Bombay High Court
Ferani Hotels Pvt Ltd vs The State Information ... on 30 October, 2015
Bench: M.S. Sanklecha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS EXTRA ORDINARY CIVIL JURISDICTION
WRIT PETITION (L) NO.1806 OF 2015
Ferani Hotels Pvt.Ltd }
A company registered under the provisions
of the Indian Companies Act, 1913 }
having its registered office at Construction
House B, 623, Linking Road, Opp Khar }
Telephone Exchange, Khar (West)
Mumbai-400 052 ig } .. Petitioner
vs
1. The State Information Commissioner }
Greater Mumbai having his office at
13th floor, New Administrative Building }
Madam Cama Road, Mumbai - 400 032.
2. The Municipal Corporation of Greater }
Mumbai through the Public Information
Officer & Executive Engineer (B.P.) }
Western Suburban, P Ward, Municipal
Corporation of Greater Mumbai, }
Dy.Chief Engineer (B.P.) W Sub-Officer-2
C Wing 2nd floor, Sankriti Complex, }
90, D.P.Road, Kandivli (W)
Mumbai-400 101 }
3. Mr.Nusli Neville Wadia }
(as the Sole Administrator of the
Estate and effects of the late E.F. }
Dinshaw C-1 Wadia International
Centre, Pandurang Budhkar Marg, }
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Worli, Mumbai-400 025. } .. Respondents
with WRIT PETITION NO.789 OF 2015
Ferani Hotels Pvt.Ltd }
A company registered under the provisions
of the Indian Companies Act, 1913 }
having its registered office at Construction
House B, 623, Linking Road, Opp Khar }
Telephone Exchange, Khar (West)
Mumbai-400 052 ig } .. Petitioner
vs
1. The State Information Commissioner }
Greater Mumbai having his office at
13th floor, New Administrative Building }
Madam Cama Road, Mumbai - 400 032.
Service through the Government Pleader
High Court, Original Side, Mumbai.
2. The Municipal Corporation of Greater }
Mumbai through the Public Information
Officer & Executive Engineer (B.P.) }
Western Suburban, P Ward, Municipal
Corporation of Greater Mumbai, }
Dy.Chief Engineer (B.P.) W Sub-Officer-2
C Wing 2nd floor, Sankriti Complex, }
90, D.P.Road, Kandivli (W)
Mumbai-400 101 }
4. Mr.Nusli Neville Wadia }
(as the Sole Administrator of the
Estate and effects of the late E.F. }
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Dinshaw C-1 Wadia International
Centre, Pandurang Budhkar Marg, }
Mr.S.U.Kamdar Sr.Counsel i/b Mr.K.D.Abhichandani
for Petitioner
Mr.H.S.Venegaonkar AGP for Respondent no.1
Dr. Milind Sathe Sr. Counsel with Ms.Surekha Sonawane Advocate
for Respondent no.2
Mr.V.R.Dhond, Senior Counsel with Rohan Kelkar Advocate and
Mr.Nishith Doshi i/b DSK Legal for Respondent No.3
ig ...
CORAM: M.S.SANKLECHA AND
G.S.KULKARNI, JJ
JUDGMENT RESERVED ON : 16th OCTOBER 2015
JUDGMENT PRONOUNCED ON : 30th OCTOBER 2015
JUDGMENT (Per G.S.Kulkarni, J)
WRIT PETITION (L) NO.1806 of 2015
1. By this writ petition under Article 226 of the
Constitution of India, the petitioner challenges the order dated
January 31, 2015, passed by the 1st respondent - the State
Information Commissioner, whereby the appeal filed by the 3rd
respondent under Section 19 (3) of the Right to Information Act
2005 (for short the "Act"), has been allowed directing the 2nd
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respondent to provide information to the 3rd respondent as per his
application made under Section 6 of the Act.
In a nutshell the facts are:
2. The 3rd respondent is stated to be the Sole
administrator of the estate and effects of one late E. F. Dinshaw. A
Development agreement dated January 2,1995 came to be entered
between the 3rd respondent and the petitioner, under which the
petitioner agreed to develop lands belonging to the estate of late E.F.
