Judgment.-The defendant Municipality is the appellant in the second appeal . The respondent herein filed a suit to declare that the notice dated 12th January, 1967 is bad, illegal, ultra vires and without jurisdiction and also for an injunction to restrain the defendant from proceeding to implement the said notice. 2. In the plaint, it was stated that the plaintiff is carrying on a hotel business in the building comprised in T.S. Nos. 1, 2 and 311 in Ward Nos. 8 and 9 of Karaikudi. He is carrying on a hotel business under the name and style of “S.P.P. Sitrundi Nilayam” and the whole building has been assessed under one assessment. T.S. No. 311 is described as channel poramboke and B memos. Were initially granted and thereafter it was granted under a lease to him. In 1964, the defendant issued a notice to dismantle the thatched portion in T.S. No. 311 stating that it is a public street which vested in the Municipality and it is an encroachment. The plaintiff filed O.S. No. 77 of 1964 for a permanent injunction and it was decreed. Thereafter the defendant refused to grant licence for his hotel business on the ground that the business was carried on in an encroached portion. Again plaintiff filed O.S. No. 125 of 1965 for a declaration that the refusal to grant licence is illegal. It was also decreed. On 12th December, 1966 fire broke out and the thatched portion was completely burnt down leaving the rest intact. The thatched portion was substituted by asbestos roofing and three days thereafter, the defendant issued a notice under section 216 (1) and (2) read with sections 317, 338 and 339 of the Tamil Nadu District Municipalities Act (hereinafter called, the Act). The plaintiff replied on 19th December, 1966 stating that it is neither a construction nor a reconstruction and thereafter the defendant passed orders under section 216 (3) of the Act on 23rd December, 1966 confirming the earlier order dated 17th December, 1966. An appeal was preferred to the Municipal Council and it was rejected. Thereafter the defendant issued a notice to the plaintiff to demolish the asbestos roofing. Hence the suit. 3. The defendant contested this claim by stating that the portion of the superstructure put up in T.S. No. 311 is not treated as part of the building in T.S. Nos. An appeal was preferred to the Municipal Council and it was rejected. Thereafter the defendant issued a notice to the plaintiff to demolish the asbestos roofing. Hence the suit. 3. The defendant contested this claim by stating that the portion of the superstructure put up in T.S. No. 311 is not treated as part of the building in T.S. Nos. 1 and 2 as the owners of T.S. Nos. 1 and 2 are different from the owner of T.S. No. 311. T.S. No. 311 is admittedly an encroachment and even the case of the plaintiff is that he is now enjoying it, on lease. The fire does not appear to have been caused by accident as claimed by the plaintiff. The asbestos construction began only on 15th December, 1966, and for so doing it, the plaintiff is bound to apply for prior permission under section 197 of the Act. He had completed the entire construction without prior permission of the Municipality. The entire cubic contents of the new building is more than the old one, The defendant issued notice under section 216 (1) and (2) not to proceed with the work without obtaining permission. Despite that, he had completed the construction and consequently the defendant Municipality issued an order to demolish the new construction. The order had become final and it cannot be challenged by way of suit. 4. The trial Court decreed the suit which was confirmed by the lower appellate Court and the second appeal has been preferred by the defendant Municipality. 5. The learned counsel for the appellant contends that before any reconstruction is carried out, as defined under section 3 (24) of the Act, the prior permission of the Municipality has to be obtained under section 197 of the Act and it has not been done. The portion occupied by T.S. No. 311 was originally a hut and as claimed by the plaintiff, if it was destroyed due to fire on 12th December, 1966 on being reconstructed and the roofing is covered with asbestos and tin sheets it will no longer be a hut and will have to be treated only as a building, and therefore without prior permission, the plaintiff should not have reconstructed the building. His further contention is that the reconstruction carried out must be related to the area that was demolished or destroyed on 12th December, 1966 and it cannot be to the entirety of the building covered by T.S. Nos. 1, 2 and 311. The learned counsel for the appellant placing reliance on the report of the Commissioner argued that the cubical contents of the area reconstructed after 12th December, 1966 is nearly 55% of the total cubical contends of the entire building and in this view, the notice issued by the Municipality is valid. 