Judgement Appeal (No. 23 of 1943) from a judgment and decree of the High Court (May 8, 1941), which varied and modified a judgment and decree of the Subordinate Judge of Dhanbad (September 23, 1936). The following facts are taken from the judgment of the Judicial Committee. In the year 1913 Khora Ramji, the respondents predecessor in title, as owner of the Khas Jheria Colliery, which included mines of coal adjacent and subjacent to the branch line of the East Indian Railway Company at and near the station of Jheria, desired to have a siding on that line constructed and maintained for the benefit of the colliery. An agreement was accordingly made between him and the Railway Company which in form consisted of two documents, the one a printed form described as " Memorandum " of terms for the construction of short branches and sidings " for the use of collieries, mills or other industries,” the other of a letter of acceptance of such terms signed by or on behalf of Khora Ramji. The date ascribed to the agreement was June 11, 1913. The printed memorandum, as its description indicated, was a common form document, of which it is necessary to refer only to cl. 6. That clause was in the following terms— "6. Surface rights only will be acquired. An applicant, if also the owner of mining rights in the land so acquired, or in land under the branch or other lines with which the siding is connected, will be allowed to work and get minerals under the said land, provided that all operations connected therewith are carried out in such a manner as not thereby to injure or to endanger the safety of the undertaking or any part thereof. The procedure laid down in the Land Acquisition (Mines) Act (XVIII. of 1885) shall be strictly adhered to in regard to all proposed working of mines under such land. The applicant shall waive all claims for compensation, either from Government or the Company, for any restricted working of the mines that compliance with the foregoing may entail, and shall accept entire responsibility for any accidents that may occur owing to failure to attend to these requirements. The applicant shall waive all claims for compensation, either from Government or the Company, for any restricted working of the mines that compliance with the foregoing may entail, and shall accept entire responsibility for any accidents that may occur owing to failure to attend to these requirements. The Applicant agrees by the acceptance of these terms to permit any person appointed by the Company to enter and inspect and where considered necessary make plans and surveys of all workings beneath, or in the near vicinity of, the land acquired for the siding in order to see whether the precautions being taken are sufficient, and the Company reserves to itself the absolute right to refuse to allow the use of its stock on any siding to which it is not satisfied that proper support has been given." The word “undertaking” was defined by the memorandum to mean and include "all works, buildings, rolling stock and other property forming part of, or appertaining to, and all rolling stock or trains passing over the railway and the word " applicant to mean the owner or leaseholder or duly constituted agent or manager of any colliery, mill, or other industrial concern, desirous of obtaining or using a siding or branch leading from the railway or who has obtained or uses such a siding or branch." The letter of acceptance was in the following terms— "The Agent, "East Indian Railway, Calcutta. "14924S. "Dear Sir, "Your letter No.B.10605 of nth June, 1913 "We agree to accept the above terms for the construction, working and maintenance of the siding asked for by Khora Ramji Khas Jheria Colliery, P.O. Jheria at Jheria on the East Indian Railway Jheria branch line and we understand and accept that the provisions and stipulations contained in clause 6 of the above terms extend and apply to all the mines and minerals belonging to Khora Ramji underlying the land of the branch or branches connecting the siding with the main line. Khora Ramji.” It appeared that the terms of the letter, which was appended to the memorandum, were drafted by the Railway Company and submitted to Khora Ramji for his signature. Khora Ramji.” It appeared that the terms of the letter, which was appended to the memorandum, were drafted by the Railway Company and submitted to Khora Ramji for his signature. Pursuant to that agreement, in the year 1915 a piece of surface land, 1 bigha 6 cottahs in extent, contiguous with and to the west of the lands previously acquired for the purpose of Jheria Station, was acquired by the Government of Bihar and Orissa under the provisions of the Land Acquisition Acts. On the land so acquired a siding was constructed and used for the purposes of the colliery. The seams of coal under that land formed part of the colliery. There were three seams, the top seam known as " No. 11-12 Seam," the middle seam known as " Special Seam,” and the bottom seam known as " No. 10 " Seam.” There followed more than ten years of spasmodic controversy between the parties during which the rights of working, or of compensation for not working, were canvassed. On July 17, 1930, formal intimation was given by or on behalf of Khora Ramji to the Government Chief Inspector of Mines in India of the reopening of " 11-12 Seam coal mine at our Khas Jheria “Colliery." That intimation followed vain attempts to agree the form of declaration which should be issued by the Lieutenant-Governor under the Act of 1885. It resulted, after a further substantial delay, in the issue on June 17, 1931, of a declaration by which the Government, after reciting the acquisition of certain land for the purposes of the railway and the notice given by Khora Ramji of his intention to work No. 11-12 seam, and the inspection of the mines on behalf of the Government whereby it appeared that the working out of the coal of the mines underlying the said land was likely to cause damage to the surface of the land and to the works constructed thereon, and further