Per Mohammad Yaqoob Mir, J. 1. Impugned is the judgment dated 12.8.2005 passed in OWP No.355/2005 in terms of which the writ petition has been dismissed by holding that the writ petition in effect appears to be an appeal against the impugned order (i.e. order of District Magistrate) so cannot sustain, particularly when it neither contains anything to suggest exercise of power not vested in the District Magistrate or his failure to exercise the power vested in him, nor attributes any malafides to the competent authority. 2. It is contended that though the appellate forum is available but the District Magistrate has failed to exercise the power vested in him, therefore, recourse to invoking extraordinary power of this Court has been resorted to. 3. The factual matrix of the matter is required to be precisely noticed so as to appreciate the controversy in its right perspective: 4. The admitted facts are that land measuring 16 marlas covered by survey No.489-min situated at Magarmal Bagh Srinagar is a Nazool land. Same has been given on lease to Naranjan Dass Nanda (now deceased) who had constructed three storied house thereon, so the place now is known "Nanda House". On the demise of Naranjan Dass his legal heirs Puran Bagat Nanda (son), Kunti Kapoor (daughter) and Vinod Vohra (daughter) succeeded to the property. The part of the said property was in possession of the appellant in terms of the rent deed executed in the year 1977. Ever since execution of the rent deed, appellants claims to be in possession thereof. Subsequently Puran Bagat Nanda S/O Naranjan Dass also died leaving behind five sons, namely, Navneet, Puneet, Sumeet, Ranjan and Satish. A fresh rent deed has been executed on 5.8.1989 through attorney Sham Lal Kapoor in favour of Kumar Verma (father of the appellants). So the appellants continue to be in possession of the same. 5. On 21st of October, 2002, an irrevocable general power of attorney is shown to have been executed by the five sons of Shri Puran Bagat Nanda in favour of Gh. Mohi-ud-din Mattoo S/O Mohammad Sideeq R/O Magarmal Bagh, where-under the attorney has been empowered to look after the said property, in addition has been also given powers as are enumerated therein the attorney itself. 6. Mohi-ud-din Mattoo S/O Mohammad Sideeq R/O Magarmal Bagh, where-under the attorney has been empowered to look after the said property, in addition has been also given powers as are enumerated therein the attorney itself. 6. The attorney holder Ghulam Mohi-ud-din seem to have lodged a complaint before the District Magistrate, Srinagar for initiating proceedings under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act (hereinafter referred to as "the Migrant Act"). In the complaint it has been alleged that the appellants herein have forcibly taken possession of the property (Nanda House). The District Magistrate in turn has passed the following order:- "BEFORE THE COURT OF DISTRICT MAGISTRATE SRINAGAR. In the matter of: Navnit Kumar Nanda and ors. through Attorney V/S Ghulam Mohiuddin and others. Counsel on behalf of applicants present, arguments heard, verification report submitted, by Assistant Commissioner Nazool vide No.AC-AC-88/N dated 26.3.2005 perused. The non-applicants failed to produce/present any legal document in support of their occupation. Let the Tehsildar Snnagar proceed on spot along with SHO concerned, evict the illegal occupants under law and take over the possession of the property in shape of building/land khasra No.489 min with structure at Magarmal Bagh in his custody on behalf of District Magistrate Srinagar under J&K migrant Act, 1997. The compliance report should reach to this office within fifteen days positively. 7. The appellants seem to have represented before the District Magistrate that they have been holding the possession and are residing therein from 1977. Furthermore Nanda family had not migrated, neither they are migrants; therefore, on both accounts the Migrant Act is not applicable. The District Magistrate seem to have issued the order of status quo on 2.7.2005 but before so doing had obtained a report from the Assistant Commissioner Nazool, Srinagar, copy of which dated 23.6.2005 is available on the file. The said report would indicate that the land under and appurtenant to the Nanda house was under the leasehold rights of one Naranjan Dass Nanda. After his demise in terms of Govt. order No.Rev(NDK) 322 of 1989 dated 4.12.1989, the said land was leased out in favour of grandsons of Naranjan Dass whereas the daughters of Naranjan Dass were not given any such right. The lease stand renewed for a period of 40 years with effect from 7.2.1974 and has to expire on 7.2.2014. After his demise