George John T. & Saji Paul v. St. Ignatious Orthodox Syrian Church (Onakkoor Sehiyon) and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ## **`THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944`** ## **`WA NO. 1905 OF 2022`** ## **`AGAINST THE ORDER/JUDGMENTWP(C) 13556/2020 OF HIGH COURT OF KERALA APPELLANT/S:`** ``` 1GEORGE JOHN T., AGED 61 YEARS S/O LATE JOHN T.P., THUKALAN HOUSE, KOOTHATTUKULAM P.O., KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK, PIN - 686 662. 2SAJI PAUL, AGED 52 YEARS, S/O LATE N.P. PAULOSE, NADUVILEDATHU, ANCHELPETTY P.,O, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK, PIN 686 667. BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. AMAL AMIR ALI ``` ## **`RESPONDENT/S:`** - `1 ST.IGNATIOUS ORTHODOX SYRIAN CHURCH (ONAKKOOR SEHIYON), ONAKKOOR, PERIYAPPURAM P.O., PAMPAKUDA VIA, PIRAVOM, PIN-686 667, REPRESENTED BY ITS TRUSTEE, K.E.PHILIPOSE.` - `2 FR.VIJU ELIAS, AGED 40 YEARS, S/O. T.V.ALIAS, THANIKKUZHIYIL HOUSE, VETTICKAL P.O., KANAYANNUR, PIN -682314, VICAR, ST.IGNATIOUS ORTHODOX SYRIAN CHURCH (ONAKKOOR SEHIYON), ONAKKOOR.` - `3 FR. REJI ALEXANDER, AGED 41 YEARS, S/O.T.A.ALEXANDER, THAREKKATTUTHEKKETHIL (ANGADICKAL PUTHENKAVU) P.O., CHENGANNUR, PIN-689123.` - `4 K.E. PHILIPOSE, AGED 74 YEARS, S/O.LATE ETHACK, KALLATTUKUDIYIL, THIRUMARADY P.O., KOOTHATTUKULAM, PIN-686 662.` - `5 GEORGE PHILIP, AGED 54 YEARS, S/O. LATE M.V. PHILIPOSE, MANGALASSERIL HOUSE, KAKKOOR P.O., KOOTHATTUKULAM, PIN-686662.` - `6 K.U. JOHNY,` ``` AGED 67 YEARS, S/O. LATE ULAHANNAN, KALLATTUKUZHIYIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK, PIN-686662. ``` - `7 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.` - `8 THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANADU-682031.` - `9 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 001.` - `10 THE DISTRICT POLICE CHIEF (RURAL),` - `SH 16, OPP. POWER HOUSE, ALUVA, KERALA-683 101.` - `11 THE DEPUTY SUPERINTENDENT OF POLICE, MUVATTUPUZHA, PIN-686 661.` - `12 THE STATION HOUSE OFFICER, PIRAVOM POLICE STATION, PIRAVOM, PIN-686 664.` - `13 K.M. JACOB ALIAS YACOBE, AGED 67 YEARS , S/O. MATHAI, KOLLAMPARAMBIL HOUSE, ANACHALPETTY P.O., PAMPAKUDA VIA, ONAKKOOR VILLAGE, MUVATTUPUZHA, PIN-686 667.` - `14 JOY K.J., (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), KOONANIKKAMALAYIL (NARAKKATTU), PERIAPPURAM P.O, ONAKKOOR SOUTH, PAMPAKUDA VIA, ONAKKOOR VILLAGE, PIN686 610.` - `15 ROY V.J.,` - `(AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER) , VETTIYANIKKAL HOUSE, PEIYAPPURAM P.O., PAMPAKUDA VIA, ONAKKOORVILLAGE, PIN-686 610.` - `16 FR. ELDHO JOHN KUTTUVELIL, AGED 34 YEARS, S/O.JOHN, KUTTUVELIL HOUSE, POOTHRIKKA P.O., PUTHENCRUZ, ERNAKULAM, PIN-682 308.` - `THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2023,` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## ALEXANDER THOMAS & SOPHY THOMAS, JJ. ------------------------------------------------------------------------- ## I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 (against the interim order dated 25.11.2021 in W.P.(C) No.13556/2020 of Hon’ble High Court of Kerala) -------------------------------------------------------------------Dated this the 05[th] day of January, 2023 ## ORDER/JUDGMENT ## Alexander Thomas, J. I.A. No.1 of 2022 has been filed in the above Writ Appeal, seeking for grant of 3[rd] party leave to file the present intra-court appeal, to impugn the interim order dated 25.11.2021 rendered by the learned Single Judge in W.P.(C) No.13556 of 2020. The Writ Appeal has been filed to impugn the above interim order in the W.P.(C) as stated above. 2. The applicants in the I.A / appellants in the Writ Appeal are third parties and strangers to the present writ proceedings in W.P.(C) No.13556 of 2020. It appears that the third party leave applicants are broadly supporting the case of the main writ petitioners. 3. The main prayers in W.P.(C) No.13556 of 2020 are as follows :- > “i) to issue a writ of mandamus or other writ order or direction to respondents 1 to 6 to afford adequate and effective Police I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 2 Protection to the petitioners 2 and 3 to conduct religious services in 1[st] petitioner-church, its cemetery and chapels and petitioners 4 to 6 and other parishioners of the 1[st] petitioner Church in participating such religious services and the petitioners 2 to 6 to administer and manage the affairs of the 1[st] petitioner church, without any let, hindrance or obstruction from respondents 7 to 10, their men, agents or followers and anybody claiming under them in the interests of justice; - ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 6 to act strictly adhering to the decision of the Hon’ble Supreme Court reported in 2017 (3) KLT 261 (SC)=2017 (15) SCC 333 and Exhibit P4, ensuring that no priest or prelate appointed otherwise than in accordance with Malankara Church Constitution of 1934 conducts any sacraments including Holy Mass in the 1[st ] petitioner-church, its chapels, cemetery or the appurtenant buildings thereto.” 4. The learned Single Judge has passed the impugned interim order dated 25.11.2021 in the above W.P.(C), wherein it has been inter alia held that, going by the judgment of the Apex Court in K.S.Varghese v. St.Peter’s and St.Paul’s Syrian Orthodox Church [2017 (15) SCC 333], a constituent Church of the Malankara Orthodox Syrian Church can only be administered, governed and run under the provisions of the 1934 Constitution. Further that, the Apex Court has declared therein, as is implicit from the 1934 Constitution for the Church, that only the Vicar and Clergy appointed by the Catholicos can be appointed to lead services in any Church of the Malankara Church, while its administration will have to vested in a Committee to be elected by the General Body of the Parish, as per the mandate of Clauses 12, 15, 24, 25 and 26 of the I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 3 ## said Constitution. 5. The learned Single Judge has further held, in paragraph No.6 of the impugned order, that since these legal aspects are not contested by any of the rival parties and since the contesting respondents in W.P.(C) had stated before the learned Single Judge that they have no objection in the 2[nd] petitioner in the W.P.(C), who is the Vicar, to be allowed to lead services in the Church, as an interim measure, certain orders have been granted, especially as the Apex Court has unequivocally stated in K.S.Varghese case supra that normally, no Church can be kept closed or shut down (stated in paragraph 228.28 of the verdict in K.S.Varghese’s case supra). Accordingly, the following directions had been issued in the impugned interim order in the W.P.(C) rendered on 25.11.2021 in paragraph No.7 thereof, which reads as follows :- - “7. In such circumstances, I issue the following orders: - (a) The Learned Advocate Commissioner, assisted by the 6[th] respondent – Station House Officer, will open the Church with necessary and adequate Police personnel, as is required for the purpose of protection and allow the 2[nd] petitioner – Vicar to conduct services and manage the properties of the same, as per the 1934 Constitution. The key of the church will be handed over to the Vicar, on obtaining proper receipt. - (b) The 2[nd] respondent – District Collector, or any other suitable Officer chosen by him not below the rank of a Deputy Collector, will be in overall charge of the administration and management of the Church, until such time as the 2[nd] petitioner – Vicar is able to call for elections to its Managing Committee, as per the 1934 Constitution. To clarify, the Vicar will be the President of the Administration; while the District Collector or his deligate will be in overall charge and he will do so in consultation with the Vicar. I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 4 (c) The 2[nd] petitioner – Vicar, will immediately takes steps to act as per the 1934 Constitution and to call for the Parishioners’ Assembly, to update the Parish Register as per Clause 12 of the Constitution; and will, for such purpose, give necessary opportunity to every parish member to participate in the 'sacrament', as has been mandated therein, so that the elections to the Managing Committee can be conducted, as expeditiously as is possible. (d) The properties of the Church will remain as part of the Church itself and such status quo will continue until such time as either of the parties are able to establish to the contrary through a process of law. To paraphrase, the properties of the Church, as available in their registers and other documents, will continue to be common to all the parish members as per the 1934 Constitution, till any competent Civil Court issues any order