Fr. K.K. Mathews & Others v. Rev. Fr. C.K. Isaac & Others

W. A. No. 913 of 2023 -1- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 WA NO. 913 OF 2023 ``` ``` AGAINST THE JUDGMENT WP(C) 25645/2019 OF HIGH COURT OF ``` ## **`KERALA`** ## **`APPELLANT/S:`** - **`1 FR. K.K. MATHEWS AGED 60 YEARS KUZHUVELIPPURAM HOUSE, PALLARIMANGALAM P.O., POTHANIKAD , ERNAKULAM DISTRICT, PIN - 686671`** - **`2 NOBY SCARIA AGED 50 YEARS CHENAYAPPILLIL HOUSE, KADAVOOR P.O., KADAVOOR, ERNAKULAM DISTRICT, PIN - 686671`** - **`3 ELDHOSE VARGHESE AGED 41 YEARS PUTHUSSERIYIL HOUSE, PARAMBANCHERI, PULINTHANAM P.O., POTHANICADU, MUVATTUPUZHA ERNAKULAM DISTRICT, KERALA, PIN - 686671`** ``` BY ADVS. K.RAMAKUMAR (SR.) ``` ``` ASWINI SANKAR R.S. S.M.PRASANTH T.RAMPRASAD UNNI P.V.ELIAS ``` ## **`RESPONDENT/S:`** ``` 1REV. FR. C. K. ISSAC COR EPISCOPA, AGED 76 YEARS S/O. KURIAKOSE, VICAR, ST. JOHN'S BESPHAGE ORTHODOX SYRIAN CHURCH, RESIDING AT ``` W. A. No. 913 of 2023 -2- ``` CHENAYAPPILLIL HOUSE, PARAMBENCHERY, PULINTHANAM P.O., POTHANICADU, MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, PIN - 686671 ``` - **`2 REV. FR. P.V. PHILIP S/O. POTHEN, ASSISTANT VICAR, ST. JOHN'S BESPHAGE ORTHODOX SYRIAN CHURCH, RESIDING AT ARIMAPANCHIRAYIL HOUSE, PULINTHANAM P.O., POTHANICADU, MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, PIN - 686671`** - **`3 JAIN MATHEW GEORGE S/O. GEORGE, TRUSTEE, ST. JOHN'S BESPHAGE ORTHODOX SYRIAN CHURCH, RESIDING AT MADATHIKUDIYIL HOUSE, PULINTHANAM P.O., POTHANICADU, MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, PIN - 686671`** - **`4 MATHEW T. THOMAS S/O. THOMAS, SECRETARY, SECRETARY, ST. JOHN'S BESPHAGE ORTHODOX SYRIAN CHURCH, RESIDING AT THONIPPATTU HOUSE, PULINTHANAM P.O., POTHANICADU, MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, PIN - 686671`** - **`5 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO THE STATE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001`** - **`6 STATE POLICE CHIEF POLICE HEADQUARTERS, THIRUVANANTHAPURAM, KERALA, PIN - 695001`** - **`7 DISTRICT COLLECTOR`** - **`COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT, KERALA, PIN - 682030`** - **`8 DISTRICT POLICE CHIEF ERNAKULAM RURAL, OFFICE OF DISTRICT POLICE CHIEF, ALUVA, ERNAKULAM DISTRICT, KERALA, PIN - 683101`** - **`9 REVENUE DIVISIONAL OFFICER MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, PIN - 686661`** - **`10 DEPUTY SUPERINTENDENT OF POLICE`** ## **`MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, PIN -`** W. A. No. 913 of 2023 -3- ``` 686661 ``` - **`11 INSPECTOR OF POLICE STATION AND STATION HOUSE OFFICER`** - **`POTHANIKAD POLICE STATION, MUVATTUPUZHA, ERANKULAM DISTRICT, KERALA, PIN - 686671`** - **`12 M.S. SOLI MADATHIKKUDIYIL HOUSE, PULINTHANAM P.O., POTHANICAUD, MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, PIN - 686671`** - **`13 BASIL MATHEW AGED 36 YEARS SON OF MATHEW, UNNAMTHUVEETTIL HOUSE, POTHANIKKAD P.O., POTHANIKKAD, ERNAKULAM DISTRICT, PIN - 686671`** - **`14 BABU JOHN AGED 50 YEARS SON OF JOHN, VELLAKKALLEL, PULINTHANAM P.O., PULINTHANAM, MUVATTUPUZHA, ERNAKULAM DISTRICT., PIN - 686671`** ``` BY ADVS. SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL ``` ``` T.S.SHYAM PRASANTH ``` ## **`OTHER PRESENT:`** ``` ADV.S.SREEKUMAR (SR) ``` ``` ADV.ROSHEN D.ALEXANDER FOR R1-4 ``` ``` ADV. C. A. NAVAS ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. No. 913 of 2023 -4- ## **J U D G M E N T** Dated this the 16[th] day of August, 2023 A. J. Desai, C. J. By way of the present appeal filed under Section 5 of the Kerala High Court Act, 1958, original respondent Nos. 8 to 10 have challenged the judgment dated 13.04.2023 in W. P. (C) No. 25645 of 2019 by which the learned Single Judge allowed the writ petition by directing the Inspector of Police Station and Station House Officer, Pothanikad Police Station, Muvattupuzha, the 7[th] respondent, to render necessary assistance to original petitioners 1 and 2, Priests, Vicars, Diocesan Metropolitan, Malankara Metropolitan etc., to peacefully enter the St. John’s Besphage Orthodox Church in accordance with the 1934 Constitution, and to conduct the religious services therein, without let or hindrance from the present appellants. 