Kerala High Court
Sri.Mohan Jacob George vs Sri.Murali Purushothaman on 18 August, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 23533 of 2004(B)
Vs
! For Petitioner :SRI.MOHAN JACOB GEORGE
^ For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
Coram
* The Hon'ble MR. Justice M.RAMACHANDRAN
% Dated : 18/08/2004
: O R D E R
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(M.RAMACHANDRAN, J)@@
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W.P.(C).NO.23533 OF 2004-b@@
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Dated this the 18th day of August, 2004@@
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JUDGMENT@@
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.HE 1
.SP 2
.JY
Nine members of the Erumely Grama Panchayat have
filed this writ petition, inter alia praying that Ext.P1
proceedings are to be quashed. Ext.P1 series have been
issued by the Secretary of the Kanjirappilly Block
Panchayat, who had been the authorised officer by the
State Election Commission, for presiding over a meeting
of a No Confidence motion, and in the course of his above
duties. By the notices, the members had been advised
that a meeting was to be convened on 7th of August, 2004
for considering the No Confidence motion, which had been
received by him against the President and Vice President
of the Grama Panchayat. It is not disputed that a
meeting had been convened thereafter. The petitioners
had refrained from participating in the meeting, on the
plea that notice, as issued by the second respondent, was
not in consonance with law. The motion as above had been
carried and thereafter the members had elected a fresh
President and Vice President. The writ petition had been
filed in the aforesaid context, challenging the
proceedings from the stage of notice.
2. The justifiability and validity of the notices
that had been served on petitioners 1 to 8, therefore, is
substantially the question to be looked into. The
petitioners submit that as far as the 9th petitioner was
concerned, there is no case for the second respondent
that notice had been served on him in person or by post,
but the notice is claimed to have been given over to his
wife. In respect of petitioners 1 to 8 also, what is
claimed is that they had been given notices, in person,
on 2nd of August, 2004. The petitioners, therefore,
assert that there was no attempt made by the second
respondent to comply with the statutory prescriptions,
viz., sending the notices by registered post, and they
point out that this aspect is not disputed.
3. The resultant position, according to the
counsel for the petitioners, is that the steps taken are
void. The statute mandatorily prescribed that notice
about the No Confidence motion has to be served on the
members by registered post and seven clear days were to
be there for a discussion of such motion. Mr.Mohan Jacob
George further points out that since it is admitted that
registered notice had not been sent, there is clear
violation of the rules and all consequential steps for
convening a meeting and the decision taken and further
steps for unseating them are without authority of law.
He had, in addition thereto, invited my attention to
section 157 (2) and (4) of the Kerala Panchayat Raj Act,
which could be extracted herein below, for showing the
sequence of the proceedings:
.SP 1
" (2) Written notice in such form as may be@@
ii
prescribed of the intention to move any motion
referred to in sub section (1) signed by such
member of elected members of the Panchayat
concerned as shall constitute not less than
one third of the sanctioned strength of
elected members of that Panchayat, together
with a copy of the motion which is proposed to
be moved shall be delivered in person by any
of the elected members of the Panchayat
signing the notice, to the officer as may be
authorised by the Government in this behalf.
.JN
xx xx xx xx
.JY
(4) The Officer referred to in sub-section (2)@@
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shall send by registered post to the elected
members of the Panchayat concerned notice of
not less than seven clear days of any meeting
held under this section and the time appointed
therefor. Notice regarding this shall be
affixed in the Office of the Panchayat."
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.SP 2
4. He had adverted to decisions of this Court
as also the Supreme Court, reported in Nazeer v. State of@@
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Kerala [2000 (2) KLT 92 -- Case No.98], Ramchandra v.@@
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Govind [AIR 1975 SC 915 - para 25] for the proposition@@
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that when statute prescribed a specific method to be
followed, it was obligatory on the functionaries under the
statute to conform to the norms that are so laid down and
it should not have been done in any other manner.
Therefore, the second respondent had little discretion for
economising, it is submitted. Hand delivery was not
envisaged, but only a service by registered post. The
authorities cited by the learned counsel for the
petitioners appear to be clear in laying down this
principle, which have been uniformly followed by the
Supreme Court and this Court on a number of occasions.
5. He had also adverted to a decision
reported in Collector of Central Excise v. Alcobex Metals@@
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[2003 (4) SCC 630], wherein it had been held by the
Supreme Court that when notice had been issued by an
officer, who had not been authorised under law to issue
such notice, the consequential proceedings were not valid
and in effect invalidates all subsequent proceedings.
