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Judgment
Ross, J.—Under five declarations published in 1909 and 1920 the Government of Bengal acquired certain areas of land in villages Khaprajola, Pipaljuri, Rajband, Naweenagar, Basmata and Khatapara, under the provisions of the Land Acquisition Act 1894 and, in one case, also subject to the provisions of the Land Acquisition (Mines) Act 1885. The plaintiff-respondent is the patnidar of these villages, except in the case of Naweenagar where this interest extends of half only, and as such is entitled to the minerals. He alleges in para. 3 of the plaint that these villages:
contain valuable minerals, to wit, stone, which have got a special commercial value, and are largely worked for profit, and are known as "Pakur Stone" which are widely used by Municipalities, Tramway Companies and others.
In the principal declaration No. 2129 dated 12th July 1909 there was a limited declaration of minerals. The plaintiff states that the minerals, to wit, stones, were worked by the Government; in the lands covered by that declaration for the construction of the Lower Ganges Bridge at Sara, and that on the completion of the bridge on or about the 1st January 1915 the quarrying of minerals or stones in these lands ceased. He claims that after the completion of the bridge, the Government had no right left in the minerals of the lands acquired under declaration No. 2129 and that in the lands covered by the other four declarations they never had any right in the minerals.
On 15th September 1914 he gave notice to the Government u/s 4, Land Acquisition (Mines) Act, of his intention to get the minerals of the lands covered by all the declarations. His right having been denied by the Government, he brought this suit for possession of the subsoil, including stones and other minerals lying in, upon or under the lands described in Schedule A of the plaint; and for possession of an eight annas share of the subsoil including stone and other minerals lying in, upon or under the lands described in Schedule B of the plaint in mauza Naweenagar. In his written statement the Secretary of State for India in Council admitted that the statements contained in para. 3 of the plaint were substantially correct:
The mauzas as referred to therein contained stone which has a value and is capable of being worked for profit. Save as aforesaid, the defendant does not admit any other statements in the said paragraph.
It was pleaded, that the compensation paid to the plaintiff included the value of all the mines and minerals lying in, upon or under the surface of the land acquired and that it is not true that the compensation was limited to the value of such minerals as were required for the construction of the Ganges Bridge at Sara or otherwise howsoever that the fact was that it on the plaintiff''s own application that the compensation paid to him covered all mines and minerals and he accepted the same as such. As to the four declarations other than No. 2129, it was pleaded that all the minerals were acquired but this part of the defence has been given up and the suit so far as these lands are concerned is undefended. As to the declaration No. 2129 the defendant denied that on the completion of the lower Ganges Bridge the quarrying of the stones and minerals had ceased and that the Government had no right to or in the minerals after the completion of the bridge. It. was pleaded that the notice u/s 4, Land Acquisition (Mines) Act, was invalid, ineffective and not bona fide. It was further pleaded that the plaintiff was estopped from denying the defendant''s right to all stones and minerals lying in, upon or under the lands acquired. There was also a plea of limitation which was decided against the defence and it need not be further referred to as the decision of the Subordinate Judge on this point was not contested.
The learned Subordinate Judge held that the Government did not acquire all the mines and minerals on or under the lands covered by the declaration No. 2129 and that the right of the Government to quarry stone was limited to so much only as was needed for the construction of the bridge and that, as the construction of the bridge is finished the Government has no further right to quarry stone and the right vests (as it has always vested) in the plaintiff. He further decided that there was no estoppel against the plaintiff. He held that a fresh notice u/s 4, Land Acquisition (Mines) Act, ought to be given and this is the subject of a cross objection by the respondent. In the result he made the declaration prayed for by the plaintiff.
Before dealing with the effect of the declaration No. 2129, I may observe that it is not denied that the stone on and under these lands is a mineral. This must be taken to be admitted in the pleadings. When this suit came before the High Court on a question of jurisdiction before the written statement was filed Mullick, J., observed in his judgment that from the land cc-quisition proceedings it would seem that it was admitted that the stone taken by Government from the quarries was a mineral within the meaning of the declaration. From the language of para. 3 of the plaint it is clear that the plaintiff had this point in view but the necessity for adducing evidence on the point was obviated by the admission of the defendant that the statement in that paragraph was "substantially correct." It was nowhere suggested in the defence that stone was not mineral, but on the contrary stones and minerals were treated as falling within the same category. Nor was this position questioned by learned Counsel for the appellant in arguing the appeal.
