FERANI HOTELS PVT. LTD.versusTHE STATE INFORMATION COMMISSIONER GREATER MUMBAI & ORS.

244                      [2018]REPORTS
               SUPREME COURT    12 S.C.R. 244            [2018] 12 S.C.R.


A                       FERANI HOTELS PVT. LTD.
                                       v.
               THE STATE INFORMATION COMMISSIONER
                       GREATER MUMBAI & ORS.
B                   (Civil Appeal Nos.9064-9065 of 2018)
                            SEPTEMBER 27, 2018
         [KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]
            Right to Information Act, 2005 – ss. 6(1), 8(1)(d), 8(1)(j)
C     and 9 – Information regarding the plans submitted to public
      authorities by a developer of a project – Disclosure of – A
      development agreement was executed between respondent no.3 and
      appellant for carrying out development on a property – Dispute
      arose between the parties – Respondent no.3 filed application u/
      s.6(1) of the Act before the Public Information Officer (PIO) and
D     sought information regarding development plans submitted by the
      appellant – Information was declined by PIO – First Appellate
      Authority partly allowed the appeal filed by the respondent no.3,
      by disclosing information regarding one question only out of five
      questions – However, respondent no.3 succeeded in second appeal
E     – Aggrieved, writ petition was filed by the appellant and same was
      dismissed – On appeal, held: There was no ‘personal information’
      of which disclosure was sought – It cannot be said that information
      sought had no relation to public activity or interest, or that it was
      unwarranted, or there was an invasion of privacy – The provisions
      of sub-section (3) of s.11 of RERA, mandatorily required the
F     developer to display sanction plan/layout plans along with
      specifications, approved by the competent authority at the site or
      such other places, as may be specified by the Regulations made by
      the Authority – That respondent no.3 was the administrator of the
      property in question and that did not reduce his rights as opposed
G     to anyone, including a flat buyer – Costs of Rs.2.50 lakhs imposed
      on appellant – Real Estate (Regulation and Development) Act, 2016
      – s.11(3) – Copyright Act, 1957 – ss.52(1)(f) and 22 – Evidence
      Act, 1872 – s.74.


H
                                     244
    FERANI HOTELS PVT. LTD. v. STATE INFORMATION                     245
             COMMR. GREATER MUMBAI

      Dismissing the appeals, the Court                              A
       HELD: 1. Section 11 of the Real Estate (Regulation and
Development) Act, 2016, provides the functions and duties of
promoters. The duties are more elaborate, as under Section 11(1)
of the RERA the promoter has to create his web page on the
website of the Authority and enter all details of the proposed       B
project as provided under sub-section (2) of section 4, in all the
fields as provided, for public viewing. The promoter, in terms of
sub-section (3) of Section 11 of the RERA is required to make
available to the allottee information about sanctioned plans,
layout plans along with specifications, approved by the
competent authority, by display at the site or such other place as   C
may be specified by the Regulations made by the Authority. The
object is clearly to bring greater transparency. [Para 22]
[258-C-E]
       2. The fate of purchase of land development and
investments is a matter of public knowledge and debate. Any          D
judicial pronouncement must squarely weigh in favour of the
fullest disclosure, in this behalf. In fact, the Division Bench of
the Madras High Court in Dr. V.I. Mathan & Ors. vs. Corporation
of Chennai & Ors. opined that though the Chennai Metropolitan
Development Authority mandated plans to be displayed at the          E
site and also be made available on the website, the same
principle should apply to the Corporation for all other sanctioned
plans and, thus, issued directions for display of the plans on the
website of the Corporation, and at the site, with clear
visibility. This was just prior to the RERA coming into force.
[Para 23] [258-E-G]                                                  F

      3. In the aforesaid circumstances, even by a test of public
interest, it can hardly be said that the same would not apply in
matters of full disclosure of information of development plans to
all and everyone. If one turns to the provisions of Section 8 of
the said Act and the clauses under which the exception is sought,    G
clause (d) deals with information relating to commercial
confidence, trade secrets or intellectual property, which has the
potentiality to harm the competitive position of a third party.
Firstly, the definition of a third party under Section 2(n) of the
said Act means a person other than a citizen requesting for          H
246            SUPREME COURT REPORTS                       [2018] 12 S.C.R.


