THE HON’BLE SRI JUSTICE V. ESWARAIAH W.P.No.24085 of 2002 ORDER: The petitioner filed this writ petition seeking Certiorari to call for the records relating to the order, dated 29-10-2002, in O.P.No.7 of 2001 on the file of the Election Tribunal-cum-Junior Civil Judge, Nakerekal, Nalgonda District (for short “the court below”), and quash the same insofar as directing the petitioner herein to pay a sum of Rs.2,000/- towards costs and directing the State Election Commission to take appropriate action against him. Insofar as the second direction directing the State Election Commission to take appropriate action against the petitioner is concerned, I am of the opinion that as the said direction was given without giving any reasonable opportunity to the petitioner, I am inclined to set aside the said direction. Insofar as imposition of costs of Rs.2,000/- is concerned, the court below imposed costs on the ground that the petitioner erroneously counted 30 votes, which were having sectarian mark stickers (bottu billalu) on the ballot papers and two votes, which were postal ballots, in favour of the 2nd respondent herein. The brief facts of the case are that the 1st respondent herein filed election petition in O.P.No.7 of 2001 before the court below against the 2nd respondent herein and other election officers alleging that she contested for the post of Sarpanch during the Gram Panchayat elections held in August 2001 and she was allotted the symbol of “Auto”, whereas the 2nd respondent herein was allotted “Chair” and the third respondent herein was allotted “Carom Board”. Three hundred votes were polled in favour of the 1st respondent, 301 votes for the 2nd respondent and two votes for the 3rd respondent. About 50 ballot papers were containing sectarian marks (bottu billalu). In spite of protest by the 1st respondent, the petitioner being Stage II Election Officer wrongly counted those votes in favour of the 2nd respondent herein. The request made by her for recounting proved futile. It is alleged that the petitioner in collusion with the 2nd respondent wrongly counted the above votes in favour of the 2nd respondent, which is against the Panchayat Raj Act and the Rules made thereunder. It is further stated that the Election Agent of the 1st respondent also objected for counting of the votes, which were appended with sectarian marks (bottu billalu) and when the 1st respondent presented a written complaint, it was not received by the counting officers. Her petition to recount was also not entertained. The counting agent of the 1st respondent, Election Petitioner, was also examined and stated that in spite of his objection, the invalid votes containing sticker marks were counted in favour of the 2nd respondent. The 2nd respondent herein was examined in the election petition and stated that she got 301 votes, whereas the 1st respondent got 300 votes and the 3rd respondent got two votes. The suggestion that she colluded with the officers and that she supplied the stickers to the voters was denied. The petitioner herein was examined as RW.3 in the Election Petition and stated that he acted as an Election Officer to Gram Panchayat Elections that took place on 20-08-2001. In all 600 votes were polled. 300 votes were polled for the 1st respondent, 301 votes for the 2nd respondent and two votes for the 3rd respondent. There were two rejected votes. In the cross- examination by the Election Petitioner, it is stated that he does not know if any sectarian marks were appended to ballot papers. No stickers were appended to any ballot papers and no one has objected to it. In view of the aforesaid evidence, the court below held that the version of the petitioner stating that ballot papers were not having any stickers is a patent lie and as per the recounting made in the court hall, 30 votes were found containing sectarian marks (bottu billalu) and instead of treating them as invalid, they were counted in favour of the 2nd respondent, apart from two votes, which were rejected, were also counted in favour of the 2nd respondent. Therefore, the conduct of the petitioner is highly deplorable. Accordingly, the election petition was allowed directing the petitioner to pay costs of Rs.2,000/- and also directing the State Election Commission to take appropriate action against the petitioner. Learned counsel appearing for the petitioner submits that the petitioner was not present during recounting in the Court hall and, therefore, it is not known at what point of time sectarian marks (bottu billalu) were appended to the ballot papers. Therefore, it cannot be said that the petitioner illegally counted the said votes in favour of the 2nd respondent. It is further stated that he only acted in his official duty and he performed his duty fairly and impartially without any collusion with any of the parties. I am unable to accept the said contention of the learned counsel for the petitioner, as the votes were counted in the open Court in the presence of both the candidates by obtaining ballot box and found 30 votes with sectarian marks (bottu billalu) and, therefore, it is not open to the petitioner to doubt the proceedings that were conducted in the open court. Therefore, it cannot be said that the petitioner performed his duty fairly and impartially without any collusion with any of the parties. Insofar as the declaration of the elections result in favour of the election petitioner is concerned, the 2nd respondent did not choose to question the said order of the court below and, as such, it has become final. Therefore, it is not open to the petitioner to question the merits and legality of the said order, except insofar as imposition of costs against him is concerned. A perusal of the evidence available on record goes to show that the petitioner has not acted fairly, impartially and truthfully, and therefore, I am of the opinion that the court below had rightly imposed costs of Rs.2000/- against the petitioner. In view of the aforesaid facts and circumstances of the case, I am not inclined to set aside the order of the court below insofar as imposition of costs are concerned. However, the direction given to the State Election Commission to take appropriate action against the petitioner is set aside. Accordingly, the writ petition is allowed in part. There shall be no order as to costs. ___________ 29-07-2010 Prv