W.P.(C) Nos. 21852/2021 & 22951/2021 (John K.A. and Biju K Varghese vs State of Kerala and others; K.U. Baby and Joby C. George vs State of Kerala and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** ## **WP(C) NO. 21852 OF 2021** ## **PETITIONERS:** - **1 JOHN K.A. AGED 73 YEARS KUMBALASSERIL HOUSE PIRAVOM PO, ERNAKULAM DISTRICT-686664** - **2 BIJU K VARGHESE KADHALIKKATTIL HOUSE, MULAKKULAM NORTH, PIRAVOM 686 664** **BY ADVS. HARIS BEERAN O.A.NURIYA AZHAR ASSEES ANAND B. MENON FATHIMA V.A.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY. GOVERNMENT SECRETARIAT, TRIVANDRUM 695 001** - **2 THE DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS, VAZHUTHACAUD, TRIVANDRUM 695 010** - **3 H.G KURIAKOSE MAR CLEMIS PRESIDENT, MALANKARA SYRIAN CHRISTIAN ASSOCIATION, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM 686 038** - **4 H.G YOHANON MAR DIASCOROSE SECRETARY HOLY EPISCOPAL SYNOD MALANKARA, ORTHODOX SYRIAN CHURCH, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM 686 038** WP(C) Nos.21852 & 22951 of 2021 : 2 : **5 H.H.BASELIOS MARTHOMA MATHEWS III, CATHOLICATE ARAMANA, DEVALOKAM P.O., KOTTAYAM-686038. (IMPLEADED AS ADDL.R5 AS PER ORDER DT 21.12.2021 IN IA.2/2021)** **BY ADVS. SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL S.SREEKUMAR (SR.) ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2021, ALONG WITH WP(C).22951/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) Nos.21852 & 22951 of 2021 : 3 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** ## **WP(C) NO. 22951 OF 2021** ## **PETITIONERS:** - **1 K.U. BABY AGED 71 YEARS S/O. LATE ULAHANNAN, KIZHAKKEKARAYIL HOUSE, PIRAVOM P.O., ERANAKULAM DISTRICT-686664.** - **2 JOBY C. GEORGE, AGED 42 YEARS S/O.GEORGE C.K., CHIRACKAL HOUSE, KAKKAD P.O., PIRAVOM, ERANAKULAM DISTRICT-686664.** **BY ADVS. HARIS BEERAN O.A.NURIYA AZHAR ASSEES ANAND B. MENON FATHIMA V.A.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.** - **2 THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, VAZHUTHACAUD, TRIVANDRUM685010.** - **3 H.G.KURIAKOSE MAR CLEMIS, ARAMANA, PATHANAMTHITTA-689645.** - **4 H.G.YUHANON MAR DIASCOROSE, SECRETARY HOLY EPISCOPAL SYNOD MALANKARA ORTHODOX SYRIAN CHURCH, MAR KURIAKOSE DAYARA, POTHENPURAM P.O., PAMPADY, KOTTAYAM-686502.** - **5 H.H.BASELIOS MARTHOMA MATHEWS III, CATHOLICATE ARAMANA, DEVALOKAM P.O., KOTTAYAM-686038.** WP(C) Nos.21852 & 22951 of 2021 : 4 : **BY ADVS. SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL S.SREEKUMAR (SR.) ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2021, ALONG WITH WP(C).21852/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) Nos.21852 & 22951 of 2021 : 5 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 21[st] day of December, 2021**_ These two writ petitions have been filed challenging the Consecration process of Catholicos of Syrian Orthodox Church, without inviting the Patriarch of Antioch, which process, according to the petitioners, is against the judgment of the Hon’ble Supreme Court in _**K.S. Varghese v. St. Peter's and St. Paul's Syrian Orthodox Church** [2017 (3) KLT 261]._ As the writ petitions are based on the same set of facts and raise same questions of law, they are being heard together and being disposed of by a common judgment. 2. The petitioners in W.P.(C) No.21852/2021 are members of Malankara Church and parishioners of St. Mary’s Syrian Orthodox Church, Piravom (Piravom Valiyapally). The factional fight within the Malankara Church has culminated in WP(C) Nos.21852 & 22951 of 2021 : 6 : the judgment of the Hon’ble Supreme Court in _**K.S. Varghese**_ (supra) wherein the Apex Court held that the Malankara Church should be governed as per the 1934 Constitution. 