A     information to a public authority. Under Section 11 of the said
      Act, the third party has a right to be heard and to object to the
      disclosure of information. The disclosure of plans, which are
      required to be in public domain, whether under the repealed Act
      or RERA, can hardly be said to be matters of commercial
      confidence or trade secrets. In fact, ex facie, these terms would
B
      not apply to the matter at hand. Similarly, insofar as the
      intellectual property is concerned, the preparation of the plan
      and its designs may give rise to the copyright in favour of a
      particular person, but the disclosure of that work would not
      amount to an infringement and, in fact, Section 52(1)(f) of the
C     Copyright Act, 1957 specifically provides that there would be no
      such infringement if there is reproduction of any work in a
      certified copy made or supplied in accordance with any law for
      the time being in force. This is what is exactly sought for by
      respondent No.3 – certified copies of the approved plans and its
      modifications, from the public authority, being the Corporation.
D
      Also, section 22 of the said Act provides for an overriding effect
      with a notwithstanding clause qua any inconsistency with any other
      Act. The aforesaid provision would not imply that a disclosure
      permissible under the Copyright Act, 1957 is taken away under
      the provisions of the said Act, but rather, if a disclosure is
E     prescribed under any other Act, the provisions of the said Act
      would 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 the
      said Act ex facie would have no relevance. There is no ‘personal
F     information’ of which disclosure is sought. Further it cannot be
      said that it has no relation to public activity or interest, or that it
      is unwarranted, or there is an invasion of privacy. These are
      documents filed before public authorities, required to be put in
      public domain, by the provisions of the Maharashtra Ownership
      Flats (Regulation of the Promotion of Construction, Sale,
G     Management and Transfer) Act, 1963 and the RERA, and involves
      a public element of making builders accountable to one and all.
      That respondent No.3, in fact, happens to be the administrator of
      the property in question, which will certainly not reduce his rights
      as opposed to anyone else, including a flat buyer. [Para 26]
H     [259-G-H; 260-A-B]
    FERANI HOTELS PVT. LTD. v. STATE INFORMATION                        247
             COMMR. GREATER MUMBAI

      5. Keeping in mind the provisions of RERA and their               A
objective, the developer should mandatorily display at the site
the sanction plan. The provision of sub-section (3) of Section 11
of the RERA require the sanction plan/layout plans along with
specifications, approved by the competent authority, to be
displayed at the site or such other places, as may be specified by
                                                                        B
the Regulations made by the Authority. Keeping in mind the
ground reality of rampant violations and the consequences
thereof, it is advisable to issue directions for display of such
sanction plan/layout plans at the site, apart from any other
manner provided by the Regulations made by the Authority. This
aspect should be given appropriate publicity as part of                 C
enforcement 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 of
      Bombay High Court) ; Thalappalam Service
      Cooperative Bank Ltd. & Ors. v. State of Kerala & Ors.            D
      (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 of
      Madras High Court) ; Reliance Industries Ltd. v.
      Gujarat State Information Commission & Ors.
      AIR 2007 Gujarat 203 – referred to.                               E

                       Case Law Reference
      [2013] 14 SCR 475          referred to           Para 13
      AIR 2007 Gujarat 203       referred to           Para 28
                                                                        F
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9064-
9065 of 2018.
       From the Judgment and Order dated 30.10.2015 of the High Court
of Judicature at Bombay in Writ Petition (L) No.1806 of 2015 and Writ
Petition No.789 of 2015 respectively.
                                                                        G
       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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248             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           Gourab Banerji, Sr. Adv., Rohan Kelkar, Ms. Nandini Gore,
      Ms. Tahira Karanjawala, Ms. Natasha S., Ms. Khushboo Bari, Arjun
      Sharma, 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
             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.
C
             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,
D     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,
E     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
F     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
G     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
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      FERANI HOTELS PVT. LTD. v. STATE INFORMATION                            249
    COMMR. GREATER MUMBAI [SANJAY KISHAN KAUL, J.]

