Section 11 in Rules Having The Force of Law and Executive orders Relating to Forests
(11)Working plans.Instructions for Forest Settlement Officers is Assam. - Detailed instructions for Forest Settlement Officers in Assam will be found in the Provincial Government's Circular No. 14-R, dated the 20th March, 1897, which must be carefully studied and followed. They are produced below :(i)The procedure to be observed in the constitution of reserved forests is prescribed in Chapter II of the Assam Forest Regulation, 7 of 1891. It is the duty of the Forest Settlement Officer to make himself thoroughly acquainted with the law contained in that Chapter. The following instructions are intended to indicate and draw attention to the leading points which concern a Forest Settlement Officer. They are not intended to relieve the Forest Settlement Officer in the duty of studying the Regulation itself.(ii)Sections 6 and 7. - After the publication of a notification under Section 5 of the Regulation, and the appointment of a Forest Settlement Officer, the first step to be taken by the Forest Settlement Officer is the publication of a proclamation specifying the situation and limits of the proposed forest setting forth the substance of Section 7 of the Regulation, which bars the accrual of forest rights in the proposed reserve from the date on which the proclamation is published, and prohibits building, the clearing of land cultivation and the cutting of timber within the specified area except under certain conditions ; explaining the effects of the reservation of the forest; and requiring persons claiming the right to cultivate by jhuming or any right in or over the proposed reserve to specify by a fixed date, either in writing or verbally, the nature of their right or claims, A period of at least three months from the date of the publication must be allowed for the presentation of claims. In order to facilitate the preparation and publication of the proclamation required by Section 6 skeleton Forms are sent to the Forest Settlement Officer. A copy of the form is appended to these Instructions. All that the Forest Settlement Officer has to do is to have the blanks in the forms filled in, to sign the proclamations, and to publish them. The proclamations should ordinarily be in Assamese or in Bengali, but if in any special case proclamations in any other language are required, they can be obtained on application to the Secretariat.(iii)Section 7. - It should be noted that the issue of the proclamation under Section 6 does not prevent the exercise of rights already enjoyed and in existence at the time of issue of proclamation, except rights of building, clearing land for ordinary cultivation, or cutting timber for the purpose of trade or manufacture. The- rights thus excepted even though claimed be people living in or near the proposed reserve, must not be exercised except with the written permission of the Forest Settlement Officer. But any existing rights other than those specially excepted may be exercised without such permission. For dxample, a person living in or near the proposed reserve may not, without written permission from the Forest Settlement Officer, build a new house or clear land for ordinary cultivation in the area specified in the proclamation. But he may, if he has been in the habit of doing so, extract bamboos for domestic use and not for sale, and subject to local rules and practice, he may clear land for jhum cultivation, if he has been in the habit or practising such cultivation within the specified area. These examples do not exhaust the list of acts which may and may not be done after the issue of the proclamation. They are merely examples illustrating the law.(iv)Section 6. - The manner in which the proclamation is to be published is prescribed in Section 6. Copies of it should be posted in the court-houses, at the headquarters of each township in which any postion of the of proposed reserve is situated and in conspicuous places in every town or village or near the proposed reserve. Copies should also be sent for distribution to the headmen of the circles and villages in the neighbourhood. The Forest Settlement Officer should not merely publish the proclamation. He should personally explain its meaning to the local village officials and, if possible, to the villagers concerned. The action taken by the Forest Settlement Officers in the matter of publishing and explaining the proclamation should be recorded in his proceedings.