Malankara Jacobite Syrian Christian Network
|
|
Malankara Jacobite Syrian Christian Network
|
|
|
(Before Jawahar Lal Gupta
& M.Ramachandran, CJ J) Head Notes The Plaintiff has also prayed for the issue of an injunction against the defendant appellant. This relief was sought on the ground that the appellant had not been fully elected or consecrated as a Bishop or Metropolitan. The trial court has yet to decide this matter. In such a situation, it is not possible to hold that the suit has already been rendered infructuous-the application for grant of temporary injunction was liable to be dismissed on the ground that Churches had not been impleaded as parties?-the plaintiff’s respondents have not sought any relief against a Church or claimed any relief in that behalf. Thus, the Churches were not necessary parties and the objection as raised on behalf of the appellant cannot be sustained-Did the trial court act illegally in passing the impugned order of injunction?-the appellant does not claim to have been elected as the Metropolitan. Still further, nothing was pointed out from the record to show that appellant was entitled to act as the Catholicos elect, entering into any of the Parish churches in Angamaly, Kandanadu and Cochin Dioceses or to issue orders for ordaining priests or deacons and to perform other services-Catholicos can be the Malankara Metropolitan also and that if two individuals hold the two offices, then regulations are needed. Nothing has been pointed out from the record to show that any regulation has been framed. Thus, it appears prima facie safe to conclude that both the offices can be held by one individual-the learned trial court has not erred in issuing the injunction.
JUDGMENT
1. In the year 1880, the Maha Raja of
Travancore had described the ‘Syrian Christians’ as “the very embodiment of
antiquity and historical association, and the very model of contentment,
peacefulness and loyalty.” Today, as even on earlier occasions, they are in
court. The petitioners have filed this petition with the prayer that the
State and its authorities be directed to “give effective and adequate police
protection” so as to enable the first petitioner “to exercise his rights,
duties and privileges as the Catholics-cum-Malankara Metropolitan of the
Malankara Church with respect to the parishes mentioned in Ext.P4 and
institutions of the Malankara Church without any threat or obstruction from
respondents …or their agents or servants in any manner.” The suggestion of
the bench for an amicable settlement having not been found to be feasible,
we have heard the cases. Learned Counsel for the parties have broadly
referred to the pleadings in O.P.No. 22946 of 2002. These may be briefly
noticed. 2.
The Malankara Orthodox Syrian Church is the second largest Christian
community in Kerala. There were disputes amongst the members of the
community. There were several rounds of litigation. Each time the Apex Curt
decided the dispute. The decisions are reported in Edgar Sammut V.
Strickland (AIR 1939 PC 39), Most Revn P.M.A. Metropolitan v. Moran Mar
Marthoma (AIR 1995 SC 2001), Most Rev. P.M.A. Metropolitan v. Moran Mar
Marthoma Mathews (AIR 1996 SC 3121) and Most Rev. P.M.A. Metropolitan v.
Moran Mar Marthoma Mathews (AIR 1997 SC 1035). Suit No. 4 of 1979 was one of
the many suits, which have been filed in Court. In this suit, the
petitioners and/or their predecessors-in-interest were the plaintiffs. The
suit was transferred to the High court. In the year 1980, a learned Single
Judge had dismissed the suit. However, the Division Bench had accepted the
appeal and decreed the suit. 3.
The fifth respondent in the present proceedings was a defendant in
the suit. He challenged the judgment of the High Court in Civil Appeal Nos.
4958-60 of 1990. The Supreme Court decided the matter vide its judgments
reported in AIR 1995 SC 2001 and AIR 1997 SC 1034. The judgment of the High
Court was partly modified. 4.
The decision did not end the dispute. The fifth respondent and others
contended that ‘the first petitioner was not the Malankara Metropolitan and,
therefore, could not convene the ‘Malankara Association’. Raising the
contention, they filed a petition before this Honourable Court under Order
XLV Rule 15 of the Civil Procedure Code for transmitting the Supreme Court
to the executing court.” This petition was disposed of vide order dated
April 6, 2001. It was held that the first petitioner was not the Malankara
Metropolitan. He challenged the order by filing S.L.P. (Civil) No. 7593 of
2001. It was decided vide order dated Nov. 28, 2001. Their Lordships were
pleased to direct that a fresh election of the members of the Malankara
Association and Managing committee shall be held under the observation of
Hon’ble the Chief Justice Mr. V.S.Malimath (Retd.). It was also ordered that
the said Association would decide as to whether or not the first petitioner
was the Malankara Metropolitan. 5.
