Information regarding the National Spot Exchange Limited (NSEL) - CIC instructed the Addl. Secretary, Department of Economic Affairs to examine the matter carefully and answer the queries giving precise information to the Appellant within 15 days
11 Mar, 2019O R D E R
FACTS:
The Appellant vide his RTI application sought information on 07 points regarding the National Spot Exchange Limited (NSEL), number of times the Committee of Secretaries met in Delhi regarding reviewing the NSEL payment crisis, place where the meetings were held, cost of meeting, details of participants in the meeting, etc.
The CPIO, vide its letter dated 09.01.2017 transferred the RTI application to the concerned CPIO (Details of the authority to whom the application was transferred were not available.). Dissatisfied by the response, the Appellant approached the FAA. The FAA vide its order dated 29.03.2017, while advising the CPIO (Mr. Praveen Kumar) not to repeat such avoidable indifference on his part towards his duties as CPIO in future, directed him to provide the requisite information to the Appellant within 01 week from the date of receipt of order or transfer the same to the concerned authority if the same was not available with him under intimation to the Appellant. Dissatisfied, the Appellant approached the Commission.
Aggrieved due to non-disposal of his second appeal filed on 22.01.2017, the Appellant approached the Hon’ble High Court of Madras with a prayer to dispose off the second appeal within a fixed time frame. The Hon’ble High Court of Madras vide its order in WP Nos. 27134, 27136 and 27957 of 2017 dated 19.03.2018 and WP Nos. 31387, 31388, 31389, 31391, 31392 and 31393 of 2017 dated 07.12.2017, without expressing any view on the merits of the matter directed to dispose of the second appeal within a period of twelve weeks. The Appellant thereafter filed a contempt petitions before the Hon’ble High Court of Madras on the ground that the decisions pronounced by the Court had not been complied with till date. The Hon’ble High Court of Madras vide its order dated 12.10.2018 while closing the contempt petitions directed the Commission to consider the appeals and pass orders on the same on merits and in accordance with law within a period of 10 weeks from the date of receipt of the order after hearing the petitioner in person.
The DS (Law) vide its note dated 29.10.2018 requested the DR to IC (BJ) to take necessary action in Second Appeal Nos. CIC/DOEAF/A/2018/164194, CIC/DOEAF/A/2018/164195, CIC/DOEAF/A/2018/164197, CIC/DOEAF/A/2018/164198 and CIC/DOEAF/A/2018/164199. Accordingly, the DY. Registrar (IC-BJ) vide its notice dated 28.11.2018 fixed 24.12.2018 as the date of hearing in all the five matters.
HEARING:
Facts emerging during the hearing: The following were present: Appellant: Mr. Vaibhav R. Venkatesh (Adv.) Appellant’s representative; Respondent: Mr. Syed Ali Sabeer, US (DEA) & CPIO;
The Appellant’s representative reiterated the contents of the RTI application and stated that the information sought had not been made available. While apologizing for the delay in attending the said matter, he feigned ignorance of any communication sent by the Respondent Public Authority dated 07.05.2018 / 19.12.2018 as claimed by the Respondent. In its reply, the Respondent explained that after coordinating with all the concerned authorities, and in compliance to the decision of the Commission in Appeal No. CIC/DOEAF/A/2017/152509 dated 05.04.2018, a detailed response was sent to the Appellant explaining the reasons for nondisclosure of information. It was however noted by the Commission that in similar matters, in Appeal Nos. CIC/MOLAJ/A/2017/153518 dated 23.05.2018 and CIC/SEBIH/A/2017/184810 dated 19.12.2017, a decision had been conveyed by it. On being queried by the Commission, whether the FSDC had responded in the matter, the Respondent feigned ignorance about it and submitted that FSDC is a separate division and looked after by a separate CPIO within the DEA. The Appellant denied receipt of any such communication. It appeared that the Appellant’s representative was unprepared for today’s hearing and desired fresh copies of the replies for his ready reference.