the Division Bench, which initially stayed the interim order on 26.7.2010,    A
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.,1 where the legal
issue raised related to the local amendment in Maharashtra, to the Code
                                                                              B
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   C
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
                                                                              D
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      E
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     F
Bench, nor before this Court, was this aspect discussed at all, even
though this relief had been claimed throughout. The adjudication,
instead, rested on the issue of the provisions of Section 9A, inserted by
way of a Maharashtra Amendment in the said Code, coupled with the
plea of limitation. We may add here, that as per learned counsel for
respondent No.3, these set of documents are not identical to what forms       G
the subject matter of information sought, now, under the said Act.
     6. We may now turn to the direct controversy in question, which
emanates from an application filed by respondent No.3 under Section
1
    Order dated 8.4.2015 in CA No.3396/2015                                   H
250                 SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     6(1) of the said Act before the Public Information Officer (for short
      ‘PIO’), Municipal Corporation of Greater Mumbai. Vide application
      dated 10.12.2012, the following information in respect of the plots in
      question was sought:
                 “(a) Certified copies of all PR cards submitted.
B                (b) Certified copies of all plans and amendments therein from
                 time to time submitted by the Ferani Hotels Ltd. and/or by its any
                 divisions and/or its Architect.
                 (c) Certified copies of all Layouts, Sub-Division Plans and
                 amendments therein form(sic.)2 time to time submitted by the Ferani
C                Hotels Ltd. and/or by its any divisions and/or its Architect.
                 (d) Certified copies of all development plans and any amendments
                 therein 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 Municipal
                 Commissioner and his approvals to the same.”
                 7.    The Advocates for the appellant, however, objected to the
                 disclosure 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 for
                 the private interest of respondent No.3 in the suit filed before the
                 Bombay High Court.
                 (b) That the information sought in the suit proceedings had not
                 been granted by the High Court of Bombay, and an appeal against
F                the said findings were pending before this Court, thereby making
                 the 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’s
                 competitive position, as well as to their valuable intellectual
G                property rights. The information sought for was stated to involve
                 commercial and trade secrets, disclosure of which would be
                 detrimental to the interest of the appellant.
                 (d) That the architect of the appellant informed that all rights in
                 respect of the plans, clarifications, designs, drawings, etc. and the
H     2
          To be read as ‘from’.
   FERANI HOTELS PVT. LTD. v. STATE INFORMATION                               251
 COMMR. GREATER MUMBAI [SANJAY KISHAN KAUL, J.]

      work comprised therein, including intellectual property rights and      A
      in particular copyright, were reserved and vested exclusively in
      the appellant.
      The PIO, vide its letter dated 8.1.2013, declined to give
information in view of the objections filed by the counsel for the
appellant. This communication stated that the information could not be        B
given as per Sections 8(1)(d), 8(1)(g), 8(1)(j) as well as Sections 9 and
11(1) of the said Act, since there was no public interest, as also on
account of the claim of copyright.
       8. Respondent No.3 filed an appeal under Section 19(1) of the
said Act on 12.2.2013, which was disposed of by the First Appellate           C
Authority, vide order dated 1.4.2013, permitting the information sought
under the first head to be given, while declining the information under
heads 2 to 4 for the same reasons as set out by the PIO. The
5th information sought was stated to be too detailed and hence was not
possible to be given out. This resulted in a second appeal before the
State Chief Information Commissioner (for short ‘SCIC’) under Section         D
19(3) of the said Act on 28.6.2013. Respondent No.3 succeeded in the
second appeal in terms of order dated 31.1.2015, the order being
predicated on the reasoning that the development of the property has
connection with public interest, as flats erected thereon would be
purchased by the citizens at large.                                           E
       9. It was now the turn of the appellant to assail this order, before
the High Court, by filing a writ petition, being Writ Petition (L)
No.1806/2015, which was dismissed vide impugned order dated
30.10.2015. The reasoning was based on the very object of the said Act
being incorporated, which was to secure access to information, under          F
the control of public authorities, to citizens, in order to promote
transparency and accountability. The documents sought, being for the
development of land and being copies of plans, layouts, sub-division plans,
etc., which had in turn received the attention and approval of the
Commissioner of the Corporation (a public authority), and were under
his control, the same were to be supplied to anyone seeking the same.         G
The Division Bench then proceeded to refer to the exceptions carved
out under Sections 8 & 9 of the said Act to ultimately hold that the
information sought for was part of public record and had to be revealed
in public interest, and could not be said to be in the nature of trade
                                                                              H
252             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     secrets or of commercial confidence, or of a nature which would harm
      the competitive position of the appellant. It also dealt with the objection
      of the appellant qua the endeavour of respondent No.3 to seek the
      information in the suit proceedings to hold that the said Act was a
      legislation which confers independent legal right de hors inter se rights
      between the parties.
B
             10. The aforesaid order has, thus, given rise to the present appeal
      filed by the appellant. We heard Dr. A.M. Singhvi, learned senior
      counsel for the appellant and Mr. Gourab Banerji, learned senior
      counsel for respondent No.3, both seeking to forcefully put forth their
      stand. We may note that the private disputes inter se the appellant and
C     respondent No.3 have given rise to this contentious proceeding, where
      the issue in question was, in our opinion, really innocuous. We have
      considered 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 last
D     set of documents sought, which was earlier held to be rather expansive
      in nature. The first set of information sought is stated to have already
      been disclosed. The controversy, thus, related to the 2nd to 4th set of
      information sought, which consists of the plans with amendments, layouts,
      sub-division plans with amendments and all other development plans
E     with amendments. At the inception of the hearing, we had, in fact, put to
      learned senior counsel for the appellant, as to what serious objection
      could they have to the disclosure of these documents, which were really
      public documents, having been submitted to the concerned authority and
      forming part of the sanction process. The persistence over this issue, as
      noticed above, is clearly the result of the private dispute, rather than any
F     objective consideration qua the issue of disclosure of information.
             12. The first objection raised by learned senior counsel for the
      appellant flowed from the endeavour of respondent No.3 to seek
      information in the suit proceedings, which endeavour had not been
      successful. Learned senior counsel contended that no leave had been
G     taken qua that aspect of the matter and, thus, applying any of the
      principles whether of issue estoppel, constructive res judicata, or
      election of remedy, respondent No.3 could not be permitted to agitate
      the issue twice over. Learned counsel sought to refer to the result of the
      endeavour to obtain interim reliefs in general by respondent No.3, but
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      FERANI HOTELS PVT. LTD. v. STATE INFORMATION                               253
    COMMR. GREATER MUMBAI [SANJAY KISHAN KAUL, J.]

