judgement:
Civil Appeal No. 653 of 1991.
284 From the Judgment and Order dated 11.
12.1989 of the Central Administrative Tribunal, Chandigarh in O.A. No. 694 of 1988.
Avadh Behari, A.K. Sharma and Inderjit Singh Mehra for the Appellants.
Dr. Anand Prakash, B. Krishna Prasad and S.M. Ashri for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
Whether family pension payable under the service rules could be bequeathed by means of a will by the deceased employee during his life time, is the question involved in this appeal.
Briefly, the facts giving rise to this appeal are that, Issac Alfred was employed in the Railway Workshop, Jagadhri as a Skilled Mechanic, Tool Shop, he died in harness on 16.10.1984.
On his death a dispute arose between Mrs. Violet Issac, widow of the deceased Railway employee, his sons, daughters and Elic Alfred, brother of the deceased regarding family pension, gratuity and other emoluments, payable by the Railway Administration.
Violet Issac, widow of the deceased employee made an application before the competent Railway Authority for the grant of family pension and for payment of gratuity and other dues to her, her four sons and one daughter, who are appellant Nos. 2 to 6.
The Railway Authorities did not pay any amount to the appellants as an injunction order had been issued by the Sub Judge, 1st Class, Jagadhri in Civil Suit No. 365/85 filed by Elic Alfred, brother of the deceased employee, restraining the appellants from claiming or receiving any amount which were to the credit of the deceased Railway employee towards C.T.D. Account, gratuity, family pension and other dues.
It appears that the relations between late Issac Alfred and his widow Smt.
Violet Issac and the children were not cordial, as a result of which he had made nomination in favour of his brother and further he had executed a will dated 9.9.1984 in favour of Elic Alfred bequeathing all his properties to him including the family pension, gratuity etc.
When the appellants raised claim for family pension and other dues before the Railway Authorities, Elic Alfred filed Civil Suit No. 365/85 for the issue of a permanent injunction restraining the appellants from receiving or claiming any monetary benefits from the Railway Administration.
In his suit Elic Alfred had 285 pleaded that in view of the will, his deceased brother 's widow and children were not entitled to any benefit from the Railway Authorities, instead he was entitled to the deceased 's estate including the right to receive family pension and other dues.
The Civil Court issued an injunction order restraining the appellants from receiving any amount from the Railway Authorities as a result of which the Railway Administration did not pay any amount to them.
The appellants, thereupon, made an application before the Central Administrative Tribunal, Chandigarh for the issue of a direction for the release of the amounts on account of gratuity, group insurance, provident fund, CTD account, and family pension.
The appellants pleaded that the will relied upon by Elic Alfred was a forged one and Elic Alfred was not entitled to receive pensionary benefits.
On an application made by the appellants the suit pending before the Civil Court was also transferred to the Tribunal 's file.
The Tribunal by its order dated 11.
12.1989 held that since the dispute related to rival claims based on title arising from relationship in one case and from a will in the other, it has no jurisdiction to decide the same.
The Tribunal further directed for the transfer of the civil suit to the Civil Court for trial in accordance with law.
The appellants have challenged the order of the Tribunal by means of the present appeal.
The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension.
We would therefore deal with the question of family pension only.
Family Pension Rules 1964 provide for the sanction of family pension to the survivors of a Railway Employee.
Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service.
Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, which ever is earlier.
The Rules do not provide for payment of family pension, to brother or any other family member or relation of the deceased Railway employee.
The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee.
The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension.
Thus, no other person except those designated under the Rules are entitled to receive family pension.
The Family Pension Scheme confers monetary benefit on the 286 'wife and children of the deceased Railway employee, but the employee has no title to it.
The employee has no control over the family pension as he is not required to make any contribution to it.
The Family Pension Scheme is in the nature of a welfare scheme framed by the Railway Administration to provide relief to the widow and minor children of the deceased employee.
Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same.
Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition.
In Jodh Singh vs Union of India & Anr., [ ; this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow.
The Court observed: "Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased.
If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.
The Court further held that what was not payable during the life time of the deceased over which he had no power of disposition could not form part of his estate.
Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition.
We, accordingly hold that Mrs. Violet Issac the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding, the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother Elic Alfred.
As regards appellant Nos. 2 to 6 are concerned, it has been stated on behalf of the Railway Administration that they are not minors, therefore, under the Rules they are not entitled to any family pension.
We, accordingly allow the appeal, set aside the order of the Tribunal and direct the respondent Railway Adminstration to sanction family pension in accordance with the Rules to the appellant No. 1 and to pay the arrears within two months.
The respondent 's suit, so far as it relates to the 287 family pension cannot proceed but we do not express any opinion, with regard to other claims raised therein.
It has been brought to our notice on behalf of the respondent Railway Administration that the appellants have been occupying the Railway quarter which had been allotted to late Issac Alfred, even though they are not entitled to occupy the same.
On behalf of the appellants, it was urged that since they had not been paid any dues by the Railway Administration they were not in a position to vacate the premises.
The Railway Administration is free to evict them in accordance with the Rules, only after arrears of family pension are paid to Mrs. Violet Issac.
The Railway Administration will charge rent from the appellants at the rate on which the quarter had been let out to the deceased Railway employee.
There will be no order as to costs.
V.P.R. Appeal allowed.

summary:
On the death of a Railway employee, dispute arose among his wife, sons, daughters and brother for the family pension, gratuity and other emoluments.
The brother of the deceased employee filed a civil suit in the court of Sub judge for a permanent injunction restraining the appellants. the wife, sons and daughter from claiming or receiving any monetary benefits from the Railway Administration, contending that by a will dated 9.9.1984 of the deceased employee, he was entitled to receive the benefits to the deceased employee 's widow.
The Railway Authority did not pay any amount, as an injunction had been issued by the Civil Court.
The appellants there upon made an application before the Central Administrative Tribunal for a direction for the release of the amounts on the grounds that the will was a forged one, and the beneficiary was not entitled to receive pensionary benefits.
The Tribunal held that since the dispute related to rival claims based on title arising from relationship, it had no jurisdiction to decide the same.
It also directed transfer of the case to the Civil Court for trial.
In the appeal to this court on the question was: whether family pension payable under the service rules could be bequeathed by means of a will.
Allowing the appeal, this Court, HELD: 1.
Family Pension Rules, 1964 provided for the sanction of family pension to the survivors of a Railway Employee.
Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower, to the minor children of a Railway servant, who may have died while in service.
Under the Rules, son of 283 the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, whichever is earlier.
The Rules do not provide for payment of Family Pension to brother or any other family member or relation of the deceased Railway employee.
The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee.
The rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family Pension.
Thus, no other person except those designated under the Rules are entitled to receive family pension.
[285E H] 2.
The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it.
The employee has no control over the family pension as he is not required to make any contribution to it.
The family pension Scheme is in the nature of welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee.
[285H 286B] 3.
Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same.
Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary dis position.
[286B C] [The appellant No. 1, widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother.
As regards appellant Nos. 2 to 6 are concerned, they are not minors, therefore, under the Rules they are not entitled to any family pension.
[286F H] The Railway Administration is free to evict them in accordance with the Rules, only after arrears of family pension are paid to the widow.] [287B C] Jodh Singh V. Union of India & Anr., [1980] 4 S.C.C. 306, followed.


judgement:
ivil Appeal Nos.
2959 60 of 1980.
WITH Writ Petition Nos.
5548 50 of 1980.
From the Judgment and Order dated 9.9.
1980 of the Karnataka High Court in W.P. Nos.
20298 of 1979 and 1031 of 1980.
Soli J. Sorabjee, Rajinder Sachhar, H. Raghavendra Rao and Vineet Kumar for the Appellants/Petitioners.
