Dr. Mathew Mar Savarious v. District Collector, Civil Station Kakkanadu, Ernakulam; Sub Divisional Magistrate, Moovattupuzha; Secretary, Aikkaranad Grama Panchayath, Kadayirappu, Kolencherry; Fr. Sleeva Vattavelil; Additional Respondent 5: St. George Yacobaya Suriyani Church, Kadamattom, represented by its Vicar Fr. Binu Skaria (added as per order)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** ## **WP(C) NO. 4005 OF 2011** ## **PETITIONER:** DR.MATHEW MAR SAVARIOUS S/O.MATTATHIL ANTHRAYOSE, AGED 63,, DIOCESAN METROPOLITAN, KANDANAD WEST DIOCESE,, MAR PACCOMIOUS MOUNT ARAMANA, MEENPARA P.O.,, PIN 682 308. BY ADVS. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN ## **RESPONDENT/S:** 1 THE DISTRICT COLLECTOR, CIVIL STATION KAKKANADU, ERNAKULAM, PIN 682030. 2 THE SUB DIVISIONAL MAGISTRATE MUVATTUPUZHA, PIN 686 661. 3 THE SECRETARY AIKKARANADU GRAMA PANCHAYATH, KADAYIRAPPU, KOLENCHERRY- 682 311. 4 FR.SLEEBA VATTAVELIL VATTAVELIL HOUSE, KOLENCHERRY,PIN 682 311. 5. ADDL. R5: ST. GEORGE YACOBAYA SURIYANI CHURCH, KADAMATTOM, REPRESENTS BY ITS PRESENT VICAR, REV. FATHER FR. BINU SKARIA (ADDL. R5 IS IMPLEADED AS PER ORDER DATED 30-32011 IN I.A. NO. 5477/11) BY ADVS. SRI.PEEYUS A.KOTTAM SRI.N.K.POULOSEKUTTY ## **OTHER PRESENT:** ADV.SRI. ARUN AJAY SHANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 4005 OF 2011** -2- ## **WP(C) NO. 4005 OF 2011** ## **JUDGMENT** The petitioner challenges Ext. P9 by which his request for permission to use the building bearing No. VI/516 in Re-survey No. 248/15 (Old No. 531/6) of Aikkaranad North Village, as a place of worship (Kurisuthotti) under St. Gregorious Catholicate Centre, Kadamattom, was declined. 2. The petitioner is the Diocesan Metropolitan of Kandanadu West Diocese which is one of the Diocese of Malankara Orthodox Syrian Church. The petitioner submits that though the 45 Sq. metre of land and the building mentioned above has been purchased as per Ext. P2 sale deed in the year 2008, they were in possession of the same from 1998 onwards as the owner of the property, granted permission. Following the disputes between two factions, FIR was registered in relation to Crime No. 343 of 2008 of Puthencruz Police Station. Thereafter, by Ext. P6 order the Sub Divisional Magistrate, Moovattupuzha ## **WP(C) NO. 4005 OF 2011** -3- took over possession purportedly under Section 145 (1) and 146 of Cr.P.C. The said order was successfully challenged by the petitioner herein which led to Ext. P6 order being quashed and this Court in Ext. P7 judgment directed the Sub Divisional Magistrate to handover possession to the petitioner, but made it clear that the building should not be used as a place of worship without getting sanction from the District Magistrate. Possession was handed over to the petitioner pursuant to Ext. P7 judgment. It was thereafter, an application was made on 28-7-2009 before the District Collector seeking permission to use the building as a place of worship. In the said application, the 4[th] respondent herein filed objections against granting sanction sought for by the petitioner. The first respondent had also taken note of the report submitted by the police which mentioned a likelihood of breach of peace because of the fights between the Orthodox and the Patriarch faction, in case permission is granted. By Ext. P9, permission was refused and the Sub Inspector of Police, Puthencruz, was directed to ensure that no activities in connection with the prayers and attempts to convert the building into a worship centre (Kurisuthotty) takes place in building No. ## **WP(C) NO. 4005 OF 2011** -4- VI/516 in re-survey No. 248/15 (Old No. 531/6 of Aikkaranad North Village). Challenging Ext. P9, this Writ Petition is filed. 4. The petitioner also submits that when the Vicar appointed under the 1934 Constitution was attempted to be obstructed by persons who had nothing to do with Malankara Church, a suit as O.S. No. 17 of 2004 was filed and the same was pending consideration before the District Court, Ernakulam when the Writ Petition was fled. The suit was however, dismissed by judgment and decree dated 5-12-2013 of the first Addl. District Court, Ernakulam. 