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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939 WP(C).No. 25202 of 2017 (A) ---------------------------PETITIONER(S): ------------------1. ST. THOMAS CHURCH, NECHOOR NECHOOR, MANEED VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 664, REP BY ITS VICAR, REV. FR. JOSEPH MALAYIL. 2. ALIAS M.K, S/O. KURIAN,MANGALATH, KARAKKATTIL, KAROOR, PAZHOOR P.O, PIN - 686 664. 3. GEORGE V.A, S/O. ABRAHAM MATHAI, VELAMKUZHIYIL HOUSE, NECHOOR P.O, PIN - 686 664. BY ADVS.SRI.K.PAUL KURIAKOSE SRI.T.A.RAFEEK (CHERTHALA) RESPONDENT(S): -------------------1. THE DISTRICT POLICE CHIEF, ERNAKULAM RURAL, ALUVA, PIN - 683 101. 2. THE CIRCLE INSPECTOR OF POLICE, PIRAVOM, PIN - 686 664. 3. THE SUB INSPECTOR OF POLICE, PIRAVOM POLICE STATION, PIN - 686 664. 4. THE DISTRICT COLLECTOR, ERNAKULAM PIN - 682 030. 5. THE REVENUE DIVISIONAL OFFICER & SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA, PIN - 686 661.

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6. THE TAHSILDAR, MUVATTUPUZHA, PIN - 686 661. 7. FR. PAULOSE ERAMANGALATH, ERAMANGALATH HOUSE, VETTICKAL, MULANTHURUTHY, PIN - 682 314. 8. PETER C. JOHN, S/O. JOHN, CHANDRAVELIL PUTHENPURAYIL, NECHOOR P.O, PIN - 686 664. 9. N.V KURIAKOSE @ VETTIKKUZHI JOY, S/O.PATHROSE, NADUVILEDATHU PUTHENPURAYIL, EZHAKKARANAD, ERNAKULAM DISTRICT, PIN - 682 308. ADDL. R10 & R11 TO R16 IMPLEADED: 10. JICKUMON T. JACOB, S/O JACOB, AGED 65 YEARS, THARAYIL HOUSE, NECHOOR P.O., MANEED VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT - 686 664. (R10 & R11 IMPLEADED AS PER ORDER DATED 24.08.2017 IN I.A. NO. 13075/2017) 11. P.I. ALIAS, PANANGADENGAL HOUSE, NECHOOR P.O., PIRAVOM - 686 664. 12. K.P.JOY, KURUMBALAKKAT HOUSE, NECHOOR P.O., PIRAVOM - 686 664. 13. V.P. KURIAKOSE, VARUKUNNEL HOUSE, NECHOOR P.O., PIRAVOM - 686 664. 14. JOSHY PAUL, CHANDRAVELIYIL PUTHENPURAYIL HOUSE, NECHOOR P.O., PIRAVOM - 686 664. 15. MOLLY THOMAS, KADAMPUZHA HOUSE, NECHOOR P.O., PIRAVOM - 686 664. 16. ELSEY REJI, MOOLAMATTATHIL HOUSE, NECHOOR P.O., PIRAVOM - 686 664. (ADDL. R11 TO R16 IMPLEADED AS PER ORDER DATED 24.08.2017 IN I.A. 13641/2017)

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R9 BY ADV. SRI.N.SUKUMARAN (SR.) R9 BY ADV. SRI.S.SHYAM R10 BY ADV. SRI.T.M.RAMAN KARTHA R8 BY ADV. SRI.K.RAMAKUMAR (SR.) R8 BY ADV. SRI.T.RAMPRASAD UNNI R8 BY ADV. SRI.S.M.PRASANTH R8 BY ADV. SMT.ASHA BABU R8 BY ADV. SMT.R.S.ASWINI SANKAR RADDL. BY ADV. SRI.T.KRISHNANUNNI (SR.) RADDL. BY ADV. SRI.VINOD RAVINDRANATH RADDL.11-R16 BY ADV. SRI.JEEVAN MATHEW MANAYANI RADDL.11-R16,R7 BY ADV. SRI.JOHNSON MANAYANI R7 BY ADV. SRI.BENHUR JOSEPH MANAYANI R1-R5 BY ADV. SRI P.P. THAJUDEEN, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.08.2017, ALONG WITH W.P.(C) NO. 28304/2017, THE COURT ON 13.10.2017 DELIVERED THE FOLLOWING:

