Green Tribunal bill to be introduced

NEW DELHI: The government is expected to introduce a draft legislation this week to set up a National Green Tribunal (NGT) for deciding civil matters related to the environment.

Talking to reporters after launching the Bengal Tiger Conservation Programme, Minister of State for Environment and Forests Jairam Ramesh said he hoped that the bill be cleared soon by the Parliament as the Ministry had got full support from the Law Commission and other concerned stake holders.

“The Cabinet has already approved the proposal of the Ministry of Environment and Forests to bring a bill in this regard, proposing to take off the pressure from the already overburdened judiciary by handling all the civil cases related to forestry and environment,” he said. Once approved by Parliament, the four-member tribunal led by a full-time judicial member will decide civil cases relating to the central environment-related laws, and also take up public interest litigations.

Appeals against the environment courts would go to the Supreme Court. The new tribunal will also replace government bodies such as the National Environment Tribunal Act of 1995 and the National Environmental Appellate Authority Act of 1997.

Failure to comply with the orders of the green tribunal would result in heavy penalty and imprisonment of three years, as per the draft legislation.

Press Release:Link is http://www.pib.nic.in/release/release.asp?relid=51426

Rajya Sabha

The draft National Green Tribunal Bill, 2009 has been approved by the Cabinet in its meeting held on 23.07.2009.The Ministry of Environment and Forests submitted a Note for the Cabinet on 17.7.09 proposing establishment of the National Green Tribuna. The Ministry of Environment and Forests does not issue “No Objection Certificate”. However, environmental clearances are given to industrial and infrastructure projects under the Environment Impact Assessment (EIA) Notification, 2006 and the Coastal Regulation Zone (CRZ) Notification, 1991. Similarly, under the provisions of the Forest (Conservation) Act 1980, prior approval of the Central Government is essential for diversion of forest land for non-forestry purposes. This is to regulate the indiscriminate diversion of forest land for non forestry use and to maintain a logical balance between the developmental needs of the country and the conservation of natural resources.

Minister of State for the Ministry of Environment and Forests (Independent charge) Shri Jairam Ramesh replied in a written question by Shri Motilal Vora in Rajya Sabha today.

Adnan Arrested, Got Anticipatory Bail from Bom HC

Playback singer Adnan Sami, facing charges of cruelty and cheating in a criminal case filed by his wife Sabah Galadari, has been arrested and granted bail.

Sami was called to Oshiwara police station last night. He was asked to give two sureties of Rs 15,000 each, his lawyer Vibhav Krishna said today.

Sami was granted Anticipatory Bail by the Bombay High Court which ruled that if the police wanted to arrest him they should intimate him in advance and grant bail.

In keeping with the High Court directive, the police called Sami and asked him to give sureties, his lawyer said.
Sabah had filed a criminal case alleging that Adnan had cheated her and subjected her to cruelty. She claimed that the singer had tried to remove her from the house and alleged that he had an affair with another woman.

Fearing arrest, the singer moved the sessions court which rejected his plea for anticipatory bail. He then moved the High Court which granted him bail.

Sabah and Adnan are also fighting over the ownership of flats in Lokhandwala complex of suburban Andheri which he has gifted to her.

SUPREME COURT UPHOLDS R K ANAND'S CONVICTION FOR BRIBERY IN BMW CASE

The Supreme Court has upheld the conviction of advocate R K Anand for trying to win over the prosecution witness to save Sanjeev Nanda, accused in the BMW hit-and-run case, resulting in the death of seven people.

A bench comprising by Justice B N Agrawal, Justice G.S. Singhvi & Justice Aftab Alam on 29-07-2009 in the case of R.K. Anand & Another Versus Registrar, Delhi High Court, however, acquitted another advocate I U Khan.

Anand was held guilty of contempt of court by the Delhi High Court for trying to obstruct the course of justice and was debarred from appearing in any court in Delhi including High Court for four months.

He was caught on camera in a sting operation conducted by a private news channel while trying to win over the prosecution witness Sunil Kulkarni by offering him money on behalf of Sanjeev Nanda, son of an arms dealer and grandson of former Navy chief S M Nanda.

