R. V. VASANTHA KUMAR, J. ( 1 ) THIS second appeal is directed against the judgment and decree dated 29-7-1982 passed by the civil judge, raichur, while dismissing the appeal, has confirmed the judgment and decree dated 1-10-1981 passed in o. s. No. 18/1980 by the court of munsiff, raichur. ( 2 ) THE parties are described in their ranks as in the o. s. this court, at the lime of admission of this appeal, has formulated the following points as substantial questions of law arising for consideration. 1. Whether the repairs to the shed would amount to reconstruction as held by the courts-below? 2. Whether the municipality has authority to direct demolition of a shed which is merely a repairs? ( 3 ) FEW facts briefly to state are:the plaintiff filed the suit against the defendant seeking the following reliefs:"that the suit of the plaintiff be decreed with costs by granting perpetual injunction against the defendant restraining it and its agents and servants from dismantling the suit shed as described in para No. 2 of this plaint. " ( 4 ) THE city municipal council, raichur, through its commissioner, the defendant, contested the case and pleaded lhat the nature of the construction put up by the plaintiff amounted to reconstruction which is violative of mandatory Provisions of Section 187 of the Karnataka Municipalities Act, 1964 (for short 'the act') which required previous permission of the municipal commissioner or the chief officer, as the case may be, and as such the impugned action initiated by city municipal council as justifiable. Section 187 of the act reads as follows: "notice of new building. Section 187 of the act reads as follows: "notice of new building. (1) before beginning to construct any building, or to alter externally or add to any existing building or to construct or reconstruct any projecting portion of a building in respect of which the municipal council is empowered by Section 181 to enforce a removal or set back, or to construct or reconstruct which the municipal council is empowered by Section 179 to give permission, the person intending so to construct, alter, add or reconstruct shall give to the municipal council notice thereof in writing and shall furnish to it at the same time, a plan showing the levels at which the foundation and lowest floor of such building are proposed to be laid, by reference to some level known to the municipal council, and all information required by the bye-laws or demanded by the municipal council regarding the limits, dimension, design, ventilation and materials of the proposed building, and the intended situation and construction of the drains, sewers, privies, water closets and cesspools, if any, to be used in connection therewith, and the location of the building with reference to any existing or projected streets, and the purpose for which the building will be used. Sub-section (9) (a) of Section 187 of the act reads as under: "if the municipal commissioner or chief officer is satisfied, (i) that the construction, reconstruction or erection of a building, (A) has been commenced without obtaining the permission of the municipal council; or (B) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which the permission was granted; 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 required by any notice issued under sub-section (8) have not been duly made, he may make a provisional order requiring the owner or the builder to demolish the work done, or so much of it as, in the opinion of the municipal commissioner or chief officer, has been unlawfully executed, or make such alterations as may, in the opinion of the municipal commissioner or chief officer, be necessary to bring the work into conformity with this Act, rules, bye-laws, direction or requisition as aforesaid, or with the plans or particulars on which such permission 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. (B) the municipal commissioner or chief officer shall serve a copy of the provisional order made under clause (a) on the owner of the building together with a notice requiring him to show cause within a reasonable time not being less than three days, to be specified in the notice why the order should not be confirmed. (C) if the owner fails to show cause to the satisfaction of the municipal commissioner or chief officer, he may confirm the Order, within any modification, he may think fit to make and such order shall then be binding on the owner. (D) if within a reasonable time mentioned in the order made under clause (c), the owner does not comply with it, the municipal commissioner or chief officer may take any measure or do anything which may, in his opinion be necessary for giving due effect to the order. (D) if within a reasonable time mentioned in the order made under clause (c), the owner does not comply with it, the municipal commissioner or chief officer may take any measure or do anything which may, in his opinion be necessary for giving due effect to the order. (c) the municipal commissioner or chief officer may recover any reasonable expenses incurred under clause (d) from the person to whom the order was addressed in the same manner as tax on building under this Act, and may in taking measures utilise any materials found on the property concerned, or may sell them and apply the sale proceeds towards the payment of the expenses incurred. Explanation. the expression "to erect a building throughout this chapter includes (a) any material alteration, enlargement or reconstruction of any building, or of any wall including compound wall and fencing, veradah, fixed platform, plinth, door-step, or the like whether constituting part of a building or not; (b) the conversion into a dwelling house of any building originally constructed for human habitation or, if originally so constructed subsequently appropriated for any other purpose; (c) the conversion into more than one dwelling house of a building originally constructed as one dwelling