SYNOPSIS

1. Provisions involved in the topicIndian Evidence Act, 1872Section 4 May presume" - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:"Conclusive proof" - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. The Competition Act, 2002Section 3(3)(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which (a) directly or indirectly determines purchase or sale prices;(b)limits or controls production, supply, markets, technical development, investment or provision of services;(c)shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;(d)directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub- section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. Explanation.- For the purposes of this sub- section," bid rigging" means any agreement, between enterprises or persons referred to in sub- section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.1. Scope and Applicability of the ProvisionsA presumption is an inference of fact drawn from other known or proved facts. It is a rule of law under which courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other evidence. Section 4 of the Indian Evidence Act deals with the levels of presumptions that courts may or must make, and their refutability. A court, where it may presume leaves it to the court to make or not make the presumption, according to the circumstances of the case. Under shall presume no option is left to the court, but is bound to take the fact as proved until evidence is given to disprove it, and the party interested in disproving it must produce such evidence if he can. When the law says that a particular kind of evidence would be conclusive; that fact can be proved either by that evidence or by some other evidence which the court permits or requires. There is no difference between conclusive proof and conclusive evidence. When no direct evidence is offered or obtainable, disputed facts are sometimes inferred from other facts which are themselves proved or known. In such cases, the inference is called presumption.[footnoteRef:1] Where a presumption operates, a certain conclusion may or must be drawn by the court in the absence of evidence in rebuttal. Presumptions are based on consideration of common sense and public policy, but not necessarily those of logic. For example, if after operation, a swab is found to have been left in a patients body, it seems reasonable enough to infer, in the absence of explanation by the surgeon, that the accident arose through his negligence. If a surgeon uses proper care, such an accident does not, in the ordinary course of things, occur, negligence may be presumed. However there is another presumption that a person is dead, if he has not been heard of for over seven years. There is, of course, no logic in the choice of 2,556 days absence for these purposes as opposed to say 2,560 days absence.[footnoteRef:2] The Conclusive Proof is stated as when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. [1: Garrow and Wills, Principle of the Law of Evidence in New Zealand, 5th edn, 1966, Butterworths, p 159.] [2: Per Sachs J in Chard v Chard [1956] P 259, p 272.]

1. Materials ExaminedThe researcher has relied upon the following judgments for the analysis the specific provision of Competition Law. Harshad S. Mehta v. State of Maharashtra(2001) 8 SCC 257 State of Madras v. A Vaidyanath Aiyer AIR 1958 SC 61 Union of India v. Pramod Gupta AIR 2005 SC 3708The researcher has used various commentaries such as those of Prof Ian Dennis and Ratanlal & Dhirajlal, and case law for the history of section 4 of the Indian Evidence Act and its application.1. Research ProblemWhether the classes of presumption require amendment or must be continued as they are with respect to the objective of justice.1. Research Objectives The researcher will be discussing the creation of three distinct classes of presumptions and their advantages. This discussion will focus on the ultimate aim of the criminal process that is justice. The researcher will use the illustration of a specific provision of the Competition Act, 2002 and make an analysis on s. 3(3) focussing on whether the presumption made in the provision is rebuttable or not, and whether it should be rebuttable or not. The researcher will finally be bringing about a conclusion and suggestions regarding the continued use and practicality of the distinction. 1. Research AreaThe researcher will be using the Competition Act to further delve into, and understand the constructs and reasoning behind the creation of the three classes of presumptions. Section 3(3) of the Act, which uses the phrase shall presume will the focus of the analysis.1. Chapterisation Chapter One will describe section 4 of the Indian Evidence Act and track its application through case law. Chapter Two will discuss section 3(3) of the Competition Act and analyse its use of the phrase shall presume. Chapter Three shall debate over the continued use of section 4 and its role in the criminal justice process especially with regard to developments in technology. Finally, the last section will contain conclusions and suggestions.