The Delhi High Court has also ordered prosecution of Kulkarni holding him guilty of misleading the court.

Anand was caught on camera while negotiating the deal with Kulkarni and telling him to demand Rs five crore from the Nandas.

He has also been stripped of his designation as senior advocate.

Supreme Court Issues Notice to R K Anand for Enhancing His Punishment:

Describing the quantum of punishment awarded by the Delhi High Court to a leading Delhi lawyer R K Anand, convicted for contempt of court, as wholly inadequate the Supreme Court issued him notice for enhancing his punishment for trying to win over a prosecution witness in the BMW hit-and-run case to save culprit Sanjeev Nanda, currently undergoing imprisonment.

The Delhi High Court, in June last year, had debarred R K Anand and I U Khan for four months from appearing in any court in Delhi, including the High Court after holding them guilty of contempt of court for obstructing the course of justice by influencing the witnesses in the case in which seven persons were killed by Nanda, who was driving his BMW in an inebriated state.

Also deprecated the attitude of Bar Council of India and state bar councils for their dismal failure to keep up high professional standards among lawyers.

The apex court also pulled up the High Court for remaining a mute spectator when the BMW case trial was being hijacked by the powerful and influential culprit through the use of money and muscle power.

Justice Alam, speaking for the bench, noted that the petitioner Anand should have been debarred from appearing in the courts for a much longer time.

The apex court, however, allowed the appeal of I U Khan and acquitted him of the charge of contempt of court.

It further said the full High Court might also consider whether I U Khan should be allowed to continue with the designation of a senior.

The High Court had also imposed a fine of Rs 2,000 each on both Anand and Khan.

Anand was caught on camera telling prosecution witness Sunil Kulkarni to demand Rs five crore from the Nandas. Both the lawyers were to have share of 50 per cent each.

The High Court has already ordered the prosecution of Kulkarni for perjury.

WARRANT ISSUED BY FOREIGN COURT CAN'T BE EXECUTED IN INDIA, HOLDS SUPREME COURT

The Supreme Court has held that a warrant issued by a foreign court could not be executed in India without a formal request from the Government concerned for extradition of the accused.

A bench comprising Justices S B Sinha and Mukundakam Sharma in Bhavesh Jayanti Lakhani vs. State of Maharashtra & Ors., on 7/8/2009, set aside the Bombay High Court order, whereby it had refused to stay the arrest of an NRI B J Lakhani who is facing allegations of kidnapping his own daughter from the custody of her mother.

Interpretation of the roles and responsibilities of the Central Bureau of Investigation (CBI) vis-`-vis the of the Extradition Act, 1962 referred to as "the Act") is involved in this appeal.

BACKGROUND FACTS
Appellant and the respondent No. 6 are citizens of India. He went to Michigan to pursue his studies in M.S. (Computer Engineering) between August, 1998 and May, 2000. He also worked as a Software Engineer at California in a company named Broadbase Software upto 2001. He was
later on employed as a Technical Lead in a Government Contract Firm at California known as Ancore Corporation between 2001 and 2003.
Appellant married the respondent No. 6 on 6.04.2002 at Mumbai. They moved to California on 19.04.2002 and stayed there till 2005. Out of the said wedlock, a daughter Eesha was born on 26.04.2003. Marital life of the Appellant and the Respondent No. 6 was however not happy. According to the respondent No. 6, she was continuously being harassed. She applied for grant of permanent asylum on 1.07.2003 allegedly under coercion from the appellant. Later on the respondent No. 6 allegedly moved to her sister's house at Sharon Massachusetts, USA.

PROCEEDINGS IN USA

She filed a complaint with the Sharon Police Department on 26.04.2005. On or about 09.05.2005 an application before the Probate and Family Court of Massachusetts for grant of divorce was filed by her. In the said proceeding, she also sought for orders of custody of her daughter. The Probate and Family Court, Massachusetts passed an order of temporary custody of the child, restraint and abuse prevention ex parte in favour of the respondent No.6 and against the appellant on 10.05.2005. Service of the said order is said to have been effected on the appellant on 20.05.2005. Allegedly, he neither appeared before the Court contesting the
said interim custody order nor sought for any modification thereof. Respondent No.6 took up a job and continued to live with her child in Massachusetts. She contends that her Indian Passport was stolen by the appellant from the premises which was being occupied by her.
Admittedly, the appellant came to India with the child on 15.04.2006 in violation of the court custody orders.

