Kerala High Court
V.P. Markose vs Rev. Fr. Tijo Kuriakose on 6 September, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
W.A.No.945 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
WA NO. 945 OF 2023
AGAINST THE JUDGMENT DATED 13/04/2023 IN WP(C) NO.27081 OF 2019 OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 13 TO 15:
1 V.P. MARKOSE
AGED 71 YEARS
S/O. PATHROSE, VAZHAKUZHYTHADATHIL KADAKKANAD P.O.,
KOLENCHERY, ERNAKULAM DISTRICT., PIN - 682311
2 ABRAHAM THOMAS
AGED 68 YEARS
S/O THOMAS, THOTTAMATTATHIL HOUSE,
NORTH MAZHUVANNOOR P.O., VALAMBOOR, ERNAKULAM
DISTRICT., PIN - 686669
3 THAMPI ABRAHAM
AGED 63 YEARS
S/O ABRAHAM, ERATTEL HOUSE, EZHIPPRAM,
KADAYIRIPPU P.O., ERNAKULAM DISTRICT,
PIN - 682311
BY ADV P.V.ELIAS
RESPONDENTS/PETITIONERS AND OTHER RESPONDENTS:
1 REV. FR. TIJO KURIAKOSE
AGED 41 YEARS
S/O P.K.SKARIAH, VICAR ST.THOMAS ORTHODOX
SYRIAN CHURCH, MAZHUVANNOOR,
ERNAKULAM DISTRICT -686669,
PERMANENTLY RESIDING AT MANALEL PUTHIYAPARAMBIL HOUSE,
AMAYANNOORP.O., KOTTAYAM DISTRICT, PIN - 686669
W.A.No.945 of 2023
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2 M.J. THOMAS THARAKAN
AGED 73 YEARS
S/O M.M.JOSEPH THARAKAN, MADAPARAMBIL HOUSE, SOUTH
MAZHUVANNOOR P.O., ERNAKULAM DISTRICT., PIN - 686669
3 GEORGE KURUVILA
AGED 73 YEARS
S/O KURUVILA, RESIDING AT KULANGATTIL HOUSE,
KADAKKANADU P.O., KOLENCHERY,
ERNAKULAM DISTRICT, PIN - 682311
4 ELDOW K.JOSEPH
S/O JOSEPH,KURUVILA, RESIDING AT KALARIKKATHADATHIL
HOUSE, KADAKKANADU P.O., KOLENCHERY, ERNAKULAM
DISTRICT, PIN - 682311
5 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO THE STATE ,GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
6 STATE POLICE CHIEF,
POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM,
PIN - 695001
7 THE DISTRICT COLLECTOR.
COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT,
KERALA, PIN - 682030
8 DISTIRCT POLICE CHIEF,
ERNAKULAM RURAL, OFFICE OF THE DISTRICT POLICE CHIEF,
ALUVA ,ERNAKULAM DISTRICT, KERALA, PIN - 682030
9 THE REVENUE DIVISIONAL OFFICER
MUVATTUPUZHA ,ERNAKULAM DISTRICT, PIN - 686669
0 DEPUTY SUPERINTENDENT OF POLICE
PERUMBAVOOR, ERNAKULAM DISTRICT,KERALA,, PIN - 683542
11 INSPECTOR OF POLICE STATION AND STATION HOUSE OFFICER.
KUNNATNUNAD POLICE STATION PATTIMATTOM, ERNAKULAM
DISTRICT, PIN - 683562
12 FR. ELDHOSE MOLEKUDIYIL, AGED 54 YEARS
MOLEKUDIYIL HOUSE, MANARI P.O., ERNAKULAM DISTRICT,
PIN - 686673
W.A.No.945 of 2023
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13 FR. JAISAL KAVUMA. AGED 30 YEARS,
PUTHUSSERY HOUSE, VENGOOR P.O.,ERNAKULAM DISTRICT,
PIN CODE - 683546
14 FR. ELDHOSE V.K., AGED 39 YEARS,
VELLARINGAL HOUSE, PONJASSERY P.O., PERUMBAVOOR,
ERNAKULAM DISTRICT., PIN - 683547
15 FR. ELDHOSE NEDUMGOTTIL, AGED 54 YEARS,
NEDUNGOTTIL HOUSE, THURUTHIPPILLY, VALAYANCHIRANGARA
P.O., ERNAKULAM DISTRICT-., PIN - 683556
16 FR. JOHN JOSEPH, AGED 59 YEARS,
S/O FR. JOSEPH , PATHICKAL HOUSE, PERUMBAVOOR,
ERNAKULAM DISTRICT., PIN - 683542
17 MATHEW N ABRAHAM, AGED 74 YEARS,
S/O ABRAHAM, NEDUMPURATH HOUSE, SOUTH MAZHUVANOOR P.O.,
ERNAKULAM - 686669
18 ST. GEORGE CHAPEL (EAE)
NORTH MAZHUVANNOOR, REPRESENTED BY ITS SECRETARY ,
M.M.JOSE, NORTH MAZHUVANNOOR P.O., ERNAKULAM DISTRICT,
PIN - 686669
BY ADVS.
