V. GOPALA GOWDA, J. ( 1 ) ELECTIONS to the 3rd respondent-Motagondanahalli Gram Panchayat was held on 6-8-2000 and after counting, the Returning Officer recorded in Form 31 the number of votes secured by each candidate as per Annexure-A. Some persons presented applications at 1-30 p. m. for recounting of votes and the Returning Officer allowed the same. After recounting, it was found that petitioner secured 367 votes and 4th respondent secured 370 votes as against 371 and 369 votes mentioned in annexure-A. The same was announced in Annexure-D. Aggrieved by the same the petitioner has filed this writ petition seeking to quash the declaration of result of 4th respondent in Annexure-E and to direct the returning Officer to declare the petitioner as elected. ( 2 ) LEARNED Counsel for the petitioner submits that even though the petitioner has got alternative remedy under Section 19 of the Karnataka panchayat Raj Act, the petitioner has approached this Court as the returning Officer should not have entertained the application for recounting after signing Form 31. According to the learned Counsel, the returning Officer becomes functus offlcio after signing Form 31. Reliance was placed on the decision in the case of K. Venkatachalam v A swamickan and Another and contended that despite availability of alternative remedy, writ jurisdiction can be exercised. ( 3 ) LEARNED Counsel for respondents 1, 2 and 4 vehemently submitted that the writ petition is not maintainable in view of availability of alternative remedy. It is further submitted that a Division Bench of this court in writ appeal against an interlocutory order passed by this Court has kept open the maintainability of writ petition and hence it is prayed to dismiss the writ petition. Learned Counsel for,4th respondent submits that even if the Returning Officer signs Form 31 as found at Annexure-A, that does not take away his jurisdiction to entertain applications for recounting. The Counsel submits that the matter requires evidence and this Court cannot record the same in writ jurisdiction. ( 4 ) AFTER hearing the learned Counsel for the parties at length, the learned Government Pleader has secured records as directed by this court. The controversy revolves round the interpretation of Rule 71 of the Karnataka Fanchayat Raj (Conduct of Election) Rules, 1993 and the same is extracted hereunder. "71. Recounting of votes. ( 4 ) AFTER hearing the learned Counsel for the parties at length, the learned Government Pleader has secured records as directed by this court. The controversy revolves round the interpretation of Rule 71 of the Karnataka Fanchayat Raj (Conduct of Election) Rules, 1993 and the same is extracted hereunder. "71. Recounting of votes. (1) After the completion of the counting, the Returning Officer shall record in the result sheet in Form 31 the total number of votes polled by each candidate and announce the same. (2) After such announcement has been made, a candidate or in his absence his Election Agent or any of his Counting Agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. (3) On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the Returning Officer under sub-rule (3) shall be in writing and contain the reasons therefor. (5) If the Returning Officer decides under sub-rule (3) to allow a recount of the votes either wholly or in part he shall. (a) do the recounting in accordance with the rules applicable for counting; (b) amend the result sheet in Form 31 to the extent necessary after such recount; and (c) announce the amendments so made by him. (6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the Returning officer shall complete and sign the result sheet in Form 31 and no application for recount shall be entertained thereafter: provided that no step under this sub-rule shall be taken on the completion of counting until the candidate and Election Agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (2)". A plain reading of the above rule gives no room for ambiguity. Each stage of steps to be taken in the matter of recounting is prescribed. A plain reading of the above rule gives no room for ambiguity. Each stage of steps to be taken in the matter of recounting is prescribed. Under sub-rule (1), the Returning Officer has to record in Form 31 the total number of votes secured (in the rule the wordings "polled by each candidate" is mentioned wrongly instead of the words "secured by each candidate") by each of the candidates and announce the same. Under sub-rule (2), candidate or his agents may apply for recounting. Under sub-rule (3), the Returning Officer shall take a decision and allow or reject the application. Sub-rule (4) mandates the Returning Officer to record reasons for his decision. Sub-rule (5) stipulates that if the Returning officer allows the recounting application, he shall (a) do recounting, (b) amend the result in Form 31 to the extent necessary, and (c) announce the amendments made. Under sub-rule (6) the Returning Officer shall announce the total number of votes and only thereafter complete and sign the result sheet in Form 31. No application for recount shall be entertained thereafter. " ( 5 ) IN the instant case, it is clear from Annexure-A that the Returning officer announced the total number of votes secured by each candidate and signed Form 31. It implies that such signature was made under sub-rule (6) of Rule 71 of the Rules after counting and recounting are over. The reason is, that the Returning Officer is not empowered under sub-rule (1) to sign Form 31 immediately after announcing the number of votes secured by each candidate. ( 6 ) THERE is yet another reason to hold that the Returning Officer has signed Form 31 after the entire process was over. Clause (b) of sub-rule (2) stipulates that after recounting, the Returning Officer shall amend the result sheet in Form 31 to the extent necessary. In the instant case, the Returning Officer has not made any such amendment in Form 31 at annexure-A after the alleged recounting was done. On the other hand, he has entered the total number of votes secured after the alleged recounting in another Form 31, which