IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.223 of 2008. Date of decision: 10.03.2009. Sharwani Devi …Petitioner Versus Bishan Dass & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No For the Petitioner: Mr.J.R. Thakur, Advocate. For Respondent No.1: Mr.Ajay Sharma, Advocate. Dev Darshan Sud,J. The petitioner has challenged the order of the learned Civil Judge (Junior Division), Barsar, setting aside the order passed by the Gram Panchayat, Barsar on 23.7.2007 directing the respondent hereinto remove the purported encroachment on a path claimed to be a public path. Learned counsel appearing for the petitioner urges that appeal preferred by the respondent herein was not maintainable since Section 12 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the `Act’) vests jurisdiction in the Sub Divisional Officer(C) to hear appeals in cases of encroachment etc. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 In particular, learned counsel emphasizes that Section 12 sub-section-(3) of the Act vests the Sub Divisional Officer(C) with exclusive jurisdiction to hear appeals in cases under Section 12. It reads:- “12. Power of removal of encroachments and nuisance.- (1) … … … … … … … … (2) … … … … … … … … (3) Any person aggrieved by an order under sub-section (1) may file an appeal within thirty days of the passing of such order before the Sub-Divisional Officer who after holding such enquiry as he may deem fit, may set aside, modify or confirm the said order and his decision thereon shall be final“ To substantiate his plea, learned counsel submits that since the case related to a public path, it is Section 12 sub- section-(3) which will determine jurisdiction and not Section 67. Learned counsel appearing for the respondents submits that Section 12 deals only with those cases where it is proved that the encroachment has been made on a public street, place or drain. He has set up a case that the path claimed was passing through his private land and the public has no right etc. to use the land. Submissions made by learned counsel appearing for the petitioner cannot be accepted. The order of the Gram 3 Panchayat (Annexure-P1), to say the least, is terse and does not determine any controversy of fact. If the power under the Act had to be invoked, the barest minimum possible which was required was that the Panchayat should have come to the conclusion that the street was a public street. Even if the power to remove obstructions is summary, some kind of inquiry is required to be made to have prima facie established that the street is a public street. I do not find that the learned trial Court was wrong in taking cognizance of the case. In the facts and circumstances of the case, this petition is rejected. This order shall, however, not preclude the petitioner or any other party from establishing in accordance with law that the path claimed is a public path. Needless to say that such determination shall be made in accordance with law. No costs. March 10, 2009 (Dev Darshan Sud) (aks) Judge.