Ansari Vs. Chief Election Officer & Ors  Insc 1214 (4 December 2007)
K. Mathur & Markandey Katju
O R D
E R CIVIL APPEAL NO. 4981 OF 2006 WITH
CIVIL APPEAL NO. 5828 OF 2006 Naved Yar Khan .. Appellant -versus- Haroon Yusuf
and Anr. .. Respondents
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.
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.
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.
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.
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.
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
words and shall be deemed never to have been disqualified in Section
31A creates a legal fiction. Legal fictions are well-known in law.
oft-quoted passage of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury
Borough Council, (1951) 2 All ER 587 it was observed:
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.
aforesaid observation has been approved and followed by our own Supreme Court
in a series of decisions e.g. Bhavnagar University vs. Palitana Sugar Mill (P) Ltd.
2003(2) SCC 111 (para 33), Raja Shatrunjit (dead) by Lrs vs. Mohammad Azmat Azim
Khan and others AIR 1971 SC 1474 etc.
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.
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 can be
said to be an office of profit. The aforesaid question has become academic now
after the insertion of Section 31A.
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 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.
have carefully gone through the impugned judgment of the 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.
other point has been discussed in the aforesaid judgment.
The appellant submitted that he had taken a large number of points in his
election petition, but they have wrongly not been discussed in the impugned
this connection we would like to say that there is a presumption in law that a
Judge deals with all the points which have been pressed before him. It often
happens that in a petition or appeal several points are taken in the memorandum
of the petition or appeal, but at the time of arguments 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 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 if he satisfies the
Judge (or 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 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.
Since no other point except the point of office of profit has been 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
With the observations made above, the appeals are dismissed. No costs.