Kerala High Court
Fr. George Patlatt vs Sub Inspector Of Police on 1 October, 2014
Author: Ashok Bhushan
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937
WP(C).No. 5035 of 2016 (D)
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PETITIONER(S) :
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1. FR. GEORGE PATLATT, AGED 75 YEARS,
S/O.LATE POULOSE PALTLATT,VICAR, ST.MARY'S CHURCH,
ODAKKALY, ASAMANNOR VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT.
2. FR.THOMAS PAUL RAMBAN, AGED 43 YEARS,
S/O.LATE POULOSE MARACHERIL, ASSISTANT VICAR,
ST.MARY'S CHURCH, ODAKKALY, ASAMANNOOR VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.
BY SRI.GEORGE THOMAS (MEVADA) (SENIOR ADVOCATE)
ADVS. SRI.N.RAYNOLD FERNANDEZ
SRI.MANU GEORGE KURUVILLA
SRI.AMAL GEORGE
RESPONDENT(S) :
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1. SUB INSPECTOR OF POLICE,
OFFICE OF THE SUB INSPECTOR OF POLICE,
KURUPPAMPADY-683 545.
2. CIRCLE INSPECTOR OF POLICE,
OFFICE OF THE SUB INSPECTOR OF POLICE,
KURUPPAMPADY-683 545.
3. DEPUTY SUPERINTENDENT OF POLICE,
OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE,
PERUMBAVOOR-683 542.
4. SUPERINTENDENT OF POLICE,
RURAL, OFFICE OF THE SUPERINTENDENT OF POLICE, SH -16,
ALUVA-683 101.
5. REV.FR.OUSEPH PATHICKAL,
PATHICKAL HOUSE, PERUMBAVOOR, PIN-683 542.
..2/-
..2..
WP(C).No. 5035 of 2016 (D)
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6. SRI. CHACKO,
S/O.AVIRA, POMAKKAL HOUSE, PUNNAYAM,
ASAMANNOOR P.O., PIN-683 549.
7. REV.FR.VARGHESE THEKKEKARA,
S/O.BABY,THEKKEKARA HOUSE, NEAR KSRTC BUS SAND,
PERUMBAVOOR, PIN-683 542.
R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR
R5 BY ADVS. SRI.P.THOMAS GEEVERGHESE
SRI.TONY THOMAS (INCHIPARAMBIL)
R6 BY ADVS. SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
R7 BY SRI.N.SUKUMARAN (SENIOR ADVOCATE)
ADVS. SRI.S.SHYAM
SRI.SAJI VARGHESE KAKKATTUMATTATHIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09-03-2016, THE COURT ON 17-03-2016 DELIVERED THE FOLLOWING:
Msd.
WP(C).No. 5035 of 2016 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXT.P1: TRUE COPY OF THE PROCEEDINGS OF THE METROPOLITAN
ANKAMALY DATED 01/10/2014.
EXT.P1(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P1.
EXT.P2: TRUE COPY OF THE PROCEEDING DATED 11/01/2010.
EXT.P2(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P2.
EXT.P.3: TRUE PHOTOCOPY OF THE JUDGMENT PASSED BY
THE DISTRICT COURT, ERNAKULAM IN O.S.NO.46/1977
DATED 06/01/1988.
EXT.P.4: TRUE PHOTOCOPY OF THE JUDGMENT PASSED BY THE HIGH
COURT OF KERALA IN A.S.NO.665/1998 DATED 12/10/2015.
EXT.P5: TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT
DATED 02/02/2016.
EXT.P.5(A): TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
THE 1ST RESPONDENT DATED 02/02/2016.
EXT.P.5(B): TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
THE 2ND RESPONDENT DATED 02/02/2016.
EXT.P.5(C): TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
THE 3RD RESPONDENT DATED 03/02/2016.
EXT.P.5(D): TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
THE 4TH RESPONDENT DATED 03/02/2016.
EXT.P.6: TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 05/02/2015
PASSED BY THE HIGH COURT OF KERALA IN I.A.NO.211/2015 IN
A.S.NO.117/1998.
EXT.P7: THE TRUE PHOTOCOPY OF THE AFFIDAVIT FILED BY
FR.PAULOSE OUSEPH, IN A.S.NO.117 OF 1998, DATED 03.03.1998.
EXT.P7(A): THE TRUE PHOTOCOPY OF THE AFFIDAVIT FILED BY
FR.A.P.JACOB, IN A.S.NO.117 OF 1998, DATED 03.03.1998.
