ORDER 1. Petitioner is a candidate whose election on the post of Member, Janpad Panchayat Ajaygarh has been declared as void by the Collector-cum-Specified Officer, District Panna, vide order dated 10.3.2008 marked as Annexure P-1. 2. Petitioner was elected as Member of Janpad Panchayat Ajaygarh on 27.1.2005. His election was challenged by respondent No.1 by filing election petition under section 122 of Madhya Pradesh Pane hay at Raj Evam Gram Swaraj Adhiniyam, 1993, mainly on the following grounds: (i) Petitioner suppressed his agricultural land situated at Village Chandrawal and Pugri; (ii) He suppressed LIC policy bearing No.31219505l. He did not mention about the tractor and motorcycle which were owned by him; (iii) Petitioner acted with cruelty and ousted his wife who was having pregnancy of six months. He was having already three children prior to 26.1.2001; (iv) Petitioner was in arrears of land revenue; (v) Petitioner did not disclose the aforesaid facts in the nomination papers and the affidavit accompanying it. The Returning Officer did not decide the objections about incorrect and wrong information and further about suppression in the affidavit. 3. Petitioner in his reply to the election petition denied all the allegations. 4. After recording the evidence, learned Election Tribunal found that the petitioner has failed to submit information in the declaration about the agricultural land, LIC policy and tractor and motorcycle which is violation of rule 31-A of the M.P. Panchayat Nirvachan Niyam, 1995. Other allegations were not found to be proved. However, on the basis of aforesaid findings, learned Election Tribunal allowed the election petition on 10.3.2008 and declared the election of the petitioner as void vide Annexure P-1. 5. Shri Imtiyaz Hussain, Shri H.S. Verma and Shri Harish Agnihotri, learned Government Advocate advanced arguments at length. 6. Record of the election petition has also been made available which has been duly perused. 7. Shri Itiyaz Hussain, learned counsel for the petitioner made feeble attempt to assail the factual findings on the basis of evidence on record. However, it is found that the petitioner himself has categorically admitted in his cross-examination that the land in area 1.38 hectare situated at Village Chandrawal is recorded in the name of himself and Khalid, who happens to be the son of his uncle. Although, he has further stated that the land was allotted to his uncle's son, but no such deed of partition was submitted. Although, he has further stated that the land was allotted to his uncle's son, but no such deed of partition was submitted. Similarly, he has further admitted that the land comprised in Survey No.302 in area 2.889 hectare situated at Village Pungri, Tehsil Naraini was recorded in the name of petitioner himself and his cousin, namely, Khalid. He has expressed his ignorance by saying that he was not aware at the time of filing of the nomination papers of any such land. Similarly, he admitted the existence of LIC policy No.312195051 in his name, but tried to improve by saying that he was not aware of such policy and that he did not pay any premium at all of this policy. He admitted in the cross-examination about having tractor and motorcycle which according to him were sold. He also failed to produce the sale letter or any other authentic documents. In view of the aforesaid material evidence and other evidence, Election Tribunal cannot be said to have committed an error in recording factual findings with respect to the aforesaid allegations. 8. It is contended by Imtiyaz Hussain, learned counsel that the petitioner did not deliberately suppress information about movable and immovable assets. Since his nomination paper was already accepted, he ought to have been served with a notice to rebut the allegations. This having not been done, the factual findings against him could not have been recorded by the learned Election Tribunal. In any case, his contention is that the result of the election was not vitiated by any of the aforesaid factors and it was not materially affected. 9. In the aforesaid scenario, rules 31-A and 35 of M.P. Panchayat Nirvachan Niyam, 1995 and rule 21 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 would be relevant, which are reproduced below: "Rule 31-A. Information of criminal record, properties, liabilities and educational qualification etc. of candidates. -- (1) Every candidate for the post of Panch shall submit a declaration in a form as prescribed by the State Election Commission alongwith nomination paper which shall include information about his educational qualification, criminal cases pending/decided, his/her assets and liabilities and that of his/ her spouse and dependents, his/her number of living children and information about whether he/she is an encroacher on Government land. (2) Every candidate for the post of Sarpanch, Member of Janpad Panchayat and Zila Panchayat shall submit an affidavit, in a form as prescribed by the State Election Commission alongwith nomination paper which shall include information about educational qualifications, criminal cases pending/decided, his/her assets and liabilities and that of his/her spouse and dependents, the number of his/her living children and whether he/she is an encroacher on Government land. The affidavit shall be sworn before competent Notary, Magistrate or Oath Commissioner. (3) A copy of affidavit/declaration of candidates, for the post of Panch, Sarpanch, Member of Janpad Panchayat and Zila Panchayat, shall be exhibited on the notice board in the office of the Returning Officer. Its copy shall be made available to any citizen on