(v)Section 8. - As soon as practicable after the issue of the proclamation prescribed in Section 6 of the Regulation, the Forest Settlement Officer should visit the proposed reserve. If a Forest Officer has been appointed under Section 5 to assist the Forest Settlement Officer, both officers should visit the reserve together. The following general instructions relating to the enquiry into rights and claims should be carefully followed. It should be clearly understood that the enquiry is to be made by the Forest Settlement Officer, and not by Forest Officer who may be appointed to assist him. The full responsibility for the enquiry and for the orders passed rests with the Forest Settlement Officer, and he alone should sign the records of evidence or statements which may be taken down and any order which may be passed or reports which may be submitted. The Forest Settlement Officer (with the Forest Officer, if any) should inspect inasmuch as possible of the proposed reserve and should afford the people likely to be affected by the proposed reservation full opportunity of putting forward their claims on the spot. He should remain for some time in or near the proposed reserve for this purpose.(vi)The Forest Settlement Officer is bound by law to take down in writing any settlements of claims in respect of jhum cultivation, or to rights of other kinds made under Section 6, and to enquire into all such claims. It is essential that the record of the enquiry should be full and complete. Any evidence tendered in support of such claims should be recorded in the same manner as evidence is recorded in a civil proceeding, but witnesses should not be put on oath or the solemn affirmation. The Forest Officer (if any) should be allowed to question the witnesses, to produce any evidence bearing on any claim, and to state any objection he may wish to make. Any such objection must be recorded by the Forest Supplement Officer. The enquiry should not be confined to merely recording evidence produced by the claimants or by the Forest Officer. The Forest Settlement Officer should himself call for and examine any persons whom he thinks likely to have knowledge of the facts. Under Section 9 he has power to summon witnesses and to require the production of documents, besides the power to enter, by himself or any officer authorised by him for the purpose, upon any land and to survey, demarcate, and make a map of the same. It is his duty to ascertain the facts, and he is bound to enquire not only into claims put forward by the people, but also in the existence of any right or practice, though no formal claim may have been presented. In short, it is the business of the Forest Settlement Officer to ascertain by full and careful enquiry the actual state of things, the manner in which the reservation, if carried out, will affect the people in the neighbourhood, and the rights and privileges, if any, to which they are entitled. He has no power to confer by entry in the record any privileges which have never been enjoyed, merely because he thinks it expedient to grant them. But he is bound to express fully in reporting his operations, his opinion and advice as to any such privileges which he may think it advisable to confer in the interests of the people.(vii)The classes of claims with which the Forest Settlement Officer has to deal, and the manner in which they are to be dealt with, are described in Sections 10, 11,12, Band 14.(a)Claims relating to the practice of jhum cultivation-Section 10. - Any claim of this kind should, after enquiry, be dealt with as provided in Section 10. Special attention is directed to the requirements of this section which are somewhat complicated. It is for the Forest Settlement Officer to record a statement on consideration of the evidence, setting forth the particulars of the claim and of any local rule or order under which the practice is allowed or regulated, and submit the statement to the Provincial Government, together with his opinion whether the practice should be permitted or prohibited wholly or in part. If he considers that the persons making the claim can, without inconvenience, find sufficient land within easy reach of their village outside the proposed reserve, the continued practice of jhum cultivation within it should not be recommended, except under conditions accepted by the Forest Officer. If it considered necessary to allow jhum cultivation in the proposed reserved the Forest Settlement Officer may deal with the matter in one or two ways. He may, with the previous sanction of the State Government, either alter the limits of the proposed reserve, so as to exclude from it land sufficient for the needs of the persons, claiming the right, or permit jhum cultivation in certain parts of the reserve, subject to such rules and conditions, as he may, with such previous sanction, prescribe. In fixing conditions and making rules under this section for the sanction of Government, the Forest Settlement Officer should take into consideration the views of Forest Settlement Officer, if any, who is assisting him. It should be borne in mind that an order cannot be passed permitting the practice of jhum cultivation in the whole of the proposed reserve, and that an order cannot be passed, permitting practice of jhum cultivation in any part of the reserve as finally constituted, except under conditions previously sanctioned by the Governor. Finally, any permission granted under this section by the State Government to practise jhum cultivation, is in all cases a privilege subject to control, restriction and abolition by the the State Government, and is not a right.