Criminal Appeal No 530 of 1978 From the Judgment and Order dated 1391978 of the Punjab and Haryana High Court in Criminal Appeal No 1154 of 1975
ML Verma SK Bagga and Mrs section Bagga for the Appellant
Tara Chand Sharma and Miss A Subhashini for the Respondent
The Judgment of the Court was delivered by AHMADI J
The appellant having been convicted by the learned Sessions Judge Chandigarh under Section 302
IPC and his appeal against conviction having been dis missed by the High Court of 943 Punjab  Haryana has preferred this appeal by special leave
The conviction of the appellant is principally based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh
The facts emerging from the evidence of these two main witnesses coupled With the evidence of the other prose cution witnesses may be stated as follows PW 5 Mangal Dass was the owner of House No 3220 in Sector 23 D Chandigarh consisting of the ground floor and the first floor
The ground floor was occupied by Mangal Dass himself while the first floor consisting of four rooms and a kitchen was tenanted two rooms and a kitchen were rented to PW 4 while the other two rooms were occupied by Sikander Lal the father of the appellant and Amrit Lal the acquitted accused
PW 2 Kesho and his brother Nitya Nand deceased belonged to village Narnaul to which PW 4 also belonged
They had come to Chandigarh a couple of years back and were sharing the accommodation with PW 4
As Amrit Lal s marriage was scheduled on December 7 1974 a request was made to PW 4 by Sikander Lal to permit the use of the kitch en for a few days
Accordingly the possession of the kitch en was delivered to Sikander Lal on December 4 1974 on a clear understanding that it would be returned to PW 4 after the marriage
As the possession of the kitchen was not returned immediately after the marriage PW 2 and his de ceased brother Nitya Nand demanded possession thereof from Sikander Lal
They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1 1975
However as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3 1975 on which date the family members of Sikander Lal are stated to have re entered the kitchen
It may here be men tioned that this part of the prosecution evidence has not been accepted by the learned Sessions Judge
According to the learned Sessions Judge the possession of the kitchen was not delivered to PW 4 till January 3 1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life
On this aspect of the matter the High Court has not expressed any opinion
On a perusal of the relevant evidence we are in clined to think that the finding of fact recorded by the learned Sessions Judge in this behalf is correct
On January 3 1975 at about 715 pm PW 2 and his deceased brother had an heated argument with the appellant and his brother Amrit Lal in regard to the return of the kitchen
In the course of this heated exchange PW 2 is alleged to have showered filthy abuses
Although PW 2 denies this fact PW 4 has admitted the same
PW 2 also threatened to throw out the utensils and lock the kitchen
Since 944 PW 2 was uttering filthy abuses in the presence of the appellant s sister and Nitya Nand did not restrain him the appellant got enraged went into the kitchen and returned with a knife with which he inflincted one blow on the neck of PW 2 causing a bleeding injury
In the melee the appel lant inflicted three knife blows to Nitya Nand one on the shoulder the other on the elbow and the third on the chest as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital
The fact that Nitya Nand died a homicidal death is not in dispute
The appellant s defence was that on the date of the incident PW 2 and his deceased brother had demanded vacant possession of the kitchen and on being told that PW 4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language PW 2 began to throw out the utensils from the kitchen
When the appellant tried to stop him from doing so PW 2 took out a knife from his pant pocket whereupon the appellant took shelter behind a door
PW 2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries in question
The courts below have however concluded and in our opinion rightly that the appellant had in the course of the quarrel given stab wounds to PW 2 and the deceased Nitya Nand
The learned Advocate for the appellant submitted that there was no previous iII will between the parties on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premedi tation and hence Exception 4 to Section 300 IPC was clearly attracted
On the other hand the learned counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said exception
He sub mitted that the appellant had attacked an unarmed person and had caused as many as three injuries which showed that he had acted in a cruel manner
The appellant s counsel coun tered by pointing out from the evidence of PW 1 Dr Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain PW 2
Exception 4 to Section 300 reads as under Exception 4 Culpable homicide is not murder if it is 945 committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner
Explanation It is immaterial in such cases which party offers the provocation or commits the first assault To invoke this exception four requirements must be satisfied namely i it was a sudden fight ii there was no premeditation iii the act was done in a heat of pas sion and iv the assailant had not taken any undue advan tage or acted in a cruel manner
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault
The number of wounds caused during the occurrence is not a decisive factor but what is impor tant is that the occurrence must have been sudden and unpre meditated and the offender must have acted in a fit of anger
Of course the offender must not have taken any undue advantage or acted in a cruel manner
Where on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries one of which proves fatal he would be entitled to the benefit of this exception provided he has not acted cruelly
In the present case the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen
When they found that the appel lant was disinclined to handover possession of the kitchen PW 2 quarrelled and uttered filthy abuses in the presence of the appellant s sister
On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils etc and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other
In the course of this heated argument it is the appellant s case that PW 2 took out a knife from his pant pocket
This part of the appeIIant s case seems to be probable having regard to the antecedents of PW 2
It is on record that PW 2 was convicted at Narnaul on two occa sions under Section 411 IPC and his name was registered as a bad character at the local police station
It was presuma bly because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4
When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife
From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target
That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant
It further 946 seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2 below the nipple It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a selfinflicted wound and had therefore acquitted the appel lant of the charge under Section 307 IPC against which no appeal was carried
We have however proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident
From the above facts it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter s sister tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen ran towards PW 2 and inflicted a simple injury on his neck
