St. Mary's Orthodox Syrian Church, Erickinchira v. State of Kerala and others (WP(C) No.11705 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 WP(C) NO.11705 OF 2022** ## **- PETITIONERS :** 1 ST. MARY'S ORTHODOX SYRIAN CHURCH, ERICKINCHIRA, (ERICKINCHIRA CHURCH) KORENCHIRA POST, KIZHAKKENCHERRY-I VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT - 678 684, REPRESENTED BY ITS VICAR FR. MATHAI THOZHUTHUNGAL 2 FR. MATHAI THOZHUTHUNGAL, AGED 70 YEARS S/O.LATE KURIAKOSE, VICAR, ST. MARY'S ORTHODOX SYRIAN CHURCH, ERICKINCHIRA, (ERICKINCHIRA CHURCH), RESIDING AT THOZHUTHUNGAL HOUSE, MUDAPALLUR P.O, KADAMCODU, PALAKKAD -678 705. 3 FR. THOMAS JOHN, AGED 46 YEARS S/O. JOHN, ASSISTANT VICAR, ST. MARY'S ORTHODOX SYRIAN CHURCH, ERICKINCHIRA, (ERICKINCHIRA CHURCH), RESIDING AT MOOTHANDETH HOUSE, CHELAKKODE P.O, NEAR GOVT AYURVEDA HOSPITAL CHELAKKARA, THRISSUR - 680 587. BY ADVS. S.SREEKUMAR (SR.) ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN ## **- RESPONDENTS :** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE CHIEF SECRETARY, GOVT. OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 ADDITIONAL CHIEF SECRETARY TO GOVERNMENT DEPARTMENT OF HOME, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. WP(C) NO.11705 OF 2022 -: 2 :- 4 THE DIRECTOR GENERAL OF POLICE AND STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695 001 5 THE DISTRICT COLLECTOR, COLLECTORATE, PALAKKAD, PIN : 678 001 6 THE DISTRICT POLICE CHIEF DISTRICT POLICE OFFICE, PALAKKAD, PALAKKAD DISTRICT, PIN : 678 001. 7 REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD, PIN : 678 001. 8 THE DEPUTY SUPERINTENDENT OF POLICE ALATHUR P.O, PALAKKAD DISTRICT, KERALA, PIN : 678 541. 9 CIRCLE INSPECTOR OF POLICE, (SHO) VADAKKANCHERY POLICE STATION, PALAKKAD, PIN : 678 683. 10 FR. ANIL JOHN, AGED 33 YEARS S/O. LATE JOHN, VANNILAM HOUSE, MANNAMANGALAM P.O, THRISSUR - 680 014. 11 FR. T.C GEEVERGHESE, AGED 78 YEARS THANNIKOT HOUSE, VENGASSERY, KORANCHIRA P.O, PALAKKAD - 678 684. 12 ABRAHAM SCARIA, AGED 58 YEARS S/O. SCARIA, PUTHUSSERY HOUSE, PATTAYAMPADAM, KORANCHIRA P.O, PALAKKAD - 678 684. BY ADVS. SRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL SAJAN VARGHEESE K. LIJU. M.P THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON 03.02.2023 DELIVERED THE FOLLOWING: WP(C) NO.11705 OF 2022 -: 3 :- ## JUDGMENT ## Dated this the 3rd day of February, 2023 This writ petition is filed by the St.Mary's Orthodox Syrian Church, Erickinchira, Kizhakkencherry-I Village, Alathur Taluk, Palakkad District represented by its Vicar and the Vicar and Assistant Vicar of the church seeking directions to respondents 1 to 9 to afford adequate protection to the life of petitioners 2 and 3 and other Clergy appointed under the 1934 Constitution to conduct religious services in the 1[st] petitioner Church, its cemetery, parish hall and kurishadies and also to the Clergy and Parishioners of the Church who declare allegiance to the 1934 Constitution in participating in such religious services without any obstruction, interruption or hindrance from respondents 10 to 12, their men, agents or followers. A further prayer is made seeking directions to respondents 1 to 6 to act strictly adhering to the decision of the Hon'ble Supreme Court in K.S. Varghese's case ensuring that no priests or prelates appointed otherwise than in accordance with Malankara Orthodox Church Constitution of 1934 conduct any sacraments including Holy Mass in the 1[st] petitioner Church, its parish hall, cemetery or any other appurtenant buildings thereto. WP(C) NO.11705 OF 2022 -: 4 :- 2. I have heard Sri.S. Sreekumar, the learned Senior Counsel appearing for the petitioners as instructed by Sri.Roshan D. Alexander and Sri.Asok M. Cherian, the learned Additional Advocate General as well as Sri.Sajan Varghese, the learned counsel appearing for respondents 10 to 12. 