IMPORTANT POINT
An election petition is not invalidated by citing the wrong legal provision, provided the Tribunal has jurisdiction to hear the case, and necessary parties can be impleaded as issues arise during the proceedings.

JUDGMENT :

Hon'ble Ajit Kumar, J.

1. Heard Sri Ravi Anand Agarwal, learned counsel for the petitioner, Sri Jeevanjee Srivastava, learned counsel for the election petitioner-respondent and learned Standing Counsel for the contesting respondents.

2. By means of this petition filed under Article 226 of the Constitution, petitioner has questioned the order passed by the Election Tribunal 13th February, 2024 rejecting the application under Order VII Rule 11 of C.P.C. He has also challenged the order dated 24th August, 2023, whereby impleadment application of the petitioner seeking impleadment of all the contesting candidates of the election concerned, has been sought to be impleaded.

3. It is argued by learned counsel for the petitioner that the laws and rules relating to the election disputes have to be strictly construed and any petition under the wrong provision of law if filed should have been thrown at the very threshold. It is submitted that the election petition was entertainable only under Section 20 whereas under absolutely a wrong provision i.e. Section 43 the election petition was permitted and the same had been entertained.

4. It is also submitted by learned counsel for the petitioner that impleadment application has been allowed permitting the impleadment of the contesting candidates by the order impugned on the ground that prescribed period of limitation is 14 days to remove the defects hence the order passed by the Tribunal on this count is also bad.

5. Per contra, meeting the arguments advanced by learned counsel for the petitioner, Sri Jeevanjee Srivastava, learned counsel for the contesting respondents submits that application under Order VII Rule 11 of C.P.C. was even not supported by an affidavit and in the said application the plea was taken that petition was filed under the wrong provisions of law and therefore, ought not to have been entertained. He submits that election laws, which are procedure, are required to be strictly construed. If Tribunal has a right to entertain a petition having jurisdiction to try it, merely because petition mentions a wrong provision of law, it cannot be thrown and the Tribunal can always allow amendment to correct this technical defect. Permission granted to correct the provision clause, it is argued, cannot be said to have amounted to modification or removal of such substantial defect which may go to the root of the matter questioning the jurisdiction.

6. Meeting the arguments about the impleadment of the parties, he submits that all the contesting candidates are necessary parties and whether these parties should have been impleaded, can still be adjudicated if an issue is framed in the election petition. Thus, he submits that this aspect whether the other contesting candidates were party or not, can be looked into while the election petition is finally heard and decided.

7. Having heard learned counsel for the respective parties and having perused the records, I find that Order VII Rule 11 application was moved questioning the election petition on the ground that it was presented under the wrong provisions of law. The law is well settled on the point that even if the petition is placed quoting wrong provisions of law and the Court or Tribunal is having jurisdiction to entertain such petition or then mention of wrong provisions would not denude the Court and Tribunal of its power to try election petition. This has been so held by the Supreme Court in the case of N. Mani v. Sangeetha Theatre and others, (2004) 12 SCC 278 in which vide paragraph 9 the Supreme Court held thus:

"9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law."

8. In such above view of the matter, therefore, the Order VII Rule 1