(Under the Right to Information Act, 2005) SECURITIES AND ... - Sebi

BEFORE THE APPELLATE AUTHORITY (Under the Right to Information Act, 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal Nos. 1399 of 2012 R. S. Agarwal :

Appellant

Vs. CPIO, SEBI, Mumbai 1.

: ORDER

Respondent

The appellant had filed an application dated October 29, 2011 under the Right to

Information Act, 2005 (RTI Act). The respondent, vide letter dated December 02, 2011, responded to the appellant. Aggrieved by the response of the respondent, the appellant has filed this appeal dated January 21, 2012 (received on January 30, 2012). 2.

I have carefully examined the application, the response and the appeal and find that the

matter can be decided on merit based on the material available on record. 3.

Item 1: The appellant had referred to the earlier reply dated March 29, 2010 and had asked

if any action taken by SEBI by the date of his application dated October 29, 2011 when the Bank of Rajasthan (BoR) made violations of the Company Act, 1956. The respondent informed that the information sought by the appellant was not available with the concerned department(s) of SEBI. The appellant has argued that the reply is incorrect because the above referred reply dated Match 29, 2010 is available with SEBI and the appellant had asked action as per Regulation. I find that the respondent did not state that the said reply was not available. It stated that the information sought by the appellant was not available. The obligation of the respondent under the RTI Act is to provide the information which should be identifiable and available in the records of the public authority. In this case, the respondent has categorically stated that no information is available. 4.

Item 2: The appellant had sought disclosures made by the BoR from December 1996

onwards as promoter group holding were transferred by BoR in favour of Shri P. K. Tayal & PAC etc. on fraudulent manner. For this information, he had referred to SEBI order dated March 08, 2010. The respondent stated that the disclosures made by BoR with regard to shareholding pattern are available on the website of BSE and provided the link/URL to access the same easily. The appellant has argued that website is not available to the appellant and has requested to arrange the requested information. I find that some information is available in the order dated March 08, 2010 which is available in the public domain. Further, the listed companies are required to make such disclosures to the exchange where their shares are listed and not with SEBI. Hence the original Page 1 of 3

holder of such information is exchange and not SEBI. The appellant may either access such information from the website of BSE or approach BSE for hardcopy. The respondent is not expected to obtain any information from stock exchange for the sole purpose of providing the same to an applicant under the RTI Act. The Hon’ble Supreme Court of India in its judgment dated August 9, 2011 in the matter of Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. has also made it clear that 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 nonavailable information and then furnish it to an applicant. After this Supreme Court verdict, the Hon’ble CIC in its decisions dated August 24, 2011, in the matters of R. K. Goel & Anr. Vs SEBI and K. L. Wadhwa Vs. SEBI held that SEBI cannot be compelled to access the desired information from whomsoever holds it solely for the purpose of sharing it with the information seeker. 5.

Items 5 and 6: The appellant had sought the information with respect to present status of

the issue of allotment of 90 lakh shares by BoR Chairman, Directors, their PAC to others. The respondent stated that SEBI viewed the said allotment of 90 lakh shares as fresh allotment which was to be governed by preferential issue guidelines. It, further, stated that as per the information available, listing approval was received from NSE as well as BSE by ICICI Bank for the said 90 lakh shares. The appellant has argued that the respondent has not given any information about the fact that the tradable warrants option has not been utilized upto last date as purportedly stated in a letter of BoR. I find that the respondent cannot opine about such alleged fact. The duty of the respondent is to provide the information. I find that the respondent has provided information which is available with SEBI. 6.

Item 7: The appellant wrote: “Sir Pl inform us present status of BoR 90 lacs shares after case no

5007/2006 was dismissed by Supreme Court of India and if ICICI Bank allotted BoR Shares into ICICI Bank pl provide list with Sebi – RBI – BoR AGM/EGM approval copy as per rules.” The respondent stated that the information sought was not clear. However, present status of the 90 lakh shares, the respondent informed the appellant to refer to the response given to items 5 and 6. The respondent also informed that no information is required to be filed with SEBI by the listed companies regarding their AGM/EGM and such information is required to be filed with the concerned Stock Exchange. The appellant has reiterated his query in this appeal and also stated: “In case the ICICI Bank Ltd Allotted its shares to same Beneficiary (Applicants) or another persons of 29.03.2001 original allottee if so as per sebi letter dated 22.6.2006 treated fresh Allotment than ….” I find that the information may not Page 2 of 3

be sought on the basis of this kind of hypothetical query. The appellant’s right extends only to seeking information as defined in section 2(f) either by pinpointing the file, document, paper or record, etc., or by mentioning the type of information as may be available with the specified public authority, as held by the Hon’ble CIC in the matter of Dr. D.V. Rao Vs. Shri Yashwant Singh & Anr (Order dated April 21, 2006). In this case, I find that the available information has already been given to the appellant which is complete. 7.

Item 9: The appellant had asked to inform whether SEBI made approval or sanction to

ICICI Bank shares in lieu of BoR shares. The respondent stated that ICICI bank’s shares were issued to the shareholders of BoR under a scheme of arrangement which was approved by the High Court. The respondent also made clear that no SEBI approval, sanction or permission is required for the issuance of such shares. The appellant has argued that the reply is completely wrong / incorrect because there was no such approval made by the High Court and if so, he has requested a copy of order of the Court. I have no reason to disbelieve the respondent. If the appellant wants any new information with respect to the said order of the Court, he may approach the respondent in accordance with the RTI Act because a new request at first appeal, different from what the appellant raised with the respondent is impermissible, as held by the Hon’ble CIC in the matter of Anil K. Sahore Vs. CPIO, Coast Guard Headquarters (Order dated July 13, 2006). 8.

Item 10: The appellant had sought the action taken by SEBI on their letter dated June 06,

2011 and inspection of file. The respondent stated that no action has been taken in the said matter. The appellant has reiterated his query in this appeal. I find that the response of the respondent is complete as it stated that no action has been taken by SEBI and such there is no information about the present progress of the matter. 9.

In view of the above, there is no need to interfere with the decision of the respondent.

The appeal is accordingly dismissed. Place: Mumbai Date: February 22, 2012

PRASHANT SARAN APPELLATE AUTHORITY SECURITIES AND EXCHANGE BOARD OF INDIA

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