3. It is submitted by the learned Senior Counsel appearing for the petitioners that the 1[st] petitioner Church is one of the churches of the Malankara Orthodox Syrian Church and is included as Serial No.823 in the list of 1064 churches under the Sabha. Exts.P1 and P2 are the Kalpanas of the Diocesan Metropolitan, Thrissur Diocese of the Malankara Orthodox Church appointing the 2[nd] petitioner as the Vicar and the 3[rd] petitioner as the Assistant Vicar of the 1[st] petitioner Church. It is submitted that though the 1[st] petitioner is admittedly a Constituent Church of the Malankara Orthodox Syrian Church which was founded in the year 1953, from 1995 onwards the Church was under the parallel administration by the Jacobite faction. None of the Vicars lawfully appointed by the Diocesan Metropolitan of the Thrissur Diocese in accordance with the 1934 Constitution of the Malankara Orthodox Syrian Church were permitted to enter the premises of the Church or to conduct WP(C) NO.11705 OF 2022 -: 5 :- religious services by the sympathizers of the Jacobite/Patriarch faction. It is submitted that respondents 10 to 12 are the members of Jacobite/ Patriarch Faction who had disassociated from the Malankara Church and formed a new Church (Sabha) called Yacobaya Suriyani Christiani Sabha and is governed by the 2002 Constitution. 4. It is stated that the 2[nd] petitioner along with two parishioners filed O.S. No.441/2012 before the Sub Court, Palakkad after obtaining leave under Section 92 of the Code of Civil Procedure. Later, the suit was transferred to the 1[st] Additional District Court, Ernakulam (Special Court assigned for handling church cases) and was re-numbered as O.S. No.23/2014 on the files of the 1[st] Additional District Court, Ernakulam. After the transfer of the suit, the defendants in the suit filed I.A. No.5348/2017 for revoking the leave already granted under Section 92 of the Code of Civil Procedure. The 1[st] Additional District Court allowed the application, revoked the leave and struck off the suit from the file by Ext.P5 order, which was challenged in FAO No.100/2018 along with three other similar matters. Ext.P6 common judgment was rendered by this Court on 10.7.2018 in FAO No.96/2018 and connected cases. An WP(C) NO.11705 OF 2022 -: 6 :- SLP was filed against Ext.P6. Leave was granted and the Civil Appeal was numbered. However, in the meanwhile, the decision in K.S. Varghese v. St. Peter's & Paul's Syrian Orthodox Church and others [(2017) 15 SCC 333] had been rendered by the Apex Court. The Civil Appeals were disposed of by Ext.P7 order, which reads as follows :- “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], which holds the field, nothing further survives in the matters for adjudication. Consequently, the appeals stand disposed of in view of the 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.” 