Cheers Home Buyers – Now You Can Initiate Proceedings for
Liquidation of Real Estate Company

(By Dr.P. Syamjith, Ph.D. in Law, Chennai)

Great news to home loan buyers or allottees who have invested their hard earned money into real estate projects. Now they shall be treated as financial creditors and participate in the meeting of Committee of Creditors. This in turn means that they can file application for liquidation of real estate companies and even raise their claims in the Committee of Creditors who will consider the resolution plan of the company. They will be able to decide the destiny of the company they have invested to cherish the dream of owning a home.

The Lok Sabha cleared the amendments to the Insolvency and Bankruptcy Code (IBC) that provide relief to home buyers who as financial creditors will be able to take part in the resolution process of the liquidation of Real Estate Company. The bill which was passed by Lok Sabha on July 31, 2018 was approved in the Rajya Sabha by a voice vote. 

The Hon’ble Supreme Court of India has also given their stamp of approval vide its judgement delivered on 9th August, 2018 in Chitra Sharma and Ors. v. Union of India
(W.P.No.744/2017) and held that as a result of the amendment brought about in the definition of ‘financial debt’, amounts raised from allottees under real estate projects are deemed to be amounts “having a commercial effect of a borrowing”. Hence out standings to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of ‘financial creditors’. The Section 7 of the IBC creates a statutory right in favour of financial creditors to initiate the corporate resolution process.

The Insolvency and Bankruptcy Code (IBC), 2016 was enacted by the Central Government to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner. Due to the huge surge in Non Performing Assets (NPA) level of banking sector, the Government felt that the early resolution of the companies will help in recovering substantial chunk of NPA.

Of late, the financial creditors have started initiating the liquidation proceedings against the real estate companies who have failed to repay the dues to the Banks. The resolution proceedings initiated by the Banks against the companies such as Jaypee Infotech and Amarpali Group are few such instances.   This amendment is a tool to protect the interest of the home buyers will be taken care in case of liquidation of Real Estate companies.

As it was originally enacted, IBC did not contain an adequate recognition of the interests of home buyers in real estate projects. The home buyers who have invested their hard earned money were not given any priority in case of liquidation of the company or any say in the liquidation proceedings. Later on, due to the constant appeal made by the home buyers across the country, the Central Government brought out the Insolvency and Bankruptcy (Amendment) Ordinance, 2018 which came into force on 6 June 2018 to address the concerns of the home buyers. As a result of the Ordinance, home buyers are brought within the purview of financial creditors under the IBC.

No doubt the Home buyers are vital stake holders while deciding the liquidation proceedings of real estate companies. Most of the home buyers have invested the money in real estate project by accumulating their lifelong savings and borrowings from
Banks/Financial Institutions. The process of corporate insolvency resolution directly impacts upon their rights and interests.

In terms of Section 7 of IBC, when a company failed to repay the dues, the financial creditor is entitled to file an application before the National Company Law Tribunal for initiating corporate insolvency resolution process against the defaulting company.

In terms of IBC, the term financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred, The term financial debt is defined as a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes–

(f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;

It is  explained in the Act that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and the expressions, “allottee” and “real estate project” shall have the meanings respectively assigned to them of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016).

As a result of the amendment brought about in the definition of ‘financial debt’, amounts raised from allottees under real estate projects are deemed to be amounts “having a commercial effect of a borrowing”. Hence out standings to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of ‘financial creditors’.

Section 7 of the IBC creates a statutory right in favour of financial creditors to initiate the corporate resolution process. It says that a financial creditor either by itself or jointly with other financial creditors or any other person on behalf of the financial creditor may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. In terms of the IBC, the interim resolution professional shall after collation of all claims received against the corporate debtor and determination of the financial position of the corporate debtor, constitute a committee of creditors. Financial creditors are entitled to a voting share proportionate to the extent of the financial debt owed. It is a welcome step from the Central Government and the highest court of the country.

Let’s hope that the new amendment and the consequent judgement of the Supreme Court will ameliorate the hardships of the home buyers who are waiting so long to receive the possession of their dream home.  It is said that an act or judgment will have multiplier effect if it is used to its optimum.  Hope further that the home buyers will rise up to the occasion as a united front and will keep the law going on to establish a new jurisprudence to grant relief to home buyers in distress.

a[yØ NÀ¨ AYh Mediation, {]hÀ¯\hpw e£yhpw

(By P.R.Shaji*, Advocate, High Court of Kerala)

a[yØ NÀ¨IÄ s]mXphn c­Ip hn[amW.v

tImSXn A\p-_Ô a[yØ NÀ¨ AYh Court Annexed Mediation.

tImS-Xo-Xc a[yØ NÀ¨ AYhm Private Mediation.

Ccp ]mÀ«nIfpw tIkn\v apt¶mSnbmbn kzta[b Hcp a[yØsâ klmbt¯mSpIqSn sN¿p¶ a[yØ NÀ¨ ]cnlmcs¯  Pre-litigation Mediation F¶pw ]dbpw.

tIkv \nehn DÅt¸mÄ CcpI£nIfptSbpw A`yÀ°\bpsS ASnØm\¯ntem, tImSXnbpsS kzta[b Dff A`n{]mb¯ntem, Ccp I£nItfbpw a[yØNÀ¨bneqsS X§fpsS tIkn\v ]cnlmcw ImWm³ ]äptam F¶Xnsâ ASnØm\¯nÂ, tImSXnbpsS taÂt\m«¯n DÅ aoUntbj³ AYh a[yØ NÀ¨tbbmWv tImSXo A\p_Ô a[yØ NÀ¨ AYhm Court Annexed Mediation F¶v ]dbp¶Xv.

tImSXn A\p_Ô a[yØ NÀ¨bn Ccp I£nIfpw X§fpsS ]qÀ® k½Xt¯mSpIqSn FgpXn¡p¶ XÀ¡ ]cnlmc Xocpam\ DS¼SnIÄ AYh Mediation Settlement Agreement CcpI£nIfpw X§fpsS Is¿m¸pw, X§fpsS A`n`mjIcpsS Is¿m¸pw C«tijw,  tImSXnbpsS taÂt\m«¯n a[yØ NÀ¨bv¡v t\XrXzw sImSp¯ Accredited Mediator, AYhm a[yØsâ Report klnXw AXmXp tImSXnIfnte¡v Ab¨v BbXv tImSXn tcJIfn tNÀ¯v Sn DS¼SnbpsS ASnØm\¯n hn[nbpw, hn[n \ymbhpw ]pds¸Sphn¨mWv tImSXn XoÀ¸v I¸n¡p¶Xv.

