W.P.(MD)No.11409 of 2013
M/s.Shri Abiraami Motors,
Rep.by its Managing Partner-J.Senthil Kumar,
No.308/1A, Trichy Main Road,
Melur-625 106,
Madurai District. .. Petitioner
Vs
1.The State of Tamil Nadu,
Rep.by its Secretary,
Commercial Taxes and Registration Department,
Fort St.George, Chennai-600 009.
Writ Petitions filed under Article 226 of the Constitution of India for
issuance of a writ of prohibition prohibiting the respondents from in any way
levying or demanding Entry Tax from the petitioners on the entry of Motor
Vehicles outside the State under the provisions of the Tamil Nadu Tax on Entry
of Motor Vehicles into Local Areas Act, 1990, in so far as the petitioners are
concerned.
The petitioners have sought for a writ of prohibition, prohibiting the
respondents from in any way levying or demanding Entry Tax from the petitioners
on the entry of Motor Vehicles outside the State under the provisions of the
Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990, in so far
as the petitioners are concerned.
2.On instructions, Mr.M.Rajarajan, learned Government Advocate, submitted
that as on today, no levy or demand of entry tax has been made. The submission
of the learned Government Advocate is placed on record.
3.In this regard, it would be appropriate to refer to few decisions of the
Hon'ble Supreme Court, as to when a Writ of Prohibition can be issued.
4.A writ of prohibition is issued only when patent lack of jurisdiction is
made out. It is true that a High Court acting under Article 226 is not bound by
the technical rules applying to the issuance of prerogative writs like
Certiorari, Prohibition and Mandamus in United Kingdom, yet the basic principles
and norms apply to the writ must be kept in view, as observed by the Supreme
Court of India in T.C.Basappa v. Nagappa reported in AIR 1954 SC 440.
5.In Hari Vishnu vs. Ahmad Ishaque, reported in AIR 1955 SC 233, the
Supreme Court, explained the difference between a writ of prohibition and
certiorari. Paragraphs 15 and 16 are worth reproduction:-
15. The first respondent relied on the decision in Clifford O'Sullivan,
reported in 1921 2 AC 570 as authority for the position that no writ could be
issued against a Tribunal after it had ceased to exist. There, the facts were
that the appellants had been tried by a military court and convicted on 3-5-
1921. They applied on 10-5-1921 for a writ of prohibition against the officers
of the court, and that was refused on the ground that they had become functii
officio. The respondent contended that on the same reasoning certiorari against
the decision of an Election Tribunal which had become functus officio should
also be refused, and he further relied on the observations of Atkin, L.J. in Rex
v. Electricity Commissioners: London Electricity Joint Committee Co. (1920), Ex
parte, reported in 1924 (1) KB 171, as establishing that there was no difference
in law between a writ of prohibition and a writ of certiorari. What is stated
there is that both 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 all authorities exercising judicial or
quasi-judicial functions. But there is one fundamental distinction between the
two writs, and that is what is material for the present purpose. They are issued
at different stages of the proceedings. When an inferior court takes up for
hearing a matter over which it has no jurisdiction, the person against whom the
proceedings are taken can move the superior court for a writ of prohibition, and
on that, an order will issue forbidding the inferior court from continuing the
proceedings. On the other hand, if the court hears that cause or matter and
gives a decision, the party aggrieved would have to move the superior court for
a writ of certiorari, and on that, an order will be made quashing the decision
on the ground of want of jurisdiction. It might happen that in a proceeding
before the inferior court a decision might have been passed, which does not
completely dispose of the matter, in which case it might be necessary to apply
both for certiorari and prohibition - certiorari for quashing what had been
decided, and prohibition for arresting the further continuance of the
proceeding. Authorities have gone to this extent that in such cases when an
application is made for a writ of prohibition and there is no prayer for
certiorari, it would be open to the court to stop further proceedings which are
consequential on the decision. But if the proceedings have terminated, then it
is too late to issue prohibition and certiorari for quashing is the proper
remedy to resort to. Broadly speaking, and apart from the cases of the kind
referred to above, a writ of prohibition will lie when the proceedings are to
any extent pending and a writ of certiorari for quashing after they have
terminated in a final decision.
