O.V. Mathukutty, Joji George and Thomas M. Elias v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937** ## **WP(C).No. 25413 of 2013 (B)** ## **----------------------------** **PETITIONERS :** **1. O.V. MATHUKUTTY, AGED 63 YEARS, S/O.O.C.VARKEY, RESIDING AT OMBALAYIL HOUSE, POST KOLENCHERRY, ERNAKULAM DISTRICT.** **2. JOJI GEORGE, S/O.C.M.GEORGE, CHOLATTU HOUSE, VADAYAMPADY P.O., PUTHENCRUZ, ERNAKULAM DISTRICT.** ## **3. THOMAS M.ELIAS,** - **S/O. M.V.ELIAS, MUNDAYIL HOUSE, PERINGOLE, POST KOLENCHERRY, ERNAKULAM DISTRICT.** **BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SRI.K.C.KIRAN** **RESPONDENTS :** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM-695001.** **2. DISTRICT SUPERINTENDENT OF POLICE ALUVA, ERNAKULAM RURAL-683101.** **3. SUB INSPECTOR OF POLICE PUTHENCRUZ-682308.** **4. ST.PETER'S AND ST.PAULS ORTHODOX SYRIAN CHURCH KOLENCHERY, FR.JACOB KURIAN, S/O.KURIAN VICAR, ST.PETER'S AND ST.PAULS SYRIAN, ORTHODOX CHURCH, KOLENCHERRY, ERNAKULAM DISTRICT, PIN 682311.** **5. K.S.VARGHESE S/O.SCARIA, KAVANACHOTTIL HOUSE, AIKKARANAD SOUTH VILLAGE, ERNAKULAM DISTRICT-682308.** ## **WP(C).No. 25413 of 2013 (B)** ## **6. V.M.GEORGE** **S/O.MATHAI, VEDANKULANGARA HOUSE, AIKKARANAD NORTH VILLAGE, ERNAKULAM DISTRICT.** ## **7. C.K.THAMPI, S/O.KURIAKOSE,** **CHUNDATHADATHIL HOUSE, VADAYAMPADY KARA, AIKKARANAD SOUTH VILLAGE, ERNAKULAM DISTRICT-682308.** ## **8. MATHEW YOHANNAN, S/O.MATHEW VALLIKKATTIL, AIKKARANAD NORTH, EZHUPURAM MAZHUVANNOOR, ERNAKULAM DISTRICT - 682008** **9. K.M.GEORGE, S/O.MATHAI, KODIYATTU HOUSE, MAZHUVANNOOR VILLAGE, ERNAKULAM DISTRICT.** **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.C.R. SYAMKUMAR R4 BY SRI.S.SREEKUMAR SENIOR ADVOCATE BY ADV. SRI.P.MARTIN JOSE R5 TO R7 BY SRI.N.SUKUMARAN SENIOR ADVOCATE BY ADV. SRI.S.SHYAM R9 BY ADV. SRI.KOSHY GEORGE R8 BY ADV. SRI.P.J.PHILIP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 25413 of 2013 (B)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT-P1: THE TRUE COPY OF THE JUDGMENT OF THE DISTRICT COURT, ERNAKULAM IN O.S.43/2007 ON ITS FILE DATED 18.08.2011.** **EXHIBIT-P2: THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN R.F.A.655/2011 DATED 04.10.2013.** **EXHIBIT-P3: PHOTOGRAPH SHOWING THE WORSHIPPERS AND PRIESTS INCLUDING THE CATHOLICOSE OF MALANKARA ORTHODOX SYRIAN CHURCH OFFERING SERVICES AND WORSHIP IN THE CHURCH.** **EXHIBIT-P3(A): PHOTOGRAPH SHOWING THE WORSHIPPERS AND PRIESTS INCLUDING THE CATHOLICOSE OF MALANKARA ORTHODOX SYRIAN CHURCH OFFERING SERVICES AND WORSHIP IN THE CHURCH.** **EXHIBIT-P3(B): PHOTOGRAPH SHOWING THE WORSHIPPERS AND PRIESTS INCLUDING THE CATHOLICOSE OF MALANKARA ORTHODOX SYRIAN CHURCH OFFERING SERVICES AND WORSHIP IN THE CHURCH.** **EXHIBIT-P3(C): PHOTOGRAPH SHOWING THE WORSHIPPERS AND PRIESTS INCLUDING THE CATHOLICOSE OF MALANKARA ORTHODOX SYRIAN CHURCH OFFERING SERVICES AND WORSHIP IN THE CHURCH. EXHIBIT-P4: PHOTOGRAPH DEPICTING THE OBSTRUCTIONS CAUSED IN THE PEACEFUL CONDUCT OF THE PRAYERS IN THE CHURCH.** **EXHIBIT-P4(A): PHOTOGRAPH DEPICTING THE OBSTRUCTIONS CAUSED IN THE PEACEFUL CONDUCT OF THE PRAYERS IN THE CHURCH.** **EXHIBIT-P4(B): PHOTOGRAPH DEPICTING THE OBSTRUCTIONS CAUSED IN THE PEACEFUL CONDUCT OF THE PRAYERS IN THE CHURCH. EXHIBIT-P4(C): PHOTOGRAPH DEPICTING THE OBSTRUCTIONS CAUSED IN THE PEACEFUL CONDUCT OF THE PRAYERS IN THE CHURCH. EXHIBIT-P5: TRUE COPY OF THE COMPLAINT BEFORE THE 3RD RESPONDENT DATED 07.10.2013 BY THE VICAR OF THE CHURCH. EXHIBIT-P6: TRUE COPY OF THE COMPLAINT BEFORE THE 3RD RESPONDENT DATED 09.10.2013 BY THE 1ST PETITIONER. EXHIBIT-P7: TRUE COPY OF THE COMPLAINT BEFORE THE 3RD RESPONDENT DATED 09.10.2013 BY THE 2ND PETITIONER. EXHIBIT-P8: TRUE COPY OF THE COMPLAINT BEFORE THE 3RD RESPONDENT ON 09.10.2013 BY THE 3RD PETITIONER.