ORDER : Respondent No.1 has filed IA No.3/2020 under Section 81 of the Representation of the People Act, 1951 (‘the RP Act’ for short) read with Order VII Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’ for short) seeking rejection of election petition on the ground of maintainability and bar of limitation. 2. Further he has filed IA No.4/2020 under Section 81 of the RP Act read with Order XIV Rule 1 of CPC seeking to frame and decide the issue of maintainability of the petition as preliminary issue. The petitioner has filed his counter to both the applications. 3. The above petition is filed under Section 81 read with Section 100(1)(d)(iv) of the RP Act to set aside the election of respondent No.1 dated 12.06.2020 as member of the Council of States. 4. The Election Commission of India issued Notification dated 01.06.2020 for filling up the seats of the retiring members of Rajya Sabha between the period June and July 2020. Respondent No.2 by the Notification dated 02.06.2020 notified room No.106 of Vidhana Soudha, Bengaluru as the polling place. On 09.06.2020 respondent No.1 filed his nomination papers before respondent No.2. In all 4 seats were sought to be filled up under the notification. Along with respondent No.1, three others had submitted their nomination from different political parties. 5. There were no rival contestants against the said four persons. Therefore by Annexure-M dated 12.06.2020 to petition, respondent No.2 declared that respondent No.1 and other three persons were unanimously elected as the members of council of states. 6. On 12.06.2020 the petitioner submitted a representation to respondent No.2 Chief electoral Officer and Assistant Chief Electoral Officer alleging that respondent No.1 while submitting his nomination in Part-A suppressed the information with regard to his family members etc, therefore to take action against respondent No.1. 7. The last date for accepting the nomination papers was 09.06.2020. The representation was submitted on 12.06.2020. The petitioner filed the above petition claiming that suppression of such material facts and non consideration of his representation by respondent No.1 materially affected the election. Therefore he sought for setting aside the election. 8. Respondent No.1 under the above applications seeks the rejection of the petition mainly on the following two grounds: (i) To maintain a petition under Section 81 read with Section 100(1)(d)(iv) of the Act, the petitioner should be the elector. The petitioner is not elector. Therefore he sought for setting aside the election. 8. Respondent No.1 under the above applications seeks the rejection of the petition mainly on the following two grounds: (i) To maintain a petition under Section 81 read with Section 100(1)(d)(iv) of the Act, the petitioner should be the elector. The petitioner is not elector. Therefore the petition is barred by law. (ii) The petition on face of it is barred by time. 9. The petitioner opposes the applications on the following grounds: (i) Though the petitioner is not directly an elector for the members of the Council of States, he is elector’s elector. Therefore he is entitled to maintain the petition. (ii) During the period of election and subsequent thereto due to Covid 19 pandemic the Courts were partially functioning. Therefore the Hon'ble Supreme Court extended the period of limitation in all cases including the cases involving special enactments. Therefore the petition was in time. 10. Learned Senior Counsel Sri Vivek S.Reddy, appearing for Sri K.N.Subba Reddy, learned advocate on record for the applicant/respondent submits that a reading of Section 81 of the RP Act, Rule 2(e) of the Rules and Explanation to Section 81 of the RP Act makes it clear that the election of respondent No.1 could be challenged only by the elector. Since the petitioner was not an elector, by the statements made in the petition itself, petition was not maintainable and barred by Section 81 of the RP Act. 11. Sri Chaitanya S.G., learned Counsel for petitioner referring to Section 2(e) of the RP Act submits that the members of Legislative Assembly get the right to vote in the election of the members of Rajya Sabha only by virtue of their election by the voters in the election of members of Legislative Assembly. Therefore, he submits that the term elector should be interpreted to include the petitioner also and in that event, petition is maintainable. 12. Having regard to the rival contentions, the question that arises for consideration is: “whether the petitioner is an elector under Section 2(e), Explanation to Section 81 and Section 152 of the RP Act to elect a member of Council of States?” 13. The ground of seeking preliminary issue and the rejection of the petition are one and the same. 12. Having regard to the rival contentions, the question that arises for consideration is: “whether the petitioner is an elector under Section 2(e), Explanation to Section 81 and Section 152 of the RP Act to elect a member of Council of States?” 