ORDER

This petition under Article 226 of Constitution of India has been filed against order dated 16/11/2022 passed by Sub-Divisional Officer (Revenue)/ Prescribed Officer, Banda, District Sagar in case No.224/Election Petition/22-23. 2. It is the case of petitioner that the election for the post of Gram Panchayat Rampur was notified on 20/05/2022. Petitioner also submitted his nomination form on 04/06/2022 for the post of Sarpanch.

Similarly, respondents No.1 to 5 had also contested the election for the said post. Scrutiny of form was held on 06/06/2022, election was held on 08/07/2022 and result was declared on 14/07/2022. On 25/07/2022, petitioner came to know about pendency of criminal case for offence 3 W.P. No.29770/2022 under Sections 294, 323/34, 506 of IPC against respondent No.1 which was pending before the Court of Judicial Magistrate First Class, Shahgarh/ Banda in Criminal Case No.116/2020. However, respondent No.1 had given incorrect information in paragraph 5 & 6 of the affidavit. Accordingly, petitioner preferred Election Petition under Section 122 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam alleging that owing to suppression of material facts in affidavit/ declaration submitted by respondent No.1 along with nomination form, it has resulted in illegal and improper acceptance of nomination form and thus, it was claimed that entire election process was vitiated. Notices were issued to respondents and respondent No.1 instead of filing reply on merits of the case, filed an application under Order 7 Rule 11 of CPC as well as under Rule 3(2), 7 and 8 of M.P. Panchayat (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1995 (in short 'Rules, 1995') and took procedural objections and also admitted the fact of pending criminal case.

Respondents No.2 to 4 filed their reply and supported the case of petitioner. By impugned order dated 16/11/2022, respondent No.9 has dismissed the Election Petition on the ground that at the time of scrutiny of nomination paper, the petitioner did not raise an objection with regard to incorrect information in the affidavit submitted by respondent No.1 along with his nomination form and therefore, now the Election Petition cannot be entertained.

3. Challenging the order passed by respondent No.9, it is submitted by counsel for petitioner that respondent No.9 should not have dismissed the Election Petition without framing issues and recording evidence. In fact, Election Petition has been dismissed on merits by 4 W.P. No.29770/2022 holding that the same is not maintainable as the petitioner had not raised an objection at the time of submission of nomination form and the suppression of information regarding registration of criminal case has not materially affected the election result. It is submitted that whether suppression has materially affected the election result or not cannot be adjudicated at this stage and it is a matter of evidence. To buttress his contentions, counsel for petitioner has relied upon the judgment passed by Co-ordinate Bench of this Court in the case of Mehboob Khan Vs. Lallu Bhai and Others reported in 2008 (4) M.P.L.J. 198 and judgment passed by High Court of Bombay in the case of Arun Dattatray Sawant Vs. Kisan Shankar Kathore decided on 16/08/2007 in Ordinary Original Civil Jurisdiction Election Petition 10 of 2004. 4. None appears for the respondents though served.

5. Considered the submissions made by counsel for the petitioner.

6. In the case of Mehboob Khan (supra), this Court has held that if a nomination paper of a returned candidate is found to have been improperly accepted, then it has to be held that his result has obviously materially affected inasmuch as had the nomination paper been not accepted, he would not have been declared as elected. It has also been held that suppression of information in