F¶m C§s\ D­Im¡p¶ DS¼Snbn \nba¯n\v \nc¡m¯tXm kaql\b¯n\v FXncmbtXm Bb Fs´¦nepw hyhØIÄ Ds­I¦n BbXv tImSXnbpsS XoÀ¸n\mbn kzoIcn¡pIbnÃ. ho­Ipw a[yØNÀ¨bneqsS B hI \yq\XIÄ ]cnlcn¨v taÂ]dª k¯z DÄs¡mÅp¶ Hcp DS¼Snbn GÀs¸Sm³ \nÀt±in¡pIbmWv ]Xnhv.

tImSXoXc a[yØNÀ¨ AYhm Private Mediation D­ImIp¶ DS¼Sn¡v Hcp km[mcW DS¼SnbpsS \nbakm[yXsb D­ImIp¶pÅq.  AXn\m A¯cw a[yØ NÀ¨ BÀ_nt«j³ I¬knentbj³ Act sâ ]cn[nbn hcp¶ Hcp AhmÀUv B¡n XoÀ¡pIbmsW¦n AXn\pw Hcp tImSXn hn[nbpsS \nba km[yX e`n¡p¶XmWv.

a[yØ NÀ¨ F¶m AXv Hcp {]{IobbmWv, BbXn\v, a[yØ NÀ¨bn  a[yØ NÀ¨bv¡v hgn¡m«nbmIpw hn[w Hcp hn\ymkcoXnbnà F¶Xpw a[yØ NÀ¨ {]{IobXs¶bmWv AXnsâ hn\ymkcoXnbmbn Dcp¯ncnªv hcp¶Xpw F¶Xn\m a[yØNÀ¨ thfbn ]et¸mgpw a[yØ NÀ¨ kvXw`\w AYh Emphases kw`hn¡mdpI.v

FÃmw XÀ¡]cnlmc a[yØ NÀ¨Ifpw hnk½X¯n \n¶pw Bcw`n¨v, k½X¯n Iemin¡pt¼mÄ BWv Hcp a[yØ NÀ¨ hnPbw BIp¶Xv.

FÃm a[yØ NÀ¨Ifpw hnhn[ coXnbnepÅ hnk½X¯n \n¶pw BWv Bcw`n¡p¶Xv F¶XnÂ\n¶p Xs¶, BbXn a[yØ NÀ¨kvXw`\§Ä adnIS¡m\pÅ, a[yØsâ kzXan²tam, BÀPnXtam, c­Ipw IqSnbtXm Bb IgnhmWv ]et¸mgpw a[yØ NÀ¨sb hnPb¯nte¡v \bn¡p¶Xv.  C§s\bpÅ a[yØ NÀ¨ kvXw`\§Ä GXv L«¯nemtWm Hcp a[yØt\m, ]mÀ«nIÄt¡m andIS¡m³ IgnbmsX hcp¶Xv At¸mÄ a[yØ NÀ¨ ]cmPbs¸SpIbpw, NÀ¨IÄ ]cyhkm\n¨Xmbn a[yØÀ {]Jym]n¨v a[yØNÀ¨ ]ncn¨v hnSpIbpw (Terminate) ho­Ipw tImSXnIÄ Sn tIknsâ tImSXn \S]SnIfpambn apt¶m«p t]mIpIbpw sN¿p¶p.

IpSpw_XÀ¡§fn {]tXyIn¨pw `mcym`À¯r _Ôhpambn _Ôs¸« XÀ¡§fmb hnhmltamN\w, Ip«nIfpsS c£mIÀXrXzw, c£m]me\w, kµÀi\ AhImiw, Poh\mwiw XpS§nb XÀ¡§fn a[yØNÀ¨ kvXw`\w Ft¸mÄ thWsa¦nepw kw`hn¡mhp¶Xpw FÃmbvt¸mgpw kw`hn¡p¶XpamW.v ChnsS a[yØsâ AXn hnZKvZamb ]mShhpw, {]hÀ¯n ]cnNbhpw, hnhn[Xcw adp]cnlmc§Ä \nÀt±in¡m\pÅ Ignhpw H¶psIm­Ip am{Xambncn¡pw ]mÀ«nIÄ X§Ä¡v Ccp¡q«À¡pw, k½Xamb Hcp Xocpam\w FSp¡m³ Ignbp¶Xv.

a[yس Hcn¡epw Ccp I£nIfn Btcbptam, Hcp I£nsb X\nt¨m Xm³ \nÀt±in¨v AYhm A`n{]mbs¸Sp¶ ]cnlmcamÀ¤§sf kzoIcn¡phm³ th­In I£nIfn k½À±w sNep¯phm³ ]mSnÃm¯XmWv. I£nIÄ k½À±¯n\p hgt§IXpanÃ.

ChnsSbmWv IpSpw_ XÀ¡ ]cnlmc¯n a[yØ-NÀ¨bpsS {]m[m\yw.

a[yØ-NÀ¨bpsS XoÀ¸v kmamt\y\ Ipdª kab¯n\pffn kw`hn¡p¶Xn\m CXv I£nIfpsS `mhnsb A[nIw _m[n¡msXbpw Ccn¡p¶p.

tImSXn XÀ¡ ]cnlmc¯nsâ ]cyhkm\¯nsâ kab ssZÀLytam, km¼¯oI _m[yXtbm {]hN\mXoXamWv. 

kz¯v kw_Ô XÀ¡¯n DSaØmhImiw, I¿hImiw, ]m«mhImiw, ]n³XpSÀ¨mhmImiw, ]Wbkw_Ô XÀ¡w, IpSnInS¸mhImiw PzÞhImiw, D]tbmKmhImiw XpS§nbhbpw, k¼¯v XÀ¡§fn ]WanS]mSpambn _Ôs¸« FÃm XÀ¡§fpw DÄs¸Sp¶p. 

