Retrospective legal fiction under Wakf law saved the election, while undealt-with grounds could not be raised in appeal.

Section 31A of the Wakf Act, 1995, inserted by the Wakf (Delhi Amendment) Act, 2006, was treated as retrospective because the words deeming office holders to have been "never" disqualified created a legal fiction with full operative effect. The alleged disqualification based on holding office as Chairperson of the Wakf Board therefore did not survive. The court also indicated that points not shown to have been pressed and dealt with in the High Court judgment are ordinarily not open to be urged for the first time in appeal, although omission may sometimes be corrected before the same court. The appeals therefore failed.

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Issues: (i) whether Section 31A of the Wakf Act, 1995, inserted by the Wakf (Delhi Amendment) Act, 2006, operated retrospectively so as to save the election of a member of the Delhi Legislative Assembly despite the alleged disqualification arising from holding office as Chairperson of the Wakf Board; and (ii) whether points stated in the election petition but not dealt with in the High Court judgment could be urged in appeal.

Issue (i): whether Section 31A of the Wakf Act, 1995, inserted by the Wakf (Delhi Amendment) Act, 2006, operated retrospectively so as to save the election of a member of the Delhi Legislative Assembly despite the alleged disqualification arising from holding office as Chairperson of the Wakf Board.

Analysis: The words that the office holders "shall be deemed never to have been disqualified" create a legal fiction. That language was treated as sufficient to give the amendment retrospective effect, even though no express retrospectivity was stated. Once the legal fiction is given full effect, the earlier alleged disqualification cannot survive.

Conclusion: Section 31A was held to operate retrospectively, and the alleged disqualification based on office of profit did not survive.

Issue (ii): whether points stated in the election petition but not dealt with in the High Court judgment could be urged in appeal.

Analysis: The judgment proceeded on the presumption that a judge deals only with points pressed before the court. If a point does not appear in the judgment, the normal inference is that it was not pressed, though that presumption is rebuttable before the same court by seeking appropriate correction or review. An appellate court was not treated as the proper forum to raise such undealt-with issues for the first time.

Conclusion: The undealt-with points were not permitted to be urged in appeal.

Final Conclusion: The appeals failed because the retrospective saving provision removed the alleged disqualification and the additional grounds were not open to be canvassed in appeal.

Ratio Decidendi: A statutory deeming provision expressed in retrospective terms must be given full effect, and issues not shown to have been pressed and decided below cannot ordinarily be raised for the first time in appeal.

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