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JUDGMENT Mohammed, J.
1. As a pragmatic solution, as we perceive it, a Division Bench of this Court in A. F. A. No. 59 of 1996 directed the Advocate-receivers to conduct election to the Managing Committee of the Piravom St. Mary's Orthodox Syrian Church within a specified time schedule. But the solution appears to be not an instant reality in view of the claims and counter claims raised by the warring factions. The Joint Receivers failed to iron out the differences between the rival groups, by themselves and consequently sought the assistance of this Court for removing the stalemate in so far as the preparation of the electoral roll. Advocate receiver Shibu Thomas representing Patriarch group filed Report No. 8 of 1997 stating the areas of disagreement and the other receiver G. Suresh filed Report No. 2 of 1998 praying to adopt the voters' list submitted by him for election to the Managing Committee. He also insisted on behalf of the Catholicos group that the basic qualification required for being eligible to become a voter under the '1934 Constitution' should be strictly adhered to while finalising the voters' list. In this context what we have discerned is that the direction given by the Division Bench has its vivid base on the agreed submissions made by the contesting parties for immediate election. But when the stage is set for it the inner feelings of discord and disunity take their ugly turn and demonstrate visibly in the pleadings of the parties. What the Courts at different levels and different stages did was to pave the way for perpetuating peace and tranquillity in the solemn atmosphere prevailing in and around the church by handing down decisions according to law and justice as between the parties. In this background we are called upon to adjudicate the dispute which centres round the election on merits and in view of the law applicable to the question. Such a process necessarily involves interpretation of the relevant provisions of '1934 Constitution' applicable to Malankara Syrian Church and the applicability of the decision rendered by the Supreme Court in Most Rev. P. M. A. Metropolitan v. Moran Mar Marthoma Mathews, AIR 1995 SC 2001 and the subsequent decisions in AIR 1996 SC 3121 as amended by the order dated 5-2-1997 (AIR 1997 SC 1035).
Background of the decision in AFA 59/96
2. This appeal arising from the judgment of A. S. No. 689 of 1995 was disposed of by a Division Bench of this Court on 10-12-1996. The appellants in the above appeal were defendants 20, 21 and 23 in O. S. No. 15 of 1977 on the file of the First Additional District Judge, Ernakulam. The above suit is filed for declaration that the elected members of the Managing Committee of the St. Mary's Orthodox Syrian Church, Piravom are not entitled to assume office and for injunction restraining the priest and Secretary of the church from handing over charge to any one of the elected members and also restraining defendants 1 to 5 from convening a general body meeting for election of trustees and Secretary from among defendants 9 to 24 etc. The above suit was originally filed before the Munsiff's Court, Muvattupuzha as O. S. No. 491 of 1974 in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure. It was later transferred to First Additional District Court, Ernakulam designated as Special Court for trial of church cases and re-numbered it as O. S. No. 15 of 1977. In the suit the plaintiffs alleged that in the year 1974 the Managing Committee of St. Mary's Orthodox Syrian Church constituted a sub committee for conducting election of members of the Managing Committee of the church in violation of the provisions of the Constitution of the Malankara church. Therefore it was pleaded that the elected members were not competent to hold the office. The defendants on the other hand denied violation of the provisions of the Constitution and contended that the term of office of the earlier elected committee had expired and that due to the long delay caused in the trial of the suit the reliefs claimed in the suit had become infructuous. On 6-11-1995 the counsel appearing for the plaintiffs endorsed on the back of the plaint that "this suit has due to the supervening circumstances become infructuous". Accordingly the trial Court found that it would be a futile exercise for it to adjudicate upon the questions raised in the suit. Hence the Court did not go into the merit or otherwise of the rival contentions raised by the parties. Accordingly the trial Court dismissed the suit. However, the Court directed that the properties have to be managed by the present administrators/receivers until a full-fledged managing committee got elected in accordance with the Constitution of the church and until they took charge of administration. The trial Court further directed that both sides should submit a panel of four advocates each for the purpose of appointing them as receivers within a period of four days. It was also ordered that the present administrators would continue to function until Advocate Receivers take over charge. As against the said judgment dated 16-11-1995 the defendants 20, 21, 23 and 24 filed A. S. No, 689 of 1995 before this Court. That appeal was dismissed by a learned single Judge as per judgment dated 3-12-1996. Thereafter a further appeal under Section 5 of the Kerala High Court Act was filed as A. F. A. No. 59 of 1996. That appeal was dismissed by a Division Bench of this Court vide judgment dated 10th December, 1996.
