1. This petition is filed to dismiss the Election Petition No.4 of 2009 as infructuous.

2. The parties are referred to as they are arrayed in the election petition.

3. The 1st respondent stated that on his resignation as M.L.A. (Member of Legislative Assembly) of 28-Vemulawada Assembly Constituency, a notification to that effect was issued by the Andhra Pradesh Legislature Secretariat to give effect to the resignation from 14-02-2010. A vacancy had arisen for 28-Vemulawada Assembly Constituency, which was not notified for the conduct of by-elections by the Election Commission of India in their Press Note, dated 21-06-2010, while signifying their decision to hold by-elections to fill up ten other prior vacancies. The non-inclusion of Vemulawada Constituency and another Constituency was challenged in W.P. No.14443 of 2010 and the High Court ordered on 30-06-2010 to hold by-elections for 28-Vemulawada Constituency and another Constituency also along with the other ten Constituencies. The election process for the said two Constituencies also had accordingly begun as announced by the Election Commission of India and while the Election Code came into force on 21-06-2010, the notification was released on 02-07-2010. The 1st respondent claimed that under the circumstances, the election petition has become infructuous and nothing survives for consideration.

4. The election petitioner resisted the request claiming that the election petition was filed and the by-election is being held under the Representation of the People Act, 1951 (for short “RP Act”) and any election should be subservient to the orders of the High Court under Section 98 of RP Act, as per the general principle that all actions subsequent to the proceedings in a Court will be subject to the result thereof. RP Act had no provision enabling dismissal of an election petition as infructuous and the precedents relied on by the 1st respondent are distinguishable, as the Legislative Assembly itself was not dissolved and only a few seats, which fell vacant due to resignation, are being filled. Hence, the election petitioner desired the petition to be dismissed with costs.

5. Sri K. Ramakrishna Reddy, learned senior counsel for the 1st respondent (petitioner herein) and Sri M.P. Chandramouli, learned counsel for the election petitioner (1st respondent herein) are heard.

6. The point for consideration is whether the election petition has to be dismissed as infructuous on the facts and circumstances of the case ?

Point:

7. The election petition was filed to declare the election of the 1st respondent as member of the Andhra Pradesh Legislative Assembly from 28-Vemulawada Constituency to be illegal and to consequently declare the election petitioner as duly elected as such member. The basis for the claim is that the 1st respondent was not qualified to be chosen to fill a seat in the Legislature of the State, as he was not a citizen of India at the relevant time. He was originally a citizen of India, who acquired the citizenship of Germany in 1993 and held Germany passport. He applied under Section 5(1)(f) of the Citizenship Act, 1955 on 31-03-2008 to register him as Indian citizen specifying his date of entry into India as 22-01-2007. He was issued a certificate of registration No.34, dated 03-02-2009 by the Government of India, Department of Home Affairs and the same was claimed by the election petitioner to be without residing in India for one year before making an application for registration. The election petition stated various grounds to contend that the 1st respondent did not stay for the mandatory period in India and consequently, questioned the registration of the 1st respondent as an elector at serial No.1416 of polling station No.160 of Vemulawada Assembly Constituency. The election petitioner claimed that his objections through an advocate at the time of scrutiny of nominations were not decided and the revision filed by him before Government of India under S