Though not applicable to the facts of the case, the
rigidity of procedure was attempted to be established.
Adverting to the decision reported in 1964 KLJ 230 [The@@
EEE
Income Tax Officer v. Miyya Pillai], the learned counsel@@
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had attempted to highlight the principle that service of
notice being a precondition, it may not be possible for
the authority to canvas for a position that it was
inconsequential, and the deliberations and the follow up
action taken on that basis did not have legally binding
character. Counsel had also referred to certain
paragraphs from Shackleton on The Law and Practice of
Meetings, and more particularly referred to the passages
regarding notice, the relevant portion of which could be
extracted herein below:
.SP 1
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"The notice must be served strictly in
accordance with the regulations of the body
on whose behalf it is given, and if any
particular method is prescribed by statute
or regulation having the force of law this
also must be observed."
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.SP 2
As an example, the learned author had also given an
instance, where the meeting could have been held as
invalid, as following:
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"By the rules of a building society holders
of completed and uncompleted shares were
entitled to notice of all meetings of the
society but in the case of holders of
uncompleted shares, not to vote thereat.
Notice convening a special meeting was sent
only to holders of completed shares. The
meeting was held to be not validly convened
and omission to give notice in the present
instance was not accidental within section 3
of the Building Societies Act 1960."
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.SP 2
The essential principles had been summarised as:
.SP 1
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"A valid notice must:@@
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state the date, time and place of@@
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meeting;
be issued on the authority of the@@
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representative body (board, council,
executive, etc.) under the name of
an authorised person (secretary,
director or other official);
be sent to every person entitled to@@
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receive it;
comply with any statutory@@
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obligations (e.g. as to extra
ordinary or special resolutions in
the case of companies);
be given in the prescribed manner@@
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(hand, post, advertisement, or other
means)."
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.SP 2
Thus, the submission was that when there was no notice as
authorized and prescribed by the statute, it could not
have been possible for the second respondent to contend
that the proceedings were valid. Further, even if the
notice was served personally on 2nd of August 2004, when
it was admitted that the meeting was held on 7th August,
2004 there was no clear seven days time as prescribed,
which also was mandatory. The decision is vitiated for
the above reason as well.
6. The second respondent has filed a counter
affidavit. It has been attempted to show that as a
matter of fact the petitioners were aware of the No
Confidence motion as early as on 30th of July, 2004. In
fact, when they were given such notices in person, they
had refused to accept the notice and the notices were
thereupon served by affixture on the same day. It is,
however, not disputed that there was no notice served on
the 9th petitioner, at any time. The stand is that
because of the affixture, there were seven clear days
before the actual date of meeting. It is stated that the
petitioners have adopted a technical stand without
justification and having found that there was no
sufficient support for continuing as office bearers, a
surreptitious method is taken to see that the outcome of
the motion, which was carried, was nullified.
7. The 4th respondent submits that as far as
possible the office of the State Election Commission
insists that notices which are to be served on parties
are to be served as authorised by the relevant section.
It is impermissible to use discretion even for
expediency, or for any other reason.
8. The additional respondents, who had got
themselves impleaded, submit that they had received
notices, by hand on 30-07-2004. According to them, the
second respondent had waited till the last date for
holding of the meeting and had substantially contributed
to the debacle. As a person, who had been authorised by
the State Election Commission, he was bound to know the
consequences of his action and the conduct do indicate
that he acted hand in gloves with the petitioners. They
themselves were disabled from rendering advice to the
official, as to the manner in which the proceedings were
to be conducted. Therefore, they should not be left in a
position high and dry, by requirement of repeating
through an ordeal of giving a notice, and awaiting for
the convenience of the authorised officer.
9. The claims and counter claims could be
examined in the above background. When we advert to the
statutory provisions, the indication is clear that the
procedure has to be mandatorily applied. The method of
affixture employed by the Secretary, perhaps was in view
of the Kerala Panchayat Raj (Manner of Service of
Notices) Rules, 1996. But it has to be noticed that
affixture referred to by Rule 3(1)(d) could not have been
employed here at all. Rule 3(1) indicates that personal
service, affixture, and even the presumption of service,
or a refusal to accept notice can be there only in cases
where the Act, Rules or bye-laws do not provide for a
specified method. Further, these rules are intended to
operate only when the Panchayat intends to issue notices,
bills, orders summons etc. In the matter of no
confidence, the Panchayat has no role to play. It has to
be done by a person authorised by the State Election
Commission. Hence the Rules have no application
whatsoever.
