IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 14484 of 2008(Y) -------------------------- PETITIONER: -------------------------- FR.K.P.ISSAC,S/O.POULOSE,AGED 60 YEARS KANDATHIL PUTHEN PURAYIL, VICAR , ST.MARY'S JACOBITE SYRIAN CHURCH ELANADU PO.,THALAPPILLY TALUK. BY ADV. SRI.B.G.BHASKAR RESPONDENTS: ---------------------------- 1. SUB DIVISIONAL MAGISTRATE(REVENUE DIVISIONAL OFFICER)TRICHUR. 2. THE VILLAGE OFFICER,ELANADU VILLAGE THALAPPALLY TALUK,TRICHUR DIST. 3. PA.BABY, S/O.ABRAHAM,PARUMTHAMKUZHY HOUSE,VENNUR VILLAGE. BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R3 SRI.LIJU. M.P FOR R3 SRI.SAJAN VARGHEESE K. FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2008, ALONG WITH CRRP NO. 3078 OF 2003 THE COURT ON 16/09/2008 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1: A TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 20.01.03 IN I.A.NO.1512 OF 2002 IN O.S.NO.451/2000 ON THE FILES OF THE SUB COURT, THRISSUR. EXT.P2: A TRUE COPY OF THE SAID ORDER FOR THE RDO IN M.C.1/1976 DATED 19.11.2003. EXT.P3: A TRUE COPY OF THE APPLICATION DATED 07.04.2008 TO THE 1ST RESPONDENT IN M.C.NO.1/1976. EXT.P4: A TRUE COPY OF THE REPORT DATED 09.04.1998 STATING THAT THE PETITIONER AND FR.MATHEW JACOB ARE THE ONLY TWO PRIESTS FUNCTIONING AND ENTITLED TO FUNCTION IN THE CHURCH. EXT.P5: A TRUE COPY OF THE ORDER DATED 19.4.08 OF THE 1ST RESPONDENT IN M.C.1/1976 ALLOWING EXHIBIT P3 APPLICATION. EXT.P6: A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 26.4.08. V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(C) No.14484 of 2008 & Crl.R.P.No.3078 of 2003 = = = = = = = = = = = = = = Dated this the 16 th day of September, 2008 JUDGMENT Both these writ petition as well as Crl.R.P. were heard together as agreed to by both sides. In the writ petition filed under Article 226 of the Constitution of India, the petitioner (Fr.K.P.Issac) who is the vicar of St.Mary's Jacobite Syrian Church, Elanad, seeks a writ of prohibition or any other appropriate writ, order or direction prohibiting the Sub Divisional Magistrate (Revenue Divisional Officer), Thrissur, Village Officer, Elanadu village, Thalappally Taluk, Thrissur district and one P.A.Baby from altering the status quo prevailing in the said church in Building No.8/640 of Pazhayannur Panchayat where the writ petitioner is acting as the priest for the A party from 7 a.m. to 9 a.m. and Fr.Mathew Jacob Puthussery is functioning as the priest for the B party between 9.30 and 11.30 a.m. while conducting W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 2 services in the Church on all Sundays. Crl.R.P.3078/2003 is filed by the said P.A.Baby challenging the order dated 19.11.03 passed by the Sub Divisional Magistrate in proceedings under Section 145 Cr.P.C. The writ petition as well as Crl.R.P. are off-shoots of the dispute between the Catholicos Group (Orthodox faction) and the Patriarch Group which are the two warring factions among Jacobite Christians over the spiritual and temporal rights in respect of several Christian churches in Kerala under the Malankara Sabha. 2. I heard Adv.Sri.B.G.Bhaskar learned counsel appearing for the petitioner in the writ petition and respondents No. 3 to 14 in the Crl.R.P and senior Advocate Sri.K.Ramakumar appearing for the 3rd respondent in the writ petition and for the petitioners in the Crl.R.P.. 3. Advocate Sri.K.Ramakumar made the following submissions before me opposing the writ petition and in W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 3 support of the Crl.R.P.:- After the Sub Court, Thrissur disposed of the suit O.S.No.451 of 2000 appointing a commission to conduct the election to the managing committee of the church and after the Advocate Commissioner reported that the election was conducted, disputes arouse between the two factions resulting in proceedings under Section 145 Cr.P.C. The direction in the order dated 19.11.03 issued by the Sub Divisional Magistrate to hand over the possession and management of the church to the newly elected Managing Committee was under the wrong impression that the Civil Court had issued such a direction. No such direction was issued by the Civil Court in O.S.No.451 of 2000. As per bye-law 32 of the Constitution of the Malankara Orthodox Syrian Church every church shall have a Kaikaran who shall be the joint-steward along with the Vicar of all the assets of the Parish Church. Hence, the possession and management W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 4 of the church and its properties were to be handed over not to the newly elected Managing Committee, but to the Kaikaran and to the Vicar. In the absence of any direction by the Civil Court, the Sub Divisional Magistrate should have followed bye-law 32 of the Constitution by directing that the