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APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------EXHIBIT P1 PHOTOSTAT TRUE COPY OF ORDER DATED 24.10.2009 IN I.A NO.1956 OF 2009 IN O.S. NO.203 OF 2009 OF THE SUB COURT, MUVATTUPUZHA. EXHIBIT P2 PHOTOSTAT TRUE COPY OF ORDER DATED 20.7.2016 IN I.A NO.1210 OF 2016 IN O.S NO. 13 OF 2010, SPECIAL COURT, ERNAKULAM. EXHIBIT P3 PHOTOSTAT TRUE COPY OF ORDER DATED 05.07.2017 IN CIVIL APPEAL NO. 2036 OF 2010 OF THE HON'BLE SUPREME COURT OF INDIA. EXHIBIT P4 PHOTOSTAT TRUE COPY OF PETITIONERS' REQUEST LETTER DATED 11.07.2017 TO THE 1ST RESPONDENT, WITH ENGLISH TRANSLATION. EXHIBIT P5 PHOTOSTAT TRUE COPY OF RECEIPT DATED 11.07.2017 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT ACKNOWLEDGING RECEIPT OF EXHIBIT P-4, WITH ENGLISH TRANSLATION. EXHIBIT P6 PHOTOSTAT TRUE COPY OF RECEIPT DATED 11.07.2017 ISSUED BY THE OFFICE OF THE DY.SUPERINTENDENT OF POLICE, MUVATTUPUZHA WITH ENGLISH TRANSLATION. EXHIBIT P7 PHOTOSTAT TRUE COPY OF PETITIONERS' REQUEST DATED 11.07.2017 TO THE 1ST RESPONDENT, WITH ENGLISH TRANSLATION. EXHIBIT P8 PHOTOSTAT TRUE COPY OF RECEIPT ISSUED BY THE OFFICE OF THE 1ST RESPONDENT ACKNOWLEDGING RECEIPT OF EXHIBIT P-7, WITHE ENGLISH TRANSLATION. EXHIBIT P9 PHOTOSTAT TRUE COPY OF PETITIONERS' REQUEST DATED 11.07.2017 ON WHICH OFFICE OF THE 5TH RESPONDENT HAD ENDORSED ACKNOWLEDGEMENT WITH ENGLISH TRANSLATION. EXHIBIT P10 PHOTOSTAT TRUE COPY OF NEWS PUBLISHED BY MALAYALA MANORAMA DAILY DATED 24.07.2017 REGARDING THE INCIDENTS WHICH TOOK PLACE IN THE 1ST PETITIONER-CHURCH ON 23.07.2017 WITH ENGLISH TRANSLATION. EXHIBIT P11: PHOTOSTAT TRUE COPY OF FIRST INFORMATION REPORT BEARING NO.0895 OF 2017 OF THE PIRAVOM POLICE STATION. EXHIBIT P12: TWO PHOTOGRAPHS SHOWING THE PRESENCE OF POLICE IN THE CHURCH AND THE ARRANGEMENTS MADE TO PREVENT US FROM CONDUCTING THE HOLY MASS ON 06.082017.

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EXHIBIT P13: PHOTOSTAT TRUE COPY OF NEWS ITEM WHICH APPEARED IN MANGALAM DAILY ON 07.08.2017 REGARDING SUCH DENIAL OF ACCESS TO THE CHURCH. EXHIBIT P14: PHOTOSTAT TRUE COPY OF NEWS ITEM WHICH APPEARED IN MALAYALA MANORAMA DAILY DATED 07.08.2017. EXHIBIT P11(a): ENGLISH TRANSLATION OF EXHIBIT P11. RESPONDENT(S)' EXHIBITS: -------------------------------EXHIBIT R9(a): TRUE COPY OF THE JUDGMENT DATED 08.09.1995 IN O.S. NO. 32 OF 1977 ON THE FILES OF THE 1ST ADDL. DISTRICT COURT, ERNAKULAM. EXT.R9(b): TRUE COPY OF THE JUDGMENT DATED 14.10.2009 IN A.S. NO. 844 OF 1998 ON THE FILES OF THE HONOURABLE HIGH COURT OF KERALA. /True Copy/ P.A to Judge. rv

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Antony Dominic & Dama Seshadri Naidu, JJ. ------------------------------------------W.P. (C) Nos.25202 & 28304 of 2017 -------------------------------------------Dated this the 13th day of October, 2017 Dama Seshadri Naidu, J