5. It is submitted that since petitioners 2 and 3 are the lawfully appointed Vicars as per the 1934 Constitution, they were entitled, on the basis of Ext.P7 decree in the Civil Appeal, to discharge their duties as such. However, respondents 10 to 12 and their men forcefully prevented petitioners 2 and 3 from entering the Church and performing their duties. They had tried to re-agitate the question settled by the Apex Court by filing further litigations. Ext.P8 is a judgment dated 11.3.2020 in O.S. WP(C) NO.11705 OF 2022 -: 7 :- No.75/2019 on the files of the Munsiff Court, Alathur. When there were continuing obstructions from respondents 10 to 12, the petitioners had approached the police seeking necessary assistance for effectuating the decree of the Apex Court, but no steps were taken on the same. It is contended by the learned Senior Counsel for the petitioners that the police are duty bound to afford adequate assistance to see that the directions of the Apex Court are complied with in full and that the refusal to do so is completely inexcusable. 6. Respondents 10 to 12 have filed a counter affidavit contending that there is no church known as St.Mary's Orthodox Syrian Church and that there are several churches called Erukkumchira Palli in the vicinity. It is contended that there is a St.Mary's Jacobite Syrian Christian Church and that the said church was never a constituent of the Malankara Orthodox Syrian Church. It is further stated that the 2[nd] petitioner is officiating as Vicar in the Kombhazha Orthodox Syrian Church and the 3[rd] petitioner as Vicar in the Ayalikkalkulambu Orthodox Syrian Church and that they have no connection with the church in question. It is submitted that respondents 10 to 12 are the members and office bearers of the St.Mary's Jacobite Syrian WP(C) NO.11705 OF 2022 -: 8 :- Church and that several cases are pending as O.S. No.295/2021 in the Munsiff Court, Alathur, A.S. No.134/2020 in the District Court, Palakkad with regard to the said church. It is contended that the petitioners are put to strict proof of their claims and that in the light of bona fide disputes being raised to the identity of the church, the prayers as sought for cannot be granted. It is further contended that the parishioners who are the necessary parties are not made parties to the suit and in Ext.P7 proceedings. 7. The learned counsel appearing for respondents 10 to 12 places reliance on the decisions of the Hon'ble Supreme Court in Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another [AIR 1974 SC 2141] and Moran Mar Baselios Marthoma Mathews II v. State of Kerala [2007 (3) KLT 349 (SC)] as also a decision of this Court in St.George Tabore Church and others v. State of Kerala and others [2021 (1) KHC SN 1]. 8. The learned Additional Advocate General submits that in the facts of this case, it appears that the Jacobite faction is presently in possession of the Church and that religious services are also being carried out in the Church. It is submitted that the police and the state administration are fully bound by the WP(C) NO.11705 OF 2022 -: 9 :- decisions of the Apex Court in K.S. Varghese v. St. Peter's & Paul's Syrian Orthodox Church and others. However, it is contended that at present, there is no breach of peace and that the assistance as required by the petitioners may lead to a breach of peace which is the reason why the same has not been enforced till date. 9. I have considered the contentions advanced. I notice that the instant case is admittedly one, where a civil suit had been filed in the representative capacity before the Munsiff Court, Alathur, where leave was granted under Section 92. The suit was transferred to the 1[st] Additional District Court, Ernakulam and re-numbered. Thereafter, an I.A. was filed to revoke the leave already granted, which was allowed. The matter was taken before this Court in FAO and a common judgment was rendered dismissing the FAO and upholding the revocation of the leave and the removal of the case from the list. The Apex Court granted leave under Article 136 of the Constitution of India and disposed of the Civil