JUDGMENT : 1. Impugned in this petition is order dated 19th August, 2014 passed by respondent No. 3 (District Magistrate, Anantnag), whereby, the Tehsildar, Shangus has been directed to proceed on spot and remove the illegal encroachment on the land measuring 01 Kanal under survey No.174 min and 10 Marlas under survey No. 179 situated in village Brah, with further direction to take the aforesaid property in custody Under Section 5 of The J&K Migrant Immovable Property (Preservation, Protection and Restraint On Distress Sales )Act, 1997 (hereinafter referred as “Act of 1997”). 2. The petitioners have assailed the aforesaid order primarily on the ground that the same has been passed by the respondent no. 3 without affording an opportunity of being heard to the petitioners. It is submitted that the respondent no. 3 declared the property to have been illegally encroachment upon for the purposes of proceedings Under Section 5 of the Act of 1997 which is otherwise, validly held by the petitioners pursuant to the irrecoverable general power of attorney and agreement to sell executed by the vendor namely Shri Amar Nath. 3. It is submitted by the petitioners that vendor of the property in question Shri Amar Nath executed the general irrecoverable power of attorney in favour of Mehfooza Begum w/o petitioner no. 2 and simultaneously executed an agreement to sell in favour of petitioner no. 2 for total sale consideration for Rs. 76,000/-. The general irrecoverable power of attorney executed on 09th July, 2004 is duly registered with the Competent Registering Authority. It is thus urged that the petitioners are in occupation of possession of the property validly in pursuance of the execution of the aforesaid documents and on payment of total sale consideration. That being so, learned counsel for the petitioners contends that petitioners cannot be held to be unauthorized occupants. 4. The contesting respondent i.e. respondent no. 5 has filed objections. It is claimed by the respondent no. 5 that he is the co-sharer with Amar Nath and as such, the petitioner Amar Nath could not have transferred his share in the property in favour of petitioner no. 2. It is also stated by respondent no. 5 in the objections that the remedy available to the petitioners is by way of filing an Appeal against the order impugned before the Financial Commissioner. 5. 2. It is also stated by respondent no. 5 in the objections that the remedy available to the petitioners is by way of filing an Appeal against the order impugned before the Financial Commissioner. 5. Having heard learned counsel for the parties and perused the record, it is seen that the respondent no. 3 has passed the impugned order on the basis of report submitted by the respondent no. 4. The petitioner no. 1 or for that matter petitioner no. 2 have not been provided any opportunity of being heard. As is apparent from the record, the land in question has been taken possession of by the petitioner no. 2 pursuant to registered irrecoverable general power of attorney and the agreement to sell. The petitioner no. 2 as is apparent, was put in possession of the land after he paid total consideration to the petitioner no. 1. It is further revealed from the record that respondent no. 5 claiming to be co-sharer with the petitioner no. 1 qua property in question made complaint before the respondent no. 3. Respondent no. 3 called for the report from respondent no. 4. The Tehsildar submitted the report vide letter No. 55/JC/Mig/TS/14-15 dated 10.08.2014. The report of respondent no. 4 does not indicate as to whether the petitioner no. 1 or the petitioner no. 2 were ever summoned and heard. The respondent no. 3 acting upon the said report of respondent no. 4, unilaterally declared the property in question under illegal encroachment and consequently vide order impugned directed the respondent no. 4 to remove the encroachment and take over the property in terms of Section 5 of Act of 1997. It is not in dispute that the petitioner no. 2 was put in possession of subject property by the petitioner no. 1 after executing the irrecoverable power of attorney and agreement to sell and after receiving total sale consideration. Whether the respondent no. 5 who filed the complaint before the respondent no. 3 is co-sharer in the property sought to be transferred by petitioner no. 1 in favour of petitioner no. 2 is question of fact which the respondent no. 2 could have determined only by affording an opportunity of being heard to the petitioners. 6. The contention of counsel for respondent no. 5 that in view of the report of respondent no. 1 in favour of petitioner no. 2 is question of fact which the respondent no. 2 could have determined only by affording an opportunity of being heard to the petitioners. 