1. The accused, two in number, have been convicted under Ss. 188 and 269 of the Indian Penal Code. The question is whether they disobeyed any lawful order promulgated by a public servant so as to cause danger to public health etc., by their disobedience. The Epidemic Diseases Act III of 1897, S. 3, says that any person disobeying any regulation or order made under that Act shall be deemed to have committed an offence punishable under S. 188 of the Indian Penal Code. Owing to this statutory provision, it is unnecessary for the prosecution to prove, in cases of disobedience to an order made under Act III of 1897, that the accused's disobedience was likely to cause danger, etc. The contention of the accused's Counsel in this case that in the absence of such proof, the conviction under S. 188, could not be supported is, therefore, untenable.
2. The really important question is whether the disobeyed order was a lawful order made under Act III of 1897. The Act is a very short one of four sections, of which the second section is the longest and most important.
3. Clause (1) of that section provides, (I quote only the portion relevant for this case), that the Governor-General-in-Council “may empower any person to take such measures” and that the Governor-General in Council may himself “prescribe such temporary regulations to be observed by the public or by any person or class of persons as he shall deem necessary to prevent the outbreak of” any dangerous epidemic disease “or the spread thereof.”
4. By clause 3 of S. 2, the Governor-General in Council may direct that all his powers may be exercised by a Local Government, with respect to the Local Government's territories. The Madras Government has been invested with such powers, that is, the Madras Government can “take measures”, can “empower any person to take measures” and cam “prescribe regulations to be observed by the public or by any person or class of persons” to put down plague, etc.
5. In the present case, the order disobeyed was the order of the Sub-Collector of Pollachi Division to the public of Udamalpet to vacate their houses, etc. The order was not filed as an exhibit in the case and the duty of the prosecution to prove all the facts necessary to bring home the offence to the accused was not discharged in this case. Of course, if the accused pleaded “guilty,” the Court could act upon it without evidence. But when the accused pleaded “not guilty”, the fact that he did not deny the passing of the order or did not contest its legal validity cannot absolve the prosecution from its duty of proving the order and its legal validity. On this simple ground, the convictions are liable to be set aside.
6. I had the order of the Sub-Collector produced before me during the arguments, in this petition case. I find that the Sub-Collector does not say that the Local Government empowered him to take any measures but it says that he made the evacuation order “under the powers conferred by the Collector.” The Collector can be empowered by the Local Government under the Act to “take measures,” but the Collector cannot be empowered under the Act to himself give “powers to others.” The regulations made under the Act by Government prescribe what acts should be observed by the public or by any person or class of persons and give powers to any person to take measures but such powers cannot be delegated by that person in its turn to others, unless such delegation ought to be necessarily implied from its nature of the measures to be taken under the granted powers. The Regulations made by the Local Government under the Act do not confine themselves to the Regulations “to be observed by the public etc.” but also contain provisions empowering certain persons to take certain measures and even certain penal clauses which do not properly fall under regulations to be observed by the public, etc. The Act (S. 2, Cl. 1) keeps these two powers of Government distinct, namely, (1) the power “to empower any person to take measures” and (2) the power to make regulations for the conduct of the public etc.
7. Rule 71 of the Local Government's Regulations, clause (5), seems to empower a Plague Officer (the Sub-Collector in this case comes within the meaning of that term “Plague Officer”) to direct the evacuation of a town when authorized by the Collector. The power “to take measures” may include the power to ask others to evacute their houses. A direction to the public to comply with that requisition falls, in my opinion, to be exercised under the power to make regulations to be observed by the public etc., that is, that direction should be made by the regulation passed by the Government.
