Judgment:
Jawahar Lal Gupta, C.J.
1. In the year 1880, the Maha Raja of Travancore had described the 'Syrian Christians' as 'the very embodiment of antiquity and historical association, and the very model of contentment, peaccfulness and loyalty' (Ref. 'The Indian Church of St. Thomas by E.M. Philip - 'Preface'.). Today, as even on earlier occasions, they are in court. The petitioners have filed this petition with the prayer that the State and its authorities be directed to 'give effective and adequate police protection' so as to enable the first petitioner 'to exercise his rights, duties and privileges as the Catholicos(Originally called - 'Catholic' Changed to 'Catholicos - to refer the SyrianChurch dignitory.')-cum-Malankara Metropolitan of the Malankara Church with respect to the parishes mentioned in Ext. P4 and institutions of the Malankara Church without any threat or obstruction from respondents ...or their agents or servants in any manner.' The suggestion of the Bench for an amicable settlement having not been found to be feasible, we have heard the cases. Learned Counsel for the parties have broadly referred to the pleadings in O.P. No. 22946 of 2002. These may be briefly noticed.
2. The Malankara Orthodox Syrian Church is the second largest Christian community in Kerala. There were disputes amongst the members of the community. There were several rounds of litigation. Each time the Apex Court decided the dispute. The decisions are reported in Edgar Sammut v. Strickland (AIR 1939 PC 39), Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001), Most Rev. P.M.A. Metropolitan v. Moran Mar Manhoma Mathews (AIR 1996 SC 3121) and Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma Mathews (AIR 1997 SC 1035). Suit No. 4 of 1979 was one of the many suits, which have been filed in Court in this suit, the petitioners and/or their predecessors-in-interest were the plaintiffs. The suit was transferred to the High Court. In the year 1980, a learned Single Judge had dismissed the suit. However, the Division Bench had accepted the appeal and decreed the suit.
3. The fifth respondent in the present proceedings was a defendant in the suit. He challenged the judgment of the High Court in Civil Appeal Nos. 4958-60 of 1990. The Supreme Court decided the matter vide its judgments reported in AIR 1995 SC 2001 and AIR 1997 SC 1034. The judgment of the High Court was partly modified.
4. The decision did not end the dispute. The fifth respondent and others contended that 'the first petitioner was not the Malankara Metropolitan and, therefore, could not convene the 'Malankara Association.' Raising this contention, they filed a petition before this Honorable Court under Order XLV Rule 15 of the Civil Procedure Code for transmitting the decree of the Supreme Court to the executing court' This petition was disposed of vide order dated April 6.2003. It was held that the first petitioner was nut the Malankara Metropolitan. He challenged the order by filing S.L.P. (Civil) No. 7593 of 2001. It was decided vide order dated Nov. 28, 2001. Their Lordships were pleased to direct that a fresh election of the members of the Malankara Association and Managing Committee shall be held under thy observation of Hon'tle the Chief justice Mr. V.S. Malimath (Reld.). It was also ordered thai the said Association would decide as to whether or not the first petitioner was the Malankara Metropolitan.
5. In pursuance to the decision, a meeting of the Malankara Association was held at Parumala on March 20, 2002 in the presence of the 'Observer.' The first petitioner was approved as the MalankaraMetropolitan by 'an overwhelming majority.' The new Managing Committee of the Association was also elected. The 'Observer' filed hisreport before the Hon'ble Supreme Court of India. Along with the report a list of the Parish Churches of the Malankara Church was also produced. Vide order dated July 12, 2002 their Lordships approved the report of the Observer. A copy has been produced as Ext. P3. Their Lordships were pleased to observe that the election was final and binding. It shall not be 'open to challenge in any court or other forum.'