The Commission was in receipt of a written submission from the Respondent dated 19.12.2018, wherein it was stated that the Appellant was repeatedly seeking information on National Spot Exchange Ltd (NSEL) issue which was denied to him u/s 8 (1) of the RTI Act time and again. There occurred a default of repayment on the NSEL platform as a result of which around 13000 investors had lost about Rs. 5600 crores in the year 2013. Ever since the issue had been a subject matter of investigation by the CBI, ED, SFIO, EOW of Mumbai Police, FIU- India, SEBI, CBDT and MCA and had also been under litigation in various courts of law. Further, the Commission in Appeal No. CIC/DOEAF/A/2017/152509 dated 05.04.2018 passed an order pertaining to another RTI request of the same Petitioner seeking information on the same matter viz NSEL issue. As per the Commission’s order, their department gave a detailed reply to the Appellant on 07.05.2018 with justification as to how the disclosure of information on NSEL could hamper or interfere with the process of investigation and justice. Furthermore, the main files relating to the NSEL issue and Commodity Exchange were in the custody of CBI for the purpose of investigation. Thus, on the basis of the detailed reply dated 07.05.2018 justifying exemption u/s 8 (1) of the RTI Act, 2005, it was prayed to dismiss the Appeal. Moreover, the Respondent also furnished a status report wherein with regard to Appeal No. CIC/DOEAF/A/2018/164197, it was stated that no action was taken within the time limit. The FAA called for the explanation from the CPIO on 10.03.2017 against which the CPIO explained on 15.03.2017 that “while making print out of the RTIs found on web portal, the print out of the said application was missed out.” The FAA disposed off the First Appeal on 29.03.2017 directing the CPIO to furnish information to the extent held by him or to transfer the request to the concerned. The CPIO complied with the order of the FAA on 07.04.2017 and transferred the application to FSDC under intimation to the Appellant. No further reply from FSDC was available on record and neither was the Respondent aware of further necessary action.
The Appellant’s representative categorically denied receipt of any of the communications from the Respondent referred to above and sought scanned copy of the said references to examine and revert at e-mail IDs nithyaesh@gmail.com / vaibhav.juris@gmail.com.
INTERIM DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directed the Respondent to furnish the scanned copies of the correspondence referred to above at the e-mail address given by the Appellant’s representative along with the proof of the postal dispatch of the said letters to the Appellant within a period of 15 days from the date of receipt of this order. The Commission granted short adjournment on the request of the Appellant.
The DR is directed to fix another short date of hearing in the matter. Note: The Dy. Registrar vide its notice dated 09.01.2019 fixed 07.02.2019 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Nithyaesh Natraj alongwith Mr. Vaibhav R. Venkatesh (Adv.) through VC;
Respondent: Ms. Rose Mary K. Abraham, Jt. Dir., Mr. Sanjay Kr. Pandita, SO and Mr. R. K. Tiwari, US;
The Appellant reiterated the contents of his RTI application and stated that point-wise information was not provided till date. It was submitted that exemption under Section 8 (1) (h) of the RTI Act, 2005 was not applicable in this matter since disclosure of information could not impede the process of investigation. He repeatedly referred to the orders of the Delhi High Court in support of his contention being referred in his Second Appeal. However, on perusal of the available record, the Commission observed that no such reference was made in his Second Appeal. It was further submitted that the stand of the Respondent that investigation in the matter was underway was not a proper justification since he was seeking information which were generic / regulatory in nature. In its reply, the Respondent reiterated their earlier submission and submitted that vide letter dated 11.01.2019 they had communicated the factual position to the Appellant. Furthermore, vide their e-mail dated 24.12.2018 they had also informed about the correspondences made in the matter.
The Commission was in receipt of a copy of a written submission from the CPIO and US, Erstwhile FSDC Secretariat now FS and CS Division, DEA dated 11.01.2019 addressed to the Appellant and his representative, wherein it was stated that the application was transferred to the FSDC Secretariat, DEA, M/o Finance by the CD Division of DEA, M/o Finance vide OM dated 07.04.2017. As the sought information was not available with the FSDC, it was returned to the CD Division with the comment that the information was not available with FSDC Secretariat vide letter dated 10.04.2017. The second reference from CD Division asking for the same information in the matter was received in FSDC Secretariat in the month of December, 2018 vide OM dated 28.12.2018. However, the applicant regrettably was not informed by the FSDC through a copy of the OM to him of this fact. The copies of the OM sent to CD Division by FSDC Secretariat (now Financial Stability and Cyber Security Division) as also those of CD Division were attached for the reference of the Appellant.
The Commission referred to the definition of information u/s Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; of the RTI Act, 2005 which is reproduced below:
“information” means any material in any form, including records, documents, memos, emails, 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.”
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”
In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... “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) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; 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.”
Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; which provides:
“information” means any material in any form, including records, documents, memos, emails, 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.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”
FINAL DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the generic queries raised by the Appellant, the Commission instructs the Respondent (Addl. Secretary, Department of Economic Affairs/ Ministry of Finance) to examine the matter carefully and answer the queries giving precise information on the issues raised by the Appellant within a period of 15 days from the date of receipt of this order.
The Appeal stands disposed accordingly.
Bimal Julka
Information Commissioner
Citation: Mr. Nithyaesh Natraj v. CPIO Ministry of Finance Department of Economic Affairs in Second Appeal No.:- CIC/DOEAF/A/2018/164197-BJ-FINAL, Date of Decision: 26.12.2018, 08.02.2019