The declaration runs as follows:
Whereas it appears to the Lieutenant Governor of Bengal that land is required to be taken by Government at the public expense, for a public purpose, viz., for quarries in the Santal Parganas in connexion with construction of the Lower Ganges Bridge at Sara, in the villages of Khaprajola, Pipaljuri, and Rajband in the sub-division of Pakur Zilla, Santal Parganas, it is hereby declared that for the above purpose a piece of land measuring more or less 801 bighas 12 kathas 4 chataks of the standard measurement...is required within the aforesaid villages of Khaprajola, Pipalpuri and Rajband.
Mines of coal, iron stones, slate or other minerals lying under the land, or any particular portion of the land except only such parts of the mines and minerals as it may be necessary to dig or carry away or use, in the construction of the work for the purpose of which the land is being acquired are not needed.
This declaration is made under the provisions of Section 6, Act, I of 1894, and Section 3, Clause (1) Act 18 of 1885 to all whom it may concern.
The first point that appears on this declaration is that the object of the acquisition of the land was quarries in the Santal Parganas in connexion with the construction of the Lower Ganges bridge. The second point is that mines of coal, iron, stone, slate or other minerals were not needed except only such parts as it might be necessary to dig, carry away or use in the construction of the bridge. This, I, think, is the plain meaning of the reservation with regard to the minerals. A declaration in this form may be unusual where the subject of acquisition if itself a quarry. But there is nothing in that circumstance necessarily repugnant to the plain meaning of the words. This declaration is the basis of the rights of the Government and it has to be construed and it must be construed in the light of the admitted fact that stone is a mineral.
In Lord Provost and Magistrate of Glasgow v. Farie [1888] 13 A.C. 657. Lord Watson in discussing the meaning of the words "mines of coal, iron, stone, slate and other minerals" observed:
The word "quarry" is no doubt inapplicable to underground excavations but the word "mining" may without impropriety be used to denote some quarries. Dr. Johnson defines a quarry to be a stone mine. I am-accordingly of opinion that in these enactments, the word "mines" must be taken to signify all excavations by which the excepted minerals may be legitimately worked and got. If coal, iron, stone or slate crops out at any part of the surface taken for waterworks or railway purposes the undertakers or the company acquire, in my opinion no right save the right to use that part of the surface; they acquire no right to the minerals themselves except in so far as as these are dug out or excavated, in order to construct their works.
Lord Herschell in dealing with the same question said:
What then, is the interpretation to be put upon the word "mines"? I think the primary idea suggested to the popular mini by the use of the word is an underground working in which minerals are being or have been wrought. It is certainly often used in contrast to "quarry"...as indicating an underground working as opposed to one open to the surface. But to limit it in the enactment we are construing to an underground cavity, in which minerals are being or have been wrought, would be obviously inadmissible. The enactment was clearly intended to extend to minerals lying underground which had hitherto been undisturbed. Is the true interpretation to be found by limiting the provision to those minerals which are commonly worked by means of underground working? The word "mines" is, I think, in a secondary sense, very frequently applied to a place where minerals commonly worked undergound are being wrought, though in the particular case the working is from the surface.
Lord Macnaughten took a different view, but the view of Lord Watson and Lord Herschell prevailed. The question came again before the House of Lords in Midland Ry. Co. v. Robinson [1890] 15 A.C. 19. In that case Lord Herschell held that the intention of the legislature was to use the word "mines" in the widest sense that can properly be given to it; and Lord Watson adhered to his opinion in Lord Provost and Magistrates of Glasgow v. Farie [1888] 13 A.C. 657, that every substance, being a mineral within the meaning of these clauses was reserved to the owner irrespective of the method by which it may be wrought, and again defined the word "mines" as:
all excavations by which the excepted minerals may be legitimately worked and got.
Now stone being admittedly a mineral, the effect of this clause in the declaration regarding mines is that only so much of the stone and other minerals was being acquired as might be necessary in the construction of the bridge.