M. Veerappa, K.H. Nobin Singh and P.R. Ramasesh for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The two appeals and the three writ petitions challenge the validity of the provisions of the Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distributions) Act, 1959 (Act No. 5 of 1960), hereinafter referred to as 'the impugned Act '.
The challenge was repelled by the Karnataka High Court by its common judgment dated 9.9.
1980 in two writ petitions, which is the subject matter of appeals.
It is perhaps in view of this judgment that writ petitions No. 5548 5550 of 1980 have been filed directly in this Court raising a similar contention.
At the outset, it is necessary to clarify two important points.
The first is that the validity of the Act above mentioned and certain notifications issued thereunder were challenged in Civil Appeal Nos. 450 and 451 of 1966 and 542 of 1964.
These Civil appeals were disposed of 308 by a judgment of this Court dated 6.1.1967 in State of Mysore & Ors.
vs Hanumiah.
By the said judgment this Court repelled the contentions then put forward.
The validity of certain provisions of the impugned Act had then been challenged on the footing that the said provisions as well as the rules made and the notifications issued thereunder imposed unreasonable restrictions on the fundamental right of the petitioners to carry on trade or business under Article 19(1)(g) of the Constitution.
Again, the Mysore High Court in Mohammed Hussain vs State of Mysore, (W.P. 45 of 1971) and this Court in Syed Ahmed Agha vs State, A. I. R. were called upon to consider contentions as to the validity of certain amendments effected by Mysore Act 29 of 1969 to the impugned Act, in the light of the provisions of Articles 301 to 304 of the Constitution of India.
The contentions were repelled with the result that the statutory regulations providing for protection to readers by the establishment of regulated cocoon markets and forbidding the sale or purchase of silk worm cocoons except in such markets were held to be valid.
The present challenge, however, is on different grounds.
The contention now is that certain amendments effected to the impugned Act by Karnataka Act No. 33 of 1979 have to be struck down as the State Legislature was not competent to enact the same.
Thus, the contention now addressed is different from those which were considered by this Court on the earlier occasions.
The second aspect which we wish to clarify at the outset is that, though several grounds were raised before the High Court as well as in the writ petitions, the argument before us was limited to a single contention.
This was that the impugned provisions lack legislative competence after the enactment, by Parliament, of the Central Silk Boards Act (Act 61 of 1948), (hereinafter referred to as 'the Central Act ') which contains a declaration contemplated under Entry 52 of List I in the Seventh Schedule to the Constitution of India.
We shall be addressing ourselves only to this argument.
Mysore Act 5 of 1960 was passed since it was considered expedient to consolidate the laws providing for the regulation of the production, supply and distribution of silk worm seed and cocoon in the State of Mysore.
This Act contained several restrictions in regard to the production, supply and distribution of silk worm seed and cocoon.
Basically, sections 3, 4, 5, 6, 7 and 8 of the Act required a person to obtain a licence for production, sale and distribution of silkworm seed, for rearing silkworms from silkworm seed, for possession of silkworm seed, for disposal of silkworm cocoons for reeling or for reproduction, for sale or purchase of silkworm cocoons for reeling, and for carrying on the business of reeling silk worm cocoons.
Section 10 enabled the 309 Government to specify the manner of marketing the above goods, the places at which cocoon markets, cocoon market yards and cocoon stores could be located, specify the sericultural areas to be served by each cocoon market, assign zones and markets in which any licensed buyer could carry on his business.
It also provided that all transactions involving the sale or purchase of cocoons in a cocoon market shall be by weight, in open auction and in cash.
The above Act, (and in particular the provisions contained in Sections 6 and 7), was amended by the Karnataka Act 29 of 1969.
But these amendments are not relevant for our present purposes.
There were further amendments effected to the Act by Karnataka Act 33 of 1979.
The petitioner is challenging the amendments carried out by this Act.
The principal amendments carried out were, briefly, these.
References to 'Mysore ' were replaced by references to 'Karnataka '.
In the preamble, in addition to the 'silk worm seed ' and 'cocoon ', reference was added to silk yarn '.
Definition of 'silk yarn ' and various categories thereof were inserted Section 5A was introduced under which no person could be in possession of silk yarn in excess of a prescribed quantity unless he is a reeler, a licensed trader, a twister, a weaver or a person authorised in writing by the prescribed officer.
Section 10A provided for the establishment of silk exchanges at specified places.
It enabled the Government to appoint for each silk exchange, a silk Market Officer and also to constitute a marketing committee with the Market Officer as the Chairman and with representatives of reelers, twisters and traders for regulating the conduct of business in the exchange.
It also provided that all transactions involving sale or purchase of silk yarn in a silk exchange should be by weight, by open auction and in cash.
Section 8A placed certain restrictions on reelers, twisters and traders after the establishment of a silk exchange.
It prohibits a reeler or twister from selling or agreeing to sell silk yarn reeled or twisted by him.
It permitted only licensed traders to purchase or agree to purchase silk yarn from a reeler or a twister and that too only in a silk exchange and in accordance with such conditions and in such manner as may be prescribed.
Sub section (2) of section 8A provided that no person shall, except in such silk exchange, use, or permit the use or assist in the use of any building, room, tent, enclosure, vehicle, vessel or place for the sale of silk yarn by or purchase of silk yarn from a reeler or a twister or in any manner aid or abet the sale or purchase of silk yarn.
To put it very shortly, the amendments of 1979 imposed on the production, supply, distribution and sale of silk yarn restrictions in a manner more or less analogous to those that earlier existed in respect of silk worm seeds and cocoons.
310 The short point made on behalf of the petitioners is that any legislation in respect of 'silk industry ' can be enacted only by Parliament and the State Legislature is incompetent to legislate on this matter.
This is because Section 2 of the Central Silk Board Act, which reads as follows: "It is hereby declared that it is expedient in the public interest that the Union should take under its control the silk industry.
" enacts a declaration in terms of Entry 52.
This removes the 'silk industry ' from the purview of the State 's legislative powers thus rendering the State legislature incompetent to legislate thereafter on this topic.
In this context, it is emphasised that originally the Central Act and the declaration in section 2 had been restricted to 'raw silk industry ' but, by an amendment of 1953 effective from 25.3.1954, their scope was widened to include the entire 'silk industry '.
The long title of the Central Act is that it is "an Act to provide for the development under Central control of the silk industry and for that purpose to establish a Central Silk Board".
Under Section 4, the Central Government is empowered to constitute a Board to be called the Central Silk Board with a constitution as set out in sub section (3).
The functions of the Board are set out in section B, which may be set out: "(1) It shall be the duty of the Board to promote the development of the silk industry by such measures as it thinks fit.
(2) Without prejudice to the generality of the foregoing provision, the measures referred to therein may provide for (a) undertaking, assisting or encouraging scientific, technological and economic research; (b) devising means for improved methods of mulberry cultivation rearing, developing and distributing healthy silkworm seeds, reeling or, as the case may be, spinning of silkworm cocoons and silk waste, improving the quality and production of raw silk, if necessary, by making it compulsory for all raw silk to be marketed only after the same has been tested and graded in properly equipped raw silk conditioning houses: 311 (c) x x x x x (d) improving the marketing of raw silk; (e) the collection of statistics from such persons as may be prescribed; (f) carrying out any other duties which may be vested in the Board under rules made under this Act.
" The Board has also a duty to advise the Central Government on all matters relating to the development of the raw silk industry and to prepare and furnish such reports relating to the industry as the Central Government may call for from time to time.
Two further provisions of the Central Act which need to be referred to are Ss. 10 and 13.
section 10 enables the Central Government to levy and collect as a cess, a duty of excise on all filature raw silk and on all spun silk reeled in the territories of India.
D Section 13 empowers the Central Government, by notification, to make rules to carry out the purposes of this Act.
