4th WILDLIFE PROTECTION GLC NATIONAL MOOT COURT COMPETITION, 2022

TEAM CODE- L

4TH WILDLIFE PROTECTION GOVERNMENT LAW COLLEGE NATIONAL

MOOT COURT COMPETITION, 2022

Before The Hon'ble High Court of Sloucher

INTERIM APPLICATION NO. 12 OF 2022

PUBLIC INTEREST LITIGATION NO. 126 OF 2022
UNDER ARTICLE 226 OF THE CONSTITUTION OF YOLATENGO

IN THE MATTER OF

PSB Farmer's Association …Petitioner

Versus

State of Sloucher Respondent

The Trust for Wildlife Conservation (T.W.C.) …Intervenor

UPON SUBMISSION TO

THE HON'BLE CHIEF JUSTICE AND HIS COMPANION JUDGES

OF

THE HON'BLE HIGH COURT OF SLOUCHER

MEMORIALFOR THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER I

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………….……IV

INDEX OF AUTHORITIES………………………………………………………………...…V

STATEMENT OF JURISDICTION……………………………………………………….....IX

STATEMENT OF FACTS……………………………………………………………………..X

ISSUES RAISED………………………………………………………………………………XII

SUMMARY OF ARGUMENTS………………………………………………………….....XIII

ARGUMENTS ADVANCED…………………………………………………………..…….…1

1. SHOULD THE TWC BE ALLOWED TO INTERVENE IN THE WRIT PETITION...1

1.1 That there is no locus standi in the present case………………………………………..…1

1.2 There has been no violation of Fundamental Rights……………………………...……….2

1.3 Other alternative remedies available………………………………………………….…...4

2. IS THE CHIEF WILDLIFE WARDEN'S DECISION MENABLE TO JUDICIAL

REVIEW? IF YES, DOES THE SAID DECISION SUFFER FROM PROCEDURAL

OR SUBSTANTIVE ULTRA VIRES…………………………………………………...….5

2.1 The chief wildlife warden is amenable to judicial review………………………………..5

2.2 The decision of the chief wildlife warden suffered from irrationality…………………....9

2.3 Action of the wildlife warden suffers from procedural vires…………………………....11

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3. IS THE HIGH COURT EMPOWERED TO PASS AN INTERIM ORDER IN THE

NATURE OF THE ONE PASSED BY IT?.........................................................................13

3.1 That the High Court was well within its power when passing the interim

order……………….13

3.2 The High Court Can interfere with the discretionary power under Article 226………....16

3.3That the order doesn't fail the test of proportionality…………………………………....18

4. WHAT ALTERNATIVE COURSES OF ACTION COULD BE ADOPTED IN THE

INSTANT CASE TO BALANCE THE INTERESTS OF ALL PARTIES?....................20

4.1No alternative course of action can be resorted to……………………………………….20

4.2 The alternative solutions contemplated would not be feasible…………………………..24

PRAYER………………………………………………………………………………………...26

MEMORIAL ON BEHALF OF THE PETITIONER III

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LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Art. Article

Const. Constitution

Corpn. Corporation

F.R. Fundamental right

Govt. Government

H.P. Himachal Pradesh

Hon'ble Honourable

H.W.C. Human – Wildlife Conflict

Intn’l International

Ltd. Limited

N.G.O. Non -Governmental Organisation

N.G.T. National Green Tribunal

SC Supreme Court

v. Versus

T.W.C. Trust of Wildlife Conservation

MEMORIAL ON BEHALF OF THE PETITIONER IV

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INDEX OF AUTHORITIES

CASES

1. American Cyanamid Co. v. Ethicon Ltd, 1975 AC 396.

2. Benedict Denis Kinni v. Tulip Brian Miranda, CIVIL APPEAL NOS.1429-1430/2020

3. Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 SC 1044

4. Centre for Wildlife and Environment Litigation v Union of India, 2020 S.C.C. OnLine

NGT 1228.

5. Coimbatore District Central Coop. Bank v. Employees Assn. 32 (2007) 4 SCC 669.

6. Coimbatore District Central Cooperative Bank v. Employees Assn., (2007) 4 SCC 669.

7. Council of Civil Service Union v. Minister for the Civil Service, (1985) AC 374.

8. D.K. Yadav v. J.M.A. Industries, (1993)3 SCC 259.

9. Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719

10. Delhi Development Horticulture Employees' Union v Delhi Admn., (1992) 4 S.C.C. 99.

11. Dorab Cowasji Warden v. CommiSorab Warden, (1990) 2 SCC 117.

12. Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185.

13. Essar Oil Ltd. v. Halar Utkarsh Samiti, [2004] 2 S.C.C. 392

14. Express Newspaper (P) ltd. v. Union of India, (1986) 1 SCC 133.

15. F.C.I. v. Yadav Engineer & Contractor (1982) 2 SCC 499.

16. Goa Foundation v Union of India, (2014) 6 SCC 590

17. Gopal Das Mohata v. U.O.I., AIR 1955 SCR (1) 773

18. Govt. of Andhra Pradesh v. Nasrullah Khan, (2006)2 SCC 373.

19. Gurnam v Financial Commissioner, Co-op, Punjab (2006)12 SCC 456.

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20. H.B. Gandhi v. Gopi Nath & Sons, 1992 Supp (2) SCC 312.

21. Hall & Ltd. v. Shoreham by Sea U.D.C., 12 (1964) 1 WLR 240.

22. Himmat Singh Shekhawat v State of Rajasthan, ALL (I) NGT REPORTER (1) DELHI

23. J. Aswartha Narayana, v. The State W.P NO.9279 OF 2019

24. JasbhaiMotibhai Desai v Roshan Kumar, Haji BasherAhmed &Ors 1976 AIR 578

25. K. Krishna Reddy v. Spl. Dy Collector, Land Acqn. Unit II, LMD Karimnagar 1988 AIR

2123.

26. K.B. Nagar v. Union of India, (2012)4 SCC 483.

27. K.V Sebastian v. State of Kerala WP(C) No.21207/2020

28. L.Chandra Kumar v Union of India, A.I.R. 1997 SC 1125

29. Martin Burn Ltd. v. R.N Banerjee, 10 A.I.R. 1958 SC 79.

30. Muthuraman v Union of India, 2015 ALL (I) NGT REPORTER (2) DELHI 170.

31. Noida Enterprises Assn. v. Noida, (2007)10 SCC 385.

32. Om Kumar v. Union of India, A.I.R. 2000 SC 3689.

33. Paharpur Cooling Towers Ltd. o Bangaigaon Refinery and Petrochemicals Ltd. A. 1994

Del 322.

34. Rae Bareli K.G. Bank v. Bhola Nath, (1997)3 SCC 657.

35. Reliance Energy Ltd. v Maharashtra State Board of Development Corpn. [(2007)8 S.C.C.

1].

36. S.P. Gupta and Ors. v. President of India and Ors., A.I.R. 1982 SC 149

37. S.R. Bommai v. Union of India, (1994) 3 SCC 1, 177

38. Simranjit Singh Mann v. The Union of India and Anr1(1992) 4 SCC 653.

39. State of A.P. v McDowell & Co. (1996)3 S.C.C. 709

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40. State of Maharashtra v. Digambar (1995) 4 SCC 683.