EXT.P7(B): THE TRUE PHOTOCOPY OF THE AFFIDAVIT FILED BY
FR.POULOSE ULAHANNAN IN A.S.NO.117 OF 1998,
DATED 03.03.1998.
EXT.P7(C): THE TRUE PHOTOCOPY OF THE AFFIDAVIT FILED BY MAR
THOMAS DIONYSIUS, IN A.S.NO.117 OF 1998, DATED 03.03.1998.
WP(C).No. 5035 of 2016 (D)
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EXT.P8: TRUE PHOTOCOPY OF THE JUDGMENT IN O.S.NO.40 OF 1977
DATED 06.01.1998, DISTRICT COURT, ERNAKULAM.
EXT.P9: THE PHOTOGRAPH SHOWING THE BLOCKADE CREATED BY
THE POSSE OF POLICE IN THE ROAD WITH BARRIERS WHEN
THE PETITIONERS WITH NOTICE TO THE POLICE PROCEEDED TO
THE CHURCH ON 30.01.2016.
EXT.P10: THE PHOTOGRAPH SHOWS THE PHYSICAL OBSTRUCTION TO
THE PROGRESS OF THE PETITIONERS BY THE POLICE.
EXT.P11: TRUE PHOTOCOPY OF THE JUDGMENT IN
W.P.(C).NO.25413 OF 2013 DATED 08.02.2016.
EXT.P12: TRUE PHOTOCOPY OF THE ORDER, IN SLP(C)NO.4290 OF 2016
DATED 16.02.2016.
EXT.P13: TRUE PHOTOCOPY OF THE ORDER PASSED BY THE DISTRICT
COLLECTOR DATED 19.02.2016.
EXT.P13(A): TRUE PHOTOCOPY OF THE ENGLISH TRANSLATION THE ORDER
PASSED BY THE DISTRICT COLLECTOR DATED 19.02.2016.
RESPONDENT(S)' EXHIBITS :
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EXT.R5(A): TRUE COPY OF JUDGMENT IN A.S.NO.117/1998 DATED OF KERALA
HIGH COURT.
EXT.R5(B): THE TRUE COPY OF I.A.NO.117/2016 IN O.S.NO.12/2010 ON
THE FILES OF FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM.
EXT.R5(C): TRUE COPY OF OBJECTION FILED BY RESPONDENTS IN
I.A.NO.117/2016 IN O.S.NO.12/2010 ON THE FILES OF FIRST
ADDITIONAL DISTRICT COURT, ERNAKULAM.
EXT.R5(D): TRUE COPY OF A-DIARY ENTRY OF 10.02.2015 IN O.S.NO.12/2010
ON THE FILES OF FIRST ADDITIONAL DISTRICT COURT,
ERNAKULAM.
EXT.R7(A): TRUE COPY OF THE JUDGMENT DATED 12.10.2015 IN
A.S.NO.117 OF 1998 ON THE FILES OF THE HON'BLE HIGH COURT
OF KERALA.
EXT.R7(B): TRUE COPY OF THE PLAINT IN O.S.NO.12 OF 2010 ON THE FILES
OF THE DISTRICT COURT, ERNAKULAM.
EXT.R7(C): TRUE COPY OF I.A.NO.117/2016 IN O.S.NO.12/2010
DATED 09.01.2016 ON THE FILES OF THE DISTRICT COURT,
ERNAKULAM.
EXT.R7(D): TRUE COPY OF THE MEMO SUBMITTED BY THE PETITIONERS IN
EXT.R7(C) DATED 06.02.2016.
WP(C).No. 5035 of 2016 (D)
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EXT.R7(E): TRUE COPY OF THE PETITION FILES AS O.P.NO.46 OF 2015
BEFORE THE DISTRICT COURT, NORTH PARAVOOR
DATED 26.03.2015.
//TRUE COPY//
P.S.TOJUDGE.
Msd.
ASHOK BHUSHAN, CJ
&
A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
W.P.C.No.5035 of 2016
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Dated this the 17th day of March 2016
J U D G M E N T
Shaffique, J This writ petition has been filed seeking police protection on the allegation that petitioners, who are appointed as the Vicar and the Assistant Vicar of St.Mary's Church, Odakkali, are not being permitted by respondents 5 to 7 and their men in performing their religious and other duties in the Church.
