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Judgment
Honourable Mr. Justice K. Chandru
This contempt petition arose out of an order passed by this Court in W.P.(MD) No. 3717 of 2010 dated 24.03.2010. It is stated that the
respondent, viz., Superintendent of Police, Madurai District had flouted the orders of this Court, thereby committed contempt of Court.
When the matter came up on 22.02.2011, the learned Additional Government Pleader was directed to get instructions from the respondent. On
notice from this Court, the respondent has filed a counter affidavit dated 18.03.2011. Since a reference was made to an order dated 18.10.2011
made in Crl.O.P.(MD) No. 14871 of 2010, connected papers were directed to be circulated by the Registry. Accordingly, the Registry has
circulated the papers relating to the Crl.O.P.
It is seen from the records that the petitioner earlier moved the District Munsif Court, Tirumangalam in O.S. No. 219 of 2000, seeking for
permanent injunction restraining the defendants in the suit from interfering with her peaceful enjoyment of the property of the petitioner. The
schedule of the property was set out as New Patta No. 569 R.S. No. 215 Nanja 1 Acre 20 cents in Melakkal Village, Vadipatti Taluk. In that
suit, the first defendant was one Archunan S/o. Poremanan Servai.
Alleging that her attempt to harvest the agricultural produce in the said land is being interfered with by the said Archunan, the petitioner filed a
writ petition in W.P. No. 3717 of 2010, seeking for a direction to respondents 1 to 3 therein including the present respondent to give adequate
police protection. That writ petition came to be disposed of at the admission stage by K.Venkataraman,J vide order dated 24.03.2010. Though
Archunan was shown as 4th respondent, no notice was given. Even the Additional Government Pleader who took notice did not verify any further
details in respect of the allegations made by the petitioner and the fate of any criminal investigation. In that order dated 23.03.2010, in paragraphs
3 to 5, it was ordered as follows:-
It is the case of the petitioner that in spite of decree obtained before the Civil Court, the fourth respondent is attempting to interfere with the
possession of the petitioner which made her to come forward with the present writ petition.
In such circumstances, the petitioner has to go before the Civil Court, where she has obtained a decree. Furthermore, if the complaint is not
taken cognizance of the police official, the remedy of the petitioner lies in approaching the concerned Magistrate u/s 156(3) Cr.P.C or Section 200
Cr.P.C. However, without taking recourse as referred to above, the petitioner approached this Court by filing the present writ petition.
However, the present Writ Petition is disposed of with a direction to the first respondent to consider the complaint given by the petitioner and
enquire into the matter by calling the petitioner and the fourth respondent and take appropriate action.
On the strength of the said order, the petitioner sent a representation dated 24.08.2010 and also sent a legal notice dated 12.12.2010
threatening the respondent with contempt proceedings. Thereafter, alleging that the said order has not been complied with, the present contempt
petition came to be filed.
In the affidavit filed in support of the contempt petition, in paragraph 10, it was stated as follows:-
10.... He called me many times to his office for enquiry and I attended accordingly but the 4th respondent Arjunan declined to attend enquiry for
final disposal. The Contemnor/1st respondent has not enquired my complaint and afraid to call the 4th respondent and dispose my complaint as
directed by this Hon''ble Court. Eventhough the Contemnor/1st respondent has vested with ample power to take action against the 4th respondent,
who is a wrong doer and Law breaker. The Contemnor/1st respondent has willfully and deliberately disobey the order of this Hon''ble Court. The
inaction of the Contemnor/1st respondent is amounted to willful defiance of the order of this Hon''ble Court. Therefore he is liable to be punished
for having offence committed Contempt of Court. Hence I file this Contempt Petition.
In the counter affidavit filed, the respondent denied having disobeyed the order and also referred to the order passed in the subsequent Crl.
O.P. No. 14871 of 2010 filed by the said Archunan as his defence.
It is seen subsequent to the order passed by this Court dated 24.03.2010 in W.P.(MD) No. 3717 of 2010, in which the said Archunan was not
even given notice moved the criminal side of this Court in Crl. O.P.(MD) No. 14871 of 2010 seeking for a direction to the same respondents
including the present respondent not to intervene in the matters of civil dispute and for a direction to take action against respondents 3 and 4
therein. In that Crl.O.P., the contempt petitioner was made as 4th respondent. Once again without notice to the contempt petitioner, Crl.O.P. was
disposed of with the following directions:
3.In my considered opinion, if there is any such dispute between the parties, the remedy for them lies before the Civil Court. Except there is a
grave situation or law and order problem, the respondent - Police cannot interfere with the same, so long as the dispute is civil in nature.
In such view of the matter, the respondent - Police are directed not to interfere with the civil dispute, so long as the same remains civil in nature.
The official respondents did not even reveal the nature of the earlier order. of course, the said Archunan may not be aware of the order passed
by this Court as he was not been heard in the writ petition. By the present order passed, respondent is faced with diametrically opposed orders
thereby giving rise to the present contempt proceedings. It is only re-enforced that no direction can be issued without notice to the parties before
the Court and the Court passing two diametrically opposed orders have created an unpleasant situation for the respondent. The respondent cannot
be blamed for the state of affairs as he is bound by both orders passed by this Court. He cannot be allowed to speculate as to which order he
should follow.
Under such circumstances, this Court is not inclined to issue any contempt proceedings against the respondent only because this Court has
created such a problem. In this context, it is necessary to refer to the judgment of the Supreme Court in Mohd. Iqbal Khanday Vs. Abdul Majid
Rather, , wherein the Supreme Court 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 view of the above, the contempt petition stands dismissed.