JUDGMENT - N.P. CHAPALGAONKER, J.:---Petitioner is the President of Jalgaon Municipal Council, a Council established under section 2(6) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. Petitioner is elected as the President of the said Council on 25th November 1997. Section 62 of the Act of 1965 provides that there shall be a Standing Committee and six Subject Committees for 'A' and "B" Class Municipal Councils and if any Council has acquired or established a Transport Undertaking, then an additional Transport Committee. The number of members of each committee is to be determined by the Council. However, it shall not be less than ¼th and more than 1/3rd of the total number of Councillors. Sub-section (2) of section 63 provides that the Collector shall, within seven days of the election of the President under section 51, call a special meeting of the Council for the purpose of determining the number of members of each of the above referred Subject Committees and for holding elections to these Committees in the prescribed manner in accordance with the system of proportional representation by means of the single transferable vote. A meeting called for the purpose is to be presided over by the Collector or any other officer nominated by him. Sub-section (4) of section 63 further provides that the Chairman of every Subjects Committee (other than the Subject Committee of which the Vice-President is to be the ex-officio Chairman), shall be elected by the members of that Committee at the meeting convened under sub-section (2). Thus the Act provides that the number of members of the Subjects Committees shall be determined by the Council, then the Council shall elect the members for each of the Committees by a single transferable vote and after the members are elected, they would elect a President from amongst themselves. 2.Though sub-section (4) of section 63 says that the Chairman of a Subject Committee shall be elected by the members of that Subject Committee in the meeting convened under sub-section (2), a reasonable reading of the whole scheme goes to show that though a special meeting of the Councillors is convened by the Collector for determining the number of seats as well as for electing the members therefor simultaneously, the members so elected after their election, will have to sit together for electing the Chairman from amongst themselves. By the very nature of the function of electing a Chairman, the duty to elect the Chairman is cast on the members elected for that Committee and they will have to constitute themselves into the committee for electing the Chairman. Section 63 provides that the members will elect the Chairman in the meeting convened under sub-section (2) and a reasonable reading would mean that immediately after the election of the members, the Committees will have to meet and elect their Chairmen. 3.Sub-section (3B)(i), which was inserted by the amendment made by the Maharashtra Act No. 4/74 reads as under : "(3B)(i) : If the Council fails to fill up by election any vacancy of a member or members of any of the Subject Committees or if there is failure to elect a member at the fresh election, such vacancy or vacancies may, notwithstanding anything contained in this Chapter, be filled by nomination of a Councillor or Councillors, as the case may be, by the President; (ii) Any Councillors nominated by the President under Clause (i) shall be deemed to be elected under sub-section (2)(b) or section 69, as the case may be." Since the Municipal Council is excepted to function with the help of the Subject Committees and in case the Council fails to elect the members to the Subject Committees, provision is made authorising the President to nominate the members of the Committee and the members nominated by the President are deemed to have been elected under the relevant provisions. 4.The Collector called a special meeting by notice dated 12-12-1997 directing all Councillors elected to remain present at the meeting scheduled to take place on 22-12-1997 at 1 p.m. which was to be presided over by the Sub Divisional Officer, Jalgaon. The members desirous to file the nominations, were directed to do so upto 11 a.m. but neither any member of the Municipal Council filed nomination within the time specified nor any member remained present in the said meeting called for the purpose. The Council has been given a democratic right to elect the members of the Subject Committees and the members of the Committees have been given a right to elect a Chairman. The Council has been given a democratic right to elect the members of the Subject Committees and the members of the Committees have been given a right to elect a Chairman. But the members of the Municipal Council, Jalgaon, by their own inaction, did not exercise this democratic right given to them of determining the number of members of each Committee or electing the members of the Subject Committees and exercising their power under section 63(3-B)(i) of the Act of 1956. The petitioner-President determined the number of members of each Committee as were there last year and nominated the members as per her choice. Since this part of the action of the petitioner-President was not challenged or annulled by the Collector, we refrain from making any observation about the validity of this part of the process. The President did not stop after nominating the members. She absolved the Honourable members nominated from their responsibility and burden of electing their own Chairman and proceeded to nominate Chairman for each of the Subjects Committees. 5.It is the contention of the petitioner that this was done by her in exercise of the statutory powers bestowed upon her. However, it appears that the Collector Jalgaon, respondent No. 2, did not concur with this interpretation and she, by an order dated 12-1-1998, issued a show cause notice to the President saying that though the President has a right to nominate the members for Subjects Committees on failure of the Council, President does not have right to nominate the Chairman of each Subject Committee which will have to be done by the members themselves in the meeting and she, therefore, called upon the President on 19-1-1998 to show as to why the said action be not stayed by exercise of the powers under section 308(1) of the Act of 1965. Petitioner was given hearing and thereafter on 10-2-1998, the Collector, Jalgaon passed an order staying the nomination of the Chairmen of Subjects Committees made by the President of the Municipal Council i.e. the petitioner and calling the special meeting of the Council for electing new Chairman on 19-3-1998. This order of the Collector, Jalgaon dated 10-2-1998 is challenged in this petition. 6.It was vehementally contended before us that the Collector has no jurisdiction to stay a nomination since it is not the act or resolution of the Council. This order of the Collector, Jalgaon dated 10-2-1998 is challenged in this petition. 6.It was vehementally contended before us that the Collector has no jurisdiction to stay a nomination since it is not the act or resolution of the Council. In support of this contention, Shri Bendale, learned Counsel for the petitioner, invited our attention to the judgment of this Court in the case of (Panditrao Daji Kulkarni v. State of Maharashtra )1, 1978 Mh.L.J. 703 wherein it has been held that on account of failure to elect the members of the Subjects Committees, nomination made by the President under section 63(3-B)(i) of the Act of 1965 cannot be interfered by the Collector under section 308 of the Act. The reasoning given by the learned Judges of this Court can be found in para 98 of the said judgment, which reads : "Reading sections 308 and 309 together since the words used in; both these sections take the colour from the content in which they are used, we are of the view that execution of any order or resolution of a Council, or the doing of anything which is about to be done or is being done by or on behalf of a Council, occurring in section 308(1) of the Act read in the light of section 309 must be held to be the execution of any order or the doing of anything which is required to be done by the Council under section 49 "or other provisions" of the Act. We are, therefore, of the view that the act of the President nominating the members of the subjects committees in exercise of his powers under sub-section (3-B)(i) of the Act is not within the four corners of section 308 of the Act." The Division Bench found that the words "Council" occurring in the provisions of sections 308 and 309 cannot be equated with the President and the action of the President nominating the members is not a resolution of or an act which the Council is required to do. Certain other judgments were also cited before us to contend that the powers under section 308 with the Collector are very limited. Certain other judgments were also cited before us to contend that the powers under section 308 with the Collector are very limited. 7.Though Shri A.M. Kanade, learned Government Pleader, contended that the powers entrusted with the Collector under section 308 would also include powers to suspend any nomination made, we do not at present wish to enter into that controversy since it is totally unnecessary for the purposes of this writ petition. We need not examine whether the Collector has a power to interfere into any power exercised by the President under sub-section (3-B)(i) of section 63 of the Act. For the purpose of this writ petition, we may assume that the Collector has no jurisdiction to interfere into the powers exercised by the President, if he is authorised to do certain things under the Act. The question which is required to be decided by us is whether the President had any power under the Statute to nominate the Chairman of various Subjects Committees. If we held that the President had the power, then Collector's interference was not justified but if we found that the President had no power to nominate the Chairmen of different Subjects Committees, then the action of the President becomes void ab-initio and non-est. 8.Power to determine the number of members of each of the Subjects Committees, to elect the members therefor is given to the Council. If the Council fails to exercise its power, then the President has a right to determine these two things but sub-section (4) of section 63, which is quoted below for ready reference, does not authorise even to the Council to elect the Chairman of different Subject Committees. "Section 63(4) : The Chairman of every Subjects Committee (other than the Subjects Committee of which the Vice Chairman is to be the ex-officio Chairman) shall be elected by the members of that Committee at the meeting convened under sub-section (2) : Provided that, no Councillor shall be eligible to be the Chairman of more than one Subjects Committee." It is to be done at the time of the meeting of the Council; but not by the Council. The President can assume the powers which were with the Council in the absence of its exercise by it but the law does not provide for assumption of powers of the members of the Subjects Committee by the President presuming that they will not elect their Chairmen. Shri Bendale, learned Counsel, contended that since the members did not file nominations or remain present for the special meeting for electing members of the Subjects Committees, President can assume the powers not only to nominate them but to nominate a Chairman for each of the Committees. To elect the Chairman is a statutory right given to each member of the Committee. When a statutory right in respect of an election is given to a person or a body of persons, it will have to be exercised by him or them alone. It cannot be delegated to anybody or surrendered. A democratic right can hardly be presumed to have been surrendered since such a presumption would be a negation of the democratic spirit. Such a right given by the Statute cannot be surrendered even by consent. The petitioner has produced before us affidavits of the members of the Municipal Council saying that the action of the President in making nominations and nominating the Chairman of the Subjects Committees is accepted by them and they do not have any objection for it. Any exercise of the power which has no foundation in the Statute, assuming to be by consent of those who are entrusted with that power and also assuming to be for their welfare, is not only undemocratic but is without jurisdiction. This would be the beginning of the end of democracy. Therefore, assuming that no member has got any objection for the appointment of Chairman by the President, that by itself will not legalise the assumption of the power by the President. 9.If the law says that a certain officer will have to be elected by the members from amongst themselves, the members will have to sit together and elect. They may be advised by anybody there but they cannot delegate their powers to somebody unless there is such a delegation embodied in the statute itself. 9.If the law says that a certain officer will have to be elected by the members from amongst themselves, the members will have to sit together and elect. They may be advised by anybody there but they cannot delegate their powers to somebody unless there is such a delegation embodied in the statute itself. 10.Shri Bendale, learned Counsel for the petitioner, submitted before us that it will have to be presumed that the President has power to nominate the Chairmen also since the scheme of the Act is framed in such a fashion that on failure of the Council, the President has to step in and fill up the vaccume so that the function of the Municipal Council is not stopped. We do not accept this submission. The President can assume only those functions which have been permitted by law. If the power is vested in an authority or body of persons, it cannot be taken away by assumption. The Subject Committee, after its election or nomination by the President, would be a separate entity in law and it has to meet, constitute itself and elect President . If something is required to be done in a particular manner, it will have to be done in that way only, particularly when it relates to the democratic right given by the statute. 11.It was also submitted before us that nomination is a better way because by election, proper representation to all sections may not have been there. All arguments against the democracy are veiled in the welfare of the society at large. So long as the democracy has been accepted as the basic principle of the Constitution and a statute governing the functions of a local body has accepted that principle, the local body will have to function in the way as directed by the statute and not otherwise, even for the alleged welfare of the people at large. 12.Section 63 of the Act entrusted a duty on the Collector to call a special meeting of the Council within seven days of the election of the President to determine the number of members of each of the Subjects Committees, for holding elections of the Subjects Committees and sub-section (4) provides that the Chairman of every such Committee is to be elected by the members of that Committee at the meeting convened by the Collector under this provision. If the Council fails to elect Subjects Committees, President can nominate the members but the law does not authorise the President to nominate the Chairman of the Subject Committees, which is solely the right given to the members of the Subjects Committees, either elected or nominated. The law does not provide that on failure of the members of these Committees, the President will nominate the Chairman. Therefore, since the Chairman of the Subjects Committees were not validity elected, the Collector had a duty to recall the meeting under section 63(2) of the Act asking the Council to perform the remaining part of its duty thereby in turn asking the members of the Subjects Committees to elect their Chairman. Since this has to be done in a meeting of the Council which is called under section 63(2), the Collector was perfectly justified in calling the meeting and he has done the same only. It is true that while ordering the Collector has mentioned the exercise of powers under section 308 of the Act. Assuming that the Collector had no jurisdiction to cancel the nominations which the Collector has not in fact done, the Collector had the jurisdiction to call the meeting under section 63(2) of the Act, which he has done and the action is perfectly justifiable. Merely because there is mention of section 308 in the order, the order does not become bad in law. If the jurisdiction is there, mere mention of the wrong section or a wrong source of the power will not invalidate the action, which is otherwise lawful. The Collector has not annulled any action lawfully taken by the President. The nomination of the Chairman of the Subjects Committees by the President is nothing but an act without jurisdiction and as such, in non-est. The Collector has a duty to see that the meeting of the Council is called for the functions mentioned in section 63. Since one of such functions was unperformed, the Collector has rightly recalled the meeting. 13.Since the meeting could not take place because of interim relief in this writ petition, we direct the Collector, Jalgaon to convene a meeting of the Council for the purpose of electing the Chairman of different Subjects Committees by the members so nominated by the petitioner-President. 14.With these directions, writ petition stands summarily rejected. Interim relief stands vacated. 13.Since the meeting could not take place because of interim relief in this writ petition, we direct the Collector, Jalgaon to convene a meeting of the Council for the purpose of electing the Chairman of different Subjects Committees by the members so nominated by the petitioner-President. 14.With these directions, writ petition stands summarily rejected. Interim relief stands vacated. 15.At this stage, Shri Patil, learned Counsel for the petitioner, prays that the operation of this order be stayed for some time with continuation of the interim relief. Considering the facts of this case, we direct the Collector, Jalgaon not to issue the notice of the meeting before 17th April, 1998. Petition rejected. *****