Forest law : a course of lectures on the principles of civil and criminal law and on the law of the forest (chiefly based on the laws in force in British India)

Front matter

ad at Gee OS eae a ag re =r. (2 ? .« Be dat ; = rs

M ot SCE eo et LEN Re Lt A Rs Ri ae ek a te _—

Preaek oS natin

Preface

a Vee

A FEW words are necessary to explain that the present work is intended to replace my “ Manual of Forest Jurisprudence,” published for the Government of India in 1882, and now out of print. Ten years have moreover passed away, and consequently the work needed to be brought up to date, to say nothing of its receiving improvements in arrangement and matter. I have decided to omit the sketch of Indian Civil Procedure, and the Stamp and Registration Laws. In its present form, it is hoped that Forest Officers (in India especially) will find the work more easy to refer to than its predecessor. I have only to add that these Lectures are not published with any official amprimatur whatever.

OXFORD, 1893.

vy 9 7 > fe sist ine ey rar t Soa

(tA isthe Be Lay zi salt § W3“1 at ye ona ii

- eT ae y icing at it ’ , iN 7

_ ABBREVIATIONS.

The following works frequently quoted are referred to by short titles to save space :—

QUOTED AS Ang.-Ind. Codes

Code Irorestier

Curasson

Cooke .

Dalloz et Meaume

Danckelmann Uding Ganghofer Grabner~ ‘Kanara Case’ ;

The Manwood

Markby

Meaume :

. Des droits d’usage dans les Foréts.

FULL TITLE,

. The Anglo-Indian Codes, 2 vols., edited by Whitley

Stokes, D.C.L. (2 vols., with a series of supplements). Oxford: Clarendon Press, 1887.

. Code Forestier, avec exposé des motifs, sous la direction de M. Le Baron F’. de Langlade. Paris: Ch. Béchet, 1827.

And in a pocket volume—‘‘ Code de la Législation Forestiére.”’ A. Puton. Paris: J. Rothschild, 1883.

. Le Code Forestier, conféré et mis en rapport avec la

Législation, &c., 2 vols. Paris, 1828.

. Cooke’s Wingrove on Enclosures, 4th ed. London,

1864. (No later edition has appeared.)

. Articles, ‘‘ Usage” —‘‘ Usage Forestier,” reprinted

(Nancy, 1861) from the Répertoire de Législation.

. Die Ablésung und Regelung der Waldgrundgerechtigkeiten. Dr. Jur. B. Danckelmann (2 vols., with a vol. of Tables). Berlin: J. Sprenger, 1888.

Nordlingen, 1889. (The revised law of 1879.)

3rd ed.

Bhaskarappa versus the Collector of Kanara; Indian Law Reports, Bombay series, Vol. III., pp. 452-785.

. A Treatise of the Laws of the Forest, &c., collected as well out of the Common Laws and Statutes of , this Land; as also out of sundry learned ancient Authors and out of the Assises of Pickering and Lancaster (first published about 1598) 3rd ed., London, 1665.

. (Sir W.), Elements of Law. Clarendon Press: Oxford,

. (Commentary on the Code. Tit. III., sec. 8.) 2 vols. Paris: A. Durand, 1851.

Vill QUOTED AS Olshausen Pfeil Puton Qvenzel Roth von Berg Williams

ABBREVIATIONS.

FULL TITLE.

Vorlesungen, 2 vols. Berlin, 1889. (Text book of the Eberswalde Forest School.)

Berlin, 1854.

. Manuel de Législation Forestiére (Paris: A. Coin,

1876). (Manual of the Nancy Forest School.)

&c., with Supplement. Dresden (undated).

Ganghofer.)

. Die Staats-Forstwirthschaftslehre. Leipzig, 1850. . (Joshua, Q.C.) Rights of Common and other Prescriptive Rights. London, 1880.

ANALYTICAL TABLE OF CONTENTS.

Part I. Elementary Notions Of Civil Law

LECTURE I.

PAGE INTRODUCTORY—THE StTupy OF LAW IN RELATION TO [FOREST EDUCATION . : : A i pA : ; 7 . 3 I—16

Forests regarded as estates—how this separation of estates comes about—Forest officers as managers need to know something about the rights and obligations which arise from the legal existence of the estate, 7.c. of the relation of the ‘‘owner” to the forest itself, and to other persons who are right-holders, and to contractors and employés and the public—The basis of law and what it is concerned with—‘‘ Persons”? related to ‘‘ Things,’’—‘‘ Persons”? related in a variety of ways to other ‘‘ Persons.” Irom this variety arise several branches or departments of law—Constitutional law—Public law— Private (Civil) law—Private law deals with various kinds of individual relations—rights by birth and from status—tfrom family connection—from transactions, events, and voluntary acts.