tImSXn A\p_Ô a[yØ NÀ¨bn A`n`mjIcpw a[yØ NÀ¨bpsS `mKambXn\m A`n`mjIcpsS D¯chmZnXzhpw, NpaXebpw {]Xn_²Xbpw AhÀ tImSXnbn X§fpsS I£nIfpsS hmZapJw D¶bn¡p¶ coXnbn \n¶pw hn`n¶amb coXnbn Bbncn¡pw.  a[yØ NÀ¨bn ]s¦Sp¡pt¼mÄ sN¿p¶Xv ChnsS X§fpsS I£nIÄ¡v thI­n hmZ{]XnhmZ§Ä apt¶m«ph¨Ã X§fpsS I£nIsf klmbn¡p¶Xv. adn¨v A\pcRvP\ kw`mjW¯n\v DXIpw hn[w X§fpsS I£nIsf AhchcpsS tIÊnsâ KpWtZmj§Ä D]tZin¨pw Ahkm\ hn[n D­ImIphm³ FSp¡p¶ Imehnf¼w kqNn¸n¨pw, hn[n \S¸n D­ImIp¶ ImeXmakhpw, aäv Akm[mcWambn D­Imhp¶ hn[n \S¯n¸v kvXw` kµÀ`§fpw {]iv\§fpw Nq­InImWn¨pw, XzcnXKXnbn Xocpam\§Ä D­ImIpt¼mÄ D­ImIp¶ KpWKW§sf ImcyImcWklnXw hnhcn¨v sImSp¯pw ]ckv]c hn«p hogvNbv¡v thI­n am\koIambn X¿mdm¡p¶Xnt\msSm¸w Xs¶ Mediation settlement agreement X¿mdm¡p¶Xn\v I£nIsf {]m]vXcm¡n klmbn¡pIbpw BWv sN¿p¶Xv.

AXmbXv A`n`mjI³ tImSXnbn \ymb[n]s\ XoÀ¸v I¸n¡p¶Xn\pth­In \nba¯nsâbpw, sXfnhnsâbpw hyJym\w \ÂIn klmbn¡pt¼mÄ litigation lawyer Bbpw, a[yØ NÀ¨bn I£nIsf ka\zb¯nsâ ]mXbnte¡v sIm­Iphcm³ klmbn¡p¶ a[yØ NÀ¨ klmb A`n`mjI³ AYhm Mediation lawyer Bbpw BWv {]hÀ¯n¡p¶Xv. a[yØ NÀ¨ klmb A`n`mjI\v a[yØm NÀ¨ XÀ¡]cnlmc{]{Inbbn {]tXyIw {]mhnWyw BhiyamWv. ImcWw XÀ¡ ]cnlmc NÀ¨Ifn {]iv\ ]cnlmc Nn´bn I£nIÄ X½n D­ImIp¶ hnet]i X{´§Ä AYhm Bargain strategies c­Iv hn[¯nemWv  sa\bp¶X.v H¶v Integrative Bargain AYhm [Àa\njvSm[njvSnX hnet]iÂ, cI­v Distributive Bargain AYhm hn`mPIm[njvTnX hnet]iÂ. [À½\njvSm[njvSnX hnet]i X{´¯n CcpI£nIfpsSbpw Bhiy§Ä \ndth䯡 hn[¯n CcpI£nIÄ¡pw t\«w am{Xw D­ImIp¶ Hcp ]cnlmc amÀ¤w BWv Dcp¯ncnbp¶Xv.  ChnsS I£nIÄ R§fpsS XÀ¡ kw_Ôamb AdnhpIÄ At\ym\yw ]¦n«pw Bhiy¯nsâ coXn A\pkcn¨v \ne]mSv amtä­I kµÀ`¯n \ne]mSv amäm³ X¿mdmhpIbpw sN¿p¶p.

F¶m hn`mPIm[njvTnX hnet]i X{´¯nÂ, Hcp \nÝnX Afhn Dff \nhy¯n, Hcp I£n¡v em`amIp¶hn[¯nepw, aäpI£n¡v, \jvSw kw`hn¡p¶ hn[¯nepw hn`P\w sN¿p¶ coXnbnepff Cu hn`mK¡mÀ XÀ¡¯n\v A[njvSnXamb hkvXpXIsf Ipdª Afhn am{Xw ssIamdp¶tXmsSm¸w Xs¶ Ipd¨v hn«p hogvN am{Xw sN¿p¶p.

I£nIÄ X§fpsS hnet]i X{´¯n\mbn Bdv hn[¯nepff hnet]i ssienIfmWv Ahew`n¨v ImWp¶Xv. CXn BZys¯ hn`mK¯nÂs]Sp¶ kacks¸S ssien¡À AYhm Accommodative FÃmbvt¸mgpw, \nsâ hgnsb F¶ \ne]mSv kzoIcn¨v X§Ä¡v \jvShpw aäpI£nIÄ¡v em`hpw D­ImIpw hn[¯nemhpw H¯v XoÀ¸n F¯ntNcp¶Xv. c­Imas¯ hn`mK¯nÂs]Sp¶ klIcW ssien¡mÀ AYhm co-operative or collaborative, \½psS hgnsb F¶ coXn kzoIcn¨v Ccph`mK¯n\pw t\«ap­Im¡p¶ hn[¯nepff H¯v XnÀ¸n Bbncn¡pw F¯n tNcp¶Xv. aq¶mas¯ hn`mK¡mcmb aÂkc kzcq] ssien¡mÀ AYhm competitives Fsâ hgnsb F¶ coXn kzoIcn¨v X§Ä¡v t\«hpw FXnÀI£nIÄ¡v \jvShpw D­ImIp¶ hn[¯nepff Hcp H¯pXoÀ¸nembncn¡pw F¯n tNcp¶Xv. \memas¯ hn`mK¡mcmb A\pcRvP\ ssien¡mÀ AYhm compromise persons GXp hgnbpw F¶ coXn kzoIcn¨v, CcpI£nIÄ¡pw \jvSw kw`hn¨v Bbmepw Hcp H¯p XoÀ¸n F¯n tNcp¶p. A©mas¯ hn`mK¯nepffhcmWv XnckvImc ssien¡mÀ   AYhm avoidance. ChÀ  Hcp  hgnbpw kzoIcn¡m¯hcpw Hcn¡epw Hcp H¯p XoÀ¸nse¯m³ klIcWw ImWn¡m¯hcpw BIp¶p. Bdmas¯ hn`mK¡mÀ Hgnªpamd ssien kzoIcn¡p¶hcmWv. XnckvImc ssien¡mcpw aÂkckzcq] ssien¡mcpw Chsc Wriggle outers F¶v ]dbp¶p.  ChÀ a[yØ NÀ¨bn DS\ofw ]s¦Sp¡pw F¶m XÀ¡ ]cnlmc Nn´bpsS Ahkm\ L«¯nÂ, Htcmtcm ]pXnb ]pXnb ImcW§Ä I­Ip ]nSn¨v Hgnªv amdnsIm­Incn¡pItbm settlement agreement H¸nSm³ htcI kabw H¸nSm³ hcmXncn¡pItbm sN¿p¶p. XnckvImc ssien¡mcpw aÂkckzcq] ssien¡mcpw Hgnªpamd ssien¡mcpw hyàn_Ôw ]p\Øm]\¯n bmsXmcp hnebpw sImSp¡m¯hcmbncn¡pw F¶m aäv aq¶v hn`mK¡mcpw hyàn_Ôw ]p\:Øm]n¨v sIm­Imbncn¡pw AhÀ XÀ¡]cnlmc DS¼Snbn H¸v hbv¡p¶Xv.