Contentions of Parties:

Mr.Radhakrishnan, learned senior counsel appearing on behalf of Union of India submitted :-

(i) Having regard to the prayers made in the writ petition by the appellant before the High Court, the High Court had no jurisdiction to interfere with the red corner notice or the yellow notice ;

(ii) Despite the fact that the CBI was informed that fugitive criminal was in Mumbai, he had not been detained.
(iii) Keeping in view the provisions contained in Chapter III of the Act in terms whereof before passing an order of extradition the Magistrate is required to be satisfied whether the Appellant is a fugitive criminal and furthermore in view of Section 29 thereof empowers the Central Government i.e. Respondent to discharge any fugitive criminal if it appears to it to be a case of trivial nature.

(iv) The C.B.I. despite having informed the U.S. authorities as regards the whereabouts of the appellant, no request for extradition having been received by the Central Government,
the writ petition must held to be pre-mature.

Dr. Rajiv Dhavan, learned senior counsel, who was requested to assist us in the matter raised the following contentions:

(i). The Central Bureau of Investigation does not have any authority to deal with Red Corner Notices issued by the Interpol Secretarial General at the behest of any member country.

(ii). No red corner notice can be issued in violation of civil liberties of an Indian and particularly in a matrimonial case, the effect whereof may result in -

a) detention ;
b) arrest ;
c) circulation of name on website ; and
d) surveillance
which would amount to gross violations of law as the appellant's personal liberty, as contained in Articles 19 and 21 of the Constitution of India, would have been interfered
with, without any authority of law. As no law operates in the field, the actions of the State and in particular the Central Bureau of Investigation are unconstitutional and invalid, being violative of the civil liberties of the citizens of India.

(iii). The executive power is coterminous with the legislative ower but the legislative power wherever exists, should not be permitted to be used so as to interfere with the right of an
individual and in particular private rights of the citizens.
(iv). Any executive or departmental instructions framed for the guidance of the police officers being not a law no executive power can be exercised to curtail the fundamental right of a
citizen in terms thereof

(v). Central Bureau of Investigation having been constituted in terms of the provisions of Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the "DSPE Act"), and
having regard to the limitations of its powers contained therein, it could not exercise its jurisdiction within the territories of a State without its consent.

(vi). C.B.I. had no jurisdiction of surveillance in terms of the Red Corner Notice or Yellow Corner Notice issued by the Interpol or otherwise.

(vii). C.B.I. being a creature of the statute must be held to be boundby the provisions of the DSPE Act and cannot act in a sui generis capacity.

(viii). C.B.I. having a limited territorial jurisdiction, its services cannot be used outside its territorial framework.

(ix). The High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration the relevant provisions of the Code of Criminal Procedure enacted in terms of Code of Criminal Procedure (Amendment) Act, 1993

(x). In terms of inserted Section 105A to 105L of the Code of Criminal Procedure, the C.B.I. could not have acted except in terms of specific order of the court passed in that regard.

(xi). A matrimonial dispute between spouses and in particular in regard to the custody of a child being essentially a dispute of civil nature, the provisions of the Act could not have been put
to service.

(xii). In any event the provisions of the Act cannot be pressed in red corner notice cases and the deportation provisions under the Foreigners Act should not be misused thereby.

(xiii). The High Court committed a serious error in passing the impugned judgment both in regard to the conclusion as well as directions in so far as it utterly failed to take into consideration the civil liberties aspect as also the provisions of the Criminal Procedure Code.


