MIDNAPUR ZEMINDARI CO LTD Vs. BENGAL NAGPUR RAILWAY CO LTD

JUDGEMENT

(1.) The fact that I have not reserved judgment does not imply any failure to appreciate the importance of the points involved in this case or the manner in which the case has been conducted by the leading counsel on both sides and prepared both as to law and facts by the juniors. Delay is undesirable. I shall, therefore, follow my usual method. As usual, I have no objection to the parties having copies of the shorthand note of this judgment. Should I make any alteration of importance I shall do so in the presence of counsel. With materials as voluminous as those in this case it is desirable to adopt some plan. I propose, therefore, first, to state as shortly as possible the manner in which this dispute has arisen. I shall then deal with the nature of the suit, the pleadings, the amendments sought, the issues and what I consider to be the real problem involved. I shall then attempt to deal with the law, and after that discuss the evidence, and lastly, my findings.

(2.) First therefore as to the dispute and the parties to the dispute. The Midnapur Zamindary Co., the plaintiff, is a putnidar of a wide area under a grant from the Raja of Narajole. The grant has an interesting origin which is immaterial to this case. The section of the Midnapur Zamindari Co., with which we are concerned, i. e., that under the administration of Mr. Woodgates alone comprises 372 square miles. The defendant, the Bengal Nagpur Railway, is not as yet a state railway. The undertaking is worked under an agreement with the Secretary of State, which is in evidence, but which it is not necessary to discuss. Under this agreement the railway will ultimately vest in the Secretary of State. In 1896, the line from Calcutta to Madras still awaited for its completion, the length between Cuttack and Calcutta, and for this purpose the railway like other railways in India availed itself of the procedure for compulsory acquisition contained in the Acquisition Act of 1870 and the Land Acquisition (Mines) Act, 18 of 1885. The original Land Acquisition Act of 1870 is now replaced by the Land Acquisition Act of 1894. Under these statutes four acquisitions were made which are of importance in this case, although only one of them is directly in question. It is convenient to record them at the outset. (1) A declaration of 7 January 1896 in connexion with the Main Line, Cuttack- Midnapur-Calcutta, a length of 309 miles. On this stretch is one of the sites in suit, that at Sardiah, the plaintiff company claiming in respect of materials excavated at this spot. This claim however appears to be based upon a misconception and may at once be excluded from the suit. The declaration was not subject to any exception. Moreover upon the evidence, it is clear that the materials taken by the railway at this point were taken from the cutting spoil. In these circumstances this acquisition is only relevant or useful for purposes of comparison. (2) The acquisition with which we are concerned is that of 2 January, 1901. This was for a branch line, the Midnapur Jharia extension, a length of 117 miles and an area of several thousand acres. The notification contained the exception, that is to say, the exception of "mines of coal, iron stone, slate and other minerals" in terms of Section 3, Land Acquisition (Mines) Act. I shall refer to such acquisitions as "acquisitions with exception." Work began on this line in that year and was finished in or about 1904. The land acquisition proceedings for valuation took place in September a October, 1901. Two sites are referred to, Kulapacharia and Godapiasal. They are adjoining and may be regarded as one, the Godapiasal quarries. During the period of construction the railway contractors took materials, that is laterite stone and laterite kankar or morum from the Godapiasal quarry among others, and so far as they took them from the acquired lands they were paid for under a separate agreement of 19 June 1901. These payments continued until 1904 or thereabouts and then ceased. (3) The acquisition of 6 December 1920, acreage 78.72 acres, at Hariharpur, another district. The acquisition was subject to the exception. The purpose was stated as a "quarry for morum and laterite stone." (4) Acquisition of 23 November 1935, 17218 acres at Godapiasal, thus extending, the acquired area at the site in suit. The purpose "for excavation of morum and laterite stone for the use of the railway company." The declaration was without exception.

(3.) On the 10 October 1934 or thereabouts Mr. Woodgates, the manager of this section of the Midnapur Zamindari Co., addressed to the railway a demand for compensation for minerals removed from the Godapiasal quarries, and there followed considerable correspondence, naturally relied upon by the plaintiff company, in which the morum and laterite stone were referred to as "minerals" and in which the railway admitted liability to pay for such laterite stone and morum as reserved minerals. On the 17 April 1936 the railway offered to pay at a certain rate, and this offer is relied upon by the plaintiff company as an agreement. The offer however was not accepted in terms, and on 1 March 1937 or thereabouts the railway, having received legal opinion withdrew the offer and claimed that the laterite and morum were included in the acquisition and not in the exception. On 31 March 1938 this suit was filed by the plaintiff company for compensation for the laterite rock and morum removed. It was transferred for trial to this Court.