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2. The present election petition has been filed by the petitioner mainly on the ground of improper rejection of the nomination paper of one Mr. Mahendra Singh Gurjar. The petitioner filed his nomination paper as a candidate of the Indian National Congress, a registered and recognised political party. The respondent filed his nomination paper as a candidate of the Bhartiya Janta Party. Four more candidates had filed their nomination papers, among whom, one Mr. Mahendra Singh Gurjar had filed his nomination paper on 6.11.1998 at 11.15 A.M. with a letter of authorisation from a recognised political party i.e. Janta Dal of which Mr. Sharad Yadav had been the President at the relevant time.

3. On the same date, another candidate namely; Mr. Ashiq Russian also filed his nomination paper at 2.45 P.M. with an authorisation letter from the same recognised political party i.e. Janta Dal and the letter of authorisation again been signed by the President of the Party Mr. Sharad Yadav. Mr. Ashiq Hussain also submitted a letter dated 5.11.1998, addressed to the concerned Returning Officer, signed by Mr. Sharad Yadav, President, Janta Dal. In the above letter dated 5.11.1998, the Returning Officer of the Nainwa Assembly Constituency had been informed that Mr. Ashiq Hussain is the authorised candidate on behalf of Janta Dal and, if any other person has submitted the nomination paper on behalf of this party, the same may be rejected.

4. Before the scrutiny could take place, on 7.11.1998, at 11.00 A.M., Mr. Mahendra Singh Gurjar submitted another letter dated 6.11.1998, written by Mr. Sharad Yadav, President, Janta Dal, to the Returning Officer, Nainwa Assembly Constituency, informing that now Mr. Mahendra Singh Gurjar is finally authorised candidate on behalf of Janta Dal and earlier authorisation in favour of Mr. Mohemmad Ashiq Khan should be treated as cancelled. The above letter of authorisation dated 6.11.1998, as submitted by Mr. Mahendra Singh Gurjar At 11.00 A.M. on 7.11.1998 was not accepted by the Returning Officer on the ground that the same has not been filed in time i.e. before 3.00 P.M. on 6.11.1998, the last date for filing of nomination papers.

28. So far as the contention as to no opportunity been given to Mr. Mahendra Singh Gurjar by the Returning Officer is concerned, the Hon'ble Supreme Court in the case of Rakesh Kumar (supra) itself has observed that the Returning Officer would have been justified in rejecting the nomination paper of a candidate had the candidate either not sought an opportunity to rebut the objection raised by the Returning Officer or was unable to rebut the objection within the time allowed by the Returning Officer. The facts in the case of Rakesh Kumar (supra) were altogether different, wherein, an opportunity was sought in writing by the candidate and the same having been refused by the Returning Officer, the election was set aside on the ground of violation of principles of natural justice. However, in the present case, neither Mr. Mahendra Singh Gurjar or to say any other candidate raised any objection nor sought any opportunity for clarifying the position in regard to final authorisation on behalf of the recognised political party i.e. Janta Dal (Sharad Yadav). Under the circumstances, the burden was on the petitioner to prove as to which of the candidate had the final authorisation to contest the election on behalf of Janta Dal (Sharad Yadav) at expiry of the time fixed for filing of nomination papers.