3. Consecration of Catholicos of Malankara Church is governed by Section 114 of the 1934 Constitution which states that the Catholicos shall be elected by the Association. If such election is approved by the Episcopal Synod, the Synod shall consecrate the Catholicos. If there be a Patriarch recognised by the Malankara Church, the Patriarch shall be invited when the Catholicos is consecrated and if the Patriarch arrives, he shall as the President of the Synod, consecrate the Catholicos with the co-operation of the Synod. The Hon’ble Supreme Court has held in _**K.S. Varghese**_ (supra) that in the absence of any dispute as to the identity who is Patriarch, there is no question of not recognising Patriarch by the Malankara Church. 4. The Malankara Association is scheduled to be convened on 14.10.2021, for the election of the Catholicos. After election, Holy Synod will be convened on the same day WP(C) Nos.21852 & 22951 of 2021 : 7 : to approve the election. The consecration is to be taken place on 15.10.2021. No canonical invitation has been sent to the Patriarch to consecrate the Catholicos. It was for the said reason, the Writ Petition was filed seeking to declare that the consecration of Catholicos without canonically inviting the Patriarch is against the judgment in _**K.S. Varghese**_ (supra) and the directions contained in Exts.P2 and P3 orders. 5. In Ext.P2 order, the Apex Court has held that the State and all parties shall abide by the judgment in _**K.S. Varghese**_ (supra) and cannot solve the matter in any manner different than the judgment in _**K.S. Varghese**_ (supra). In Ext.P3 order, the Apex Court made it clear to all concerned more so, to the Courts that in future, the violation of the judgment and order to be viewed seriously. 6. W.P.(C) No.22951/2021 has been filed by the petitioners, who are also members of Malankara Church and parishioners of St. Mary’s Syrian Orthodox Church, Piravom. The writ petition has been filed after the consecration of the 5[th] respondent as Catholicos without canonically inviting the WP(C) Nos.21852 & 22951 of 2021 : 8 : Patriarch, seeking to command respondents 1 and 2 to restrain the 5[th] respondent from entering and officiating ecclesiastical, spiritual and temporal powers in the Malankara Orthodox Syrian Churches and its properties as the 5[th] respondent is not validly consecrated, inviting the Patriarch. The grounds urged in W.P.(C) No.22951/2021 are more or less similar to those urged in W.P.(C) No.21852/2021. 7. When the writ petitions came up for admission, this Court required the counsel for the petitioners to address the Court on the maintainability of the writ petition in a dispute relating to the election and consecration of Catholicos. The learned counsel for the petitioners pointed out that in Ext.P2 order, the Hon'ble Supreme Court has held that there cannot be any violation of the order of the Apex Court by any one concerned. Even the State Government cannot act contrary to the judgment and the observations made by the Apex Court and has the duty to ensure that the judgment in _**K.S. Varghese**_ (supra) is complied forthwith. The State and all parties are bound by the judgment of the Apex Court in totality WP(C) Nos.21852 & 22951 of 2021 : 9 : and cannot solve the matter in any manner different than the judgment passed by the Apex Court. 8. It was contended that the Hon'ble Apex Court has held that the State Government and all parties shall abide by the judgment and has the duty to ensure that the judgment of the Hon'ble Apex Court is implemented forthwith. Ext.P3 order of the Hon'ble Apex Court also makes it very clear that the judgment is binding on all Courts and under Article 144, all authorities including the courts shall act in aid of the judgment of the Hon'ble Apex Court. Therefore, it can be seen by Exhibit-P2 and P3 that the Hon'ble Apex Court has given specific direction to implement the directions in _**K.S. Varghese**_ (supra). 