Dinshaw situated at Malad (West), Mumbai. An irrevocable power of
attorney was also executed by the 3rd respondent in favour of the
petitioner. Disputes arose between the petitioner and the 3rd
respondent sometime in 2008. On May 12, 2008 the 3rd respondent
terminated the development agreement as also the power of
attorney. Thereafter on May 13, 2008 the 3rd respondent filed Civil
Suit no. 1628 of 2008 in this Court inter alia seeking a declaration
that the said development agreement and the power of attorney are
validly terminated. It is the Petitioner's case that in the proceedings
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of this suit, which is pending adjudication, the 3rd respondent had
sought documents pertaining to the development undertaken by the
petitioners in respect of the said lands. However the 3 rd respondent
could not succeed in this attempt.
3. The 3rd respondent submitted an application under
section 6 (1) of the Act, to the Public Information Officer of the
Municipal Corporation of Greater Bombay on December 10, 2012
demanding information pertaining to these lands. The information
as applied was for the certified copies of the property card, certified
copies of plans and amendments to the plans as submitted by the
petitioner or its architects, certified copies of all layouts, subdivision
plans and amendments, certified copies of development plans and
amendments thereon and certified copies of all reports submitted to
the Municipal Commissioner and his approval thereon.
4. By a letter dated January 2, 2013 of the petitioners
advocate, an objection was raised as permissible to be raised by a
third party under the provisions of section 11 of the Act, interalia
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stating that the information as applied for by the 3rd respondent
does not serve a social or public interest but the information was
sought for a private interest for the purposes of suit number 1628 of
2008, which was subjudice in this Court. It was stated that an
attempt to seek such information in the suit proceedings had failed
right up to the Supreme Court. It was the petitioner's case that the
3rd respondent was a competitor of the petitioner and disclosure of
the information would cause harm and injury to the business of the
petitioner company as also would violate the intellectual property
rights. Information as sought by the 3rd respondent were also trade
secrets and thus would be detrimental to the business of petitioner
interest as also in the pending suit and proceedings in various
Courts.
5. By an order dated January 8, 2013, the public
information officer rejected the application of the 3rd respondent
taking into consideration the objections as raised on behalf of the
petitioner. The public information officer recorded that information
as applied for by the 3rd respondent was hit by the provisions of
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section 8 (1) (d), 8 (1) (g), 8 (1) (j), 9 and 11 (1) of the Act . It was
recorded that the information sought by the 3rd respondent was for
personal use and not for public interest.
6. The 3rd respondent filed a first appeal against the
order of the Public Information Officer, under section 19 (1) of the
Act before the first appellate authority. By an order dated April 1,
2013, the first appellate authority partly allowed the appeal
inasmuch as the request for providing copy of the property card
came to be granted and the prayers in respect of the other
documents namely the development plans approvals etc came to be
rejected on the same grounds as held by the public information
Officer.
7. The 3rd respondent therefore approached the 1st
respondent- State Information Commissioner in a second appeal
under section 19 (3) of the act. By the impugned order the 1st
respondent allowed the appeal setting aside the orders passed by the
Public Information Officer and the 1st appellate authority and
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directed the Public Information Officer to furnish information to the
3rd respondent as sought in his application dated December 10,
2012. In allowing the appeal the 1st respondent observed that the
development proposals as submitted by the petitioners have concern
with the public interest as the flats and commercial premises being
erected thereon would be purchased by the citizens. The 1st
respondent considered the objections as raised by the petitioners and
held that the objections were not maintainable and that public
interest and interest of transparency required that the information be
furnished to the 3rd respondent. It is this order which is a assailed
by the petitioners.
8. Mr. Kamdar learned senior counsel for the
petitioner submits that the impugned order cannot be sustained and
deserves to be set aside principally for the following reasons :
(i) The impugned order is clearly hit by the provisions of
section 8 (1) (d) and (j) of the Act and accordingly the
information was exempted from disclosure. The reason being
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that the 3rd respondent had sought information in question
purely for private purposes and there is no element of public
interest involved in the 3rd respondent seeking this
information. This is clear from the fact that the initial RTI
application was preferred by one Mr. Chandrashekharan,
constituted attorney of the 3rd respondent, whereas Second
Appeal for the first time discloses the capacity of the 3rd
respondent as being the sole administrator of the estate of
Late. E.F.Dinshaw. This itself showed that the Second Appeal is
not filed by the same person who had filed the First Appeal.