13. The ground of seeking preliminary issue and the rejection of the petition are one and the same. It is settled proposition of law that a petition can be rejected invoking Order VII Rule 11 of CPC, if petition does not disclose cause of action or under-valued or insufficiently stamped or barred by law. The rejection in the case on hand is sought under Order VII Rule 11(d) of CPC which deals with a plaint/petition being barred by law. 14. The petition is presented under Section 100(1)(d)(iv) of the RP Act namely is on the ground that the result of election so far it concerns the returning candidate was materially affected by non compliance with the provisions of the RP Act and the rules made thereunder. 15. The petition itself states that it is presented under Section 81 of the RP Act which reads as follows: “81. Presentation of petitions.—(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates]. Explanation.—In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. [***] (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition [***], and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition]. 16. Admittedly as per Article 80(4) of the Constitution, the representative of each State in the Council of States shall be elected by the Elected Members of Legislative Assembly of the State in accordance with the system of proportional representation by means of single transferable vote. 16. Admittedly as per Article 80(4) of the Constitution, the representative of each State in the Council of States shall be elected by the Elected Members of Legislative Assembly of the State in accordance with the system of proportional representation by means of single transferable vote. Thus it is clear that the members of Council of States have to be elected by elected members of the State Legislative Assembly. 17. The perusal of Section 81 makes it clear that the election can be challenged only by an elector. The term elector is defined in Section 2(e) of RP Act as follows: “2(e). “elector” in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950);]” 18. Thus it becomes clear that elector in the case on hand is a person whose name is entered in the electoral role of the constituency. This term elector is further clarified by the Explanation to Section 81 of the RP Act stating that elector is a person who was entitled to vote at the election in question or the person who has voted in the such Election. 19. The petitioner does not dispute that the list of members of State Legislative Assembly and Electoral College have to be maintained by Returning Officer as prescribed under Section 152 of the RP Act, which reads as follows: “152. List of members of the State Legislative Assemblies and electoral colleges to be maintained by the returning officers concerned.—(1) The returning officer for an election by the elected members of the Legislative Assembly of a State to fill a seat or seats in the Council of States or for an election, by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State shall, for the purposes of such election maintain in his office in the prescribed manner and form a list of elected members or a list of members, as the case may be, of that Legislative Assembly. (2) The returning officer for an election by the members of the electoral college for a [Union territory][***][***] to fill a seat or seats in the Council of States shall, for the purposes of such election, maintain in his office in the prescribed manner and form a list of members of the electoral college[***]. (3) Copies of the lists referred to in subsections (1) and (2) shall be made available for sale.” 20. Petitioner does not dispute that as per the provisions of RP Act and the Rules made thereunder, Rule 2(e) of Conduct of Election Rules 1961 (‘the Rules’ for short) the respondent No.2/returning officer had prepared the list of electors for the election in question. He also does not dispute that the electoral role prepared by respondent No.2 consisted of the elected members of the State Assembly and his name was not there in that list. 21. One has to be bear in mind that the RP Act 1951 is a Special Enactment and it has to be interpreted in accordance with its intent and spirit and not in a manner to offend or defeat the said law. If at all a member of Rajya Sabha was to be elected by a common voter as in case of member of House of People or Legislative Assembly, there would not have been any need to interpret the term “elector” in the manner it is interpreted in Section 2(e) of the RP Act and Explanation to Section 81 of the Act or to prescribe the mode of conducting the election under Article 80(4) of the Constitution or mode of preparation of role of electors as per Section 152 of RP Act or as defined in Rule 2(d) of the Rules. 22. To call himself to be an elector, as per the above provisions, the contender must be entitled to vote at the election. As per the scheme of the RP Act 1951, Rules made thereunder or Article 80(4) of the Constitution, the petitioner is not entitled to vote at election of the members of Council of States. 23. As per Section 81 of the RP Act, only a candidate or an elector can maintain the petition. As per the scheme of the RP Act 1951, Rules made thereunder or Article 80(4) of the Constitution, the petitioner is not entitled to vote at election of the members of Council of States. 23. As per Section 81 of the RP Act, only a candidate or an elector can maintain the petition. The contention that the petitioner was the elector of the elected member of the Legislative Assembly, therefore he becomes the elector for the election of members of Council of States, for the purpose of Section 81, Section 2(e), Section 152 of the RP Act and Article 80(4) of the Constitution is a far fetched idea. This Court is not persuaded to accept that contention. 