Mr. G.E. Vahanvati, learned Attorney General for India, who was also requested to assist us in the matter upon taking appropriate instructions from the Ministry of External Affairs, as would appear from our order dated 24th March, 2009, would also contend that the High Court judgment is unsustainable as it failed to take into consideration:

a) There is nothing on record to show that the appellant had committed an extraditable offence within the meaning of the provisions of the Extradition Treaty entered into by
and between India and the United States of America ;

b) A matrimonial dispute would not ordinarily come within the purview of the Act;
c) The provisions of the Act as also enforcement of the Extradition Treaty would arise only when a person is a fugitive criminal and he has committed an extraditable offence and not otherwise.

THE EXTRADITION TREATY

The Extradition Treaty between the Government of Republic of and the Government of the United States of America entered into 21st July, 1999. It was published in the Official Gazette dated 14th 1999. By reason of Article 1 thereof the Contracting States to extradite to each other, pursuant to the provisions thereof, who, by the authorities in the requesting State are formally
 of, charged with or convicted of an extraditable offence, such offence was committed before or after the entering into of the Treaty.

Article 2 defines extraditable offence to mean an offence under the laws in both the Contracting States by deprivation liberty, including imprisonment, for a period of more than one year by a more severe penalty.

An offence shall also be an extraditable one if it consists of an or a conspiracy to commit, aiding or abetting, counseling or the commission of or being an accessory before or after the to, any offence described in paragraph 1.

Article 4 defines political offenses. Clause (2) of Article 4 inter provides that offences related to illegal drugs, shall not be treated to political offence.

Article 9 provides for extradition procedures and required the relevant portion whereof reads as under:

"Article 9 - Extradition Procedures and Required
Documents :-
1. All requests for extradition shall be submitted
through the diplomatic channel.

2. All requests for extradition shall be supported by :

(a) documents, statements, or other types of
information which describe the identity and
probable location of the persons sought ;

(b) information describing the facts of the
offense and the procedural history of the
case ;

(c) a statement of the provisions of the law
describing the essential elements of the
offense for which extradition is requested ;

(d) a statement of the provisions of the law
describing the punishment for the offense ;
and

(e) the documents, statements, or other types of
information specified in paragraph 3 or
paragraph 4 of this Article, as applicable.

3. A request for extradition of a person who is sought
for prosecution shall also be supported by :

(a) a copy of the warrant or order of arrest,
issued by a judge or other competent
authority ;

(b) a copy of the charging document, if any, and

(c) such information as would justify the
committal for trial of the person if the
offense had been committed in the
Requested State."


Article 10 provides that the documents accompanying an request shall be received and admitted as evidence in proceedings if in the case of a request from the United they are certified by the principal diplomatic or principal officer of the Republic of India resident in the United States or
are certified or authenticated in any other manner accepted by the in the Requested State.

Article 12 of the Treaty reads as under:
" Provisional Arrest

1. In case of urgency, a Contracting State may
request the provisional arrest of the person sought
pending presentation of the request for extradition.
A request for provisional arrest may be transmitted
through the diplomatic channel. The facilities of
the International Criminal Police Organisation
(Interpol) may be used to transmit such a request.

2. The application for provisional arrest shall
contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case,
including, if possible, the time and location of the
offense;
(d) a description of the laws violated;
(e) a statement of the existence of a warrant of a
warrant of arrest or a finding of guilt or judgment
of conviction against the person sought; and
(f) a statement that a request for extradition for
the person sought will follow.
 21



3. The Requesting State shall be notified
without delay of the disposition of its application
and the reasons for any denial.

4. A person who is provisionally arrested may
be discharged from custody upon the expiration of
sixty (60) days from the date of provisional arrest
pursuant to this Treaty if the executive authority of
the Requested State has not received the formal
request for extradition and the supporting
documents required in Article 9.

5. The fact that the person sought has been
discharged from custody pursuant to paragraph (4)
of this Article shall not prejudice the subsequent
rearrest and extradition of that person if the
extradition request and supporting documents are
delivered at a later date."



Article 17 provides that a person extradited under the Treaty may be detained, tried or punished in the requesting State except for the enumerated therein.


Lastly, it is also imperative to note the provisions of Article 21

which read as under:


"Article 21 - Consultation

The competent authorities of the United States and the Republic of India
may consult with each other directly or through the facilities of Interpol in
connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of the Treaty."