a[yØ NÀ¨bnse Cu hnet]i X{´hpw hnet]i ssienbpw, a\knem¡n thWw a[yس Xsâ ]mSh§Ä {]tbmKn¡phm³. k¼¯v XÀ¡]cnlmc¯nembmepw km¼¯nI CS]mSv XÀ¡ ]cnlmc¯nembpw NÀ¨kvXw`\w ]et¸mgpw D­ImIp¶pIv. BbXv a[yØsâ Ignthm, AXn ]s¦Sp¡p¶ A`n`mjIcpsS AIagnª klmb klIcW§ÄsIm­tIm am{Xta AXnPnhn¡m³ km[n¡pIbpffp. {]tXyIn¨pw a[yØNÀ¨bn lmPcm¡p¶ A`n`mjIÀ tImSXn XÀ¡]cnlmc coXnbn Ahew`n¡p¶ ssien Xs¶bmWv a[yØ NÀ¨ ]cnlmc¯nepw A\phÀ¯n¡p¶sX¦nÂ, XnÀ¨bmbpw a[yØ NÀ¨ 100% ]cmPbambncn¡pw, AtX kabw a[yØ NÀ¨coXn¡v, tbmKycpw, AXv A\phÀ¯n¡p¶hcpw BWv CcpI£nIfpsSbpw A`n`mjIÀ F¦nÂ, XÀ¡anÃ, XÀ¡]cnlmc NÀ¨ hnPb¯nte Iemin¡q.

a[yØ NÀ¨ ]cnlmc {]{Iobbn a[yØsâ XÀ¡]cnlmc kao]\hpw, ssienbpw Adjudication AYh \ymbnhnNmcW XÀ¡ ]cnlmc {]{IobbpsSbpw, a[yØ NÀ¨ XÀ¡ ]cnlmc {]{IobbptSbpw {]hÀ¯\ ssienbpw, e£yhpw c­Ipw, c­Ip hn[¯nemWv.

\ymbhnNmcWbn tImSXnap³Ime kw`h§Ä¡v {]m[m\yw sImSp¡pt¼mÄ a[yØ NÀ¨bn `mhn Imcy§Ä¡mWv {]mapJyw I¸n¡p¶Xv. tImSXnIÄ hkvXpXIfn {i² tI{µoIcn¡pt¼mÄ, a[yس hyàn_ԧġv Du¶Â sImSp¯mbncn¡pw ]cnlmcw ImWm³ {ian¡p¶Xv. tImSXn hn[nbneqsS sXäpw, icnbpw, D¯chmZnXzhpw Øm]n¡m³ th­Ip¶ At\zjWw \S¯pt¼mÄ a[yØ NÀ¨bn hyàn_Ôw ]p\Øm]n¡m³ th­Ip¶ {ia§Ä \S¯p¶p. hn[n{]Øm\w KpWtZmj {]Ømh\bn Iemin¡pt¼mÄ a[yØNÀ¨ s]mcp¯ s]StemSpIqSnb Hcp XÀ¡]cnlmc¯n F¯ntNcp¶p. tImSXnhn[nIÄ IÂ]\bpsS cq]w hcn¡pt¼mÄ a[yØ XÀ¡]cnlmcw, \S]Sn{Ia§fneqsS Dcp¯ncnª,v D`bk½Xamb Hcp XoÀ¸n F¯n tNcp¶p. \ymb hnNmcWbn A`n`mjI\pÅ taÂtImbva a[yØ NÀ¨bn I£nIfpsS AhImiamWv.

    a[yØ NÀ¨ XÀ¡ ]cnlmcNÀ¨ thfbnÂ, ap³]n\mse \ne\n¶ncp¶Xpw, a[yس II­p]nSn¨p F¶v AhImis¸Sp¶ Hcp XÀ¡mhØbnte¡v Asæn XÀ¡¯nsâ Npäp]mSpIfnte¡v Hcp a[yس cwK{]thiw sN¿pt¼mÄ BWv a[yØ NÀ¨bv¡v XpS¡ambn F¶v ]dbp¶Xv. Hcp XÀ¡w Asæn Hcp {]tXyI AhØ amän In«phm³ I£nIÄ kzta[b ssIsIm­Ip ]ehn[ hnet]i {ia§fpw hyÀ²amIpt¼mÄ, AhÀ X§fpsS XÀ¡ ]cnlmc kvXw`\mhØbn F¯p¶p. 

km[mcWbmbn Adntªm AdnbmsXtbm Hcp \nÝnX \nhr¯nbn \n¶pw hn`P\mSnØm\¯n F\n¡v F´v e`n¡pw, \n\¡v F´v \jvSamIpw F¶pw, [Àa\njvS[njvSnX hn`P\¯n Ccp I£nIÄ¡pw ]ckv]c t\«¯n\pÅ kmlNcyw \ne\n¡p¶p­I­v F¶XmIpw I£nIfpsS Nn´IÄ.

