WRIT OF PROHIBITION

INTRODUCTION 

The rate of prohibition is a judicial order which is issued by the Supreme Court or a high court to any constitutional statutory or non-statutory agency to prevent such agencies from continuing the  proceedings, which is in excess or abuse of their jurisdiction or which is in violation of the  principles of national justice or which is in. Contravention of the law of the land. 

The writ of prohibition is a writ of right. Thus, it cannot be applicable in cases where there is an excess of jurisdiction or in cases where jurisdiction is being exercised in violation of the law of the land; in such cases, the writ of certiorari is applied.  

The writ of prohibition has a lot in common with the writ of certiorari, as they have a lot in common  with regards to the rules, scope and rules by which they are governed. However, there lies a  fundamental difference between the two writs. The writ of prohibition is issued when the  proceedings are in progress in order to forbid the authority from continuing with the proceedings,  however, certiorari is issued when the proceedings have terminated and when the authorities has  given a final stage to quash the decision. Thus, we can observe that the writ of prohibition is issued  at an earlier stage than the writ of certiorari. The writ of certiorari is generally applied at the last  stage, that is, the stage when the final decision is given as this writ is generally used to quash orders. However, it should also be noted that the writ of prohibition and the writ of certiorari may  overlap each other. For example, if an agency gives a decision which does not finally dispose the  matter, the writ of certiorari will be used to quash the decision and the writ of prohibition will be  used to forbid the agency from further continuing the proceedings. Generally, the norm is to pray  for the writ of prohibition and alternatively for the writ of certiorari, as it is observed that the  pending proceedings for writ of prohibition the agency may hand over its final decision. 

GROUNDS FOR ISSUANCE OF WRIT OF PROHIBITION  

The grounds which is used for the issuance of the writ of certiorari can also be used for the issuance  of the writ of prohibition except in case where there is error of law apparent on the face of record.

Halsbury’s laws of England provides a definition for the rate of prohibition. According to this  definition, an order of prohibition forbids an agency to continue proceedings in contravention of  the law of the land in. So, this would promise to sign in that erroneous interpretation of law,  especially statute law, which forms the bulk of the law in operation to be included as the grounds  for the issue of prohibition. However. We must note that in the case of India, this definition does  not hold much significance as it refers to an era in England in which certain agencies were not  subject to the writ of certiorari, to whom writ of prohibition was issued for every error regarding  the law of the land but in the case of India. The rate of society is very well applicable in such  cases. 

In India, the writ of prohibition is used by courts to protect an individual from arbitrary  administrative action. 

The writ of prohibition is the writ of right. So, the existence of an alternative remedy is an irrelevant  consideration In cases where the complaint is that the inferior tribunal exceeds its jurisdiction, or  assumes jurisdiction which is not vested in it by law as it would amount into forcing a person to  first suffer and submit to the jurisdiction of the authority which is illegal and then take advantage  of the alternative remedy before approaching the court. 

The writ of prohibition is an efficacious and speedy remedy in which a person does not desire any  other relief except to stop the administrative agency. An alternative remedy does not bar the issue  of the writ of prohibition, the mere fact that something must be left to be done is necessary for the  issuance of the writ of prohibition is not a role of disability. The writ of prohibition can be issued  even in cases where the agency has reached a decision to stop the authority from enforcing its  decision the rate of prohibition can be showed even in cases where an authority has not kept any  record. 

The grounds for the issuance of a writ of Prohibition are briefly discussed as follows. 

1. Lack of jurisdiction  

2. Excess of jurisdiction  

3. Abuse of jurisdiction  

4. Violations of the principles of natural justice 

5. Fraud 

In the case of lack of jurisdiction, these situations occur when there is a situation where there is  absence of authority of jurisdiction to take action. These situations may arise in the following  cases:- 

(1) Were the authority is improperly constituted  

(2) In cases where authority commits an error in their decision on jurisdictional facts  (3) That the authority proves to be incompetent to take action with respect to locality,  party or subject matter  

(4) That the law that provides jurisdiction is in itself unconstitutional 

(5) That primary preliminary essentials have been disregarded. 

