion of the Collector the execution of any order or a resolution of a Municipality or the doing of anything which is about to be done or is being done by or on behalf of a Municipality, is causing or is likely to cause injury or annoyance to the public or to lead to breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof; and where the execution of any work in pursuance of the order or resolution of the Municipality is already commenced or completed direct the Municipality to restore the position in which it was before the commencement of the work, then he has the authority under this provision to order in writing under his signature with a view to suspend the execution or prohibit the doing thereof. It would prima facie seem that respondent No. 2 had exercised this power under Section 258(1) as, in his opinion, what was about to be done was unlawful and so he had, addressed the aforesaid letter dated 16-8-1988. We are unable “to appreciate the submission of Mr. Vakharia in this connection to the effect that respondent No. 2 had no authority to act under Section 258(1) of the Act. It is further to be noted that when the Collector found that before the order passed by him on 16-8-1988 could be communicated to the petitioner, the petitioner had resumed his office despite the fact that he had written a letter seeking permission to retire and also despite the fact that he had asked for leave preparatory to retirement which leave was sanctioned by the President as per the said endorsement on the said letter dated 3-8-1988 written by the petitioner to the President, respondent No. 2 passed another order dated 17-8-1988 wherein he has stated to the effect that ‘status quo ante’ has to be restored and that the petitioner should be prohibited from resuming office as Chief Officer. The aforesaid second order also has been challenged by Mr. Vakharia on the ground that the said order is also without jurisdiction and that respondent No. 2 had become functus officio after he had passed the aforesaid first order. We are unable to accept this submission of Mr. Vakharia also for the simple reason that the provision contained in Section 258(1) clearly authorises the respondent No. 2 to pass the second order also. A clear power, it appears, has been provided for in the said sub-section with a view to see that the order passed by the Collector initially does not get frustrated in circumstances such as the present. We are unable to accept the submission of Mr. Vakharia that despite the said provision as contained in Section 258(1), the respondent No. 2 has become functus officio after he passed the first order.
6. Furthermore, the aforesaid Section 258(1) clearly provides that not only an order or a resolution passed by the Municipality, but also the act which is either being done or which is about to be done can be challenged before the Collector, if it satisfies the requirements of Section 258(1). Therefore, if it is brought to the notice of the respondent No. 2 that the action of the Municipality or the act which is about to be done is unlawful, respondent No. 2 can certainly entertain such an application and pass an appropriate order, if he is satisfied in the facts and circumstances of the case. We are, therefore, unable to agree with the submission of Mr. Vakharia that both or either of the said orders passed by the respondent No. 2 are or is without jurisdiction.
7. It was next submitted by Mr. Vakharia that the aforesaid first order passed under Section 258(1) was a final order and since the said Section does not provide for any interim order to be passed, respondent No. 2 has become functus officio and, therefore, could not have passed the second order. We are unable to appreciate this submission also. What respondent No. 2 had done on the presentation of the application was to pass an order which he intended should come into operation immediately and had also ordered in the same order that the hearing of the matter should be fixed on 22-8-1988. This was obviously with an intention that the first order was being passed against the petitioner when the petitioner was not available and on the allegation made before the respondent No. 2 by the applicant, namely, respondent No. 3 herein. Respondent No. 2, therefore, wanted to give an opportunity to the petitioner to appear before him on that day and to hear regarding the contents of the application and regarding the grounds on which the petitioner would like to object against the said order passed.
8. The aforesaid two orders, therefore, in our opinion are ex parte interim orders and there is nothing wrong in providing an opportunity to the petitioner by fixing the hearing on 22-8-1988 so that the petitioner could be heard regarding the said orders which were against him. In our view, the learned single Judge has rightly observed that on a reasonable construction of the Section, it must be held that the Collector is given such power and if the Collector is given such power to prohibit the Municipality from doing any unlawful act, then to make that power really effective, power to make interim order will have to be conceded to him. If it were to be accepted that the Collector can pass an order only after issuing a notice to the Municipality and hearing it, then in a given case the Collector may not be able to take effective steps and prevent the Municipality from committing an unlawful act. The learned single Judge was, therefore, right in holding that in order to achieve the object of the aforesaid provision, it must be held that the Collector has power under Section 258(1) of the said Act to pass even interim orders, which are of prohibitory character. Thus, even from this angle, the submission, made by Mr. Vakharia in this connection does not seem to be well-founded.