How we are to proceed in our study, in order to make it as limited and as useful as possible :— . .

Conspectus of Scheme (Part I.) . : : : ; : ; ; ¢ hae

Explained—It gives us the preliminary information we need, about Rights and obligations in general—About Persons and about Things.

| Conspectus of Scheme (Part II.) . , ; . : i ° : SOR TG Explained—It follows a convenient classification of rights—We only deal with some of the rights.

LECTURE II.

OF RIGHTS AND OBLIGATIONS; OF “THINGS” AND OF “ PERSONS”’ IN GENERAL ‘ . . : : ; . , : : 17—37

Legal right, what it means. How rights are recognized by law—

Remarks on the kinds of laws (Statutes or Acts—Common-law— x TABLE OF CONTENTS.

PAGE

Custom)—Rules made under authority of Acts—Rules made by executive authority, their validity.— How rights arise out of voluntary dealings, and out of events—Difference between “act” and “event”—Legal act and its requisites—Effect of events, and lapse of time—The protection of rights and enforcement of obligations—Preventive action ; injunction ; specific performance ordered ; remedial action—Right to bring a suit or action at law—Damages— Suits against Government, or public officers.

General ideas about Persons—Natural persons may be normal or abnormal—Artificial, moral, or juristic, persons ; Corporations, how distinct from mere joint owners, &c.

General ideas about Things—Corporeal and incorporeal ; moveable and immoveable, &c.

LECTURE III.

PRINCIPLES OF THE LAW OF PERSONS AND THINGS (PRIVATE CIVIL LAW) e e . . . . 44 . . e . e 38—48

(A) The parties concerned — Person conditionally concerned— Responsibility for servants’ act—Change of parties by assignment, death, &c. (B) The substance or content of the right—In case it is to do something or have something ; in case it is an abstinence from something. (Cc) How the right arises. I. CONTRACT. Essentials of a valid contract—Proposal—Acceptance—Acting by agent : impossibility of thing agreed on; when it is immoral or illegal—Consideration—General list of forms of contract.

LECTURE IV.

PRINCIPLES OF THE LAW OF PERSONS AND THINGS (PRIVATE CIVIL LAW) (continued) . 4 3 ; : 7 “ ‘ f ie BAG

Obligations may arise out of events, &c., where there is no contract— II. Obligations out of Tort (or Civil wrong)—How the obligation is operative; performance in a certain way, time, &c. How the obli-

‘gation ceases—When completely performed : tender—effect of new agreement or alteration—‘ Condition subsequent’ ; set-off ; release ;

-non-performance—Thing becoming impossible—Operation of law— Lapse of time.

LECTURE V.

RIGHTS OF PERSONS IN AND OVER THINGS . . a a 4 57—76

(A) Possession; its legal nature and forms; what things are capable of it; its loss. (B) Ownership and Property—-How acquired ;

TABLE OF CONTENTS. X1

PAGE Prescription—Accession—Rights of chase and fishery—Transfer— Nature and features of ownership ; Restrictions on ownership for the public good, LECTURE VI.

RIGHTS OF PERSONS IN AND OVER THINGS (continued). (c) RIGHTS BELONGING TO ONE PARTY EXISTING OVER THE PROPERTY OF ANOTHER . : : . : , ~ t7—88 General nature of such rights—Long leases ; Mortgage ; Pledge or pawn; Pre-emption. Rights of user; easements; servitudes. Use of term ‘easement’ in England and in India; easements of necessity —‘ Servient’ estate—Real and Personal easements—the‘ Dominant’ estate—“ Appendant ” and “ Appurtenant ”—Forest rights not always ‘real’ in India—Easements are incorporeal Things ;—discontinuous easements ; effect of ‘intermission’ and of allowing an ‘interruption’;—no easement to do an unlawful or mischievous thing ;—must be of some benefit ;--not temporary but permanent ;— (continuérxg and continuous distinguished) ;—indivisible—Origin of easements—-Loss or extinction.

BA Dochht CRIMINAL LAW.

Conspectus of Substantive Criminal Law. 1 ew ee 8] LECTURE Vil.