** ## **WP(C).No. 25413 of 2013 (B)** **RESPONDENT(S)' EXHIBITS : ---------------------------------------** **EXT. R8(A): COPY OF ORDER BY THE HON'BLE SUPREME COURT OF INDIA IN S.L.P. NO. 32238/2013 AND CONNECTED SLPS, DT 19/3/2015. EXT R8(B): COPY OF THE ORDER BY THE HON'BLE SUPREME COURT OF INDIA IN SLP NO. 32238/2013 BY ORDER DT 9/4/2015. EXT.R8(C): COPY OF THE ORDER OF THE HON'BLE SUPREME COURT OF INDIA DT 19/8/2015 IN CA 3674/2015. EXT.R8(D): COPY OF THE ORDER OF THE HON'BLE SUPREME COURT OF INDIA DT 14/10/2015 IN CA 3674/2015 AND CONNECTED APPEALS. EXT.R8(E): RELEVANT PAGES OF THE CAUSE LIST OF THE HON'BLE SUPREME COURT OF INDIA DT 4/2/2016 BEFORE THE BENCH OF MR. JUSTICE RANJAN GOGOI AD MR. JUSTICE PRAFULLA.C.PANT.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **ASHOK BHUSHAN, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.P.C.No.25413 of 2013 ---------------------------------------Dated this the 8[th] day of February 2016 ## **J U D G M E N T** ## **Shaffique,J** This writ petition has been filed by the petitioners seeking police protection. 2. Petitioners claim to be parishioners attached to St.Peters and St.Pauls Orthodox Syrian Church, Kolencherry. According to them, the 4[th] respondent, the Vicar, has been permitted to conduct the services in the said church which is now being objected by respondents 5 to 9 and their men. According to the petitioners, though there was a suit filed before the District Court, Ernakulam being O.S.No.43/2007 by respondents 5 to 7, seeking for a declaration that the church and the educational institutions of St.Peters and St.Pauls Orthodox Syrian church are to be administered only in terms with the 'udampadi' No.13/12/1088 M.E, the suit has been dismissed and the said judgment has been confirmed in appeal as per the judgment of this Court dated 04/10/2013 in R.F.A.No.655/2011. It is submitted that the issues between the two rival factions, who were staking claim for administering the church had been settled by the decision of the Apex W.P.C.No.25413/2013 2 Court in **P.M.A.Metropolitan'** s case [AIR 1995 SC 2001] and **Moran Mar Baselious Marthoma Mathews II v. State of Kerala** [2003(1) KLT 780] and the earlier judgment in connection with the same. 3. According to the petitioners, the judgments clearly indicate that 1934 constitution is valid and has to be accepted by the parish church. Therefore, according to the petitioners, the contention urged on behalf of the respondents 5 to 7 have already been settled. Though Special Leave Petitions have been filed before the Supreme Court challenging the judgment in R.F.A.Nos.589/11 and 655/2011, no interim orders have been passed and therefore the status, as on date, is that the 4[th] respondent is entitled to carry on with the conduct of services in the church. 4. It is submitted that the private respondents have been creating obstruction in opening the church and it is remaining closed. Petitioners submit that attempts are being made by respondents 5 to 9 to prevent the conduct of services in the church and though some police officers have come to the site, they did not provide necessary protection for conducting the services. 