IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:1433/2007 Reserved on: 17.4.2009 Decided on:19.6. 2009 Munshi Ram and another. …Petitioners. Versus Hans Raj and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioners : Mr. Adarsh Vashisht, Advocate vice Mr. R.S. Kanwar, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the predecessor-in-interest of the present respondents Ex. Havaldar Ranjit Singh applied for resumption of land and filled up LR-V form vide No. 3788 on 15.5.1976. The matter was sent to the Naib Tehsildar, Kangra for inquiry. He reported that Sh. Ranjit Singh is owner of land measuring 3-27-79 hectares of land out of which land measuring 2-27-79 hectares was in his self cultivation and the land measuring 0-37-83 hectares was in cultivation of his tenants Sh. Nand Lal and Munshi Ram. According to the report of the Naib Tehsildar, the land under self cultivation exceeded the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 permissible limit provided under section 34 (dd) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereafter referred to as ‘the Act’ for convenience sake). The Land Reforms Officer, Kangra on the basis of the report furnished by the Naib Tehsildar, Kangra rejected the application vide order dated 26.10.1976. Sh. Ranjit Singh preferred an appeal before the Collector. He vide order dated 14.9.1979 remanded the case to the Land Reforms Officer, Kangra for fresh inquiry. The Land Reforms Officer, Kangra decided the case again vide order dated 23.7.1981. He also took the view that Sh. Ranjit Singh had an area measuring 1-29-51 hectares of land as Banjar and Kharetar and total area of land measuring 2-75-72 hectares was under self cultivation, which was more than 5 acres. In other words, he held that he was not entitled to resume the land. Sh. Ranjit Singh, predecessor-in-interest of the respondents again agitated the matter by filing an appeal before the Additional District Magistrate, Kangra at Dharamshala exercising the powers of Collector. He disposed of the appeal on 28.7.1987. Thereafter Sh. Ranjit Singh preferred an appeal before the Divisional Commissioner, Kangra Division bearing appeal No. 81 of 1990. The same was allowed by him on 17.10.1994. The petitioners preferred revision petition against the order dated 17.10.1994 before the Financial Commissioner (Appeals). He rejected the revision on 28.3.2006. Mr. Adarsh Vashisht, Advocate has strenuously argued that the orders passed by the Divisional Commission on 17.10.1994 and Financial Commissioner (Appeals) on 28.3.2006 are not sustainable. He has supported the orders passed by the Land Reforms Officer dated 23.7.1981, which has been upheld by the Collector on 28.7.1987. He finally contended that the Divisional Commissioner as well as Financial Commissioner (Appeals) have misconstrued first proviso of clause (dd) of 3 sub-section (1) of section 34 and sub sections (8) and (9) of section 104 of the Act. Mr. Ajay Sharma, Advocate has supported the order passed by the Divisional Commissioner dated 17.10.1994 which was upheld by the Financial Commissioner (Appeals) on 28.3.2006. I have heard the learned counsel for the parties and perused the record carefully. The predecessor-in-interest of the respondents was serving in the Indian Army. He had applied for resumption of land on 15.5.1976. The matter was got inquired from the Naib Tehsildar, Kangra. He submitted the report on 4.6.1976. The Land Reforms Officer rejected the application on 26.10.1976. The matter was remanded by the Collector to Land Reforms Officer on 14.9.1979. He maintained the same order. The appeal preferred by the predecessor-in-interest of the respondents Sh. Ranjit Singh was rejected by the Additional District Magistrate exercising the powers of Collector, Dharamshala on 28.7.1987. It will be apposite at this stage to take stock of section 104 of the Act. A bare perusal of sub- section (1) of section 104 provides that the land owner shall be entitled either to 1½ acre of irrigated land or three acres of un-irrigated land under tenancy from one or more than one tenants for his personal cultivation. There is further restriction in second proviso to sub-section (1) to section 104. It provides that the land owner shall not be entitled to resume from a tenant more than one half of the tenancy land. The second restriction is imposed in sub-section (2) of section 104. It provides that in case the land owner holds less than one and a half acres of irrigated land or three acres of un-irrigated land in his personal cultivation, he shall be entitled to resume tenancy land only to make up the land under his personal 4 cultivation to the extent of one and a half acres of irrigated land, or three acres of un-irrigated land, as the case may be, subject to the other conditions laid down in the section. However, as per the phraseology employed in sub-section (8) of section 104, save as otherwise provided in sub-section (9), nothing contained in sub-section (1) to (6) shall apply to a tenancy of landowner during the period mentioned for each category of such landowners in sub-section (9), who (a) ….. (b)….. (c) is a serving member of the Armed Foirces; (d) ….. Clause (c) of sub–section (9) of section 104 clearly stipulates that in case of landowners mentioned in clauses (a) to (d) of sub-section (8), the provisions of sub-sections (1) to (6) shall not apply in case of persons mentioned in clauses (c) and (d) sub-section (8) during the period of their service in the Armed Forces subject to resumption of land by such persons to the extent mentioned in first proviso to clauses (d) and (dd) of sub-section (1) of section 34. It is apparent from the provisions contained in sub-sections (8) and (9) of section 104 that the serving members of the Armed Forces have been treated as a separate and distinct class. Their interests have been protected and they have not been treated as ordinary land owners. It will be apt to reproduce sub-sections (8) and (9) of section 104 of the Act verbatim which read thus: “(8) Save as otherwise provided in sub-section (9), nothing contained in sub-section (1) to (6) shall apply to a tenancy of landowner during the period mentioned for each category of such landowners in sub-section (9), who- (a) is a minor or unmarried woman, or if married, divorced or separated from husband or widow; or (b) is permanently incapable of cultivating land by reason of any physical or mental infirmity; of (c) is a serving member of the Armed Forces; or 5 (d) is the father of the person who is serving in the Armed Forces, up to the extent of inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces, to be declared by his father in the prescribed manner. (9) In the case of landowners mentioned in clauses (a) to (d) of sub-section (8) the period of their service in the Armed Forces subject to resumption of land by such persons to the extent mentioned in first proviso to clauses (d) and (dd) of sub-section (1) of section 34. Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in Government under any law, whether before or after the commencement of this Act, and is leased out to any persons.” Now, in view of the language employed in clause (b) of sub-section (9) of section 104, the Court has necessarily to refer to clauses (d) and (dd) of sub-section (1) of section 34 along with proviso which read thus: “Section -34: Grounds of ejectment of tenants.- (1) A tenant other than occupancy tenant shall not be liable to ejectment from his tenancy except on any one or more of the following grounds, namely:- (a), (b) and (c) x x x (d) that he holds his tenancy, from a person who created such tenancy within a period of six months before he became a member of the Armed Forces or while he was serving in the Armed Forces and wants to cultivate it himself on his ceasing to be a member of the Armed Forces; (dd) that he holds his tenancy on the land comprising the share of a member of the Armed Forces covered by clause (d) of sub-section 98) of section 104 and who wants to cultivate it himself on his ceasing to be a member of the Armed Forces: 6 Provided that such person or member of Armed forces referred to in clauses (d) and (dd) above, as the case may be, shall be entitled to eject a tenant from such land upto a maximum of five acres in the prescribed manner.” In case of serving member of the Armed Forces, clause (b) of sub- section (9) of section 104 and first proviso to clause (dd) of sub-section (1) of section 34 is to be read harmoniously. If these provisions are read harmoniously, the only conclusion which can be drawn is that the person or the member of the Armed Forces is entitled to eject the tenant from the land to the extent of five acres in the prescribed manner. The rigours of sub-sections (1) and (2) of section 104 shall not apply to the serving members of the Armed Forces as per the language employed in sub- sections (8) and (9) of section 104. The language employed in sub- sections 8 and 9 of section 104 and first proviso to clauses (d) and (dd) of sub-section (1) of section 34 are plain and unambiguous. The Court cannot add or subtract any word from the enacted words. The order passed by the Divisional Commissioner dated 17.10.1994 is self- contained and reasoned. He has gone into the entire contours of section 104 in juxtaposition of section 34 of the Act. The conclusion drawn by him that the land owner who is a member of the Armed Forces would be entitled to resume from his tenants a maximum of five acres of land regardless of the fact whether he has some other land in his personal cultivation and irrespective of the fact whether his tenants would in the process loss more than 50% of their tenancy land. The same have rightly been upheld by the Financial Commissioner (Appeals) in his order dated 28.3.2006. The learned Divisional Commissioner has also come to a right conclusion that only first proviso to clauses (d) and (dd) of sub-section (1) 7 of section 34 was applicable in the present case. It is also reiterated that the restrictions imposed in sub-sections 1 and 2 of section 104 are not applicable to cases, which are covered specifically by sub-sections (8) and (9) of the Act. The application preferred by the predecessor-in-interest of the respondents was within time. The findings recorded by the Financial Commissioner (Appeals) to this effect are upheld. Accordingly, in view of the observations made hereinabove, there is no merit in the petition and the same is dismissed. There will, however, be no order as to costs. 19.6.2009 (Rajiv Sharma ), J. *awasthi*