Sub section (2) specifies certain enumerated matters in relation to which rules could be framed but these mostly relate to the functioning of the Board the only two topics on which such rules could be framed which may be relevant purposes are those contained in clause (xviii), (xix) and (xx) which read as follows: "(xviii) the collection of any information or statistics in respect of raw silk or any product of silk; (xix) the manner in which raw silk shall be graded and marketed; (xx) any other matter which is to be or may be prescribed.
In the context of these provisions the short argument which has been pressed before us was dealt with by the High Court in paragraphs 13 and 14 which can be conveniently set out: 13.
The first question to be examined in this context is, whether the amending legislations are beyond the legislative competence of the State Legislature.
It was urged that silk industry is a controlled industry declared by Parliament 312 by law to be expedient in the public interest under Entry 52 of List 1.
By section 2 of the Central Silk Boards Act, 1948.
Parliament has declared that it is expedient in the Public interest that the Union should take under its control the silk industry.
Again, by Section 2 of the Industries (Development and Regulation) Act, 1951 Parliament has declared that it is expedient in the public interest that the Union should take under its control the industries specified in the first Schedule to the Act.
Item 23(4) of the first Schedule thereunder specifies "textile (including those dyed, printed or otherwise processed) made wholly or part of silk, including silk yarn and hosiery".
Having regard to these provisions and Entry 52 of List I of the Seventh Schedule, the State Legislature, as urged for the petitioners, has no power to enact the impugned Acts: 14.
It seems to us that this argument is bereft of substance.
It is now well settled by a series of pronouncements of the Supreme Court commencing with Tika Ramji and Others vs State of Uttar Pradesh and Others, A.I.R. 1956 S.C. page 676 down to the decision in Ganga Sagar Corporation Ltd. vs State of Uttar Pradesh and Others, A.I.R. 1980 S.C. page 286 that merely because an industry is controlled industry as declared by Parliament under Entry 52 in List I, the State is not deprived of its legitimate power to legislate within its own sphere in respect of such industry.
Referring to the scope of Entry 52 of List 1, in the context of legislation dealing with regulation of supply and purchase of sugar cane required for use in sugar factories.
Supreme Court in Tika Ramji 's, A.I.R. 1956 S.C. page 676, case observed: [Ibid Note 12 pages 695 6961: "Industry in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry.
The raw materials would be goods which would be comprised in Entry 27 of List 2.
The process of manufacture or production would be comprised in Entry 24 of List 2 except where the industry was a controlled industry when it would fall within Entry 52 of List 1 and the products of the industry 313 would also be comprised in Entry 27 of List 2 except where they were the products of the controlled industries when they would fall within Entry 33 of List 3.
" It is clear from the above observations that it is not all aspects of the industry (that) fall within the scope of Entry 52 of List 1.
It is only one aspect of the industry, that is, the process of manufacture or production that falls under Entry 52 of List 1.
It does not include raw materials used in the industry or the distribution of the products of the industry.
This view was reaffirmed by the Supreme Court in Harakchand Ratanchand Banthia and Others vs Union of India and Others, A.I.R. 1970 S.C. page 1453, and in the Kannan Devan Hills Produce Company Ltd. vs The State Of Kerala, A.I.R. 1972 S.C. 2301 and Ganga Sugar Corporation Ltd. vs The State of Uttar Pradesh, A.I.R. 1980 S.C. 286.
The question that arose in those cases was the scope and effect of Entry 52 of List I in relation to Entries 24 and 27 of List 11 and Entry 33 of List III.
The effect of these decisions is that though expressions in legislative entries refer to broad topics and fields of legislation and require a liberal construction, and though the particular expression 'industries ' in Entry 52 of List I in its wide sense may comprise many aspects, however, having regard to the scope of other entries in the other lists, the ambit of Entry 52 of List I should be limited and confined only to the 'process of manufacture or production of an industry. ' The impugned legislations do not fall into this category and we, therefore, reject the contention urged for the petitioners.
" It will at once be seen that the point raised by the petitioners/ appellants has been repelled by the High Court on the basis of a series of decisions of this Court regarding scope of Entry 52 of List I in the Seventh Schedule to the Constitution.
The High Court has pointed out that when Entry 52 talks of control of industry it does not mean all aspects of the industry in question.
An industry comprises of 3 important aspects (i) raw materials (ii) the process of manufacture or production; and (iii)the distribution of the products of the industry.
314 Legislation in regard to raw materials would be permissible under Entry 27 of List 2, notwithstanding a declaration of the industry under Entry 52 to be one within the purview of parliamentary legislation.
The process of manufacture or production can be legislated on by States under Entry 24 of List 2 so long as the industry is not a controlled industry within the meaning of Entry 7 or Entry 52 of List I. So far as the third aspect viz. the distribution of the products of the industry are concerned, the State Legislature would be quite competent to legislate thereto in regard thereto under Entry 27 of List II.
However, when the industry is also a controlled industry legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List 3.
This in short is the decision of the High Court based, as already pointed out on a series of decisions of this Court.
Observations by this Court to a like effect in Calcutta Gas Co. (P) Ltd. vs State, [1962] Supp. 3 S.C.R. 1 may also be seen.
We entirely agree with this view.
On behalf of the appellants/petitioners, Shri Soli Sorabji contended that the validity of the enactment has now to be tested in the light of the decision of this Court in I.T.C. Ltd. & Ors.
vs State of Karnataka & Ors.
, [19851 Supp.
S.C.C. 476, where in, in a similar context, a State legislation was held to be ultra vires.
He also brings to our notice that the correctness of this decision has been doubted by a Bench of this Court and the matter has been referred to a larger Bench and is pending consideration by such a larger Bench.
He, therefore, submits that we should either hold following the above decision, that the State legislation in this case is also incompetent or we should refer this matter also to a larger Bench.
We are of the opinion that it is unnecessary, for the purposes of the present case, to consider the contentions raised in the I. T. C. case (supra).
That was a case in which the State enactment was held to be competent by the High Court on the narrow ground that the central legislation covered only virginia tobacco and did not deal with the industry in so far as it related to other varieties of tobacco.
On a consideration of the provision of the Act, this Court came to the conclusion that this interpretation of the Act was not correct and that the central legislation did purport to regulate and control 'the entire tobacco industry.
In the light of this conclusion the court declared the State law to be incompetent, having regard to the provisions of Entry 52 of List I and the declaration in the Indian Tobacco Act under that provision.
In the present case, however, the matter is on a totally different footing.
It is true that the Central Silk Board Act purports to 315 control the raw silk industry in the territory of India.
But, as pointed out by the High Court in the light of the earlier decisions of this Court therein referred to the control of the industry vested in Parliament was only restricted to the aspect of production and manufacture of silk yarn or silk.
It did not obviously take in the earlier stages of the industry, namely, the supply of raw materials.
For instance, as already pointed out, even in regard to the silk industry, the reeling, production, development and distribution of silkworm seeds and cocoons was regulated by Act 5 of 1960.
These items can be perhaps legitimately described as the raw materials of the silk industry.
The control being vested in Parliament under Entry 52 of silk industry did not in view of the earlier ruling of this Court affect the control over these raw materials.
This is perhaps the reason why the industry did not challenge the provisions of the 1959 Act, when it was originally enacted, on the ground that is now being put forward.
The present legislation, as a result of the amendments, controls the supply and distribution of the goods produced by the industry.
As rightly pointed out by the High Court this is the third aspect of the industry which falls outside the purview of the control postulated under Entry 52.
In other words, though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof, that declaration and Entry 52 do not in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry To interpret Entry 52 otherwise would render Entry 33 in List 3 of the Seventh Schedule to the Constitution otiose and meaningless.
In this view of the matter the limitation contained in Entry 52 does not affect the validity of the present legislation.
This is an aspect which was not touched upon and which did not arise in the Indian tobacco case.
There both the Central Act and the State Act purported to legislate in regard to the industry, namely, in regard to the production and manufacture of tobacco.
In view of our conclusion above, the State legislation would be quite valid unless it is repugnant to the provisions of a Central legislation on the subject.
A persual of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a silk Board for research into the scientific, technological and economic aspects of the industry.
It does not have anything to do with the aspects covered by entry 33 in List III.
There is, therefore, no infirmity in the legislation under consideration.
316 In this view of the matter, we agree with the conclusion reached by the High Court.
As this is the only point that was argued before us we dismiss the appeals and writ petitions but make no orders regarding costs.
G.N. Appeals and Petitions dismissed.

dataset_name: IN-Abs

summary:
The Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distribution) Act, 1959 provided for the regulation of production, supply and distribution of silk worm seed and cocoon in the State of Mysore.
The said Act was amended in 1969 and 1979.
The 1979 amendments imposed restrictions on the production, distribution and sale of silk yarn, and were analogous to the restrictions imposed earlier in respect of silk worm seeds and cocoons.
The appellants filed Writ Petitions before the High Court challenging the validity of the provisions of the Act on several grounds, Including lack of legislative competence since the Central Silk Boards Act, 1948 has already been passed by the Parliament The High Court negatived the contentions and dismissed the Writ Petitions.
The present appeals challenged the correctness of the said judgment.
The Writ Petitions filed directly in this Court also challenged the validity of the Provisions of the said Act.
The main contention raised in these matters was that the Provisions of the Act lack legislative competence after the enactment by Parliament of the Central Silk Boards Act, 1948 which contained a declaration contemplated under Entry 52 of List I in the Seventh 306 Schedule to the Constitution of India, taking the Silk industry within the purview of Parliamentary legislation.
Dismissing the matters, this Court, HELD: 1.
Legislation in regard to raw materials would be permissible under Entry 27 of List II, notwithstanding a declaration of the industry under Entry 52, to be one within the purview of parliamentary legislation.
The process of manufacture or production can be legislated on by States under Entry 24 of List II so long as the industry is not a controlled industry within the meaning of Entry 7 or Entry 52 of List 1.
So far as the distribution of the products of the industry is concerned, the State Legislature would be quite competent to legislate under Entry 27 of List II.
However, when the industry is also a controlled industry, legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List III.
[314A C] Calcutta Gas Co. (P) Ltd. vs State, [1962] Supp.
3 S.C.R. 1, relied on 2.
It is true that the Central Silk Boards Act purpots to control the raw silk industry in the territory of India.
But the control of the industry vested in Parliament was only restricted to the aspect of production and manufacture of silk yarn or silk.
It did not obviously take in the earlier stages of the industry, namely, the supply of raw materials.
Even in regard to the silk industry, the reeling, production, development and distribution of silkworm seeds and cocoons was regulated by the Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distribution) Act, 1959.
These items can perhaps be legitimately described as the raw materials of the silk industry.
The control being vested in Parliament under Entry 52, of silk industry, did not affect the control over the raw materials.
That is perhaps the reason why the industry did not challenge the provisions of the Act, when it was originally enacted, on the ground that is now being put forward.
The present legislation, as a result of the amendments, controls the supply and distribution of the goods produced by the industry.
Though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof, that declaration and Entry 52 do not in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry.
To interpret Entry 52 otherwise would render Entry 33 in List III of the Seventh Schedule 307 to the Constitution otiose and meaningless.
In this view of the matter the limitation contained in Entry 52 does not affect the validity of the present legislation.
[314H; 315A F] I.T.C. Ltd. & Ors.
vs State of Karnataka & Ors.
, [1985] (supp.) S.C.C. 476, distinguished.
The State legislation would be quite valid unless it is repugnant to the provisions of a Central legislation on the subject.
A perusal Of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a silk Board for research into the scientific, technological and economic aspects of the industry.
It does not have anything to do with the aspects covered by Entry 33 in List III.
There is, therefore, no infirmity in the State Legislation.
[315G H]


judgement:
ON: Criminal Appeal No. 50 of 1979.
From the Judgment and Order dated 23.12.1977 of the Delhi High Court in Criminal Appeal No. 162 of 1975.
R.K. Garg, R.K. Jain, Ranjan Mahapatra and P.K. Jain for the Appellant.
V.C. Mahajan, Ashok Bhan (NP) and Ms. A. Subhashini (NP) for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The appellant, the sole accused in this case, has been convicted under Section 302 I.P.C. and sentenced to imprisonment for life by the High Court of Delhi for causing the murder of one Champat Rai, the deceased in the case.
The prosecution case mainly rests on the evidence of P.W. 2, the sole eye witness.
Learned counsel for the appellant contended that the uncorroborated testimony of P.W. 2 is not wholly reliable and therefore the conviction cannot be sustained.
However, we may at this stage point out that the main submission has been that even if the prosecution case is to be accepted, an offence of murder is not made out as the accused was entitled to the right of private defence.
Even otherwise, according to the learned counsel, having regard to the fact that as the appellant is alleged to have inflicted only a single injury which proved fatal, the offence committed would be one amounting to culpable homicide.
To appreciate these submissions in a proper perspective, we 205 think it necessary to state the facts of the case.
The deceased was married to Agya Devi examined as P.W. 3.
He lived with his wife in a house in East Azad Nagar, Shahdra, Delhi.
In the adjoining house were living his mother, P.W. 1 and his two brothers P.Ws 2 and 5.
The appellant was married to a cousin of Agya Devi, P.W. 3 and he used to visit the house of the deceased ostensibly as a relative.
The deceased, P.Ws 1,2 and 5 objected to the appellant 's visit as they suspected illicit relation between the appellant and Agya Devi P.W. 3, wife of the deceased.
On August 18, 1973 at about 11 P.M. when the deceased was not in the house , the appellant came to visit Agya Devi.
A few minutes later the deceased also came home and he objected to the presence of the appellant.
On this there was an altercation and exchange of hot words.
Then the appellant took out a kirpan (churra) from his waist and stabbed the deceased in the chest.
The deceased fell down crying that the appellant has killed him.
The appellant with the weapon ran out of the house.
The incident was witnessed by P.W. 2 from the roof where he had retired for sleeping during the night.
P.W. 2 and his another brother P.W. 5 chased the appellant but as the appellant who was armed with a lethal weapon threatened them and made good his escape.
On return they found the deceased dead.
P.W. 3 was sitting next to the body and was crying.
The information was sent to the police and P.W. 18, the Sub Inspector, Kotwali Police Station came to the scene of occurrence and recorded the statement of P.W. 2 on the basis of which the case was registered against the appellant.
He seized certain incriminating articles, held the inquest and sent the dead body for post mortem.
He also recorded the statement of the material witness.
One of the recoveries made by him consisted of a sheath of the kirpan.
The Doctor, P.W. 17, examined the dead body and conducted the post mortem.
He found one incised stab wound on the left chest which proved fatal.
The particulars of the injury are: (1) One incised stab wound, horizontally placed on the (L) side of the chest 1" lateral to the left side and 2" below and medial to the (L_) Nipple size 1" x 1/2" x with spindle shaped appearance and with either margins pointed.
The margins of the wound were smooth and the collection of blood in the soft tissues.
(2) One incised wound over right little finger at the base of second phalynx on dorcal surface size 3/4" x 4/10" x bone deep.
There is collection of blood in the soft tissues and there was cut 206 mark on the base of second phalnyx right little finger.
The wound was bandaged with a piece of bandage and cotton soiled in blood.
The wound is not spindle shaped in appearance.
The margins were smooth.
This injury was a simple one and not due to a separate blow.
The Doctor opined the injury NO.1 was sufficient to cause death in the ordinary course of nature.
The cause of death was haomorrhage and shock due to injuries.