10. Section 157 of the Kerala Panchayat Raj
Act, with its heading `Motion of no confidence' appears
to be a comprehensive code of procedure. A motion
expressing want of confidence is to be moved in
accordance with the procedure laid down there alone, it
is emphasised. The mandatory requirements under section
157(2) are a written notice signed by required number of
members and a copy of the motion to be moved. It has to
be delivered by any of the signatories, to the authorised
officer, and in person. No relaxation of any of the
procedures is permissible, as every one of them are
mandatory requirements. The authorised officer is to
convene a meeting, at the office of the Panchayat within
15 working days from the date of delivery of notice.
Sub-section (4) requires him to send by registered post,
the notice of his intention to convene the meeting giving
seven clear days. A notice in respect of this is to be
published on the notice board.
11. The time limit is to be stuck to, and
could be altered only for reasons beyond human control.
Unending discussion also is discouraged, as the
deliberations shall come to an automatic end at the
expiry of three hours of the start of the meeting.
Election is by open ballot, and the member has to sign
with his name on the reverse side of the same. If the
motion is carried, the officer will cease to hold office
forthwith. The minutes and the results are to be
forwarded to the Government, for publication. Therefore,
the procedures prescribed are of peremptory nature. The
Departmental officers are expected to act in conformity
with the statute. The prescriptions tally well with the
accepted authorities on the subject. Even if hand
delivery may be a functional method of service of notice,
in public interest, I am of the view that the procedures
as prescribed are mandatorily to be followed, as the
results of the proceedings are of extreme consequences to
both sides.
12. The stipulation for the minimum clear
days also might be with specific objective. The notices
are to be sent to the address registered by the member.
Seven clear days are counted from the date of despatch of
the notice. Also what is to be published on the notice
board appears to be the steps taken by the officer
concerned in this regard, rather than publishing a copy
of the motion, or a copy of the notice given to the
members.
13. The notice period of seven clear days
also cannot be curtailed or dispensed with, when the
requirement is by a statutory mandate. We have to take
notice of the fact that political parties, and coalitions
have been accepted as part and parcel of the political
system. The Local Authorities (Prohibition of Defection)
Act, 1999 has attempted to introduce stringent measures,
and at certain situations, crossing of floor could cost
the membership. Under Section 3 of the Act, inter alia,
if a member of a political party overreaching a whip
votes or abstains from voting in a meeting, he is liable
to be disqualified. Thus, in spite of difference of
opinion, a member at times may have to suffer the
presence of a President/Vice President, who is in office.
Stability of the system perhaps might have been the
object sought to be achieved. After a motion is
presented, therefore, sufficient time will have to be
given to the political parties to arrange their affairs,
and the period of seven days might have been prescribed
for these formalities. Therefore, the second respondent
could not have cut short the period. Sufficient reason
is also not forthcoming as to why notice was not sent to
the 9th petitioner.
14. Therefore, I am constrained to accept the
contentions of the petitioners, that there was no notice
as envisaged by section 157(2) and (4) of the Act for
convening a meeting. The defects vitiate the entire
transactions, including the conduct of the meeting.
15. I declare, therefore, that the convening
of the meeting consequent to Ext.P1 on 07-08-2004 was
irregular and the transactions that had taken place in
the meeting did not confer any liabilities on the office
bearers, who were in charge as on the said date. The
declaration of the results, that the No Confidence
motions had been carried, therefore is illegal and
unsustainable. They are therefore set aside. The result
will be that petitioners 1 and 2, who are respectively
the President and Vice President of the Grama Panchayat,
are to be deemed as continuing in office. The second
respondent should inform the Government about these
developments appropriately.
16. However, for this reason, namely that
technically the meeting convened on 07-08-2004 was bad,
is no reason to permit the petitioners to continue
indefinitely. Because of the inept handling of the
situation by the second respondent, a situation has
developed and the effort of the additional respondents
had been thwarted. However, the proceedings have to
continue as the motion has not been defeated. I hold
that the No Confidence motions presented by them before
the second respondent are valid and they cannot be
answerable for the delay that has come across. The
second respondent is directed to hold the meeting, which
is to be convened by him, within a period of 15 working
days from today. He has to hold the meeting after giving
notice to the members, as stipulated by the statute, by
registered post and the meeting has to be convened only
after seven clear days of issuing such notice. This may
be done. The first and second petitioners are entitled
to hold the office of President and Vice President in the
meanwhile. Arrangements brought about, during the
interregnum and the pendency of the writ petition, are to
be retraced.
The writ petition is allowed. No costs.
.JN
(M.RAMACHANDRAN, JUDGE)@@
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Dated: 6th day of July, 2004
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+WP(C) No. 20503 of 2005(N)
1. M/S.CROWN MARITIME COMPANY (I) LTD.,
... Petitioner
2. K.X.JOHN, 16/1677,
Vs
1. THE DEPUTY SUPERINTENDENT OF POLICE,
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE SUB INSPECTOR OF POLICE,
4. K.P.HARIDAS, PRSIDENT,
5. K.V.MANOJ, MEKHALA SECRETARY,
6. K.S.ANIL KUMAR,
7. C.K.ANIL KUMAR, SECRETARY,
8. JOSE KAPPITHAN PARAMBIL,
9. C.D.NAVAS, DISTRICT SECRETARY,
10. MAJEED, DISTRICT COMMITTEE MEMBER
11. SHIHAB, COCHIN MEKHALA SECRETARY,
For Petitioner :SRI.T.MADHU
For Respondent :SRI.N.NAGARESH
Coram
Dated : 18/07/2005
O R D E R
.PL 58 .TM 3 .BM 3 ........L....T.....T...............T.......T.......T.......T....J (M.RAMACHANDRAN & S.SIRI JAGAN, JJ)@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
----------------------------------@@ j W.P.(C).NO.20503 OF 2005-N@@ j
----------------------------------@@ j Dated this the 18th day of July, 2005@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA @@ j JUDGMENT@@ jEEEEEEEE ((HDR 0 [WPC 20503 of 2005]
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)) .HE 1 .SP 2 .JY Ramachandran, J:@@ EEEEEEEEEEEEEEE This is an application for police protection. The first petitioner has a subsisting agreement with the Cochin Port Trust. One of the works so assigned is the construction of Rubble Mount reclamation wall and dredging and filling the area on the western side of Bolgatty. The agreement is dated 27-06-2005. There is an upper time limit prescribed for execution of the work. According to the first petitioner, part of the said work has been given on sub contract to the second petitioner. The second petitioner is fairly experienced in such work and pleadings indicate that almost regularly he was engaging a set of workmen. The claim of the petitioners is that when the second petitioner had entered into an agreement with respondents 4 and 5 Unions, and a ratio had been agreed upon in between them about right of engagement, third parties had no right to insist that they are also to be inducted to the work.
2. According to the second petitioner, the required strength of workmen is about 20. However, at the bar, it had been submitted that additional workmen might be necessary, and in principle, he has no objection to take workmen, but as matters presently stand, in view of an agreement entered into by him with respondents 4 and 5, his hands are tied up. The gist of the submission is that the petitioners are interested in carrying on the work within the time frame stipulated, but because of demand from third parties and union rivalry, it is not possible for them to commence the work.
3. Respondent No.6 onwards had been impleaded in the writ petition, who are Trade Unions, and who have been making demands for participation in the work. Petitioners submit that there can be no legal basis for any such demand and when the petitioners are not inclined to engage persons other than those who are nominated by respondents 4 and 5, the other Unions can have no say in the matter. Consequently, the demand for work and the obstruction of the construction activities on the basis of such demands, are illegal and the police have a duty to extend their helping hand so as to see that law and order is maintained and the work is permitted to be carried out smoothly, in public interest.
4. The petitioners also refer to a judgment in W.P.(C).No.195456 of 2004 (Ext.P3), by which this Court had granted reliefs practically in the lines that had been requested for in the present writ petition.
5. Counter affidavits have been filed by respondents 4 and 5 (the beneficiaries as of now) as also by respondents 6, 7 and 8. By their stand, the 4th and 5th respondents support the cause of the petitioners, the 5th respondent especially relying on Ext.R5(a) settlement dated 25-05-2005. The 4th respondent has adverted to the above settlement as well as an earlier settlement dated 20-11-1999. According to them, they have exclusive right for engagement under the second petitioner thereby. It is also pointed out that when additional workmen are required, the contractor will have only a restricted right to engage freshers.
6. Normally, settlement between the parties have a binding effect as between them and we have also to take notice of the principle that an employer has a right to enter into a contract with a body, at his discretion. Therefore, a third party, even if it be a union, may not be normally entitled to butt in and demand employment from an unwilling employer.
