Vilas V. Afzulpurkar, J.

1. This review petition seeks review of the order of this Court in WA.No.44 of 2013 dated 22.01.2013. The writ appeal arose out of orders of learned single Judge in WP.No.21726 of 2012 dated 16.11.2012 dismissing the writ petition of the petitioner.

2. The brief facts of the case are that the Chief Executive Officer of the Cantonment Board had issued a notice dated 19.01.2011 to the respondents/writ petitioners under Section 248(1) of the Cantonments Act, 2006 (for short the Act) directing respondents to stop erection/re-erection of the building and remove unauthorized structures shown in column 4 of the schedule to that notice and as the respondents/writ petitioners failed to comply with the same, the further order of sealing the building was passed. The respondents contended that as against the said notice under Section 248(1) of the Act, an appeal was preferred before the appellate authority under Section 340 of the Act along with stay petition on 26.03.2011 and the same is pending, but no orders were passed on the stay petition or the appeal. The respondents had, thereafter, filed WP.No.21726 of 2012 questioning the letter issued by the Cantonment Board dated 07.07.2012 wherein the premises was sealed.

3. Learned single Judge, however, declined to grant stay and dismissed the writ petition. An appeal, being WA.No.44 of 2013, against that order, was filed by the respondents before the Division Bench, which was allowed by order under review in terms of Section 342 of the Act. On an interpretation of the said provision, it was held by the Division Bench that mere pendency of the appeal amounts to suspension of the order impugned in the appeal and the same, however, having been not taken into consideration by the learned single Judge, the appeal was allowed directing the Cantonment Board to remove the seal of the said premises and hand over the same to the writ petitioners/respondents herein. The Division Bench also recorded an undertaking on behalf of the writ petitioners that they will not make any constructions until the appellate authority disposes of the appeal.

4. This review petition, accordingly, is moved by the Cantonment Board.

5. Learned senior counsel appearing for the review petitioner submits that the interpretation placed by the Division Bench on Section 342 of the Act suffers from error apparent on the face of the record inasmuch as the words where the appellate authority so directs were not noticed by the Division Bench while allowing the appeal. In the light of the language of Section 342 of the Act, therefore, it is submitted by the learned senior counsel that deemed suspension of the action pending appeal cannot be inferred. It is also contended that the said aspect was not raised by the respondents/writ petitioners and was not argued before the learned single Judge, hence, the Cantonment Board was taken by surprise and could not meet the said ground.

6. The respondents have filed a counter affidavit pointing out that in appeals filed under Section 340 of the Act, the appellate authority generally does not pass any orders on the stay petition and as such, a fair reading of Section 342 of the Act would show that unless the appellate authority rejects the stay petition, stay pending the appeal is deemed to have been granted and the interpretation placed by the Division Bench in the order under review is, therefore, justified.

7. For the sake of appreciating the contention of the learned senior counsel for the petitioner, it is appropriate to notice Section 342 of the Act, which is extracted hereunder:

342. Suspension of Action Pending Appeal.- On the admission of an appeal from an order, other than an order contained in a notice issued under section 144, section 183, section 238, section 273 or section 302, where the appellate authority so directs, all proceedings to enforce the order and all prosecutions for any contravention thereof shall be held in abeyance pending the decision of the appeal, and, if the order is set aside on appeal, disobedience thereto shall not be deemed to be an offence.

It will be seen therefrom that with reference the appeals against Sections 144, 183, 238, 273 and 302 of the Act are treated differently than other appeals. At this stage, it is essential to notice those Sections mentioned in Section 342 of the Act, as under:

144. Power to require repair or alteration of building -

(1) Where any building in a cantonment is so ill-constructed or dilapidated as to be, in the opinion of the Board, in an insanitary state, the Board may, by notice in writing, require the owner, within such time as may be specified in the notice, to execute such repairs or to make such alterations as it thinks necessary for the purpose of removing such defects.

(2) A copy of every notice issued under sub-section (1) shall be conspicuously pasted on the building to which it relates.

(3) A notice issued under sub-section (1) shall be deemed to have been complied with, if the owner of the building to which it relates has, instead of executing the repairs or making the alterations directed by the notice, removed the building.

183. Power to exclude from cantonment persons refusing to attend hospital or dispensary

(1) If the Health Officer or the Medical Officer in charge of a hospital or dispensary maintained or aided under section 178 reports in writing to the Officer Commanding the station that any person having received a notice under section 182 has refused or omitted to attend at the hospital or dispensary, specified in the notice, or that such person, having attended the hospital or dispensary, has quitted it without the permission of such Medical Officer, or that any person has failed to comply with any direction given to him under section 182, the Officer Commanding the station may, by order in writing, direct such person to be removed from the cantonment within twenty-four hours and not to re- enter it without his permission in writing.

(2) No person who has under sub-section (1) been ordered to be removed from and not to re- enter a cantonment shall enter any other cantonment without the written permission of the Officer Commanding the station.

238. Power of Board to sanction or refuse

(1) The Board may either refuse to sanction the erection or re-erection, as the case may be, of the building, or may sanction it either absolutely or subject to such directions as it thinks fit to make in writing in respect of all or any of the following matters, namely:-

(a) the free passage or way to be left in front of the building;

(b) the space to be left about the building to secure free circulation of air and facilitate scavenging and the prevention of fire;

(c) the ventilation of the building, the minimum cubic area of the rooms and the number of height of the storeys of which the building may consist;

(d) the provision and position of drains, latrines, urinals, cesspools or other receptacles for filth;

(e) the level and width of the foundation, the level of the lowest floor and the stability of the structure;

(f) the line of frontage with neighbouring buildings if the building abuts on a street;

(g) the means to be provided for egress from the building in case of fire;

(h) the materials and method of construction to be used for external and party walls for rooms, floors, fire-places and chimneys;

(i) the height and slope of the roof above the uppermost floor upon which human beings are to live or cooking operations are to be carried on; and

(j) any other matter affecting the ventilation and sanitation of the buildings, and the person erecting or re-erecting the building shall obey all such written directions in every particular.