The Second Appeal was therefore not maintainable. That a
suit is already pending between the 3rd respondent and the
petitioner in this Court.
(ii) The information sought by the 3rd respondent pertains to
the plans submitted by the petitioners for development of the
lands in question. The 3rd respondent is a competitor of the
petitioner in business, and thus if this information is provided
the same would amount to trade secrets being disclosed to the
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3rd respondent. Section 8 (1) (d) clearly protects from
disclosure of such information.
(iii) The plans which are submitted by the petitioner to the
Municipal Corporation are valuable intellectual property of the
petitioner. The plans are the artistic work as defined under the
Copyrights Act, 1957. The petitioner being the owner of the
copyright the disclosure of this information would amount to
violation of the petitioners copyright. Section 8 (1) (d) read
with section 9 of the Act protects a copyright.
(iv) In the proceedings of the Civil Suit before this Court the
3rd respondent had made similar prayers seeking this very
information from the petitioner however the 3rd respondent
could not succeed in such attempts and not only before this
Court but also before the Supreme Court. This is clear from the
correspondence entered between the advocates for the parties
in the said proceedings which are tendered during the course
of arguments of this petition.
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(v) The impugned order is based on conjectures inasmuch as
in paragraph 8.11 the 1st respondent has relied upon the
Maharashtra Housing (Regulation and Development) Act,
2012 which had not come into force on the date of the order.
As also the observation of the 1st respondent that it is a
prevailing practice to furnish plans is also without a legal basis.
In supporting the above submissions Mr. Kamdar relied on the
following decisions:- 1.Mysore State Road Transport
Corporation vs Babajan Conductor & anr. 1 ; (2) State Bank
of India vs Ramchandra Dubey & ors 2(3) Reliance
Industries Ltd vs.Gujarat State Information Commissioner
& ors3 (4) Harish Kumar vs Pro Vost Marshal cum-
Appellate Authority & ors 4 (5) Kunche Durga Prasad & anr
vs Public Information Officer & ors 5 (6) Bihar Public
Service Commission vs Saiyed Hussain Abbas Rizwi & anr. 6
1 (1977) 2 Supreme Court Cases 355
2 (2001) 1 Supreme Court Cases 73
3 AIR 2007 GUJARAT 2003
4 ILR (2012) V.Delhi 41
5 AIR 2010 ANDHRA PRADESH 105
6 (2012) 13 Supreme Court Cases 61
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9. On the other hand, Mr. Dhond learned senior counsel
appearing for the 3rd respondent supporting the impugned order
submits that the impugned order correctly directs the public
information officer to furnish information to the 3 rd respondent
which pertains to the development of land of which the 3 rd
respondent is the Sole administrator. He submits that the 1st
respondent has correctly held that there is a public element involved
in the said information to be furnished to the 3rd respondent
inasmuch as information pertains to the plans which are sanctioned
by the Municipal Corporation exercising its statutory powers as a
planning authority. He submits that the contention of the petitioner
that the information as sought by the 3rd respondent could not have
been furnished under the provisions of section 8 (1) (d) and (j) of
the Act, is misconceived. Mr. Dhond would submit that these
provisions are inapplicable in the facts of the present case inasmuch
as information which was sought pertains to information from the
public records and which are in the control of a public authority
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namely the Municipal Corporation.Mr. Dhond next submits that there
is no breach of any copyright of the petitioners if such information is
provided to the 3rd respondent. He submits that there cannot be any
breach of copyright for the reason that the development proposal
and the plans as sanctioned by the Municipal Corporation are part of
the public records. He submits that this is not a case where the
access to the information as demanded by the 3 rd respondent would
amount to breach of a copyright as section 9 of the Act would
envisage. The Municipal Corporation in its character as a public
authority is under an obligation under the statute to provide such
information to maintain transparency. If such information is denied
it would defeat the very purpose of the legislation. Mr. Dhond would
thereafter submit that the contention of the petitioner that the 3rd
respondent had failed in its attempt to secure these documents in the
suit proceedings, is misplaced. He submits that there is no order of
any Court prohibiting furnishing these documents to the 3rd
respondent. He submits that there is a statutory right available to the
3rd respondent to seek information under the provisions of the said
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Act, and this right cannot be either taken away or in any manner
rendered meaningless only because a suit is pending between the 3rd
respondent and the petitioner. Mr. Dhond would thereafter submit
that the petitioner is creating unnecessary confusion in contending
that the 3rd respondent had changed his capacity seeking
information only looking at the title of the right to information
application and the title of the second appeal filed before the 1st
respondent. It is submitted that the RTI application and the appeal if
perused clearly reveals that they are filed in the same capacity. Mr.