(b)Claims to rights of way-Section 12. - The Forest Settlement Officer must after enquiry pass an order specifying the particulars of any claim of this kind, and admitting or rejecting it wholly or in part. Claims of this class will seldom present any features of special difficulty.(c)Claims to right to water-courses or to use of water-Section 12. - In this case, also an order must be passed specifying the particulars of the claim and admitting or rejecting it wholly or in part. The action to be taken in the case of claims of this class seldom involve any difficulty.(d)Claims to right of pasture-Sections 12 and 13. - As in order cases, and order must be passed specifying the particulars of each claim of this kind and admitting or rejecting it wholly or in part. Where a claim of this class is admitted, the provisions of Sections 13 and 14 must also be observed. The order may either provide for the exercise of the right by excluding sufficient land from proposed reserve or may continue the right of pasture within the reserve, or may commute the right by a money payment or, if the claimant agrees, by the grant of land or in such other manner as seems suitable. This is a case in which under Section 12 (2), position and area (which may be approximately stated) of the land over which the right is to be exercised, should be recorded. The area may be the whole or any part of the reserve. In continuing a right of pasture under this section, the Forest Officer must record a provision that the right is subject to such rules as the Governor may prescribe. Special attention is directed to Section 13 (2), by which it is laid down that an order passed continuing a right of pasture shall, as far as practicable, include a statement of the number and description of the cattle and the local limits within which, and the reason during which, they are permitted to graze. A right under this section may be admitted to a class of people (as people of a specified village) or to person specified by name. Any other particulars necessary to define the extent to which a right of this kind is continued, and the mode in which it may be exercised must also be recorded, as well as the extent, if any, to which the benefit of the right may be leased, sold or bartered.(e)Claims to rights to forest produce-Section 12. - lire general rule that an order must be passed specifying the particulars of a claim of this kind and admitting or rejecting it in whole or in part, applies in this case as in other cases. The provisions of Section 13 also apply to claims of this class. As in the previous case, if the claim is admitted the order may exclude from the reserve sufficient land for the purpose of satisfying the claim. If this is not done, the right claimed must either be continued to the claimant, subject to any rules which the Governor may prescribe, or be commuted for a money payment, or, if the claimant agrees, by the grant of land, or in such other manner as seems suitable. Whether the claim is met by the exclusion of land from the proposed reserve, or by continuing the right within the reserve, or by commuting it under Section 14, it is necessary sold or that the order should state whether the forest produce referred to may be sold or bartered, or whether it is only for the use of the persons exercising the right. If the continuance of the right within tire reserve is permitted, the order must specify, as far as practicable, tire quantity of timber or other forest produce that may be taken. Any other particulars necessary to define the extent to which a right of this kind is continued, and the mode in which it may be exercised, must also be recorded, as well as the extent, if any, to which it may be sold or bartered. The exercise of a right to forest produce may be permitted in the whole or any part of the reserve, and the right may be admitted to a class of people, e.g., the people of a specified village or to persons by name.(f)Other claims not included in the above classes-Section 11. - Section 11 prescribes the method of dealing with claims not included in the preceding classes. In this case, as in other cases, the Forest Settlement Officer is required to pass an order specifying the particulars of each claim and admitting or rejecting it wholly or in part. In cases in which a claim of this class is admitted, the Forest Settlement Officer must either arrange with the claimant for surrender of the right or excluded the land in respect of which the right is claimed from the limits of the proposed reserve, or acquire the land under the Land Acquisition Act. It is not necessary to give a detailed description of the procedure under the Land acquisition Act as modified by this section. Recourse to this procedure will seldom be necessary.