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Kerala HC Ignored Binding Precedent To Hold Bishops Can't Alienate Church Assets : Catholic Diocese Argue Before Supreme Court
Rintu Mariam Biju
18 Jan 2023 3:41 AM GMT
The Kerala High Court's observation that Bishops have no power to alienate the assets of church is against an earlier judgment of the High Court itself which held that church assets are not public trusts, submitted a Catholic diocese before the Supreme Court on Tuesday.Senior Advocate Chander Uday Singh, appearing for the Eparchy of Bathery, informed a bench comprising Justices Dinesh...
The Kerala High Court's observation that Bishops have no power to alienate the assets of church is against an earlier judgment of the High Court itself which held that church assets are not public trusts, submitted a Catholic diocese before the Supreme Court on Tuesday.
Senior Advocate Chander Uday Singh, appearing for the Eparchy of Bathery, informed a bench comprising Justices Dinesh Maheshwari and Bela M Trivedi that in 2016, the High Court had held in the case Major Archbishop Angamaly and Others v. P.A.Lalan Tharakan that church assets are vested with the Bishop.
However, in 2021, another single bench, while refusing to quash criminal cases against Cardinal Mar George Alencherry over the sale of properties belonging to Ernakulam-Angamalay Archdiocese, made a contrary finding, the senior counsel said. Challenging the general observations about canon law made by a single bench of Justice P Somarajan, Catholic Dioceses of Thamarassery and Eparchy of Bathery approached the Supreme Court. Cardinal Alencherry has also approached the Supreme Court challenging the refusal to quash the criminal cases against him.
Singh challenged the general declaration made by the High Court in a Section 482 CrPC petition filed by the Cardinal that section 92 CPC will apply to church properties and not the canon law.
"It's completely beyond the scope of 482. There was an earlier proceeding before the Kerala HC (co-ordinate bench) so far as Episcopal Churches are concerned which said that rights on properties of the church are vested with the Bishop of Kerala. The case was Major Archbishop Angamaly and Others v. P.A.Lalan Tharakan."
There's no Supreme Court pronouncement on the matter? the bench asked.
Though the Court has issued notice in Tharakan's case, it has not stayed the HC order, Singh replied.
He argued that civil rights cannot come under a 482 petition filed by a party to quash criminal cases.
".....In a 482 filed by an Archbishop, the High Court goes into its interpretation of Canon law and holds that the property is not vested in the Bishop. How can these civil rights be dealt in this manner? We are on the larger issue - how can civil rights come under a 482 petition?"
The Judge, Singh added, said that there's no right to alienate property and brought in Section 92 by the backdoor.
"That judgment (Tharakan) may be right or wrong... it is not carved in stone. But can the judge brush aside the entire precedents of law which have been there and say no, I treat it as a trust property?", Singh argued.
Complainant indulged in 'forum-shopping' : Cardinal's counsel
The complainant has engaged in forum shopping and did not reveal the information of the earlier filed unsuccessful cases, Cardinal George Alencherry, the Major Archbishop of Syro-Malabar Church told the Supreme Court on Monday in the alleged land scam case.
Senior Advocate Sidharth Luthra, appearing for the Cardinal, submitted that the church had certain lands which had to be sold to pay off certain loans and this is the subject matter of the petition.
He further informed that Respondent 2 (Joshy Varghese, the original complainant) had filed an earlier complaint and was not successful. He broke it into 7 complaints and six are part of the SLP. The complainant alleged that the land was sold for a lesser price.
Luthra went on with the three main grounds for his challenge: Forum shopping and suppression of unsuccessful complaints, the matter being a civil dispute, and the High Court giving directions to investigate in a summoning order.
"There are breaking complaints and forum shopping. First, suppression of unsuccessful complaints and forum shopping. Second, the matter is a civil dispute. Third, in a challenge to a summoning order under section 204, the High Court has reverted the proceedings and given direction to investigate which is prohibited by various decisions."
Luthra also explained how the complainant conducted parallel proceedings.
"The point I want to make was, your initial complaint at P1 describes 5 properties, you take 2 and file a separate complaint. This complaint was dismissed on 30th September 2021. You file the second complaint in June 2018 while the first complaint is pending. The first complaint was filed in January 2018. In essence, you are carrying on parallel proceedings and you are suppressing this fact."
Apprising the court of the contents of the complaint, the senior advocate said that the initial part of the complaint is about facts, and the second part is about conspiracy. "He gets into factual aspects and then he says you sold the land without following the processes of the church".
Luthra also pointed out that the complainant could have gone to the Registrar challenging the sale or filed a suit. But that was not the recourse taken. "You don't do that, you straight away file criminal action".
Also, the High Court, in its order, found a breach of trust which is "causing serious prejudice" to the Cardina.
He also relied on various judgments, on forum shopping, abuse of process and on when can a second complaint be filed after you have filed/lost the first one.
"This is really a case of persecution", Luthra concluded while referring to the closure report filed by the Police which suggested enmity between the two groups.
The hearing will continue today.
While monitoring the investigation in cases against the Cardinal, the single bench of the High Court passed follow-up directions on October 27, 2022. The bench also requested the Central Government to consider framing a law to regulate religious organizations.
Earlier, while refusing to quash the criminal cases against the Cardinal in 2021, the single bench of Justice P Somarajan had observed that Bishops have no power to alienate church assets. Challenging the findings, a few other dioceses approached the Supreme Court.
Case Title: Eparchy of Bathery vs. State of Kerala and Ors - SLP(Crl) No. 1487-1493/2022, Catholic Diocese of Thamarassery vs. State of Kerala and Ors | Diary No. 7364/2022