CHAPTER I

PRESUMPTIONS IN LAW OF EVIDENCE

0. Meaning of presumptionThe term presumption is an English translation of the Latin term presumptio. It originated from the Roman law of the Middle Ages.[footnoteRef:3] The term presumption in its largest and most comprehensive signification, may be defined to be an inference, affirmative or disaffirmative of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning from something proved or taken for granted.[footnoteRef:4] A presumption means a rule of law that courts and judges shall draw a particular inference from a particular fact, or from a particular evidence, unless and until the truth of such inference is disproved.[footnoteRef:5] [3: M Shain, Presumptions under the Common and the Civil Law, 18 S. Cal. L. Rev., 1994, p. 92.] [4: Babukhan v. State of Rajasthan AIR 1997 SC 2960] [5: VR Manohar (ed.), RATANLAL AND DHIRAJLALS LAW OF EVIDENCE, 24th Ed. 2011, p. 76.]

Where no direct evidence is offered or obtainable, disputed facts are sometimes inferred from other facts which are themselves proved or known. This is called a presumption.[footnoteRef:6] The effect of presumptions is to assist a party bearing a burden of proof; the degree of assistance varying from presumption to presumption. Depending on the case, the proof required to establish a fact may be less or more.[footnoteRef:7] [6: Garrow and Wills, PRINCIPLES OF LAW OF EVIDENCE IN NEW ZEALAND, 5th Ed. 1966, p. 159.] [7: Kesava Rao, SIR JOHN WOODROFFE AND SYED AMIR ALIS LAW OF EVIDENCE, 18th Ed., Vol 1, 2008, p. 713.]

0. Types of PresumptionsIt is often said that a presumption is a device that shifts a burden of proof back and forth from one side to the other in a dialog. However presumptions are one of the slipperiest concepts in law.[footnoteRef:8] [8: JW Strong, McCORMICK ON EVIDENCE, 4th Ed. 1992, p. 449.]

A court, where it may presume a fact, has discretion to presume it as proved, or to call for confirmatory evidence of it, as the circumstances require. In such a case, the presumption is not hard and fast incapable of rebuttal; a presumptio juris et de jure. Such a presumption is not conclusive but rebuttable. Dennis uses the term provisional presumptions,[footnoteRef:9] which correspond to presumptions of fact. They denote a conclusion that may be drawn from proof of the basic fact of the presumption. This imposes a provisional burden on the party against whom it is operating. [9: Ian Dennis, THE LAW OF EVIDENCE, 3rd Ed. 2007, p. 510.]

Dennis creates three more types of presumptions: evidential, persuasive and conclusive. Evidential and persuasive presumptions are subdivisions of rebuttable presumptions of law[footnoteRef:10] while conclusive presumptions are irrebuttable presumptions; they function in the same way as rules of law that are not stated in the language of presumptions.[footnoteRef:11] [10: id, p. 511.] [11: Stephen Dwyer, Presumptions and Burden of Proof, 21 Loy. L. Rev, 1975, p. 390.]

Presumptions are based on considerations of common sense and public policy, and not necessarily logic.[footnoteRef:12] Certain facts/combinations of facts can give rise to certain inferences, which justify legal rules which require that a conclusion be drawn. They are based on upon an experience of a connection existing between facta probantia and factum probandum, which warrants a presumption from one to the other. [12: Kesava Rao, SIR JOHN WOODROFFE AND SYED AMIR ALIS LAW OF EVIDENCE, 18th Ed., Vol 1, 2008, p. 713.]

Presumptions are of three types:[footnoteRef:13] [13: ibid]

1. Permissive - presumptions of fact or natural presumptions1. Compelling - presumptions of law or artificial presumptions1. Irrebuttable presumptions of law or conclusive proofThese correspond with clauses (1), (2) and (3) in Indian Evidence Act. Presumptions of law are based, like presumptions of fact, on the uniformity of deduction which experience proves to be justifiable.[footnoteRef:14] They differ in their force depending on their nature as being rebuttable or irrebuttable. Clause 3 of section 4 of the Indian Evidence Act points at irrebuttable presumptions of law, but their number is very small. [14: VR Manohar (ed.), RATANLAL AND DHIRAJLALS LAW OF EVIDENCE, 24th Ed. 2011, p. 77. ]