6. The petitioners allege that 'the Malankara Church at present comprises of 1662 Parish Churches spread all over India. A complete list has been produced as Ext. P4. It is alleged that 'the first petitioner has the exclusive right and control over the Parish Churches mentioned in Ext. P4' and that this is 'fortified by the approval of the report of the observer by the Hon'ble Supreme Court' Despite this, the fifth respondent 'publicly defied the judgments of the Hon'ble Supreme Court culminating in Ext. P3 order dated 12.7.2002. He also started spreading false rumors to create confusion among the persons belonging to the community. The fifth respondent went to the extent of saying, 'he was not bound by the 1934 Constitution of the Malankara Church.' He had done so in spite of the fact that he had 'filed an affidavit before the Hon'ble Supreme Court in A.S. No, 117 of 1998 swearing allegiance to the 1934 Constitution and enjoyed the benefit of the order of status-quo passed by the Hon'ble Supreme Court in AIR 1996 SC 3121.' A copy of the affidavit filed by respondents 5 and 6 has been produced as Ext. P5.
7. The petitioners further allege that respondents 5 to 13 are 'entering and claiming exclusive right of control of some churches in the Districts of Ernakulam, Thrissur and Kottayam and placing hindrance on the petitioners carrying out their responsibilities' as spelt out by the decisions of the Hon'ble Supreme Court. Specific examples of nine churches have been given in paragraph 12. A large number of innocent members of the community have been misled to follow the said respondents temporarily. Any precipitated action 'like initiating Contempt of Court proceedings and the like may not be in the interest of the community generally.' Further, it is alleged that even if the petitioners succeed in proving the charges of Contempt of Court, any punishment awarded consequent thereupon would lead to bitterness among the members of the community for the faults entirely of the fifth respondent and afew of his followers.' In this situation, the petitioners have filed the present petition for 'a direction to the State authorities to extend a helping hand in the matter of implementation of the judgments of the Hon'ble Supreme Court of India culminating in the order dated 12.7.2002.' The petitioners claim that protection was being sought to enable them to carry on the work in accordance with the judgments of the Court. The community will live in harmony. The petitioners say that they have been advised 'not to take law into their own hands and force their way' or to prevent the respondents from trespassing into the churches inasmuch as even a single instance of violence of breach of peace is inconsistent with the belief of the community and not conducive to the public order generally.
8. In view of this factual position, the Association Secretary Mr. A.K.Thomassubmitted a representation dated July 15, 2002 to the Chief Secretary to the Government of Kerala. A true copy has been produced as Ext. P6. A request for the issue of directions to the District Collectors and Police officials to ensure that the fifth respondent or others under him do not enter the premises or interfere in the administration of any parish or Diocese of the Malankara Church was made. This representation having elicited no response, they have approached this court.
9. In their effort to defeat the judgment of the Supreme Court, respondents 5 to 13 have 'formed anew church with malafide intention.....' Having done that, they are still 'entering and interfering in the churches mentioned in Ext. P4 for which they have no right.' They are also disobeying the orders of injunction issued by the competent courts. Copies of the two orders have been produced as Exts. P7 and P8. Vide order dated August 3, 2002, the first Additional District Court, Ernakulam has issued an injunction restraining the fifth respondent from entering in any of the churches in the Diocese of Cochin, Angamaly and Kandanadu. On August 4, 2002 the fifth respondent had entered several churches of the above mentioned Dioceses and openly defied the court orders. He is exhorting members to violate the court orders. He is illegally celebrating Holy Mass in the parish churches. He is ordaining unqualified persons as priests. The illegal action of the fifth respondent is creating a law and order problem. So far, the activities of respondents 5 to 13 have been 'confined to certain places mentioned above. But they are threatening to extend them to the rest of the State and it is very difficult to anticipate as to when and where such situations would arise.' In view of this situation, the petitioners claim that it is not possible for them to approach civil courts within whose jurisdiction the churches are situate.
10. The petitioners maintain that the law declared by the Supreme Court is binding on all courts within the territory of India. The civil and judicial authorities are bound to enforce the orders of the Supreme Court. The power under Article 226 can be invoked for remedying the executive inaction. The respondents have failed to act despite representations. The petitioners pray that a Writ of Mandamus be issued directing them to ensure that the petitioners are able to perform their duties and that their rights guaranteed under Articles 25, 26, 28 and 29 are not violated.
11. While the pleadings in the Writ Petition are comparatively brief, the counter affidavits filed on behalf of the respondents run into many volumes. Thus, noticing the averments in detail would only add to the volume of the judgment. Their pleadings can be noticed briefly.
