CENTRAL UNIVERSITY OFSOUTH BIHAR

SCHOOL OF LAW AND

GOVERNANCE
Project Work On Topic: Writ of
prohibition and certiorari

SUBMITTED BY-PRERAK RAJ SUBMITTED TO-MRS POONAM KUMARI

B.A.LLB ASST. PROFFESSOR

E. No.-: CUSB1813125067 SCHOOL OF LAW AND GOVERNANCE

ACKNOWLEDGEMENT

You are most welcome in my project work on the topic “Writ of Certiorari”.

This project is given by our honorable subject professor “Mrs. Poonam Kumari ” and I would like to thank her
for giving me such opportunity to work on this specified topic.
1|Page
I would like to express thank to my seniors who reviewed my paper for rendering constructive and valuable
suggestions and comments that have helped a lot in improving the quality and content of this paper.

I would like to thank all the Library staffs who helped me to find all the desired books regarding the topic as
the whole project revolves around the doctrinal methodology of research.

Last but not the least,thanks to all who directly or indirectly helped me in completing of this project. I have
made this project with great care and tried to put each and every necessary information regarding the topic. So
at the beginning I hope that if once you will come inside this project you will be surely glad.

-Prerak Raj

2|Page
TABLE OF CONTENTS
S. No. CHAPTERS PAGE No.

(1) CHAPTER 1- INTRODUCTION 5-6

-RESEARCH METHODOLOGY

-RESEARCH OBJECTIVE

-RESEARCH HYPOTHESIS

(2) CHAPTER 2- HISTORICAL BACKGROUND 7- 9

(3) CHAPTER 3- WRIT OF CERTIORARI 10-13

(4) CHAPTER 4- WRIT OF PROHIBITION 14-16

(5) CHAPTER 5- CONCLUSION 17-18

(6) CHAPTER 6- BIBLIOGRAPHY 19

3|Page
4|Page
TABLE OF CASES

S.No. CASES

(1) Surya Dev Rai v. Ram Chander Rai & Ors.

(2) Ryots of Garabandho and other villages Vs. Zamindar of Parlakimedi and Anr.

(3) The Custodian of Evacuee Property Bangalore vs. Khan Saheb Abdul Shukoor

(4) Hari Vishnu Kamath Vs. Ahmad Ishaque

(5) T.C. Basappa vs. T. Nagappa & Anr

(6) Calcutta Discount Co. Ltd. v. ITO 

(7) Rekhi v. Income Tax Officer

(8) Evacuee Property Bangalore vs. Khan Saheb Abdul Shukoor

(9) Nagendra Nath Bora & Anr. vs. Commissioner of Hills Division and Appeals, Assam
& Ors.

(10) Naresh Shridhar Mirajkar & Ors. vs. State of Maharashra and Anr

(11) Asiatic Engineering co. vs Achhu Ram And Ors

(12) Bengal Immunity Co. Ltd. v. State of Bihar

(13) Xavier’s Residency vs The State of Kerala

5|Page
6|Page
CHAPTER 1- INTRODUCTION
Certiorari is defined as an order commanding proceedings to be removed from an inferior court into a superior
court for review while Prohibition means an order to forbid an inferior court from proceeding in a cause there
pending, suggesting that the cognizance of it does not belong to that court. The conditions for certiorari to lie
include the following Tribunal must have legal authority; authority must be to determine questions affecting
legal rights of subjects comprising of legally enforceable rights or interests; tribunal must have a duty to act
judicially or quasi judicially judicial or quasi-judicial authority must act ultra vires1. Whenever a tribunal or
anybody has authority to determine questions affecting that right of subjects and having the duty to act
judicially or fairly, and it acts in excess of its legal authority, an order of certiorari would lie. Certiorari has been
described as being more or less the progenitor of the modern statutory review which lies to review judicial or
quasi-judicial action. An applicant applies ex parte2 for leave to apply for the remedies, stating the grounds for
the order and the supporting facts in an affidavit. The leave when granted by the court operates as a stay of the
matter in question. The applicant then applies for the order by notice of motion which would now be served on
all interested parties with a copy of the relevant affidavit. At this stage, the affidavit and counter-affidavit and
all the exhibits would be closely looked at with a view to determining whether the applicant deserves being
granted an order for certiorari. The Supreme Court has warned that failure to strictly comply with the conditions
precedent for grant of certiorari is fatal since it goes to the jurisdiction of the court which is not mere procedural
irregularities that can be waived or otherwise cured. The courts usually have a discretionary power13 to refuse
them to an applicant who has made out a good case. The court is entitled to have regard generally to the conduct
of the applicant and to the special circumstances of the case in deciding whether to grant him the remedy he
seeks. Other factors like unreasonable delay, waiver, acquiescence and laches are among the discretionary bars
to the award of certiorari and prohibition on one hand of the conduct of the applicant. On the other hand, there
will be no discretion exercised in favour of the applicant toward the granting of the order of certiorari where
useful purpose would not be served. Where the remedy had been inadvertently granted by the court based on a
misinterpretation of the law, even where the facts are not in dispute, the Court of Appeal will reverse the grant
of certiorari and refuse the application.
RESEARCH METHODOLOGY
Here the researcher has used Doctrine methodology by library, internet and articles. Qualitative method is used
in this assignment. For this project on writ of certiorari multimethod is focused, involving an interpretive,
naturalistic method with the help of observations, questionnaires and document analysis.

