Central Information Commission
Dr. Subramanian Swamy vs Securities And Exchange Board Of India ... on 26 October, 2021
Author: Neeraj Kumar Gupta
Bench: Neeraj Kumar Gupta
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग ,मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीयअपीलसं या/Second Appeal No. CIC/SEBIE/A/2020/108638
Dr. Subramanian Swamy ... अपीलकता /Appellant
VERSUS
बनाम
CPIO ... ितवादी/Respondent
Securities and Exchange Board of
India, SEBI Bhawan, Plot No. C-4-
A, G-Block, BandraKurla Complex
Bandra (E), Mumbai-400051
Relevant dates emerging from the appeal:-
RTI : 25-09-2019 FA : 06-01-2020 SA : 02-03-2020
CPIO : 13-12-2019 FAO : 06-02-2020 Hearing: 21-10-2021
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO)Securities and Exchange Board of India, SEBI Bhawan, Mumbai.The appellant seeking information on eleven points including inter-aliais as under:-
1. "Total number of Exclusively Listed Companies (ELCs) in terms of SEBI Circular MRD/DoP/SE/Cir-36/2008 dated December 29, 2008 and related Circulars (collectively referred as Exit Circulars) which are listed/registered on regional stock exchange (s) as on date.
2. Total Number of ELCs which provided exit to shareholders by acquiring listing on nationwide stock exchange(s) as on date." etc.
2. The CPIO vide letter dated 13-12-2019provided point-wise reply to the appellant except point no. 3, claiming that the query sought in the said point is Page 1 of 9 not clear and specific and hence the same cannot be construed as information under section 2(f) of RTI Act, 2005 and information sought at point no. 6 is exempted u/s 8(1)(d), 8(1)(e) & 8(1)(h). Being dissatisfied with the same, the appellant has filed first appeal dated 06-01-2020requested to set aside the CPIO's order and to provide the sought information. The FAA vide order dated 06-02-2020has made observations:- "I remit query number 3 of the application dated 25-09-2019 to the respondent for reconsideration of the request and to send appropriate response to the appellant in terms of RTI Act within 15 working days form the date of receipt of this order." He has filed a second appeal before the Commission on the ground that information sought has not been provided to him and requested to direct the respondent to provide complete and correct information.
Hearing:
3. Adv. Vishesh Kanodia (Representative of the appellant)along with Adv. B Bharanitharan attended the hearing in person. The respondent, Sr. Adv. Mr. Neeraj Malhotra along with Adv. Abhishek Baid, Mr. Rakesh Kumar (DGM) and Mr. Satyansh Maurya (AM)attended the hearing in person. Mr. Santosh Kumar Sharma, CPIO/CGM along with Mrs. Pramila Sridhar and Mr. Binoy Mershier attended the hearing through video conferencing.
4. Both the parties submitted their written submissions and the same has been taken on record.
5. Adv. Vishesh Kanodia submitted that the appellant is aggrieved with the reply provided by the respondent to the information sought at point nos. 5, 7, 10 & 11 of the RTI Application. He further submitted that the reason prescribed by the respondent for not providing relevant information sought in these points is that the SEBI does not maintain such information in the regular course of regulation of the stock market. That the SEBI and the stock exchanges functioning under the directions of the SEBI are responsible for protecting interests of investors and ensuring fair and proper regulation of the stock markets. Therefore, it is the duty of the SEBI to obtain such information maintained by the stock exchanges relating to ELCs, and furnish it to the appellant.In support of his arguments, he has referred one judgment of National Stock Exchange of India Limited v SEBI (2010SCC Online Del 1513) wherein it was held that:-
Page 2 of 9"stock exchanges fulfil the dual eriteria as provided under section 2(h) of the RTI Act to be recognized as a public authority under the Act. The first criteria, is that they are established under a notification by the Central Government passed under Section 4(5)of the Securities Contracts (Regulation) Act 1956, as an authority, body or institution of "self- government. The Second criteria, for such stock exchanges to be held as 'public authority' is that they are under deep and pervasive control of the Government."