(2) The Board may refuse to sanction the erection or re-erection of any building on any grounds sufficient in the opinion of the Board affecting the particular building: Provided that the Board shall refuse to accord sanction the erection or re-erection of any building if such erection or re-erection is not in conformity with any general scheme sanctioned under section 240.

(3) The Board, before sanctioning the erection or re-erection of a building on land which is under the management of the Defence Estates Officer, shall refer the application to the Defence Estates Officer for ascertaining whether there is any objection on the part of the Government to such erection or re-erection; and the Defence Estates Officer shall return the application together with his report thereon to the Board within thirty days after it has been received by him.

(4) The Board may refuse to sanction the erection or re-erection of any building-

(a) when the land on which it is proposed to erect or re-erect the building is held on a lease from the Government, if the erection or re-erection constitutes a breach of the terms of the lease; or

(b) when the land on which it is proposed to erect or re-erect the building is entrusted to the management of the Board by the Government if the erection or re-erection constitutes a breach of the terms of the entrustment of management or contravenes any of the instructions issued by the Government regarding the management of the land by the Board; or

(c) when the land on which it is proposed to erect or re-erect the building is not held on a lease from the Government, if the right to build on such land is in dispute between the person applying for sanction and the Government.

(5) If the Board decides to refuse to sanction the erection or re-erection of the building, it shall communicate in writing the reasons for such refusal to the person by whom notice was given.

(6) Where the Board neglects or omits, for one month after the receipt of a valid notice, to make and to deliver to the person who has given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection, as the case may be:

Provided that, in any case to which the provisions of sub-section (3) apply, the period of one month herein specified shall be reckoned from the date on which the Board has received the report referred to in that sub-section.

273. Prohibition and restriction of use of slaughter-house

(1) Where, in the opinion of the Chief Executive Officer, it is necessary on sanitary grounds so to do, he may, by public notice, prohibit for such period not exceeding one month, as may be specified in the notice, or for such further period not exceeding one month, as he may specify by a like notice, the use of any private slaughter-house specified in the notice, or the slaughter therein of any animal of any description so specified.

(2) A copy of every notice issued under sub-section (1) shall be conspicuously pasted in the slaughter-house to which it relates.

302. Removal and exclusion from cantonment of disorderly persons

(1) A Judicial Magistrate of the First Class, having jurisdiction in a cantonment, on receiving information that any person residing in or frequenting the cantonment-

(a) is a disorderly person who has been convicted more than once of gaming or who keeps or frequents, a common gaming house, a disorderly drinking shop or a disorderly house of any other description; or

(b) has been convicted more than once either within the cantonment or elsewhere, of an offence punishable under Chapter XVII of the Indian Penal Code; or

(c) has been ordered under Chapter VIII of the Code of Criminal Procedure, 1973, either within the cantonment or elsewhere to execute a bond for his good behaviour, may record in writing the substance of the information received, and may issue a summon to such person requiring him to appear and show cause why he should not be required to remove from the cantonment and be prohibited from re-entering it.

(2) Every summons issued under sub-section (1) shall be accompanied by a copy of the record aforesaid and the copy shall be served along with the summons on the person against whom the summon is issued.

(3) The Magistrate shall, when the person so summoned appears before him, proceed to inquire into the truth of the information received and take such further evidence as he thinks fit, and if upon such inquiry it appears to him that such person is a person of any kind described in sub-section (1) and that it is necessary for the maintenance of good order in the cantonment that such person is required to be removed therefrom and be prohibited from re- entering the cantonment, the Magistrate shall inform the matter to the Officer Commanding the Station and, the Officer Commanding the Station shall cause to be served on such person an order in writing requiring him to remove from the cantonment within such time as may be specified in the order and prohibiting him from re-entering it without the permission in writing of the Officer Commanding the Station.

8. It would be evident from the above that the provisions, extracted above, relate to notice issued for repair or alteration; an order is passed under Section 183 of the Act after receiving the notice under Section 182 of the Act by the Health/Medical Officer in-charge; Section 238 of the Act refers to contingencies where the board may refuse to sanction erection or re-erection; Section 273 of the Act deals with prohibition and restriction of use of slaughter-house whereas Section 302 deals with removal and exclusion of disorderly persons from the Cantonment.

9. In our view, therefore, with respect to appeals against notices issued under Sections 144, 183, 238, 273 and 302 of the Act, the appellate authority is required to pass an order on presentation of an appeal and for that reason, Section 342 of the Act provides for admission of an appeal other than appeals arising out of the aforesaid Sections, referred to above, all proceedings to enforce the order and all prosecutions for any contravention shall be held in abeyance. However, with regard to the aforesaid Sections, if appeals are preferred, the order of the appellate authority shall be acted upon. This is evident from the punctuations in Section 342 of the Act, which provides appeal against the aforesaid Sections separately and further clarifies by stating whether appellate authority so directs. Put it differently, therefore, with regard to all other appeals, all proceedings to enforce the order shall be held in abeyance, on admission of appeal.

10. In the case on hand, order under appeal is not under any of the five Sections referred to under Section 342 of the Act. Since the Division Bench under the order impugned has interpreted Section 342 of the Act in the same manner, we are of the view that the premise on which the review petition is moved by the petitioner is not sustainable and we do not find any error apparent on the face of the record warranting review.

Review petition is accordingly dismissed.