Judgment :- 1. The petitioner is one of the partners of a firm which owns a building on the Banerji Road, Ernakulam. The building formerly belonged to Kochu Ouseph and his brothers. The petitioner and his partners purchased the building under Exts. P1 to P3 in May,1979. Thereupon the partners ought to have given notice to the Corporation under S.108 of the Kerala Municipal Corporations Act, 1961 (Act 30 of 1961) This was not done. Consequently, the change of ownership was not recorded in the Corporation's books. The Corporation came to know that the building was being reconstructed by its owners Ext. Rl provisional order dated 21-10-1980 was accordingly sent by the Commissioner to the previous owners calling upon them to show cause within 10 days why the provisional order should not be confirmed. Ext. R2 of the same date is another order of the Commissioner directing the previous owners to stop the work forthwith. Exts Rl and R2 were accepted by the petitioner, although they were not addressed to him or to his partners. The notice contained in Ext Rl can therefore be treated as having been duly served on the petitioner in his capacity as one of the partners of the firm owning the building The petitioner answered Exts. Rl and R2 by Ext. P7 stating that, since the building was in a dangerous condition, he carried out certain repairs. He further stated in Ext. P7 that the roof tiles had not been laid which he would do only on completion of the repairs, but the repairs were stopped on receipt of Ext R2. 2. After receiving Ext. P7. the Commissioner passed Ext. P6 order confirming the provisional order Ext. Rl. The Commissioner says: "Now Sri. P. S. Salim, Partner, Thou Fik Enterprises, Banerji Road has informed as per the reference cited 4th that he has purchased the said building along with the other two buildings as per sale deed No. 1629 of 1979 and release deed No 1925 and 1726. Further he has stated that he has carried out certain repair works to the said building and at the time of carrying out the above works he received the above notice and hence he has stopped the work. The reply received from Sri. P. S. Salim is not satisfactory. Further he has stated that he has carried out certain repair works to the said building and at the time of carrying out the above works he received the above notice and hence he has stopped the work. The reply received from Sri. P. S. Salim is not satisfactory. It is also reported that the party continued the work even after the stop notice and provisional order was issued." (emphasis supplied) Exts. R1, R2 and the impugned order Ext. P6 were made under S.263 of the Kerala Municipal Corporations Act, 1961. This Section reads as follows: "263. Demolition or alteration of building or well-work unlawfully commenced, carried on or completed: (1) If the commissioner is satisfied (i) that the construction or reconstruction of any building or well (a) has been commenced without obtaining the permission of the commissioner or, where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee, or (b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based, or (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or (ii) that any alterations requited by any notice issued under S.252 have not been duly made; or (iii) that any alteration of, or additions to, any building or any other work made or done for any purpose, in, to, or upon any building has been commenced or is being carried on or has been completed in breach of S.262, he may make a provisional order requiring the owner or the builder to demolish the work done, or so much if it as, in the opinion of the commissioner, has been unlawfully executed or to make such alterations as may, in the opinion of the commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, direction or requisition as aforesaid, or with the plans or particulars on which such permission or order was based, and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well. (2) The commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. (3) If the owner fails to show cause to the satisfaction of the commissioner, the commissioner may confirm the order with any modification he may think fit to make and such order shall then be binding on the owner." Under S.263(2) the owner of the building has to be given a reasonable opportunity to show cause why the provisional order should not be confirmed. His explanation to the provisional order has to be duly considered by the Commissioner before a final order is passed. The final order must show on the face of it that the explanation has been duly considered. If the explanation is rejected the reason for rejection must be clear from the final order. The opportunity for submitting explanation and showing cause as postulated under sub-section (2) is not an empty formality An effective opportunity has to be afforded to the owner to submit his explanation. 