Directions issued by the original as well as the appellate Courts.
3. As far as the management of the church properties is concerned, the Additional District Judge while dismissing the suit O. S. No. 15 of 1977 observed that those properties are in custodia legis as the elected administrators/receivers were in management. The Court further observed that since the suit was dismissed, they became functus officio. Therefore the Court further observed that the properties have to be managed until a full-fledged Managing Committee elected in accordance with the Constitution of the church takes over the administration. The question of administration of the church properties is now pending before the same Court in another suit, O. S. No. 6 of 1985, filed by a section of Catholicos. The trial Court, however, directed that the administrators will attend only to the day-to-day affairs. In so far as the management of the properties and for major transactions they will have to obtain prior sanction from the Court. The learned single Judge while dismissing the appeal, A. S. No. 689 of 1995, affirmed the aforesaid directions of the trial Court. While disposing of the appeal, A. F. A. No. 59 of 1996, the Division Bench of this Court observed that both sides realised that in the best interest of the church it was essential that an election for constituting a Managing Committee has to be conducted at an early date. The consensus arrived at between the parties was that the election should be conducted by the receivers to be appointed by the trial Court. Both sides had also agreed that instead of four advocate receivers as directed by the trial Court, there shall be only two advocate receivers; one to be chosen from the panel submitted by the plaintiff and the other from the panel submitted by the appellants in the A. F. A. It was further agreed that the administrators appointed by the Court and who are in charge of the affairs of the church and its properties would forthwith hand over the entire management of the church and its properties to the receivers who would be appointed by the trial Court.
4. The Division Bench has also given the following directions for election of the members to the Managing Committee.
"The electoral roll will be published by the receivers in the notice board of the main church and the chappels within one month from the date on which the receivers take charge. The present administrators will hand over all the necessary records for the purpose of drawing up the electoral roll of the parishioners. Fifteen days' time from the date of publication of the electoral roll shall be given for filing objections to the list. The receivers shall dispose of the objections and publish the final electoral roll within 15 days from the last date fixed for receipt of objections. The receivers shall take all necessary steps to notify the dale of election, call for nomination, fix the date of receipt of nomination, date for withdrawal of nominations, scrutiny of nominations etc. The election shall be conducted through ballot papers. The receivers shall be responsible for the conduct of the election, counting and declaration of the result. Accepting the request made by both sides we direct that after declaration of the result of the election the receivers shall file a report before this Court even though they are appointed by the trial Court They would seek orders from this Court before binding overcharge to the newly ejected committee. If the receivers require any clarification regarding the conduct of the election they shall approach this Court for appropriate orders."
The Division Bench further ordered that the entire proceedings shall be completed within a period of three months from the date on which the receivers took charge. It was made clear that the receivers would be governed by the directions given by the trial Court in its judgment dated 16-11-1995 regarding the manner in which they should administer the affairs of the church properties. For any clarification or direction regarding the administration of the affairs of the church and its properties the receivers should approach the trial Court for appropriate orders.
Reports submitted by the Advocate Receivers.
