Is it a misleading information by AA?

[Shantanu Deb Roy]

Dear Sir,


I preferred an application dt:10-05-2008 under RTI Act/2005 to the CPIO, Mr. R K Nair, Executive Director, Securities and Exchange Board of India,Mumbai-400051.The application was divided into two paras . One was Para-I containing four queries under Sub-para 1 to 4, related with a DP/broking company and the other was Para-II containing two queries under sub-para : 1&2, pertaining to SEBI.
In the para-I Sub-para.3: The query was as under:

[ (*) " The rule that allows the company to function as broker with two entities, one is the India Infoline Ltd. and the other is India Infoline Securities Pvt. Ltd."]

On 29-05-2008, I received a decision from CPIO,PK Nagpal vide decision No.CPIO/PKN/ JS/ 254-2008/126977 dt: May 28,2008. The information as given was not para sub para wise number specific. The last item of the said decision covered under serial no.4 was as under:

{"4. As per the broker database the entity was earlier registered in the name M/s India Infoline Securities Ltd. got merged with its holding company ,i.e. M/s India Infoline Ltd. for which prior approval was issued on 18/08/2006. Subsequently the name of the entity has been changed to M/s India Infoline Ltd."}

On 07-06-2008, I received another decision on the same application (10-05-2008) from CPIO, Mr. P k Nagpal vide decision No. CPIO/PKN/JR-254/2008/127556 dt: June 3, 2008 The information as given here were the para sub-para wise number specific of my application of 10-05-2008. The information to my query of para- I sub-para .3 was given as under:

{ (**) "3. Query 3: SEBI is entrusted with the function of registration and regulation of brokers ans as such SEBI has notified the SEBI (Stock brokers and sub-broker) regulations and take actions as per the regulations, as warranted. Broker is required to comply with the rules, regulations and circulars issued by SEBI from time to time, In addition they are required to comply with the bye-laws, rules and regulations of the exchange."}

It is important to note that the last decision was neither in addition to the earlier decision, nor in cancellation or super session of the earlier decision.

I preferred an appeal dated: 23-06-2008 annexing the photocopies of the original application dt:10-05-2008 and the last decision to Dr. T C Nair, Whole Time Director, SEBI, Mumbai-400051 where in against the 2^nd decision bearing no.CPIO/PKN /JR-254/2008/127556 dt: June 3,2008 my submission was as under:

[[ "About para-I sub-Para (3): That the information as sought was about the specific rule which allows the company to carry out its functions as DP/Broker with two entities simultaneously. The query was very specific and limited to the specific rule, circular etc. But the decision as given (vide Para-I.3.Query3) does not reflect any part of the information as sought for."]]

On 28-07-2008, I received an order No. AAo/354/RTI/07/2008 dated July 25,2008 from Mr. T C Nair, the Appellate Authority. The order passed against my appeal (i.e about para-I sub-para 3) is as under:


{{"7. Query at 3 of para I. The appellant sought the rule that allows the company to function in two capacities(India Infoline Ltd and India Infoline Securities Pvt. Ltd)Simultaneously. This kind of hypothetical query is beyond the definition of 'Information'And 'right to information' under Section 2(f) and 2(j) respectively of the RTI Act. Nevertheless, the CPIO has informed that India Infoline Securities Ltd got merged with its holding company i.e India Infoline Ltd for which prior approval was issued on August18,2006. Subsequently, the name of the entity has been changed to India Infoline Ltd. The CPIO has also informed that SEBI regulates the functions of stock brokers as per the provisions of SEBI(Stock Brokers and Sub Brokers) Regulations,1992. The CPIO further added that stock brokers are required to comply with the Regulations and Circulars of SEBI and Bye-laws and Regulations of the concerned exchange. However, in the instant appeal, the appellant has reiterated that he wants to specific rule which allows the company to carry out its function as DP as well as Broker simultaneously. The appellant may note that an entity can simultaneously function as Stock Broker and Depository Participant. The requirement is to get separate registration from SEBI as per SEBI Act,1992, SEBI(Stock Brokers and Sub Brokers) Regulations,1992 and SEBI(Depositories and Participants) Regulations,1996. As regards the legal opinion about specific rule, the appellant himself may examine the said Act and Regulations which are available on SEBI website at www.sebi.gov.in or consult an expart on the subject. The appellant need not consider the public authority as his consultants who would enable him to locate relevant law or legal opinion at public cost.this issue has already been decided by the Hon'ble CIC vide order dated February 21,2007 in Appeal No.CIC/AT/A/2006/00575(S.K Kapoor Vs CPIO, SEBI & Anr).The relevant portion from the said order is reproduced hereunder:
"The SEBI Act. Rules, all its instructions are properly in the public domain already, which the appellant can easily access by putting up little bit of extra effort. Far from it, he wishes to treat the public authority as his Consultants who should enable him to locate provisions of Acts & Rules at public cost. This is not what the RTI Act is all about. In view of the above, there shall be no disclosure obligation regarding this item of information"}}

