Kerala High Court
St.George Tabore Church vs The State Of Kerala on 17 December, 2020
Equivalent citations: AIRONLINE 2020 KER 1420
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942
WP(C).No.11786 OF 2020(W)
PETITIONERS:
1 ST.GEORGE TABORE CHURCH,
PEECHANIKKADU, PULIYANAM P.O., PIN-683572, ANGAMALY
VILLAGE, ALUVA TALUK, REPRESENTED BY ITS TRUSTEE,
K.M.ELDHO, AGED 53 YEARS, S/O.MATHEW, KAIPARAMBATTU
HOUSE, PEECHANIKAD KARA, PULIYANAM P.O., PIN-683572,
ANGAMALY VILLAGE, ALUVA TALUK.
2 FR.T.V.ELDHOSE,
AGED 52 YEARS
S/O.T.V.VARGHESE, THELAPPILLY HOUSE, CHIRANGARA KARA,
KORATTY EAST P.O., PIN-680308, KIZHAKKUMURI VILLAGE,
CHALAKKUDY TALUK, THRISSUR DISTRICT.
3 RAJU VARGHESE,
AGED 61 YEARS
S/O.VARKEY PILLAI, KAIPPARAMBATT HOUSE, PEECHANIKADU
KARA, PULIYANAM P.O., PIN-683572, ANGAMALY VILLAGE,
ALUVA TALUK.
4 M.P.MATHAI,
AGED 67 YEARS
S/O.POULOSE, MOOLAN HOUSE, PEECHANIKADU KARA,
PULIYANAM P.O., PIN-683572, ANGAMALY VILLAGE, ALUVA
TALUK.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SMT.HANI P.NAIR
SRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SRI.SACHIN JACOB AMBAT
SHRI.HARIKRISHNAN S.
W.P.(C)No.11786 of 2020 2
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR, ERNAKULAM,
CIVIL STATION, KAKKANADU-682031.
3 THE STATE POLICE CHIEF,
POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695001.
4 THE DISTRICT POLICE OFFICE (RURAL),
SH 16, OPP. POWER HOUSE, ALUVA, KERALA-683101.
5 THE DEPUTY SUPERINTENDENT OF POLICE,
POWER HOUSE JUNCTION, SUB JAIL ROAD, PERIYAR
NAGAR, ALUVA, KERALA-683101.
6 THE STATION HOUSE OFFICER,
ANGAMALY POLICE STATION, NATIONAL HIGHWAY 47,
ANGAMALY-683572.
7 ELDHO P.V.,
AGED 50 YEARS
S/O.VARGHESE, PARREKATTIL HOUSE, PULIYANAM KARA,
PULIYANAM P.O., PARAKADAVU VILLAGE, ALUVA TALUK,
PIN-683572.
8 VARGHESE A.P.,
AGED 52 YEARS
S/O.PAULOSE, PAINADATH AYYAMPILLY HOUSE,
PULIYANAM KARA, KARUKUTTY VILLAGE, KARUKUTTY
P.O., ALUVA TALUK, PIN-683576.
9 FR.K.T.YACOB,
AGED 63 YEARS
S/O.TARU, KOORAN THAZATHU VEETTIL, PUTHAMKUTTY
POST, EDALAKKAD, PIN-686693.
R1-6 BY SRI.K.V.SOHAN, STATE ATTORNEY
R7-8 BY ADV. SRI.DINESH R.SHENOY
R7-8 BY ADV. SRI.EBIN MATHEW
R7-8 BY ADV. SRI.P.ROHIT PREMANANDAN SHENOY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-
12-2020, THE COURT ON 17-12-2020 DELIVERED THE FOLLOWING:
W.P.(C)No.11786 of 2020 3
"CR"
JUDGMENT
The 1st petitioner is St.George Tabore Church, Peechanikkadu, which is stated to be a constituent Parish Church of Malankara Orthodox Syrian Church within the Diocese of Anagamaly, which is represented in this proceedings by one K.M.Eldho, who is stated to be its trustee. The 2 nd petitioner is stated to be the Vicar appointed by the Diocesan Metropolitan of the Diocese of Angamaly in accordance with the 1934 Constitution of Malankara Church and petitioners 3 and 4 are stated to be the parishioners of 1 st petitioner Church. The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 1 to 6 to afford adequate and effective police protection to the 2 nd petitioner to conduct religious services in the 1st petitioner Church, its cemetery and chapels and petitioners 3 and 4 and other parishioners of the 1 st petitioner Church in participating such religious services without any let, hindrance or obstruction from respondents 7 to 9, their men, agents or followers and anybody claiming under them in the interest of justice. The further relief sought for is for a writ of mandamus commanding respondents 1 to 6 to act strictly adhering W.P.(C)No.11786 of 2020 4 to the decision of the Apex Court in K.S. Varghese v. St. Peter's and St. Paul's Syrian Orthodox Church [2017 (15) SCC 333] and Ext.P4 judgment of the Principal Sub Court, North Paravur dated 13.05.2020 in O.S.No.92 of 2018 to ensure that no priest or prelate appointed otherwise than in accordance with Malankara Church Constitution of 1934 conduct any sacraments including Holy Mass in the 1st petitioner Church, its chapels, cemetery or the appurtenant buildings thereto.
2. On 16.06.2020, when this writ petition came up for consideration, the learned State Attorney took notice for respondents 1 to 6. Respondents 7 and 8 entered appearance through counsel and this Court issued notice before admission to the 9th respondent. While listing the writ petition on 13.07.2017, this Court granted an interim order as prayed for, i.e., an order directing respondents 2 to 6 to afford adequate and effective police protection to the 2nd petitioner to conduct religious sacraments and other religious functions in the 1 st petitioner Church, its chapels, its cemetery and appurtenant buildings and petitioners 3 and 4 and other parishioners of the 1st petitioner Church in participating in such religious services without any let, hindrance or obstruction from respondents 7 to 9, their men, agents or followers or anybody W.P.(C)No.11786 of 2020 5 claiming under them, ensuring that no priest or prelate appointed otherwise than in accordance with Malankara Church Constitution of 1934 conduct any sacraments therein.
3. On 13.07.2020, when this writ petition came up for admission, this Court admitted the matter on file and posted the same along with connected matters. On 29.07.2020, this Court noticed that when this writ petition came up for consideration before the Bench on 22.07.2020, the interim order was not extended. On 22.06.2020, respondents 7 and 8 have filed I.A.No.1 of 2020 seeking an order to keep in abeyance the interim order dated 16.06.2020. They have also filed I.A.No.2 of 2020 seeking an order to vacate the said interim order. On 04.08.2020, they have filed a counter affidavit opposing the reliefs sought for in this writ petition. The said counter affidavit was followed by an additional counter affidavit by respondents 7 and 8, which was filed on 11.08.2020.
4. On 17.08.2020, the petitioners have filed I.A.No.4 of 2020 seeking an order to accept Exts.P11 and P12 as additional documents. The document marked as Ext.P11 is a certified copy of the list of 1064 churches submitted along with O.S.No.4 of 1979 and that marked as Ext.P12 is a copy of the list of churches W.P.(C)No.11786 of 2020 6 prepared for the purpose of Malankara Association under the directions of the Apex Court.
5. Heard the learned counsel for the petitioners, the learned State Attorney appearing for respondents 1 to 6 and also the learned counsel for respondents 7 to 9.
5.1. The learned Senior Counsel for the petitioners would contend that the issue raised in this writ petition is squarely covered by the judgment of the Apex Court in K.S. Varghese and the judgment of this Court in Marthoman Church Mulanthuruthy and others v. State of Kerala and others [2020 (3) KHC 448], which is affirmed by the judgment of the Apex Court in Mathai Vaniyath and others v. Marthoman Church Mulanthuruthy and others [order dated 22.09.2020 in S.L.P.(C)No.11212 of 2020]. The learned Senior Counsel would point out that the 1st petitioner Church is serial No.778 in the list of 1064 Churches submitted in O.S.No.4 of 1979, which culminated in the judgment of the Apex Court in P.M.A. Metropolitan. The 1st petitioner Church also participated in the Malankara Association convened as per the orders of the Apex Court, as evident from Ext.P12 list of churches. In the said list, the 1 st petitioner Church is serial No.37, under Angamaly Dioceses.
W.P.(C)No.11786 of 2020 7
5.2. Per contra, the learned counsel for the party respondents would contend that Ext.P4 judgment of the Principal Sub Court, North Paravur in O.S.No.92 of 2018 has not attained finality, which is under challenge in R.F.A.No.120 of 2020 pending before this Court. Ext.P3 order of this Court in F.A.O.No.67 of 2019 is also under challenge in S.L.P.(C)No.117 of 2020 pending before the Apex Court. The learned counsel for the party respondents made an attempt to challenge the findings in Ext.P4 judgment in O.S.No.92 of 2018 by contending that the 1st petitioner Church, which has been constituted through Ext.R7(b) gift deed No.1997 of 1905 of Sub Registrar Office, Alangad, is a Trust in favour of the Parish. The 1st petitioner Church and its properties are neither Badrasana property nor property belonging to either faction of Malankara Church, i.e., Orthodox or Patriarch. The learned counsel for the party respondents contended that O.S.No.92 of 2018 is bad for non-joinder of necessary parties and it is also barred by res judicata under Order II Rule 2 and Order IX Rule 9 of the Code of Civil Procedure, 1908 on account of the dismissal of O.S.No.193 of 2002 by the Principal Sub Court, North Paravur and A.S.No.36 of 2007, by Ext.R7(c) judgment of the Additional District Court, North Paravur. The learned counsel would also point out the dismissal of W.P.(C)No.11786 of 2020 8 O.S.No.281 of 1998 by the Munsiff's Court, North Paravur and A.S.No.61 of 2004 by the Additional Sub Court, North Paravur for non-prosecution, by Ext.R7(d) judgment dated 03.12.2008. The learned counsel for the party respondents and also the learned State Attorney would contend that writ of mandamus cannot be used to enforce the judgment of the Apex Court so also to enforce supplementary decree passed by the District Court. The decree of the Apex Court can only be executed in a manner provided in the Supreme Court (Decrees and Orders) Enforcement Order, 1954.
6. Going by the averments in the writ petition, the 1 st petitioner Church is a constituent Parish Church of Malankara Orthodox Syrian Church coming within the Diocese of Angamaly, which is governed by the 1934 Constitution of Malankara Church. The inter se dispute between the parishioners in Malankara Church is now settled by the decisions of the Apex Court in Moran Mar Baselios Catholicos v. Thukalam Paulo Avira [1958 KLT 731]; PMA Metropolitan v. Moran Mar Marthoma [(1995) Supp. 4 SCC 286] and; K.S. Varghese v. St. Peter's and St. Paul's Syrian Orthodox Church [2017 (15) SCC 333]. The law laid down in K.S. Varghese was reiterated and upheld by a Three- Judge Bench of the Apex Court in Mathews Mar Hoorilos v. W.P.(C)No.11786 of 2020 9 Pappi [(2018) 9 SCC 672]. The document marked as Ext.P1 is the minutes of the Managing Committee held on 9 th and 10th August, 2002, whereby the Managing Committee requested the Malankara Metropolitan and Catholicos to issue Kalpanas appointing the Diocesan Metropolitans as decided therein. The Catholicos-cum- Malankara Metropolitan, on the recommendation of Executive Committee and on the advice of the Eposcopal Synod, appointed Diocesan Metropolitans. The Catholicos and Malankara Metropolitan of Malandara Orthodox Syrian Church appointed H.G.Yuhanon Mar Polycarpos as the Diocesan Metropolitan of the Diocese of Angamaly as per Kalpana No.110/2009 dated 06.03.2009. As far as the 1st petitioner Church is concerned, O.S.No.92 of 2018 was filed before the Principal Sub Court, North Paravur, as a representative suit instituted under Order I Rule 8 of Code of Civil Procedure. In that suit I.A.No.1742 of 2018 was filed for temporary injunction, which was dismissed by order dated 13.03.2019, against which F.A.O.No.67 of 2019 was filed before this Court. This Court by Ext.P3 order dated 04.12.2019 allowed that appeal. Thereafter, the Sub Court, North Paravur decreed O.S.No.92 of 2018 by Ext.P4 judgment dated 13.05.2020.
W.P.(C)No.11786 of 2020 10
6.1. The document marked as Ext.P5 is the Kalpana dated 10.07.2018 of the Diocesan Metropolitan, H.G.Yohanon Mar Polycarpos, whereby the 2nd petitioner was appointed as the Vicar of the 1st petitioner Church. However, the 9th respondent claims as a Priest of 2002 Sabha and claims right to conduct religious services in the church without any authority in violation of Ext.P4 judgment in O.S.No.92 of 2018. Therefore, the 2nd petitioner submitted Ext.P6 representation dated 29.05.2020 before the 6 th respondent Station House Officer, Angamaly Police Station, appraising them about Ext.P4 judgment, with copy to respondents 2 and 3, namely, the District Collector, Ernakulam and the State Police Chief respectively. After Ext.P6, the petitioners 2 to 4 along with Parishioners went to the 1st petitioner Church, on 07.06.2020, but they were obstructed by respondents 7 to 9, their men and agents and they were physically attacked.
6.2. The Police registered Crime No.900 of 2020 of Angamaly Police Station under Sections 143, 144, 147, 149, 188, 427, 323, 324 of Indian Penal Code and Sections 4(2)(f) and 5 of the Kerala Epidemic Diseases Ordinance, 2020 as against 7 persons and 22 identified known persons. Ext.P7 is a copy of the FIR in Crime No.900 of 2020. Alleging that, on 05.06.2020, the men and agents W.P.(C)No.11786 of 2020 11 of respondents 7 to 9 broke open the offertory of the Chapel of the 1st petitioner Church, the 2nd petitioner submitted Ext.P8 complaint before the 6th respondent. In the writ petition it is alleged that after Ext.P4 judgment, respondents 7 to 9 and their men, who are not parishioners of the 1st petitioner Church and who are members of Yacobaya Suriyani Christiani Sabha, have been protesting in the church to create a grim and gruesome atmosphere so as to deter the 2nd petitioner from conducting religious services and other parishioners of the 1st petitioner church and the faithful including petitioners 3 and 4, from attending such religious services in the 1 st petitioner Church. Due to such obstruction and belligerent attitude of the respondents 7 to 9 and their followers, the 2 nd petitioner, who is the lawful Vicar of the 1 st petitioner Church, is being prevented from conducting religious services in the church since 13.05.2020 and the faithful Parishioners of the church are physically prevented from attending the religious services since then. In Civil Appeal No.7115 of 2019, which is one relating to St.Mary's Orthodox Syrian Church, Kandanad, the Apex Court while disposing the appeal has held that all civil and judicial authorities shall act in accordance with the judgment and the order in K.S. Varghese. The 2nd petitioner submitted Ext.P6 representation W.P.(C)No.11786 of 2020 12 before respondents 1 to 6, along with Ext.P4 judgment in O.S.No.92 of 2018, with a request to render adequate and sufficient police protection to the petitioners and others, in compliance with the said judgment.
6.3. In the writ petition, it is alleged that, despite Ext.P6 representation, respondents 1 to 6 failed to grant police protection, but at the same time allowed violation of the judgment of this Court and also the Apex Court to continue. In the writ petition, it is alleged that though respondents 7 to 9 and their men committed theft of the valuables inside the church, the police did not register any case, though a petition was submitted. Relying on Ext.P9 judgment dated 18.03.2020 of a Division Bench of this Court in W.A.No.320 of 2020 and Ext.P10 judgment dated 18.05.2020 in W.P.(C)No.33316 of 2019 - Marthoma Church Mulanthuruthy and others v. State of Kerala and others [2020 (3) KHC 448], the petitioners would contend that in similar matters, this Court has already granted police protection to the petitioners therein. In the writ petition, it is alleged that respondents 7 to 9 and their followers, who belong to the 2002 Sabha, had openly declared that they will not abide by Ext.P4 judgment and this has been demonstrated since by various illegal and criminal acts W.P.(C)No.11786 of 2020 13 detailed in the writ petition. The 2 nd petitioner and other parishioners are physically prevented from entering into the church to conduct religious services and to participate in religious services. Therefore, respondents 1 to 6 are to be directed to implement the judgment of the Apex Court.
6.4. The petitioners would point out that in view of Articles 141, 142 and 144 of the Constitution of India, the orders passed by the Apex Court shall be enforceable and binding on all authorities including courts. Though the petitioners have requested respondents 1 to 6 to render adequate and necessary police protection, nothing being done by the authorities. In such circumstances, the petitioners have moved this writ petition, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking the aforesaid reliefs.
7. A counter affidavit has been filed by respondents 7 and 8 wherein it is contended that this writ petition is not maintainable in the light of the law laid down by the Apex Court in State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006], Thansingh Nathmal v. Superintendent of Taxes, Dhubri [AIR 1964 SC 1419], P.R. Murlidharan v. Swami Dharmananda Theertha Padar [(2006) 4 SCC 501], etc. The petitioners have an effective alternate W.P.(C)No.11786 of 2020 14 remedy of filing an execution petition before the civil court to enforce their decree, as per law, and they have deliberately rushed to this Court to overreach the civil court, which is not permissible in law. The writ petition is vitiated by the wilful and deliberate suppression of facts and material documents. Ext.P4 judgment in O.S.No.92 of 2018 of the Principal Sub Court, North Paravur has not attained finality and it is under challenge before this Court in R.F.A.No.120 of 2020, which is pending consideration, awaiting lower court records. The allegations made against respondents 7 and 8 in the writ petition and exhibits produced therewith are mutually contradictory and conflicting. Therefore, there is no cause of action at all for this writ petition. The representations made by the 2nd petitioner are only applications made on the basis of apprehensions, which do not warrant any interference by this Court in the issues. The remedy of filing an execution petition is clearly available to the petitioners, if they want any enforcement of the decree. It is an erroneous decree, which is under challenge in R.F.A.No.120 of 2020. The action on the part of the petitioners to rush to this Court, without even trying to resort to the legal remedies guaranteed to them under the Code of Civil Procedure, even when they seek for relief upon a judgment and decree of the W.P.(C)No.11786 of 2020 15 civil court, is itself an abuse or misuse of the process of the court, which is liable to be discouraged and deprecated. This Court is being called upon to hold that remedies provided under the law of the land made by the Legislature need not be resorted to and can be ignored or bypassed on the mere whims of one of the parties to the dispute. On the merits of the case, respondents 7 and 8 would contend that they have been arrayed as defendants 3 and 4 in O.S.No.92 of 2018 filed by petitioners 2 to 4 herein, under Section 92 of the Code of Civil Procedure, falsely and wrongly alleging that St.George Tabore Jacobite Syrian Church is a constituent church of the Malankara Orthodox Syrian Church and therefore, it is liable to be governed under the provisions of the 1934 Constitution. The 1st petitioner Church, which was arrayed as the 1 st defendant in the suit, was represented in the suit by an incompetent person, as it was the fraudulent and collusive suit and petitioners 2 to 4 wanted to prevent the actual Trustees of the church from coming on record or to represent the church or place the real facts before the court. Through such manipulation, they managed to keep the elected Trustees of the church away from the Court. Respondents 7 and 8 filed a written statement pointing out that the suit is bad for non joinder of necessary parties, that the church is not represented in W.P.(C)No.11786 of 2020 16 the proceedings, as the person, Sri.K.M.Eldho, belongs to the petitioners' own faction, who is not competent to represent the church, who had never been or had acted as a Trustee of the church. A copy of the plaint in O.S.No.92 of 2018 is produced along with the counter affidavit as Ext.R7(a) and a Gift Deed No.1997 of 1905 of Sub Registrar Office, Alangad, as Ext.R7(b).