24. Learned counsel for petitioner vehemently argued that though the members of Legislative Assembly are elected by their electors/voters, by adopting unholy alliance if they elect a member of Council of States, and if the electors of the members of Legislative Assembly are barred from challenging the such election, then the purpose of whole electoral setup will be defeated. 25. The Act of 1951 and Article 80(4) of the Constitution are enacted by the elected members only. Therefore such provisions represent the will of the people. Except the petitioner none else from such vast electoral constituency have challenged the election of respondent No.1 on such perceived threat of defeating the sanctity of electoral set up. Unless the said provisions are amended to include the elector’s elector, this Court cannot include him as elector in the election of members of Council of States. Therefore, the petition is hit by Section 81 of the RP Act. Regarding Limitation: 26. As already noted, another contention raised for rejection of the petition is that the same is barred by time. The petition itself is filed under Section 81 of the RP Act. As per the said provision, petition has to be filed within 45 days from the date of the election of the returning candidate. In this case, the election was declared on 12.06.2020. The period of 45 days expired on 27.07.2020. Petition is filed on 04.08.2020. 27. In para 15 of the petition, it is simply stated that the petition is in time as per Section 81 of the RP Act. It is not mentioned in the petition as to why it is filed beyond 45 days. The period of 45 days expired on 27.07.2020. Petition is filed on 04.08.2020. 27. In para 15 of the petition, it is simply stated that the petition is in time as per Section 81 of the RP Act. It is not mentioned in the petition as to why it is filed beyond 45 days. Only after filing the application an attempt is made to state that due to Covid-19 pandemic, the Hon’ble Supreme Court extended the period of limitation by its order dated 06.05.2020 for a period of 15 days from the date of the lifting of the lockdown. 28. Learned counsel for petitioner relying on proceedings issued by the Commissioner of Police and Additional District Magistrate, Bengaluru dated 14.07.2020, tried to contend that there was a total lockdown in Bengaluru from 08.00 p.m. of 14.07.2020 till 5.00 a.m. of 22.07.2020. He further submits that as per the order of Hon’ble Supreme Court dated 06.05.2020, he gets 15 days time from 27.02.2020 which falls on 11.08.2020. But the petition was filed on 04.08.2020. Thus he claimed that petition is in time. 29. Sri Vivek S.Reddy, learned Senior Counsel submits that the order of Hon’ble Supreme Court dated 06.05.2020 applies to the lockdown which was earlier to 06.05.2020. Referring to the notice dated 01.07.2020 issued by this Court and the Standard Operating Procedure referred to in the said notice, he submits that, this Court’s office was functioning and it was not totally closed. Therefore he submits that there was no impediment for filing the petition in the registry. He further submits that nothing was placed on record to show that prior to 03.08.2020, petitioner communicated to the Registry of this Court for filing the petition. Therefore, he submits that the order of the Hon’ble Supreme Court relied upon by the learned counsel for petitioner is not applicable. 30. He further submits that this Court had extended the limitation invoking Section 4 of the Limitation Act. But the said provision is not applicable to the election process which is filed under the said enactment. In support of his contention, he relied upon the judgment of Supreme Court in Hukumdev Narain Yadav vs Lalit Narain Mishra, (1974) 2 SCC 133 . But the said provision is not applicable to the election process which is filed under the said enactment. In support of his contention, he relied upon the judgment of Supreme Court in Hukumdev Narain Yadav vs Lalit Narain Mishra, (1974) 2 SCC 133 . In Hukumdev Narain Yadav’s case referred to supra, it was held that Section 4 to 24 of the Limitation Act are not applicable to the Election Petition by virtue of Section 29(2) of the RP Act. 31. As already pointed out, in the petition, petitioner has not tried to explain the delay in filing the petition. Further, whether there was a complete lockdown from 12.06.2020 and whether the office of this Court was functioning, even though hearing of the case was not being taken up and whether filing of the case was permitted, are disputed questions of fact. Therefore in such case Order VII Rule 11 cannot be invoked and that has to be decided on trial. 32. Since this Court has already held that the petition is barred by Section 81 R/w Section 2(e), Explanation to Section 81, Section 152 of the RP Act and Article 80(4) of the constitution, petition is liable to be rejected under Order VII Rule 11 of CPC. 33. Under such circumstance I.A.No.4/2020 does not survive for further consideration. Therefore, I.A.No.3/2020 is partly allowed. The petition is rejected with costs of Rs.25,000/-payable to the Advocates’ Welfare Fund within one month from the date of this order. I.A. No.4/2020 is dismissed as infructuous.