demand on payment of prescribed fee. Rule 35. Scrutiny of nomination papers. -- (1) On the date fixed for the scrutiny of nomination papers under rule 28, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but not other person, may attend at the time and place appointed in this behalf under rule 28 and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered as required by rule 32. (2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objections or his own motion, after such summary, inquiry, if any, as he thinks necessary, reject any nomination paper on any of the following grounds, that is to say - (a) that the candidate is disqualified for being elected to fill the seat by or under the Act; (b) that the proposer is disqualified from subscribing a nomination paper; (c) that the provisions of rule 31, 31-A, 32 or 33 have not been complied with; and (d) that the signature of the candidate or the proposer on the nomination paper is not genuine. (3) Nothing contained in clause (c) or (d) of sub-rule (2) shall be deemed to authorise, the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (3) Nothing contained in clause (c) or (d) of sub-rule (2) shall be deemed to authorise, the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The Returning Officer shall not reject any nomination paper on the ground of mere clerical or printing error or any defect which is not of a substantial character . (5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of rule 28 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case any objection is raised by the Returning Officer or is made by any other person, the candidate may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. (6) The Returning Officer shall endorse on each nomination paper his decision regarding accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. The order passed by the Returning Officer shall, subject to the result of revision, if any under rule 36, be final. (7) For the purposes of this rule the production of a certified copy of an entry made in the Voters' List of the relevant Gram Panchayat shall be conclusive evidence of the right of any voter named in that entry to stand for election, unless it is proved that the candidate is disqualified. (8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare ward wise or constituency wife lists of candidates whose nominations have been accepted in Form 5 and affix the lists on the notice board of his office, duly recording the date and time of his affixture below his signature. (9) If nomination of a candidate has been accepted by the Returning. (9) If nomination of a candidate has been accepted by the Returning. Officer for more than one ward of constituency through oversight or for want of objection or for any other reason whatsoever, the Returning Officer shall after giving an opportunity of hearing to such candidate or his election agent, recognise the nomination tendered first in point of time and delete or cause to be deleted from the list of validity nominated candidates in Form 5, the name of such candidate from every other ward or constituency and record this fact in writing. The Returning Officer shall also affix a copy of the revised list of validly nominated candidates in Form 5 on the notice board in his office, duly recording the date and time of such affixture below his signature. Rule 21. Grounds for declaring election to be void. -- (1) Subject to the provisions of sub-rule (2) if the specified officer is of opinion: (a) that on the date of his election the returned candidate who was not qualified or was disqualified to be chosen to fill the seat under the Act; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election in so far as it concerns returned candidate has been materially affected -- (i) by the improper acceptance of any nomination; or (ii) by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or (iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Act or of the specified officer shall declare the election of the returned candidate to be void. (2) If in the opinion of the prescribed authority a returned candidate has been guilty by an agent of any corrupt practice, but the prescribed authority is satisfied - (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the instructions and without the consent of the candidate; (b) that the candidate took all reasonable means for preventing the commission of corrupt practice at the election; and (c) that in all other respect the election was free from any corrupt practice on the part of the candidate or any of his agent; then the prescribed authority may decide that the election of the returned candidate is not void." 10. This Court has already found in paragraph 7 that the petitioner failed to give description of his entire movable and immovable assets as required under rule 31-A of Nirvachan Niyam. Rule 31-A requires a candidate in mandatory manner to furnish information in the declaration/ affidavit in the prescribed format about various matters including the assets. Petitioner according to the authentic record held agricultural land as well as owned motor vehicles and LIC policy which were not disclosed in the declaration/affidavit submitted by him under rule 31-A. However, this rule does not provide for the consequence of its non-observance. Clause (c) of sub-rule (2) of rule 35 of Nirvachan Niyam empowers a Returning Officer while making scrutiny of nomination paper to reject it on the ground that provisions of rule 31-A have not been complied with. Sub-rule (3) of rule 31-A requires that affidavit/declaration of a candidate shall be affixed on the notice board and its copy would be made available on demand on payment of prescribed fees. Objections to nomination papers are to be decided in exercise of powers under sub-rule (2) of rule 35. Accordingly, the nomination papers may be rejected on the ground of non-compliance of rule 31-A in exercise of powers under clause (c) (supra) at the time of scrutiny. If such objection is not successfully raised, nomination paper shall not be rejected. Non-consideration of such objection or rejection of valid objection to nomination paper may vitiate the further proceedings of election. 