6. That Adv. Vishesh Kanodia further raised an issue w.r.t the information sought at point no. 6 of the RTI Application and submitted that the information sought was with respect to the total number of ELCs against which SEBI has initiated investigation. That the names and details, stages of investigation are not asked, hence this information cannot impede the process of investigation. That SEBI's purpose is to uphold public interest and not the interest of individuals. That SEBI is clearly not in any fiduciary relationship with any companies. That SEBI has no legal duty to maximize the benefit of any public sector or private sector companies, and thus there is no relationship of trust between them. That SEBI has a statutory duty to uphold the interest of the public at large, the investors, the country's economy, and the stock market participants. Thus, SEBI ought to act with transparency and not hide information that might embarrass individuals. It is duty bound to comply with the provisions of the RTI Act and disclose the information sought. The scope and ambit of fiduciary relationship has been clearly laid down by the Hon'ble Supreme Court in the case of Reserve Bank of India v Jayantilal N. Mistry l(2016) 3 SCC 5251. It is submitted that pursuant to the law laid down in that case by the Hon'ble Apex court, SEBI would not be entitled to claim the exemption of fiduciary relationship. That he further raised an issue w.r.t the information sought at point nos. 8 & 9 of the RTI Application and submitted that the CPIO is bound to provide the information sought in the said points as SEBI has already provided avast majority of information under query 8, which has a close nexus to the information sought under query 9, there is absolutely no call for refusing such information as data under query 9 is merely a sub-set of the data sought under query 8. It is submitted that the CPIO should have shared such information without contest in fulfillment of his duties.
7. Sr. Adv. Mr. Neeraj Malhotra in response to the above contentions of the appellant w.r.t the information sought at point nos. 5 & 7 of the RTI Application Page 3 of 9 submitted that a listed entity submits its shareholding pattern to the recognized stock exchange(s) on quarterly basis in terms of Regulation 31 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. The shareholding pattern contains information in respect of shareholding of promoters. He further submitted that in terms of SEBI Circulars dated 10.10.2017, the respective stock exchanges can initiate action (s) as provided in the Circular against a listed entity who is not compliant with MPS norms. That the records of listed companies which have not complied with MPS norms is not maintained by SEBI in normal course of regulation of securities market and the details of any action taken by SEBI against any entities are made available on SEBI website and an appropriate weblink has already been provided to the appellant. That w.r.t the information sought at point nos. 10 & 11 of the RTI Application, the respondent has informed the appellant that in terms of SEBI Circular dated 22.05.2014, the requirement of MPS norms is not applicable to ELCs who opt to get voluntarily delisted. That the record related to the number and name of ELCs, which have not complied with MPS norms but permitted to exit is not maintained by SEBI in normal course of regulation of securities market. In support of their arguments, Ld. Sr. Adv. Neeraj Malhotra referred one judgment of CIC in Shri NarotamDassGoel vs. CPIO, SEBI; 2012 SCC online CIC 10271/ (2012) CIC 11327wherein it was held as under:-
"In other words, the SEBI does not have any unfettered power to call for any information from the stock exchanges just because any citizen has requested for such information under the Right to Information (RTI) Act. In this case the information sought, in our opinion, does not fall in the category specified in Subsection 2(h)(i) of the SEBI Act and, therefore, could not have been accessed by the CPIO from the National Stock Exchange. Besides, as mentioned by the CPIO in his order, the Bombay High Court has already stayed an order passed by this Commission in which the CPIO of the SEBI had been directed to access information from the stock exchanges for providing to the information seekers. In the light of the above, we are of the opinion that the CPIO was right in not accessing the desired information from the National Stock Exchange for the purpose of providing the same to the Appellant." That hence the information which is not being maintained by the public authority, cannot be provided to the appellant w.r.t the points raised by the appellant.Page 4 of 9
8. That Sr. Adv. Mr. Neeraj Malhotra in response to the contentions of the appellant w.r.t the information sought at point no. 6 of the RTI Application, submitted that the subject matter of the application is under examination and has not reached a logical conclusion. In view of the same, disclosure of details related to the matter may impede the process of investigation. That the information sought is available to SEBI in fiduciary capacity and includes commercial information, the disclosure of which could harm the competitive position of the entities. Hence the information sought is exempted under section 8 (1) (d), 8 (1) (e) & 8 (1) (h) of the RTI Act, 2005.
9. That in response to the query raised by the appellant at point no. 8 of the RTI Application, the respondent has submitted that even though the information sought requires the public authority to collect the relevant information from different departments and compile it and provide the same to the appellant which would divert the resources of the public authority and hence not admissible under the provisions of the RTI Act as held in Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors, SLP(C) NO. 7526/2009, still the respondent has compiled such information and provided the same to the appellant. That the information sought at point no. 9 of the RTI Application, same requires examination/ interpretation of the relevant information and then provide the same to the appellant which is beyond the scope of section 2 (f) of the RTI Act. Therefore the same could not be provided to the appellant.