or judgment to the contrary. (e) If there is any dispute raised by any person with respect to the updation of the “Parish Register”, they are at liberty to bring the same to the notice of this Court, but will not take law into their own hands or commit any action in contravention of law. (f) The District Collector shall file a report with respect to the afore directions and the activities of the Church before this Court by the next posting date.” 6. The main contention raised before us by Sri.Jacob P Alex, the learned counsel appearing for the third party leave appellants, is that they have no dispute with the interim order granted by the learned Single Judge in ensuring the opening and functioning of the closed Church and to permit the 2[nd] petitioner – Vicar to conduct the Church Services and manage its properties, as per the 1934 Constitution and in directing that the key of the Church be handed over to the Vicar. However, the objection raised by them is that, after having passed such an order, the learned Single Judge should not have ventured further in ordering steps for the conduct of the election and that too, for updating the I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 5 membership of the Church by a Government Official (RDO) and also for deciding as to which all members of the Church can participate in the sacrament of the Church etc. As these are all issues which are totally beyond the realm of adjudication in public law proceedings and ideally those issues, if at all justiciable, should have been relegated for adjudication before a civil court. Further, we note, from a reading of paragraph 3 of the impugned interim order dated 25.11.2021 in W.P.(C) No.13556 of 2020, that a specific submission has been made on behalf of the State of Kerala, through Sri.Ashok M Cherian, the learned Additional Advocate General that, on account of the ongoing skirmishes between the two factions of the Church, the Church has been kept under lock and key, which was then held by the Advocate Commissioner appointed by the court and that, if the court is so inclined, the 2[nd] petitioner – Vicar can be allowed to discharge his ecclesiastical functions and manage the Church and that eventually, elections will have to be held to elect the managing committee of the Church in accordance with the Constitution of the Church. 7. The said submission on behalf of the State of Kerala, by itself, may not be of objection to any of the parties, inasmuch as the State of Kerala has the interest to ensure that their Police personnel I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 6 is not continuously burdened with the duty of keeping public peace and tranquility and other public order and law and order issues in relation to that may continuously occur, in view of the factional fights in the Church etc. and that the proper remedy would be for the conduct of election for the managing committee of the above Church, on the basis of the 1934 Constitution of the Church. That submission, by itself, may not be objectionable to the 3[rd] party leave applicants as well as the writ petitioners. However, their objection appears to be that the issues which related to the conduct of elections cannot be decided in public law proceedings, like in the present Writ proceedings filed under Article 226 of the Constitution of India and those issues will have to be relegated to the Civil Court concerned, subject to issues of justiciability . However, we note that later, a review petition was filed as R.P.No.179 of 2022 by the writ petitioners, to impugn some of the interim directions passed in the present impugned order 25.11.2021 in the W.P.(C). So, a contempt petition has been instituted, as C.O.(C) No.2153 of 2021 by R-9 in the W.P.(C), alleging noncompliance of some of the interim directions in the interim order dated 25.11.2021. We are told by those sides that the learned Single Judge had passed certain interim orders, both in the contempt case as well as in the review petition, 7 I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 subsequent to the rendering of the impugned interim order dated 25.11.2021 in the W.P.