2. Petitioners submit that they were appointed by the Metropolitan of Angamali Diocese as per proceedings dated 01/10/2014 and 11/01/2010 respectively. The power has been exercised in terms of Clause 40 of the 1934 Constitution of the Malankara church. It is stated that a faction of Malankara Christians broke away in the year 1973 defying the 1934 Constitution and challenging the authority of the Catholicos who is the spiritual head. Their faction is known as Jacobites. The factional dispute had resulted in various issues and ultimately by judgment of the Apex Court in Most.Rev.P.M.A.Metropolitan W.P.C.No.5035/2016 2 and others v. Moran Mar Marthoma and Others (AIR 1995 Supreme Court 2001), it was declared that Malankara Christians are bound by the 1934 Constitution. In terms of the said Constitution, only the priests validly appointed by the concerned Metropolitan can perform religious ceremonies in the Churches. It is stated that O.S.No.46/1977 came to be filed before the District Court Ernakulam defying the 1934 constitution under the Metropolitan of Angamali Diocese. The said suit was dismissed as per the judgment dated 06/01/1998. Ext.P3 is copy of the said judgment. According to the petitioners, it was clearly observed that the consent of the plaintiff was not a pre-requisite for conducting religious ceremonies for the parishioners of the Church. The matter was carried before this Court by filing an appeal as A.S.No.665/1998. The appeal was dismissed upholding Ext.P3 judgment and based on 1934 Constitution. Ext.P4 is the said judgment which, according to the petitioners, is in tune with the judgment of the Apex Court. According to the petitioners, they alone have the right to manage the religious affairs in St.Mary's Church, Odakkaly and obstruction was being created by the private respondents. Complaints were given to the police for W.P.C.No.5035/2016 3 necessary assistance, and though Police had taken cases against the petitioners, so far, no action has been taken to provide necessary police protection. Petitioners submit that certain festival is to be conducted in the Church which is being obstructed and hence they have approached this Court seeking necessary police protection.
3. Counter affidavit is filed by the 5th respondent in which it is stated that St.Marys Jacobite Church, Odakkali was established by the Jacobite Syrian Christians of Odakkali for conducting religious services and functions in accordance with the traditions of Malankara Catholic Syrian Christians which follows the Apostolic Throne of St.Peter at Antioch in Syria. It is stated that the petitioners have no manner of right or interest to interfere in the affairs and administration of St.Mary's Church, Odakkali or its properties. It is stated that the Church and its properties belong to the parishioners of the Church and not to any Metropolitan or to the Catholicos at Kottayam. It is further stated that two civil litigations are pending between the Orthodox and Jacobite factions namely O.S.No.12/2010 which is filed by the Jacobite faction after obtaining sanction of Court under Section 92 W.P.C.No.5035/2016 4 of the Civil Procedure Code and O.P.No.46/2015 pending before the Addl.District Court, North Paravur filed by the Orthodox faction to declare their right and interest in the Church after seeking leave of this Court. It is stated that O.S.40/1977 was filed by the Orthodox faction seeking for declaration and possession of the Church and its properties. The suit was dismissed as per judgment dated 12/10/2015 in A.S.No.117/1995. It is contended that an application I.A.No.117/2015 has been filed before the Civil Court in O.S.No.12/2010 seeking for temporary injunction and seeking police protection to conduct the 'Kallittaperunal' on 12/02/2015. The Jacobite faction had opposed the said application and the same was withdrawn and thereafter the petitioners have approached this Court. In respect of O.S.No.46/1977, it is stated that it was only a suit for injunction and right in respect of the Church has not been considered in a civil suit.
4. In the counter affidavit filed, the 6th respondent had taken similar contentions and had contended that there are disputed questions of facts which are to be decided between the parties which cannot be resolved in a petition under Article 226 of W.P.C.No.5035/2016 5 the Constitution of India and that apart, the writ petition has to be rejected on account of non-disclosure of material particulars.
5. Counter affidavit has been filed by the 7th respondent also taking the very same view as that of respondents 5 and 6.
6. Petitioners have filed reply affidavit to the counter affidavits filed.
7. Heard Sri.George Thomas Mevada, learned senior counsel for the petitioners, Sri.R.D.Shenoy, learned Counsel appearing for the 6th respondent and Sri.N.Sukumaran, learned counsel appearing on behalf of the 7th respondent and Sri.C.R.Syamkumar appearing on behalf of official respondents.
