FERANI HOTELS PVT. LTD. versus THE STATE INFORMATION COMMISSIONER GREATER MUMBAI & ORS. on 27 September 2018

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SUPREME COURT REPORTS

[2018] 12 S.C.R.

FERANI HOTELS PVT. LTD.

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THE STATE INFORMATION COMMISSIONER

GREATER MUMBAI & ORS.

(Civil Appeal Nos.9064-9065 of 2018)

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SEPTEMBER 27, 2018

[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]

Right to Information Act, 2005 – ss. 6(1), 8(1)(d), 8(1)(j)Cand 9 – Information regarding the plans submitted to publicauthorities by a developer of a project – Disclosure of – Adevelopment agreement was executed between respondent no.3 andappellant for carrying out development on a property – Disputearose between the parties – Respondent no.3 filed application u/s.6(1) of the Act before the Public Information Officer (PIO) andDsought information regarding development plans submitted by theappellant – Information was declined by PIO – First AppellateAuthority partly allowed the appeal filed by the respondent no.3,by disclosing information regarding one question only out of fivequestions – However, respondent no.3 succeeded in second appealE– Aggrieved, writ petition was filed by the appellant and same wasdismissed – On appeal, held: There was no ‘personal information’of which disclosure was sought – It cannot be said that informationsought had no relation to public activity or interest, or that it wasunwarranted, or there was an invasion of privacy – The provisionsof sub-section (3) of s.11 of RERA, mandatorily required theFdeveloper to display sanction plan/layout plans along withspecifications, approved by the competent authority at the site orsuch other places, as may be specified by the Regulations made bythe Authority – That respondent no.3 was the administrator of theproperty in question and that did not reduce his rights as opposedGto anyone, including a flat buyer – Costs of Rs.2.50 lakhs imposedon appellant – Real Estate (Regulation and Development) Act, 2016– s.11(3) – Copyright Act, 1957 – ss.52(1)(f) and 22 – EvidenceAct, 1872 – s.74.

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Dismissing the appeals, the Court

HELD: 1. Section 11 of the Real Estate (Regulation andDevelopment) Act, 2016, provides the functions and duties ofpromoters. The duties are more elaborate, as under Section 11(1)of the RERA the promoter has to create his web page on thewebsite of the Authority and enter all details of the proposedproject as provided under sub-section (2) of section 4, in all thefields as provided, for public viewing. The promoter, in terms ofsub-section (3) of Section 11 of the RERA is required to makeavailable to the allottee information about sanctioned plans,layout plans along with specifications, approved by thecompetent authority, by display at the site or such other place asmay be specified by the Regulations made by the Authority. Theobject is clearly to bring greater transparency. [Para 22][258-C-E]

2. The fate of purchase of land development andinvestments is a matter of public knowledge and debate. Anyjudicial pronouncement must squarely weigh in favour of thefullest disclosure, in this behalf. In fact, the Division Bench ofthe Madras High Court in Dr. V.I. Mathan & Ors. vs. Corporationof Chennai & Ors. opined that though the Chennai MetropolitanDevelopment Authority mandated plans to be displayed at thesite and also be made available on the website, the sameprinciple should apply to the Corporation for all other sanctionedplans and, thus, issued directions for display of the plans on thewebsite of the Corporation, and at the site, with clearvisibility. This was just prior to the RERA coming into force.[Para 23] [258-E-G]

3. In the aforesaid circumstances, even by a test of publicinterest, it can hardly be said that the same would not apply inmatters of full disclosure of information of development plans toall and everyone. If one turns to the provisions of Section 8 ofthe said Act and the clauses under which the exception is sought,clause (d) deals with information relating to commercialconfidence, trade secrets or intellectual property, which has thepotentiality to harm the competitive position of a third party.Firstly, the definition of a third party under Section 2(n) of thesaid Act means a person other than a citizen requesting for A

