Appeal No.CIC/SS/A/2011/000691
CENTRAL INFORMATION COMMISSION
"B"- Wing, 2nd Floor,
August Kranti Bhavan, Bhikaji Cama Place,
New Delhi - 110066
Appeal No.CIC/SS/A/2011/000691
PARTIES TO THE CASE:
Appellant : Shri Prabhakar Narkar
Respondent : Forward Markets Commission, Ministry of Consumer
Affairs, Food and Public Distribution, Department of
Consumer Affairs, Mumbai
Date of Hearing : 27/06/2011
BACKGROUND
OF THE CASE:
1. The present matter was scheduled for hearing before the Commission on
27/06/2011 at 1515 hours. The Appellant, Shri Prabhakar Narkar was neither
present during the hearing nor did anyone appear on his behalf. The
Respondent was represented through Shri Suresh R. Nair, Assistant Director
(LAN) who had appeared for the CPIO and the FAA of the Respondent.
2. The Appellant vide his RTI Application dated 16/09/2010 had sought the
following information under 13 Questions regarding certain details about
commodity exchanges in India for the period 2009-10:
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“i. Number of registered investors as on August 31, 2010;
ii. How many of the above are individual investors?
iii. How many of the registered investors are from Metro cities,
how many are from Tier-II cities and how many are from Tier-
III towns?
iv. How many investors traded during the financial year 2009-
10?
v. What is the contribution of brokerage firms’ own trading to
the total trading in Gold, Crude and other commodities in the
financial year 2009-10?
vi. What is the contribution of individual investors to the total
trading in Gold, Crude and other commodities in the financial
year 2009-10?
vii. What portion of trading came from terminals / investors
located in Metro cities in financial year 2009-10?
viii. What portion of trading came from terminals / investors
located in Tier-II cities in financial year 2009-10?
ix. What portion of trading came from terminals / investors
located in Tier-III cities in financial year 2009-10?
x. What is contribution of top 10 brokers to the total trading
activity of each exchange during the financial year 2009-10?
xi. What is contribution of top 10 brokerage proprietary
trading to the total trading activity of each exchange during the
financial year 2009-10?
xii. How many entities contributed to 50%, 60%, 70%, 80%
and 90% of the total trading turnover of each exchange in
Gold, Crude and other commodities in the financial year 2009-
10?
xiii. How many of the above entities are proprietary trading
accounts of brokerage.”
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3. The CPIO of the Respondent, Ms. Usha Suresh vide her Order dated
07/12/2010 had held that the requested information was not available with
the Respondent Commission and the same was sought from the Exchanges.
The CPIO in her Order had enclosed the reply submitted to it by the Multi
Commodity Exchange of India Limited (MCX).
4. As per the CPIO’s Order, the MCX had relied on various decisions of this
Commission to press that it is not a Public Authority under the RTI Act and
that in any case, the information sought by the Appellant was exempted
from disclosure under Section 8 (1) (d), (e) & (j) of the RTI Act.
5. The Order of the CPIO mentioned the MCX stating that the information
sought by the Appellant is not ‘Information’ under the RTI Act being in the
nature of queries / opinions / views and also that the Respondent
Commission is not obliged to collect such information as is being sought
under the RTI Application. Thus, in consideration of the opinion tendered by
the MCX, the CPIO had refused the information under Section 8 (1) (d) &
(j) of the RTI Act.
6. The Appellant preferred first appeal under the RTI Act to the FAA of the
Respondent Commission. The Appellant had contended that the information
sought by him is market level information and not of any single Trader /
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Investor and that Exchanges should have published such information as part
of market, quality information on their own. Appellant had submitted further
that the Respondent Commission should ensure that information on market
quality is made available to the investing public to increase transparency in
the commodities markets and that the information regarding quantum of
trading activity done on proprietary account etc. are crucial for investors to
decide whether to enter a market. The Appellant further submitted before the
FAA that number of investors participating in commodities markets etc
cannot be treated as commercially sensitive information.
7. Shri D.S. Kolamkar, FAA & Member, Forward Markets Commission, vide
his Order dated 17/01/2011 had held that it would not be right for the
Respondent Commission to compel any entity to part with information as
sought in the present case, merely because the said entity is being regulated
by the Respondent Commission under the Forward Contracts (Regulation)
Act, 1952 (“FCRA, 1952”). The FAA stated that the replies received from
the concerned divisions of the Respondent indicated that the information
sought by the Appellant was not available in Respondent’s office and that
when one of the Divisions sought to collect the information from the
Exchange under the said Division, then the said Commodity Exchange (i.e.
the MCX) pointed out that it was not Public Authority in light of the
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decision of this Commission in case of ‘Indubala Agarwal vs. National
Commodity & Derivatives Exchange Ltd’ (File
No.CIC/LS/C/2009/000575). With such observations, the FAA had
dismissed the first appeal of the Appellant herein.
