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. 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 Nay