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Ainformation to a public authority. Under Section 11 of the saidAct, the third party has a right to be heard and to object to thedisclosure of information. The disclosure of plans, which arerequired to be in public domain, whether under the repealed Actor RERA, can hardly be said to be matters of commercialconfidence or trade secrets. In fact, ex facie, these terms wouldBnot apply to the matter at hand. Similarly, insofar as theintellectual property is concerned, the preparation of the planand its designs may give rise to the copyright in favour of aparticular person, but the disclosure of that work would notamount to an infringement and, in fact, Section 52(1)(f) of theCCopyright Act, 1957 specifically provides that there would be nosuch infringement if there is reproduction of any work in acertified copy made or supplied in accordance with any law forthe time being in force. This is what is exactly sought for byrespondent No.3 – certified copies of the approved plans and itsmodifications, from the public authority, being the Corporation.DAlso, section 22 of the said Act provides for an overriding effectwith a notwithstanding clause qua any inconsistency with any otherAct. The aforesaid provision would not imply that a disclosurepermissible under the Copyright Act, 1957 is taken away underthe provisions of the said Act, but rather, if a disclosure isEprescribed under any other Act, the provisions of the said Actwould have an overriding effect. [Paras 24, 25][258-G-H;259-A-E]

4. Similarly, clause (j) of sub-section (1) of Section 8 of thesaid Act ex facie would have no relevance. There is no ‘personalFinformation’ of which disclosure is sought. Further it cannot besaid that it has no relation to public activity or interest, or that itis unwarranted, or there is an invasion of privacy. These aredocuments filed before public authorities, required to be put inpublic domain, by the provisions of the Maharashtra OwnershipFlats (Regulation of the Promotion of Construction, Sale,GManagement and Transfer) Act, 1963 and the RERA, and involvesa public element of making builders accountable to one and all.That respondent No.3, in fact, happens to be the administrator ofthe property in question, which will certainly not reduce his rightsas opposed to anyone else, including a flat buyer. [Para 26]H[259-G-H; 260-A-B]

5. Keeping in mind the provisions of RERA and theirobjective, the developer should mandatorily display at the sitethe sanction plan. The provision of sub-section (3) of Section 11of the RERA require the sanction plan/layout plans along withspecifications, approved by the competent authority, to bedisplayed at the site or such other places, as may be specified bythe Regulations made by the Authority. Keeping in mind theground reality of rampant violations and the consequencesthereof, it is advisable to issue directions for display of suchsanction plan/layout plans at the site, apart from any othermanner provided by the Regulations made by the Authority. Thisaspect should be given appropriate publicity as part ofenforcement of RERA. [Para 34] [261-E-F]

Nusli Neville Wadia v. Ferani Hotels (Pvt.) Ltd. & Ors.(Decision dated 08.04.2015 in CA No.3396/2015 ofBombay High Court) ; Thalappalam ServiceCooperative Bank Ltd. & Ors. v. State of Kerala & Ors.(2013) 16 SCC 82 : [2013] 14 SCR 475 ;Dr. V.I. Mathan& Ors. v. Corporation of Chennai & Ors.(Decision dated 22.03.2016 in WP No.4057/2016 ofMadras High Court) ;Reliance Industries Ltd. v.Gujarat State Information Commission & Ors.AIR 2007 Gujarat 203 – referred to.

Case Law Reference

[2013] 14 SCR 475 referred to

Para 13

AIR 2007 Gujarat 203 referred to

Para 28

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9064-9065 of 2018.

From the Judgment and Order dated 30.10.2015 of the High Courtof Judicature at Bombay in Writ Petition (L) No.1806 of 2015 and WritPetition No.789 of 2015 respectively.

Dr. A.M. Singhvi, Gopal Jain, Sr. Advs., Abhimanyu Bhandari,Vivek Vashi, Ms. Roohina Dua, Ms. Aliya Khan, Naveen Kumar, Advs.for the Appellant.

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AGourab Banerji, Sr. Adv., Rohan Kelkar, Ms. Nandini Gore,Ms. Tahira Karanjawala, Ms. Natasha S., Ms. Khushboo Bari, ArjunSharma, Mandeep Kalra, Jasvir Singh, Mrs. Manik Karanjawala(for M/s Karanjawala & Co.), Mrs.Suchitra Atul Chitale, Gurjyot Sethi,Advs. for the Respondents.B The Judgment of the Court was delivered by A

SANJAY KISHAN KAUL, J.1. The present appeal raises theissue of disclosure under the Right to Information Act, 2005 (hereinafterreferred to as the ‘said Act’), seeking information regarding the planssubmitted to public authorities by a developer of a project.