The next question is as to how the parties understood the declaration. The interpretation put upon it by the Government may be inferred from the proceedings in the matter of compensation for the lands covered by the other four declarations. There the owner claimed compensation for minerals or an express order excluding them from acquisition. This claim was met by the learned Judge to whom the reference u/s 18 of the Act was made, by the express statement of the Land Acquisition Deputy Collector in his reference, that minerals were not needed. On this the learned Judge held they had not been acquired (Ex. 10). There can be no doubt therefore that that part of the declaration which was made in terms of Section 3, Land Acquisition (Mines) Act, was intended to define the extent to which underlying minerals were being taken.
The case for the appellant rests mainly on the claim made by the owner for compensation (Ex. E). This claim was made in response to notices under Sections 9 and 10, Land Acquisition Act, 1894 and contains the claim for compensation for the lands acquired under all five declarations. In that petition of claim the owner referred to the lease of waste lands to the Pakur Stone Co., and based his claim for compensation for:
the lands and stones lying under the lands to be acquired,
upon the profits which that company were making. Under this head he claimed three lakhs of rupees. He claimed the same amount for:
the lands and the stones underneath the lands in the occupation of tenants,
and there were some smaller items in his claim. Then in para. 31 he referred to the terms of the declaration No. 2129 and paras. 32, 33 and 34 are as follows:
That the said declaration does not specify what quantity or amount of the mines and minerals may be necessary to dig, carry away or use in the construction of the work.
That as there is no such specification the petitioner is entitled to compensation for all the mines and minerals lying underneath the land stated above.
That the petitioner is on titled to compensation in respect of such mines and minerals to the extent of Rs. 50,000 per cent.
With regard to the other four declarations in which no reservation had been made he claimed Rs. 1,000 as the value of mines and minerals.
It seems clear therefore that the owner was making a distinction between the stones to be quarried and the mines and minerals referred to in the declaration. This distinction also appears in the leases which he granted to the Pakur Stone Co. Thus in the kabuliyat of 4th June 1902 (Ex. 2) which is the counterpart of a lease for:
extracting and taking stones, gravels, laterites and jhamas etc., from the hills and rocky lands,
in the mauzas demised, it was agreed by the lessee:
that if there be found any mineral, coal, or hidden treasure or any valuable stone etc., at any place, we shall have no concern therewith. We will have no concern with any minerals excepting stones, gravels, laterites and jhamas.
And so in the later kabuliyat of 22nd February 1914 the following clause occurs:
That out of the underground minerals in the leasehold lands, excepting stones for ballast, we shall have no concern with any other mineral or valuable article or hidden treasure.
It is in my opinion clear that the Rs. 50,000 referred to in para. 34 of the petition was compensation for mines and minerals other than stone and that the owner read the declaration in a different sense from that which it was intended to bear. But that is not of much consequence, because it is clear that he was claiming compensation for the entire stones and minerals of all kinds.
The next matter for consideration is the compensation that was actually allowed. This was based upon the estimate of Mr. Green, the Superintending Engineer, in his:
Report on quarries acquired in connexion with the Lower Ganges bridge at Sara.
Mr. Green set out
to arrive at a fair estimate of the quantity of stone available from this quarry which it would be profitable to remove to the railway siding.
It was claimed that working under the existing conditions the company can "make a profit of 12 annas per 100 cubic feet" and he therefore in estimating the quantity of stone which could fairly be taken as the quantity which could be obtained from the quarry so as to give the contractors a profit, assumed a profit of 12 annas per 100 cubic feet. He then proceeded to deal with the two kinds of stone to be obtained from this quarry:
(1) Loose boulders and
(2) Stones from compact or solid rock.