6. The counsel for the respondent would contend that the building is one whole building, situate in T.S. Nos. 1, 2 and 311. It was used as a single building for running the hotel business. It was assessed by the Municipality as one building. The portion in T.S. No. 311 was originally covered by thatched roofing and after the fire on 12th December, 1966, the plaintiff-respondent had covered the roofing with asbestos sheets. According to him, section 3 (24) of the Act would not be applicable to the present case. His further contention is that the original construction in T.S. No. 311 was a hut as defined under section 3 (11) and a hut is also included in the definition of ‘building’ under section 3 (3) of the Act, and therefore even assuming that the area covered by T.S. No. 311 which was originally a hut, had been covered with asbestos roofing which would make it a ‘building’ it will have to be treated as part of the entire built up portion forming one single unit in T.S. Nos. 1, 2 and 311. 7. It is not in dispute that the portion of the building situate in T.S. No. 311 was originally covered by thatched roofing. If it was a thatched construction, it would be only a ‘hut’, as defined under section 3 (11) of the Act. The question is, whether this portion can be treated as a separate unit or it has to be treated as part of the other units which were in the possession and enjoyment of the plaintiff. Certain arguments were advanced before me on this aspect. I find that the trial Court has held that the superstructure in T.S. No. 311 forms part of a portion of the building in T.S. Nos. Certain arguments were advanced before me on this aspect. I find that the trial Court has held that the superstructure in T.S. No. 311 forms part of a portion of the building in T.S. Nos. 1 and 2 and the entire building in those three Town Survey numbers, is a single unit. In fact the lower appellate Court refers to this and states “this finding of the learned District Munsif has not been challenged by the appellant”. Hence, it has to be taken that the entire built up area in the three town survey numbers T.S. Nos. 1, 2 and 311 is one whole building. Therefore it will be a “building”, in which a portion of it was covered with thatched roofing. It would therefore be unnecessary to go into the question of finding out, whether it was “a hut” or not. 8. When a portion in a building is destroyed by fire and the owner of the building repairs it, does it amount to a ‘reconstruction’ which would call for a prior permission under section 197 of Act? 9. Whether the roofing was a thatched one or even if it had been of any other material, the necessary aspect that will have to be looked into is the cubical contents of the area of reconstruction that is carried out at a particular point of time. “Section 3 (24) of the Act states as follows: Section 3 (24) (a): ‘Reconstruction’. — ‘Reconstruction’ of a building includes — (a) the re-erection wholly or partially of a building after more than one-half of its cubical contents lias been taken down or burnt down, or has fallen down whether at one time or not”. When such a reconstruction is carried out, under section 197 of the Act, the owner of the building should ask for prior permission. 10. The contention of the defendant appellant herein is that, in this case when the alleged fire was said to have taken place, the portion of the building in T.S. No. 311 was destroyed and it had been reconstructed. As defined under section 3 (24) of the Act, since there was a reconstruction of the building of more than one-half of its cubical contents, the notice issued by the defendant is valid. As defined under section 3 (24) of the Act, since there was a reconstruction of the building of more than one-half of its cubical contents, the notice issued by the defendant is valid. A Commissioner was appointed by the Court below to find out the cubical contents of the entire building and also the cubical contents of the area that was restored. 11. The defendant examined a Building Inspector as D.W. 1, while the plaintiff examined himself as P.W. 1. But their evidence had not been of any assistance to Court. Both the Courts below relied on the report of the Commissioner, Exhibit C-1. I also consider that the report Exhibit C-l alone is dependable. The Commissioner has furnished in his report the cubical contents of asbestos sheet construction in T.S. No. 311 as 3749 cubic feet and that of tin sheets 1155 cubic feet. The cubical contents of the constructions in T.S. Nos. 1 and 2 are 818 cubic feet and 3240 cubic feet respectively. Thus the total cubical contents of the entire building is 8962 cubic feet. Half of this will be 4481 cubic ‘feet. According to the Commissioner, the total cubical contents of the portions covered by asbestos and tin roofings in T.S. No. 311 comes to 4904 cubic feet. This has been found to be 55% of the cubical contents of the entire building, spread over T.S. Nos. 1,2 and 311. 