8. It was argued on behalf of the petitioners that their right to manage the Church properties has already been concluded by adoption of 1934 Constitution and a different view cannot be taken by the Jacobite faction. Learned counsel also placed reliance on the affidavits filed by the appellants in A.S.No.117/1998 wherein they have declared that they shall be bound by the 1934 constitution as amended and accepted as per the judgment of the Supreme Court in Most.Rev.P.M.A.Metropolitan and others v. Moran Mar W.P.C.No.5035/2016 6 Marthoma and Others [AIR 1995 SC 2001] and clarified in AIR 1996 SC 3126 and AIR 1997 SC 1035. Once all the parties have proclaimed allegiance to the 1934 Constitution they cannot take a different approach in the matter. It is argued that the stand now taken is totally contrary to the stand taken earlier to the matter. Learned counsel argued that when the rights of parties have been finally settled by the Apex Court, there cannot be any dispute regarding the fact that the Malankara Diocese is in control of the entire Church and has the right to conduct the rituals in the Church, which cannot be obstructed by any person. Merely for the reason that certain suits are pending, does not indicate that the duly appointed Vicars cannot perform the religious rituals in the Church. As far as the claim of the Jacobite faction has been rejected by the Supreme Court, a different view cannot be taken. It is stated that unnecessary disputes are being raised in the Civil Court and unless appropriate directions are issued by this Court directing the police to interfere in the matter, the religious functions will be held up.
9. Sri.N.Sukumaran, learned senior counsel appearing for the 7th respondent submits that the petitioners have never W.P.C.No.5035/2016 7 conducted any religious activities in the Church so far. They are trying to infiltrate into the church for the conduct of prayers. None of the parishioners have permitted the petitioners to conduct the rituals. That apart, civil suits are pending wherein the right to the Church and its properties are pending consideration. The present attempt is only to have control over the Church and its properties with police assistance, which should not be permitted.
10. Sri.R.D.Shenoy, learned Counsel appearing for the 6th respondent, placing reliance on the counter affidavit, submits that the pendency of the civil suits itself is a reason to reject the request for police protection and there is concealment of particulars. Learned counsel, relied upon the judgment in Moran Mar Baselios Marthoma Mathews II and Others v. State of Kerala and Others [2007(3) KLT 349] wherein the Supreme Court, on similar situation, held that police protection cannot be the remedy, when disputed questions of facts and title are to be considered. Following paragraph is relevant which reads as under:
W.P.C.No.5035/2016 8
"12. We, therefore, are of the opinion that despite the fact that the appellants had insisted upon before the High Court for issuance of a writ or in the nature of mandamus upon the State or its officers for the purpose of grant of police protection as this Court has exercised its appellate jurisdiction under Art.136 of the Constitution of India, it can and should go into that question as well, viz. as to whether the Writ Petitioner itself could have been entertained or not, particularly, when the appeal is a continuation of the original proceedings. Learned senior counsel appearing on behalf of the respondents would moreover submit that different Benches of the High Court may take different views in regard to the interpretation of the judgments of this Court in Most Rev. P.M. A. Metropolitan (supra), and in support thereof has placed before us a judgment of the learned Single Judge of the said Court in St. George Jacobite Syrian Christian Church & Ors. v. State of Kerala & Ors., passed in Writ Petition (C) No.32114/2006, wherein a view different from the one taken by the Division Bench of the High Court of Kerala in the impugned judgment, has been taken. We, however, having regard to the opinion expressed hereinbefore and furthermore in view of the fact that, admittedly, a Letters Patent Appeal thereagainst has been filed by the aggrieved parties before the Division Bench of the Kerala High Court, do not intend to go W.P.C.No.5035/2016 9 into the said contention.
For the reasons stated hereinbefore, we are of the opinion that the High Court committed a manifest error in going into the disputed questions of title as also the disputed questions in regard to the rights of a particular group to manage the Churches, in exercise of its Writ jurisdiction, particularly, when such questions are pending consideration before competent Civil Courts. We, therefore, are of the opinion that any observation made by the High Court should not influence the Courts concerned in arriving at their independent decisions and in respect thereof, all contentions of the parties shall remain open. We are making these observations, particularly in view of the fact that even a large number of persons who have filed different suits in different Courts of law were not parties before the High Court in the Writ Petition and thus any observation and findings of the High Court would otherwise also not be binding on them.
It must be clarified that we have expressed no opinion on the merit of the issue pending before the Civil Courts.