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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 thesole administrator of the estate and effects of late Shri E.F. Dinshaw. Itmay be noted that there is litigation pending qua the functioning ofrespondent No.3 as an administrator, but it is not in doubt that at present,Dthere is no interdict against him in performing his role as the soleadministrator. A Development Agreement dated 2.1.1995 was executedinter se respondent No.3 and Ferani Hotels Private Limited /appellantfor carrying out the development on the said three plots.ThisAgreement was coupled with an irrevocable Power of Attorneyexecuted by respondent No.3 in favour of the appellant. However,Edisputes are stated to have arisen between the parties some time in theyear 2008.

3. As a consequence of the disputes having arisen, respondentNo.3 is stated to have terminated the Power of Attorney and theDevelopment Agreement on 12.5.2008 and, on the very next day, SuitFNo.1628/2008 was filed by respondent No.3 for inter alia declarationthat the said Power of Attorney and the Development Agreement hadbeen 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 chequeredGhistory. The interim relief was originally granted by learned Single Judgeof the Bombay High Court vide order dated 19.7.2010, limited to theextent of restraining the appellant from putting any party in possessionof any constructed premises, except with the approval of respondentNo.3, during the pendency of the suit. This order was assailed before H

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 Judgeto first consider the issue as to whether the suit was within time. Theorder of the Division Bench was assailed before this Court, in NusliNeville Wadia vs. Ferani Hotels (Pvt.) Ltd. & Ors.,[1] where the legalissue raised related to the local amendment in Maharashtra, to the Codeof Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’),whereby Section 9A was inserted. Section 9 of the said Code mandatestrial of suits of civil nature excepting suits in which their cognizance iseither expressly or impliedly barred. In terms of Section 9A,notwithstanding anything contained in the said Code, or any other lawfor the time being in force, in case of an objection being raised as to thejurisdiction of the Court to entertain a suit, the Court is mandated toproceed to determine the same as a preliminary issue, beforeproceeding with the question of granting or setting aside of an interimorder. It is the interpretation of this provision, which received theattention of the Supreme Court in the Special Leave Petition filed in thisCourt, against the order of the Division Bench. In terms of the orderdated 8.4.2015, it was held that Section 9A, introduced as theMaharashtra Amendment, was mandatory in nature.

5. The aforesaid proceedings are relevant for the present caseonly for limited purposes, since we are only concerned, herein, with anapplication under the provisions of the said Act. In the application forinterim relief filed before the learned Single Judge, one of the prayersmade was for disclosure of a set of documents, as sought for by thecounsel for respondent No.3 vide letter dated 29.3.2012, which thecounsel for the appellant had refused to disclose. However, neither inthe adjudication before the learned Single Judge, nor before the DivisionBench, nor before this Court, was this aspect discussed at all, eventhough this relief had been claimed throughout. The adjudication,instead, rested on the issue of the provisions of Section 9A, inserted byway of a Maharashtra Amendment in the said Code, coupled with theplea of limitation. We may add here, that as per learned counsel forrespondent No.3, these set of documents are not identical to what formsthe subject matter of information sought, now, under the said Act.

6. We may now turn to the direct controversy in question, whichemanates from an application filed by respondent No.3 under Section 1Order dated 8.4.2015 in CA No.3396/2015

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A6(1) of the said Act before the Public Information Officer (for short‘PIO’), Municipal Corporation of Greater Mumbai. Vide applicationdated 10.12.2012, the following information in respect of the plots inquestion was sought:

“(a) Certified copies of all PR cards submitted.B

(b) Certified copies of all plans and amendments therein fromtime to time submitted by the Ferani Hotels Ltd. and/or by its anydivisions and/or its Architect.

(c) Certified copies of all Layouts, Sub-Division Plans andamendments therein form(sic.)[2] time to time submitted by the FeraniCHotels Ltd. and/or by its any divisions and/or its Architect.

(d) Certified copies of all development plans and any amendmentstherein from time to time submitted by the Ferani Hotels Ltd. and/or its any divisions and/or its Architect.

D(e) Certified copies of all Reports submitted to the MunicipalCommissioner and his approvals to the same.”