41. State of Punjab v. Ram LubhayaBaggd (1998) 1 SCR 1120

42. Tata Cellular v. Union of India, (1994) 6 SCC 651

43. Tribunal on its own motion v Union of India, 2014 S.C.C. OnLine NGT 3294.

44. Union of India v. Shatabdi Trading & Investment (P) Ltd. (2001)6 SCC 748.

45. Vimal Bhai v Ministry of Environment and Forests, 2011 S.C.C. OnLine N.G.T. 16.

46. Wilfred J. v Union of India, 204 ALL (I) NGT REPORTER 2013.

BOOKS AND MANUALS

1. AIYAR RAMANTHA P 'THE LAW LEXICON' (2ND EDITION, REPRINT 2000).

2. BLACK'S LAW DICTIONARY, 7TH E.D.N.

3. H.W.R. WADE & C.F. FORSYTH, ADMINISTRATIVE LAW, 8TH EDN., P. 34

4. I P MASSEY, ADMINISTRATIVE LAW 62 (EBC PUBLISHING (P) LTD.,

LUCKNOW 2017).

JOURNELS AND ARTICLES

1. Abuse of Administrative Discretion - A Detailed Study, 2022 S.C.C. OnLine Blog OpEd

53

2. Limits of Judicial Activism Vis-a-Vis Administrative Discretion: A Preliminary Inquiry,

26 JILI (1984) 55.

3. Karanth K.K., Gopalaswamy A.M., Defries R. and Ballal N. (2012). Assessing patterns of

human-wildlife conflicts and compensation around a central Indian protected area. PLoS

O.N.E., 7(12).

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4. Preliminary Report on Crop Damage in Maharashtra by Nature Conservation Society,

Amravati. Source:KishoreRithe.

5. Kopnina, H., Washington, H., Taylor, B. et al. Anthropocentrism: More than Just a

Misunderstood Problem. J Agric Environ Ethics 31, 109–127 (2018).

https://doi.org/10.1007/s10806-018-9711-1

6. A brief discussion on this issue with respect to Tadoba-Andhari Tiger Reserve relocation

process can be found here - Rucha Ghate, Relocation versus Wildlife Preservation, 40 No.

46 EPW 4807, 4808 (2005).

7. Development Induced Displacement and Resettlement: Analysis of Judicial Policy, 55

JILI (2013) 346.

8. Gulati S, Karanth KK, Le NA, Noack F. Human casualties are the dominant cost of

human-wildlife conflict in India. Proc Natl Acad Sci U S A. 2021 Feb

23;118(8):e1921338118. doi: 10.1073/pnas.1921338118.

STATUTES

1. The Constitution of India, 1950.

2. The Wildlife Protection Act, 1972.

3. The National Green Tribunal Act, 2010.

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon'ble High Court under the jurisdiction of Article 226 1 of

the Constitution of Yolatengo.on account of violation of Fundamental Rights of the citizens and

the animals, who have been profoundly impacted by the existing human-wildlife conflict

occurrences in the Sloucher. The interests of the farmers are being represented by the

Respondents in the instant case.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

ANDARGUMENTS IN THE INSTANT CASE

1
226. Power of High Courts to issue certain writs.—Notwithstanding anything in Article 32, every High Courtshall
have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person
orauthority, including in appropriate cases, any Government, within those territories directions, orders or
writs,including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
ofthem, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or
personmay also be exercised by any High Court exercising jurisdiction in relation to the territories within which
thecause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of
suchGovernment or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner,is
made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order;and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation ofsuch
order and furnishes a copy of such application to the party in whose favour such order has been made or thecounsel
of such party, the High Court shall dispose of the application within a period of two weeks from the dateon which it
is received or from the date on which the copy of such application is so furnished, whichever is later,or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards onwhich the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry ofthat period, or, as
the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on
theSupreme Court by clause (2) of Article 32.

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STATEMENTS OF FACTS

BACKGROUND-

1. Sloucher is the most biologically diverse State of Yolatengo, with a variety of endemic

species of flora and fauna. Thousands of tourists flock to Sloucher every year to visit its

reputed National Parks and Sanctuaries. Agriculture and tourism are the primary sources of

employment for most of the population in Sloucher.

2. Sloucher has many native species which are interconnected through the intricate food chain.

In the past, the introduction of hostile and invasive species, such as the Bane Toad to control

insect pests has led to the extinction of some native species, giving rise to a cascading effect,

which is now negatively impacting several other species.

3. Authorities then, under the Wildlife Protection Act, 1972 ("W.P.A., 1972"), of Yolatengo,

tried balancing interests of both parties. Immediately after the Bane Toad invasion in 2001, it

was the timely decision of the Government to declare it as 'vermin' and subsequent issuance

of hunting orders that prevented further damage to the ecosystem and agricultural produce.

CURRENT CONFLICT-

1. In Sloucher the PSB village expanded around the PSB forest which led to the conversion of

hectares of forest into farmland. The villagers have tried practicing agroforestry for welfare

of co inhabiting flora and fauna.

2. The Horsehead Boar, a native wild mammal, is one of the species whose natural habitat has

been damaged. In its natural habitat, the Boar performs a key role, both as the prime prey of

the Sloucher Leopard and as an efficient herbivore that keeps a check on the spread of a

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poisonous shrub named the Kadwaa Santra. The Horsehead Boar was also part of Schedule II

of the W.P.A., 1972

3. Due expansion of human settlement the Boar started invading human territory and feeding on

Nice Dal crop instead of its usual food of tubers and plants. This caused a dent on the

livelihood of the villagers and they requested the Chief Wildlife Warden of Sloucher to

permit them to hunt the Boars.

4. The Chief Wildlife Warden after deliberation decided not to take any action against in the

said matter. Following which the farmers filed a writ of mandamus in this Court praying

permission to hunt Boars.

5. The High Court passed an interim order directing the Chief Wildlife Warden to hunt the

boars. Now the Trust of Wildlife Conservation ("T.W.C.") filed an intervention application in

the PSB Farmer's Association's writ petition, seeking vacation of the interim order.

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ISSUES RAISED

ISSUE 1

SHOULD THE TWC BE ALLOWED TO INTERVENE IN THE WRIT PETITION?

ISSUE 2

IS THE CHIEF WILDLIFE WARDEN'S DECISION AMENABLE TO JUDICIAL REVIEW?

IF YES, DOES THE SAID DECISION SUFFER FROM PROCEDURAL OR SUBSTANTIVE

ULTRA VIRES?

ISSUE 3

IS THE HIGH COURT EMPOWERED TO PASS AN INTERIM ORDER IN THE NATURE

OF THE ONE PASSED BY IT?

ISSUE 4

WHAT ALTERNATIVE COURSE OF ACTION COULD BE ADOPTED IN THE

INSTANT CASE TO BALANCE THE INTERESTS OF ALL PARTIES?

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SUMMARY OF ARGUMENTS

1. SHOULD THE TWC BE ALLOWED TO INTERVENE IN THE WRIT PETITION?

It is humbly submitted that in the present petition, T.W.C. should not be allowed to intervene in

the writ petition as there is no sufficient locus standi in the present petition [1.1]. There is no

violation of the fundamental rights of the respondent rather there has been an infringement of the

fundamental rights of the farmers.[1.2] There is an alternative remedy available to the Petitioner

in the present case [1.3].

2. IS THE CHIEF WILDLIFE WARDEN'S DECISION AMENABLE TO JUDICIAL

REVIEW? IF YES, DOES THE SAID DECISION SUFFER FROM PROCEDURAL

OR SUBSTANTIVE ULTRA VIRES?

