IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION / CIVIL APPELLATE JURISDICTIONWRIT PETITION NO. OF 2015Under article 226 (3)

Mumbai Metro One Private Limited (MMOPL).Petitioners

Versus

State Information Commission & Anr...Respondents

AFFIDAVIT IN REPLY OF RESPONDENT NO.2

I, Shailesh Gandhi, the Respondent No.2 herein crave leave to file Affidavit in Reply to the Petition, for the limited purpose of objecting to the maintainability of the Petition and grant of any stay by the Honble Court; and I may be permitted to file detailed Affidavit on merits of the case, if so necessitated, and do state on solemn affirmation as under

(1)At the outset, I say that nothing contained therein in the Petition shall be deemed to have been admitted by me unless expressly dealt with and admitted by me. For the sake of abundant caution, it is further submitted that nothing shall be deemed to have been admitted by me for the mere reason of non-traverse; and all contentions set out in the Petition, which are expressly or by necessary implication, inconsistent with the contentions set out hereinafter, shall be deemed to have been denied by me.

(2)I say that it is not a fit case where the Honble Court should exercise its Writ jurisdiction. I invite the attention of the Honble Court to the dicta of the Apex Court in the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233) wherein the following four propositions were laid down for the due exercise of Writ jurisdiction by Writ Courts (1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. Once consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.

(3)The attention of the Honble Court is further invited to a Bombay High Court ruling in the case of Skil Infrastructure Limited Versus State Information Commissioner dated 14.09.2010, wherein this Honble Court refused to exercise their extra-ordinary Writ jurisdiction, basing it on a Supreme Court ruling and stated that

The State Information Commissioner has applied his mind to all the respective pleas raised, has dealt with each and every document sought for and passed a reasoned order. Even a possible view taken by the State Information Commissioner cannot be a reason to interfere with the same while exercising the powers under certiorari. In the case of Surya Dev Rai vs. Ram Chander Rai and ors. ((2003) 6 SCC 675), the Supreme Court made the following observations regarding the powers of certiorari under Article 226 of the Constitution:-

"Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.Having considered the challenge by the petitioners, in our opinion, the impugned order does not suffer from any infirmities on any of the grounds set in the above observations and therefore it does not call for interference in this petition.

Para 6Hence, this petition must fail at the threshold and the same is hereby rejected summarily.

(4)I therefore submit that, in view of the law summarized hereinbefore, the Honble Court determine if the case at hand is a fit case to interfere with; and in the event the Honble Court thinks fit that it is a case where the Writ jurisdiction should be exercised and the Honble Court must interfere with the impugned Order, it is most respectfully prayed that the Honble Court record its prima facie finding as to whether the impugned Order is (a) Without jurisdiction; or(b) Commission has acted illegally in the exercise of its undoubted jurisdiction, and has acted and decided without giving an opportunity to the parties to be heard, or violated the principles of natural justice; or(c) That there is a manifest error apparent on the face of the proceedings; or(d) That the impugned Order is based on clear ignorance or disregard of the provisions of law.

(5)I would further submit that a stay of execution of a Statutory Order is ordinarily granted by higher Courts, if some irreparable harm or injury is otherwise going to occur to the party therein by the execution of impugned Order; and therefore it must be clearly shown to the Honble Court, the irreparable harm that would befall the Petitioner.

(6)I would further submit that at the interim stage, the balance of convenience is to consider whether the small inconvenience of being transparent and observing the RTI law is sufficient reason for citizens fundamental right being denied during the pendency of this case. Various judicial pronouncements recognizing RTI as a fundamental right of citizens were one of the important factors which led to the framing of this law by Parliament to codify this right. I request the Court to record its finding of the irreparable harm which could come to the petitioner, if it has to follow the Right to Information while the Court decides this matter. I might respectfully and humbly point out that the army, police and judiciary amongst many others have been complying with the Right to Information Act. With the exemptions provided in the law, no harm has come to any of these organizations in the past decade.

(7)I would further submit that if the Honble Court concludes that the petition falls under writ jurisdiction and must be stayed it must consider one important fact on merit before granting any stay. It is a case where the governments have given 650 crores as free grant for the project and 133 crores as equity. Thus 783 crores is governments contribution, apart from land valued at a few hundred crores. If the Court prima facie feels that compared to the 379 crores (getting 74% equity) as equity contributed by the private parties, governments 783 crores (which gives government a equity stake of 26%) is not substantial finance, I respectfully request the Honble Court to say so.(8) I also state that I am making this petition under article 226 (3) of the Constitution which states: Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without(a)furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and(b)giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacatedThis applies in this case, since I was not given given the copies of the petition and an opportunity of being heard by the Court.Thus if no opportunity of hearing is given to me, the stay granted by the Court shall stand vacated.(8)I, therefore, most humbly submit that it is a not case where the Honble Court should show any indulgence to the Petitioners and the Honble Court be pleased to uphold the mandate of the transparency law. I request the court to refuse the plea for a stay made by the petitioner and consider dismissing the Writ Petition with costs.

Solemnly Affirmed at MumbaiDated this day of , 2015

Shailesh Gandhi Respondent No.2 In Person