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. 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, co

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