ORDER Jack, J. - This Rule was issued calling upon the District Magistrate of Burdwan and on the Chairman of the Asansole Municipality to show cause why the order convicting the petitioner u/s 501, Bengal Municipal Act, read with Section 326 of the same Act, and sentencing him to pay a fine of Rs. 100 should not be set aside. The facts against the petitioner are that in contravention of Section 326, Bengal Municipal Act, he removed two partition walls within his premises and thereby made material alterations in the building without the permission of the Commissioners as required u/s 501 which lays down that alteration or addition in or to a building shall be deemed to be material if it increases or decreases the height of the area covered by or the cubical capacity of the building or any part thereof. The accused in this case has been found by the trial Court to have increased the cubical capacity of a part of the building without written permission of the Commissioners. The lower appellate Court has found that the cubical capacity of the room affected by the removal of the partition wall has been increased. The question then is whether by removing the partition walls and thereby increasing the size of the room there has been a material alteration caused within the meaning of Section 326. Clause (2) of Section 326 only refers to increase in cubical capacity of a building or any part thereof. The second portion of Sub-clause (a) refers to reduction of height or cubical capacity of any room in the building. By merely removing the partition wall the area of the room is increased. It does not necessarily result in the increase of the cubical capacity of the building as distinguished from the rooms within the building; unless it has been shown that the cubical capacity of the building has been increased, the petitioner would not come under the provisions Section 326. In this case there is only the finding that the cubical capacity of the rooms has been affected; there is no finding that the cubical capacity of the building has been affected. In this case there is only the finding that the cubical capacity of the rooms has been affected; there is no finding that the cubical capacity of the building has been affected. Ordinarily, the cubical capacity of a building is not affected by removal of partition walls; of course removal of partition walls might come under Clause (3) of Section 326, but there is no allegation in this case that the safety or stability or position or sanitary condition has been affected by the removal of these walls. In these circumstances the Rule is made absolute; the conviction and sentence must be set aside and the fines if paid must be refunded.