GENERAL VIEW OF THE LAW OF CRIMES . : : ° » 91—107

The Indian Penal Code referred to as a standard—General, special, and local law—Definition of terms—Acts (and omissions) which constitute offences. General exceptions (which take acts out of the category of offences)—Acts authorized or required by law ; accident and misfortune ; acts by child, lunatic, &c.; act done with consent ; acts for benefit of person ; act in emergency to save life or prevent greater harm; acts under compulsion—acts of very trifling or petty character—act in defence of self (or another person) —i.e. both person and property.

X11 TABLE OF CONTENTS.

LECTURE VIII.

PAGE

THE CLASSIFICATION AND DESCRIPTION OF OFFENCES 5, OS—ITT

Against the State—Against Public Justice and the authority of Public Servants; and by Public Servants against their duty— Affecting the Human Body ;—Murder ;— Culpable homicide—Other offences—Hurt ; simple and grievous—Assault—Criminal force.

LECTURE IX.

THE CLASSIFICATION AND DESCRIPTION} OF OFFENCES (continucd) 118—

Offences against Property; theft; robbery ; extortion; aggravated forms ; ‘‘dacoity”’ ; criminal misappropriation ; criminal breach of trust; receiving stolen property—Mischief—Criminal Trespass— Offences relating to documents, and to Property and Trade Marks— Criminal breach of Contract—Defamation—Insult and intimidation.

LECTURE X.,

ABETMENT—ATTEMPTS—LEGAL PUNISHMENT, CONCLUSION 6 phe

Abetment in general; what constitutes—Special cases; difference in intention or in the result produced.—Attempts to commit offences how dealt with. Not applicable to Forest. or other Special Law offences—Punishment; death, &c. ; imprisonment ; fine; whipping— Some special incidents of punishment ; second conviction—Limit of time for prosecution—Concluding remarks on prosecutions,

(Conspectus af Criminal Procedure Law) . J : : ; ;

LECTURE XI.

CRIMINAL PROCEDURE LAW , : ; a : : 4 . 140—

Introductory remarks — terms used—Constitution and Powers of Criminal Courts—Justices of the Peace—Why are there grades of Courts and powers ?—Judicial and exccutive powers.—Competence as regards extent of sentence—Hxecutive powers—General rules ;—aid to Magistrate—Arrest and its incidents—Arrest without warrant by police ; by any person. Classification of cases; bailable and non-bailable, cognizable and non-cognizable ; “Warrant case ;” “Summons case” —Execution of warrants and service of summons—Search warrant,

TABLE OF CONTENTS. xiil

PAGE

LECTURE XII.

CRIMINAL PROCEDURE (continucd) ? ‘ ; ‘ F » 158—171

The Prevention of offences—investigation by the Police-—tTrials; in what place held-—Ilow they are set in motion—PVolice cases—Complaint to Magistrate—Formal enquiry for committal to High Court or Sessions—The “charge”—Formal trial by Magistrate himself (Warrant case)—Trial of ‘‘Summons case”--Summary trial—Incidents of trials—Queen’s evidence—defence of prisoner by pleader— examination of accused persons—withdrawing complaint or compounding cases—The form of recording evidence. The judgment.

LECTURE XIII.

The procedure of execution of sentence—second trial on the same facts when allowed—Appeal—the Appellate Courts—powers—Revision ; by Sessions Court or District Magistrate—by the High Court— Special Proceedings—Trial of Kuropean British subjects—other cases —The Public. Prosecutor—Evidence by commission—Orders about property at trial—Effect of Irregularity in trials. Miscellaneous

Provisions.

PART’ III.

THE FOREST LAW.

—+—.

LECTURE XIV.

GENERAL OBSERVATIONS ON FoREST LAW . . . ._ ,} 183-201

Why is there a special law for Forests ?—Present state of Forest Law ; in England; the Colonies. Indian Forest Law; its history ; list of Acts and Regulations—Provision of details by “ Rules” having the force of law—their subject—must not include matters of executive, order, or practice ; meaning of “ Local Government”-—The topics of Forest Law ; five main heads or subjects stated—Preliminary matters ; attempts to define the term ‘‘ forest ” for legal purposes—definition of other terms.

X1V TABLE OF CONTENTS.

PAGE

LECTURE XV.

