ORDER
G.D. Sharma, J.
1. In the above titled Election Petitions the counsel appearing for the respondents, namely, M/s. V. R. Wazir and S. Sethi have raised the preliminary objection that this court has got no jurisdiction to try these election petitions. According to them, these petitions have been assigned to the undersigned, who is only an Additional Judge and the order of assignment does not speak as to why in the absence of a permanent Judge the assignment was necessitated, in favour of an Additional Judge and as the assignment is without any reason so applying the ratio of the case of Krishan Gopal v. Parkashchandra, AIR 1974 SC 209, the assignment requires to be quashed and the petitions dismissed.
2. The argument has been controverted by the counsel appearing for the petitioners in both the petitions as well as Mr. S. K. Anand, G.A. Mr. P. L. Koul, learned counsel for the petitioner Dhah Raj Bhargotra (E.P. No. 5/96) has contended that the ratio of the case of Krishan Gopal (supra) is not applicable to the facts of the present case. In that case the appointment of the Judge (Mr. Justice Suraj Bhan) had been made under Article 224A of the Constitution which deals with the appointment of retired Judges at sittings of High Courts. That after his retirement Hon'ble Mr.Justice Suraj Bhan was requested by the Hon'ble Chief Justice of Madhya Pradesh High Court with the previous consent of the President to sit and act as Judge of the Madhya Pradesh High Court under Article 224A of the Constitution and in that case the Apex Court had held that a person sitting and acting as a Judge of the High Court under Article 224A is a Judge of the High Court for the purpose of Section 80A(2) of the Representation of the People Act i.e. to hear the election petition. The counsel has further contended that there is no law which envisages that an election petition can only be heard by a permanent Judge. That the facts of the present case differ from the facts of the case cited at the bar as herein the appointment of Additional Judge stands made under Article 224 of the Constitution of India read with Section 100A of the Constitution of Jammu and Kashmir.
3. Mr. S. K. Anand, learned counsel appearing for respondents No. 1, 2 and 4 (in Election Petition No. 4/96) has lent support to the argument of Mr. Koul by urging that law equally empowers an Additional Judge to hear an election petition and there is no distinction between a permanent and an additional Judge.
4. Mr. P. Kohli, learned counsel for the petitioner (in E.P. No. 4/96) has contended that Section 88-A of the J. & K. Representation of People Act, 1957 (hereinafter to be referred as the Act) empowers the High Court to hear the election petitions. The Section runs as under:-
'(1) the court having jurisdiction to try an election petition shall be the High Court;
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose.'
5. It is urged that nowhere, the section contemplates that an election petition can only be tried by a permanent Judge. In the case of Krishan Gopal v. Parkashchandra (AIR 1974 SC 209) (supra) the Apex Court had moulded the relief under the powers vested in it under Article 142 of the Constitution after keeping in mind the peculiar facts and circumstances of the case when the concerned Judge was aretired Judge and appointed to sit as a Judge. That in the said judgment there is obiter dicta to hold that an Additional or anActing Judge is not qualified to try an election petition. It is contended that the learned counsel have picked out a word or a sentence divorced from context of the judgment hut that cannot be treated as law declared by the Supreme Court. That this is not the proper approach and such an argument has been adopted only to protract the proceedings. In order to buttress his argument, the learned counsel has cited the case of B. Shama Rao v. Union Territory of Pondicherry, AIR 1967SC 1480 wherein it has been held that a decision is binding not because of its conclusion but regard to its ratio and the principles laid down therein.
6. After considering the above stated respective contentions of the learned counsel appearing for the parties it becomes necessary at the outset to reproduce the views of the Hon'ble Supreme Court expressed in para 22 of the case of Krishan Gopal (AIR 1974 SC 209) (Supra) :
'22. The two legal contentions which have been advanced on behalf of the appellant, in our opinion, are not well founded and we have no hesitation to repel them. All the same, looking to the special facts and circumstances of the case, we are of the opinion that it is fit and proper and in the interest of justice that the election petition filed by the appellant be tried by another learned Judge of the High Court who may be assigned for the purpose by the Chief Justice of that court. It seems indeed desirable that election petitions should ordinarily if possible be entrusted for trial to a permanent judge of the High Court even though we find that additional or acting judges or those requested under article 224A of the Constitution to sit and act as Judges of the High Court, if assigned for the purpose by the Chief Justice, are legally competent to hear those matters. We, therefore, set aside the order dated August 20. 1973. The election petition filed by the appellant shall now be heard by a permanent judge who may be assigned for the purpose by the learned Chief Justice. The case may, therefore, be placed before the learned Chief Justice for necessary orders. The appeal is accepted accordingly. The parties in the circumstances shall bear their own costs of this Court and in the High Court.'
7. From the above said observations it becomes clear that no-wherc it has been held that election petitions are only to be tried by perma-nent judges or that the Chief Justice is required to assign the reasons when the trial is entrusted to Additional or Acting Judges or Judges appointed under Article 224A. No doubt, the court has observed that it is desirable that election petition should ordinarily if possible be entrusted for trial to a permanent judge of the High Court but that does not mean that other judges falling under the categories of Articles 224 and 224A of the Constitution are divested of the powers to try an election petition. The Hon'ble Chief Justice has exercised his judicial discretion for the assignment of these election petitions which cannot be challenged on the ground that it is bereft of any reason as there is no requirement of law to assign the reasons. Rather, the power of assignment is unfettered as in the case of Krishan Gopal (AIR 1974 SC 209) (Supra) the addition of the words 'if possible' alongwith the word 'desirable' extends the scope for assignment keeping in view of the facts and the circumstances of a case. Viewing the controversy in such perspective, there can be no difficulty in veering round to the view that the objection raised by the learned counsel namely, M/s, V. R. Wazir & Sunil Sethi is devoid of any legal force and not tenable.
EP No. 5/96
8. Notice issued for publication in the Government Gazette in terms of the order dated 22-9-1997 was published in the Government Gazette on 25-9-1997 (as per the copy attached with the record). Thus the publication conforms to the requirement of Sub-clause (c) of section 116. From this it follows that notices for the withdrawal of the election petition have been served on all the parties to the petition as section 115 envisages. Now, the counsel for the parties arc directed to address the arguments on the withdrawal petition. List on 30-12-97.
E.P. No.4/97
9. List this petition for the framing of issues in terms of the order dated 6-10-1997, on 30-12-97.