Under the RTI Act, the citizen…is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO.: Appellate Authority, SEBI.
The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of P L N Rao v CPIO, SEBI, Mumbai (Appeal No. 4284 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act. The appellant, Mr P L N Rao had filed an application via RTI MIS Portal on the 9th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 6th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 6th of May, 2021 on his application, the appellate decided to file an appeal on the 27th of May, 2021, which the Office of Appellate authority had received on the 2nd of June. In his application, the appellate was seeking the following information: “1. Information furnished by Divis Labs before SEBI for the years 2019-2020 and 2020-21. 2. Based on which issues SEBI is promoting the Divis Labs Share, kindly furnish the complete related information before SEBI by Divis Labs management regarding its expansion activities- Xerox copies may be furnished. 3. Whether Divis Labs management has informed SEBI about the pending cases against this industry before the Hon’ble Supreme Court, National Human Rights Commission, Telangana State High Court, during the period 2019-20 and 2020-21 and these cases were filed by victimized farmers, toddy tappers and other farmers which are pending. Kindly furnish xerox copy of the intimation given by Divis Labs management to SEBI and also other related copies. 5. Information available with SEBI regarding the Divis Labs for the period 2010 -2021 March. Xerox copies may be furnished. The respondent to this replied by saying that the information sought in query numbers 1, 2, 3, 5 and 7, are not available with the SEBI. To this, the appellant requested re-verification. On perusal of query numbers 1, 2, 5 and 7, it was noted that the appellant has sought information available with SEBI regarding Divis Labs. It is observed that the respondent, vide his response dated May 06, 2021, informed about the various orders passed by SEBI in the matter of Divi’s Laboratories Limited, pursuant to the completion of the investigation. Therefore, the respondent shall reconsider the queries and provide an appropriate response under the RTI Act, 2005. For query number 3, the appellate authority, Mr Anand Baiwar, made reference to the matter of Central Board of Secondary Education &amp; Anr. vs. Aditya Bandopadhyay &amp; Ors (Judgment dated August 9, 2011) held that “The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information’ and `right to information’ under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, 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.” Further, he noted that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations, Mr Baiwar found that the respondent cannot be obliged to provide such non– available information.
Appeal No. 42821 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42821 P L N Rao CPIO SEBI Mumbai The appellant had filed an application dated April 09 2021under the Right to Information Act 2005 against the said response dated May 06 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. 2. Ground of appeal On perusal of the appeal it appears that the appellant is not satisfied with the response provided by the respondent. in the following paragraphs. The queries raised by the appellant the response and the submissions made in the appeal are discussed 4. Query numbers 1 2 3 5 and 7 The appellant vide said queries sought the following information: “1. Information furnished by Divis Labs before SEBI for the years 2019 2020 and 2020 21. 2. Based on which issues SEBI is promoting the Divis Labs Share kindly furnish the complete related information before SEBI by Divis Labs management regarding its expansion activities Xerox copies may be furnished. 3. Whether Divis Labs management has informed SEBI about the pending cases against this industry before the Hon’ble Supreme Court National Human Rights Commission Telangana State High Court during the period 2019 20 and 2020 21 and these cases were filed by victimized farmers toddy tappers and other farmers which are pending. Kindly furnish xerox copy of the intimation given by Divis Labs management to SEBI and also other related copies. 5. Information available with SEBI regarding the Divis Labs for the period 2010 2021 March. Xerox copies may be furnished. Appeal No. 42821 7. Xerox copy of complete information relating to Divis Labs readily available with SEBI as on date kindly furnish the same.” The respondent in response to query numbers 1 2 3 5 and 7 informed that the information sought is not available with SEBI. The appellant in his appeal has requested that the same may be verified again. 6. On perusal of query numbers 1 2 5 and 7 I note that the appellant has sought information available with SEBI regarding Divis Labs. It is observed that the respondent vide his response dated May 06 2021 informed about the various orders passed by SEBI in the matter of Divi’s Laboratories Limited pursuant to completion of the investigation. Therefore the respondent shall reconsider the queries and provide an appropriate response under the RTI Act. 7. With respect to query number 3 I do not find any reason to disbelieve the observation of the respondent that the requested information is not available with SEBI. In this context I note that the Hon’ble Supreme Court of India in Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Ors Judgment dated August 9 2011) held that “The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information and `right to information under clausesandof section 2 of the Act. If a public authority has any information in the form of data or analysed data or abstracts 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.” Emphasis supplied). Further I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBI held: “… if it does not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the respondent cannot be obliged to provide such non available information. 8. Query numbers 4 and 8 The appellant vide query numbers 4 and 8 sought the following information “4. Since there are number of cases pending against Divis Labs before different competent Courts. If the Hon’ble Courts delivers their judgement against Divis Labs and if the value of the shares of this Divis Labs fall down who will pay the thousands of crore rupees SEBI NSE BSE to 48% share holders Kindly furnish us the clarification and detailed information. Appeal No. 42821 8. Whether authorities have thoroughly scrutinized checked the Annual Report Sustainable journey report Some lapses have been put forth before SEBI by the public. Whether the officials have identified these lapses Whether it is Divis Report or also furnished before SEBI complete details.” The respondent in response to the above queries observed that the queries are in the nature of seeking clarification opinion and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. I have perused the queries and the response provided thereto. On consideration I agree with the observation of the respondent that the queries are in the nature of seeking clarification opinion from the respondent. Further query number 4 appears to be hypothetical in nature. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. Consequently the respondent did not have an obligation to provide such clarification opinion under the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limitedwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBII note that the Hon’ble CIC held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. In view of the said observations I do not find any deficiency in the 11. Query number 6 The appellant vide query number 6 sought the following information “6. The Divis Labs Chief Financial Officer son and 6 others have made insider trading why SEBI could not identify recognize this earlier After knowing what steps action SEBI has initiated In future if such incident is repeated what will be the fate of 48% share holders Kindly furnish the complete information with relevant xerox copies.” 12. The respondent in response to the query informed that SEBI had conducted an investigation in the trading by certain entities in the scrip of Divi’s Laboratories Ltd. The respondent also provided details of the orders passed by SEBI pursuant to the completion of the investigation. Further the appellant was informed that the said orders were available on the SEBI website. 13. On consideration I find that the first part of the query i.e. “why SEBI could not identify recognize this earlier ” is in the nature of seeking clarification opinion of the respondent. Further the last part of the Appeal No. 42821 query i.e. In future if such incident is repeated what will be the fate of 48% share holders ” appears to be hypothetical in nature. I am of the view that the same cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. Accordingly the respondent did not have any obligation to provide response to such queries. 14. Without prejudice to the same I note that the respondent has provided information regarding the orders passed by SEBI in the matter of Divi’s Laboratories Limited. The respondent also guided the appellant to access the orders on the SEBI website. I find that the respondent has adequately addressed the query regarding steps action initiated by SEBI by providing the information available with him. Accordingly I do not find any deficiency in the response. I note that the appellant in his appeal inter alia sought certified copy of documents which are available on the SEBI website for submitting them before Court of Law. On perusal of the application dated April 09 2021 I find that the said request was raised by the appellant for the first time in this appeal. As held by the Hon’ble CIC in Harish Prasad Divedi vs. Bharat Petroleum Corporation Limitedan information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage. Accordingly I find that this request does not warrant consideration at this stage. In view of the above observations I remit the matter to the respondent for de novo consideration of query numbers 1 2 5 and 7 of the appellant’s application dated April 09 2021 and to send appropriate response to the appellant in terms of RTI Act within 15 working days from the date of receipt of this AMARJEET SINGH APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA order. Place: Mumbai Date: July 02 2021 