He calculated that there were 90� lakhs of cubic feet of boulders. He assumed that 12 annas was a fair profit for the stone obtained down to an average depth of three feet between three and six feet the profit was 9i annas ; between 6 and 9 feet, 7 annas; between 9 and 12 feet, 4� annas; between 12 and 15 feet 2 annas and at 17 feet the profit vanished, if no earth had to be removed. He then dealt with the cost of removing the earth and found that in the case of 3 feet of earth overlying the stone the profit would disappear in clearing the earth away. There were 3 feet of earth and more overlying the boulders on 44 per cent of the total area so that cut of the 90� lakhs only 51 lakhs were available, but a large proportion of this stone would be drawn from depths not execeeding 9 feet and he allowed a profit for depths between the surface and 9 feet at 9� annas and came to the conclusion that if this profit was allowed on 51 lakhs of loose boulders a fair value would be obtained. With regard to the solid rook he adopted the same proportion of 56 per cent and found that it would yield 128 lakhs of cubic feet which after allowing for the increase when the rocks are loosened, broken and piled up, and deducting 23 per cent for wastage gave a total of 163,84,000 cubic feet. The probable profit of the contractors was 4� annas for 100 cubic feet. He thus arrived at Rs. 30,282 4-0 and Rs. 48,640 as the values of the loose boulders and solid rock respectively. This valuation was accepted by the Land Acquisition Deputy Collector. This was made the measure of the compensation allowed in the award u/s 11 of the Act (Ex. 3 : order dated 19th July 1911) for "the total value of the entire quantity of the available stone in the quarry." This valuation was never disputed, and is not disputed now. Payment was made and accepted under the award. There can I think be no doubt that this was a valuation of the quarry on a commercial basis under the conditions then existing. The owner accepted this compensation and the contention of the appellant is that'' he is now estopped from claiming any further rights in the quarry.
Learned Counsel argues that whatever the strict interpretation of the declaration may be, the parties tacitly agreed to ignore the limitation about the mines of coal, iron, stone, slate and other minerals and the Government paid for the whole quarry and the owner accepted the price. It is clear that this enquiry into value was made under the Land Acquisition Act and not under the Land Acquisition (Mines) Act. It is further clear that the owner was claiming compensation for the entire quarry and that his claim was met by compensation, not for all the stone in the quarry, but for all the stone then commercially available under existing conditions. The question is whether in these; circumstances the plaintiff can claim anything now because of the language of the declaration.
A number of cases on the law of estoppel were cited: Sarat Chandra Dey v. Gopal Chunder Laha [1893] 20 Cal. 296; Dadoba Janardhan v. Collector of Bombay [1901] 25 Bom. 714; Freeman v. Cooke [1848] 2 Ex. 654; Jorden v. Money [1854] 5 H.L.C. 185; In re, Lart Wilkinson v. Blades [1896] 2 Ch. 788; Carr v. L. & N.W. Ry. Co. [1874] 10 C.P. 307 and Cornish v. Abington [1859] 4 H. & N. 549. The facts of these cases bear, however, little resemblance to the facts of the present case.
The facts upon which the appellant relies as constituting an estoppel are that there was an obvious mistake in, the declaration, that the respondent-claimed compensation for all the mines and minerals in para. 33 of his petition; that the report of the expert proceeded on the footing that the entire quarry was being acquired, and that the award, was on this basis and the respondent-accepted the award and the money; and that the enquiry into the amount of compensation was under the Land Acquisition Act and not under the Land Acquisition (Mines) Act. Now if the Government knew what the true facts were there could be no estoppel. I have already dealt with the question how the Government understood the declaration ; and that there was no mistake in the declaration is borne out by the correspondence between the respondent and the Government after the completion of the bridge. The notice u/s 4, Land Acquisition (Mines) Act, was given by the respondent on 15th September 1914 (Ex. 8-a). In the course of the correspondence that followed, the Under-Secretary to the Government stated in his letter of 15th March 1915 (Ex. 9-F) that it had been ascertained from the Chief Engineer of the Lower Ganges bridge construction that the minerals underlying the land covered by declaration No. 2129, Land Acquisition dated 12th July 1909, were still needed for the purpose for which the land was acquired and according to the terms of the declaration, therefore, the respondent''s right to quarry the minerals under this land had not yet accrued. In a subsequent letter from the Secretary to the Government dated 11th June 1915 (Ex. 9-h) it was stated that the stone was still needed for the construction of the bridge which expression included the construction of works for training the river; and with regard to the land covered by the declarations other than No. 2129, the Government claimed to have acquired and paid for the land including all stone lying so exposed that it could be quarried, and any attempt on the part of respondent to quarry it would be resisted. It was contended by the learned Counsel for the appellant that the Government in this correspondence misunderstood the position. I am asked to hold that without any modification of the declaration No. 2129, the parties tacitly ignored its terms and also that the Government misapprehended their own rights. In my opinion, this is not a reasonable view of the case.