5. On 13-1-1997 Sri G. Suresh and Sri Shibu Thomas, receivers appointed by the Court jointly submitted Report No. 1 in A. F. A. No. 59 of 1996 praying to grant one month's time from 22-1-1997 for preparation of the electoral roll as ordered by the Division Bench. After considering the report the Division Bench on 16-1-1997 extended the time for preparation of the electoral roll for a period of one month from 22-1-1997. Sri G. Suresh filed Report No. 2 of 1997 stating that the receivers have received a mass memorandum from the parishioners of the church suggesting the way in which the election is to be conducted. They had also submitted two model application forms for the preparation of the Edavaka register and voters' list. Therefore he sought direction from this Court clarifying the manner in which the election has to be conducted. Thereafter Advocate Receiver Sri Shibu Thomas filed objection on 10-3-1997 against the Report filed by Sri G. Suresh who is a nominee of the Catholicos faction in the church. The annexures produced along with Report No. 2 were submitted with the intention to protract the election to the Managing Committee of thechurch. After hearing on Report No. 2 and the objections thereon this Court passed an order on 18-3-1997 directing the Receivers to examine two different Edavaka registers kept by the two factions, for drawing up the voters' list. This Court further allowed the parishioners to raise objection against the voters' list for non-inclusion as well as inclusion of parishioners in the electoral roll. Receivers were also directed to consider the objections and draw up a final electoral list and in case of any difference of opinion between the receivers they should file a report to that effect on 24-3-1997. Subsequently Sri Shibu Thomas filed Report No. 3/97 producing therewith the copy of the voters' list prepared with reference to the Edavaka Register (both old and new) maintained by the church. Later the receivers jointly submitted Report No. 5 producing therewith the objections received as against the electoral roll. Therefore the receivers prayed for necessary orders and directions in the matter of finalising the voters' list. On that report the Division Bench on 9-4-1997 ordered directing the receivers to continue and to re-schedule the election after vacation. Another Division Bench of this Court passed an order on 12-11-1997 considering the objections raised against the report. The said order is as follows :
"By report 5/97 the two receivers have sought 'necessary orders for finalising the voters' list' in regard to which it is said, a voters' list and a statement of objections had been received by them. In our view the receivers themselves will have to resolve the controversies, if any, as per the judgment of this Court which had approved the 1934 Constitution as amended by the Supreme Court. We decline to grant any directions now since the stage is not ripe to do. They shall finalise the voters' list and complete the elections within two months from now."
The Division Bench again on 1-12-1997 passed an order directing the receivers to state about the areas of disagreement between them and the reasons therefor in the light of the relevant provisions in the Constitution of 1934. Subsequently this Court passed an order on 21-1-1998 directing the receivers to submit final voters' list as per the order dated 12-11-1997, on or before 27-1-1998.
Report No. 8/1997, Report No. 2/98 and Areas of disagreement.
6. Advocate Receiver Sri Shibu Thomas submitted Report No. 8 of 1997 on 5-12-1997 showing the areas of disagreement between the Joint Receivers. Likewise Sri G. Suresh filed Report No. 2 of 1998 dated 27-1-1998 stating as ' below.
"As directed by this Hon'ble Court, we the receivers, though sat together and discussed about the matter, on 25-1-1998 between 12 a.m. and 12 noon, and on 26-1-1998 between 10 a.m. and 4 p.m., we could not reach a settlement in respect of joint voters' list, since I insisted for the basic qualification for a voter under the Constitution should-strictly followed for finalising the voters' list."
In view of the above the Receivers could not reach a settlement by themselves. Therefore he further prayed to this Court that the voters' list submitted by him shall be accepted and election should be directed to be held on the basis of the voters' list presented by him.
7. To Report No. 2 of 1998 Advocate Koshy George on behalf of Rev. Fr. Simon Chellikkattil, second respondent in A. F. A. 59/96 filed objection. His case is that the basic qualification for a voter under the 1934 Constitution should strictly be followed for finalising the voters' list. The second respondent is a person who had shown allegiance to 1934 Constitution and he was originally appointed as Vicar of the Piravom Valiyapalli by Mar Philaxinos Poulos, the then Metropolitan. In November 1995 he was again confirmed in the post of Vicar by the then Catholicos of the East by his Kalpana dated 24-11-1995. In support of this he has produced copy of the said Kalpana as Annexure-R2(a). He further points out that Dr. Thomas Mar Athanasious was appointed as Metropolitan having the administrative control of Piravom Valiyapalli as per Annexure-R2(b). The Metropolitan Dr. Thomas Mar Athanasious has approved his appointment as Vicar of the church as per Annexure-R2(c) Kalpana dated 7-1-1998 and therefore he pleads that the list of voters submitted by him to the receivers should be included in the final voters' list as he was the duly appointed Vicar of the church.