Dhond submits that information which is applied for very much
concerns a public interest.
10. Mr.Sathe learned senior counsel for the 2 nd respondent
Corporation has made submission on the provisions of the Act. He
submits that only when there is an overwhelming public interest the
Municipal Corporation wold be obliged to give information under the
Act. Mr.Venegaonkar learned Assistant Government Pleader for the
State made submissions in support of the impugned order to submit
that the writ petition deserves to be dismissed.
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11. With the assistance of the learned counsel for the
parties we have gone through the paper-book of this writ petition
and the impugned order.
12. It is not in dispute that there was an agreement
entered between the 3rd respondent and the petitioner for
development of the lands in question. For this development a power
of attorney came to be issued in favour of the petitioners by the 3rd
respondent. The petitioners accordingly appears to have submitted
development proposals by submitting plans etc. to the Municipal
Corporation. Disputes have arisen between the 3rd respondent and
the petitioners in this regard. The 3rd respondent has filed a suit
seeking declaration that the development agreement and the power
of attorney issued in favour of the petitioner was validly terminated.
As regards the development in question the 3rd respondent on
December 10, 2012 submitted an application under section 6 (1) of
the Act to the Public Information Officer of the Municipal
Corporation, seeking copies inter alia of the proposals and plans as
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submitted by the petitioners. This application was however rejected
by the public information officer taking into consideration the
objection as raised on behalf of the petitioner on the ground that the
information pertained to a third-party and was confidential in nature
as it involved trade and commercial secrets. In a First Appeal
preferred by the 3rd respondent the order passed by the Public
Information Officer was substantially maintained except for a
direction to provide to the 3rd respondent copies of the property card
of the said lands. In the Second Appeal preferred by the 3rd
respondent before the 1st respondent, by the impugned order the
request of the 3rd respondent as made in the RTI application dated
December 10, 2012 has been granted. On these facts the issue which
arises for consideration is whether the objections as raised by the
petitioner against the application of the 3rd respondent were valid in
law so as to sustain the rejection of the RTI application of the 3rd
respondent requiring us to hold that the impugned order is illegal.
13. The principal grievance of the petitioner is that the
information as sought by the 3rd respondent is sought purely for
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private purposes and not in the capacity of the administrator of the
estate of late E.F.Dinshaw. The 3rd respondent is a business rival and
thus information which is in the nature of proposals for development
and the approvals granted thereon involves trade secrets as also
copyright and is a personal information, thus taking into
consideration the provisions of section 8 (1) (d), (g), (j) of the Act,
this information cannot be granted to the 3rd respondent.
14. The preamble of the Act would make it clear that
the object of the Act is to bring about a regime of securing to the
citizens access to information under the control of public authorities
in order to promote transparency and accountability in the working
of every public authority as a democracy requires an informed
citizenry and transparency of information which are vital to its
functioning and also to contain corruption and to hold Governments
and their instrumentalities accountable to the governed. To
appreciate the submissions as made on behalf of the petitioner it
would be useful to extract some of the relevant provisions of the Act
namely Section 2 (f) which defines 'information'. Section 2 (j) which
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defines 'right to information' Section 8(1) (d), (g), (j) of the Act
which exempts from disclosure certain information and Section 9
which pertains to copyright infringement. These provisions read
thus: -
2. (f) "information" means any material in any form, including records,
documents, memos, e-mails, opinions, advices, press releases, circulars,
orders, logbooks, contracts, reports, papers, samples,models, data
material held in any electronic form and information relating to any
private body which can be accessed by a public authority under any other
law for the time being in force.
