ORDER OF DB ( 20-7-1977 ) Shivdayal C. J. and R. L. Murab, J.-1. We have heard Shri K. L. Mangal for the petitioner and Shri R. S. Bajpai, Govt. Advocate for the respondents. 2. After addressing for about one hour Shri Mangal raised the point that Clause 9 of Rule 4 of the Rules framed in respect of Sec. 7 of the Nagariya Sthavar Sampati Kar Adhiniyam. 1964, is ultra vires the law and it infringes the fundamental right conferred under Art 14 of the Constitution because under the general law an oral partition is lawful while Clause 9 limits to a registered document or a decree of a Court of law. This particular question will have to be determined by a Bench of Five Judges, under Art. 228 A of the Constitution. 3. Learned counsel for both the sides have been heard on al1 other points in the peculiar circumstances. If the objection of validity of the Rule had been raised in the beginning, we would not have heard this case on the other points. Therefore, the hearing has been concluded. 4. Judgment reserved which will be pronounced after the decision by Five Judges Bench on the above question-. 5. Place the papers before the Chief Justice for constituting an appropriate Bench to determine to said question. OPINION OF FB Shivdayal, C. J. - 6. This Bench has been constituted under Article 228A of the Constitution to determine the validity of Cause (9) of Rule 4 of the Madhya Pradesh Nagariya Sthawar Sam patti Kar Niyam, 1964. That rule reads thus : "(9) If a building contains more than one portion no belonging to the same owner, every such portion may be treated as a separate building for the purposes of these rules but not until satisfactory evidence, which shall be either a decree of a Court of law or a registered document, bas been given in proof of the separate ownership thereof. '. The petitioners are the owners and are in occupation of a house situate at Sadar Bazar, Morar, district Gwalior. The Property Tax Officer, constituted under the Act issued a notice to the petitioners of the provisional assessment list and assessed the annual letting va1ue of the house at Rs.3.492- to be enforced from April 1 1970. The petitioners, on April 4, 1970, filed objections before the Property Tax Officer, in which they alleged. The Property Tax Officer, constituted under the Act issued a notice to the petitioners of the provisional assessment list and assessed the annual letting va1ue of the house at Rs.3.492- to be enforced from April 1 1970. The petitioners, on April 4, 1970, filed objections before the Property Tax Officer, in which they alleged. inter alia. that there was an oral partition among the owners, so that the portion allotted to each one of them had to be assessed separately. They produced a deed of sale in their favour. The Property Tax Officer did not recognise the oral partition. The Additional Property Tax Commissioner, who heard two revision petitions against the orders dated May 16, 1970 and October 16, 1971 passed by the Property Tax Officer, held that oral partition could not be recognised in view of the impugned Rule 4 (9). Aggrieved by the order of the revisional authority, the petitioners invoked the jurisdiction of this Court by a writ petition under Article 226 of the Constitution. It is not necessary to state the other facts or the contentions which have been raised in the writ petition. 7. The petitioners' contention is that since they are Hindus, governed by the Hindu Law, an oral partition can be validly effected without reducing it into writing, while the impugned Rule forbids its recognition for the purposes of the Property Tax Act. The Rule is, therefore, ultra vires the law. 8. The Act provides for the levy of tax on lands and buildings in urban areas in Madhya Pradesh. Section 4 is the charging section. It enacts that there shall be charged, levied and paid for each year, a tax on the lands or buildings or both situate in the areas specified in that section at the specified rates percentum of the annual letting value of the land or building. 9. The expression 'annual letting value' is defined in section 2, meaning the annual letting value as determined under section 5. 10. Section 5 enacts the manner in which annual letting value is to be determined and revised. Section 6 enumerates certain exemptions. Clause (h) exempts "buildings and lands or part thereof in actual occupation of the owners thereof when the annual letting value of such buildings and lands or part thereof does not exceed three thousand rupees". 10. Section 5 enacts the manner in which annual letting value is to be determined and revised. Section 6 enumerates certain exemptions. Clause (h) exempts "buildings and lands or part thereof in actual occupation of the owners thereof when the annual letting value of such buildings and lands or part thereof does not exceed three thousand rupees". (Substituted by the words "Eighteen hundred rupees" by virtue of the Amendment Act No. 3 of 1971.) 