( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD ELECTION PETITION NO. 1 OF 2005 Sanjay s/o. Prakash Nimbalkar .. Petitioner Age. 40 years, Occ. Agri., R/o. Anand Nagar, Osmanabad, Tq. & Dist. Osmanabad. Versus Padamsinh s/o. Bajirao Patil, .. Respondent Age. 64 years, Occ. Agri., R/o. Ter, Tq. & Dist. Oamanabad. Shri S.G. Chapalgaonkar, Advocate for the petitioner. Shri V.D. Salunke, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 29.06.2009 ORAL JUDGMENT :- 1. This Election Petition is filed by the petitioner for the following reliefs:- ( 2 ) (A) The Election of the respondent to the Maharashtra Legislative Assembly from 209, Osmanabad Constitutency declared on 16.10.2004 be set aside. (B) The Returning Officer be directed to declare the re-election and accept the nomination paper of the Petitioner as valid. (C) The cost of this Election Petition be awarded to the petitioner. 2. Brief facts giving rise to this Election Petition are that the elections of the Maharashtra Legislative Assembly were declared on 15.09.2004 and the last date of filing nominations was 22.09.2004. The date of scrutiny of the nominations was 23.09.2004. Present petitioner and the respondent had filed nomination papers from 209, Osmanabad constituency. The nomination papers of present petitioner were rejected on the ground that he had incurred disqualification under Section 9(A) of the Representation of Peoples Act, 1951. The order is at Exh. “M” (Exh.25) along with the Election Petition. 3. Eventually the respondent was declared as elected and continued to act as M.L.A. By application Exh.57 dated 11th June, 2009, the respondent has stated that pending ( 3 ) hearing of this petition, the respondent has been elected as Member of Parliament in the recent elections held on 16.05.2009. After the election as Member of Parliament, he has tendered resignation of his office as Member of the Legislative Assembly and same came to be accepted. Thus, the respondent ceased to be Member of Legislative Assembly and in these circumstances this election petition does not survive and it has become infructuous. It is prayed that the same may be disposed of. 4. Heard Adv. Shri S.G. Chapalgaonkar for the petitioner and Adv. Shri V.D. Salunke for the respondent. Adv. Shri S.G. Chapalgaonkar has relied upon case of Moti Ram V/s. Param Dev and Anr., AIR 1993 S.C.1662. In that case, the petitioner challenged the election of M.L.A. on the ground that his nomination was improperly rejected. There was dissolution of assembly during pendency of appeal before Supreme Court. The question arose whether the appeal has become purely academic. My attention was drawn to paragraph 4 of the case. Adv. Shri V.D. Salunke has argued that what is prayed for was holding of re-election on the ground that the nomination of the petitioner was wrongly rejected; and ( 4 ) though the petitioner has completed evidence, no such evidence regarding improper acceptance of allowances was led before the Court. In my considered opinion the ratio of the case cited is not applicable to the facts and circumstances of this case. The present case is more similar to the case of Loknath Padhan Vs. Birendra Kumar Sahu, (1974) 3 SCR 114, referred to in para 3 in the case of Moti Ram (Supra). 5. It is pointed out that issue No.1 framed in this matter on 10.02.2007 is as follows:- (1) Whether the work contracts of Shri S.P. Nimbalkar with [1] Godawari Marathwada Pathbandhare Vikas Mahamandal dated 24.07.2002 for Borgaon Raje Storage Tank, [2] Krishna Khore Vikas Mahamandal dated 15.03.2003 for Kumbhari Morewadi Storage Tank and Sawargaon Storage Tank dated 05.10.1999, (3) Tapi Irrigatioin Development Corporation for construction of Panbara Minor Irrigation Tank dated 14.06.2000 has earned disqualification to petitioner within the meaning of Section 9-A of Representation of Peoples Act, 1951? . It is argued before this Court that it is necessary to decide this issue as the same may arise in future if the petitioner chooses to contest the election in future. Adv. Shri V.D. Salunke has pointed out that the issue was raised in this petition, in view of law laid down in the case of ( 5 ) Vasant Kale V/s. Shrikant Joshi, reported in 2005 (2) All M.R. 539 by this Court; however, subsequently the matter was taken to the Supreme Court and in the case of Shrikant V/s. Vasantrao (2006) 2 S.C.C.682, it is made clear that public sector corporations are not coming within the meaning of “Appropriate Government” and in this view of the matter, there is no necessity of continuing with this Election Petition. Moreover, this Court is to decide the issue with reference to the last date of filing nomination i.e. 22.09.2004 and not with reference to any future date. So, even if this election petition is to continue, the ultimate issue would be whether as on 22nd September, 2004, there was any disqualification and not whether the petitioner incurs any disqualification on any future date. 6. Adv. Shri V.D. Salunke also stated that in view of resignation by the respondent of his office as Member of Legislative Assembly, prayer clause (A) becomes infructuous. So far as prayer clause (B) is concerned, in the first place it is of a consequential nature and in the second place there would be fresh elections in the near future. There would be occasion to file fresh nomination papers and as such it would ( 6 ) be premature to presume that the petitioner would file nomination papers and the same would be objected and that there would be objection on a particular ground. 7. So, in this view of the matter, this Election Petition has become infructuous in view above-said events pending the petition. Hence, the Election Petition stands disposed of as infructuous. [P.R. BORKAR,J.] snk/2009/JUN09/elp1.05