7. The Advocates for the appellant, however, objected to thedisclosure of the information on the grounds, as per Section 11(1)of the said Act:

E(a) That it did not serve any social or public interest but was forthe private interest of respondent No.3 in the suit filed before theBombay High Court.

(b) That the information sought in the suit proceedings had notbeen granted by the High Court of Bombay, and an appeal againstFthe said findings were pending before this Court, thereby makingthe information sought, sub-judice.

(c) That respondent No.3 was a competitor in business and, thus,disclosure would cause harm and injury to the appellant’scompetitive position, as well as to their valuable intellectualGproperty rights. The information sought for was stated to involvecommercial and trade secrets, disclosure of which would bedetrimental to the interest of the appellant.

(d) That the architect of the appellant informed that all rights inrespect of the plans, clarifications, designs, drawings, etc. and the H2To be read as ‘from’.

work comprised therein, including intellectual property rights andin particular copyright, were reserved and vested exclusively inthe appellant.

The PIO, vide its letter dated 8.1.2013, declined to giveinformation in view of the objections filed by the counsel for theappellant. This communication stated that the information could not begiven as per Sections 8(1)(d), 8(1)(g), 8(1)(j) as well as Sections 9 and11(1) of the said Act, since there was no public interest, as also onaccount of the claim of copyright.

8. Respondent No.3 filed an appeal under Section 19(1) of thesaid Act on 12.2.2013, which was disposed of by the First AppellateAuthority, vide order dated 1.4.2013, permitting the information soughtunder the first head to be given, while declining the information underheads 2 to 4 for the same reasons as set out by the PIO. The5[th] information sought was stated to be too detailed and hence was notpossible to be given out. This resulted in a second appeal before theState Chief Information Commissioner (for short ‘SCIC’) under Section19(3) of the said Act on 28.6.2013. Respondent No.3 succeeded in thesecond appeal in terms of order dated 31.1.2015, the order beingpredicated on the reasoning that the development of the property hasconnection with public interest, as flats erected thereon would bepurchased by the citizens at large.

9. It was now the turn of the appellant to assail this order, beforethe High Court, by filing a writ petition, being Writ Petition (L)No.1806/2015, which was dismissed vide impugned order dated30.10.2015. The reasoning was based on the very object of the said Actbeing incorporated, which was to secure access to information, underthe control of public authorities, to citizens, in order to promotetransparency and accountability. The documents sought, being for thedevelopment of land and being copies of plans, layouts, sub-division plans,etc., which had in turn received the attention and approval of theCommissioner of the Corporation (a public authority), and were underhis control, the same were to be supplied to anyone seeking the same.The Division Bench then proceeded to refer to the exceptions carvedout under Sections 8 & 9 of the said Act to ultimately hold that theinformation sought for was part of public record and had to be revealedin public interest, and could not be said to be in the nature of trade AB

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Asecrets or of commercial confidence, or of a nature which would harmthe competitive position of the appellant. It also dealt with the objectionof the appellant qua the endeavour of respondent No.3 to seek theinformation in the suit proceedings to hold that the said Act was alegislation which confers independent legal right de hors inter se rightsbetween the parties.B

10. The aforesaid order has, thus, given rise to the present appealfiled by the appellant. We heard Dr. A.M. Singhvi, learned seniorcounsel for the appellant and Mr. Gourab Banerji, learned seniorcounsel for respondent No.3, both seeking to forcefully put forth theirstand. We may note that the private disputes inter se the appellant andCrespondent No.3 have given rise to this contentious proceeding, wherethe issue in question was, in our opinion, really innocuous. We haveconsidered the submissions advanced by learned counsel.

11. We may note, at the inception itself, that Mr. Gourab Banerji,learned senior counsel for respondent No.3 did not even press the lastDset of documents sought, which was earlier held to be rather expansivein nature. The first set of information sought is stated to have alreadybeen disclosed. The controversy, thus, related to the 2[nd] to 4[th] set ofinformation sought, which consists of the plans with amendments, layouts,sub-division plans with amendments and all other development plansEwith amendments. At the inception of the hearing, we had, in fact, put tolearned senior counsel for the appellant, as to what serious objectioncould they have to the disclosure of these documents, which were reallypublic documents, having been submitted to the concerned authority andforming part of the sanction process. The persistence over this issue, asnoticed above, is clearly the result of the private dispute, rather than anyFobjective consideration qua the issue of disclosure of information.

