033-SLLR-SLLR-1994-V2-THE-SURVEYORS-INSTITUTE-OF-SRI-LANDK-V.-THE-SURVEYOR-GENERAL-AND-ANOTHER.pdf
CA
Faleel v. Susil Moonesinghe and Others (Ismail, J.)
319
THE SURVEYORS’ INSTITUTE OF SRI LANKA
v.
THE SURVEYOR-GENERAL AND ANOTHER
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 60/94.
C.A. NO. 336/92.
AUGUST 31. SEPTEMBER 03 AND 14. 1994.
Certiorari and Prohibition – Field Circular No. 05/92 of 05.02.1992 – Surveyors'Ordinance, sections 2(1) (c), 4, 6, 7, 8, 9, 10, 11, 17 and 18.
The effect of section 18 of the Surveyors' Ordinance is clearly to confine thepersons exempted by section 6 from the requirement of having to pass theexamination, to persons mentioned in paragraph 9 of the Schedule who haveceased to hold office in the Survey Department. The Surveyor-General is notempowered to grant annual licences to Government surveyors to practise as landsurveyors in their private capacity.
The Surveyor-General Field Staff Circular No. 05/92 dated 05.02.92 calling forapplications from Surveyors attached to the Survey Department for the issue ofannual licences under the Surveyors Ordinance to practice as private surveyors
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is ultra vires and its implementation is in excess of the Surveyor-General’s powerto grant annual licences to land surveyors under the Ordinance. Certiorari will lieto quash the Circular and Prohibition to prohibit the issue of annual licences toGovernment surveyors.
APPLICATION for a writ of Certiorari to quash Circular No. 05/92 of 05.02.92 anda writ of Prohibition prohibiting the issue of annual licences to governmentsurveyors.
H. L. de Silva, PC. with W. P. Gunatilleke and Elmore Perera for petitioner.
K. G. Kamalasabayson, D.S.G. with P. G. Dep. S.S.C. for 1st and 2ndrespondents.
Faisz Musthapha, PC. with H. Vithanachchi for intervenient-respondent.
Cur. adv. vult.
October 05, 1994.
KULATUNGA, J.
The appellant (The Surveyors’ Institute of Sri Lanka) applied to theCourt of Appeal for writs of certiorari and prohibition in respect of theField Staff Circular No. 05/92 dated 05.02.92 issued by the 1strespondent (the Surveyor-General) calling for applications fromSurveyors attached to the Survey Department for the issue of annuallicences under the Surveyors' Ordinance (Cap. 108) to practise asprivate surveyors, subject, however, to certain limitations and theconditions set out in the said Circular, In other words, GovernmentSurveyors are being offered the right to engage in limited privatepractice. According to the circular, this offer is made pursuant to aCabinet decision.
The appellant is a body incorporated by Act No. 22 of 1982. Undersection 3 of the Act, private surveyors holding licences granted bythe Surveyor-General as well as government surveyors referred to inparagraph 9 of the Schedule to the Surveyors Ordinance are itsmembers. In terms of section 4, one of the objects of the appellantInstitute is “generally to protect and promote the interests, welfare,
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rights and privileges of the land surveying profession in Sri Lanka".The appellant contended that the decision contained in theimpugned Circular is contrary to iaw in that the 1st respondent has nopower under the Surveyors' Ordinance to issue annual licences toGovernment Surveyors to practise as land surveyors particularly inview of section 18 of the Ordinance. On that basis the petitionerprayed for a writ of certiorari to quash the said decision and a writ ofprohibition prohibiting the 1st respondent from issuing any suchlicences. The petitioner's application was dismissed by the Court ofAppeal. Hence this appeal.
The appeal to this Court was resisted by the 1st respondent andthe intervenient respondent, the latter being a Government Surveyorwho had applied for a licence in terms of the impugned Circular. Itwas submitted on their behalf that in terms of section 6 of theOrdinance read with paragraph 9 of the schedule thereto,Government Surveyors currently in service are eligible to apply forannual licences to practice as land surveyors in their private capacityand that section 18 relied upon by the appellant constitutes no baragainst the grant of such licences by the 1st respondent.
This Court is thus called upon to decide whether, notwithstandingthe decision of the Government to permit private practice toGovernment Surveyors, the 1st respondent is empowered to grantthem annual licences for that purpose in terms of section 4 of theOrdinance. Section 2(1), inter alia, provides that no person shallpractice as a Surveyor unless he is the holder of an annual licence topractice as land surveyor, granted by the Surveyor-General. Whetherthe 1st respondent is so empowered to grant annual licences toGovernment Surveyors to practise as land surveyors in their privatecapacity has to be determined by interpreting the relevant provisionsof the Surveyors’ Ordinance. I shall, now summarise those provisions,so far as they are applicable to the case before us.
Section 2(1) (c) prohibits any person practising as a land surveyorwithout the requisite licence. Section 4 empowers the Surveyor-
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General to grant annual licences to persons of good character whohave passed the prescribed examination in surveying. Section 6provides-
“persons possessing the qualifications mentioned in Schedule Ashall be entitled on production of evidence of good characterand on payment of the prescribed fee, to annual licences,without passing the examination”.