house only; (D) the conversion of two or more places of human habitation into a greater number of such places; (E) the conversion into a place of religious worship or into a building for a sacred purpose of any building not originally constructed for such purpose; (I) the conversion into a stall, shop, warehouse or godown, stable, factory or garage of any building not originally constructed for use as such or which was not so used before the change; (G) such alteration of the internal arrangements of a building as affect its drainage, vcnlilalion or othcr sanitary arrangements, or its sccurily or stability; and (H) the addition of any rooms, buildings or other structures to any buildings; and a building so altered, enlarged, reconstructed, converted or added to, shall, for the purpose of this chapter be deemed to be new building. " ( 5 ) IN the instant case, the plaintiff has got marked 2 documents on his side which are exs. P-1 and p-2. Ex. P-1 is the sanctioned plant pertaining to the premises No. 9-3-49. Ex. P-2 is the notice dated 15-6-1979 bearing No. Mr/unc-b/17/1979-80 issued under Section 187 (9) (b) of the act. " ( 5 ) IN the instant case, the plaintiff has got marked 2 documents on his side which are exs. P-1 and p-2. Ex. P-1 is the sanctioned plant pertaining to the premises No. 9-3-49. Ex. P-2 is the notice dated 15-6-1979 bearing No. Mr/unc-b/17/1979-80 issued under Section 187 (9) (b) of the act. It is to be seen from Ex. P-2 that a provisional order as contemplated under clause (ii) (b) of sub-section (9) of Section 187 of the actalong with the notice of even date purported to be a show-cause notice also has been served on the plaintiff. The defendant also ha's got marked four documents which are exs. D-1 to d-4. Ex. D-1 is the letter written by mohammed omcr, who is the adjoining occupier of the premises in question, to the commissioner of city municipality, wherein he has requested the municipality to take action against the plaintiff for the unauthorised construction of a shed which endanger the safety of his building. It seems to me that this notice dated 15-6-1979 purported to be under clause (ii) (b) of sub-section (9) of Section 187 of the act has been issued at the ins lance of the adjoining occupier of the plaintiff's building. What is to be examined is wheiher the defendant has complied with the Provisions of Section 187 of the act before taking any action for demolition of the suit schedule property in question. Admittedly, the records that have been produced before the courts do not show any notice purported to have issued under clause (ii) (c) of sub-section (9) of Section 187 of the act. It is to be noted that it is only after the owner of the building fails to show cause to the satisfaction of the municipal commissioner or the chief officer, the authorities under the Act, would get a power to confirm the order namely the provisional order issued in the above case. From the records, it is not possible to spell out whether such a confirmatory order having been issued in the instant case. Both the courts have gone under the premise that there is a valid order under Section 187 of the act and then proceeded further to ascertain whether the action that is taken by the defendant as being justified or not. Both the courts have gone under the premise that there is a valid order under Section 187 of the act and then proceeded further to ascertain whether the action that is taken by the defendant as being justified or not. It is to be noted that when there is a non-compliance with the statutory duties enjoined by the act any exercise of the powers contrary to the mandatory Provisions of the act would be, on the face of it, null and void. In the instant case, both the courts have assumed about a valid order having been passed conferring power on the authorities to demolish the building in question. So under this false premise the findings arrived at by both the courts, on the fact of it are perverse and cannot be legally sustained. ( 6 ) THE next question that is to be adverted to is whether all the construction alactivities envisage prior permission of the authorities concerned under Section 187 of the act. In the instant case, the plaintiff has pleaded and placed sufficient materials before the court to show that the nature of the constructional activities carried on by him amounted to only repairs and not any of those constructional activities which envisaged prior permission of the authorities concerned under Section 187 of the act. As could be seen from the judgments of both the courts-below there is no discussion in detail about the constructional activities undertook by the plaintiff amounted to either repairs or reconstruction and further they have not adverted their mind to the aspect as to whether which constructional activity would partake the character of repair or reconstruction. What is to be examined in this case is whether repairs which, no doubt involve constructional activities requires permission of the authorities as envisaged under Section 187 of the act. This court in the case of Ullal Dinkar Rao v M. Ratna Bat, AIR 1958 Mysore 77 has observed thus: "it seems to me that the meaning to be given to the word 'repair' depends upon the context in which it occurs. A repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs. There is, I think, an essential difference, in the case of a building, between a repair and a re construct ion. A repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs. There is, I think, an essential difference, in the case of a building, between a repair and a re construct ion. While the restoration of the stability or safely of a subordinate or subsidiary part of a building or any portion of it, can, in law be considered as a repair, the reconstruction of the entirety of the subject-matter cannot be regarded. In (1911)1 kb 905 (a), referred to with approval in Rhodesia Rly ltd. V Income-tax Collector, Becnuanaland, (1933) AC 368 (e), buckley l. j. said:" 'repair' and 'renew' are not words expressive of a clear contrast. Repair always involves renewal; renewal of a part, of a subordinate part. A skylight leaks; repair is effected by backing out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or slates for those which are cracked, broken or missing; to make good the flashings and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and, so far as necessary new bricks or stone. 