Holding

Section 31A of the Delhi Wakf Act, 1995 is retrospective, deeming any prior disqualification as never having occurred, rendering the office‑of‑profit issue moot and leading to dismissal of the appeals.

Summary

Mohd. Akram Ansari contested the 2003 Delhi Legislative Assembly election and lost to Haroon Yusuf, who was then Chairman of the Delhi Wakf Board. The appellant challenged Yusuf's election on the ground that the Wakf Board chairmanship was an office of profit and that the election petition raised other issues, including alleged corrupt practices, which were not addressed by the High Court. The Supreme Court examined whether Section 31A of the Delhi Wakf Act, inserted by the 2006 amendment, is retrospective and thus nullifies any disqualification that might have arisen before its enactment. Relying on the language "shall be deemed never to have been disqualified" and the doctrine of legal fiction, the Court held that the provision operates retrospectively, rendering any prior disqualification ineffective and making the office‑of‑profit question academic. The Court also affirmed the presumption that points not dealt with in a judgment were not pressed, and therefore the appellant could not raise them on appeal. Consequently, both appeals were dismissed without costs.

Issues considered

Whether Section 31A of the Delhi Wakf Act, 1995 (as amended in 2006) operates retrospectively to remove disqualification for elections held before its enactment.
Whether the office of Chairperson or Member of the Delhi Wakf Board constitutes an office of profit disqualifying a person from being elected to the Delhi Legislative Assembly.
Whether an appellate court can consider issues raised in the election petition that were not addressed in the lower court's judgment.

Subjects

office of profitretrospective legislationlegal fictionelection disqualificationDelhi Wakf Actpresumption of points pressedappellate jurisdictionelection petition

Judgment

(

MOHD. AKRAM ANSARI A
v.
CHIEF ELECTION OFFICER & ORS.

DECEMBER 4, 2_007
-I
B
[A.K. MATHUR AND MARKANDEY KAT JU, JJ.]

Election Law:
Delhi WakfAct, 1995-s.31-A (asamendedin2006)-Prevention C
of disqualification for membership of Assembly of NCT, Delhi-
Retrospection operation of-HELD: The use of words "and shall be
deemed never to have been disqualified" in the provision makes it
clear that it is retrospective-Therefore, even ifthe elected candidate
was disqualified in 2003 for holding office ofChairman ofDelhi Wakf
Board, he has to be deemed not to have been disqualified in view of D
s. 31-A which was inserted in 2006.
Bhavnagar University v. Palitana Sugar Mill (P) Ltd., [2003) 2
SCC 111 and Raja Shatrunjit (dead) by Lrs. v. MohammadAzmaAzim
.Khan and Ors., AIR (1971) SC 1474, relied on. E
East End Dwelling Co. Ltd. v. Finsbury Borough Council, [1951]
2 All ER 587, referred to.
Judgment-HELD: There is a presumption in law that a judge
deals with all points which have been pressed before him-Ifa point F
is not mentioned in judgment, presumption is that it was never pressed
before the judge and was given up-However, presumption is
re buttable-It is open to party concerned to file an application before
the same judge or Bench which delivered the judgment, and, on being
satisfied, it is open to the court concerned to pass appropriate orders G
including an order ofreview and ordinarily it is not open to the party
concerned to file an appeal and seek to argue a point which even if
having been taken in petition or memorandum was not dealt with in
the judgment-On facts, in view ofpresumption, points not allowed
901 H
902 SUPREME COURT REPORTS [2007] 12 S.C.R.

A to be raised before Supreme Court-Presumption.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4981 of
2006.

From the Judgment/Order dated 22.8.2006 of the High Court of
B Delhi at New Delhi in E.P. No.2/2004. •
WITH
C.A. No. 5828 of 2006.
L.C. Goyal for the Appellant. Mohd. Akram Ansari, Appellant-In-
C Person in C.A. No. 5828 of 2006.
Meenakshi Arora, Balraj Dewan, Zafar Sadique, Mohd. Shahid,
Mohd. Shajid and Goodwill lndeevar for the Respondents and Naved
Yar Khan Respondent No. 6-In-Person.
D The following Order of the Court was delivered:
ORDER
1. Heard learned counsel for the parties including the appellant
appearing in person in C.A. No. 5828/2006. The appellant in C.A. No.
E 5828/2006 is also respondent No. 6 in C.A. No. 498112006.
2. C.A. No. 498112006 is directed against the judgment and order
dated 22.8.2006 passed by a learned Single Judge of the Delhi High
Court in Election Petition No. 2/2004. C.A. No. 5828/2006 is directed
F against the judgment and order dated 22.8.2006 passed by the same
learned Single Judge of the High Court in Election Petition No. 3/2004.
The appellant in C.A. No. 5828/2006 (who was petitioner in Election ··"'-
'
Petition No. 3/2004) has stated before the High Court that Election
Petitions No. 2 and 3 of2004 were almost identical and hence no evidence
was recorded in Election Petition No. 3/2004.
G
3. The facts of the case are that the appellant contested the election
to the Delhi Legislative Assembly in 2003 but lost. The respondent Haroon
Yusuf was declared elected. At the time of the election Haroon Yusuf was
also the Chairman of the Delhi WaqfBoard.
H
MOHD. AKRAM ANSARI v. CHIEF ELECTION OFFICER 903

