Short notes on the Writ of Prohibition issued by High Courts of India

It is a writ from the High Court restraining an inferior court from continuing the proceeding in excess of its jurisdiction.

This writ is issued from a higher Court to an inferior court or tribunal prohibiting it from proceeding further with the matter pend­ing before it, either because-

(i) Such inferior court or tribunal is exceeding its jurisdic­tion; or

(ii) Such inferior court or tribunal is acting in contravention of law. This writ thus limits a judicial authority within its jurisdiction.

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Where proceedings in an inferior court or tribunal are partly within and partly without its jurisdiction, prohibition will lie against I doing what is in excess of jurisdiction.

Thus where the Collector of Customs has imposed invalid conditions for release of gold on the payment of the fine in lieu of confiscation, the High Court can grant a writ of prohibition prohibiting the customs authorities from enforcing the invalid conditions.

A writ of prohibition can be issued only if there are proceedings pending in a court. It follows that it is incapable of being granted when the court has ceased to exist, because there can be then no proceeding on which it can operate.

This writ is a prerogative writ issued out of the superior court to an inferior court or tribunal prohibiting it to continue proceedings in excess of its jurisdiction in contravention of the laws of the land.

This writ of prohibition as its very name suggests, is issued for the purpose of preventing inferior Courts from exceeding their jurisdiction. The writ can be claimed as of right if prima facie grounds are shown.

The mere fact that the applicant has the other remedy by way of appeal, etc. will not bar his right to the issue of this writ. The writ can be issued and the proceedings before the inferior tribunal stopped at any stage of the case. The writ of prohibition like the writ of certiorari can be issued only against judicial or quasi judicial proceedings and not against the exercise of a legislative or executive function.

If the presiding officer of a judicial tribunal has a personal inter­est in any dispute or clearly acts mala fide he will have no jurisdic­tion to deal with the proceedings before him and a writ of prohibition would issue to remove those proceedings from his cognizance.

A writ of prohibition is directed against a tribunal and not a private party. Where the In­dustrial Tribunal makes an award it becomes for the purpose of en­forcing the award functus officio and there is then no proceeding whatever pending before the Industrial Tribunal which could be prohibited.

Hence a petition for the issue of a writ of prohibition against a private party seeking to restrain them from enforcing the award of the tribunal either by an application under Sec. 20, In­dustrial Disputes (Appellate Tribunal) Act or either is misconceived.

In Rekhi v. Income Tax Officer, AIR (1951), Simla, the petitioner had belonged to Rawalpindi and had been residing and doing business there till the partition of the Punjab in 1947. His assessment for the year 1944-45 and 1947-48 was pend­ing before the Income-Tax Officer, Rawalpindi.

On 30th December, 1948, the petitioner was called upon by the Income-Tax Officer, New Delhi to make returns for assessment year 1944-48. The petitioner asked for a writ of prohibition, prohibiting the officer from continu­ing the proceedings.

Dismissing the petition the Court observed that the jurisdiction to proceed under S. 34 was by law vested in the In­come-Tax Officer who had a statutory duty imposed upon him to proceed if he made a discovery within the meaning of Section 34 of that Act. The Court quoted with approval the following passage from Halsbury:

“A writ of prohibition is an appropriate remedy where the facts establish clearly that on the hearing of an appeal against an assess­ment the only course open to the Commissioner hearing the appeal is to discharge the assessments.

Where, however, there is any doubt as to the facts the appropriate remedy is by way of appeal not by way of writ of prohibition.

A writ of prohibition is issued when there is something done in the absence of jurisdiction or in excess of jurisdic­tion and inappropriate where there is a question to be determined which can be determined on an appeal against assessment.”