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cattle roamed in search of a sparse pasturage, whilst the fuel supplies of the community disappeared.
In the case of un-united villages no right to the waste was ever recognised. The old Rajahs claimed all areas which were not actually brought under cultivation, but any person who required waste land for the purposes of cultivation could obtain it without difficulty on agreeing to pay the assessment in force. The rest of the waste land had always been recognised as the property of the rulers, and from them was inherited by the British Government by right of conquest. In some cases the cultivators had acquired prescriptive rights of user.
It was rights of this nature which were to prove, and are still proving in many instances, such a source of trouble and difficulty to the Forest Department, and more especially to the framers of working plans for forests which have now been under systematic treatment for several decades. For these prescriptive (and usually wasteful) rights of user are often incompatible with the scientific and economic working of a forest.
In its broad aspects it will be obvious that when the united villages were numerous and therefore close together, as in the plains of the North-West Provinces for instance, and in parts of Bengal, the whole of the forest land was rightly claimed as the property of the people, with after results which will be dealt with in the development of this history. For the forest which once clothed them has disappeared, leaving howling wastes, the reafforestation of which is proving a formidable task to the Department.
Earlier parts of this history have shown that a considerable period of years elapsed before it was realised that definite action would have to be taken if the existing forests were to be preserved from the ruin and extinction to which a considerable area in the country had been subjected from the beginning of the century. As preceding chapters will have clearly indicated, it was due to the insistance of successive Secretaries of State for India on the necessity of introducing a proper conservation of the forests that this matter was given its rightful place in the administration of the country. It is a remarkable fact, and one meriting full recognition, that in this particular respect and one so vital to a great agricultural country like India the driving force should have come from the responsible authority at home. Two instances are worth quoting illustrative of the opinions of men in high office on this branch of administration. Soon after Brandis took up his work as adviser to the Supreme
Government in forestry matters he became aware that the new beginnings of forest administration were in a perilous position. He wrote, in an address some years after his retirement : When Sir John (afterwards Lord) Lawrence landed at Calcutta in January, 1864, as Governor-General he had determined to stamp out this new-fangled scheme of forest administration, which would weaken the position of the Chief Civil Officer of the district by taking away from him the charge of the forests. It was only through the fortunate accident that Sir Richard Strachey, at the time Secretary to the Government of India in the Public Works Department, who had some time previously taken charge of the forest business, gradually gained influence over the Governor-General to such an extent that actually in Sir John Lawrence's reign the forest establishments under the Government of India were placed on a regular organisation." Perhaps Brandis is not quite correct in awarding all the praise to Strachey, for the Secretary of State (vide, Despatch of 1862, I, p. 530) had taken up too strong an attitude in this matter for a retrograde policy of a Governor-General to have had any chance of success. But Sir J. Lawrence's attitude, the attitude of the bulk of the civilians at this time, of whom he himself was one, is typical of the position which the young Department had to face. As will become fully apparent later on, the manner in which it was faced reflects the greatest credit on both the Services. For it may be remarked for the benefit of those unacquainted with the conditions of Indian Service that the officers of a district, often comprising a small community of three to five, must pass much of the year in constant contact, both officially and privately, their social recreations being naturally restricted. That these first trying years should have been followed by a mutual recognition and admiration of the work being done by each appears worthy of record; for by no other means could the present efficient forest organisation in India have been
. The other instance alluded to above comes from that great soldier the late Field-Marshal Lord Roberts, V.C. Although enunciated later than the period here dealt with (in his book, Forty-one Years in India, Vol. I, pp. 441, 442), the opinions expressed in the quotation to be given were formed during the present period. Roberts wrote: Amongst the causes which have produced discontent of later years I would mention our forest laws and sanitary regulations, our legislation and
fiscal systems-measures so necessary that no one interested in the prosperity of India could cavil at their introduction, but which are so absolutely foreign to native ideas that it is essential they should be applied with the utmost gentleness and circumspection. ... The proceedings and regulations of the Forest Department, desirable as they may be from a financial and agricultural point of view, have provoked very great irritation in many parts of India. People who have been accustomed from time immemorial to pick up sticks and graze their cattle on forest lands cannot understand why they should now be forbidden to do so, nor can they realize the necessity for preserving the trees from the chance of being destroyed by fire, a risk to which they were frequently exposed from the native custom of making use of their shelter while cooking, and of burning the undergrowth to enrich the grazing.”
As has been said, a considerable period elapsed before the recognition of the importance and necessity of conserving the forests came about. But even with this recognition it was not at first appreciated that special legislation would have to precede the settlement of the forests and their constitution into reserves. In some provinces, in the Madras Presidency for instance, the recognition came very late owing to the non possumus attitude taken up in this matter by the Board of Revenue.