(j) "right to information" means the right to information accessible
under this Act which is held by or under the control of any public
authority and includes the right to-
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of documents or records;
(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 through print outs where
such information is stored in a computer or in any other device;
8 (1): Exemption from disclosure of information:(1) Notwithstanding
anything contained in this Act, there shall be no obligation to give any
citizen-
a......
b......
c......
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(d) information including commercial confidence, trade secrets or
intellectual property, the disclosure of which would harm the competitive
position of a third party, unless the competent authority is satisfied that
larger public interest warrants the disclosure of such information;
(g) information, the disclosure of which would endanger the life or
physical safety of any person or identify the source of information or
assistance given in confidence for law enforcement or security purposes;
(j) information which relates to personal information the disclosure of
which has no relationship to any pubic activity or interest, or which
would cause unwarranted invasion of the privacy of the individual unless
the Central Public Information Officer or the state Public Information
Officer or the appellate authority as the case may be, is satisfied that the
larger public interest justifies the disclosure of such information.
Provided that the information which cannot be denied to the Parliament
or a State Legislature shall not be denied to any person.
15. A perusal of the definition of the term 'information'
(supra) it is quite clear that it interalia includes information relating
to any private body. The 'right to information' has been defined as a
right to information accessible under the Act which is held by or
under the control of any public authority in respect of material as set
out in clause (j) of section 2. Sub-sections (d),(g) and (j) of section
8 (1) makes it clear that notwithstanding the other provisions of the
Act, there is an exemption from disclosure of information, the
nature of which includes commercial confidence, trade secrets or
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intellectual property, the disclosure of which would harm the
competitive position of a third-party unless the competent authority
is satisfied that larger public interest warrants the disclosure of such
information; further information the disclosure of which would
endanger the life or physical safety of any person or identity the
source of information or assistance given in confidence for law
enforcement or security purposes. Also information which relates to
personal information the disclosure of which has no relationship to
any public activity or interest or which would cause unwarranted
invasion of the privacy of the individual unless the authorities are
satisfied that the larger public interest justifies the disclosure of such
information is exempted.
16. A perusal of the application dated December 10,
2012 filed by the 3rd respondent seeking information under the Act
makes it quite clear that the copies of the documents as sought are
the documents which are submitted by the petitioners in relation to
the development to be undertaken in respect of the lands in
question. The documents as sought thus include, copies of plans,
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layouts sub divisions and amendments made therein from time to
time, copies of development plans and amendments made therein
from time to time and copies of all the reports submitted to the
municipal Commissioner and his approvals on the same. The
documents are admittedly under the control of the Municipal
Corporation which is a public authority. The development proposals
and plans are required to be submitted for the purpose of any
development to be undertaken by any person/citizen so as to enable
the Municipal authorities to examine whether the development can
be permitted and whether the same is in accordance with the rules
and regulations and requirements under law. The municipal
authorities undoubtedly are required to consider these proposals and
pass orders to approve the same as the law would require. If
information which is sought from the records of the authorities is of
this nature then we do not see as to how it cannot be provided under
the Act. If the submissions as made on behalf of the petitioners are
accepted then it would amount to rendering the provisions of the
Act nugatory and no person would be in a position to seek
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information on the development proposals and the sanctioned plans
pertaining to any construction from the files of the authority. This
would result in total lack of transparency and accountability in such
authorities discharging their obligations under the relevant laws
under which they are supposed to function.
