IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 WP(C).No. 29553 of 2008(R) -------------------------- PETITIONER: --------------- SR.JESSY, MOTHER SUPERIOR, LITTLE FLOWER CONVENT, NARAKKAL. BY ADV. SRI.T.M.ABDUL LATIFF SRI.A.MUHAMMED HASHIM RESPONDENTS: --------------- 1. COMMISSIONER OF POLICE, COCHIN CITY, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, NARAKKAL 3. VICAR, ST.MARY'S CHURCH, NARAKKAL. 4. PAUL MULAVARIKKAL, MULAVARIKKAL HOUSE, NARAKKAL (TRUESTEE OF ST.MARY'S CHURCH). 5. BABU ANTONY, MADATHIPARAMBIL HOUSE, NARAKKAL. (TRUSTEE OF ST.MARY'S CHURCH). 6. MARY TREESA K.T., MAMPILLY HOUSE, NARAKKAL. 7. VARKEYCHAN MENACHERRY, ANNS OPTICALS, NARAKKAL. (EX-TRUSTEE OF ST.MARY'S CHURCH). ADV. SRI.V.A.MUHAMMED FOR R3-7 SRI.K.E.HAMZA FOR R3-7 GOVERNMENT PLEADER, SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29553/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE RELEVANT PAGE OF THE THANDAPER REGISTER EXT.P2: COPY OF THE TAX RECEIPT NO.3976334 DT.17.4.2008. EXT.P3: COPY OF THE TAX RECEIPT NO.49 DT. NIL EXT.P4: COPY OF THE LETTER C.NO.4/1120 DT.21.5.1945 SUBMITTED BY MOTHER SUPERIOR BEFORE D.P.I. THRISSUR. EXT.P5: COPY OF THE PETITION 11.2.2008 SUBMITTED BY THE PETITIONR TO THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. EXT.P6: COPY OF THE PETITION DT.2.4.2008 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P7: COPY OF THE ORDER NO.K.DIS.G4-23491/71 DT.5.10.1971. EXT.P8: COPY OF THE GO.(RT) NO.4363/08/G.EDN.DT.30.9.2008. EXT.P9: COPY OF THE ORDER NO.B3-1073/08/K.DIS. DT.3.10.2008 OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. EXT.P10: COPY OF THE REPORT APPEARED IN INDIAN EXPRESS DAILY DT.5.10.2008 EXT.P11: COPY OF THE PETITION DT.5.10.2008 SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P12: COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DT.5.10.2008. EXT.P13: COPY OF THE PETITION DT.6.10.2008 SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL 8TH RESPONDENT. EXT.P14: COPY OF THE NOTICE DT.NIL PUBLISHED AT THE INSTANCE OF THE RESPONDENTS 3 TO 7. EXT.P14: COPY OF REPORT APPEARING IN INDIAN EXPRESS DAILY DT.13.10.2008. W.P.(C) NO.29553/2008 EXT.P15: COY OF SALE DEED DT.29 DHAU 1101(ME) EXT.P16: COPY OF SALE DEED DT.5TH DHAU 1101 (ME) EXT.P17: COPY OF THE LETTER SUBMITTED BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION DT.NIL RESPONDENT'S EXTS: EXT.R3(a): COPY OF THE CONSTITUTION OF THE CORPORATE EDUCATIONAL AGENCY, VIMALA PROVINCE. EXT.R3(b): COPY OF THE CONSTITUTION OF THE CORPORATE EDUCATIONAL AGENCY. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- W.P.(C) No. 29553 OF 2008 ---------------------------------------- Dated this the 3rd day of November, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner is the Mother Superior of Little Flower Convent, Njarakkal. She submits, the Little Flower Girls High School, Njarakkal was established by the petitioner's Convent in 1945. Sanction for the same was granted by the Director of Public Instructions of Kochi State as per the order dated 15.3.1945. The land in which the buildings housing the school are situated belongs to the Convent, as per the revenue records. The petitioner submits, the Vicar of St.Mary's Church, Njarakkal was appointed as the Manager of the said school and the said arrangement continued for the last several years. Recently, it was felt that the nuns should take over the management. So, the petitioner sought approval of herself as the Manager of the school, by filing Ext.P5 application before the Deputy Director of Education. But, the said officer replied that the Regional Deputy Director of Public Instruction, Ernakulam by proceedings dated 5.10.1971 had approved the constitution of a W.P.(C) No.29553/2008 2 Corporate Educational Agency under the St. Mary's Church, Njarakkal, a copy of which is produced as Ext.P7. The Little Flower Girls High School , Njarakkal was also included among the schools managed by the said Educational Agency namely the St.Mary's Church in Ext.P7. In view of the said proceedings, the petitioner's application Ext.P5 was not entertained. So, she moved the Government, by filing Ext.P6 representation, praying to cancel Ext.P7 proceedings. The Government, after hearing both sides, passed Ext.P8 order dated 30.9.2008, cancelling Ext.P7. Based on Ext.P8, the D.E.O Ernakulam approved the petitioner as the Manager of the school as per Ext.P9 proceedings dated 3.10.2008. The petitioner assumed charge as Manager of the school on 4.10.2008 . The Vicar of St.Mary's Church wanted to hold a discussion regarding the matter. So, a meeting of the parties was held in the Parish Hall of the Church at 3.10 p.m. on 4.10.2008. Some of the parishioners present there, including some youth, wrongfully restrained the nuns who were present there. Later, the Mother General and Mother Provincial reached there from Ernakulam to rescue the sisters. Under threat and coercion they executed necessary agreements, agreeing to surrender the rights of the Convent over the school W.P.(C) No.29553/2008 3 within ten days. They agreed to get necessary papers from the petitioner demitting the office of Manager held by her. The petitioner submits, the Mother General or Mother Provincial have no right over the petitioner's Convent and its undertakings and agreements executed by them are not binding on it. The Indian Express daily dated. 5.10.2008 reported the happenings on 4.10.2008 in the Parish Hall. The same will show that threat and violence were caused against the nuns present. 