It would be reasonable to inter that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries one of which proved fatal
Taking an overall view of the inci dent we are inclined to think that the appellant was enti tled to the benefit of the exception relied upon
The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner
Under these circumstances we think it proper to convict the accused under Section 304 Part I IPC and direct him to suffer rigorous imprisonment for 7 years
In the result this appeal partly succeeds
The order of conviction and sentence passed under Section 302 IPC is set aside and the fine if paid is directed to be refunded
The appellant is convicted under Section 304 Part I IPC and is directed to suffer rigorous imprisonment for 7 years
SKA Appeal allowed


Summary:
The appellant Authority offered to register names of intending applications desirous of purchasing LIG MIG HIG and EWS type housesflats
The General Information Table  given in the brochure indicated the type of houses corre sponding income groups cost initial payment to be made rate of interest and approximate monthly instalments
Note 1 under the said table stated that the cost shown therein was only estimated cost and it would increase or decrease according to the rise or fail in the price at the time of completion of the houses while Note 2 stated that the date given therein could be amended as felt necessary
By clauses 12 and 13 contained in the brochure the Authority reserved its discretion to change alter or modify any of the terms andor conditions of the allotment as and when necessary
All the respondents registered their names for allotment of the flats in accordance with the terms and conditions in the brochure and made the initial deposit
Subsequently they received notices from the Authority intimating the revised cost of houses and the amount of monthly instalment rates which were almost double of those initially stated in the General Information Table 
The respondents were fur ther informed that those who intend to buy houses on the revised priceinstalments must send their written acceptance by the date specified other wise their claims would not be included in the lots to be drawn
Except a few all other respondents gave their unequivocal and unconditional written consent
Hence their names were included in the 743 744 draws and on becoming lucky in the draw they were allotted their respective houses
At this stage
all the respondents approached the High Court under Article 226 of the Constitution challenging the revised terms and conditions on the ground that the appel lants were estopped from changing the conditions subject to which the respondents had applied for registration and deposited the initial payment that the enhancement of cost of the house amounting to almost double of the estimated cost as shown in the brochure and the increase of the month ly instalments were much beyond their means and that this arbitrary and unilateral stand of the appellants was to the prejudice of the respondents
These petitions were resisted by the appellants by contending that the respondents were estopped from challenging the varied terms and conditions of the allotment after having consented
The High Court found the action of the Authority in fixing the revised cost and instalments arbitrary and unrea sonable and directed the appellant Authority to re determine the cost of the flats and instalments payable by them after hearing the parties
In these appeals by special leave it was contended for the appellant Authority that the income of the applicants was relevant only to determine the category of the scheme in which they had to be included for eligibility to get a house under the scheme but not for enhancement of the cost of the house and monthly instalments that it had fixed the cost of the houses and the rate of instalments after taking into consideration the escalation in the price of building mate rial labour charges cost of transport and allied valuable factors which all enter into the price fixation that in price fixation the executive has a wide discretion and it is only answerable provided there is any statutory control over its policy of price fixation and that after the parties had entered into the field of ordinary contract as in the instant case
the relations were no longer covered by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se Allowing the appeals HELD 1
Where the contract entered into between the State and the persons aggrieved is non statutory and purely contractual and the rights are governed only by the terms of the contract no writ or order can be issued under Article 226 of the Constitution of India so as 745 to compel the authorities to remedy a breach of contract pure and simple
755C Radhakrishna Agarwal  Ors
vs State of Bihar  Ors
   Premji Bhai Parmar  Ors etc
vs Delhi Development Authority  Ors  and DFOv
Biswanath Tea Company Ltd referred to
The respondents in the instant case had voluntarily registered themselves as applicants only after fully under standing the terms and conditions of the brochure inclusive of cls
12 and 13 and Notes 1 and 2 of the General Informa tion Table under which the Authority had reserved its right to change the terms and conditions as and when felt neces sary evidently depending upon the escalation of the prices
The Authority did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the increased monthly instalments
On the contrary the option was left over only to the allottees
All the same the respondents gave their written consent unconditionally accepting the changed and varied terms and conditions
753H754A C The respondents after accepting the conditions imposed by the Authority had thus entered into the realm of a con cluded contract pure and simple with the Authority and hence they could only claim the right conferred upon them by the said contract and were bound by the terms of the contract unless some statute stepped in and conferred some special statutory obligations on the part of the Authority in the contractual field
The contract between the respondents and the Authority did not contain any statutory terms andor conditions
754C E Even conceding that the Authority had the trappings of a State or would be comprehended in other authority  for the purpose of Article 12 of the Constitution while determining price of the houses flats constructed by it and the rate of monthly instalments to be paid the authority  or its agent after entering into the field of ordinary contract had acted purely in its executive capacity
Thereafter the relations were no longer
governed by the Constitutional provisions but by the legally valid contract which determined the rights and obligations of the parties inter se
In this sphere they could only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the Authority in the said contractual field
754G H 755A B Ramana Dayaram Shetty vs The International Airport Authority 746 of India  Ors  The High Court while exercising its jurisdiction under Article 226 of the Constitution had therefore gone wrong in its finding that there was arbitrariness and unreasona bleness on the part of the appellants in increasing the cost of the housesflats and the rate of monthly instalments and giving directions in the writ petitions as prayed for
755D E