JUDGMENT

Introduction: Faith can move mountains: Mathew 17:20. 2. It can move courts, too. Here, the faithful moved the courts so often that the very faith seems to have receded to the background —almost. 3. Factional fighting in a church led to litigation in a District Court, and it reached all the way up to the Apex Court. The Court held in the Civil Appeal that its findings in another Civil Appeal, arising out of a representative suit, would bind. So, it disposed of the appeal “in terms of” the representative legal proceedings. 4. But, now, both the factions complain that the other faction has been indulging in violently disruptive activities. The successful faction, claiming that the police have not extended adequate

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protection, approached this Court. The other faction maintains that the trial court refused to grant injunction to the successful faction and so did the Supreme Court. Questions: 5. Now we face these questions: (1) Can this Court go beyond the Supreme Court’s judgement and re-appreciate the dispute on the premise that the successful party had no injunctive relief in express terms? (2) In the alternative, by appreciating the relative merits of the rival claims, can this Court let the factious groups indulge in another round of litigation, when chaotic conditions prevail at the church leading to breach of peace—and even possible loss of life? The Controversy: 6. The first petitioner, St Thomas Church, is a parish church, owing its allegiance to Malankara Orthodox Syrian Church (“the Malankara Church”), coming under Kandanad West Diocese. The second petitioner is an officiating trustee, and the third petitioner

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the church’s secretary. All the three petitioners filed this writ petition seeking police protection against what they call the violent activities of respondents 7 to 16. 7.

Like many other Malankara Churches, the petitioner

church, too, has a bitter factional dispute that led to multiple rounds of litigation, up to the Supreme Court. And yet the dispute refuses to die down; as a result, the followers’ faith suffers. Though the petitioner church has its duly elected office bearers, the seventh respondent, as pleaded by the petitioners, holds himself out as a priest of patriarch faction—a dissident group. The eighth and ninth respondents, heading the dissident group, insist on running a parallel administration in the petitioner church. First Litigation: 8. As early as in 1976, the factious fights led to litigation: the then Vicar of the church with others filed O.S No. 83 of 1976 before the Munsiff Court, seeking declaration, mandatory injunction,

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prohibitory injunction, and other ancillary reliefs. On transfer, renumbered as O.S No. 32 of 1977, the suit was decreed in part: The First Additional District Court, Ernakulam, declared that the petitioner

church

must

be

administered

under

the

1934

Constitution. The Court also declared that “Catholicose-cumMalankara Metropolitan is the head of the church, subject to a nominal spiritual supervision by the Patriarch of Antioch.” The Court, however, did not grant the other two reliefs: the prohibitory and mandatory injunctions.

Appeal & Cross-Objections: 9. Aggrieved, the petitioners filed A.S No. 844 of 1998. The defendants, the rival faction, filed cross objections contending that the suit was not maintainable absent leave under section 92 of CPC. This Court, in course of time, dismissed the appeal, but allowed the cross objections.

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Parallel Litigation: 10. Before tracing out the further litigious course of the ‘first litigation’, we may refer to parallel litigation involving a group of 1064 churches, including the petitioner church. The legal proceedings, initiated through O.S No. 4 of 1979 and other cases, reached the Supreme Court and resulted in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma.1 A three-Judge Bench of the Supreme Court has held that a church cannot be episcopal in spiritual matters and congregational in temporal matters. The Court, however, held that division of power between Patriarch of Antioch and Catholics—the former having only spiritual power and the latter temporal power—would not affect the church’s episcopal character. The Court has also held that the church administration must be governed by the Malankara Church Constitution of 1934.

1

AIR 1995 SC 2001

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11. The Supreme Court also directed “both the parties as well as the Rule Committee (mentioned in Clause (120) of the Constitution) to place before this Court within three months from today draft amendments to the Constitution. After perusing the same, we shall give appropriate directions. Thereafter, elections to the Malankara Association shall be held on the basis of the amended Constitution. The Association so elected shall be the Association for all purposes within the meaning of and for the purposes of the 1934 Constitution (as amended from time to time).” The newly elected managing committee met on 10th August, 2002 and divided the erstwhile Kandanad Diocese into the Kandanad West diocese and the Kandanad East diocese. The Continuation of the First Litigation: 12.