It is humbly submitted before this Hon'ble Court that the decision of the chief wildlife warden is

amenable to judicial review.[2.1]. It is also submitted that the decision of the chief wildlife

warden suffered from irrationality. (or was not reasonable) [2.2] The action of the wildlife

warden also suffers from procedural vires. [2.3]

3. IS THE HIGH COURT EMPOWERED TO PASS AN INTERIM ORDER IN THE

NATURE OF THE ONE PASSED BY IT?

It is humbly submitted before this Hon'ble Court that the High Court was well within its rights

when it passed the interim order [3.1]. The High Court has the required power to interfere with

the discretionary order of the chief wildlife warden so that the interest of the villagers could be

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saved [3.2]. Moreover, the interim order also doesn't suffer from any procedural defects and also

passes the test of proportionality [3.3].

4. WHAT ALTERNATIVE COURSE OF ACTION COULD BE ADOPTED IN THE

INSTANT CASE TO BALANCE THE INTERESTS OF ALL PARTIES?

In the present case no alternative course of action can be resorted to other than the proposed

solution of temporary hunting order.[4.1] The alternative solutions contemplated would not be

feasible and wouldn't address the urgency of the situation.[4.2] It is also brought forth that there

are no existing policies of H.W.C. mitigation and there cannot be an action to the effect without a

guiding policy by the executive or authorities.[4.3]

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ARGUMENTS ADVANCED

ISSUE 1- SHOULD THE TWC BE ALLOWED TO INTERVENE IN THE WRIT

PETITION?

1. It is humbly submitted before the Hon'ble High Court that the T.W.C. should not be allowed

to intervene in the writ petition on the grounds that T.W.C. has no sufficient locus standi in

the present case.[1.1] There has been no violation of Fundamental Rights, contrary to the

claims of the respondent [1.2] and also, the respondent has not exhausted other alternative

remedies available to it [1.3].

1.1 THAT THERE IS NO LOCUS STANDI IN THE PRESENT CASE

2. In the present matter, the respondents do not have the requisite locus standi. Locus standi

means a place of standing, signifying the right of a person to bring an action and to be heard2.

Further, a person acquires a locus standi when he suffers a legal injury by reason of the

violation of his legal right by the impugned action of the State or a public authority or any

other person or who is likely to suffer a legal injury by reason of a threatened violation of his

legal right or legally protected interest by any such action3.

3. A person must have a sufficient interest to sustain his standing to sue4 , but in the present

case, T.W.C. does not have a sufficient interest to maintain its standing before the Court. The

Hon'ble Court in the judgment of Jasbhai Motibhai Desai v Roshan Kumar, Haji Basher

2
Aiyar Ramantha P ‘The Law Lexicon’ (2nd edition, Reprint 2000).
3
S.P. Gupta and Ors. v. President of India and Ors., AIR 1982 SC 149
4
Gopal Das Mohata v. U.O.I., AIR 1955 SC (1) 773

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Ahmed &Ors,5 considered a locus standi to be necessary to invoke the writ of certiorari and

the Petitioner should be an aggrieved person. Likewise, in the present case, the respondents

cannot invoke the writ of mandamus. In case he is found to be a stranger, the Court will, in

its discretion, deny him the extraordinary remedy.

4. The counsel further seeks reference to the case of Simranjit Singh Mann v. The Union of

India and Anr,6 where the question regarding the locus standi of a third person who is a total

stranger to the case was answered negative. Furthermore, a person acquires a locus standi

when his personal or individual right has been violated or threatened to be violated7. It is

submitted that the subject matter of the dispute fails to fall within the class of violation of

fundamental rights' mentioned under Art. 226, which is necessary for a party to have a locus

standi.

5. It is humbly submitted before the Hon'ble Court that the interim order of the Hon'ble High

Court of Sloucher is tenable in the eyes of law, as the interim order qualifies as a reasonable

restriction imposed in the interests of the security of the State, public order and the general

public8.

1.2 THAT THERE HAS BEEN NO GROSS VIOLATION OF THE FUNDAMENTAL

RIGHTS OF HUMANS AND WILDLIFE.

6. It is brought to the attention of Hon'ble Court that Article 226 is a remedy available for the

enforcement of Fundamental Rights but the remedies enunciated under this article cannot be

availed if one's fundamental rights have not been violated. Thus, the jurisdiction vested in the

High Court is exercisable only for the enforcement of fundamental rights conferred by Part

III of the Constitution of Yolatengo.

5
1976 AIR 578, 1976 SCR (3) 58.
6
Simranjit Singh Mann v. The Union of India and Anr,(1992) 4 SCC 653.
7
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
8
Article 19 (6) of the Indian Const.

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7. This can be further substantiated by Joseph Raz's saying, "rights cannot be accorded to

animals as they only have an instrumental value and do not have any interests or the kind of

mental development as humans do". Likewise, if all animals are recognised as legal beings, it

follows that they can sue or be sued for damages. Should they be able to sue or be sued?

They are live beings for which the Prevention of Cruelty to Animals Act has been enacted.

8. It is humbly submitted before the Hon'ble Court that the instant case does not warrant an Art.

2269 petition since there is no legitimate cause of action for the Petitioner to move this

Hon'ble Court. In order to seek relief under Art. 226, there must be a violation of

fundamental or any other legal rights. In the present case, there has been no infringement of

any of the fundamental rights mentioned under Art. 2110 of the Const. by the actions of the

Hon'ble Court. In fact, the interim order has been instrumental in protecting the public

interest.

9. It is humbly submitted before the Hon'ble Court that Section 11(1)(b) of W.P.A. 1972 the

Chief Wild Life Warden or the authorised officer may if he is satisfied that any wild animal

specified in Schedule II, Schedule III, or Schedule IV, has become dangerous to human life

or to property (including standing crops on any land) or is so disabled or diseased as to be

beyond recovery, by order in writing and stating the reasons therefore, permit any person to

hunt11 [such animal or group of animals in a specified area or cause such animal or group of

animals in that specified area to be hunted]. In the present case, the Horsehead Boar part of

Schedule II of the W.P.A., 197212has caused a dent on the livelihood of the PSB Villagers,

and the interim order of temporarily hunting Horsehead Boar is well within the ambit of law.

9
INDIA CONST, art. 226.
10
INDIA CONST, art. 21.
11
2. Subs. by s. 9, ibid., for “such animal or cause such animal to be hunted” (w.e.f. 1-4-2003)
12
Para 6, Moot proposition.

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1.3 THAT THERE HAS BEEN OTHER ALTERNATIVE REMEDY AVAILABLE IN

THE PRESENT CASE.

10. In the present case, the T.W.C. had the opportunity to approach the N.G.T., which is a

specialised administrative body for the effective and expeditious disposal of cases relating to

environmental protection and biodiversity management. It is an established principle that

where matter is civil in nature and has affected or is likely to affect or damage the

environment, it falls under the substantial question of environment13 and that to approach

N.G.T., it is not required that a person should be directly or personally affected by such

damage14.

11. The present matter raises a substantial question related to the environment i.e., human-

wildlife conflict. It has been held in a recent case of Tribunal on its own motion v. Union of

India15 that wildlife is a part of the environment and any action that causes damage to

wildlife, could not be excluded from the purview of the tribunal. The tribunal has been

addressing a plethora of cases relating to Human-Wildlife Conflict in the present times and is

thus competent to adjudicate the present matter as well16.