1
Ultra Vires - Beyond the power
2
Ex parte - In the absence of other party
7|Page
RESEARCH OBJECTIVE
The main objective of Writ of certiorari in legal system is to restrict the jurisdiction of inferior courts and they
be issued against all authorities exercising judicial or quasi- judicial functions .The researcher has also objected
towards the clear distinction between the writ of certiorari and writ of prohibition because at many extents these
two sources of restoring our fundamental rights seems to be same.

RESEARCH HYPOTHESIS
The hypothesis of researcher is that a writ of higher court to a lower court to send all the documents in case to it
so the higher court can review the lower court’s decision. However, unlike a writ of prohibition, superior courts
issue writs of certiorari to review decisions which inferior courts have already made. Writ of certiorari is
different from writ of prohibition as in case of prohibition, the inferior court has no jurisdiction to exercising the
jurisdiction regarding the matter. Whereas in case of writ of certiorari, the inferior court has already given a
decision of a matter on which it has no jurisdiction. The aggrieved party may ask for the writ certiorari for
quashing the said decision.

RESEARCH QUESTION

 What is the historical perspective of origin of writ of Certiorari and Prohibition?

 State the meaning, scope and ambit of writs of certiorari and prohibition.

8|Page
CHAPTER 2-HISTORICAL PERSPECTIVE
The development of these remedies and their nature as prerogative orders and the principal means by which the
Court of King’s Bench exercised jurisdiction over local justices and other bodies are worthy of in depth review.
According to Wade and Bradley, The underlying policy of certiorari is that all inferior courts and authorities
have only limited jurisdiction or powers and must be kept within their legal bounds. The form of the old writ
was that of a royal demand to be informed of some matter, and in the early times, it was used for many different
purposes. Its great period of development as a means of controlling administrative authorities and tribunals
began in the later half of the 17th century. Review of the record was the original system of judicial control,
adopted when the Court of King’s Bench took over the work of supervising inferior tribunals and administrative
bodies such as the Justices of the Peace and the Commissioners of Sewers after the abolition of the Star
Chamber and the council courts. Something was needed to fill the vacuum left by the Star Chamber, which had
exerted a considerable degree of central control over the Justices of the Peace, both in their judicial and
administrative functions. Certiorari and Prohibition are best discussed together because as means of
jurisdictional control, they both cover the same ground; have so many characteristics in common; it is
convenient to seek both remedies in the same proceedings when a decision in excess of jurisdiction has already
been made and other similar decisions have yet to be made; and also because prohibition developed alongside
certiorari as part of the system of control imposed by the Court of the King’s Bench, they can be classed
together as complementary remedies based upon common law principles .The origin of writs took place in the
English judicial system, with the development of English law from folk courts — moots to the formal courts of
common law. The law of writs originated from orders passed by the King’s Bench in England. Writ, was
precisely a royal order, which was issued under the Royal Seal. It used to be issued on a petition presented to
the king in council for exercise of the extra-ordinary judicial powers in a particular matter. At the initial stage
the king’s court consisted of barons and high ecclesiastical with legislative, judicial and administrative
functions. However, with various phases of history it took different names and forms but the spirit of this
extraordinary power remained almost the same. Though the development of the common law courts in various
forms had also been constant, but the origin of writ court had a specific reason. The jurisdiction of common law
was more or less static. It did not recognize rights except those already prevalent and admitted by it. Similarly,
common law courts worked under a prescribed procedure with many limitations on it. Its forms, under which