12. These calculations of the Commissioner have been referred to by both the Courts below and the ultimate conclusion which has been arrived at by the Courts below is that the total cubical contents of the asbestos roofing is less than half of the cubical contents of the entire building and that therefore section 197 of the Act will not be applicable. 13. According to the learned counsel for the respondent-plaintiff the whole building must be taken as a single unit and even in the lower appellate Court, it had not been challenged by the defendant. He submitted that when once the entire unit is taken as one, there would be no question of treating one portion as a hut and the other portion as a building, and that it will be a “building”, in which a portion of it is covered by thatched roofing or by any of the materials which are mentioned in section 3 (11) of the Act. 14. 14. When a portion of “a building” has fallen down, or destroyed or burnt down and later on re-erected wholly or partially, it will be a reconstruction as defined under section 3 (24) of the Act. When such a reconstruction is effected and if the area of reconstruction exceeds more than one half of the cubical contents of the entire building, then prior permission under section 197 of the Act is necessary. The Commissioner in Exhibit C-1 has found out that in the burnt down area in T.S. No. 311, the restored portion is now covered with asbestos and tin sheets which are inserted inside the A. C. sheets in some portions on the western side. The cubical contents of the tin roofing have been excluded i.e., 1155 cubic feet. But what is required under Act is to take into account the total cubic contents which are reconstructed or re-erected. It may consist of bricks, stones, wooden planks or asbestos or tin roofings or concrete slabs etc. For the purpose of calculating the cubical contents, the area covered by the new construction should be taken into account. The report Exhibit C-l makes it clear that the roofing in T.S. No. 311 which had been re-erected consists of asbestos roofing and also of tin sheets inserted inside the A.C. sheets in the western side of T.S. No. 311. Nowhere it is comprehended that only the A.C. sheet area alone should be taken into account when restoration is effected. The cubical contents of the re-erection will consist of the entire area restored in which will include not only the A.C. sheets but also the tin sheets which are inserted inside the A.C.roofing which together form the integrated roofing for the structure. If the intention under the Act is only to take into account the roofing alone, the floor area so covered would have been required to be made out under section 3 (24) of the Act. The very fact that the cubical contents has to be ascertained, shows that not only the top roofings but also portions of the wall, the thickness of the roofings etc., which form part of the construction carried out, become relevant for finding out whether it exceeds one-half of the cubical contents of the entire building. 15. The very fact that the cubical contents has to be ascertained, shows that not only the top roofings but also portions of the wall, the thickness of the roofings etc., which form part of the construction carried out, become relevant for finding out whether it exceeds one-half of the cubical contents of the entire building. 15. It is on this important aspect I find that the Courts below have erroneously excluded the cubical contents of the tin sheets, which have been put up subsequent to the fire on 12th December, 1966. 16. But the cubical contents of the area in T.S. No. 311 which had been reconstructed is more than 50% of the cubical contents of the entire building in T.S. Nos. 1, 2 and 311, the plaintiff ought to have obtained prior sanction from the Municipality under section 197 of the Act. Therefore the orders issued by the defendant-Municipality cannot be characterised as illegal or passed without jurisdiction. 17. In view of what has been stated, it is not necessary to go into the question as to whether the portion of the building covered by T.S. No. 311 can be treated as “building” and it is only on that basis the reconstruction carried out has to be calculated. Equally, the question whether it was a ‘hut’ and that it cannot be treated as part of the main building also does not arise for consideration. I accept the contention of the plaintiff that there is only a single building in T.S. Nos. 1, 2 and 311. Based on the report in Exhibit C-l, I have come to the conclusion that when cubical contents of the re-erection has to be taken into account, it would also include in this case the area covered by tin sheets inserted inside A.C. Sheets in the western side, which would form part of the reconstructed cubical area in the building. The second appeal is therefore allowed with costs.