- (1.) THIS revision petition is directed against the order passed by the Sub-Divisional Officer, Udaipur dated the 6th September, 1961 dropping the proceedings for the recovery of the demands of the Forest Department made against the respondent under the Public Demands Recovery Act. Briefly the facts of the case are that the respondent Dev Kishen entered into an agreement with the Government of Rajasthan in the Forest Department for the Supply of meat to the animals in Udaipur Zoo and as he committed the breach of the contract the Divisional Forest Officer, Udaipur made a requisition under the Public Demands Recovery Act for a sum of Rs. 3708. 98 paisa from the respondent by way of damages sustained by the Government. The respondent denied his liability to pay before the Sub-Divisional Officer, Udaipur when the certificate was filed and a notice was issued against him. The Sub-Divisional Officer came to the conclusion that the amount of damages is not a Public Demand and cannot be recovered under the Public Demands Recovery Act from the respondent. Aggrieved by this order the Government Advocate has filed this revision petition.
(2.) A preliminary objection was raised by the counsel for the respondent that under sec. 23-A of the Public Demands Recovery Act, 1952 an appeal from the order made by the Collector lies to the Commissioner, now as amended, to the Revenue Appellate Authority and hence no revision is maintainable. He rightly argued that where appeal lies revision is normally barred. The Government Advocate was unable to satisfy how the revision was maintainable in view of the clear provision of the law that the remedy by way of appeal was available to the Government against the order passed by the Sub-Divisional Officer in exercise of his power delegated by the Collector. Therefore this revision must fail on this ground also. The only contention of the Government Advocate was that the damages resulting from the breach of the contract were ascertained by the Forest Department and as such this amount was recoverable under cl. 11 of the agreement by way of Public Demand under the Act. The reply given by the counsel for the respondent was that under the schedule to the Act only money payable to the Government or to a Department under or in pursuance of a written instrument or agreement is no doubt recoverable under the Public Demands Recovery Act. In this case what was sought to be recovered by the Government in the Forest Department was only the loss sustained by the Government as a result of the breach of the contract. This damage or loss to the Government has to be assessed and adjudicated upon by competent authority before it can be made recoverable. The question before me is whether the damages sustained by the Government as a result of the breach of the contract between the respondent and the Forest Department in the nature of a money payable to the Government under the schedule to the Act in its written memo, or not. In the first instance the copy of the agreement has not been placed on the record. At the time of the argument it was produced by the Officer incharge of the Forest Department for perusal. In the agreement itself no ascertained amount has been mentioned which is recoverable from the promisor in the event of the breach of the contract. A provision is however made that in case the Government sustained any loss the same would be recoverable. Thus to my mind there is no mention of any money which is payable to the Government or its Department under the agreement in the event of the breach of the contract. Sec. 73 of the Indian Contract Act no doubt provides that the party who suffers by the breach of the contract is entitled to receive by way of compensation for any loss or damage caused to him which naturally arose from such breach and the losses sustained are neither remote or indirect. This is a matter which is in dispute between the parties to the contract and no competect authority has so far decided the quantity of the damages to be recovered. It was open to the contracting parties to provide for a penal clause in the contract itself which in the event of the breach of the contract could be invoked and a stipulated sum of money made recoverable from one party by the other under sec. 74 of the Indian Contract Act. If such a penal amount was the reasonable compensation for the damages sustained by the party then its recovery would be permissible under the law, but if the penal amount provided in the contract is not a reasonable amount of liquidated damages, but in excess of it by way of interorrem, then the equity would prevent its recovery. In the present case no such stipulation was made in the agreement between the parties and thus there is no money payable in pursuance of an agreement to the Government and as such the amount cannot be recovered from the respondent under the P. D. R. Act. The only remedy for the petitioner in this case is to file a suit for damages against the respondent. In this connection I had the occasion to examine the case of Rijumal versus The State of Rajasthan reported in R. L. W. 1957 page 373 wherein the learned Chief Justice Wanchoo and Modi Justice had occasion to examine the essentials and foundations of the proceedings under the P. D. R. Act. They have held that there are 4 essentials under these proceedings and the first essential was that the demand should be one that is covered by the schedule of the Act. In the Rijumal's case the money was held to be payable to the Government in pursuance of a written instrument under item No. 6 of the schedule. This case differs from the one cited above that no amount has been mentioned in the instrument which is payable to the Government, hence the recovery of the amount is barred under the above Act. The revision petition of the petitioner is accordingly rejected. .;