2025:HHC:29419-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision Nos. 172 and 173 of 2016 Reserved on: 22.8.2025 Date of decision: 30.8 . 2025 1. Civil Revision No. 172 of 2016 Noor Mohammad & Another. ...Petitioners. Versus Himachal Pradesh Wakf Board. …Respondent. 2. Civil Revision No. 17 3 of 2016 Nayab & others. ...Petitioners. Versus Himachal Pradesh Wakf Board. …Respondent. Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 For the Petitioner(s). Mr.Varun Chauhan, Advocate. For the Respondents: Mr.R.K. Bawa, Senior Advocate, alongwith Mr.Abhinav Thakur, Advocate. Vivek Singh Thakur, Judge Both these petitions, for involvement of common question of law and facts to be adjudicated on the basis of identical record, are being decided by this common judgment. 1Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 2. These petitions under Section 83 (9) of the Wakf Act, 1995 read with Article 227 of the Constitution of India, have been preferred against orders dated 4.6.2012 passed by learned District Judge, Shimla exercising powers of Tribunal under the Wakf Act, 1995 in case No. 7-S/1 of 2008, titled as Noor Mohammad & Another Vs. Himachal Pradesh Wakf Board; and case No. 10-S/1 of 2008, titled as Nayab & others Vs. Himachal Pradesh Wakf Board, whereby petitions preferred under Section 7 read with Section 83 (2) of Wakf Act, 1995 instituted by petitioners praying that building comprised in Khasra No. 803, Bazar Ward, Bara Shimla, except the first floor thereof, be declared to be not a Wakf property, have been dismissed. 3. In both petitions, petitioners are residing in second floor of the premises in reference consisting of 10 rooms and a hall. It is case of the petitioners that they profess Islam and residing in Shimla for last more than 15 years for their livelihood by selling fruits and vegetables through hawking. They are very poor persons and residing far away from their native places in search of livelihood and they are illiterate and can survive only on manual labour. They earn their meager income on daily basis, that too depending upon weather and climatic conditions, which provides only two ends meals that too irregularly and they do not possess means to have a shelter for themselves. 4. Further case of the petitioners is that for last more than 15 years, they are using hall on the second floor of the premises in reference 3 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 for shelter, which is used by about 100 persons, apart from the petitioners for the purpose of shelter, and user of hall by them has never been objected by anyone as the said hall, infact, is meant for the shelter to those who do not have shelter. 5. It is further case of the petitioners that neither ground floor nor second floor as well as shops on Lower Bazar level of the premises in reference are Wakf property. According to them, only first floor of the premises, which is used for prayers as a Mosque, is Wakf property. According to them property which is used by followers of Islam as well as other religions alike, cannot be termed as the Wakf property especially when the user of said property is for none of the purposes which can constitute a Wakf. 6. It is further case of the petitioners that there is no declaration of entire property to be Wakf property under the Act nor the same has been included in the list of Wakfs, by publishing the same as such under the Act. It has been further submitted that petitioners have every right to remain in shelter of the hall of second floor and respondents have no right to direct the petitioners to vacate the hall. With aforesaid submissions, orders issued by the Chief Executive Officer of respondent- Wakf Board on 24.9.2007, has been assailed with further submission that this order, purportedly issued in exercise of powers under Section 54 of the Wakf Act, are not binding on the petitioners, because petitioners are not occupying any portion of the Wakf property and, therefore, it has been 4 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 prayed that petitioners be protected from forcible dispossession from the hall of second floor of the building. 7. It has been submitted that ground floor of the premises has been rented out to one Joginder who is not a Muslim, but a Hindu and, therefore, it cannot be said that ground floor is a Wakf property. The only area which is used as a Mosque is first floor, which can be declared or stated to be Wakf property, but neither ground floor nor second floor in which petitioners are staying. 8. Petitioners have also placed reliance upon copy of Missal Hakiat for the year 2002-2003, wherein Government of Himachal Pradesh has been reflected as owner, and Custodian Department through tenants has been depicted in possession of old Khasra No. 393 min (present Khasra No. 803) Qutub Masjid (Gair Mumkin Masjid). Petitioners have also placed on record site plan/copy of map of Qutab Masjid as Ex. PW- 1/B. 9. It has also been claimed by petitioners that for revenue entries in record, owner of the property is Government of Himachal Pradesh and the same is in possession of Custodian Department and, therefore, respondent-Board has no right and title in the premises in reference. 10. With the aforesaid submissions, petitioners had preferred petitions before the District Judge under Section 7 read with Section 83 5 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 (2) of the Wakf Act, 1995, which have been dismissed vide even dated order passed on 4.6.2012, impugned herein. 11. In response, it has been claimed that property in reference is a Wakf property as the same has been dedicated by the previous owners for use of muslim community for religious purposes and it is a Mosque where religious prayers are offered every day by the persons professing Islam and for that reason only this property is known as “Qutub Masjid”, as also recorded in revenue papers. 12. It has been further stated on behalf of Wakf Board that vide Notification dated 5.8.1970, as published in Gazette of India dated 15th August, 1970, the property has been declared as Wakf property and, therefore, plea of petitioners to allege that suit property is owned by the State of Himachal Pradesh and is in possession of Custodian Department is misconceived, because revenue record relied upon by the petitioners does not depict correct position and, therefore, entries in the record of rights existing in favour of State of Himachal Pradesh and Custodian Department are illegal, wrong and do not confer any right on the petitioners. It has been claimed that entire building is a Mosque and first floor whereof is being used for offering prayer, whereas rental income gained from tenant from the first floor is used for the purpose of Wakf. Though, it has been admitted that petitioners are professing Islam, but it has been denied that they are earning their livelihood by selling fruits and vegetables and they are poor persons. It has been claimed that 6 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 petitioners are unauthorized occupants in the Mosque and they have no right to continue in unauthorized occupation. 13. It has been further submitted that in order passed by the High Court of Himachal Pradesh in CWP (PIL) No. 980 of 2007, Wakf Board has been directed to initiate action for the eviction of unauthorized occupants from the Wakf properties. Refuting all submissions made by the petitioners, it has been claimed that the property in question is Mosque and on account of unauthorized use of Mosque by the petitioners, the persons who have to offer prayers, are finding it very difficult to offer their religious prayer for shortage of space and, therefore, it has been submitted that notices issued to the petitioners under Section 54 of the Wakf Act on behalf of respondents are legal and valid and ejectment order has already been passed by the competent authority under the Wakf Act and, therefore, the petitioners who are encroachers are liable to be evicted as the impugned orders passed by the Chief Executive Officer on 24.9.2007 are perfectly legal, valid and binding on the petitioners. 14. Oral as well as documentary evidence has been lead before the District Judge by both parties. 13. On behalf of respondent-Wakf Board H.P. Public Premises and Land (Eviction and Rent Recovery) Amendment Act, 2007, has also been referred whereby Section 2 of H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 has been amended by 7 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 incorporating ‘Wakf Property registered in H.P. Wakf Board’ in the definition of “public premises”. Therefore, notice issued by the Field Kanungo to the petitioners to vacate the premises in reference has been claimed to be in consonance with law applicable to present case. 14. Copies of order dated 24.9.2007 passed in case No. 43/07, titled as Himachal Pradesh Wakf Board, Shimla Vs. Mehboob; and case No. 39/07, titled as Himachal Pradesh Wakf Board, Shimla Vs. Noor Mohd., passed by Chief Executive Officer, H.P. Wakf Board, Shimla, have been placed on record, whereby Mehboob and Noor Mohammad have been directed to deliver the possession of space occupied by them unauthorisedly to the Estate Officer, Shimla Circle. Similar orders have been passed against all the petitioners. Copy of Gazette of India dated 15th August, 1970 with publication of list of summary of Wakfs, existing in the composite Punjab State under Section 5 (2) of the Central Government Wakf Act, 1954 read with Section 4 of the Pubjab Wakf Board, 1964 has also been placed on record. At Sr. No. 2 of this list there is details of Qutub Masjid, Shimla in Lower Bazar Shimla with house and shops Killerney Dell building which has been notified as Wakf property. 15. Petitioner Nayab in case No. 10-S/1 of 2008 and petitioner Noor Mohammad in case No. 7-S/1 of 2008 have appeared as witnesses as PW-1 in respective petitions. In their examination-in-chief they have re-iterated their stand taken in the petitions. In cross-examination, they have admitted that the building in which they are staying is known as 8 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 Qutub Masjid and persons professing Islam used to offer prayer (Namaj) in the said Masjid. They have also admitted that Masjid cannot be used for staying of any person but they have also admitted that they are occupying the space on the floor of hall. It has also been admitted that respondent-Board had never authorized them or other persons to reside in the Qutub Masjid to stay there nor any rent was ever charged. They have self stated that repair works are being done by them whenever these are required in the premises. They have also admitted that they were never authorized to occupy the space in Mosque, but with self statement that the hall is not Wakf property. They have expressed their ignorance about declaration of the premises in reference as Wakf property by the Government of India vide Notification dated 5.8.1970. Though they have denied that entry in the revenue record showing the Government as owner and Custodian Department in possession is wrong, however, they have also admitted that neither State of Himachal Pradesh nor Custodian Department, at any point of time, allowed them to stay in the premises. Nayab has denied receipt of order issued by the Wakf Board. Noor Mohammad has admitted that before passing eviction order dated 24.9.2007, Chief Executive Officer of Board had issued a notice to them, but they did not reply to the notice nor appeared before the Chief Executive Officer. 16. Petitioners, as admitted by them, have not been allowed by any body including Wakf Board, State Government or Custodian 9 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 Department to stay in the Mosque or its hall contained in second floor (third story). Petitioners have failed to establish any legal right or authorization to stay or to continue in the premises in reference. It is also admitted fact that in the first floor prayers are offered by the persons professing Islam and the building in the name of Qutub Mazjid has been notified as Wakf property in the year 1970 and thus in absence of any material depicting contrary, Wakf Board has right to manage the affairs of the property in reference and in absence of any authorization by the Wakf Board or State Government or Custodian Department or any other competent person/authority petitioners have no right to continue in possession/occupy the space in the hall of the premises in reference. 17. 17. Even if, property in reference is not to be considered as Wakf property, then also for looking after its management, as on date H.P. Wakf Board has every right to regulate the date-to-day affairs of the property in reference and thus respondent-Wakf Board has every right to ask any unauthorized occupant to vacate the premises in reference in absence of any authorization or legal right to stay in the premises to occupy the space in the hall or to use any portion of the premises in reference. Admittedly, petitioners had started staying in the hall at their own without any legal or other right and thus they have no right to continue in possession of the premises unless authorized by the competent authority/person to do so. 10 2025:HHC:29419-DB Civil Revision Nos. 172 & 173 of 2016 18. Petitioners have failed to establish their any legal right to occupy the space and also to have any right to assail eviction order, by filing the applications against the said eviction order. Accordingly, I do not find any merit in these petitions and the same are dismissed. Consequently interim protection granted to the petitioners also stands vacated. The petitions stand dismissed alongwith pending application(s), if any. (Vivek Singh Thakur), Judge. 30th August, 2025 (Keshav)