12. It is humbly submitted before the Hon'ble High Court that, the demands made by the

respondents in the interest of wildlife do not hold good in the present circumstances, as such

measures would adversely affect the right to livelihood of the people of the PSB village. It

would lead to the resettlement of villages and their farmlands. Thus, there is no option left to

permit the villagers to hunt the Horsehead Boars in the areas where PSB's agricultural lands

are situated.

13
Goa Foundation v Union of India, (2014) 6 SCC 590.
14
Vimal Bhai v Ministry of Environment and Forests, 2011 SCC OnLine NGT 16.
15
Tribunal on its own motion v Union of India, 2014 SCC OnLine NGT 3294.
16
Centre for Wildlife and Environment Litigation v Union of India.

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13. A tribunal substitutes H.C.s as an alternative institutional mechanism for judicial review and

thereby aims at reducing the burden on H.C.s. In L.Chandra Kumar v U.O.I., 17 the Hon'ble

Court has held that the State employees must approach the administrative tribunals before

coming to the H.C. under Art. 226. Furthermore, the tribunal is competent and is vested with

the jurisdiction and power of judicial review18.

ISSUE 2: IS THE CHIEF WILDLIFE WARDEN'S DECISION AMENABLE TO

JUDICIAL REVIEW? IF YES, DOES THE SAID DECISION SUFFER FROM

PROCEDURAL OR SUBSTANTIVE ULTRA VIRES?

14. It is humbly submitted before this Hon'ble Court that the decision of the chief wildlife

warden is amenable to judicial review.[2.1]. It is also submitted that the decision of the chief

wildlife warden suffered from irrationality. (or was not reasonable) [2.2] Action of the

wildlife warden also suffers from procedural vires.[2.3]

2.1 JUDICIAL REVIEW OF CHIEF WILDLIFE WARDEN'S DECISION IN TENABLE

15. Section 11(b) of the W.P.A. confers the chief wildlife warden with the power to grant

hunting orders for animals in Schedule II if he finds there to be enough damage to property

and humans. This requires the warden to satisfy himself with relevant conditions on the

plight of farmers and Horsehead Boars. On the warden's failure to consider the relevant

consideration and non-application of mind by the warden about the farmers' plight, a judicial

review was sought wherein the Court granted a suitable remedy.

17
L.Chandra Kumar v Union of India, AIR 1997 SC 1125
18
Wilfred J. v Union of India, 204 ALL (I) NGT REPORTER 2013; S. P. Muthuraman v Union of India, 2015 ALL
(I) NGT REPORTER (2) DELHI 170 ; Himmat Singh Shekhawat v State of Rajasthan, ALL (I) NGT REPORTER
(1) DELHI 44

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16. The Hon'ble Supreme Court of India in the famous case of Tata Cellular v. Union of India19

has held that "the judicial power of review is exercised to rein in any unbridled executive

functioning. The restraint has two contemporary manifestations. One is the ambit of judicial

intervention; the other covers the scope of the Court's ability to quash an administrative

discretion on its own merits. These restraints bear the hallmarks of judicial control over

administrative action."20 Judicial review has been declared an integral component of the basic

structure of our Constitution.21

17. Hon'ble Apex Court, in the case of Hall & Ltd.v.Shoreham by Sea U.D.C. 22, where the action

of the concerned administrative authority was overturned for being unreasonable, despite the

fact that the authority in question was acting within the purview of its power, and had taken

all relevant considerations into account while ignoring all irrelevant considerations. While

exercising its discretionary power, if an administrative authority turns a blind eye to relevant

considerations, its acts will be considered null and void. Authority should always take heed

of the considerations which the law lays down expressly or impliedly. 23

18. It is humbly submitted before this Hon'ble Court that although the chief wildlife warden had

the power to give or not to give the order of hunting to the villagers of the PSB, relevant

circumstances were not taken into effect while exercising this power, as the interests of the

villagers were not kept in mind. The warden had failed to propose any alternative solution to

mitigate the conflict, showing there was no concern metted out for the farmers, thereby

ignoring their considerations. "If an action taken by any authority is contrary to law,

improper, unreasonable, irrational or otherwise unreasonable, a Court of law can interfere

19
Tata Cellular v. Union of India, (1994) 6 SCC 651
20
Supra note 5.
21
S.R. Bommai v. Union of India, (1994) 3 SCC 1, 177
22
Hall & Ltd. v. Shoreham by Sea UDC, 12 (1964) 1 WLR 240.
23
Abuse of Administrative Discretion - A Detailed Study, 2022 SCC OnLine Blog OpEd 53.

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with such action by exercising the power of judicial review24. The High Courts, in the

exercise of their jurisdiction under Article 226, may not merely confine themselves to

illegality, irrationality and procedural impropriety; they have to delve deeper into the matter,

which requires deeper scrutiny, as said by the Supreme Court in the case of S.R. Bommai v.

Union of India25.

19. To understand the abuse of discretion the relevance test is proposed wherein the judiciary can

apply the test by asking the following questions: (1) Whether the considerations which

support the decision are germane to the purposes of the statute? (2) Whether all relevant

considerations have been taken into account by the authority? (3) Whether irrelevant

considerations have also been taken into account along with relevant considerations, and if

so, whether the relevant considerations alone would be sufficient to sustain the order? It can

easily be seen that in answering these questions the judiciary has to decide, keeping in mind

the policy and scheme of the statute, what should have been the relevant factors ought to

have been considered by the authority, though the question is often asked the other way

round, i.e., whether the considerations taken into account by the authority were relevant. 26 So

here not all consideration was taken up. The farmers' plight was unseen, and the severe

impact of their livelihood and right to life, in general, was neglected by the chief wildlife

warden's decision. It is also imperative to note that the essence of the Wildlife Protection Act

of Yolatengo was striking a balance between human and wildlife interests which was not

followed through27.

24
Coimbatore District Central Cooperative Bank v. Employees Assn., (2007) 4 SCC 669.
25
Supra note 23.
26
Limits of Judicial Activism Vis-a-Vis Administrative Discretion: A Preliminary Inquiry, 26 JILI (1984) 55.
27
Moot proposition no. 3.

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20. The apex court in the case of Reliance Energy Ltd. v Maharashtra State Board of

Development Corpn.28has reiterated that the grounds of judicial review are (1) illegality, (2)

irrationality, and (3) procedural impropriety. Non-application of mind may be a good ground

for judicial review.29"Judicial review" is generally permissible in cases of irrationality,

illegality and procedural impropriety30. It is permissible to strike down an action if there are

mala fides, bias, arbitrariness bordering on perversity or such unreasonableness as no

reasonable man will contemplate31. The power is exercised to rein in any unbridled executive

functioning. Restraint has two contemporary manifestations, viz, one is the ambit of judicial

intervention and the other covers the scope of the Court's ability to quash an administrative

decision on its merit.32

21. It is clearly evident that the wildlife warden, pursuant section 11 of the Wildlife Protection

Act, ought to have permitted the farmers to hunt the Boar, which used to crop raid their

produce as it caused a threat to their livelihood and property. The loss of livelihood would

also have a great impact on their lives at large as well. To prevent the chief wildlife warden

ought to have taken some steps to mitigate the human-wildlife conflict, but on lack of any

coercive action the only recourse was under section 11 for the farmers. An administrative

action where it fails to take action as per the parent act renders such action to be brought

under the purview of judicial review.