7.1. Respondents 7 and 8 contended that in K.S. Varghese, the Apex Court clearly held that the 1934 constitution does not create, declare, assign, limit or extinguish, whether in present or future, any right or title interest in the Malankara Church and only provides a system of administration. No title documents in the nature of Ext.R7(b) Gift Deed, which is a document creating Trust in case of the 1st petitioner Church, was present or was considered in K.S. Varghese. The arguments in that case were on the basis of the 2002 Constitution and the administrative schemes in the Udampadies and since none of those are documents of title or of creation of Trust, the judgment was granted in favour of the Catholicos claiming under the 1934 Constitution. As against Ext.P3 order of this Court in F.A.O.No.67 of 2019, S.L.P.(Civil)No.117 of 2020 has been filed, which is pending before the Apex Court. The 1st petitioner Church never participated in the election held in 2002 W.P.(C)No.11786 of 2020 17 and was not issued with any notice and not raised any contentions on the basis of 2002 Constitution. Ext.P1, which purports to be the typed copy of minutes of Malankara Orthodox Syrian Church, is highly doubtful. It does not contain any reference to the 1 st petitioner Church or any of its Trustees or Priests, none of whom were involved therein, which itself is a matter to be proved by evidence before the competent civil court. Exts.P2 and P5 are also similar documents, which are not produced before the civil court in O.S.No.92 of 2018 or proved as per law.
7.2. One of the specific contentions raised in the counter affidavit filed by respondents 7 and 8 is that Exts.P6 to P8 do not provide any cause of action to the petitioners for filing or maintaining a writ petition of this nature. Exts.P6 and P8 do not contain any allegations in the nature of the averments in the writ petition, which are totally different. They seem to be in the nature of petitions seeking enforcement of the civil court decree in O.S.No.92 of 2018 only and do not contain the allegations giving rise to any cause of action to file a writ petition for police protection. Ext.P7 is based on a complaint by a totally stranger, against others in respect of an incident in which none of the party respondents are involved. This incident is not even mentioned in W.P.(C)No.11786 of 2020 18 the writ petition. Therefore, respondents 7 and 8 would contend that the petitioners have no cause of action for maintaining this writ petition. Exts.P9 and P10 judgments are totally inapplicable to the facts of the case, as both decisions are rendered in the factual background of several orders of the civil court in the first instance and incidents of obstructions and taking law in their own hands by the respondents therein, in violation of the orders by the civil court, including even orders by the civil court themselves to grant police protection, on the basis of its earlier orders. These decisions were rendered only on the facts of those cases and the dicta in those decisions will not apply to the present case, where a Regular First Appeal is pending before this Court against Ext.P3 judgment in O.S.No.92 of 2018 and a Special Leave Petition is pending before the Apex Court against Ext.P4 order in F.A.O.No.67 of 2019. Unlike in the earlier cases, Ext.R7(b) registered document of title in relation to the 1st petitioner Church was produced before the civil court, which was not even considered, much less adjudicated, which points a totally different legal and factual situation, which requires to be considered and decided only by concerned civil court. Therefore, the petitioners are not entitled for any of the reliefs sought for in this writ petition.
W.P.(C)No.11786 of 2020 19
7.3. On 11.08.2020, respondents 7 and 8 have filed an additional counter affidavit, contending that the reliefs sought for in this writ petition are on the basis of Ext.P4 judgment in O.S.No.92 of 2018. The trial court passed the judgment without permitting respondents 7 and 8 to adduce evidence and without even looking into the pleadings properly. O.S.No.92 of 2018 is barred by res judicata under Order II Rule 2 and Order IX Rule 9 of the Code of Civil Procedure. The petitioners herein had earlier filed O.S.No.193 of 2002 before the Principal Sub Court, North Paravur and that suit was dismissed and the appeal was also dismissed by Ext.R7(c) judgment. Another suit, namely, O.S.No.281 of 1998 filed by the petitioners seeking the very same relief was also dismissed and the appeal filed before the Additional Sub Court, North Paravur was dismissed for non-prosecution by Ext.R7(d) judgment. Exts.R7(c) and R7(d) judgments have become final, since the petitioners have not preferred any appeal or petition for restoration under Order IX Rule 9 of the Code of Civil Procedure, till now. The provisions of the Code of Civil Procedure as to non joinder and with regard to trial also are completely violated and deliberately ignored by the court below. Only to avoid and forestall all legal defence which would be available to them, if an execution petition is filed, and also to W.P.(C)No.11786 of 2020 20 defeat and bypass them in the regular first appeal, which has already been filed before this Court, the petitioners have filed this writ petition, seeking police protection.
8. The perpetual fight between the Patriarch faction and the Catholicos faction for managing the affairs of Malankara Orthodox Syrian Church and for control of spiritual and temporal management of affairs of the Parish Churches culminated in the judgment of the Apex Court in K.S. Varghese. The said decision arises out of three original suits filed under Order I, Rule 8 and Sections 26 and 92 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'), for control of spiritual and temporal management of the affairs of three Parish Churches, namely, Kolenchery Church, Varikoli Church and Mannathur Church.
8.1. The appeals relating to Kolencherry Church arose out of a suit filed by the Patriarch faction to declare that Kolencherry Church (1st defendant Church) its assets, including the educational institutions are liable to be administered only in accordance with Udampady executed on 30.12.2013; to settle a scheme for administration of the Church and its assets; to appoint a Receiver, conduct elections after preparing proper voters list irrespective of their factional affiliations and to entrust management to them; and W.P.(C)No.11786 of 2020 21 for a permanent injunction restraining the 3rd defendant from receiving the key of the Church.
8.2. The appeals relating to Varikoli Church arose out of a suit filed by the Catholicos faction to declare that Varikoli Church (1st defendant church) is governed by the 1934 Constitution as upheld by the Apex Court and defendants 2 and 3 have no right to claim the status of trustees of the Church; for a permanent prohibitory injunction to restrain defendants 2 and 3 from functioning as trustees of the Church; and for a mandatory injunction directing the 4th defendant to call for immediate pothuyogam of the 1st defendant Church and to hold election of new Managing Committee including trustees and Secretary in accordance with the 1934 Constitution. In the said suit, defendants 13 to 15 raised a counter claim to cause a referendum to ascertain the allegiance of the Parishioners of the 1 st defendant church; to declare that the Church and its assets are to be governed in accordance with the faith and will professed by majority of the Parishioners of the Church; to pass a final decree declaring that the Church and its assets be administered in accordance with the decision of majority of the Parishioners; and permanent injunction against the 3rd defendant, his agents and religious dignitaries and W.P.(C)No.11786 of 2020 22 those who are not accepting spiritual supremacy of Patriarch of Antioch and All the East.
8.3. The appeals relating to Mannathur Church arose out of a suit filed by the Catholicos faction to declare that Mannathur Church (1st defendant Church) is administered by the 1934 Constitution; to declare that defendants 3 to 5 have no right or authority to act as its trustees; permanent prohibitory injunction against defendants 3 to 5 from functioning as its trustees; to direct the 2nd defendant to call general body for holding elections; and injunction against changing the name of the 1 st defendant Church.
8.4. In K.S. Varghese the Apex Court noticed perpetual fight between the Patriarch faction and the Catholicos faction for managing the affairs of Malankara Church and for control of spiritual and temporal management of affairs of the Parish Churches. Before the Apex Court it was contended that the judgment in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma [1995 Supp (4) SCC 286] has no binding effect. It would be having only the evidentiary value under Section 13 of the Indian Evidence Act, 1872. Repelling the said contention, the Apex Court held that, the finding in the 1995 judgment, which operates as res judicata is about the binding nature of the 1934 Constitution W.P.(C)No.11786 of 2020 23 on the Parishioners and Parish Churches. The Court has made an exception under the aforesaid judgment with respect to Knanaya Church. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. The 1995 judgment cannot be misconstrued so as to confer the aforesaid right upon the Parishioners. The 1995 judgment is clear, unequivocal and unambiguous with respect to binding nature of the 1934 Constitution.
8.5. In K.S. Varghese it was contended that the Parish Churches, even after the 1934 Constitution, can decide to make their own Constitution in the exercise of their fundamental right to freedom of religion under Article 25 of the Constitution of India, so as to follow the faith of spiritual supremacy of the Patriarch. Repelling the said contention, the Apex Court opined that, it would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a system of management, and the spiritual aspect which has been claimed under the guise of spiritual supremacy, is an effort to illegally take W.P.(C)No.11786 of 2020 24 over the management of the Churches by rival factions in derogation of delegation of powers. The power with respect to Orthodox Syrian Church of the East is the Primate, i.e., Catholicos. Though the Primate of the Orthodox Syrian Church is the Patriarch of Antioch, certain spiritual powers have also been vested in Malankara Metropolitan, as per Section 94 of the 1934 Constitution. The prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan subject to provisions of the Constitution and under the guise of spiritual supremacy an effort is being made to obtain the appointments of Vicars and Priests as parallel authorities so as to manage the churches and to render religious services under the guise of Patriarch. On the other hand, there are already Vicars and other authorities appointed as per the 1934 Constitution. Thus, under the garb of spiritual supremacy which had reached a vanishing point due to the establishment of Catholicos and Kalpana, and the 1934 Constitution which has been accepted and is binding, a parallel system of governance of churches would not be in the interest of the church and would destroy it.
W.P.(C)No.11786 of 2020 25
8.6. In K.S. Varghese it was contended that, in the 1995 judgment, the ex-communication of the Catholicos was held to be invalid since there was no permissible or relevant ground for the same. Thus, the supremacy of Patriarch cannot be denied by Catholicos group. Such a denial would alter the fundamental faith of the Patriarch followers who have been forced to form their own association for safeguarding their spiritual and religious interests. The Apex Court noticed that the discussion which has been made in the 1995 judgment is too elaborate and is based primarily on various historical facts and background which clearly indicate that the Patriarch at no point of time had exercised temporal control and it was considered necessary to establish the office of the Catholicos so as to manage the Malankara Church, which is a division of the Orthodox Syrian Church. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Church is the Catholicos. It is apparent from Kalpana's, establishment of the office of Catholicos and other historical facts discussed in the judgments referred to in the 1995 judgment that once having created the office, it is not the plea of waiver or abandonment but the Kalpana issued by the Patriarch is binding upon him also. Thus it is a positive act and once W.P.(C)No.11786 of 2020 26 having done so, the Patriarch is bound by it and cannot wriggle out of it and make the entire Parish Church system topsy-turvy. Thus the Three-Judge Bench decision (the 1995 judgment) cannot be said to be contrary to the Four-Judge Bench decision in Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd. [AIR 1953 SC 98] but on a closer scrutiny, Sha Mulchand does not buttress the plea of the appellants but negotiate against it. Too much cannot be made out of the observations made by the Court that the Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church but the fact that remains is that it has reached a vanishing point and the Church has to be managed as per the historical background, in accordance with the 1934 Constitution which has also the force behind it of the Patriarch himself, in the form of Kalpana.
8.7. In K.S. Varghese the Apex Court found that the Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. They have to give equal importance in the matter of management of the 1934 Constitution and cannot be permitted to commit regular breach and devise ways to circumvent the judgment of the Court by one way or the other and under the garb of spiritual fight wrest the temporal control of W.P.(C)No.11786 of 2020 27 the Churches. That the spiritual power of the Patriarch has reached to a vanishing point, has to be given the full meaning and it cannot mean that the powers can be exercised under the umbrella of spirituality to interfere in the administration of the Church and creating a parallel system of appointing Vicars and Priests, etc., which will paralyse the functioning of the Churches for which they have been formed and it would be against the very spirit of creation of trust from time immemorial which inheres the concept that once a Trust always a Trust. No person under the guise of spiritual faith can be permitted to destroy a system which is prevailing for the management of such Churches and go on forming Constitution as per his will time and again. There is no need in case of any such Constitution as is framed in the year 2002. Once any Parishioner wants to change the 1934 Constitution, it is open to them to amend it as per the procedure. It is right that the 1934 Constitution therefore is not a Bible or Holy book of Quran or other Holy books which cannot be amended. The 1934 Constitution has been amended in the form of bye-laws or regulations applicable for governance of Parish Churches a number of times, and it can still be amended to take care of the legitimate grievances, if any, but W.P.(C)No.11786 of 2020 28 there appears to be none for which the fight has been going on unabated in the instant cases.
8.8. In K.S. Varghese, it was contended that, Parishioners have a right to follow their own faith under Article 25 of the Constitution of India and that the Preamble to the Constitution guarantees the liberty of thought, expression, belief, faith, and worship. Those who believe in apostolic succession through St. Peter forms one denomination (viz. Patriarch group) and those who believe in apostolic succession through St. Thomas forms another denomination (viz. Catholicos group) within the same religion (viz. Christianity). The Patriarch group forming a religious denomination has a fundamental right to decide what rites should be performed in their Parish Churches, who would perform them and how they should be performed in accordance with their faith. The Vicar holds a very important position in the Church; he conducts the Holy Mass, the Confession, Anointing of the Holy Mooron and other sacraments and ceremonies. He also collects the donations made to a particular Church. When the majority of the Parishioners who contribute to such donations belong to the Patriarch group, the use of such contribution to further the cause of Catholicos by the trustee would result in a breach of trust of the donors and W.P.(C)No.11786 of 2020 29 beneficiaries. A Vicar of a Catholicos group could not be thrust on a worshipper of Patriarch faith against his will. The freedom guaranteed under Article 25 of the Constitution of India will prevail over anything contained to the contrary in the 1934 Constitution.
8.9. In K.S. Varghese, repelling the aforesaid contentions, the Apex Court held that the appointment of Vicar is not a spiritual matter but is a secular matter. From the discussion made in the 1995 judgment and the various documents referred to therein, it is apparent that the Patriarch of Antioch has not exercised the power earlier with respect to the appointment of Priests, etc. He has re- established the Throne of Catholicos in 1912 under a Kalpana in which he has dedicated the power to the 1934 Constitution which has been accepted by the issuance of Kalpana and by establishing Catholicos-III in 1964 by consecrating Malankara Metropolitan. The 1934 Constitution has to hold the field and it is not the spiritual right within the spiritual domain even if the Patriarch of Antioch is supreme to appoint Vicars/Priests. It is apparent from Section 40 that the Diocesan Metropolitan has the authority to appoint, remove or transfer the Vicar and other priests. The Diocesan Metropolitan has to control the Vicar as per the scheme of the Constitution. The Diocesan Metropolitan has been given the W.P.(C)No.11786 of 2020 30 authority to appoint a Vicar for a wholesome purpose in the 1934 Constitution as the Patriarch of Antioch abroad cannot and is not supposed to exercise the deep and pervasive control over the management of Churches such as the appointment of Vicar, which is a secular matter and not a spiritual one.
8.10. In K.S. Varghese the Apex Court noticed that the prime jurisdiction with respect to the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested in the Malankara Metropolitan and other authorities. It is intended for proper administration of the Church and does not run against the concept of the spiritual authority of the Patriarch of Antioch but at the same time, Malankara Metropolitan enjoys all the temporal, ecclesiastical and spiritual administration powers. Thus the power of the Patriarch of Antioch has reached a vanishing point and he cannot exercise those powers which are lying with various authorities under the Constitution as per the historical background noted in the 1995 judgment since time immemorial. It passes comprehension how the Patriarch of Antioch can manage the day to day affairs in India sitting abroad. It is not contemplated nor he is supposed to do so in view of his Kalpana's and historical facts also indicate otherwise that he had not been managing the churches and it is W.P.(C)No.11786 of 2020 31 better that the Churches are left for the purpose of day to day administration. The powers of appointment of Vicar and Priests, etc. to the local Malankara Church, have rightly been given to the concerned authorities in the 1934 Constitution on the basis of prevalent practices.
8.11. In K.S. Varghese, dealing with the contention as to the violation of faith and violation of a right under Article 25 of the Constitution of India, the Apex Court observed that, there is no doubt that a religious denomination or organisation enjoys a complete autonomy in the matter of deciding as to rites and ceremonies essential according to their tenets of religion they hold and no outside authority has any jurisdiction to interfere with their decisions in such matters. At the same time, secular matters can be controlled by the secular authorities in accordance with the law laid down by the competent legislature as laid down in Commissioner, Hindu Religious Endowments v. Sri. Lakshmindra Thirtha Swamiar of Sri. Shirur Mutt [AIR 1954 SC 282]. Spiritual power is also with various authorities like Catholicos, Malankara Metropolitan, etc. Thus it is too far fetched an argument that the Patriarch of Antioch or his delegate should appoint a Vicar or Priest. There is no violation of any right of Article W.P.(C)No.11786 of 2020 32 25 or Article 26 of the Constitution of India. Neither any of the provisions relating to appointment of the Vicar can be said to be in violation of any of the rights under Article 25 and Article 26 of the Constitution of India. The 1934 Constitution cannot be said to be in violation of Article 25 and Article 26 of the Constitution of India.
8.12. In K.S. Varghese, before the Apex Court, it was contended that, granting the reliefs as sought for in the plaint would result in a situation favouring one party over another and bringing religious imbalance also. In this regard reliance was placed on the observations of European Court of Human Rights (ECtHR) in the case of Supreme Holy Council of the Muslim Community v. Bulgaria [Application No. 39023 of 1997, decided on 16.12.2004], wherein ECtHR while considering a claim by one of two rival groups claiming leadership of Muslim community in Bulgaria held that there had been violation as the state actions had the effect of compelling the divided community to have a single leadership against the will of one of the two factions. It stated that the role of the authorities in a situation of conflict between or within religious group was not to remove the cause of tension by elimination of pluralism, but to ensure that the competing groups tolerated each other. State measures favouring a particular leader of a divided W.P.(C)No.11786 of 2020 33 religious community would constitute infringement of freedom of religion. While dealing with the aforesaid contention, the Apex Court observed that the question is whether on the division of community, there is division of control and management and property of Church. Supremacy issue of Patriarch or Catholicos has been raised unnecessarily. It is a Diocesan Metropolitan as per Section 40 of the Constitution who has the power to appoint Vicar, Priests, etc. and there is other hierarchy provided. Even Catholicos, Malankara Metropolitan has the spiritual powers. It is not that they have temporal powers only. They have spiritual status too that has to be respected equally. No office is either superior or inferior in the matter of relationship between the two heads, the Catholicos and the Patriarch. Both are independent spiritual authorities. However, the Patriarch occupies the higher post in the hierarchy, i.e., he has an honour or precedence if he is present, i.e., in a sense he is the first among equals-"primus inter parties". The Church functioning is based on division of responsibilities at various levels. The division of power is for the purpose of management and does not militate against the basic character of the Church being Episcopal in character. In Halsbury's Laws of England, Vol. 14, Para.562, right of Parishioners has been described thus:
W.P.(C)No.11786 of 2020 34
"To enter the Church, remain there for purpose of participating in divine worship to have a seat and to obey the reasonable directions of the Church to ordain."