12. The respondents maintain that the decision of their Lordships of the Supreme Court is not binding on the parish churches. The petitioners have no right to interfere with the property of the parish churches. There is a dispute on facts. It cannot be resolved in proceedings under Article 226 of the Constitution. The petitioners have no right,which may be legally enforceable. In the circumstances of the case, the State is under no duty to intervene. As many as 489 churches have dissociated themselves from the Malankara Association. This again is in conformity with their rights under Articles 19, 25 and 26 of the Constitution. In this situation, no occasion for the issue of a Writ of Mandamus is made out.
13. The respondents further allege that the first petitioner had been writing letters and making statements challenging the authority of the Patriarch of Antioch. Copy of one such letter has been produced as Ext. R14 with the written statement filed by respondent No. 5 in which a definite challenge to the authority of the Patriarch has been made. It was in view of the attitude adopted by the first petitioner that the various churches were forced to dissociate themselves from the Malankara Association. They had taken this decision and communicated it to the petitioners. A copy of the decision as communicated by respondent No. 14 has been produced as Ext. R14(w). On these premises the respondents maintain that the Writ Petitions deserve to be dismissed.
14. On behalf of the petitioners, Mr. K.N. Bhatt contended that the decree passed by their Lordships of the Supreme Court in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001) is binding on the respondents. By virtue of the provisions of Article 144, every authority in the country including the State Government as also the courts were bound to enforce the judgment. Since the State had failed to perform its duty, the petitioners are entitled to the issue of a Writ of Mandamus directing the State to enforce the orders of the court.
15. On behalf of the respondents, Mr. Anil Divan, who appeared for respondent No. 14, contended that their Lordships of the Supreme Court have not passed any order, which may be binding, on the parish churches. So far as the parish churches are concerned, they have a right to manage their affairs and properties. Since the petitioners have no right in those properties, they cannot ask for help from the State to exercise control on those properties. In any event, keeping in view the dispute on facts and the pending litigation, a large majority of churches including respondent No. 14 had taken a decision to dissociate themselves from the Malankara Association. This was in strict conformity with the provisions of Articles 39, 25 and 26 of the Constitution. He further contended that a declaratory decree cannot be enforced through proceedings under Article 226 of the constitution. Thus, the petitioner have no right to pray for the issue of a Writ of Mandamus.
16. Mr. C.S. Vaidyanathan, who appeared for some of the respondents, submitted that the judgment of their lordships of the Supreme Court does not determine any public law rights of the petitioners. It does not lay down any law, which may need to be enforced. It does not bind the parish churches. The petitioners are raising claims to property. There is a serious dispute on questions of fact. About 200 suits are pendingin different courts. In such a situation, no ground for the intervention of the court in proceedings under Article 226 of the Constitution is made out. Learned counsel further contended that the petitioners had filed a representation. A copy of this representation has been produced as Ext. P6. It had been rejected by the Government. A copy of this order has been produced as Ext. P13 with C.M.P. No. 62945 of 2001. The validity of this order has not been challenged. In such a situation, no ground for interference by the issue of a Writ of Mandamus is made out.
17. Mr. S. Venkatasubramonia Iyer, who appeared for respondents 7, 8 and 10, submitted that going to church for addressing a congregation or performing service is an assertion of right in relation to property. The property vests in the church. It can be used only for promoting the basic tenets for which the trust has been constituted. The petitioners have no right to go to the churches without the permission of the parishes or the Diocese in whom the property vests.
18. So far as respondents 9, 12 and 13 are concerned, the counsel appearing for them contended that the Writ Petition was no't maintainable against the Simhasana and Evangelists churches. This position was accepted by Mr. Bhat learned counsel for thepetitioners.
19. Mr. Ravindra Bhat appeared for some of the respondents and supported the petitioners. He contended that none of the respondents had raised any objection regarding the validity of the election or the authority of the first petitioner who had been duly elected as the Catholicose-cum-Malankara Metropolitan before their lordships of the Supreme Court when the matter was finally decided on July 12, 2002; He further submitted that the respondents or any of the other churches cannot withdraw from the Malankara Association. They are bound by the Constitution. Thus, the claim as made by the petitioners dsserves to be granted
20. Mr. K.C. John appearing lor respondent No 17 reiterated the claim as made by the petitioners. He further submitted that the six petitions which have been posted for hearing along with O.P. No. 22943 of 2002 had been filed primarily with the prayer that police help be provided as the injunction granted by the civil court and affirmed by this Court in Baselious Thomas-I Cattholicose v. Thomas Mar Athanatious (2003 (1) KLT 10) has not been obeyed.