Furthermore it ought to be noted that India has entered into two with the United States of America. The first treaty has been entered in 1999 and the second in 2001. The 2001 Treaty however deals with of mutual legal assistance by one country to another is not fairly
in the instant case.

A Georgia court in the US had issued an arrest warrant against Lakhani and Interpol subsequently issued red cornered notice (RCN) for his arrest.

Disposing Lakhani’s appeal, the apex court concurred with the stand of Ministry of External Affairs (MEA), which had said, ‘Even violation of an order passed by the court of competent jurisdiction in the US was punishable for six months only. Lakhani cannot be extradited for the commission of such an offence.’ Lakhani had married H Thakker on April 6, 2002, in Mumbai. The couple later shifted to California where they had a daughter in April 2003.

A family court at Massachusets had handed over the custody of the child to the mother.

ONLY STATE GOVT CAN DECIDE THE PLACE OF POSTING OF GOVT SERVANT:SC

The Supreme Court has held that a court cannot examine the integrity and service records of an employee while examining a transfer order passed by an employer.

A bench of Justices Tarun Chatterjee and R M Lodha, while dismissing the appeal of one sub-registrar, who was under transfer from Ghaziabad to Hapur, noted that it is the exclusive prerogative of the state government or Inspector General of Registration to decide his place of posting.

Speaking for the Bench, Justice Lodha in the 9-page judgment pulled up the Allahabad High Court and noted, ‘We are pained to observe that the High Court seriously erred in deciding as to whether respondent no 5 was a competent person to be posted at Ghaziabad VI as the sub-registrar.’ ‘That exercise undertaken by the High Court did not fall within its domain and was rather uncalled for,’ added Justice Lodha.

‘We are unable to approve the direction issued to the state government and IG of Registration to transfer a competent officer at Ghaziabad VI as sub-registrar after holding that respondent no 5 (Rajendra Singh) cannot be said to be an officer having a better conduct and integrity in comparison to the petitioner (Karvendra Singh) justifying his posting at Ghaziabad VI,’ he said.

‘The High Court entered into an arena which did not belong to it and thereby commited a serious error of law. The only question required to be seen was whether transfer of respondent no 5 was actuated with mala fides or otherwise in violation of statutory rules,’ he observed.

‘The transfer of respondent no 5 was not found to suffer from any of these vices. The High Court went into the competence and suitability of respondent no 5 for such posting.

‘It is here that the High Court fell into a grave error. The impugned order of the High Court cast stigma in the service of respondent no 5 which may also add prejudicial to his interest in the pending appeal against the adverse remarks,’ he stated.

The controversy arose when Rajendra Singh was transferred on July 31, 2007 from Hapur to Ghaziabad as sub-registrar and the petitioner Karvendra Singh was shifted to Hapur II as sub-registrar.

The High Court, while upholding the transfer of Karvendra Singh, quashed the transfer of Rajendra Singh on the ground that the officer was a man of doubtful integrity as vigilance inquiry was ordered against him and he also had an adverse entry in his service record which was made in 2005.

The plea of Rajendra Singh that he has been a given clean chit by the vigilance department and his appeal against adverse entry is pending disposal.

The plea of Karvendra Singh that he had been transferred within a month of his posting on the basis of complaint of one Radhey Lal, Sanyojak Dalit Morcha Sangharsh Samiti, Lucknow and transfer order was arbitrary, stigmatic and suffered from non-application of mind.

The apex court in its judgment also noted that ‘a government servant has no vested rights to remain posted at a place of his choice, nor can he insist that he must be posted at one place or the other.

‘He is liable to be transferred in the administrative exigencies from one place to the other. No government can function if the government servant once appointed or posted at a particular place or position, continues in such place or position as long as he desires.

‘It is for the state government or IG of Registration to decide about his place of posting.’ ‘As to at what place respondent no 5 should be posted is an exclusive prerogative of the state government,’ Justice Lodha stated.

POTA COURT AWARDS DEATH TO ’03 MUMBAI BOMBERS

A SPECIAL Pota (Prevention of Terrorist Activities) court has awarded death sentence to the three accused held guilty for the 2003 blasts that killed over 50 people.

