Justice PB Balaji noted that the petitioner, a voter from the constituency, had laid down foundational facts, which could be proved only if the parties go for trial. Thus, the court rejected Subaya's argument that the petition lacked cause of action.

“The ratio laid down by the Constitution Bench of the Hon'ble Supreme Court as well as the above referred Three Judges' Benches of the Hon'ble Supreme Court would squarely apply to the facts of the present case. The necessary foundation facts, as set out earlier, have been clearly pleaded and the proof of such foundation facts is possible only if the parties are directed to go for trial. At the threshold, the election petition cannot be rejected for want of cause of action,” the court said.

The court, however, paved the way for a bye-election in the constituency as the court struck down a relief sought by the voter to declare the candidate who came second as the winner. The court noted that such a relief could be granted only when the constituency had two candidates and not when there were more than 2 candidates, like in the present case.

“In Muniraju Gowda P.M vs Munirathna and Others, reported in (2020) 10 SCC 192, the language employed under Section 101 of R.P.Act has been specifically dealt with by Three Judges Bench of Hon'ble Supreme Court, where the Hon'ble Supreme Court has clearly laid down the law that the Rule for exclusion of votes secured by corrupt practices by returned candidate in computation of total votes and consequently declaring the candidate who secured the second highest number of votes, as duly elected, can be applied only when there are just two candidates at an election and not when there are more than two candidates. In the light of the law settled down by two Three Judges' Benches of Hon'ble Supreme Court referred herein supra and admittedly, in the present case, there are more than two candidates who contested the election, the power of the Court to declare the candidate who secured the second highest votes as elected, cannot be exercised,” the court said.

The court had previously stayed the bye-elections in Tiruchy (East), Perundurai, Viralimalai, Karur, and Ambasamudram Assembly constituencies, taking note of the pendency of election petitions challenging the victory of the winning candidates from these constituencies.

It may be noted that Subbaya had won from the constituency after contesting on behalf of the AIADMK party, winning with a clear margin of 10,000 votes. However, soon after the election, Subaya resigned. His resignation was accepted by the Speaker and he joined the TVK party afterwards. This acceptance of resignation was also challenged before the High Court and orders have been reserved on the same.

Meanwhile, a voter from the constituency had challenged Subaya's victory. He had alleged that Subaya had engaged in corrupt practices under Section 123(1) and 123(2) of the Representation of People Act.

Subaya however filed an application seeking to reject the election petition. It was argued that the petitioner, being a voter in the constituency could not have challenged the election victory especially when other candidates had not challenged the same. It was also argued that the voter had not disclosed cause of action, which was necessary while challenging the victory. It was argued that the voter had only made bald and uncorroborated allegations, which were not legally maintainable.

The voter, Kanthimathinathan, on the other had submitted that an election petition could be dismissed at threshold only when it does not comply with the provisions of Sections 81, 82 and 117 of RP Act. It was submitted that even Subaya had not alleged that there was non-compliance of these provisions.

The voter submitted that the election petition clearly disclosed a definite cause of action, right from improper rejection of the nominations by the Returning Officer, and various corrupt practices of bribery and exercise of undue influence by the applicant and his agents.

The voter submitted that in the petition, the petitioner was only required to lay foundation for the challenge of the election and the proof of allegations of the foundation laid in the election petition could be adduced only at the trial.

After considering the materials, the court was satisfied that the voter had established the foundational materials and thus the court was not inclined to reject the election petition. At the same time, the court also noted that the petitioner's prayer to declare the candidate who came second as the returned candidate was not maintainable as one could not presume that all the votes of the returning candidate would have gone to the second candidate. Thus, the court permitted Subaya's application to strike off the particular prayer.

Counsel for Applicant: Mr. Satish Parasaran Senior Counsel For Mr. P. J. Rishikesh

Counsel for Respondent: Mr. R. Viduthalai Senior Counsel For Ms. R. Revathy Arya Rajinikanth Ahilan and Daniel