8. The second appellant filed an objection dated 16-3-1998 against the above claim put forth on behalf of the second respondent. The claim of the second respondent that he was originally appointed in 1974 as Vicar of Piravom Valiyapalli was untrue. He was appointed only as a priest by Poulose Mar Philaxinos Metropolitan, the Metropolitan of Kandanad Diocese. As per Ext. A 1 annexure produced along with the objection statement Baselious Poulose has appointed Father Scaria Valtakkattil as Vicar of Piravom Valiyapalli and he is stilt functioning as the Vicar. It is further stated that the Annexure-R2(a) was not acted upon and the second respondent has not taken charge as Vicar. It is further averred that Mar Thoma Mathews has no authority to issue Annexure-R2(a) Kalpana as per the 1934 Constitution. Thomas Mar Athanasious has no authority to issue Annexure R2(c) Kalpana. Therefore the second appellant pleaded that second respondent was not the Vicar of Piravom Valiya Palli. According to him, voters list submitted by advocate receiver Shibu Thomas is liable to be accepted as it reflects the true and correct position. In this proceeding we are called upon to decide the dispute with regard to the two different voters lists submitted by advocate receivers on behalf of the two rival factions. The disputes mainly relate to the eligibility to become a voter to participate in the election to the Managing Committee and thus to determine the total number of voters thus eligible to participate. However, we do not think it necessary to decide the claim of the second respondent in the appeal that he was the duly appointed Vicar of Piravom Valiya Palli in this proceeding.
The '1934 Constitution'
9. One of the disputes between the two Advocates Receivers relates to the basic qualification required for a member to be included in the voters' list. On the side of Patriarch group it was pointed out that all the members of the parish assembly are entitled to participate in the election. However, the Catholicos group urged that only those who confess and receive Holy Quarbana can alone be members of the parish assembly. It is also contended by them that unless the members swear allegiance to '1934 Constitution' they will not be allowed to participate in the election. This rival contention no doubt persuades us to examine the relevant provisions of 1934 Constitution and its applicability while solving the dispute between the Receivers.
10. The '1934 Constitution' is a judicially recognised Constitution which is applicable to Malankara Orthodox Syrian church. It was brought into force on 26th December, 1934 and amended in 17-5-1951 and 14-4-1967 and approved by the Holy Episcopal Synod. It was promulgated by His Holiness Moran Mar Baselius Augen first, Catholicos of the East and Malankara Metropolitan as per his Order No. 156/67 of 26th June 1967. This Malankara church was founded by St. Thomas, the Apostle and is included in the Orthodox Syrian Church of the East stated in S. 2 of the Constitution. Section 24 mandates that for every parish assembly there shall be a Parish Managing Committee. Section 25 stipulates that members of the Parish Managing Committee shall be elected by the Parish Assembly and their term of office shall be one year. Every Parish Managing Committee shall have a minimum of five and a maximum of fifteen members excluding the priests. Section 7 provides that all men who confess and receive Holy Quarbana at least once a year and who have completed the age of 21 years may be members of the Parish Assembly. Therefore the right to elect the Managing Committee is vested on the members of the Parish Assembly. Section 8 provides that there shall be a Parish Assembly Register containing the names and particulars of the members of the Parish Assembly and a Holy Confession Register containing the names and particulars of those who have been confessed. Strictly speaking, members of the Parish Assembly whose names and particulars are mentioned in the Parish Assembly Register shall have the power to elect the members of the Parish Managing Committee as provided in Sections 24 and 25.
11. The '1934 Constitution' came up for interpretation before the Supreme Court in Most Rev. P. M. A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001. Three judges of the Supreme Court in the above decision held (at p. 2071, para 142):
"The 1934 Constitution was approved at a validly convened meeting of Malankara Association, which Association was created by the Patriarch himself under the Resolutions of Mulanthuruthy Synod. The defendants in the present suits (Patriarch group) cannot question its legality and validity in view of the acts and conduct of the Patriarch and the members of his group subsequent to the judgment of this Court in AIR 1959 SC 31."
It further held (at p. 2071, para 142):
"Ext. A. 19 Kalpana, was issued by Patriarch Yakub with the full knowledge of revival of Catholicate, Ext. AI4 and the 1934 Constitution and the various claims and contentions of both the parties put forward in Samudayam suit and the decision of this Court in AIR 1959 SC 31. It must, therefore, be held that the Patriarch has thereby accepted the validity of the revival of Catholicate Ext. A14 and the 1934 Constitution, and abandoned and gave up all or any objections they had in that behalf. Several members of his group including some of the defendants also accepted the Constitution and took oath to abide by it. They cannot now turn round and question the same."