rights were to be enforced, were fixed and limited. Thus, there had been number of cases, which did not fall
under any of the fixed remedies and so these cases remained beyond the jurisdiction of the common law courts.
In such cases, these courts were powerless to grant relief. Thus, the deficiency of remedy or failure of the
common law courts to grant relief in time, became the cause/ground of petition to the king in council to exercise
their extra-ordinary judicial powers. These petitions were heard and disposed of by or on behalf of the King’s
9|Page
Bench. A written order was issued in the name of the king called — a writ, which was to act as a foundation to
the subsequent proceedings. Originally, writs were intended to be issued only by the crown and in the interest of
the crown. However, in due course of time, the writs became available to the ordinary citizens also. A
prescribed fee was charged for these writs and that is why the filing of writ used to be called as ‘Purchase’ of a
writ. These writs were used to establish royal supremacy also. This form of adjudication was called-prerogative
writs also.The origin of writs in India goes back to the Regulating Act 1773 under which a Supreme Court was
established at Calcutta by a charter in 1774. A similar charter also established the Supreme Courts of Madras
and Bombay with analogous provisions in 1801 and 1823 respectively. Letters patent were given to all the three
courts. These courts were replaced by the High Courts in 1862 under High Courts Act 1861. The High Courts
so established enjoyed all the powers, which were there with the Supreme Courts replaced by these courts. Thus
the three presidency High Courts inherited the power to issue writs as successor to the Supreme Court. Other
High Courts subsequently established did not have these powers because they were newly created and they
could not inherit these powers as the presidency High Courts did. The special authority, which was conferred by
the charter on the three presidency High Courts, was not mentioned in the letters patent of the subsequent
courts. However, the writ jurisdiction of these courts was limited to their original civil jurisdiction, which they
enjoyed under Section 45 of the Specific Relief Act,1877. Under the above status of the law of writs our
country got independence and the constitution of free India came into force. The law of writs as inherited from
the English colonial regime was having a limited scope but its effectiveness was time-tested. Therefore, the
constitutional forefathers decided to retain the concept as such in its ‘nature’ as a broad parameter, but its scope
was enlarged by adding some new words to it and it was left open ended also. This was essential also, keeping
in view the hopes and aspirations of the people. The people had suffered the peril of the foreign yoke for
centuries and their faith and confidence in the new set-up was bubbling with spontaneous feelings of freedom
wherein they dreamt of endless liberties. However, it was not to be allowed to go as a dream only and to fulfil
these hopes a vast scope of liberty, justice and equality was provided in the constitution. The fundamental rights
were incorporated in the constitution, which fully ensured the basic human liberties. To fructify these rights into
actual liberties, a detailed legal provision was incorporated in the constitution itself to safeguard these rights.
Under Article 32, the enforceability of these rights was included as a fundamental right and an almost parallel
10 provision was provided under Article 226 as a constitutional right. To understand these two provisions in
their true spirit and context, it would be desirable to first see them in their literal context. Article 32 of the
constitution is provided in the constitution in the following form:-
“Article 32: Remedies for enforcement of rights conferred by this part”
(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this part is guaranteed.

10 | P a g e
(2)The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus,
mandamus, prohibition, quo warrant and certiorari, which ever may be appropriate, for the enforcement of any
of the rights conferred by this part.
(3)Without prejudice to the powers conferred on the Supreme Court by Clause (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under Clause (2).
(4)The right guaranteed by this Article shall not be suspended except as otherwise provided by this
constitution.”

