Roy V. Jacob & Cyril V. Zachariah v Fr. A.V Varghese & others (WA Nos. 1156 of 2020 & 1160 of 2020, Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **WA.No.1156 OF 2020** **AGAINST THE ORDER DATED 19.08.2020 IN WP(C) 35613/2019(B) OF HIGH COURT OF KERALA** ## **APPELLANTS/ADDL. RESPONDENTS 14 & 15:** - **1 ROY V. JACOB AGED 58 YEARS,S/O LATE CHACKO, VAZHATHARA HOUSE , KANJIRAM P.O.KOTTAYAM, PIN-686 020.** - **2 CYRIL V. ZACHARIAH, S/O LATE FR. ZACHARIAH, ARUPARACHIRAYIL HOUSE, KANJIRAM, P.O.KOTTAYAM, PIN-686 020.** - **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.LITHIN THOMAS** ## **RESPONDENTS/PETITIONER/RESPONDENTS:** - **1 FR.A.V.VARGHESE AGED 48 YEARS,S/O VARKEY, ATTUPURATHU HOUSE, MEENADAM P.O.,KOTTAYAM-686 516.** - **2 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** - **3 THE DISTRICT COLLECTOR, COLLECTORATE P.O.,KOTTAYAM, PIN-686 002.** - **4 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM,PIN-695 001.** - **5 THE DISTRICT POLICE CHIEF, COLLECTORATE P.O. KOTTAYAM, PIN-686 002.** - **6 THE DEPUTY SUPERINTENDENT OF POLICE, COLLECTORATE P.O.KOTTAYAM, PIN-686 002.** - **7 THE STATION HOUSE OFFICER, KUMARAKOM POLICE STATION, KUMARAKOM, KOTTAYAM DISTRICT686 563.** W.A.Nos.1156 & 1160 of 2020 :2: - **8 ST. MARTHASMOONI CHURCH, THIRUVARPPU, REPRESENTED BY ITS TRUSTEE, THIRUVARPPU VILLAGE, THIRUVARPPU P.O. KOTTAYAM-686 020.** **9 DR. MATHEW M BABU, AGED 57 YEARS, S/O MATHEW, VADAKKEPARAMPIL HOUSE, AMAYANOOR PO.KOTTAYAM-686 019.** - **10 FR. ROY CHACKO, AGED 52 YEARS, S/O CHACKO, OTTAPLACKAL HOUSE, AMAYANOOR P.O.KOTTAYAM-686 019.** - **11 ULAHANNAN THOMAS, AGED 70 YEARS, S/O THOMAS, THEKKENAMPADATHICHIRA HOUSE, THIRUVARPPU P.O.KOTTAYAM-686 020.** - **12 LINO VARGHESE, AGED 40 YEARS, S/O VARGHESE, VAZHATHARA HOUSE, THIRUVARPPU P.O.KOTTAYAM-686 020.** - **13 BINOY VARGHESE, AGED 54 YEARS, S/O VARGHESE, PUTHENPURA HOUSE, THIRUVARPPU P.O.KOTTAYAM-686 020.** - **14 ROBIN VARKEY, AGED 42 YEARS, S/O V.A.VARKEY, VATTAPARAMPIL HOUSE, KANJIRAM P.O.KOTTAYAM-686 020.** **R1 BY ADV. SRI.S.SREEKUMAR (SR.) R1 BY ADV. SRI.P.MARTIN JOSE** **R1 BY ADV. SRI.P.PRIJITH R1 BY ADV. SRI.THOMAS P.KURUVILLA** **R1 BY ADV. SRI.R.GITHESH R1 BY ADV. SRI.AJAY BEN JOSE R1 BY ADV. SRI.MANJUNATH MENON R1 BY ADV. SRI.SACHIN JACOB AMBAT R1 BY ADV. SRI.S.HARIKRISHNAN R2-7 BY SRI.K.V.SOHAN, STATE ATTORNEY R2-7 BY GOVT.PLEADER SRI.RENIL ANTO KANDAMKULATHY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2020, ALONG WITH WA.1160/2020, THE COURT ON 16.10.2020 DELIVERED THE FOLLOWING:** W.A.Nos.1156 & 1160 of 2020 :3: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **WA.No.1160 OF 2020** ## **AGAINST THE ORDER DATED 13.08.2020 IN WP(C) 35613/2019(B) OF HIGH COURT OF KERALA** ## **APPELLANTS/ADDL.RESPONDENTS 14 & 15:** - **1 ROY V. JACOB AGED 58 YEARS, S/O. LATE. CHACKO, VAZHATHARA HOUSE, KANJIRAM P.O, KOTTAYAM, PIN - 686020** - **2 CYRIL V. ZACHARIAH S/O.LATE.FR. ZACHARIAH, ARUPARACHIRAYIL HOUSE, KANJIRAM P.O, KOTTAYAM, PIN - 686020** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.LITHIN THOMAS** ## **RESPONDENTS/PETITIONER/RESPONDENTS:** - **1 FR.A.V.VARGHESE AGED 48 YEARS, S/O. VARKEY, ATTUPURATHU HOUSE, MEENADAM VILLAGE, MEENADAM P O, KOTTAYAM - 686516.** - **2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - PIN - 695001.** - **3 THE DISTRICT COLLECTOR, KOTTAYAM, KOTTAYAM - KUMILY ROAD, COLLECTORATE, KOTTAYAM - 686001.** - **4 THE STATE POLICE CHIEF POLICE HEAD QUARTERS, THIRUVANANTHAPURAM,PIN- 695001.** - **5 THE DISTRICT POLICE CHIEF, KOTTAYAM, NEAR KOTTAYAM EAST POLICE STATION, DISTRICT POLICE OFFICE,KOTTAYAM-KUMALY RD,COLLECTORATE,KOTTAYAM-686002.** W.A.Nos.1156 & 1160 of 2020 :4: - **6 THE DEPUTY SUPERINTENDENT OF POLICE, KOTTAYAM, NEAR CHANTHA KULAM RD,CHANGANASSERY-686101** - **7 THE STATION HOUSE OFFICER, KUMARAKOM POLICE STATION, KUMARAKOM, KOTTAYAM DISTRICT - 686563.