important points
Use of the words “and shall be deemed never to have been disqualified” in Section 31A, Wakf Act, 1995 (as amended) makes it retrospective.
If a point is not mentioned in the judgment of a Court, it shall be presumed that that point was never pressed before the learned Judge and it was given up. No appeal lies on such points.

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. 5828/2006 is also respondent No. 6 in C.A. No. 4981/2006.

2.C.A. No. 4981/2006 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 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 of 2004 were almost identical and hence no evidence was recorded in Election Petition No. 3/2004.

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 Waqf Board.

4.The question involved in both these appeals is whether the office of Chairperson or Members of the Walf Board is an office of profit so as to disqualify a person from being elected as a member of the Legislative Assembly of NCT of Delhi. It may be noted here that an amendment has been brought about in the Wakf Act, 1995 by way of The Wakf (Delhi Amendment) Act, 2006 (Delhi Act 3 of 2006) by inserting Section 31A in the 1995 Act. Section 31A of the Wakf Act, 1995 as amended by The Wakf (Delhi Amendment) Act, 2006 reads as under :

“31A. 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 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 of National Capital Territory of Delhi.”

5.The appellant, appearing in person, submitted that the aforesaid Section 31A 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 31A is not retrospective and hence will have no application to elections held before 2006. We do not agree.

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 it clear that it is retrospective.

7.The words ‘and shall be deemed never to have been disqualified’ in Section 31A 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 Council1, (1951) 2 All ER 587 it was observed:

“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 state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the 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 University v. Palitana Sugar Mill (P) Ltd.2, 2003(2) SCC 111 (para 33), Raja Shatrunjit (dead) by Lrs v. Mohammad Azmat Azim Khan and others3, AIR 1971 SC 1474 etc.

9.Hence, even if the elected candidate was disqualified in the year 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 31A the office of Chairperson of the Wakf Board