6. The contention of counsel for respondent no. 5 that in view of the report of respondent no. 4, even if, an opportunity of being heard is given to the petitioners, the result would remain unchanged could not be accepted. It is well within the right of the petitioners to demonstrate before respondent no. 3 that the respondent no. 5 is not a co-sharer in the subject land and that the subject land which has been transferred in favour of petitioner no. 2 is exclusively owned by the petitioner no. 1 and so on and so forth. All these assertions can be demonstrated by the petitioners only, if they are given fair opportunity to put up their stand before respondent no. 3. For invoking Section 5 of Act of 1997, the District Magistrate is obliged to return a finding that the petitioners are unauthorized occupants of migrant property. The term “unauthorized occupant” is defined in Section 2(i)” which for the facility of reference is reproduced as under : “… 2(i). “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.” 7. It is thus incumbent upon the respondent no. 3 to first return a finding that the suit property is a migrant property and has been encroached upon or taken possession of by the petitioners without written consent of the migrant concerned. It is only, after returning such finding, respondent no. 3 can invoke Section 5 of the Act of 1997. It would be profitable to set out the provisions of Section 5 as well : “5… Eviction of unauthorized occupants.- If any unauthorized occupant or 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.” 8. On a bare reading of Section 5 and the definition of “unauthorized occupant” given in Section 2(i) reproduced above, it is abundantly clear that whether or not a person is an unauthorized occupant is a question of fact which is required to be determined by the District Magistrate before he could invoke provisions of Section 5 of the Act of 1997. 9. The determination of question of fact aforesaid would necessarily entail participation of all persons competing for the subject property. That being so, the compliance of principles of natural justice in such circumstances becomes mandatory and cannot be termed as useless formality. 10. The judgment relied upon by respondent no. 5 reported in 2013 (1) SLJ 29 (HC) titled Manohar Lal Vs. State of J&K and Ors. which deals with “Useless Formality theory” in the matter of compliance of principles of natural justice has not attracted for the reasons explained above. 11. It is true that the principles of natural justice do not have universal applicability and their compliance will depend upon the facts and circumstances of each case. The principles governing compliance with the doctrine cannot be put in straight jacket. 12. Theory of “Useless Formality” evolved by the Courts is an exception to the compliance with the principles of natural justice. In the case of S.L. Kapoor Vs. Jagmohan reported in 1980 (4) SCC 379 , Hon’ble the Supreme Court carved out two exceptions to the general principles of natural justice; firstly, that if, on admitted or undisputable facts only one conclusion is possible, then the principle concerning breach of rules of natural justice in itself prejudices the delinquent was not to be applied. In other words, if going by the admitted and undisputable facts, no other conclusion is possible then, there is no legal obligation to quash the order passed in violation of principles of natural justice. The 2nd exception carved out in the aforesaid judgment is that mere violation of principles of natural justice would not be sufficient to vitiate the order, unless, person aggrieved proves prejudice. 13. In the aforesaid backdrop, when the order impugned is examined, it is apparent that serious prejudice has been caused to the petitioners by not affording them an opportunity of being heard. Had the petitioners been given opportunity to contest the claim of Respondent no. 5, may be, authority concerned could have taken different view. 13. In the aforesaid backdrop, when the order impugned is examined, it is apparent that serious prejudice has been caused to the petitioners by not affording them an opportunity of being heard. Had the petitioners been given opportunity to contest the claim of Respondent no. 5, may be, authority concerned could have taken different view. The exceptions carved out by the Supreme Court as discussed above are not attracted in the instant case for the reasons stated above. 14. The plea of availability of alternative remedy under the Act of 1997 also would not be available to the respondent no. 5 as it is a now well settled that when an order is found to be vitiated for non-compliance with the principles of natural justice, the writ court can entertain the petition, availability of alternative remedy notwithstanding. 15. For the reasons stated above, order impugned cannot sustain, the same is therefore, quashed. 16. The District Magistrate- respondent no. 3 shall consider the complaint of respondent no. 5 de novo and pass appropriate order thereon as may be warranted under the provisions of Act of 1997 but only after affording an adequate opportunity of being heard to the petitioners. The District Magistrate shall first decide as to whether the petitioners or any of them or any other person is in unauthorized occupation of the migrant property and then proceed in terms of Section 5 of the Act of 1997. 17. Disposed of as above along with the connected MPs.