The main legal point established in the judgment is the interpretation of the limitation period for filing an application under Section 49N of the Wildlife (Protection) Amendment Act, 2022, and the interplay between the Act and the Breeders of Species License Rules, 2023.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The petitioner is engaged in breeding in captivity exotic species of birds. The petitioner applied under Section 49N of the Wildlife (Protection) Amendment Act, 2022 (hereinafter referred to as, “the 2022 Act”) for registration on July 18, 2023. By a Notice dated August 9, 2023, 15 day’s time was granted to the petitioner to rectify the application. Upon such rectification, the petitioner re-filed the same on August 25, 2023. The respondents insisted that the petitioner files the application under Form-II; however, since the petitioner was already engaged in breeding such species, Form-I was the appropriate provision as per Rule 3(1), for which the petitioner did not so file. The application was rejected on the ground of delay. According to the respondent-Authorities, the same was filed beyond the statutory outer limit of 90 days from the commencement of the 2022 Act.

2. Learned counsel for the petitioner submits that Section 49(1) stipulates 90 day’s limitation period for filing of an application to the Chief Wildlife Warden (CWW). Sub-section (2) provides that the form and manner of the application, the fee payable, the form of licence, the procedure to be followed in granting or cancelling the licence shall be such as may be prescribed by the Central Government.

3. The Central Government, however, published the Breeders of Species License Rules, 2023 (for short, “the 2023 Rules”) on April 24, 2023 and the same was notified in the Official Gazette on April 28, 2023. It is argued that as Section 49N(2) of the 2022 Act provides that the form and manner of the application and the fee payable shall be such as prescribed by the Central Government, in the absence of any such Rules being promulgated before April 24, 2023, there was no scope for the petitioner to file such application. In fact, it is contended that the period of 90 days should be calculated from April 28, 2023, when the Rules came into force and not from April 1, 2023 when the 2022 Act came into force, on a proper reading of the provisions of the Act and the Rules. From such perspective, the application was filed on July 18, 2023, that is, well within 90 days from the promulgation of the Rules.

4. Insofar as the objection as to maintainability of the writ petition on the ground of alternative remedy is concerned, learned counsel for the petitioner argues that Section 49-O of the 2022 Act, read with the 2023 Rules, indicates that the CWW has to first receive the application and scrutinize the same and thereafter may reject or cancel the same. In the present case, the petitioner?s application was refused to be accepted at the outset. Hence, there was no “rejection” or “cancellation” as such. Thus, it would be premature to prefer an appeal under Section 49-O of the 2022 Act.

5. Rule 10 of the 2023 Rules also provides for an appeal against an order under Rule 8. Rule 8 speaks of cancellation of licence, which can only take place once licence is issued. The petitioner was never favoured with any issuance of licence and, as such, no appeal lies under Rule 10 as well.

6. Learned counsel petitioner also cites an unreported judgment dated December 19, 2023 passed by this Court in WPA No. 25583 of 2023 [Sukanta Mallick Vs. Union of India and others] in support of his arguments.

7. Learned counsel appearing for the Union of India contends that the writ petition is not maintainable since Section 49-O(4) clearly provides for an appeal against any refusal or cancellation of licence by the CWW. It is argued that the judgment of Sukanta Mallick (supra) has been challenged in an appeal before the Division Bench which is now pending. It is further argued that the said judgment does not deal with the bar under Section 49-O of the 2022 Act at all; hence, ought not to be relied on.

8. It is settled law, learned counsel argues, that the Act shall prevail over the Rules. Section 49-O clearly provides for an appeal before the State Government and