St. Mary's Orthodox Syrian Cathedral (Piravom Valiyapalli) & Fr. Skariah VattaKattill v State of Kerala and Others (WP(C).No.36845 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **WP(C).No.36845 OF 2018(E)** ## **PETITIONERS :-** - **1 ST.MARY'S ORTHODOX SYRIAN CATHEDRAL (PIRAVOM VALIYAPALLI), PIRAVAM, PIN – 686 664 REPRESENTED BY ITS TRUSTEE, U.P.JOHN, S/O.PAILY, 75, URAKATTIL HOUSE, PAZHOOR, PIRAVOM P.O.** - **2 FR.SKARIAH VATTAKATTIL, VICAR, ST.MARY'S ORTHODOX SYRIAN CATHEDRAL, PIRAVOM (PIRAVOM VALIYA PALLI), ERNAKULAM DIST, PIN – 686 664, KERALA STATE.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.MANJUNATH MENON** ## **RESPONDENTS :-** - **1 THE STATE OF KERALA REP BY ITS SECRETARY (DEPARTMENT OF EDUCATION), GOVERNMENT OF SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** - **2 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KAKKANAD – 682 030.** - **3 THE DISTRICT EDUCATIONAL OFFICER MUVATTUPUZHA EDUCATIONAL DISTRICT, MUVATTUPUZHA – 686 661.** - **4 FR.SIMON CHELLIKKATTIL, COR EPISCOPA, CHELLIKKATTIL HOUSE, KALAMPOOR.P.O, PIRAVOM – 686 664.** **5 P.C.CHINNAKUTTY, MANAGER, M.K.M.H.S, PIRAVOM – 686 664. BY SRI.SUNIL KURIAKOSE, GOVERNMENT PLEADER BY ADV. SRI.K.J.KURIACHAN BY ADV. SRI.SUNIL JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2020, THE COURT ON 01-12-2020 DELIVERED THE FOLLOWING:** WP(C).No.36845 OF 2018(E) -: 2 :- ## **JUDGMENT** ## **Dated this the 1st day of December 2020** This writ petition is filed seeking the following reliefs :- - “A. Call for the records leading to Exhibit.P9 and quash Exhibit.P9 by issue of writ of certiorari or such other writ order or direction. - B. Issue a writ of mandamus or such other writ order or direction directing the 3[rd] respondent to consider Exhibit.P4 application in accordance with law after affording an opportunity of being heard to the petitioner within a time limit to be fixed by this Hon'ble Court.” 2. Heard the learned Senior Counsel appearing for the petitioners, the learned Government Pleader appearing for respondents 1 to 3 and the learned counsel appearing for respondents 4 and 5. 3. The first petitioner is a constituent church of the Malankara Orthodox Syrian Church under the Kandanadu East Diocese. The second petitioner represents the first petitioner church. It is submitted that respondents 4 and 5 are the members of the Jacobite/Patriarch Faction who disassociated from the Malankara Church and formed the Yacobaya Suriyani Christiani Sabha. It is stated that the question of administration and management of the church and properties of the Malankara Sabha were conclusively decided by the Apex Court by a decision reported in **K.S. Varghese** v. **St. Peter's & Paul's Syrian** WP(C).No.36845 OF 2018(E) -: 3 :- **Orthodox Church and others** [2017 (3) KLT 261 (SC)]. It was held that the 1934 Constitution governed all temporal issues in the church and that all issues regarding the administration and properties of all the constituent churches were liable to be decided in accordance with the settled decisions of the Apex Court. It is stated that there was a suit filed as O.S.No.6/1985 under Order I Rule 8 CPC, which was decreed on 28.2.1997. The Jacobite faction had filed appeals as RFA Nos.524, 596 and 604 of 2013 challenging the judgment and decree. Those appeals along with R.P. No.664/2013 were disposed of by a common judgment of this Court dated 3.9.2014 against which the second petitioner and others had filed SLP before the Apex Court. By Ext.P1 judgment, the Apex Court held that the question had been finally decided in **K.S. Varghese** v. **St. Peter's & Paul's Syrian Orthodox Church and others** and that the parties shall be governed by the terms of the said judgment. It is stated that the review petition filed against Ext.P1 was also dismissed by the Apex Court on 31.7.2018. 4. It is stated that during the pendency of the civil case, elections to the parish managing committee and to the post of Manager of the educational agency were held in accordance with the 1934 Constitution and as per the approved bye-laws dated 27.3.1973 on 16.5.2004. The 5[th] respondent was elected as WP(C).No.36845 OF 2018(E) -: 4 :- Manager. However, he, along with the 4[th] respondent, disassociated from the Malankara Church and joined the Yacobaya Suriyani Christiani Sabha. Thereafter, a meeting of the parish assembly of the church was convened on 28.1.2018 and Fr. V. A. Mathew, Vathakattil was elected as Manager in the place of the 5[th] respondent. Ext.P4 request was thereafter made before the 3[rd] respondent to approve the appointment of Manager. The documents called for by the 3[rd] respondent were produced. Thereafter, a hearing was conducted on 21.7.2018. However, by Ext.P9 order dated 10.10.2018, the 3[rd] respondent held that there were civil cases pending with regard to the rights to the church and that as such, the question of approval of Manager cannot be considered by the 3[rd] respondent. This order is under challenge before this Court. 