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SUPREME COURT OF INDIA
Kurian Joseph, Sanjay Kishan Kaul, JJ.
FERANI HOTELS PVT. LTD. – APPELLANT
Versus
THE STATE INFORMATION COMMISSIONER GREATER MUMBAI & ORS. – RESPONDENTS
CIVIL APPEAL Nos.9064-9065 of 2018 [Arising out of SLP(C) Nos.32073-32074/2015]
Decided On : 27-09-2018
(b) Right to Information Act, 2005 – Section 8(1)(d) & 8(1)(j) – Under section 6(2) anybody should be able to obtain the information as long as it is part of the public record – There is no necessity to give any reason – Section 74, Indian Evidence Act, 1872 – Section 3, Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (now repealed) and Section 11(1), Real Estate (Regulation and Development) Act, 2016 requiring full disclosure by developer – Held, full disclosure is in public interest – Respondent No.3 seeking certified copies of the approved plans and its modifications – Permitted by Section 52(1)(f) Copyright Act, 1957 and authorized by section 22 of the Act – Respondent no. 3 not seeking disclosure of any personal information – It is in public interest – Section 8(1) does not apply – Plea of vendetta rejected. (Para 15, 22, 23, 24, 26)
(2013) 16 SCC 82 – Relied upon
WP No.4057/2016(Mad) – Cited with approval
AIR 2007 Gujarat 203 – Distinguished
CA No.3396/2015 – Referred
(c) Right to Information Act, 2005 – Section 10 – Pre-requisite – Some of the information sought should be protected by section 8 – Instantly section 8 not applicable – Hence section 10 also does not have application. (Para 30)
(d) Right to Information Act, 2005 – Section 11 – Right of third party filing objection to be heard – Instantly PIO permitting appellant and even the architect to raise objections and dealing with the same – The State Commission also doing the same, in appeal – Held, section 11 has been complied with. (Para 31)
(e) Right to Information Act, 2005 – Section 3(c) – Contention that owner of the property, who has given authority to a developer under an agreement to develop the property and obtain sanctions, is precluded from obtaining any information about the sanctions, because ultimately he would be entitled to only a percentage of the monetary share of sale proceeds of what is constructed on the premises – Rejected
(Para 33)
Facts of the case:
Late Shri E.F. Dinshaw was the owner of three plots in Malad (West), Mumbai and Mr. Nusli Neville Wadia/respondent No.3 is the sole administrator of the estate and effects of late Shri E.F. Dinshaw. A Development Agreement dated 2.1.1995 was executed inter se respondent No.3 and Ferani Hotels Private Limited /appellant for carrying out the development on the said three plots. This Agreement was coupled with an irrevocable Power of Attorney executed by respondent No.3 in favour of the appellant. However, disputes have arisen between the parties sometime in the year 2008.
Respondent No.3 terminated the Power of Attorney and the Development Agreement on 12.5.2008 and, on the very next day, a suit was filed by respondent No.3 for inter alia declaration that the said Power of Attorney and the Development Agreement had been validly terminated. Interim relief, pending consideration of the suit, qua further construction and demolition was also sought.
Respondent No.3 filed an application before the Public Information Officer, Municipal Corporation of Greater Mumbai seeking certain information in respect of the plots in question.
The PIO declined to give information.
Appeal filed by respondent 3 was finally allowed in second appeal by State Chief Information Commissioner. High Court declined to interfere.
Finding of the Court:
There is no merit in the appeal. It is a legal misadventure.
Result: Appeal dismissed.
Key Points: - A third party has the right to file objections and to be heard under Section 11 of the RTI Act (!) (!) . - The person seeking information under RTI does not have to give any reason (!) (!) . - Information cannot be denied if it is not personal or lacking public interest; disclosure of plans approved by public authorities is in public interest (!) (!) (!) . - Pre-requisite of Section 10 is that some information sought is protected by Section 8; otherwise Section 10 does not apply (!) . - The development plans, layouts, and amendments submitted to public authorities are not protected as commercial confidence or intellectual property and must be disclosed (!) (!) (!) .
JUDGMENT
SANJAY KISHAN KAUL, J.
1. The present appeal raises the issue of disclosure under the Right to Information Act, 2005 (hereinafter referred to as the ‘said Act’), seeking information regarding the plans submitted to public authorities by a developer of a project.
2. Late Shri E.F. Dinshaw was the owner of three plots in Malad (West), Mumbai and Mr. Nusli Neville Wadia/respondent No.3 is the sole administrator of the estate and effects of late Shri E.F. Dinshaw. It may be noted that there is litigation pending qua the functioning of respondent No.3 as an administrator, but it is not in doubt that at present, there is no interdict against him in performing his role as the sole administrator. A Development Agreement dated 2.1.1995 was executed inter se respondent No.3 and Ferani Hotels Private Limited /appellant for carrying out the development on the said three plots. This Agreement was coupled with an irrevocable Power of Attorney executed by respondent No.3 in favour of the appellant. However, disputes are stated to have arisen between the parties some time in the year 2008.
3. As a consequence of the disputes having arisen, respondent No.3 is stated to have terminated the Power of Attorney and the Development Agreement on 12.5.2008 and, on the very next day, Suit No.1628/2008 was filed by respondent No.3 for inter alia declaration that the said Power of Attorney and the Development Agreement had been validly terminated. Interim relief, pending consideration of the suit, qua further construction and demolition was also sought.
4. The question of grant of interim relief has also had a chequered history. The interim relief was originally granted by learned Single Judge of the Bombay High Court vide order dated 19.7.2010, limited to the extent of restraining the appellant from putting any party in possession of any constructed premises, except with the approval of respondent No.3, during the pendency of the suit. This order was assailed before the Division Bench, which initially stayed the interim order on 26.7.2010, and finally vacated it on 19.7.2012, calling upon the learned Single Judge to first consider the issue as to whether the suit was within time. The order of the Division Bench was assailed before this Court, in Nusli Neville Wadia vs. Ferani Hotels (Pvt.) Ltd. & Ors., Order dated 8.4.2015 in CA No.3396/2015 where the legal issue raised related to the local amendment in Maharashtra, to the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’), whereby Section 9A was inserted. Section 9 of the said Code mandates trial of suits of civil nature excepting suits in which their cognizance is either expressly or impliedly barred. In terms of Section 9A, notwithstanding anything contained in the said Code, or any other law for the time being in force, in case of an objection being raised as to the jurisdiction of the Court to entertain a suit, the Court is mandated to proceed to determine the same as a preliminary issue, before proceeding with the question of granting or setting aside of an interim order. It is the interpretation of this provision, which received the attention of the Supreme Court in the Special Leave Petition filed in this Court, against the order of the Division Bench. In terms of the order dated 8.4.2015, it was held that Section 9A, introduced as the Maharashtra Amendment, was mandatory in nature.
5. The aforesaid proceedings are relevant for the present case only for limited purposes, since we are only concerned, herein, with an application under the provisions of the said Act. In the application for interim relief filed before the learned Single Judge, one of the prayers made was for disclosure of a set of documents, as sought for by the counsel for respondent No.3 vide letter dated 29.3.2012, which the counsel for the appellant had refused to disclose. However, neither in the adjudication before the learned Single Judge, nor before the Division Bench, nor before this Court,
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