Uttarakhand High Court
Mohan Lal Sah vs Smt Shanta Bisht And Another on 18 December, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 927 (M/S) of 2014
Mohan Lal Sah ...... Petitioner
versus
Smt. Shanta Bisht & another ....... Respondents
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Manoj Sah,
Advocate for the petitioner.
Mr. B.C. Pande, Senior Advocate assisted by Mr. B.D. Pande, Advocate
for the respondents.
U.C. Dhyani, J.
By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 30.11.2011, passed by Prescribed Authority / Civil Judge (Sr. Div.), Nainital, in rent control case no. 01 of 2007, Smt. Shanta Bisht and another vs Mohan Lal Sah, as also judgment and order dated 05.04.2014, passed by II Addl. District Judge, Nainital, in rent control appeal no. 04 of 2012, Mohan Lal Sah vs Smt. Shanta Bisht and another. A further prayer has also been made for directing the respondents not to evict the petitioner during the pendency of present writ petition.
2) Briefly put, the dispute relates to a shop which is part of property no. 64, situated in ward no. 7, Mallital, Nainital. Property no. 64, ward no. 7, was owned by late Sri Dhyan Singh Rawat, who had purchased the said property vide registered sale deed dated 15.11.1979 from one Harish Sah s/o Sri Devi Lal Sah. Petitioner is the tenant in the shop in dispute since the days of previous owner Sri Harish Sah and after execution of the sale deed in favour of late Sri Dhyan Singh Rawat, the petitioner became the tenant of late Dhyan Singh Rawat. Petitioner continuously paid the rent to late Sri Dhyan 2 Singh Rawat after November 1979. Late Sri Dhyan Singh, in April 1981, gave the property no. 64, situated in ward no. 7, Mallital, Nainital to his daughter Km. Swarnlata Rawat. It is pertinent to mention here that late Sri Dhyan Singh, on 16.04.1981, wrote a letter to this effect to Tax Superintendant Nagar Palika, Mallital, Nainital and requested him to issue the receipt of the house tax or bills in the name of Km. Swarnlata Rawat, to whom late Sri Dhyan Singh had given the said property. In support of the aforesaid application dated 16.04.1981, other legal heirs of late Dhyan Singh gave 'no objection' in writing to the effect that if the property no. 64, ward no. 7, Mallital, Nainital, is transferred in the name of Km. Swarnlata Rawat, they will have no objection. Thereafter, on 25.06.1981, the Municipal Board, Nainital took a decision, whereby the name of Km. Swarnlata Rawat was recorded in municipal records over the said property. After June 1981, the petitioner, who was the tenant in shop in dispute, which is a part of property no. 64, ward no. 7, Mallital, Nainital started paying rent to Km. Swarnlata Rawat treating her as owner and landlord (landlady) of the shop in dispute. On 11.04.1990, Km. Swarnlata Rawat vide registered sale deed sold a shop which is part of said property in favour of Johri Dutt Chaudhary. Petitioner has been paying rent continuously to Km. Swarnlata Rawat treating her as owner and landlord (landlady) of the shop in question, in which the petitioner is running a medical shop in the name and style of 'Mohan Co. Medical Store'.
3) In the year 1996, a sham family settlement was done among the legal heirs of late Sri Dhyan Singh, by which the property in question was given to Smt. Shanta Bisht w/o late Sri Harish Bisht. Said family settlement was done only to make out a case for release of the disputed shop in favour of son of respondent no. 1, who is the married sister of respondent 3 no. 2. Petitioner had continuously paid rent to Km. Swarnlata Rawat through cheque and money order, upto July 2007. Thereafter, respondent no. 2, started refusing to accept the rent and the petitioner was compelled to file misc. application no. 09 of 2008, Mohan Lal Gangola vs Km. Swarnlata Rawat, under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for brevity here-in-after referred to as 'U.P. Act no. 13 of 1972') in the court and started depositing the rent in the court. In the year 1993, respondent no. 2 had moved an application for enhancement of rent before Rent Control and Eviction Authority, Nainital, which was registered as case no. 06 of 1993, Km. Swarnlata Rawat vs Mohan Lal Sah, and subsequently, the aforesaid case was dismissed in default of respondent no. 2 on 21.04.1994. In January 2007, respondents moved an application under Section 21(1)(a) of U.P. Act no. 13 of 1972, for release of shop in dispute on the ground that the son of respondent no. 1 needs the shop in question to run a business and want to open a departmental store. Aforesaid application was registered as Rent Control Case no. 01 of 2007, Smt. Shanta Bisht and another vs Mohan Lal Sah, in the court of Prescribed Authority / Civil Judge (Sr. Div.), Nainital. Notices were issued to the petitioner and the petitioner filed his objection to the release application on 07.11.2007. Respondents filed their rejoinder affidavit denying the averments made in the objection filed by the petitioner. Both the parties filed their affidavits and documentary evidence before the Prescribed Authority, in support of their respective claims. Prescribed Authority, on 30.11.2011, passed an order, whereby the application filed by the respondents was allowed and the petitioner was directed to vacate the shop in question within two months of the date of order.
44) According to the petitioner, the order passed by learned Prescribed Authority was patently illegal and respondent no. 2, who was the real landlady of the shop in question, has not sought release of the property in question for her own need and the Prescribed Authority committed illegality in holding that the petitioner-tenant could not prove that the property in question has not been transferred by late Sri Dhyan Singh in favour of respondent no. 2. Aggrieved by the judgment and order dated 30.11.2011, the petitioner filed an appeal under Section 22 of U.P. Act no. 13 of 1972 before learned District Judge, Nainital, which was registered as Rent Control Appeal no. 04 of 2012, Mohan Lal Sah vs Smt. Shanta Bisht and another. Aforesaid appeal was transferred to II Addl. District Judge, Nainital. Said court, vide judgment and order dated 05.04.2014, dismissed the appeal and affirmed the judgment and order dated 30.11.2011, passed by the Prescribed Authority.
5) According to the petitioner, during the pendency of case, petitioner tried his best to get suitable accommodation to run his medical store, but could not find any accommodation. The petitioner issued an advertisement in daily newspaper and also moved an application to District Supply Officer, but all his efforts went in vain.
6) It is the submission of learned Senior Counsel for the petitioner-tenant that the findings recorded by the Prescribed Authority as well as Appellate Authority on bonafide need and comparative hardship are against the evidence on record and are not in accordance with law. Respondent no. 2, who is an unmarried lady, owner and landlord of the shop in question, cannot be released the shop in question for the need of the son of respondent no. 1, as the son 5 of respondent no. 1 will not come within the purview of 'family' given under the provisions of U.P. Act no. 13 of 1972. This fact is fully proved that in April 1981, late Dhyan Singh Rawat, the original landlord and owner of the property, had given the property no. 64, ward no. 7, Mallital, Nainital to his unmarried daughter Km. Swarnlata Rawat, who became the owner and landlord of the shop in dispute and received the rent of the disputed shop from the petitioner, but the Prescribed Authority as well as the Appellate Authority has not considered the same while passing the impugned orders, which are illegal and arbitrary in the eyes of law. When the property in dispute in part has already been given to Km. Swarnlata Rawat in the year 1981, then there was no occasion for the family settlement held in the year 1996 and as such family settlement held on 1996 appears to be sham and is manufactured just to make out a case for release of the shop in dispute in favour of the son of respondent no. 1. It is also submitted that nine family members of the petitioner, including his three sons, are totally dependent on the income generated from the shop in dispute and in case they are evicted from the shop in dispute, their entire family will suffer a great loss. From the documentary evidence adduced on behalf of the petitioner-tenant it is fully proved that Km. Swarnlata Rawat is the only owner and landlady of the shop in dispute and the need set up for Nikhil Anand Singh, who is the son of married daughter of late Dhyan Singh and sister of Km. Swarnlata Rawat, therefore, the shop in dispute could not have been released under the provisions of U.P. Act no. 13 of 1972. The family settlement set up by the respondents is a sham settlement and could not have been done between the parties for the reason that late Sri Dhyan Singh has given his property to Km. Swarnlata Rawat in April 1981 and after the said date Km. Swarnlata became the owner and landlady over the property and received the rent as landlady, 6 therefore, the alleged family settlement is illegal and arbitrary and appears to be manufactured just to take benefits of Rent Control Act. Sri Nikhil Anand Singh, for whom the release application is filed, will not come within the definition of member of family of the landlord under the Rent Control Act and thus the impugned judgments and orders are illegal and arbitrary in the eyes of law. While deciding the release application, the Prescribed Authority as well as Appellate Authority have not taken into consideration the provisions of Rule 16(2)(a) of Rent Control Rules, 1972, as the petitioner has been carrying on his business in the shop in dispute since 1965- 66 and has earned goodwill of his business in the shop in dispute.
7) Learned Prescribed Authority, after carefully considering the facts of release application, as also rival contentions, has appropriately come to the conclusion that the applicant no. 1 (respondent no. 1 herein), being the owner of the property in question requires the same for the bona fide need of her son. Prescribed Authority has also appropriately discussed that comparative hardship is more in favour of the landlady, if the shop in question is not released in her favour.
8) In paras 10 to 14 of the judgment, learned Prescribed Authority has dealt with the issue as to why Swarnlata Rawat (respondent no. 2 herein) cannot be said to be the owner of the shop in question. According to learned Prescribed Authority, Shanta Bisht (respondent no. 1 herein) is the owner of the property. This Court need not repeat those facts and findings arrived at by learned Prescribed Authority, for the judgment rendered by said authority forms part of present writ petition. This Court does not find anything perverse in those conclusions. Likewise, in paras 24 to 39, 7 learned Prescribed Authority has dealt with the issue of comparative hardship and has arrived at a conclusion that comparative hardship will be more in favour of Shanta Bisht rather than the tenant-petitioner, if the shop is not released in her favour.
9) Goodwill is attached to the business and not to a place. Sincere efforts were not made by the tenant for searching out alternate accommodation. Nikhil Anand Singh and her mother are although literate, but unemployed. Shanta Bisht (respondent no. 1 herewith) is a retired and widow lady. Since it has been held that Shanta Bisht is the owner of the property in question and the same is required for the bona fide need of her son, therefore, this Court does not find any occasion to deal with the question that Nikhil Anand Singh cannot be said to be family member of Swarnlata Rawat (respondent no. 2 herein). It may be mentioned here that neither the Prescribed Authority nor Appellate Authority nor this Court is deciding the title suit of the shop in question. The arguments relating to mutation, family settlement etc. have been appropriately dealt with by learned Prescribed Authority, duly affirmed by the Appellate Authority. Prima facie, Shanta Bisht is the owner of the shop in question and, therefore, this Court does not think it proper to go into the question of ownership of the shop in question any further.
10) It is not the tenant who can dictate the terms upon the landlord and advise him what he / she should do and what he / she should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.
811) The following are the observations made by the Hon'ble Apex Court in Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and others, (2005) 8 SCC 252.
"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial court held in favour of the appellant tenant. But the appellant court as well as the High Court after scrutinizing the evidence on record, reversed the finding of the trial court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bona fides."
12) In the case of Joginder Pal vs Naval Kishore Behal, 2002 SC & FB, Rent Cases 288, the Apex Court has held as under:
"In Maope Vishwanath Acharya and others Vs State of Maharashtra and another (1988) 2 SCC 1, this court has emphasized the need of social legislation like the Rent Control Act striking a balance between rival interests so as to be just to law. "The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society". While the shortage of accommodation makes it necessary to protect the tenants to save them from exploitation but at the same time the need to protect tenant is coupled with an obligation to ensure that the tenants are not conferred with a benefit disproportionately larger than the one needed. Socially progressive legislation must have a holistic perception and not a shortsighted parochial approach. Power to legislate 9 socially progressive legislation is coupled with a responsibility to avoid arbitrariness and unreasonability. A legislation impregnated with tendency to give undue preference to one section, at the cost of constraints by placing shackles on the other section, not only entails miscarriage of justice but may also in constitutional invalidity."
[Emphasis supplied]
13) In the decision of Ram Shankar Jaiswal v.
Additional District Judge (Sc/St Act), Lucknow and others, 2015 (1) ARC 474, in paragraph 11 of the judgment, the following was observed:
"The need in respect of additional accommodation as envisaged in Section 21 of the Act must be a bonafide need and not a mere desire. If the landlord has a desire to have more accommodation, that will not attract the provisions of Section 21 because the intention of the legislature is that a building should be released to the landlord only if his need in respect of the accommodation in occupation is bonafide, genuine and hard pressing. It is not a case where the landlord has no accommodation at all. It is an admitted case of the parties that the opposite parties landlords have an independent house in their occupation. They need additional accommodation which is in occupation of the petitioner- tenant. Therefore, the accommodation in occupation of both the parties has to be taken into account while considering the need of the opposite parties landlords. The Prescribed Authority will have jurisdiction to make an order of release only it is satisfied that the need of the landlord is bonafide and genuine. Once it is found that the need of the landlord is bonafide, the Prescribed Authority is required to proceed to consider the comparative hardship of the parties. Unless it is found that the need of the landlord is bonafide, there is no occasion to consider the comparative hardship. In this case although the Prescribed Authority has discussed in detail the 10 evidence led by the parties but has not recorded any finding that the need of the opposite parties landlords for additional accommodation was bonafide and genuine. The learned Prescribed Authority without recording any finding as to the need of the landlord, proceeded to compare the hardship of the parties. The learned appellate Court found the need of the landlords as bonafide only on the ground that the son of the petitioner-tenant has been living separately and construction of two rooms constructed by the opposite parties landlords were not subject matter of this litigation."
14) In Indian Overseas Bank vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to re- appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
15) Likewise, in Prakash Chandra and others vs. XII A.D.J. and another, 2013 (2) ARC 91, it was observed that once the very basis of filing application under Section 21(1)(a) of the Act, 1972 is not substantiated and findings recorded by Appellate Court is not shown to be manifestly erroneous, this court would not be justified in interfering in exercise of writ 11 jurisdiction since it is not an appellate jurisdiction conferred upon this Court. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
16) The Prescribed Authority, therefore, gave cogent reasons in support of its finding that the landlord has been able to show her bona fide need and comparative hardship is also in her favour.
17) It will be apt to quote para 4 of the judgment rendered by Hon'ble Apex Court in Ranjeet Singh vs Ravi Prakash, (2004) 3 SCC 682, as under:
"4. Feeling aggrieved by the judgment of the appellate court, the respondent preferred a writ petition in the High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the appellate court and restored that of the trial court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the appellate court. Though not specifically stated, the phraseology employed by the High Court in its judgment goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the appellate court. In Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the court or authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev's case (supra) that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing 12 inferences like a court of appeal. The High Court has itself recorded in its judgment that - "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the appellate court. On its own showing, the High Court has acted like an appellate court which was not permissible for it to do under Article 226 or Article 227 of the Constitution."
18) It will also be apt to quote paras 29, 30, 31, 32 and 33 of the decision of Hon'ble Apex Court in Celina Coelho Pereira (Ms) and others vs Ulhas Mahabaleshwar Kholkar and others, (2010) 1 SCC 217, as under:
"29. The High Court, as the discussion in impugned judgment shows, has been too technical in construing the pleadings of the case overlooking the fact that plea of sub- letting has been set up by landlord in the plaint and there has been full and critical examination of the evidence by the Additional Rent Controller as well as the Administrative Tribunal. The Additional Rent Controller and the Administrative Tribunal cannot be said to have misdirected themselves either on law or on facts. Both Authorities found as a fact that Mandovi Tours and Travels was not a genuine partnership and it was formed to cover up the subletting of the suit premises. They also found as a fact that the partnership having not been found to be genuine partnership, it was difficult to hold that the tenant continued to have a control over the suit premises. These findings recorded by the Administrative Tribunal as well as the Additional Rent Controller are based on the consideration of evidence on record. In any case, it cannot be said that the aforesaid view of the Rent Control Authorities is not a possible view.
30. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858, this Court held :
"7. ....The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."
31. In State v. Navjot Sandhu, (2003) 6 SCC 641, this Court explained the power of the High Court under Article 227 thus :
"28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it 13 exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such (1975) 1 SCC 858 (2003) 6 SCC 641 discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'."
32. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra v. Milind, (2001) 1 SCC 4 and Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1 and this Court held :
"38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The (1986) 4 SCC 447 (2001) 1 SCC 4 (2004) 3 SCC 682 (2008) 9 SCC 1 powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law."14
33. In light of the aforesaid legal position concerning jurisdiction of the High Court under Article 227, which the High Court failed to keep in mind, it must be held that in the facts and circumstances of the case and the findings recorded by the Additional Rent Controller as well as the Administrative Tribunal, High Court was not justified in interfering with the concurrent orders of eviction based on the ground of sub- letting in exercise of its power under Article 227 of the Constitution of India."
19) Mode and manner of partition among buildings cannot be questioned by a tenant. Likewise, the status of ownership is not open to be challenged by a tenant. Findings of two authorities below on issue of ownership and landlordship is a question of fact and cannot be agitated again in writ petition. Partition deed not require to be registered. It is still admissible in evidence. Under Article 227 of the Constitution of India, the court cannot re-appreciate the evidence or cannot correct the error like a court of appeal. The High Court should not interfere simply because it feels persuaded to take a different view on the matter on record. Need of nephew who was brought up like son is also included in the need of the landlord [Mohammad Ali vs IX ADJ, Allahabad; 2005 (2) ARC 363]. Release application is maintainable on the ground that the landlady is not having any son. Sister's son was held to be like her foster son. She would be benefitted out of the income from the business to be carried out in the shop by such son. [Ram Devi (Smt.) vs VII ADJ, Jhansi; 2004 (1) ARC 341].
20) The expression 'for occupation by himself' does not mean that the landlord should live in isolation. If the State of health of a landlord or his age is such that he cannot live alone and would need the company or assistance of any other person, then the need of such other person whose assistance, he needs, would also be covered by this phrase. Similarly, if the landlord is invalid, an accommodation required for a helper 15 may also be considered as a need of the landlord.... A distinction has, therefore, to be maintained between two classes of cases where a landlord does not need an assistance of a man but still he wants to keep some one with him, in such a case the need for occupation would not be that of the landlord but of that other person. [Smt. Kanti Devi and others vs I Addl. District Judge, Bahraich, 1998 (1) ARC 289].
21) While interpreting the expression "for occupation by himself" used in clause (a) of sub-section (1) of Section 21 of the Act, it has been held that the said phrase cannot be constructed narrowly to mean that the landlord should live in isolation or by himself only; in other words, the said expression, within its ambit, includes the personal requirement of a landlord. It may include landlord's servant, some other person or person or persons to look after him and take care and whose company and assistance was or had become necessary though technically they might not be members of his family, as defined in the Act. Therefore, need of such other whose assistance was required to the landlord is to be considered the own need of the landlord. [Gurvinder Kaur vs VIII Addl. District Judge, Kanpur; 2001 (2) ARC 409]
22) Learned Appellate Authority while deciding rent control appeal, has affirmed the findings recorded by learned Prescribed Authority. Appellate Authority has found that the landlord (landlady) has bona fide need. Comparative hardship is also in her favour. The Court need not reproduce those reasons again for the sake of brevity and also because the reasons assigned by the Appellate Authority are part of the record.
1623) Thus there are concurrent findings of two authorities below. Both the Prescribed Authority as well as Appellate Authority have given cogent reasons in support of findings arrived at by them.
24) The Court does not find any perversity in the decisions of two authorities below.
25) No interference is called for in the concurrent findings of two authorities below.
26) Writ petition, therefore, fails and is dismissed.
(U.C. Dhyani, J.) Dt. December 18, 2017.
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