5. The learned counsel for the petitioner pointed out that on appeal in R.F.A. No. 236 of 2014, this Court as per judgment dated 13-3-2020, the suit O.S. No. 17 of 2004 mentioned above, has been decreed in favour of the plaintiffs injuncting the defendants 4 to 20 or any other persons claiming under them from committing any act affecting the smooth functioning of the 1st defendant Church and other Chruches under it, including the Poyedam Church; and also against ## **WP(C) NO. 4005 OF 2011** obstructing the plaintiffs from discharging their duties as vicars, priests and employees of the 1st defendant Church and Churches under it, including the Poyedam Church, in accordance with the 1934 Constitution of the Malankara Orthodox Syrian Church, granting a further declaration that the 1st defendant - Church shall be governed only by the said Constitution in terms of the declaration of law by the Hon'ble Supreme Court and in no other manner. 6. The first respondent has filed a counter affidavit pointing out that the Kurisuthotti was taken over by the Revenue Divisional Officer, Moovattupuzha, for avoiding law and order issues, on account of the disputes between the factions. Since Ext.P9 was issued based on credible information from the police officers and the Sub Divisional Magistrate Moovattupuzha that the law and order issue is likely to be precipitated in the area if sanction is accorded, the impugned order is to be sustained and prayed for dismissal of the Writ Petition. ## **WP(C) NO. 4005 OF 2011** -6- 7. Heard the learned counsel for the petitioners, the learned counsel for the respondents as well as the learned Government Pleader. 8. The learned counsel for the petitioner relies on the judgment in Fr. Geevarghese, Vallikkattil and Another v. The District Collector, Idukki and Others [2014 KHC 5040] where a similar issue was considered. This Court found that there can be three categories of disputes and proceeded to state as follows: “7. It is necessary to understand each category of disputes: i) Inter faith disputes:- these disputes arise normally between two different faith or two different religious community members against establishment or construction of religious places. These are more of incorporeal disputes. There may be occasion when disputes may arise between two different faith or two or more religious denominations with regard to interest or title over religious places. Thus, there can be corporeal disputes in inter faith disputes also. ii. Intra faith dispute: These are essentially different denomination of same faith on account of their differences in religious practices or following different leaders of same faith which results in W.P. (C).No.29035/2013 disputes. There are also ## **WP(C) NO. 4005 OF 2011** -7- possibility of corporeal disputes in intra faith disputes.” The approach to be taken by the District Administration were also mentioned. 8. The approach required by the District Administration in the above categories of disputes shall be as follows: i) Any construction of religious place must require prior permission of District Administration. The District Administration while making enquiry for grant of permission only need to consider potential communal violence and any threat to communal harmony for peaceful co-existence. ii) The scope of enquiry is not directed against disturbances based on dispute referable to title or interest in the immovable property, but against communal disharmony. The permission granted not with reference to immovable property but as an approval on satisfaction relating to public order. iii) The permission granted will not confer any right on grantee over any immovable property. iv) The objective of the manual is to secure communal harmony. Therefore, while exercising the power by the District Administration, it has to distinguish between 'public order' and 'law and order' with reference to the objective of the manual and Guidelines. In case the dispute is purely a corporeal dispute, the District Administration need not deny any ## **WP(C) NO. 4005 OF 2011** -8- permission for constructing place of worship subject to any decision by competent civil court or other authority, which is competent to hear the dispute regarding title or interest. This is because there is no issue relating to public order in such situation and only a law and order relating to dispute over title or interest over the immovable property. Of course, in appropriate cases, the Authority can invoke Section 145 of Criminal Procedure Code but that cannot be a reason to deny permission in terms of manual for construction of religious places as an enquiry under the manual is not with respect to particular land over which construction of religious place is proposed. However, in case of incorporeal disputes, the District Administration can refuse permission unless