22. Orders passed by the executive, when challenged, have to be tested on the touchstone of

reasonableness.33According to Hon'ble justice, Lord Diplock, in the case of Council of Civil

28
Reliance Energy Ltd. v Maharashtra State Board of Development Corpn. [(2007)8 S.C.C. 1].
29
Gurnam v Financial Commissioner, Co-op, Punjab (2006)12 SCC 456.
30
State of A.P. v McDowell & Co. (1996)3 S.C.C. 709
31
Paharpur Cooling Towers Ltd. o Bangaigaon Refinery and Petrochemicals Ltd. A. 1994 Del 322.
32
Supra note 21
33
Noida Enterprises Assn. v. Noida, (2007)10 SCC 385.

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Service Union v. Master for the Civil Service34held, "Judicial review provides the means by

which judicial control of administrative action is exercised. The subject matter of every

judicial review is a decision made by some person or body of persons who are the decision-

makers. To qualify as a subject for judicial review, the decision must have consequences

which affect some person other than the decision maker, although it may affect him too. The

decision of the chief wildlife warden in the present case affected the livelihood of the farmers

as agriculture and tourism are the primary sources of employment for most of the population

in the Sloucher. The horsehead boar was affecting the livelihood of the farmers by eating

their most commonly grown crop, i.e. Nice Dal.35 The villagers even practice agroforestry so

that the pristine wildlife can be saved.

2.2 THAT THE DECISION OF THE CHIEF WILDLIFE WARDEN SUFFERED FROM

IRRATIONALITY AND NON-APPLICATION OF MIND

23. Judicial review is not directed against the decision but is confined to the decision-making

process. It cannot extend to the examination of the correctness or reasonableness of a

decision as a matter of fact. It is not an appeal from a decision but a review of the manner in

which the decision is made.36 Lord Diplock opined: "by 'irrationality', I mean what can by

now be succinctly referred to as 'Wednesbury unreasonableness'…It applies to a decision

which is so outrageous in its defiance of logic or of accepted moral standards that no sensible

person who had applied his mind to the question to be decided could have arrived at it.

Whether a decision falls within this category is a question that judges by their training and

experience should be well equipped to answer, or else there would be something badly wrong

34
Council of Civil Service Union v. Minister for the Civil Service, (1985) AC 374.
35
Moot proposition. No. 7
36
H.B. Gandhi v. Gopi Nath & Sons, 1992 Supp (2) SCC 312.

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with our judicial system.37 A decision rendered by the wildlife warden to not take any action

even when there was the aggrieved party who had their fundamental right infringed leads it

to be an irrational decision as no person would refrain from taking any action when the

H.W.C. was aggravating to a great degree in PSB village.

24. The proceedings arising under Article 226 are in the nature of the judicial review, and such

review could only be in respect of the process of decision and not the decision itself. 38In the

present case, the Hon'ble High Court exercises this very right to rectify the mistakes of the

chief wildlife warden so that the right to livelihood of villagers could be saved.

25. An order passed by the statutory authority, particularly when by reason whereof a citizen

would be visited with civil or evil consequences, must meet the test of reasonableness so as

to satisfy the requirements of Arts, 14 and 21 of the Constitution as explained in D.K. Yadav

v. J.M.A. Industries39. Article 21 clubs' life with liberty, the dignity of the person with means

of livelihood without which the glorious contents of dignity of person would be reduced to

animal existence.

26. The duty of the courts is to confine itself to the question of legality. In the present case the

chief wildlife warden who is the decision-making authority, had committed an error of law

when he didn't give the order of hunting to the villagers of PSB as their right to livelihood

under Article 21 of the Indian Constitution was infringed. The question that had to be

answered by the chief wildlife warden was the necessity question i.e., whether the means

used to impair the right or freedom are no more than is necessary to accomplish the

objective, and this was not in the present case. The chief wildlife warden could have

37
Supra note 39.
38
Union of India v. Shatabdi Trading & Investment (P) Ltd. (2001)6 SCC 748.
39
D.K. Yadav v. J.M.A. Industries, (1993)3 SCC 259.

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prescribed some alternative remedy instead of denying permission to hunt to the villagers,

which has left both parties to carry on a human-wildlife conflict.

27. It is humbly submitted before this Hon'ble Court that in the landmark case of Council of

Civil Service,40it has been said by the Court that the power of judicial review is restricted to

illegality, irrationality and impropriety "if the power has been exercised on a non-

consideration or non-application of mind to relevant factors, the exercise of power will be

regarded as manifestly erroneous. If a power is exercised on the basis of facts which do not

exist and which are patently erroneous, such exercise of power will stand vitiated. The

decision rendered by the chief wildlife warden reeks of non-application of mind on relevant

factors. All the relevant factors, like the order of the killing of horsehead boar, sought only

for the area where the agricultural lands of the PSB were situated to protect their crops and

property, which would act as a deterrent measure to prevent crop raiding in future and also

will protect the livelihood and economic interest and food security of the Yolatengo at large.

2.3 THE DECISION OF THE CHIEF WILDLIFE WARDEN SUFFERS FROM

PROCEDURAL ULTRA VIRES

28. It is humbly submitted before this Hon'ble Court that the order of chief wildlife warden

suffers from procedural ultra vires as relevant circumstances were not taken into

consideration when the order was given. Exercise of power, whether legislative or

administrative, will be liable to be set aside if there is a gross error in the exercise of such

power or when the exercise of power is grossly arbitrary; any decision would be reasonable

only when relevant circumstances are taken into consideration which was not the case in the

present situation.

40
Supra note 39

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29. It is humbly submitted before this Hon'ble Court that the laws of the procedure are meant to

regulate effectively, assist and aid the object of substantial and real justice and not to

foreclose even an adjudication on the merits of substantial rights of a citizen under personal

property and other laws. An administrative authority may be exercising a power for any

authorised purpose but if the authority fails to follow the required procedure, the actions of

the authority would be liable to challenge. Although the authority may be doing a right thing

for a good purpose but if it fails to comply with the required procedure than the decision

would be liable to be set aside.

30. The doctrine of ultra vires can cover virtually all situations where statutory power is

exercised contrary to some legal principles. Where a public authority is held to act for

improper motives or irrelevant considerations or has failed to take account of relevant

considerations, its action is ultra vires and void. 41 It is humbly submitted before this Hon'ble

Court that the decision of the chief wildlife warden of not giving the decision of hunting to

the villagers suffered from procedural ultra vires as relevant circumstances were not taken

into consideration before giving the decision. It is also stated that section 11(1)(b) of W.P.A.

requires a reasoned decision with respect to subjective satisfaction to state whether the

animal will be translocated, tranquilised or captured to mitigate the H.W.C. It was well

known that the primary source of employment for most people in the Sloucher were tourism

and agriculture, and in the past also their agricultural crops had been affected by the attack of

Bane Toad.42 Therefore, the horsehead boar also was destroying their crops by eating their

most commonly grown crop i.e., Nice Dal, thereby causing a dent in the livelihood of the

PSB villagers.

41
Express Newspaper (P) ltd. v. Union of India, (1986) 1 SCC 133.
42
Page 1, Moot Proposition.

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ISSUE 3: IS THE HIGH COURT EMPOWERED TO PASS AN INTERIM ORDER IN

THE NATURE OF THE ONE PASSED BY IT ?

31. It is humbly submitted before this Hon'ble Court that the High Court was well within its

rights when it passed the interim order [3.1]. The High Court has the required power to

interfere with the discretionary order of the chief wildlife warden so that the interest of the

villagers can be saved [3.2]. Moreover, the interim order also doesn't suffer from any

procedural defects and also passes the test of proportionality [3.3].