Hcp a[yس, a[yØNÀ¨ {IaoIcW coXnsb, km[mcWbmbn tPmUnIfmbmbn BWv  hnhcn¡p¶Xv.  AXmbXv {]iv\ ]cnlmc¯ns\Xncmbn  AhØm ]cnhÀ¯\w F¶pw Asæn hyànXz¯n\v FXncmbn hyàn_ÔXzw F¶pw, a[yØ NÀ¨ {]{Inbsb hn\ymkcoXnItfbpw, ssienItfbpw tPmUnIco¡p¶Xv KpWtZmj aqey\nÀWbSnØm\¯n\v FXncmbn XÀ¡]cnlmc Ifsamcp¡Â F¶pw, AhImimSnØm\¯n\v FXncmbn XmÂ]cymSnØm\w F¶pw, ¢n]vXs¸Sp¯nb {]iv\ \nÀhN\¯ns\Xncmbn  kv]jvSamb {]iv\\nÀhN\w F¶pw BWv.

a[yس Xsâ {]mtbmKnI ]cnioe\¯ntâbpw {]hÀ¯n]cnNb¯ntâbpw ASnØm\¯nepw kzkn²hpw, BÀÖnXhpw Bb IgnhpIfpsS ASnØm\¯nepw, Xsâ imkv{XobambtXm, XXzimkv{X]cambtXm Bb hnizmk¯nsâbpw ASnØm\¯nepambncn¡pw a[yØ NÀ¨bn Xsâ CSs]SepIfpw, CSs]SmXncn¡epItfbpw Xocpam\n¡p¶Xv.

km[mcWbmbn aq¶p hn[¯nepÅ a[yØ NÀ¨ {IaoIW (Orientation) BWv, a[yØÀ kmlNcy§Ä A\pkcn¨v A\phÀ¯n¡p¶Xv.

    1. XÀ¡s¯ ¢n]vXs¸Sp¯n, hyàambn ImWp¶, \nba]camb AhImi§sf {IaoIcn¨pÅ kao]\w ssIs¡mÅp¶ a[yØÀ, I£nIsf AhÀ¡pÅ \nba]camb AhImi§sfIpdn¨v Hcp ImgvN]mSp­ImIphm³ th­I klmbw sN¿pIhgn, I£nIsf X§fpsS tIÊnsâ \nba]ÝmXe¯nepÅ _et¯bpw,  e£yt¯bpw Ipdn¨v Aht_m[w D­fhm¡pIbpw sN¿p¶p. Nne kµÀ`§fn Nne a[yØÀ I£nIfpsS tIÊnsâ KpWtZmj \nÀWbw sNbvXv, D]tZi¯nsâ kao]\w kzoIcn¨v, Hcp ]s£ tIknep­ImIm³ t]mIp¶ hn[nsb Ipdn¨vt]mepw {]hNn¨v I£nIÄ X½n Hcp H¯pXoÀ]nse¯p¶Xn\pth­In {ian¡p¶p.

    2. Nnea[yØÀ H¯pXoÀ¸v F¶ e£y¯n\v Du¶Â sImSp¡p¶Xn\p ]Icw, ]cnhÀ¯\ {]Xyimkv{X N«IqSnsâ klmbt¯msS, I£nIfpsS imàoIcW¯n\pw, AwKoImc§Ä¡pw, DÅ Ahkc§Ä¡mbn D]tbmKn¡p¶p.

   3. [Àa\njvTm[njvSnX a[yØ NÀ¨ XÀ¡ ]cnlmc {]{Iobbn a[yس I£nIsf Xsâ e£y {]m]vXn¡mbn kv]jvSamb XÀ¡ \nÀhN\¯neqsSbpw, XÀ¡ ]cnlmc e£yw IIpsIm­IpÅ Hcp kao]\¯neqtSbpw, I£nIÄ¡v At\ym\yw em`w D­Im¡p¶ hn[¯nepÅ Hcp XÀ¡ ]cnlmckmlNcyw Hcp¡nsImSp¡p¶p.  Cu coXn Ahew`n¡p¶ a[yس km[mcWambn a[yØNÀ¨ Ifsamcp¡Â ssien Ahew_n¨v, I£nIfpsS \nehnepÅ XmXv]cy§fpw Bhiy§fpw a\Ênem¡n AXn {i² tI{µoIcn¨v, Ccp I£nIÄ¡pw kwXr]vXn D­Im¡p¶ hn[¯nepÅ Hcp XÀ¡ ]cnlmc¯n I£nIsf F¯n¡p¶p. 

            I£n XmÂ]cym[njvSnX XÀ¡ ]cnlmcXXzw Ahew`n¨v a[yØ NÀ¨ sN¿p¶ a[yس, I£nIsf AhcpsS \nehnepÅ AhØbpsS ImgvN]mSn \n¶pw, AhcpsS ZrjvSn amän, AhcpsS Bhiy§fn tI{µoIcn¡phm³ t{]mÂkmln¸n¡p¶p. AXn\pth­In AhcpsS Hfn¨p hbv¡s¸«ncp¶ XmÂ]cy§tfbpw, Bhiy§tfbpw

]pds¯Sp¯v Im«ns¡mSp¯v, I£nIfpsS XmÂ]cy¯nsâ ASnØm\w t\m¡n  [Àa\njvTm[njvTnX XmÂ]cymSnØm\ hnet]i ssienbneqsS AhchcpsS \nhr¯nbpsS aqey hym]vXn hÀ²n¸n¡m³ Ignbpw F¶pw AXphgn AhcpsS ]caamb e£y{]m]vXnbn AhÀ¡v F¯m³ Ignbpw F¶pw a\knem¡n sImSp¡p¶p.

            “I£nIsf X§fpsS hn`P\m[njvTm\ \oXn t_m[¯nsâ temI¯p\n¶pw, AhcpsS aÕckzcq] X{´w amäm³ Blzm\w \ÂIn AhcpsS Ct¸mgs¯ ØnXnbn \n¶pw hn`n¶ambn X§fpsS bYmÀ° Bhiy§fpw XmÂ]cy§fpw a\Ênem¡n sImSp¡pIbpw F¶XmWv I£nXmÂ]cymSnØm\ þ I£n klIcW ssienbneqsS ]cnlmc¯n\v {ian¡p¶ a[yØsâ Gähpw henb shÃphnfn."