8. In this case, the Sub-Collector did not get the authority of the Collector under R. 71(5) to require the public of Udumalpet to evacuate their houses but seems to have acted under the powers delegated to him in 1904 by the general order of the then Collector of Coimbatore passed under R. 104 of the Regulations. R. 104 is as follows:—“The Collector may, from time to time, assign the Plague Officers and Assistant Plague Officers jurisdiction over such local area as confer on the latter officers such powers as he may deem fit.” The Rule seems to be ultra vires of the Local Government. The Government itself can give powers under the Act to an officer or to officers to take measures but it cannot give powers under the Act to any person so as to enable the latter to himself give the said powers to others unless such powers by their very nature can be exercised only through agents. The Collector went even further in his order of 1904, in which he says that he “is pleased to delegate the powers detailed in the annexed Schedule” (including the power to order evacuation) “to all Plague Officers and Assistant Plague Officers” and not merely to appoint them as his sub-agents. The order does not say expressly that the officer to whom the Collector's powers are delegated should exercise them only within their jurisdiction as Revenue Officers or as public servants of any other department.)
9. The Collector had no power to delegate his own powers and the Local Government had no right to empower the Collector to delegate the powers which the Local Government gave to the Collector except in respect of performance of acts, which by their nature are or can be usually done only through agents and sub-agents. The Government can, by Regulations, empower any person “to take measures” for the suppression of plague and can prescribe temporary Regulations directing the public or any person or class of persons to observe such Regulations, that is the Local Government can itself order the public or any person or class of persons to evacuate their houses etc. Curiously enough, the Regulations do not directly require the public on the Collector's request to evacuate but this may be implied from the tenor of several rules. The phrase “to take measures” seems to mean the doing of disinfection work, the destruction of rats, and other similar measures (see Section 231 of the District Municipalities Act) and may include requisitions to be given to other persons to do certain acts such as evacuation but the direction to those other persons to obey the requisitions should be made by the Local Government under temporary Regulations. The Regulations to be observed by the public or a class of persons are to be temporary Regulations made by the Local Government, The Madras Regulations are not called “temporary.” I think that they ought to show in the beginning or the end up to what time, (say, till Government declares that the Madras Presidency to be free from plague), they are to be in force. In my opinion, the power “to take measures,” which power may be granted to any person by the Local Government, is a different thing, (though closely connected with the effective carrying out of the measeres taken under that power), from the Regulations or orders which have to be observed or obeyed by the public or a person or class of persons in respect of those measures. These latter orders to be obeyed by the public or a person or class of persons cannot, without great danger to the liberty of the subject, be left to be promulgated by any authority except the Local Government and hence the Act gave almost autocratic powers to the Local Government alone to issue temporary regulations or orders to be observed (that is obeyed) by the public or a person or class of persons, (orders to evacuate dwelling houses etc.), interfering very seriously with the rights of the public. The Collector, in this case, has delegated his right to take measures, i.e, calling upon the people to evacuate houses, to his Divisional Officer whoever the latter officer may happen to be from and after 1904. This seems to me to be illegal. The Divisional Officer as a Plague Officer can under rule 71(5) apply for authority to the Collector to ask people to evacuate and when so authorized, the power given by the Local Government to the Plague Officer by S. 71 to take measures will come into operation and give him the right to require evacuation of houses. But as I said already, the Sub-Collector did not get or apply for authority under R. 71(5) in the case before he passed the order to the public to evacuate houses and he acted under the delegation under R. 104 by a former Collector of the Collector's own powers. That rule is ultra vires, and the delegation under that rule is of no legal effect to confer any powers on the Sub-Divisional Officer. It cannot surely be said that the power to order evacuation of houses is a power of such a character that from its nature it could be conveniently exercised only through appointing agents to exercise that power by delegation as each occasion arises without any further reference to the principal on any particular occasion (see the analogy of Section 190 of the Indian Contract Act).
10. As regards the conviction under S. 269, Indian Penal Code, there was no proof let in by the prosecution that the accused were guilty of any unlawful or negligent act likely to spread the infection of any disease etc. Taking it that “act” includes illegal omission (S. 32, Indian Penal Code), if the order of the Divisional Officers was illegal, the omission to comply with it is not an illegal omission.
11. I, therefore, set aside the convictions and sentences and direct the fine, if levied, to be refunded to the 2nd accused.
S.N/R.K
12. Convictions set aside.