8. The Appellant, aggrieved henceforth, has preferred second appeal under the
RTI Act before this Commission.
DECISION NOTICE:
9. The Commission has carefully perused the material placed on record, the
decisions relied upon by the parties and has considered the submissions
made by the Respondent who was present during the scheduled hearing.
10. It appears to this Commission that while passing its Order, the FAA of the
Respondent has not dealt specifically with each of the 13 Questions raised
by the Appellant in his RTI Application (supra). For instance, the Order of
the FAA does not provide a specific reply to number of registered Investors,
number of individual investors, their location specific details, trading details
of investors for financial year 2009-10, respective contribution of brokerage
firms or top 10 brokers or top 10 brokerage proprietary or individual
investors to the total trading in Gold, Crude and other commodities in
financial year 2009-10, location specific contributions to the total trading in
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Gold, Crude and other commodities in financial year 2009-10, number of
entities which contributed to certain percentage of total trading turnover of
each Exchange in Gold, Crude and other commodities in financial year
2009-10 inter alia. Moreover, the references made by the Appellant in his
first appeal to expressions such as “information on market quality” and “the
information on how much of the trading activity was on proprietary account
etc” do not seem to have been specifically dealt with by the FAA.
11. It needs to be noted that the Annual Report of the Respondent Commission
for the year 2009-10 (https://www.fmc.gov.in/htmldocs/reports/Annual
%20Reports%20of%20FMC.htm#) is available on their official website.
Furthermore, the Respondent Commission fortnightly disseminates data on
its website
(https://www.fmc.gov.in/htmldocs/mreview/Fortnightly/FortnightlymarketRe
viewList.htm). A Copy of such data for the period of 01/07/2011 to
15/07/2011 has been annexed to this Order as ‘Annexure-A’.
12. Careful perusal of the sample data available on the Respondent
Commission’s website (marked as “Annexure-A”) shows that the details of
Trading Volume (Near Month Contracts and All Contracts) and Value of
Trade (Near Month Contracts and All Contracts) along with Total Volume
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and Total Value of trade are given in the fortnightly report for certain
Exchanges and the various commodity traded by them.
13. The Commission is of the opinion that the Question Nos. (xii) and (xiii) of
the Appellant’s RTI Application are raising queries in the nature of “How
Many”, therefore it is the number or the quantum of certain entities which
the Appellant is seeking rather than the personal details of each of those
entities. Thus, it will be wrong to say that such information as sought under
Question Nos. (xii) and (xiii) will attract Section 8 (1) (j) of the RTI Act.
Hence, the Order of the CPIO needs to be reconsidered in this regard.
14. Thus, in light of the above observations, the Commission is of the opinion
that the present appeal needs to be reheard and re-adjudicated afresh by the
FAA of the Respondent in light of the statistical data mentioned above. The
specific queries of the Appellant raised in his RTI Application can be best
dealt with by the FAA of the Respondent in light of the reports and data
published by the Respondent Commission regularly on its official website
and a sample of which has been marked as Annexure-A to this Order.
15. Therefore, the Commission hereby directs the FAA of the Respondent to
rehear the appeal of the Appellant and decide the matter accordingly. If the
Appellant is still not satisfied with the Order of the FAA, he may approach
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this Commission in second appeal under the RTI Act. With these
observations and findings, the present Appeal is disposed of.
Sushma Singh
Information Commissioner
Eleventh day of August, 2011
Authenticated True Copies
K.K. Sharma
OSD & Deputy Registrar
Name & Address of Parties
Sh. Prabhakar Narkar,
19A/402, Akshar Patrakar Society,
Magathanne, Borivali (East), Mumbai 66
The CPIO & Director,
Forward Markets Commission,
Ministry of Consumer Affairs, Food & Public, Distribution,
Department of Consumer Affairs, “EVEREST” 3rd Floor,
100, Marine Drive, Mumbai – 400 002
The First Appellate Authority,
Forward Markets Commission,
Ministry of Consumer Affairs, Food & Public, Distribution,
Department of Consumer Affairs, “EVEREST” 3rd Floor,
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Appeal No.CIC/SS/A/2011/000691
100, Marine Drive, Mumbai – 400 002
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