Case: FERANI HOTELS PVT. LTD Vs. THE STATE INFORMATION COMMISSIONER GREATER MUMBAI AND ORS

2. Late Shri E.F. Dinshaw was the owner of three plots in Malad (West), Mumbai and Mr. Nusli Neville Wadia/respondent No.3 is the sole administrator of the estate and effects of late Shri E.F. Dinshaw. It may be noted that there is litigation pending qua the functioning of respondent No.3 as an administrator, but it is not in doubt that at present, there is no interdict against him in performing his role as the sole administrator. A Development Agreement dated 2.1.1995 was executed inter se respondent No.3 and Ferani Hotels Private Limited /appellant for carrying out the development on the said three plots. This Agreement was coupled with an irrevocable Power of Attorney executed by respondent No.3 in favour of the appellant. However, disputes are stated to have arisen between the parties some time in the year 2008.      3. As a consequence of the disputes having arisen, respondent No.3 is stated to have terminated the Power of Attorney and the Development Agreement on 12.5.2008 and, on the very next day, Suit No.1628/2008 was filed by respondent No.3 for inter alia declaration that the said Power of Attorney and the Development Agreement had been validly terminated. Interim relief, pending consideration of the suit, qua further construction and demolition was also sought.      4. The question of grant of interim relief has also had a chequered history. The interim relief was originally granted by learned Single Judge of the Bombay High Court vide order dated 19.7.2010, limited to the extent of restraining the appellant from putting any party in possession of any constructed premises, except with the approval of respondent No.3, during the pendency of the suit. This order was assailed before the Division Bench, which initially stayed the interim order on 26.7.2010, and finally vacated it on 19.7.2012, calling upon the learned Single Judge to first consider the issue as to whether the suit was within time. The order of the Division Bench was assailed before this Court, in Nusli Neville Wadia vs. Ferani Hotels (Pvt.) Ltd. & Ors.,where the legal issue raised related to the local amendment in Maharashtra, to the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code?), whereby Section 9A was inserted. Section 9 of the said Code mandates trial of suits of civil nature excepting suits in which their cognizance is either expressly or impliedly barred. In terms of Section 9A, notwithstanding anything contained in the said Code, or any other law for the time being in force, in case of an objection being raised as to the jurisdiction of the Court to entertain a suit, the Court is mandated to proceed to determine the same as a preliminary issue, before proceeding with the question of granting or setting aside of an interim order. It is the interpretation of this provision, which received the attention of the Supreme Court in the Special Leave Petition filed in this Court, against the order of the Division Bench. In terms of the order dated 8.4.2015, it was held that Section 9A, introduced as the Maharashtra Amendment, was mandatory in nature.

Reasoning:
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 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 that, to our mind, would be completely irrelevant. In this behalf, the 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, 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 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 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.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 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. (2013) 16 SCC 82 opining that if the information falls under clause (j) of(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, that even clause (d) of1 of Section 8 of the said Act allows for disclosure of exempted information in larger public interest, and hence a similar test would apply.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 effect.Similarly, clause (j) of(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 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 will certainly not reduce his rights as opposed to anyone else, including a flat buyer.We, thus, reject the submission based on clauses of(1) of Section 8 read with Section 9 of the said Act.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 & Ors., AIR 2007 Gujrat 203 would be of no avail.Section 10 of the said Act refers to severability, i.e., information, which ought to be disclosed and not to be disclosed can be severed. This in turn would require athat 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.Insofar as Section 11 of the said Act is concerned, dealing 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.Lastly, the irony of the situation. The Development 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 of the monetary shares from sale proceeds of the constructed premises. Thus, no information should be disclosed under the saidIf 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 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.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(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 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 Authority. This aspect should be given appropriate publicity as part of enforcement of RERA.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 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.