'repair is restoration by renewal, or replacement of subsidiary parts of a whole'. (the underlining (here in inverted commas) is mine ). Renewal, as distinguished from repair, is reconstruction of the entirety meaning by the entirely not necessarily the whole but substantially the whole subject-matter under discussion. I agree that if repair of the whole subject-matter has become impossible a covenant to repair does not carry an obligation to renew or replace. That has been affirmed by Lister v Lane, (1893)2 QB 212 (f) and wringltt v lawson, (1903)19 TLR 510 (g ). But if that which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of substantially the whole. "in a case decided under the income-tax Act, AIR 1952 mad. But if that which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of substantially the whole. "in a case decided under the income-tax Act, AIR 1952 mad. 689 (d), satyanarayana rao,j. Who followed the decision in the above case observed:"on a careful analysis of (his passage of buckley l. j. , it would be seen, a renewal may be a repair or a reconstruction. Renewal is a repair if it is only restoration by renewal or replacement, or subsidiary parls of a whole. If, on the other hand, it amounts to a re con struct ion of the entirely or of substantially the whole of the subject-matter it is not a repair but a reconstruction. The test, therefore, which decides the question whether a thing is a "repair" or not is to see whether the act actually done is one which in substance is a replacement of defective parts or a replacement of the entirety or a substantial part of the subject-matter, a reconstruction of a wall, it was held in that case, was a repair and was covered by the obligation of the tenant who was under a covenant to repair the leasehold properly. The reason given for this conclusion appears at page 927. It was held to be a "repair" because it merely restored the stability and safely of a subordinate part of the whole like replacing a new floor of a house. "applying the above principles to the present case what the courts have to find out is whether the replacements of the roof or the floor or a wall of the cow-shed or the bath-room would partake character repairs resulting restoration of renewal or replacements of the subsidiary parts of the whole or whether constructional activities amounted to reconstruction of the entirely not necessarily the whole but substantially the whole subject-matter in question. ( 7 ) IT appears that the courts while coming to the conclusion that the constructional activities of the shed effected by the plaintiff amounted to reconstruction did not advert their mind to the basic concept whether such constructional activities carried out by the plaintiff amounted to a repair or reconstruction in the light of the observations made above. ( 7 ) IT appears that the courts while coming to the conclusion that the constructional activities of the shed effected by the plaintiff amounted to reconstruction did not advert their mind to the basic concept whether such constructional activities carried out by the plaintiff amounted to a repair or reconstruction in the light of the observations made above. ( 8 ) FOR the reasons stated above, the reasoning adopted by the first appellate court is not based on sound principles of law and further the first appellate court has not adverted its mind as to the real issues involved in the subject-matter of the suit for the purposes of coming to the conclusion that the constructional activities carried out by the plaintiff as amounting to reconstruction requiring a prior permission under Section 187 of the act. So, the findings arrived at by the first appellate court arc liable to be set aside. ( 9 ) MY answer to the substantial questions of law formulated by this court arc:1. All repairs would not amount to reconstruction, as it has been enunciated in the decision reported in ullal dinkar rao's case (supra), wherein this court has explained the distinction between repair and reconstruction. 2. In respect of the second question formulated, the defendant-municipality has, no doubt, a statutory right to demolish any unauthorised construction contrary to the sanctioned plan, but by virtue of such power, it cannot assume jurisdiction to order demolition of the building also in cases where repairs are effected until and unless it comes to the conclusion that the nature of the repairs that have been effected would substantially alter the very nature of the building in question. The municipality before issuing a notice must be satisfied that the constructional activity that is carried out by the owner of the building would amount lo reconstruction in the sense that it is such a constructional activity wherein substantially the whole subject-matter of the building is being replaced and also to apply the test whether the act actually done is one which in substance is a replacement of defective parts or a replacement of the entirety or substantial part of the subject-matter. So, in the absence of such evidence on record, the authorities concerned cannot issue an order of demolition of thc building in question. So, in the absence of such evidence on record, the authorities concerned cannot issue an order of demolition of thc building in question. ( 10 ) ACCORDINGLY, this second appeal is allowed and the judgment and decree dated 29-7-1982 passed in r. a. No. 55 of 1981 by the civil judge, raichur is set aside. No costs. --- *** --- .