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Judgment
Honourable Mr. Justice K. Chandru
The two Writ Petitions as well as the Contempt Petition were filed by one and the same person. The petitioner one Muniyammal Thiruvadi represented by her power agent by name M. Dhanasekaran filed these two Writ Petitions. In W.P(MD).No.2578 of 2009, the petitioner sought to challenge the order dated 19.03.2009 issued by the first respondent, the Tahsildar, Ettayapuram Taluk, Tuticorin District, to set aside the same and to pass orders on the representation dated 22.09.2008, after conducting an enquiry and also to issue a patta in respect of Survey No.213/9 in Ilampuvanam Village, measuring 0.36.5 Hectares in favour of the petitioner. The second Writ Petition [W.P.(MD)No.11844 of 2010] is of a general nature.
When the Writ Petition being W.P(MD).No.2578 of 2009 came up for admission, this Court, after issuing notice on 01.04.2009, permitted private notice and granted an order of status quo with reference to the patta. The Writ Petition was directed to be posted on 16.04.2009. On 16.04.2009 since service was not completed, the Writ Petition was directed to be posted after filing proof of service and the interim order granted was extended till completion of service. Alleging that the said interim order has been disobeyed, the petitioner filed a Contempt Petition being Contempt Petition (MD)No.657 of 2010. The allegation made by the petitioner was that the respondent, the Tahsildar has willfully disobeyed the order and by an order dated 30.08.2010, he has transferred the patta in favour of one Suseela Rani.
It transpires that the said Suseela Rani has earlier filed a Writ Petition being W.P(MD).No.2438 of 2009 seeking for a direction claiming that she was the owner of the property and her representation dated 24.07.2008 for the grant of patta was to be considered by the Tahsildar, Ettayappuram Taluk, Tuticorin District. In that Writ Petition, the present petitioner was cited as the fourth respondent and the order records shows that he had not entered appearance in this case. When a person gets a direction from this Court to the Tahsildar, he is also bound to act on the basis of the order passed by this Court and for passing contradictory orders, the subordinate officers cannot be found fault with. The complaint of the petitioner was that he was not heard at the time of passing such direction. In any event, the petitioner himself has chosen to challenge the order dated 30.08.2010 in the subsequent Writ Petition in W.P.(MD)No.11844 of 2010.
When the said Writ Petition [W.P.(MD)No.11844 of 2010] came up for admission on 16.09.2010, this Court directed the earlier Writ Petition to be tagged along with this Writ Petition. Subsequently, on 30.09.2010, interim injunction was granted from altering the village records, pursuant to the grant of patta in favour of the said Suseela Rani, who is now arraigned as the fourth respondent in the second Writ Petition. The interim order granted for a limited period was subsequently extended from time to time. When the matter came up before this Court on 16.12.2010, the Writ Petition was directed to be posted, after the disposal of the Contempt Petition.
On notice from this Court, the Tahsildar, Ettayapuram Taluk, Tuticorin District has filed a counter affidavit dated-Nil (December, 2010) in the Contempt Petition and also a counter-affidavit dated 09.10.2010 in W.P.(MD)No.11844 of 2010. It is claimed by him that since there was a direction issued in W.P.(MD)No.2438 of 2009, he has considered the representation of the said Suseela Rani for patta, as per the direction of this Court and after obtaining legal opinion from the Government Pleader at Kovilpatti and u/s 15 of the Tamil Nadu Patta Pass Book Act, 1983, an application has to be considered within 15 days from the date of registration of the sale deed. The record produced by Suseela Rani showed that she had purchased the property in dispute through a registered sale deed for consideration from a person in whose name the patta was already standing. The claim of the petitioner to have legal title over the property was also questioned.
Further, it was indicated in the impugned order dated 30.08.2010 that the petitioner as against the order has a remedy by way of an appeal to the Revenue Divisional Officer. However, for reasons best known, the petitioner has not availed a remedy of an appeal. There is also a further revision to the District Revenue Officer. If the Act requires a particular thing to be done in a particular fashion, the petitioner cannot come to this Court directly without availing the statutory remedies provided under the Act. Though the petitioner claimed in the affidavit filed in support of the Writ Petition that he has no other equally efficacious alternative remedy except to approach this Court, such statement clearly overlooks the statutory provisions provided under the Tamil Nadu Patta Pass Book Act, 1983.