8.13. The highest authority of Malankara Church of the East is Catholicos being its primate as recognised in Section 2 of the 1934 Constitution. What is sought for and intended is wholly uncalled for, wholly unnecessary and unpalatable. Community may divide but Churches and places of worship cannot be divided. They have to be respected for the sake of religion and to exercise their coveted rights under Article 25 and Article 26 and for preservation of such rights. Still there may not be truce and peace in the Church, which cannot be helped. A person interested in spirituality may attain it by karma, dedication to deity, concentration and controlling senses as stated in Gita by Lord Krishna;
"Chap.7, Verse 4:
xxxxxxxxx [venacular matter omitted] [Earth, water, fire, air, mind, intellect and the ego - these are the 8 divisions of My separated matter (Prakriti) that is Prakriti comprises not only the material world of matter of energy but also the inner world of thoughts, emotions and the ego.]"
"Chap.3, Verse 29:
xxxxxxxxx [venacular matter omitted] W.P.(C)No.11786 of 2020 35 [People who are influenced by the senses, remain attached to sense objects and the material aspects of the world. The wise should not disturb these ignorant people, whose knowledge is incomplete.] 8.14. For persons who are professing the religion for temporal gains, no one can show them spiritual way. They are free to have their pursuit and excel in that too but not at the cost of the very deity and Church or religious place itself. The Apex Court held that the 1934 Constitution cannot be said to be an instrument of injustice or vehicle of oppression. Thus the decision of American Express Bank Ltd. v. Calcutta Steel Co. [(1993) 2 SCC 199] is of no avail.
8.15. In K.S. Varghese, before the Apex Court, it was submitted that, the Parishioners own the property of the Parish Church and the Cemetery and they cannot be deprived of that right by reason of the office holders of the Parish Churches by not subscribing to the 1934 Constitution. The attempt by Catholicos is to take away ancient Churches and bar the Parishioners from entry to the Churches and Cemetery. Repelling the said submission, the Apex Court held that, the properties would always remain to be Malankara Church properties. Only office-holders have to subscribe to the 1934 Constitution as held by the Court. The Parishioners can W.P.(C)No.11786 of 2020 36 take no Church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara Church. Neither the Church nor the Cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church.
It passes comprehension as to how irreconcilable differences in faith have been sought to be created in flimsy manner to divide Church into the Patriarch and Catholicos factions whereas they are part of the Malankara Church, whereas the dominant faith is the common, Malankara Church is one, and Orthodox Syrian Church is the same. Only intention differs. Hence, law and order situation has arisen which cannot be a scenario for spiritual attainments with embodiment of tolerance and equality of all human beings and living creatures. The depth in sight beyond the sensual eye sight is required for spiritual gains. The Apex Court observed that, for the reasons best known to the parties, fight is going on regarding the management which is wholly uncalled for. If church has to survive, obviously this must stop and let the blessings of the Christ fall upon W.P.(C)No.11786 of 2020 37 the believers, actual followers of his teaching. This is the only way by which we can expect that peace will come to the Church. For the unrest and ugly situation no reason, good, bad or otherwise exist which can be legally recognised.
8.16. In K.S. Varghese, before the Apex Court, it was submitted that, if services and ceremonies are conducted by only those Vicars and priests who are appointed in accordance with the 1934 Constitution, it would be violative of the basic object of the Parish Church. The Apex Court found no force in the said submission. The Apex Court noticed that, Diocesan Metropolitan appoints Vicar under the 1934 Constitution. It does not impinge upon the object of the Parish Churches. The Catholicos or the Patriarch, as the case may be, are not supposed to deal with such matters which are reserved for Diocesan Metropolitan as apparent from various decisions and provisions in the 1934 Constitution. This is the position prevailing since long. Vicars or Priests can also be appointed by secular authorities of sovereign. The appointment made by Diocesan Metropolitan cannot be said to be suffering from any illegality or affecting the spiritual rights of the Parishioners. Deacons and Priest for ordination are required to undergo successfully, theological studies and Principal has to certify as to W.P.(C)No.11786 of 2020 38 their fitness. For ordination as Korooyo (Reader) successfully clearing of 3 years' study is required. How Patriarch from abroad can exercise such powers is beyond comprehension and that would amount to unnecessary interference which is not supported by any Kalpana or historical document. The 1934 Constitution provides appointment of Vicar by Diocese in the area of its operation. Other provisions with respect to appointment are detailed out in the 1934 Constitution. In the absence of anything having been provided in Udampady, the 1934 Constitution would hold the field.
8.17. In K.S. Varghese, the Apex Court noticed that, faith is tried to be unnecessarily divided vis-a-vis the office of Catholicos and the Patriarch. Faith of church is in the Jesus Christ. An effort is being made to take over the management and other powers by such an action just to gain control of temporal matters under the garb of spirituality. Even if Vicar performs the functions, which are religious, there would not be infringement of the rights under Article 25 and Article 26 of constitution of India in case the Diocesan Metropolitan appoints Vicar as provided in the Constitution and it is clear that the Patriarch of Antioch has not reserved this power to himself. As a matter of fact the 1995 judgment settled such disputes, between the parties, in which the W.P.(C)No.11786 of 2020 39 Court tried its best to take care of the prevailing situation while passing the decree. It was observed in utter breach during its execution itself. The Diocesan Metropolitan as per the Constitution of 1934 appoints Vicar. The submission that Vicar of a Catholicos group cannot be thrust on a worshipper of Patriarch faith against his will, is totally unsound and is simply a ploy to take over the control of the management of the Church by putting faith in a Vicar who is running a parallel governance at the cost of Church by creating factionalism within the Churches. It is settled proposition of law that when a mode is prescribed for doing a thing, it can be done only in that manner and not otherwise. The Court in 1995 Judgment made it clear that the Patriarch has no such authority. He could not exercise any such spiritual power unilaterally, as done in 1972, which became the cause of unrest in Church. The appointment of Vicar, Priest by the Patriarch or through delegate unilaterally was held to be not permissible in the decision of 1995 even if he has such powers. It appears he has no such power to interfere in the management of the Church and now that question is agitated again and under the same guise of supremacy. Such an uncalled for attempt has to be thwarted and not to be countenanced for a moment. There is no violation of constitutional W.P.(C)No.11786 of 2020 40 provisions or authority of Patriarch. Thus there is no question of violation of Parishioners' rights and applicability of decisions in Olga Tellis v. Bombay Municipal Corporation [(1985) 3 SCC 545], Basheshar Nath v. Commissioner of Income Tax [AIR 1959 SC 149] and Nar Singh Paul v. Union of India [(2000) 3 SCC 588].
8.18. In K.S. Varghese, the Apex Court found that the source of the entire problem is that the Patriarchs faction is not ready to accept Vicar and Priests and the management which vests not only in Catholicos but also in Malankara Metropolitan, Diocesan Metropolitan. They want to have their own system of management by creating parallel managing groups as noted by the Court in the 1995 judgment also. In 1972, genesis of entire problem in the Churches was appointment of Vicar, etc. made unilaterally on behalf of the Patriarch. Thereafter, the Court had rendered the judgment and held that it was not open to the Patriarch to do it in the method and manner that it was done. Even assuming for a moment that Patriarch was having those powers, he could not exercise them unilaterally and the 1934 Constitution prevails in the Churches, is a clear finding of the Court. Thus the Patriarch has also acted against the 1934 Constitution as well as the Canon by W.P.(C)No.11786 of 2020 41 which Catholicos have been re-established in 1912 and after delimitation of areas. The Patriarch faction for no good cause is ready to accept the ecclesiastical and spiritual powers of the Catholicos and others as provided in the Constitution and Kalpana's and as held by the Court in the previous judgments. It was held in 1905 in the Arthat Suit that the Churches and their properties are subject to spiritual, temporal and ecclesiastical jurisdiction of Malankara Metropolitan. The Patriarch's claim of control over the temporal affairs of the Malankara Church was rejected. It was also rejected in the Seminary Suit filed in 1879. The effort made by the Patriarch faction appears to be for the temporal gains under the guise of supremacy of the Patriarch as the Vicar and Priests have the power of management in addition to performing the religious duties. The submission that the 1934 Constitution has been breached by the Catholicos cannot be accepted. There is not only violation of the binding judgment of 1995 by the Patriarch faction but also of other binding precedents too.
8.19. In K.S. Varghese, it was argued before the Apex Court that the 1995 judgment was rendered to reconcile the two warring faction. The conduct of the Catholicos in refusing to recognise the Patriarch undermines the 1995 judgment. The Apex Court noticed W.P.(C)No.11786 of 2020 42 that, as a matter of fact when execution of 1995 judgment was pending, in spite of appointment of Mr. Justice Malimath with consent of the parties to hold the elections, the Patriarch faction took up different stance in gross violation of dictum, and there was breach of Constitution on its part. It was bent upon to circumvent 1995 judgment and created illegally a parallel system of administration and also formed the Constitution 2002 which was totally uncalled for and an impermissible action. After formation of the Constitution of 2002 they held separate meetings of Patriarch groups, and entire system was usurped. This resulted in various law and order problems as projected in the case and Parish Churches remained closed for quite some time. Once there is a Malankara Church it has to remain as such. No group or denomination can take away the Church and form another group for its management as that would virtually tantamount to usurping its properties and the Church itself. When the Church has been created and is for the benefit of beneficiaries, it is not open for beneficiaries even by majority to usurp its property or management.
8.20. In K.S. Varghese, it was argued that Samudayam Suit has no bearing on the present proceedings. It was submitted that W.P.(C)No.11786 of 2020 43 Samudayam Suit was with respect to the common trust property of the Malankara Church. Repelling the said argument, the Apex Court noticed that the dispute in Samudayam Suit was with respect to community property. But, considering the rival claims, various issues which were raised had been gone into and the findings had been recorded thereupon, in order to decide the said controversy, which are binding as the suit was a representative suit. Thus the issues which have been decided in the suit, cannot be reopened, including the question of adoption of the 1934 Constitution, its validity and binding nature. The applicability and legality of the 1934 Constitution was questioned in the Samudayam Suit. A ground was raised that by formation of the 1934 Constitution, supremacy of the Patriarch has been taken away. The Court in the 1995 judgment construed Samudayam judgment and there is no scope to differ with the same.
8.21. In K.S. Varghese, in the case of Mannathoor Church, it was argued that the Church is having its own Constitution in the form of an Udambadi of 1980, which was a registered document, which will prevail over the 1934 Constitution. Repelling the said contention, the Apex Court held that the High Court has found that in fact the Church had been administered by the 1934 Constitution. W.P.(C)No.11786 of 2020 44 The 1934 Constitution is applicable to the Parish Churches under the Malankara Church. The submission that the Udampady will prevail cannot be accepted in view of the provisions made in Section 132 of the 1934 Constitution to the effect that all agreements which are not consistent with the provisions of the Constitution are made ineffective and annulled and also in view of the finding in the 1958 Samudayam matter that the Constitution had been validly adopted and is applicable. The question cannot be re-agitated and reopened under the guise of Udampady. Udampady cannot hold the field for administration of such Parish Churches. Udampady is not a document by which the Church came to be established. It is with respect to its management only. Udampady cannot prevail over the Constitution that has been adopted for all Malankara Churches and is holding the field. The registration of the Udampady cannot make it superior than the Constitution and the latter will prevail as found by the Court in earlier decisions. The finding is binding, conclusive and has to be respected. Even otherwise, Udampady cannot hold the field.
8.22. In K.S. Varghese, relying upon the Universal Declaration of Human Rights, which recognises the right to form an association, and further goes on to state that no one can be W.P.(C)No.11786 of 2020 45 compelled to be a part of an association, it was argued before the Apex Court that the right to form an association under Article 19(1)
(c) also carries with it the negative right, i.e., the right not to be a part of an association. It was argued that, the 1995 judgment cannot be read as if the appellant Church cannot leave the Malankara Association, as the same would result in infringement of the fundamental rights of the majority of the Parishioners, who belong to Patriarch faction. The Apex Court repelled the said contentions for various reasons. Firstly, no one can deny the right under Article 20 of the Universal Declaration of Human Rights. No one may be compelled to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara Church or Parish Church. There can be an exercise of unfettered volition not to be a part of an association but the question is whether one can form another association within the same association and to run a parallel system of management of the very same church, which is not permissible. Leaving a Church is not the right denied but the question is whether the existing Malankara Church can be regulated otherwise than by the 1934 Constitution. If the effort of certain group of Patriarch otherwise is to form a new Constitution of 2002 to appoint Vicars, Priests, etc., giving a go by W.P.(C)No.11786 of 2020 46 to the 1934 Constitution and to form a new Church under the guise of same Malankara Church, it is not permissible. The Malankara Church, its properties and other matters are to be governed by the 1934 Constitution and even majority of Parishioners has no right to take away and usurp the Church itself or to create new system of management contrary to the 1934 Constitution. It was a trust created as Malankara Church that is supreme, for once a trust always a trust.
8.23. In K.S. Varghese, the Apex Court has laid down that, as per the 1934 Constitution it is clear that while individual Parishioners may choose to leave the Church, there is no question of even a majority of the Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the ambit of the 1934 Constitution, without the approval of the Church hierarchy. The Parish Assembly can pass bye-laws that are not inconsistent with the principles contained in the Constitution. The Diocesan Assembly or the Diocesan Council can also suggest and submit to the Managing Committee through the Rule Committee for consideration as provided in Section 129. All agreements, offices and practices which are not consistent with the provisions of the Constitution are made ineffective and have W.P.(C)No.11786 of 2020 47 been annulled as provided in Section 132 contained in Part 13 'Miscellaneous'. After referring to the various provisions in the 1934 Constitution, the Apex Court held that, various provisions of the Constitution make it clear that there is a hierarchy of control and Parish Church properties cannot be dealt with otherwise the provisions contained in Section 23 as to the written consent of the Diocesan Metropolitan and the detailed system of management, appointment of Vicar and the Kaisthani, Parish Assembly, as also the power to spend certain amounts, as provided in Section 22 of the Constitution. The accounts are supervised and to be signed by the Diocesan Metropolitan. Similarly the acquisition of any immovable property for the Diocese can be with the written consent of the Malankara Metropolitan. It is apparent from the aforesaid provisions that there is a hierarchy of control that is provided with respect to the Church properties also. The community trustees are also provided for the Vattipanam, that is, Trust Fund. Section 94 provides for the temporal, ecclesiastical and spiritual control of the Malankara Metropolitan. Catholicos can also hold the office of Malankara Metropolitan. The Episcopal Synod has the power to consecrate Catholicos. Whatever autonomy is there, is provided in the Constitution for the Churches for necessary W.P.(C)No.11786 of 2020 48 expenditure as provided in Section 22, otherwise it is episcopal nature of the Church and once the property vests in Malankara Church, it remains vested in it and cannot be taken away and in case there is any dispute with respect to faith, etc., it has to be decided by the Episcopal Synod and in case any bye-law is to be changed, its remedy is available under the provisions of Sections 126, 127 and 129. Faction of Parish cannot decide against the Constitution. Bye-laws must conform to the Constitution. The income has to be distributed as per Sections 120 to 123.
8.24. In K.S. Varghese, it was argued that, by majority, decision can be taken to opt out of the 1934 Constitution by the Parish Assembly and to form a new church under a new name, as has been done in 2002. The Apex Court opined that the Constitution prohibits such a course. Even bye-laws that do not conform to Constitution cannot be framed and that has to be placed before Rule Committee under Sections 126, 127 and 129. In existing system of Malankara Church, a Parish Church that is a part of Malankara Church cannot be usurped even by majority in Church under the guise of formation of new Church. The existing majority at a given time in any Parish Church cannot be permitted to take W.P.(C)No.11786 of 2020 49 away the assets of the church at the expense of those who adhere to the original Trust.
8.25. In K.S. Varghese, the Apex Court noticed that, the majority view in the 1995 judgment refused to give declaration with respect to property in the absence of Parish Churches. However it was observed that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches insofar as the Constitution provides for the same. In the absence of any further prayer made, suffice it to hold that the 1934 Constitution shall govern the affairs of the Parish Churches in respect of temporal matters also insofar as it so provides and discussed by the Court. The Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution, as held in the 1995 judgment. The 1934 Constitution governs the affairs of Parish Malankara Churches and shall prevail. Otherwise, also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake of beneficiaries. It is for the benefit of beneficiaries. No one can become owners by majority decision or permitted to usurp Church itself. It has to remain in perpetual succession for the purpose it has been created a Malankara Church. The Parish Assembly by majority cannot take W.P.(C)No.11786 of 2020 50 away the property and divert it to a separate and different Church that is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the Constitution of 1934. As the basic documents of creation of Church have not been placed on record, usage and custom for determining the competing claims of rival factions becomes relevant. In K.S. Varghese, the Apex Court held that, the 2002 Constitution cannot hold the field to govern the appellant Churches and the 1934 Constitution is binding. Finding recorded by the High Court that the Kolencherry Church was not administered by the 1913 Udampady and was administered in accordance with the 1934 Constitution, is correct at least after the Constitution was adopted. General body meeting of 08.03.1959 has adopted the 1934 Constitution. Udampady cannot hold the field by virtue of Section 132 of the Constitution and there is other oral evidence that had been assessed by the High Court including the documentary evidence and the Udampady cannot be taken to govern. Moreover in view of the findings in the 1958 Samudayam Suit and the 1995 judgment, the Constitution of 1934 is binding, which has been held to be valid, and Malankara Church has to be administered as per the provisions contained therein. Thus Udampady of 1913 cannot be set up or used as ploy to avoid W.P.(C)No.11786 of 2020 51 the provisions of the 1934 Constitution. Thus the main plank of submissions is also barred by the principle of res judicata.
8.26. In K.S. Varghese, before the Apex Court it was argued that, once the Parish Assembly decided in 1959 to go by the 1934 Constitution, it could also take a decision to go by the Udampady of 1913. It was further submitted that the 1913 Udampady operates as the Constitution of individual Parish Church. 1913 Udampady is a registered document and has to prevail over unregistered Constitution. The Apex Court noticed that the Church was created way back in the 7th century. The Udampady of 1913 is not a document of creation of the Trust. The then in-charge person executed it just for the management of the Church in question. The 1934 Constitution after being adopted in 1959 by the Church is binding. The Udampady of 1913 has lost its efficacy and utility. The Udampady stands annulled by Section 132 of the Constitution. It cannot be revived. Thus it is not open to the Church or Parishioners by majority to wriggle out of the 1934 Constitution. In view of the findings recorded in the Samudayam Suit and also by the 1995 judgment, the question operates as res judicata and the administration on the basis of Udampady cannot be claimed. The inconsistent provisions in the Udampady shall stand annulled as per W.P.(C)No.11786 of 2020 52 Section 132 of the 1934 Constitution. There are inconsistencies between the 1934 Constitution and 1913 Udampady as such the latter cannot prevail. In terms of Section 132, any Udampady (agreement) which is inconsistent with the provisions of the 1932 constitution stands annulled and is ineffective. After noticing certain inconsistencies between the provisions of the 1913 Udambady and the 1934 Constitution (quoted in Para.214 @ Pages 504 to 506 of SCC) the Apex Court held that, in view of those inconsistencies, as well as in light of the findings of the 1959 judgment and the 1995 judgment regarding the validity and the binding character of the 1934 constitution, the 1913 Udampady would, in any event, no longer survive and the Parish Church would be governed in accordance with the 1934 Constitution.
