IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WA.No. 1758 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23347/2008 Dated 17/06/2009 .................... APPELLANT(S): APPELLANT ----------------------- 1. KURIAN KURIAN, S/O.KURIAN KALLUVETTAMKUZHIYIL HOUSE,KEERITHODE KARA & POST KANJIKUZHI VILLAGE,IDUKKI DISTRICT. 2. SAJI VARGHESE S/O.VARGHESE,JANJIRAKKATTU HOUSE CHELACHUVADU PO, IDUKKI DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): --------------- 1. ST.GEORGE ORTHODOX SYRIAN CHURCH KATHIPPARATHADAM, CHELATHUVADU PO IDUKKI DISTRICT, PIN 685 606 REP BY ITS TRUSTEE ELIAS. 2. FR.GHEEVARGHESE VICAR,ST.GEORGE ORTHODOX SYRIAN CHURCH KATHIPPARATHADAM, CHELATHUVADU PO IDUKKI DISTRICT, PIN 685 606 3. IDUKKI KANJIKKUZHI GRAMA PANCHAYAT KANJIKKUZHI PO, IDUKKI PIN 685 602. 4. THE TAHSILDAR THODUPUZHA TALUK. 5. THE REVENUE DIV.OFFICER, IDUKKI DISTRICT. SR.GP SRI.R.LAKSHMI NARAYAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- WA NO.1758 OF 2009 -------------------------------------------------------- Dated 10th August 2009 Judgment RAMAN, J. This appeal is directed against the judgment of this court rendered by the learned Single Judge in WP(C) No.23347 of 2008 dated 17.6.2009. The appellants are the additional respondents 4 and 5 in the said Writ Petition. Respondents 1 and 2 herein filed the Writ Petition, praying to quash Exts.P7 and P9 by issuing a writ of certiorari and to direct respondents 2 and 3, who are respectively the Tahsildar, Thodupuzha and the RDO, Idukki to issue possession certificate, site plan and receipt after payment of basic tax to the petitioners. As per the judgment under appeal, the second respondent was directed to accept the basic tax. There was also a direction to issue possession certificate and site plan if the petitioners have otherwise complied with the procedure. However, the Judgment clarified that the issuance of such certificate and plan will not confer any right on the petitioners in the civil suit pending and the civil court WA 1758/09 2 shall decide the suit independently, without taking into account the same. In paragraph 6 of the judgment, it is further made clear that the question of title or possession is not considered either in favour of the petitioners or against respondents 4 and 5 and the sole consideration in passing the judgment is to enable the petitioners to construct the church for the parishioners to pray and the question regarding title has to be decided by the civil court in the civil suit. There is a further observation in the judgment that if respondents 4 and 5 have any objection in the petitioners reconstructing the church, their remedy lies in approaching the civil court in the pending suit for appropriate orders in this regard and no opinion was expressed by the learned Single Judge on merits. The appellants contend that the sole basis on which the directions have been issued as per the judgment under appeal is an earlier judgment, Ext.P3 rendered by this court and it is contended that the said judgment was the subject matter of a Writ Appeal before this court. Ext.P4 is the said judgment rendered by the Division Bench of this court. It is pointed out WA 1758/09 3 that Ext.P3 judgment was considering an order passed under S.145 of the Cr.P.C. and ultimately, there was a direction to hand over the key of the church to respondents 4 and 5 for the purpose of conducting prayers in the church. By Ext.P4 judgment, it was clarified that whatever observations made in Ext.P3 judgment will have no bearing on the issue involved in the civil suit and the findings recorded are only for the purpose of disposal of the Writ Petition. Therefore, it is contended that the judgment in Ext.P3 will not come to the aid of the petitioners to seek any relief in the matter of construction of any new church. Incidentally, it is pointed out that the church building was demolished or collapsed. According to the appellants, it was demolished and according to the respondents, it collapsed due to old age. We need not go into this question for disposal of the appeal. Heard both sides. As per the judgment under appeal, the learned Single Judge has only directed the Tahsildar to issue a possession certificate and to accept tax. There is already an observation that if respondents 4 and 5 have got any objection in WA 1758/09 4 the matter of reconstruction of the church, it is open to them to approach the civil court and the right of the parties will be decided there. Therefore, based on such issuance of possession certificate and remittance of tax, whether in furtherance thereof, any construction has to be made or not, has not been decided by the learned Single Judge. It is pointed out that in OS No.30/08, pending before the First Additional District Court, Ernakulam, the appellants have already preferred an interlocutory application, IA No.5163/09, seeking necessary interim reliefs in this regard. If that be so, the civil court will hear and dispose of the said IA in accordance with law after hearing both sides as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. It is clarified that in the light of the very observations contained in the operative portion of the judgment under appeal and in view of the judgment referred in Ext.P4, there is no doubt that the possession and title are matters to be decided by the civil court. We further make it clear that the observations made in this judgment or the judgment under appeal will not prejudicially WA 1758/09 5 affect the right of other parties and the civil court will decide the issue untrammelled by any such observations. The Writ Appeal is disposed of as above. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta WA 1758/09 6