IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 OP(C).No. 2547 of 2011(O) ----------------------- CMA.5/2011 AND CMA.6/2011 OF SUB COURT, THIRUVALLA ............. PETITIONER / PLAINTIFF : ---------------------------------------- JOHN SAMUEL, S/O.LATE G. SAMUEL, FLAT NO.128/BLOCK V, EMS NAGAR, PATTOOR, THIRUVANANTHAPURAM - 695 035. BY ADVS. SRI.S.SREEKUMAR, SENIOR ADVOCATE SRI. P. MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.ANEESH JAMES RESPONDENTS / DEFENDANTS : ----------------------------------------------- 1. MALANKARA MARTHOMA SYRIAN CHURCH (SABHA) HAVING ITS QUARTERS AT SCS COMPLEX, THIRUVALLA REPRESENTED BY ITS METROPOLITAN MOST REV.DR.JOSEPH MARTHOMA, PIN - 689 101. 2. THE MOST REV.DR.JOSEPH MARTHOMA, METROPOLITAN, PULATHEEN, THIRUVALLA, PIN - 689 101. 3. EPISCOPAL SYNOD OF MALANKARA MARTHOMA SYRIAN CHURCH, REPRESENTED BY ITS CHAIRMAN & CONVENER MOST REV.DR.JOSEPH MARTHOMA METROPOLITAN, PULATHEEN, THIRUVALLA, PIN - 689 101. 4. SABHA COUNCIL OF MALANKARA MARTHOMA SYRIAN CHURCH, REPRESENTED BY ITS CHAIRMAN, THE MOST REV.DR.JOSEPH MARTHOMA METROPOLITAN, PULATHEEN, THIRUVALLA, PIN - 689 101. 5. SABHA PRATHINIDHI MANDALAM, (FOR 2008 - 2011) OF MALANKARA MARTHOMA SYRIAN CHURCH, REPRESENTED BY ITS PRESIDENT, THE MOST REV.DR.JOSEPH MARTHOMA METROPOLITAN, PULATHEEN, THIRUVALLA, PIN - 689 101. ...2/- OP(C).No. 2547 of 2011(O) -2- 6. THE EPISCOPAL NOMINATION BOARD (CONSTITUTED DURING FEBRUARY 2010) MALANKARA MARTHOMA SYRIAN CHURCH, REPRESENTED BY ITS PRESIDENT, THE MOST REV.DR.JOSEPH MARTHOMA METROPOLITAN, PULATHEEN, THIRUVALLA, PIN - 689 101. 7. REV.K.S.MATHEW, SABHA SECRETARY, MALANKARA MARTHOMA SYRIAN CHURCH, OFFICE OF THE MARTHOMA SABHA OFFICE, SCS COMPLEX, THIRUVALLA, PIN - 689 101. 8. REV.VARGHESE MATHAI, VICAR, EBENEZER MARTHOMA CHURCH, OTHARA EAST P.O., ERAVIPEROOR, PATHANAMTHITTA DISTRICT, PIN - 689 542. 9. REV.OOMMEN GEORGE, VICAR, IMMANUEL MARTHOMA CHURCH, CHIRAYIRAMPU P.O., PATHANAMTHITTA DISTRICT, PIN - 689 102. 10. REV.K.V.VARKEY, VICAR, EBANEZER MARTHOMA CHURCH, KAVUMBHAGAM P.O., THIRUVALLA, PIN - 689 102. R1 TO R7 BY ADVS. SRI.CHACKO GEORGE, SENIOR ADVOCATE SRI.H.RAMANAN SRI.ALEX N.MATHEW (KOLLAM) SRI.JAMES JOSE R8 TO R10 BY ADVS. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- OP(C).No. 2547 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF PLAINT IN O.S.NO. 204/11 OF MUNSIFF COURT THIRUVALLA. EXT.P2 : COPY OF COUNTER AFFIDAVIT IN I.A.NO. 1437/11 IN O.S. NO. 204/11 FILED BY THE DEFENDANTS 1 TO 7 BEFORE THE MUNSIFF COURT, THIRUVALLA. EXT.P3 : COPY OF INJUNCTION ORDER IN I.A NO. 1437/11 IN O.S. NO. 204/11 DATED 07-06-2011 BEFORE THE MUNSIFF'S COURT, THIRUVALLA. EXT.P4 : COPY OF APPEAL MEMORANDUM IN C.M.A. 5/11 FILED BY DEFENDANTS 8 TO 10 BEFORE THE SUB COURT, THIRUVALLA. EXT.P5 : COPY OF APPEAL MEMORANDUM IN C.M.A. 6/11 FILED BY DEFENDANTS 1 TO 7 BEFORE THE SUB COURT, THIRUVALLA. EXT.P6 : COPY OF RELEVANT PORTION OF THE CONSTITUTION CONTAINING CLAUSE 14 TO 36. EXT.P7 : COPY OF COMMON ORER DATED 28-07-2011 IN C.M.A. NOS. 5/11 AND 5/11 OF THE SUB COURT, THIRUVALLA. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2547 of 2011 -------------------------------------- Dated this the 11th day of August, 2011. JUDGMENT The challenge is to the election of a priest of the Marthoma Church to the post of Episcopate. The election to the three posts of Episcopas was held on March 8, 2011. It is not disputed that respondents 8 and 9, having secured the minimum of 75% of the votes of the clergy and laity reckoned separately, were declared elected as Episcopas on the said day. The election was continued on March 9, 2011 with the 10th respondent alone in the fray. Though, he had failed to secure the minimum required percentage of votes on the previous day, on March 9, 2011 he also secured the minimum required percentage of the votes of the clergy and laity reckoned separately. Thereon the President of the Electoral College (Prathinidhi Mandalam) declared 10th respondent also elected as Episcopa. The Church has scheduled consecration of respondents 8 to 10 as Episcopas to be held on August 13, 2011. In the meantime, a member of the Marthoma Church representing the community filed O.S.No.204 of 2011 before learned Munsiff, Thiruvalla (I am told that the suit was originally filed in the vacation court – District Court, Pathanamthitta and later made over to the court of learned Munsiff, Thiruvalla). He also obtained leave of the court under Order 1 Rule 8 of the Code of Civil Procedure (for short, “the Code”) to represent similarly interested persons of the community. He filed I.A.No.1437 of 2011 for an order of temporary