12. The first objection raised by learned senior counsel for theappellant flowed from the endeavour of respondent No.3 to seekinformation in the suit proceedings, which endeavour had not beensuccessful. Learned senior counsel contended that no leave had beenGtaken qua that aspect of the matter and, thus, applying any of theprinciples whether of issue estoppel, constructive res judicata, orelection of remedy, respondent No.3 could not be permitted to agitatethe issue twice over. Learned counsel sought to refer to the result of theendeavour to obtain interim reliefs in general by respondent No.3, but H

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that, to our mind, would be completely irrelevant. In this behalf, theinformation sought for, arising from the letter of the counsel forrespondent No.3, dated 29.3.2012, has to be examined. We haveperused that letter. In substance what has been sought iscommunications inter se the appellant and public authorities, approvalsgranted by the Corporation, compliances, occupation certificate,application submitted to authorities, revenue records, documentspertaining to stamp duty, agreement with prospective flat buyers, etc. Ifwe compare this information sought with what has been sought underthe said Act, there is little doubt that the information sought under thesaid Act is different and specific, i.e., dealing with the approved plansand their modifications, which is part of the record of the public authority’ssanction. Not only that, even if we look at the aspect of the relief prayedfor, arising from the letter; that has not really formed the subject matterof adjudication, before any of the three judicial forums; what receivedthe attention of the Court was quite different, and related to preliminarydetermination arising from the provision introduced in the MaharashtraAmendment by way of inserting Section 9A in the said Code. This isapart from the aspect, which we will discuss a little later, of the scopeand operation of the said Act, in respect of information being sought byany person, even a third party. We have, thus, no hesitation in rejectingthis objection that the plea for disclosure of information arose inprevious civil proceeding, inter se the parties, and had been denied.

13. The second defence against public disclosure of thisinformation, raised by learned senior counsel for the appellant, is thatrespondent No.3 has failed to disclose any ‘larger public interest’, asmandated under the said Act, and that the third respondent has no locusstandi to seek such information especially when the information fallsunder Sections 8(1)(d) & 8(1)(j) of the said Act. To buttress the plea, areference has been made to the judgment of this Court in ThalappalamService Cooperative Bank Ltd. & Ors. vs. State of Kerala & Ors.[3]opining that if the information falls under clause (j) of sub-section (1) ofSection 8 of the said Act, in the absence of bona fide public interest,such information is not to be disclosed. It may be noted, at this stage,that even clause (d) of sub-section 1 of Section 8 of the said Act allowsfor disclosure of exempted information in larger public interest, and hencea similar test would apply.

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A14. To appreciate this submission, one would have to turn to thevery Statement of Objects & Reasons of the said Act, which has alsobeen discussed in the impugned order. The said Act was a milestone inthe endeavour to make government authorities more accountable to publicat large by facilitating greater and more effective access to information.The Preamble, thus, itself states that “the practical regime of right toBinformation for citizens to secure access to information under thecontrol of public authorities, in order to promote transparency andaccountability in the working of every public authority” was beingestablished. Section 2(f) of the said Act defines ‘Information’ and readsas under:C“2. Definitions. – In this Act, unless the context otherwiserequires, - xxxxxxxx xxxxxxxx (f) “information” means any material in any form, including records,Ddocuments, memos, e mails, opinions, advices, press releases,circulars, orders, logbooks, contracts, reports, papers, samples,models, data material held in any electronic form and informationrelating to any private body which can be accessed by a publicauthority under any other law for the time being in force;”

EThe ‘Right to Information’ is defined under Section 2(j) of thesaid Act, which reads as under:

“2. Definitions. – In this Act, unless the context otherwiserequires, - xxxxxxxxxxxxxxxx

F(j) “right to information” means the right to informationaccessible under this Act which is held by or under the control ofany public authority and includes the right to—

(i) inspection of work, documents, records; G(ii) taking notes, extracts, or certified copies of documents orrecords;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes,video cassettes or in any other electronic mode or throughprintouts where such information is stored in a computer or in anyother device;”

We may note that there is no dispute that the Corporation is apublic authority within the definition of Section 2(h) of the said Act.

