Final Judgment on Police Protection Case by Supreme Court Of India
- 2007
MORAN M.
BASELIOS MARTHOMA MATHEWS II & ORS ....... APPELLANT (S)
: VERSUS
:
STATE OF
KERALA AND ORS ....... RESPONDENT (S)
CIVIL
APPEAL NOS. 5460-5466 OF 2004
J U D G E M E N T
S.B.
Sinha, J
Dispute between the parties centers round the
management of a large number of Churches known as ?Syrian Churches?. The
present controversy arises in regard to the interpretation of a decision of
this Court in Most. Rev P.M.A Metropolitan & Ors vs. Moran Mar Thoma Mathew
& Ors; [AIR 1995 SC 2001].A writ petition was filed by the appellants herein
before the Kerala High Court, praying inter alia, for the following reliefs;
a] In the above facts and circumstances of the
case this Honorable Court may kindly be pleased to ,issue a writ of
mandamus or any other appropriate writ, order or directions commanding
respondents 1 to 4 and their subordinates to give effective and adequate
police protection to the First Petitioner to exercise his rights, duties
and privileges as the Catholicos cum Malankara Metropolitan of the
Malankara Church with respect to the Parishes mentioned in Exhibit P4
and institutions of the Malankara Church without any threat or
obstructions from Respondents 5 to 13 or their agents or servants in any
manner,
b] issue a writ of mandamus or any other appropriate writ, order or
directions commanding respondents 1 to 4 and their subordinates to give
effective and adequate police protection to the Petitioners to exercise
their rights, duties and privileges as Metropolitans of the Malankara
Orthodox Church under the First Petitioner without any threat or
obstruction from Respondents 5 to 13 or their agents or servants in any
manner,
c] issue a writ of mandamus or any other appropriate writ, order or
directions commanding respondents 1 to 4 and their subordinates to give
effective and adequate police protection to other Bishops similarly
placed as well as to the faithful members of the Malankara Church for
the purpose of participating in the conduct of religious services in the
said Parish Churches of the Malankara Church by petitioners without any
threat obstruction from Respondents 5 to 13 or their agents or servants
in any manner,
d] issue a writ of mandamus or any other appropriate writ, order or
directions commanding respondents 1 to 4 to take steps to see that
respondents 5 to 13 do not enter into any of the churches of the
Malankara Orthodox Syrian Church mentioned in Exhibit P4 and
Institutions of the Malankara Church in any capacity as Catholicos,
Bishop, Priest or in any other manner,
e] Issue appropriate directions to Respondents
1 to 4 to restrain respondents 5 to 13 from in any way obstructing the
Petitioners from exercising the powers in accordance with the provisions
of 1934, Constitution of the Malankara Church with respect to the Parish
Churches of the Malankara Church mentioned in Exhibit P4 and
institutions of the Church,
f] Direct respondents 5 to 13 to pay the cost
of this petition to the petitioner.?
One of the contentions which has been raised
before the High Court was the maintainability of the writ petition on the
premise that it could not have gone into the disputed questions of fact and,
particularly, the application of the said judgment in relation to Parish
churches. Appellants, however, raised a contention that the writ petition
was maintainable as the State and its officers having regard to the
provisions in Article 144 of the Constitution of India are duty bound to
give effect to the decision of this court.
The High Court in view of the rival contention of
the parties formulated two questions for its consideration;
1. Are the contesting respondents bound by the
judgement of their lordships of the Supreme Court in Most Rev. P.M.A
Metropolitan v Moran Mar Thoma [A I R 1995 S C 2001] ?
2. Is a case for the issue of Writ of Mandamus
as prayed for by the Petitioners made out??
Upon noticing the contentions raised on behalf of
the parties, including the one that the appellants herein had raised claims
over the properties of the aforesaid churches; in relation whereto there
exists serious dispute and about 200 civil suits are pending in different
courts in the State of Kerala.
The High Court, however, went into the merit of the matter and opined that
so far as the rights of Parish Churches are concerned, there was no
declaration as against them, having not been impleaded in the proceedings
before the Supreme Court. Having opined so, the High Court held:
i) The rights of the Parish Churches were not determined by the Supreme
Court in the 1995 decision. Thus, it cannot be said that the contesting
respondents have no right to manage their properties or that the 1st
petitioner has any right over the Churches which were not parties in the
cases;
(ii) All the Churches listed in Exh. P-4 having not been
impleaded as parties, no order affecting the rights of those who are not
before the court can be passed;
(iii) The Churches had the right to form a separate Association. They
were also entitled to leave the Malankara Association under Arts. 19, 25
and 26. It has not been shown that they had acted illegally in doing so;
(iv) Police help cannot be ordered for the
mere asking. It involves expense for the State. It is not a substitute
for proceedings before an appropriate authority or court. It can be
normally granted only when there is clear evidence of an existing danger
to person or property. In matters involving religious institutions, it
would be normally inappropriate to order the grant police protection
unless a clear case for allowing the entry of the police is made out;
(v) Keeping in view of the peculiar facts and
circumstances as noticed above, no ground for the issue of a writ of
mandamus as prayed for by the petitioners is made out .?
Before, we embark upon the rival contentions
raised by the learned counsel appearing on behalf of the parties before us,
we may notice that Appellant No 1 is said to have resigned from the post of
Catholicos and Malankara Metropolitan in 205. He died on 26.1.2006. An
application for substitution has been filed by his successor who is Chef
Catholico and Malankara Metrpopolitan, which has been marked as I.A. No 16
of 2006. The said substitution application is being opposed by the
respondents herein contending that the question in regard to the validity or
otherwise of the election of the Catholicos is pending consideration in a
suit. Having regard to the fact that there exists dispute as to whether the
applicant herein is a validly elected person for holding the aforesaid post,
and furthermore, in view of the fact that, in his absence, we can proceed
with the appeals, we do not intend to pass any order in the substitution
application,
The short question which arises for consideration,
in our opinion, is as to whether in a situation of this nature, the High
Court should have gone into the rival contentions of the parties. Our answer
is ? No ?. There cannot be any doubt, whatsoever, that prayer for issuance of
a writ of mandamus may be granted against the State commanding it to perform
its legal duties when it fails and/or neglects to do so. It is, however,
another thing that while considering only that aspect of the matter, the
Court in the garb of rendering a decision on that limited aspect would go
into the disputed question of title and/or interpretation of a judgment of
this Court wherefore other remedies are not only available but, as noticed
hereinbefore, in fact, more than 200 suits, touching one aspect of the
matter or the other, are pending in different Civil Courts,
A distinction, in our opinion, must be borne in mind in regard to the
exercise of jurisdiction under Article 226 of the Constitution of India in
relation to the matters providing for public law remedy vis-à¶is private
law remedy. The High Court while exercising its jurisdiction under Article
226 of the Constitution, no doubt, exercises plenary power but then certain
limitations in regard thereto are well accepted. Ordinarily, a writ of or in
the nature of mandamus would be issued against a ?State? within the meaning
of Article 12 of the Constitution of India or the public authorities
discharging public functions or a public utility concern or where the
functions of the respondents are referable to a statute, which a fortiorari,
would mean that save and except for good reasons Court would not entertain a
matter
involving private law remedy.
The question as regards grant of a relief for providing police protection in
a somewhat similar case, came up for consideration before this Court in P.R.
Murlidharan & ors vs. Swami Dharamananda Theertha Padar & or [ 2006 [4] SCC
501 ] wherein one of us a party. It was held therein; Furthermore, the
jurisdiction of the civil court is wide and plenary. In a case of this
nature, a writ proceeding cannot be a substitute for a civil suit.?
Balasubramanyan, J., in his concurring opinion observed;
A Writ Petition under the guise of seeking a writ of mandamus directing the
police authorities to give Protection to a Writ Petitioner, cannot be made a
forum for adjudicating on civil rights. It is one thing to approach the High
Court, for issuance of such a writ on a plea that a particular party has not
obeyed a decree or an order of Injunction passed in favour of the Writ
Petitioner, was deliberately flouting that decree or order and in spite of
the Petitioners applying for it, the police authorities are not giving him
the needed protection in terms of the decree or order passed by a court with
jurisdiction. But, it is quite another thing to seek a writ of mandamus
directing protection in respect of property, status or right which remains
to be adjudicated upon and when such an adjudication can only be got done in
a properly instituted Civil Suit. It would be an abuse of process for a Writ
Petitioner to approach the High Court under Article 226 of the Constitution
of India seeking a writ of mandamus directing the police authorities to
protect his claimed Possession of a property without first establishing his
Possession in an appropriate civil court. The temptation to grant relief in
cases of this nature should be resisted by the High Court. The wide
jurisdiction under Article 226 of the Constitution of India would remain
effective and meaningful only when it is exercised prudently and in
appropriate situations.
Learned counsels appearing on behalf of the
respondents herein contend that the appellants before us cannot be permitted
to take a different stand now, nor can they be allowed to play fast and
loose. The High Court had arrived at its opinion only at their behest. Our
attention in this behalf has also been drawn even to the grounds taken by
the appellants herein as to contend that a writ of or in the nature of
mandamus was sought for, for enforcing the purported legal right of the
appellant via-a-vis the State and its officers and not as against the
private persons.
Such might have been the contentions of the appellants before the High Court
or before us in the special Leave petitions, but we have no doubt in our
mind that such disputed questions in regard to title of the properties or
the right of ne group against the other in respect of the management of such
large number of Churches could not have been the subject matter for
determination by a Writ Court under Article 226 of the Constitution of India
in the garb of grant of police protection to one or the other appellants,
We, therefore, are of the opinion that despite the
fact the appellants had insisted upon before the High Court for issuance of
a writ or in the nature of mandamus upon the State or its officers for the
purpose of grant of police protection as this Court has exercised its
appellate jurisdiction under Article 136 of the Constitution of India, it
can and should go into that question as well, viz; as to whether the writ
petition itself could have been entertained or not, when the appeal is a
continuation of the original proceedings.
Learned senior counsel appearing on behalf of the respondents would,
however, submit that different Benches of the High Court may take different
views in regard to the interpretation of the judgment of this court in Most
Rev. P.M.A Metropolitan
[supra], and in support thereof has placed before us a judgment of the
learned Singe Judge of the said court in St. George Jacobite Syrian
Christian Church & ors vs State of Kerala & ors., passed in Writ Petition [C]
No 32114/2006, wherein a view different from the one taken by the Division
Bench of the High Court of Kerala in the impugned judgment, has been taken.
We, however, having regard to the opinion expressed hereinbefore and
furthermore in view of the fact that, admittedly, a Letters Patent Appeal
there against has been filed by the aggrieved parties before the Division
Bench of the Kerala High Court, do not intend to go into the said
contention,
For the reasons stated hereinbefore, we are of the
opinion that the High Court committed a manifest error in going into the
disputed questions of title as also the disputed questions in regard to the
rights of a particular group to manage the Churches, in exercise of its writ
jurisdiction, particularly, when such questions are pending consideration
before competent civil courts We, therefore, are of the opinion that any
observation made by the High Court should not influence the Courts concerned
in arriving at their independent decisions and in respect thereof, all
contentions of the parties shall remain open.
We are making these observations, particularly in view of the fact even a
large number of persons who have filed different suits in different Courts
of law were not parties before the High Court in the writ petition and thus
any observation and findings of the High Court would otherwise also not be
binding on them.
It must be clarified that we have expressed no opinion on the merit of the
issue pending before the Civil Courts. The Appeals are disposed of
accordingly.
Application for
impleadment is dismissed.
..................................
J (S.B.
SINHA)
..................................
J
(MARKANDEY KATJU)
NEW DELHI
APRIL 4
2007
Source: Chev. Adv. P J Philip, SOCM
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Judgment
by the High Court of the State of Kerala (Police protection)
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Kathipparathdadam St. George Church Verdicts from High Court Of Kerala
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