** - **8 ST. MARHASMOONI CHURCH, THIRUVARPPU, REPRESENTED BY ITS TRUSTEE, THIRUVARPPU VILLAGE,THIRUVARPPU KARA,THIRUVARPPU PO, KOTTAYAM TALUK, 686020.** - **9 FR. MATHEW M BABU, AGED 57 YEARS, S/O. MATHEW, VADAKKEPARAMPIL HOUSE, AYARKUNNAM VILLAGE, AMAYANOOR PO, KOTTAYAM - 686025.** **10 FR.ROY CHACKO, AGED 52 YEARS, OTTAPLACKAL HOUSE, AYARKUNNAM VILLAGE, AMAYANOOR P O, KOTTAYAM - 686025.** - **11 ULAHANNAN THOMAS, AGED 70 YEARS, S/O. THOMAS, THEKKENAMPADATHICHIRA HOUSE, THIRUVARPPU VILLAGE, THIRUVARPPU KARA, THIRUVARPPU P O, KOTTAYAM - 686020.** - **12 LINO VARGHESE, AGED 40 YEARS, S/O. VARGHESE, VAZHATHARA HOUSE, THIRUVARPPU VILLAGE, THIRUVARPPU KARA, THIRUVARPPU P O, KOTTAYAM - 686020.** - **13 BINOY VARGHESE, AGED 54 YEARS, PUTHENPURA HOUSE, THIRUVARPPU VILLAGE, THIRUVARPPU KARA, THIRUVARPPU P O, KOTTAYAM - 686020.** - **14 ROBIN VARKEY, AGED 42 YEARS,S/O. VARKEY, VATTAPARAMPIL HOUSE, THIRUVARPPU VILLAGE, THIRUVARPPU KARA, THIRUVARPPU P O, KOTTAYAM - 686020.** **R1 BY ADV. SRI.S.SREEKUMAR (SR.) R1 BY ADV. SRI.P.MARTIN JOSE** **R1 BY ADV. SRI.P.PRIJITH R1 BY ADV. SRI.THOMAS P.KURUVILLA R1 BY ADV. SRI.R.GITHESH R1 BY ADV. SRI.MANJUNATH MENON R1 BY ADV. SHRI.HARIKRISHNAN S. R1 BY ADV. SRI.AJAY BEN JOSE R1 BY ADV. SRI.SACHIN JACOB AMBAT R2-7 BY SRI.K.V.SOHAN, STATE ATTORNEY R2-7 BY GOVT.PLEADER SRI.RENIL ANTO KANDAMKULATHY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2020 ALONG WITH WA.1156/2020, THE COURT ON 16.10.2020 DELIVERED THE FOLLOWING:** W.A.Nos.1156 & 1160 of 2020 :5: ## **JUDGMENT** ## Haripal, J. These are appeals preferred under Section 5 of the High Court Act challenging the correctness of the orders of the learned single Judge dated 19.08.2020 and 13.08.2020 respectively, in W.P(C) No.35613/2019. Appellants are additional respondents 14 and 15, who are the intervenors in the writ petition. By the order dated 13.08.2020, which is impugned in W.A.No.1160/2020, the learned single Judge directed the 3[rd] respondent District Collector to keep the church premises under lock and key and that he shall not allow party respondents to use the church or its premises and that he shall inform this Court as to when the church and premises can be handed over to the petitioner in the writ petition, who is the 1[st] respondent in the Appeals. By order dated 19.08.2020, in furtherance of the order dated 13.08.2020, the learned single Judge directed that 'the police shall deploy necessary personnel that night to see that no inventories taken or any destruction to the church building is caused'. 2. In fact, the appellants were not impleaded in the writ petition, when the order dated 13.08.2020, the subject matter in W.A.Nos.1156 & 1160 of 2020 :6: W.A.No.1160 of 2020, was passed. Still an application for leave of the court was not filed and in that view, this writ appeal ought not to have been entertained. But, it being a purely technical aspect, we do not take it as a big issue at this juncture and proceed to dispose of both the appeals by this common judgment. 3. Before adverting to the contentions of the appellants, it is advantageous to set out in brief the facts leading to the filing of the writ petition. The writ petitioner/1[st] respondent claiming himself as the Vicar of the 8[th] respondent church, St.Marthasmooni Church, Thiruvarppu, moved the Munsiff's Court, Kottayam with O.S.No.654/2017, copy of which is appended as Ext.P1, seeking the following reliefs:- “A. Pass a decree of permanent prohibitory injunction restraining the defendants 2 to 7, their men or agents or supporters or anybody claiming under them who does not abide by 1934 constitution or the hierarchies there under from bringing priests or prelates not appointed under 1934 Constitution to conduct any religious