11. Section 7 requires the preparation of 'provisional assessment list', a notice of which is to be given in the manner prescribed. Section 8 enables a person aggrieved by any entry in the provisional assessment list, to file objections. Section 9 provides for the decision of the objections and finalisation of the assessment list. Section 10 provides for amendment of the list finalised under section 9. Section 11 deals with escaped assessment. Section 12 confers conclusiveness on the entices in the assessment list. Section 14 enacts 'the machinery for realisation of the tax. Section 15 confers right of appeal from orders passed under section 9; 10 or 11. Section 13 vests the Commissioner with revisional jurisdiction. Section 35 confers power on the State Government to make rules to carry out the purposes of the Act. For the purposes of the question we are dealing with, it is not necessary to recapitulate the other provisions of the Act. 12. In exercise of the said rule making power, the State Government framed rules from time to time. They are contained in the Madhya Pradesh Nagariya Sthawar Sampatti Kar Niyam, 1964; published in the Madhya Pradesh Gazette. dated November 20, 1964. Rule 4 deals with the preparation of provisional assessment list. Duty is cast on the Assessing Authority to prepare it. He has to ascertain the annual letting value. Clause (9) of Rule 4 enacts that if a building contains more than one portion not belonging to the same owner, then every such portion may be treated as a separate building for the purposes of the rules. But, this can be done only when the fact that the portions do not belong to the same owner is proved either by a registered document or by a decree of a Court of law. In this Rule, the word 'partition' does not occur. But, this can be done only when the fact that the portions do not belong to the same owner is proved either by a registered document or by a decree of a Court of law. In this Rule, the word 'partition' does not occur. It applies to building which has more portions than one and it is claimed that the different portions belong to different owners. If that fact is proved then, obviously enough, the annual letting value is divided amongst those portions and when tax is assessed. it may be found to be below taxable limit and be, thus, exempted from levy of Property Tax. It is obvious enough that Rule 4 (9) is intended to safeguard against defeating the provisions of the Act. By pleading orally that the different portions belong to different persons, tax could easily be evaded. Special rule of evidence has, therefore, been provided for safeguarding against the evasion of tax. This special rule of evidence which .s contained in Rule 4 (9). is confined to the purposes or the Act. It is apparent that what is intended by the Rule is not to confer jurisdiction in the Assessing Authority to adjudicite upon the question of ownership when it is alleged that different portions of a particular building a single building belong to different owners, Such allegation can be proved before the Assessing Authority either by a registered document or a decree of a Court of law, but by no other means. 13. Thus. Rule 4 (9) is a special rule of evidence made for the purposes of a special law. It is not correct to think that a partition among the members of a joint Hindu family whereby portions are allotted to joint owners by metes and bounds would be rendered invalid because of the impugned Rule. There can be no doubt that there is nothing in the impugned Rule which in any way effects the substantive rights or liabilities of parties which may accrue from an oral partition, nor does it invalidate any such transaction. The decision of the Supreme Court in Deochand v. Shivram [1] relied on by the petitioners is not apposite. The Rule is purely a rule of evidence prescribing the particular mode of proof Having regard to the scheme of the Act and the Rules and in view of the obvious intention of the impugned Rule and its scope. The decision of the Supreme Court in Deochand v. Shivram [1] relied on by the petitioners is not apposite. The Rule is purely a rule of evidence prescribing the particular mode of proof Having regard to the scheme of the Act and the Rules and in view of the obvious intention of the impugned Rule and its scope. it cannot be held to be unreasonable. The Rule does not say that an oral partition or an oral transfer of any portion would be inoperative or ineffective. On the other hand, when the Rule permits that a fact can be proved by a decree of a Court of law. it contemplates the validity of such partition or transfer. It will be for the civil Court to see whether such partition or transfer is valid and it creates ownership in different persons in respect of different portions of the building. 14. During the hearing before us, a question arose whether the impugned Rule would be invalid in respect of an oral partition alleged to have been effected before the Rule 8 came into force. It is unnecessary to consider that question in this petition inasmuch as in the present case the petitioners have not pleaded that the alleged partition was effected bef0re the Rules came into force. The petitioners do not specify any date of Petition in their objections dated April 4, 1970 which were filed before the Property Tax Officer nor in the revision before the Commissioner nor even in this petition. Even today, after a lapse of four years the learned counsel could not tell us the date of the alleged oral partition. 15. A copy of the sale-deed which was filed before the Property Tax Officer (as averred in para 5 of the writ petition) has been shown to us by the learned counsel for the non-petitioners. That deed of sale is dated October 14, 1964. As averred in the same paragraph 5 of the writ petition, the entire house was purchased by the petitioners. There is absolutely nothing to show that they became the separate owners of separate portions on a partition by metes and bounds. 16. Shri Maogal, learned counsel for the petitioners, then urged that Rule 4 (9) was made in excessive exercise of the delegated power. There is absolutely nothing to show that they became the separate owners of separate portions on a partition by metes and bounds. 16. Shri Maogal, learned counsel for the petitioners, then urged that Rule 4 (9) was made in excessive exercise of the delegated power. He strenuously relies on clause (iv) of sub-section (2) of Section 35 which reads thus:- "In particular and without prejudice to the generality of the fore going powers such rules may provide for all or any of the following matters. namely:- *** *** *** (ii) the procedure to be followed in the preparation and publication of the provisional assessment list and the final assessment list, and the particulars to be contained therein;" 17. We do not and any substance in this contention. In Fie first place, the language of clause (ii) is comprehensive enough to make special rule of evidence as contained in Rule 4 (9). Furthermore, it is now settled Jaw that if power is conferred to make subordinate legislation in general term the particularisation of topics is construed as merely illustrative and does not limit the scope of the general power. In Rohtak and Hissar District Electric Supply Co. v. State of Uttar Pradesh and others (AIR 1966 SC 141), their Lordships laid down thus:- "It is well-settled that the enumeration of the particular matters by sub-S (2) Will nut control or limit the width or the power conferred on the appropriated Government by sub•) (1)............" See also: Emperor v. Shibnath Banerjee (AIR 1945 PC 156 at p. 160) and Afzalullah V. State of Uttar Pradesh ( AIR 1964 SC 264 , para 13). It is only when the rule making power given to the State Government is not expressed in the usual firm, that is, is not to the effect that the State Government may make rules for the purposes of the Act. that the rule making power is limited to what is stated in the clauses as was the case in Sant Saran Lal v. Parsuram ( AIR 1966 SC 1882 ). that the rule making power is limited to what is stated in the clauses as was the case in Sant Saran Lal v. Parsuram ( AIR 1966 SC 1882 ). Relevant observations of their Lordships run as under- "It is significant to note that the rule-making power given to the State Government is not expressed in the usual form, i.e., is not to the effect that the State Government may make rules for the purposes of the Act." The rule• making power as contained in sub-section (1) of Section 35 is very wide and general. It runs thus: "The State Government may, after previous publication in the Gazette, make rules to carry out the purposes of this Act”. 18. In the result, we return the following opinion: "(1) Rule 4 (9) of the Madhya Pradesh Nagariya Sthawar Sampatti Kar Niyam, 1964. being a special rule of evidence made exclusively for the purposes of this Act, is valid. (2) However. it is unnecessary to express any opinion on the further question which may arise whether the said special rule of evidence will also govern transactions effected before the commencement of the said Rules." ORDER OF DB (25-7-1977) Shivdayal, C.J.-19. By this petition under Article 226 of the Constitution, the petitioners have challenged the orders passed by the Property Tax Officer on May 16, 1970 and October 16, 1971 and the order passed by the Additional Property Tax Commissioner in revision from those orders on February 9, 1972. 20. The petitioners are owners and are in occupation of a house situate at Sadar Bazar, Morar, District Gwalior which they purchased by a registered sale-deed dated October 14, 1964. When the Madhya Pradesh Nagariya Sthawar Sam patti Kar Adhiniyam, 1964 and the [rules framed thereunder came into force, the Property Tax Officer, constituted under the Act. issued a notice to the petitioners of the provisional assessment list wherein the annual letting value of the house was assessed at Rs. 3,492/- to be enforced from April 1, 1970. Objections were filed by the petitioners on April 4, 1970 The objections were rejected and the assessment list was finaiised by order dated May 16, 1970. The annual letting value was held to be Rs. 3.352/- Out of which the portion in self-occupation of the petitioners was valued at Rs.2,920/-while the portion occupation of a tenant was assessed at Rs 432/-. The annual letting value was held to be Rs. 3.352/- Out of which the portion in self-occupation of the petitioners was valued at Rs.2,920/-while the portion occupation of a tenant was assessed at Rs 432/-. Since the value of the portion in self-occupation of the petitioners was less than Rs. 3,000/-, it was exempt from property tax (according to the law as then stood) while tax at 7 per centum (according to the rate then in force) under Section 4 of the Act was demanded. 