Central Information Commission Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi website-cic.gov.

Transcription

1 Central Information Commission Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi website-cic.gov.in Case Nos. Appellant : Smt. Nirmal Garg, Delhi. Public Authority : Securities & Exchange Board of India, Mumbai. Date of Hearing : 12 h February, Date of Decision : 02 nd May, 2016 Present Appellant : Not present Respondent : Shri Aman Jain, Asstt. General Manager at CIC. Case No. CIC/MP/A/2015/001439: ORDER 1. The appellant, Smt. Nirmal Garg, submitted RTI application dated before the Central Information Officer (CPIO, Securities & Exchange Board of India (SEBI), Mumbai stating that M/s Reliance Securities Ltd., Mumbai had appointed M/s. Milestone Gains, Delhi as its sub broker and sought the date of registration of M/s. Reliance Securities Ltd. and M/s. Milestone Gains as a broker and sub-broker, with copies of registration certificates giving the terms and conditions; details of terms and condition of the F&O and derivatives segments in securities conducted by the sub broker M/s. Milestone Gains; the date of start and closure of business by the sub broker and copy of application given by M/s. Milestone Gains the sub broker; whether Ms. Mona Bhutani Prop. of M/s. 1

2 Milestone Gains had disclosed that she was working as full time teacher with the reputed DAV Public School, Pushpanjali, Pitampura, Delhi in SEBI/NSE registration form; Shri Pramod Kumar husband of Ms. Mona Bhutani was the director of M/s. Milestone Portfolio Consultants whether this was registered with NSE Ltd/SEBI in any capacity; details of the trained staff and the facilities in terms of office address as reported to the regulatory authorities, the office space, infrastructural equipments, details of inspections carried by NSE Ltd and SEBI of this sub broker; details of dealers of this sub broker; whether the sub broker informed the regulatory authorities about the shifting of its official address; details of circulars/instructions along with copies thereof issued by the regulatory authorities SEBI/NSE from time to time; details of circulars giving number and date along with copy thereof by which the contents of circular No. SMD-1/23341 dated on the issue of regulation between the clients and members issued by SEBI were suppressed and in what respects etc. through nine points The CPIO vide letter dated intimated the appellant that registration details of M/s. Reliance Securities Ltd and M/s. Milestone Gains sub broker were available on the SEBI s website; the information with regard to date of start of broking business was not available with SEBI; the certificate of registration provided to the stock brokers is displayed by the stock brokers in their office premises; the sub broker was not authorized to do the F&O and derivative trades in securities. As per records, the sub broker was registered with SEBI; and that SEBI had not conducted any inspection of the said sub-broker. The SEBI had launched a new web based centralized grievance redress system 2

3 called SEBI Complaint Redressal System (SCORES). In case the appellant had any grievance, she could lodge her complaint, if any at SCORES would enable investors to lodge and follow up their complaints and track the status of redressal of such complaints online from the said website from anywhere. Inspection had been carried by NSE and was not available with SEBI. On points iv, v, vii, viii and ix the CPIO informed the appellant that the information sought did not fall within the definition of information as per section 2(f) of the RTI Act on point vi (a and c) the information sought was not available with SEBI. Dissatisfied with the response of the CPIO, the appellant filed an appeal before the first appellate authority (FAA) on The FAA vide order dated passed a detailed order and concurred with the decision of the CPIO Thereafter, dissatisfied with the decision of the respondents, the appellant filed the instant appeal before the Commission on stating that she is an investor with the said broker and an arbitration matter is pending before the NSE, New Delhi. The desired information is very much relevant for deciding the issues arising between the said broker. Case No. : 2. The appellant, Smt. Nirmal Garg, submitted RTI application dated before the Central Information Officer (CPIO, Securities & Exchange Board of India (SEBI), Mumbai stating that M/s. Indiabulls Securities Ltd. with registered office at New Delhi was reported to be a recognized stock broker and sought the details of registration as a broker of M/s. Indiabulls Securities Ltd. with copies of registration certificates along with copies of application forms submitted 3

4 by the broker giving terms and conditions as per the certificate of registration; the broker was running a branch for providing broking cash and derivative trades and had accordingly installed trading terminals at main market, Green Park, New Delhi and the broker had since closed its business; he wanted the details of the trained staff provided by the broker to render competent services at its branch for the years and ; details of inspections carried by NSE Ltd. and SEBI of the broker; details of dealers of the broker who were NCFM certified, dates of opening and closing the branch; copies of the details of the circulars/notifications/ orders/instructions along with copies thereof issued by the regulatory authorities SEBI/NSE from time to time; copies of details of circulars/notifications etc. giving number and date along with copies thereof issued by the SEBI by which the contents of circular no. SMD-1/23341 dated on the issue of regulation between the clients and members; copies of orders/notifications in terms of which the brokers have been authorized to issue contract notes; details of circulars/notifications issued by the regulatory authorities SEBI/NSE in terms of which brokers have been authorized to issue statutory documents; copies of circulars/notifications along with copies thereof in terms of which the brokers have been authorized to issue contract notes and daily margin statements, statutory documents; etc. through 11 points The CPIO vide letter dated informed the appellant that registration details of brokers were available on the SEBI s website; the documents submitted by the broker while seeking registration were held by SEBI 4