Against the dismissal of A.S. No. 844 of 1998, the

petitioner faction filed a Special Leave Petition: C.A No. 2036 of 2010. The Supreme Court disposed it of on 5th July, 2017 holding

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that the parties to the proceedings should be governed by its judgement in C.A. No. 3674 of 2015—K. S. Varghese v. St. Peter’s and Paul’s Syrian Orth.2 To be precise, the Supreme Court held: “In view of the judgement passed in K. S. Varghese v. St. Peter’s & Paul’s Syrian Orth. (CA No. 3674 of 2015) on 3 July, 2017 by this court, which is in representative suit it is applicable the parties in present case. The instant appeal stands disposed of in terms of the above-mentioned judgement.” K. S. Varghese’s Case: 13. Involving the same factions of the same denomination as we have here, ten civil appeals went before the Supreme Court, which rendered K.S. Varghese. This exhaustive judgment runs into many pages; perhaps the Apex Court hoped that threadbare discussion and emphatic enunciation of law and strict directions would quieten the raging factious litigation. We need not burden this judgment with the facts of K. S. Varghese; suffice it to say that the holding of that decision binds this case on all fours. 2

2017 (3) KLT 261 (SC)

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The Current Controversy: 14.

Sri Sreekumar, the learned Senior Counsel for the

petitioners, has submitted, to begin with, that despite the Supreme Court’s declaring in K. S. Varghese the rights and obligations of the rival factions, the contesting respondents have become lawless: They are obstructing the church’s both spiritual and temporal activities. He has, then, elaborated on how the contesting respondents have been threatening the followers, as well as the office bearers, of the church. 15.

On 23.07.2017, when the petitioners and other

parishioners were conducting Holy Mass, contends the learned Senior Counsel, the Patriach faction under the leadership of respondents 7 to 9 attempted to obstruct it: They attacked the petitioners and their supporters. The police failing to contain the situation, the Tahsildar, Muvattupuzha, intervened and closed the church, as directed by the Revenue Divisional Officer (RDO).

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16. The learned Senior Counsel has further submitted that, armed with the Ext.P3 Supreme Court judgment, the petitioners approached the District Police Chief for police protection, besides requesting the other police officials at the lower level, too. Even the newspapers have widely reported, submits the learned Senior Counsel, about the disturbing events and the law and order problem prevailing at the church. Though the police registered a crime in FIR No.895 of 2017 for offences under Sections 143, 145, 147, 149, and 332 of IPC, it has not lessened, much less abated, the violence. 17. The learned Senior Counsel has eventually submitted that the contesting respondents and those professing loyalty to them have been repeatedly threatening the petitioners and other followers with dire consequences. And, unless the police intervene, the petitioner church cannot function and provide spiritual succour to its numerous followers.

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9th Respondent’s: 18.

Sri Sukumuaran, the learned Senior Counsel for the

contesting respondents, contends that the 8th and 9th respondents are the church’s duly elected trustees. They are said to be managing the church’s assets, besides administering the very church. He has also contended that, based on the earlier directive of a civil court, both the factions have been rendering services in the church at separate hours of the day: Respondents’ Jacobite faction: from 6 am., to 9.20 am.; Petitioner's Orthodox faction: from 9.20 am., to 12 noon. 19. The learned Senior Counsel referred to the interim arrangements made by the trial court through Exhibits P1 and P2 orders. He has also strenuously contended that the trial court granted neither mandatory injunction nor prohibitory injunction to the petitioners. And at no stage, up to the Supreme Court, could the petitioner get those reliefs. In this regard, the learned Senior Counsel drew our attention to Rule 15, Order 45 of CPC and Section 35 of

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the Specific Relief Act. According to him, the petitioners were permitted only to render services. 20. The learned Senior Counsel has also contended that the police were forced to interfere only because the petitioners’ faction had violated the arrangement and broke open the church’s locked doors. The petitioners’ claim for police protection, submitted the Senior Counsel, is unwarranted and aimed at defeating the respondents’ right to administer the church. 8th Respondent’s: 21. Sri Ram Kumar, the learned Senior Counsel, has drawn our attention to the reliefs the petitioners sought in the writ petition. According to him, the prayer is defective. To elaborate, Sri Ram Kumar contends that this Court cannot convert itself into an Execution Court to enforce the Supreme Court’s directives, for which the petitioners should approach the Apex Court itself.

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22. The learned Senior Counsel has also submitted that the petitioners are wrong in saying that the parishioners have no say in the church’s affairs. According to him, the 1934 Constitution only speaks of management and nothing beyond. He has also contended that about 90% of the followers are with the parishioners. 7th & 10th to 15th Respondents: 23.

Mr. Johnson, the learned counsel for the remaining

respondents, has reiterated that for the last 40 years the two factions have been offering their services and prayers at separate times. That arrangement was as per the interim directions of the Munsiff court and the First Additional District Court, Ernakulam, which is the special court for trying church matters. He has also referred to O.S. No. 203 of 2009 before the Sub Court, Muvattupuzha: The Sub Court ordered status quo, which means both factions should have equal access to church.