CHAPTER II

PRESUMPTION IN COMPETITION LAW

Overview to Competition law sections 3, 4Sections 3 and 4 of the Competition Act relate to anti-competitive agreements and abuse of dominant positionand wererecently brought into force on May 20, 2009. Section 3 of the Act declares thatanti-competitive agreements will be void and prohibits enterprises and persons from entering into agreements in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services thatcauses or is likely to cause an appreciable adverse effect on competition in India.Generally agreements are classified into horizontal and vertical agreements for the purpose of competition laws.[footnoteRef:15] However, Indian law doesn't use this terminology. Nevertheless it can be seen that, in substance Section 3(3) covers horizontal agreements whereas Section 3(4) covers vertical agreements.[footnoteRef:16] The importance of this distinction is that normally horizontal agreements relating to price fixing, market sharing etc.are considered to be "per se" anti-competitive and no defence is available. [15: http://ec.europa.eu/dgs/competition/economist/vertical_agreements.pdf ; 21 October 2012.] [16: Subhash Yadav v. Force Motor Ltd. & Ors, Case No. 32 of 2012 in the Competition Commission of India.]

5.2 Problem AreaThe use of the phrase "shall be presumed" in Section 3(3) raises considerable amount of doubt on the nature of the presumption raised.Is thepresumption rebuttable or irrebuttable? One opinionsays the presumption can be rebutted, while another opinion is that it cannot be rebutted.The importance of this question may be explained by this example:A particular agreement between enterprises engaged in identical trade of goods isallegedto be one whichshares markets by way of geographical allocation. Once this fact of market sharing is established, the enterprises will not be allowedto show how the agreement is not anti-competitive in the case that the presumption is irrebuttable. Whereas if it is rebuttable, then it is only a matter of burden of proof. Once the requirements of Section 3(3) are met, the burden will be on the enterprises to show how their agreement does not have an appreciable adverse effect on competition.

5.3 Presumption Irrebuttable5.3.1 Argument 1USA follows two approaches in determining whether any agreement or any practice is anti-competitive - the per se rule and the rule of reason. Horizontal agreements which fix prices, allocate customers or territories, restrict output or rig bids are considered to be so pernicious to competition that they are subjected to the per se illegal rule,[footnoteRef:17] which states that a challenged action falls into the category of agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal, regardless of whether it actually harms competition.[footnoteRef:18] [17: White Motor Co. v. United States372 US 253(1963);N.C.A,A v. Board of Regents of University of Oklahoma468 US 85(1985);Federal Trade Commission v. Superior Court Trial Lawyers Association493 US 411 (1990);US v. Topco Association Inc405 US 596(1972)] [18: Northern Pacific R. Co. v. United States356 US 1(1958);Northwest Wholesale Stationers Inc v. Pacific Stationery and Printing Co472 US 2841985); Arizona v. Maricopa County Medical Society457 U.S. 332, (1982); United States v. Topco Associates, Inc. 405 U.S. 596 (1972)]

These kind of agreements are by their very nature considered to be so harmful to competition that no evidence needs to be entertained to show how a challenged action which fits into the said criteria, is not harmful in reality. And therefore, the presumption raised must be considered to be an irrebuttable presumption, similar to the practice in US and EU nations.Some legal systems impose a punishment for conducting such trade practices without even giving an opportunity to present any defence for conducting the practice.[footnoteRef:19] [19: E.g. Trade Practices Act 1974(Cth) Australia No. 51 of 1974.]

