JUDGMENT Hon’ble Devi Prasad Singh, J.—Shri Anupam Mehrotra learned counsel for the respondents raised preliminary objection with submission that keeping in view the fact that election petition challenging the same election has been dismissed by this Court and also since the term of elected representative of the Rajya Sabha has expired petition should be dismissed as infructuous. It has been submitted that Court should not adjudicate an academic issue when in any case the petitioner shall not be entitled for any benefit. 2. On the other hand, Shri Qamar Ahmad learned counsel for the petitioner submits that issue is of public importance hence Court should decide the election petition. Solitary issue pending for adjudication is validity of amendment done in Representation in People Act which according to learned counsel for the respondents is only academic in nature. 3. The election of Council of State Rajya Sabha has been impugned in the present election petition. The election was notified by Election Commission of India under Section 39 of the Representation of People Act 1951 ( in short hereinafter referred as R.P. Act) vide notification dated 4.6.2004 as amended by subsequent notification dated 10.6.2004 and 23.6.2004. Thereafter, result was declared on 26.6.2004. Respondent Nos. 1 to 11 were elected for Rajya Sabha. The election was impugned in some other election petition including election petition No. 4 of 2004. The election petition No. 4 of 2004 was decided and dismissed by judgment and order dated 22.1.2010. Other connected petitions were also dismissed by separate order of the same day. The case has been reported in 2010 LCD 755, Madan Mohan v. Arun Shourie and others. Admittedly, tenure of elected representatives expired. 4. It is also not disputed that the petitioner has not contested the election. While assailing the impugned election for Rajya Sabha the petitioner is aggrieved with the fact that some of the persons elected does not belong to State of U.P. like Shri Anil Ambani, Smt. Jaya Bachchan, Shri Arun Shourie and Shri Lalit Shourie. Validity of amendment done in Section 3 of the Act particularly Act No. 40 of 2003 has been impugned by the petitioner. 5. A prayer has been made that Act No. 40 of 2003 may be declared ultra vires by which Section 3 has been amended providing therein that any Indian citizen everywhere in the country may contest the election of Rajya Sabha from any place. 5. A prayer has been made that Act No. 40 of 2003 may be declared ultra vires by which Section 3 has been amended providing therein that any Indian citizen everywhere in the country may contest the election of Rajya Sabha from any place. The petitioner challenged the amendment done in Section 3, Section 59 and Section 81 of the Act. While preferring the present election petition the petitioner had claimed the following relief : “(i) declare Sections 3,59 and 81 of Act No. 43 o 2952 as amended from time to time as ultra vires void and unenforceable. (ii) declare the election of opposite parties No. 1 to 4 to the council of States from Uttar Pradesh as null and void from the date of their election. (iii) award cost of the petition to the petitioner. (iv) grant any other relief deem just and proper by this Hon’ble Court keeping in mind in the circumstances of the case.” 6. The relief claimed by the petitioner shows that apart from declaring the amended provision (supra) ultra vires the petitioner has also claimed that election of respondent Nos. 1 to 4 be declared null and void since they do not belong to State of U.P. So far as second relief is concerned, it become redundant and to that extent election petition infructuous as the term of respondent Nos. 1 to 4 elapsed and after new election persons have been selected against these vacancies for Rajya Sabha. The question remains with regard to amendment that too which in accordance to respondents counsel is concluded by Constitution Bench judgment of supreme Court in the case reported in Kuldip Nayar v. Union of India, 2006 (7) SCC 1 . 7. However, Shri Qamar Ahmad learned counsel for the petitioner submitted that Larger Bench judgment of Hon’ble Supreme Court has not been taken into account in the case of Kuldip Nayar (supra) hence election petition has got force and amendment become ultra vires. 8. 7. However, Shri Qamar Ahmad learned counsel for the petitioner submitted that Larger Bench judgment of Hon’ble Supreme Court has not been taken into account in the case of Kuldip Nayar (supra) hence election petition has got force and amendment become ultra vires. 8. While raising objection and making prayer for dismissal of election petition as infructuous being on the ground of academic residue counsel for the respondents relied upon the cases in Podipireddy Atchuta Desai v. Chinnam Joga Rao, 1987 (Supp) SCC 42; Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 (Supp) SCC 93; Subhash Yadav v. State of U.P., (2000) 10 SCC 145 ; State of U.P. v. Netra Pal Singh, 2004 (4) SCC 748 ; Kishan Prakash Sharma v. Union of India, (2001) 5 SCC 212 and Jitubhai v. State of Gujarat, 2005 (10) SCC 545. 