Legislation had then to precede settlement, and it will therefore be necessary to consider the course of forest legislation during the period now being dealt with. The Department was very fortunate in having the services of Mr. B. H. BadenPowell, a member of the Indian Civil Service, who was attached for a considerable number of years, becoming Conservator of Forests in the Punjab and officiating as Inspector-General of Forests. Mr. Baden-Powell gave great assistance in placing forest legislation on a sound basis.
FOREST LAWS The drafting of proper forest laws for the different provinces was considered between 1869 and 1878, with the exception of Madras. The first question which came up for settlement was to what extent the long-continued right of user, i.e. the free collection of small produce such as fuel, grass, bamboos, grazing and shifting cultivation in the waste lands, should be regarded as constituting a prescriptive right. It was
deliberately settled that the customary user of the forest under British rule must be held to constitute a prescriptive right. On the other hand, it was acknowledged that Government, as the guardian of all public interests, must insist on the regulation of these rights so as to render possible a good management of the reserved forests in the interests of the country.
It was held that the growth of forest rights in India had been analogous to the growth of similar rights of user in Europe, and consequently that the legal provisions for regulating them or, in case of need, for extinguishing them by means of suitable compensation, must be analogous to the forest laws of Europe. In some cases, for instance, rights of user had been acquired by grant or sanad, and in others the officers in charge of the earlier settlements had given up the right of the soil to the villagers, and reserved to the State only the trees growing on the land. It became necessary, therefore, to definitely distinguish between forests in which the right of the State was still absolute; forests which were the property of the State but which were burdened with legal rights, prescriptive or granted ; and forests which were the property of individuals or communities, but in which the State had rights over all or certain kinds of growing trees, and then to provide for a legal settlement on these points.
It has been shown in the preceding part (p. 8) that the first Indian Forest Act (Act VII) was framed in 1865. Within a few years the provisions of this Act were found to be insufficient in some cases for application to certain provinces and a new Act was drafted by Brandis in 1868.
The earlier forest laws which were passed are illustrative of the great difficulties which had to be overcome before a comprehensive and practical measure was devised for a legal definition and separation of rights in forest property.
The first beginnings in this direction, detailed in Volume I, were in the form of local rules which were promulgated in several provinces. It was considered at the time that such rules, although they had not the force of law, would prove sufficient. Both Civil Officers who had the management of forests and Forest Officers were able in time to show that this contention was fallacious. By the end of the nineteenth century the only set of rules which had not been repealed were the Hazara Rules which, based on earlier ones (I, p. 275), were issued in 1875, recast in 1878, and finally amended in 1893. These rules provided for the creation of State forests under the Land Revenue Settlement and were therefore unobjectionable.
Under the first Indian Forest Act (VII), framed in 1865, a large number of local rules were promulgated (vide, Chap. I).
The only rules under this Act which fall into this period were those of Berar, Coorg and Bengal, all promulgated in 1871.
It was soon discovered that the 1865 Act did not give validity to certain rules relating to forests in British Burma, and Act VII of 1869 was passed for this purpose. This latter Act was repealed by Act XIII of 1873, known as “The Burma Timber Act.”
Act VII of 1865 proved seriously defective for certain portions of the forests of British India to which it applied. A revised Bill and a Memorandum explaining the necessity for new legislation were submitted to the Government of India by Brandis in 1868. The Local Governments were asked to express their opinions on the draft Bill, which was then redrafted and was again considered by the Government of India in 1871. At a Forest Conference held at Allahabad in 1873-4, the defects of Act VII of 1865 were discussed in detail. The Honourable Mr. Hope clearly enunciated the chief deficiencies of the Bill in the Viceregal Council on 6th March, 1878, as follows :
“ It drew no distinction between the forests which required to be closely reserved, even at the cost of more or less interference with private rights, and those which merely needed general control to prevent improvident working. It also provided no procedure for enquiring into and settling the rights which it so vaguely saved, and gave no powers for regulating the exercise of such rights without appropriating them. It obliged you, in short, either to take entirely or to let alone entirely. On control over private forests in the general interests of the community, it was absolutely silent. For duties on timber, even those actually levied, it gave no authority. Protection for Government forests, so interlaced with private ones as to be in chronic danger of plunder, there was none. In various minor points also it was deficient.
This clear exposition of the inadequacy of the Act to achieve the objects aimed at sealed its fate.
A new Act (Act VII of 1878) was passed and remained in force during the period. This Act extended to all the provinces of British India, with the exception of Madras, Coorg, Burma,