In the case of Rafiq Khan v. State of Uttar Pradesh (AIR 1954), the court held that Section 85 of  the Uttar Pradesh Panchayat Raj Act, 1947 provided power to the sub divisional magistrate to  either quash the entire order of the panchayat adalat or to cancel its jurisdiction. However, the Sub  Divisional Magistrate had no power to modify the order in any manner. The court issued that the  writ of certiorari to quash the decision of the Sub Divisional Magistrate where he had modified the  conviction passed by the Pacnchayat Adalat by quashing conviction of the accused for one offence  and maintaining the order with respect to the other offence. 

In the case of Budh Prakash Jai Prakash v. STO (AIR 1952 All 764), the court observed that  there was a lack of extent of jurisdiction in case where the subject matter was outside the scope of  extent of jurisdiction of authority which led the court to issue the writ of certiorari. Writ of  prohibition can also apply in this case 

With regards to of excess of jurisdiction, it refers to a situation where an authority exceeds its  permitted jurisdictional limits.  

In the case of A.K. Chauduri v. R. K. Datta (AIR 1958 SC 722), the governing body of a college  affiliated to Gauhari University had dismissed its principal on the ground of misconduct. The court  issued certiorari to quash the decision of dismissal on the ground of excess jurisdiction of the 

University under Section 2(9) of The Gauhari University Act, 1947 as tis could not appy to  principals as it was only confined to teachers. 

With regards to abuse of jurisdiction, an authority is deemed to have abused its jurisdiction in  case where it exercises its power for improper use, or in bad faith, or for extraneous considerations,  or leaves out a relevant consideration, or delegates its power to someone else in cases where it is  not allowed to do so.  

With regards to violations of principles of natural justice, we must first understand the principles  of natural justice by briefly enumerating them as follows:- 

1) Rule against bias 

Rule against bias encompasses: 

▪ Personal bias 

▪ Pecuniary bias 

▪ Subject-matter bias 

▪ Departmental bias 

▪ Preconceived notion bias 

2) Rule of audi alteram partem, which includes: 

▪ The right to know adverse evidence 

▪ The right to present a case 

▪ The right to rebut evidence 

▪ The right to cross examination and legal representation 

▪ The right to reasoned decision 

This right is thus known as the right to a fair hearing, and if an administrative agency violates any of the said rules in cases where they are bound to adhere to them, the decision of the agency would be stopped by using the writ of prohibition. 

In the case of Sirsi Municipality v. Cecilia Kom Francis Tellis (AIR 1973 SC 855), a hospital  worker was dismissed without a proper hearing for alleged negligence which resulted in the death  of a patient. The court quashed the decision dismissal by issuing a writ of certiorari. Writ of  prohibition is also applicable in this case.

In the case of State of Punjab v. K. R. Erry (AIR 1973 SC 834), it was observed that the pension benefits of an Assistant Engineer of the Public Works Department was reduced without proper hearing on the alleged ground of adverse confidential report. The court quashed this dismissal via  writ of certiorari as this decision of dismissal went against the principal of natural justice by being  in violation of the principle of audi alteram partem. 

In the case of Daud Ahmed v. District Magistrate, Allahabad (AIR 1972 SC 896), a person’s  property which was in his personal possession was requisitioned by the District Magistrate without  giving him a proper hearing. The court quashed this dismissal via writ of certiorari as this decision  of requisition of property by the District Magistrate went against the principal of natural justice by  being in violation of the principle of audi alteram partem. 

With regards to fraud, it is observed that if a decision of an agency is founded on fraud, the high  court may apply the writ of Prohibition as this is a remedy available to the high courts as they can  refuse it on the ground of laches, aqueiscence, available alternate remedy and n benefit to the party.