The accused was arrested on 28.8.73 and at his instance the kirpan was recovered.
After completion of the investigation, the charge sheet was laid.
The accused pleaded not guilty and denied the recoveries.
The prosecution examined P.W. 2, the brother of the deceased and P.W. 3 Agya Devi, wife of the deceased.
But P.W. 3 turned hostile.
Consequently the prosecution was left with the testimony of P.W. 2, the remaining eye witness.
Both the courts below relied on the evidence of P.W. 2 and they also held that his evidence was corroborated by that of P.Ws 1 and 5.
As hereinbefore mentioned, the learned counsel for the appellant submitted that the evidence of P.W. 2 on which the case entirely rests, cannot be accepted.
We have gone through his evidence carefully as well as that of P.Ws. 1 and 5.
The evidence of P.W. w does not suffer from any serious infirmity.
At any rate there is other corroborative evidence also.
We see absolutely no reason to disagree with the findings of the courts below regarding their evidence.
The learned counsel, however, submitted that the accused must have acted in right of self defence.
According to the learned counsel, P.W. 2 himself has deposed that there was exchange of hot words between the appellant and the deceased which would have resulted in a fight and the appellant having reasonably apprehended danger to his life, inflicted the injury on the deceased in self defence.
We see no basis for this submission.
P.W. 2 has no doubt stated that there was exchange of hot words between the appellant and the deceased but he did not speak about any fight between the two.
On the other hand his evidence shows that when the deceased came and questioned the accused then there was exchange of hot words.
The accused immediately took out a kirpan (churra) from his waist and stabbed the deceased.
Both the courts below also have rightly rejected this plea.
Therefore we see absolutely no grounds to come to a different conclusion.
207 The next and rather the main submission is that the offence committed by the appellant would only amount to culpable homicide inasmuch as he has inflicted only one injury.
In support of his submission, he relied on some of the decisions of this Court.
In Tholan vs State of Tamil Nadu, the accused who dealt a single knife below on the chest found to be sufficient to cause death, was convicted under Section 304 Part II I.P.C., disagreeing with the contention on behalf of the State that Clause III of Section 300 I.P.C. would be attracted in such a case.
In arriving at such a conclusion, this Court took into consideration various surrounding circumstances namely that the presence of the deceased at the scene of occurence was wholly accidental and that the accused dealt only one blow.
It must also be mentioned that the deceased, who was a stranger in that case, came out of his house and cautioned the accused not to indulge in abusive language as ladies were present in that area.
The accused thereupon questioned him and when both were remonstrating, he took out a knife from his waist and stabbed the deceased on the right side of the chest.
On these facts, this Court held: "We are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant.
But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death.
In such a situation, he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code.
" In support of this view, reliance is placed on some earlier decision of this Court in Jagrup Singh vs State of Haryana, ; ; Randhir Singh vs State of Punjab, ; Kulwant Rai vs State of Punjab, ; Hari Ram vs State of Haryana, ; Jagtar Singh vs State of Punjab, and Ram Sunder vs State of U.P., Criminal Appeal No. 555/83 decided on 24.10.1983.
The learned counsel submitted that the observations made in these cases apply on all fours to the facts of this case.
According to him, there was an altercation and during the same the appellant suddenly whipped out a kirpan and inflicted only one injury and it is therefore reasonable to infer that he would not have intended to cause that particular injury and consequently Clause Thirdly of Section 300 is not attracted.
The submission though put forward in a simple way leads to an important legal quandary regarding the interpretation of Clause Thirdly Section 300 I.P.C. which is considered be a 208 difficult and interact issue by the courts.
However, Virsa Singh vs State of Punjab, ; is considered to be an authoritative pronouncement in this regard.
But perhaps inspired by some of the decisions rendered thereafter both by the High Courts and the Supreme Court there is a marked change in the trend of the contentions regarding the scope of Clause Thirdly Section 300 I.P.C.
It has reached a stage over simplification and it is very often argued that whenever death is due to a single blow the offence would be a culpable homicide and not murder.
Somewhat to the same effect is the contention in the instant case.
In our view it is fallacious to contend that when death is caused by a single blow Clause Thirdly is not attracted and therefore it would not amount to murder.
The ingredient `Intention ' in that Clauses is very important and that gives the clue in a given case whether offence involved is murder or not.
For the purpose of considering the scope of Clause 3 it is not necessary for us to embark upon an examination of the entire scope of Section 299 and 300 I.P.C.
It is enough if we start with Virsa Singh 's case.
Clause Thirdly of Section 300 I.P.C. reads thus: "3rdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or " We may note at this stage that `intention ' is different from `motive ' or `ignorance ' or `negligence '.
It is the `knowledge ' or `intention ' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder.
Therefore, it is necessary to know the meaning of these expressions as used in these provisions.
Before doing so we shall first refer to the to the ratio laid down in Virsa Singh 's case and the meaning given to the expression `intention '.
The appellant Virsa Singh was sentenced to imprisonment for life under Section 302 I.P.C.
There was only one injury on the deceased and that was attributed to him.
It was caused as a result of the spear thrust and the Doctor opined that the injury was sufficient in the ordinary course of nature to cause death.
The Courts also found that the whole affair was sudden and occurred on a chance of meeting.
Peritonit is also supervened which hastened the death of the deceased.
It was contended that the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in 209 the ordinary course of nature and therefore the offence was not one of murder.
This contention was rejected.
After analysing the Clause Thirdly it is held the Court that the prosecution must prove: "First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; there are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
" The Court Further added thus: "One of these four elements is established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Sec.
300, 3rdly.
It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two).
It does not even matter that there is no knowledge that an act of that kind will be likely to cause death.
Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of of nature to cause death.
No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder.
If they inflict injuries of that kind, they must face the consequences; and they can 210 only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
" (emphasis supplied) The learned Judge also observe thus: "In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did.
Once that intent is established (and no other conclusion is reasonable possible in this case and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.
" Adverting to the contention that there is only a single blow, it is further held: "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present.
If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intend that the section requires is not proved.
But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended serious consequences, it neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflicit an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
But whether the intention is there or not is one of fact and not one of law.
Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
" 211 At another passage which has to be noted in this context reads thus: "It is true that in a given case the enquiry may be linked up with the seriousness of the injury.
For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder.
But that is not because the prisoner did not intended the injury that he intended to inflict to be a serious as it turned out to be but because he did not intend to inflict the injury in question at all.
His intention in such a case would be to inflict a totally different injury.
The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony.
It is not one for guesswork and fanciful conjecture.
Referring to these observations, Divisional Bench of this Court in Jagrup Singh 's case observed thus: "These observations of Vivian Bose, J. have become locus classicus.
The test laid down in Virsa Singh 's case for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.
" The Division Bench also further held that the decision in Virsa singh 's case has throughout been followed as laying down the guiding principles.
In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended.
In other words the 3rd Clause consists of two parts.
The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature.
Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury.
whereas the second part whether it was sufficient to cause the death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury.
The language of Clause Thirdly of Section 300 212 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that Clause.
The `intention ' and `knowledge ' of the accused are subjective and invisible state of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances.
The framers of the code designedly used the words `intention ' and `knowledge ' and it is accepted that the knowledge of the consequences which may result in doing an act is not the samething as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow.
But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue.
As compared to `knowledge ', `intention ' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.
Kenny in "Outline of Criminal Law" (17th Edition at page 31) has observed: "Intention: To intend is to have in mind a fixed purpose to reach a desire objective; the noun `intention ' in the present connexion is used to denote the state of mind of a man who not only forsees but also desires the possible consequences of his conduct.
Thus if one man throws another from a high tower or cuts off his head it would seem plain that the both foresees the victim 's death and also desires it: the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes.
It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed.
Again, a man cannot intend to do a thing unless he desires to do it.