services in the 1[st] defendant Church or its cemetery or other institution. B. Pass a decree of permanent prohibitory injunction restraining the defendants 2 and 3 or any Vicars, Priests or Prelates, who are not appointed by the Diocesan Metropolitan under 1934 Constitution from entering into the 1[st] defendant church, its cemetery, Parish hall, shrines, School and parsonage or from conducting any religious services therein. C. Pass a decree of permanent prohibitory injunction restraining W.A.Nos.1156 & 1160 of 2020 :7: the defendants, their men or agents or anybody claiming under them, from causing any obstruction to the plaintiff or his successors appointed by the Diocesan Metropolitan in accordance with 1934 Constitution from conducting religious services in the 1[st] defendant church and its institution situated in the plaint schedule properties. D. Allow the plaintiff to realise the cost of the suit from the defendants. ” 4. In the plaint, he claimed as the Vicar appointed under the provisions of the 1934 Constitution of the Malankara Orthodox Syrian Church, falling under the Kottayam Diocese. According to him, he was duly appointed as the Vicar of the church by the Assistant Metropolitan of Kottayam Diocese, that defendants have no manner of right over the affairs of the church, that defendants belong to the Jacobite faction who are out to trouble his peaceful management of the church, that he has been prevented from conducting religious services, which made him to approach the court for a decree of injunction. After hearing counsel on both sides, by Ext.P3 order dated 07.08.2019, the learned Principal Munsiff granted an interim order of injunction in favour of the 1[st] respondent. Defendants challenged that order before the District Court. The learned Additional District Judge considered CMAs 80 and 83 of 2019 together and, by common judgment dated 26.09.2019, affirmed the finding of the learned Principal Munsiff and W.A.Nos.1156 & 1160 of 2020 :8: dismissed the appeals. Later, the 1[st] respondent moved the Principal Munsiff again seeking police protection for implementing the order of injunction. After hearing both sides, the learned Principal Munsiff, by order dated 06.11.2019, allowed the petition and directed the District Collector and the District Police Chief, Kottayam 'to afford adequate police protection to the 1[st] respondent and parishioners, who are abiding the 1934 Constitution to enter into the church, cemetery, school, shrines, office and parsonage and to conduct religious services and also to prevent defendants and their men from making any obstruction to the petitioner and parishioners and to remove the obstacles from the scheduled properties' by implementing the Ext.P3 order. 5. It seems that the authorities turned a deaf ear and failed in discharge of their duties and thus the interim order granted by the civil court remains on the papers. Materials made available in the writ petition suggest that conciliatory efforts initiated by the District Collector in implementing the order of the court did not yield any result. Repeated representations made by the 1[st] respondent were not paid heed to and thus he moved this Court seeking a direction to W.A.Nos.1156 & 1160 of 2020 :9: respondents 1 to 6 in the writ petition, who are respondents 2 to 7 in the appeal, to afford adequate and effective police protection and also to issue a writ of mandamus strictly adhering to the decision of the Hon'ble Supreme Court in **Varghese v. St.Peter's and Paul's Syrian Orthodox Church [2017 (3) KLT 261 (SC)]** . 6. The impugned orders were passed in such a setting. When the order dated 13.08.2020 was passed, the appellants were not parties in the Writ Petition. They got themselves intervened thereafter, as additional respondents 14 and 15. 