9. By Exts.P2 and P3 orders of the Hon'ble Apex Court, the State Government had been directed to ensure that the judgment of the Hon'ble Apex Court is implemented forthwith. Therefore, there is a duty cast upon respondents 1 and 2 to see that Exts.P2 and P3 are complied with in letter and spirit. WP(C) Nos.21852 & 22951 of 2021 : 10 : 10. The writ petitions are maintainable under Article 226 because the prayers are sought against the 1[st] respondent-State of Kerala and the 2[nd] respondent-Director General of Police. The prayer sought for is for the enforcement of the judgment in _**K.S. Varghese**_ (supra). It is not correct to contend that the writ petitions will not be maintainable for the enforcement of the directions of the Hon'ble Apex Court judgment mentioned in paragraph 184 only. A close look of paragraph 184 of the Hon'ble Apex Court judgment will show that those are only conclusion of judgment on the basis of the findings. The judgment has to be read as a whole, contended the learned counsel for the petitioners. 11. The learned Additional Advocate General represented respondents 1 and 2. The learned Senior Counsel assisted by the counsel for respondents 3 to 5 opposed the writ petitions and argued that no writ can be issued on the grounds urged by the petitioners and the dispute raised cannot be decided invoking Article 226. WP(C) Nos.21852 & 22951 of 2021 : 11 : 12. Heard the learned counsel for the petitioner, the learned Additional Advocate General representing respondents 1 and 2 and the learned Senior Counsel assisted by the counsel for respondents 3 to 5. 13. The petitioners are challenging the process of Election and consecration of Catholicos of Syrian Orthodox Church, without inviting the Patriarch of Antioch. The argument of the petitioners is that consecration of Catholicos of Malankara Church is governed by Section 114 of the 1934 Constitution, which states that the Catholicos shall be elected by the Association and if such election is approved by the Episcopal Synod, the Synod shall consecrate the Catholicos. If there is a Patriarch recognised by the Malankara Church, the Patriarch shall be invited when the Catholicos is consecrated and if the Patriarch arrives, he shall as the President of the Synod, consecrate the Catholicos with the cooperation of the Synod. 14. It has to be noted that election of Catholicos is by Malankara Association and the consecration is also at the WP(C) Nos.21852 & 22951 of 2021 : 12 : behest of the Association. The Malankara Association is not State or an instrumentality of State. The Issue being agitated in the writ petition is not related to any public duty being discharged by the Malankara Association. That is to say, the issue agitated by the petitioners is purely a dispute between members of a private religious association, not satisfying the tests of “State” or “instrumentality of the State”. Whether a writ can be issued by this Court in such a dispute, in exercise of Article 226 of the Constitution of India ? 15. An election proceeding with regard to a Church is not amenable under Article 226. Such election dispute will have to be resoled through ordinary civil courts, unless there exists any specialised mechanism for resolution of such disputes. With regard to the petitioners' contention that Patriarch has to be invited or that Patriarch has not been invited, this Court is of the view that the issue can be decided only by a Civil Court. 16. The Hon’ble Apex Court elaborately considered the issue of maintainability of writ petition under Article 226 of the WP(C) Nos.21852 & 22951 of 2021 : 13 : Constitution in _**Federal Bank Limited v. Sagar Thomas** (2003) 10 SCC 733]_ . In _**Federal Bank Limited v. Sagar Thomas,** [(2003) 10 SCC 733]_ , the Apex Court explained and distinguished the decision in _**Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others** [(_ 1989) 2 SCC 691]. In that case, the 1[st] respondent who was working as a Branch Manager in the appellant Bank was chargesheeted and ultimately was awarded punishment of dismissal. The 1[st] respondent challenged his dismissal by filing a writ petition before the High Court. A preliminary objection to the maintainability of the writ petition was taken by the appellant Bank saying that it is a private bank and not a State or its agency or instrumentality within the meaning of Article 12 of the Constitution, hence, a writ petition under Article 226 of the Constitution was not maintainable against it. The learned single Judge found that the Federal Bank performs a public duty, and as such it comes under the definition of other authority and the writ petition was WP(C) Nos.21852 & 22951 of 2021 : 14 : maintainable. The appellant preferred a writ appeal. The said writ appeal was dismissed. The question which fell for consideration before the Apex Court was as to whether the appellant Bank is a private body or falls within the definition of the State or local or other authorities under the control of the Government within the meaning of Article 226. Allowing the appeal, the Court held that a private company carrying on banking business as a Scheduled Bank cannot be termed as an institution or a company carrying on any statutory or public duty. Mere regulatory provisions to ensure that commercial activity carried on by private bodies work within a discipline, does not confer any status upon the company. 17. The Church is a private body but not discharging any public duty. The appointment of the Catholicos by the Association is an internal election dispute. In the present case, the petitioners are seeking a prayer to issue Writ of Mandamus in respect of an election process to the Association. It is not at all maintainable and no direction can be given to the Association or to State Authorities invoking WP(C) Nos.21852 & 22951 of 2021 : 15 : extraordinary power conferred on this Court under Article 226 of the Constitution of India. The Association is a private body not discharging public duty and internal disputes between two groups cannot be resolved in this writ petition. 18. The law laid down in _**Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others** [(_ 1989) 2 SCC 691] is as hereunder:- “12. The essence of the attack on the maintainability of the writ petition under Article may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain and others (1976) 2 SCC 1006 and (b) Deepak Kumar Biswas Vs. Director of Public Institutions (1987) 2 SCC 252. In the first of the two cases, the respondent institution was a Degree College managed by a registered co-operative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Co-operative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was WP(C) Nos.21852 & 22951 of 2021 : 16 : observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a nonstatutory body.” 19. As far as the cases in hand, the petitioner is seeking a writ of Mandamus to direct the State to see that there is no violation of the judgment of the Apex Court and to declare that the consecration of Catholicos is against the judgment of the Apex Court. As stated above, the Association is only a group of individuals. It does not assume the confirmity of the definition the 'State' within the meaning of Article 12 of the Constitution of India. 20. The conduct of election within an Association to choose their Catholicos is an internal matter within the Association which does not fall within the ambit of public duty to attract the jurisdiction under Article 226 of the Constitution of India. 