11 | P a g e
CHAPTER 3 -WRIT OF CERTIORARI
The Supreme Court in Surya Dev Rai v. Ram Chander Rai & Ors. has explained the meaning, scope and ambit
of the writ of Certiorari. According to Corpus Juris Secundum3 certiorari is a writ issued from a superior court
to an inferior court or tribunal commanding the latter to send up the record of a particular case.
H.W.R. Wade & C.F. Forsyth define certiorari in these words:- "Certiorari is used to bring up into the High
Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does
not pass the test, it is quashed that is to say, it is declared completely invalid, so that no one need respect it.
The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and
must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration
of justice, but it is a private complaint which sets the Crown in motion."
The learned authors go on to add that problem arose on exercising control over justices of the peace, both in
their judicial and their administrative functions as also the problem of controlling the special statutory body
which was addressed to by the Court of King's Bench. "The most useful instruments which the Court found
ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no
longer political. Certiorari would issue to call up the records of justices of the peace and commissioners for
examination in the King's Bench and for quashing if any legal defect was found. At first there was much
quashing for defects of form on the record, i.e. for error on the face. Later, as the doctrine of ultra vires
developed, that became the dominant principle of control."
The nature and scope of the writ of certiorari and when can it issue was beautifully set out in a concise passage,
quoted hereafter, by Lord Chancellor Viscount Simon in Ryots of Garabandho and other villages Vs. Zamindar
of Parlakimedi and Anr. AIR 1943 PC 164. "The ancient writ of certiorari in England is an original writ which
may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending
before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so
named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be
investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction
of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts,
but, on the other hand, its application is not narrowly limited to inferior "Courts" in the strictest sense. Broadly
speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a
ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority
which the Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over
inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates,
within certain limits, in British India."

3
Corpus Juris Secundum – Second body of law
12 | P a g e
Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst
others. The principles on which the writ of certiorari is issued are well-settled. It would suffice for our purpose
to quote from the 7-Judge Bench decision of this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors.4
The four propositions laid down therein were summarized by the Constitution Bench in The Custodian of
Evacuee Property Bangalore vs. Khan Saheb Abdul Shukoor5 as under:-
"The High Court was not justified in looking into the order of December 2, 1952, as an appellate court, though
it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the  Constitution
for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was
considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and the following four propositions were
laid down :-
(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted
jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the
principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One
consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal,
even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest
error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the
provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere
wrong decision.
In Nagendra Nath Bora & Anr. vs. Commissioner of Hills Division and Appeals, Assam & Ors. 6 the parameters
for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by the
Constitution Bench :
"The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is
not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only
to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has
not proceeded in accordance with the essential requirements of the law which it was meant to administer. The
Constitution Bench in T.C. Basappa vs. T. Nagappa & Anr7, held that certiorari may be and is generally granted
when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may
arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary
4
(1955) 1 SCR 1104
5
(1961) 3 SCR 855
6
(1958) SCR 1240,
7
(1955) 1 SCR 250
13 | P a g e
proceedings or the court itself may not have been legally constituted or suffering from certain disability by
reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has
acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no
particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a
writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face
of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere
wrong decision is not amenable to a writ of certiorari.
Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions
affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the
certiorari jurisdiction of the High Court. The proceedings of judicial courts subordinate to High Court can be
subjected to certiorari.
While dealing with the question whether the orders and the proceedings of subordinate Court are amenable to
certiorari writ jurisdiction of the High Court, we would be failing in our duty if we do not make a reference to a
larger Bench and a Constitution Bench decisions of this Court and clear a confusion lest it should arise at some
point of time. Naresh Shridhar Mirajkar & Ors. vs. State of Maharashra and Anr. 8, is a nine-Judges Bench
decision of this Court. A learned judge of Bombay High Court sitting on the Original Side passed an oral order
restraining the Press from publishing certain court proceedings. This order was sought to be impugned by filing
a writ petition under Article 226 of the Constitution before a Division Bench of the High Court which dismissed
the writ petition on the ground that the impugned order was a judicial order of the High Court and hence not
amenable to a writ under Article 226. The petitioner then moved this Court under Article 32 of the Constitution
for enforcement of his fundamental rights under Article 19(1)(a) and (g) of the indian constitution. During the
course of majority judgment Chief Justice Gajendragadkar quoted the following passage from Halsbury Laws
Of England "(.in the case of judgments of inferior courts of civil jurisdiction) it has been suggested that
certiorari might be granted to quash them for want of jurisdiction in as much as an error did not lie upon
that ground. But there appears to be no reported case in which the judgment of an inferior Court of civil
jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground". His Lordship
then said:
"The ultimate proposition is set out in terms: "Certiorari does not lie to quash the judgments of inferior Courts
of civil jurisdiction". These observations would indicate that in England the judicial orders passed by civil
Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to
the jurisdiction to issue writs of certiorari."

8
(1966) 3 SCR 744
14 | P a g e
Naresh Shridhar Mirajkar's case was cited before the Constitution Bench in Rupa Ashok Hurra's case and
considered. It has been clearly held : (i) that it is a well-settled principle that the technicalities associated with
the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of
certiorari to call for records and examine the same for passing appropriate orders, is issued by superior court to
an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to
another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court;
much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the
Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme.
Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to High Court
are amenable to writ jurisdiction of High Court under Article 226 of the Constitution.
Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be
justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari
jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to
certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine
whether on the face of the record the inferior court has committed any of the preceding errors occasioning
failure of justice.

15 | P a g e
CHAPTER 4-WRIT OF PROHIBITION
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.
Where proceedings in an inferior court or tribunal are partly within and partly without its jurisdiction,
prohibition will lie against what is done 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 facie9 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 officio10 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 the case of Calcutta Discount Co. Ltd. v. ITO Companies 11, the Supreme Court held that when a subordinate
court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court will issue a
writ of prohibition regardless of whether there exists an alternative remedy or not . In Rekhi v. Income Tax

9
Prima Facie – At the first sight
10
Functus officio - no longer holding office or having official authority
11
1961 AIR 372, 1961 SCR (2) 241
16 | P a g e
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.”Prohibition has much in common with certiorari, both in its
scope and in the rules by which it is governed. Thus both these writs lie against a judicial or quasi judicial body
not against an executive body. In Hari Vishnu Kamath v. Ahmad Ishaque, the Supreme Court said:
Both the writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding
their jurisdiction, and they could be issued not merely to courts but to authorities exercising judicial or quasi
judicial functions.
In Bengal Immunity Co. Ltd. v. State of Bihar, the Supreme Court observed that the existence of an alternative
remedy may be more relevant in the context of a writ of certiorari, but where an inferior tribunal is shown to
have usurped jurisdiction which does not belong to it that consideration is irrelevant and the writ of prohibition
has to issue as of right.
In Tamil Nadu Tobacco Co. Ltd. v. UOI 1991 the prayer in the writ petition is to issue a writ of prohibition or
any other appropriate writ, order or direction in the nature of writ, restraining the respondent No. 1 from
proceeding with the adjudication of the case arising out of the show cause notice No. C. No. V/24/15/118/89
CX. ADJ dated 6-12-1989 (Annexure 'F') issued by the first respondent without first summoning and without
giving adequate opportunity to cross-examine the persons as requested by the petitioners in their letters dated
21-1-1991 and 25-3-1991 and pass such further or other orders.
In Asiatic Engineering co. vs Achhu Ram And Ors 1951 the two applications under Article 226 of the
Constitution praying that this Court might be pleased to issue writs in the nature of certiorari, prohibition &
mandamus for different acts alleged to have been done by the respondents. The first of these applications has
been filed by the Asiatic Engineering Co. Ltd. (hereinafter called the Company) & its writ application number is

17 | P a g e
287 of 1950. The second application has been presented to this Court by a foreign Company, the Amin
Agencies Ltd., & its number is 288 of 1950. Broadly speaking, the main facts which have given rise to them are
the same, but we propose first of all to set out in brief the salient features of application No. 287 & thereafter
deal with those distinguishing facts on which application No. 288 of 1950 is founded.
In Xavier’s Residency vs The State of Kerala 2014 On 22.08.2014, as per GOMS.No.139/2014/TD dated
22.08.2014, the Government of Kerala notified its Abkari Policy for the year 2014-15. As per the new Abkari
Policy, only hotels having Five Star classification and above granted by the Ministry of Tourism, Government
of India are entitled to be granted Bar licences. Thereafter, the Foreign Liquor Rules under the Abkari Act of
1077 has also been amended, to give effect to the Abkari Policy. Since as per the new Abkari Policy, only
hotels classified as Five Star and above are entitled to be W.P.(C) Nos.22195/2014 & Conn. cases granted bar
licences, all existing bar attached hotels have been issued with notices by the Excise Commissioner informing
them that, their bar licences would stand cancelled on the expiry of 15days of the date of such notices. The
hotels that face cancellation of their Bar licences (FL-3 licences) have filed these writ petitions challenging the
Abkari Policy, the consequential amendments to the Foreign Liquor Rules and the notices issued to them,
terminating their bar licences.