Appeal by Ext.P7 order. In the above factual background, the respondents cannot raise contentions regarding the identity of the church and regarding its status as one of the constituent churches of the Malankara Orthodox Syrian Church. WP(C) NO.11705 OF 2022 -: 10 :- 10. With regard to one of the churches covered by the common judgment in the FAO, Ext.P25 judgment has been rendered by this Court considering almost identical contentions. The contention that the Church in question is not a constituent church of the Malankara Orthodox Syrian Sabha and that the contesting respondents were in lawful possession of the church and that the 14[th] respondent therein was the lawfully appointed Vicar were considered by this Court. In the absence of documents to show that the 14[th] respondent therein was appointed in accordance with the 1934 Constitution and relying on the judgment of a Division Bench of this Court in Mar Miletius Yuhanon v. Mar Thomas Dionysious & Ors. [2020 (4) KHC 14] and in Marthoman Church, Mulanthuruthy & Ors. v. State of Kerala & Ors. [2020 (3) KHC 448], this Court held that it is the duty of the police to see that law and order which is a matter of governance is maintained by all citizens. It was found that the civil court does not have the machinery to see that all decrees are executed. If there is an illegal obstruction to the execution of a decree, police assistance for the purpose can be ordered. Where the Apex Court has specifically declared the law and has held that the law laid down is applicable to all the constituent WP(C) NO.11705 OF 2022 -: 11 :- churches under the Malankara Orthodox Syrian Church, the respondents cannot be heard to raise contentions against the findings already rendered by the Apex Court specifically stating that such directions are intended to operate in respect of all such churches. 11. It is true that in a case where there are bona fide disputes with regard to the nature and identity of the property involved, this Court would not be justified in directing police protection to be granted or in attempting to resolve such bona fide disputes in proceedings under Article 226. However, when the objections raised are only for the purpose of frustrating the proper enforcement of binding orders of the Apex Court, this Court would not be powerless to pass appropriate orders to see that the directions of the Apex Court are complied with by all concerned. 12. In the instant case, the church in question is admittedly a Constituent Parish Church of the Malankara Orthodox Syrian Church being Serial No.823 in the list of 1064 churches enumerated in the decisions especially in K.S. Varghese's case supra. The contention of the respondents is that they are in possession of the Church. However, no material is on WP(C) NO.11705 OF 2022 -: 12 :- record to show that the 10[th] respondent has been appointed as Vicar of the St.Mary's Orthodox Syrian Church, Erickinchira in accordance with the 1934 Constitution. If that be so, the attempt of the party respondents and their contentions in the counter affidavit can only be seen as a ruse to get over the binding directions of the Apex Court. 