In pursuance of the decision, a meeting of the Malankara Association was
held at Parumala on March 20, 2002 in the presence of the ‘Observer’. The
first petitioner was approved as the Malankara Metropolitan by “an
overwhelming majority.” The new Managing Committee of the Association was
also elected. The ‘Observer’ filed his report before the Hon’ble Supreme
Court of India. Along with the report a list of the Parish churches of the
Malankara church was also produced. Vide order dated July 12, 2002, their
Lordships approved the report of the Observer. A copy has been produced as
Ext.P3. Their Lordships were pleased to observe that the election was final
and binding. It shall not be “open to challenge in any court or other
forum.” 6.
The petitioners allege that “the Malankara church at present comprises of
1662 Parish Churches spread all over India. A complete list has been
produced as Ext.P4. It is alleged that “the first petitioner has the
exclusive right and control over the Parish churches mentioned in Ext.P4”
and that this is ‘fortified by the approval of the report of the observer by
the Hon’ble Supreme Court”. Despite this, the fifth respondent “publicly
defied the judgments of the Hon’ble Supreme Court culminating in Ext.P3
order dated 12.7.2002. He also started spreading false rumors to create
confusion among the persons belonging to the community. The fifth respondent
went to the extent of saying, “he was not bound by the 1934 Constitution of
the Malankara Church.” He had done so in spite of the fact that he had
“filed an affidavit before the Hon’ble Supreme Court in A.S.No. 117 of 1998
swearing allegiance to the 1934 Constitution and enjoyed the benefit of the
order of status-quo passed by the Hon’ble Supreme Court in AIR 1996 SC
3121.” A copy of the affidavit filed by respondents 5 and 6 has been
produced as Ext.P5. 7.
The petitioners further allege that respondents 5 to 13 are “entering and
claiming exclusive right of control of some churches in the Districts of
Ernakulam, Thrissur and Kottayam and placing hindrance on the petitioners
carrying out their responsibilities” as spelt out by the decisions of the
Hon’ble Supreme Court. Specific examples of nine churches have been given in
paragraph 12. A large number of innocent members of the community have been
misled to follow the said respondents temporarily. Any precipitated action
“like initiating Contempt of Court proceedings and the like may not be in
the interest of the community generally”. Further, it is alleged that even
if the petitioners succeed in proving the charges of Contempt of Court, any
punishment awarded consequent thereupon would lead to bitterness among the
members of the community for the faults entirely of the fifth respondent and
a few of his followers.” In this situation, the petitioners have filed the
present petition for “a direction to the State authorities to extend a
helping hand in the matter of implementation of the judgments of the Hon’ble
Supreme Court of India culminating in the order dated 12.7.2002.” The
petitioners claim that protection was being sought to enable them to carry
on the work in accordance with the judgments of the Court. The community
will live in harmony. The petitioners say that they have been advised “not
to take law into their own hands and force their way” or to prevent the
respondents from trespassing into the churches in as much as even a single
instance of violence of breach of peace is inconsistent with the belief of
the community and not conducive to the public order generally. 8.
In view of this factual position, the Association Secretary Mr.
A.K.Thomas submitted a representation dated July 15, 2002 to the Chief
Secretary to the Government of Kerala. A true copy has been produced as
Ext.P6. A request for the issue of directions to the District Collectors and
Police officials to ensure that the fifth respondent or others under him do
not enter the premises or interfere in the administration of any parish or
Diocese of the Malankara Church was made. This representation having
elicited no response, they have approached this court. 9.