7. We heard Sri. K. Ramakumar, the learned senior counsel for the appellants, Sri.S.Sreekumar the learned senior counsel for the 1[st] respondent and also Sri.K.V.Sohan, State Attorney representing respondents 2 to 7. 8. According to the learned senior counsel for the appellants, the appellants have already moved the Munsiff's Court for getting themselves impleaded as defendants since it is their definite case that the 1[st] respondent, who is the plaintiff, is not competent to represent the church, he was reportedly appointed by Mor Dioscorus, a Metropolitan of Chennai, who was neither competent nor authorised to W.A.Nos.1156 & 1160 of 2020 :10: appoint a Vicar. According to the learned counsel, the appellants also profess the 1934 Constitution; even though he does not challenge the correctness of the order of the learned Munsiff, the present attempt to snatch the key of the church and to deny the legitimate rights of the parishioners to use the church premises, etc. are not in the larger interest of the parishioners. It is with the intention of protecting the interests of the parishioners that they wanted to get themselves impleaded in the Suit. But, before that the 1[st] respondent moved this Court with the writ petition seeking untenable reliefs. According to the learned counsel, a prayer for issuing a writ of mandamus is not maintainable in relation to the implementation of the orders of the civil court passed in the Suit pending disposal. Secondly, the learned single Judge went wrong in passing such orders, when the District Collector had moved the Munsiff's Court seeking clarification as to the implementation of the order of interim injunction. It was also pointed out that a Vicar appointed under the 1934 Constitution has no right to demand the key of the church, nor can seek eviction of the parishioners or prevent their right of worship in the church building. The learned Munsiff did not give any such direction. According to the learned W.A.Nos.1156 & 1160 of 2020 :11: counsel, the learned single Judge had passed the orders on the wrong footing that the Munsiff had upheld the position of the 1[st] respondent as the Vicar under the 1934 Constitution. On the basis of the impugned orders given to the police authorities, the District Collector locked the church premises and thereby rights of 140 families to worship have been prejudicially affected. 9. On the other hand, the learned senior counsel for the 1[st] respondent submitted that the learned Principal Munsiff had found the right of the 1[st] respondent to manage the affairs of the church; the Additional District Judge affirmed that order. Even though specific directions were given by the civil court to afford adequate police protection for implementing the order and prevent the party respondents from interfering with that right, the authorities wriggled out under one pretext or the other and that made the 1[st] respondent to move this Court. According to the learned counsel, there is absolutely nothing to interfere with the orders under challenge. 10. The learned State Attorney submitted that respondents 2 to 7 are bound to implement the order of the civil court, despite the fact that it may cause law and order problems. W.A.Nos.1156 & 1160 of 2020 :12: 11. Even though the appellants have claimed that they are also following the 1934 Constitution, we fail to understand as to how they could challenge the _locus standi_ of the 1[st] respondent to move for police protection seeking implementation of the order of the civil court. They have stated various matters in the memorandum of writ appeals. In the nature of the stand we propose to take, it is not necessary to delve deep into such matters. At the same time, it seems necessary to point out that the bona