It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it.
That is to say he desires the lesser of two evils, and therefore, has made up his mind to bring about that one." Russel on Crime (12th Edition at Page 41) has observed: 213 "In the present analysis of the mental element in crime the word `intention ' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so.
He shapes his line of conduct so as to achieve a particular end at which he aims.
" it can thus be seen that the `knowledge ' as contrasted with `intention ' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.
On the otherhand, `intention ' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end.
it means shaping of one 's conduct so as to bring about a certain event.
Therefore in the case of `intention ' mental faculties are projected in a set direction.
Intention need not necessarily involve premediation.
Whether there is such an intention or not is a question of fact.
In Clause Thirdly the words "intended to be inflicted" are singnificant.l; As noted already, when a person commits an act, he is presumed to expect the natural consequences.
But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature.
However, the presumption arises that he intended cause that particular injury.
In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.
However, as pointed out in Virsa Singh 's case the weapon used, the degree of force released in wielding it, the antecedent relation of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors.
These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused.
In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same.
Likewise there may be circumstances in some cases which attract the first exception.
In such cases different considerations arise and the Court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 I.P.C. is attracted.
In the present enquiry we need not advert to that aspect since we are concerned only with scope of clause Thirdly of Section 300 I.P.C. 214 The decision in Virsa Singh 's case has throughout been followed in a number of cases by the High Courts as well as by the Supreme Court.
Such decisions are too numerous and it may not be necessary for us to refer to all those cases.
However, it would be useful to refer to a few decisions which have a bearing to the point in issue.
In Chahat Khan vs State of Haryana, the deceased was waylaid by the accused who were armed with lathis.
The accused had both gun and a lathi but he used only the lathi and struck a blow on the head with sufficient force and the solitary below with the lathi was found to be sufficient in the ordinary course of nature to cause death and it was held that the case fell within clause Thirdly as there was clear intention to cause such bodily injury which in the ordinary course of nature was sufficient to cause death.
In Chamru Budhwa vs State of Madhya Pradesh, AIR 1954 SC 652 there was exchange of abuses between the two parties armed with lathis and in the course of the fight, the accused struck one lathi blow on the head of the deceased which causes a fracture of the skull resulting in death, and it was held that he had given the blow with the knowledge that it was likely to cause death.
In Willie (Williams) Slaney vs State of Madhya Pradesh, there was a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey stick had been given on the head.
It was held that the offence amounted to culpable homicide punishable under Section 304 Part II I.P.C.
In Harjinder Singh (alias Jinda) vs Delhi Admn.
, ; the facts are that there was a sudden commotion and when the deceased intervened in the fight, the accused took out a knife and stabbed the deceased and the deceased was in crouching position presumably to intervene when he received the blow.
Though the injury was found sufficient in the ordinary course of nature to cause death.
, he was convicted for the offence of culpable homicide.
The intention to cause that particular injury was not present.
To the same effect is the decision in Laxman Kalu Nikalji vs State of Maharashtra; , where the accused lost his temper and took out a knife and gave one blow during a sudden quarrel.
In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not and it is held that circumstances like a sudden quarrel in a fight or when the deceased intervenes in such a fight, would create a doubt about the ingredient of intention as it cannot definitely be said in such circumstances that the accused aimed the blow at a particular part of the body.
When an accused inflicts a blow with a deadly weapon the presumption is that he intended to inflict that injury but 215 there may be circumstances like those, as mentioned above, which rebut such presumption and throw a doubt about the application of clause Thirdly.
Of course much depends on the facts and circumstances of each case.
Now let us examine some of the cases relied upon the learned counsel for the appellant.
In Kulwant Rai 's case a Bench consisting of D.A. Desai and R.B. Misra, JJ.
held in a hit and run case that where it cannot be said that the accused intended to inflict the very fatal injury, clause Thirdly is not attracted.
That was a case were only one blow was given with the dagger in the epigastrium area and the facts would go to show that there was no pre meditation, no prior enmity and a short quarrel preceded the assault.
However, we do not find any discussion about the scope of clause Thirdly.
Randhir Singh 's case was decided by a Bench consisting of D.A. Desai and Baharul Islam, JJ.
In that case, a single head injury was inflicted by a college student on the deceased with a weapon supplied by his father and the deceased died after six days and there also an assault was preceded by a quarrel between the father of the accused and the deceased.
The Bench observed that: "Merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury.
The weapon was not handy.
He did not possess one.
Altercation took place between his father and the deceased and he gave blow with kassi.
In our opinion in these circumstances it would be difficult to say that the accused intended to cause that particular injury.
" Before the same Bench, in Gurmail Singh and others vs State of Punjab, this question again came up for consideration.
In that case, an indecent joke cut by the accused with the wife of a P.W. led to a quarrel and the deceased who was nowhere in the picture tried to intervene, two of the accused gave some blow on him.
Then Gurmail Singh, the appellant therein, gave a single blow with spear on the chest which proved fatal.
It was contended by the State that clause Thirdly of Section 300 I.P.C was attracted.
it is observed that: "But it was said that the case would be covered by Para 3 of Section 300 in that Gurmail Singh intended to cause an injury and the injury intended to be inflicted was proved to 216 be sufficient in the ordinary course of nature to cause death.
This argument is often raised for consideration by this Court and more often reliance is placed on Virsa Singh vs State of Punjab; , We would have gone into the question in detail but in Jagrup Singh vs State of Haryana ; , Sen. J. after examining all the previous decisions on the subject, observed that in order to bring the case within Para 3 of Section 300, I.P.C., it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death.
This view was further affirmed in a decision rendered in Randhir Singh vs State of Punjab, We are of the opinion that in the facts found by the High Court it could not be said that accused 1 Gurmail singh intended to cause that particular bodily injury which in fact was found to have been caused.
May be, the injury inflicted may have been found to be a sufficient in the ordinary course of nature to cause death.
What ought to be found is that the injury found to be present was the injury that was intended to be inflicted.
It is difficult to say that with confidence in the present case keeping in view the facts found by the High Court that accused 1 Gurmail Singh intended to cause the very injury which was found to be fatal." Therefore this decision also affirms the view taken in Virsa Singh 's case.
Then came the decision in Jagtar Singh 's case rendered by a Bench consisting of D.A.Desai and Amarendra Nath Sen, JJ.
In that case a single knife blow was inflicted in the chest and it was found to be sufficient in the ordinary course of nature to cause death.
The Bench held that clause Thirdly was not attracted in view of circumstances i.e. there the accused was a young man and inflicted the injury on the spur of the moment and some extent on deceased 's provocation in a sudden chance quarrel and on a trivial issue.
The Bench observed that: "The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow.
He could not be imputed with the intention to cause death or the intention to cause that particular injury which proved fatal.
" In this case, there is no reference to Virsa Singh 's case but there is a 217 references to Jagrup Singh 's case which decision, as noted already, has followed the ratio in Virsa singh 's case.
Then came the decision in Tholan 's case on which the counsel has heavily relied upon.
In that case also the appellant inflicted only a single knife blow on the chest of the deceased sufficient to cause death but it was on the spur of the moment.
The Division Bench, consisting of D.A. Desai and R.B.Misra, JJ.
took into the consideration that the deceased had nothing to do with the chit organised by one K.G. Rajan in respect of which there was a quarrel between the appellant and the organisers of the chit and when the accused was abusing the organisers, the deceased seemed to have told the accused not to misbehave in the presence of the ladies and not to use vulgar and filthy language.
The presence of the deceased was wholly accidental and the appellant on the spur of the moment inflicted the fatal injury on the chest.
The Division Bench relying on the earlier decision under similar circumstances convicted the accused under Section 304 Part II.
A reference is also made to the decision in Jagrup Singh 's case.
