BACKGROUND
The Real Estate (Regulation and Development) Act, 2016[1] provides plausible provisions for restructuring and restoring of the Real Estate Sector to make it more lucrative and these provisions have been interpreted time to time by the Hon’ble Court, to make them more eloquent, the same was done in the case of Ferani Hotels Pvt. Ltd. v. State Information Commissioner, Greater Mumbai & Ors[2]. Where one development agreement dated 2/1/1995 was entered inter se Mr. Nusli Neville Wadia (Respondent 3) and Ferani Hotels Pvt. Ltd. (Appellant) for the development of three plots which were under the sole administration of Respondent 3. This agreement was coupled with an irrevocable power of attorney executed by Respondent 3 in favor of the appellant. In 2008, several disputes arose between the parties as a result of which, Respondent 3 on 12/5/2008 terminated the power of attorney and development agreement.[3] The counsel of the respondent, on 29/3/2012, prayed for disclosure of a set of documents that the counsel of the appellant had refused to disclose stating the documents to be a matter of commercial confidence or trade secrets. Henceforth, the case decides the extent of Section 11[4] of RERA.
ISSUES
In accordance with Section 3 of The Maharashtra Ownership Flats (Regulations of the promotion of construction, sale, management, and transfer) Act, 1963[5] and section 11[6] of RERA, the respondents had the right to access the information which was prayed but still, it was denied by the appellant henceforth, an application was filed under section 6 (1) of The Right to Information Act, 2005[7] on 10/12/12, before Public Information Officer Municipal Corporation of Greater Mumbai by Respondent. The following documents were enquired to be disclosed: –
- Certified copies of all PR[8]
- Certified copies of all plans and amendments submitted by Ferani Hotels, any division of Ferani Hotels, or its architect.
- Certified copies of all layout, sub-divisions, plans, and amendments submitted by Ferani Hotels, any division of Ferani Hotels, or its architect.
- Certified copies of all development plans and any amendments submitted by Ferani Hotels, any division of Ferani Hotels, or its architect.
- Certified copies of all reports submitted to Municipal Commissioner and his approvals to the same.
The appellants, however, objected to the disclosure of any such documents as per the provisions of section 11 (1)[9] of The Right to Information Act, 2005, by providing the following points of contention that –
- The information did not serve any social or public interest but it served only the private interests of the respondent. Further, that the respondent and appellant were from the same line of business which made them competitors and the disclosure of such information can cause harm to the appellant as the information consists of commercial confidence and trade secrets. To buttress this contention, the appellant pressed the following argument under section 8(d)[10] and 8(j)[11].
- An appeal regarding the following documents is pending in the hon’ble Supreme Court and hence making the information sought, sub judice.
- The Architect of the appellant stated that all the plans, classifications, designs, drawings, etc. comprise of work product therein, including intellectual property rights and in particular, copyrights are to be reserved for the appellant.
All the contentions boiled down to the point that whether or not the information in documents constitute to work product. Further, are the documents in question holding any nexus with public activities? Moreover, does the submission of such information falls under the duties and functions of a promoter?
RATIO DECIDENDI
The Apex court held that the fate of purchase of land development and investment, is a matter of public knowledge and almost all the judicial pronouncements must squarely weigh in the favour of full disclosure of information. The Hon’ble judge stated the applicability of the test of public interest in the case of Mathan v. Corporation of Chennai,[12] where it was opined that the Chennai metropolitan development authority mandated development plans to be displayed at the construction sites and also all the plans to be made available on the website of the corporation. Henceforth, under the circumstances explained in the test of public interest all the development plans should be fully disclosed to the public and this makes the information relevant for the public interest in consequence to Section 8(j) of the Right to Information Act, 2005.[13]
The Hon’ble Court also pressed section 52(1) (f) of the Copyright Act, 1957[14] which deals with certain acts which are not to be observed as an infringement of copyrights and reproduction of any work, in a certified copy, made or supplied in accordance to any law for the time being in force, is also one of the conditions. Hence, section 8(d) cannot also be enforced here, as there will be no infringement of Intellectual property rights or copyrights. Further on expounding upon the provisions of The Right to Information Act, 2005 the Hon’ble court also enunciated the overriding effect of the Right to Information Act, 2005 mentioned under section 22[15].
The Court also elaborated upon the section 11 of the RERA,[16] whereby sub-clause 3(d) of the section is crystal clear that the promoter has to adduce sanctioned plans, layout plans, along with specifications approved by the regulations made by the authority.
CONCLUSION
The effective implementation of any law significantly depends on the cogent nature of the provisions laid down under the law as lucid provisions reduce the ambiguity in the interpretation of laws and leave no gaps or loopholes. Also, for proper interpretation of any law, it is important to understand the purpose of the devised law. In light of the given statement we can say that RERA was introduced to increase transparency in the Real Estate Sector and to bring the promoters and buyers at an equal level.
In the light of the contentions raised, the Hon’ble court in the following case laid down the rule that such documents Filled before public authorities are required to be put in public domains and involve a public element for making builder accountable and disclosure of plans required in public domains are not matter of commercial confidence or trade secrets.
Author(s) Name: Sarthak Mittal (Guru Gobind Singh Indraprastha University, Delhi)
[1] The Real Estate (Regulation and Development) Act, 2016, Act no. 16 of 2016.
[2] Ibid.
[3] Suit no. 1628 of 2008.
[4] Section 11 of The Real Estate (Regulation and Development) Act, 2016(refers to the Functions and Duties of the promoter).
[5] The Maharashtra Ownership Flats (Regulations of the promotion of construction, sale, management and transfer) Act, 1963 (Act 45 of 1963), section 3 suggests the rights and duties of the promoter.
[6] Ibid.
[7] The Right to Information Act, 2005 (No. 22 of 2005), Section 6(1) of the Act (refers to the provisions to make an application to the appropriate Public Information Officer.).
[8] Property registration card is an eight-page document issued by government to the owner of the property.
[9] Section 11(1) of the Right to Information Act, 2005. (The proviso provides grounds for denying disclosure of the Information by CPIO or SPIO).
[10] Section 8(d) of The Right to Information Act, 2005, (The proviso states that information containing trade secrets and intellectual property cannot be disclosed to any third party unless it becomes essential for public interest).
[11] Section 8(j) of The Right to Information Act, 2005, (The proviso states that, access to the information which has no nexus to any public activity or interest can be denied).
[12] 2016 SCC Online Mad 14656.
[13]Ibid.
[14] The Copyright Act, 1957 (Act no.14 of 1957), section 52(1) (f) lays down that reproduction of any work supplied in accordance to any law for the time being in force.
[15] Section 22 of The Right to Information Act, 2005, (The section lays down that if provision of any other Act is found to be inconsistent, The right to Information will have an overriding effect).
[16] Ibid.
