Information in respect of rules for trading by a trading member of NSE without the client’s consent & knowledge, process for resolving investor grievance by IGRP & issues related thereto - CIC: Matter regarding applicability of the RTI Act is subjudice

O R D E R

FACTS:

The Appellant vide his RTI application sought information on 07 points in respect of the procedure/ rules for trading by a trading member without the client’s consent and knowledge. Legal status of the IGRP, process for resolving investor grievance by IGRP and issues related thereto. Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of the FAA, if any, is not on the record of the Commission.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. Mahendra Kumar Mehta through VC;

Respondent: Mr. Pramit Mishra, Manager (Legal) through VC;

The Appellant reiterated the contents of the RTI application and stated that the information sought was not provided.

The representative from NSEIL submitted that they were not notified as the Public Authority and that in LPA 315/2010 dated 21.08.2012, the order of the CIC had been stayed by the High Court. A similar decision was given in Appeal/ Complaint Nos.: CIC/MOFIN/A/2017/176221/SEBIH-BJ dated 03.08.2018, CIC/DC/C/2013/000520 dated 29.03.2017 and CIC/SS/C/2013/000439 dated 20.02.2017.

On the issue of defining ‘public authority’ under Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the RTI Act, 2005, the Commission had drawn the attention to the specific provision under the Act as reproduced below:

Section2 (h):

"public authority" means any authority or body or institution of self government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

A reference was also drawn to the decision dated 07.10.2013 pronounced by the Hon’ble Supreme Court in the case of Thalappalam Ser. Coop. Bank Ltd. and others versus State of Kerala holding as under:

27. Legislature, in its wisdom, while defining the expression “public authority” under Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; , intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; has used the expressions ‘means’ and includes’. When a word is defined to ‘mean’ something, the definition is prima facie restrictive and where the word is defined to ‘include’ some other thing, the definition is prima facie extensive. But when both the expressions “means” and “includes” are used, the categories mentioned there would exhaust themselves. Meanings of the expressions ‘means’ and ‘includes’ have been explained by this Court in Delhi Development Authority v. Bhola Nath Sharma (Dead) by LRs and others (2011) 2 SCC 54, (in paras 25 to 28). When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions.

34. We are of the opinion that when we test the meaning of expression “controlled” which figures in between the words “body owned” and “substantially financed”, the control by the appropriate government must be a control of a substantial nature. The mere ‘supervision’ or ‘regulation’ as such by a statute or otherwise of a body would not make that body a “public authority” within the meaning of Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; (d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory

40. The burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Information Commission or the Central Information Commission as the case may be, when the question comes up for consideration This Court in Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the words used are capable of one construction only then it would not be open to courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.”

The Appellant was not able to dispose off his burden of proving the Respondent organization as a Public Authority under Section 2 (h) of the RTI Act, 2005.

DECISION:

Keeping in view the facts of the case and the submissions made by both the parties, and appreciating the fact that the matter being subjudice regarding applicability of the RTI Act, 2005 as submitted by the Respondent, no further directions can be issued by the Commission at this stage. However, the Respondent was advised to forward a copy of the stay order of the High Court of Delhi as mentioned above along with a copy of the petition filed before the Court to the Appellant for his ready reference.

The Appeal stands disposed accordingly.

(Bimal Julka)

(Information Commissioner)

Citation: Mr. Mahendra Kumar Mehta v. CPIO National Stock Exchange of India Ltd. in Second Appeal No.:- CIC/SEBIH/A/2018/115875-BJ, Date of Decision: 05.07.2019