8.27. In K.S. Varghese, the Apex Court held that the Udampadies were for administration of the Church at the relevant time and lost their efficacy due to efflux of time and cannot hold the field in view of the system of administration provided in the 1934 Constitution. The 1934 Constitution was not required to be registered document as the Udampadies are not documents of creation of trust(s), the Udampadies were not required to be registered. Udampady cannot prevail over the 1934 Constitution for W.P.(C)No.11786 of 2020 53 various reasons discussed in the judgment. The Apex Court opined that, the 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, in the Malankara Church properties. It provides a system of administration as such and not required to be registered, and moreover the question of effect of non-registration of the 1934 Constitution cannot be raised in view of the findings recorded in the 1959 and the 1995 judgments. The question could, and ought to have been raised but was not raised at the time of authoritative pronouncement made by the Court. Otherwise also, facts have not been pleaded nor any provision of the Constitution pointed out that may attract the provisions of Section 17(1)(b) of the Registration Act. Thus, it is not open to question the validity of the 1934 Constitution on the ground that it cannot be looked into for want of its registration.
8.28. In K.S. Varghese, based on the findings in the judgment, the main conclusions of the Apex Court in Para.228 read thus;
"228. Resultantly, based on the aforesaid findings in the judgment, our main conclusions, inter alia, are as follows:
228.1. Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 W.P.(C)No.11786 of 2020 54 Constitution fully governs the affairs of the Parish Churches and shall prevail.
228.2. The decree in the 1995 judgment is completely in tune with the judgment. There is no conflict between the judgment and the decree.
228.3. The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order I Rule 8 and Explanation 6 to Section 11 CPC. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided.
228.4. As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so
- called exercise of right under Article 25 and Article 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch.
228.5. The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.
228.6. Full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of W.P.(C)No.11786 of 2020 55 Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests), etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan, etc. concerned.
228.7. Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church. Once a trust, is always a trust. 228.8. When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy.
228.9. The spiritual power of Patriarch has been set up by the appellants clearly in order to violate the mandate of the 1995 judgment of this Court which is binding on the Patriarch, Catholicos and all concerned.
228.10. As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a W.P.(C)No.11786 of 2020 56 parallel system of administration of Churches as done in 2002 and onwards.
228.11. This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such power, he could not have exercised the same unilaterally which we have explained in this judgment.
228.12. It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates, etc. in contravention of the 1934 Constitution.
228.13. Malankara Church is episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.
228.14. Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed under Article 25 and Article 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests), etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned. 228.15. Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests), etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The W.P.(C)No.11786 of 2020 57 spiritual power also vests in the other functionaries of Malankara Church.
228.16. The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.
228.17. The Church and the cemetry cannot be confiscated by anybody. It has to remain with the parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.
228.18. The faith of Church is unnecessarily sought to be divided vis-à-vis the office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or W.P.(C)No.11786 of 2020 58 Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.
228.19. The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar, etc. in violation of the 1995 judgment of this Court.
228.20. The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to W.P.(C)No.11786 of 2020 59 even frame bye-laws in violation of the provisions of the 1934 Constitution.
228.21. The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per Section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution. 228.22. The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.
228.23. In otherwise episcopal Church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in Section 22, etc. 228.24. The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognised and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution. 228.25. It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit under Order I Rule 8 CPC. It remained a W.P.(C)No.11786 of 2020 60 representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.
228.26. The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under Section 92 of CPC. 228.27. The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronising parallel systems of administration.
228.28. Both the factions, for the sake of the sacred religion they profess and to pre-empt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted."
9. In Mathews Mar Koorilos (dead) v. M. Pappy (dead) [(2018) 9 SCC 672] the appellants/plaintiffs, namely, the Metropolitan of Quilon Diocese of the Malankara Orthodox Syrian Church and the Vicar appointed by him for St. Mary's Church, Kattachira filed O.S.No.187 of 1977 against the Parishioners of the Church, seeking a declaration that they have exclusive right to conduct religious services in the plaint Church, Cemetery and W.P.(C)No.11786 of 2020 61 Kurisumthotty and prayed for prohibitory injunction restraining the defendants and others who do not obey the plaintiffs from entering the plaint Church and plaint schedule properties. The case of the plaintiffs was that as per Ext. A3 (original of which is Ext. B19) assignment-cum-gift deed dated 29.06.1972, the 1st defendant C.K. Koshy assigned the plaint schedule properties along with the Church and Cemetery, etc. situated thereon, to the Metropolitan, Quilon Diocese and that they are entitled to conduct religious services and to manage the Church and its properties. The Parishioners who question such authority are not entitled to hold any office as members of the Church Committee or to enter the Church.
9.1. On the other hand, the respondents/defendants who are said to be the representatives of the Parishioners contended that the Church was founded with the object of conducting religious services by religious dignitaries who possess the spiritual grace transmitted from the Patriarch of Antioch and All the East, for the benefit of the Parishioners. The Church and its properties constitute a trust and can be used only for the purpose for which it was founded. The defendants contended that the plaintiffs have repudiated and defied the spiritual powers of the Patriarch and the W.P.(C)No.11786 of 2020 62 plaintiffs are not entitled to conduct any religious services in the plaint Church. According to them, the plaint Church is administered under the Constitution framed by the Parishioners marked as Ext. B9 dated 23.01.1959 and no Priest can function in the Church without the consent of the Parishioners.
9.2. The Parishioners filed a separate suit in O.S.No.17 of 1976 challenging the validity of Ext. A3 assignment-cum-gift deed dated 29.06.1972 in favour of Quilon Metropolitan. On the same grounds taken by them in O.S.No.187 of 1977, they alleged that as beneficiaries of the Church and as its Managing Committee Members, they are entitled to see that its properties are not lost. They prayed for a decree declaring that Ext. A3 assignment-cum- gift deed is ab initio void and for a perpetual injunction restraining the Metropolitan from implementing any of the provisions in the said document.
9.3. The trial court by a common judgment dated 06.03.1986 dismissed the suit O.S.No.17 of 1976 filed by the Parishioners and decreed O.S.No.187 of 1977 filed by the Metropolitan and Vicar, declaring that they have the right to conduct religious services in the plaint Church and Cemetery. The trial court granted permanent injunction restraining the defendants W.P.(C)No.11786 of 2020 63 in O.S.No.187 of 1977 and persons who do not obey the plaintiffs from entering the Church and the plaint schedule properties and conducting religious services, and obstructing others, who obey the plaintiffs. The defendants were also restrained from obstructing the plaintiffs in completing the construction of the Kattachira Church building or attending to its repairs.
9.4. The common judgment dated 06.03.1986 of the trial court was under challenge before this Court in A.S.Nos.140 of 1986 & 142 of 1986 filed by the Parishioners. The learned Single Judge dismissed both the appeals holding, inter alia, that in view of the unambiguous terms in Ext.A3, the Parishioners are not entitled to question the right of Metropolitan over the plaint Church and its properties and his right to conduct religious services. The 1934 Constitution shall govern and regulate the affairs of the Parish Churches too, which are not exempted from the clauses of that Constitution, and they are equally constituent of the Malankara Association, though it enjoys some degree of autonomy. The excommunication of Catholicos by the Patriarch and/or by the Universal Synod was held invalid. The learned Single Judge also held that, it is the Vicar, who should conduct the election as provided in 1934 Constitution. However, in order to allay the W.P.(C)No.11786 of 2020 64 apprehension of both parties and to ensure that the election is free and fair and in accordance with 1934 Constitution, the learned Single Judge appointed two observers to oversee the process of election right from the beginning to ensure that the conditions in that Constitution and the directions of the Apex Court are followed.
9.5. Aggrieved by the judgment of the learned Single Judge, the parishioners filed A.F.A.Nos.26 of 1997 & 27 of 1997 before the Division Bench. The Division Bench, by a common judgment dated 04.04.2000 in A.F.A.Nos.26 of 1997 & 27 of 1997 and C.R.P.No. 1314 of 1998 set aside the findings of the learned Single Judge. The Division Bench held that, though the title of the properties vests with Quilon Diocese, the properties including Church, etc. under Ext.A3 assignment-cum-gift deed are still under the control and management of the Parishioners of St. Marys Syrian Church, Kattachira. The Metropolitan of Quilon Diocese had no authority to appoint Vicar for the control and management of the plaint Church and its properties though Ext.A3 assignment-cum-gift deed executed by C.K. Koshy in favour of Quilon Diocese and C.K. Koshy, executor of Ext.A3 intended to transfer his right in the properties for the benefit of entire members of the Church and that the Parishioners have the power to hold the movable and immovable W.P.(C)No.11786 of 2020 65 properties of St. Mary's Church. The Division Bench held that the provisions of the 1934 Constitution sufficiently establish that the Parishioners have power to hold movable and immovable items of properties.
9.6. In Mathews Mar Koorilos a Three-Judge Bench of the Apex Court observed that the issue of spiritual and temporal authority between Malankara Church and the Patriarch of Antioch has been the subject matter of several rounds of litigations in various matters right from the year 1879. It is not necessary for the Court to elaborately refer to those litigations; suffice to refer the litigations which led to the Constitution Bench judgment in Moram Mar Basselios Catholicos v. Thukalan Paulo Avira [AIR 1959 SC 31]; the judgment of Three-Judges Bench in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma [1995 Supp (4) SCC 286] and the latest judgment in K.S. Varghese v. St. Peter's and St. Paul's Syrian Orthodox Church [(2017) 15 SCC 333].
9.7. Before the Three-Judge Bench it was contended that the conclusions arrived in K.S. Varghese are not in consonance with the judgment in Most Rev. P.M.A. Metropolitan. Repelling the said contention, the Three-Judge Bench held that the conclusions in W.P.(C)No.11786 of 2020 66 Para.228 of K.S. Varghese are well in consonance with Thukalan Paulo Avira and Most Rev. P.M.A. Metropolitan judgments. The detailed discussions and conclusions arrived at in K.S. Varghese settle the disputes between the appellant Patriarch and the respondent Malankara.
9.8. In Mathews Mar Koorilos the Three-Judge Bench reiterated that, as per the consistent view taken in Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is valid and binding upon the Parishioners. The Parish Church has to be managed as per the powers conferred under the 1934 Constitution. It is not open to any individual church to have a parallel system of management in the churches under the guise of spiritual supremacy in the Patriarch. As per the consistent findings in the above judgments, the prime jurisdiction with respect to the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with Malankara Metropolitan and other authorities appointed by Malankara Metropolitan. Malankara Metropolitan enjoys all the temporal, ecclesiastical and spiritual administrative powers [Para.145 of K.S. Varghese]. As held in K.S. Varghese, full effect has to be given to the finding that the spiritual power of the Patriarch has reached to W.P.(C)No.11786 of 2020 67 a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests), etc. and thereby cannot create a parallel system of administration.
9.9. In Mathews Mar Koorilos, on facts of the case, the Three-Judge Bench noticed that, the plaint Church, namely, St. Mary's Church, Kattachira was listed as Serial No.41 among 1064 Parish Churches included in the plaint schedule in the representative suit, i.e., O.S.No.4 of 1979. The recitals in Ext.A3 assignment-cum-gift deed executed by C.K. Koshy in favour of Metropolitan of Quilon Diocese make it clear that St. Mary's Orthodox Syrian Church, Kattachira and the properties have been gifted in favour of Malankara Metropolitan to be treated as Bhadrasanam properties, subject to the control of the Metropolitan in appointing Vicar, Priests, etc. Ext.A3 provided that the Metropolitan may directly administer the said properties or through his representatives. Ext. A3 further provided that the Parishioners and the Managing Committee should abide by the dictates of the Metropolitan from time to time. As per the recitals in Ext.A3, the plaint Church and the properties come under the spiritual and the temporal control of Malankara Metropolitan.
W.P.(C)No.11786 of 2020 68
9.10. In Mathews Mar Koorilos, the Three-Judge Bench held that, as per the decision of the Apex Court in Thukalan Paulo Avira and P.M.A. Metropolitan, St. Mary's Church, Kattachira is bound by Ext.A1 1934 Constitution and the control of the Metropolitan. Having held that the 1934 Constitution is binding upon the Parish Church and its Parishioners, the Division Bench of the High Court was not right in holding that the Metropolitan had no power to appoint Vicar, Priests, etc. The conclusion of the Division Bench that the Parishioners have the right to make all such appointments and to manage the affairs of St. Mary's Church, Kattachira is directly contrary to the express provisions of the 1934 Constitution and the findings of the Apex Court in P.M.A. Metropolitan. The Three-Judge Bench concluded that, considering the recitals in Ext. A3 and the judgments in Thukalan Paulo Avira and P.M.A. Metropolitan, the trial court and the learned Single Judge rightly held that St. Mary's Church, Kattachira is a constituent of Malankara and the power to appoint Vicar, Priests, etc. is vested with Malankara Metropolitan or his representatives. In Mathews Mar Koorilos, the Three-Judge Bench endorsed the view taken in K.S. Varghese [Para.146] that the 1934 Constitution W.P.(C)No.11786 of 2020 69 cannot be said to be in violation of Article 25 and Article 26 of the Constitution of India.
10. In Fr. O.S. Kuriakose and others v. Fr. Andrews Chiravathara and others [2020 SCC OnLine Ker 2832 : 2020 (4) KHC SN 6] this Court held that the conclusions of the Apex Court in K.S. Varghese, which has already been dealt with in extenso [in Paras.8.4 to 8.32 of SCC OnLine Ker], would make it explicitly clear that the findings in Most Rev. P.M.A. Metropolitan, which operates as res judicata is about the binding nature of the 1934 Constitution on the Parishioners and Parish Churches. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. Repelling the contention that the Parish Churches, even after the 1934 Constitution, can decide to make their own Constitution in the exercise of their fundamental right to freedom of religion under Article 25 of the Constitution of India, so as to follow the faith of spiritual supremacy of the Patriarch, the Apex Court opined that, it would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. No group or denomination can take away the Church W.P.(C)No.11786 of 2020 70 and form another group for its management as that would virtually tantamount to usurping its properties and the Church itself. When the Church has been created and is for the benefit of beneficiaries, it is not open for beneficiaries even by majority to usurp its property or management. The Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. They have to give equal importance in the matter of management of the 1934 Constitution and cannot be permitted to commit regular breach and devise ways to circumvent the judgment of the Court by one way or the other and under the garb of spiritual fight wrest the temporal control of the Churches. That the spiritual power of the Patriarch has reached to a vanishing point, has to be given the full meaning. No person under the guise of spiritual faith can be permitted to destroy a system which is prevailing for the management of Parish Churches and go on forming Constitution as per his will time and again. There is no need of any such Constitution as is framed in the year 2002. In K.S. Varghese, it was submitted that, the Parishioners own the property of the Parish Church and the Cemetery and they cannot be deprived of that right by reason of the office holders of the Parish Churches by not subscribing to the 1934 Constitution. Rejecting the said submission, W.P.(C)No.11786 of 2020 71 the Apex Court held that, the properties would always remain to be Malankara Church properties. Only office holders have to subscribe to the 1934 Constitution as held by the Court. The Parishioners can take no Church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara Church. Neither the Church nor the Cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the Church or to be buried honourably in the Cemetery, in case he continues to have faith in Malankara Church. Once there is a Malankara Church it has to remain as such. No group or denomination can take away the Church and form another group for its management as that would virtually tantamount to usurping its properties and the Church itself. When the Church has been created and is for the benefit of beneficiaries, it is not open for beneficiaries even by majority to usurp its property or management. In K.S. Varghese, the Apex Court noticed that, to circumvent the 1995 judgment the Patriarch faction created illegally a parallel system of administration and also formed the 2002 Constitution, which was totally uncalled for and W.P.(C)No.11786 of 2020 72 impermissible. After formation of the 2002 Constitution they held separate meetings of Patriarch groups, and entire system was usurped. In the case of Mannathoor Church, it was argued that the Church is having its own Constitution in the form of an Udambadi of 1980, which was a registered document, which will prevail over the 1934 Constitution. Repelling the said contention, the Apex Court held that the 1934 Constitution is applicable to the Parish Churches under the Malankara Church. The submission that the Udampady will prevail cannot be accepted in view of the provisions made in Section 132 of the 1934 Constitution to the effect that all agreements, which are not consistent with the provisions of the Constitution, are made ineffective and annulled and also in view of the finding in the 1958 Samudayam matter that the Constitution had been validly adopted and is applicable. The question cannot be re-agitated and reopened under the guise of Udampady. Udampady cannot hold the field for administration of such Parish Churches. Udampady is not a document by which the Church came to be established. It is with respect to its management only. Udampady cannot prevail over the Constitution that has been adopted for all Malankara Churches and is holding the field. The Malankara Church, its properties and other matters are to be governed by the 1934 W.P.(C)No.11786 of 2020 73 Constitution and even majority of Parishioners has no right to take away and usurp the Church itself or to create new system of management contrary to the 1934 Constitution. It was a trust created as Malankara Church that is supreme, for once a trust always a trust. In Mathews Mar Koorilos the Three-Judge Bench of the Apex Court reiterated that, as per the consistent view taken in Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is valid and binding upon the Parishioners. The Parish Church has to be managed as per the powers conferred under the 1934 Constitution. It is not open to any individual Church to have a parallel system of management in the Churches under the guise of spiritual supremacy in the Patriarch. As held in K.S. Varghese, full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point.
11. In John K.P. v.Mani Varkey [2014 (4) KHC 36], relying on the judgment of the Division Bench in St. Peter's Orthodox Syrian Church v. Fr. Abraham Mathews [2011 (4) KHC 119] and that of the learned Single Judge in Fr. John Jacob v. Fr. Paulose N.I. [2014 (2) KHC 59], a learned Judge of this Court held that, it has become trite law through various judicial W.P.(C)No.11786 of 2020 74 pronouncements, that in the matter of Malankara Church when a relief has been sought for, for the administration of Parish Churches between two factions, the same has to be treated as a suit within the meaning of Section 92 of the Code. The said question need not again be considered when the same has already been settled by the Division Bench of this Court in St. Peter's Orthodox Syrian Church. When considering the question whether there was want of leave under Section 92 of the Code, the fact that the plaintiffs have later given up some reliefs sought for in the plaint, or subsequently the plaint was amended for taking away some averments and allegations which tend to show that there was mal-administration, breach of trust etc., or the fact that the court has granted only a relief which does not fall under Section 92 of the Code, are of no consequence at all.
12. The judgment of the learned Single Judge in John K.P. was under challenge before the Apex Court in Civil Appeal Nos. 3986-89 of 2018 - K.P.John v. John Puthiyakunnel- (arising out of S.L.P. (C) Nos. 33156-59 of 2014). By the order dated 19.04.2018, the Apex Court disposed of those appeals in terms of the judgment in K.S. Varghese. In the said order, the Apex Court held that, as the controversy in question has been finally decided in W.P.(C)No.11786 of 2020 75 the case of K.S. Varghese, in which it has been laid down that the 1934 Constitution holds the filed, nothing further survives in the matters for adjudication. The said order of the Apex Court in Civil Appeal Nos. 3986-3989 of 2018 reads thus;
"Leave granted.
As the controversy in question has been finally decided in the case of K.S. Verghese v. St. Peter's and Paul's Syrian Orth. in C.A. No. 3674 of 2015 etc. decided on 3 rd July, 2017 [(2017) 15 SCC 333], in which it has been laid down that 1934 Constitution holds the filed, nothing further survives in the matters for adjudication. Consequently, the appeals stand disposed of in terms of the above judgment. Let all the concerned courts and authorities act in terms of the judgment. Let there be no multiplicity of the litigation on this aspect any more in the various courts. The decision rendered in representative suit is binding on all."