5.3.2 Argument 2 Another useful aid of construction is the Parliamentary history which includes the Bill and the Reports of commissions or inquiry committees preceding the introduction of a Bill.[footnoteRef:20] The recommendations of the Raghavan Committee Report, for instance, suggested that in general, the rule of reason test is required for establishing that an agreement is illegal. They further suggested the following kinds of horizontal agreements to be presumed anti-competitive[footnoteRef:21] [20: CIT, MP v. Sodra Devi AIR 1957 SC 832;Express Newspapers Ltd. v. Union of India AIR 1958 578;Madanlal F. Dudhediya v. S. Chagandeo Sugar Mills Ltd. AIR 1962 SC 1543] [21: accessed on 20 September 2012. ]

1. Agreements regarding prices, including those that directly or indirectly fix the purchase or sale price.2. Agreements regarding quantities, including those aimed at limiting or controlling production and investment.3. Agreements regarding bids.4. Agreements regarding market sharing, by territory, type or size of customer or in any other way.The report even referred to this presumption as the per se illegality rule, rooted in the provisions of the US law. Thus having regard to the Raghavan Committee Report too, one can conclude that the intent of the legislature was to make the presumption under Section 3(3) irrebuttable.5.3.3 Argument 3 The third factor is the use of words shall be presumed. The Indian law, under section 4, Indian Evidence Act, provides for three kinds of presumptions - may presume, shall presume, and conclusive proof. It may be noted that in other enactments, excluding the Evidence Act, the legislators while creating a presumption use the phrase shall presume/shall be presumed unless the contrary is proved. The words shall presume/ shall be presumed are rarely used alone. They are always accompanied by the expression unless proved to the contrary. For example, the Prevention of Corruption Act, 1988 states in section 20(1) that:Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted .to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, itshall be presumed, unless the contrary is proved, that he accepted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7.In these examples, there is no doubt that the presumption is irrebuttable. However, what are the consequences when the legislators create a presumption using the expressions shall presume or shall be presumed not followed by unless the contrary is proved? For example, the Indian Copyright Act in Section 19 (6) states If the territorial extent of assignment of the rights is not specified, itshall be presumedto extend within India.From this it can be inferred that the clause is meant to be irrebuttable. 5.4 Presumption Rebuttable 5.4.1 Argument 1The case of State of Madras v. A Vaidyanath Aiyer[footnoteRef:22] held that it is not necessary that the entire subject-matter in the two statutes should be identical before any provision in one may be held to be inpari materiawith some provision in the other. In this case, Section 4 of the Prevention of Corruption Act, 1947 which directs that on proof that the accused has accepted any gratification other than the legal remuneration, it shall be presumed unless the contrary is established by the accused, has been held to be inpari material with the subject- matter dealt with by the Indian Evidence Act, 1872. Thus the definition of 'shall presume' inthe Indian Evidence Act has been utilised to construe the words 'it shall be presumed' in section 4 of the Prevention of Corruption Act.Thus having regard to various judgments of the Hon'ble Supreme Court[footnoteRef:23], one will be tempted to say that the expression 'shall be presumed' used in Section 3(3) of the Competition Act is rebuttable. [22: AIR 1958 SC 61.] [23: Union of India v. Pramod Gupta AIR 2005 SC 3708; Kumar Exports v. Sharma CarpetsAIR 2009 SC 1518.]

5.4.2 Argument 2Usually, a presumption will be irrebuttable only when for the advancement of justice, the law assumes a fact and does not allow it to be disproved. For example, aman cannot disputehis paternity over a child, if the child bornis born in the wedlock.It may be noticed however, that the legislators nowadays rarely make apresumptions irrebuttable and modern courts are slow to recognize presumptions as irrebuttable. Moreover, they are disposed to rather restrict than toextend their number.Thus, it is arguable that if there is ambiguity in Section 3(3) of the Competition Act regarding the nature of presumption, the courts should lean in favour of its rebuttability.

CHAPTER III

JUSTICE VERSUS EFFICIENCY

Courts all over the world have shown inclination to interpret presumptions as rebuttable in the interest of allowing better scope for a just decision.[footnoteRef:24] Whether the legislature intended such a nature of presumption is a different question as is clear from the following examples: [24: Battered women's advocates have successfully lobbied in some states for rebuttable presumption statutes that direct judges to deny sole or Joint custody to abusive parents unless they present persuasive evidence establishing their suitability to obtain custody. Amy Levin and Linda G. Mills, Fighting for Child Custody When Domestic Violence Is at Issue: Survey of State Laws accessed on 23 October 2012. ]

1. The Medical Termination of Pregnancy Act states in section 3 that:Explanation 1 - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancyshall be presumedto constitute a grave injury to the mental health of the pregnant woman.