This is all about the decision and order of the Appellate Authority. It may kindly be noted that I did not question the 'Capacity' of functioning as Broker & DP of the Broking/DP company simply I wanted to know about the functioning of the broking/DP company with two entities simultaneously (i.e. sometimes in the name of India Infoline Ltd & sometimes as India Infoline Securities Pvt. Ltd.) So far I know capacity means ability to do and entity relates with the existence of separate identity.
I like to add more for further clarification that in one of the decision of CPIO/SEBI & also in the order of Appleate Authority, there were references of 18Aug.2006 when the approval of merging of India Infoline Securities Ltd. with it's holding company India Infoline Ltd. was given and subsequently the name was changed as India Infoline Ltd. But astonishingly, I was in receipt of several documents even in 2008 from the broking/DP company with two entities sometimes as 'India Infoline Securities Pvt. Ltd' & sometimes as 'India Infoline Ltd' which I presume should have been known to SEBI being a regulator as well as a registrar.
Interestingly, it is found that the Broking/DP company started to function in a single entity, the India Infoline Ltd. only immediate after my query.

Now my humble submission to you:
i) Please check the languages of my original application (*), my appeal (**). Did the languages not transparent enough to mean what I actually intend to know? Did it mean questioning the capacity of the broking/DP company to function as broker as well as DP?
ii) Din't the information of CPIO & Appellate Authority incomplete? As in the query there was specific mention of the names as India Infoline Securities Pvt. Ltd. & India Infoline Ltd, not any entity as India Infoline Securities Ltd.
iii) Should I lodge a complaint (because I do not prefer any appeal under sec.19 as I am not in a position to move to New Delhi due to my poor health condition) to the CIC under sec 18(e) ?

Kindly suggest some hints as to how the complaints be framed or otherwise.
With regards.
Shantanu Deb Roy

[karira]

Your Second Appeal needs to be submitted before 25 October 2008.
So, better hurry.

The SEBI PIO and the AA (one Mr Nair and another Mr Nair) are notorious for stonewalling RTI queries.
Both had the habit of deviating from the main topic, giving irrelevant answers, intentionally misinterpreting the query and in my case, blatantly lying through their teeth.
Fortunately, in your case the first Mr Nair was replaced by Mr Nagpal.
Now the second Mr Nair has also been replaced by Mr M.S. Sahoo.
Mr Sahoo is better than the earlier AA in terms of his commitment to transparency and accountability.

You can go for Second Appeal for Misleading, Incorrect and Incomplete information Sec 18(1)(e). Include those documents/letters/bills etc. that you mention which contain both the names of the merged entity.

Just for your information, attached is my case history with SEBI. You can see for yourself how devious the SEBI PIO (the first Mr Nair) can be.

- My RTI Application to SEBI
- PIO's reply
- First Appeal
- First Appellate Authority order
- Final information given by the PIO
- The 17 page document that was attached to my initial RTI application

Compare for yourself the Daily Transaction Summary (DTS) and Daily Transaction Report (DTR) as given in the first 2 or 3 pages of that 17 page document WITH the final DTS and DTR as given by the PIO.
Even a child can make out that both are exactly the same.

By the way, on the CIC website just search for "SEBI" and you will find two orders wherein two different applicants asked for information about what is contained in the DTR and DTS (referred to above).
The first one was told that the data does not exist !
The second one was told that data exists BUT not in the form that you have asked - so cannot be given.
My application was intended to show them the mirror and make SEBI commit that both the times they were blantantly giving false statements before CIC.

Therefore make your Second Appeal as "water tight" as possible.