Much was made of para. 33 of the respondent''s petition (Ex. E). I have already stated what I think was the meaning of this part of the petition; but even if it referred to the stone which was not being acquired, no claim for compensation on this account could have been entertained at that stage either on the basis of this or of the other paragraphs of the petition. In in re, Lord Gerard and L. & N.W. Ry. Co. [1894] 2 Q.B. 915 Kennedy, J., said:
The railway company can legally acquire either surface or minerals for the purpose of their undertaking and for that purpose only; and the scheme of these statutory provisions appears to us clearly to be that the owner of any subjacent mineral, not purchased by the company, may lawfully get his mineral by proper working whatever else the company may have bought subject only to the due protection of the works of the undertaking; and if and so far as, such duo protection prevents his getting his mineral or renders it more costly, he is to be compensated when the time for working under or near the railway works arrives, and not before.
This decision was upheld by the Court of appeal: Lord Gerard and L. & N.W. Ry. Co. [1895] 1 Q.B. 459 where Rigby, L.J., said in dealing with the relevant clauses of the Railway Clauses Consolidation Act, 1845:
The scope of those clauses so far as this matter is concerned, may be sufficiently expressed by saying that under them there is to be no compensation except as and when the occasion for it arises.
Learned Counsel referred to the decision in Mercer v. Liverpool St. Helen''s and South Lancashire Ry. Co. [1904] A.C. 461 as showing that after compensation had been given no further compensation could be claimed. That, however, was a case under the Lands Clauses Consolidation Act. In the Court of Appeal Mercer v. Liverpool St. Helen''s and South Lanchshire Ry. Co. [1903] 1 K.B. 652. Stirling, L.J., whose judgment was upheld by the House of Lords, observed:
As regards compensation for damage to be sustained by the landowner by reason of the execution of the works, the scheme of the Lands Clauses Consolidation Act, 1845, appears to be that an assessment of such compensation shall be made once for all and finally, so that on payment of the compensation thus ascertained the promoters are to be free from all further claim by the landowner, except possibly in respect of damage entirely unforeseen by the parties.
That is the principle on which compensation is given under the Land Acquisition Act; but when the Government took the benefit of a declaration u/s 3, Land Acquisition (Mines) Act, the situation was completely changed. Section 4 of the Act gives the owner no right to require the Government to purchase the minerals or to pay compensation for them at that stage. No claim with regard to compensation for the minerals not acquired could have been entertained then and the estoppel which is said to have arisen on the claim is in my opinion an estoppel against the statute. Nor can the notices issued under Sections 9 and 10 of the Act of 1894 after the declaration was published in response to which the claim was made, be regarded as notices to treat for the whole of the minerals. As to the expert''s report and the award based thereon, I have already shown that it is not clear that in accepting the estimate, and making the award the Government were departing from the terms of the declaration. Learned Counsel referred to a passage in the judgment of Jenkins, C.J., in Dadoba Janardhan v. Collector of Bombay [1901] 20 Cal. 296 where it was said that the conduct of Government coupled with the statement of the Collector made on their behalf for the purposes of the purchase, was, under the circumstances, such as to create and encourage in the purchaser as a reasonable man the belief that he was purchasing property substantially worth Rs. 33,000 and that Government were not silently reserving to themselves an unfettered right to destroy and practically to confiscate that which had been sold. Now the facts of that case were that when a sale of land was in contemplation, the trustees in whom the land vested, wrote to the Government stating that the purchaser required that the amount of assessment on the land should not exceed what was payable in respect of pension and tax tenure in the same locality, The Government replied that the Collector should be desired to state what the assessment of the land revenue would be and what were the rules affecting the amount of assessment. The Collector''s reply was:
I have the honour to inform you that the land will be assessed at the rate of nine pies per square yard per annum. This is the rate of assessment which is charged for Government land in this locality...which has been followed for the last six years.