1. Maharashtra Control of Organized Crime Act states in section 17(3) that:

Section 17(3) - Where it is proved that the accused has kidnapped or abducted any person, the Special Courtshall presumethat it was for ransom.

In appears that the presumptions created in these enactments are meant to be conclusive. Thus, when the legislators use the word shall presume or shall be presumed they intend to create an irrebuttable presumption and if they do not intend it to be conclusive, they use the words "shall presume/shall be presumed unless the contrary is proved."This is a sound argument as in several cases, the court has used the definition of 'shall presume' in the Evidence Act to construe the meaning of the words 'it shall be presumed' in other legislations such as in the cases of Kumar Exports v. Sharma Carpets[footnoteRef:25] and Satish and Ors. v. State of U.P. and Ors[footnoteRef:26].However the judiciary has also effectively gone against the effect of the above by holding inUnion of India v. Pramod Gupta[footnoteRef:27], the Supreme Court categorically stated that when a statute uses the expression shall be presumed then regard must be had to the expression 'shall presumed under the Evidence Act and that it cannotbe considered synonymous with 'conclusive proof'. [25: AIR 2009 SC 1518.] [26: JT 2009 (9) SC 479.] [27: AIR 2005 SC 3708.]

Statutes creating permanent irrebuttable presumptions have long been disfavoured under the Due Process Clauses of the Fifth and Fourteenth Amendments of the US Constitution. In Heiner v. Donnan[footnoteRef:28] the Court was faced with a constitutional challenge to a federal statute that created a conclusive presumption that gifts made within two years prior to the donor's death were made in contemplation of death, thus requiring payment by his estate of a higher tax. In holding that this irrefutable assumption was so arbitrary and unreasonable as to deprive the taxpayer of his property without due process of law, the Court stated that it had 'held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment. [28: 285 U.S. 312.]

In Stanley v. Illinois[footnoteRef:29] the Supreme Court of USA declared that "the Constitution recognizes higher values than speed and efficiency," and held that regardless of the general accuracy of the presumption that illegitimate fathers are not suitable parents, Stanley was entitled to a hearing to determine his fitness. [29: 405 U.S. 645 (1972).]

Thus there is no unique consensus on the matter of whether irrebuttable presumptions are good in the manner of laymen, however it can be said with authority that while rebuttability may serve the purposes of shift in burden of proof thereby increasing the chances of discovery of truth, irrebuttability significantly eases the task of the courts.