17. Now we examine as to whether the exception as
carved out under section 8 can be applied to the right to information
application of the 3rd respondent. The contention of the petitioner is
that as per Section 2 (1) (c) of the Copyright act 1957, in the plans
submitted by the petitioners there subsists a copyright, and thus
disclosure of such information would violate the provisions of section
9 of the RTI Act. We are not impressed with this submission. This is
for the reason that furnishing of copies of the plans or drawings
would not ipso facto amount to infringement of the copyright as the
nature of these documents is not such that the mere access to such
information itself would breach a copyright. We are in agreement
with this submission as made on behalf of the 3rd respondent that
mere disclosure of information would not amount to breach of
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copyright. A confidential information cannot be equated with a
copyright. A plain reading of section 9 makes it clear that a request
for information where such a request for providing access would
involve an infringement of copyright subsisting in a person can only
be rejected by the concerned authorities under the Act. We fail to
appreciate as to how mere disclosure of information would amount
to any breach of copyright of the petitioners. Significantly, Section 52
(1) (f) of the Copyright Act provides that the reproduction of any
work in a certified copy made or supplied in accordance with any
law for the time being in force does not constitute an infringement of
copyright. The 3rd respondent had sought copies of the development
plans and approvals thereon.
18. The contention of Mr.Kamdar is that the provisions
of section 8 (1) (d) (g) (j) are clearly attracted qua the application of
the 3rd respondent in seeking the information in question and there is
a clear exemption from providing this information. This submission
in our opinion is not well founded. We have observed above that the
nature of the information as sought by the 3rd respondent in no
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manner would fall under the prohibition under section 8 (1)(d) (g)
and (j) of the Act. We are certain that once building proposals are
considered and plans are sanctioned, by the Municipal authorities,
such permission, plans and documents pertaining to the same form
part of public record. Once the approvals are granted such
information as in the present case in our opinion, is not of the
nature of any trade secret or of a commercial confidence or of a
nature which would harm the competitive position of the petitioner.
If the contention as urged on behalf of the petitioners is accepted to
be the position in law, then in that event, plans submitted for
development to any authority would always remain a secret,
sacrificing public interest, transparency and accountability in public
offices. The information as sought by the 3rd respondent was also not
in the nature which would endanger life or physical safety of any
person so as to attract section 8 (1) (d) and (g) of the Act. The
petitioners in our opinion cannot stretch the meaning of sub-section
(g) to this extent. As regards the submission of violation of section 8
(1) (g) that the information as sought by the 3 rd respondent is
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personal information also cannot be countenanced in view of our
observations that the same pertains to sanctions/approvals granted
by the Municipal Corporation on plans and proposals of the
petitioners. The order of a permission or approval cannot be
separated from its essential ingredients namely proposals and plans
submitted in that regard which form the basis on the decisions and
any citizen subject to requirement being fulfilled under the Act
would be entitled to such information. Moreover, the observations in
para 11 of the decision of the Delhi High Court in the case of Harish
Kumar vs Pro Vost Marshal cum-Appellate Authority & ors
(supra) militates against the submission of the petitioner in as much
as it has been held that only personal information which has no
nexus with any public activity or interest cannot be provided. Such is
not the situation in the present case. Also in the decision in the case
of Bihar Public Service Commission vs.Saiyed Hussain Abbas
Rizwi & anr (supra) the Supreme Court considering the provisions
of section 8 (1) (j) of the Act has observed that personal information
which has no relationship to any public activity or interest or which
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would cause unwarranted invasion of the privacy of the individual
would fall within the exempted category unless the authority
concerned is satisfied that larger public interest justifies the
disclosure of such information. It is also observed that "public
interest" has to be understood in its true connotation so as to give
complete meaning to the relevant provisions of the Act. Taking into
consideration these principles of law it cannot be said that there is no
public interest involved when the petitioner would undertake
developments on the basis of approved plans to sell flats and
commercial premises to the public at large. Moreover, the Municipal
authorities are required to act upon these proposals and in terms
thereof have passed orders granting sanction which shows
involvement of public element as also public interest.