3.1 THAT THE HIGH COURT WAS WELL WITHIN ITS POWER WHEN PASSING

THE INTERIM ORDER.

32. It is humbly submitted that three conditions have to be satisfied before injunction. The first

one is whether the plaintiff has prima facie case, the second one is whether the plaintiff

would suffer irreparable injury if his prayer for temporary injunction is not granted, and the

third one is whether the balance of convenience is in favor of the plaintiff or not. These

conditions or rules are the three pillars on which the foundation of every injunction rest and

hence is called the triple tests.43

33. The scope of prima facie case has been explained by the Hon'ble Court in the landmark

judgement of Martin Burn Ltd. v. R.N Banerjee44. The Supreme Court observed: "A prima

facie case does not mean a case proved to the hilt but a case which can be said to be

established if the evidence which is led in support of the same were believed. While

determining whether a prima facie case had been made out the relevant consideration is

43
Dorab Cowasji Warden v. CommiSorab Warden, (1990) 2 SCC 117.
44
Martin Burn Ltd. v. R.N Banerjee, 10 AIR 1958 SC 79.

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whether the evidence led it was possible to arrive at a conclusion in question and not whether

that was the only conclusion which could be arrived at on that evidence.

34. In the present case the villagers had a prima facie case as their right to livelihood was under

attack by the Horsehead boar as his diet shifted to Nice Dal from native tubers and plants,

which was the most commonly grown crop of the villagers and it was out of desperation that

the villagers appealed to the chief wildlife warden to allow the temporary hunting of the

boars so that their livelihood could be saved. Since a prima facie case should always precede

an order of injunction the Court will consider the other factors only when the prima facie

case is established. Therefore, in the present case, the villagers had sufficient prima facie

cases to seek interim relief from the Hon'ble High Court.

35. It is most respectfully submitted that the applicant also has to prove and satisfy the Court that

he will suffer irreparable injury if the injunction that is prayed is not granted, and that there is

no other remedy available to him by which he can protect himself from the consequences of

the apprehended injury. The Hon'ble Court must be satisfied that refusal to grant an

injunction would result in irreparable injury to the party that is seeking the relief. The

injunction is an interim relief and is to be exercised only when judicial intervention is

absolutely necessary to protect the interests of the applicant.

36. In the leading case of American Cyanamid Co. v. Ethicon Ltd 45. the house of Lords has held

that "the governing principle is that the Court should first consider whether, if the plaintiff

were to succeed at the trial in establishing his right to a permanent injunction, he would be

adequately compensated by an award of damages for the loss he would have sustained as a

result of the defendant continuing to do what was sought to be enjoined between the time of

the application and the time of the trial. If damages in the measure recoverable at common

45
American Cyanamid Co. v. Ethicon Ltd, 1975 AC 396.

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law would be adequate remedy and the defendant would be in financial position to pay them,

no interlocutory injunction should normally be granted, however strong the plaintiff's claim

appeared to be at that stage."46

37. It is humbly submitted before this Hon'ble Court that in the present case as the human

settlements expanded in Sloucher the expansion of farmland into tropical forestland

increased and the villagers were protective of the forestland surrounding their village, as well

as of the co-inhabiting flora and fauna and for this the villagers tried practicing agroforestry

so that the impact could be limited to minimum extent. Moreover, its because of the diet of

the horsehead boar that shifted from native tubers and plants to Nice Dal that caused the

problem to the livelihood of the villagers and for this all villagers needed was the temporary

order of killing the Boar not the permanent one. Thereby causing grave injury to the farmers

who have no recourse in sight.

38. The respondent humbly submits that balance of convenience must be in the favour of the

applicant i.e., the inconvenience and hardship caused will be greater to the applicant than the

opposite party. The Court should be fully satisfied that the comparative mischief or

inconvenience which is likely to be caused to the applicant by refusing the injunction will be

greater than the other party. In the present case it has been clearly mentioned that the primary

sources of employment for most of the population in Sloucher is agriculture and tourism and

the horsehead boar was destroying the said livelihood of the villagers by eating their crops.

39. The Hon'ble Court in the case of F.C.I. v.Yadav Engineer & Contractor47 has said that

"Interlocutory proceedings are incidental to the main proceedings. They have a life till the

disposal of the main proceeding. As the suit or the proceeding is likely to take some time

46
Supra note 53.
47
F.C.I. v. Yadav Engineer & Contractor (1982) 2 SCC 499.

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before the dispute in the suit is finally adjudicated, more often interim orders have to be

made for the protection of the rights of the parties." In Dalpat Kumar v. Prahlad Singh, 48 the

apex court held that while granting or refusing to grant injunction the Court should exercise

sound judicial discretion to find the amount of substantial injury which is likely to be caused

to the parties. The Petitioner is suffering substantial amount of injury in the present case and

moreover, the order of the high Court was not the permanent one but the interim in this case

and the order of hunting was only for the specific area.

3.2 THAT THE HIGH COURT HAS THE POWER TO INTERFERE WITH THE

DISCRETIONARY ORDER OF THE CHIEF WILDLIFE WARDEN.

40. The power of the High Courts to give relief under article 226 is a discretionary power. This is

especially true in the case of a power to issue writs in the nature of mandamus. Discretion is

exercised by the courts according to the facts and circumstances of each case. The Hon'ble

Court in the case of State of Maharashtra v. Digambar49has held that the "power of the High

Court to be exercised Under Article 226 of the Constitution, if is discretionary, its exercise

must be judicious and reasonable, admits of no controversy.

41. It was held by the Hon'ble Supreme Court that the interim order can always be passed by a

High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief

claimed so that at the time of final decision of the writ petition, in such situation the relief

may not become in fructuous50.

42. In the present case it was because of the development purposes that the forestland was

converted into farmland and to limit its negative impact the villagers were practicing

48
Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719.
49
State of Maharashtra v. Digambar (1995) 4 SCC 683.
50
Benedict Denis Kinni v. Tulip Brian Miranda, CIVIL APPEAL NOS.1429-1430/2020.

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agroforestry. Moreover, the order of hunting was required by the villagers only for a

temporary basis and that too for the limited area where the agricultural lands of the PSB

villagers were situated. Hence, the villagers out of desperation appealed to the chief wildlife

warden so that their livelihood could be safeguarded.

43. The Petitioner humbly contends that no hard-and-fast rule can be laid down as to when the

High Court should refuse to exercise its jurisdiction in favour of a party who moves it after

considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously

and reasonably. In the event that the claim made by the applicant is legally sustainable, delay

should be condoned. In other words, where circumstances justifying the conduct exist, the

illegality which is manifest, cannot be sustained on the sole ground of laches. 51

44. The Petitioner humbly contends that where a statute confers discretionary powers upon the

executive authority and the authority acts in an arbitrary manner, its action would be bad in

law and liable to be struck down by the courts. But the validity and the constitutionality of

such power cannot be judged on the assumption that the executive or such authority will act

in an arbitrary manner in the exercise of the discretion conferred upon it.52

45. It is humbly submitted that granting or refusing of temporary injunction rests on the sound

exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered

with by the appellate Court unless it is shown that such exercise of discretion is unreasonable

or capricious. In the present case, under section 11(1)(b) of the W.P.A., 1972, the chief

wildlife warden has the power to permit the hunting of the animals specified under Schedule

II, III, and IV if it has become dangerous to human life or property. It is also submitted that

51
Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185.
52
D.K. Trivedi & Sons v. State of Gujarat, 1986 Supp SCC 20.