injunction to restrain respondents 1 to 7 from ordaining OP(C) No.2547/2011 2 the 10th respondent as Episcopa. Learned Munsiff gave notice to respondents 1 to 7 and after hearing them and the petitioner passed an order of injunction restraining respondents 1 to 7 from ordaining the 10th respondent as Episcopa. Respondents 1 to 7 challenged that order before the learned Sub Judge, Thiruvalla in C.M.A.No.6 of 2011 while respondents 8 to 10 jointly challenged the order in C.M.A.No.5 of 2011. Learned counsel for respondents 1 to 10 contended, inter alia, that though the 10th respondent is the person affected by the order of injunction he was not given notice on I.A.No.1437 of 2011. Learned Sub Judge heard C.M.A.Nos.5 and 6 of 2011 and by Ext.P7, judgment set aside the order of learned Munsiff on I.A.No.1437 of 2011. That judgment is under challenge in this Original Petition under Article 227 of the Constitution of India. 2. Learned Senior Advocate, Shri S. Sreekumar appearing for petitioner/plaintiff contends that the interpretation of Secs. 33 and 34 of the Constitution of the Church – for short, “the Constitution” (marked Ext.P6) is thoroughly wrong and, that learned Sub Judge was not correct in interfering with the order of learned Munsiff. It is contended that learned Sub Judge was wrong in interpreting Sec.34 of Ext.P6, Constitution as covering the entire paragraphs of Sec.33 of the Constitution. According to the petitioner, Sec.34 of the Constitution applied only when the process of elimination was resorted, to make nominated candidates equal to that of the required candidates for the post of Episcopas. It is contended that if the nominated candidates who are put to OP(C) No.2547/2011 3 election do not exceed the required candidates, Sub-clause (1) of Sec.33 applied. In that event, the candidates who secured not less than 75% of the votes of the clergy and laity reckoned separately are to be declared elected. According to the petitioner, in the circumstances, respondents 8 and 9 who secured minimum percentage of 75% of the votes of the clergy and laity reckoned separately in the election held on March 8, 2011 alone are to be elected to the post of Episcopas. It is also contended that the Constitution does not provide for a continuation or fresh election on the adjourned day except in cases where it involved process of elimination as provided in Sec.33 of the Constitution. Learned Senior Advocate for petitioner has pointed out from paragraph 32.2 of the counter affidavit filed by respondents 1 to 7 before the learned Munsiff that what was held on March 9, 2011 was “a de nova electoral proceeding with respect to 10th defendant alone” . It is argued that the Constitution does not contemplate a de nova election on the adjourned day as held in the present case. It is also argued that if the election held on March 9, 2011 is to be treated as a de nova election, the entire procedure provided in Chapter - III of the Constitution beginning from Sec.14 ought to have been resorted by respondents 1 to 7. It is argued that for the said reason also, election held on March 9, 2011 is illegal being against the provisions of the Constitution and hence, learned Sub Judge was not correct in upsetting the order passed by learned Munsiff. 3. Learned Senior Advocate, Shri Chacko George for respondents 1 to 7 in response, contended that Sec.34 of the Constitution covers not only the OP(C) No.2547/2011 4 process of elimination alone provided in Sec.33 of the Constitution. Sec.34 covered the entire paragraphs of Sec.33. It is contended that the process of election is referred to in Sec.33 of the Constitution and in case the required number of candidates is not obtained by the process of election on the first day, Secs.33 and 34 of the Constitution provided continuance of the election on the adjourned day also but, if on that day also the required number of candidates are not got elected by obtaining the minimum percentage of votes as aforesaid, necessarily the process will have to be repeated again as prescribed under Chapter – III of the Constitution. It is contended by learned Senior Advocate that in the history of Marthoma Church, be it under the earlier Constitution or under the present Constitution (Ext.P6), there were seven elections to the post of Episcopas and, except in the year 1980 when as against the sanctioned strength of two Episcopas there was only one nomination, in all other elections the sanctioned strength of Episcopas were elected and that procedure was not challenged as well. It is contended that the expression “de nova electoral proceeding” referred to in paragraph 32.2 of the counter affidavit filed by respondents 1 to 7 before the learned Munsiff only meant that election was continued on March 9, 2011 from the stage it was stopped on the evening of March 8, 2011. According to the learned Senior Advocate the said expression did not mean a fresh election held on March 9, 2011 complying with all the procedures stated in Chapter – III of the Constitution. 