19. It is urged on behalf of the petitioner that an
application under section 6 (1) of the Right to Information Act and
the First Appeal were filed by the 3rd respondent as filed through his
constituted attorney Mr,.R.Chandrasekharan, however the Second
Appeal was filed by the 3rd respondent in his capacity as a Sole
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Administrator of the Estate and Effects of late E.F.Dinshaw though
also filed through the constituted attorney Mr.R.Chandrasekharan,
indicates that the Second Appeal has not been filed by the same
original party and hence the Second Appeal filed by the 3 rd
respondent was not maintainable. A preliminary objection to this
effect was raised by the petitoner before the Ist respondent which
was rejected by an order November 10, 2014. The petitioner has
pressed this ground to assail before us the impugned final order
passed by the 1st respondent. We have perused the original
application, the memo of the First Appeal and the Second Appeal
and more particularly the title describing the 3 rd respondent. A
perusal of these documents clearly indicate that the 3 rd respondent
through his constituted attorney Mr.R.Chandrasekharan had
preferred the original application under section 6 (1) of the Act
seeking information. We may note that the section 6 (2) of the Act
clearly provides that an applicant making request for information is
not required to give any reason for requesting the information or any
other personal details, except that may be necessary for contacting
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him. The First Appeal filed before the First Appellate Authority was
also filed by the 3rd respondent through his constituted attorney
Mr.R.Chandrashekaran. In the memo of the First Appeal the 3 rd
respondent had clearly averred as follows : "By application dated 10th
December 2012 ("the said application) the appellant had sought
information in respect of various plots of land (mentioned therein) of
which the applicant in his capacity as the Administrator of the Estate
and Effects of late E.F.Dinshaw is the owner." These averments clearly
shows that the 3rd respondent had stated that he was pursuing the
appeal arising from the rejection of the RTI application in his
capacity as an Administrator of the Estate and Effects of late
E.F.Dinshaw. When the first Appeal came to be rejected in the Second
Appeal the 3rd respondent described himself as "Mr.Nusli Neville
Wadia in his capacity as the Sole Administrator of the Estate and
Effects of the late E.F. Dinshaw through his duly constituted attorney
Mr.R.Chandrasekharan (a copy of the power of attorney attached)",
which further makes it clear that the 3 rd respondent was pursuing the
application under the Act in his capacity as the Sole Administrator of
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the Estate and Effects of late E.F.Dinshaw which was filed through his
constituted attorney Mr.R.Chandrasekharan. Considering these clear
statements as made in the First Appeal as also in the Second Appeal
by the 3rd respondent, we do not see as to how it can be urged by
the petitioner that the application and First Appeal was filed by the
3rd respondent in his personal capacity and not as a Sole
Administrator of the Estate of late E.F.Dinshaw. Thus, in our opinion
this contention as urged on behalf of the petitioner is wholly
misconceived and has been rightly rejected by the 1 st respondent in
dealing with the Second Appeal.
20. As regards the contention of the petitioner that the
3rd respondent had attempted to seek the same information in the
suit proceedings and such applications were not entertained by this
Court as also the Supreme Court and hence the 1 st respondent could
not have granted such information in passing the impugned order in
our opinion, is also without any substance. The Act is a legislation
which confers an independent legal right de hors inter se rights
between the parties. As to whether the application made under
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section 6 (1) of the Act would satisfy the requirement of the
provisions of the Act and whether such an information can be
granted taking into consideration the statutory provisions enunciated
therein is required to be examined by the authorities under the Act.
There may be a situation where inter se rights between two private
parties and the rights under the RTI Act may appear to overlap. In
such a case, the approach of the authorities would be to consider
whether the requirements which are laid down under the Act for
furnishing such information to an applicant are satisfied. The tests
are that the documents are in the custody and in control of the public
authority and that none of the provisions under the Act would
prohibit dissemination of such information. In doing so, the
authorities under the Act are required to take into consideration that
public interest and transparency are not sacrificed by denial of such
an information. In the present case, the information is admittedly in
control of the public authorities namely the Municipal Corporation.
