SHIV DAYAL, J. :- This petition under Article 226 of the Constitution challenges the rejection of the petitioner's nomination paper which was filed to contest the election to the Gram Panchayat Budhara under the MPPanchayats Act, 1962, hereinafter called 'the Act'.

2. The election of Panchas to the Gram Panchayat Budhara was to be held on May 20, 1970. The petitioner Mata Prasad and respondent No. 3, Munshi Singh, submitted nomination papers. On the date of scrutiny of nomination papers. an objection was raised by the respondent No. 2. Udaisingh, to the effect that the petitioner owed more than Rs. 400/-in connection with the construction work which meant that he had not repaid the amount up to that date. The amount had been given to him in the capacity of Sarpanch of the Gram Panchayat. The petitioner contended that the amount was not due in respect of panchayat tax. However the Nirwachan Adhikari (Election Officer) respondent No. 1 accepted the objection and rejected the petitioner's nomination paper.

3. It was first contended for the petitioner that no tax was due by the petitioner. He relied on letter dated December 3, 1969 of the Sub-Divisional Officer. But this averment was controverted in the return filed by the Nirwachan Adhikari who stated that the final order of the Sub-Divisional Officer confirmed the order of recovery of the amount. We do not go into the question of facts of this nature when there is a remedy of election petition available to the petitioner to canvass such disputes.

4. However, the other contention of the petitioner is that assuming that the petitioner owed an amount which he had received as Sarpanch of the Gram Panchayat in connection with the construction of a well as alleged by the objector, and had not repaid that amount, it entailed no disqualification within the meaning of Section 17 (1) of the Act. The Nirwachan Adhikari, in his order rejecting the nomination paper, did not specify the clause which he thought applied to the case. He merely mentioned Section 17 of the Act holding that instead of spending the amount of Rs. 400/-received by him in the construction of a public well, he misappropriated the amount in the construction of his own well.

5. The learned Additional Government Advocate relies on clause (e) of Section 17 (2) of the Act. In our opinion, sub-section (2) of Section 17 does not apply as we shall presently show. Alternatively, reliance is placed on clause (i) of Section 17 (11 of the Act. It will be useful to reproduce both the clauses which read as follows :-

"17. Disqualifications for being Panch, Sarpanch or Up-Sarpanch of Gram Panchayat. -

(1) No person shall be eligible to be a Panch, Sarpanch or an Up-Sarpanch of a Gram Panchayat who -

(h) ............ or

(i) has not paid all taxes due by him to the Gram Panchayat at the end of the financial year immediately preceding that in which the election is held or co-option or appointment is made in spite of a demand notice of not less than thirty days made therefor........."

(2) If a Panch or a Sarpanch or an Up-Sarpanch of a Gram Panchayat having been elected appointed or co-opted.

(e) fails to pay any arrears of any kind due by him to the Gram Panchayat in spite of a demand notice of not less than thirty days made therefor; he shall, subject to the provisions of subsection (3). cease to be a Panch or Sarpanch or an Up-Sarpanch and his office shall become vacant." (Underlining is ours.)

6. A plain reading of sub-sec. (2) of Section 17 of the Act leaves no manner of doubt that that sub-section speaks of disqualification which is incurred by a Panch who has been elected; and the consequence is that he ceases to be a Panch. It is only sub-section (1) which enumerates the disqualifications which disentitle a person to be elected as a Panch. Sarpanch or an Up-Sarpanch. In other words, if any of the clauses under sub-section (1) of Section 17 applies to a person, he is ineligible to be a Panch, while if any of the clauses under subsect