possession and ownership of the church and its properties be handed over to the Kaikaran as well as the Vicar who were to hold the same jointly. The writ petitioner has challenged the order of the Sub Divisional Magistrate before the Sessions Court, Thrissur by filing Crl.R.P.No.35 of 2008 and the said revision is pending before that Court. After challenging the Sub Divisional Magistrate's order in revision before the Sessions Court, Thrissur, it was not open to the writ petitioner to challenge the direction issued by the Sub Divisional Magistrate, by filing the present writ petition. The prayer in W.P(c)No.14484 of 2008 filed by the writ petitioner is for a writ of prohibition restraining the W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 5 respondents from altering the status quo prevailing as on 8.5.08. Without challenging the order of the Sub Divisional Magistrate and seeking a writ of certiorari, the writ petitioner cannot collaterally challenge the order of the Sub Divisional Magistrate by filing the writ petition. 4. I am afraid that I cannot agree with the above submissions made on behalf of P.A.Baby. As mentioned earlier the dispute is between the two factions of the parishioners one owing allegiance to the Metropolitan and known as the Catholicos or the Orthodox Group and the other owing allegiance to the Patriarch of Antioch called the Patriarch Group. The church in question is a church falling under the Malankara Diocese and is called the St.Mary's Bethlehem Syrian Church. It is situated in Survey No.1043/2 of Elanadu Village in Thalappally Taluk of Thrissur District. The church building bears Building No.VIII/460 of Pazhayannoor Panchayat. Due to the W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 6 internal conflict among the members of the church with regard to the management of the church properties, a suit was filed before the Munsiff's Court, Wadakkanchery as O.S.No.14 of 1976 by the Orthodox Group led by Fr.K.P.Issac seeking certain reliefs including the modalities of the election to be conducted to the Managing Committee of the church. The said suit was transferred to the 1st Additional District Court, Ernakulam where it was re- numbered as O.S.No.182 of 1977. The 1st Additional District Court, Ernakulam is the court designated by this Court to try suits pertaining to church cases and will be hereafter referred to as the “Church Court”. In the meantime on the report of the Sub Inspector of Police, Pazhayannur, the Sub Divisional Magistrate, Thrissur had initiated proceedings in respect of the church and its properties under Sections 145 and 146 Cr.P.C as M.C.No.1 of 1976 in which the A Party was the Orthodox Group W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 7 headed by the writ petitioner Fr.K.P.Issac and the B Party was the Patriarch Group headed by one Ittan Pillai. As per proceedings dated 13.1.1976 of the Sub Divisional Magistrate, the church was attached and was entrusted to the Village Officer, Elanad under receivership. On 9.12.1999, the suit O.S.No.182/1977 was decreed holding that the election was to be conducted by the Vicar (Fr.K.P.Issac) in accordance with the 1934 constitution. The Court further held that the election should be conducted from the voters list comprising of the entire parishioners of both factions and the newly elected committee will be entitled to move the RDO for possession of the properties of the Church and until then the status quo as on that date shall continue. The contention on behalf of the Patriarch Group that there was no direction by the civil court to hand over the church and its properties to the newly elected Managing Committee, is factually incorrect. Incidentally, W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 8 it is relevant to note that the said decision of the Civil Court to conduct the election in accordance with the 1934 constitution was in accord with the subsequent verdict of the Apex Court in Most Rev.PMA Metropolitian v. Moran Mar Marthoma (AIR 1995 SC 2001). 5. In the meanwhile the Patriarch Group filed O.S.No.451 of 2000 before the Sub Court, Thrissur seeking the conduct of election by a Commission to be appointed by the court. The said suit was decreed and an Advocate Commissioner was appointed to conduct the election. The Advocate Commissioner was directed to collect the names of members eligible for vote from the respective priests then functioning on behalf of the two factions. For the A party the Commissioner collected names of voters from Fr.K.P.Issac who was the priest representing the A Party and from Fr.Mathew Jacob who was the priest representing the B Party. On 12.1.03 the Advocate Commissioner W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 9 conducted the election. The 12 members of