4. Learned Senior Advocate, Shri Mathews Jacob for respondents 8 to 10 supported the argument of learned Senior Advocate for respondents 1 to 7. OP(C) No.2547/2011 5 It is contended that there is no reason to interfere with the view taken by learned Sub Judge that the election of 10th respondent was proper and legal being in accordance with the provisions of Ext.P6, Constitution. 5. To understand the rival contentions it is necessary to refer to the relevant facts as also the relevant provisions of Ext.P6, Constitution. The procedure for election starts from Sec.14 of Chapter – III of the Constitution. It is not necessary for me to refer to various provisions of Sec.14 onwards since it is not disputed that in the present case the sanctioned strength of Episcopas was only three and the Nomination Board nominated only three persons – respondents 8 to 10 to face the election, to ascertain whether they enjoyed the mandate of the electorate in that, they could obtain the minimum required 75% of the votes of the clergy and laity, reckoned separately. Sec.25 of the Constitution states that the President of the meeting shall be the Returning Officer and that one or more Ministers and lay persons other than the nominees appointed by him, shall be the Polling Officers. Sec.27 refers to the oath which the President is to administer to the members of the Electoral College. In short, the oath which the members of the Electoral College are to take is that they shall not exercise their franchise, influenced by fear, favour or self-interest and that guided by considerations of the glory of God, the best interests of the Holy Church and the benefit of the people of God, they shall vote only for such persons as of whom they conscientiously are convinced that by good character, proper conduct and right doctrines, they are fit for the sacred office of ‘Episcopa’. Sec.28 states that no member (of the Electoral College) arriving after oath OP(C) No.2547/2011 6 shall have the right to be admitted or be allowed to vote. Sec.33 deals with the voting. The said provisions states that those (candidates or nominees as the case may be) who have secured minimum of 75% votes of the clergy and laity reckoned separately will alone stand elected to the Episcopate and the President shall declare the result accordingly. 6. The second paragraph of the said Section states that if there are more nominees than the requisite number, all the names shall be put to vote in the first instance and the names polling the least number of votes of clergy and laity reckoned separately shall be removed from the list and that process shall be repeated until the number of remaining candidates becomes reduced to the required number. If however the original number or the balance number remaining, at any time during the electoral process happens to be in excess of the requisite number by only one, then and in that event the name of the person who has polled the lowest aggregate number of votes of the clergy and laity put together shall alone be eliminated. Paragraph 3 of Sec.33 states that when the number of candidates has been reduced to the required number by the process set forth (as referred to in paragraph 2 of Sec.33 of the Constitution stated above) those names will again be put to vote and those who secure not less than 75% of the votes of the clergy and laity separately will be declared elected by the President. Paragraph 4 of Sec.33 states that if at any stage of the electoral proceeding, one or more candidates secure not less than 75% votes of both the clergy and laity, separately, the President shall declare him/them to be duly elected and the proceeding shall be continued, only for the remaining OP(C) No.2547/2011 7 places. The last paragraph of Sec.33 states that if necessary the meeting may be adjourned to the next day and the aforementioned electoral process may be continued. 7. Now comes to Sec.34 of the Constitution which states that when the required number of names alone are put to vote, as per the procedure prescribed in Sec.33 if sufficient number of candidates do not secure the required minimum percentage of votes, the President shall adjourn the meeting to the next day and conduct polling over again for the remaining places. If the required percentage of votes is not secured by the number of candidates in this process also the President shall declare the names of those who have secured the required percentage of votes and thereupon dissolve the meeting. 