JUDGMENT : DIXIT, J. 1. By this petition under Art. 226 of the Constitution of India the applicant prays for the issue of an order of mandamus to direct the Collector of District Shivpuri to continue and complete an election to Gram Panchayat of Pichhore. 2. The Gram Panchayat of Pichhore is one of the Panchayats constituted under Madhya Bharat Panchayat Act, 1949 (Act No. 58 of 1949), and is composed of members elected in accordance with the provisions of the Paachayat Act and the rules made thereunder. Section 17 of the Act lays down that every Gram Panchayat shall exist for a term of three years and thereafter until a new Panchayat is constituted by a fresh election. Section 9 provides that the election to a Gram Panchayat shall be held by the prescribed authority according to the rules framed under the Act. The Act also contains provisions for the publication of lists of voters in each constituency of the Gram Panchayats. Rule 11 of the Madhya Rharat Panchayat Rules, Samvat 2008 framed under the Act prescribes that the Development Commissioner shall fix the final date for the publication of the lists of voters and when this has been done, it shall be the duty of the Collector to publish the lists at the principal places of the Gram Panchayats at any time during the seven days before the final date fixed by the Commissioner. Sub-Rule 2 of R. 11 provides that at the time of the publication of the list of voters, the Collector shall also inter alia publish and give publicity to (a) the places where objections to the voters list will be entertained and decided, and the places where nomination papers will be accepted; (b) the last date for the filing of the objections to the voters list; (c) the date on which a revised list will be published; (d) the dates for the filing of nomination papers, the scrutiny of nomination papers and the date of poll. The rules first provided that the voting at an election shall be by show of hands. During the pendency of this petition the rule with regard to the method of voting was amended so as to substitute secret ballot for 'show of hands'. The rules first provided that the voting at an election shall be by show of hands. During the pendency of this petition the rule with regard to the method of voting was amended so as to substitute secret ballot for 'show of hands'. Rule 21 empowers the Election Officer to postpone the poll if he has reason to believe that there is a likelihood of a disturbance or 'a breach of the peace" if the election is held on the date appointed for the purpose. The postponement in such an event is to be only up to the date that the Collector may again fix for polling. There is no other provision either in the Act or in the rules empowering any authority to postpone the election. 3. The petitioner, who is a voter in the constituency of Gram Panchayat Picchore, states that in exercise, of the powers vested in him under R. 11, the Collector published the list of voters and also fixed and published inter alia the dates for the receipt of nomination papers, their scrutiny and for the voting. The nomination papers were to be received from 10-12-1955 to 12-12-1955; their scrutiny was to be on 13-12-1955 and the voting for the election of member to the Gram Panchayat Pichhore was to have taken place on 17-12-1955. The petitioner further avers that he proposed one Onkardas as a candidate for the election and that with the date fixed for voting, the Nirwachan Adhikari did not hold any election. These facts are not in dispute. The opponent Collector of Shivpuri did not file any return. The Deputy Secretary, Development Department and the Assistant Director Rural Uplift Shivpuri, however, came to his rescue and filed returns stating that the election was postponed by the Collector under orders of the Government which were received by him on 11-12-1955. In the return submitted by the Deputy Secretary Development Department, it has been said that the Government ordered the postponement of the Gram Panchayat elections throughout the State because it was felt that the method of voting by show of hands was not satisfactory and should be substituted by the method of secret ballot. At this stage, I must express my strong disapproval of the failure of the Collector to submit any return to the petition. At this stage, I must express my strong disapproval of the failure of the Collector to submit any return to the petition. The fact that it was at the instance of the Government that he postponed the election, could not relieve him of the responsibility of filing a return in this petition in obedience to the Court's order. It was his duty to file a return even if he did not postpone the election on his own initiative but on the orders of the Government. He perhaps did not realise that his failure to file a return was by itself an admission of the fact that his action in postponing the election was unsupportable. I will leave the matter by saying that this Court expects any Government officer who is an opponent party to proceedings under Art. 226 to file his return and that such a lapse will not occur in future. 