Therefore in this case also, the ratio laid down in Virsa Singh 's case is presumably followed.
In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death.
The supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc.
as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result.
It is held in all these cases there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e only had knowledge of the consequences.
These circumstances under which the appellant happened to inflict the injury it is felt or atleast a doubt arose that all his mental faculties could not have been roused as to form an intention to achieve the particular result.
We may point out that we are not concerned with the intention to cause death in which case it will be a murder simpliciter unless exception is attracted.
We are concerned under clause Thirdly with the intention be cause that particular injury which is subjective inquiry and when and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, clause Tirdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted.
If on the otherhand this ingredient of `intention ' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that Clause Thirdly is not 218 attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable under Section 304 Part II I.P.C. Bearing these principles in mind, if we examine the facts in the present case, clause Thirdly of Section 300 I.P.C. is fully attracted.
The appellant was having illicit relation with Agya Devi, wife of the deceased and his visits to her house were resented and objected.
On the day of occurence, the accused visited the house when the deceased was not there and he went there armed with a kirpan.
When the deceased came and objected to his presence there was only an altercation and exchange of hot words, and not a fight.
Thereupon he took out a knife and stabbed on the chest of the deceased resulting instantaneous death of the deceased.
The above circumstances would show that the accused intentionally inflicted that injury though it may not be pre mediated one.
All the above circumstances would certainly indicate such a state of mind namely he aimed and inflicted that injury with a deadly weapon.
As observed in Virsa Singh 's case in the absence of evidence or reasonable explanation show that the appellant did not intend to stab in the chest with a kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did.
When once the ingredient `intention ' is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death.
Therefore an offence of murder is made out.
Accordingly the appeal is dismissed.
Y.Lal Appeal dismissed.

summary:
The appellant, had illicit connection with Agya Devi (P.W. 3), wife of the deceased and in that connection he used to visit her house quit frequently to which the deceased and his two brothers & mother living separately in the adjacent house used to object.
It may be pointed that the Agya Devi was related to the appellant 's wife.
On August 18, 1973, at about 11 p.m. when the deceased was not in house, the appellant came to visit Agya Devi.
A shortwhile later, the deceased also came home and he objected to the presence of the appellant whereupon an altercation and exchange of hot words ensued between the appellant and the deceased.
The appellant took out a kirpan (chhurra) from his waist and stabbed the deceased in the chest.
The deceased fell down crying that the appellant has killed him and the appellant fled away with the weapon.
the incident was witnessed by Agya Devi (P.W. 3) and P.W. 2, deceased 's brother from the roof of the house.
The deceased died as a result of the injury.
The prosecution was thereupon launched against the appellant and the prosecution examined and amongst others P.W. 2 and P.W. 3.
P.W. 3 turned hostile, with the result the prosecution was left with only P.W. 2 (brother of the deceased) as eye witness.
The trial court relied on the evidence of P.W. 2 and also held that his evidence was corroborated by the P.Ws. 1 and 5 and recorded the conviction under section 302, I.P.C. and sentenced him to imprisonment for life for causing the death of Champat Rai, the deceased, which order was later affirmed by the Delhi High Court.
Hence this appeal by the appellant, after obtaining special leave.
The main contention of the appellant is that even if the prosecution case is to be accepted, an offence of murder is not made out as the accused was entitled to the right of private defence; even otherwise the accused having inflicted only one injury which proved fatal, the offence would be one amounting to culpable homicide.
203 Dismissing the appeal, this Court, HELD: `Intention ' is different from ``motive ' or ignorance or ``negligence '.
It is the `knowledge ' or `intention ' with which that act is done that makes difference, in arrival at a conclusion whether the offence is culpable homicide or murder.
[208 E] The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the can can fall in that Clause.
The `intention ' and `knowledge ' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances.
The framers of the Code designedly used the words `intention ' and `knowledge ' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he , must have been aware that certain specified harmful consequences would or could follow.
But the knowledge is bare awareness and not the same thing as `intention ' that such consequences should ensue.
As compared to `knowledge ', `intention ' requires something more than the mere foresight of the consequences, namely the purposely doing of a thing to achieve a particular end.[211H 212C] `Knowledge ' as contrasted with `intention ' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.
On the other hand, `intention ' is a conscious state in which mental faculties are aroused into actively and summoned into action for the purpose of achieving a conceived end.
[213B C] The circumstances would show that the accused intentionally inflicted that injury though it may not be pre mediated one.
All the circumstances would certainly indicate such a state of mind namely that he aimed and inflicted that injury with a deadly weapon.
In the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did.
When once the ingredient `intention ' is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death.
Therefore an offence of murder is made out.
[218D E] 204 Tholan vs State of Tamil Nadu, ; Jagrup Singh vs State of Haryana, ; ; Randhir Singh vs State of Punjab ; Kulwant Rai vs State of Punjab, ; Hari Ram vs State of Haryana, ; Jagtar Singh vs State of Punjab, ; Ram Sunder vs State of U.P., Crl.
Appeal No. 555/83 decided on 24.10.1983; Chahat Khan vs State of Haryana ; Chamru Budhwa vs State of Madhya Pradesh, AIR 1954 SC 652; Willie (William) Slaney vs State of Madhya Pradesh, ; ; Harjinder Singh alias Jinda vs Delhi admn.
; , ; Laxman Kalu Nikalji vs State of Maharashtra, ; ; Gurmail Singh and Ors.
vs State of Punjab, , referred to.
Virsa Singh vs State of Punjab, ; , followed.


judgement:
Civil Appeal No. 699 of 1985.
From the Judgment and Order dated 17.5.1984 of the Orissa High Court in O. J. C. No. 936 of 1979.
G.L. Sanghi, Adv., R.K. Mehta, Ms. Uma Jain, M.A. Firoz and P.N. Misra for the appearing parties.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
These three appeals are against the judgment of the Orissa High Court in O.J.C. No. 936 of 1979.
The Division Bench allowed the writ petition and quashed the gradation lists of sub Asstt.
Engineers (Electrical) and Sub Asstt Engineer (Mechanical), Annexures 5 & 6 before the High Court and the promotions given to the respondents Nos. 4 and 5 therein Annexure 7.
The Government and the Corporation were directed to consider the question of promotion treating the writ petitioner and the respondents as belonging to two cadres of Sub Asstt.
Engineer (Electrical) And (Mechanical).
These three appeals were filed, one by the Corporation, another by the State Government and the third one by the aggrieved employees.
344 The facts are simple.
Shri Bidura Charan Mohapatra, the 6th respondent/first appellant in the third appeal, a diploma holder in Mechanical and Electrical Engineering, was appointed as Mechanical Supervisor on August 24, 1962 in the pay scale of Rs.215 396.
Shri Parijat Ray, the 7th respondent/2nd appellant, equally possessed of diploma in Electrical and Mechanical Engineering, was appointed in the same scale of pay as a Mechanical Supervisor on November 5, 1962.
Shri P.K. Mohanty, the writ petitioner in the High Court and the respondent in these appeals holds diploma in Electrical Engineering and was appointed as Hand Driller in the pay scale of Rs. 100 155, on October 23, 1963 and Sub Assistant Engineer (Electrical) in the payscale of Rs. 185 325 on September 1, 1965.
The Lift Irrigation Corporation Ltd., a part of the Government Organisation, was carved out separately and the three persons alongwith others were drawn on deputation from the Government service to the Corporation in the year 1963.
Three categories of services were existing in the Corporation, namely, Mechanical, Electrical and Mechanical Electrical Composite unit.
In the year 1971, three tentative gradation lists were prepared for classification purpose of those three divisions as Sub Assistant Engineer (Mechanical), Sub Assistant Engineer (Electrical), Supervisors, Electrical and Mechanical which includes Electrical Supervisors, Mechanical Supervisors, Drilling Supervisors and Foreman cum Instructors.
