The Public Information Officers [PIOs] designated under the Right to Information [RTI] Act have in several cases been denying supply of copies of layout plans of commercial complexes, apartments, houses, etc. As a result, concerned citizens who are demanding, at the risk of their lives, these documents to halt unauthorised constructions, plan violations, encroachments and misuse of state property, etc., are unable to assert their rights.
Should copies of approved plans be given to persons other than the owners? Should the permission of the owners be obtained before disclosing the information? Does disclosing such information amount to violation of copyright law or intellectual property rights (IPR)? is the supply of these documents exempted under RTI? What is the impact of Real Estate Regulatory Authority Act (RERA), which mandates disclosure of such information? These issues have been clarified by the Supreme Court in a recent verdict.
The case related to a dispute between Nusli Wadia, the administrator of three plots located in Mumbai (belonging to Late E F Dinshaw) and Ferani Hotels Private Limited (FHPL), the developers. Wadia through an application under RTI to the Municipal Corporation of Greater Mumbai sought documents like copies of PR cards, plans and amendments, layouts, sub-division plans, development plans, and reports submitted to the municipal commissioner and his approvals to the same submitted by FHPL or by any of its divisions or its architects.
The PIO treated the required information as ‘Third Party Information’ as provided in Section 11 of RTI Act and referred the matter to FHPL. The hotel’s lawyers objected to the disclosure on several grounds. Firstly, it was argued that disclosure did not serve any social or public interest purpose. Secondly, since there was already a suit pending in the Bombay high court, the matter is sub-judice.
Thirdly, it was pointed out that the applicant was a competitor and thus disclosure would harm the hotel’s competitive position and their intellectual property rights, as the information involved commercial and trade secrets and copyright.
The PIO of the municipal corporation declined to disclose the information as per the provisions of Section 8, 9 [exemptions] and 11 of the RTI Act. The hotel appealed to the First Appellate Authority [FAA] of the municipal corporation. The FAA ordered disclosure of information in respect of PR cards, and declined the rest of the information.
Dissatisfied with the outcome, the applicant approached the State Chief Information Commission [SCIC], which directed the corporation to release the information as the property in question involved public interest, as it would be bought by the public. The case travelled up to the Bombay high court by way of an appeal against the SCIC decision. Here again, the appeal was dismissed. The court held that 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 that would harm the competitive position of the appellant.
The court observed that the documents sought 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 decision of the high court was challenged in the Supreme Court. Quoting the provisions of RERA, the court said that disclosure of plans, which are required to be in public domain, under RERA, can hardly be said to be matters of commercial confidence or trade secrets. The court observed, “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”.
With regard to the issue of IPR, the court observed that the preparation of the plan and its designs may give rise to copyright in favour of a particular person but the disclosure of that work would not amount to an infringement and the Copyright Act specifically provides that there would be no such infringement if there is reproduction of any work in a certified copy made or supplied in accordance with any law in force. Further, the apex court has observed that the only exemption from disclosure of information, of whatever nature, with the public authority is as per Sections 8 & 9 of the RTI Act.
Thus, unless the information sought for falls under these provisions, it would be mandatory for public authorities to disclose the information to an applicant. Holding that Section 8 of the RTI has no application in this case the court has awarded Rs 2.5 lakh to the applicant as cost of litigation.
(The writer is member, Central Consumer Protection Council)