fides of the appellants have to be suspected, at least at this stage. If they are recognising the 1934 Constitution with an open mind on the lines of the decision of the Apex Court in **Varghese** 's case, quoted supra, they cannot be heard to attribute motive against the 1[st] respondent who moved the court in his efforts to get police protection for getting the interim orders of the civil court implemented. The averments made by them in the statement of facts are indicating that the intention of the appellants is something else. Whatever it may be, suffice it to say that, even though a Suit was instituted by the 1[st] respondent way back in 2017 in a representative capacity, appellants took no pain to get themselves impleaded or to apprise the court the actual state of affairs. It was submitted before us W.A.Nos.1156 & 1160 of 2020 :13: that they have already moved the Munsiff's Court this year with an application for impleadment, which is pending. They had intervened in the writ petition only in the latter phase, after the passing of the order dated 13.08.2020. 12. After going through the materials on record and hearing counsel on both sides, we do not find our way to interfere with the orders under challenge. As noticed earlier, the 1[st] respondent had approached this Court after getting an interim order of injunction, which was confirmed in appeal by the lower appellate court. Thereafter he moved the trial court seeking police assistance for getting the orders implemented. It is evident that the District Collector and police authorities were dilly-dallying. It was under such an extreme situation when the police had failed to afford protection that the 1[st] respondent sought the assistance of this Court in getting the orders implemented. There can absolutely be no doubt that the State and its instrumentalities are bound to afford necessary assistance in getting the interim order executed. This Court cannot be oblivious of the orders passed by the civil court, upholding the contentions of the 1[st] respondent. Correctness of that finding cannot be canvassed in these W.A.Nos.1156 & 1160 of 2020 :14: proceedings. The appellants are strangers, at least for the present, as far as the civil court proceedings are concerned. At this stage, this Court is not expected to analyse the rights of the parties. If the appellants have better rights in the church and the properties scheduled therein, it is for them to work out their remedies through appropriate forum. But it is very essential that orders passed by the civil court are implemented. We are convinced that the impugned orders were passed only with the clear intention of implementing the orders. The writ petition is pending before Court. A final judgment has not been passed by the learned single Judge. If the learned Judge has not considered relevant aspects, the appellants, who are now parties, can raise all their contentions before Court and seek for vacating that order. We do not find any reason to interfere with the orders under challenge and both the appeals are dismissed _in limine._ We make no order as to costs. Sd/- ## **C.T. RAVIKUMAR JUDGE** Sd/- ## **K.HARIPAL** ## **JUDGE** okb/17/09/2020 //True copy// P.S. to Judge W.A.Nos.1156 & 1160 of 2020 :15: ## **APPENDIX OF WA 1156/2020** ## **APPELLANTS' ANNEXURES:** ## **ANNEXURE A-1** **TRUE COPY OF THE STATEMENT OF OBJECTION DATED 4.8.2020 FILED BY THE 1ST RESPONDENT IN I.A NO 4 OF 2020 IN OS NO 654 OF 2017 BEFORE THE LD.MUNSIFF COURT, KOTTAYAM** W.A.Nos.1156 & 1160 of 2020 :16: ## **APPENDIX OF WA 1160/2020** ## **APPELLANTS' ANNEXURES:** ## **ANNEXURE A-1** **TRUE COPY OF THE STATEMENT OF OBJECTION DATED 04.08.2020 FILED BY THE 1ST RESPONDENT IN IA NO.4 OF 2020 IN O.S. NO. 654 OF 2017 BEFORE THE LD.MUNSIFF COURT, KOTTAYAM.**