033-NLR-NLR-V-11-CUMBERLAND-v.-FERNANDO.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
CUMBERLAND v. FERNANDO.
C., Colombo, 339 (Special).
Surveyor, inquiry into conduct of—“ Aggrieved person"—Assistant
Government Agent—Ordinance No. 15 of 1889, s.. 8.
Where a licensed surveyor employed to define the boundaries ofa private land included within the boundaries of the said land pro-perty belonging to the Crown, and- where the Assistant Govern-ment Agent, in his official capacity, petitioned the District Courtto inqnire into the conduct of the surveyor under the provisionsof Ordinance No. 15 of 1889—
Held, that the Assistant Government Agent was an " aggrievedperson " within the meaning of section 8 of Ordinance No. 15 of1889, and was entitled to ask for an inquiry under the Ordinance.
Bavnujarhier v. Van Hooyan 1 followed.
A
PPEAL from an order of the District Judge cancelling theappellant’s license as a surveyor.
The facts sufficiently appear in the judgment of the Chief Justice.Hayley, for the appellant.
Walter Pereira, K.C., S.~G., for the Crown.
Cur. adv. vult.
April 16, 1908. Hutchinson, C.J.—
The appellant is a surveyor, and appeals from an order of theDistrict Court cancelling his license. The order was made after aninquiry under Ordinance No. 15 of 1889 upon the petition of theAssistant Government Agent of Kalutara asking "the Court to inquirewhether the appellant had been guilty of gross misconduct in thedischarge of his duties as a surveyor, or whether he had provedhimself incapable of discharging his duties as such with advantageto the public, in the following matter, viz., that in August, 1904,his services were requisitioned by one Sameiis to survey and definethe boundaries of a private land described in .title plan No. 95,065,and the surveyor defined its boundaries on the site of Crown landdescribed in lot No. 9,015£.
There were two inquiries. At the first the District Court orderedthe surveyor’s license, to be cancelled; on appeal the order was setaside, and a fresh inquiry ordered, Wood Renton J., with whomGrenier J. concurred, saying that the petition should show that thecomplainant is an “ aggrieved person ” in the sense that he has somesubstantial or official interest in the subject-matter of his complaint,and that the petition should be amended in that wav. There wasprobably another reason for setting aside the order of the DistrictCourt, but it does not appear on the record. At the second inquiry
i (1905) 8 N. L. /?. 298
1908.
April 16.
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1908. the petition was amended by the addition of an allegation that theApril 16. petitioner was, as Assistant Government Agent, bound to protectHutchinson the interests of the Crown lands in the District of Kalutara, andC,J' officially entrusted with the duty of preventing encroachments onCrown lands; and the District Court, after taking evidence, heldthat the appellant had proved himself incapable of discharging hisduties as surveyor with advantage to the public.
The appellant objected that the petitioner was not shown to bean ‘ ‘ aggrieved person within the meaning of section 8 of theOrdinance No. 15 of 1889.. The District Court over-ruled theobjection I and I think that we are bound by the decision of thisCourt in Baumgartner v. Van Rooyen1 to hold that .the objection wasrightly over-ruled.
Upon the facts it is urged for the appellant that the evidence isnot conclusive that he made a mistake, but rather raises a suspicionthat he actually surveyed and marked out the right plot No. 95,065,and that Samelis afterwards fraudulently took possession of theCrown land, and, when detected, threw the blame on the surveyor.Whether the surveyor really marked out the Crown land dependsmainly on the evidence of Samelis and two men, who deposed thatthey were present at the survey. Samelis said that having taken alease of a piece of land from E. C. Eonseka for the purpose of diggingplumbago, he got it surveyed by the surveyor, and was presentwhen the surveyor cut trenches and fixed pegs and defined bound-aries; that he then started digging on the.land, but was ordered bythe Mudaliyar to stop, and was satisfied that it was Crown land;that he did not know the land before; that the surveyor put in pegs,and the trenches were cut while he was surveying. Baron Appu-hamy gave evidence that he worked under Samelis; that he waspresent at the survey; that “ trenches were cut on all sides andhouses built for us ” (this clearly cannot refer to the day of thesurvey); that the surveyor marked out the land by cutting the treeson the boundaries, “ that is we cut them as he went on surveying.”he looked through theodolite, “ put pegs down, and told us to cut thetrenches according to the pegs he had put down.” Pedrick Appugave evidence that he was present when the surveyor surveyed theland on which Samelis afterwards dug plumbago; that as the landwas surveyed the trenches were cut; that they started cutting theboundaries from the rock where the surveyor kept his theodolite(which is incredible); and he said ” It was I who cut the trenches;””1 do not remember who cut the trenches;” ” the respondent'(surveyor) stayed there till the boundaries were cut; he blazed thetrees; he did not fix any pegs in the ground.” Neither of thesetwo men gave evidence at the first inquiry, and the applicant, givingevidence in his own defence, said that neither of them was present at' the survey, but that his own coolies (who did not give evidence) and
’ (1905) 8 .V. L. R. 298.
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Sarnelis were with him; that no trenches were dug while he was on 1908.the land; that the land which he surveyed was No. 95,605; that he April 10.started to survey from the rocks shown in P 2 (a plan from tbe HutchinsonSurveyor-General’s Office furnished to him by Sarnelis), and took a C J-traverse as shown in his book, D 2 (which he produced); he thenplotted it and made a sketch, D 3, from D 2, which he compared witha tracing from P 2, and found that they corresponded; and thenwent back to the land and defined the boundaries and put in six pegsat the six corners. The shape of No. 95,605 is quite different fromthat of No. 9.015J, but the area is almost exactly the same. He saidthat he saw no pits on the land that he surveyed; but it was provedthat No. 95,605 was “ riddled with old plumbago pits. ”
The evidence of Baron Appuhamy and Pedriek Appu, especiallythat of the latter, is not altogether satisfactory. But after readingall the evidence carefully I am of opinion that it quite justifies theconclusion at which the District Court arrived. Nor do I thinkthat the cancellation of the appellant's license was too severe apenalty. The conduct of the surveyor in this matter showed eithergreat inoompetency or fraud.
I would dismiss the appeal with costs.
Appeal dismissed.
Wendt J.—I agree.