CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2008/00931
Dated, the 30th January, 2009.
Appellant : Shri S.K. Kapoor
Respondents : Securities and Exchange Board of India (SEBI)
This matter was heard on 15.01.2009 pursuant to Commission’s notices
dated 05.12.2008 and 11.12.2008. Appellant was present in person.
Respondents were present through Ms.Vandana Mittal, AGM, Shri J.Shandilya,
AGM and Shri Aman Jain, AGM.
2. Appellant had filed his RTI-application dated 08.04.2008 before the
CPIO, SEBI for 10 main items of queries, with sub-sections in almost all the
queries. The CPIO provided a point-wise reply to the appellant on 09.05.2008.
Aggrieved by the CPIO’s reply, the appellant went in first-appeal before the
Appellate Authority on 18.05.2008. The Appellate Authority directed, in his
order dated 03.07.2008, that no further information was to be disclosed to the
appellant apart from what had already been disclosed to him by the CPIO.
Appellant thereafter came in second-appeal before the Commission against this
order of the Appellate Authority.
3. On perusing the documents submitted before me and on hearing
both parties, the appellant’s queries, as contained in his RTI-application dated
08.04.2008 (copy attached to this order as Annexe), are taken up for decision as
below:-
Item No.1 (a) to 1(e):
The information requested by the appellant through this query pertains to
a third-party, viz. the National Stock Exchange (NSE) of India Limited.
NSE has filed a written-statement dated 13.01.2009 before the
Commission, stating that they were not in a position to comment on all aspects of
the second-appeal of the appellant as they were not provided the requisite
documents by the SEBI, who had informed them about the CIC’s direction dated
10.11.2008 to file their written-submissions in the present second-appeal.
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They further stated that there were third-parties other than the Stock
Exchange in the above matter, who should be consulted before a decision is
taken about disclosure of the requested information.
It is their further submission that as the Stock Exchange is not a ‘public
authority’ ⎯ CIC’s decision dated 07.06.2007 declaring NSE as public
authority having been stayed by the Delhi High Court ⎯ they cannot be
obligated to respond to the queries of the appellant. However, from the
submissions received from the third-party (the NSE), it would appear that they
were willing to cooperate with the ongoing RTI-proceeding and to put forward
their own case as well as the case of the third-parties regarding the
confidentiality of the information for which disclosure has been requested by the
appellant through his RTI-application dated 08.04.2008.
Decision:
Considering all aspects of the matter, it is directed that the appeal for the
limited purpose of item no.1 of the RTI-query of the appellant be remitted back
to the Appellate Authority, SEBI with a direction to decide de-novo this item of
the RTI-request of the appellant within 4 weeks of the receipt of this order after
giving an opportunity to the third-parties ⎯ the NSE as well as other parties,
whose names can be ascertained from the NSE ⎯ to put-forth their submission
regarding the disclosure of the requested information. Appellate Authority may
also give a hearing to the appellant in this matter.
Item No.2:
According to the appellant, information corresponding to this item has
already been provided to him. Hence, no need for further disclosure of
information.
Item No.3 (all sub-items):
Appellant has stated that he finds contradictions in the replies he has
received for several RTI-applications, from SEBI.
Decision:
It is not possible to consider the alleged contradictions or otherwise in the
replies furnished to him for his several RTI-applications in the course of this
appeal. It is, therefore, held that this matter shall not be progressed any further
within the scope of this appeal.
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Item No.4:
Respondents pointed out that they have been making the offer to the
appellant for inspection of the documents / records held by them (SEBI) during
the hearings of his earlier second-appeals as well as the first-appeals. Case in
point is CIC Appeal No.CIC/AT/A/2006/00575, decided on 21.02.2007, in which
it was clearly recorded that the respondents (SEBI) offered the present appellant
to inspect the files and should he wish to carry out the inspection, he should
approach the respondents within 1 week of the receipt of that order. Similarly, in
the first appellate order dated 04.07.2008, appellant was informed that “SEBI is
still willing to give an opportunity to the appellant to inspect all available files in
the matter.”
It was the contention of the respondents, therefore, that their offer to the
appellant to inspect the files and documents was an open-ended one, which was
reiterated by them during the course of hearings of the appellant’s petitions.
Respondents also pointed out that the appellant was scheduled to inspect the files
and documents held by them, on 17.02.2009 in another RTI-proceeding before
the SEBI.
Decision:
Since the appellant is scheduled to inspect the files and the records on
17.02.2009, it is directed that the CPIO, SEBI shall arrange for the appellant to
inspect the files and documents pertaining to this item of query as well on the
same day (i.e. 17.02.2009). CPIO shall send an advance communication to the
appellant that the files and documents relating to this item of query would also be
allowed to be inspected by him, along with the other requested documents in
another RTI-proceeding.
Should the appellant fail to inspect the documents and files on 17.02.2009,
no further opportunity shall be extended to him.