the Managing Committee who were declared as elected are the following:- 1. Babu Thomas : Secretary 2. Baby P.A. : Trustee 3. Abraham M.A. : Member 4. Ebby K.K. : '' 5. Jose Thomas : '' 6. James Paily : '' 7. Joy M.P. : '' 8. Peter M.C. : '' 9. Philip K.S. : '' 10. Skaria P.U. : '' 11. Varghese K.K. : '' (Johny) 12. Wilson K.V. : '' 6. On 23.7.03 all the above 12 members except P.A. Baby authorised the writ petitioner Fr.K.P.Issac to receive the key of the church from the Village Officer, Elanad. The W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 10 aforesaid 11:1 decision of the majority was submitted to the Revenue Divisional Officer who was requested to hand over the key to the writ petitioner, Fr.K.P.Issac. P.A.Baby the 3rd respondent in the writ petition who is the petitioner in the Crl.R.P. objected to the majority decision saying that being the trustee of the church he alone was entitled to the keys. Based on the above decision of the Managing Committee, the writ petitioner Fr.K.P.Issac also moved the Sub Divisional Magistrate, Thrissur for handing over the key of the church to him on behalf of the Managing Committee. As per order dated 19.11.03, which is produced as Ext.P2 in the writ petition, the Sub Divisional Magistrate held that since Fr.K.P.Issac was not included in the newly elected Managing Committee, he had no locas standi to apply for possession of the church properties and that entrustment of the church and its properties to a person other than a member of the Managing Committee would be against the W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 11 direction of the Civil Court. The Sub Divisional Magistrate, therefore ordered that either the newly elected Managing Committee members could personally present themselves before the Village Officer, Elanad and file a joint application for getting custody of the church and its properties or could nominate any member among them to take over custody of the properties from the Village Officer and that until then the church and its properties would continue to remain with the Village Officer, the Receiver. It is this decision which is assailed by P.A.Baby in the Crl.R.P contending that the church and its properties are to be handed over to him and the Vicar in accordance with Bye-laws 32 and 39 of the Constitution. 7. Fr.K.P.Issac is not challenging any order in the writ petition filed by him. He only wants the status quo prevailing in the church pursuant to Ext.P5 order to be maintained. As per the report of the Advocate W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 12 Commissioner which is produced as Ext.P1 in the writ petition it is stated that Fr.Mathew Jacob was the priest representing the B Party and from whom the Commissioner collected the list of the eligible voters for the B Party. The arrangement which was in vogue as on 7.4.08 was that on Sundays Fr.K.P.Issac would function as the priest for the A Party during the services in the church between 7 and 9 a.m. and Fr.Mathew Jacob Puthussery would function as the priest for the B Party for the services between 9.30 and 11.30 a.m. The same was the arrangement for the annual festival in the church called Perunnal (Consecration day). Fr.K.P.Issac prays for the above status quo to be maintained. 8. With regard to the contention raised by P.A.Baby that it was not the newly elected Managing Committee which was entitled to move the Revenue Divisional Officer for possession of the church and its properties but it was W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 13 the Kaikaran along with the Vicar who were entitled to have joint possession of the assets of the church, the judgment dated 9.12.99 in O.S.No.182 of 1977 of the Church Court, specifically says that the newly elected Managing committee is entitled to move the Revenue Divisional Officer for the possession of the properties of the church and till the newly elected committee takes over the administration of the church the status quo as on that date will continue. The said decision has become final. The Sub Divisional Magistrate was only implementing the said direction of the civil court which cannot be taken exception to by P.A.Baby or any member of the Patriarch Group. 9. Another objection raised by P.A.Baby was that Fr.K.P.Issac, not being a member of the Managing Committee, was not entitled to be delegated as a nominee of the Managing Committee for the purpose of the keys of the church being handed over to him. The fallacy behind W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 14 the said contention is the wrong assumption that Fr.K.P.Issac who is admittedly the vicar of the church was a stranger to the Managing Committee. Bye-law 26 of the Constitution reads as follows:- “The Vicar shall be the President of the Parish Managing Committee; other priests, if any, shall be the Vice-presidents. The Kaikaran and the Secretary for the current year and the outgoing Kaikaran of the previous year shall be members of the Parish Managing Committee.” If there are other priests, they can only be Assistants to the Vicar. Bye-law 38 of the Constitution reads as follows:- “ There shall be a Vicar for every Parish Church; other priests, if any, shall be assistants to the Vicar.” 10. As for the tenure of the Vicar, bye-law 40 of the Constitution reads as follows:- W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 15 “ The Diocesan Metropolitan has authority to appoint, remove or transfer the Vicar and other priests. When the Vicar is so removed or transferred his stewardship will also terminate.” 11. The Vicar, thus holds office as such during the pleasure of the Metropolitan. As per bye-law 26 of the Constitution, Fr.K.P.Issac, by virtue of his office as the Vicar, is the President of the Managing Committee. He was, therefore, rightly authorised by the elected members of the Managing Committee to receive the keys. The objection raised by P.A.Baby who was elected as the Kaikaran (Lay-steward) is that by virtue of bye-laws 32 and 39 of the Constitution he alone could be authorised along with Vicar to receive the keys. Bye-laws 32 and 39 read as follows:- W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 16 32 :- Every Parish Church shall have a Kaikaran who shall be the joint-steward along with the Vicar of all the assets of the Parish Church. When the Kaikaran goes out of office his stewardship will also terminate. The Parish Assembly may, if found necessary, elect not more than two Kaikarans with joint responsibility. In all legal proceedings on behalf of the Parish Church it shall be sufficient if the lay- steward is made party. (If there-be two kaikarans for a Parish Church, any reference to one Kaikaran in this Constitution shall be deemed to apply to both the Kaikarans) 39:- The Vicar shall be joint-steward with the Kaikaran of the assets of the Parish. The monies of the Parish shall be deposited in the joint names of the Vicar and the Kaikaran or in the name of any one of them with the consent of each other. But the Kaikaran may retain with him an amount as fixed by the Parish Managing Committee. W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 17 12. Kaikaran who is a lay-steward is only a joint trustee along with the Vicar. Bye-law 35 of the Constitution lays down the duties of the Kaikaran and the said Bye-law reads as follows: The duties of the Kaikaran shall include recording and maintaining correct accounts of the Parish; receiving the income and making the expenditure of the Parish according to the direction of the Parish Assembly and the Parish Managing Committee; preparing the half yearly accounts of the Parish every six months and presenting the same to the Parish Managing Committee; preparing the yearly accounts of the Parish at the year end and presenting the same to the Parish Managing Committee; preparing the yearly accounts of the Parish at the year end and presenting the same to the Parish Managing Committee and thereafter presenting the same to the Parish Assembly. When the Diocesan Metropolitan comes to the Church on his Parish visit the account books of the Parish shall be got signed by him. W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 18 13. Thus the independent duties of the Kaikaran does not include keeping possession of the assets of the church by himself. Both the Civil Court in its judgment dated 9.12.1999 in O.S.No.182 of 1977 as well as the Sub Divisional Magistrate as per his order dated 19.11.2003 had permitted the newly elected Manging Committee to take possession of the Church and its properties. As per the order dated 19.11.2003 of the Sub Divisional Magistrate, keys of the church are to be handed over either to all the members of the newly elected Managing Committee or to a member among them as authorised by the Managing Committee by means of a unanimous or majority decision. There is no dispute that the decision authorising Fr.K.P.Issac to receive the keys of the church was taken by 11 out of 12 members of the Managing Committee. In view of the provisions of the Constitution already adverted to, W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 19 Fr.K.P.Issac being the President of the Managing Committee is a member of the Managing Committee who can be authorised to receive the keys. If so, the authorisation given by the Managing committee in favour of Fr.K.P.Issac to take delivery of the keys of the church from the Receiver namely Village Officer, Elanad cannot be taken exception to merely because P.A.Baby was the lone dissenter. There is no dispute that