5. The learned Senior Counsel appearing for the petitioners submits that the appointment of Manager of a school owned by the church is necessarily a temporal and secular matter and that the rights to the properties of the church having been concluded by the Apex Court, there can be no further dispute with regard to the right of the first petitioner to appoint a Manager for the school. It is submitted that civil suits, if any, filed can have no impact on the legal position as settled by the Apex Court in **K.S.** WP(C).No.36845 OF 2018(E) -: 5 :- **Varghese's case** and that therefore, the refusal on the part of the 3[rd] respondent to exercise his statutory function amounts to abdication of the statutory responsibility and is illegal. It is further contended that the 3[rd] respondent is enjoined to consider an application for change of management in accordance with the findings of the Apex Court. The learned counsel also submits that Ext.P10 judgment has been rendered on 20.9.2019 by a Division Bench of this Court directing the police to afford protection for the conduct of religious services in the first petitioner church in pursuance to the directions of the Apex Court. 6. A counter affidavit has been placed on record by the 3[rd] respondent. The factual aspects of the matter are admitted. It is stated that since the case related to the Piravom Valiyapally is still pending before this Court as W.P.(C) No.17998/2018 and the election of the new Manager, Fr. V. A. Mathew, Vathakattil is challenged in the Sub Court, Muvattupuzha in O.P. No.9/2019, it would not be appropriate for the 3[rd] respondent to intervene in the matter. It is stated that this is the reason why Ext.P4 is rejected by the 3[rd] respondent. 7. Respondents 4 and 5 have also placed a counter affidavit on record. It is stated that the 5[th] respondent was elected as Manager of the school and the appointment was approved by the WP(C).No.36845 OF 2018(E) -: 6 :- educational authorities by order dated 3.11.2006. It is stated that the general body of the educational agency had not removed the 5[th] respondent from the post of Manager. It is contended that in the election conducted on 21.10.2014 also the parish assembly meeting unanimously decided that the 5[th] respondent should continue as Manager. It is stated that thereafter, no election was conducted and Ext.P3 minutes cannot be considered as the minutes of the general body meeting of the educational agency and the claim that the 5[th] respondent was removed from the post of Manager by Ext.P3 is unsustainable. It is further contended that U. P. John is not the trustee of the church and that he cannot represent the church. It is submitted that the contention of the petitioners that the entire issue stands resolved by the judgment of the Apex Court and Ext.P10 judgment is unsustainable and that Ext.P10 judgment only grants police protection for the conduct of religious services in the church. It is further contended that the Apex Court itself at paragraph 176 of the judgment in **K.S. Varghese's case** had held that educational institutions have to be run in accordance with the provisions of the Kerala Education Act and cannot be governed by the udampadi of 1913 as per Sections 6 and 7 of the Kerala Education Act, 1958. It is, therefore, contended that the contentions of the petitioners on the basis of WP(C).No.36845 OF 2018(E) -: 7 :- the Apex Court judgment are fallacious and that the issue has to be considered strictly in accordance with the KER. 8. I have considered the contentions advanced. Sections 6 and 7 of the Kerala Education Act, 1958 are with regard to restriction on alienation of properties of aided schools and the appointment of managers of aided schools. It is trite law that the right to ownership of the property of the school is not a matter which is governed by the provisions of the Kerala Education Act or the Rules. The judgment of the Apex Court in **K.S. Varghese's case** is relevant in so far as the rights to the property belonging to the constituent churches of the Malankara Church are concerned. The Apex Court in **K.S. Varghese's case** specifically held that the Patriarch cannot interfere in the governance of parish churches by appointing vicar, priests, deacon, prelates, high priests etc. and cannot thereby create a parallel system of administration. It was held that the appointment of vicar is a secular matter and such appointments are to be made as per the 1934 Constitution. It was held that no group or denomination by majority or otherwise can take away the management or the property of the Malankara Church. The 2002 Constitution was held to be illegal and void and the parallel system created thereunder for administration of parish churches of Malankara Church was found to be unsustainable. It WP(C).No.36845 OF 2018(E) -: 8 :- was further found that the constituent churches have to be administered under the 1934 Constitution and that there is no necessity for framing a scheme under Section 92 of the CPC. It is in the backdrop of the said decision that the issue of change of personnel of Manager has to be considered by the 3[rd] respondent. 9. It is contended by the petitioners herein that Ext.P3 is the minutes of a general body of the first petitioner convened on 28.1.2018. It appears that the 5[th] respondent had been removed from the post of Manager and Fr. V. A. Mathew, Vathakattil had been elected as the Manager of the educational institution. By Ext.P4, an application for change of Manager in terms of Chapter III Rule 5 has been submitted by the newly elected Manager. When a change of managership is intimated to the 3[rd] respondent in terms of Rule 5, the 3[rd] respondent is duty bound to take a decision on the request in accordance with law. With regard to the right to the property of the church is concerned, the judgment of the Apex Court in **K.S. Varghese's case** holds the field and any later suits filed would be of no consequence in so far as questions which are settled by the Apex Court in the above referred judgment are concerned. In the above factual situation, I am of the opinion that the rejection of the request for change of managership by Ext.P9 WP(C).No.36845 OF 2018(E) -: 9 :- by the 3[rd] respondent was completely untenable. Ext.P9 is therefore set aside. The 3[rd] respondent is directed to take up, consider and pass orders on Ext.P4 in accordance with law. The petitioners as well as respondents 4 and 5 can be heard before orders are passed as directed above. However, it is made clear that on all questions which stand concluded by the judgment of the Apex Court, the said judgment shall be taken as authority by the 3[rd] respondent and the contentions to the contrary cannot be agitated before the 3[rd] respondent. Orders shall be passed by the 3[rd] respondent, after hearing the parties, within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN JUDGE** Jvt/26.11.2020 WP(C).No.36845 OF 2018(E) ## -: 10 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF JUDGMENT IN S.L.P.(C)NO.33156 TO 33159 OF 2014 DATED 19.04.2018 OF HON'BLE SUPREME COURT.** - **EXHIBIT P2 TRUE COPY OF REPORT DATRED 27.05.2004 OF THE ADVOCATE COMMISSIONER FILED IN I.A.NO.19 OF 2004 IN O.S.NO.O6 OF 1985 BEFORE THE DISTRICT COURT,ERNAKULAM** - **EXHIBIT P3 TRUE COPY OF MINUTES OF THE MEETING DATED 28.01.2018** - **EXHIBIT P4 TRUE COPY OF LETTER DATED 16.03.2018 ISSUED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF LETTER DATED 28.03.2018 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE REPLY DATED 15.05.2018 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT** - **EXHIBIT P7 TRUE COPY OF REPRESENTATION SUBMITTED BY THE 2ND PETITIONER DATED 15.05.2018 BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF NOTICE DATED 30.06.2018 ISSUED BY THE 3RD RESPONDENT TO RESPONDENTS 4 AND 5.** - **EXHIBIT P9 TRUE COPY OF CRYPTIC ORDER DATED 10-10-2018 OF THE 3RD RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF JUDGMENT DATED 20-09-2019 IN W.P. (C)No.10727 OF 2019 OF THIS HON'BLE COURT.** - **EXHIBIT P11 TRUE COPY OF KALPANA No.66/2019 DATED 02-12-2019.** - **EXHIBIT P12 TRUE COPY OF PROPOSAL FOR APPROVAL DATED 26-062020 SUBMITTED BEFORE THE 3RD RESPONDENT.** **' - RESPONDENTS EXHIBITS :** **EXHIBIT R5(a) : TRUE COPY OF APPLICATION FOR CHANGE OF MANAGER ALONG WITH THE ORDER OF APPROVAL DATED 3.11.2006 PASSED BY THE DEO MUVATTUPUZHA.**