Legal Notes by Arvind Datar: Prohibition - A writ remedy seldom used

The most common writ petitions filed are either for a certiorari to quash an order or a mandamus to direct a public authority to perform its duty or forbear it from doing something which it ought not to. Both Articles 32 and 226 also refer to a writ of prohibition, but this type of writ petition is seldom filed in our High Courts.

This is unfortunate because this writ is a very useful method to check executive action, such as a show cause notice which is without jurisdiction. The most important advantage of a writ of prohibition is that the plea of alternative remedy is not a bar.

It is essential to note the difference between a writ of prohibition and a writ of certiorari. While a writ of certiorari is issued to quash an order of an inferior tribunal or court which suffers from an error of law apparent on the record, a writ of prohibition is issued against an executive authority or tribunal that lacks jurisdiction to take action or pass an order that it proposes to.

The important difference lies in the stage when these two writs can be issued. In the case of a writ of certiorari, the writ will lie only after the executive authority or tribunal passes an order which suffers from the error of law and requires interference by the High Court. If an order is passed without jurisdiction or contrary to a statutory provision, the writ of certiorari will lie to quash it. However, a writ of prohibition will lie before an order is passed. It is important to note that if a show cause notice is issued without jurisdiction, a writ of prohibition will lie to prevent the authority from usurping jurisdiction or exercising jurisdiction which it does not have.  Thus, a writ of prohibition will be issued at the initial stage, while the writ of certiorari may be issued after the order is passed. 

In one case, cash subsidy was granted to an industrial unit. A notice was issued to recover the subsidy even though provisions of the scheme had not been violated. It was held that if the industrial unit had fulfilled the stipulated conditions, the authority would have no jurisdiction to recover the subsidy. A writ of prohibition will lie in such a case. [Sun Beverages Pvt. Ltd. v. State of Uttar Pradesh (2004)]. Similarly, a writ of prohibition can be an effective remedy against a show cause notice that is issued in contravention of a statutory provision or a binding circular. Show cause notices issued in the absence of jurisdictional facts can also be challenged by a writ of prohibition.

Alternative remedy

The most common ground to dismiss a writ petition is that the petitioner has an alternative remedy. In most cases, there is a right of appeal or revision, and a writ of certiorari can be refused on the ground that there is an alternative and efficacious remedy, which should be availed by the petitioner. Unfortunately, several High Courts dismiss writ petitions only on the ground of alternative remedy, without ascertaining whether the alternative remedy is efficacious as well. In a writ of prohibition, the existence of an alternative remedy cannot be a ground to dismiss the writ petition. This is the most significant feature of this writ petition.

Justice Venkatarama Ayyar observed that the question of alternative remedy is a very material circumstance to be taken into account when the court is called upon to issue a writ of certiorari, but wholly different considerations arise when the writ is for prohibition. If the subordinate court or tribunal usurps jurisdiction which does not belong to it, then the issue of this writ, though not of course, is of right and not discretionary.  This important ruling is a part of the minority view in Bengal Immunity Company Limited v. State of Bihar (1955). However, on this point, no opinion was expressed by the majority, and this will be the law declared by the Supreme Court under Article 141.

A five-judge bench has also held that if, on a reading of a notice, it is clear that none of the conditions set out in statutory provisions are contravened, the Collector of Customs can certainly be prohibited from proceeding with the notice. Similarly, the law declared by the High Court (or the Supreme Court) is binding on all the authorities in that State. If the show cause notice is issued contrary to a judgment of the jurisdictional High Court, a writ of prohibition will lie. Subba Rao J. pointed out that if a statutory authority has no jurisdiction to initiate proceedings or make an enquiry under section, he can certainly be prohibited from the proceeding with the same. [East India Commercial Co Ltd v. CC (1963)]

Thus, if a show cause notice is issued or proceedings are initiated that are without jurisdiction, then a writ of prohibition will lie, as of right, to prevent the authority from exercising jurisdiction that it does not possess. In such a case, a writ cannot be dismissed on the ground of alternative remedy. Once it is shown that the authority has no jurisdiction, it would be incorrect for the High Court to permit such a proceeding to continue.

Unfortunately, writs for a certiorari are filed even to quash a show cause notice. This is not correct, as a writ of certiorari is to quash an order passed by an executive authority or inferior tribunal. At the show cause notice stage, there is no order to quash. A writ of prohibition is the appropriate writ to prohibit the authority from proceeding with the proposed action which is without jurisdiction.

Arvind P Datar is a Senior Advocate.