Last fortnight, my article was on the writ of prohibition. A key ingredient in filing a writ of prohibition (and a writ of certiorari) is the existence of jurisdictional facts.

The importance of jurisdictional fact was explained by Thakker J in Arun Kumar v. Union of India, (2007), as follows:

“A "jurisdictional fact" is a fact which must exist before a court, tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess.”

While the passage refers to a writ of certiorari, it is submitted that the absence of jurisdictional fact is a very strong ground to file a writ of prohibition as well.

In this case, the Supreme Court was concerned with the application of Section 17(2) of the Income Tax Act, 1961, which includes perquisites given to an employee as part of salary. While a perquisite can be in the form of a car allowance or rent-free accommodation, the Section is broadly worded and includes even a concession in the matter of rental accommodation provided to the employee. The Supreme Court held that the existence of a concession is a foundational, fundamental, or jurisdictional fact. Unless a concession is  actually given to an employee, there can be no perquisite.

An interesting example of a jurisdictional fact is Section 17 of the Land Acquisition Act, 1894, which empowers the Collector to take possession of “any waste land or arable land” which is needed for a public purpose, even without an award. It was held that the land being a waste land was a jurisdictional fact. If the land was being used for raising crops, it could not be called “waste land” which was unfit for cultivation or habitation. The action of the Collector was quashed in a writ of certiorari. In this case, a writ of prohibition would not lie because the order had been passed by the Collector and had to be quashed. [Raja Anand Brahma Shah v. State of UP (1967)]

In Carona Ltd v. Parvathy Swaminathan & Sons, (2007), the Rent Act was not applicable if the paid-up capital was more than ₹1 crore. The question as to whether the paid-up share capital was above this amount was a jurisdictional fact. This was a sine qua non or condition precedent for the assumption of jurisdiction by the Rent Control Tribunal.

In the Carona case, Thakker J also explained the distinction between a jurisdictional fact and an “adjudicatory fact”. The latter is something that requires to be decided on merits and based on evidence adduced by the parties. For example, in Roshan Lal Mehra v. Ishwar Dass (1962), standard rent could be fixed for new constructions made after March 24, 1947. The question as to whether the construction was completed on or before that date would be an “adjudicatory fact”, to be determined after examination of evidence adduced by both the parties. In such a case, a writ of prohibition or certiorari would not lie. At the same time, it is submitted that if there is a certificate of the Municipal Corporation giving the completion date beyond March 24, 1947, this certificate would be a jurisdictional fact because no further evidence is necessary on this point.

Similarly, in the Arun Kumar case on perquisites, it was observed that the existence of concession was a jurisdictional fact, but the quantum of concession would be an adjudicatory fact.

The Supreme Court has held that for the assumption of jurisdiction, existence of a jurisdictional fact is a condition precedent; once such a fact is found to exist, then, the court or tribunal (or authority) has the power to decide the adjudicatory fact or other facts in issue- see para 36 of the Carona Ltd. judgment.

Thus, the existence or absence of a jurisdictional fact will alone justify the writ of prohibition, as without it, the court, tribunal or authority cannot proceed at all. If it has passed orders despite the absence of such a fact, a writ of certiorari would lie to quash the order. However, if a jurisdictional fact exists, the plea of alternative remedy could be a hurdle in entertaining a writ petition. The distinction between jurisdictional and adjudicatory facts must be kept in mind in deciding the maintainability of a writ petition.

Arvind P Datar is a Senior Advocate.