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2024 DIGILAW 1140 (KER)

Markose v. Rev. Fr. Tijo Kuriakose

2024-09-06

A.MUHAMED MUSTAQUE, S.MANU

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JUDGMENT : A. Muhamed Mustaque, A.C.J. 1. This appeal was filed by the contesting respondent in a Writ Petition filed for police protection. A church dispute led to the filing of the Writ Petition. The Writ Petition was filed by Vicars and Parishoners of the St. Thomas Orthodox Syrian Church, Mazhuvannoor. They claim right to administer the church in the light of the judgment of the Apex Court in K.S. Varghese v. St. Peter’s & Paul’s Syrian Orthodox Church & Ors. 2017 (3) KLT 261 (SC) : (2017) 15 SCC 333 . Learned Single Judge granted police protection noting that there exists a law and order issue and in order to administer the church, police protection is required. 2. This is a typical police protection remedy sought before this court in the light of the judgment in K.S. Varghese’s case (supra). We had dismissed another challenge against the same judgment in W.A. 552/2024 (Ed. Note: Please See 2024 (5) KLT 359 , Fr. Eldhose Molekudiyil v. Rev. Fr. Tijo Kuriakose). There may not be much issue with regard to existence of vitiating element to disrupt normal order required to be maintained in the church. 3. Learned Senior Counsel appearing for the appellant raised a legal challenge as to the maintainability of the Writ Petition on the ground that the remedy available to the party is to execute the decree rather than approaching this court in Writ Jurisdiction. 4. A single Judge (one of us, Justice A. Muhamed Mustaque) in Marthoman Church, Mulanthuruthy & Ors. v. State of Kerala & Ors. 2020 (3) KLT 231 : 2020 (3) KHC 448 in paragraphs 10 and 11 held as follows: “10. The rule of law is not just about the Government. It requires also that citizen should respect and comply with legal norms even if they disagree with them. When there is a dispute and, the conflict is resolved by judicial decision, the rule of law demands respect to the judicial decision. The Hon’ble Supreme Court judgment in K.S. Varghese case (supra) put an end to the whole controversy regarding the dispute. The resistance made before the District Court as against passing the supplementary decree shows that the Patriarch faction is not prepared to give up. The resistance has become a law and order issue. The Hon’ble Supreme Court judgment in K.S. Varghese case (supra) put an end to the whole controversy regarding the dispute. The resistance made before the District Court as against passing the supplementary decree shows that the Patriarch faction is not prepared to give up. The resistance has become a law and order issue. There appears to be a patronised resistance in regard to many churches as revealed from many writ petitions filed before this Court. Whether the judgment of the Hon’ble Supreme Court can be enforced through a Civil Court or not, becomes an academic question when issues boil upto such levels beyond the manageable stands of the Civil Court. The power and authority of the Civil Court to enforce the decree would exist when something remains as executable. On the declaration of law by the Supreme Court, what is expected from the Patriarch faction is its obedience of the Hon’ble Supreme Court judgment to uphold the rule of law. When the stream of law is attempted to be diverted by repeated disobedience resulting in a law and order situation, the Constitutional Court can alone render justice. There is a subtle difference between the implementation and the enforcement. Implementation is in the nature of execution which normally, the Civil Court resolves to implement its decree or order. Enforcement has different facets which take in the implementation by preventive or coercive actions or maintaining the law and order through the force of law. 11. Law and order is a matter of governance. The Civil Court has no role in itself to interfere or supervise the matter of governance. The Civil Court has only limited jurisdiction and power. It can order police assistance as an aid to execute the decree. When nothing remains as executable, the executing power of the Civil Court cannot be invoked for the police protection alone. The Constitutional Courts are not only the Courts of arbiter resolving disputes but also Courts protecting rights guaranteed to the citizen. The Constitutional Courts have a duty to maintain and uphold the rule of law. When there is a challenge to the rule of law by a citizen who is bound to obey the same, the Court can step in by invoking its power of mandamus. The Court has to consider whether any effective measures are available otherwise. The Constitutional Courts have a duty to maintain and uphold the rule of law. When there is a challenge to the rule of law by a citizen who is bound to obey the same, the Court can step in by invoking its power of mandamus. The Court has to consider whether any effective measures are available otherwise. If there are no other measures, this Court has to invoke its power of writ for the reasons of justice.” 5. We note, this is a matter, which cannot be executed through a civil court. The issue highlighted in all these cases is with regard to law and order. Though rights of the writ petitioner rest in the judgment of the Apex Court in K.S. Varghese’s case (supra), what is sought before the court in writ jurisdiction is to protect the person and property based on the right and declaration given in K.S. Varghese’s case (supra). Since law and order is not a matter, which cannot be effectively dealt by a civil court, the remedy lies before this court in seeking protection. We note, often unidentifiable persons and large number of persons turn out to resist the service being provided by the faction, whose right has been declared in K.S. Varghese’s case (supra). It is in reference to paragraphs 3 and 4 of the statement filed by the learned Government Pleader, which reads as follows: “It is submitted that the St. Thomas Orthodox Syrian Church Mazhuvannoor has two chapels one is at Mangalthunada and the other is at Tattamugal. At present Fr.John Joseph Pathikal S/o Joseph Pathikkal house, Perumbavoor serves as the priest of Mangalthunada Chapel and Fr. Alisas K. Eralil S/o Kuriakkose, Eralil House, South Mazhuvannoor serves as the Priest of Tattamugal Chapel. Both the priests are appointed by Jacobite Bishop. The services & administration of the chapels are done by Jacobite faction. It is submitted that at present Jacobite Faction members locked the two main gates of Mazhuvannoor Church and metal bars are welded to the gate. The re-enforcements are made in such a way to prevent any forceful opening of the gate by police. A ‘Panthal’ is also arranged inside the Church compound near the gate for organising protest against police and orthodox faction members. The re-enforcements are made in such a way to prevent any forceful opening of the gate by police. A ‘Panthal’ is also arranged inside the Church compound near the gate for organising protest against police and orthodox faction members. Around 20 to 40 youth wing members of Jacobite faction are staying inside the Church compound in turn wise to resist any sudden action by the Police.” 6. We, in such circumstances, are of the view that, the learned Single Judge is justified in granting police protection. Therefore, there is no scope for interfering in this matter. 7. The Writ Appeal is dismissed.