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24. Referring to the case of Varghese, the learned counsel has contended that the Supreme Court has held that a scheme under section 92 CPC need not be framed, and nothing more did the Court decide. In the end, the learned counsel has stressed that the arrangement prevailing now should be allowed to continue. Official Respondents’: 25. The statement filed by the Revenue Divisional Officer assumes importance, as it graphically sets out the chaotic—even violent—conditions prevailing at the church. We reckon that the officials are neutral and their assessment is objective. So, we will refer to their assertions in detail when we discuss the issue. Succinctly stated, the officials apprehend that unless the rival factions are reigned in, there is an imminent threat to law and order. And, unchecked, the situation may lead to even loss of life. 26. Heard Sri Sreekumar, the learned Senior Counsel for the petitioners, Sri Sukumuaran, the learned Senior Counsel for the

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contesting respondents, Sri Ram Kumar, the learned Senior Counsel for the 8th respondent, Sri Johnson, the learned counsel for the remaining respondents, and the learned Government Pleader for the respondents 1 to 6, besides perusing the record. Discussion: 27. At the outset, we clarify that the proceedings before us concern the police protection. Then, the only adjudicatory criterion we must consider is whether the situation, as depicted by the petitioners, has the potential of breaching the peace and leading to a severe law and order problem. Here, the rival claims for legitimacy hardly matter. But we hasten to add that because of the sweeping judgment of the Supreme Court, this Court is hardly a forum either to re-agitate or re-appreciate the disputes. 28. So we confine ourselves to the possible law and order problem as complained by the petitioner’s and as apprehended by the officials. The nuanced contentions whether the petitioners have

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injunction in their favour or other hair-splitting technicalities or niceties do not constrain us, for the public safety, religious tranquility, and adherence to rule of law are paramount. The Law and Order Problem: 29.

The officials assert that the disputes between the two

factions have often resulted in “aggressions during the observation of memorial prayers, funeral ceremony, and such other functions related to the church.” The police and the district administration have, time and again, intervened to maintain peace and tranquility in the church area. Even the Deputy Superintendent of Police, Muvattupuzha, through his letter dated 17.07.2017, reported that “a tense situation pertaining to law and order exists.” 30.

In the wake of the Supreme Court’s judgement, the

district administration has sent a proposal to the Government “to constitute an officer or authority at the Government level to set up

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a standard approach to ensure and maintain law and order in connection with the churches throughout the State. . . .” 31. As to the specific instances, the officials plead that on 23.07.2017, the Orthodox faction violated the existing time schedule fixed by the civil court. And it has led to the other faction’s assembling unlawfully and trying to forcefully break open the church doors, which were locked form inside. On 30.07.2017 (Sunday), the Executive Magistrate and the police were present at the church premises from 6.00 am onwards. When church gates opened, both factions resorted to show of strength. On 06.08.2017 (Sunday), the district administration deployed heavy police force; similar was the situation on 13.08.2017, another Sunday. 32. The officials did admit that they closed the church, but it was, according to them, temporary and was aimed at preventing imminent breach of peace. The Supreme Court’s judgment, maintain the officials, clarified that the church belongs to the

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believers and all parishioners may enter church. Yet, it is impossible for the police and the district administration to differentiate and segregate the parishioners of the rival factions. The officials have also set out the steps they have taken so far and the suggestions they made to the Government to restore peace in religious places. 33. We may conclude our reference to the official pleadings by stressing their grave apprehension: There exists a tense law and order situation at the church premises, and, unchecked, it may cause “threat even to the life of the parishioners.” 34. From the above official assertions, we have no manner of doubt in our minds that the situation is grave and any laxity by the police, the district administration—or even this Court—may spell doom to law and order. Interfere we must, lest civic peace should be in peril.

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Whose Church is it Anyway? 35. The Findings of and the Directions in K. S. Varghese: (i) Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail. (ii) The decree in the 1995 judgment is completely in tune with the judgment. There is no conflict between the judgment and the decree. (iii) The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to Section 11 Code of Civil Procedure. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided. (iv) As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the socalled exercise of right Under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch. (v) The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara

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Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution. (vi) Full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests) etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan etc. (vii) Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church. Once a trust, is always a trust. (viii) When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the Parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy. (ix) The spiritual power of Patriarch has been set up by the Appellants clearly in order to violate the mandate of the 1995

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judgment of this Court which is binding on the Patriarch, Catholicos and all concerned. (x) As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards. (xi) This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such power, he could not have exercised the same unilaterally which we have explained in this judgment. (xii) It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates etc. in contravention of the 1934 Constitution. (xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution. (xiv) Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed Under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the

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1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned. (xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests) etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church. (xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch. (xvii) The Church and the Cemetery cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in

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which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties. (xviii) The faith of Church is unnecessarily sought to be divided vis-à-vis the office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised. (xix) The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court. (xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by

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majority or otherwise can take away the management or the property as that would virtually [be] tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even frame bye-laws in violation of the provisions of the 1934 Constitution. (xxi) The Udampadies of 1890 and 1913 are with respect: to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per Section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution. (xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered. (xxiii) In otherwise Episcopal church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in Section 22 etc.

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(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution. (xxv) It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit Under Order 1 Rule 8 Code of Civil Procedure. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave. (xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme Under Section 92 of the Code of Civil Procedure. (xxvii) The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration. (xxviii) Both the factions, for the sake of the sacred religion they profess and to preempt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted. (italics supplied)

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36.

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As seen from the above summation, especially the

italicized parts, we find no room for any ambiguity about the roles the warring factions could play in the church’s affairs. Yet there are controversies, simmering dissent, and breach of peace—the faith taking a beating. 37. It pays to repeat that the Supreme Court has declared that the 1934 Constitution governs the affairs of the Parish Churches. It binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit also bind the Parish Churches/Parishioners. The Patriarch, the Court declared, cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests) etc. He cannot, therefore, create parallel administration. 38. As the respondent faction has harped on the theme of majority, it is further apt to remember the Apex Court’s assertion: The Parish Assembly of the Church by majority or otherwise cannot

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move church out of the Malankara Church. Once a trust, is always a trust. When the Church has been created with an objective, it is not open for the beneficiaries or believers, even by a majority, to usurp its property or management. The Court has also held that once there is Malankara Church, it must remain as such. No group or denomination by majority or otherwise can take away the management or the property as that would virtually [be] tantamount to illegal interference in the management and usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. 39. Emphatic is the warning that the Parish Churches cannot even frame bye-laws in violation of the 1934 Constitution. Further, the Apex Court has disapproved the religious services by both the factions on the plea that there are dissensions between the two factions and there is a remote possibility of reconciliation. Such an arrangement, the Court cautioned, amount to patronizing parallel

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systems of administration. Therefore, the police’s assertion that the earlier arrangement of both the groups rendering services at different times as directed, then, by the civil court fails to impress us. The Supreme Court’s judgment has put paid to all earlier interim arrangements. It is K. S. Varghese that remains, that matters, and that binds. 40. Indeed, the road of the faithful is not a blind alley. Both the factions, “for the sake of the sacred religion they profess and to preempt

further

bickering

and

unpleasantness

precipitating

avoidable institutional degeneration,” the Apex Court observes, “ought to resolve their differences, if any, on a common platform, if necessary, by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.”

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W. P. (C) No.28304 of 2017: 41. Both the petitioners complain that the petitioners in the other writ petition—W.P. (C) No.28304 of 2017—are not permitting them to discharge their functions as Trustees of the St. Thomas Church, Nechoor. Those obstructers are said to have been violating the Ext P6 passed by the Sub-Court, Muvattupuzha, in I.A. No. 1956/2009 in O.S. No. 203/2009. 42. The reasons given in the other writ petition govern this writ petition, too. And, so, the issues raised here also stand answered and the writ petition stand dismissed. Conclusion: 43. As we have already observed the scope of this writ petition is limited, and we have shunned adjudication of any controversy beyond what has been enunciated by the Supreme Court in K. S. Varghese. Aggrieved parties, who have tried to nuance the Supreme Court’s judgement, may well approach it for whatever relief they

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reckon is possible. It is not in our province to put our own into pretty to spin on the judgment and facilitate endless litigation and possible bloodshed. 44.

We, therefore, allow W.P.(C) No. 25202 of 2017: the

respondents 1 to 3 will provide adequate, effective police protection to the petitioners and other believers rendering their services and prayers

in

church,

its

chapels,

its

symmetry,

and

other

establishments. 45. Before parting, we can only exhort: Get rid of all bitterness, rage and anger, brawling and slander, along with every form of malice. Be kind and compassionate to one another, forgiving each other, just as in Christ God forgave you: Ephesians 4:31-32 No order on costs. Antony Dominic, Judge.

Dama Seshadri Naidu, Judge. rv