18 | P a g e
CHAPTER 5 -CONCLUSION
In the foregoing, it has been shown that certiorari and prohibition are critical remedies especially in the light of
the timeous reliefs available under them especially in appropriate instances:
(a). where the jurisdiction of an inferior court is impugned; or
(b). where a conviction or order has been obtained by collusion or it would seem, by fraud; or
(c). where an error appears on the face of the proceedings; or
(d). where there has been a failure to comply with a statutory requirement that the defendant be asked whether
he pleads guilty or not guilty.
These conditions can be compressed into wants of or excess in jurisdiction and breach of the rules of natural
justice or fair hearing. The excesses of the executive’s agencies earlier alluded to squarely fall under the scope
of certiorari and prohibition and our courts can and should push forward and extend the scope of the operation
of these remedies in our quest for good governance, accountability and the rule of law. The more popular
position now is that certiorari, together with prohibition and mandamus “will lie against public authorities of all
kinds making decisions that affect individuals and it is not necessary to show that an authority is under a duty to
‘act judicially’ for it to be subject to review.”
An exception to certiorari that is not contested, despite its proven utility in various judicial or quasi-judicial
situations, is that certiorari cannot be invoked in elections matters as these are in a class of their own and are
entirely statutory. The Supreme Court recently held that:
“The writs of certiorari and mandamus, being common law remedies, cannot be invoked in a purely election
matter. Where they are invoked, they cannot change the character of the matter, as an election matter belongs to
the election tribunal and is outside the jurisdiction of the High Courts. The decision of an election tribunal
cannot be interfered with by an order of certiorari. Although the orders of certiorari and prohibition will issue
against inferior courts, certiorari does not lie to an election court consisting of a High Court Judge trying an
election petition.”
Also, neither certiorari nor prohibition will issue to a private arbitral body which derives its jurisdiction from
contract or to a voluntary association or a domestic tribunal which derives its jurisdiction solely from the
consent of its members. On the other hand, a body invested by statute with jurisdiction over persons who have
entered into contractual relationships with it may be subject to certiorari and prohibition, although the occasion
for the exercise of its jurisdiction does not arise until the contractual relationship is formed. However, certiorari
is not available to review a disciplinary decision taken by a public authority against an employee with whom it
has only a contractual relationship. Our courts have a large role to play in the advancement of these prerogative
orders as the technicalities with regard to the definition of what is judicial, quasi-judicial or non-judicial before
certiorari will lie have done much to retard the growth of these remedies. Professors Wade and Bradley asserted

19 | P a g e
that the technicalities which derive largely from judicial precedent have confused the development of certiorari
and prohibition and have made them to be inflexible. This great weakness of certiorari in its limitation to acts
which are judicial in nature has made the injunction and/or declaratory judgment to become the general-utility
remedy by which the legality of an administrative act may be determined. Lord Diplock sounded the alarm
when he identified that “there is an urgent need to sweep away the technical differences in the procedures for
applying for the various kinds of prerogative orders of certiorari, mandamus or prohibition. It is our failure to do
so which bedevils the further development of a rational system of judicial review.”
The duty and responsibility now lie with our courts to be fearless and put the interests of justice that would be
achieved above other considerations when faced with the option of granting certiorari and technicalities. It has
been submitted that there is no such thing as ‘absolute discretion’ in the context of modern day administration
since every exercise of administrative decision must be justified by law or public policy. In The Queen v. the
Governor-in-Council, Western Nigeria, ex. p. I.O.G. Adebo, the court held that certiorari is not confined to
determinations affecting rights in the strict sense but extends to any determination which affects any legally
recognised interest or activity of a subject whether it exists or is carried on as a right, privilege or liberty, or
under an immunity. Certiorari was thereby granted to quash an order of the Governor-in-Council purporting to
depose the applicant without affording him a fair-hearing. The ‘60s should not be the golden age of judicial
pronouncements. Now is the opportunity for the Bar and the Bench to shine forth in the defence, protection and
advancement of general public interest and welfare in all of their ramifications.

20 | P a g e
BIBLIOGRAPHY

Books :-
 Contitutional Law of India by J.N PANDAY
 Constitution of India by V.N. SHUKLA
 Constitutional Law of India by K.C JOSHI

Websites:-
 www.wikipedia.com
 www.law.cornull.edu
 www.techlawjournal.com
 www.indiankanoon.org

21 | P a g e