We may also note the definition of a ‘third party’ in Section 2(n)of the said Act, which provides as follows:

“2. Definitions. – In this Act, unless the context otherwiserequires, - xxxxxxxx xxxxxxxx (n) “third party” means a person other than the citizen making arequest for information and includes a public authority.”

15. The purport of the said Act is apparent from Section 6 of thesaid Act, which provides for the manner of making a request forobtaining information. In terms of sub-section (2) of Section 6 of thesaid Act, there is no mandate on an applicant to give any reason forrequesting the information, i.e., anybody should be able to obtain theinformation as long as it is part of the public record of a public authority.Thus, even private documents submitted to public authorities may, undercertain situations, form part of public record. In this behalf, we mayusefully refer to Section 74 of the Indian Evidence Act, 1872, defining‘public documents’ as under:

“74. Public documents. — The following documents are publicdocuments:—

(1) Documents forming the acts, or records of the acts—

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, [of anypart of India or of the Commonwealth], or of a foreign country;

(2) Public records kept [in any State] of private documents.”

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16. The only exemption from disclosure of information, ofwhatever nature, with the public authority is as per Sections 8 & 9 of thesaid Act. Thus, unless the information sought for falls under theseprovisions, it would be mandatory for the public authorities to disclosethe information to an applicant.

17. The endeavour of the appellant is to bring the informationsought for by respondent No.3, under the exemption of Section 8, morespecifically clauses (d) and (j) of sub-section (1), as also Section 9 of thesaid Act. The provisions read as under:

“8. Exemption from disclosure of information.—

(1) Notwithstanding anything contained in this Act, there shall beno obligation to give any citizen, xxxx xxxx xxxxxxxx (d) information including commercial confidence, trade secrets orintellectual property, the disclosure of which would harm thecompetitive position of a third party, unless the competentauthority is satisfied that larger public interest warrants thedisclosure of such information; xxxx xxxx xxxxxxxx (j) information which relates to personal information thedisclosure of which has not relationship to any public activity orinterest, or which would cause unwarranted invasion of theprivacy of the individual unless the Central Public InformationOfficer or the State Public Information Officer or the appellateauthority, as the case may be, is satisfied that the larger publicinterest justifies the disclosure of such information: Provided thatthe information, which cannot be denied to the Parliament or aState Legislature shall not be denied to any person.”

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“9. Grounds for rejection to access in certain cases.—Without prejudice to the provisions of section 8, a Central PublicInformation Officer or State Public Information Officer, as thecase may be may reject a request for information where such arequest for providing access would involve an infringement ofcopyright subsisting in a person other than the State.”

18. The issue of the test of larger public interest would, thus, ariseif it falls within those exceptions.

19. Now turning to the information sought for, as enunciated above,they are really, plans relating to the property in question. These plansare required to be submitted by the person proposing to construct on theproperty, to the Commissioner of the Corporation. The appellant hassubmitted these plans to the Corporation, in pursuance of theDevelopment Agreement and the Power of Attorney executed byrespondent No.3. As to how these plans are processed, is referred to inthe order of the State Information Commissioner dated 31.1.2015, inpara 7, which reads as under:

“(7) On inquiry, the Public Information Officer in the BuildingProposal Department of the Municipal Corporation of GreaterMumbai, clarified that there is prevailing procedure under Rightto Information Act, for giving copy of map and proposal receivedfrom developer. The proposals received from developer, arebeing sent to the Tax Assessment Department, Water EngineerDepartment, as well as to the office of concerned AdministrativeWard. Besides, also to the Rain Water Drainage Department,Road Department & Fire Brigade etc., of which department noobjection or specific approval is required. Besides this, if it isnecessary as per local circumstance the reference is also madeto Railway Department, Airport Authority and to otherCommittees. In the Building Proposals received, it includes theparticulars of plot, the information related to F.S.I. of open space,sectional plan and drawing.”

The aforesaid, thus, shows that considerable processing isrequired before the plans reach the stage of sanction level.