(g)It is frequently desirable to allow villagers to enjoy the use of paths, of pasturage, or minor forest produce and other easements to which they have been accustomed. Such grants should, however, only be shown as rights in those cases in which there are reasonable grounds for holding that such rights are legally estabilished. In all other cases they should be shown as concessions.A right of way, a right to pasturage, to the use of minor forest produce or to other easements can only be legally acquired against the State by grant of covenant or by uninterrupted use under claim of right for a period of 60 years [vide Section 26, 9 of 19081-(viii)Section 20. - When any claim is preferred, the Forest Settlement Officer should consider under which of the above classes it falls, and should then proceed to investigate and pass orders on it in accordance with the above instructions. He should explain that any order issued by him is subject to the Governor's sanction, and this should be clearly stated in the order. A translation of every order passed on any claim should be furnished without delay to the person or persons affected by the order, to enable him to appeal if he wishes to do so. Attention is called to Section 16 of the Regulation which requires the Forest Settlement Officer to receive and forward to the appellate authority any petitions of appeal against his orders. Whenever an order on a claim is passed, the Forest Settlement Officer should infrom the person or persons concerned that they are at liberty to appeal within three months, and that they may lodge their appeals with him.(ix)After completing the enquiry and passing orders on all claims presented to him the Forest Settlement Officer shall forward his proceedings to the Officer appointed to hear appeals from his orders. The proceedings shall include a copy of the notification issued under Section 5 and of the proclamation issued under Section 6, a record of the manner in which the proclamation was published, and of the steps taken to explain it, the record of all evidence taken in the course of the enquiry, of all orders passed by the Forest Settlement Officer, and of any objections made under Section 8 by the Forest Officer (if any) assisting in the enquiry, and a full report summarising the proceedings and containing the recommendations of the Forest Settlement Officer concerning the constitution of the proposed reserve, the manner in which claims have been disposed of, and the privilege, if any, which should, in the Forest Settlement Officer's opinion, be granted, whether any have been claimed or not. The Forest Officer (if any) assisting in the enquiry should see the draft of the report, and may record in writing any remarks he may wish to make and any such remarks should b e filed with and form part of the proceedings. The report should distinctly state whether the Forest Officer agrees or disagrees with the Forest Settlement Officer either generally or on any specified point, but it shall not be signed by the Forest Officer. A statement of the limits of the reserve as finally recommended, and statements in the prescribed forms of any rights claimed in respect of the proposed reserve, should be attached to the proceedings. The Forms A, B and C, in which the statements of claims should be recorded, are appended to these instructions.(x)(a)A map of area proposed to be reserved be prepared by the Forest Officer for the approval of the Forest Settlement Officer and should be signed by both officers when it is finally passed by them. The boundaries of the reserve originally proposed should be outlined with a dotted red line and the area finally recommended with a dotted green line. Other existing reserves in the neighbourhood should have their boundaries outlined with a continuous green line. Areas excluded from the proposed reserve but within its boundaries should be surrounded with a dotted green line and the areas in which jhum cultivation is permitted should be coloured with a green wash. Paths and roads over which rights of way are reserved for the public should be indicated by brown broken line. The map must contain, legibly written, the names of all rivers, villages, ridges, etc., without exception mentioned in the statement of boundaries, and as far as possible of all those mentioned in the proceedings of the Forest Settlement Officer.(b)The map should be prepared on the scale of 2 inches equal to 1 mile. Where there is too small a scale to illustrate the intricacies of certain portions of the boundary, these portions should be dealt with on a separate plan, or as an inset to the main plan.(c)Where Survey of Indian maps of scales not smaller than 1 inch equal to 1 mile exist, use should be made of these. The Forest Officer should ascertain from the Provincial Survey office whether maps on the one-inch scale, if any, exist of the area in which the imposed reserve falls, and where such maps exist the officer-in-charge of the Assam Traverse Party and Drawing Officer should be requested to supply paragraph enlargements to the 2-inch scale of the particular area with which it is required to deal. The Forest Officer should then supplement and correct these enlargements on the ground as may be found necessary for his purpose.(d)In order to attain uniformity in the spelling of names of and in reserved forest so that forest maps and notifications may, as far as possible agree, the following rules should be observed :