In their effort to defeat the judgment of the Supreme Court, respondents 5
to 13 have “formed a new church with malafide intention…….” Having done
that, they are still “entering and interfering in the churches mentioned in
Ext.P4 for which they have no right.” They are also disobeying the orders of
injunction issued by the competent courts. Copies of the two orders have
been produced as Exts.P7 and P8. Vide order dated August 3, 2002, the first
Additional District Court, Ernakulam has issued an injunction restraining
the fifth respondent from entering in any of the churches in the Diocese of
Cochin, Angamaly and Kandanadu. On august 4, 2002 the fifth respondent had
entered several churches of the above mentioned Dioceses and openly defied
the court orders. He is exhorting members to violate the court orders. He is
illegally celebrating Holy Mass in the parish churches. He is ordaining
unqualified persons as priests. The illegal action of the fifth respondent
is creating a law and order problem. So far, the activities of respondents 5
to 13 have been “confined to certain places mentioned above. But they are
threatening to extend them to the rest of the State and it is very difficult
to anticipate as to when and where such situations would arise.” In view of
this situation, the petitioners claim that it is not possible for them to
approach civil courts within whose jurisdiction the churches are situate. 10.
The petitioners maintain that the law declared by the Supreme
court is binding on al courts within the territory of India. The civil and
judicial authorities are bound to enforce the orders of the Supreme Court.
The power under Article 226 can be invoked for remedying the executive
inaction. The respondents have failed to act despite representations. The
petitioners pray that a Writ of Mandamus be issued directing them to ensure
that the petitioners are able to perform their duties and that their rights
guaranteed under Articles 25, 26, 28 and 28 are not violated. 11.
While the pleadings in the Writ Petition are comparatively brief, the
counter affidavits filed on behalf of the respondents run into many volumes.
Thus, noticing the averments in detail would only add to the volume of the
judgement. Their pleadings can be noticed briefly. 12.
The respondents maintain that the decision of their Lordships of
the Supreme Court is not binding on the parish churches. The petitioners
have no right to interfere with the property of the parish churches. There
is a dispute on facts. It cannot be resolved in proceedings under Article
226 of the Constitution. The petitioners have no right, which may be legally
enforceable. In the circumstances of the case, the State is under no duty to
intervene. As many as 489 churches have dissociated themselves from the
Malankara Association. This again is in conformity with their rights under
Articles 19, 25 and 26 of the Constitution. In this situation, no occasion
for the issue of a Writ of Mandamus is made out. 13.
The respondents further allege that the first petitioner had been writing
letters and making statements challenging the authority of the Patriarch of
Antioch. Copy of one such letter has been produced as Ext.R14 with the
written statement filed by respondent No.5 in which a definite challenge to
the authority of the Patriarch has been made. It was in view of the attitude
adopted by the first petitioner that the various churches were forced to
dissociate themselves from the Malankara Association. They had taken this
decision and communicated it to the petitioners. A copy of the decision as
communicated by respondent No. 14 has been produced as Ext.R14(w). On these
premises the respondents maintain that the Writ Petitions deserve to be
dismissed. 14.
On behalf of the petitioners, Mr. K.N.Bhatt contended that the decree passed
by their Lordships of the Supreme Court in Most Rev. P.M.A.Metropolitan v.
Moran Mar Marthoma (AIR 1995 SC 2001) is binding on the respondents. By
virtue of the provisions of Article 144, every authority in the country
including the State Government as also the courts were bound to enforce the
judgement. Since the State had failed to perform its duty, the petitioners
are entitled to the issue of a Writ of Mandamus directing the State to
enforce the orders of the court. 15.
On behalf of the respondents, Mr. Anil Divan, who appeared for
respondent No.14, contended that their Lordships of the Supreme Court have
not passed any order, which may be binding, on the parish churches. So far
as the parish churches are concerned, they have a right to manage their
affairs and properties. Since the petitioners have no right in those
properties, they cannot ask for help from the State to exercise control on
those properties. In any event, keeping in view the dispute on facts and the
pending litigation, a large majority of churches including respondent No.14
had taken a decision to dissociate themselves from the Malankara
Association. This was in strict conformity with the provisions of Articles
19, 25 and 26 of the Constitution. He further contended that a declaratory
decree cannot be enforced through proceedings under Art. 226 of the
constitution. Thus, the petitioners have no right to pray for the issue of a
Writ of Mandamus. 16.
Mr. C.S.Vaidyanathan, who appeared for some of the respondents, submitted
that the judgment of their lordships of the Supreme Court does not determine
any public law rights of the petitioners. It does not lay down any law,
which may need to be enforced. It does not bind the parish churches. The
petitioners are raising claims to property. There is a serious dispute on
questions of fact. About 200 suits are pending in different courts. In such
a situation, no ground for the intervention of the court in proceedings
under Article 226 of the Constitution is made out. Learned counsel further
contended that the petitioners had filed a representation. A copy of this
representation has been produced as Ext.P6. It had been rejected by the
Government. A copy of this order has been produced as Ext.P13 with C.M.P.No.
