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PROHIBITION _

The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This
writ is issued when a lower court or a body tries to transgress the limits or powers vested in it.
The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court,
or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case,
where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc.
come to a stop.

A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits.
This writ is often issued by a superior court to the lower court directing it not to proceed with a
case which does not fall under its jurisdiction.

Writs of prohibition can be subdivided into "alternative writs" and "peremptory writs". An
alternative writ directs the recipient to immediately act, or desist, and "show cause" why the
directive should not be made permanent. A peremptory writ directs the recipient to immediately
act, or desist, and "return" the writ, with certification of its compliance, within a certain time.

When an agency of an official body is the target of the writ of prohibition, the writ is directed to
the official body over which the court has direct jurisdiction, ordering the official body to cause
the agency to desist.

Although the rest of this article speaks to judicial processes, a writ of prohibition may be directed
by any court of record (i.e., higher than a misdemeanor court) toward any official body, whether
a court or a county, city or town government, that is within the court's jurisdiction.

 A writ of prohibition is issued primarily to prevent an inferior court or from exceeding


its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is
issued by a superior court to inferior courts from usurping a jurisdiction with which it was not
legally vested, or in other words to compel inferior courts to keep within the limits of their
jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where
there is absence of jurisdiction. [1] Prohibition is not a continuation of the proceedings to be
prohibited. Its object is on the contrary to arrest the inferior tribunal's proceedings. It is a
collateral matter progress essentially between the two tribunals, an inferior one and other
superior one by which the latter, by virtue its power of superintendence over the former, restrains
it within its rightful competence. Its nature is held to depend upon the nature of proceeding to be
prohibited. The writ can be issued only when the proceedings are pending in a court if the
proceeding has matured into decision, writ will not lie. When the court, before whom the matter
is pending, has ceased to exist, in that condition too, the writ of prohibition will not lie because
there can be no proceedings upon which it can operate but on the other hand, if the court is
functioning, the writ can be issued at any stage of the proceeding before the inferior court or
tribunal. It can be issued only against a judicial and quasi-judicial bodyand not against a
legislative or administrative body.

Case Laws

Tamil Nadu Tobacco Co. Ltd. vs Union Of India on 2 August, 1991

So it cannot be put as a wide proposition that whenever cross-examination has been refused, it
will be a violation of the principles of natural justice. In my view, on the facts and circumstances
of this case, this Court cannot presume that the first respondent is going to pass an adverse order
on the basis of the show cause notice and the explanation given by the petitioners. Though the
learned senior counsel foresees, that there will be an adjudication against the petitioners, just for
that, this Court cannot presume so. Apart from that, in my view, a writ of prohibition should not
be issued in such a case where the adjudication proceedings is over and this Court should not
interdict with the proceedings. The case referred to by the learned senior counsel reported in S.
Govinda Menon v. Union of India and Another deals with the principles for the issue of
a writ of prohibition. In that case, the Supreme Court was concerned with a writ petition filed
by a member of the Indian Administrative Service against certain disciplinary proceedings taken
against him. The Supreme Court affirmed the judgment of the Kerala High Court in Srikandath
Govinda Menon v. Union of India and Another . In that case, the Supreme Court was
considering the jurisdiction of this Court under Article 226 of the Constitution of India for the
grant of a writ of prohibition. While considering the question at page 1277, the Supreme Court
held as follows :
I do not think that factually this case is relevant to the case on hand. In M/s. East India
Commercial Co. Ltd., Calcutta and Another v. Collector of Customs, Calcutta . The Supreme
Court while considering the question of notice issued under Imports and Exports (Control) Act,
1947 observed as follows at page 1903, paragraph 26 :-

"(26) The first question is whether the petition filed by the appellants under Article 226 of the
Constitution for the issue of a writ in the nature of prohibition is maintainable in the
circumstances of the case. A writ of prohibition is an order directed to an inferior Tribunal
forbidding if from continuing with a proceeding therein on the ground that the proceeding is
without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise,
Mackonochie v. Lord Penzance, 1881 AC 424 and Halsbury's Laws of England, Vol. 2, 3rd
Edn."

A single Judge of this Court in the decision reported in P.S. Subramaniam Chettiar v. The Joint
Commercial Tax Officer III, Dindigul [(1972) 30 S.T.C. 243] has held that
a writ of prohibition is not issued as of right or as a matter of course. But it can only issue if the
petitioner establishes to the satisfaction of a well instructed mind that a public duty is sought to
be neglected or an open action is being undertaken in violation of public law. In my view, in the
instant case, the circumstances do not warrant the issue of a writ of prohibition as the facts do
not disclose that the list of persons given by the petitioners have got to be cross-examined
necessarily for the purpose of adjudication as the adjudicating authority thought so. In Taj Mahal
Transports (P) Ltd., MelapayamTirunelveli v. Secretary, Regional Transport Authority,
Tirunelveli and Another , a Division Bench of this Court had an occasion to consider the scope
of issuing a writ of prohibition in a case which arose under the Motor Vehicles Act and traced
the history of the writ of prohibition in England at page 11, paragraph 10. Having traced the
history, the Division Bench held in paragraph 11 as under :

The learned senior counsel referred to me certain unreported decisions of the Bombay High
Court especially in W.P. No. 1572 of 1991 dated 3-5-1991 reported in 1991 (56) ELT 29 (Bom.)
and also the various orders of the Bombay High Court following the same judgment. On a
reading of those judgments of the Bombay High Court, it is clear that the writ petition i.e., W.P.
No. 1572 of 1991 was filed against the final order asking the petitioner to pay the excess duty
and penalty and that order was challenged on the ground that the principles of natural justice
have been violated. As such the unreported judgments of the Bombay High Court are clearly
distinguishable both on facts and law. Having regard to the decisions referred to above and the
position of law with regard to the issue of a writ of prohibition, I am fully satisfied that this not
a case where a writ of prohibition should be issued at this stage of the proceedings.

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