13. The contention that a Contempt Petition is pending before the Apex Court and therefore, the writ petition would not be maintainable is also completely untenable since the filing of a Contempt of Court Case by some other beneficiaries of the judgment cannot be a ground for the contesting respondents who were the party respondents in the FAO and the SLP to contend that they will not comply with the binding directions of the Apex Court. In view of the fact that the suit which led to Ext.P7 was one instituted with the leave of court under Section 92 CPC, the contention with regard to non-joinder of individual parishioners are not available to the party respondents. The further contention that the decree has to be executed through the machinery provided in the CPC would also not be acceptable in view of the specific directions of the Apex Court contained in Ext.P7. This Court in the judgment dated 18.5.2020 in W.P.(C) WP(C) NO.11705 OF 2022 -: 13 :- ## No.4071/2020 had specifically considered these contentions and had held as follows :- “13. Therefore, the objection that the petitioners will have to move the civil court for execution of the decree is untenable. It is true that some of the members of the Catholic faction had moved the Apex Court in contempt for non compliance of the directions in K.S.Varghese case (supra). Prayers have been made for police protection to the Vicars appointed under the 1934 Constitution. The power of this Court is not foreclosed merely because some petitions are pending before the Apex Court, unless the Apex Court had issued any directions restricting this Court in entertaining and disposing any of the matters pending before this Court. The application appears to have been moved before the Apex Court as early as on 25.11.2019. No doubt if any directions are issued by the Apex Court, this Court is bound to follow such directions. In the absence of such directions, this Court need not consider any such objections at this stage. In constitutional scheme, the power of the High Court to protect the fundamental rights of the citizens is at par with the Hon'ble Supreme Court. Therefore, in a writ of mandamus moved to protect the rights of the citizens, the Court must act swiftly, especially when, subject of such dispute pertains to law and order on account of disobedience to the directions of the Apex Court.” I find from the pleadings on record that the party respondents are only attempting to delay the matter and that they have not raised any sustainable contentions which can be considered by this Court in these proceedings. WP(C) NO.11705 OF 2022 -: 14 :- 14. In the above view of the matter and in view of the specific findings of the Apex Court in K.S. Varghese's case as also in Ext.P7 order, I am of the opinion that the respondents are duty bound to see that the directions of the Apex Court are complied with in full. The petitioners are entitled to succeed in this writ petition. The writ petition is, therefore, allowed. There will be a direction to the police to see that appropriate steps are taken in compliance with Ext.P7 order. Adequate protection will be granted to the petitioners 2 and 3 who are the lawfully appointed Vicars of the Church in accordance with the 1934 Constitution to enter the Church and to carry out the religious services in the Church without let or hindrance from respondents 10 to 12 or anybody claiming through them. Appropriate steps shall be taken by the respondents to comply with the directions within a period of one month from the date of receipt of a copy of this judgment. Sd/ANU SIVARAMAN JUDGE Jvt/19.1.2023 WP(C) NO.11705 OF 2022 ## -: 15 :- ## **APPENDIX OF WP(C) 11705/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE KALPANA BEARING NO. 47/PRAP/18 DTD. 03.09.2018 ISSUED BY THE DIOCESAN METROPOLITAN, THRISSUR DIOCESE OF MALANKARA ORTHODOX CHURCH APPOINTING THE 2ND PETITIONER AS THE VICAR OF THE 1ST PETITIONER CHURCH. - Exhibit P2 TRUE COPY OF THE KALPANA BEARING NO. 50/PRTR/21 DTD. 22.09.2021 ISSUED BY THE DIOCESAN METROPOLITAN, THRISSUR DIOCESE OF