CASE STUDYUnion of India v. Pramod Gupta AIR 2005 SC 3708

INTRODUCTION:These appeals are directed against a common judgment and order dated 5.10.2001 passed by a Division Bench of the High Court of Delhi in R.F.A. No. 85 and 86 of 1987 u/s. 54 of theLand Acquisition Act, 1894(for short "the Act") whereby and whereunder the amount of compensation in respect of acquisition of land in village Masoodpur with china clay and without china clay was fixed @ Rs. 56/- per sq. yard and Rs. 30/- per sq. yard respectively in relation to the notification dated 24.10.1961 and Rs. 98/- per sq. yard and Rs. 72/- per sq. yard with China Clay and without China Clay respectively in relation to the notification dated 23.01.1965.The basic fact of the matter is not in dispute. Two notifications dated 24.10.1961 and 23.01.1965 were issued for acquisition of the lands measuring 1105.04 bighas and 3895.07 bigha respectively situated in village Masoodpur for the public purpose of planned development of Delhi, i.e., for construction of Jawahar Lal Nehru University. Declarations u/s. 6 ofthe Actwere issued on 6.08.1966 and 6.12.1966. Two awards being award Nos. 2040 and 2225 were made on 2.12.1967 and 8.04.1969. The Land Acquisition Collector for the purpose of computation of the amount of compensation payable for acquisition of said land divided the acquired lands in three categories - viz. Blocks A, B & C and awarded compensation @ Rs. 1000/- per bigha for Block A, Rs. 900/- per bigha for Block B and Rs. 600/- per bigha for Block C in respect of the acquisition of land under notification dated 24.10.1961 and Rs. 1580/- per bigha for Block A, Rs. 1175/- per bigha for Block B and Rs. 600/- per bigha for Block C in respect of the acquisition of land under notification dated 23.01.1965. The owners of the lands being aggrieved by and dissatisfied with the said awards filed applications seeking reference in terms of S. 18 ofthe Actpursuant whereto and in furtherance whereof the Reference Court by a judgment and award dated 28.07.1986 awarded compensation @ Rs. 18000/- per bigha for the lands covered by Award No. 2225 and Rs. 12000/- per bigha for the lands covered by Award No. 2 040. The Reference Court further granted compensation @ Rs. 10,000/- per bigha for minor mineral, i.e., China Clay.On or about 8.12.1986, the Appellants herein preferred appeals in terms of S. 54 ofthe Actbeing aggrieved by and dissatisfied with the said judgment and award which were marked as R.F.A. No. 85 & 86 of 1987. The Respondents herein upon service of notice filed cross objections seeking enhancement of compensation both in respect of land as well as the mineral China Clay.

SUBMISSIONS:The learned Additional Solicitor General appearing for the Appellants raised the following contentions in support of these appeals:(i) The nature of the lands being 'Gairmumkin Pahad' and 'Banjar Kadim', as described in the entries made in the revenue record of rights for the years 1907 and 1908, the Respondents were entitled to such amount of compensation only payable to a holder of Bhumidari rights in terms of the provisions of theDelhi Land Reforms Actand no other, wherefore Sections 5, 6, 7, 11, 22, 23 and 154 thereof were required to be read conjointly.(ii) China Clay being a minor mineral, in terms of the provisions of theMines and Minerals (Regulation and Development) Act, 1957as also the Punjab Minor Mineral Rules, 1934, the same having vested in the Central Government; no compensation was payable therefore.(iii) Judgments and awards made in favour of other claimants having only evidentiary value, the principle of res judicata was wholly inapplicable. In any event as such judgments and awards were passed by courts having no jurisdiction therefore; the principle of res judicata was not applicable.(iv) Even if it be found that any amount of compensation was payable to the Respondents herein, the High Court misdirected itself in passing the impugned judgment insofar as it failed to take into consideration that the Respondents having made a claim of Rs. 25/- per sq. yard before the Land Acquisition Collector were estopped and precluded from claiming any higher amount in view of S. 25 of theLand Acquisition Act, as it then stood.(v) In view of the fact that the Respondents themselves prayed for stay of the proceedings before the Reference Court, no interest was payable for the period between 17th January, 1972 and 27th May, 1980.(vi) The High Court failed to take into consideration the fact that the Respondents themselves purchased the land at the rate of Rs. 6/- per sq. yard in the year 1960 and 1/8th share of the acquired land for a sum of Rs.36,000/- in the year 1980 and the market value of the acquired lands should have been determined only on that basis.(vii) In any view of the matter, as the appeal had been held to be not maintainable by the High Court applying the principles of res judicata, the cross objections filed by the Respondents were also not maintainable.Mr. Harish Salve, Mr. P.P. Rao, and Mr. Ramamurthy, learned senior counsel appearing on behalf of the Respondents, on the other hand, would support the impugned judgment.At the outset we may notice that Mr. Salve conceded that the principles of res judicata and/ or issue estoppel were not applicable to the fact of the present case. The learned counsel would, however, point out that the High Court in fact entertained the appeals preferred by the Appellants as regard: (a) ownership of China Clay, (b) value of the land and (c) application of S. 25 ofthe Act.It was furthermore submitted:(i) TheLand Acquisition Actbeing an existing statute on the date of coming into force of theConstitution of Indiathe right to property was a fundamental right in terms of Art. 19(1)(f) and 31 of theConstitution of Indiawhen the notifications u/s. 4 were issued and, thus all the procedural requirements laid down therein were required to be scrupulously complied with in fulfillment of the legislative purpose.(ii) S. 25(2) ofthe Acthas no application in the fact of the matter as the High Court has arrived at a finding that 'admittedly no notice u/ss. 9(3) and 10 was served on the Respondents', in which event only the bar envisaged under S. 25(2) ofthe Act, would be attracted.(iii) The Respondents having amended their Memo of Appeal as also the Reference in terms of Order VI Rule 17 of theCode of Civil Procedure, vis- '-vis S. 53 ofthe Act, the High Court had the requisite jurisdiction to enhance the amount of compensation in favour of the Respondents.(iv) The notifications issued by the Union of India were admissible in evidence as no other admissible evidence was available on record.(v) In view of the fact that the Respondents are armed with the four decrees passed in their favour by courts of competent jurisdiction, it is not open to the Appellant to contend that Bhumidhars had no right in the minor mineral China Clay. Distinguishing the judgment of this Court in Gaon Sabha and Anr. Vs. Nathi and Ors.[JT 2004 (4) SC 36 : (2004) 12 SCC 5552004 Indlaw SC 1467], the learned counsel would submit that the Respondents therein were not Bhumidhars and, thus, the said decision must be held to have been rendered in the fact situation obtaining therein. In any event, the question as regard title is not an issue herein as the matters in relation thereto are pending consideration, if any, before the High Court.(vi) Mineral right contained in the land did not vest in the Government in terms of S. 41 of thePunjab Land Revenue Act, 1887and the said right would be presumed to have vested in the recorded tenants in terms of sub- s. (2) of S. 42 thereof.(vii) Punjab Minor Minerals Rules, 1934 and the Mines and Minerals (Regulation and Development) Rules, 1957 or theDelhi Land Reforms Act, 1954do not contain any provision divesting the right of the proprietor in the minor minerals either expressly or by necessary implication and in that view of the matter, the ownership on minor minerals continued to remain vested in the landowners.