21. Mr. Rein a Singh, learned Advocate General took a very fair stand. He submitted that the Government is nol happy about the disputes between the two factions. It is trying for reconciliation. The Government shall do whatever the court directs. However, the difficulties that confront the Government in dealing with sensitive issues may be kept in view.
These were broadly the submissions made by the counsel for the parties.
22. The two questions that arise for consideration are:
1. Are the contesting respondents bound by the judgment of their lordships of the Supreme Court in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001)?
2. Is a case for the issue of a Writ of Mandamus as prayed for by the petitioners made out?
Regarding 1: -
23. Mr. Bhatt contended that the decision of 1995 of their lordships of the Supreme Court embodies a judgment in rem. Thus, the respondents are bound by it. The claim as made on behalf of the petitioners was controverted by the learned counsel for the respondents. Thus, the question is - Does the decision operate as a judgment inter-parties or is it binding on all persons?
24. It can be taken as settled that a judgment in personam binds the parties to the dispute. A judgment in rem is a pronouncement with regard to the subject matter. It is binding upon everyone who has any interest in the subject matter of the judgment. The short issue is - Did their lordships of the Supreme Court pronounce upon the subject matter or decide the matter inter-parties. What is the factual position?
25. The judgment is in twoparts. The minority view has been expressed by Hon'ble Mr. Justice R.M. Sahai. The conclusions reached by His Lordship are in paragraph 76. Conclusion No. 7 is in the following terms:
'Ail churches, except those which are of Evangelist Association or Simhasana or St. Mary are under the spiritual and temporal control of the Malankara Association in accordance with the 1934 Constitution.'
26. The majority also considered the matter. In paragraph 132 of the judgment, the reliefs sought for in the suit have been noticed. A perusal of the judgment shows that a declaration was sought that 'the Malankara Church is Episcopal in character and is not a union or federation of autonomous church units and is governed in its administration by the Constitution of the Malankara Church.' Still further, a declaration was also sought trial particular defendants were not competent to ordain priests and deacons. They were not legally consecrated Metropolitans or legally ordained priests or deacons of the Malankara Church. An injunction was also sought so as to prohibit the particular defendants from ordaining priests or deacons or performing religious services or sacraments or from interfering with the administration of the Malankara Church. While examining the case, their lordships were pleased to inter alia observe as under in paragraph 141:
'If the plaintiffs mean merely spiritual control by saying Episcopal, probably there may be no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual controlover the Parish Churches, but if it means control over temporal affairs of, or title to or control overthe properties of, the Parish Churches beyond what is provided for in the Constitution, adeclaration to that effect can be obtained only after hearing and in the presence of the concernedParish Churches. It also appears that each of these Parish Churches/Associations has its ownconstitution, whereunder the general body of the Parishes is declared to be the final authorityin temporal matters. All this is mentioned only to emphasize that in the absence of the ParishChurches and proper pleadings and proof, no declaration touching the Parish Church can begranted. in these suits.''
27. A perusal of the above observations shows that even though Hon'ble Mr. Justice Sahai had expressed the view in paragraph 64 that 'it was not necessary to implead other Parish Churches as a party', the majority was clearly of the view that no declaration could be given to the prejudice of the Parish Churches in their absence. The right of the Parish Churches to be heard, especially in the matter of temporal affairs, was clearly recognised.
28. Mr. Bhatt, learned counsel for the petitioners contended that the High Court vide its decree dated June 6, 1980 in O.S. No. 4 of 1979 had inter alia declared as under: -
'(6) That it is also hereby declared that no Metropolitan, priests or deacons, unless authorisedly ordained and appointed under the provisions of the Constitution of the Malankara Church can officiate in any of the church or its institutions in Malankara Church.
(7) That is also hereby declared that any priest who refused to recognize the authority of the second plaintiff and other Metropolitans under him is not entitled to minister in any of the church or its institutions in Malankara Church.'