4. Mr. Inamdar learned counsel for the petitioner contended that under the Panchayat Act or the rules made thereunder, the Government had no power whatever to order the postponement of the election after the fixation of the date by the Development Commissioner for the publication of the list of voters and that the Nirwachan Adhikari was not justified in postponing the election on a ground which did not fall under R. 21. The Government claims that in the exercise of its executive authority it had the power to postpone the election. The question that, therefore, arises is of the extent and scope of the executive authority of the State, and in particular it is whether the Government can direct the postponement of an election after the Development Commissioner and the Collector have taken steps under R. 11. I do not feel any doubt that the Government has no such power. It is quite true that the Constitution does not give any definition of the executive function or authority of the States. And indeed it is not possible to define as to what the executive function is and what activities fall within its scope, when the activities of a Government are now not confined to the regulatory, policing and revenue fields, but extend to economic and social fronts, which have become the major concern of Governments. And indeed it is not possible to define as to what the executive function is and what activities fall within its scope, when the activities of a Government are now not confined to the regulatory, policing and revenue fields, but extend to economic and social fronts, which have become the major concern of Governments. The absence of any definition in the Constitution of the executive power of a State does not, however, mean that it is unbridled and without any limit like the power of the Great Mogul. There are provisions in the Constitution for the distribution of the executive power between the Union and the States, as also provisions dealing with the 'extensible limit of the executive authority and with the limitations on it. Article 162 says : "Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws : Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof." This article provides an extensible limit of the executive power of a State. The proviso to Art. 162 puts limitations on the executive power of a State. The executive power of a State is not confined to matters over which legislation has already been enacted; it extends to matters upon which the State Legislature is competent to legislate. Article 298 extends the executive power of each State to the grant, sale disposition or mortgage of any property held for the purposes of the State and to the purchase or acquisition of property for those purposes and to the making of contracts. This Article and Arts. 73, 154 and 298 deal with the distribution of the executive power between the Union and the States. They do not define the executive authority of a State. The question as to what is the extent and scope of the executive authority of a State need not detain us. For whatever it may be, this much is very clear that it can never be exercised contrary to the provisions of the Constitution or of any law. They do not define the executive authority of a State. The question as to what is the extent and scope of the executive authority of a State need not detain us. For whatever it may be, this much is very clear that it can never be exercised contrary to the provisions of the Constitution or of any law. Article 154 makes this clear when after providing that the executive power of the State shall be vested in the Governor or the Rajpramukh as the case may be, and that it shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution, further says that the vesting of the executive power of the State in the Governor or the Rajpramukh shall not be deemed to transfer to the head of the State any functions conferred by any existing law on any authority, or to prevent Parliament or the State Legislature from conferring by law functions on any authority subordinate to the Governor or the Rajpramukh, as the case may be. The effect of Art. 154(2) is that if a law confers on any authority subordinate to the Government any functions, the Government cannot directly or indirectly claim to exercise those functions as a part of its executive authority. 5. I need not expatiate on the question of the scope and extent of the executive power of a State. For, there is now an authoritative pronouncement of the Supreme Court on the matter In- 'Ram Jawaya v. State of Punjab', 1955 SC 549 ((S) AIR V. 42) (A), after referring to Arts. 73 and 162, the Supreme Court observed : "Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the State on the other. They do not mean as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function, in respect of them. They do not mean as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function, in respect of them. On the other hand, the language of Art. 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The Same principle underlies Art. 73 of the Constitution." It was further observed : "It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the Legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Art. 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws. The limits within which the executive Government can function under the Indian Constitution can be ascertained without any difficulty by reference to the form of the executive which our Constitution has set up. The limits within which the executive Government can function under the Indian Constitution can be ascertained without any difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State." In my view the above observations of the Supreme Court make it amply plain that the executive power of the State can never be exercised in a manner inconsistent with the provisions of the Constitution or of any law and that if an executive function is conferred by any law on an authority subordinate to the Government, that Government cannot claim to exercise any executive authority in respect of that function so as to change or add to the law. 6. From the relevant provisions of the Panchayat Act and the rules thereunder, (which are a part of the law) referred to earlier in the judgment, it is obvious that the function and duty of fixing the final date for the publication and of taking steps for the holding of the election to Gram Panchayats have been conferred on the Development Commissioner, the Collector and the Nirwachan Adhikari. Whatever may, therefore, be, the power of the Government to control the discretion of the Development Commissioner in deciding upon a date for the publication of the voters list, once the date is fixed by the Development Commissioner, then the Government