7. However, Mr.N.Nagaresh, appearing for the 6th respondent, submits that the contentions raised by respondents 4 and 5 suffer from a good amount of suppression. The principal contract (Ist petitioner) as well as the second petitioner had been engaging in the works tendered by the Cochin Port Trust, a public authority, for quite some time and in view of the developmental activities on the anvil, such works are expected to continue in larger scales at least for some more years. Taking notice of the circumstance that a public authority like the Cochin Port Trust had floated the work, on the basis of the observations that had been made by this Court in some other writ petitions, in a right spirit and responsibly, the contractor and the sub contractor had already entered into settlements with the trade unions representing the workmen in the locality. Ext.R6(a) settlement had been signed by the parties on 18-09-2004. Major trade unions had been parties to the above and according to the counsel, this alone has to govern the situation, and contracting out with splinter unions was not only unethical, but also illegal.
8. Although the 4th and 5th respondents attempted to disown the above, legally they have to accept the factual situation so presented. This revelation has really tilted the balance in favour of workmen, at least represented by the 6th respondent. When a binding settlement is there between the parties, so long as it holds the field, the terms cannot be watered down by another settlement, or behind a party to the settlement, as could be gatherable from the wordings of section 18 of the Industrial Disputes Act. M/s.Crown Maritime Company (Ist respondent herein) had assured by the above settlement that in respect of every work available in the locality under the auspices of the Cochin Port Trust, they are prepared to follow certain code of conduct. If that be the case, an arrangement whereby employees represented by the 6th respondent were kept out, could not have been authentic. The second petitioner was also a party to the settlement and could not have wriggled out of such liability. It is apparent that the second petitioner has not really recognised anybody represented by respondents 4 and 5 as his employees. He is to engage any person sent up by the Unions. Such a pooling, which has not any statutory backup, is likely to concentrate powers on Union leadership, and will be disadvantageous to the workmen community. We do not think that the byelaws of the Union concerned, nor the Trade Unions Act authorises the Unions to function as labour supply contractors. Ext.R5(a) is therefore not enforceable.
9. We had also opportunity to hear Mr.Majnu Komath, who appeared for the 7th respondent. He had referred to the Minutes of a meeting which had been attended to by workmen in general. An agreed solution had been formulated, and their complaint is that later on this has been practically ignored. However, this Union is not a party to Ext.R6(a) settlement. Mr.Sunil V.Mohammed, appearing for the 8th respondent, also refers to the restrictive practices that are employed by the Trade Unions, and especially concentrated his attack on respondents 4 and 5. It is submitted that the work is for workmen and not for Unions and so long as the settlements did not take notice of the claims of individual workman, restrictive practices were likely to crop up, as the workmen will have to pay premium for getting employment. They were to dance to the tune of big bosses for employment and continued engagement.
10. Mr.Sunil V.Mohammed had also adverted to the minutes of the meeting held on 26-11-2004, a copy of which is produced as Ext.R8(a), and points out that the management representatives had participated and an agreed resolution had been there, in respect of the projects of Puthuvype. But the Unions had been engaging on infights and the workmen are required to go begging. By annexing rights for nomination, the majors were attempting to muster power, wealth and following.
11. It is clear that settlements, minutes and resolutions were passed from time to time and perhaps it discloses only the anxiety of the real individual workman to get employment. When once persons are engaged as contract labourers, thereafter at least the records should indicate the name of the individual workman, and branding them generaly as persons sponsored by Unions, alone will not suffice. Prescriptions to be adhered to under the Contract Labour (Regulation and Abolition) Act should also be taken notice of to the required extent.
12. For the present, we feel that the issue could be given a quietus by recording the submission of the counsel for the petitioners that sufficient representation could be given to the members nominated by the 6th respondent Union. It should be in the same proportion as enjoyed by the 4th and 5th respondents. Though relief cannot be granted straight away, the rights of respondents 7 to 11 for seeking remedies are not being disturbed by us, but they should not resort to any path of violence. Submission of the petitioners are recorded that they would constructively participate in conferences duly called for at the instance of the authorities. They are not interested in the private cause of Unions as such, but have to meet the deadlines set by the principals and require the work force to carry out such work.
13. The police should see to it that there is no obstruction about the work being attended to by the petitioners, taking due notice of the directions as above noted.
The writ petition is disposed of with the above direction. No order as to costs.
.JN (M.RAMACHANDRAN, JUDGE)@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (S.SIRI JAGAN, JUDGE)@@ AAAAAAAAAAAAAAAAAAAAA mks/ ((HDR 0 )) .HE 2 .PA ...............T.......T.......L.......T.......T.......T................J............. .SP 1 (M.RAMACHANDRAN & S.SIRI JAGAN, JJ)@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
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Dated: 15th day of July, 2005