            ]e a[yسamcpw, a[yØ NÀ¨]cnlmc thfbn H¶n IqSpX a[yØ NÀ¨ XÀ¡]cnlmc kao]\§Ä FSp¡p¶pI­v. km[mcWbmbn a[yØ NÀ¨Isf Ifsamcp¡Â AYhm {]Xy£s]Sp¯Â, kao]\¯nÂ, I£n XmÂ]cymSnØm\ XÀ¡]cnlmc kao]\ ssienbn \n¶pw XpS§n KpWtZmjaqey\nÀ®bw AYhm hgn¡m«Â kao]\w Ahew`n¨, AhImimSnØm\ XÀ¡]cnlmc amXrIhsc kzoIcn¡p¶p.

*(LL.M in Adr+., From Hamline University, MN - U.S.A.),acredited to be Meditor of Supreme Court of Minnesota at U.S.A., Acredited Mediator and empaneled Arbitrator of High Court of Kerala,Erstwhile Research Intern of Hamline University Mediation Clinic, at Minneapolis in U.S.A.).

CAN A MAGISTRATE ACTING UNDER S. 146 of the Cr. P CODE

TAKE POSSESSION OF THE ATTACHED PROPERTY BY

HIMSELF OR THROUGH HIS SUBORDINA1ES?

(K. Raghavan Nair, Advocate, Tirur)

It has almost become the common accepted practice in the erstwhile Malabar area of the State for Magistrates acting under S. 145 of the Cr. P. Code to attach property; in dispute and entrust it to the Village Officer for management. The question is: Is that practice warranted by law? Does the section confer any such power on the Magistrate?

2. There are indeed a catena of cases which take the view that he has such power all of which including the recent decision of our High Court reported in 1968 KLT 554 harp on the question: what else should he do? None of the decisions unfortunately goes into the scheme of the sections of the Code and try to pinpoint the conferment of power therein. There are also some decisions contra But as has been pointed out in a recent Full Bench case 1970 K.LT 611, there is no Deed to perpetuate erroneous decisions.

3. S. 145 no doubt arms a Magistrate to deal with a situation which may lead to a breach of the peace. Attachment of the property under that section is not the rule but the exception. S. 145 (4) 3rd proviso contemplates an attach­ment only in the case of an emergency, implying that in ordinary cases the very fact that as soon as a likelihood of the breach of the peace is brought to the notice of the Magistrate normalcy will prevail, it, the person who is in actual possession whether rightfully or not, will not be disturbed until the dispute is settled in the proceedings before him. The emergency contemplated in the proviso cannot be acts of violence because an order taking the property into the physical custody cannot certainly prevent it. The emergency must be with reference to the property, like forcible dispossession of the party in actual possession or transfer of possession by him to some third party eventually defeating the object of the ultimate order. In the case of the former, the Police can act even without an order of attachment; the person ultimately succeeding in the proceeding being restored to possession. And in case the person who is in actual possession transfers possession to third parties, the order of attachment can be invoked so as to effectively prevent the successful party being deprived of the fruits of the decision under S. 145 (4).

4. S. 145 (4) contemplates only a situation where it is possible to determine who was in possession on the date of the order under Sub section (1). It also contemplates only a summary proceeding lasting for a few weeks. That is why it does not make any provision for the interim management of the property. On the other hand, even during this short duration of the inquiry certain acts of husbandry may have to be done in the property and the Code by way of abund­ant caution provides for such a situation in Sub S. (8). It is interesting to note in this connection that a separate order is to be made by the Magistrate under this sub-section. If the order of attachment under the proviso above referred to is all embracing so as to enable the Magistrate to take over the management of the property it was quite .unnecessary to have made provision for a separate order under this Sub-Section.

5. S. 146 on the other hand envisages a situation which is to last a little longer and where it may be necessary to provide for long term arrangements. Here he has to attach the properties as soon as he comes to the conclusion that none of the parties to the dispute was in possession of the property or when he is unable to come to a decision and forward the records of the proceedings to the Civil Court along with his statement. The words "may attach it" in this section have to be interpreted to mean "shall attach it", as since according to the opinion of the Magistrate none of the parties to the dispute was in possession or he is unable to decide as to who was in possession on the date of the first order he has to obtain actual control. Sub-S. (2) Then provides for the appointment of a Receiver and that too only if the Magistrate thinks it fit to do so. Here again the appointment of a Receiver, even when the property is according to the opinion of the Magistrate "in medio" is not a matter of course.

6. Thus it will be seen that when a longer period of litigation was envi­saged express power was conferred by the Code for the appointment of a Receiver and when a shorter period was in view only power for proper custody of sale of articles subject to speedy and natural decay. If the word ''attach" in these Sections has the same meaningas it should have by all canons of statutory construction to include in its ambit the taking into possession of the property in dispute, then Sub S. (8) of S. 145 and Sub S. (2) of S. 146 are both redundant. Such a construction has always to be avoided and by 'a true construction of the Sections S. 146 only empowers the Magistrate to get actual control of the pro­perty. As has been pointed out by the Supreme Court in 1966 (II) SCWR. 48 (para II) where the legislature when it wanted certain things to be included in­corporated it in certain Sections but did not do so in other sections is a clear indication that the omission was willful. Here again it is interesting to note that S. 146 does not provide for any situation as is contemplated in S. 145(8). It was because S. 146 (2) was sufficient to meet such situations also.

7. This inevitably leads to the conclusion that under S. 145 the Magistrate has no power to get actual control of the property except in cases under Sub S. (8). Any order passed attaching the property and entrusting it to Village Officers is totally without jurisdiction and void. If the Courts introduce into the Section any such power by way of interpretation it will be usurping legislative functions which has always been frowned upon by Superior Courts.

8. In this connection, it may be of use to refer to S. 88 of the Code where elaborate provisions are made for the attachment of the properties of an absconder, conditions expecting to last for any uncertain time.

9. In my humble view the decision in 1968 KLT. 544 may require reconsideration.

Liability of Hindu husband for maintenance

Of his wife

(K. K. Unni Advocate, Trichur)

I read with interest an article" in the above caption appearing in the September issue of AIR 'contributed by Advocate Sri. B. R. Mandlokar of Nagpur The article is mainly directed against the decision of the Supreme Court in Nanak Chand v. Chandra Kishore Aggarwal and others reported in AIR. 1970 Supreme Court 446. The writer fears that the decision has created an anomaly by holding that the scope of S. 488 Cr. P.C. is different from that of S. 4 (b) of Hindu Adoptions and Maintenance Act 1956 and that the result of the decision is if the wife seeks remedy of enforcement for maintenance in Criminal Court her personal property and income derived there from has to be ignored.