The appeals are disposed of accordingly. Application for impleadment is dismissed. "
11. Perusal of the records would show that O.S.No.40/1977 was filed before the First Additional District Court, Ernakulam by W.P.C.No.5035/2016 10 Rev.Fr.Tharian and Others seeking for a declaration for a permanent prohibitory injunction in relation to St.Mary's Church, Odakkali. The suit is filed inter alia contending that Angamali Diocese Metropolitan removed defendants 1 and 2 as Vicar and Priests of the Church, that the first plaintiff has right to conduct all the religious worship in the church and functioning as Vicar and to restrain defendants and others from obstructing the functioning of the first plaintiff as Vicar. Though the suit was decreed, in an appeal filed as A.S.No.117/1998, this Court had set aside the said judgment on the ground that no leave was obtained under Section 92 of the Code of Civil Procedure. Pursuant to the same, O.P.No.46/2015 was filed under Section 92 of the C.P.C seeking for sanction to file the suit and the reliefs prayed for as under:
"A. To declare that the St.Mary's Orthodox church Odakkali and its assets described in the plaint schedule are to be administered under the constitution of the Malankara Orthodox Syrian Church originally passed on 26.12.1934 and was amended subsequently under the Metropolitans, Priests and other religious dignitaries and office bearers appointed and functioning under the said constitution.
B. Restraining Respondent Nos.2 to 5, their W.P.C.No.5035/2016 11 supporters and partisans by a permanent prohibitory injunction from obstructing in any manner whatsoever second respondent vicar or other dignitaries or persons appointed under the Malankara Church constitution from conducting religious services or from exercising their ecclesiastical and other functions in the plaint church.
C. Directing accounts and enquiries. D. Directing respondents 2 to 6 to pay the cost of the suit.
E. Granting such other reliefs as may prayed and deemed necessary for the ends of justice in accordance with Sec.92(1)(h)."
That apart, O.S.No.12/2010 is pending consideration before the District Court, Ernakulam wherein the reliefs sought for are as under:
"1. Declare that the Odakkaly St.Mary's Church is a parish church of the Jacobite Syrian Church associated to the Jacobite Syrian Christian Association administered by its Constitution adopted in the meeting of the Jacobite Syrian Christian Association held on 6.7.2002, by plaintiffs 1 to 3 and their successors in office,
2. Declare that the judgment and decree in OS No.40/1977 is not binding on the Odakkaly St.Mary's Church, its assets, its institutions and W.P.C.No.5035/2016 12 parishioners,
3. Permanent injunction restraining the defendants 1 to 4, 8 to 11, their successors in office, agents, men from interfering with the management, administration, conduct of religious services in the plaint church by the plaintiffs 1 to 3 and their successors in office in accordance with the Constitution of the Jacobite Syrian Christian Association,
4. Reliefs and Costs."
12. Learned senior counsel appearing for the petitioners however submits that in respect of St.Peters and ST.Paul's Orthodox, Kottayam, though this Court granted police protection as per judgment dated 08/02/2016 in W.P.C.No.2541/2013, Supreme Court directed the District Collector to make an appropriate arrangement in terms of time/day in which both factions of the Church can conduct the services within the Church premises and arrangement had been entered into on 19/02/2016. It is stated that atleast such an arrangement has to be made in the present matter.
13. But the facts as revealed and as borne out from the records indicate that the parties are at loggerheads on account of W.P.C.No.5035/2016 13 the factional dispute. One faction claims right in respect of the Church and its properties and the other faction claims right to administer and manage the properties. As matters stand today, the petitioners' faction is not conducing any rituals presently. Under such circumstances, when the contentious issues between the parties are pending consideration before the District Court, it is appropriate for the parties to approach the District Court and seek necessary directions. It is true that the Supreme Court had declared that the 1934 Constitution applies. But the question is regarding the right to conduct rituals in a church which is claimed to be the property of the parishioners of one faction.
14. Having regard to the aforesaid factual situation and the fact that suits are pending before the District Court, we do not think that we will be justified in directing the police to interfere at this stage of the proceedings. Police cannot dwell upon such issues and arrive at a conclusion. It is open for the parties to approach the Civil Court and seek necessary reliefs including police protection.
In the said circumstances, we do not find any reason to issue any direction, as prayed for and accordingly, the writ petition is W.P.C.No.5035/2016 14 dismissed, however reserving liberty to the petitioners to approach the Civil Court for necessary reliefs.
(sd/-)
(ASHOK BHUSHAN, CHIEF JUSTICE)
(sd/-)
(A.M.SHAFFIQUE, JUDGE)
True Copy PA to Judge
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