8. Secs.33 and 34 of the Constitution learned Senior Advocate for petitioner contends, refer to situations where the process of elimination is to continue on the second day of election also and as learned Senior Advocate for respondents 1 to 7 supported by learned Senior Advocate for respondents 8 to 10 contend, Sec.34 takes the entire gamut of Sec.33 of the Constitution. 9. In the present case, three posts were sanctioned to the Episcopate under Sec.14 of the Constitution. Only three persons namely, respondents 8 to 10 were nominated for the said posts. In otherwords, the process of elimination which is required only when the nominations exceeded the sanctioned strength of the Episcopas did not arise. Three nominees faced the electorate on March 8, 2011. Of them, respondents 8 and 9 secured the minimum required 75% of the votes of clergy and laity, reckoned separately on OP(C) No.2547/2011 8 the first day of election, itself. But, the votes secured by 10th respondent fell short of the minimum required 75%. That is, after the first day of election one more post of Episcopa remained to be filled. Thereon, the President of the Electoral College adjourned the election to March 9, 2011. On that day, the only candidate/nominee who was in the fray was the 10th respondent. He secured the minimum percentage of votes of clergy and laity reckoned separately on March 9, 2011. On March 8, 2011 the total votes of laity polled was 755 while that of the clergy was 398. On March 9, 2011 the number of voters of laity and clergy were 644 and 388, respectively. 10. Learned Senior Advocate for petitioner has an argument that as provided in Sec.27 of the Constitution, the members of the Electoral College were to take oath as aforesaid that they will exercise their franchise uninfluenced by fear, favour or self-interest and taking into account the interest of the Holy Church and the benefit of the people of God. It is argued that if on March 8, 2011, 10th respondent was not able to get the minimum required percentage of votes from the Electoral College who had taken vow as stated in Sec.27 of the Constitution as the 10th respondent, according to the Electoral College was not qualified to be an Episcopa how was it possible for them to elect 10th respondent on March 9, 2011? According to the learned Senior Advocate, that indicated that except in cases where the process of elimination is involved, Sec.34 was not to apply. It is pointed out by learned Senior Advocate from the common judgment of this Court in R.S.A.No.614 of 2008 and cross objection that this Court has taken the view the object of the election and requirement of OP(C) No.2547/2011 9 Sec.33 of the Constitution is not to elect a candidate getting a simple majority of votes in which case emphasis would have been for “votes” secured and not on the number of persons who exercised their franchise, but to ensure that only fit candidates possessing the required qualification is ordained as Bishop. Otherwise if the number of posts were two, and the candidates selected to stand the election were also only two, there was no necessity to conduct an election. The objective of Sec.33 is that only such of the candidates who in the estimation of atleast 75% of the clergy and laity who took part in the election possessed the quality insisted for a Bishop is elected to that post. Emphasis therefore, should be given not to the expression ”vote” but to the participants in the election. 11. The said observations were made in a situation where one of the nominees who faced election did not get the minimum of votes when the entire ballot papers including unmarked votes put in the ballot box was taken into account. This Court on a consideration of the relevant provisions came to the conclusion that the percentage of votes to be taken under Sec.33 is not of valid votes alone but, of the entire votes found in the ballot box. 12. But if the Constitution provides that in case the sanctioned strength is not filled the election could be adjourned to the succeeding day, then, I think the argument advanced by learned Senior Advocate based on the oath administered under Sec.27 of the Constitution cannot hold good. This Court is not required to sit in appeal over the wisdom of the Electoral College or decide on the quality of the decision taken