21. By Exts.P2 order, the Hon'ble Apex Court has held that the State and all parties shall abide by the judgment WP(C) Nos.21852 & 22951 of 2021 : 17 : passed by the Apex Court in totality and cannot solve the matter in any manner different than the judgment in _**K.S. Varghese**_ (supra) and that no parallel system can be created. By Ext.P3 order, it is made clear that the Courts should in future, view violation of the judgment in _**K.S. Varghese**_ (supra) seriously and that similar matters which are pending should be decided following the judgment and order. There can be no further litigation as the decision in a representative suit is binding. 22. What is intended by the Apex Court in Exts.P2 and P3 orders is that in respect of the matters decided in the judgment in _**K.S. Varghese**_ (supra), parties and State cannot solve the matter in any manner different than the judgment and any violation of judgment and order will be viewed seriously. Exts.P2 and P3 orders do not lay down a proposition that all civil disputes between the parties arising in future, can be resolved through writ proceedings under Article 226 of the Constitution of India. WP(C) Nos.21852 & 22951 of 2021 : 18 : With the above discussions, this Court is of the view that the writ petitions are not maintainable, which in effect seek to adjudicate upon an internal private dispute within a private religious Association. The writ petitions therefore fail. Accordingly, the writ petitions are dismissed. Sd/- **N. NAGARESH, JUDGE** aks/29.11.2021 WP(C) Nos.21852 & 22951 of 2021 : 19 : ## **APPENDIX OF WP(C) 21852/2021** ## **PETITIONER's EXHIBITS** **Exhibit P1 TRUE COPY OF NEWS ITEM THAT APPEARED IN THE HINDU DAILY DATED 17-09-2021 Exhibit P2 TRUE COPY OF ORDER DATED 2-07-2019 IN SLP NO. 12461/2019 PASSED BY HON'BLE SUPREME COURT OF INDIA Exhibit P3 TRUE COPY OF ORDER DATED 6-09-2019 IN CIVIL APPEAL NOS 7115-7116/2019 PASSED BY HON'BLE SUPREME COURT OF INDIA Exhibit P4 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENTS 1 AND 2 DATED 9-10-2021 Exhibit P5 TRUE COPY OF THE KALPANA DATED 02/10/2021 ISSUED BY THE 3RD RESPONDENT Exhibit P6 TRUE COPY OF THE NOTICE DATED 02/10/2021 ISSUED BY THE 3RD RESPONDENT Exhibit P7 TRUE COPY OF THE NEWS ITEM THAT APPEARED IN THE NEWSPAPER THE HINDU DATED 13/10/2021 Exhibit P8 TRUE COPY OF THE NEWS ITEM THAT APPEARED IN THE NEWS PAPER THE HINDU DATED 14/10/2021 Exhibit P9 COPY OF E-MAIL DT 27.10.2021 SENT BY THE 2ND PETITIONER TO REV.FR.JOSHI, SECRETARY TO HH PATRIARCH OF ANTIOCH, MALANKARA AFFAIRS Exhibit P10 COPY OF E-MAIL TO 2ND PETITIONER DT 27.10.2021 SENT BY THE 2ND PETITIONER TO REV.FR.JOSHI, SECRETARY TO HH PATRIARCH OF ANTIOCH, MALANKARA AFFAIRS** WP(C) Nos.21852 & 22951 of 2021 : 20 : ## **APPENDIX OF WP(C) 22951/2021** ## **PETITIONER's EXHIBITS** **Exhibit P1 TRUE COPY OF THE 1934 CONSTITUTION FROM THE OFFICIAL WEBSITE OF THE MALANKARA ORTHODOX SYRIAN CHURCH.** **Exhibit P1(a)** **TRUE COPY OF THE RELEVANT PAGES FROM THE JUDGMENT PASSED BY THE HON'BLE SUPREME COURT IN K.S.VARGHESE VS. ST.PETER'S AND ST.PAUL'S SYRIAN ORTHODOX CHURCH REPORTED IN 2017 (3) KLT 261 (SUPREME COURT).** **Exhibit P2 TRUE COPY OF ORDER DATED 2.7.2019 IN SLP NO.12461/2019 PASSED BY HON'BLE SUPREME COURT OF INDIA.** - **Exhibit P3 TRUE COPY OF ORDER DATED 6.9.2019 IN CIVIL APPEAL NOS.7115-7116/2019 PASSED BY HON'BLE SUPREME COURT OF INDIA.** - **Exhibit P4 TRUE COPY OF JUDGMENT DATED 18.5.2020 IN WP(C) 33316 OF 2019 PASSED BY THIS HON'BLE COURT.** - **Exhibit P5 TRUE COPY OF ORDER DATED 26.9.2019 IN WP(C) NO.10727 OF 2019 PASSED BY THIS HON'BLE COURT.** - **Exhibit P6 TRUE COPY OF ORDER DATED 10.10.2019 IN I.A.6 OF 2019 IN WP(C) NO.10727 OF 2019 PASSED BY THIS HON'BLE COURT.** - **Exhibit P7 TRUE COPY OF REPRESENTATION SUBMITTED BY ONE JOHN K.A. & ANOTHER BEFORE THE RESPONDENTS 1 & 2 BY E-MAIL DATED 9.10.2021.** - **Exhibit P8 TRUE COPY OF NEWS ITEMS APPEARED IN THE HINDU DAILY DATED 16.10.2021 RELATING TO THE CONSECRATION OF THE CATHOLICOS.** - **Exhibit P9 TRUE COPY OF REPRESENTATION SENT BY THE PETITIONERS TO THE 1ST AND 2ND RESPONDENTS DATED 18.10.2021.**