is produced as Annexure-D. Such a thing is neither contemplated nor permitted under the rules. If there is any change in the total number of votes secured by a candidate after recounting, the Returning Officer shall effect amendment in Form 31 to the extent required. If there is any change in the total number of votes secured by a candidate after recounting, the Returning Officer shall effect amendment in Form 31 to the extent required. Therefore, the allegations made in paragraph 4 of the writ petition that application for recounting was entertained after the candidates and their respective agents left the counting hall and the alleged recounting was done in the absence of the petitioner and his agents, has to be accepted. That is also admitted in the endorsement at annexure-C issued by the Returning Officer. It is clearly stated in that endorsement that the petitioner and his agents were not present when called; that they were not present after counting and for recounting they were not present. Therefore, it has to be held that after signing Form 31, the Returning Officer has entertained recounting contrary to sub-rule (6) of Rule 71 as it prohibits entertaining applications for recounting after signing Form 31. It follows that the result announced in Form 31 at Annexure-D based on the alleged recounting is bad in law and liable to be quashed. Consequently, the declaration made under Annexure-E is also liable to be quashed. ( 7 ) THE contention of learned Counsel for the respondents that petitioner has got alternative remedy cannot be accepted as the impugned action of the Returning Officer is without jurisdiction and contrary to the provisions of Rule 71 of the Rules. The action of the Returning officer in entertaining recounting application is bad in law, as it was not permissible in law at the stage at which he had entertained the recounting application under the sub-rule (6) of Rule 71 of the Rules, therefore the action of the fourth respondent is a clear case of arbitrary exercise of power and the same is tainted with legal mala fides on account of the above said action of the Returning Officer, the fourth respondent has secured more votes than the petitioner as per Annexure-A. The Returning officer instead of declaring the results of the election declaring that the petitioner got elected, he had illegally entertained the recounting application of the fourth respondent in contravention of the Rule 71, sub-rule (6) of the Rules. ( 8 ) THIS Court has got plenary jurisdiction under Article 226 of the constitution to entertain this writ petition. ( 8 ) THIS Court has got plenary jurisdiction under Article 226 of the constitution to entertain this writ petition. Even otherwise also, since rule nisi has been issued in this case, the matter has been entertained on merits in view of the law laid down by the Apex Court in the case of miss Raj Soni v Air Officer in charge, Administration, which decision has been followed by the Division Bench of this Court in the case of B. T. Krishnegowda v Karnataka State Co-operative Apex Bank Limited and others, at para 5 which relevant portion is extracted as hereunder:"5. The short question for consideration is whether having regard to the efflux of time during the pendency of the writ proceedings, it is just and expedient in the circumstances to drive the appellant to seek the alleged alternative remedy available to him under Section 70 of the Act. On this point, strong reliance is placed upon the decision in Miss Raj Soni's case, supra. A similar contention regarding maintainability of a petition under Article 32 of the Constitution having been raised in the said case, the supreme Court has observed thus. "it is not necessary and we do not propose to go into the question in this case as to whether the petition is maintainable under Article 32 of the Constitution, because this petition has been pending in this Court since 1981. The petitioner's claim is just. It will, therefore, be a travesty of justice to send her to any other forum at this stage. . . . . . . . . . . . " ". In that case on the contention of alternative remedy, the observations of Apex Court in the case of Assam Sillimanite Limited v union of India, has been extracted, which reads as under:". . WE do not think that this is a fair course to be adopted in this case. The writ petition was filed by the petitioner-company as early as in February 1973 and has been pending in this Court for about 17 years. It is true that the petitioner could have filed a suit for the same purpose with a prayer for additional relief by way of compensation or damages. But we do not think that it should now be asked to go back to file a suit for compensation or damages which may be barred by limitation. It is true that the petitioner could have filed a suit for the same purpose with a prayer for additional relief by way of compensation or damages. But we do not think that it should now be asked to go back to file a suit for compensation or damages which may be barred by limitation. After the lapse of such a long time, in our opinion, the proper course is to adopt some method for deciding the quantum of relief that could be granted to the petitioner by way of compensation and damages, which can at once be simple and expeditious and which will avoid further unnecessary litigation. . . ". ( 9 ) THE other submission of the learned Counsel for respondents that the matter requires evidence, is untenable and cannot be accepted. From what has been observed above, it is crystal-clear that no evidence is required to resolve the dispute. The documents produced are self-explanatory and no more evidence or material is required. ( 10 ) FOR the foregoing reasons, the writ petition is allowed and Annexures-D and E are quashed. Petitioner is declared as elected from basavenahalli constituency to 3rd respondent-Gram Panchayat. ( 11 ) AFTER dictating the order, learned Counsel for 4th respondent prays for stay of this order for four weeks as his client intends to file appeal. The prayer is granted staying the operation of this order for a period of thirty days from today. --- *** --- .