(C). Further, we are also told that the R.P No.179 of 2022 has been closed by the learned Single Judge, as per order dated 02.12.2022, holding that the Review Petition is unnecessary and the said order dated 02.12.2022, rendered by the learned Single Judge in closing R.P.No.179 of 2022, reads as follows :- “This petition, seeking review of the order of this Court dated 25.11.2021, has been filed, averring that the direction to offer sacrament on the basis of updation of the Parish Register is against the Scheme of 1934 Constitution and “the age old practice that has been in vogue.” (sic). 2. I do not think that the afore assertions of the petitioners would be sufficient to seek a review of the judgment, particularly when it was issued after hearing both sides and examining the 1934 Constitution. 3. Further, Sri.Shyam Prashanth – learned Government Pleader, also says that a third party has filed an appeal against the judgment in question. In the afore circumstances, I close this Review Petition, finding it to be unnecessary.” 8. Further, we have also told that contempt case C.O.(C) N0.2153 of 2021 has been subsequently closed on 02.12.2022 in view of the non-appearance of the petitioner therein, viz, (R-9) in the W.P.(C) and the contempt case has thus, been dismissed for default. 9. Further, we are told by Sri.Martin P Jose, the learned counsel appearing for the writ petitioners that all the contesting respondents (R-7 to R-10), in the W.P.(C) were duly served and they I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 8 were represented by the learned advocate of their choice who later relinquished their vakalath and no other substitute counsel has been engaged by R-7 to R-10 in the W.P.(C) to prosecute their case further and that this is the information that the counsel for the petitioner could gather, to the best of his ability as of now. 10. After hearing both sides, we note that the writ petitioners have not chosen to challenge the impugned interim order dated 25.11.2021, by filing any intra-court appeal, though they had chosen to prefer an R.P, which has now been closed as unnecessary. During the course of the hearing, we also observed that the present third party leave applicants have not chosen to challenge the orders passed by the learned Single Judge subsequent to the interim order dated 25.11.2021 in the W.P.(C) and to this, we were appraised by Sri.Jacob P Alex, the learned counsel appearing for the third party-leave applicants, that all those subsequent orders were passed by the learned Single Judge in the R.P and the C.O.C and both the R.P and C.O.C had been closed or dismissed etc and hence, all those subsequent orders passed in those R.P and C.O.C does not survive in the eye of law and therefore, there is no necessity to challenge the same. We also note that the R.P has been closed as unnecessary and not on the ground that good grounds for I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 9 review, like error apparent on the face of record or additional materials which could not to be produced earlier, despite due diligence etc, are not made out in the R.P. 11. We are also appraised that a batch of cases, which may have some impact in this case, have been taken up for hearing by the learned Single Judge, but the present W.P.(C) No.13556 of 2020 has not been included alongwith those cases presently, on account of the earlier pendency of the R.P and later, the pendency of this third party appeal. Since the main writ petitioners have not chosen to file any intra-court appeal to impugn the interim order dated 25.11.2021 in W.P.(C), we are of the view that discretion need not be exercised to grant third party leave to strangers in a matter, which is rather nebulous and complex and make the task of adjudication more complicated. For, we have cautioned ourselves that where “angels fear to tread”, we need not “rush in”. The right and proper approach would be to permit the 3[rd] party applicants to approach the learned Single Judge, by seeking impleadment and to urge their contentions. To a specific query as to whether the main writ petitioners have any objection in the present 3[rd] party leave applicants seeking impleadment in the W.P.(C), Sri.Martin P Jose, the learned counsel appearing for the writ petitioners, has fairly I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 10 submitted, on the basis of instructions of his parties, that the writ petitioners have no objection in the present third party leave applicants seeking for impleadment and if they seek impleadment, the same could be allowed by the learned Single Judge. The said submissions made on by the writ petitioners are recorded. 