62945 of 2001. The validity of this order has not been challenged. In such a
situation, no ground for interference by the issue of a Writ of Mandamus is
made out. 17.
Mr. S.Venkatasubramonia Iyer, who appeared for respondents 7, 8
and 10, submitted that going to church for addressing a congregation or
performing service is an assertion of right in relation to property. The
property vests in the church. It can be used only for promoting the basic
tents for which the trust has been constituted. The petitioners have no
right to got to the churches without permission of the parishes or the
Diocese in whom the property vests. 18.
So far as respondents 9, 12 and 13 are concerned, the counsel appearing for
them contended that the Writ Petition was not maintainable against the
Simhasana and Evangelists churches. This position was accepted by Mr.Bhat
learned counsel for the petitioners. 19.
Mr. Ravindra Bhat appeared for some of the respondents and supported the
petitioners. He contended that none of the respondents had raised any
objection regarding the validity of the election or the authority of the
first petitioner who had been duly elected as the Catholicose-cum-Malankara
Metropolitan before their lordships of the Supreme court when the matter was
finally decided on July 12, 2002. He further submitted that the respondents
or any of the other churches cannot withdraw from the Malankara Association.
They are bound by the Constitution. Thus, the claim as made by the
petitioners deserves to be granted. 20.
Mr. K.C.John appearing for respondent No.17 reiterated the claim as made by
the petitioners. He further submitted that the six petitions which have been
posted for hearing along with O.P.No. 22943 of 2002 had been filed primarily
with the prayer that police help be provided as the injunction granted by
the civil court and affirmed by this Court in Baselious Thomas-I Catholicose
v. Thomas Mar Athanatious (2003 (1) KLT 10) has not been obeyed. 21. Mr. Retna Singh, learned Advocate General rook a very fair stand. He submitted that the Government is not happy about the disputes between the two factions. It is trying for reconciliation. The government shall do whatever the court directs. However, the difficulties that confront the government in dealing with sensitive issues may be kept in view. These were broadly the
submissions made by the counsel for the parties. 22. The two questions that arise for consideration are:
Regarding 1:-
24.
It can be taken as settled that a judgment in personam binds the parties to
the dispute. A judgment in rem is a pronouncement with regard to the subject
matter. It is binding upon everyone who has any interest in the subject
matter of the judgment. The short issue is – Did their lordships of the
Supreme Court pronounce upon the subject matter or decide the matter
inter-parties. What is the factual position? 25. The judgment is in two parts. The minority view has been expressed by Hon’ble Mr.Justice R.M.Sahai. The conclusions reached by His Lordship are in paragraph 76. Conclusion No.7 is in the following terms: “All churches, except those
which are of Evangelist Association or Simhasana or St.Mary are under the
spiritual and temporal control of the Malankara Association in accordance
with the 1934 Constitution? 26. The majority also considered the matter. In paragraph 132 of the judgment, the reliefs sought for in the suit have been noticed. A perusal of the judgment shows that a declaration was sought that “the Malankara church is Episcopal in character and is not a union or federation of autonomous church units and is governed in its administration by the Constitution of the Malankara Church.” Still further, a declaration was also sought that particular defendants were not competent to ordain priests and deacons. They were not legally consecrated Metropolitans or legally ordained priests or deacons of the Malankara Church. An injunction was also sought so as to prohibit the particular defendants from ordaining priests or deacons or performing religious services or sacraments or from interfering with the administration of the Malankara church. While examining the case, their lordships were pleased to inter alia observe as under in paragraph 141: “If the plaintiffs mean merely
spiritual control by saying Episcopal, probably there may be no difficulty
in holding that Catholicos and the Malankara Metropolitan have spiritual
control over the Parish Churches, but if it means control over temporal
affairs of, or title to or control over the properties of, the Parish
Churches beyond what is provided for in the Constitution, a declaration to
that effect can be obtained only after hearing and in the presence of the
concerned Parish churches. It also appears that each of these Parish
churches/Associations has its own constitution, whereunder the general body
of the Parishes is declared to be the final authority in temporal matters.