11. If such objection is not successfully raised, nomination paper shall not be rejected. Non-consideration of such objection or rejection of valid objection to nomination paper may vitiate the further proceedings of election. 11. Although, in the present case, the election petitioner has stated in paragraph 2 of the election petition that he had raised objection before the Returning Officer against the nomination paper of the petitioner, he has not placed on record any proof to establish that any such objection was raised at the time of scrutiny of nomination paper. In his chief examination, the petitioner has stated that he had made a complaint vide Annexure P-11 but on perusal it is found that Annexure P-11 is a Hindi translation of birth certificate and not a copy of objection. In the cross-examination, petitioner has stated that he has pleaded in the election petition about the objections having been raised before the Returning Officer. However, he has further stated that his objections were rejected by the Returning Officer. On perusal, I do not find any objection having been made by the election petitioner at the time of scrutiny against the nomination paper of the present petitioner about non-compliance of rule 31-A. 12. This does not prevent the election petitioner from raising the plea in the election petition that the nomination paper of the elected candidate (present petitioner) was improperly accepted. This is being observed in the light of rule 21 of the Election Petition Rules which empowers a specified officer to declare the election void on the ground that any nomination paper has been improperly accepted. Distinction between rule 35 of Nirvachan Niyam and rule 21 of Election Petition Rules is that while at the time of scrutiny, nomination paper may be rejected even on the sole ground of non-compliance of rule 31-A whereas under rule 21 of the Election Petition Rules, an election of a candidate whose nomination paper was accepted even in the absence of compliance of rule 31-A may be declared void if result of the election has been materially affected. At the stage of scrutiny of nomination paper, an objector in order to succeed is merely required to establish that the provision of rule 31-A has not been complied with by the candidate who submitted nomination paper. At the stage of scrutiny of nomination paper, an objector in order to succeed is merely required to establish that the provision of rule 31-A has not been complied with by the candidate who submitted nomination paper. If the objector fails to raise objection at the time of such scrutiny, he may take the plea in the election petition that the nomination paper was improperly accepted. However, in order to succeed in the election petition he is further required to establish that due to improper acceptance of the nomination paper, result of the election in so far as it concerns returned candidate has been materially affected. 13. In the case in hands, it has not been found that the election petitioners raised an objection to the nomination paper of the present petitioner on the ground of non-compliance of rule 31-A at the time of scrutiny of nomination papers. This Court perused the record of the election petition and found that there is no material on record to establish that an objection was raised about non-compliance of rule 31-A at the time of scrutiny of nomination papers. This being so, the election petitioner in order to succeed is not only required to show that there was non-compliance of rule 31-A on the part of the present petitioner but to establish simultaneously that the result of the present petitioner (being returned candidate) has been materially affected due to improper acceptance of his nomination paper. 14. One of the questions to be examined in the present case is whether rule 31-A of Nirvachan Niyam is mandatory and to what extent. Petitioner is stated to have suppressed the information about his movable and immovable assets. Had he disclosed them in his nomination paper, it would not have made him disqualified for the election. Thus, owning the movable and immovable assets alleged to have been suppressed by him would not have created any kind of disqualification to the petitioner. Petitioner is stated to have suppressed the information about his movable and immovable assets. Had he disclosed them in his nomination paper, it would not have made him disqualified for the election. Thus, owning the movable and immovable assets alleged to have been suppressed by him would not have created any kind of disqualification to the petitioner. No doubt, suppression of the aforesaid assets in the declaration/affidavit required to be submitted by the petitioner under rule 31-A could have provided a ground for rejection of nomination paper under clause (c) of sub-rule (2) of rule 35 on objection being raised but after nomination paper is accepted despite non-compliance of rule 31-A for want of objection it would not be fatal unless it is shown that the result of the returned candidate has been materially affected due to such improper acceptance of the nomination paper. Rule 31-A cannot be construed as a mandatory provision beyond the aforesaid extent. 