FACTUAL BACKGROUND:As the fact of the matter has been noticed at some length by a Constitution Bench in Sardar Amarjit Singh Kalra (Dead) by Lrs. and Others etc. vs. Pramod Gupta (Smt.) Dead) by Lrs. and Others etc.[(2003) 3 SCC 2722002 Indlaw SC 1575], it may not be necessary for us to traverse the same over again. Suffice it to notice that the Respondents herein claimed their right, title and interest in the lands in question measuring 4307 bighas, 17 biswas from one Gulab Sundari who was said to be the proprietor of M/s Kesri Pottery Works having a non-occupancy tenancy right therein. It is not in dispute that several proceedings had been initiated before different forums by Gulab Sundari on the one hand and the Gaon Sabha of the village and the Union of India, on the other, in respect of the right, title and interest of the respective parties after coming into force of theDelhi Land Reforms Act.The aforementioned Gulab Sundari had allegedly been declared Bhumidhar by the Deputy Commissioner of Delhi.It may be noticed that an intervention application has been filed on behalf of Shri Madan Gopal Gupta and Shri Sudhir Jain contending that there exists an inter se dispute as regard the ownership of the property in question inasmuch as the applicants therein are proprietors/owners thereof. According to the said applicants the principal dispute between the parties is as to whether the said Gulab Sundari had had any right, title or interest as Bhumidhar or otherwise in the said land and the same is pending determination before the High Court of Delhi in RFA Nos.309-310 of 1980. Briefly stated the contention raised on behalf of the said applicants is that a lease was granted by the proprietor in the year 1939 and the lessee in turn granted a sub-lease in favour of M/s Kesri Pottery Works, a partnership firm, in the year 1942. The period of lease granted in favour of the lessee having expired, Gulab Sundari ceased to have any interest in the property. In any event, a lessee or a sub-lessee could not have been declared Bhumidhar in terms of S. 7 of theDelhi Land Reforms Actas only the proprietor of the village was entitled thereto and in that view of the matter the declaration of Bhumidhari rights in favour of Gulab Sundari was wholly illegal and without jurisdiction.The Appellants, however, contend that Gulab Sundari or for that matter any person other than the Central Government or the Gaon Sabha in view of the provisions contained in theDelhi Land Reforms Act, 1954and other statutes, as referred to hereinbefore, did not derive any right, title and interest in the minor minerals. In any event, right over mines and minerals in proprietors being limited under the provisions of thePunjab Land Revenue Act, Punjab Minor Minerals Rules, 1934 and theMines and Minerals (Regulation and Development) Act, 1957, they did not derive any right to exploit the area for commercial purposes and in that view of the matter, the Reference Court and the High Court acted illegally and without jurisdiction in computing the amount of compensation in respect of mineral rights on the premise that if they were entitled thereto.