This, in the circumstances of the reference to the Collector, was a definite representation that the assessment would not be raised above a certain figure. But there is to my mind no resemblance between these facts and the case of a claim, however, exaggerated, for compensation such as I am dealing with in the present case. I can see nothing in these proceedings to show conclusively either that the respondent represented that he was accepting payment for the whole quarry or that the Government were ignorant of the facts or were under any misapprehension as to the real situation. Nor do I see any reason to think that the respondent was standing by though aware that the Government were making a mistake and thus disentitling himself from making any further claim.
In dealing with the effect of the Railway Clauses Act of 1845 Lord Cran-worth observed in G.W. Ry. Co. v. Bennett 2 H.L. 27:
It was obviously the intention of the legislature in making those provisions to create a new code as to the relation between mineowners and railway companies where lands were compulsorily taken for the purpose of making a railway. The object of the statute evidently was to get rid of all the ordinary law on the subject and to compel the owner to sell the surface, and if any mines were so near the surface that they must be taken for the purposes of the railway, to compel him to sell them, but not to compel him to sell anything more.
The question must be determined by the form of the declaration. In Haris Chunder v. The Secy. of State 11 C.W.N. 875 it was pointed out that if the Government committed a mistake by giving an erroneous boundary, the Judge or Collector could not cure the mistake. If the land acquired be for Government purposes and if the Government takes possession of land beyond the limits prescribed by the declaration or in excess of the area for which compensation is paid, it trespasses on private land. The same principle obviously applies to acts going beyond the terms of the reservation of minerals. The argument for the appellant in my opinion fails.
The only question that remains to be considered is the question of notice of intention to work the mines u/s 4. Learned Counsel contended that the respondent was not the person immediately entitled to work the mines which were in lease to the Pakur Stone Co. and, further, that there was no bona fide intention to work the mines when the notice was given. On the first point, there is no substance in the contention, because although this land was included in the first lease given to the Pakur Stone Co. in 1902 and that lease did not expire until 1919, yet there was a fresh agreement between the parties Ex. 13 entered into in December 1912 and followed by a lease in February 1914 in which the previous lease was referred to in these terms:
That before this the lands mentioned in Schedule kha were taken settlement of by a registered patta dated 4th June 1902. The term of the said lease has not yet expired. Such of the terms of the said previous kabuliyat, as have been changed by this kabuliyat, shall cease to be operative and all the terms of the present kabuliyat shall be in force and operative and binding on us.
The land demised by the later lease did not include the lands in question in this suit which had already been acquired by the Government and consequently so far as these lands were concerned the earlier lease had been determined and the respondent was the person immediately entitled to work the mines. As to good faith, there is no reason to suggest that the notice was, malafide. The respondent''s failure to work the mines after the notice was given was due to the opposition of the Government. The result is that the appeal fails and must be dismissed with costs and the cross objection succeeds.
Chatterji, J.
I agree. The first question for consideration is what is the effect and meaning of the declaration No. 2129, dated 12th July 1909, and whether the stones required for the construction of the Lower Ganges bridge at Sara were included within the expression other minerals." The word mine" ordinarily means the place from which minerals are obtained by an underground excavation; while the word "quarry" generally points to surface working. But in the Midland Ry. Co. v. Robinson [1890] 15 A.C. 19 it is laid down that the word "mines" is used in the widest sense which can be properly given to it and that it cannot be confined to the mines of underground working but includes, mines worked by quarrying where the usual mode of working is done by quarrying. In the plaint it is mentioned, that the stones are commonly known as Pakur Stones and they have got a special commercial value and are minerals. This allegation is admitted in the written statement. It follows from the pleadings that the stones acquired under the declaration in question are minerals. In the next place, the judgment of the land Acquisition Judge in referring to the claim for stones in connexion with other declarations relating to the acquisition of surface land for staff quarters, railway sidings and so on, mentions that the Land Acquisition Deputy Collector has in his reference expressly stated that minerals are not needed and they had not been acquired. Thus even in the proceeding itself it was understood that stones are minerals. Lastly, in the correspondence by the Government the words "stones" and "minerals" have been used interchangeably: vide letters Exs. 9-f and 9-h. In the first letter by the Under-Secretary it is mentioned that minerals underlying the land covered by declaration No. 2129 I.A., dated 12th July 1909 are still needed for the purposes for which the land was acquired. In the subsequent letter by the Secretary it is stated that the stone is still needed for the construction of the bridge, which expression includes the construction of works for training the river. It my be added that the learned Counsel, appearing for the Secretary of State does not controvert the position of the stones being minerals within the meaning of the declaration in question. Such being the case, it follows that what was-acquired was the stones and other minerals as were necessary in the construction of the Lower Ganges bridge at Sara, because there is an insertion in the declaration of statement that.