ROSHEN.D.ALEXANDER
SAJI VARGHESE
AMAL GEORGE
N.RAYNOLD FERNANDEZ(K/211/2000)
TINA ALEX THOMAS(K/000532/2004)
HARIMOHAN(K/000327/2018)
KOCHURANI JAMES(K/003502/2022)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/08/2024,
THE COURT ON 06/09/2024 DELIVERED THE FOLLOWING:
W.A.No.945 of 2023
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JUDGMENT
Dated this the 6th day of September, 2024 A.Muhamed Mustaque, Acg.C.J. This appeal was filed by the contesting respondent in a writ petition filed for police protection. A church dispute led to the filing of the writ petition. The writ petition was filed by Vicars and Parishoners of the St.Thomas Orthodox Syrian Church, Mazhuvannoor. They claim right to administer the church in the light of the judgment of the Apex Court in K.S.Varghese v. St.Peter's & Paul's Syrian Orthodox Church and Others [(2017) 15 SCC 333]. Learned Single Judge granted police protection noting that there exists a law and order issue and in order to administer the church, police protection is required.
2. This is a typical police protection remedy sought before this court in the light of the judgment in K.S. Varghese's case (supra). We had dismissed another challenge against the same judgment in W.A. 552/2024. There may not be much issue with regard to existence of vitiating element to disrupt normal order required to be maintained in the church.
3. Learned Senior Counsel appearing for the appellant raised a legal challenge as to the maintainability of the writ petition on the ground that the remedy available to the party is to execute the decree rather than approaching W.A.No.945 of 2023 5 2024:KER:67229 this court in writ jurisdiction.
4. A single Judge (one of us, Justice A.Muhamed Mustaque) in Marthoman Church, Mulanthuruthy and Others v. State of Kerala and Others 2020 (3) KHC 448) in paragraphs 10 and 11 held as follows:
"10. The rule of law is not just about the Government. It requires also that citizen should respect and comply with legal norms even if they disagree with them. When there is a dispute and, the conflict is resolved by judicial decision, the rule of law demands respect to the judicial decision. The Hon'ble Supreme Court judgment in K.S. Varghese case (supra) put an end to the whole controversy regarding the dispute. The resistance made before the District Court as against passing the supplementary decree shows that the Patriarch faction is not prepared to give up. The resistance has become a law and order issue. There appears to be a patronised resistance in regard to many churches as revealed from many writ petitions filed before this Court. Whether the judgment of the Hon'ble Supreme Court can be enforced through a Civil Court or not, becomes an academic question when issues boil upto such levels beyond the manageable stands of the Civil Court. The power and authority of the Civil Court to enforce the decree would exist when something remains as executable. On the declaration of law by the Supreme Court, what is expected from the Patriarch faction is its obedience of the Hon'ble Supreme Court judgment to uphold the rule of law. When the stream of law is attempted to be diverted by repeated disobedience resulting in a law and order situation, the Constitutional Court can alone render justice. There is a subtle difference between the implementation and the enforcement. Implementation is in the nature of W.A.No.945 of 2023 6 2024:KER:67229 execution which normally, the Civil Court resolves to implement its decree or order. Enforcement has different facets which take in the implementation by preventive or coercive actions or maintaining the law and order through the force of law.
11. Law and order is a matter of governance. The Civil Court has no role in itself to interfere or supervise the matter of governance. The Civil Court has only limited jurisdiction and power. It can order police assistance as an aid to execute the decree. When nothing remains as executable, the executing power of the Civil Court cannot be invoked for the police protection alone. The Constitutional Courts are not only the Courts of arbiter resolving disputes but also Courts protecting rights guaranteed to the citizen. The Constitutional Courts have a duty to maintain and uphold the rule of law. When there is a challenge to the rule of law by a citizen who is bound to obey the same, the Court can step in by invoking its power of mandamus. The Court has to consider whether any effective measures are available otherwise. If there are no other measures, this Court has to invoke its power of writ for the reasons of justice."
5. We note, this is a matter, which cannot be executed through a civil court. The issue highlighted in all these cases is with regard to law and order. Though rights of the writ petitioner rest in the judgment of the Apex Court in K.S. Varghese's case (supra), what is sought before the court in writ jurisdiction is to protect the person and property based on the right and declaration given in K.S. Varghese's case (supra). Since law and order is not W.A.No.945 of 2023 7 2024:KER:67229 a matter, which cannot be effectively dealt by a civil court, the remedy lies before this court in seeking protection. We note, often unidentifiable persons and large number of persons turn out to resist the service being provided by the faction, whose right has been declared in K.S. Vargthese's case (supra). It is in reference to paragraphs 3 and 4 of the statement filed by the learned Government pleader, which reads as follows:
"It is submitted that the St.Thomas Orthodox Syrian Church Mazhuvannoor has two chapels one is at Mangalthunada and the other is at Tattamugal. At present Fr.John Joseph Pathikal S/O Joseph Pathikkal house, Perumbavoor serves as the priest of Mangalthunada Chapel and Fr.Alisas K Eralil S/o Kuriakkose Eralil house South Mazhuvannoor serves as the Priest of Thattamugal Chapel. Both the priests are appointed by Jacobite Bishop. The services & administration of the chapels are done by Jacobite faction.
It is submitted that at present Jacobite Faction members locked the two main gates of Mazhuvannoor Church and metal bars are welded to the gate the re-enforcements are made in such a way to prevent any forceful opening of the gate by police. A 'Panthal' is also arranged inside the Church compound near the gate for organising protest against police and orthodox faction members. Around 20 to 40 youth wing members of Jacobite faction are staying inside the Church compound in turn wise to resist any sudden action by the Police."
6. We, in such circumstances, are of the view that, the learned W.A.No.945 of 2023 8 2024:KER:67229 Single Judge is justified in granting police protection. Therefore, there is no scope for interfering in this matter.
The Writ Appeal is dismissed.
Sd/-
A.MUHAMED MUSTAQUE ACTING CHIEF JUSTICE Sd/-SsdS/-d/-
S.MANU JUDGE sv