4. The question involved in both these appeals is whether the office A
of Chairperson or Members of the WalfBoard is an office of profit so as
to disqualify a person from being elected as a member of the Legislative
Assembly ofNCT of Delhi. It may be noted here that an amendment has
been brought about inthe Wakf Act, 1995 by way of The Wakf(Delhi
Amendment) Act, 2006 (Delhi Act 3 of2006) by inserting Section 3lA B
in the 1995 Act. Section 31A of the Wakf Act, 1995 as amended by
The Wakf(Delhi Amendment) Act, 2006 reads as under:-
"31 A. Prevention of disqualification for membership of
Legislative Assembly of National Capital Territory of Delhi.
It is hereby declared that the offices of the Chairperson or c
Members of the Board constituted for Union Territory of Delhi
shall not be disqualified and shall be deemed never to have been
disqualified for being chosen as, or for being, a member of the
-(
Legislative Assembly ofNational Capital Territory of Delhi."
D
5. The appellant, appearing in person, submitted that the aforesaid
Section 3IA came into force only in 2006, whereas the election was held
in 2003, and the election petition was filed on 13.1.2004. He submitted
that Section 31 A is not retrospective and hence will have no application
i to elections held before 2006. We do not agree.
E
6. It is true that the Amendment Act 2006 does not specifically state
that it is retrospective. However, the use of the words "and shall be
deemed never to have been disqualified" in the above provision makes
-J it clear that it is retrospective.
F
7. The words "and shall be deemed never to have been
disqualified" in Section 3 lA creates a legal fiction. Legal fictions are well-
known in law. In the oft-quoted passage of Lord Asquith in East End
Dwelling Co. Ltd. v. Finsbury Borough Council, [1951] 2 All ER 587
it was observed:
G
-.,
"If you are bidden to treat an imaginary state of affairs as real, you
must surely, unless prohibited from doing so, also imagine as real
the consequence and incidents which, if the putative state of affairs
had in fact existed, must inevitably have flowed from or
accompanied it-- The statute says that you must imagine a certain H
)
904 SUPREME COURT REPORTS (2007] 12 S.C.R.

A state of affairs; it does not say that having done so, you must cause
or pennit your imagination to boggle when it comes to 1he inevitable
corollaries of that state of affairs".
8. The aforesaid observation has been approved and followed by
our own Supreme Court in a series of decisions e.g. Bhavnagar
B University v. Palitana Sugar Mill (P) Ltd., [2003] 2 SCC 111 (para
33), Raja Shatrunjit (dead) by Lrs. v. Mohammad Azmat Azim Khan
and Ors., AIR(1971)SC 1474etc.
9. Hence, even if the elected candidate was disqualified in the year
C 2003, he has to be deemed not to have been disqualified in view of Section
31-A which was inserted in the year 2006.
10. In view of the above it is not necessary for us to go into the
question as to whether de hors Section 3lA the office of Chairperson of
the Wakf Board can be said to be an office of profit. The aforesaid
D question has become academic now after the insertion of Section 3lA.

11. The appellant then submitted that apart from the point that the
elected candidate Haroon Yusuf was holding an office of profit, the
appellant had also raised a large number of other points in the election
E petition, including the allegation of corrupt practice by Haroon Yusuf, but
these have not been dealt with by the High Court. He submitted that the
High Court should have dealt with all the points mentioned in the election
petition.
12. We have carefully gone through the impugned judgment of the
F High Court and we find that the only point discussed therein is the point
whether Haroof Yusuf was disqualified because he was holding an office
of profit. No other point has been discussed in the aforesaid judgment.
13. The appellant submitted that he had taken a large number of
G points in his election petition, but they have wrongly not been discussed
in the impugned judgment.
14. In this connection we would like to say that there is a presumption
in law that a Judge deals with all 1he points which have been pressed before
him. It often happens that in a petition or appeal several points are taken
H
MOHD. AKRAM ANSARI v. CHIEF ELECTION OFFICER 905

in the memorandum of the petition or appeal, but at the time of arguments A
only some of these points are pressed. Naturally a Judge will deal only
with the points which are pressed before him in the arguments and it will
be presumed that the appellant gave up the other points, otherwise he
would have dealt with them also. If a point is not mentioned in the
judgment of a Court, the presumption is that that point was never pressed B
before the learned Judge and it was given up. However, that is a rebuttable
presumption. In case the petitioner contends that he had pressed that point
also (which has not been dealt with in the impugned judgment), it is open
to him to file an application before the same learned Judge (or Bench)
which delivered the impugned judgment, and ifhe satisfies the Judge (or C
Bench) that the other points were in fact pressed, but were not dealt with
in the impugned judgment, it is open to the concerned Court to pass
appropriate orders, including an order of review. However, it is not
ordinarily open to the party to file an appeal and seek to argue a point
which even if taken in the petition or memorandum filed before the Court D
-1
below, has not been dealt with in the judgment of the Court below. The
party who has this grievance must approach the same Court which passed
the judgment, and urge that the other points were pressed but not dealt
with.
15. Since no other point except the point of office of profit has been E
dealt with in the impugned judgment of the High Court, the presumption
is that no other point was pressed before the High Court, even though
the point may have been contained in the election petition. Hence we do
not allow these points to be raised here.
F
16. With the observations made above, the appeals are dismissed.
No costs.
RP. Appeals dismissed.