that, to our mind, would be completely irrelevant. In this behalf, the           A
information sought for, arising from the letter of the counsel for
respondent No.3, dated 29.3.2012, has to be examined. We have
perused that letter. In substance what has been sought is
communications inter se the appellant and public authorities, approvals
granted by the Corporation, compliances, occupation certificate,
                                                                                 B
application submitted to authorities, revenue records, documents
pertaining to stamp duty, agreement with prospective flat buyers, etc. If
we compare this information sought with what has been sought under
the said Act, there is little doubt that the information sought under the
said Act is different and specific, i.e., dealing with the approved plans
and their modifications, which is part of the record of the public authority’s   C
sanction. Not only that, even if we look at the aspect of the relief prayed
for, arising from the letter; that has not really formed the subject matter
of adjudication, before any of the three judicial forums; what received
the attention of the Court was quite different, and related to preliminary
determination arising from the provision introduced in the Maharashtra
                                                                                 D
Amendment by way of inserting Section 9A in the said Code. This is
apart from the aspect, which we will discuss a little later, of the scope
and operation of the said Act, in respect of information being sought by
any person, even a third party. We have, thus, no hesitation in rejecting
this objection that the plea for disclosure of information arose in
previous civil proceeding, inter se the parties, and had been denied.            E
       13. The second defence against public disclosure of this
information, raised by learned senior counsel for the appellant, is that
respondent No.3 has failed to disclose any ‘larger public interest’, as
mandated under the said Act, and that the third respondent has no locus
standi to seek such information especially when the information falls            F
under Sections 8(1)(d) & 8(1)(j) of the said Act. To buttress the plea, a
reference has been made to the judgment of this Court in Thalappalam
Service Cooperative Bank Ltd. & Ors. vs. State of Kerala & Ors.3
opining that if the information falls under clause (j) of sub-section (1) of
Section 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,         G
that even clause (d) of sub-section 1 of Section 8 of the said Act allows
for disclosure of exempted information in larger public interest, and hence
a similar test would apply.
3
    (2013) 16 SCC 82
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254            SUPREME COURT REPORTS                         [2018] 12 S.C.R.