What is emerged from the above decision is that the Constitution framed in 1934 by the Malankara Association was found to be valid.
12. Subsequently, the three judges bench delivered a judgment on 25-3-1996 in Most Rev. P. M. A. Metropolitan v. Moran Mar Marthoma Mathews, AIR 1996 SC 3121 which is ordered to be in continuation of the judgment dated 20-6-1995, AIR 1995 SC 2001. There the Supreme Court observed :
"Inasmuch as the Malankara Association was vested with control over the religious and communal affairs of the entire Malankara Christian Community, it was held desirable and necessary that the Association must 'truly and genuinely reflect the Will of the said community'. For ensuring it, it was observed : 'its composition must be so structured as to represent the entire spectrum of the community. A powerful body having control over both spiritual and communal affairs of the Malankara Church should be composed in a reasonable and fair manner! It was held that judged from the above angle, clause. (68) of the 1934 Constitution cannot be said to be a fair one inasmuch as the said clause provided for representation Parish Churchwise. We took note of the contention urged on behalf of the Patriarch group that with a view to obtain majority in the Association, the Catholicos group has created a number of new Parish churches with very small membership and that giving equal representation to all Parish churches irrespective of the strength of their membership is neither fair nor does it ensure a fair and proper representation of the community in the Association. It was held that it is necessary to substitute Clause (68) (now Clause (71)) and other relevant clauses of the Constitu-tion to achieve the aforesaid objective which would also affirm the democratic principle, which appears to be one of the basic tenets of this church."
What is revealed from the above observation is that the Malankara Christian community must truly and genuinely reflect the Will of the said community. The Constitution also recognises the democratic principle as a basic tenet of the church.
Therefore the election to the Managing Committee should reflect in all respect the sustenance of the democratic spirit subject to the provisions contained in the '1934 Constitution'.
13. Subsequently an interlocutory application was filed before the Supreme Court and that was decided in the decision reported in Most Rev. P. M. A. Metropolitan v. Moran Mar Marthoma Mathews, AIR 1997 SC 1035. In Part II of the Order dated 25-3-1996, AIR 1996 SC 3121 the following sentence was ordered to be inserted before the last sentence.
"The above direction is subject to the condition that any and every person claiming to hold any office or post in this church shall be bound by and shall swear allegiance to the 1934 Constitution."
When this is incorporated. Part II as amended will be as follows :
"At this juncture, it is not possible to give any specific direction as to who among the two contenders is the legitimate incumbent. It is accordingly directed that status quo as on the date of the judgment shall continue until a new Managing Committee is elected. The above direction is subject to the condition that any and every person claiming to hold any office or post in this church shall be bound by and shall swear allegiance to the 1934 Constitution. The said Managing Committee can decide the said dispute, if and when necessary."
The Catholicos therefore demand that before conducting the election to any Managing Committee, all the members must swear allegiance to the 1934 Constitution. This is an indispensable requirement, they contended. The requirement of swearing allegiance to the 1934 Constitution cannot be dispensed with while fixing the eligibility of the members to exercise their vote. When a person is a member of the Parish Assembly, no doubt he is holding a post or office in the church and therefore he is bound to swear allegiance to the 1934 Constitution. Inasmuch as both the rival factions agreed to accept the 1934 Constitution it is essential that all the members should swear their allegiance to it in the event of which they would be qualified to participate in the election. Therefore, before holding election to the Managing Committee, the members included in the electoral roll shall swear allegiance to the 1934 Constitution.
14. The Catholicos demanded that the swearing of allegiance to the 1934 Constitution should be made to Mar Mathews II the Bishop of the Catholicos faction and the confession has to be made before his appointees. On the other hand, counsel for Patriarchs pointed out that the confession as required under the 1934 Constitution shall be made before priests appointed by the District Court. They are (i) Fr. Skaria (ii) Fr. Simon and (iii) Fr. Roy Mathew. Therefore, the confession will have to be made only to the above three priests and that is the definite stand adopted by the Patriarchs. In this context it has to be observed that S. 7 of the 1934 Constitution prescribes that those who confess and receive Holy Qurbana at least once a year shall be the members of the Parish Assembly and in view of the provision contained in Section 8 every Parish Assembly shall maintain a Parish Assembly register containing the names and particulars of members of the Parish Assembly and Holy Confession register containing the names and particulars of those who have confessed. That means every church shall maintain compulsorily Parish Assembly Register and Confession Register. The rival group in this case claim that they have maintained their own register on the basis of the confession made before their priests. The insistance on the properly maintained registers may sometimes take away the right of many members to participate in the election. That contingency at any rate should be avoided in the interest of maintaining the sense of democratic content in the church. Therefore the voters' list prepared by the joint receivers pursuant to the orders of this Court must prevail.