13. In Varkey Abraham v. St. Thomas Orthodox Syrian Church, Nechur [2009 (4) KHC 473], a learned Judge of this Court held that merely because the suit contains a declaratory relief it will not take the suit out of Section 92 of the Code. The law does not insist that any two or more persons interested in the public trust concerned should invariably institute a suit. It is upto them to decide whether a suit is to be filed or not. But, if a suit is filed and going by the nature of the suit it falls within the W.P.(C)No.11786 of 2020 76 parameters of Section 92 of the Code, then such a suit will be maintainable only if the leave of the appropriate Court prior to its institution has been obtained. It is not every court, which is competent to grant leave to institute the suit. It is only the Principal Civil Court of original jurisdiction or the empowered court, which can grant the leave and thereafter entertain the suit.
14. The judgment of the learned Single Judge in Varkey Abraham was under challenge before the Apex Court in Civil Appeal No. 2036 of 2010 - Varkey John, Kariath v. St. Thomas Orthodox Syrian Church. By the order dated 05.07.2017, the Apex Court disposed of that appeal in terms of the judgment in K.S. Varghese. In the said order, the Apex Court held that the judgment passed in K.S. Varghese v. St. Peter's and Paul's Syrian Orth. (C.A. No. 3674 of 2015) on 03.07.2017, which is in representative suit is applicable to the parties in present case. The said order of the Apex Court in Civil Appeal No. 2036 of 2010 reads thus;
"In view of the judgment passed in K.S. Varghese v. St. Peter's and Paul's Syrian Orth. (C.A. No. 3674 of 2015) on 03.07.2017 by this Court, which is in representative suit it is applicable to the parties in present case. The instant appeal W.P.(C)No.11786 of 2020 77 stands disposed of in terms of the above mentioned judgment."
15. In Baby C.J. v. Fr. Jiju Varghese [2019 (2) KHC 692] arising out of the order dated 10.07.2018 in F.A.O. No. 96 of of 2018 and connected cases, the Apex Court held that, as the controversy in question has been finally decided on 03.07.2017, in the case of K.S. Varghese [(2017) 15 SCC 333], which holds the field, nothing further survives in the matters for adjudication. Consequently, the appeals were disposed of in view of the above judgment and the Apex Court directed all the concerned courts and authorities to act in terms of that judgment. In the said decision, the Apex Court made it clear that, let there be no multiplicity of the litigation on this aspect any more in various courts and that, the decision rendered in representative suit is binding on all.
16. In Fr. Issac Mattammel Cor-Episcopa v. St. Mary's Orthodox Syrian Church [(2019) 10 SCC 606], after quoting Para.228 of the decision in K.S. Varghese [(2017) 15 SCC 333], the Apex Court reiterated that, there can be no further litigation as the decision in representative suit is binding and that, it is the constitutional duty of all concerned to obey the judgment and order of the Apex Court. In the said decision, it is made clear that, by the W.P.(C)No.11786 of 2020 78 decision in K.S. Varghese the Apex Court intended peace to come in Church. The Apex Court directed the courts to decide all pending matters following the decision in K.S. Varghese, which has been affirmed thereafter umpteen number of times, and restrained all the civil courts and this Court not to pass any order in violation of the mandate of the decision in K.S. Varghese.
17. In Varkey U. v. Issac Nedivelil Puthenpura [2019 (3) KHC 689] a Division Bench of this Court observed that the Apex Court in P.M.A. Metropolitan, K.S. Varghese and Mathews Mar Koorilos has categorically stated as to what are the rights and obligations of the disputants in Malankara Church cases and no court in this country can take a different view on the subject. Para.14 of the said decision reads thus;
"14. We are of the clear view that no court in this country can take a different view on the subject reckoning the binding pronouncements by the Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma [1995 Supp (4) SCC 286], K.S. Varghese v. St. Peter's and Paul's Syrian Orthodox Church [(2017) 15 SCC 333] and Mathews Mar Koorilos v. Pappy [(2018) 9 SCC 672]. Now it is very clear that the Supreme Court has categorically stated as to what are the rights and obligations of the disputants in Malankara Church cases and no court in this country can take a different view on the subject. It has been W.P.(C)No.11786 of 2020 79 clarified by the Supreme Court by an order passed on 19.04.2018 in S.L.P. Nos. 33156-33159/2014 as follows:
"Leave granted.
As the controversy in question has been finally decided in the case of K.S. Varghese v. St. Peter's and St. Paul's Syrian Orthodox Church in C.A. No. 3674 of 2015 etc. decided on 3rd July, 2017 [(2017) 15 SCC 333], in which it has been laid down that 1934 Constitution holds the field, nothing further survives in the matters for adjudication. Consequently, the appeals stand disposed of in terms of the above judgment.
Let all the concerned courts and authorities act in terms of the judgment. Let there be no multiplicity of the litigation on this aspect any more in the various courts. The decision rendered in representative suit is binding on all."
18. In Fr. O.S. Kuriakose [2020 SCC OnLine Ker 2832 :
2020 (4) KHC SN 6] this Court noticed that in Most Rev. P.M.A. Metropolitan, K.S. Varghese and Mathews Mar Korilos, the Apex Court has laid down in categorical terms, what are the rights and obligations of the rival factions, i.e., Patriarch faction and the Catholicos faction, in Malankara Church and no court in the country can take a different view on this subject. In the order in Civil Appeal Nos. 3986-89 of 2018 the Apex Court has made it clear that the decision rendered in K.S. Varghese in representative suit is W.P.(C)No.11786 of 2020 80 binding on all, and all the concerned courts and authorities shall act in terms of that judgment, so that there is no multiplicity of the litigation on this aspect any more in various courts. In Fr. Issac Mattammel Cor-Episcopa the Apex Court reiterated that, there can be no further litigation as the decision in representative suit is binding and that, it is the constitutional duty of all concerned to obey the judgment and order of the Apex Court. In the said decision, it is made clear that, by the decision in K.S. Varghese the Apex Court intended peace to come in Church. The Apex Court directed the courts to decide all pending matters following the decision in K.S. Varghese, which has been affirmed thereafter umpteen number of times, and restrained all the civil courts and this Court not to pass any order in violation of the mandate of the decision in K.S. Varghese.
19. As already noticed, in K.S. Varghese the Apex Court held that the properties would always remain to be Malankara Church properties. Only office-holders have to subscribe to the 1934 Constitution as held by the Court. The Parishioners can take no church property away, neither Catholicos faction by majority. It has to remain in Malankara Church. Neither the church nor the cemetery can be confiscated by anybody. It has to remain with W.P.(C)No.11786 of 2020 81 Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church.
19.1. In K.S. Varghese the Apex Court observed that, for the reasons best known to the parties, fight is going on regarding the management which is wholly uncalled for. If church has to survive, obviously this must stop and let the blessings of the Christ fall upon the believers, actual followers of his teaching. This is the only way by which we can expect that peace will come to the Church. For the unrest and ugly situation no reason, good, bad or otherwise exist which can be legally recognised.
19.2. In K.S. Varghese the Apex Court held that, once there is a Malankara Church it has to remain as such. No group or denomination can take away the church and form another group for its management as that would virtually tantamount to usurping its properties and the church itself. When the church has been created and is for the benefit of beneficiaries, it is not open for beneficiaries even by majority to usurp its property or management.
19.3. In K.S. Varghese the Apex Court held that, as per the 1934 Constitution it is clear that while individual Parishioners may W.P.(C)No.11786 of 2020 82 choose to leave the church, there is no question of even a majority of the Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the ambit of the 1934 Constitution, without the approval of the church hierarchy. In existing system of Malankara Church, a Parish Church that is a part of Malankara Church cannot be usurped even by majority in church under the guise of formation of new church. The existing majority at a given time in any Parish Church cannot be permitted to take away the assets of the church at the expense of those who adhere to the original Trust. The 1934 Constitution governs the affairs of Parish Malankara Churches and shall prevail. Otherwise, also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake of beneficiaries. It is for the benefit of beneficiaries. No one can become owners by majority decision or permitted to usurp church itself. It has to remain in perpetual succession for the purpose it has been created a Malankara Church. The Parish Assembly by majority cannot take away the property and divert it to a separate and different church that is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the Constitution of 1934. In view of the W.P.(C)No.11786 of 2020 83 findings in the 1958 Samudayam Suit and the 1995 judgment, the Constitution of 1934 is binding, which has been held to be valid, and Malankara Church has to be administered as per the provisions contained therein.
19.4 In Mathews Mar Koorilos a Three-Judge Bench of the Apex Court held that the conclusions in Para.228 of K.S. Varghese are well in consonance with Thukalan Paulo Avira and Most Rev. P.M.A. Metropolitan judgments. The detailed discussions and conclusions arrived at in K.S. Varghese settle the disputes between the appellant Patriarch and the respondent Malankara. The Three-Judge Bench reiterated that, as per the consistent view taken in Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is valid and binding upon the Parishioners. The Parish Church has to be managed as per the powers conferred under the 1934 Constitution. It is not open to any individual church to have a parallel system of management in the churches under the guise of spiritual supremacy in the Patriarch. As held in K.S. Varghese, full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates W.P.(C)No.11786 of 2020 84 (High Priests), etc. and thereby cannot create a parallel system of administration.
19.5. In Baby C.J. [2019 (2) KHC 692] the Apex Court held that, as the controversy in question has been finally decided in the case of K.S. Varghese which holds the field, nothing further survives in the matters for adjudication and that, the decision rendered in representative suit is binding on all. In Fr. Issac Mattammel Cor-Episcopa [(2019) 10 SCC 606], after quoting Para.228 of the decision in K.S. Varghese, the Apex Court reiterated that, there can be no further litigation as the decision in representative suit is binding and that, it is the constitutional duty of all concerned to obey the judgment and order of the Apex Court. By the decision in K.S. Varghese the Apex Court intended peace to come in Church.
19.6. In the instant case, O.S.No.92 of 2018 filed by petitioners 2 to 4 has been decreed by the Principal Sub Court, North Paravur by Ext.P4 judgment dated 13.05.2020. Paragraph 21 of that judgment reads thus;
"21. In the result the suit is decreed as follows;
1. Defendants 2 to 4 and their men by way of a permanent prohibitory injunction are restrained from acting as trustees of first defendant Church or otherwise W.P.(C)No.11786 of 2020 85 interfering with its administration. They will have right to enter the church premises for offering worship only.
2. A decree of permanent prohibitory injunction is granted restraining defendants 2 to 4, their men or agents or anybody claiming under them from causing any obstruction or hindrance to first plaintiff or his successors appointed under 1934 Constitution in discharging their duties and functions in first defendant church and cemetery and other institutions in plaint schedule properties.
3. A decree of permanent prohibitory injunction is granted restraining the 2nd defendant, his successors not appointed under 1934 Constitution from conducting any religious services in the first defendant church or its cemetery or other institutions situated in the plaint schedule properties.
4. Parties are directed to suffer their respective costs."
19.7. Ext.P4 judgment in O.S.No.92 of 2018 of the Principal Sub Court, North Paravur is under challenge in R.F.A.No.120 of 2020 pending before this Court. In that appeal, this Court has not granted stay of operation of Ext.P4 judgment. Similarly, the challenge made against Ext.P3 order of this Court dated 04.12.2019 in F.A.O.No.67 of 2019, arising out of the order in I.A.No.1742 of 2018 in O.S.No.92 of 2018 of the Principal Sub Court, North Paravur, is pending before the Apex Court in S.L.P. (Ciivil)No.117 of 2020. In the said Special Leave Petition as well W.P.(C)No.11786 of 2020 86 there is no interim order. As already noticed hereinbefore, the 1st petitioner Church is serial No.778 in the list of 1064 Churches submitted in O.S.No.4 of 1979, which has culminated in the judgment of the Apex Court in P.M.A. Metropolitan. The 1st petitioner Church also participated in the Malankara Association convened as per the orders of the Apex Court, as evident from Ext.P12 list of Churches. In the said list, the 1 st petitioner Church is serial No.37, under Angamaly Dioceses.
19.8. The contention raised by the learned counsel for the party respondents is that the 1 st petitioner Church, which has been constituted through Ext.R7(b) Gift Deed No.1997/1905 of the Sub Registrar Office, Alangad, is a Trust in favour of the Parish. Therefore, the Church and its properties are neither Badrasana property nor property belonging to either faction of Malankara Church, i.e., Orthodox or Patriarch. The learned Counsel would also contend that O.S.No.92 of 2018 is bad for non-joinder of necessary parties and it is also barred by res judicata, under Order II Rule 2 and Order IX Rule 9 of the Code of Civil Procedure, on account of the dismissal of O.S.No.193 of 2002 by the Principal Sub Court, North Paravur and by the dismissal of A.S.No.36 of 2007 by Ext.R7(c) judgment of the Additional District Court, North Paravur. W.P.(C)No.11786 of 2020 87 The learned counsel would also point out the dismissal of O.S.No.281 of 1998 and the dismissal of A.S.No.61 of 2004 by the Additional Sub Court, North Paravur for non-prosecution, by Ext.R7(d) judgment. These contentions have already been raised in R.F.A.No.120 of 2020 pending before this Court against Ext.P4 judgment and decree of the Principal Sub Court, North Paravur in O.S.No.92 of 2018. This Court in exercise of writ jurisdiction under Article 226 of the Constitution of India need not consider those such contentions, which are left open to be raised at appropriate stage, in R.F.A.No.120 of 2020, which is pending consideration before this Court.
20. In State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006] a Constitution Bench of the Apex Court was dealing with civil appeals filed by the State of Madhya Pradesh against the judgments of the High Court of Madhya Pradesh in applications filed under Article 226 of the Constitution of India by the dealers in tobacco, who carried on business in the State of Madhya Bharat, which later became part of the State of Madhya Pradesh. They were assessed to sales tax on their sales of tobacco in accordance with the notification issued by the State of Madhya Bharat in exercise of powers under Section 5 of the Madhya Bharat Sales Tax Act, 1950 W.P.(C)No.11786 of 2020 88 and large amounts were collected by the State of Madhya Bharat and later by the State of Madhya Pradesh. The writ petitioners contended that the taxing provision under which the tax was assessed and collected from them was unconstitutional as it infringed Article 301 of the Constitution of India and did not come within the special provisions of Article 304(a). Accordingly they prayed for appropriate writs or orders for refund of all the taxes that has been collected from them. In resisting these writ petitions the State of Madhya Pradesh contended that the taxing provisions did not offend Article 301 of the Constitution and that, in any case, they satisfied the requirements of Article 304(a). It was further contended that even if the taxing provision was unconstitutional and the assessment and collection of tax had been without any legal authority the writ petitioners were not entitled to the order for refund prayed for. The High Court was of the opinion, on a consideration of the notification under which the tax was assessed, that it imposed a tax only on imported tobacco and not on home grown tobacco and so it did not come within the special provisions of Article 304(a) of the Constitution and consequently, the infringement of Article 301 of the Constitution which resulted from the imposition of a tax on import of goods, made the provisions W.P.(C)No.11786 of 2020 89 void in law. The prayer for refund was allowed in the applications out of which Civil Appeal Nos.362-377 of 1962, Civil Appeal Nos.861-867 of 1962 and Civil Appeal No.25 of 1963 have arisen. The prayer was rejected in the remaining applications. In the civil appeals, the State of Madhya Pradesh challenged the correctness of the decision of the High Court that the taxing provisions was unconstitutional and void and also the orders for refund made in some of the applications mentioned above.
20.1. In Bhailal Bhai the Apex Court noticed the distinction made by Section 8 of the Madhya Bharat Sales Tax Act between sales by a dealer who imports goods [clause (a)] and other dealers [clauses (b) and (c)]. Therefore, it is not unreasonable to think that the Act itself contemplated the sales by an importer of goods as meaning only sales by him of goods imported by him into Madhya Bharat. Apart form this, admittedly, the notification did not make dealers who dealt only in home grown or home produced tobacco liable to pay the tax. That by itself would be sufficient to bring in the vice of discrimination which is the purpose of Article 304(a) to prevent. Therefore, there can be no escape from the conclusion that similar goods manufactured or produced in the State of Madhya Bharat have not been subjected to the tax which tobacco W.P.(C)No.11786 of 2020 90 leaves, manufactured tobacco and tobacco used for bidi manufacturing, imported from other States have to pay on sale by the importer. This tax is therefore not within the saving provisions of Article 304(a) and it contravenes the provisions of Article 301 of the Constitution. The assessment of tax under these notifications, as rightly held by the High Court, was thus invalid in law. A portion of the tax thus assessed has been already paid by the petitioners. This payment was made under a mistake within Section 72 of the Indian Contract Act, 1872 and so the Government to whom the payment has been made by mistake must in law repay it.
20.2. In Bhailal Bhai another question considered by the Constitution Bench was whether the relief of repayment has to be sought by the tax payer by an action in a civil court or whether such an order can be made by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The Apex Court noticed that the jurisdiction conferred by Article 226 is in very wide terms. Article 226 empowers the High Court to give relief by way of enforcement of fundamental rights and other rights by issuing directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and W.P.(C)No.11786 of 2020 91 certiorari. Before the Apex Court, the petitioners in the writ petitions contended that a writ in the nature of mandamus can be appropriately used where money has been paid to the Government by mistake to give relief by commanding repayment of the same. In a number of cases the High Courts have used the writ of mandamus to enforce such repayment. In Firm ATB Mehtab Majid and Co. v. State of Madras [AIR 1963 SC 928] the Court made in a petition under Article 32 of the Constitution an order for refund of tax illegally collected from the petitioner under Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.
20.3. In Bhailal Bhai the Apex Court noticed that, the question whether the court has power to order refund was not however raised before the High Court or the Apex Court. In Sales Tax Officer, Banaras v. Kanhaiya Lal Mukundlal Saraf [AIR 1959 SC 135] the appellants disputed the correctness of the order of the High Court made in an application under Article 226 of the Constitution directing refund of taxes that had been paid under the U.P. Sales Tax Act on the respondent's forward transactions in silver bullion. After the levy of sales tax on such transactions was held to be ultra vires by the High Court of Allahabad the respondent asked W.P.(C)No.11786 of 2020 92 for refund of the tax paid and when that was refused he applied to the High Court under Article 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made by the High Court for refund was affirmed by the Apex Court in appeal.
20.4. In Bhailal Bhai the Apex Court held that, if a right has been infringed, whether a fundamental right or a statutory right, and the aggrieved party comes to the court for enforcement of the right it will not be giving complete relief if the court merely declares the existence of such right or the fact that that existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by the Apex Court that where there has been a threat only and the right has not been actually infringed an application under Art.226 would lie and the courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the court must still W.P.(C)No.11786 of 2020 93 refuse, where the right has been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made. Therefore, the Apex Court held that, High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.
20.5. In Bhailal Bhai the Apex Court held further that, the special remedy provided in Article 226 of the Constitution of India is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where a W.P.(C)No.11786 of 2020 94 person comes to the court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that, if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is not such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to W.P.(C)No.11786 of 2020 95 refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.