A            14. To appreciate this submission, one would have to turn to the
      very Statement of Objects & Reasons of the said Act, which has also
      been discussed in the impugned order. The said Act was a milestone in
      the endeavour to make government authorities more accountable to public
      at large by facilitating greater and more effective access to information.
      The Preamble, thus, itself states that “the practical regime of right to
B
      information for citizens to secure access to information under the
      control of public authorities, in order to promote transparency and
      accountability in the working of every public authority” was being
      established. Section 2(f) of the said Act defines ‘Information’ and reads
      as under:
C           “2. Definitions. – In this Act, unless the context otherwise
            requires, -
            xxxx               xxxx              xxxx            xxxx
            (f) “information” means any material in any form, including records,
D           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;”

E           The ‘Right to Information’ is defined under Section 2(j) of the
      said Act, which reads as under:
            “2. Definitions. – In this Act, unless the context otherwise
            requires, -
            xxxx               xxxx              xxxx            xxxx
F
            (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;
G           (ii) taking notes, extracts, or certified copies of documents or
            records;
            (iii) taking certified samples of material;


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   FERANI HOTELS PVT. LTD. v. STATE INFORMATION                                 255
 COMMR. GREATER MUMBAI [SANJAY KISHAN KAUL, J.]

       (iv) obtaining information in the form of diskettes, floppies, tapes,    A
       video cassettes or in any other electronic mode or through
       printouts where such information is stored in a computer or in any
       other device;”
      We may note that there is no dispute that the Corporation is a
public authority within the definition of Section 2(h) of the said Act.         B
       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 otherwise
       requires, -
                                                                                C
       xxxx               xxxx              xxxx              xxxx
       (n) “third party” means a person other than the citizen making a
       request for information and includes a public authority.”
       15. The purport of the said Act is apparent from Section 6 of the
said Act, which provides for the manner of making a request for                 D
obtaining information. In terms of sub-section (2) of Section 6 of the
said Act, there is no mandate on an applicant to give any reason for
requesting the information, i.e., anybody should be able to obtain the
information as long as it is part of the public record of a public authority.
Thus, even private documents submitted to public authorities may, under
                                                                                E
certain situations, form part of public record. In this behalf, we may
usefully refer to Section 74 of the Indian Evidence Act, 1872, defining
‘public documents’ as under:
       “74. Public documents. — The following documents are public
       documents:—
                                                                                F
       (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 any   G
       part 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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256             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A            16. The only exemption from disclosure of information, of
      whatever nature, with the public authority is as per Sections 8 & 9 of the
      said Act. Thus, unless the information sought for falls under these
      provisions, it would be mandatory for the public authorities to disclose
      the information to an applicant.
B            17. The endeavour of the appellant is to bring the information
      sought for by respondent No.3, under the exemption of Section 8, more
      specifically clauses (d) and (j) of sub-section (1), as also Section 9 of the
      said Act. The provisions read as under:
            “8. Exemption from disclosure of information.—
C           (1) Notwithstanding anything contained in this Act, there shall be
            no obligation to give any citizen,
            xxxx          xxxx           xxxx              xxxx
            (d) information including commercial confidence, trade secrets or
D           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;
            xxxx         xxxx            xxxx              xxxx
E           (j) information which relates to personal information the
            disclosure of which has not relationship to any public 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
F
            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.”
            ….                   ….               ….                ….
G           “9. Grounds for rejection to access in certain cases.—
            Without prejudice to the provisions of section 8, a Central Public
            Information Officer or State Public Information Officer, as the
            case may be may reject a request for information where such a
            request for providing access would involve an infringement of
            copyright subsisting in a person other than the State.”
H
   FERANI HOTELS PVT. LTD. v. STATE INFORMATION                                   257
 COMMR. GREATER MUMBAI [SANJAY KISHAN KAUL, J.]

         18. The issue of the test of larger public interest would, thus, arise   A
if 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 plans
are required to be submitted by the person proposing to construct on the
property, to the Commissioner of the Corporation. The appellant has               B
submitted these plans to the Corporation, in pursuance of the
Development Agreement and the Power of Attorney executed by
respondent No.3. As to how these plans are processed, is referred to in
the order of the State Information Commissioner dated 31.1.2015, in
para 7, which reads as under:
                                                                                  C
       “(7) On inquiry, the Public Information Officer in the Building
       Proposal Department of the Municipal Corporation of Greater
       Mumbai, clarified that there is prevailing procedure under Right
       to Information Act, for giving copy of map and proposal received
       from developer. The proposals received from developer, are
       being sent to the Tax Assessment Department, Water Engineer                D
       Department, as well as to the office of concerned Administrative
       Ward. Besides, also to the Rain Water Drainage Department,
       Road Department & Fire Brigade etc., of which department no
       objection or specific approval is required. Besides this, if it is
       necessary as per local circumstance the reference is also made             E
       to Railway Department, Airport Authority and to other
       Committees. In the Building Proposals received, it includes the
       particulars of plot, the information related to F.S.I. of open space,
       sectional plan and drawing.”
      The aforesaid, thus, shows that considerable processing is                  F
required before the plans reach the stage of sanction level.
       20. The Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963
(hereinafter referred to as the ‘Maharashtra Act’) in Section 3 provides
for the General Liabilities of Promoters. In terms of sub-section (2) of          G
Section 3, a promoter, who constructs or intends to construct a block or
building of flats was required to comply with many disclosure
requirements, inter alia clause (l), which reads as under:
       “(l) display or keep all the documents, plans or specifications (or
       copies thereof) referred to in clauses (a), (b) and (c), at the site
                                                                                  H
258                SUPREME COURT REPORTS                      [2018] 12 S.C.R.


A               and permit inspection thereof to persons intending to take or
                taking one or more flats;”
             21. The object of the aforesaid was that the purchaser should be
      able to get full information of the sanction plan. It can hardly be said
      that while a purchaser can get the information, the person who
B     administers the land as owner and grants the authority through a Power
      of Attorney to develop the land, would not have such a right.
             22. We may note that this Act was, however, repealed
      specifically by Section 92 of the Real Estate (Regulation and
      Development) Act, 2016 (hereinafter referred to as the ‘RERA’), which
C     now, under Section 11 of the RERA, provides the functions and duties of
      promoters. The duties are more elaborate, as under Section 11(1) of the
      RERA the promoter has to create his web page on the website of the
      Authority and enter all details of the proposed project as provided under
      sub-section (2) of section 4, in all the fields as provided, for public
      viewing. The promoter, in terms of sub-section (3) of Section 11 of the
D     RERA is required to make available to the allottee information about
      sanctioned plans, layout plans along with specifications, approved by the
      competent authority, by display at the site or such other place as may be
      specified by the Regulations made by the Authority. The object is clearly
      to bring greater transparency.
E             23. The fate of purchase of land development and investments is
      a matter of public knowledge and debate. Any judicial pronouncement
      must squarely weigh in favour of the fullest disclosure, in this behalf. In
      fact, 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, Sanjay
F     Kishan Kaul, J. was a party) opined that though the Chennai
      Metropolitan Development Authority mandated plans to be displayed at
      the site and also be made available on the website, the same principle
      should apply to the Corporation for all other sanctioned plans and, thus,
      issued directions for display of the plans on the website of the
      Corporation, and at the site, with clear visibility. This was just prior to
G     the RERA coming into force.
              24. In the aforesaid circumstances, even by a test of public
      interest, it can hardly be said that the same would not apply in matters of
      full disclosure of information of development plans to all and everyone.

H     4
          Order dated 22.3.2016 in WP No.4057/2016
   FERANI HOTELS PVT. LTD. v. STATE INFORMATION                                259
 COMMR. GREATER MUMBAI [SANJAY KISHAN KAUL, J.]

