CUMBERLAND v. FERNANDO.

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,

and Mr.  Justice Wendt.

 

CUMBERLAND v. FERNANDO.

 

D.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 of a private land included within the boundaries of the said land property belonging to the Crown, and where the Assistant Government Agent, in his official capacity, petitioned the District Court to inquire into the conduct of the surveyor under the provisions of Ordinance No. 15 of 1889-

 

Held, that the Assistant Government Agent was an person " within the meaning of section 8 of Ordinance No. 15 of 1889, and was entitled to ask for an inquiry under the Ordinance.
 

Baumgartner  v.   Van Rooyan 1[1 (1905) 8 N.  L. R. 298.] followed.

 

APPEAL   from   an   order   of   the   District   Judge   cancelling   the appellant'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 the District Court cancelling his license. The order was made after an inquiry under Ordinance No. 15 of 1889 upon the petition of the Assistant Government Agent of Kalutara asking the Court to inquire whether the appellant had been guilty of gross misconduct in the discharge of his duties as a surveyor, or whether he had proved himself incapable of discharging his duties as such with advantage to the public, in the following matter, viz., that in August, 1904, his services were requisitioned by one Sarnelis to survey and define the boundaries of a private land described in title plan No. 95,065, and the surveyor defined its boundaries on the site of Crown land described in lot No. 9,0151/4.
 

There were two inquiries. At the first the District Court ordered the surveyor's license to be cancelled; on appeal the order was set aside, and a fresh inquiry ordered, Wood Renton J., with whom Grenier J. concurred, saying that the petition should show that the complainant is an " aggrieved person " in the sense that he has some substantial or official interest in the subject-matter of his complaint, and that the petition should be amended in that way. There was probably another reason for setting aside the order of the District Court, but it does not appear on the record.    At the second inquiry 

 

the petition was amended by the addition of an allegation that the  petitioner was,  as Assistant  Government Agent,   bound to protect  the  interests of the Crown lands in  the  District of Kalutara,   and officially entrusted with the  duty of preventing encroachments on Crown  lands;   and  the  District  Court,   after  taking  evidence,   held that the appellant had proved himself incapable of discharging his duties as surveyor with advantage to the public.
 

 The appellant objected that the petitioner was not shown to be an " aggrieved person " within the meaning of section 8 of the Ordinance No. 15 of 1889, The District Court over-ruled the objection! and I think that we are bound by the decision of this Court in Baumgartner v. Van Rooyen 1[1 (1905) 8 N.  L. R. 298.] to hold that the objection was rightly over-ruled.
 

Upon the facts it is urged for the appellant that the evidence is not conclusive that he made a mistake, but rather raises a suspicion that he actually surveyed and marked out the right plot No. 95,065, and that Sarnelis afterwards fraudulently took possession of the Crown land, and, when detected, threw the blame on the surveyor. Whether the surveyor really marked out the Crown land depends mainly on the evidence of Sarnelis and two men, who deposed that they were present at the survey.

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