The contesting respondent Suseela Rani has also filed a vacate stay application in M.P.(MD)No.3 of 2009 in W.P.(MD)No.2578 of 2009 together with the supporting counter-affidavit dated 15.07.2009. In that, she had stated that the writ petitioner has also filed a suit in O.S.No.108 of 2009 (the counsel for the petitioner states that the number of the suit is O.S.No.118 of 2010) and the summon produced by Suseela Rani showed that it is O.S.No.108 of 2009. In any event, the fact of the pendency of the civil suit is not disputed. Therefore, there are two courses open to the petitioner either to get an order from the Civil Court or to approach the authorities concerned for getting appropriate remedy, which they are bound to do under the Act or in the alternative, avail the remedy by way of an appeal and still aggrieved, by way of revision. Certainly, pendency of the two Writ Petitions on the ground urged by the petitioner cannot be countenanced. Hence, both Writ Petitions are dismissed. Consequently, the connected miscellaneous petitions are closed. No costs.
Under the said circumstances, this Court do not think that any contempt is made out, especially when this Court has given two different directions and it is hardly justifiable to find the respondent''s guilty for obeying the one order, while implementing the other order.
The Supreme Court, vide its judgment in Mohd. Iqbal Khanday Vs. Abdul Majid Rather, has held that impossibility of performance can be a legitimate defence in the contempt petition. The following passages found in paragraphs 14 to 16 of the said judgment may be usefully reproduced below:
The law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in the administration of justice. The order dated 21-9-1992 while directing notice also required the appellant to accord promotion to the respondent as Associate Professor. It requires to be noticed here that is the main prayer in the writ petition itself. In such circumstances, the correctness of such an interim order is open to serious doubt. For a moment, it is not to be understood that the court has no power to pass such an order but the question is whether while granting such interim reliefs the discretion of the court has been correctly exercised? If the writ petition is ultimately dismissed, the respondent would have gained an undue advantage of getting a promotion undeservedly. But we are not on the merits of the interim order.
Right or wrong, the order has been passed. Normally speaking, it cannot be gainsaid that the order ought to have been obeyed but it appears that there are insuperable difficulties in implementing the order. First is that the post of Associate Professor, according to the respondent, is a selection post. Secondly, the mere seniority, even if that is assured in favour of the respondent, would not be enough to gain such a promotion. Thirdly, the specific order of the Government was to exclude the period of deputation on foreign assignment from reckoning the duration of the teaching experience of the respondent. Therefore, the respondent did not possess the requisite qualification. Fourthly, such necessary qualifications seem to be mandatory under the rules. That being the position to accord such a promotion, will be violative of the rules. Fifthly, the promotion could be granted only by the Public Service Commission and not by the appellant.
From the above, it appears that the appellant was expressing his genuine difficulties with regard to the implementation of the order dated 21-9-1992. In such a situation the insistence of the courts on implementation may not square with realities of the situation and the practicability of implementation of the court''s direction. In our considered view, hooking a party to contempt proceedings and enforcing obedience to such orders hardly lends credence to judicial process and authority; more so, in the peculiar facts and circumstances of the case. The court must always be zealous in preserving its authority and dignity but at the same time it will be inadvisable to require compliance of an order impossible of compliance at the instance of the person proceeding against for contempt. Practically, what the court by means of the contempt proceedings seeks is an execution which cannot meet with our approval.
In the light of the above, the Contempt Petition also stands dismissed. However, if any such appeal is filed by the petitioner, the Revenue Divisional Officer, Kovilpatti, who is the appellate authority, will take up the case and exclude the days during the pendency of the Writ Petitions and Contempt Petition before this Court and calculate the limitation provided therein and, thereafter, entertain the same on merits.