If we turn to the provisions of Section 8 of the said Act and the clauses      A
under which the exception is sought, clause (d) deals with information
relating to commercial confidence, trade secrets or intellectual property,
which has the potentiality to harm the competitive position of a third
party. Firstly, as observed aforesaid, the definition of a third party under
Section 2(n) of the said Act means a person other than a citizen
                                                                               B
requesting for information to a public authority. Under Section 11 of the
said Act, the third party has a right to be heard and to object to the
disclosure of information. The disclosure of plans, which are required to
be in public domain, whether under the repealed Act or RERA, can
hardly 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.          C
Similarly, insofar as the intellectual property is concerned, the
preparation of the plan and its designs may give rise to the copyright in
favour of a particular person, but the disclosure of that work would not
amount to an infringement and, in fact, Section 52(1)(f) of the Copyright
Act, 1957 specifically provides that there would be no such infringement
                                                                               D
if there is reproduction of any work in a certified copy made or supplied
in accordance with any law for the time being in force. This is what is
exactly sought for by respondent No.3 – certified copies of the approved
plans and its modifications, from the public authority, being the
Corporation. We may also note that Section 22 of the said Act provides
for an overriding effect with a notwithstanding clause qua any                 E
inconsistency with any other Act, which reads as under:
      “22. Act to have overriding effect.—The provisions of this
      Act shall have effect notwithstanding anything inconsistent
      therewith contained in the Official Secrets Act, 1923 (19 of 1923),
      and any other law for the time being in force or in any instrument       F
      having effect by virtue of any law other than this Act.”
       25. The aforesaid provision would not imply that a disclosure
permissible under the Copyright Act, 1957 is taken away under the
provisions of the said Act, but rather, if a disclosure is prescribed under
any other Act, the provisions of the said Act would have an overriding         G
effect.
      26. Similarly, clause (j) of sub-section (1) of Section 8 of the said
Act ex facie would have no relevance. There is no ‘personal
information’ of which disclosure is sought. Further it cannot be said that
                                                                               H
260                SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     it has no relation to public activity or interest, or that it is unwarranted, or
      there is an invasion of privacy. These are documents filed before public
      authorities, required to be put in public domain, by the provisions of the
      Maharashtra Act and the RERA, and involves a public element of
      making builders accountable to one and all. That respondent No.3, in
      fact, happens to be the administrator of the property in question, which
B
      will certainly not reduce his rights as opposed to anyone else, including a
      flat buyer.
            27. We, thus, reject the submission based on clauses of
      sub-section (1) of Section 8 read with Section 9 of the said Act.
C            28. We also fail to appreciate the submissions of the learned
      senior counsel for the appellant of “vendetta”. What is the vendetta
      involved in seeking disclosure of plans approved by a builder? To say
      the least, this is really carrying things too far, just for the sake of creating
      an obstruction in disclosure. Thus, the reference to the judgment in
      Reliance Industries Ltd. vs. Gujarat State Information Commission
D     & Ors.,5 would be of no avail.
            29. Another limb of the submission of learned senior counsel for
      the appellant was that the provisions of Sections 10 & 11 of the said Act
      have been rendered nugatory. The underlying documents of the
      development plans, drawings, etc. ought not to have been directed to be
E     disclosed and only the grant of permission and approval by the
      Corporation, i.e., commencement certificate and occupation certificate
      could 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 be
F     severed. This in turn would require a pre-requisite that the information
      sought contains some element which has been protected under Section
      8 of the said Act. Having held that Section 8 of the said Act has no
      application, this plea is only stated to be rejected.
             31. Insofar as Section 11 of the said Act is concerned, dealing
G     with third party information, and the right to make submissions regarding
      disclosure of information, that provision has been complied with by
      permitting the appellant and even the architect to raise objections, and
      has been dealt with by the PIO, and even by the State Information
      Commission, on appeal.
H     5
          AIR 2007 Gujarat 203.
   FERANI HOTELS PVT. LTD. v. STATE INFORMATION                                261
 COMMR. GREATER MUMBAI [SANJAY KISHAN KAUL, J.]

       32. Lastly, the irony of the situation. The Development                 A
Agreement and the Power of Attorney is sought to be relied upon, by
the appellant, to contend that it was the responsibility and authority of
the attorney holder to obtain necessary permissions, sanctions and
approvals, and that respondent No.3 is not entitled to deal with, nor liable
to any authority in respect of the same, but is entitled to only 12 per cent
                                                                               B
of 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 the
owner of the property, who has given authority to a developer under an
agreement to develop the property and obtain sanctions, is precluded           C
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. Such a proposition is
only stated to be rejected, and in a sense seeks to put the developer and
holder of the Power of Attorney on a pedestal. This is, of course, de
hors any private lis pending between the parties.                              D

       34. In the end, we would like to say that keeping in mind the
provisions of RERA and their objective, the developer should mandatorily
display at the site the sanction plan. The provision of sub-section (3) of
Section 11 of the RERA require the sanction plan/layout plans along
with specifications, approved by the competent authority, to be displayed      E
at the site or such other places, as may be specified by the Regulations
made by the Authority. In our view, keeping in mind the ground reality
of rampant violations and the consequences thereof, it is advisable to
issue directions for display of such sanction plan/layout plans at the site,
apart from any other manner provided by the Regulations made by the            F
Authority. This aspect should be given appropriate publicity as part of
enforcement of RERA.

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


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262                SUPREME COURT REPORTS                    [2018] 12 S.C.R.


A            36. We, thus, dismiss the appeals with costs quantified at Rs.2.50
      lakhs (Rupees two lakhs & fifty thousand), payable by the appellant to
      respondent No.3 (though hardly the actual expenses!).


      Ankit Gyan                                                Appeals dismissed.
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