What is decided in the above said case by the Supreme Court is that there is no inconsistency between the provisions in the Hindu Adoptions and Maintenance Act and S. 488 of Criminal P.C, that both can stand together and that S. 4 (b) of Adoption and Maintenance Act does not repeal or affect in any manner the provisions contained in S. 488 of Criminal P.C. One other point considered and decided in the decision by the Hon'ble Court was as to the meaning and cope of the word 'child' used in S. 488. Having considered the different meanings of the word 'child' Their Lordships held that in S. 488 of Cr. P.C. as the word is used in correlation with the father, it does not mean a minor son or daughter and can only mean a son or daughter without any limitation as to age, the only qualification necessary to entitle to maintenance being that it is unable to maintain itself. This decision sets at rest the conflict of opinion on this point amongst the High Courts and even among the Judges of the same High Court.

In the light of what has been decided in the above said decision of the Supreme Court, it is difficult to imagine how the fear expressed in the article by Shri. Mandlokar could be justified. For one thing the question of maintenance of wife did not arise for consideration in the said case nor was it considered, the claim in the case being for the maintenance of children only. It is not therefore correct to say that the result of the Supreme Court decision is ''that if the wife seeks remedy of enforcement of maintenance in Criminal Court her personal property and income derived there from has to be ignored and excluded in determining the quantum of maintenance to be awarded to her." The Supreme Court Judgment does not even touch this aspect. The learned writer of the article appears to be under the impression that it is only by applying the provisions in the Hindu Adoptions and Maintenance Act that a Court will have the power to take into account the income of the wife for the purpose of fixing the quantum of maintenance. That is quite unnecessary. For one thing the Hindu Adoptions and Maintenance Act applies to Hindus only. Can it be that regarding the Hindus alone the wife's income is to be taken into account and not in the case of other communities? S. 488 of the Criminal P.C. is intended for all communities. It is a self-contained provision. It gives wide discretionary powers to the Magistrate in the matter of granting maintenance. Where the court's power is discretionary all factors including the resources of the wife can be taken into account for fixing the quantum of maintenance or even to refuse the grant of maintenance. There is nothing in S. 488 to show that in fixing the monthly allowance the court should consider the means of the husband alone and shut its eyes to the means of the wife. S. 488 does not warrant the grant of maintenance to a wife; with a fabulous income by a husband with meagre resources.

Instances are not rare where courts have not only considered the income of the wife in arriving at the quantum of maintenance to be granted but have even re­fused to grant maintenance to the wife when she has sufficient means to maintain herself. There is a catena of decided cases of various High Courts bearing on this question. I would like to refer only to a very recent ruling of the Kerala High Court reported in 1970 KLT. 554 (Ramankutty Achan v. Kalyanikutty) in which, after discussing the case law on the point the learned Judge holds that the wording of S. 488 does not warrant the exclusion from consideration of the wife's income in fixing the rate of maintenance. The wife in that case was an earning member and her income almost equalled that of the husband and being sufficient for her maintenance according to her status, the High Court set aside the order granting her maintenance.

Black-listing and the Law

(P. C. Abraham, M.A-, M.L, Advocate, Ernakulam)

With the increase in Governmental activities, now the State frequently enters into agreements with private parties for procuring supplies and also for executing works. For this purpose, Government invites tenders from traders and contractors. Though the economic interest of the State demands encouragement of competition, at times, the State may debar a person from competing for a Government contract. This is often done by putting a trader's name in a blacklist. More often than not, this debarment may have something to do with the antecedent conduct of the trader. But he is seldom given notice or an opportunity to refute the charges against him. Here the point to be considered is whether the State can black-list a person in violation of the 'audi alteram partem' principle.

That black-listing will have serious consequences to the individual concerned cannot be denied- Even private parties may not enter into financial arrangements with a person whose name is in the Government's black-list. At one time there was a feeling among lawyers that Government contracts of the type mentioned above were only "privileges" and the citizen had no 'right' for them. Echoes of the same can be seen in many of the Indian decisions, ((a) Bhaskaran, V- State of Kerala 1958 KLT. 334

(b) C. K Atchuthan v. State of Kerala 1959 SC 490

(c) Vedachala Mudaliar v. Divisional Engineer, AIR. 1955 Mad- 335) Now, there is increasing recognition among jurists of the principle that the administrator is bound to observe rules of "fair-play" even while conferring or denying a 'privilege'. Walter Gelhorn says: (As quoted in 1968 KLJ 618 at 629)

"A privilege is not something to be dealt with lightly. Much of modern life, it may said, depends on the continued enjoyment of a privilege such as a job with Government or receiving a pension payment, or retaining an occupational license or remaining in the country one has chosen for his home. The deportation of an alien, Justus Brandeis once realistically declared not only deprives the alien of his liberty, but 'may result also in loss of both property and life; or all that makes life worth living-' can a modern society happily allow decisions of such gravity to be made in terms that are unchallengable because the term need never be fully revealed?"

Kenneth Gulp Davies says (Kenneth Culp Davies "The Requirement of Trial-Type a Hearing Harward Law Review Vol 70 p. 196 at 225)

".........Similarly one who has no right to sell liquor, in the sense that the State May prohibit the sale of liquor altogether, may nevertheless have a 'right' to fair treatment when State Officers grant, deny, suspend or revoke liquor licenses. The State need not grant any such licenses, but if it does so, it must do so fairly without racial or religious discrimination and without unfair procedure."

"The fundamental proposition, stated abstractly, is that some kinds of unfairness are deemed deserving of judicial relief even when they appear in a context of privileges or gratuities. This proposition appears frequently in judicial opinions''

"Even though one may have no right to a Government gratuity, one may have right to be free from damage to reputation or position that may result from withholding of a Government gratuity in some circumstances".