15. As referred to earlier, the condition that any and every person claiming to hold any office or post in the church shall be bound by and shall swear allegiance to the 1934 Constitution was incorporated in the judgment (AIR 1996 SC 3121) only by reason of the order passed by the Supreme Court (AIR 1997 SC 1035) on 5-2-1997. The position is thus made abundantly clear from that date onwards. It may be possible to argue that only after swearing allegiance to 1934 Constitution the requirements prescribed in different sections would be operative. As far as the present case is concerned, the judgment of the Division Bench in A. F. A. 59/96 was pronounced as aforesaid on 16-12-1996. Though the direction to hold the election had been issued by the said judgment the election did not take place till 5-2-1997. In the aforesaid premise we feel it would be unjust to insist the preparation of the voters' list strictly in accordance with the Parish Assembly Register and Holy Confession Register contemplated under Section 8 of the 1934 Constitution. As a matter of fact the dispute as between the rival factions was subsisting as to before whom the confession should be made. Therefore the requirement of maintaining the confession register can be insisted only prospectively, that is to say after swearing allegiance to '1934 Constitution' as propounded by the Supreme Court in the decision reported in AIR 1997 SC 1035. In the circumstances of this case, we are of the view that every member who proposes to participate in the election shall be allowed to swear allegiance to the 1934 Constitution in the form of an affidavit.
16. As per Report No, 6 submitted by advocate receiver Shibu Thomas there were 2,429 voters. However, as per Report No. 7 submitted by Advocate receiver G. Suresh there were only 663 voters. In this context advocate receiver Shibu Thomas in his Report No. 8 clarified that out of the 663 members, 600 members were already included in the list of 2,429 members submitted by him. Therefore the difference relates to only 63 members and he has given the following reasons for not including their names in the list. Firstly, serial numbers 153, 212, 291 and 432 are persons below the age. Secondly serial numbers 18, 240, 453, 467, 454, 468, 455, 469, 469, 470, 466 and 472 are duplications. Thirdly, serial numbers 427, 428 and 429 are not the members of the parish. The report further states that if the aforesaid 63 persons come with identity cards before the joint receivers, such of those persons can also be included in the final voters' list. Therefore we direct that if such persons had already submitted identity cards their names also shall be included in the final voters' list. We also order that the joint receivers are free to extend the time for the production of identity cards, if such extension is found to be necessary. At any rate the dispute with regard to this 63 persons shall be decided within two weeks from today. Thus we approve the voters' list submitted by advocate receiver Shibu' Thomas subject to the decision of 'the joint receivers in respect of the above 63 persons as abovesaid. Conclusions
17. The areas of disagreement brought before this Court by Report No. 8 of 1997 by advocate receiver Shibu Thomas and Report No. 2 of 1998 by the advocate receiver G. Suresh are answered as below :
(1) The total number of voters submitted by both faction together is fixed as 2,469, subject to the decision on objection against 63 voters.
(2) If any proper identity cards are produced by the 63 persons they shall be included in the voters' list.
(3) All the voters fixed as above shall be allowed to exercise their vote only on swearing allegiance to the '1934 Constitution' by way of an affidavit submitted before the Joint Receivers.
(4) If any person has already affirmed allegiance to the 1934 Constitution by way of an affidavit before this Court in the present proceeding, he need not again submit such affidavit.
(5) After completion of the above requirements the joint receivers shall hold election as expeditiously as possible, at any rate within a period of two months from today and the time earlier granted for holding election is extended accordingly.
(6) The results of the election shall be declared by the receivers and furnish a report to this Court.
(7) The joint receivers shall obtain orders from this Court before handing over the charge to the newly elected Managing Committee as directed by the Division Bench in its judgment.