Learned counsel submitted that their lordships of the Supreme Court did not modify these declarations in the decree. Thus, only the persons appointed by the first petitioner are entitled to act as priests. Nobody can refuse to recognize his authority. The decree operates as a judgment in rem. On the other hand, it was pointed out by the learned counsel for the respondents that the decree passed by the High Court had been 'modified' by their lordships of the Supreme Court. In particular, it was pointed out that the Supreme Court had refused to grant a specific relief in respect of the Parish Churches,
29. A perusal of the judgment passed by their lordships of the Supreme Court shows that in paragraph 120, it had been specifically observed that 'in the suit no declaration can be granted affecting the rights of Parish Churches in their absence nor can it be declared that the properties held by Malankara Parish Churches vest in the Catholicose or the Malankara Metropolitan or the Metropolitans of the concerned Diocese, as the case may be. Indeed, no such specific relief has been asked for in the suit and without impleading the affected parties, no declaration can be claimed by theplaintiffs that their Church is Episcopal in nature, if that declaration means that it gives the Catholicose/Malankara Metropolitan/the Metropolitan of the Diocese any title to or any control over the properties held by the Parish Churches...' This was a clear refusal to grant any declaration affecting the rights of the Parish Churches. In view of this factual position, the plea that the judgment determines the rights in respect of even the Parish Churches or that it is binding on them despite the fact that they were not parties cannot be sustained.
30. Mr. Bhatt contended that the law declared by the Supreme Court binds everyone in the country. It was also submitted with reference to Article 144 of the Constitution that it is the duty of every Authority including each court to aid in the enforcement of the order passed by the Apex Court. The inaction and failure of the respondent-authorities to perform their constitutional duty entitles the petitioners to pray for the issue of a Writ of Mandamus.
31. At the first flush, the contention seems impeccable. It is beyond doubt that Article 144 embodies a constitutional mandate. Every civil and judicial authority is bound to act in aid of the Supreme Court. The provision clearly requires every authority in the country, be it civil or judicial, to take all effective steps to ensure the implementation and observance, in letter and spirit, of the judgment given by their lordships of the Supreme Court. The High Court is not exempted from the performance of this duty.
32. In this context, it may, be mentioned that Chapter IV of the Constitution contains the provisions regarding the establishment of the Union Judiciary. It places the Supreme Court at the head of the pyramid. Articles 140 to 144 have a scheme. These provide for the binding nature of the declaration of law by the Supreme Court and the enforcement of decrees or orders passed by it. It deserves notice that even the opinion recorded by their lordships of the Supreme Court in the exercise of its advisory jurisdiction under Article 143 is binding on all courts in India. Article 144 imposes a duty on the civil and judicial authorities to ensure the obedience of the decrees or orders passed by them. Under Article 145, the court has been empowered to frame its own rules. However, such rules are subject to the law that may be made by the Parliament and need the approval of the President. Thus, the Rules are in the nature of a subordinate legislation.
33. However, the questions that arise are - Has the Supreme Court held that the petitioners have a clear title in the properties belonging to the Parish Churches? Does the decision give the petitioners a right to control the affairs of the Parish Churches despite the fact that they were not parties in the case? Do the State and its authorities have no discretion in the matter?
34. On a consideration of the matter, it appears that the basic declaration given by their lordships was that the Constitution of 1934 binds all the Churches. However, sofar as the rights of the Parish Churches are concerned, there was no declaration against them as they had not been impleaded as parties.
35. It is a settled principle of law that a Writ of Mandamus can be issued only when the party praying for it has a clearly enforceable right and the authority has a duty to perform. In the present case, we find that the judgment of their lordships of the Supreme Court does not per se entitle the petitioners to claim any right affecting the properties of the Parish Churches. In fact, in the judgment, it was categorically observed in paragraph 142 (10) that the 'common properties (Samudaya properties) held by the Malankara Church are vested in the Malankara Metropolitan and others...' Obviously, the properties of the Parish Churches were not included.