reciting that Khora Ramji had agreed not to work and get minerals underlying the land acquired for their siding or underlying the land acquired for the branch or other lines with which the siding was connected or underlying the land of the branch or branches connecting the said siding with the main line in such manner as to injure or endanger the safety of the undertaking or any part thereof, were pleased to declare under cl. (b) of sub-s. 2 of s. 5 of the Act their willingness to pay compensation to all persons having an interest in the said mines lying under a portion of the land acquired under the Land Acquisition Act, 1894, which was described as coloured in pink on the plan therein referred to, in consideration of the said mines being worked or gotten in the manner and subject to the restrictions therein specified. The restrictions involved the leaving unworked of a quantity of coal which in the ordinary course would have been worked and gotten. No steps having been taken to assess the compensation payable under that declaration, presumably because the parties could not agree the basis of such assessment, in August, 1934, the suit, in which the present appeal was brought, was commenced by the respondents, who claimed a declaration of their rights in respect of compensation and the appropriate further relief. The Subordinate Judge held that the waiver of compensation only extended in respect of the land on which the siding itself was placed. The Subordinate Judge held that the waiver of compensation only extended in respect of the land on which the siding itself was placed. On appeal, the High Court (Fazl Ali and Chatterji JJ.) held that the words " land under the branch " or other lines with which the siding is connected " meant the land under all the lines or railway tracks within the Jheria railway station yard; that the respondents had waived their claim to compensation in respect of the land lying under the network of lines or railway tracks within the station yard, and that they were entitled to compensation only for the coal underlying the lands lying on the east and west which were not covered by the railway tracks or lines. They rejected the contention of the appellant that to give support to the railway tracks the coal owner must provide for the support of at least 45 to 50 feet of land on either side of the tracks, and that under the siding agreement he could not be allowed to carry on any operation underneath such land, holding that what was to be asertained was the area which was the subject of the agree ment of waiver, and that for any area not specifically included in the waiver clause compensation must be paid. In the result they passed a decree for Rs. 72,000, and against that decree the appellant now appealed. 1944. Nov. 13, 14. Wynn Parry K.C., Sir Thomas Strangman K.C. and W. W. K. Page for the appellant. The short question is whether, and if so, to what extent, respondents Nos. 1-3 are entitled to compensation for loss of profit on coal which they were prevented from working or getting from a portion of their coal mine underlying the station at Jheria by reason of restrictions imposed by a declaration of the Government of Bihar and Orissa made pursuant to the provisions of the Land Acquisition (Mines) Act, 1885. The question here does not turn on the statutory provisions, but on what extent the parties have modified their statutory rights by the siding agreement. The question here does not turn on the statutory provisions, but on what extent the parties have modified their statutory rights by the siding agreement. The waiver of the right to claim compensation contained in that agreement was not limited to the right to claim in respect of coal lying vertically beneath the railway tracks, but included the right to claim in respect of coal lying beneath the land the support of which was necessary for the safety of the tracks. The document is designed to evidence the terms of a commercial transaction between the parties, and there is more freedom to search for the purpose and intent of such a document than in the case of one which can be strictly described as a conveyancing document. The purpose and intent here was that the agreement was designed for the physical support of an area of land for the benefit of the railway company in connexion with the carrying on of its undertaking. Compensation is to be waived in respect of the same area in respect of which support is to be given. The whole point is, what is the meaning of the words in the agreement land under the branch or “other lines with which the siding is connected? " In the context of this particular agreement, and having regard to the purpose and intent of the parties, the construction of the High Court was too narrow. The intent is to provide support, and that must mean sufficient land on either side to preserve the surface in a safe state; any work which would result in endangering the surface on which the lines are laid is prohibited by the clause. Any other construction would lead to an absurdity. Sir Thomas Strangman K.C. followed. The important question is, what is the meaning of the "lines"? The High Court said that that means the actual rails. The rails, however, are supported by the sleepers and the sleepers by the ballast, and in the ordinary way that forms part of the land. Once sleepers and ballast are included, what supports the ballast must also be included. The land of the grant must mean the land necessary to support the lines. Ritson for the respondents Nos.1-3. The agreement must be read with reference to the Land Acquisition Act of 1885, and the words "lying under" or "underlying" considered in connexion therewith. Once sleepers and ballast are included, what supports the ballast must also be included. The land of the grant must mean the land necessary to support the lines. Ritson for the respondents Nos.1-3. The agreement must be read with reference to the Land Acquisition Act of 1885, and the words "lying under" or "underlying" considered in connexion