20. The Maharashtra Ownership Flats (Regulation of thePromotion of Construction, Sale, Management and Transfer) Act, 1963(hereinafter referred to as the ‘Maharashtra Act’) in Section 3 providesfor the General Liabilities of Promoters. In terms of sub-section (2) ofSection 3, a promoter, who constructs or intends to construct a block orbuilding of flats was required to comply with many disclosurerequirements, inter alia clause (l), which reads as under:

“(l) display or keep all the documents, plans or specifications (orcopies thereof) referred to in clauses (a), (b) and (c), at the site A

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Aand permit inspection thereof to persons intending to take ortaking one or more flats;”

21. The object of the aforesaid was that the purchaser should beable to get full information of the sanction plan. It can hardly be saidthat while a purchaser can get the information, the person whoBadministers the land as owner and grants the authority through a Powerof Attorney to develop the land, would not have such a right.

22. We may note that this Act was, however, repealedspecifically by Section 92 of the Real Estate (Regulation andDevelopment) Act, 2016 (hereinafter referred to as the ‘RERA’), whichCnow, under Section 11 of the RERA, provides the functions and duties ofpromoters. The duties are more elaborate, as under Section 11(1) of theRERA the promoter has to create his web page on the website of theAuthority and enter all details of the proposed project as provided undersub-section (2) of section 4, in all the fields as provided, for publicviewing. The promoter, in terms of sub-section (3) of Section 11 of theDRERA is required to make available to the allottee information aboutsanctioned plans, layout plans along with specifications, approved by thecompetent authority, by display at the site or such other place as may bespecified by the Regulations made by the Authority. The object is clearlyto bring greater transparency.

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23. The fate of purchase of land development and investments isa matter of public knowledge and debate. Any judicial pronouncementmust squarely weigh in favour of the fullest disclosure, in this behalf. Infact, the Division Bench of the Madras High Court in Dr. V. I. Mathan& Ors. vs. Corporation of Chennai & Ors.[4 ](to which one of us, SanjayFKishan Kaul, J. was a party) opined that though the ChennaiMetropolitan Development Authority mandated plans to be displayed atthe site and also be made available on the website, the same principleshould apply to the Corporation for all other sanctioned plans and, thus,issued directions for display of the plans on the website of theCorporation, and at the site, with clear visibility. This was just prior toGthe RERA coming into force.

24. In the aforesaid circumstances, even by a test of publicinterest, it can hardly be said that the same would not apply in matters offull disclosure of information of development plans to all and everyone.

H4 Order dated 22.3.2016 in WP No.4057/2016

If we turn to the provisions of Section 8 of the said Act and the clausesunder which the exception is sought, clause (d) deals with informationrelating to commercial confidence, trade secrets or intellectual property,which has the potentiality to harm the competitive position of a thirdparty. Firstly, as observed aforesaid, the definition of a third party underSection 2(n) of the said Act means a person other than a citizenrequesting for information to a public authority. Under Section 11 of thesaid Act, the third party has a right to be heard and to object to thedisclosure of information. The disclosure of plans, which are required tobe in public domain, whether under the repealed Act or RERA, canhardly be said to be matters of commercial confidence or trade secrets.In fact, ex facie, these terms would not apply to the matter at hand.Similarly, insofar as the intellectual property is concerned, thepreparation of the plan and its designs may give rise to the copyright infavour of a particular person, but the disclosure of that work would notamount to an infringement and, in fact, Section 52(1)(f) of the CopyrightAct, 1957 specifically provides that there would be no such infringementif there is reproduction of any work in a certified copy made or suppliedin accordance with any law for the time being in force. This is what isexactly sought for by respondent No.3 – certified copies of the approvedplans and its modifications, from the public authority, being theCorporation. We may also note that Section 22 of the said Act providesfor an overriding effect with a notwithstanding clause qua anyinconsistency with any other Act, which reads as under:

“22. Act to have overriding effect.—The provisions of thisAct shall have effect notwithstanding anything inconsistenttherewith contained in the Official Secrets Act, 1923 (19 of 1923),and any other law for the time being in force or in any instrumenthaving effect by virtue of any law other than this Act.”

25. The aforesaid provision would not imply that a disclosurepermissible under the Copyright Act, 1957 is taken away under theprovisions of the said Act, but rather, if a disclosure is prescribed underany other Act, the provisions of the said Act would have an overridingeffect.