The same pertains to the submission for development plans and/or
proposals in that regard on which the Municipal authorities in
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exercise of its statutory powers have granted approvals/development
permissions. If this is the nature of the documents when a public
element as also larger public interest is involved at the hands of the
Municipal Corporation then certainly irrespective of any private
dispute inter se between the petitioner and 3rd respondent, these
documents could not be withheld and/or not furnished to the 3 rd
respondent. The submission on behalf of the petitioner that in the lis
inter se between the parties the 3rd respondent could not succeed in
getting these documents in our opinion, cannot be countenanced as
in matters which fall within the purview of the Act are required to be
tested only on the parameters as provided under the Act and a inter
se lis between the parties in such an event becomes secondary and
cannot override what the legislature would intend by providing the
legislation. Further there is no prohibitory order passed by any
Court in denying to the 3rd respondent either the copies of the
documents sought for or for that matter to pursue an application
under the Act. In this context, the decisions of the Supreme Court in
the case of Mysore State Road Transport Corporation vs.Babajan
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Conductor and ors7 and the decision in State Bank of India vs
Ramchandra Dubey & ors8 as relied on behalf of the petitioners in
our opinion, are of no avail as these were not cases where an
independent substantive right was conferred on the parties under a
legislation as in the present case but were cases dealing with disputes
which had arisen between the parties and adjudicated by Courts.
21.
The next contention of Mr.Kamdar learned senior
counsel for the petitioner that the impugned order is based on
conjectures in as much as in para 8.11. takes into consideration the
Maharashtra Housing (Regulation and Development) Act, 2012
which was not brought into force, in our opinion cannot be a ground
for us to interfere in the impugned order. The 1 st respondent has
made a passing reference to the provisions of this legislation when
the same was not brought into force on the date of passing of the
impugned order by the 1st respondent (January 31, 2014). Even if it
is assumed that such a reference was not warranted, however for
reasons as recorded above, we do not feel that the impugned order
7 (1977) 2 Supreme Court Cases 355
8 (2001) 1 Supreme Courrt Cases 73
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passed by the 3rd respondent is rendered erroneous when it takes
into consideration several other aspects which we have referred
above, on which it allows the information to the 3 rd respondent
would require any interference of this Court.
22. The next contention urged on behalf of the
petitioner that the petitioner is a third party whose information was
sought by the 3rd respondent and thus the provisions of section 11 of
the Act were required to be strictly adhered by the authorities on a
perusal of the orders passed by the Public Information Officer and
the subsequent orders it is clear that all the objections as raised by
the petitioners are considered and appropriate reasons are recorded
by the authorities. In fact the petitioner has succeeded before the
Public Information Officer as also before the First Appellate
Authority. The 1st respondent has considered all the contentions as
urged by the petitioners in passing the impugned order. The
petitioners reliance on the decision of the learned Single Judge of the
Gujarat High Court in the case of Reliance Industries vs.GujArat
State Information Commissioner (supra) in our opinion, is
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inappropriate as we have already observed above that considering
the facts of the present case it cannot be denied that the larger public
interest requires the information to be supplied to the 3rd respondent.
23. In the light of our above discussions, we find no
merit in the writ petition. Writ petition accordingly fails and stands
rejected. No order as to costs.
WRIT PETITION NO.789 OF 2015
24. In this writ petition the petitioners had challenged the
order dated 10th November 2014 passed by the State Information
Commissioner rejecting the application raising preliminary objection
to the maintainability of the Second Appeal. The objection was that
the Second Appeal was not filed by the same party namely
respondent no.3 who had preferred First Appeal. After this
preliminary objection was rejected by the 1st respondent final orders
were passed on the Second Appeal on January 31, 2015 which was
assailed in the above writ petition (Writ Petition (L) No.1806 2015).
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The petitioners had also raised the issue as urged in this petition as
one of the issues to assail the final orders. In view of our
observations in deciding Writ Petition (L) No.1806 of 2015 this writ
petition has become infructuous and accordingly stand disposed of.
No order as to costs.
25. At this stage Mr.S.U.Kamdar, learned Senior Counsel
appearing for the petitioner seeks continuation of the ad interim
orders continued by the order dated 17 October 2015, for further
period of six weeks from today. Mr.Dhond, learned Senior Counsel
appearing for respondent no.3 opposes the same. The ad interim
relief granted by the earlier order dated 17 October 2015 would
continue for a period of four weeks from today.
G.S.KULKARNI, J M.S.SANKLECHA, J
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CERTIFICATE
Certified to be true and correct copy of the original signed Judgment/order.
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CERTIFICATE
Certified to be true and correct copy of the original signed Judgment/order.
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CERTIFICATE
Certified to be true and correct copy of the original signed Judgment/order.
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