RTI UPDATE | SUPREME COURT
ORDER | PRIVATE DOCUMENTS WHICH FORM A PART OF PUBLIC RECORD - CAN BE SOUGHT
UNDER RTI APPLICATION
Supreme Court of India recently in case of Ferani hotels pvt. Ltd. versus The State Information Commissioner Greater Mumbai & Ors.
held that documents which had received the approval of a public
authority and which are under his control, can be sought by an
application under the Right to Information Act, 2005 (RTI Act).
A development agreement was executed between Nusli Wadia and Ferani Hotels Private Limited (Ferani Hotels) on 2 January 1995 coupled with an irrevocable power of attorney executed by Nusli Wadia in favour of the Ferani Hotels.
A dispute arose between the parties in 2008 and thereupon Nusli Wadia terminated the development agreement and power of attorney and filed a suit to declare the said agreement and power of attorney validly terminated.
Pending consideration of the suit, interim relief was granted against further construction and demolition by the Bombay High Court.
In the above application for interim relief one of the prayers made by Nusli Wadia was for disclosure of a set of documents which the Ferani Hotels refused to disclose.
Thereafter, Nusli Wadia filed an application under Section 6 of the RTI Act before the Public Information Officer (PIO), Mumbai Municipal Corporation of Greater Mumbai.
The information sought in the application were:
A dispute arose between the parties in 2008 and thereupon Nusli Wadia terminated the development agreement and power of attorney and filed a suit to declare the said agreement and power of attorney validly terminated.
Pending consideration of the suit, interim relief was granted against further construction and demolition by the Bombay High Court.
In the above application for interim relief one of the prayers made by Nusli Wadia was for disclosure of a set of documents which the Ferani Hotels refused to disclose.
Thereafter, Nusli Wadia filed an application under Section 6 of the RTI Act before the Public Information Officer (PIO), Mumbai Municipal Corporation of Greater Mumbai.
The information sought in the application were:
- Certified copies of all PR cards submitted;
- 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.
- Certified copies of all Layouts, Sub-Division Plans and amendments therein form time to time submitted by the Ferani Hotels Ltd. and/or by its any divisions and/or its Architect.
- 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.
- Certified copies of all Reports submitted to the Municipal Commissioner and his approvals to the same.
The PIO refused to provide any information to Nusli Wadia. Nusli Wadia
then appealed to the first appellate authority under the RTI Act which
permitted disclosure of the information sought under the above point
(1), while declining a disclosure of the rest of the information made
under the application.
Thereafter a second appeal was filed before the State Chief Information Commissioner under the RTI Act which allowed disclosure of all the information sought by Nusli Wadia on the ground that the property has connection with public interest, as flats erected thereon have been purchased by the citizens at large.
Aggrieved by the order, Ferani Hotels approached the Bombay High Court challenging the State Commissioner`s order, which was dismissed by the Bombay High Court.
The above order gave rise to an appeal filed by Ferani Hotels before the Supreme Court.
Thereafter a second appeal was filed before the State Chief Information Commissioner under the RTI Act which allowed disclosure of all the information sought by Nusli Wadia on the ground that the property has connection with public interest, as flats erected thereon have been purchased by the citizens at large.
Aggrieved by the order, Ferani Hotels approached the Bombay High Court challenging the State Commissioner`s order, which was dismissed by the Bombay High Court.
The above order gave rise to an appeal filed by Ferani Hotels before the Supreme Court.
DECISION OF THE SUPREME COURT
Supreme Court after referring to various provisions of the RTI Act held that there is no mandate on an applicant to give reasons for requesting the information as long as it is a part of public record of a public authority. Also private documents submitted to public authorities forms a part of public record under certain situations. Since flats erected on the property were to be purchased by the public, the court considered private documents as a part of public record.
The only exception to disclosure of information with the public authority is under Section 8 (i.e. Exemption from disclosure of information) and Section 9 (i.e. Grounds for rejection to access in certain cases) of the RTI Act. Thus, unless the information sought falls under these provisions, it would be mandatory for the public authorities to disclose the information. Also, the test of larger public interest would arise only if it falls within the exceptions laid down in the said provisions of the RTI Act.
Further while rejecting the argument of the Ferani Hotels, the Court observed that the disclosure of plans which are required to be in public domain can hardly be said to be matters of commercial confidence or trade secret. Also, insofar, as the intellectual property is concerned disclosure of such work would not amount to an infringement as the provisions of the Copyright Act, 1957 allow reproduction of any work in a certified copy or if such work is supplied to anyone in accordance with any law for the time being in force.
Supreme Court after referring to various provisions of the RTI Act held that there is no mandate on an applicant to give reasons for requesting the information as long as it is a part of public record of a public authority. Also private documents submitted to public authorities forms a part of public record under certain situations. Since flats erected on the property were to be purchased by the public, the court considered private documents as a part of public record.
The only exception to disclosure of information with the public authority is under Section 8 (i.e. Exemption from disclosure of information) and Section 9 (i.e. Grounds for rejection to access in certain cases) of the RTI Act. Thus, unless the information sought falls under these provisions, it would be mandatory for the public authorities to disclose the information. Also, the test of larger public interest would arise only if it falls within the exceptions laid down in the said provisions of the RTI Act.
Further while rejecting the argument of the Ferani Hotels, the Court observed that the disclosure of plans which are required to be in public domain can hardly be said to be matters of commercial confidence or trade secret. Also, insofar, as the intellectual property is concerned disclosure of such work would not amount to an infringement as the provisions of the Copyright Act, 1957 allow reproduction of any work in a certified copy or if such work is supplied to anyone in accordance with any law for the time being in force.
MHCO Comment: The judgment of the Supreme Court has made
it clear that any information, be it private or public, which forms a
part of public record can be sought by an application under the RTI Act
and also the direction by apex court to the developer to display all
necessary information on their site will reinforce the provisions of
RERA.
The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.
The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.