Six years after two blasts at the iconic Gateway of India and Zaveri Bazaar, three Lashkar-e-Toiba members — Mohammed Hanif Sayeed (46), his wife Fahmida (43) and Ashrat Ansari (32) — were sentenced to death. This is for the first time that a couple has been convicted by a Pota court for carrying out blasts.

The special court Judge P R Puranik observed it had been proved beyond reasonable doubt that they had committed heinous acts resulting in numerous deaths. The court agreed with special public prosecutor Ujjwal Nikam that this was a rarest of the rare case where capital punishment was justified.

The trio was held guilty of planting two bombs in taxis that exploded at the Gateway of India and Zaveri Bazaar on August 25, 2003, claiming 52 lives and injuring 244. They had also planted a bomb on July 28, 2003, in a municipal bus in suburban Ghatkopar which killed two persons. The three were given death penalty under section 3(2) of Pota, and IPC sections 302 (murder), 307 (attempt to murder) and 120(b) (conspiracy).

Soon after the verdict was pronounced, police whisked away Sayeed, Fahmida and Ansari to different jails. Fahmida broke down outside the court while her husband did not react and stood calm by her side. Ashrat said: “Is andhe kanoon se kya insaaf milega (what justice can you get when the law is blind).”

Commenting on the verdict, Mr Nikam said: “We are happy that justice has been delivered. This would send a strong message to terrorists that they would get such punishment if they indulged in barbarous acts.” “Initially they had planted a bomb in a bus but since few people were killed, they decided to use powerful bombs on the instructions of Laskhar-e-Toiba,” Mr Nikam said.

They have also been sentenced to varying prison terms under the provisions of Explosives Substances Act, Explosives Act and Prevention of Damage to Public Property Act.

Mr Nikam said Fahmida had played a major role in these bomb blasts. She had planted a bomb in a bus on July 28, 2003, along with her husband’s friend Ashrat and on August 25, 2003, she and her husband Hanif planted bombs in taxis at the Gateway of India.

“Fahmida had actively participated in the process of selection and approval of location of targets. Though Fahmida was a woman she was equally cruel as other accused in the execution of conspiracy,” Mr Nikam said.

The prosecutor said Hanif was an autorickshaw driver in Mumbai and had gone to Dubai to attend a meeting during which a conspiracy was hatched by LeT to carry out the blasts. Ashrat had planted bomb in another taxi which exploded in Zaveri Bazaar.

Mr Nikam said Zaveri Bazaar in south Mumbai was chosen since the trio wanted to target the famous Mumbadevi temple nearby. The historic Gateway of India was also chosen since they wanted to target the nearby Hotel Taj where many foreign tourists stay. “The aim of LeT was to destabilise India with these blasts,” the special public prosecutor said.

Along with the couple Hanif and Fahmida, their 16-year-old daughter was also arrested for her alleged involvement in the blasts. However, she was discharged since the prosecution chose not to investigate the charges against her as she was a minor. Two other accused, Mohammed Ansari Ladoowala and Mohammed Hasan Batterywala, were also discharged from the case by the Pota court after the Supreme Court upheld a Pota review committee report that said there was no case against the duo.

DLF CONSORTIUM BAGS HARYANA METRO DEAL

The country's largest real estate player, DLF, has announced a fully-privately financed metro rail project for its townships in Gurgaon with a project cost of Rs 900 crore.

"The government of Haryana has awarded the construction of the metro system in Gurgaon. A consortium of DLF and IL&FS has bagged the contract. The process to form a special purpose vehicle is on to construct and operate the system," DLF said.

The project called 'DLF MetroRail, Gurgaon' has been bagged on concession by the consortium for a period of 99 years to build and operate the metro sytem, it added. The consortium, where DLF would have a 26% stake while IL&FS would hold the rest, would invest invest Rs 900 crore in developing the project.

According to a DLF spokesperson, the Special Purpose Vehicle (SPV) would raise Rs 700 crore within the next 6 months. The mode of raising would, however, be decided in due course of time.