MALANKARA ORTHODOX CHURCH APPOINTING THE 3RD PETITIONER AS THE ASSISTANT VICAR OF THE 1ST PETITIONER CHURCH. - Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 19.04.2018 IN CIVIL APPEAL NOS.3986 - 3989 OF 2018 ON THE FILES OF THE HON'BLE SUPREME COURT . - Exhibit P4 TRUE COPY OF THE JUDGMENT IN FR. ISSAC MATTAMEL COR EPISCOPA REPORTED IN 2019 (10) SCC 606. - Exhibit P5 TRUE COPY OF THE ORDER DTD. 20.03.2018 IN I.A NO. 5348/2017 IN O.S NO. 23/2014 ON THE FILES OF 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM. - Exhibit P6 TRUE COPY OF COMMON JUDGMENT DTD. 10.07.2018 IN FAO NOS. 100 OF 2018 & CONNECTED CASES ON THE FILES OF THIS HON'BLE COURT. - Exhibit P7 TRUE COPY OF THE COMMON ORDER DTD. 26.02.2019 IN CIVIL APPEAL NO. 2447/2019 ON THE FILES OF THE HON'BLE SUPREME COURT. - Exhibit P8 TRUE COPY OF THE JUDGMENT DTD. 11.03.2020 IN O.S NO. 75/2019 ON THE FILES OF MUNSIFF COURT, ALATHUR. - Exhibit P9 TRUE COPY OF THE REPRESENTATION DTD. 08.09.2021 SUBMITTED BY THE 2ND PETITIONER ALONG WITH THE SECRETARY AND TRUSTEE OF THE 1ST PETITIONER WP(C) NO.11705 OF 2022 ## -: 16 :- ||CHURCH BEFORE RESPONDENTS 2 TO 9.| |---|---| |Exhibit P10|TRUE COPY OF THE AD CARD EVIDENCING RECEIPT OF| ||EXT.P9 REPRESENTATION BY THE 3RD RESPONDENT ON| ||17.09.2021.| |Exhibit P11|TUE COPY OF THE AD CARD EVIDENCING RECEIPT OF| ||EXT.P9 REPRESENTATION BY THE 4TH RESPONDENT ON| ||16.09.2021.| |Exhibit P12|TRUE COPY OF THE AD CARD EVIDENCING RECEIPT OF| ||EXT.P9 REPRESENTATION BY THE 5TH RESPONDENT ON| ||16.09.2021.| |Exhibit P13|TRUE COPY OF THE AD CARD EVIDENCING RECEIPT OF| ||EXT.P9 REPRESENTATION BY THE 6TH RESPONDENT ON| ||17.09.2021.| |Exhibit P14|TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT BEARING| ||NO.291 DTD. 09.09.2021 ISSUED FROM THE OFFICE| ||OF THE 7TH RESPONDENT ON SUBMISSION EXT.P9| ||REPRESENTATION.| |Exhibit P15|TRUE COPY OF THE AD CARD EVIDENCING RECEIPT OF| ||EXT.P9 REPRESENTATION BY THE 8TH RESPONDENT ON| ||16.09.2021.| |Exhibit P16|TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT WITH| ||REFERENCE PETITION NO. 117833/2021 DTD.| ||09.09.2021 ISSUED FROM THE 9TH RESPONDENT'S| ||OFFICE.| |Exhibit P17|TRUE COPY OF THE JUDGMENT DTD. 03.12.2019| ||REPORTED AS FR. THOMAS PAUL RAMBAN V. DISTRICT| ||COLLECTOR, ERNAKULAM & OTHERS; 2020 (3) KLT| ||124.| |Exhibit P18|TRUE COPY OF JUDGMENT REPORTED IN MARTHOMAN| ||CHURCH V. STATE OF KERALA, 2020 (3) KLT 231.| |Exhibit P19|TRUE COPY OF ORDER DTD. 29.07.2020 IN COC| ||NO.777/2020.| |Exhibit P20|TRUE COPY OF THE INTERIM ORDER DTD. 10.08.2020| WP(C) NO.11705 OF 2022 -: 17 :- IN CONT. CASE NO.777/2020. Exhibit P21 TRUE COPY OF THE ORDER DTD. 12.08.2020 IN W.A NO. 1046/2020 ON THE FILES OF THIS HON'BLE COURT. Exhibit P22 TRUE COPY OF THE ORDER DTD. 22.06.2020 IN W.P. (C) NO.11182/2020. Exhibit P23 TRUE COPY OF THE JUDGMENT DTD. 16.07.2020 IN W.P.(C) NO.11182/2020. Exhibit P24 TRUE COPY OF THE ORDER DTD. 12.08.2020 IN W.P. (C) NO.27219/2020. Exhibit P25 TRUE COPY OF THE JUDGMENT DTD. 12.08.2020 IN W.P.(C) NO.8528/2019. Exhibit P26 TRUE COPY OF THE JUDGMENT DTD. 12.08.2021 IN W.P.(C) NO. 35613/2019 AND W.P.(C) NO. 19419/2021. Exhibit P27 TRUE COPY OF JUDGMENT DTD. 03.01.2019 IN W.P. (C) NO. 30474/2018. RESPONDENT EXHIBITS Exhibit R10(a) TRUE COPY OF PLAINT DATED 22.09.2021 IN O.S NO.295/2021 BEFORE THE MUNSIFF COURT, ALATHUR. Exhibit R10(b) TRUE COPY OF PLAINT IN O.S NO.75/2019 DATED 08.03.2019 IN THE MUNSIFF COURT, ALATHUR WHICH RESULTED TO EXHIBIT P8 JUDGMENT. Exhibit R10(c) TRUE COPY OF THE APPEAL MEMORANDUM IN A.S 134/2020 DATED 17.08.2020 FILED IN EXHIBIT R10(B) SUIT IN THE COURT OF THE DISTRICT JUDGE PALAKKAD.