36. Mr. Bhatt contended that even a declaratory decree declares law and rights of the parties. He referred to the judgment in Gurdit Singh v. State of Punjab (AIR 1974 SC 1791) to point out that 'A judgment of a court is an affirmation, by the authorised societal agent of the State, speaking by warrant of law and in the name of the State, of the legal consequences attending, approved or admitted state of facts.' It is undoubtedly so. But a perusal of the 1995 judgment of their lordships of the Supreme Court clearly shows that there is no clear declaration regarding the petitioners' rights over the properties or the other affairs of the Parish Churches. Their lordships, as pointed out by Mr. Vaidyanathan, learned counsel for some of the respondents, were only adjudicating the dispute between the parties. There was no declaration of law, which may be binding on the Parish Churches. It was only a declaration in respect of a private law right. There was no determination in respect of a public law right. The contention appears to be correct.
37. There is another aspect of the matter. It was asserted by Mr. Vaidyanathan that about 200 suits relating to various churches are pending in different courts in the State. Even the petitioners have referred to the pendency of two suits and produced documents as Exts. P7 and P8. This factual position was not disputed by the learned counsel for the petitioners. Such being the position, it is apparent that there are various disputes between the petitioners and the Parish Churches. These are pending adjudication. In these proceedings before the Civil Courts, the parties would lead evidence and prove their rights. The trial of these suits cannot be stifled by accepting the petitioners' prayer for the grant of police help and permitting them to achieve the object of exercising spiritual and temporal control over the affairs and properties of the Parish Churches. In fact, police help cannot be ordered for the mere asking. It involves expense for the State. It is not a substitute for proceedings before an appropriate authority or court. It can be normally granted only when there is clear evidence of an existing danger to person or property. In this case, the petitioners are seeking police help in the conduct of religious and other affairs. Matters of religion involve sensitive issues. Intervention of police in a place of worship can be a matter of last resort only. It cannot be the first option. Thus, it cannot be said that the State is bound to provide police help.
38. In this context, it may be mentioned that it is the pleaded case of the petitioners that the 5th respondent has illegally entered certain churches and ordained unqualified persons as Priests. Who are those persons? When were they ordained as Priests? How are they unqualified? Admittedly, the persons are not parties. The pleadings in this behalf are not adequate. A complete examination of the matter is, thus, not possible. In fact, Mr. Vaidyanathan pointed out that even the petitioners have filed suits in certain courts. This was not disputed. Such being the factual position, the issues as arising between the parties cannot be resolved in proceedings under Article 226 of the Constitution.
39. Mr. Bhatt contended that a judgment of the Supreme Court declaring the inter se rights of the parties operates by its own force. The declaration of the rights as given by the Apex Court binds everyone. Learned counsel placed reliance on paragraph 565 from Halsbury's Laws of England, Volume 26 (4th Edition). It reads as under: -
'565. Judgments not requiring enforcement: - Many judgments and orders do not require to be enforced as the judgment or order itself is all that the party obtaining it requires. Thus, a judgment in rem, which determines status, does not call for specific enforcement. It not only declares the status of the particular person or thing adjudicated upon, but, ipso facto, renders it such as it is declared. A decree of divorce not only dissolves the marriage, but makes the wife a single woman; an adjudication in bankruptcy not only declares the debtor a bankrupt, but clothes him and his trustee with the consequences of that status; a sentence in a prize court not only decrees the vessel to be prize, but vests her in the captor. Such a judgment does not order recovery or payment of money, delivery or transfer of property, nor any specific act or abstinence bringing it within any of the various modes of execution in the widest sense. Similarly, an order appointing new trustees which also vests the trust property in them requires no further stepto be taken. Adeclaratory judgment is complete in itself, since the relief is the declaration.'
40. The above observations are clearly in the context of a judgment in rem which determines the status and does not call for specific enforcement. In the present case, there is no declaration in respect of the status or rights of the Parish Churches. In fact, the rights were specifically protected. In this situation, the counsel can derive no benefit from the rule as noticed above.
41. It was pointed out by the learned counsel for the petitioners that the proceedings before the Supreme Court had not ended with the judgment of the year 1995. There were various rounds. Ultimately, their lordships of the Supreme Court had appointed a former Chief Justice of this Court as an Observer. He had conducted the ejections to the Malankara Association. Persons like the respondents who had lost during the elections cannot now be permitted to deny the authority of the petitioners.