All this is mentioned only to emphasize that in the absence of the Parish
Churches and proper pleadings and proof, no declaration touching the Parish
church can be granted in theses suits.” (emphasis supplied) 27.
A perusal of the above observations shows that even though Hon’ble
Mr.Justice Sahai had expressed the view in paragraph 64 that “it was not
necessary to implead other Parish churches as a party”, the majority was
clearly of the view that no declaration could be given to the prejudice of
the Parish Churches in their absence. The right of the Parish Churches to be
heard, especially in the matter of temporal affairs, was clearly recognised. 28. Mr. Bhatt, learned counsel for the petitioners contended that the High Court vide its decree dated June 6, 1980 in O.S.No. 4 of 1979 had inter alia declared as under:-
Learned counsel submitted that
their lordships of the Supreme Court did not modify these declarations in
the decree. Thus, only the persons appointed by the first petitioner are
entitled to act as priests. Nobody can refuse to recognize his authority.
The decree operates as a judgment in rem. On the other hand, it was pointed
out by the learned counsel for the respondents that the decree passed by the
High Court had been “modified” by their lordships of the Supreme court. In
particular, it was pointed out that the Supreme court had refused to grant a
specific relief in respect of the Parish Churches. 29.
A perusal of the judgment passed by their lordships of the
Supreme Court shows that in paragraph 120, it had been specifically observed
that “in the suit no declaration can be granted affecting the rights of
Parish churches in their absence nor can it be declared that the properties
held by Malankara Metropolitan or the Metropolitans of the concerned
Diocese, as the case may be. Indeed, no such specific relief has been asked
for in the suit and without impleading the affected parties, no declaration
can be claimed by the plaintiffs that their Church is Episcopal in nature,
if that declaration means that it gives the Catholicose / Malankara
Metropolitan / the Metropolitan of the Diocese any title to or any control
over the properties held by the Parish churches …” this was a clear refusal
to grant any declaration affecting the rights of the Parish Churches. In
view of this factual position, the plea that the judgment determines the
rights in respect of even the Parish Churches or that it is binding on them
despite the fact that they were not parties cannot be sustained. 30.
Mr. Bhatt contended that the law declared by the Supreme court binds
everyone in the country. It was also submitted with reference to Article 144
of the Constitution that it is the duty of every Authority including each
court to aid in the enforcement of the order passed by the Apex Court. The
inaction and failure of the respondent-authorities to perform their
constitutional duty entitles the petitioners to pay for the issue of a Writ
of Mandamus. 31.
At the first flush, the contention seems impeccable. It is beyond doubt that
Article 144 embodies a constitutional mandate. Every civil and judicial
authority is bound t act in aid of the Supreme Court. The provision clearly
requires every authority in the country, be it civil or judicial, to take
all effective steps to ensure the implementation and observance, in letter
and spirit, of the judgment given by their lordships of the Supreme Court.
The High Court is not exempted from the performance of this duty. 32.
In this context, it may, be mentioned that Chapter IV of the Constitution
contains the provisions regarding the establishment of the Union Judiciary.
It places the Supreme Court at the head of the pyramid. Articles 140 to 144
have a scheme. These provide for the binding nature of the declaration of
law by the Supreme Court and the enforcement of decrees or orders passed by
it. It deserves notice that even the opinion recorded by their lordships of
the Supreme Court in the exercise of its advisory jurisdiction under Article
143 is binding on all courts in India. Art. 144 imposes a duty on the civil
and judicial authorities to ensure the obedience of the decrees or orders
passed by them. Under Article 145, the court has been empowered to frame it
sown rules. However, such rules are subject to the law that may be made by
the Parliament and need the approval of the President. Thus, the Rules are
in the nature of a subordinate legislation. 33.
However, the questions that arise are –Has the Supreme Court held
that the petitioners have a clear title in the properties belonging to the
Parish Churches? Does the decision give the petitioners a right to control
the affairs of the Parish churches despite the fact that they were not
parties in the case? Do the State and its authorities have no discretion in
the matter? 34.
On a consideration of the matter, it appears that the basic declaration
given by their lordships was that the Constitution of 1934 binds all the
Churches. However, s far as the rights of the Parish churches are concerned,
there was no declaration against them as they had not been impleaded as
parties. 35.
