1. In this case the defendant has, acting under the provisions of the Epidemic Diseases Act of 1897, destroyed the property of the plaintiff. I need to now consider the facts of the case, but three points of law have been raised before me.
2. In the first place, is the defendant protected under Section 4 of the Act, which provides in the ordinary form that, 'no suit or other legal proceeding shall lie against any person for anything done, or in good faith intended to be done, under this Act.' The defendant is the Chairman of the Calcutta Corporation, and consequently under the rules framed under the Act, he is the Magistrate, who is to enforce them. See Rule 2, Plague Regulation A, dated 8th October 1900, in the Calcutta Gazette, 17th October 1900, page 1144.
3. It is plain that the provision in Section 4 of the Act is intended in the first place to protect a person in the defendant's position against liability for irregularities that may occur in the proper performance of his duties under the Act, e.g., the demolition of a but under Rule 14, though disinfection could in fact have been satisfactorily effected otherwise. On any reasonable construction of the Act he is also entitled to a similar protection against any omission in the performance of such a duty, e.g., an omission to take steps for the safe-guarding of property in the hut, or the protection, of the public, which it would be his duty to take, if he were proceeding in a more leisurely way.
4. But after he has carried out his duty under Rule 14, another quite distinct duty is thrown on him, namely, to pay adequate compensation under Rule 14; and I cannot suppose the protection afforded to him by Section 4 of the Act can extend to an omission to perform this duty. The case of Jolliffe v. Wallasey Local Board (1873) L.R. 9 C.P. 162 has been quoted to show that the defendant is not liable to a suit for omission of any duty cast on him under the Act. I do not, however, consider that this is what it decides. What it does decide is that, where a certain public duty or act is to be performed in a certain way, an omission to do that is an act done or intended to be done' within the meaning of a clause requiring notice of action, and I consider that it has consequently no application to the present case. I hold therefore that section 4 gives the defendant no ground of defence that that section applies. Non-payment is not an omission within Section 4 of the Act.
5. The second question is whether the defendant is personally liable. To my mind it is clear that that duty of paying adequate compensation (and the only question here is whether the compensation he has offered to pay is adequate) is cast upon him. The words are he 'shall' pay; and if he does not pay, I do not see how anybody, but he, can be liable. It is true that the expenses may be recovered from the Municipal funds, but the man, who has suffered damages, has to look to the defendant for compensation, and it is for the defendant to pay it.
6. I cannot imagine that any action can lie, as it is suggested it may, against the Chairman or Treasurer of the Calcutta Corporation. Under Section 21 of the Regulations, the only liability cast upon them is that all expenses which are to be incurred by the Magistrate are to be met out of their fund; but their liability is to the Magistrate, and there is no privity between them and the plaintiff. It is proved that Mr. Greer is a Magistrate acting in his administrative capacity under the Secretary of State, but I know of no principle by which this can exonerate Mr. Greer from liability. I hold therefore that Mr. Greer is personally liable.
7. The last point is whether Mr. Greer's decision as to the adequacy of the compensation offered is final. There are many instances in Indian as in other legislation where power is given to persons, who would not otherwise have it, to determine finally what compensation is to be paid to persons, who have suffered damage from the carrying out of the provisions of a particular law. It is a well-known common form of legislation. Here no such power is conferred.
8. There is no Act or Regulation which says that Mr. Greer shall be what is really a judge in his own cause, and in the absence of such legislation, it is plain that the acts of an administrative officer are properly called in question in a Court of law. Therefore this action lies against him.