9. On the other hand, Shri Qamar Ahmad learned counsel for the petitioner submitted that controversy requires hearing on merit as relief No. 1 still survives and in case, election is declared null and void the respondents No. 1 and 4 may suffer punitive action under Article 104 of the constitution of India. 10. Learned counsel for the petitioner relied upon the cases in Soni Vrajlal Jethalal v. Soni Jadavji Govindji and others, AIR 1972 Guj 148 ; A.R. Antulay v. R.S. Nayak and another, 1988 SC 1531; B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480 ; S.R. Chaudhuri v. State of Punjab and others, 2001 AIR SCW 3070 and M/s. Shiv Shanker Dal Mills etc. v. State of Haryana and others, 1980 SC 1037. 11. In the case of Podipireddy Atchuta Desai (supra) Hon’ble Supreme Court had dismissed the civil appeal on the ground that fresh election has already been taken place and appeal has become redundant in the sense that it will be undertaking a futile exercise if supreme Court proceed to examine the validity or otherwise of the view taken by High Court in dismissing the election petition. However, the case of Podipireddy Atchuta Desai (supra) seems to be judgment in personam and in appropriate case Court may proceed to decide a dispute. 12. However, the case of Podipireddy Atchuta Desai (supra) seems to be judgment in personam and in appropriate case Court may proceed to decide a dispute. 12. In the case of Rajiv Gandhi (supra) Hon’ble Supreme Court where the allegation with regard to corrupt practice was raised observed that since allegation was with regard to corrupt practice and the matter is stale and academic but it may be heard. To reproduce relevant portion from the case of Rajiv Gandhi as under : “In fact, during the course of hearing the appellant himself stated before us more than once, that it would now be very difficult for him to produce evidence to substantiate the allegations of corrupt practice but nonetheless he insisted for the appeal being heard on merit. Though the matter is stale and academic yet having regard to the present state of law, we had to hear the appeal at length.” However, their Lordship had dismissed the appeal holding that the appellant cannot be permitted to waste the Court time with permission to amend the appeal. The conclusive observation made by Hon’ble Supreme Court is as under : “When this appeal cam up for hearing before us the appellant insisted that he should be allowed to argue the case by putting on a crown (an artificial one) on his head. According to him without the crown he would not be able to make his submissions in a satisfactory manner. We refused to grant the permission to the great dissatisfaction of the appellant. A Court of law is a solemn place where proceedings are held in a solemn manner and the time of the Court especially in the Apex Court is precious time which belongs to the people and it would be wholly obnoxious to judicial propriety to allow a litigant to appear in Court wearing a crown to argue the case. The Court cannot be converted into a dramatic or theatrical stage. We accordingly refused to grant the permission to the appellant to wear his crown.” 13. In the case of Subhash Yadav (supra) validity of U.P. Gangsters and Anti-Social Activities (Prevention) Act 1986 was in question. The Court cannot be converted into a dramatic or theatrical stage. We accordingly refused to grant the permission to the appellant to wear his crown.” 13. In the case of Subhash Yadav (supra) validity of U.P. Gangsters and Anti-Social Activities (Prevention) Act 1986 was in question. Constitutional validity of the Act (in short hereinafter referred as Act) was upheld by Full Bench judgment of this Court in AIR 1987 All 235 (FB) Ashok Kumar Dixit v. State of U.P. Before hearing could take place in Hon’ble supreme Court the petitioner Subhash was discharged by the trial Court. Learned counsel was having no instruction on behalf of third party. However, their Lordship of Hon’ble Supreme Court observed that on account of acquittal of petitioner Amar Mani Tripathi and Subhash Yadav nothing survives and exercise to determine the constitutional validity of Act would be only of an academic interest in so far as those are concerned. With these observation dismissed the appeal for non-prosecution. 14. In the case of Netra Pal Singh (supra) there was an interim order which continued for about 5 years. Hon’ble Supreme Court dismissed the appeal as infructuous without examining the merit of the case. 15. The case of Krishna Prakash Sharma (supra) was dismissed where the validity of Ordinance was challenged since it was replaced by the new Ordinance. 16. In the case of Jitubhai babughai Patel (supra) the question with regard to consent of cause for narco-analysis test was not examined since it became academic in nature in view of statement made by State Government. 17. In the case of Soni Vrajlal Jethalal (supra), Hon’ble Single Judge of Gujarat High Court held that wherever there is civil wrong there must be some remedy. Not only there must be some remedy but also a forum for availing the remedy. High Court held that once it is found that the revision application is competent then it would be necessary to examine the order on its merit. 