It is a settled principle of law that a Writ of Mandamus can be
issued only when the party praying for it has a clearly enforceable right
and the authority has a duty to perform. In the present case, we find that
the judgment of their lordships of the Supreme Court does not per se entitle
the petitioners to claim any right affecting the properties of the Parish
Churches. In fact, in the judgment, it was categorically observed in
paragraph 142 (10) that the “common properties (Samudaya properties) held by
the Malankara Church are vested in the Malankara Metropolitan and others …”
Obviously, the properties of the Parish churches were not included. 36.
Mr.B hatt contended that even a declaratory decree declares law and rights
of the parties. He referred to the judgment in Gurdit Singh v. State of
Punjab (AIR 1974 SC 1791) to point out that “A judgment of a court is an
affirmation, by the authorised societal agent of the State, speaking by
warrant of law and in the name of the State, of the legal consequences
attending, approved or admitted state of facts.” It is undoubtedly so. But a
perusal of the 1995 judgment of their lordships of the Supreme Court clearly
shows that thee is no clear declaration regarding the petitioners’ right
over the properties or the other affairs of the Parish churches. Their
lordships, as pointed out by Mr.Vaidyanathan learned counsel for some of the
respondents, were only adjudicating the dispute between the parties. There
was no declaration of law, which may be binding on the Parish Churches. It
was only a declaration in respect of a private law right. There was no
determination in respect of a public law right. The contention appears to be
correct. 37.
There is another aspect of the matter. It was asserted by Mr. Vaidyanathan
that about 200 suits relating to various churches are pending in different
courts in the State. Even the petitioners have referred to the pendency of
two suits and produced documents as Exts.P7 and P8. This factual position
was not disputed by the learned counsel for the petitioners. Such being the
position, it is apparent that there are various disputes between the
petitioners and the Parish churches. These are pending adjudication. In
these proceedings before the civil Courts, the parties would lead evidence
and prove their rights. The trial of these suits cannot be stifled by
accepting the petitioners’ prayer for the grant of police help and
permitting them to achieve the object of exercising spiritual and temporal
control over the affairs and properties of the Parish Churches. In fact,
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 this case, the
petitioners are seeking police help in the conduct of religious and other
affairs. Matters of religion involve sensitive issues. Intervention of
police in a place of worship can be a matter of last resort only. It cannot
be the first option. Thus, it cannot be said that the State is bound to
provide police help. 38.
In this context, it may be mentioned that it is the pleaded case of the
petitioners that the 5th respondent has illegally entered certain churches
and ordained unqualified persons as Priests? How are they unqualified?
Admittedly, the persons are not parties. The pleadings in this behalf are
not adequate. A complete examination of the matter is, thus, not possible.
In fact, Mr. Vaidyanathan pointed out that even the petitioners have filed
suits in certain courts. This was not disputed. Such being the factual
position, the issues as arising between the parties cannot be resolved in
proceedings under Art. 226 of the Constitution. 39. Mr. Bhatt contended that a judgment of the Supreme Court declaring the inter-se rights of the parties by its own force. The declaration of the rights as given by the Apex Court binds everyone. Learned counsel placed reliance on paragraph 565 from Halsbury’s Laws of England, Volume 26 (4th Edition). It reads as under:- “565.
Judgments not requiring enforcement:- Many judgments and orders do not
require to be enforced as the judgment or order itself is all that the party
obtaining it requires. Thus, a judgment in rem, which determines status,
does not call for specific enforcement. It not only declares the status of
the particular person or thing adjudicated upon, but, ipso facto, renders it
such as it is declared. A decree of divorce not only dissolves the marriage,
but makes the wife a single woman; an adjudication in bankruptcy not only
declares the debtor a bankrupt, but clothes him and his trustee with the
consequences of that status; a sentence in a prize court not only decrees
the vessel to be prize, but vests her in the captor. Such a judgment does
not order recovery or payment of money, delivery or transfer of property,
nor any specific act or abstinence bringing it within any of the various
modes of execution in the widest sense. Similarly, an order appointing new
trustees which also vests the trust property in them requires no further
step to be taken. A declaratory judgment is complete in itself, since the
relief is the declaration.” 40.