5. Learned counsel appearing on behalf of the 4[th] respondent submits that the Vicar has made all arrangements for conducting services, but it is only on account of the obstructing tactics adopted by W.P.C.No.25413/2013 3 the respondents 5 to 9 and their men that the services could not be held. It is also submitted that the Vicar has not prevented any parishioner to come to the church or even any member who has faith in the religion to come and participate in the services being conducted; but they have to come to the church and participate in the services peacefully and shall not create any obstruction. 6. Counter affidavit has been filed by respondents 5 to 7 inter alia stating that the judgment in R.F.A.Nos.589/2011 & 655/2011 has been taken up before the Supreme Court and the matter is listed for hearing. It is stated that there is no necessity for police interference in the matter. That apart, it is submitted that the manner in which the 4[th] respondent have obtained the keys and their right to conduct service is already under challenge in the matter pending before the Supreme Court . It is also contended that both the factions are conducting their own services in different areas and therefore right now, until the Supreme Court takes a decision in the matter, there is no necessity for the 4[th] respondent to conduct services in the said Church. 7. The learned Government Pleader, on instructions, would submit that police is ready and willing to provide necessary protection. But, if there is any obstruction caused inside the church, police may find it difficult to remove the obstructors. W.P.C.No.25413/2013 4 8. Having heard the learned counsel on either side and having perused the records, we are of the view that when a Civil Court has already decided the right of the 4[th] respondent to conduct services in the church, all the parties are bound by the same and respondents 5 to 9 or their men cannot obstruct any such activities. If there is any such obstruction from the side of respondents 5 to 9 or their men, it is for respondents 2 and 3 to interfere in the matter and take necessary steps. It is made clear that all the members of the parish or any person who has faith in the services being conducted, are entitled to enter into the church and participate in the prayer peacefully. However, no such person shall be entitled to create any obstruction in the services being conducted by the Vicar. If any such obstruction is created within the premises of the church or inside the church, at the instance of the Vicar, it shall always be open for respondents 2 and 3 to take appropriate action, in accordance with law in order to enable peaceful conduct of the services. Under such circumstances, this writ petition is disposed of as under: i) 4[th] respondent is entitled to conduct services in St.Peters and St.Pauls Orthodox Syrian Church, Kolencherry and no obstruction shall be created by respondents 5 to 9 or their men. W.P.C.No.25413/2013 5 ii) If any such obstruction is created by respondents 5 to 9 or their men in the matter relating to conduct of services by the 4[th] respondent, on the request of the 4[th] respondent, respondents 2 and 3 shall interfere in the matter and remove any such obstruction and also ensure maintenance of law and order. iii) This judgment, however, will be subject to any decision that might be taken by the Supreme Court in the pending matters or by any Civil Court, as the case may be. (sd/-) **(ASHOK BHUSHAN, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** True Copy PA to Judge jsr/08/02/16