in terms of Govt. order No.Rev(NDK) 322 of 1989 dated 4.12.1989, the said land was leased out in favour of grandsons of Naranjan Dass whereas the daughters of Naranjan Dass were not given any such right. The lease stand renewed for a period of 40 years with effect from 7.2.1974 and has to expire on 7.2.2014. The grand sons of Naranjan Dass in whose favour lease was transferred are stated to have executed a general power of attorney dated 3.8.1989 in favour of Shri Sham Lal Kapoor who, as an attorney, rented out second and third storey of the premises to one Kumar Verma (father of the appellants). Once the possession of Kumar Verma was threatened, he filed a suit for injunction against the attorney Sham Lal Kapoor, same was decree in favour Kumar Verma, so Sham Lal was restrained from causing interference. 8. It is also noticed by the Assistant Commissioner in his report that Gh. Mohi-ud-din Mattoo claims the possession of the premises on the basis of power of attorney executed on 21.10.2002 in his favour by the grand sons of Naranjan Dass. Second attorney has been executed on 21.10.2002 which does not indicate anything regarding cancellation of earlier attorney under which many acts have been done by Sham Lal Kapoor (earlier attorney). 9. The eviction order dated 24.5.2005 passed by District Magistrate made the appellants apprehensive of being thrown out of the possession. That is why they have chosen to invoke the extraordinary jurisdiction of this Court so as to avoid failure of justice. 10. While considering the whole matter in the backdrop of the factual matrix as noticed hereinabove, the District Magistrate appear to have acted mechanically. 11. Section 4 of the Migrant Act provides that District Magistrate within 30 days of the commencement of the Act shall take over the possession of immovable property belonging to migrants, falling within his territorial jurisdiction and then to take necessary steps for its preservation and protection. 12. Section 5 of the Migrant Act provides that if any unauthorized occupant of any migrant property refuses or fail to surrender the possession, the force has to be used for taking over the possession. 13. 12. Section 5 of the Migrant Act provides that if any unauthorized occupant of any migrant property refuses or fail to surrender the possession, the force has to be used for taking over the possession. 13. The District Magistrate in the instant case on receipt of the complaint has passed the order of eviction and has directed the Tehsildar and SHO to take over the possession however, before such order could be carried into effect, he had ordered for maintaining status quo. 14. The following most important points have not been noticed, either by the District Magistrate or by the Writ Court: (1) Section 4 of the Migrant Act would apply to the immovable property only when such property belongs to a migrant. Now who is the migrant is well defined in Section 2(e) of the Migrant Act; (2) The validity of the power of attorney in favour of Gh. Mohi-ud-din Mattoo as questioned to be fake was not addressed. (3) The possession of the appellants from the year 1977 whether could be termed as unauthorized possession in terms of the Migrant Act. 15. In the writ petition it has been specifically pleaded that the Nanda family had left the Valley prior to the advent of militancy as they had executed power of attorney in favour of Sham Lal Kapoor on 3rd August, 1989. The District Magistrate has not conducted any enquiry regarding the "Migrant" status of the Nanda family. 16. The Writ Court also did not address this aspect as to whether Nanda family was "Migrant" or not. In case the District Magistrate would have conducted the enquiry and found that Nanda family is not a "Migrant", then the District Magistrate had no jurisdiction to pass any order under Section 4 or Section 5 of the Migrant Act. This question has not been addressed, therefore, the District Magistrate has failed to exercise the power vested in him and it is in view of the failure of exercise of such power, the orders in terms of Section 4 and 5 of the Migrant Act have been passed. This aspect has gone un-noticed and it is because of that, the Writ Court has held that the writ petition does not contain anything to suggest that the District Magistrate has exercised the power not vested in him or has failed to exercise the power vested in him. This aspect has gone un-noticed and it is because of that, the Writ Court has held that the writ petition does not contain anything to suggest that the District Magistrate has exercised the power not vested in him or has failed to exercise the power vested in him. So the question of migrant status of Nanda family has remained to be determined. Nothing has been brought on record till date to show that Nanda family is a "Migrant" as is required to be shown in terms of Clause (e) of Section 2 of the Migrant Act. 17. In the circumstances of the case District Magistrates exercise of power appears to be without jurisdiction as the status of Nanda family as migrant has not been ascertained. The writ petition against such order would thus be maintainable. 