A Full Bench of the Kerala High Court had to consider the problem of blacklisting in Punnen Thomas v. State of Kerala (1968 KLT. 800) In this case, the Govern­ment had passed an order (not communicated) the petitioner to black listing the petitioner and another tendered from taking any work with the Government for ten years, as these persons had, according to the Government, committed irregu­larities in connection with the tender for working down timber from a certain area. In the counter affidavit filed by the State, it was further submitted that the petitioner was found to be "dishonest and undependable" because of the irregularities and so his name was put in the Black list. The petitioner submitted that he had not committed any irregularity in connection with the tender and that the memorandum had been passed without notice and an opportunity of of being heard. Reclaimed the liberty, like any other citizen, to offer tenders for Government work and take the chance of their being accepted by the Govern­ment, if they happen to be the lowest ones- His case was that the order black­listing him was violative of the principles of natural justice and of articles 14, 16(1) & 19(1) of the Constitution.

The majority opinion proceeded on the basis that the petitioner's civil rights were in no way affected by the passing of the impugned order The Court did not think that this case can be brought within the horizons of natural justice, even after Ridge v. Baldwin (Ridge v. Baldwin (1963) 2 All E. R. 66)) and State of Orissa v. Binapani Dei (State of Orissa v. Binapani Dei   AIR. 1967 S.C. 1259) Raman Nayar, Ag. C. J. (as he then was,) observed (on behalf of himself and Eradi J.)

"......But here, there has been no determination of any question and, as we have

said more than once, no interference or threatened interference with the peti­tioner's civil rights. Surely, the term, 'civil consequences' means something more than consequences which the person concerned does not like. There must be at least the possibility of an invasion of some civil rights of his before it can be said that anything done in respect of him has civil consequences."

It was argued on behalf of the petitioner that as the order casts a stigma that by itself would attract the principles of natural justice Their Lordships repelled the argument by saying

"The question whether an impugned act involves a stigma or not, is relevant only for the purpose of determining whether the act sounds only in the region of contract or involves a punishment attracting the rules of natural justice or statutory provisions such as article 311 of the Constitution embodying such rules".

Towards the end of the penultimate paragraph of his judgment Raman Nayar Ag C. J. posed a problem. His Lordship asked:

"Supposing a police officer were to give as a reason for arresting a person that the man was drunk and disorderly. Surely the statement that he was drunk and disorderly would affect his reputation, and what is more unlike as in the present case, the arrest would clearly involve civil consequences But could the arrest be denounced as unlawful and could the police officer be exposed to action civil or criminal merely because he had reached the conclusion that the man was drunk and disorderly, without observing the rule of audi alteram partem?"

It is submitted that the problem posed is not akin to the one at hand. In the case of an arrest, a judicial enquiry will follow, whereas in the case of black­listing, the-adverse ex-parte adjudication by the administrator is final and the individual affected has no other remedy. The former, it is submitted, is more like the summary suspension of a license, pending enquiry.

Mathew J. in a powerful dissent highlighted the peculiarities of the case of black-listing.  His Lordship said (1968 K.L.T. 800 at 808)

"It is one thing to say that Government like any other private citizen, can enter into contract with any person it pleases, but a totally different thing to say that the Government can unreasonably put a person's name in a black-list and debar him from entering into contractual relationship with the Government for years to come- In the former case, it might be said that Government is exercising its right like any other private citizen, but no democratic Government should with impunity pass a proceeding which will have civil consequences to a citizen without notice and an opportunity of being heard. The reason why the proceedings for black-listing the petitioner and debarring him from taking Government work for ten years was passed, is that he committed irregularities in connection with the tender of the contract work. In the counter-affidavit on behalf of the State it is stated that the petitioner was found to be "dishonest and undependable" because of the irregularities and so his name was put in the black-list. The question whether he committed irregularities in connection with the tender is a question of fact. An ex-parte adverse adjudication that the petitioner committed irregularities in connection with the tender for working down timber from Udumbanchola Block No. 1 by Government on the report of some petty officers without notice and an opportunity of being heard to the petitioner and putting his name in the black-list dabarring him from taking any Government work for ten years' by way of punishment, appear to me, to be against all notions of fairness in a democratic country".

Mathew J. drew an analogy from the position of a 'temporary' Government servant. Though the 'temporary' Government servant has no right to continue in service, when the Government terminate his services for a reason that casts a

(7) stigma on his reputation, the employee gets the right to notice and an oppor­tunity of being heard. His Lordship said "I would and, the fact that one may not have legal right to enter into contractual relation with Government does not mean that he can be adjudged ineligible to take up any Government work, illegally".

His Lordship, therefore held "As the memorandum in question casts a stigma on the reputation of the petitioner, which is both an interest of personality and substance, and is attended with civil consequences to the petitioner, and as it operates as a punishment for an alleged irregularity, I, think the memorandum should have been preceded by notice and an opportunity of being heard". The Government, according to Mathew J. is not and should not be as free as an individual in selecting the recepients for largess. "Whatever its activity", 'His Lordship declared, " the Government is still the Government and will be subject to restraints inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".

A similar case of blacklisting came up for consideration before the Delhi High Court in Mahaveer Hat Manufacturing Co Ors v. The Union of India.(Mahaveer Hat Manufacturing Co. & Ors. v. The Union of India (1969)71-P. L. R.D1 p. 334) That was a case in which the petitioner firm was blacklisted on the advice of the Special Police Establishment, who investigated certain complaints against the firm. The order blacklisting the firm was kept a secret from the petitioner, though it was communicated to various departments. Arguments based on V. Punnen Thomas v. State of Kerala were addressed before Mr. Justice S Rangarajan who heard the writ petition. The learned Single Judge however followed an earlier unreported decision of the same court in K G. Khosala & Co. v. The Union of India (K. G. Khosala & Co v. The Union of India C. W. No. 477 of 1969) wherein it was held by Kapur and Tatachari JJ. that an order of black-listing which involves serious consequences could not be passed without opportunity being given to the person affected by the said order.

There is a conflict of judicial opinion on this point which needs to be settled. Cases of this nature are likely to arise in future also. In a country like ours, where we do not have an administrative court of Appeal like the French Conseil D'etat it may not be judicious to decline relief to petitioners in cases of this type. Later cases of this court, (Ibrahim Kunju v. State of Kerala 1969 KLT. 230) the Supreme Court (A. K. Kraipak v. Union of India AIR. 1970 S. C. 150) and the Queen's Bench (R.V. Senate of the University of Aston, Ex.-parte Roffey and another 1962 All E. R. 964) on natural justice make one think that cases of black-listing will soon be held to come within the horizon of natural justice.