21. In Thansingh Nathmal v. Superintendent of Taxes, Dhubri [AIR 1964 SC 1419] a Constitution Bench of the Apex Court was dealing with cases in which the appellants were merchants carrying on business as dealers in jute, having their principal place of business at Calcutta and branch office at Dhubri in State of Assam, who are registered dealers under the Assam Sales Tax Act, 1947. They approached the High Court of Assam under Article 226 of the Constitution of India against the orders passed by the Assistant Commissioner of Taxes, whereby their appeals filed against the best judgement assessment made by the Superintendent of Taxes under sub-section (4) of Section 17 of the Assam Sales Tax Act ended in dismissal. Before the High Court it was contended that, Explanation to sub-section (12) of Section 2 of the Act is ultra vires the Assam Legislature under the provisions of the Government of India Act, 1935 and therefore, tax could not be levied on sales irrespective of the place where the contracts were made, merely relying upon the circumstances that at the time of contracts of sale the goods contracted to be sold were actually in Assam Province. It was further contended that the finding recorded W.P.(C)No.11786 of 2020 96 by the Commissioner of Taxes that the goods were actually in Assam Province at the time when the contracts were made was speculative. After considering the rival contentions, the High Court held that, Explanation to sub-section (12) of Section 2 of the Act was in respect of the period prior to the Constitution, which is not ultra vires the authority of the Provincial Legislature and that, no attempt was made to establish before the appellate authority that the books of account supported the contention that the goods were not actually in existence in the State of Assam at the time of the contracts of sale. Holding that the reasons which the Commissioner of Taxes had given in support of his finding were not 'altogether unjustified' and that, the taxing authorities being 'fully conscious' that one of the essential ingredients of tax liability was that the goods must be actually in existence in the State of Assam at the time of the contract of sale, the High Court declined to consider whether the conclusions of the taxing authorities on questions of fact were correct. But the High Court held that the plea about the vires of sub-section (12) of Section 2 of the Act and the Explanation thereto raised a substantial question as to the interpretation of the Constitution, and accordingly granted certificates of fitness under Article 132 of the Constitution. W.P.(C)No.11786 of 2020 97
21.1. In Thansingh Nathmal, the Apex Court held that, against the order of the Commissioner of Taxes an order for reference could have been made under Section 32 of the Assam Sales Tax Act, 1947 if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed. The appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale and invoked the extra ordinary jurisdiction of the High Court under Article 226 of the Constitution of India and sought to reopen the decision of the taxing authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary. It is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised, subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed the statute. Ordinarily, the High Court will W.P.(C)No.11786 of 2020 98 not entertain a petition for a writ under Article 226, were the petitioner has an alternative remedy which without being unduly onerous provides an equally efficacious remedy. Again, the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 of the Constitution trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by the statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
21.2. In Thansingh Nathmal, on the facts of the cases on hand, the Apex Court held that, the appellants had the right to move the Commissioner of Taxes to refer a case to the High Court under Section 32 of the Assam Sales Tax Act and to move the High W.P.(C)No.11786 of 2020 99 Court if the Commissioner refused to refer the case. But they did not do so, and moved the High Court in its jurisdiction under Article 226 of the Constitution, and invited the High Court to reopen the decision of the taxing authorities on question of fact, which jurisdiction by the statute constituting them is exclusively vested in the taxing authorities. This they did without even raising the questions before the Superintendent of Taxes and the Assistant Commissioner. The Apex Court further held that, assuming that there is some substance in the contention that the adjudication by the Commissioner of Taxes proceeded on grounds which the appellants characterised as 'speculative', it was open to them to resort to the machinery provided by the Act, and having failed to do so, they could not ask the High Court to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the Act.
22. In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Apex Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution of India. The Apex Court held that, the High Court while exercising its extraordinary jurisdiction under Article W.P.(C)No.11786 of 2020 100 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities, as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. The High Court while exercising its jurisdiction under Article 226 is duty bound to consider whether: adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; the petition reveals all material facts; the petitioner has any alternative or effective remedy for the resolution of the dispute; person invoking the jurisdiction is guilty of unexplained delay and laches; ex facie barred by any laws of limitation; grant of relief is against public policy or barred by any valid law; and host of other factors. The High Court in appropriate cases in its discretion may direct the W.P.(C)No.11786 of 2020 101 State or its instrumentalities, as the case may be, to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law.
23. In United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110] the Apex Court was dealing with a case in which the appellant Bank sanctioned a term loan of Rs.22,50,000/- in favour of the 2nd respondent M/s.Pawan Color Lab, in November, 2004. In that loan transaction the 1st respondent stood as guarantor, by mortgaging her property. Since repayment of the loan was highly irregular, the loan account was classified as Non- Performing Asset (NPA). The appellant Bank issued notice under sub-section (2) of Section 13 of the Act requiring the borrower and the 1st respondent guarantor requiring them to pay Rs. 23,22,972/- W.P.(C)No.11786 of 2020 102 along with future interest and incidental expenses. The said notice was followed by an application before the District Magistrate, Allahabad under Section 14 of the Act seeking assistance to take possession of the secured asset, which was allowed by order dated 25.08.2008, and noticed dated 21.01.2009 issued by the appellant Bank under sub-section (4) of Section 13 of the Act. Faced with the imminent threat of losing the mortgaged property, the 1 st respondent filed writ petition before the High Court of Judicature at Allahabad. The Division Bench of the High Court did not even advert to the plea of the appellant Bank that the writ petition should not be entertained because an effective alternative remedy was available to the writ petitioner under Section 17 of the Act and passed an interim order restraining the appellant Bank from taking action in furtherance of notice issued under sub-section (4) of Section 13 of the Act.
23.1. In Satyawati Tondon, on the question as to whether the appellant Bank could have issued notices to the 1 st respondent guarantor under sub-sections (2) and (4) of Section 13 of the Act and filed an application under Section 14, without first initiating action against the 2nd respondent borrower for recovery of the outstanding dues, the Apex Court noticed that the said question is W.P.(C)No.11786 of 2020 103 no more res integra in view of the law laid down in Bank of Bihar Ltd. v. Damodar Prasad [AIR 1969 SC 297] that, it is the duty of the surety to pay the decretal amount. On such payment he will be subrogated to the rights of the creditor under Section 140 of the Indian Contract Act, and he may then recover the amount from the principal. The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. Therefore, the High Court completely misdirected itself in assuming that the appellant Bank could not have initiated action against the 1st respondent guarantor without making efforts for recovery of its dues from the 2nd respondent borrower.
23.2. In Satyawati Tondon, on the challenge made against the notice to the 1st respondent guarantor under sub-section (4) of Section 13 of the Act and also the order of the District Magistrate under Section 14 of the Act, the Apex Court held that, if the 1st respondent had any tangible grievance against the notice issued under sub-section (4) of Section 13 of the Act or the action taken under Section 14, then she could have availed remedy by filing an application under sub-section (1) of Section 17. The expression 'any person' used in sub-section (1) of Section 17 is of wide import. It takes within its fold, not only the borrower but also guarantor or W.P.(C)No.11786 of 2020 104 any other person who may be affected by the action taken under sub-section (4) of Section 13 or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Section 17 and Section 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that it will ordinarily not entertain a petition under Article 226 of the Constitution of India if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. While dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislation enacted by Parliament and State Legislature for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before W.P.(C)No.11786 of 2020 105 availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
23.3. In Satyawati Tondon the Apex Court held that, the powers conferred upon the High Court under Article 226 of the Constitution of India to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, the court cannot be oblivious of the rules of self-imposed restraint evolved by the Apex Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action W.P.(C)No.11786 of 2020 106 initiated by the State and/ or its agencies/ instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/ institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556], Whirlpool Corporation v. Registrar of Trade Marks, Mumbai [(1998) 8 SCC 1] and Harbanslal Sahnia v. Indian Oil Corporation Ltd. [(2003) 2 SCC 107] and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.
24. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held that non- W.P.(C)No.11786 of 2020 107 entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226.
25. In Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85] the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well-defined exceptions as observed in Chaabil Das Agarwal [(2014) 1 SCC 603], i.e., W.P.(C)No.11786 of 2020 108 where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in Thansingh Nathmal [AIR 1964 SC 1419] and Titaghur Paper Mills Company Ltd. [(1983) 2 SCC 433] the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
26. As already noticed, in Bhailal Bhai [AIR 1964 SC 1006] a Constitution Bench of the Apex Court held that the special remedy provided in Article 226 of the Constitution of India is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and W.P.(C)No.11786 of 2020 109 to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution. In Thansingh Nathmal [AIR 1964 SC 1419] a Constitution Bench of the Apex Court held that resort to the jurisdiction under Article 226 is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed the statute. Ordinarily, the High Court will not entertain a petition for a writ under Article 226, were the petitioner has an alternative remedy which without being unduly onerous provides an equally efficacious remedy. The Apex Court reiterated the above principle in Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168], Satyawati Tondon [(2010) 8 SCC 110], Chhabil Das Agarwal [(2014) 1 SCC 603] and Mathew K.C. [(2018) 3 SCC 85].
27. In P.R. Murlidharan v. Swami Dharmananda Theertha Padar [(2006) 4 SCC 501] the Apex Court was dealing with a case in which the 1st respondent therein claimed himself to be a Sanyasi in the tradition of 'Sree Chattambi Swamy Thiruvadikal' and Madathipathi and Sthiradhyakshan of Parama Bhattara Gurukula Seva Sangham, known as 'Vadayampadi Asharamam'. He filed a suit in the Munsiff's Court, Kolencherry as O.S.No.71 of 2000 for a declaration that he was entitled to continue W.P.(C)No.11786 of 2020 110 in the said capacity and he was not allowed to discharge his duties attached to the said office in terms of the purported order dated 20.01.1996 of Kailasanatha Theertha Padar. The said suit was dismissed for default. An application for restoration of the said suit was filed which was also dismissed. In relation to the affairs of the trust a suit as O.S.No.30 of 2002 is pending in the Munsiff's Court, Kolencherry. The said suit has been filed by one G. Parameswaran Nair, founder member of Vadayampadi Asharamam questioning the aforementioned purported resolution dated 07.01.2001. Brahmasree Kailasanatha Theertha Padar filed an interlocutory application for getting himself impleaded as a party, alleging that as per the bye laws, he had admittedly been serving in the said capacity since 1996 and, thus, in law continues to be the Madathipathi and Sthiradhyakshan. The said applicant as also the 1st respondent before the Apex Court are parties in O.S.No.30 of 2002. Though O.S.No.71 of 2000 filed by the 1 st respondent was dismissed, he filed W.P.(C)No.16047 of 2004 before this Court praying for police protection. A Division Bench of this Court went into the question as to whether the 1 st respondent herein was entitled to hold the office of Madathipathi and Sthiradhyakshan for the purpose of issuing an appropriate direction as regards grant of W.P.(C)No.11786 of 2020 111 police protection. This Court opined that the State and the police officials have got a legal obligation to give protection to the life and properties of the appellant upon arriving at a finding of fact that he was entitled to hold the said office. Aggrieved by that judgment, the appellant approached the Apex Court.
27.1. In P.R. Murlidharan the Apex Court noticed that the construction of the trust and the rights and obligations thereunder were in question. The 1st respondent filed a suit in that behalf, which was dismissed. In terms of Order IX, Rule 9 of the Code of Civil Procedure, 1908 another suit would not be maintainable at his instance. Another suit, i.e., O.S.No.30 of 2002 filed by one G. Parameswaran Nair is pending in the Munsiff's Court. The High Court, despite noticing the said fact, sought to usurp the jurisdiction of the civil court, and determined the contentious issues which were required to be proved in terms of the provisions of the Evidence Act, 1872. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining W.P.(C)No.11786 of 2020 112 such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. The 1st respondent who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order IX, Rule 9 of the Code of Civil Procedure stare on his face. He, therefore, could not have filed a writ petition for getting the selfsame issues determined in his favour, which he could not do even by filing a suit. Indeed the jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution, but while doing so it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant in O.S.No.30 of 2002 has raised a contention that he alone was ordained to hold the said W.P.(C)No.11786 of 2020 113 office as per the bye laws of the trust. The qualification of the 1 st respondent to hold the office was also in question. In this view of the matter, the Apex Court held that such disputed questions could not have been gone into by the High Court in a writ proceeding. Furthermore, the jurisdiction of the civil court is wide and plenary. In a case of this nature, a writ proceeding cannot be a substitute for a civil suit. For the said reasons, the Apex Court set aside the impugned judgment of the Division Bench of this Court. However, the appeal was allowed with the observation that, in the event the 1st respondent feels that he as a person should receive protection to his life, he may make an appropriate representation to the Superintendent of Police, who after causing an inquiry made in this behalf may pass an appropriate order as is permissible in law.
27.2. In P.R. Murlidharan, P.K. Balasubramaniam J in his concurring judgment observed that, a writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order W.P.(C)No.11786 of 2020 114 and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. On the facts of the case on hand, the learned Judge noticed that, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil W.P.(C)No.11786 of 2020 115 court, in view of Order IX, Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. As rightly pointed out in the judgment, the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. The High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for. A writ W.P.(C)No.11786 of 2020 116 for 'police protection' so called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order.
28. In Kanwar Singh Saini v. High Court of Delhi [(2012) 4 SCC 307] the Apex Court held that an application under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit and in a case where there is disobedience of the judgment and decree it has to be dealt with in execution proceedings under Order XXI, Rule 32 of the Code.
29. In George Mirante v. State of Kerala [1990 (2) KLT 89] this Court held that, in matters involving civil rights, or disputes regarding title and possession over property, it is not proper for this Court to interfere under Article 226 of the Constitution with an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding W.P.(C)No.11786 of 2020 117 boundaries or regarding easements or the like. These are matters essentially within the domain of the civil courts. The parties should approach those Courts and seek redress. Police does not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose. It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognisable offences, and to preserve law and order.
29.1. In George Mirante this Court held further that, it will be totally against the rule of law if the right of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the civil court for the establishment of his rights, and seek appropriate injunctive reliefs against the offending party, and if any such orders are attempted to be violated, to seek their enforcement by the civil court itself. The civil court has the power in such cases to enforce its orders under Order XXXIX, Rule 2A or Section 151 of the Code of Civil Procedure with police aid, if necessary, as held by this Court in Mohammed v. Mohammed Ali [1986 KLT 134]. When such remedies are available, this Court W.P.(C)No.11786 of 2020 118 should be loathe to direct interference by the police or to afford protection, though this Court is not powerless to act in appropriate cases to preserve the rights to property. But such interference should be made sparingly, and not in cases where the parties have an effective remedy or relief by resort to the civil court itself.
30. In Madavana Masjidul Badariya Jamaath and another v. Seethi K.A. and others [2017 (4) KHC 770] a Division Bench of this Court held that, in a proceedings under Order XXXIX, Rule 2A of the Code of Civil Procedure alleging disobedience of any injunction granted or other order made under Order XXXIX, Rule 1 or Rule 2 of the Code or breach of any of the terms in which the injunction was granted or the order made, the principles of criminal law (as to the manner of appreciation of evidence) should apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the order of injunction.
30.1. In Madavana Masjidul Badariya Jamaath the Division Bench held further that, the parties to the lis should not be allowed to flout the order of court and avoid actions under the guise of pendency of the substantial proceedings. The main object of Order XXXIX Rule 2A of the Code is to uphold the majesty of W.P.(C)No.11786 of 2020 119 judicial orders, as otherwise, it would erode the faith of litigants in the Justice Delivery System. Therefore, whenever such applications are filed, trial courts should take up those applications notwithstanding the pendency of the suit.
31. In Shaji M.K. and another v. State of Kerala and others [2018 (3) KHC 69] a Division Bench of this Court was dealing with a case in which the petitioners therein, who are husband and wife, filed writ petition seeking a writ of mandamus commanding respondents 3 and 4 to afford them adequate and effective police protection to use plaint D schedule property in O.S. No. 1241 of 2016 on the file of the Principal Munsiff's Court, Ernakulam, in terms of Ext.P2 order of injunction in I.A. No.2462 of 2018. The 1st petitioner filed O.S.No.1241 of 2016, a suit for declaration and injunction filed against the 5 th respondent, seeking a decree declaring that the plaintiff and his family members have absolute right over plaint D schedule pathway to the exclusion of the defendant and that, it is a private property of the plaintiff and his family members and that, the defendant has no right to use the said property in any manner whatsoever. The plaintiff has also sought for a decree of permanent prohibitory injunction restraining the defendant from obstructing or interfering with the peaceful use W.P.(C)No.11786 of 2020 120 and enjoyment of plaint D schedule pathway by the plaintiff and his family members and from trespassing into plaint D schedule property or using the same in any manner and from committing any waste therein. During the pendency of O.S.No.1241 of 2016, the 1st petitioner filed I.A.No.2462 of 2018 seeking an interim prohibitory injunction restraining the 5th respondent and anyone claiming through her from in any manner obstructing his actual use and enjoyment of plaint D schedule pathway for free ingress and egress to his property. On 12.04.2018, when I.A.No.2462 of 2018 came up for consideration, counsel on both sides submitted 'no objection' to direct both parties to keep the present state of plaint D schedule pathway, as noted in the report filed by the Advocate Commissioner, till the disposal of lis. Accordingly, by Ext.P2 order dated 12.04.2018, both parties were directed not to alter the present lie and nature of plaint D schedule pathway and not to obstruct the use of the said pathway, until further orders. On 21.04.2018, the 2nd petitioner submitted Ext.P3 complaint before the 4th respondent Sub Inspector of Police, Cheranalloor, wherein it is alleged that, in breach of Ext.P2 order of temporary injunction, respondents 5 to 8 obstructed the petitioners from bringing construction materials to plaint A schedule property through plaint W.P.(C)No.11786 of 2020 121 D schedule pathway. Therefore, the 4 th respondent was requested to take necessary steps to prevent them from causing any such obstruction and to render necessary protection to the petitioners. The 4th respondent acknowledged the receipt of Ext.P3 complaint, vide Ext.P4 receipt dated 21.04.2018. On 21.04.2018 itself, the 2 nd petitioner submitted Ext.P5 complaint before the 3 rd respondent Commissioner of Police alleging that, on 21.04.2018 at 11.30 am, despite Ext.P2 order of temporary injunction, respondents 5 to 8, their men and agents obstructed the petitioners from bringing bricks in a Nissan lorry to plaint A schedule property, through plaint D schedule pathway, and the vehicle had to return without unloading the bricks. Therefore, the 2 nd petitioner sought adequate and effective police protection to her and also to her family to bring construction materials to their property through the pathway mentioned as plaint D schedule property in Ext.P2 order of temporary injunction and for enjoying the said pathway in terms of the said order of injunction.
31.1. In Shaji M.K., taking note of the law laid down in Kanwar Singh Saini, George Mirante and Madavana Masjidul Badariya Jamaath, the Division Bench of this Court held that, where there is disobedience or breach of an order of temporary W.P.(C)No.11786 of 2020 122 injunction passed by the civil court under Order XXXIX, Rule 1 of the Code of Civil Procedure, the remedy open to the plaintiff/ applicant is either to apply that court under Order XXXIX, Rule 2A of the Code seeking an order to attach the property of the person guilty of such disobedience or breach and for an order to detain such person in civil prison for a term not exceeding three months. In appropriate cases, the plaintiff/applicant can invoke the inherent powers of the civil court under Section 151 of the Code, which includes the power to grant police protection to secure compliance of the order of temporary injunction. When there are adequate provisions under the Code which enables the civil court to enforce and implement its orders, the plaintiff/ applicant cannot approach this Court under Article 226 of the Constitution of India seeking police protection to secure compliance of the order of temporary injunction.