12. Sri.Jacob P Alex, the learned counsel appearing for the third party leave applicants, has raised an apprehension that since the R.P.No.179/2022 arising out of the impugned interim order dated 25.11.2021 has been closed, the same may stand in the way of the third parties in challenging the impugned portions of the impugned order on 25.11.2021. 13. After hearing both sides, we are of the view that the said apprehension may not be tenable in as much as the R.P. has been closed as unnecessary and not on the ground that the traditional grounds of review are not made out. Moreover, yet another ground for closure of the R.P was the pendency of the present third party appeal. Since we are not inclined to grant the third party leave for this appeal, the said aspect also will stand obliterated and therefore, the closure of the R.P, as per order dated 02.12.2022, by itself, cannot stand in the way of the third party leave applicants approaching the learned Single Judge and seeking for appropriate I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 11 modification of the impugned interim order dated 25.11.2021 to the extent they are aggrieved thereof. For all these reasons, we are of the view that the proper and more prudent course of action would be to permit the third party leave applicants to approach the learned Single Judge with their grievances, so that the learned Single Judge would consider the same after hearing all the parties concerned. We would also venture to suggest that it may also be better to ensure the final disposal of the main matter of the W.P.(C) without much delay. 14. Sri.Jacob P Alex, the learned counsel appearing for the third party leave applicants, has raised yet another apprehension that if no effective interdiction is made in this matter, then the RDO may proceed with the preparation of the register of membership of the Church, in the manner ordered as per the impugned interim order dated 25.11.2021 and that the third party leave applicants and the writ petitioners have serious objections regarding the jurisdiction of this Court in public law remedy to pass such directions. 15. Sri.Ashok M Cherian, the learned Additional Advocate General appearing for the respondent state, would submit, on the basis of instructions that, as of now, it appears that the contesting I.A. No.1 of 2022 in W.A. No. 1905 of 2022 & W.A.No.1905 of 2022 12 respondents in the W.P.(C) have lost their interest in contesting the case and the writ petitioners may also not be very enthusiastic for ensuring the immediate conduct of the election and that being so, the RDO, the State Authorities etc. could wait until effective directions are given by the learned Single Judge regarding the manner of updation of the Church membership etc. The abovesaid submissions of the state are recorded. In the light of these aspects, we are of the view that discretion need not be exercised for grant of third party leave to file the above intra-court Appeal. Since 3[rd] party leave itself has been refused, there is no question of entertaining the Writ Appeal. Hence, for the said sole reason, the W.A will stand dismissed. Accordingly, with these observations and directions and with the said liberty the above leave application will stand rejected. Consequently, the writ appeal will also stand dismissed. sd/- ALEXANDER THOMAS, JUDGE sd/- SOPHY THOMAS, JUDGE SMA ## **`APPENDIX OF WA 1905/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure 1`|`TRUE COPY OF THE INTERIM ORDER DATED 29-07-`| ||`2020 IN WPC 13556 OF 2020.`| |`Annexure 2`|`TRUE COPY OF THE INTERIM ORDER DATED 13-08-`| ||`2020 IN WPC 13556 OF 2020.`| |`Annexure 3`|`TRUE COPY OF THE INTERIM ORDER DATED 06-12-`| ||`2021 IN WPC 13556 OF 2020 AND CONNECTED`| ||`CASES.`| |`Annexure 4`|`TRUE COPY OF THE ORDER DATED 14-01-2022 IN`| ||`CONTEMPT CASE (CIVIL) NO. 2153 OF 2021.`| |`Annexure 5`|`TRUE COPY OF THE ORDER DATED 20-01-2022 IN`| ||`CONTEMPT CASE (CIVIL) NO. 2153 OF 2021.`| |`Annexure 6`|`TRUE COPY OF THE ORDER DATED 29-03-2022 IN RP`| ||`NO. 179 OF 2022 IN W.P. (C) NO. 13556 OF 2020`| ||`AND IN CONTEMPT CASE NO. 2153 OF 2021.`| |`Annexure 7`|`TRUE COPY OF THE ORDER DATED 27-05-2022 IN RP`| ||`NO. 179 OF 2022 IN W.P. (C) NO. 13556 OF 2020`| ||`AND IN CONTEMPT CASE NO. 2153 OF 2021.`|