2. Mr. K. Ramakumar, learned Senior Counsel appearing for the appellants, by taking us through the prayers in the writ petition W. A. No. 913 of 2023 -5- filed by the original petitioners, would submit that the learned Single Judge has travelled beyond the scope of the writ petition. He would submit that a writ of mandamus, which is a discretionary remedy under Article 226 of the Constitution of India, can only be issued to compel the performance of public duties, which may be administrative, ministerial or statutory in nature. He would submit that the prayers made by the original petitioners are with regard to the issuance of a writ of mandamus directing the 7[th] respondent to resort to the provisions of the Kerala Police Act, 2011 and other relevant provisions. The original petitioners having sought implementation of certain provisions of the Kerala Police Act, the learned Single Judge travelled beyond the scope of the writ petition by directing to provide Police assistance and therefore, the impugned judgment requires interference. 3. We have heard the learned Advocates appearing for the respective parties and have also gone through the impugned judgment. W. A. No. 913 of 2023 -6- 4. It appears from the proceedings that parties to the present proceedings had disputes which have been brought before the learned Sub Judge, Muvattupuzha, by way of filing O. S. No. 15 of 2016, which was decreed in favour of the original petitioners as follows:- “a) Plaintiffs are entitled to a decree declaring that St. John's Besphage Orthodox Syrian Church Pulinthanam, is a constituent parish church of the Malankara Orthodox Syrian Church and the above church is to be administered in accordance with the 1934 constitution of Malankara Orthodox Syrian Church. (b) Plaintiffs are also entitled to declare that only members who accept 1934 constitution are entitled to be a parish members of the 1[st] defendant church and those who comply with Article 4 and 8 and confess before the defendant Vicar or its successors, appointed by the Diocesan Metropolitan of Ankamaly Diocese under 1934 constitution, alone are entitled to participate in the parish assembly of 1[st] defendant church. (c) Defendant No. 4 is removed from the post of vicar of 1[st] defendant church. (d) Plaintiffs are also entitled to a decree of permanent prohibitory injunction injunction restraining defendant No. 4 or his men or agents or anybody claiming under him from causing any obstruction to defendants 2 and 3 or their successors appointed under 1934 constitution by the Diocesan Metropolitan from discharging their functions W. A. No. 913 of 2023 -7- as vicar and co-priest respectively of 1[st] defendant church and the office building, parish hall, Sunday school building, parsonage, 4 kurisadies, peedika building, purayidam its building and cemetery described in the plaint schedule property and other institutions in the plaint schedule. (e) Plaintiffs are also entitled to a decree of permanent prohibitory injunction restraining the defendant No. 4 or his men or agents or anybody claiming under him from causing any obstruction to the office bearers selected according