One class of persons so exempted from the examination is to befound in paragraph 9 of Schedule A; it refers to-
“Any person who has served in the Survey Department as
Surveyor-General, or
Deputy Surveyor-General, or
Assistant Surveyor-General, or
A Superintendent of Surveys, or
An Assistant Superintendent of Surveys, or
A Senior Survey Assistant, or
A First Grade Surveyor, or
A Second Grade Surveyor, or
A Third Grade Surveyor for a period of more than fifteen years,or
A Third Grade Surveyor for a period of more than ten years andpassed the junior examination of the Survey Department".
The reason for the exemption of the above persons is that underthe regulations made under S. 7 (Vide Subsidiary Legislation (Cap.108) Vol. II 1956) every person who wishes to obtain an annuallicence in surveying has to complete a course of studies conductedby the Surveyor-General and pass the prescribed examination. It isonly persons who have so qualified who are eligible for appointmentsin the Survey Department.
Section 8 of the Surveyors’ Ordinance provides for the power ofthe Surveyor-General to cancel or refuse renewal of a licence.
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Section 9 provides for cancellation or suspension of a licence by theDistrict Court on the ground of gross misconduct or incompetence orcarelessness of a Surveyor in the discharge of his duties, as aSurveyor, section 10 provides for inquiries by the Surveyor-Generalinto irregularities, errors and omissions in surveys etc,, section 11provides for the penalty for the offence of practising as a surveyorwithout a licence.
It is apparent that the provisions of sections 2-17 of the Ordinanceare essentially applicable to the licensing and regulation of privatesurveyors; and section 18 provides –
“Nothing hereinbefore contained shall apply to any landsurveyor for the time being in the service of the Ceylon SurveyDepartment…”
The Court of appeal held that a surveyor currently serving in theSurvey Department is entitled to obtain an annual licence for privatesurveying under section 4 read with section 6(1) of the Ordinance onthe basis that the words "any person who has served in the SurveyDepartment" in paragraph 9 of the Schedule may not be limited topersons who had previously served and ceased to hold office there.The Court was of the view that the expression “has served” caninclude a person who is in service at the time he makes anapplication for a licence.
Learned Deputy Solicitor-General for the respondents, defendingthe judgment of the Court of Appeal, argued that the object of section18 is to make the preceding sections inapplicable to land surveyorsin the Survey Department qua government Surveyors and that it doesnot have the effect of depriving them the right to an annual licence toengage in private practice as land surveyors. Learned President'sCounsel for the intervenient respondent also urged the same view.
Learned President's Counsel for the appellant argued that theCourt of Appeal based its judgment on the Schedule to theOrdinance reading it independently of section 6; that the Schedule is
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a part of the statute and hence integral to section 6 which precedessection 18. He submitted that the effect of section 18 is to excludepersons holding office in the Survey Department from the ambit ofsection 6. As such, the expression “has served" (though ambiguous)should be interpreted to refer to a person who has terminated hisservices. Counsel also submitted that the Surveyor-General is one ofthe persons referred to in paragraph 9 of the Schedule. Admittedly,he cannot grant a licence to himself. If so, the reference there is to aperson who has ceased to hold office. Hence, the same interpretationshould be given to the other categories referred to therein.
Learned D.S.G. submitted that the reference to the Surveyor-General in paragraph 9 of the schedule has to be confined to aperson who has ceased to hold that office since a wider interpretationwould lead to absurdity; but the other persons therein mentioned, canreasonably include persons in service at the time of making anapplication for a licence. Learned President’s Counsel for theappellant submitted that this submission is untenable; and that thelegislature contemplated only private individuals as being entitled tothe exemption provided by section 6 of the Ordinance read with theSchedule.
After giving consideration to the submissions of parties, I amsatisfied that the effect of section 18 is clearly to confine the personsexempted by section 6 from the requirement of having to pass theexamination to persons mentioned in paragraph 9 of the Schedulewho have ceased to hold office in the Survey Department. I agreethat the Court below has misdirected itself by interpreting theSchedule independently of section 6; in the result, it failed to considerthe impact of section 18 on section 6. As regards the appellant’ssubmission that the Surveyor-General holding office for the timebeing is clearly without power to grant a licence to himself in view ofthe anomaly which would result if he could do so, the Courtconsidered it irrelevant in ascertaining the intention of the legislature.This too is a misdirection. I
I hold that the Field Staff Circular No. 05/92 dated 05.02.92 isultra vires and its implementation is in excess of the 1st respondent’s
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power to grant annual licences to land surveyors under theOrdinance. In the result, I allow the appeal, set aside the judgment ofthe Court of Appeal and issue a writ of certiorari quashing the saidcircular. I also issue a writ of prohibition prohibiting the 1strespondent from issuing any licences under the said Circular. In allthe circumstances, I make no order as to costs.
G. P. S. OE SILVA, C.J. -1 agree.
RAMANATHAN, J. – I agree.
Writs of certiorari and prohibition issued.