Decision:
10. The Commission, after hearing the submissions of both the parties and after perusal of records, observes that the appellant has sought information regarding the number of Exclusively Listed Companies (ELCs) in terms of SEBI Circular dated December 29, 2008 and related Circulars (collectively referred as Exit Circulars) which are listed/registered on regional stock exchange (s) as on date and other related queries. That the representative of the appellant submitted that the appellant is aggrieved with the reply provided by the respondent w.r.t the information sought at point nos. 5, 7 , 10 & 11 of the RTI Application, wherein the appellant has sought total number of ELCs which have not complied with the provisions of Minimum Public Shareholding Norms ("MPS") as on date, total number of ELCs against which the SEBI or/ and stock Page 5 of 9 exchange(s) has initiated any action for non-compliance with the MPS norms and number and name of ELCs which have not complied with MPS norms but still permitted to exit and number and name of ELCs which have been shifted to Dissemination Board and actions taken by the SEBI against these ELCs for violation of MPS Norms and contended that since the stock exchanges are functioning under the directions of the SEBI, hence the SEBI is responsibleto obtain such information maintained by the stock exchanges relating to ELCs and provide to the appellant.
11. That the respondent in response to the said contentions has submitted the recognized stock exchange(s) have been delegated powers and get on quarterly basis in terms of Regulation 31 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 and in terms of SEBI Circulars dated 10.10.2017. The respective stock exchanges can initiate action (s) as provided in the Circular against a listed entity not complying with MPS norms and information relating to such matters are being displayed by stock exchange (s) on their website. In reply, SEBI has provided specific web link where such information can be accessed by the appellant. Respondent has referred one judgment of CIC in Shri Narotam Dass Goel vs. CPIO, SEBI; 2012 SCC online CIC 10271/ (2012) CIC 11327in support of his arguments which is relevant here. The representative of the appellant further raised contentions w.r.t the reply provided to the information sought at point no. 6 of the RTI Application, wherein appellant has sought total number of ELCs which are under investigation for not complying with the provisions of Minimum Public Shareholding Norms ("MPS") as on date. The Commission observes that the contention of the respondent that the information sought in the said point is available to SEBI in fiduciary capacity and includes commercial information, the disclosure of which would harm the competitive position of the entities;
hence the same cannot be provided to the appellant is not relevant as only number of such cases is being sought. The Commission is of the opinion that since the appellant has only sought total number of ELCs, therefore the same can be provided to the appellant as disclosing the number of cases will not affect the commercial interest of third party which is not being identified in the reply.
12. The Commission observes that the contention of the appellant w.r.t the reply provided to the information sought at point nos. 8 & 9 of the RTI Application that since SEBI has already provided avast majority of information Page 6 of 9 sought at point no. 8, which has a close nexus to the information sought under point no. 9, therefore the information sought at point no. 9 could have not been denied does not have merit. That the respondent has already provided the relevant information sought at point no. 8 of the RTI Application, even though such information required collating and compiling, disproportionately diverting the resources of the respondent organization and could have been denied attracting section 7 (9) of the RTI Act. In this regard, the respondent itself referred the decision of the Hon'ble Supreme Court of India in Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors, SLP(C) NO. 7526/2009 wherein it was held as under:
"Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of Page 3 of 3 discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
13. In view of the above, the Commission conquers that collation and compilation is not required under the provisions of the RTI Act. Nonetheless, the respondent has already compiled the relevant information and provided to the appellant, hence the same is taken on record. Moreover, the information sought at point no. 9 of the RTI Application cannot be provided to the appellant as it amounts to interpretation of the information and requires the respondent to examine, interpret the relevant records, make an opinion and provide the same to the appellant, which is beyond the scope of section 2 (f) of the RTI Act. It has been observed that the CPIO is not supposed to make interprtetations under the Page 7 of 9 ambit of the RTI Act. The CPIO cannot create information in the manner as sought by the appellant. The CPIO is only a communicator of information based on the records held in the office and hence, he cannot expect to do research work to deduce anything from the material therein and then supply it to him.
14. In this regard, the Commission referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35 "A Public Authority is also not required to furnish information which require drawing of inferences and/or making assumptions. It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant.
The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
15. In view of the light of the above observations and matrix, the Commission deems it fit to direct the respondent to provide a revised reply to the appellant w.r.t the information sought at point no. 6 of the RTI Application within 30 days from the date of receipt of this order. Further, the reply provided by the respondent on other point s of the RTI Application is in order and same is being upheld by the Commission.
16. With the above observations, the appeal is disposed of.
Page 8 of 917. Copy of the decision be provided free of cost to the parties.
नीरज कु मार गु ा)
Neeraj Kumar Gupta (नीरज ा
सूचना आयु )
Information Commissioner (सू
दनांक / Date : 21-10-2021
Authenticated true copy
(अिभ मािणत स#यािपत ित)
S. C. Sharma (एस. सी. शमा ),
Dy. Registrar (उप-पंजीयक),
(011-26105682)
Addresses of the parties:
1. CPIO
Securities and Exchange Board of India,
SEBI Bhawan, Plot No. C-4-A, G-Block,
BandraKurla Complex
Bandra (E), Mumbai-400051
2. Dr. Subramanian Swamy
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