to the provisions of 1934 constitution of Orthodox Syrian Church, to assume their office and carry on their duties in the 1[st] defendant church and in the institutions related to 1 defendant church. (f) Plaintiffs are further entitled to a decree of permanent prohibitory injunction restraining defendant No.4 or his men or agents or anybody claiming under him from bringing any Prelates/vicar/priests/Deacons who are not appointed as per 1934 constitution for conducting religious services in the 1[st] defendant church, office building, parish hall, Sunday school building, parsonage, 4 kurisadies, peedika building, purayidam its building and cemetery described in the plaint schedule property and causing obstruction to 2[nd] and 3[rd] defendants or to his successors appointed by Diocesan Metropolitan and steward (lay truestee), Managing committee elected in accordance with the 1934 constitution from taking income from plaint schedule properties and exercise funds according to the rules of 1934 constitution. The above decree shall be subjected to the provisions contained in Section 3 of Kerala Right to Burial of Corpse in Christian (Malankara Orthodox-Jacobite) Cemeteries Act, 2020. g) It is hereby declared that settlement deed W. A. No. 913 of 2023 -8- No.806/2019 dated 2.5.2019, of SRO Pothanicad and lease agreement No.1451/2019, dated 18.8.2019, of SRO Pothanicad are null and void and not binding upon the 1[st] defendant church.” 5. Against the same decision, Regular First Appeal No. 187 of 2022 was filed which came to be dismissed by the Division Bench by judgment dated 24.01.2023. It also appears that the petitioners faction, despite having a decree in their favour and confirmed by the High Court in Regular First Appeal, were unable to get to conduct the religious services, and therefore, sought reliefs in the nature of writ of mandamus, resorting to the provisions of the Kerala Police Act, 2011. 6. It also appears from the record that the Hon’ble Apex Court by order dated 19.04.2018 in Civil Appeal Nos. 3986 - 3989 of 2018 has observed as under:- “As the controversy in question has been finally decided in the case of K.S. Verghese vs. St. Peter’s & Paul’s Syrian Orth. & Ors. 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 field, nothing further survives in the matters for adjudication. Consequently, the appeals stand disposed of in terms of the W. A. No. 913 of 2023 -9- 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.” ## 7. Considering all these aspects, the learned Single Judge has passed the impugned judgment as follows:- “25. In the result, this writ petition is allowed. There will be a direction to the 7[th] respondent to render necessary assistance to petitioners 1 and 2, Priests, Vicars, Diocesan Metropolitan, Malankara Metropolitan etc. to peacefully enter the St.John’s Besphage Orthodox Church in accordance with the 1934 Constitution and to conduct the religious services therein without let or hindrance from the contesting party respondents. Necessary shall be done within a period of two months from date of receipt of a copy of this judgment.” 8. Therefore, it cannot be said that the learned Single Judge travelled beyond the scope of the writ petition, and hence, the judgment relied upon by the learned Senior Counsel appearing for appellants is not applicable in the present case. It is hereby made clear that the judgment of the learned Single Judge, which is confirmed by the present judgment, would not stand in the way of the present appellants availing any W. A. No. 913 of 2023 -10- alternative remedy. Writ appeal is accordingly dismissed. **Sd/A. J. DESAI CHIEF JUSTICE** **Sd/V. G. ARUN JUDGE** Eb