18. The case of B. Shama Rao (supra) relates to controversy where an statute was impugned and binding nature of decision and principle of stare decisis was considered. High Court held that once it is found that the revision application is competent then it would be necessary to examine the order on its merit. 18. The case of B. Shama Rao (supra) relates to controversy where an statute was impugned and binding nature of decision and principle of stare decisis was considered. For convenience relevant portion from the judgment of B. Shama Rao (supra) is reproduced as under : “In view of the intense divergence of opinion except for their conclusion partially to uphold the validity of the said laws it is difficult to deduce any general principle which on the principle of state decision can be taken as binding in for future cases. It is trite to say that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein. The utmost therefore that can be said of this decision is that the minimum on which there appears to be consensus was (1) that legislatures in India both before and after the Constitution had plenary power within their respective fields; (2) that they were never the delegates of the British Parliament; (3) that they had power to delegate within certain limits not by reason of such a power being inherent in the legislative power but because such power is recognised even in the United States of America were separatist ideology prevails on the ground that it is necessary to effectively exercise the legislative power in a modem state with multifarious activities and complex problems facing legislatures and (4) that delegation of an essential, legislative function which amounts to abdication even partial is not permissible. All of them were agreed that it could be in respect of subsidiary and ancillary power.” 19. The case of Shiv Shanker (supra) relates to refund of illegal recovery of market fees. Hon’ble Supreme Court observed that Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this flexible power, to pass such order but public interest dictates and equity projects. The case of Shiv Shanker (supra) relates to refund of illegal recovery of market fees. Hon’ble Supreme Court observed that Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this flexible power, to pass such order but public interest dictates and equity projects. Their Lordship held that social justice is a pervasive presence and so, save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice while moulding relief with regard to restoration of an amount. 20. The case of A.R. Antulay (supra) relates to grant of sanction for prosecution under anti corruption law does not seem to applicable under the present facts and circumstances of the case. 21. The case of S.R. Chaudhuri (supra) deals with a situation where person suffering from disqualification to contest election on the date of appointment was appointed as minister and Hon’ble Supreme Court held that such person could have not been appointed as Minister for a term of six consecutive months since such practice is undemocratic. 22. Keeping in view the submission made by learned counsel for the parties it appears that whenever in a petition, which includes election petition, the relief claimed with regard to main issue involved becomes redundant or infructuous then for other relief Courts may exercise its discretion and may not proceed further in case right of the plaintiff or defendent satisfied or no grievance remained pending against defendant or respondents because of the change circumstances. Court may use its discretion to drop the proceeding and may not proceed further in a matter even if, some relief of academic nature stand survive. In the present case, admittedly the term of respondent Nos. 1 to 4 expired and vacancy has been filled up by fresh election accordingly even if the impugned provision is struck down or the case of Kuldip Nayar (supra) is distinguished because of Larger Bench neither the petitioner will have any gain nor respondent Nos. 1 to 4 will suffer from any loss like loss of office as the member of Rajya Sabha. The things remain for adjudication would be the validity of impugned provision after taking into account the judgment of Kuldip Nayar (supra). 1 to 4 will suffer from any loss like loss of office as the member of Rajya Sabha. The things remain for adjudication would be the validity of impugned provision after taking into account the judgment of Kuldip Nayar (supra). Observation made by Hon’ble Supreme Court in the case of Rajeev Gandhi that time of the Court is precious one and academic exercise is not warranted unless still some relief may be granted to petitioner or the appellant may be followed. 23. In view of above, there appears to be no good ground to proceed further in the matter to make academic exercise with regard to impugned provision. I leave the question under Relief No. 1 open for adjudication in case warranted in some other case if raised by a person. 24. The election petition does not survive. Dismissed keeping the issue open for adjudication in some other case. —————