15. The words "the result of the election has been materially affected" came up for consideration long back before the apex Court in the case of Vashist Narain Sharma v. Dev Chandra and others [ AIR 1954 SC 513 ], wherein it was held that whether the result of the election has been materially affected is a matter which has to be proved and the onus to prove lies upon the petitioner. Thus, mere allegation that the result of the election might have been affected is not enough and there must be definite proof that the result of the election has been materially affected in order to set aside the election as being void. 16. Hon'ble Supreme Court of India in the case of Paokai Haokip v. Rishang and others [ AIR 1969 SC 663 ], has held to the effect that under certain provisions it is not enough for the election petitioner to show that there was contravention of election rules but the law requires that the election petitioner must go a little further and must prove that the result of the election has been materially affected. It has clearly been held by the Hon'ble Supreme Court in another case Shiv Charan Singh v. Chandra Bhan Singh and others [ AIR 1988 SC 637 ] : "Election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of a nomination of a candidate materially affected the result of the election of the returned candidate. The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes. In the absence of any such proof the result cannot be held to have been materially affected. The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law. The legislative intent is clear that unless the burden, howsoever difficult it may be, is discharged, the election cannot be declared void. The difficulty of proving the material effect was expressly noted by this Court in Vashist Narain Sharma (supra), and Paokai Haokip's (supra), cases and the Court observed that the difficulty could be resolved by the Legislature and not by the Courts. Since then the Act has been amended several times, but Parliament has not altered the burden of proof placed on the election petitioner under section 100(l)(d) of the Act. Therefore, the law laid in the aforesaid decisions still hold the field. Since then the Act has been amended several times, but Parliament has not altered the burden of proof placed on the election petitioner under section 100(l)(d) of the Act. Therefore, the law laid in the aforesaid decisions still hold the field. It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nomin9.ted candidates, legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election• has to be discharged by the person challenging the election and the Courts cannot speculate on the question. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures." 17. In the case of Tek Chand v. Dile Ram [ AIR 2001 SC 905 ], again the apex Court has reiterated that mere allegation of wrong acceptance of nomination paper is not sufficient and it should be further established that such wrong acceptance has materially affected the result of election of returned candidate. 18. Shri Imtiyaz Hussain, learned counsel for the petitioner placing reliance on AIR 1956 SC 140 , contended that rule 31-A of Nirvachan Niyam is not mandatory and its non-compliance has not materially affected the result of his client. He drew attention of this Court to the following passage from paragraph 3 : "We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the Legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, common sense lines." 19. This Court has already dealt with the nature of the provision contained in rule 31-A. Admittedly, the petitioner has been elected on the post of Member of Janpad Panchayat Ajaygarh. This Court has already dealt with the nature of the provision contained in rule 31-A. Admittedly, the petitioner has been elected on the post of Member of Janpad Panchayat Ajaygarh. He is found to have submitted nomination paper in breach of mandatory provision of rule 31-A. His nomination paper was liable to be rejected had there been an objection at the time of scrutiny of nomination paper. His nomination paper was accepted despite non-compliance of rule 31-A. Obviously, it was an improper acceptance of his nomination paper. Had his nomination paper been not accepted on account of violation of rule 31-A, he could not have contested the election and further could not have succeeded in the election. In this view of the matter, it is quite clear that his result (being the result of the returned candidate) has been affected by the improper acceptance of his nomination paper. In the various decisions of the Supreme Court cited hereinabove nomination paper of a candidate other than a returned candidate was found to have been improperly accepted. Therefore, it was rightly found that in the absence of a proof that the result of the returned candidate was materially affected, election or a returned candidate could not have been declared void. In the case in hand, the nomination paper of a returned candidate itself is found to have been improperly accepted. Therefore, his result has been obviously materially affected in as much as had the nomination paper been not accepted he would not have been declared as elected. Thus, it is further held that if a nomination paper of a returned candidate is found to have been improperly accepted, it would be inferred that the result of such returned candidate has been materially affected. 20. In the result, I do not find any infirmity in the impugned order. Consequently, the writ petition is hereby dismissed, however, without order as to costs.