has no power to interfere by executive action with tire duties and functions the Collector and the Nirwachan Adhikari are required to discharge under R. 11 for the holding of the election. Neither the Act nor the rules thereunder give any power to the Government to stop the election after the Development Commissioner has nominated a date for the publication of the voters list. Neither the Act nor the rules thereunder give any power to the Government to stop the election after the Development Commissioner has nominated a date for the publication of the voters list. It is only the Nirwachan Adhikari who is empowered to postpone the election on the grounds stated in R. 21. But in the present case the election in question was not postponed by the Nirwachan Adhikari in exercise of his powers under R. 21. It was postponed because of a directive of the Government, which was clearly beyond the scope of the executive power. This petition must, therefore, be granted; and as the election was stopped even before the expiry of the last date fixed by the Collector for the receipt of nomination papers, the Collector of Shivpuri must be directed to fix fresh dates for the receipt of nomination papers, their scrutiny and for polling and to proceed with, the election to the Pichhore Gram Panchayat. 7. This petition was first heard on 12-3-1956. At the conclusion of the hearing we reserved our orders. On 13-3-1956 Mr. Inamdar learned counsel for the petitioner made an application bringing to our notice the fact that during the pendency of this petition, the Government had amended the rule with regard to the method of voting so as to introduce secret ballot in the elections to Gram Panchayats. Learned counsel also stated that the amendment was mala fide and was intended to postpone the elections for a long time until all the requisite steps for the adoption of this method of voting were perfected and completed. The petition was, therefore, posted for further hearing. The learned Advocate General who appeared when this petition was heard again, frankly conceded that the action of the Government in postponing the election in question was outside the scope of the executive authority of the State. The petition was, therefore, posted for further hearing. The learned Advocate General who appeared when this petition was heard again, frankly conceded that the action of the Government in postponing the election in question was outside the scope of the executive authority of the State. He, however, said that the amendment made in the rule as regards the method of voting was not mala fide but one made to secure the election to Gram Panchayats in a manner free from influence and pressure and according to the accepted method of voting in a democratic set up; that the amendment in no way involved the postponement ad infinitum of the election to the Gram Panchayat Pichhore and that if six weeks time were given by this Court for the holding of the election the Government would be in a position to hold the election with secret ballot as the method of voting. On this statement being made, learned counsel for the petitioner rightly did not pursue the question of the mala fides of the Government in amending the rule during the pendency of this petition and of the applicability of the rule to the present case. 8. In the result I would accept this petition and issue an order of mandamus to the Collector of Shivpuri directing him to fix fresh dates for the receipt of nomination papers, their scrutiny and for polling and to complete the election on or before 15-5-1956. The opponent shall pay to the applicant costs of this petition. Counsel fee is fixed at Rs. 75/-. 9. A.H. KHAN, J. :- In this case the facts of which have been elaborately set forth, by my learned brother, the point to be considered is whether under a constitutional government, the Executive possesses unlimited power. 10. It is indeed very difficult to define the whole array of powers which the Executive may possess, but one thing can be said without fear of contradiction. In a country which has a written constitution and where the pattern of government is democratic (and such is our country) the one outstanding feature of it is the supremacy of law in the realm, commonly known as the Rule of law. In a country which has a written constitution and where the pattern of government is democratic (and such is our country) the one outstanding feature of it is the supremacy of law in the realm, commonly known as the Rule of law. The term Rule of law in brief connotes the undisputed supremacy of law and envisages a state of things in which every one respects the law and where law has to be followed by every one collectively and individually. This supremacy of law is designed to give security to the rights of individuals who are the citizens of a democratic State. 11. Without attempting to define the ambit of executive function, and relying upon a passage occurring in the judgment of the Supreme Court 1955 SC 549 ((S) AIR V 42) (A), that "the Executive Government can never go against the provisions of the Constitution Or of any law", I venture to suggest that their Lordships of the Supreme Court in other words have emphasised the supremacy of law. It being so, in the instant case without there being any provision in the Madhya Bharat Panchayat Act (Act No. 58 of 1954) to arrest the progress of an election once it has started, I am afraid the Government merely by an executive fiat cannot do what it has no power to do. Where law has been enacted upon a subject, that law must be followed by the citizens as well us the State. A transgression by any one, whether it be the State or the individual, destroys the very fabric of which democracy is made, and, is to say the least of it, undesirable. 12. With the addition of these remarks, I agree with my learned brother that mandamus should go to the Collector in the terms proposed by him. Petition allowed.