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there has previously been a history of granting temporary hunting orders in the State to

protect the ecology, for instance, in the case of the bane toad.53

46. In the light of the aggravating circumstances in the State where there was a rising human–

wildlife conflict which resulted in a grave loss of rights for one party, the High Court ought

to have interfered to maintain the status quo as the Boar had caused heavy losses to the

farmers and if left to the warden's decision, the losses would have continued with no end in

sight and further pave the way for retaliatory actions on the farmers' end.

3.3 THAT THE ORDER DOESN'T FAIL THE TEST OF PROPORTIONALITY

47. The concept of the doctrine of proportionality is used as a criterion of fairness and justice in

statutory interpretation processes as a logical method intended to assist in discerning the

correct balance between the restrictions imposed by a corrective measure and the severity of

the nature of the prohibited act. Courts have the power of judicial review over administrative

actions. It means the Court can adjudge the legality and correctness of particular actions

taken by the executive authority.

48. The doctrine ordains that administrative measures must not be more drastic than is necessary

for attaining the desired result. If an action taken by an authority is grossly disproportionate,

the said decision is not immune from judicial scrutiny. Apart from the fact that it is an

improper and unreasonable exercise of power, it shocks the conscience of the Court and

amounts to evidence of bias and prejudice. The doctrine operates both in procedural and

substantive matters.

49. Proportionality is a principle where the Court is concerned with the process, method or

manner in which the decision-maker has ordered his priorities, reached a conclusion or

53
Moot proposition no. 2

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arrived at a decision. The very essence of decision-making consists of the attribution of

relative importance to the factors and considerations in the case. The doctrine of

proportionality thus steps in focus the true nature of the exercise—the elaboration of a rule of

permissible priorities.54

50. It is humbly submitted before this Hon'ble Court that the interim order of the Hon'ble High

Court doesn't infringe the test of proportionality as the villagers only wanted temporary

hunting of the boars and that too for the specific part where the agricultural lands of the

villagers were situated, the Boar was affecting the property of the villagers by eating their

crops. The villagers even practised agroforestry so that the ecosystem could be saved from

destruction, and hence the villagers took measures to preserve the environment around them.

51. The components of the doctrine of proportionality are - First, the measures adopted must be

carefully designed to achieve the objective in question. They must not be arbitrary, unfair or

based on irrational considerations. In short, they must be rationally connected to the

objective. Secondly, the means must not only be rationally connected to the objective in the

first sense but should impair as little as possible the right to freedom in question. Thirdly,

there must be 'proportionality' between the effects of the measures and the objective. The

above three principles have been cited by the Hon'ble Court in the case of Om Kumar v

U.O.I55. In the present case, the measures that were adopted were not arbitrary or unfair as

the Boar was infringing on the right of livelihood of the villagers. The measure adopted

would have solved the conflict and would preserve the rights of the farmers. Moreover, the

54
Coimbatore District Central Coop. Bank v. Employees Assn. 32 (2007) 4 SCC 669.
55
Om Kumar v. Union of India, AIR 2000 SC 3689.

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order of hunting was required for a temporary period and for a specific area. Therefore, the

remedy lies in tightening the procedure and not abolishing the procedure itself. 56

52. In K.V Sebastian v. State of Kerala,57 the Court permitted the boars to be hunted on a

temporary basis after considering the heavy losses that were incurred by the farmers in the

State by an interim order. Hence, there is indeed proportionality between the effects of

measures and the objective.

ISSUE 4 – WHAT ALTERNATIVE COURSE OF ACTION COULD BE ADOPTED IN

THE INSTANT CASE TO BALANCE THE INTERESTS OF ALL PARTIES?

53. In the present case, no alternative course of action can be resorted to other than the proposed

solution of temporary hunting order.[4.1] The alternative solutions contemplated would not

be feasible and wouldn't address the urgency of the situation.[4.2] It is also brought forth that

there are no existing policies of H.W.C. mitigation, and there cannot be an action to the effect

without a guiding policy by the executive or authorities.[4.3]

4.1 NO ALTERNATIVE ISSUES FEASIBLE AND PRACTICAL

54. In the present situation, the conflict between humans and wildlife rose to such a degree that

the right to livelihood of the farmers was deprived, which required urgent necessary

intervention. The word "necessary" was construed to mean indispensable, needful or

essential.58 It was held that unless the Government was satisfied "beyond reasonable doubt",

the laying of the pipeline was indispensable for the better management of wildlife.

Examples of such "necessary" destruction etc. wildlife/forest would be the cutting of trees to

prevent the spread of forest fires or an infestation or the culling of animals, or weed

56
I P MASSEY, ADMINISTRATIVE LAW 62 (EBC Publishing (P) Ltd., Lucknow 2017).
57
WP(C) No.21207/2020.
58
Essar Oil Ltd. v. Halar Utkarsh Samiti, [2004] 2 S.C.C. 392

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eradication.59 It is pointed out that such measures originate from the Chief Wildlife Warden

himself and are only for the purpose of enhancing wildlife and its habitat. Even this power

was subject to check by the State Government.

55. The hunting order granted was a temporary measure where the animals were to be hunted in

a localised area, that is, the farmlands, where the horsehead boars would crop, raid and come

into contact with the farmers. The other alternative measures cannot be adopted in the present

instance where the severity of damage is such that it requires an urgent solution to be made.

It is also seen that alternative remedies will not be feasible or ethical either.

56. In the present situation, the boars are only allowed to be killed which are in close proximity

to the farmers and has such a grave impact on their agriculture, affecting their livelihood and

has also caused a serious dereliction of their own foraging patterns for which its impact

continues to be still unknown, the action taken by the Hon'ble Court proves to be the only

existing remedy.

57. Anthropocentric bias cannot be attributed to the current decision that has been made by the

Hon'ble High Court in the present case as if done so; it would fail to differentiate between

legitimate and illegitimate human interests. If this very attribute permits the wildlife

mentioned in Schedule II and after to be hunted if it endangers human life and property60.

58. Man-animal conflict often takes place when wild animals cause damage to agricultural crops

and property, killing livestock and human beings. Human population growth, land use

transformation, species loss of habitat, ecotourism, too much access to reserves, increase in

livestock population bordering the forest, depletion of natural prey base, etc., are often stated

59
Ibid.
60
Kopnina, H., Washington, H., Taylor, B. et al. Anthropocentrism: More than Just a Misunderstood Problem. J
Agric Environ Ethics 31, 109–127 (2018). https://doi.org/10.1007/s10806-018-9711-1.

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to be reasons for such conflict.61. These mandates the Government to intervene at the right

time take precautionary measures, but the lack of policy and legislation with regard to

Human-Wildlife Management would leave such measure out of permissible limits of

delegation to the chief wildlife warden.

59. It also stated as per the precautionary principle coined in the landmark case of Narmada

Bachao Andolan v. Union of India62 , that the burden of proof shall lie on the person who

wants to change status quo will ordinarily apply in a case of polluting or other project or

industry, where the extent of damage likely to be inflicted is not known63. But in the same

judgment it is also stated that when the ecological damage is unknown it needs to be seen if

then there is any destruction and if any steps to mitigate it can be taken or else there can't be a

presumption that change that is to occur will be sure short recipe for an ecological disaster.

