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Provisions involved in the topic

Indian Evidence Act, 1872

Section 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, 2002
Section 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.

Scope and Applicability of the Provisions

A 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.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. 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.

Materials Examined

The 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 3708

1 Garrow and Wills, Principle of the Law of Evidence in New Zealand, 5 th edn, 1966,
Butterworths, p 159.
2 Per Sachs J in Chard v Chard [1956] P 259, p 272.

The 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.

Research Problem

Whether the classes of presumption require amendment or must be continued as they are with
respect to the objective of justice.

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.

Research Area
The 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


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.



Meaning of presumption

The term presumption is an English translation of the Latin term presumptio. It originated from
the Roman law of the Middle Ages.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.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.5
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. 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.7

Types of Presumptions

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, 24 th Ed. 2011,
p. 76.
1966, p. 159.
Ed., Vol 1, 2008, p. 713.

It 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
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, 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.
Dennis creates three more types of presumptions: evidential, persuasive and conclusive.
Evidential and persuasive presumptions are subdivisions of rebuttable presumptions of law 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.11
Presumptions are based on considerations of common sense and public policy, and not
necessarily logic.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.
Presumptions are of three types:13

Permissive - presumptions of fact or natural presumptions

Compelling - presumptions of law or artificial presumptions
Irrebuttable presumptions of law or conclusive proof

These correspond with clauses (1), (2) and (3) in Indian Evidence Act.

8 JW Strong, McCORMICK ON EVIDENCE, 4th Ed. 1992, p. 449.

9 Ian Dennis, THE LAW OF EVIDENCE, 3rd Ed. 2007, p. 510.
10 id, p. 511.
11 Stephen Dwyer, Presumptions and Burden of Proof, 21 Loy. L. Rev, 1975, p. 390.
18th Ed., Vol 1, 2008, p. 713.
13 ibid

Presumptions of law are based, like presumptions of fact, on the uniformity of deduction which
experience proves to be justifiable.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.



Overview to Competition law sections 3, 4

Sections 3 and 4 of the Competition Act relate to anti-competitive agreements and abuse of
dominant position and were recently brought into force on May 20, 2009. Section 3 of the Act
declares that anti-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 that causes 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.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
14 VR Manohar (ed.), RATANLAL AND DHIRAJLALS LAW OF EVIDENCE, 24 th Ed. 2011,
p. 77.

vertical agreements.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.
5.2 Problem Area
The use of the phrase "shall be presumed" in Section 3(3) raises considerable amount of doubt on
the nature of the presumption raised. Is the presumption rebuttable or irrebuttable? One
opinion says 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 is alleged to be
one which shares markets by way of geographical allocation. Once this fact of market sharing is
established, the enterprises will not be allowed to show how the agreement is not anticompetitive 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

5.3 Presumption Irrebuttable

5.3.1 Argument 1
USA follows two approaches in determining whether any agreement or any practice is anticompetitive - 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, 17 which states that a challenged
action falls into the category of agreements or practices which because of their pernicious effect
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.
17 White Motor Co. v. United States 372 US 253 (1963); N.C.A,A v. Board of Regents
of University of Oklahoma 468 US 85 (1985); Federal Trade Commission v. Superior
Court Trial Lawyers Association 493 US 411 (1990); US v. Topco Association Inc 405
US 596 (1972)

on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable
and therefore illegal, regardless of whether it actually harms competition.18
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.19
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. 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-competitive21
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.
18 Northern Pacific R. Co. v. United States 356 US 1 (1958); Northwest Wholesale
Stationers Inc v. Pacific Stationery and Printing Co 472 US 284 1985); Arizona v.
Maricopa County Medical Society 457 U.S. 332, (1982); United States v. Topco
Associates, Inc. 405 U.S. 596 (1972)
19 E.g. Trade Practices Act 1974 (Cth) Australia No. 51 of 1974.
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
accessed on 20 September 2012.

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, it shall 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, it shall be presumed to 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 1
The case of State of Madras v. A Vaidyanath Aiyer 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 in pari materia with 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 in pari material with the subject- matter dealt with by the Indian
Evidence Act, 1872. Thus the definition of 'shall presume' in the Indian Evidence Act has been
utilised to construe the words 'it shall be presumed' in section 4 of the Prevention of Corruption

22 AIR 1958 SC 61.

Act. Thus having regard to various judgments of the Hon'ble Supreme Court 23, one will be
tempted to say that the expression 'shall be presumed' used in Section 3(3) of the Competition
Act is rebuttable.
5.4.2 Argument 2
Usually, 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, a man cannot dispute his
paternity over a child, if the child born is born in the wedlock.
It may be noticed however, that the legislators nowadays rarely make a presumptions irrebuttable
and modern courts are slow to recognize presumptions as irrebuttable. Moreover, they are
disposed to rather restrict than to extend 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.

23 Union of India v. Pramod Gupta AIR 2005 SC 3708; Kumar Exports v. Sharma
Carpets AIR 2009 SC 1518.

Courts all over the world have shown inclination to interpret presumptions as rebuttable in the
interest of allowing better scope for a just decision.24 Whether the legislature intended such a
nature of presumption is a different question as is clear from the following examples:
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 pregnancy shall be presumed to constitute a grave injury to
the mental health of the pregnant woman.

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 Court shall presume that 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 Carpets25 and Satish and Ors. v.
State of U.P. and Ors26. However the judiciary has also effectively gone against the effect of the
above by holding in Union of India v. Pramod Gupta27, the Supreme Court categorically stated
that when a statute uses the expression shall be presumed then regard must be had to the
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.
25 AIR 2009 SC 1518.
26 JT 2009 (9) SC 479.

expression 'shall presumed under the Evidence Act and that it cannot be considered synonymous
with 'conclusive proof'.
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.
Donnan28 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.
In Stanley v. Illinois29 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.
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.

27 AIR 2005 SC 3708.

28 285 U.S. 312.
29 405 U.S. 645 (1972).

Union of India v. Pramod Gupta AIR 2005 SC 3708
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 the Land
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 of the Act were
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 of the
Act pursuant 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 of the Act being
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.
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 the Delhi Land Reforms Act and 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 the Mines and Minerals
(Regulation and Development) Act, 1957 as 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
(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 the Land 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 of the
It was furthermore submitted:
(i) The Land Acquisition Act being an existing statute on the date of coming into force of
the Constitution of India the right to property was a fundamental right in terms of Art. 19(1)(f)
and 31 of the Constitution of India when 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) of the Act has 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) of the 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 the Code of Civil Procedure, vis- '-vis S. 53 of the 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 555 2004
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
the Punjab Land Revenue Act, 1887 and 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 the Delhi Land Reforms Act, 1954 do 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.
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 272 2002 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
the Delhi 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 the Delhi Land Reforms Act as 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 the Delhi Land
Reforms Act, 1954 and 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 the Punjab Land Revenue Act, Punjab Minor Minerals
Rules, 1934 and the Mines 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
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 the Punjab 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 the Indian 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 286 1956 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 adnamaliks, 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.

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.