Item No.5 (d):
Appellant has pleaded for the disclosure of item 5(d) in his second-appeal
before the Commission.
In this regard, the respondents informed that the information in the above
query did not exist and as such, no obligation could be cast on them to disclose it
to the appellant.
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Decision:
As this information is said to be non-existent, no obligation for its
disclosure can be placed on the respondents.
Item No.6(a) & 6(b):
It would appear from these queries that the appellant is attempting to
engage the respondents as well as the third-party, the NSE in a dialogue about
the range of their respective powers and the basis of imposing fines and so on.
He is not entitled to receive this as information as it goes beyond the scope of
Section 2(f) of the RTI Act.
Decision:
The reply furnished to him by the respondents that they were not obliged
to provide this information and, that he can access the details about the rules
regarding imposition of fines, etc. in the rules and bye-laws of the NSE, is
entirely valid.
The appellant cannot be authorized to use the respondents or the
third-party, NSE, as his consultants in such matters.
There shall be no obligation to disclose the above information.
Item No.6(c) & 6(d):
Appellant’s case is that according to the requisition dated 09.05.2008
received from the CPIO, he deposited Rs.24/- for the disclosure of the complete
report of the investigating authority, which was never provided to him.
Respondents clarified that an amount of Rs.24/- was demanded from the
appellant through CPIO’s communication dated 09.05.2008, not for transmitting
the so-called investigation report, but for certain NSE Circular (12 pages). They
also pointed out that they had asked him to deposit Rs.36/- towards supply of a
copy of the criminal complaint filed before the ACCMM, Delhi.
Never was SEBI committed to provide to him the Investigation Report,
which ⎯ they had already intimated to him ⎯ did not even exist.
Decision:
Commission’s decision as regards item 5(d) above will apply here. The
appellant’s complaint is without basis.
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Item No.7(a) to 7(d):
Appellant has stated that the replies furnished by the CPIO and the AA
were misleading. He wishes to have specific replies regarding disposal of each
of the petitions and e-mails, details of which were enclosed to his RTI-petition
dated 08.04.2008.
Respondents pointed out that they were in a position to allow the appellant
inspection of the files in respect of the applications and the e-mails appellant had
directed at SEBI. They further stated that inspection of these files shall also be
allowed to the appellant on the already scheduled date of inspection by the
appellant, i.e. 17.02.2009. These files will have the materials on how his several
petitions and e-mails were dealt-with⎯in case they were received and processed
by SEBI.
Decision:
It is directed that this information may be disclosed to the appellant
through inspection of files on 17.02.2009.
In respect of the applications and the e-mails directed by the appellant to
NSE, it is directed that the CPIO, SEBI shall transmit this part of the request
within 1 week of the receipt of this order, to the NSE for their response.
Item No.8:
Respondents stated that all this information which the appellant has
sought is contained in the files / documents, which he is scheduled to inspect on
17.02.2009. He shall be able to see these documents and their disposal by SEBI
for himself and take the information as it is contained in the files.
Decision:
It is directed that this information may be disclosed to the appellant
through inspection of files on 17.02.2009.
Item No.9(a):
CPIO replied that according to the replies received from the NSE, the
arbitration proceeding was a quasi-judicial proceeding and there was no scope
for NSE to interfere in the proceeding. NSE was not obliged to answer to the
appellant on behalf of the arbitrator, or to process such complaints against the
arbitrator.
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Decision:
I see no infirmity in the communication furnished to the appellant by the
NSE. They are absolutely right in holding that they cannot be obligated to reply
to the appellant on behalf of a quasi-judicial body ⎯ the Arbitrator.
Item No.9(b) and 9(c):
NSE has very clearly replied that no such directions were given by the
Arbitrators for production of Mr.Anil Thukral as witness. They have denied the
surmises / assumptions made by the appellant.
Decision:
The reply of the NSE notwithstanding, it must be stated that appellant was
not entitled to receive the information regarding an extant quasi-judicial
arbitration proceeding regarding who is being examined as witness and, who is
not.
There shall be no disclosure obligation for these items of query.
Item 9(d):
Decision:
Appellant is not entitled to receive clarifications regarding arbitration
proceedings as information under the RTI Act.
Appellant is trying to repeatedly engage the respondents regarding the
conduct of an arbitration proceeding, which was acknowledgedly quasi-judicial
in nature and for which the respondents or the NSE are not obliged to furnish any
information to the appellant.
Item No.10:
Decision:
Respondents are not obliged to inform the appellant as to the basis on
which they propose to take a criminal or legal action against him. These matters
can be resolved only in a court of law and not through RTI Act. As such, there
shall be no disclosure obligation as regards this query.
4. Matter disposed of with the above directions.
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5. Copy of this direction be sent to the parties.
( A.N. TIWARI )
INFORMATION COMMISSIONER
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