Honble Supreme Court observed:It is true that the legislature used two different phraseologies 'shall be presumed' and 'may be presumed' in S. 42 of thePunjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards right to mines and minerals said to be vested in the Government vis-a-vis absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words 'shall presume' would be conclusive. The meaning of expressions 'may presume' and 'shall presume' have been explained in S. 4 of theIndian Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression 'shall presume' cannot be held to be synonymous with 'conclusive proof'. It is interesting to note that this Court in Raja Rajinder Chand vs. Mst. Sukhi and Others[AIR 1957 SC 2861956 Indlaw SC 64] whereupon Mr. Rao has placed strong reliance observed :"Whether the statutory presumption attaching to an entry in the Wajib-ul-arz has been properly displaced or not must depend on the facts of each case. In cases under our consideration, we hold, for the reasons already given by us, that the entries in the Wazib-ul-arz with regard to the right of the Raja in respect of chil trees standing on cultivated and proprietary lands of the adna-maliks, do not and cannot show any existing custom of the village, the right being a sovereign right; nor do they show in unambiguous terms that the sovereign right was surrendered or relinquished in favour of the Raja. In our view, it would be an unwarranted stretching of the presumption to hold that the entries in the Wajib-ul-arz make out a grant of a sovereign right in favour of the Raja: to do so would be to hold that the Wajib-ul-arz creates a title in favour of the Raja which it obviously cannot."In view of the fact that in Civil Appeal Nos.6825-26 of 2003 etc., the impugned judgments are being set aside and the matter is remitted to the High Court, the judgments and awards passed in these appeals must also be set aside on the same lines. The Appeals are disposed of accordingly. No costs.Appeals disposed of.

CONCLUSION

With the introduction of the above-mentioned section the court would to some extent stop the violence and the atrocities committed to women. The presumptions have helped a lot in solving the problem of dowry death because in such cases it difficult to get evidence. The presumption is favourable to men as the same the courts should see that the women folk do not misuse these presumptions because in order to attract these presumptions the existence of certain facts have to be proved. The credit of trying to eradicate this evil should not be given to court alone; the legislature has also done a considerable amount of work. While enacting this provision it did not leave any loophole in order the convict to escape.With regard to the question over the nature of the presumption used in the Competition Act in section 3, it can be said that the clause can be interpreted to make the said activity per se wrongful, or it could be interpreted to only shift burden of proof. There exist arguments from both sides which are plausible and may be used by a court of law while making a decision. However, we have seen that the ends of justice are better served when statutes are made more flexible by treating vague presumptions as rebuttable. Since competition law is seen to be of the nature to have severe consequences of the economy and markets of a society or country, it is understandable that its violations be treated stringently. Its seriousness makes attempts to ease prosecution and conviction understandable but hardly good in law. Justice cannot be sacrificed at the altar of ease of punishment. Procedural integrity, due process, and our foundational principles of fairness and avoiding wrongful punishment of the innocent should be the standpoints taken into consideration by the honourable judiciary.