5 in fiduciary capacity and could not be provided u/s 8(1)(d) and (e) of the RTI Act on point 1 of the RTI application; no information had been sought on point (ii); on point (iii) (a, c and d) the information sought was not available with SEBI; and that the information sought on (iii a, c, d) did not fall with the definition of information as per section 2(f) of the RTI Act; and informed the appellant that SEBI Acts, Rules, Regulations and Circulars etc. issued by SEBI were available on the SEBI website i.e. under the head Legal Framework (on points 3 to 10); No format of Form B as sought by the appellant at point 11 had been prescribed by SEBI. Dissatisfied with the response of the CPIO, the appellant filed an appeal before the first appellate authority (FAA) on The FAA vide order dated passed a detailed order and concurred with the decision of the CPIO Thereafter, dissatisfied with the decision of the respondents, the appellant filed the instant appeal before the Commission on with a request to direct the respondents to provide the desired information along with copies of the relevant documents in the interest of justice. Case No. CIC/MP/A/2015/001440: 3. The appellant, Smt. Nirmal Garg, submitted RTI application dated before the Central Information Officer (CPIO, Securities & Exchange Board of India (SEBI), Mumbai stating that M/s. Religare Securities Ltd., with registered office at Nehru Place, New Delhi is reported to be a recognized stock broker and sought the details of registration as a broker of M/s. Religare Securities Ltd. with copies of registration certificates along with copies of 5

6 application forms submitted by the broker giving terms and conditions as per the certificate of registration; the broker was running a branch for providing broking cash and derivative trades and has accordingly installed trading terminals at at Netaji Subhash Place, Pitampura, Delhi and the broker has since closed its business of working as a broker at that branch; details of the trained staff provided by the broker to the clients to render competent services at its branch; details of facilities and efficient services in terms of space, infrastructural equipments, trained skilled manpower provided by the broker to the clients to render competent services at its branch address Aggarwal Cyber Plaza, Netaji Subhash Place, Pitampura during the financial years 2012 and 2013; details of the inspections carried by NSE Ltd and SEBI of the broker; details of dealers of the broker who were NCFM certified; whether the branch was opened and closed and whether the permission of the regulatory authorities SEBI/NSE was obtained by the broker in this regard; copies of the details of the circulars/notifications/ orders/instructions along with copies thereof issued by the regulatory authorities SEBI/NSE from time to time; copies of details of circulars/notifications etc. giving number and date along with copies thereof issued by the SEBI by which the contents of circular no. SMD-1/23341 dated on the issue of regulation between the clients and members were responded; copies of orders/notifications in terms of which the brokers have been authorized to issue contract notes; details of circulars/notifications issued by the regulatory authorities SEBI/NSE in terms of which brokers have been authorized to issue statutory documents; copies of circulars/notifications along with copies thereof in 6

7 terms of which the brokers have been authorized to issue statutory documents such as Member Client Agreement (MCA)/Client Registration, Forms (CRF), KYC documents, combined risk disclosure document (RDD), statutory documents; copies of circulars/notifications issued by SEBI/NSE whereby the brokers have been authorized to take oral and verbal orders from the clients for entry of nifty future index derivative trades and the F&O trades in the account of the clients; copy of rules framed by the regulatory SEBI/NSE where it was provided that the broker will not accept third party cheques for payments by the clients in the account of the client and that the money deposited by a client will not be used by the broker for its own purposes and for any other client and for any other purposes other than provided in the rules; copy of form B to be given by the broker to the client for the contract notes issued by it while acting as principal etc. through 11 points The CPIO vide letter dated informed the appellant that registration details were available on the SEBI s website; The documents submitted by the broker while seeking registration were held by SEBI in fiduciary capacity and could not be provided u/s 8(1)(d) and (e) of the RTI Act on point 1 of the RTI application; on point (ii) no information had been sought; on point (iii) (a, c and d) the information sought was not available with SEBI; on point (iii) (b) the information sought did not fall with the definition of information as per section 2(f) of the RTI Act; on points 3 to 10 the appellant was informed that SEBI Acts, Rules, Regulations and Circulars etc. issued by SEBI were available on the SEBI website i.e. under the head Legal Framework; on point 11 7

8 No format of Form B had been prescribed by SEBI. Dissatisfied with the response of the CPIO, the appellant filed an appeal before the first appellate authority (FAA) on The FAA vide order dated passed a detailed order and concurred with the decision of the CPIO Thereafter, dissatisfied with the decision of the respondents, the appellant filed the instant appeal before the Commission on with a request to direct the respondents to provide the desired information along with copies of the relevant documents in the interest of justice. 4. All the three cases were heard by the Commission consecutively as the issues raised by the appellant were identical/similar. The appellant was not present in spite of a notice of hearing having been sent to her. Shri Ram Kawar Garg was present on behalf of the appellant, but he did not produce letter of authorization from the appellant. The appellant, in her appeals filed before the Commission, stated that she was an investor with the broker and an arbitration matter was pending before the National Stock Exchange Ltd., New Delhi (NSE), which works under the aegis of the market regulator SEBI and the desired information is very much relevant for deciding the issues arising between the applicant and the broker. The SEBI is not expected to deny the most relevant information and they should part with the information easily available with it. The SEBI should not direct the applicant to look for the desired inform from the website of SEBI and expect the applicant to search for specific information out of plethora of information from their website. The SEBI is a public authority and a market regulator. It is a legal ombudsman over the working of the brokers and 8

