1. Petitioners have thrown challenge to initiation of proceedings under J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereafter for short Act) by District Magistrate Srinagar (respondent No. 3) on application of respondent No. 5 attorney of respondent No. 4 and the order dated: 01-05-1999 passed by D.M.S. directing SP crimes to hold enquiry regarding genuineness or otherwise of power of attorneys produced before the Magistrate by the contesting private parties (The petitioner and the respondent No. 5) and at the same time directing Tehsildar to take over the possession of the property, subject of the proceedings measuring 21 Kanals and 9 Marlas in khasra Nos. 2690/194, 2691/197, 2692/197 and 2693/ 198 situated at Batpora Tehsil and District, Srinagar. The order passed in appeal against this order of Dy. Commissioner by Financial Commissioner dismissing the appeal (Annexure-K) is also impugned in this petition. 2. On consensual submission of the counsel for the parties the matter is taken up for final disposal. 3. Admit. The counsel for respondent No. 4 and 5 Mr. Makhdoomi submits that the reply on record may be treated reply at this post-admission stage on behalf of respondents 4 and 5. The official respondents are not desirous to file any reply even at this post-admission stage, as has been the case even at pre-admission stage of the proceedings. Heard. 4. Respondent No. 4 Smt Kamla Rani owns 21 Kanals and 9 Marlas of land at Batpora Srinagar as referred above. The co-petitioner No. I as also respondent No. 5 both allege that they have been given power of attorney by Kamla Rani. Besides, the petitioner also alleges that besides the power of attorney, an agreement to sell this land is executed by her in favour of the petitioners as per copy of agreement and copy of receipt of consideration of Rs. 5,25,525/- (Annexures A & B). Petitioner, Manzoor Ahmad executed six sale deeds referred in para 3 of the petition in respect of this land. In the meanwhile respondent No. 5 Nisar Ahmad Panjabi who also has got power of attorney from Kamla Rani has filed several civil suits to challenge the sale deeds and sought the relief of declaration and injunction in these suits. Petitioner, Manzoor Ahmad executed six sale deeds referred in para 3 of the petition in respect of this land. In the meanwhile respondent No. 5 Nisar Ahmad Panjabi who also has got power of attorney from Kamla Rani has filed several civil suits to challenge the sale deeds and sought the relief of declaration and injunction in these suits. Besides, he approached the District Magistrate Srinagar with an application that the land owned by Kamla Rani is in fact migrant property which has been illegally occupied by the writ petitioner and therefore they are liable to be evicted from the land (Annexure-F). The District Magistrate Srinagar has passed the above referred impugned order followed by dismissal order of Financial Commissioner in appeal against the above order of District Magistrate, Srinagar. 5. The counsel Mr. R.A. Jan submits that the impugned orders are without jurisdiction and it is a case of exercise of powers by the District Magistrate, Srinagar not vested in the District Magistrate under the Act. 6. Counsel for respondents while supporting the impugned order(s) submits that by directing enquiry to be held with regard to genuineness or fakeness of power of attorney, the D.M. has not gone wrong. Directing the Tehsildar to take over the property LJ/s 4 of the Act is an order passed under the provisions of the Act. 7. Counsel for the parties are (Sic) agreed that so far as direction of D.M. directing SP Crimes to enquire and report about the genuineness, truth or fakeness or otherwise of the power of attorney™s after same are examined and opined by the F.S.L. Laboratory, is concerned, no exception can be taken to such a course of action as part of the proceedings, so long, the D.M. has doubts as to the genuineness or otherwise of the document(s), in this case power of attorney™s in question. The District Magistrate has the powers and authority to come to definite/reasonable conclusion as to the true nature of the document(s) and whether such document(s) is in fact executed by the person by whom it purports to have been executed. District Magistrate has given reasons for this direction on record. Such proceedings (sic) and may be even initiation of legitimate criminal proceedings cannot be stalled. The preliminary fact finding proceedings and genuinely setting in motion criminal law, cannot be under an embargo on any pretext. District Magistrate has given reasons for this direction on record. Such proceedings (sic) and may be even initiation of legitimate criminal proceedings cannot be stalled. The preliminary fact finding proceedings and genuinely setting in motion criminal law, cannot be under an embargo on any pretext. There cannot be a direction against a statutory provision. Counsel for the parties concede this position. 8. So far as the second limb of the order is concerned it needs to be examined in the light of the record. Section 3 of the Act places restriction on any alienation of immovable property of a migrant subject to conditions provided in Section 3 (a) of the Act. Section 3 (b) of the Act lays down that the alienation of such property in violation of the provisions of the Act, shall be null and void and the subject of such alienation would continue to vest in its owner. Even admittance to registration of such documents in contravention of these provisions is forbidden. Section 4 reads as under:- "Custody of immovable property:- (I) within 30 days from the commencement of this Act, the District Magistrate shall take over the possession of immovable property, belonging to Migrants, falling within his territorial jurisdiction and shall, on the expiry of said period of 30 days be deemed to have the custody of such immovable property. (2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property: Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing. Section 5 reads as under:- "Eviction of unauthorised occupants:- If any unauthorised occupant of any migrant property refuses or fails on demand to surrender possession thereof to the competent authority, such authority may use such force as is necessary for taking possession of such property and may for this purpose after giving reasonable warning and facility to any women not appearing in public to withdraw, remove or break open any lock, bolt or any door or do any other act necessary for the said purpose." 9. A combined reading of these provisions of the Act would show that the property subject matter of the Act and its provisions is "Immovable property of a migrant". A combined reading of these provisions of the Act would show that the property subject matter of the Act and its provisions is "Immovable property of a migrant". Clause (d), (e) & (1) of Section 2 of the Act reads as under:- "(d) Immovable property" shall also include tenancy rights or interest created under any law for the time being in force; (e) "Migrant" means any person who has migrated from Kashmir Valley after 1st November, 1989 and is registered as such with the Relief Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office, or having left the Valley in pursuit of occupation or vocation or otherwise, and is possessed of immovable property in the Valley but is unable to ordinarily reside there due to the disturbed conditions; (i) Unauthorised Occupant" means any person who has encroached upon or taken possession of any immovable property of a migrant without his written consent and authority of law". 10. The common thread that runs through these provisions of the Act empowering the District Magistrate concerned to take action U/Ss 4 and 5 of the Act is that the immovable property is of migrant. If it be so,, then the District Magistrate in the first instance before proceedings in the matter to pass an order U/s 4 of the Act, is required to determine if the immovable, property is of migrant and whether unauthorised occupant of such property refuses or fails on demand to surrender the possession to the competent authority. 11. In the proceedings initiated on application of respondent No. 5, writ petitioners have appeared and filed objections wherein it is stated that the land in question is not migrant property, therefore the Act does not apply in this case. Even in the writ petition it is alleged that the owner Kamla Rani is residing at Delhi for last over 20 years. The annexure-H (3 leaves) all copies of the elect roller of union territory of Delhi show that she is a registered electorate from Golf Link Area of Union territory of Delhi for parliamentary elections for the year 1980, 1983 and 1987. The annexure-H (3 leaves) all copies of the elect roller of union territory of Delhi show that she is a registered electorate from Golf Link Area of Union territory of Delhi for parliamentary elections for the year 1980, 1983 and 1987. Besides the power of attorney of respondent No. 5 (annexure-C to the reply filed by the respondent No. 4 and 5) shows that the said Kamla Rani (sic) Smt. Kamala Chopra is a resident of 162 Gold Link, New Delhi. Even Dy. Commissioner new Delhi in his communication to District Magistrate Srinagar (Annexure-D) has recorded her residence as above. 12. In such circumstances it was incumbent upon the District Magistrate to examine the question whether owner is in fact a migrant as defined in Section 2 (e) of the Act and whether the property in question is in fact ˜immovable property of the migrant™ and further if the petitioners are encroachers and unauthorised occupants of the migrant property, the written consent of the owner and authority of law as provided by Section 2 (i) of the Act. This is so as the exercise of powers by concerned District Magistrate (here District Magistrate, Srinagar) is conditioned on the existance of the facts, if the owner is a migrant and whether the land in question is immovable property of migrant and further if the persons in occupation/ encroachers are unauthorised occupants within the meaning of the Act. Without determination of these basic jurisdictional facts, the exercise of powers and initiation of proceedings culminating in passing of the impugned order (Annexure-I) is vitiated. 13. Scruting (sic) of the impugned order shows that after reference to a few facts and circumstances, in first and second paras, the 3rd para concerns the direction regarding determination by FSL of genuineness, or otherwise of the power of Attorneys produced by the contesting parties before District Magistrate through SP Crimes and feeding back the information thereto by SP Crimes. Scruting (sic) of the impugned order shows that after reference to a few facts and circumstances, in first and second paras, the 3rd para concerns the direction regarding determination by FSL of genuineness, or otherwise of the power of Attorneys produced by the contesting parties before District Magistrate through SP Crimes and feeding back the information thereto by SP Crimes. The 4th, Paragraph of the order says, "pending™ enquiry in the matter and in exercise of the powers conferred upon the undersigned U/s 4 of the Immovable Property of Migrants Act 1997, the Tehsildar Srinagar is directed to take over the immovable property in question.." The order is purported to have been passed U/s 4 of the Act which provides for taking over possession and other steps for Preservation and Protection of the Immovable Property belonging to a migrant. Section 5 provides for eviction of unauthorised occupants. The order itself shows that District Magistrate has kept the matter pending and without determining the real Character of the property whether it is of a migrant or not, within the meaning of Section 2 (e) of the Act, has rushed to pass the order directing Tehsildar to take over the land with structures etc. in his custody on behalf of the District Magistrate. Thus the District Magistrate cannot do without coming to the conclusion that the immovable property in fact belongs to migrant and answers description of immovable property of a migrant under the Act. Even so the part of the direction of the impugned order requires the Tehsildar to evict occupant of the property, without determining the question whether occupant of the property can be in fact said to be an authorised occupants of immovable property of a migrant. Viewed thus this part of the impugned order cannot be sustained and has therefore to be declared vitiated and as one not covered by parameters of the Act. Accordingly the direction to the Tehsildar to take over the property in question is quashed. District Magistrate is at liberty to pass fresh appropriate orders under the Act, after determination of basic jurisdictional facts as observed herein above. Disposed of along with connected IAs