21. However, by Amendment Act No.3 of 1971, the exemption limit of portion in self-occupation was reduced from Rs. 3,000/- to Rs. 1.800/- and the rate of property tax was enhanced from 7 per centum to 10 per centum. The Property Tax Officer, therefore, issued a fresh notice of demand according to the amended law. The portion in occupation of the petitioners did not remain exempt as its value was more than Rs. 1,800/. and the tax demanded was at the rate of 10 per centum on the annual letting value. 22. On October 1, 1971. the petitioners filed objections. They were rejected by order dated October 16, 1971 by the Property Tax Officer. 23. Then the petitioners filed two revisions, one from the order dated May 16, 19iO and the other from the order dated October 16, 1971. These revisions were filed under Section 18 of the Act on February 9, 1972. Both the revisions were dismissed by a common order by which the petitioners are aggrieved in this petition. 24. It does not appear from the order passed in revision that the revision from the earlier order dated May 16, 1970 was held to be barred by time. The revisional authority held that the petitioners' objections had no force 'and could not be accepted. 25. It is urged by Shri Mangal, learned counsel for the petitioners that an opportunity of being heard was not afforded to the petitioners when their objections dated April 4, 1970 were rejected. This contention was not raised before the revisional authority. Moreover it appears from the record that the petitioners' counsel was heard. 26. The second objection before us was that the house in question contains different portions belonging to the petitioners separately because of a partition by metes and bounds among the petitioners. This contention was not raised before the revisional authority. Moreover it appears from the record that the petitioners' counsel was heard. 26. The second objection before us was that the house in question contains different portions belonging to the petitioners separately because of a partition by metes and bounds among the petitioners. They had purchased the house by a registered deed of sale dated October 14, 1964 and thereafter there was a partition, but the partition was not reduced to writing so that there was no deed of partition. However, the petitioners were entitled to prove partition inasmuch as a partition among Hindu joint owners inter se can be effected orally and no document is required by law. Rule 4 (9) of the Madhya Pradesh Nagariya Sthawar Sam patti Kar Niyam, 1964, framed under the said Act does not permit Property Tax Authorities to recognise any transaction unless there is satisfactory evidence, which evidence must consist either of a registered document or a decree of a Court of law. Learned counsel for the petitioners challenged the validity of Rule 4 (9) of the Rules. This point was referred to a Bench of five Judges because of the provisions contained in Article 228 (A) of the Constitution. The Full Bench has returned the answer to the question in the negative so far as the present case is concerned. 27. The third objection is that no opportunity was given to the petitioners to produce evidence. They wanted to prove that the annual letting value of the house was assessed excessively. Learned counsel for the non-petitioners has produced the record of the proceedings before the Property Tax Officer. He concedes that the first date which was fixed for the objections was May, 16. 1970 and they were decided on that very date, so that no opportunity was afforded to produce evidence. Accordingly, this contention must be accepted and the petition must be allowed to this limited extent. 28. This petition is accordingly allowed partly. While the whole house will be treated as one and not as different portions belonging to the different petitioners, the petitioners will be afforded an opportunity to produce evidence to prove the annual letting value of the house. The orders passed by the Property Tax Officer on May 16. 1970 and October 16, 1971 as also the order passed by the Revisional Authority are set aside to that extent. The orders passed by the Property Tax Officer on May 16. 1970 and October 16, 1971 as also the order passed by the Revisional Authority are set aside to that extent. The Property Tax Officer shall afford an opportunity to the petitioners to produce evidence, in the light of this order. There shall be no order for costs. Security amount shall be refunded to the petitioners.