a consensus is arrived among different religious faith or the District Administration feels to issue appropriate order in the light of objective of manual. The purpose of manual is only to secure public order and not law and order. Law and order is totally a different subject and has to be dealt differently, not under the guidelines. It is in the above back ground this writ petition has to be examined. After holding so, this Court had also held no permission can be declined on account of the disputes over title, interest, and directed as follows: ## **WP(C) NO. 4005 OF 2011** -9- 11. As has been noted above, no permission can be declined on account of the dispute over title, interest or management over the property as the enquiry under the manual is not directed against any title or interest over the property. On the other hand based on public order, to obviate potential threat to communal harmony, the corporeal disputes between denominations of same faith cannot be a reason to deny permission under the manual for establishing religious place. It appears that by such disputes, District Administration also fall into recognise corporeal disputes over property and management in exercising their power under the manual. Such disputes are outside the purview of District Administration while seeking permission for establishing worship places. The permission granted under the manual cannot be used as a right to construct a religious place in particular land or property. It is only an approval of existence of public order for constructing a religious place and nothing beyond that. In view of the above, Ext.P8 is set aside. There shall be a direction to the District Collector to grant permission to the petitioner to construct worship place subject to decision by any competent civil court regarding title, interest, possession, management etc. of the Church situated in the immovable property. Needful shall be done within 10 days from the date of receipt of a copy of this judgment. ## **WP(C) NO. 4005 OF 2011** -10- 9. It is trite that once the disputes either on the question of right, title or management of the properties are decided by a competent court, the said decision has to be respected by all concerned which include the executive as well. The district administration cannot be heard to say that despite the competent court declaring the rights, in the guise of a threat to law and order, permission could be refused to establish a place of worship. If such a stand is accepted, it is nothing short of a negation of the rule of law which cannot be countenanced at all. Likelihood of a threat of the law and order situation is certainly to be averted by the district Administration and the police. It cannot be allowed to be taken as a reason to discard or not accepting a decision of the competent Court governing the field while considering the grant of permission for establishing a place of worship. Doubtless, it is the duty of the district Administration and the police to maintain communal harmony, public peace and law and order and no exception can be made to such duty of theirs. No reason put forth by any party can be accepted for not abiding by the decisions of the Courts, the ultimate arbiter in dispute resolution. **WP(C) NO. 4005 OF 2011** -11- In the above circumstances, I have no hesitation to quash Ext. P9 and to direct the first respondent to take a fresh decision on the basis of what is stated above and reckoning the judgment in R.F.A. No. 236 of 2013 and the principles laid down in 2014 KHC 5040. The Writ Petition is allowed as above. ## Sd/-C.P. MOHAMMED NIAS, JUDGE. Ani/16/11 /true copy/ ## **WP(C) NO. 4005 OF 2011** -12- ## PETITIONER EXTS: EXT.P1: TRUE COPY OF COMPROMISE DECREE DATED 1-3-1960 EXT.P2: TRUE COPY OF ASSIGNMENT DEED NO. 4488 /2008 DATED 4-6-2008 EXT.P3: TRUE COPY OF OBJECTION TO EXT. P3 FILED BY THE PETITIONER EXT.P4: TRUE COPY OF OBJECTION TO EXT. P3 FILED BY THE PETITIONER EXT.P5: TRUE COPY OF FIR IN CRIME BNO. 343/2008 OF PUTHENKURIZ POLICE STATION EXT.P6: TRUE COPY OF ORDER NO. A6-4975/98 DATED 0606-2008 PASSED BY THE 2ND RESPONDENT EXT.P7: TRUE COPY OF JUDGMENT IN WPC 16527/08 DATED 15-12-2008 EXT.P8: TRUE COPY OF G.O.P.NO.9/2002/HOME DATED 1601-2002 EXT.P9: TRUE COPY OF ORDER DATED 28-6-2010 ISSUED BY THE IST RESPONDENT EXT.P10: TRUE COPY OF PETITION DATED 12-01-2009 FILED BY THE 4TH RESPONDENT BEFORE THE FIRST RESPONDENT EXT.P11: TRUE COPY OF REPORT SUBMITTED BY THE SUPERINTENDENT OF POLICE RURAL, ALUVA DATED 8-4-2010