42. The counsel is absolutely right in contending that their lordships of the Supreme Court had made every possible effort to resolve all the issues arising between the parties so as to ensure that the disputes were settled forever. A permanent end of the disputeswas the obvious objective. It would have been an ideal situation. However, the ideal has proved elusive. Unfortunately, the disputes appear to have persisted. In fact, it appears that a number of Churches (most of which are not even parties in these cases) have passed resolutions withdrawing from the Association. It is the petitioners' own case that the respondents have formed a separate Church. Were they not free to do so?
43. A perusal of the judgment of their lordships of the Supreme Court shows that in paragraph 115 it was observed as under:
'On July 16, 1960, the Patriarch again wrote to the Catholicos reiterating his objections. In this letter, the Patriarch asserted that the provisions of the said Constitution 'seem to be destructive of every principle of apostolic and Episcopal Churches. So we could not approve your constitution'. The letter concluded by saying, 'it is reported to us that our people there and the churches remained divided mainly on the scope of your acceptance and the validity of the constitution which you hold more sacred than the holy scriptures, the canons of the church and its traditions. In the circumstances we have no alternative but to recognize those people and churches who hold fast to the original principles of the foundation of their church.' The letter called upon the Catholicos to clarify his position immediately within a month failing which it would be taken that the Catholicos has nothing to reply and he could take such further steps as are deemed necessary for the peace of the church and preservation of its faith, order and discipline as a holy and apostolic church.'
The above observations are symbolic of the spiritual differences between the two factions. And then in paragraph 150, it was observed thus: -
'After hearing the learned counsel for the appellant (D 19) and the respondents and perusing their written statements, we are of the opinion that the decree of the Division Bench has to be affirmed but with certain modifications. The modification is called for the reason that when a particular people say that they believe in the spiritual superiority of the Patriarch and that is an article of faith with them, the court cannot say 'no your spiritual superior is the Catholicos.' The guarantee of Article 25 of the Constitution has also to be kept in view. The decree of the Division Bench makes no difference to the Patriarch. It only says that Catholicos is declared to be the spiritual superior of the Knanaya Community. Then it says that in temporal matters, the 1934 Constitution of the Malankara Association can he implemented subject to the Knanaya constitution only until both the Constitutions are reconciled. In all, in the facts and circumstances of the case, it would be enough to declare that by their acts and conduct, D19 has accepted that they are an integral unit within the Malankara Church and that, therefore, the 1934 Constitution of the Malankara Church shall govern them but subject to their Knanaya Constitution until such time the Knanaya Church Samudayam decides otherwise.'
44. A perusal of the above observations shows that the rights of the Parishes or the Parishioners to accept the spiritual superiority of the Patriarch was not affected. The guarantee as enshrined in Article 25 of the Constitution was ensured. Still further, theprovision in Article 19(1)(C) to form an Association clearly guarantees the freedom to form a new association and/or to walk out of the old one. No one can be forced to continue as a member of a particular association. Thus, the members of the Association had the freedom to dissociate themselves from the Association. The Court had not issued an injunction restraining them from doing so. They had merely exercised their constitutional right. It cannot be said to be violation of the decision of their lordships of the Supreme Court.
45. Still further, a fact that deserves mention, is that the petitioners seek relief in respect of the churches, which are listed in Ext. P4. All of them are not parties in the present proceedings. In their absence, it is difficult to determine their rights without hearing them.
46. In view of the above, it is clear that the claim as made on behalf of the petitioners cannot be sustained. The first question is accordingly answered against the petitioners.
47. Regarding 2: - Should a Writ of Mandamus be issued as prayed for by the petitioners?
48. The claim made by the petitioners in a nutshell is that the State should be directed to provide them police help so as to enable them to enter and administer the Parish Churches. They also claim that they are entitled to exercise their rights, duties and privileges without any threat or obstruction from the respondents in any manner whatsoever in accordance with the Constitution of 1934. On behalf of the respondents, it has been inter alia contended that the assertion of the right to enter the Parish Churches even for conducting services amounts to an assertion of a right to property. Still further, it has also been asserted that keeping in view of the totality of the circumstances of the case the relief as prayed for by the petitioners cannot be granted.