18. The power of attorney in favour of Gh. Mohi-ud-din Mattoo when complained to be fake, least District Magistrate should have done is that he should have enquired it from the Nanda family as to whether they had executed any such power of attorney. Secondly he should have also considered the position of earlier power of attorney favouring Sham Lal Kapoor. 19. The District Magistrate no doubt has been clothed with the powers under the Migrant Act but the exercise of such power has to be reasonable. It is to be seen that when a party is in possession of the property from the year 1977, whether such possession can be termed to be unauthorized in the backdrop of the provisions of the Migrant Act. Migrant Act in fact has an object of preserving and protecting the immovable property of the migrants and has also to check the distress sales but for so doing status of a person being migrant is sine qua non. 20. The unauthorized occupant as defined in Clause (i) of Section 2 of the Migrant Act means a person who has encroached upon or has taken possession of any immovable property of a migrant without his written consent and authority of law. The said clause is reproduced here-under: "Unauthorized 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". 21. The said clause is reproduced here-under: "Unauthorized 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". 21. The words occurring in the said clause would suggest that a person can be termed migrant only when he has left the Valley after 1st of November, 1989. In other words it would mean that after 1st of November, 1989 if somebody encroaches upon the property of a migrant or takes possession without the permission of the migrant, then he could be termed to be unauthorized occupant but where possession of immovable property is in the hands of a particular person prior to the commencement of the Migrant Act or prior to the time owner or other person has become migrant, that too on the basis of a rent deed even though that may have expired, such person cannot be termed to be an unauthorized occupant. 22. Learned Additional Advocate General would contend that basically land measuring 16 marlas belong to Nazool department, that is not the proprietary land of the Nanda family, so that could not be termed to be immovable property belonging to a migrant. At the most migrant has leasehold rights which he has lost by sub-leasing it. 23. While contending so learned counsel prayed for dismissal of the appeal but such contention appears to be not in keeping with the stand of the respondents. Even in that eventuality it can be safely concluded that the Writ Court order is not in consonance with law and it can also be concluded that the order of District Magistrate is illegal. Even on the basis of submission made by the learned Additional Advocate General both the orders of District Magistrate as well as Writ Court order are unsustainable. 24. The learned Additional Advocate General also added that when there is an appeal prescribed against the order of District Magistrate, the writ jurisdiction could not be invoked. 25. This argument of the learned Additional Advocate General also runs contrary to his stand because if his submission is taken correct that the property does not belong to migrant as the land belongs to Nazool department, then the order of District Magistrate passed in terms of Section 4 and Section 5 of the Migrant Act would be without jurisdiction, so liable to be set aside. The Writ Court order maintaining the said order automatically becomes unsustainable. 26. While considering the whole gamut of the matter, the order of District Magistrate is found to be bad in the eye of law and the order of Writ Court cannot also sustain as the important points stated above have not been noticed in the judgment impugned. Both the orders are set aside. District Magistrate shall afresh consider the matter in the light of the observations made above and in the light of the contentions raised and thereafter shall ascertain the position of applicability of the Migrant Act. After hearing both the parties, appropriate orders as shall be warranted be passed. Copy of the judgment be sent to the District Magistrate for follow up and compliance. Appeal accordingly succeeds.