9 the market intermediaries in the country. The appellant requested the Commission to direct the respondent authority to provide the desired information along with copies of the relevant documents. 5. The Commission directed the respondents to send their submissions latest by the first week of March, The SEBI vide letter dated sent their submissions. The respondents stated that all the circulars/ guidelines/ directions issued by SEBI were available on the SEBI website and the link for the same was provided to the appellant. However, in case the appellant required any clarification/advice with regard to the specific provisions of any of the circular(s) and their implementation, the same would not fall within the definition of information as defined u/s 2(f) of the RTI Act, For the information pertaining to NSE and the appellant s contention that SEBI could access information from NSE with respect to his queries, the respondents relied upon the judgement of Hon ble Supreme Court in the matter of CBSE Vs. Aditya Bandopadhyaya & Ors wherein it was held if a public authority has any information in the form of data or analyzed data, or abstract, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non available information and then furnish it to an applicant. 5.1 The respondents further stated that the Commission s order dated 9

10 in the matter of Shri Bhoj Raj Sahu Vs. SEBI [case No. CIC/AT/A/2008/01083] holding It is not before the Court nor is it covered by its stay that the information in the hands of BSE --- regardless of the determination of it being a public authority --- can still be accessed by SEBI under SEBI law through Section 2(f) of the RTI Act. Even if, for the sake of argument, the Court s verdict goes in favour of BSE, yet BSE will still be obliged to provide this information under Section 2(f) to the applicant through SEBI. The High Court stay cannot be said to be operative on Section 2(f) of the RTI Act, because that is not what was the burden of the CIC decision dated , to which the stay applies. I, therefore, do not accept the third-party-s argument that BSE as a private body should not be forced to part with information under section 2(f) of the RTI Act, because its status as pubic authority is before the High Court and the order of the Commission declaring BSE as a public authority is under stay. These two are mutually exclusive, had been stayed by Hon ble Bombay High Court vide order dated and still in force, on the writ petitions filed by Bombay Stock Exchange Vs. CIC [WP(L) No of 2009 and SEBI Vs. Bhoj Raj Sahu & Ors [WP (L) No 1385 & On the basis of the submissions during the hearing and the written submissions received from SEBI, the Commission observed that the respondent authority has provided disclosable information as available with SEBI and also provided the website and the link of SEBI for accessing the circulars/instructions/ notifications/orders and the same were available in public domain. The respondent authority was not required to provide copies of these circulars/instructions etc, which were available in public domain, as held by the Commission in the matter of K. Lall vs. M.K. Bagri (File no. 10

11 CIC/AT/A/2007/00112) that " It shall be interesting to examine this proposition. Section 2(j) of the RTI Act speaks of 'the right to information accessible under this Act which is held by or under the control of any public authority...' The use of the words 'accessible under this Act'; 'held by' and 'under the control of' are crucial in this regard. The inference from the text of this subsection and, especially the three expressions quoted above, is that an information to which a citizen will have a right should be shown to be a) an information which is accessible under the RTI Act and b) that is held or is under the control of a certain public authority. This should mean that unless information is exclusively held and controlled by a public authority, that information cannot be said to be information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely, or on payment of a predetermined price, that information cannot be said to be 'held' or 'under the control of' the public authority and, thus would cease to be an information accessible under the RTI Act." 7. As regards the information pertaining to the National Stock Exchange (NSE) as sought by the appellant through her RTI applications dated 8.12,2014 and in respect of M/s. Milestone Gains sub broker of Reliance Securities Ltd, Indiabulls Securities Ltd and M/s. Religare Securities Ltd. no intervention is called for on the part of the Commission, in view of the stay granted by Hon ble Bombay High Court on the Commission s order dated in the matter of Shri Bhoj Raj Sahu Vs. SEBI, on the writ petition filed by the Bombay Stock Exchange & SEBI against the decision of the Commission. The aforementioned three appeals are disposed of. Authenticated true copy: (Manjula Prasher) Information Commissioner Deputy Registrar 11

12 Address of the parties: Smt. Nirmal Garg, GP-103, Maurya Enclave, Pitampura, Delhi The Central Public Information Officer, Securities & Exchange Board of India, SEBI Bhawan, Plot No. C-4, G-Block, Bandra Kurla Complex, Bandra (E), Mumbai The First Appellate Authority, Securities & Exchange Board of India, SEBI Bhawan, Plot No. C-4, G-Block, Bandra Kurla Complex, Bandra (E), Mumbai