the decision in the Judgment dated 18.8.99 passed by the Civil Court was virtually a consent order and the finding of the Civil Court that the newly elected Managing committee is entitled to move the Revenue Divisional Officer for the possession of the church has become final as between the parties. The said finding is in no way inconsistent with the provisions of the Constitution of the Malankara Orthodox Syrian Churches. W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 20 14. On 15.3.1982, this Court as per Ext.R3(a) order passed in CMP No.25510 of 1981 in CMA No.96/1980 held that the priests of both factions can conduct the services in the church on Sundays. From 2000 onwards Fr.K.P.Issac and Fr.Mathew Jacob were recognised as the priests of A and B Parties respectively and those priests were entitled to conduct the holy services in the church. If the annual 'Perunnal' (consecration day) happened to fall on a day other than a Sunday, the parties were moving the Sub Divisional Magistrate for allotment of timings and timings used to be given to both factions. On 8.4.08 both the said priests moved the Sub Divisional Magistrate for conducting the holy mass for the Perunnal on two days. The Elanad Village Officer also had no objection to the said course. Ext.P4 is the report dated 9.4.08 of the Village Officer, Elanad in that behalf. As per Ext.P5 order dated 19.4.2008 the Revenue Divisional Officer allotted two different time W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 21 slots for the A & B Parties for conducting prayers in the church on two different dates for the Perunnal. Subsequently, it was on a complaint by P.A.Baby that the Sub Divisional Magistrate, passed an order on 21.4.08 allowing the annual festival to be conducted on the same date instead of on two dates. The Orthodox faction has a grievance that on the motion of P.A.Baby, the Sub Divisional Magistrate has been passing orders without hearing the A Party. On 23.4.08, Fr.Mathew Jacob filed Crl.R.P.No.32 of 2008 before the Sessions Court, Thrissur assailing the said order dated 21.4.2008. The said revision is pending. On 23.4.08, the Sub Divisional Magistrate passed another order holding that one Fr.James David Arimboor shall conduct the services in the church for the Perunnal on behalf of the B Party instead of Fr.Mathew Jacob. This was on account of the fact that Fr.Mathew Jacob had crossed over to the orthodox faction. Fr.Mathew Jacob filed Crl.R.P.No.35/2008 W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 22 before the Sessions Court, Thrissur and obtained a stay of operation of the order. On 26.4.08, the Sub Divisional Magistrate passed Ext.P6 order permitting Fr.James David, Arimboor to conduct services for the B party on all Sundays. That order is also challenged by Fr.Mathew Jacob before the Sub Court, Thrissur by filing Crl.R.P.No.35 of 2008 and the Sub Court has stayed Ext.P6 order. It was to get the status quo as obtained pursuant to Ext.P5 order dated 19.4.2008 restored that Fr.K.P.Issac filed W.P.C.No.14484 of 2008. 15. It was since Fr.Mathew Jacob is alleged to have changed his loyalties to the Orthodox Group that the Sub Divisional Magistrate directed that Fr.James Davis Arimboor shall conduct the service on all Sundays and on consecration day for and on behalf of the B party. The A Party cannot insist that Fr.Mathew Jacob alone should conduct service for the B party in that church. That is W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 23 essentially a matter for the B party to decide. But if the Sessions Court, Thrissur has stayed the orders of the Sub Divisional Magistrate permitting Fr.James David Arimboor to conduct the services on behalf of the B Party, then Fr.Mathew Jacob alone can be permitted to conduct the services on behalf of the B Party but subject to the final orders to be passed in the revisions pending before the Sessions Court, Thrissur. By a huge majority of 11:1, the Managing Committee had authorised Fr.K.P.Issac to be the person entitled to receive the keys of the Church from the Village Officer, Elanad. Since, by virtue of the Constitution of the church Fr.K.P.Issac is deemed to be the President of the Managing Committee, the objection that he is a stranger to the Managing Committee cannot be countenanced. The direction by the Sub Divisional Magistrate that the Managing Committee members together or any one of them as nominated by them W.P.(c).No. 14484 of 2008 & Crl.R.P.No.3078 of 2003 24 unanimously or by majority can move the Village Officer for getting custody of the Church and its properties, is in accord with the verdict of the civil court which has become final. So, Crl.R.P. filed by P.A.Baby is liable to be dismissed and I do so. W.P.(c) No.14484 of 2008 shall stand allowed