60. The courts have time and again reiterated the need to strike a balance between development

and the environment, and there can't be one leaning in favour of the others. The over-zealous

approach to favor the environment poses an impediment to development. By minimising

adverse effects of H.W.C. and applying stringent safeguards like a temporary hunting order

in a very localised area, it is possible to carry on development activities applying the

principles of sustainable development in that eventuality, and development has to go on

because one cannot lose sight of the need for the development of industries, irrigation

resources and power projects, etc. including the need to improve employment opportunities

and the generation of revenue64.

Cost of resettlement of villagers impractical

61
E. Sheshan v. Union of India 2013 SCC OnLine Mad 2959.
62
Narmada BacahoAndolan v. Union of India 10 S.C.C.664
63
Ibid.
64
M.C Mehta v. Union of India, 1987 SCR (1) 819.

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61. It is humbly submitted that the cost of resettlement of humans in terms of social and

economic value far surpasses the good that is to come from their relocation. The

displacement activities should ensure good rehabilitation facilities. The effect of

rehabilitation should be such that on their rehabilitation at new locations they are better off

than what they were.65 It has been observed that during resettlement the displaced persons

encounter several problems relating to the location, quality and quantity of land and other

ancillary resources necessary for agricultural activities.66 The Indian agriculturists generally

have no avocation. They totally depend upon land. If uprooted, they will find themselves

nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall

back upon. They know no other work.67

62. It is also brought to the attention that the cost of resettlement would be very high as it would

mandate the provision of conditions similar to or even better to the displaced population. No

State of any country can have unlimited resources to spend on any of its projects. That is why

it only approves its projects to the extent it is feasible. There also is no government policy as

to the rehabilitation of such farmers and thereby no such action can be proposed either.

63. Uprooting these villagers gives a responsibility to the govt. to ensure that some sort of

financial security is provided to them, which is not always possible as such communities do

not have, oftentimes, the required skill set to survive in urban settlements. These people

cannot be made to face the brunt of conservational activities, with just one side facing the

fruits of conservation.68

65
Supra note 4
66
Development Induced Displacement and Resettlement: Analysis of Judicial Policy, 55 JILI (2013) 346
67
K. Krishna Reddy v. Spl. Dy Collector, Land Acqn. Unit II, LMD Karimnagar
68
A brief discussion on this issue with respect to Tadoba-Andhari Tiger Reserve relocation process can be found
here - Rucha Ghate, Relocation versus Wildlife Preservation, 40 No. 46 EPW 4807, 4808 (2005).

MEMORIAL ON BEHALF OF THE PETITIONER 23

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64. The right to livelihood cannot be subjected to the individual fancies of the persons in

authority. The sweep of the right to life conferred by Article 21 is wide and far-reaching69.

One of the important aspects of that right is the right to livelihood because, no person can

live without the means of living, that is, the means of livelihood.

65. It is further submitted that relocation leads to the development of inequities between

communities and pushes people, already suffering, over the edge as relocation programmes

are often, unfortunately, for the reasons cited above, inadequate and inconsiderate to the

social, economic & psychological conditions of these people. Like the intent of the W.P.A.

there needs to be balancing of human and wildlife interest70. There can't be a loss of either of

their rights so instead of aggravating human-wildlife conflict, the hunting order, which is not

indiscriminate only for a limited period in at localised area, would serve the purpose than

resettlement.

4.2 OTHER MEASURES NOT VIABLE

66. In parts of Maharashtra, a study finds blackbuck, nilgai and wild boar all damage jawar

crops. Wild Boar, in addition, raid potato, rice, bajari and ground nut crops; blackbucks enjoy

wheat, tomato and chilly crops; and nilgai raid oil-seed fields71. Farmers have tried a number

of solutions to the problem, without success. Attempts to plant johar and pulse crops in place

of cotton have not deterred crop raiding72. The Forest Department has tried other solutions

without success. A relocation attempt resulted in the death of six blackbucks; a planned safari

park failed when local panchayats refused to give up promised lands, and a shared-cost

69
Delhi Development Horticulture Employees’ Union v Delhi Admn., (1992) 4 SCC 995.
70
Moot Proposition no. 3
71
Preliminary Report on Crop Damage in Maharashtra by Nature Conservation Society, Amravati.
Source:KishoreRithe.
72
Ibid.

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4th WILDLIFE PROTECTION GLC NATIONAL MOOT COURT COMPETITION, 2022

fencing plan proved too expensive for farmers. In the present case, Horsehead boar has stared

foraging on Nice Dal like in the above-mentioned instance and the other proposed possible

solutions are similar but the ground reality of their efficacy is often questionable. Agro

forestry is another possible solution has already been undertaken by the PSB villagers which

has not yielded much result either73. Also, on resettlement of the animals it has been found

that this does not mitigate the problem in many areas, even increasing the conflict in release

sites.74

67. Without ensuring alternative and remedies by the Government the pressure on the local

communities continue. This results in negative interaction between wildlife and humans.

There also exists resource constraints for people to meet these other resource of unpalatable

crop farming, fencing or other modern technology. Also due to a lack of alternative

livelihood, such incidents of livestock predation and crop depredation by wildlife hits the

local communities hard. Hence, it is crucial that the local institutions, central Government

and civil society bodies work together in tandem to ensure that not just ecological diversity

but economic diversity is also maintained for holistic conservation. 75

4.3 NO STANDARD POLICY FOR HUMAN-WILDLIFE MITIGATION

68. At present, there are no national policies which ensure H.W.C. mitigation. It is also beyond

the purview of the current W.P.A. Act to address any other possible solution apart from

temporary hunting orders for the problematic animal when the conflict has escalated to such

a degree that there is a serious impairment of life and property.

73
Moot proposition no. 4
74
(Nath and Sukumar, 1998; Athreya et al., 2011).
75
Karanth K.K., Gopalaswamy A.M., Defries R. and Ballal N. (2012). Assessing patterns of human-wildlife
conflicts and compensation around a central Indian protected area. PLoS ONE, 7(12):e50433

MEMORIAL ON BEHALF OF THE PETITIONER 25

4th WILDLIFE PROTECTION GLC NATIONAL MOOT COURT COMPETITION, 2022

69. There exists a standing committee of the National Board of Wildlife (SC-NBWL) which is to

create a plan for human-wildlife conflict mitigation and to take chief wildlife wardens'

opinion into consideration for mitigation as well but the efficacy of it is still not

considerable.76

76
Gulati S, Karanth KK, Le NA, Noack F. Human casualties are the dominant cost of human-wildlife conflict in India.
Proc Natl Acad Sci U S A. 2021 Feb 23;118(8):e1921338118. doi: 10.1073/pnas.1921338118.

MEMORIAL ON BEHALF OF THE PETITIONER 26

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PRAYER

Wherefore, in light of the Issues raised, Authorities cited and Arguments advanced, it is most

humbly and respectfully requested that the Hon'ble High Court of Sloucher be pleased to:

1. DECLARE, that T.W.C. should not be allowed to intervene in the writ petition.

&

2. UPHOLD, the Interim order of the Hon'ble High Court to permit the farmers to hunt the

Horsehead Boar in their agricultural fields for a limited period of time

&

3. ISSUE DIRECTIONS to the Chief wildlife warden to grant a temporary permit to hunt

Horsehead Boar temporarily.

AND/OR

PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT IN THE

BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE. FOR

THIS ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND FOREVER

PRAY.

The Petitioner

Sd/-

(Counsel for the Petitioner)

MEMORIAL ON BEHALF OF THE PETITIONER 27