26. Similarly, clause (j) of sub-section (1) of Section 8 of the saidAct ex facie would have no relevance. There is no ‘personalinformation’ of which disclosure is sought. Further it cannot be said that AB

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Ait has no relation to public activity or interest, or that it is unwarranted, orthere is an invasion of privacy. These are documents filed before publicauthorities, required to be put in public domain, by the provisions of theMaharashtra Act and the RERA, and involves a public element ofmaking builders accountable to one and all. That respondent No.3, infact, happens to be the administrator of the property in question, whichBwill certainly not reduce his rights as opposed to anyone else, including aflat buyer.

27. We, thus, reject the submission based on clauses ofsub-section (1) of Section 8 read with Section 9 of the said Act.

C28. We also fail to appreciate the submissions of the learnedsenior counsel for the appellant of “vendetta”. What is the vendettainvolved in seeking disclosure of plans approved by a builder? To saythe least, this is really carrying things too far, just for the sake of creatingan obstruction in disclosure. Thus, the reference to the judgment inReliance Industries Ltd. vs. Gujarat State Information CommissionD& Ors.,[5] would be of no avail.

29. Another limb of the submission of learned senior counsel forthe appellant was that the provisions of Sections 10 & 11 of the said Acthave been rendered nugatory. The underlying documents of thedevelopment plans, drawings, etc. ought not to have been directed to beEdisclosed and only the grant of permission and approval by theCorporation, i.e., commencement certificate and occupation certificatecould have been so directed at best.

30. Section 10 of the said Act refers to severability, i.e.,information, which ought to be disclosed and not to be disclosed can beFsevered. This in turn would require a pre-requisite that the informationsought contains some element which has been protected under Section8 of the said Act. Having held that Section 8 of the said Act has noapplication, this plea is only stated to be rejected.

31. Insofar as Section 11 of the said Act is concerned, dealingGwith third party information, and the right to make submissions regardingdisclosure of information, that provision has been complied with bypermitting the appellant and even the architect to raise objections, andhas been dealt with by the PIO, and even by the State InformationCommission, on appeal.

H5 AIR 2007 Gujarat 203.

32. Lastly, the irony of the situation. The DevelopmentAgreement and the Power of Attorney is sought to be relied upon, bythe appellant, to contend that it was the responsibility and authority ofthe attorney holder to obtain necessary permissions, sanctions andapprovals, and that respondent No.3 is not entitled to deal with, nor liableto any authority in respect of the same, but is entitled to only 12 per centof the monetary shares from sale proceeds of the constructed premises.Thus, no information should be disclosed under the said Act!

33. If we put this in the correct perspective, it means that theowner of the property, who has given authority to a developer under anagreement to develop the property and obtain sanctions, is precludedfrom obtaining any information about the sanctions, because ultimatelyhe would be entitled to only a percentage of the monetary share of saleproceeds of what is constructed on the premises. Such a proposition isonly stated to be rejected, and in a sense seeks to put the developer andholder of the Power of Attorney on a pedestal. This is, of course, dehors any private lis pending between the parties.

34. In the end, we would like to say that keeping in mind theprovisions of RERA and their objective, the developer should mandatorilydisplay at the site the sanction plan. The provision of sub-section (3) ofSection 11 of the RERA require the sanction plan/layout plans alongwith specifications, approved by the competent authority, to be displayedat the site or such other places, as may be specified by the Regulationsmade by the Authority. In our view, keeping in mind the ground realityof rampant violations and the consequences thereof, it is advisable toissue directions for display of such sanction plan/layout plans at the site,apart from any other manner provided by the Regulations made by theAuthority. This aspect should be given appropriate publicity as part ofenforcement of RERA.

35. The result of the aforesaid is that we find no merit in theappeal and consider it a legal misadventure. The dispute, though inrespect of information to be obtained, derives its colour from a privatecommercial dispute. We note this because, if judicial time is taken, andlegal expenses incurred by one side on account of such a misadventure,appropriate costs should be the remedy.

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262SUPREME COURT REPORTS

A36.We, thus, dismiss the appeals with costs quantified at Rs.2.50lakhs (Rupees two lakhs & fifty thousand), payable by the appellant torespondent No.3 (though hardly the actual expenses!).

Ankit GyanB

Appeals dismissed.

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