9. The said application made by respondent No. 3 before the Collector, being Municipal Application No. 10 of 1988, was at Annexure ‘H’ to the petition, and the same has been annexed with the present Letters Patent Appeal also. Amongst other things, it has been stated in the said application in paragraph 8 as under:
8. It is for the first time that a Municipal member one Shri Govindbhai R. Patel has filed an application before this office on or about, 1st August 1988. It is gathered that similar application was also filed by the said Shri Govindbhai R. Patel before the opponent No. 1, enlisting about (nine) 9 irregularities and defaults committed by opponent No. 2. The said application was put on agenda at item No. 48 in the meeting to be held on 9-8-1988. In the mean while, this applicant has come to know that your goodself was pleased to order to institute an inquiry into the matter of allegations mentioned in the said application. In the meeting convened on 9-8-1988, the Nagarpalika has passed a resolution to the effect that since your goodself has ordered an inquiry to be conducted by the Assistant Collector, Bharuch, no further action should be taken by the Nagarpalika.
9. owever, the opponent No. 2 Shri Pandya having come to know about the filing of the aforesaid application dated 1-8-1988, and probably being fully aware of the consequences thereof submitted his resignation in his own hand-writing dated 3-8-1988. The opponent No. 1, the President of the Municipality, has accepted his resignation in anticipation of approval of the Board of the Nagarpalika and sanctioned his leave for one month. He also ordered below the said application that the opponent No. 2 should hand over his charge to Shri J.G. Dhorawala, who is working as the Secretary of the Nagarpalika.
10. This applicant respectfully submits that the nine (9) points and allegations made against opponent No. 2 by Shri Govindbhai R. Patel may also be read as part and parcel of this application.
11. This applicant in furtherance of the above nfne (9) points begs to bring Your Honour’s kind notice the following points for taking suitable actions against both the opponents and the Nagarpalika. They are as under:
: Points :
(1) to (12)
(13) On the circumstances mentioned above, if the opponent No. 2 is allowed to withdraw his application for premature retirement and if he is allowed to resume his duty, with effect from dated the 17-8-1988, it is likely to cause great and irreparable injury to the poor town of Bharuch and its citizens and he is further likely to carry on unlawful, illegal, negligent and irresponsible functions. It is respectfully but forcefully submitted that in the best interest of city and citizens, sooner the opponent No. 2 is relieved better it is for all. It is further apprehended that if he is allowed to resume his service, he is likely to tamper with the Municipal records.
We are not concerned about the truth or otherwise of the several allegations made in the application; but respondent No. 2 to whom such an application was addressed, has power to reach his own conclusion and form his own opinion as authorised by Section 258(1) in view of the facts narrated in that application. It cannot, therefore, be said that respondent No. 2 despite Section 258(1) could not pass the orders in question, as he had no jurisdiction. It is precisely for such and other contingencies as narrated in Section 258(1) that the Collector is authorised to pass such orders as he thinks fit, if, in his opinion, the same are necessary. The submissions made by Mr. Vakharia in this connection are, therefore, without foundation.
10. Mr. Vakhana also relied on the decisions in the case of Subhash Chandra and Ors. v. Municipal Corporation of Delhi and Anr. and the case of Municipal Board, Kannauj v. The State of U.P. . Both these decisions were also referred to and cited before the learned single Judge. The same have been considered by him in the order in question. We do not find that the reasoning and the conclusion that the learned single Judge has arrived at in connection with both the aforesaid decisions is such that calls for any interference at our hands. We fully eadorse the said reasoning and conclusion arrived at by the learned single Judge. NO other points were urged before us. For all the aforesaid reasons, we see no substance in this Letters Patent Appeal. The same is, therefore, summarily dismissed, with a direction that the said hearing which was fixed on 22-8-1988 shall now take place before the same authority on 18-10-1988. Petitioner is directed to remain present before the said authority accordingly. Interim relief stands vacated subject to the aforesaid.