31.2. In Shaji M.K., on the facts of the case on hand, the Division Bench held that, if there is any disobedience or breach of Ext.P2 order of temporary injunction, the remedy open to the 1 st petitioner, who is the plaintiff in O.S.No.1241 of 2016 on the file of the Principal Munsiff's Court, Ernakulam, is either to apply that Court under Order XXXIX, Rule 2A of the Code against the person W.P.(C)No.11786 of 2020 123 or persons guilty of such disobedience or breach, or to invoke the inherent powers of that court under Section 151 of the Code, which includes the power to grant police protection, in appropriate cases, to secure compliance of the order of temporary injunction. Accordingly, the Division Bench dismissed the writ petition as not maintainable, without prejudice to the right of the 1 st petitioner - plaintiff to move appropriate applications before the Munsiff's Court for the alleged disobedience/ breach of Ext.P2 order of temporary injunction.
32. In Kunhumuhammed v. Bava Haji [1999 (2) KLT 816] a Division Bench of this Court held that, when there is dispute between parties and when it is only an interim ex parte order passed by the Munsiffs Court which alone is in force, the High Court shall not interfere in the matter invoking its jurisdiction under Article 226 of the Constitution of India, with a direction for police aid. The High Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the civil court and that only a final order passed under Rule 1 or Rule 2 of Order XXXIX of the Code of Civil Procedure can be enforced with the assistance of the police. Courts should be reluctant to grant police protection on the basis of ex W.P.(C)No.11786 of 2020 124 parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which they would not be able to do even after final orders are passed by the civil court. The above legal principle has been followed in another Division Bench decision of this Court in Devadasan v. State of Kerala [ILR 2005 (3) Ker. 249].
33. In Raman and others v. State of Kerala and others [2019 (1) KHC 169] a Division Bench of this Court was dealing with a case in which the writ petition was filed seeking for a writ of mandamus commanding respondents 1 and 2 to give police protection and assistance to the petitioners to reconstruct the iron fence on the boundary separating their property from that of the respondents 3 to 6, so as to prevent them from trespassing into the petitioners' property and committing acts of waste therein. The dispute between the parties centres round the ownership and possession of 50 cents of property. The petitioners filed O.S.No.167 of 2015 before the Additional Munsiff's Court-II, Kozhikode against respondents 3 to 6 for a decree of prohibitory injunction. The Advocate Commissioner filed Ext.P1 report and plan before the W.P.(C)No.11786 of 2020 125 Munsiff's Court. Respondents 3 to 6 remained ex parte and consequently, the suit was decreed. The petitioners filed Ext.P6 execution petition before the Munsiff's Court in order to execute the decree. Thereafter, respondents 3 to 6 filed Ext.P7 application for setting aside the ex parte order along with Ext.P8 petition to condone the delay. Alleging that, on 07.09.2018, the respondents made an attempt to trespass into the property by breaking the iron fence, the petitioners filed Ext.P9 complaint before the 2 nd respondent to provide police protection and assistance to reconstruct the iron fence which has been destroyed by the respondents. The 2nd respondent did not take any action pursuant thereto. Hence writ petition is filed before this Court for police protection for the life and property of the petitioners and also to enable the petitioners to reconstruct the iron fence.
33.1. In Raman one of the contentions raised by respondents 3 to 6 was as to maintainability of the writ petition on the ground that the petitioners could not approach the writ court for the purpose of determining disputed questions of fact, especially when Ext.P7 application to set aside Ext.P2 decree and Ext.P3 judgment was pending adjudication before the competent civil court. The writ petitioners, on the other hand, contended that the State is bound W.P.(C)No.11786 of 2020 126 to give protection to their life and property as guaranteed under Article 21 of the Constitution of India and are duty bound to give effect to the decree pronounced by the competent civil court. The first question considered by the Division Bench was as to whether any statutory duty is cast upon the Police to assist the petitioners in putting up an iron fence to their property. The Division Bench held that the duties of the Police primarily include the detection, prevention and investigation of crimes and also maintaining law and order situation. However, there cannot be any doubt that the prayer for issuance of a writ of mandamus can be granted against the State commanding it to perform its legal duties when it fails or neglects to do so.
33.2. In Raman, after referring to the law laid down in Kunhumuhammed [1999 (2) KLT 816], Devadasan [ILR 2005 (3) Ker. 249] and P.R. Muralidharan [(2006) 4 SCC 501] the Division Bench held that, admittedly, an ex parte decree was passed as per Ext.P2 restraining the respondents 3 to 6 by way of permanent prohibitory injunction from trespassing into the plaint schedule property therein or from carving out any way through the said property. Ext.P7 application for setting aside the ex parte decree along with Ext.P8 petition to condone the delay are pending W.P.(C)No.11786 of 2020 127 consideration before the Munsiff's Court. From Exts.P7 and P8 applications, it cannot be said that the rights of the parties have been determined finally by the civil court. The ex parte decree was granted on a consideration of the materials submitted by the plaintiffs/petitioners without hearing the defendants/respondents 3 to 6. Hence, it is not open to the petitioners to seek police protection merely relying on the ex parte decree granted by the civil court.
34. In Moran. M. Baselios Marthoma Mathews II v.
State of Kerala [(2007) 6 SCC 517] the Apex Court was dealing with a case in which the dispute between the parties, centres round the management of a large number of Churches known as 'Syrian Churches'. The controversy was in regard to the interpretation of a decision of the Apex Court in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma [(1995) Supp. 4 SCC 286]. The appellants filed writ petition before this Court, praying inter alia, for the following reliefs;
"a. In the above facts and circumstances of the case this Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ order or directions commanding respondents 1 to 4 and their subordinates to give effective and adequate police protection to the First W.P.(C)No.11786 of 2020 128 Petitioner to exercise his rights, duties and privileges as The Catholicos cum Malankara Metropolitan of the Malankara Church with respect to the Parishes mentioned in Ext.P4 and Institutions of the Malankara Church without any threat or obstruction from Respondents 5 to 13 or their agents or servants in any manner.
b. To issue a writ of mandamus or any other appropriate writ order or directions commanding respondents 1 to 4 to give effective and adequate police protection to Petitioners to exercise their rights, duties and privileges as Metropolitans of the Malankara Orthodox Syrian Church under the First Petitioner without any threat or obstruction from the Respondents 5 to 13 or their agents or servants in any manner.
c. To issue a writ of mandamus or any other appropriate writ order or directions commanding respondents 1 to 4 to give effective and adequate police protection to other Bishops similarly placed as well as to the faithful members of the Malankara Church for the purpose of participating in the conduct of religious services in the said Parish Churches of the Malankara Church by petitioners without any threat or obstruction from Respondents 5-13 or their agents or servants in any manner.
d. Issue a writ of mandamus or any other appropriate writ order or direction commanding respondents 1 to 4 to take steps to see that respondents 5 to 13 do not enter into any of the churches of the Malankara Orthodox Syrian Church mentioned in Ext.P4 and Institutions of the Malankara Church in any capacity either as Catholicose, Bishop, Priest or in any other manner.W.P.(C)No.11786 of 2020 129
e. Issue appropriate directions to Respondents 1 to 4 to restrain respondents 5 to 13 from in any way obstructing the petitioners from exercising the powers in accordance with the provisions of 1934 Constitution of the Malankara Church with respect to the Parish Churches of the Malankara Church mentioned in Ext.P4 and Institutions of the Church. f. Direct respondents 5 to 13 to pay the cost of this petition to the petitioners."
One of the contentions which has been raised before the High Court was as to maintainability of the writ petition on the premise that the High Court could not have gone into disputed questions of fact and, particularly, the application of the judgment in Most. Rev. P.M.A. Metropolitan in relation to Parish Churches. Appellants, however, raised a contention that the writ petition was maintainable as the State and its officers having regard to the provisions contained in Article 144 of the Constitution of India are duty bound to give effect to the decision of the Apex Court. The High Court in view of the rival contention of the parties formulated two questions for its consideration:
"1. Are the contesting respondents bound by the judgment of the Apex Court in Most. Rev. P.M.A. Metropolitan?
2. Is a case for the issue of a writ of mandamus as prayed for by the petitioners made out?"
Upon noticing the contentions raised on behalf of the parties, including the one that the appellants herein had raised claims over W.P.(C)No.11786 of 2020 130 the properties of the aforesaid churches; in relation whereto there exists serious dispute and about 200 civil suits are pending in different courts in the State of Kerala. The High Court, however, went into the merit of the matter and opined that so far as the rights of Parish Churches are concerned, there was no declaration as against them, having not been impleaded in the proceedings before the Apex Court. Having opined so, the High Court held:
"i. The rights of the Parish Churches were not determined by the Apex Court in the 1995 decision. Thus, it cannot be said that the contesting respondents have no right to manage their properties or that the 1 st petitioner has any right over the churches which were not parties in the case; ii. All the churches listed in Ext.P4 having not been impleaded as parties, no order affecting the rights of those who are not before the Court can be passed;
iii. The churches had the right to form a separate Association. They were also entitled to leave the Malankara Association under Article 19, 25 and 26. It has not been shown that they had acted illegally in doing so;
iv. Police help cannot be ordered for the mere asking. It involves expense for the State. It is not a substitute for proceedings before an appropriate authority or court. It can be normally granted only when there is clear evidence of an existing danger to person or property. In matters involving religious institutions, it would be normally inappropriate to order the grant of police protection unless a clear case for allowing the entry of the police is made out;W.P.(C)No.11786 of 2020 131
v. Keeping in view the peculiar facts and circumstances as noticed above, no ground for the issue of a writ of mandamus as prayed for by the petitioners is made out."
34.1. In Moran. M. Baselios Marthoma Mathews II the question which arose for consideration was as to whether in a situation of this nature, the High Court should have gone into the rival contentions of the parties. The answer is 'No'. There cannot be any doubt whatsoever that prayer for issuance of a writ of mandamus may be granted against the State commanding it to perform its legal duties when it fails and/or neglects to do so. It is, however, another thing that while considering only that aspect of the matter, the Court in the garb of rendering a decision on that limited aspect would go into the disputed question of title and/or interpretation of a judgment of the Apex Court wherefor other remedies are not only available but, as noticed, in fact, more than 200 suits, touching one aspect of the matter or the other, are pending in different civil courts. A distinction must be borne in mind in regard to the exercise of jurisdiction under Article 226 of the Constitution of India in relation to the matters providing for public law remedy vis a vis private law remedy. The High Court while exercising its jurisdiction under Article 226 of the Constitution, no W.P.(C)No.11786 of 2020 132 doubt, exercises a plenary power but then certain limitations in regard thereto are well accepted. Ordinarily, a writ of or in the nature of mandamus would be issued against a 'State' within the meaning of Article 12 of the Constitution of India or the public authorities discharging public functions or a public utility concern or where the functions of the respondents are referable to a statute, which a fortiori would mean that save and except for good reasons Court would not entertain a matter involving private law remedy.
34.2. In Moran. M. Baselios Marthoma Mathews II the Apex Court noticed that the question as regards grant of a relief for providing police protection in a somewhat similar case, came up for consideration before the Court in P.R. Murlidharan v. Swami Dharamananda Theertha Padar [(2006) 4 SCC 501] wherein it was held as follows;
"Furthermore, the jurisdiction of the civil court is wide and plenary. In a case of this nature, a writ proceeding cannot be a substitute for a civil suit."
Balasubramanyan, J., in his concurring opinion observed:
"A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has W.P.(C)No.11786 of 2020 133 not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations."
34.3. In Moran. M. Baselios Marthoma Mathews II, before the Apex Court, the learned Senior Counsel appearing on behalf of the respondents contend that the appellants cannot be permitted to take a different stand now, nor can they be allowed to play fast and loose. The High Court had arrived at its opinion only at their behest. The attention of the Court has also been drawn even to the grounds taken by the appellants, to contend that a writ W.P.(C)No.11786 of 2020 134 of or in the nature of mandamus was sought for enforcing the purported legal right of the appellant vis a vis the State and its officers and not as against the private persons. The Apex Court observed that, such might have been the contentions of the appellants before the High Court or in the Special Leave Petitions, but such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of churches could not have been the subject matter for determination by a Writ Court under Article 226 of the Constitution of India in the garb of grant of police protection to one or the other appellants. The Apex Court, therefore, opined 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 the Apex Court has exercised its appellate jurisdiction under Article 136 of the Constitution of India, it can and should go into that question as well, viz. as to whether the writ petition 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 submitted that different Benches of the High Court W.P.(C)No.11786 of 2020 135 may take different views in regard to the interpretation of the judgments of the Apex Court in Most. Rev. P.M.A. Metropolitan, and in support thereof has placed a judgment of the learned Single Judge of the High Court in St George Jacobite Syrian Christian Church and others v. State of Kerala and others in W.P.(C)No. 32114 of 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. The Apex Court, however, having regard to the opinion expressed as above and furthermore in view of the fact that, admittedly, a Writ Appeal against the judgment of the learned Single Judge has been filed by the aggrieved parties before the Division Bench of the High Court, did not delve into the said contention. The Apex Court opined 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. The Apex Court opined further 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. The Apex W.P.(C)No.11786 of 2020 136 Court made 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.
35. In Raman [2019 (1) KHC 169] the Division Bench held that, in view of the legal principles in Moran. M. Baselios Marthoma Mathews II, disputed questions in regard to the title and possession of the properties cannot have been the subject matter for determination by a Writ Court under Article 226 of the Constitution of India under the guise of police protection, to the petitioners, particularly, when such questions are pending consideration before the competent civil court. Even otherwise, the petitioners, who obtained a decree for permanent prohibitory injunction from a competent court against the respondents, are at liberty to approach the execution court for executing the decree as contemplated under Order XXI Rule 32 of the Code of Civil Procedure, 1908. Having resorted to execution proceedings by virtue of Ext.P6 execution petition, the petitioners are not justified in insisting upon before the High Court for issuance of a writ or in the nature of mandamus directing the police authorities to protect W.P.(C)No.11786 of 2020 137 their claimed possession of the properties without establishing their possession finally in an appropriate civil court.
36. In St. Mary's Orthodox Church v. The State Police Chief [2019 (3) KLT 419] - [S.L.P.(C) No.12461 of 2019 arising out of a judgment of the Division Bench of this Court dated 13.03.2019 in W.P.(C)No.16248 of 2018] the Apex Court after referring to the judgment in K.S. Varghese held as that, in view of the judgment in K.S. Varghese [(2017) 15 SCC 333] there is absolutely no scope to construe the order passed by the High Court in a different manner than the order passed by the Apex Court on 03.07.2017. There cannot be any violation of the order by any one concerned. Even the State Government cannot act contrary to the judgment and the observations made by the Apex Court and has the duty to ensure that the judgment of the Apex Court is implemented forthwith. Any observation made by the High Court contrary to the judgment passed by the Apex Court stands diluted. The State and all parties shall abide by the judgment passed by the Apex Court in totality and cannot solve the matter in any manner different than the judgment passed by the Apex Court. No parallel system can be created.
W.P.(C)No.11786 of 2020 138
37. In Marthoman Church Mulanthuruthy and others v. State of Kerala and others [2020 (3) KHC 448] this Court was dealing with a writ petition pertaining to the affairs of Marthoman Church, Mulanthuruthy. Admittedly, the Church is a part of the Malankara Church. There arose a dispute regarding the administration of the affairs of the Church. A scheme suit was filed as O.S.No.1 of 1124 (ME). A preliminary decree was passed on 11.12.1959 allowing prayer for framing scheme. Pursuant to the preliminary decree, a final decree was passed approving the scheme. Accordingly, Ext.P8 scheme was framed. Based on the decision in K.S. Varghese, an application was filed to pass a supplementary decree to substitute the scheme by the 1934 Constitution. The District Court allowed the prayer as per the order dated 25.10.2019 in I.A.No.624 of 2007. The application was mainly resisted by rival Patriarch faction contending that more than 90% of the Parishners in the Church belonged to Patriarch faction and Bishops of a microscopic minority belonging to Catholicos faction cannot be accepted. This objection was overruled by the District Court relying on the decision in K.S.Varghese.
37.1. In Marthoman Church Mulanthuruthy the resistance of the prayers for police protection was on the ground that writ of W.P.(C)No.11786 of 2020 139 mandamus cannot be used to enforce the judgment of the Apex Court so also to enforce supplementary decree passed by the District Court. The petitioners' prayer is mainly to accord police protection to the Vicar appointed in accordance with the 1934 Constitution to conduct religious services and other affairs related to the Church, by contending that the judgment of the Apex Court in K.S. Varghese is a declaration of law regarding the management of affairs of the Malankara Orthodox Syrian Church. Per conta, the party respondents contended that the judgment of the Apex Court in K.S. Varghese cannot be enforced by invoking the powers of this Court under Article 226 of the Constitution of India. This argument is premised under Article 142 of the Constitution of India. In exercise of the powers conferred by clause 1 of Article 142, an order was issued by the President of India titled 'the Supreme Court (Decrees and Orders) Enforcement Order, 1954' (for brevity, 'the Enforcement Order'). Therefore, the decree of the Apex Court can only be executed in a manner provided therein. The Enforcement Order refers for enforcement of orders and decree of the Apex Court by following the provisions of the law time being in force for enforcement of decree and order. The learned State Attorney has also raised a contention that the decree W.P.(C)No.11786 of 2020 140 has to be executed through the civil court. He also pointed out the difficulties faced by the State and the Police Officers in identifying the true faction representing the 1934 Constitution. The learned Senior Counsel for the petitioners contended that this is not a case where a dispute has arisen in a claim made for recovery of possession. The dispute concerning the management of affairs cannot be addressed when there are a law and order issue, by the civil court. The learned Senior Counsel, placing reliance on the judgments of the Division Bench of this Court in similar instances in W.P.(C)No.25202 of 2017 and W.P.(C) No.10727 of 2019, and the judgment of the learned Single Judge in W.P.(C)No.25089 of 2019 argued that the High Court has necessary power to enforce the directions given by the Apex Court in K.S. Varghese.
37.2. In Marthoman Church Mulanthuruthy, this Court noticed that, the Division Bench of this Court in W.P.(C)No.25202 of 2017 filed by Catholicos had observed that in K.S. Varghese the Apex Court has declared that the 1934 Constitution governs the affairs of the Parish Churches. It binds not only the parties named in the suit but all those who have an interest in the Malankara Church. Findings in the earlier representative suit also bind the Parish Churches/Parishioners. The Patriarch, the Court declared, W.P.(C)No.11786 of 2020 141 cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests), etc. The Patriarch cannot, therefore, create parallel administration. The Division Bench further observed that the Apex Court judgment in K.S. Varghese has put an end to all earlier interim arrangements. In W.P.(C)No.25202 of 2017, the Division Bench noting that the dispute resulted in law and order issue, ordered police protection. The Division Bench in another writ petition, i.e., W.P.(C)No.10727 of 2019, also accorded police protection in a similar dispute. In W.P. (C)No.25089 of 2019 a learned Single Judge accorded police protection in similar circumstances 37.3. In Marthoman Church Mulanthuruthy this Court held that, 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 Apex Court judgment in K.S. Varghese 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 W.P.(C)No.11786 of 2020 142 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 Apex 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 Apex Court, what is expected from the Patriarch faction is its obedience of the Apex 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 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.
37.4. In Marthoman Church Mulanthuruthy this Court held further that, law and order is a matter of governance. The civil court has no role in itself to interfere or supervise the matter of W.P.(C)No.11786 of 2020 143 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.