on the second day of election. OP(C) No.2547/2011 10 13. The prime question that requires decision is whether except in cases where process of elimination is involved, it was within the power of the President of the Electoral College to adjourn the election to be continued on March 9, 2011. I have been taken through the Malayalam and English versions of the Constitution, in particular Secs.33 and 34 of the Constitution which I have referred above. Though, it is argued that the first paragraph of Sec.33 of the Constitution would operate as a proviso as Sec.32, having gone through the relevant provisions I find myself unable to give my assent to that the argument. For, Sec.32 of the Constitution deals with the procedure for voting. The said provision also says that if the said procedure (of election, counting and declaration of result) cannot be completed by 6 p.m. on the same day, the President shall have the power to defer the balance proceeding to the next day. On the otherhand the first paragraph of Sec.33 of the Constitution deals with the minimum percentage of votes required to declare the nominee/candidate elected to Episcopate. The second paragraph of Sec.33 deals with the process of elimination when the number of nominees exceed the sanctioned strength of the Episcopas. Paragraph 3 of Sec.33 states that when the number of candidates is reduced to the required number, those names (ie. equivalent to the sanctioned post of Episcopas) shall be put to vote and those who secured not less than 75% of the votes of clergy and laity reckoned separately shall be declared elected. The fourth paragraph states that if at any stage of the electoral proceeding one or more candidates secure not less than 75% votes of both the clergy and laity separately reckoned, the President is to declare OP(C) No.2547/2011 11 him/them elected as Episcopas and, the proceeding shall be continued “only for the remaining places”. In otherwords, even in the process of elimination one or more candidates who secured 75% of votes as above stated alone is/are to be declared elected and the process of elimination or election as the case may be is to continue with respect to the remaining places. For that purpose the President is authorized by the last paragraph of Sec.33 of the Constitution to adjourn the meeting to the next day and the same electoral process is to be continued., Reading the various paragraphs of Sec.33, Prima facie I am unable to accept the argument advanced by learned Senior Advocate that first paragraph of Sec.33 of the Constitution must be read as proviso to Sec.32 of the Constitution and that only in the case of elimination process, the election could be adjourned to the succeeding day s the last paragraph of Sec.33 say. 14. Respondents 8 and 9 were elected in the election held on March 8, 2011. One post remained to be filled. Hence the election was adjourned to March 9, 2011. The procedure of election held on March 9, 2011 is taken care of by paragraphs 3, 4 and 5 of Sec.33 as also Sec.34 of the Constitution. 15. In paragraph 32.2 of the counter affidavit of respondents 1 to 7 filed in the trial court, it is contended that “de nova electoral proceeding with respect to 10th defendant” was held on March 9, 2011. Having regard to the relevant facts and circumstances of the case which I have stated above, prima facie I am unable to understand the said expression as meaning, giving stoppage to the election process by the evening of March 8, 2011 and a fresh election process started commencing from Sec.14 of the Constitution onwards OP(C) No.2547/2011 12 on March 9, 2011. It is also not appropriate to cull out a particular expression alone from the counter affidavit of respondents 1 to 7. 16. Having heard learned Senior Advocates on both sides and gone through the relevant provisions of the Constitution and the judgment of learned Sub Judge I do no find reason to interfere with the prima facie finding entered by the learned Sub Judge as to interpretation of Secs.33 and 34 of the Constitution. In that view of the matter learned Sub Judge was right in interfering with the order of learned Munsiff and dismissing I.A.No.1437 of 2011 in O.S.No.204 of 2011. But I make it clear that the trial Judge shall not be influenced by the observations or findings contained either in the judgment of learned Sub Judge or in this judgment in deciding the disputed questions at the stage of trial. The observations/findings above referred will be confined to the disposal of I.A.No.1437 of 2011 With the above observations, this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks