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J U D G M E N T WITH C.A. Nos. 6827-6832/2003, 950, 2661 of 2005, CIVIL APPEAL NOS. 5566-5569 OF 2005 [arising out of SLP(C) Nos. 14383 OF 2004, 17913, 17915, 17916 OF 2005] S.B. SINHA, J :

Leave granted in the special leave petitions.
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 under Section 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 Appellants before the High Court, inter alia, had raised a contention that as the proceeding arising out of reference having remained stayed at the instance of the Respondents for the period January, 1972 and May, 1980; they were not entitled to any interest which was rejected opining that the statutory provisions for grant of interest as contained under Sections 28 and 34 of the Act being mandatory in nature cannot be waived.
For computing the market value of the lands, the High Court proceeded on the basis that the lowest category of residential developed plots, as in the year 1965, should be taken to be the base therefor i.e. @ Rs. 150/- per sq. yd. and directed deduction of 40% therefrom on the premise that some time would have been necessary for excavating minor minerals and to make the lands fully developed having regard to their tremendous building potential. The High Court also directed further deduction of 20% from the wholesale price opining that Rs. 72/- per sq. yard would be a fair market price for the acquired land in the year1965. However, as regard the lands which were the subject matter of acquisition in terms of notification dated 24.10.1961, relying on or on the basis of a decision of the High Court in Rameshwar Solanki & Anr. Vs. Union of India & Anr. [57 (1995) DLT 410], further deductions @ 12% p.a. were directed to be made therefrom working out the amount of compensation at Rs. 30/- per sq. yard for lands without China Clay and Rs. 56 per sq. yard with China Clay.

In Bageswari Charan Singh vs. Kumar Kamakhya Narain Singh [(1931) ILR (X) PC 296 : AIR 1931 PC 30], referring to the statutory presumption as between zamindar and jagirdar, it was held that the former must be regarded as the owner of the minerals. It was further observed :

"...Apart from the statutory presumption arising in this case, there is a general presumption that the land in a zamindari is the property of the zamindar, and held under him"

Yet again in Ras Behari Mandal and Others vs. Raja Jagadish Chandra Deo Dhaubal Deb, [1936 IC (160) 114], the Patna High Court reiterated the presumption that the lessor retains all rights in mines and quarries. It also noticed the decision of House of Lords in Great Western Railway Co. vs. Carpalla United China Clay Co. Ltd. [(1910) AC 83], wherein a grant reserving minerals was held to exclude a deposit of China clay despite the fact that the same was found near the surface.

The said decisions lay down the principle that in absence of any entry made in favour of the Government, with respect to mines and minerals a presumption shall be drawn that the same belongs to the landowner being a tenure-holder.

We have noticed hereinbefore a large number of decisions of the Judicial Committee and different High Courts which lay down the principle that only the landowners have subsoil rights but so far as the sub- tenureholders and others are concerned no such presumption shall be raised unless it is proved from the express covenants made in the grant and/or the deed of assignment or sale that such right has expressly been conveyed. Section 42(2) of the Punjab Land Revenue Act merely states that in absence of any entry made in the record-of-rights after 18.11.1971, it shall be presumed that the right in any forests, quarries or any such land or interest would be in the landowners. 'Wazib-ul-arz' also indicates the custom prevailing in the village. The entry in the Wazib-ul-arz is categorical about the fact that the Government is not the owner of any forest, mines, buildings nazul, self-fertile, marble, metals, stones, coal or sand. It, however, categorically states that there are mountains in the village and the Government can extract stones without paying any price therefor. It further categorically states that if any mine (in future) is found, the same would be the property of the Government. The entry ex facie does not show that china clay as a minor mineral was available in the land in question. Existence of the said mineral having not been expressly recorded in the record of rights, no presumption can be raised that the grantor had an intention to pass on title of the subsoil in relation to china clay in favour of the grantee. It is one thing to say that the Government or the State did not have any right over the minor minerals per se but it is another thing to say that the Government did not have any right in respect of the minerals or metals which had been mentioned therein but in the event a new mine is found, the same would vest in the Government. The presumption envisaged under sub-section (2) of Section 42, therefore, in our considered opinion may not be raised in favour of the grantee as it is not shown that mines of china clay were existing at the relevant time. The expression 'Mine' having regard to its definition contained in Section 2(j) of the Mines Act, 1952 is of wide import. In the village in question there may exist one mine for extracting one mineral at one point of time but other mines containing either the same or different minerals might not be existing in other parts of the same village at the relevant time and may be found in other part of the village at the later part of time. The expression 'mine', thus, may have to be given its natural meaning having regard to the purpose for which such entries are made. It is true that the legislature used two different phraseologies 'shall be presumed' and 'may be presumed' in Section 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-`-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 Section 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] whereupon Mr. Rao has placed strong reliance observed :