The Surveyor General V. Zylva

Present: Mr. Justice Wood Renton and Mr. Justice Grenier.

THE SURVEYOR-GENERAL v. ZYLVA.

D. C, Kandy, 1/15 of 1889.

Surveyor-Misconduct-Fraud-Work containing grave errors-Presumption as to plans and surveys-Treatises by experts-Ordinance No. 15 of 1889, s. 8-Evidence Ordinance (No. 14of 1895), ss. 60 and 83.

A surveyor, although he may not be guilty of fraudulent misconduct, is liable to have his license cancelled under the provisions of section 8 of Ordinance No. 16 of 1889, if it be shown that his work contains such errors as prove him incapable of discharging his duties with advantage to the public.

A party seeking to contradict viva voce expert testimony by the opinions of a writer of a treatise must either call the author or satisfactorily account for his absence within the meaning of section 60 of the Evidence Ordinance (No, 14 of 1895).

The presumption created by section 83 of the Evidence Ordinance (No. 14 of 1895) in favour of plans and surveys purporting to be signed by or on behalf of the Surveyor-General, extends to everything necessary to be done in order to make the survey or plan a faithful drawing and measurement of the lands surveyed.

APPEAL by the defendant from an order of the District Judge (J. H. Templer, Esq. ) directing that his license as a surveyor be cancelled under the provisions of section 8 of Ordinance No. 15 of 1889.

The facts fully appear in the judgments.

H. J. C. Pereira (with him Hon. Mr. Kanagasabai), for the defendant, appellant.

W. Pereira, K. C., S. G., for the petitioner, respondent.

Cur. adv. vult.

June 16, 1908. Wood Renton J. -

The appellant, Mr. de Zylva, is a licensed surveyor. The respondent, the Surveyor-General, took proceedings against him in the District Court of Kandy, under section 8 of Ordinance No. 15 of 1889, claiming cancellation of his license on the grounds that he (1) had proved himself incapable of discharging his duties with advantage to the public; and (2) had been guilty of gross misconduct as a surveyor. The learned District Judge held that both those grounds of cancellation had been established against Mr. de Zylva, and directed the cancellation of his license accordingly. Against that order the present appeal is brought.

In May, 1905, Mr. de Zylva was employed by Mr. P. D. G. Clarke, Manager of Nivitigala Estate, to survey certain lands in the villages of Howpe and Horatinella. Mr. Clarke was negotiating for the sale of those lands to the Ceylon Tea Plantations Company, and the survey was necessary for the purpose of obtaining a certificate of quiet possession from Government. It does not clearly result from the evidence that Mr. de Zylva was aware of this fact at the time when the survey was made. The survey, when completed, was, however, submitted to Government, and ultimately the Surveyor-General instituted these proceedings, on the strength of its alleged inaccurate and worthless character, for the cancellation of Mr. de Zylva's license. It is admitted that Mr. de Zylva's survey and plan showed the extent of the lands in question to be 1, 434 acres 10 perches; whereas, according to the Government survey and plan, the true extent is only 1, 341 acres 17 perches. The Surveyor-General, in his petition, and in the evidence adduced at the inquiry, attacked Mr. de Zylva's methods of working in detail. But the main issues in the case are whether, in point of fact, Mr. de Zylva, in calculating an area of 1, 300 or 1, 400 acres, was wrong to an extent of nearly 93 acres, and, in the second place, whether an error of that description comes under one or other or both of the two grounds of cancellation laid down in section 8 of Ordinance No. 15 of 1889.

If the surveys and plans of the Surveyor-General are correct, the error was made. Section 83 of the Evidence Ordinance requires the court to presume the accuracy of such surveys and plans if they purport, as those in issue in the present case do, to

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