1 Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.9922 OF 2009 SKIL Infrastructure Private ) Limited (formerly known as ) Seaking Infrastructure ) Private Ltd.) a Company ) incorporated and registered ) under the provisions of the ) Companies Act, 1956, having ) its registered office at SKIL ) House, 20, Bank Street Cross ) Lane, Fort, Mumbai-400 023. ) 2.Dronagiri Infrastructure ) Private Limited, a Company ) incorporated and registered ) under the provisions of the ) Companies Act, 1956, having ) its registered office at Jai ) Centre, 34, P.D. Mello Road, ) Opp. Red Gate, Mumbai-400 009 )..PETITIONERS 2 Versus 1.The State Information ) Commissioner, The Maharashtra ) State Information Commission, ) Konkan Region, having his ) office at Konkan Bhavan, ) C.B.D. Belapur, Navi Mumbai ) 2.Mr. G.S. Gill, Vice Chairman) and Managing Director of CIDCO) in his capacity as the ) Appellate Authority under the ) Right to Information Act, 2005) having his office at CIDCO ) Bhavan, CBD, Belapur, Navi ) Mumbai. ) 3.The City and Industrial ) Corporation of Maharashtra ) Limited (CIDCO) having its ) office at CIDCO Bhavan, ) CBD, Belapur, Navi Mumbai. ) 4.Mr. Sanjay Kumar Surve, ) 3 of Navi Mumbai, Indian ) Inhabitant, residing at 302, ) Suburi Apartment, Plot No.41, ) Sector 5, Sanpada, Navi ) Mumbai-400 703. )..RESPONDENTS Mr.R.A. Dada, Senior Counsel with Mr. K.G. Munshi i/b. A.S. Dayal & Associates. Mr. V.S. Masurkar, Govt. Pleader for Respondent No.1. Mr. A.M. Kulkarni, for respondent Nos.2 and 3. Mr. M.J. Bhat, for Respondent No.4. CORAM : FERDINO I. REBELLO & J.H. BHATIA, JJ. DATED : 30th November, 2009. ORAL JUDGMENT (PER FERDINO I. REBELLO, J.): Rule. By consent heard forthwith. 2. The Respondent No.1 had under an application applied for information with the Chief Information Officer of Respondent No.3 under the Right to Information Act, which hereinafter shall be referred to as the Act. The original Authority, passed an order directing disclosure of some of the information asked for. The Respondent No.4 being aggrieved preferred an Appeal before the First Appellate Authority. The First Appellate Authority without giving notice to the petitioners herein directed disclosure of 4 some other information, namely the Articles of Association. 3. The Respondent No.4 thereafter preferred an Appeal before the Second Appellate Authority. The Second Appellate Authority without giving notice of hearing to the petitioner passed the impugned order directing disclosure of other information as set out in its order dated 26 th October, 2009. The petitioners are aggrieved by the these actions. 4. Pursuant to the said direction the respondent No.3 has released information as directed by the Authorities. The petitioner is a joint venture with Respondent No.3. 5. It is the case of the petitioner that the said information was disclosed by the original authority without complying with the mandatory requirements of Section 11 of the Act. Section 11 requires the State Public Information Officer, who hereinafter shall be referred to as the Original Authority in the event such Authority prima facie comes to the conclusion that it intends to disclose the information or record or part thereof, to issue notice to the third party and which relates to or has been supplied 5 by a third party and has been treated as confidential by that third party, to call on such third party within five days from the receipt of the request that intends to disclose the information or record or part thereof and invite the third party to make a submission in writing or orally. It is submitted that this has not been complied with. It is further submitted that neither the First Appellate Authority nor the Second Appellate Authority given any notice of hearing of Appeal to the petitioner who is vitally affected by the order and has passed on the information which is commercial information of the petitioner. This, it is submitted, would be contrary to the principles of natural justice and fair play in as much as no appeal where an order is passed affecting the rights of third parties could have been disposed off without notice to such third party. 6. On behalf of the respondent No.4 learned Counsel submits that show cause notice was issued to the petitioner and that would amount to compliance with the requirement of law. Section 11 reads as follows:- 11.(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may 6 be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information. Provided that except in the case of commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweights in importance any possible harm or injury to the interests of such third party. (2)Where a notice is served by the Central Public 7 Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. It is thus clear from the reading of the Section that when the Chief Information Officer, respondent No.3 seeks to disclose information belonging to third party such 8 information cannot be disclosed without complying with the mandatory requirement of Section 11 of the Act. Admittedly in the instant case such information was not disclosed. 7. Further we find that neither the First Appellate Authority nor the Second Appellate Authority gave notice of the appeal to the petitioner who is vitally affected by any order passed by it. Any order passed by a quasi judicial authority affecting the rights of third party could not have been passed without such third party being a party in the proceedings and/or party in the proceedings without being given notice or even if not strictly a formal party without being given a reasonable opportunity. From a reading of Section 11 it must follow, that if any person who seeks information of a third party, in the event the original Authority rejects the application will have to add such a third party as party. No appeal without such party can be proceeded with. Also such third party if aggrieved could challenge the order. This view would be supported by the specific provisions of Section 19(4) of the Act which reads as follows:- 19(4) If the decision of the Central Public Information Officer or State Public Information 9 Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the the Central Public Information Officer or State Public Information Officer, as the case may be, shall give a reasonable opportunity of being heard to that third party. It is thus clear that the third party must have an opportunity of being heard and this could be done only in the event such a party is made a party in the proceedings before the Appellate Authority. 9. Considering the fact that the information by the State Public Information Officer and the First Appellate Authority has already been released at this stage it is not possible to recall those orders. However, in so far as the Second Appellate Authority is concerned, the impugned order is set aside. The matter is remanded back to the Second Appellate Authority which after hearing the petitioner on being made a party by the Appellant before it to pass an appropriate order which it thinks fit and proper according to law. 10. On behalf of the Respondent No.4 the learned Counsel 10 makes a statement that he will add the petitioners herein as party before the Second Appellate Authority. On such application being made it be allowed and notice served on the petitioner. The Appeal to be disposed off not later than eight weeks after notice. 10. Rule made absolute accordingly. There shall be no order as to costs. (J.H. BHATIA, J.) (F.I. REBELLO, J.) 11