16. Now, if a writ of prohibition could be issued only if there are
proceedings pending in a court, it must follow that it is incapable of being
granted when the court has ceased to exist, because there could be then no
proceeding on which it could operate. But it is otherwise with a writ of
certiorari to quash, because it is directed against a decision which has been
rendered by a court or tribunal, and the continued existence of that court or
tribunal is not a condition of its decision being annulled. In this context, the
following passage from Juris Corpus Secundum, Vol. 14, p. 126 may be usefully
quoted:
Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact
that it ... is (directed to the cause or proceeding in the lower court) and not
to the court itself, while prohibition is a preventive remedy issuing to
restrain future action and is directed to the court itself
.
The decision in Clifford O'Sullivan reported in
1921 2 AC 570 which was
concerned with a writ of prohibition is, therefore, inapplicable to a writ of
certiorari to quash. It has also to be noted that in that case as the military
Court had pronounced its sentence before the application was filed, a writ of
prohibition was bound to fail irrespective of the question whether the tribunal
was functus officio or not, and that is the ground on which Viscount Cave based
his decision. He observed:
A further difficulty is caused to the appellants by the fact that the officers
constituting the so-called military court have long since completed their
investigation and reported to the commanding officer, so that nothing remains to
be done by them, and a writ of prohibition directed to them would be of no
avail. [See In re Pope 1833 (5) B & Ad 681 (G) and Chabot v. Lord Morpeth
reported in 1848 (15) qb 446 (H)].
6.In Calcutta Discount vs. I.T. Officer, reported in AIR 1961 SC 372,
while adverting to the arguments of the learned counsel that when the income-tax
officer issued a notice, and that he was not acting judicially or quasi
judicially and that therefore, a writ of certiorari or prohibition cannot be
issued, the Supreme Court held that
It is well settled however that though the
writ of prohibition or certiorari cannot be issued against an executive
authority, the High Court has power to issue in a fit case an order prohibiting
an executive authority from acting without jurisdiction. The said action of the
executive authority acting without jurisdiction subjects or is likely to subject
a person to lengthy proceedings and unnecessary harassment, the High Courts, it
is well settled, will issue appropriate orders or directions to prevent such
consequences.
7.In S.Govindan Menon vs. Union of India reported in AIR 1967 SC 1274, the
Supreme Court held that the jurisdiction for grant of Writ of Prohibition is
primarily supervisory and object of the Writ is to restrain courts or inferior
Tribunals from exercising jurisdiction which they do not possess at all, or else
to prevent them from exceeding the limits of their jurisdiction. In other words,
the object is to confine court or tribunals of inferior or limited jurisdiction
within their bounds. A writ of prohibition lies not only for excess of
jurisdiction or for absence of jurisdiction, but also in a case of departure
from the rules of natural justice. But the Writ does not lie to correct the
course, practice or procedure of an inferior tribunal or a wrong decision on the
merits of the proceedings. A writ cannot be issued to a court or an inferior
tribunal for an error of law unless the error makes it go out side its
jurisdiction. A clear distinction, therefore, has to be maintained between want
of jurisdiction and the manner in which it is exercised. If there is want of
jurisdiction then the matter is coarum non judice and a writ of prohibition
would lie to the Court or inferior tribunal forbidding it to continue
proceedings therein in excess of jurisdiction. This view was taken following the
decision of Regina Versus Controller General of Patents and Designs reported in
(1953) 2 WLR 760.