49. On a consideration of the matter, we find that even under the judgment delivered by their lordships of the Supreme Court, there is no declaration affecting the rights of the Parish Churches. Secondly, it is the undisputed position that a large number of suits are pending between the parties. Thirdly, unanimous resolutions have been passed by various churches in exercise of their fundamental rights under the Constitution by which they have dissociated themselves from the Malankara Association. Fourthly, there are provisions in the Code of Civil Procedure like Order XXI Rule 32 and Order XLV Rule 15 which provide for the method by which the decree of the Supreme Court can be executed. In this situation, it cannot be said that the petitioners had an undisputed right, which can be enforced by the issue of a Writ of Mandamus, or that respondents 1 to 4 are under an obligation to provide them police protection. In fact, the appropriate remedy for the petitioners is before the civil court where the disputed questions of fact can be appropriately decided.
50. Mr. Raveendra Bhat, learned counsel for some of the respondents who aresupporting the petitioners contended that no such objection was raised before the Supreme Court on July 12, 2002 when the matter was finally decided by their Lordships. On behalf of the respondents, it was pointed that all of them were not parties in the proceedings before the Supreme Court. Thus, they are not bound.
51. Irrespective of the technicalities, the undeniable fact is that the constitutional right of a member of the Association to dissociate himself from the existing Association or to form a new one cannot be disputed. Still further, nothing was pointed out to show that there was a mandatory injunction restraining any of the Parishes from dissociating itself from the Malankara Association. Thus, what was not allowed by the Supreme Court directly cannot be granted to the petitioners indirectly.
52. Mr. Raveendra Bhat, in an effort to support the counsel for the petitioners, went to the extent of contending that just as earth cannot go out of the solar system, similarly no church could walk out of the Malankara Association. The argument is apparently attractive. Yet, it ignores the provisions of Articles 19, 25 and 26 of the Constitution, which confer definite rights on the contesting parties. These rights have been duly protected by their lordships of the Supreme Court.
53. Learned counsel for respondents 9, 12 and 13 had contended that no relief could be granted against them, as the said respondents were part of the Simhasana or Evangelist Churches. The learned counsel for the petitioners did not dispute this position. Thus, the claim against these respondents cannot, in any case, be sustained.
54. Mr. K.C. John, learned counsel for the petitioners in the connected matters, submitted that police protection was being sought to implement the injunction granted by the court. So far as this aspect of the matter is concerned, the petitioners can seek their remedy before the appropriate forums for seeking relief against the concerned parties. We are sure that the concerned courts would take action against the violators of the injunction if the allegations are proved. However, in these proceedings, a Writ of Mandamus cannot be issued directing the State, which is not even shown to be a party in die suits, to provide police protection. In any case, OrderXXXIX of the Code of Civil Procedure itself provides an efficacious remedy in case of violation of the injunction granted by the civil court.
55. Learned counsel for the parties had also referred to certain provisions of the 1934 Constitution. Since it is the admitted position that some of the matters are pending before the civil courts, we do not consider it appropriate to record any findings with regard to the provisions of the Constitution, lest the rights of the parties should be affected one way or the other.
Thus, the second question is also answered against the petitioners.
56. No other point was raised.
57. In view of the above, it is held that: -
(i) The rights of the Parish Churches were not determined by the Supreme Court in the 1995 decision. Thus, it cannot be said that the contesting respondents have no right to manage their properties or that the 1st petitioner has any right over the Churches which were not parties in the case;
(ii) All the Churches listed in Ext. P-4 having not been impleaded as parties, no order affecting the rights of those who are not before the court can be passed;
(iii) The Churches had the right to form a separate Association. They were also entitled to leave the Malankara Association under Articles 19, 25 and 26. It has not been shown that they had acted illegally in doing so;
(iv) Police help cannot be ordered for the mere asking. It involves expense for the State. It is not a substitute for proceedings before an appropriate authority or court. It can be normally granted only when there is clear evidence of an existing danger to person or property. In matters involving religious institutions, it would be normally inappropriate to order the grant of police protection unless a clear case for allowing the entry of the police is made out;
(v) Keeping in view the peculiar facts and circumstances as noticed above, no ground for the issue of a writ of mandamus as prayed for by the petitioners is made out.
58. Thus, the Writ Petitions are dismissed. However, the parties are left to bear their own costs.