The above observations are clearly in the context of a judgment in rem which
determines the status and does not call for specific enforcement. In the
present case, there is no declaration in respect of the status or rights of
the Parish Churches. In fact, the rights were specifically protected. In
this situation, the counsel can derive no benefit from the rule as noticed
above. 41.
It was pointed out by the learned counsel for the petitioners that the
proceedings before the Supreme Court had not ended with the judgment of the
year 1995. There were various rounds. Ultimately, their lordships of the
Supreme Court had appointed a former Chief Justice of this Court as an
Observer. He had conducted the elections to the Malankara Association.
Persons like the respondents who had lost during the elections cannot now be
permitted to deny the authority of the petitioners. 42.
The counsel is absolutely right in contending that their
lordships of the Supreme court had made every possible effort to resolve all
the issues arising between the parties so as to ensure that the disputes
were settled forever. A permanent end of the disputes was the obvious
objective. It would have been an ideal situation. However, the ideal has
proved elusive. Unfortunately, the disputes appear to have persisted. In
fact, it appears that a number of Churches (most of which are not even
parties in these cases) have passed resolutions withdrawing from the
Association. It is the petitioners’ own case that the respondents have
formed a separate Church. Were they not free to do so? 43. A perusal of the judgment of their lordships of the Supreme Court shows that in paragraph 115 it was observed as under: “On July 16, 1960, the Patriarch again wrote to the Catholicos reiterating his objections. In this letter, the Patriarch asserted that the provisions of the said Constitution “seem to be destructive of every principle of apostolic and Episcopal Churches. So we could not approve your constitution?. The letter concluded by saying, “it is reported to us that our people there and the churches remained divided mainly on the scope of your acceptance and the validity of the constitution which you hold more sacred than the holy scriptures, the canons of the church and its traditions. In the circumstances we have no alternative but to recognize those people and churches who hold fast to the original principles of the foundation of their church.” The letter called upon the Catholicos to clarify his position immediately within a month failing which it would be taken that the Catholicos has nothing to reply and he could take such further steps as are deemed necessary for the peace of the church and preservation of its faith, order and discipline as a holy and apostolic church.” The above observations are symbolic of the spiritual differences between the two factions. And then in paragraph 150 it was observed thus:- “After hearing the learned
counsel for the appellant (D 19) and the respondents and perusing their
written statements, we are of the opinion that the decree of the Division
Bench has to be affirmed but with certain modifications. The modification is
called for the reason that when a particular people say that they believe in
the spiritual superiority of the Patriarch and that is an article of faith
with them, the court cannot say ‘no; your spiritual superior is the
Catholicos.’ The guarantee of Art.25 of the Constitution has also to be kept
in view. The decree of the Division Bench makes no difference t the
Patriarch. It only says that Catholicos is declared to be the spiritual
superior of the Knanaya Community. Then it says that in temporal matters,
the 1934 Constitution of the Malankara Association can be implemented
subject to the Knanaya constitution only until both the Constitutions are
reconciled. In all, in the facts and circumstances of the case, it would be
enough to declare that b their acts and conduct, D 19 has accepted that they
are an integral unit within the Malankara Church and that, therefore, the
1934 Constitution of the Malankara church shall govern them but subject to
their Knanaya Constitution until such time the Knanaya Church Samudayam
decides otherwise.” 44.
A perusal of the above observations shows that the rights of the
Parishes or the Parishioners to accept the spiritual superiority of the
Patriarch was not affected. The guarantee as enshrined in Article 25 of the
Constitution was ensured. Still further, the provision in Art. 19(1)© to
form an Association clearly guarantees the freedom to form a new association
and/or to walk out of the old one. No one can be forced to continue as a
member of a particular association. Thus, the members of the Association had
the freedom to dissociate themselves from the Association. The Court had not
issued an injunction restraining them from doing so. They had merely
exercised their constitutional right. It cannot be said to be violation of
the decision of their lordships of the Supreme Court. 45.
Still further, a fact that deserves mention, is that the
petitioners seek relief in respect of the churches, which are listed in
Ext.P4. All of them are not parties in the present proceedings. In their
absence, it is difficult to determine their rights without hearing them. 46.
In view of the above, it is clear that the claim as made on behalf of the
petitioners cannot be sustained. The first question is accordingly answered
against the petitioners. Regarding 2:- 47.
Should a Writ of Mandamus be issued as prayed for by the petitioners? 48.
The claim made by the petitioners in a nutshell is that the State
should b directed to provide them police help so as to enable them to enter
and administer the Parish Churches. They also claim that they are entitled
to exercise their rights, duties and privileges without any threat or
obstruction from the respondents in any manner whatsoever in accordance with
the Constitution of 1934. On behalf of the respondents, it has been inter
alia contended that the assertion of the right to enter the Parish Churches
even for conducting services amounts to an assertion of a right to property.
Still further, it has also been asserted that keeping in view of the
totality of the circumstances of the case the relief as prayed for by the
petitioners cannot be granted. 49.
On a consideration of the matter, we find that even under the judgment
delivered by their lordships of the Supreme Court, there is no declaration
affecting the rights of the Parish Churches. Secondly, it is the undisputed
position that a large number of suits are pending between the parties.
Thirdly, unanimous resolutions have been passed by various churches in
exercise of their fundamental rights under the Constitution by which they
have dissociated themselves from the Malankara Association. Fourthly, there
are provisions in the Code of Civil procedure like Order XXI rule 32 and
Order XLV Rule 15 which provide for the method by which the decree of the
Supreme Court can be executed. In this situation, it cannot be said that the
petitioners had an undisputed right, which can be enforced by the issue of a
Writ of Mandamus, or that respondents 1 to 4 are under an obligation to
provide them police protection. In fact, the appropriate remedy for the
petitioners is before the civil court where the disputed questions of fact
can be appropriately decided. 50.
Mr. Raveendra Bhat, learned counsel for some of the respondents
who are supporting the petitioners contended that no such objection was
raised before the Supreme court on July 12, 2002 when the matter was finally
decided by their Lordships. On behalf of the respondents, it was pointed
that all of them were not parties in proceedings before the Supreme Court.
Thus, they are not bound. 51.
Irrespective of the technicalities, the undeniable fact is that
the constitutional right of a member of the Association to dissociate
himself from the existing Association or to form a new one cannot be
disputed. Still further, nothing was pointed out to show that there was a
mandatory injunction restraining any of the Parishes from dissociating
itself from the Malankara Association. Thus, what was not allowed by the
Supreme court directly cannot be granted to the petitioners indirectly. 52.
Mr. Raveendra Bhat, in an effort to support the counsel for the petitioners,
went to the extent of contending that just as earth cannot got out of solar
system, similarly no church could walk out of the Malankara Association. The
argument is apparently attractive. Yet, it ignores the provisions of
Articles 19, 25 and 26 of the Constitution, which confer definite rights on
the contesting parties. These rights have been duly protected by their
lordships of the Supreme Court. 53.
Learned counsel for respondent 9, 12 and 13 had contended that no
relief could be granted against them, as the said respondents were part of
the Simhasana or Evangelist Churches. The learned counsel for the
petitioners did not dispute this position. Thus, the claim against these
respondents cannot, in any case, be sustained. 54.
Mr. K.C.John, learned counsel for the petitioners in the
connected matters, submitted that police protection was being sought to
implement the injunction granted by the court. So far as this aspect of the
matter is concerned, the petitioners can seek their remedy before the
appropriate forums for seeking relief against the concerned parties. We are
sure that the concerned courts would take action against the violators of
the injunction if the allegations are proved. However, in these proceedings,
a Writ of Mandamus cannot be issued directing the State, which is not even
shown to be a party in the suits, to provide police protection. In any case,
Order XXXIX of the Code of Civil Procedure itself provides an efficacious
remedy in case of violation of the injunction granted by the civil court. 55.
Learned counsel for the parties had also referred to certain
provisions of the 1934 Constitution. Since it is admitted position that some
of the matters are pending before the civil courts, we do not consider it
appropriate to record any findings with regard to the provisions of the
Constitution, lest the rights of the parties should be affected one way or
the other. 56.
No other point was raised. 57. In view of the above, it is held that:-
58.
Thus, the writ petitions are dismissed. However, the parties are left to
bear their own costs. Source: http://www.keralawyer.com/asp/detailedJudgement.asp?id=800 (The judgments are a verbatim reproduction of the typed matter as is provided by the registry in the high court.) The head notes are prepared by www.keralawyer.com Final Judgment on Police Protection Case by Supreme Court Of India 2007
|
||
|