3. S.262 reads: "262. Application of provisions to alterations and additions:- (1) The provisions of this Chapter and of any rules or bye-laws made under this Act relating to construction and re-construction of buildings shall also be applicable to any alteration thereof or addition thereto. Provided that works of necessary repair which do not affect the position or dimensions of a building or any room therein shall not be deemed an alteration or addition for the purpose of this section. (2) If any question arises as to whether any addition or alteration is a necessary repair not affecting the position or dimensions of a building or room, such question shall be referred to the standing committee, whose decision shall be final." (emphasis supplied) Under this Section it is open to the owner to show that the construction or re-construction alleged to have been carried out by him was not a work of that nature but only a necessary repair within the meaning of the proviso to sub-section (1) of S.262. If he satisfies the Commissioner that the work carried out by him was a necessary repair which did not affect the position or dimensions of the building or any room therein, the provisions of S.263 would not be attracted. The burden to prove the necessary ingredients of S.262 is on the owner Where the Commissioner accepts the work as a repair, but does not accept it as a necessary repair within the meaning of S.262, a disputed question arises Such question has to be referred to a standing committee for their decision which shall be final The obligation is on the Commissioner to make a reference, unless of course the contention of the owner is accepted by the Commissioner. The authority to decide the dispute whether the repair effected is a necessary repair within the meaning of the proviso to S.262 (1) is the standing committee, although the officer to decide whether the work carried out is a repair or a construction is the Commissioner himself. Only when the Commissioner has found that a particular work was a repair, but he does not accept it as a necessary repair within the meaning of S.262, does the question become one that is capable of being referred under sub-section (2) thereof. If on the other hand the Commissioner were to hold that the work effected was not a repair, but a construction or reconstruction, reference under S.262 (2) to the standing committee would not arise, although the decision of the Commissioner under S.263 would itself become appealable to that committee under S.388. 4. No reasons are stated in Ext P6 why the Commissioner was of opinion that the petitioner's contention that the work done by him was a repair was not a satisfactory answer to Ext Rl. If any inspection was conducted by the concerned officer of the Corporation to ascertain this fact, it is not stated. How the Commissioner formed his opinion on the nature of the work is not clear It would not be sufficient if the inspection was conducted behind the back of the petitioner. The inspection has to be a joint inspection in the sense that the petitioner has to nave an effective opportunity for being present at the inspection. The respondents' counsel submits that the Building Inspector had inspected the building. The inspection has to be a joint inspection in the sense that the petitioner has to nave an effective opportunity for being present at the inspection. The respondents' counsel submits that the Building Inspector had inspected the building. But he is not able to say that it was an inspection after notice to the petitioner. Such inspection cannot be the foundation for an opinion which the Commissioner is expected to form on the correctness or otherwise of the petitioner's explanation. 5. The Commissioner says: "the party continued the work even after the stop notice and provisional order was issued." This fact can be easily verified, for the petitioner in his reply (Ext. P7) clearly stated that he stopped the work on receipt of Ext. R2 and he proposed to lay the roof tiles on completion of the work. Therefore it can be verified whether roof tiles had been laid after receipt of Ext. R2. 6. The petitioner, in my view, is justified in saying that Ext. P6, in so far as it is not a speaking order, is unsustainable The question to be determined is whether S 263 is attracted or whether the petitioner is right in invoking the provisions of S 262 This question has to be determined according to law as soon as possible. The determination under Ext P6 is unsustainable. Accordingly I quash Ext. P6. It is open to the Commissioner to notify the petitioner of the date and time of inspection of the building by a competent Engineer of the Corporation. The petitioner is further entitled to, in the circumstances of this case, a personal hearing at which it will be open to him to place before the Commissioner the relevant data and certificates which he may wish to obtain from an expert, if he so chooses. The Commissioner shall therefore inform the petitioner of the date and time of the personal hearing after completion of the joint inspection of the building. Thereupon the Commissioner shall consider the available evidence and pass appropriate orders in accordance with the law and procedure as laid down under the Act. 7. The Original Petition is allowed in the above terms. No costs.