mines of coal, iron stones, slates and other minerals lying under the land, or any particular portion of the land except only such parts of the mines or minerals as may be necessary to dig or carry away or used in the construction of work for the purpose of which the land is acquired are not needed.
Under Sub-section 3, Section 3, Land Acquisition (Mines) Act, the excepted minerals shall not vest in the Government. It is therefore, clear that the stones other than those required for the construction of the Sara bridge vest in the respondent, as the declaration stands.
The question, however, will arise whether the right of the respondent has been barred by the principle of estoppel. It is argued by the learned Counsel appearing on behalf of the appellant that the respondent claimed the sum of Rs. 50,000 for all the mines and the minerals lying underneath the land which was the subject matter of the declaration No. 2129 and received a compensation of Rs. 78,000 and odd, that is, more than what was claimed and consequently he is estopped from questioning the right of the. Government to the entire stones. The relevant portions of the petition of the respondent have been set out in detail by my learned brother. It will appear that in para. 22 the respondent states that he is entitled to compensation for atones lying in the waste lands let out era temporary lease to the Pakur Stone Company. In the next para he claims Rs. 3,00,000 for the lands and stones lying underneath them, In para. 29 he claims compensation for Rs. 3,00,000 in respect of lands in the occupation of tenants land stones underneath them. In the intermediate paras, he claims compensation in respect of service grants, chowkidari chakran lands and so on. In para. 30, he claims compensation for trees. In paras. 31 to 44 he claims compensation of Rs. 50,000 for mines and minerals with regard to the declaration No. 2129; and of Rs. 1,000 as the value of the mines and minerals with regard to other declaration in paras. 35 and 36. It is clear that in paras. 34 and 36 he used the words "mines" and "minerals" in contradistinction to the word "stones" and meant mines and minerals other than stones. If really the Government understood that he was claiming Rs. 50,000 for all the mines and minerals including stones in respect of the declaration No. 2129, is it consistent with the ordinary course �f events that he would be paid Rupees 78,000 by the land acquisition officials for the same? The land acquisition proceeding will show that he was not paid anything for minerals other than stones. Hence the claim made by the petitioner in para. 34 was completely ignored and I fail to see how a case of estoppel can be based on this claim. Then, what was it that he was paid for?
The report of Mr. Green shows that he made calculation of the available boulder and solid rocks which could be quarried commercially at a profit having regard to the existing conditions which include, amongst other things, the distance of the railway sidings.
Now, in view of the reservation made in the declaration the Government could estimate stones required either on the basis of the requirements at the Sara bridge or on the basis of the then available stones which could be extracted at a certain specified profits. They elected to proceed on the latter basis and thus, evidently they met any possible objection as regards the vagueness of the declaration. It is impossible to hold that the Government paid for the entire stone quarry. In fact, the Government never understood that it had done so, because in that case they would not have taken up the position in the letters Exs. 9-f and 9-h that stone is still needed for the construction of the bridge. Otherwise, they would have stated that they had paid for the entire stones. No estoppel can arise unless a representation is acted upon and results in a change in the position of the party to whom a certain representation is made. This element is certainly wanting in this case. When compensation was paid to the respondent he must have accepted it in the light of the declaration made by the Government, namely, that he was receiving it for the stones and other minerals which would be required for the construction of the bridge and the right in the other minerals (including stones) remained vested in him. Lastly, it is well founded that there could be no estoppel against an act of the legislature. Sub-section 3, Section 3, Land Acquisition (Mines) Act, unequivocally provides that the minerals excepted by a statement in the declaration shall not vest in the Government. No principle of estoppel can be invoked to defeat the special provision of the Act. In these circumstances, I do not think there is any merit in the case made by the appellant.