ON PUBLIC OR “GOVERNMENT” PROPERTY ; P ie 902-—224

In general—In India—Main heads of property—(1) That held in virtue of Ancient State rights—Law of escheat—Forfeiture by Act of State —for crime—Claim to land as security for the assessed Land-revenue— Houses, lands, &c., the property of past rulers, as such—‘*‘ Royal trees”’ —Property in alluvial islands—by accession—Law of alluvion and diluvion alluded to—State right to minerals—Right to all Waste Land, not expressly included in holdings and estates ; historical retrospect of right in land (in India) ; the right to waste, long neglected —at length formally declared and acted on—Disposal of waste in making Land-Revenue-Settlements—Places where waste still remained—*“ Rakh”’ Jand—* District forest ;” Madras and Bombay— (2) Public property in roads, canals, &c.—(3) Law for the acquisition of Land for Public Purposes.

LECTURE XYVI.

LEGAL CLASSES OF FOREST—LANDS MADE SUBJECT TO THE FOREST LAW ry ° . . © . ° ° e ° e 225—244

Variety resulting from the condition of the available waste after long neglect—Legal position actually existing—Sec. 3 of the Ind. Forest Act and corresponding declaration in other Acts—Classes of Forests enumerated ; in India; under the Burma Act; under the Madras Act.—‘' Reserved Forest” and ‘‘ Protected Forest ’—history of the distinction ; original intention of the framers of the draft Act with reference to the impossibility of taking in hand all available forest or “ jungle” lands : these views not accepted—modified provisions resulting in a distinct class of Forests—these not properly or permanently secured—Argument that they can be sufficiently so, examined—UCases where ‘Protected Forest” may be satisfactory— Village Forests—difference between India and Burma Acts. Policy of Madras against Village Forests explained—The Ajmer Regulation—The Hazara Hills Regulation—Forests in which Government has only a share, or some other limited rights — Care of ‘‘ Royal trees ’’—Control over Private forests or waste land.

Appendix A. (Giving an abstract of the chief European laws for the control of Forests belonging to Institutions, Corporate bodies, Communes, &c.) . ; A : : , e . 245—248

Appendix B. (Giving a similar abstract of the European laws for the preservation of Forests (Public and Private), in mountainous countries, or where the forests have a protective character against torrents, floods, erosion of soil, &c. &e. “ ‘ , ° » 248—259

TABLE OF CONTENTS. pag

PAGE

LECTURE XVII.

THE LEGAL STEPS IN CONSTITUTION OF FOREST ESTATES i 260-—278

Regular Procedure under Chap. II. ‘Reserved Forests’—Notification of intention—Intermediate steps to maintain the status quo— Proclamation inviting claims to rights—Ffforts also to find out such claims—In the end, claims not discovered formally abate—What sort of claims arise—to land, or plots in the forest ; to rights of way, &c. (not involving produce); to rights of grazing, woodcutting, and other produce —to practise shifting cultivation — The last named not being a right is reserved for later consideration. Claims to land—How dealt with; their nature and origin ; means of disposal. Claims to rights—Must be taken down and decided on, whether they are to be admitted or not; if admitted, their nature and extent to be defined and recorded. Produce rights, how they are dealt with; by transfer to some other locality—by admission to the Forest when constituted, subject to conditions—by commutation or process of buying out. Remarks on the transfer of easements and on the legal position of the locality to which they are transferred—Under what circumstances easements are retained in the Forest— Details about the mode of definition of easements claimed indefinitely, and about the regulation to which they are subject on admission to the Forest and about buying out or compensation reserved for separate Lectures—These steps involve a hearing of the case and argument ; Procedure provided: Person to represent the Forest interest. Appeal from orders—Subsequent (double) power of Local Governments to modify—Sec. 22, prohibiting any new rights growing up—Caution about infringing this rule by form of order acknowledging rights— Power of Government to grant new rights; not advisable to exercise ; better to substitute revocable concession or licence—French law (of tolérance) useful on this subject. Final notification of the Forest—Publication of translated notice—Final establishment of boundary marks—reserved for future consideration (Protection of Forests by law)—Forest once ‘“ Reserved” cannot be disforested without express sanction—Rights do not revive in lands disforested— Remarks on form of Registering rights for future easy reference. Constitution of Protected Forest—The steps requisite—Constitution of Village Forest—Action in special cases—Private Forest, &c.

LECTURE XVIII.

(INTRODUCTORY TO THE SUBJECT OF DEFINITION AND REGULATION OF EASEMENTS) ; THE NATURE OF FOREST EASEMENTS; AND THE RELATIONS BETWEEN THE FOREST OWNER AND THE EASEMENT HOLDER A , 4 ‘ , 7 ; ; A : . 279—301

The legal basis on which Forest rights stand in India—Question whether strict easements exist at all—Customary practices grew up

XV1