Indus Towers Limited v. District Telecom Committee, Thiruvananthapuram and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA,** ## **1943** ## **RP NO. 558 OF 2021** **AGAINST THE JUDGMENT DATED 07.04.2021 IN W.P.(C)NO.5684** **OF 2021 OF THE HIGH COURT OF KERALA, ERNAKULAM REVIEW PETITIONER:** ## **INDUS TOWERS LIMITED,** **8TH FLOOR, VANKARATH TOWER, PALARIVATTOM-682024 (REPRESENTED BY ITS HEAD LEGAL MR. RAJKUMAR PAVOTHIL, S/O. P. NARENDRAN, AGED 41 YEARS, RESIDING AT MIDHILA, THAMARAKULANGARA, THRIPUNITHURA).** **BY ADV P.DEEPAK** ## **RESPONDENTS:** - **1 THE DISTRICT TELECOM COMMITTEE, THIRUVANANTHAPURAM, REPRESENTED BY ADDITIONAL DISTRICT MAGISTRATE AND DEPUTY COLLECTOR, THIRUVANANTHAPURAM.** - **2 SUJI A.S., AGED 38 YEARS** - **S/O. SIVAPALAN, KUNNUVILA VEEDU, OOLANKUZHI ANAYARA, KADAKKAMPILLY VILLAGE. (SECRETARY, ANAYARA KIZHAKKETHIL SREEBHAGAVATHI TEMPLE TRUST), THIRUVANANTHAPURAM-695029.** - **3 THE STATION HOUSE OFFICER, PETTAH POLICE STATION, THIRUVANANTHAPURAM695024.** - **4 THIRUVANANTHAPURAM MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O., KERALA-695033.** - **5 PRADEEP, DEEPAM HOUSE, KIZHAKKATHIL JUNCTION, ANAYARA P.O., THIRUVANANTHAPURAM-695029.** - **6 SATHEESAN, ASHRAMAM FINANCE, LORDS JUNCTION, ANAYARA P.O., THIRUVANANTHAPURAM-695029.** - **7 THE DISTRICT FIRE OFFICER, DISTRICT FIRE OFFICE, FIRE AND RESCUE SERVICE, FIRE FORCE JUNCTION, PULIMOODU P.O., THIRUVANANTHAPURAM-695001.** 2 RP No.558 OF 2021 **BY ADVS.** **N.NANDAKUMARA MENON (SR.) SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION SRI AJIT G.ANJARLEKAR - R2, GOVT PLEADER -SRI JOBY JOSEPH FOR R1 ,R3 AND R7** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 RP No.558 OF 2021 ## **ORDER** The petitioner company has filed this review petition under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, seeking review of Annexure A2 judgment of this Court dated 07.04.2021 in W.P.(C)No.5684 of 2021, whereby that writ petition was disposed of by setting aside Ext.P8 order dated 24.02.2021 of the 1[st] respondent District Telecom Committee, so as to enable the said Committee to reconsider the matter based on the request that has to be made by the petitioner, within a period of two weeks from the date of receipt of a certified copy of that judgment, to proceed with the construction of the telecommunication tower on the strength of Ext.P1 building permit by using Valve Regulated Lead Acid Batteries for power supply, instead of diesel generators or power supply from the Kerala State Electricity Board. The District Telecom Committee was directed to consider that request and take an appropriate decision, after considering its technical feasibility and other relevant aspects, with notice to the petitioner, the 2[nd] respondent Secretary of Anayara Kizhakkethil Sreebhagavathi Temple Trust, additional respondents 5 and 6 and other objectors, if any, and also the RP No.558 OF 2021 4 additional 7[th] respondent District Fire Officer, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of such request. In the said judgment, this Court has made it clear that, while taking such a decision, the District Telecom Committee shall advert to the legal contention raised by the 2[nd] respondent that the construction of mobile telecommunication tower cannot be permitted in a residential zone. 2. In paragraph 6 of that judgment, this Court has taken note of the specific submission made by the petitioner company that it intents to use Valve Regulated Lead Acid Batteries, instead of KSEB power supply or diesel generator for the telecommunication tower proposed to be constructed. Paragraph 6 of the judgment reads thus; “6. During the course of arguments, the learned counsel for the petitioner would submit that the petitioner intents to use Valve Regulated Lead Acid Batteries, instead of KSEB power supply or diesel generator for the telecommunication tower proposed to be constructed on the strength of Ext.P1 building permit. The petitioner shall submit a proper request before the 1[st] respondent for reconsideration of the matter, which may be directed to be considered by 5 RP No.558 OF 2021 the 1 st respondent expeditiously.” (underline supplied) 3. In this review petition, it is contended that, there is error apparent on the face of the judgment, warranting an order of review under Order XLVII of Rule 1 of the Code. 4. On 08.09.2021, when this review petition came up for admission, adjournment is sought on behalf of the learned counsel for the 2[nd] respondent, since he was in quarantine. 5. Heard the learned counsel for the review petitioner, the learned Government Pleader for respondents 1, 3 and 7, the learned counsel for the 2[nd] respondent and also the learned Standing Counsel for the 4[th] respondent Corporation. 6. As already noticed hereinbefore, the writ petition was disposed of by Annexure A2 judgment, taking note of the submission made by the learned counsel for the petitioner company that it intents to use Valve Regulated Lead Acid Batteries, instead of KSEB power supply or diesel generator for the telecommunication tower proposed to be constructed. It is pertinent to note that, as evident from Ext.P8 proceedings dated 24.02.2021 of the 1[st] respondent District Telecom Committee, the specific stand taken by the petitioner company 6 RP No.558 OF 2021 before the Committee was that, in order to avoid fire hazards pointed out in the report of the Fire Officer, the petitioner company shall exclude generator and use only battery for the mobile tower in question. However, the 1[st] respondent Committee did not accept the above stand taken by the petitioner company since the relevant documents were not placed before the Committee. 7. In **Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372]** the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 8. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the 7 RP No.558 OF 2021 Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 9. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534]** the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 10. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of 8 RP No.558 OF 2021 ## decisions. 11. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in this review petition fall within the ambit and scope of Order XLVII, Rule 1 of the Code. 12. Pursuant to the directions contained in Annexure A2 judgment, the 1[st] respondent District Telecom Committee has already issued Annexure A3 proceedings dated 10.07.2021. During the course of arguments, it is pointed out by the learned counsel for the 2[nd] respondent that Annexure A3 proceedings is already under challenge in W.P.(C)No.15422 of 2021 filed by the 2[nd] respondent, who is the Secretary of Anayara Kizhakkethil Sreebhagavathi Temple Trust. In the above circumstances, this Court find no reason to entertain this review petition. This review petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** RP No.558 OF 2021 9 ## **APPENDIX** ## **PETITIONER ANNEXURES:** |**Annexure A1**|**A TRUE COPY OF THE REPRESENTATION**| |---|---| ||**DATED 25/02/2021.**| |**Annexure A2**|**CERTIFIED COPY OF THE JUDGMENT DATED**| ||**07/04/2021 IN WPC NO. 5684/2021.**| |**Annexure A3**|**A TRUE COPY OF THE DECISION OF THE**| ||**FIRST RESPONDENT DATED 10/07/2021**| ||**(RELEVANT PAGES ONLY).**| |**Annexure A4**|**TRUE COPY OF THE RECEIPT DATED**| ||**12/09/2020 ISSUED BY THE KSEB LTD.**|