Ferani Hotels Pvt. Ltd. vs The State Information Commissioner ...

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.

(b) That the information sought in the suit proceedings had not been granted by the High Court of Bombay, and an appeal against 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 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.

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 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 5 th 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 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.

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 7 was based on the very object of the said Act being incorporated, which was to secure access to information, under 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. 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 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.

vs. Gujarat State Information Commission & Ors.,5 would be of no avail.

been dealt with by the PIO, and even by the State Information Commission, on appeal.

32. 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 said Act!

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 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.

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!).

September 27, 2018.