In 1977 the Corporation decided to reorganise its set up and to classify the employees into two categories, namely, Sub Assistant Engineer (Electrical), Sub Assistant Engineer (Mechanical) to attend to the respective works, namely, mechanical and electrical.
The Corporation invited objections to amalgamate Composite Electrical and Mechanical Engineering Diploma Holders, either in Electrical or Mechanical Wing.
Options were called for from the persons holding only the composite diploma, namely, Mechanical and Electrical Engineering Supervisors.
The respondent writ petitioner did not file any objection to the scheme.
On consideration of the objections filed by others, two gradation lists were prepared in the order of seniority from the respective dates of appointment to the posts and higher scale of pay held by respective persons and fitted them in the respective lists as per options.
As stated earlier the respondent questioned their gradation in the Electrical Wing in the High Court and the High Court quashed it and the appellants obtained leave of this Court under article 136.
The contention of the appellants is that the respondent has no right to be kept in a particular wing.
The Corporation, with a view to H create two categories, namely, Mechanical and Electrical sought to 345 amalgamate the third Composite Mechanical/Electrical Wing and sought for options from the persons holding the composite posts.
This was taken due to administrative exigency.
The Corporation has power to carve out by amalgamating three sections, into two divisions and to prepare the seniority lists from the respective date of their initial appointment, etc.
The High Court, therefore, was unjustified to quash the gradation lists.
It was contended for the respondent by Sri Misra, his learned counsel, that the persons from the three wings are only deputationists holding lien on Government posts.
The Corporation did not frame any scheme of its own to appoint its own employees, nor given options to all the deputationists for confirmation as its employees.
So long as the employees are continuing on deputation, they are entitled to have seniority in the respective wings.
The writ petitioner admittedly has been working on the Electrical Wing and was No. 2 in the order of seniority as Sub Assistant Engineer (Electrical).
His right to seniority, cannot be disturbed by taking Mechanical Supervisor into the Electrical Wing, offending his right to promotion enshrined under articles 14 and 16 of the Constitution.
The writ petitioner holds only Diploma in Electrical Engineering.
S/Shri Bidura Charan Mohapatra and Parijat Ray hold double diploma of Mechanical and Electrical Engineering.
It is settled law that the Government or the Corporation, due to administrative exigencies, is entitled to and has power to reorganise the existing cadres of amalgamate some or carve out separate cadres.
The pre existing three separate cadres, namely, Electrical, Mechanical and the composite cadre, namely, Electrical Mechanical were sought to be amalgamated into two cadres by absorbing the personnel working in the composite cadre, namely, Electrical Mechanical in either Electrical cadre or Mechanical cadre.
Options have been called for in that regard from all the persons working in the Electrical Mechanical cadre and the appellants exercised their options for absorption in Electrical cadre.
The employees working in the Electrical and Mechanical cadres were also aware of the same.
It was, therefore, open to the respondent to raise any objection to the policy at that stage.
But he failed to so.
The decision to amalgamate the existing cadres by reorganising into two cadres was a policy decision taken on administrative exigencies.
The policy decision is not open to judicial review unless it is mala fide, arbitrary or bereft of any descernable principle.
On account of the amalgamation and adjusting the composite Electrical Mechanical cadre in either of the Electrical or Mechanical cadre as per the options given, the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed.
When the persons in the 346 composite Electrical Mechanical cadre opted to the Electrical cadre, they are entitled to be considered for their fitment to the cadre as per the seniority from the date of their initial appointment vis a vis their scale of pay.
This was the procedure adopted by the Corporation in fixing the inter se seniority.
The procedure adopted is just, fair and reasonable and beneficial to all the employees without effecting their scales of pay or loosing the seniority from the date of initial appointment.
Undoubtedly, in this process the respondent/writ petitioner lost some place in seniority which is consequential to amalgamation.
He has not been deprived of his right to be considered for promotion, only his chances of promotion have been receded.
It was not the case of the respondent that the action was actuated by mala fide or colourable exercise of power.
There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with the relevant rules.
From this perspective in our view the conclusion of the High Court that the gradation list prepared by the Corporation is in violation of the right of the respondent/ writ petitioner to equality enshrined under article 14 read with article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.
The appeals are accordingly allowed and the writ petition stands dismissed.
But in the circumstances, parties are directed to bear their respective costs.
N.P.V. Appeals allowed.

summary:
The Lift Irrigation Corporation Ltd. had three categories of services, namely, Mechanical, Electrical and Composite unit of Mechanical Electrical when it was carved out of the Government organisation.
Subsequently, due to administrative exigency, the Corporation decided to reorganise its set up and classify the employees into two categories ' namely, Electrical and Mechanical by amalgamating the composite Electrical and Mechanical Engineering diploma holders either in Electrical or Mechanical wing, and invited objections to the scheme.
It also called for options from persons holding only the composite diploma, namely, Mechanical and Electrical Engineering Supervisors.
On consideration of options received, the Corporation prepared two gradation lists in the order of seniority from the respective dates of appointment to the posts and higher scale of pay held by respective Persons and fitted them in the respective lists as per options.
Respondent No. 1, a diploma holder in Electrical Engineering, who 342 was working as Sub Assistant Engineer (Electrical) in Government service, and had been drawn on deputation to the Corporation along with Respondents No. 6 and 7, appellants in third appeal, holders of double diploma in Mechanical and Electrical Engineering, and working as Mechanical Supervisors, along with others, had not filed any objection to the scheme, but questioned before the High Court the gradation of Respondents No. 6 and 7 and others in the Electrical Wing.
The High Court quashed the gradation lists and directed the Government and the Corporation to treat Respondent No. 1 and the other respondents as belonging to two cadres of Sub Assistant Engineer (Electrical) and (Mechanical) respectively.
The Corporation, the State Government and the aggrieved employees filed separate appeals, by special leave, contending that the Corporation had the power to amalgamate the three sections into two, due to administrative exigency and to prepare seniority lists from respective dates of employees ' initial appointment, etc.
Respondent No. 1 contended that his seniority as No. 2 in the Electrical Wing could not be disturbed by taking Mechanical Supervisors into the Electrical Wing offending his right to promotion enshrined under Articles 14 and 16 of the Constitution.
Allowing the appeals, this Court, HELD: 1. 1 The Government or the Corporation, due to administrative exigencies, is entitled to and has power to reorganise the existing cadres or amalgamate some or carve out separate cadres.
The decision to amalgamate the existing cadres by reorganising them into two cadres being a policy decision, taken on administrative exigencies, is not open to judicial review unless it is mala fide, arbitrary or bereft of any discernible principle.
[345E, G] 1.2 On account of amalgamation into two cadres by absorbing the personnel working in the composite cadre, namely, Electrical Mechanical in either Electrical or Mechanical cadre, and their adjustment, the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed.
When the persons in the composite Electrical Mechanical cadre opted to the Electrical cadre, they were entitled to be considered for their fitment in the cadre as per the seniority from the date of their initial appointment vis a vis their scale of pay.
This was the procedure adopted by the Corporation in fixing the 343 inter se seniority.
The procedure adopted is just, fair and reasonable and benificial to all the employees without affecting their scales of pay or losing the seniority from the date of initial appointment.
[345G H, 346A B] Undoubtedly, in this process, the first respondent lost some place in seniority which is consequential to amalgamation.
He has not been deprived of his right to be considered for promotion; only his chances of promotion have been receded.
1.3 There is no fundamental right to promotion.
An employee has only right to be considered when it arises, in accordance with the relevant rules.
[346C] 1.4 In the circumstances, the High Court was not right in holding that the gradation list prepared by the Corporation was in violation of Respondent No. 1 's right to equality enshrined in Article 14 read with Article 16 of the Constitution, and that he was unjustly denied of the same.
[346D]