37.5. In Marthoman Church Mulanthuruthy this Court noticed that, the history of writ of mandamus refers to the use of mandamus as a prerogative writ to be used when there is no legal remedy available. Lord Mansfield, in Rex v. Barker, Et Al'. [(1762) 3 Burr 1265 : (1762) 97 E.R. 823] in as early as 1762 referred the scope of writ of mandamus as a prerogative writ when there is no specific legal remedy. It is opined in Rex v. Barker as follows;
W.P.(C)No.11786 of 2020 144
"Lord Mansfield - A mandamus is a prerogative writ; to the aid of which the subject is intitled, upon a proper case previously shewn to the satisfaction of the Court. The original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought be one."(sic) The police protection jurisdiction exercised by this Court invoking writ of mandamus is for the reason that there is no specific legal remedy available to the party. Lord Mansfield ruling in Rex v. Barker would justify such exercise of jurisdiction by this Court. Interestingly, Lord Mansfield referred to the power of the court for issuing writ of mandamus in a dispute related to meeting-house, for the public worship of God by congregation of Protestant Dissenters and elucidated the scope of mandamus in such dispute as follows:
"Where there is a right to execute an office, perform a service, or exercise a franchise; (more especially, if it be in a matter of public concern, or attended with profit;) and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy; this Court ought to assist by a mandamus; upon reasons of justice, as the writ expresses - Nos A. B. debitam et festinam justitiam in hac parte fieri violentes, ut est justum; and upon reasons W.P.(C)No.11786 of 2020 145 of public policy, to preserve peace, order, and good government."
38. In Marthoman Church Mulanthuruthy this Court held that the law and order is part of the field of enforcement and, its domain is beyond the manageable standards of the civil court. Therefore, the constitutional court alone has the power to enforce the directions of the Apex Court when there is a blatant breach of directions of the Apex Court resulting in it as a law and order issue. The judgment in K.S. Varghese was delivered by the Apex Court on 03.07.2017. On the facts of the case, this Court noticed that, the 4th petitioner has been appointed as a Vicar by the Diocesan Metropolitan of Kochi Diocese. Petitioners 5 to 7 are the Assistant Vicars appointed by the same authority. The party respondents have no case that they have been appointed as per the 1934 Constitution. Their case is that when a scheme has been framed pursuant to the decree of the civil court, any further change can only be effected by varying the scheme and the Constitution thereon. It is their case that the Apex Court judgment can be given effect only by amending the constitution based on the scheme in a proper manner. This Court notied that the dispute has been resolved by the Apex Court perpetually. By declaration of the law, W.P.(C)No.11786 of 2020 146 all that happened by way of decree or order of the civil court have become redundant in as much as that parties are bound to follow the declaration of law laid down by the Apex Court. Therefore, those orders of the civil court will have to yield to the directions given in K.S. Varghese. No party can claim that they would follow the civil court judgment and not the direction of the Apex Court in K.S. Varghese. The subsequent judgment in the representative suit in K.S. Varghese case would bind the parties in respect to the Malankara Church and not the orders of the civil court contrary to it. Therefore, any other contention to resist enforcement of declaration of law by the Apex Court will have to be repelled and negatived. In the result, this Court has granted police protection to the petitioners, as prayed. Paragraph 14 of the judgment reads thus;
"14. In the result, this Court has to grant police protection to the petitioners as prayed. The police shall give effective protection to the petitioners to conduct religious service in Mulanthuruthy Marthoma Church as against any obstruction being caused by party respondents and others. The police shall ensure that no persons other than the petitioners are allowed to conduct religious services in the Church. The police shall ensure that the affairs of the church managed by the petitioners are not obstructed by the respondents. If any W.P.(C)No.11786 of 2020 147 force is required to take over management and entrust the same to the petitioners, it shall also be done by the police. However, it is made clear that all parishioners are free to attend the services of the Church and the petitioners shall not deny them any religious services. The police shall take necessary measures as above until peace is achieved."
39. The judgment of this Court in Marthoman Church Mulanthuruthy was under challenge before the Apex Court in S.L.P.(C)No.11212 of 2020 - Mathai Vaniyath and others v. Marthoman Church Mulanthuruthy and others. The Apex Court dismissed S.L.P.(C)No.11212 of 2020 by order dated 29.09.2020, which reads thus;
"Heard learned counsel for the parties.
We do not find any ground to entertain this special leave petition. The special leave petition is dismissed.
However, we observe that O.P.(Civil) No.57469/19 and the regular appeal filed against the order dated 25.10.2019 of First Additional District Judge should be decided on its own merits. We also note that the petitioners' case is that their case is not covered by K.S. Varghese vs. Saint Peter's and Saint Paul's Syrian Orthodox Church [(2017) 15 SCC 333] whereas the learned counsel for the respondents submits that this case is fully covered by the judgment of this Court in K.S. Varghese (supra).
Pending application(s), if any, stands disposed of."W.P.(C)No.11786 of 2020 148
40. As already noticed, in Marthoman Church Mulanthuruthy the resistance of the prayers for police protection was on the ground that writ of mandamus cannot be used to enforce the judgment of the Apex Court so also to enforce supplementary decree passed by the District Court. The party respondents contended that the decree of the Apex Court can only be executed in a manner provided in the Supreme Court (Decrees and Orders) Enforcement Order, 1954. The learned State Attorney has also raised a contention that the decree has to be executed through the civil court. He also pointed out the difficulties faced by the State and the Police Officers in identifying the true faction representing the 1934 Constitution.
41. Repelling the aforesaid contentions, this Court in Marthoman Church Mulanthuruthy held that 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 Apex Court judgment in K.S. Varghese put an end to the whole controversy regarding the dispute. The resistance made before the District Court as against passing the supplementary W.P.(C)No.11786 of 2020 149 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 Apex 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 Apex Court, what is expected from the Patriarch faction is its obedience of the Apex 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. 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 law and order is part of the field of enforcement and, its domain is beyond the manageable standards W.P.(C)No.11786 of 2020 150 of the civil court. Therefore, the constitutional court alone has the power to enforce the directions of the Apex Court when there is a blatant breach of directions of the Apex Court resulting in it as a law and order issue.
42. In Marthoman Church Mulanthuruthy this Court repelled the contentions raised by the party respondent and also the State to resist enforcement of declaration of law by the Apex Court in K.S. Varghese and granted police protection to the petitioners, by ordering that the police shall give effective protection to the petitioners to conduct religious service in Mulanthuruthy Marthoma Church as against any obstruction being caused by party respondents and others. The police shall ensure that no persons other than the petitioners are allowed to conduct religious services in the Church. However, it was made clear that all Parishioners are free to attend the services of the Church and the petitioners shall not deny them any religious services.
43. The law laid down by this Court in Marthoman Church Mulanthuruthy is affirmed by the Apex Court in Mathai Vaniyath, by dismissing S.L.P.(C)No.11212 of 2020 on 29.09.2020. Therefore, the party respondents and also the State cannot now resist enforcement of declaration of law by the Apex W.P.(C)No.11786 of 2020 151 Court in K.S. Varghese by contending that writ of mandamus cannot be used to enforce the judgment of the Apex Court so also to enforce supplementary decree passed by the District Court; the decree of the Apex Court can only be executed in a manner provided in the Supreme Court (Decrees and Orders) Enforcement Order, 1954; the difficulties faced by the State and the Police Officers in identifying the true faction representing the 1934 Constitution; etc.
44. One of the specific contentions raised by the learned counsel for the party respondents is that the documents placed on record as Exts.P6 to P8 do not disclose a cause of action for maintaining a writ petition under Article 226 of the Constitution of India, seeking police protection. Ext.P6 representation dated 29.05.2020 submitted by the 2nd petitioner before the 6th respondent Station House Officer, Angamaly Police Station or Ext.P8 complaint dated 05.06.2020 submitted by the 2 nd petitioner before the 6th respondent, with copy to the 2 nd respondent District Collector, Ernakulam and the 3rd respondent State Police Chief, do not contain any allegations in support of the averments in the writ petition, which are entirely different. Going by the averments in Exts.P6 and P8 the petitioners are seeking enforcement of Ext.P4 W.P.(C)No.11786 of 2020 152 judgment and decree of the Principal Sub Court, North Paravur in O.S.No.92 of 2018. The allegations contained in Exts.P6 and P8 do not give raise to any cause of action to file writ petition seeking police protection, invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Ext.P7 FIR in Crime No.900 of 2020 of Angamaly Police Station is filed by a stranger against certain persons, in respect of an incident in which none of the party respondents are involved. The said incident is not even mentioned in the writ petition. Ext.P9 judgment of the Division Bench in W.A.No.320 of 2020 dated 18.03.2020 and Ext.P10 judgment of this Court in W.P.(C)No.33316 of 2019 dated 18.05.2020 are rendered in the factual background of several orders of the competent civil court in the first instance and the incidents of obstructions and taking law into their own hands by the respondents therein, in violation of the orders of the civil court, including orders passed by the civil court themselves granting police protection on the basis of its earlier orders. The law laid down in Exts.P9 and P10 judgments cannot be made applicable in the instant case, where R.F.A.No.120 of 2020 is pending before this Court against Ext.P4 judgment in O.S.No.92 of 2018 and S.L.P. W.P.(C)No.11786 of 2020 153 (C)No.117 of 2020 pending before the Apex Court against Ext.P3 order of this Court in F.A.O.No.67 of 2019.
45. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534] the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
46. M/s.Larsen and Toubro Ltd. v. State of Gujarat [(1998) 4 SCC 387] the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land W.P.(C)No.11786 of 2020 154 for M/s.Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that, in the absence of any allegation that Rule 3 the Land Acquisition (Companies) Rules, 1963 had not been complied and there being no particulars in respect of non compliance of Rule 4 also, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules 3 and 4". The Apex Court held that, it is not enough to allege that a particular Rule or any provision has not been complied. It is a requirement of good pleading to give details, i.e., particulars as to why it is alleged that there is non compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its W.P.(C)No.11786 of 2020 155 action when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court. On the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge to Rule 3 and the averments regarding non compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings.
47. In Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639] a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a W.P.(C)No.11786 of 2020 156 rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice.
48. In the instant case, the 2nd petitioner filed Ext.P6 representation dated 29.05.2020 before the 6 th respondent Station House Officer seeking police protection in view of the judgment of the Apex Court in K.S. Varghese and Ext.P4 judgment of the Principal Sub Court, North Paravur in O.S.No.92 of 2018. The apprehension raised in Ext.P6 is that the Patriarch faction is likely to cause obstruction in conducting religious services in the 1 st petitioner Church, by the 2nd petitioner or his successors appointed under 1934 Constitution. Ext.P6 contains no allegations whatsoever against respondents 7 to 9.
W.P.(C)No.11786 of 2020 157
49. It is averred in paragraph 16 of the writ petition that, on 07.06.2020, when petitioners 2 to 4 along with Parishioners went to the 1st petitioner Church, they were obstructed by respondents 7 to 9 and their men and agents. In Ext.P7 FIR in Crime No.900 of 2020 of Angamaly Police Station, registered in connection with the incident alleged to have occurred on 07.06.2020, for offence punishable under Sections 143, 144, 147, 149, 188, 427, 323 and 324 of Indian Penal Code, 1860 and also Sections 4(2)(f) and (5) of the Epidemic Diseases Ordinance, 2020, respondents 7 to 8 are not arrayed as the accused. In Ext.P7 FIR in Crime No.900 of 2020 of Angamaly Police Station, Roy, S/o.Ouseph, Palathinkal; Eldho, S/o.Varghese, Palathinkal; Kuriakose, S/o.Varghese, Palathinkal; Elias, S/o.Thomas, Kathanadan House; Saljo, S/o.Mathai, Parayil House; Wilson, S/o.Mathappan, Thazhathu Parambil House; Shaju, S/o.Mathappan, Thazhathu Parambil House; and 22 identified known persons are arrayed as the accused. None of the persons arrayed as accused in Ext.P7 FIR are made parties to this writ petition, in which the petitioner is seeking police protection.
50. It is averred in paragraph 17 of the writ petition that respondents 7 to 9 broke open the offertory of the Chapel of the 1 st petitioner Church, on 05.06.2020. Ext.P8 is a complaint dated W.P.(C)No.11786 of 2020 158 05.06.2020, filed by the Vicar of the 1 st petitioner Church before the 6th respondent Station House Officer, in relation to the said incident alleged to have occurred on 05.06.2020. In Ext.P8 complaint respondents 7 to 9 are not arrayed as the accused. Ext.P8 complaint is one made against T.V.Sakaria, Thelappilly; T.G.Shajan, Thelappilly; T.V.Sabu, Thelappilly; Biji Itteria, Kooranthazhathu Parambil; Eldho Paul, Thelappilly; Biju Ittikurian, Kooranpuliyappilly House, P.C.Elias, Thelappilly; Pauly Isac, Painadan; P.P.Varghese, Painadan; Jinshon Sajan, Thelappilly; Eldho Varghese, Achanimadan and 3 unidentified persons. None of the known accused in Ext.P8 complaint are made parties to this writ petition, in which the petitioner is seeking police protection.
51. As per Rule 148 of the Rules of the High Court of Kerala, 1971, which deals with addition of parties, all persons directly affected shall be made parties to the petition. Where such persons are numerous, one or more of them may with the permission of the Court on the application made for the purpose be impleaded on behalf of or for the benefit of all persons so affected; but notice of the original petition shall, on admission be given to all such persons either by personal service or by public advertisement as the Court in each case may direct.
W.P.(C)No.11786 of 2020 159
52. When the allegations contained in Ext.P7 FIR in Crime No.900/2020 and Ext.P8 complaint are against certain identified persons, those persons are necessary parties to this writ petition seeking police protection. Therefore, the petitioners cannot file writ petition seeking police protection, without the identified persons in Ext.P7 FIR and Ext.P8 complaint in the party array. Ext.P6 representation, Ext.P7 FIR and Ext.P8 complaint contain no allegations against respondents 7 to 9.
53. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions with in the limit of their jurisdiction.
54. In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by W.P.(C)No.11786 of 2020 160 the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.
55. In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. W.P.(C)No.11786 of 2020 161
56. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law.
57. In order to seek police protection under Article 226 of the Constitution of India, the petitioner in a writ petition filed under Article 226 of the Constitution of India has to first approach the concerned Station House Officer with a proper complaint against those who are causing threat to the life and/or the property of the petitioner. Since a writ of mandamus can be granted only in a case where there is a failure on the part of that officer concerned to discharge the statutory obligation, in the complaint filed before the concerned Station House Officer, which is foundation upon which a writ petition seeking police protection has been built, the petitioner has to disclose his legal right to compel performance of a statutory duty cast upon that authority. The said complaint should contain necessary pleadings. In case there is any failure on the part of the officer concerned in discharging the statutory duty or obligation, the petitioner can approach this Court in a writ petition filed under W.P.(C)No.11786 of 2020 162 Article 226 of the Constitution of India, seeking appropriate reliefs, in which the State of Kerala, the officer concerned and also those who are causing threat to the life and/or the property of the petitioner, as alleged in the said complaint, are to be arrayed as respondents.
58. In the instant case, as already noticed, the identified persons in Ext.P7 FIR and Ext.P8 complaint are not made parties to this writ petition. Ext.P6 representation, Ext.P7 FIR and Ext.P8 complaint contain no allegations against respondents 7 to 9.
In the above circumstances, the petitioners are not entitled to any of the reliefs sought for in the writ petition and the writ petition is accordingly dismissed; however, without prejudice to the right of the petitioners to file appropriate complaint/representation before the 6th respondent Station House Officer and other official respondents seeking adequate and effective police protection to conduct religious services in the 1 st petitioner Church, its chapels, cemetery, etc. by the Vicar appointed by the Diocesan Metropolitan in accordance with the 1934 constitution, and to move a fresh writ petition before this Court with necessary parties in the party array, in case there is inaction on the part of the 6 th respondent Station House Officer and other official respondents in rendering necessary W.P.(C)No.11786 of 2020 163 police protection to conduct religious services in the 1 st petitioner Church, its chapels, cemetery, etc., in terms of the decision of the Apex Court in K.S. Varghese and Ext.P4 judgment of the Principal Sub Court, North Paravur in O.S.No.92 of 2018, taking note of the law laid down by this Court in Marthoman Church Mulanthuruthy, which is affirmed by the Apex Court in Mathai Vaniyath.
Sd/-
ANIL K. NARENDRAN, JUDGE AV/JV/YD W.P.(C)No.11786 of 2020 164 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE MANAGING COMMITTEE HELD ON 9TH AND 10TH AUGUST, 2002.
EXHIBIT P2 TRUE COPY OF KALPANA NO.110/2009 DATED 6.3.2009 APPOINTING H.G.YUHANON MAR POLYCARPOS AS THE DIOCESAN METROPOLITAN OF THE DIOCESE OF ANGAMALY.
EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 4.12.2019 IN F.A.O.NO.67 OF 2019 OF THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 13.5.2020 IN O.S.NO.92 OF 2018 OF PRINCIPAL SUB COURT, NORTH PARAVUR.
EXHIBIT P5 TRUE COPY OF KALPANA NO.AD/YMP/57/2017 DATED 10.7.2017 APPOINTED 2ND PETITIONER AS THE VICAR OF THE 1ST PETITIONER CHURCH BY THE DIOCESAN METROPOLITAN.
EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED
29.5.2020 SUBMITTED BY THE 2ND PETITIONER
BEFORE THE 6TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF F.I.R. IN CRIME NO.900 OF
2020 OF ANGAMALY POLICE STATION.
EXHIBIT P8 TRUE COPY OF COMPLAINT DATED 05.06.2020
SUBMITTED BY THE 2ND PETITIONER BEFORE
THE 6TH RESPONDENT WITH COPY TO
RESPONDENTS 2 AND 3 COMPLAINING ABOUT THE
BROKE OPEN OF THE OFFERTORY OF CHAPEL OF
THE 1ST PETITIONER CHURCH BY RESPONDENTS
7 TO 9 AND THEIR MEN AND AGENTS.
EXHIBIT P9 TRUE COPY OF JUDGMENT IN W.A.NO.320 OF
2020 DATED 18.3.2020 OF THIS HON'BLE
COURT.
EXHIBIT P10 TRUE COPY OF JUDGMENT IN W.P.(C) NO.33316
OF 2019 DATED 18.5.2020 OF THIS HON'BLE
COURT.
W.P.(C)No.11786 of 2020 165
EXHIBIT P11 CERTIFIED COPY OF THE LIST OF 1064
CHURCHES SUBMITTED ALONG WITH O.S.NO.4 OF
1979.
EXHIBIT P12 CERTIFIED COPY OF LIST OF CHURCHES
PREPARED FOR THE PURPOSE OF MALANKARA
ASSOCIATION UNDER THE DIRECTIONS OF THE
HON'BLE SUPREME COURT OF INDIA.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R7(a) TRUE PHOTOCOPY OF THE PLAINT IN O.S
NO.92/2018, PRINCIPAL SUB COURT, NORTH
PARAVUR.
EXHIBIT R7(b) TRUE PHOTOCOPY OF GIFT DEED NO.1997/1905,
ALANGAD SRO.
EXHIBIT R7(C) TRUE PHOTOCOPY OF JUDGMENT DATED
31.3.2008 IN AS NO 36/2007 ON THE FILE OF
ADDITIONAL DISTRICT COURT, NORTH PARUR
EXHIBIT R7(D) TRUE PHOTOCOPY OF JUDGMENT DATED
3.12.2008 IN AS NO 61/2004 ON THE FILE OF
ADDL. SUB COURT, NORTH PARAVUR