therewith. In ordinary mining leases mines and minerals are measured by the surface—by probing vertically above, so to speak. If it is suggested that "underlying" means anything else, it must be found in the document to be construed. The sole question here is, what compensation have the respondents to be paid, and over what area have they waived payment of compensation? The High Court said that "it was open to the parties at the time of the agreement to have stipulated among themselves that the waiver will not only cover the area specifically described in the agreement, but will also cover 50 feet of land on either side of that area. For the purpose of the safety of the railway tracks this might have been done, but the question is whether it has been done. If it has not been done, then the railway company must pay compensation for the area not specifically included in the waiver clause." Reliance is placed on that—it was for the appellant to make clear what was intended. Wynn Parry K.C. replied. Although the Easements Act, 1882, is not expressly applicable in this Province, it is submitted that the principles involved therein should be applied here; s. 7 (b); s. 13, illustration (a). If under the joint effect of the Acts of 1882 and 1885 lateral support must be included, then the construction the appellant contends for can be given to the agreement. Dec. 11. The judgment of their Lordships was delivered by LORD SIMONDS, who stated the facts set out above and continued This appeal arises out of a dispute between the appellant, the Secretary of State for India as representing the Government of Bihar and Orissa and also the East Indian Railway Administration, and the respondents, the owners of a colliery known as the Khas Jheria Colliery, in regard to the compensation payable by the former to the latter for coal the working of which was prevented or restricted under the Land Acquisition (Mines) Act (XVIII. of 1885), which will be referred to as u the Act of 1885.” In the long drawn out litigation between the parties a number of questions have been raised which are no longer at issue. The single question now remaining for decision depends on the construction of an agreement made on June 11, 1913, between the East Indian Railway Company and the predecessor in title of the respondents, by which the rights of the parties in respect of the working of coal, or of compensation for leaving it unworked, were adjusted and denned. Inasmuch as this agreement specifically refers to the Act of 1885, which would itself but for the agreement between the parties have denned their rights, it is necessary to refer to its provisions. By s. 3, sub-s.1, it is provided that when the Lieutenant-Governor makes a declaration under s. 6 of the Land Acquisition Act, 1870, that land is needed for a public purpose or for a company, he may, if he thinks fit, insert in the declaration a statement that the mines of coal, iron-stone, slate, or other minerals tying under the land or any particular portion of the land, except only such parts of the mines or minerals as therein mentioned, are not needed, and by s. 3, sub-s. 3, it is provided that if any such statement is inserted in such declaration the mines in question under the land or portion of the land so specified, except as aforesaid, shall not vest in the Government when the land so vests under the said Act. By s. 4 it is provided that if the person for the time being entitled to work or get any mines or minerals lying under any land so acquired is desirous of working or getting the same, he shall give the Lieutenant-Governor notice in writing of his intention so to do sixty days before the commencement of working. By s. 4 it is provided that if the person for the time being entitled to work or get any mines or minerals lying under any land so acquired is desirous of working or getting the same, he shall give the Lieutenant-Governor notice in writing of his intention so to do sixty days before the commencement of working. By s. 5, sub-s.1, provision is made for inspection by the Lieutenant-Governor after such notice, and by s. 5,sub-s. 2, it is provided that if it appears to the Lieutenant-Governor that the working or getting of the mines or minerals, or any part thereof, is likely to cause damage to the surface of the land or any works thereon, he may publish a declaration of his willingness either (a) to pay compensation for the mines or minerals still unworked or ungotten, or that part thereof, to all persons having an interest in the same, or (b) to pay compensation to all such persons in consideration of those mines or minerals, or that part thereof, being worked or gotten in such manner and subject to such restrictions as the Lieutenant-Governor may in his declaration specify. It is provided by s. 5, sub-s. 3, that if the declaration mentioned in case (a) is made, then those mines or minerals, or that part thereof, shall not thereafter be worked or gotten by any person, and by s. 5, sub-s. 4, that if the declaration mentioned in case (b) is made, then those mines or minerals, or that part thereof, shall not thereafter be worked or gotten by any person save in the manner and subject to the restrictions specified by the Lieutenant-Governor. Section 6 provides that when the working or getting of any mines or minerals has been prevented or restricted under s. 5, the persons interested in those mines or minerals and the amounts of compensation payable to them respectively, shall be ascertained as therein mentioned, and s. 7 that if before the expiration of the said sixty days the Lieutenant-Governor does not publish a declaration as provided in s. 5, the owner, lessee or occupier of the mines may unless, and until such a declaration is subsequently made, work the mines or any part thereof in a manner proper and necessary for the beneficial working thereof as therein mentioned, with a special provision for the case of damage or obstruction caused by improper working. In these statutory provisions two things may be noticed, first, the repetition of the phrase "mines....or minerals" lying under the land or any particular portion of the land " and, secondly, the absence of any provision in regard to mines or minerals which do not lie under any land acquired but the support of which might be necessary for such land or any works thereon. Here a sharp distinction may be observed between the Act of 1885 and the familiar provisions of the so-called "mining code" contained in the English Railways Clauses Act of 1845, by which elaborate provision is made in regard to the working of minerals at a prescribed distance from a railway companys undertaking. It is difficult to suppose that the distinction was not deliberate. [Having referred to the terms of the agreement his Lordship continued] It is unnecessary to deal with the numerous and intricate questions which have been raised in the course of the suit. The single outstanding question raised in this appeal is one of construction of cl. 6 of the agreement of June 11, 1913, namely, to what extent was the colliery owners statutory right to compensation waived by that clause? The single outstanding question raised in this appeal is one of construction of cl. 6 of the agreement of June 11, 1913, namely, to what extent was the colliery owners statutory right to compensation waived by that clause? There being now no dispute in regard to the waiver of the right to compensation for coal unworked under the land acquired for the siding, the question may, in the light of the argument before their Lordships, be stated more narrowly in these terms was the waiver of the right to claim compensation limited (as the respondents contend) to the right to claim in respect of coal lying vertically under the railway tracks in the station yard in Jheria Station, or did it extend (as the appellant contends) to the right to claim in respect of coal lying beneath the adjacent land the support of which was necessary for the safety of the tracks ? It is clear that except so far as it has been waived the statutory right to compensation is intact, and that it is for the appellant to establish the waiver. For this purpose he can only rely on cl. 6 of the agreement. In the construction of this document their Lordships bear in mind that the parties negotiated on the basis of their existing statutory rights and that in view of its genesis the case is one in which, if there is any ambiguity, the document must be construed against the appellant. The material words that have to be construed may here be repeated. They are the words in cl. 6 of the memorandum "An applicant, if also the owner of mining " rights in the land so acquired, or in land under the branch " or other lines with which the siding is connected, will be " allowed to work and get minerals under the said land, and the words in the letter of acceptance " all the mines and " minerals belonging to Khora Rhamji underlying the land " of the branch of branches connecting the siding with the "main line.” It is in truth not surprising that the interpretation of these words should have created difficulty. But the real difficulty appears to their Lordships to lie in the determination of the surface area intended to be covered by these words rather than in any uncertainty as to the meaning of the words " under the land" or "underlying the land " when the surface area has been ascertained. This real difficulty has been resolved by the High Court (in this respect varying the order of the learned Subordinate Judge) in these words " therefore when the letter of acceptance is read along with " cl. 6 of exhibit I [i.e. the memorandum] I think it must " be taken to cover the land underlying the entire network of " railway tracks within the station yard of the Jheria Railway " Station." This conclusion, and the cogent reasoning that led to it, have not on this appeal been the subject of serious criticism, and appear to their Lordships to be well-founded. The appellant, however, seeks to enlarge the area of waiver by the claim that it extends not only to coal vertically under the land, the area of which is so defined, but also to mines which must be left unworked for the lateral support of such land. This contention has been rejected both by the Subordinate Judge and by the High Court. In their Lordships opinion it has been rightly rejected. The natural meaning of the words "lying under" or "underlying," between which there is no difference, is lying vertically under. The bare possibility cannot be rejected of a context which would give the words a different meaning, such as "lying below or at" a lower level whether subjacent or adjacent,” but in the document under review there is no such context. On the contrary, the very clause which has to be construed refers specifically to the Act of 1885, which, except so far as its provisions are varied by agreement, defines the rights of the parties, and in that Act the words " minerals lying under the " land " can mean nothing else than minerals lying vertically under the land. Here is a context fatal to the contention of the appellant. It would, indeed, be hard to find a distinction more familiar to those conversant with mining law than that between vertical and lateral support. Here is a context fatal to the contention of the appellant. It would, indeed, be hard to find a distinction more familiar to those conversant with mining law than that between vertical and lateral support. If the parties had intended that there should be waiver of a right to compensation for minerals left unworked for lateral support, they should have made it clear. They have not done so, but have used familiar language apt to refer, and only to refer, to minerals vertically underlying a defined surface area. As the High Court justly observed (and this is the sum of the matter) " If the railway " intended otherwise, then the clause should have been worded "differently." For these reasons their Lordships are of opinion that this appeal should be dismissed, with costs, and will humbly advise His Majesty accordingly.