8.In Thirumala Tirupathi Devasthanam and another versus Thallappaka
Ananthacharyulu and another (2003) 8 SCC 134 at paragraph 14, the Honourable
Supreme Court of India, held as follows:
14. On the basis of the authorities it is clear that the Supreme Court and
the High Courts have power to issue writs, including a writ of prohibition. A
writ of prohibition is normally issued only when the inferior court or tribunal
(a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in
violation of the rules of natural justice, (c) proceeds to act under law which
is itself ultra vires or unconstitutional, or (d) proceeds to act in
contravention of fundamental rights. The principles, which govern the exercise
of such power, must be strictly observed. A writ of prohibition must be issued
only in rarest of rare cases. Judicial discipline of the highest order has to be
exercised whilst issuing such writs. It must be remembered that the writ
jurisdiction is original jurisdiction distinct from appellate jurisdiction.
9.In Standard Chartered Bank v. Directorate of Enforcement, reported in
(2006) 4 SCC 278, the Supreme Court considered, as to when a Writ of
Prohibition could be issued. At paragraph 25, the Supreme Court held as
follows:-
25. The prayer for the issue of a writ of prohibition restraining the
authorities under the Act from proceeding with the adjudication and the
prosecution is essentially based on the constitutional challenge to the relevant
provisions of the Act on the ground that they violate Articles 14 and 21 of the
Constitution. Once we have held, as the High Court did, that the provisions are
constitutional, the basis on which the writ of prohibition is sought for by the
appellants disappears. It is settled by the decisions of this Court that a writ
of prohibition will issue to prevent a tribunal or authority from proceeding
further when the authority proceeds to act without or in excess of jurisdiction;
proceeds to act in violation of the rules of natural justice; or proceeds to act
under a law which is itself ultra vires or unconstitutional. Since the basis of
the claim for the relief is found not to exist, the High Court rightly refused
the prayer for the issue of a writ of prohibition restraining the authorities
from continuing the proceedings pursuant to the notices issued. As indicated by
this Court in State of U.P. v. Brahm Datt Sharma, reported in 1987 (2) SCC 179 =
1987 (3) ATC 319 when a show-cause notice is issued under statutory provision
calling upon the person concerned to show cause, ordinarily that person must
place his case before the authority concerned by showing cause and the courts
should be reluctant to interfere with the notice at that stage unless the notice
is shown to have been issued palpably without any authority of law. On the facts
of this case, it cannot be said that these notices are palpably without
authority of law. In that situation, the appellants cannot successfully
challenge the refusal by the High Court of the writ of prohibition prayed for by
them.
10.When powers are exercised by Courts or Tribunals or quasi-judicial
authorities, in contravention of any statutory provisions, and when such
authority has no jurisdiction at all, then in such cases, the Court, on the
facts and circumstances of the case, exercise extraordinary jurisdiction under
Article 226 of the Constitution of India and issue a Writ of Prohibition. In the
present case, when the learned Government Advocate has submitted that no levy or
demand of entry tax has been made, there is no question of assuming that the
quasi-judicial authority has exceeded in its jurisdiction and therefore, there
should be a prohibitory order. Writ of Prohibition can be issued when the
material on record, satisfy the Court, that no jurisdiction is conferred on the
authorities to proceed with the subject matter. The Court must exercise great
caution in issuing such a Writ. Under the guise of Writ of Prohibition, a party
cannot be allowed to prevent a judicial or Tribunal or quasi-judicial authority
from exercising statutory functions. The issue as to whether such a authority
has exceeded its jurisdiction or assumed jurisdiction, which is not conferred,
can be adjudicated only when the material on record, establish a fact. Writ of
Prohibition cannot be issued when no action, adverse to the party is taken.
11.In view of the submission of the learned Government Advocate and the
decisions of the Hon'ble Supreme Court, there is no need to issue a writ of
prohibition. Hence these writ petitions are dismissed. Consequently, the
connected miscellaneous petitions are closed. No costs. It is always open to
the petitioners to question the levy and demand of entry tax, if any made by the
respondents.
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Commercial Taxes and Registration Department,
Fort St.George, Chennai-600 009.
2.The Assistant Commissioner (CT),
Palayamkottai,
Tirunelveli District.