2. Apart from the petitioner, 12 nuns are residing in the Convent. Now they are threatened and harassed by some young men in the locality. They are being abused in filthy language. Fearing for their safety, the petitioner preferred Ext.P11 representation before the Police Commissioner, Ernakulam. It was followed by Ext.P13 representation before the District Superintendent of Police (Rural), Aluva, who is having jurisdiction over the area. The petitioner submits, the police have not taken any effective action to protect them. Therefore, this writ petition is filed seeking the following reliefs. “(i) To call for the records relating to Exts.P1 to P12 and to issue a writ of mandamus commanding the respondents 1 and 2 and W.P.(C) No.29553/2008 4 additional 8th respondent to give sufficient police protection to the petitioner to discharge duties as Manager of Little Flower High School, Njarakkal without being subjected to any criminal acts of intimidation, assault or attack forcing the petitioner to execute documents in favour of the 3rd respondent and also to give protection to the school building and properties of the school from being subjected to any kind of attack, damage, etc. by the respondents 3 to 7 and their henchmen; ii) to issue a writ of mandamus commanding the respondents 1 and 2 and additional 8th respondent to give protection to the life of the petitioner and also to the 12 other nuns residing in the Little Flower Convent, Njarakkal to live peacefully in the said Convent without being subjected to any kind of attack to them and to the Convent and also from forcibly executing document handing over the School, its management, etc.” 3. The 3rd respondent has filed a counter affidavit disputing the right of the petitioner over the school. According to him, the order of the Government is a nullity. It has no jurisdiction to issue Ext.P8. The speed with which the D.E.O. issued consequential orders, as per Ext.P9, would show the mala fidies behind the whole exercise. The list of schools approved by the competent authority under the K.E.R. belonging to the congregation of the petitioner, does not contain the name of Little Flower Girls High School, Njarakkal. On the contrary, the W.P.(C) No.29553/2008 5 same finds a place in Ext.P7. From day one, the school was managed and controlled by St.Mary's Church and its Vicar was the Manager all along. This writ petition filed for police protection, to execute Exts.P8 and Ext.P9 is untenable, it is pointed out. The 3rd respondent also submits that a writ petition has already been filed by him before this Court, challenging Exts.P8 and P9. 4. The learned Government Pleader, upon instructions, submitted that on enquiry it was found that some of the parishioners misbehaved towards the nuns. They were called to the police station and strictly warned. If there is any apprehension regarding the personal safety of the nuns, they may inform the police. In that event, the police will take necessary action, it is submitted. 5. The petitioner has filed a reply affidavit, dealing with the averments in the counter affidavit and also produced a few more documents to support her claim. The main prayer of the petitioner is to grant her protection to function as the Manager of Little Flower Girls High School, Njarakkal. If there is any W.P.(C) No.29553/2008 6 dispute regarding the right to hold an office, the said dispute can be settled by the competent civil court. It is a settled position in law that if somebody is disputing the right of an incumbent to hold an office, the remedy of the incumbent is to move the competent civil court and seek injunction against the persons causing obstruction and not to seek police protection. See the decision of the Apex Court in Muralidharan v. Swami Dharmananda Theertha Padar [2006(2) KLT 119 (SC)] and also the decision of this Court in Sadananda Bai v. Ravi (2008 (3) KLT 542]. So, if anybody is causing physical obstruction to the functioning of the petitioner as Manager her remedy is to move the civil court and get appropriate orders. If those orders are violated, the said court can, apart from taking other coercive actions, address the police to render assistance to the petitioner to enforce its orders. 6. But, if there is any threat to the personal safety of the petitioner or other nuns when they go around for attending their other usual business, the petitioner may be justified in moving the police to protect them. For example, if they go to the Church and if somebody is causing obstruction, the nuns are fully W.P.(C) No.29553/2008 7 justified in bringing it to the notice of the police and seeking necessary assistance. In this context, we record the submission of the learned Government Pleader that if there is any threat to the lives of the petitioner or other nuns, they can approach the police and the police will take necessary action. It is ordered that if anybody is causing any threat to the lives of the petitioner or other members of her Convent, the petitioner or the person concerned can move the police. In that event, the police shall look into the same and, if the apprehension voiced is found genuine, shall take necessary action, as the occasion demands, to remove the threat. But, the police shall not interfere in the civil dispute between the parties regarding the management of the school. In other words, the petitioner shall not misuse the direction issued above, to tilt the balance in the civil dispute between her and the 3rd respondent. The writ petition is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps