JUDGMENT : G.K. Misra, C.J. - Facts may be stated in short. The dates of filing of nominations and of scrutiny of the nomination papers for the office of the Chairman of the Nuagaon Panchayat Samiti in the district of Puri were respectively fixed for 26th of December 1970 and 29th of December 1970. The Petitioner's nomination was rejected on 29-12-1970 by the Election Officer by his order (Annexure 3) on the ground that his name was not in the Assembly electoral roll. The Assembly electoral roll was published on 15th of January 1970 and admittedly it did not contain the Petitioner's name. The electoral roll of the Grama Panchayat was published on 1st of May 1970 under Rule 8 of the Orissa Grama Panchayat Election Rules, 1965 wherein the Petitioner's name occurs. In July 1970 the Petitioner was elected as Sarpanch of the Berhuanbari Grama Panchayat. He was also the Sarpanch in the previous term. His case is that though his name did not find place in the Assembly electoral roll, yet he was eligible to contest the election for the office of the Chairman of the Panchayat Samiti inasmuch as he was a Sarpanch by the date of the filing of the Domination. Contesting opposite parties have filed counter affidavits asserting that the nomination of the Petitioner was rightly rejected during scrutiny as his name did not occur in the Assembly electoral roll and he was not duly elected as a Sarpanch of Berhuanbari Grama Panchayat. The writ application has been filed under Articles 226 and 227 of the Constitution to quash the impugned order (Annexure 3) whereby the Petitioner's nomination was rejected. 2. The only question for consideration is whether the Petitioner's nomination was illegally rejected. 3. Section 16(3)(0a) of the Orissa Panchayat Samiti Act, 1959 (hereinafter to be referred to as the Act) runs thus: The members of all the Grama Panchayats within the jurisdiction of the Samiti shall, in the prescribed manner, elect the Chairman of the Samiti from among persons who are elected as or are eligible to be elected as members of any such Grama Panchayat: The proviso is not relevant. 4. Rules 5 and 7 of the Orissa Panchayat Samiti (Conduct of Election) Rules, 1970 (hereinafter to be referred as the Rules) are extracted hereunder: 5. 4. Rules 5 and 7 of the Orissa Panchayat Samiti (Conduct of Election) Rules, 1970 (hereinafter to be referred as the Rules) are extracted hereunder: 5. No person shall be eligible to stand as a candidate for the office of Chairman of the Panchayat Samiti unless his name finds place in the electoral roll of the Gram as within the jurisdiction of the Block. No person shall be eligible to be either the propose or the seconded of a candidate for the office of the Chairman, Panchayat Samiti unless he is a member of the Grama Panchayat within the jurisdiction of the Block. "7. The Election Officer shall, at the appointed time date and place receive nomination papers separately for the office of the Chairman of Panchayat Samiti in the form prescribed in Schedule II. He shall then scrutinise the nomination papers at the appointed time, date and place in the presence of the candidates, their proposes and secondary, (sic) any, who may be present.,If he finds that the candidates are duly qualified in accordance with the provisions of Clause (a) of Sub-section (3) of Section 16 of the Act and not disqualified under any of the clauses of Section 45 of the Act, he shall approve their candidature. Objections, if any, filed in the course of scrutiny shall be enquired into summarily by the Election Officer and his decision accepting or rejecting the nomination papers shall be endorsed on the body of the nomination papers with reasons for the decision. It would be clear from Rule 5 that no person shall be eligible to stand as a candidate for the office of the Chairman of the Panchayat Samiti unless his name finds place in the electoral roll of the Gramas within the jurisdiction of the Block. A question is, therefore, to be answered as to what is the electoral roll of the Gramas ? Under Rule 7 the Election Officer is to determine whether the candidates are duly qualified in accordance with the provisions of Section 16(3)(a) of the Act. We are not concerned with disqualifications under any of the clauses of Section 45 of the Act. 5. What Mr. Under Rule 7 the Election Officer is to determine whether the candidates are duly qualified in accordance with the provisions of Section 16(3)(a) of the Act. We are not concerned with disqualifications under any of the clauses of Section 45 of the Act. 5. What Mr. Rath contends is that the Petitioner having been elected & the Sarpanch of the Berhuanbari Grama Panchayat the Election Officer should have found that he is duly qualified in accordance with Section 16(3)(a) of the Act and he should have further held that the Petitioner's name being in the electoral roll of the Gramas he was eligible to stand as a candidate for the office of the Chairman of the Panchayat Samiti even though his name does not occur in the Assembly electoral roll. 6. The questions to be answered may be formulated thus: (i) Is a person who is either elected as or is eligible to be elected as a member of any such Grama Panchayat eligible to be Chairman of the Panchayat Samiti even though his Dame does not occur in the Assembly electoral roll though it finds place in the electoral roll of the Gramas? (ii) Assuming that a person cannot be elected as Sarpanch unless his name finds place in the Assembly electoral roll, is he ineligible for the Chairmanship of the Panchayat Samiti so long as he does not case to be a Sarpanch? 7. In Mangaraj alias Mangaraj Senapati v. Election Officer-cum S.D.O. Sadar. Sambalpur and Ors. 1971 (I) C.W.R. 433 a Bench of this Court after examining Sections 4(1), 8, 9 and 10(1) of the Orissa Grama Panchayat Act, 1964 (hereinafter to be referred to as the Panchayat Act) held that a person whose Dame was in the electoral roll of the Assembly constituency so far it related to the Grama was eligible on that basis to be elected as a member of the Grama Panchayat even though his name did not find place in the electoral roll of the Grama prepared on the basis of the Assembly electoral roll. It is not necessary to repeat the analysis given in that decision. It is not necessary to repeat the analysis given in that decision. It would be sufficient to say that the Assembly electoral non constitutes the foundation of the electoral roll prepared for the Grama and if the name does not find place in the Assembly electoral roll ineligibility would accrue even though the name is in the electoral non of the Grama. On the other band, if the name finds place in the Assembly electoral roll but not in the electoral non of the Grama the person would be eligible for election as a member of the Grama Panchayat or as a Sarpanch. The preparation of the Electoral roll of the Grama is anymore to the Assembly electoral roll. Existence of the name in the Assembly Electoral roll is, therefore, mandatory. Section 25(1) of the Panchayat Act prescribes the disqualification for the membership of the Grama. Panchayat. Section 25(1)(b) lays down that a person shall be disqualified for being elected or nominated as Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he is not on the electoral roll in respect of the Grama or of the ward, as the case may be. Ordinarily the name of the candidate ought to find place both in the Assembly electoral roll and the electoral roll of the Grama which is prepared in accordance with the Assembly electoral roll. The disqualification u/s 25(1)(b) would accrue if the name is not in the Assembly electoral roll though it exists in the electoral roll of the Grama but not vice versa. Section 16(3)(a) of the Panchayat Act prescribes that a Sarpanch or any other member of a Grama panchyat shall be disqualified to continue and shall cease to be a member if he incurs a disqualification u/s 25(1)(b). The word ?incurs' used in the sub-section appears to refer to a disqualification arising subsequent to the Election. This would be clear if we read it in conjunction with Section 31 to 39 of that Act. If there is a disqualification prior to the Election the same should be taken up for declaring the Election to be void under these provisions. Where, however, the disqualification is incurred subsequent to the election the procedure for giving effect to such disqualification is prescribed in Section 26. If there is a disqualification prior to the Election the same should be taken up for declaring the Election to be void under these provisions. Where, however, the disqualification is incurred subsequent to the election the procedure for giving effect to such disqualification is prescribed in Section 26. Even under that section only a limited class of persons are entitled to apply to the Collector for giving effect to the disqualification u/s 26(1) of that Act. It prescribes that whenever it is alleged that any Sarpanch or Naib-Sarpanch or any other member is or has become disqualified or whenever any such person is himself in doubt whether or not he is or has become so disqualified such person or any other member, may, and the Sarpanch at the request of the Grama Panchayat shall apply to the Collector for a decision on the allegation or doubt. It is thus apparent that only the Sarpanch or Naib-Sarpanch or & any other member of the Grama Panchayat can request the Collector to give effect to the disqualification. The user of the verb is in Section 26(1) is capable of a construction that it refers to a disqualification existing prior to the Election but such a construction cannot be entertained as it would result in two alternative remedies being available for questioning the disqualification prior to the Election. One remedy is through an election petition before a Munsif and the other remedy is by way of an application to the Collector u/s 26(1). Both are not equally efficacious. We would therefore, construe the expression is or has become in Section 26(1) 813 referring to a disqualification arising subsequent to the election. In this case the Petitioner's disqualification was not incurred subsequent to his Election as a Sarpanch but existed prior to it as his name did not find place in the Assembly electoral roll. Moreover, opposite party No. 3 is not a member of the Berbuanbari Grama Panchayat. He was not entitled to challenge the Election of the Petitioner as a Sarpanch to that Grama Panchayat either u/s 26(1) or by way of an Election petition. 8. The cause of action of opposite party No. 3 to question the election of the Petitioner as a Sarpanch of the Berhuanbari Grama panchayat arose by virtue of his contest to the Chairmanship of the Panchayat Samiti of Nuagaon. 8. The cause of action of opposite party No. 3 to question the election of the Petitioner as a Sarpanch of the Berhuanbari Grama panchayat arose by virtue of his contest to the Chairmanship of the Panchayat Samiti of Nuagaon. It is now concluded by Nityananda Panda v. Raghunath Padhi and Ors. 28 C.L.T. 446 that in connection with the Election of the Chairman of the Panchayat Samiti opposite party No. 3 can question the legality of the election of the Petitioner as the Sarpanch of the Berhuanbari Grama Panchayat. In the aforesaid case a similar argument was advanced in connection with the Orissa Zilla Parishad (Conduct of Election, Dispute and Decision about Disqualification of Members) Rules, 1960 and was negatived. The pertinent observation occurs in paragraph 5 as follows: The Election Commissioner had full jurisdiction to determine whether Gopinath Naik was disqualified from proposing the nomination as he holds an office of profit under the State. But this finding is not conclusive for removing him from the Sarpanchship under the Grama Panchayat Act until he was been so removed in accordance with Rule 35 of the Grama Panchayat Rules. This answer was given with reference to the following argument: Mr. Panda's argument is that Gopinath Naik has not been removed from the Sarpanchship by the State Government under Rule 35, and until such removal is effected he validly continues as Sarpanch despite his holding an office of profit as a teacher as there is no provision in the Zilla Parishad Act or Rules giving jurisdiction to the Election Commissioner to declare his continuance as Sarpanch illegal. Their Lordships observed that it is true that the Zilla Parish ad Act and Rules make no clear provision for removal of a Sarpanch; but the Election Commissioner has jurisdiction to examine whether the nomination is made by a person entitled to nominate Reliance was placed for the aforesaid conclusion on the observations of Lord Esher, M. R. in Bunbury v. Fuller (1888) 21 Q.B.D. 313. This decision was followed by another Bench in Banchhanidhi Samantasimhar v. Panchanan Pradhan and 2 Ors. 52. C.L.T. 8. The identical principle is applicable to this case. Doubtless there is no provision in the Act for disqualifying a Sarpanch on account of non-existence of his name in the Assembly electoral roll. This decision was followed by another Bench in Banchhanidhi Samantasimhar v. Panchanan Pradhan and 2 Ors. 52. C.L.T. 8. The identical principle is applicable to this case. Doubtless there is no provision in the Act for disqualifying a Sarpanch on account of non-existence of his name in the Assembly electoral roll. But it lies within the jurisdiction of the Election Officer to examine whether the Sarpanch was elected in accordance with law 80 as to contest for the Chairmanship of the panchayat Samiti on the basis that he was a Sarpanch. 9. The same conclusion is also reached by analysis of Section 16(3)(80) of the Act. It says down that the Chairman of the Samiti shall be elected from among persons who are elected as or are eligible to be elected as members of any such Grama Panchayat. If the name of a ?Person is not in the Assembly Electoral roll be is not eligible to be elected as a member of the Grama Panchayat or As a Sarpanch. The same construction would be given to the earlier clause "from among persons who are elected as members of any such Grama Panchayat". The word ?elected' means duly elected in accordance with law and not in contravention of law. Thus the Election Officer gets jurisdiction to examine whether the election of the Petitioner as a Sarpanch was in accordance with the Panchayat Act. Such an examination is made in a proceeding for election of the Chairman of the Panchayat Samiti which is a collateral proceeding. During scrutiny under Rule 7 the Election Officer is to find if the candidates are duly qualified in accordance with Section 16(3)(a). The rule casts a duty on the Election Officer to see whether the Petitioner was validly elected as a Sarpanch. 10. Examined from any point of view, the position of law is clear that the Petitioner was not eligible to contest for the Chairmanship of the Panchayat Samiti. His nomination was, therefore, rightly rejected. 11. We find no merit in this writ application. It is accordingly dismissed but in the circumstances without costs. S. Acharya, J. 12. I agree.