Rajasthan High Court - Jodhpur
Kanhaiya Lal Jogi vs State Of Rajasthan on 26 September, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 13226/2018
Kanhaiya Lal Jogi S/o Shri Brij Mohan Lal Jogi, Aged About 50
Years, Post Bhadoti, Tehsil Malarana Dungar, District Sawai
Madhopur (Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Food Civil
Supplies And Consumer Affairs Department, Government
Of Rajasthan, Secretariat, Jaipur
2. The State Consumer Disputes Redressal Commission
Rajasthan, Through Its Registrar, Government Of
Rajasthan, Handloom Haveli, Ashok Marg, C-Scheme,
Jaipur
3. The Selection Committee, Through Its Chairman
(President Of State Commission) Address Handloom
Haveli, Ashok Marg C-Scheme, Jaipur
4. The Principal Secretary, Law Department Government Of
Rajasthan, Secretariat, Jaipur
----Respondents
Connected With
S.B. Civil Writ No. 12869/2018
Deen Dayal Prajapat S/o Late Shri Jodha Ram, Aged About 44
Years, By Caste Prajapat (Kulmhar), Opposite To Sainik Rest
House, Dharm Nagar, Barmer At Present Resident Of D-10,
Shivaji Nagar, Jalore.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Food Civil
Supplies And Consumer Affairs Department,
Government Of Rajasthan, Secretariat, Jaipur
2. The State Consumer Disputes Redressal Commission
Rajasthan, Through Its Registrar, Government Of
Rajasthan, Handloom Haveli, Ashok Marg, C-Scheme,
Jaipur
3. The Selection Committee, Through Its Chairman
(President Of State Commission) Address Handloom
Haveli, Ashok Marg C-Scheme, Jaipur
4. The Principal Secretary, Law Department Government Of
Rajasthan, Secretariat, Jaipur
----Respondents
(2 of 16) [CW-13226/2018]
For Petitioner(s) : Mr. Pankaj Sharma.
Dr. Nikhil Dungawat.
For Respondent(s) : Mr. S.S.Ladrecha, AAG.
HON'BLE MR. JUSTICE ARUN BHANSALI
REPORTABLE Order
26/09/2018
These writ petitions have been filed by the petitioners inter alia seeking a direction for quashing the advertisement dated 13/6/2018, allow the petitioners to participate in the process of appointment on the post of President on the vacant seats of District Consumer Forums and consider the candidature of the petitioners for appointment on the said post in accordance with law.
While the petitioner Kanhaiya Lal Jogi is the President of District Consumer Forum, Doongarpur, petitioner Deen Dayal Prajapat is a President of District Consumer Forum, Jalore, where they were appointed in the year 2013.
The respondent State issued an advertisement dated 13/6/2018 calling for applications from eligible candidates for the post of President on various vacant positions/positions to be vacated by 31/12/2018. The advertisement included the post of President for District Consumer Forum Doongarpur and Jalore also. The eligibility inter alia was indicated in terms of Section 10(1)(a) of the Consumer Protection Act, 1986 ('the Act, 1986').
Pursuant to the advertisement dated 13/6/2018, both the petitioners filled-in applications along with relevant documents, however, in the list published by the respondents for interview for the posts of President for various District Consumer Forums, (3 of 16) [CW-13226/2018] names of the petitioners were not included. Whereafter, on 21/8/2018 a revised notice was issued, whereby, dates of interview were preponed. The petitioners made representations for inclusion of their names for consideration for the post of President by way of re-appointment, however, when the same was not responded to, the petitioners filed the present writ petitions questioning the non-inclusion of their names for re-appointment to the post of President of District Consumer Forum.
By interim order passed by this Court in both the writ petitions, the respondents were directed to consider the candidature of petitioners for re-appointment as per Section 10(2) of the Act, 1986 for the post of President of District Consumer Forum.
It is submitted by learned counsel for the petitioners, with reference to proviso to Section 10(2) of the Act, 1986 that the petitioners are eligible for re-appointment and, therefore, action of the respondents in excluding the names of petitioners from the list of candidates called for interview is absolutely illegal and the said action deserves to be quashed and set aside.
Submissions were made that definition of 'Member' under Section 2 (jj) of the Act, 1986 includes the 'President' of the National Commission or a State Commission or a District Forum, as the case may be and as proviso to Section 10(2) of the Act, 1986 provides that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, the petitioners having not completed 65 years of age are eligible for re-appointment and as such the action of the respondents cannot be sustained.
(4 of 16) [CW-13226/2018] Submissions were made that the Government of National Capital Territory of Delhi also called for applications and specifically provided in the eligibility criteria for the post of President, District Forum that President having good track record shall be eligible for re-appointment for another term of five years or up to the age of 65 years, whichever is earlier, which clearly establishes that the President of the District Forums are also eligible for re-appointment.
Further submission has been made in the rejoinder that the stand taken by the respondents pertaining to ineligibility of the President of the District Forum for re-appointment is factually wrong and have given reference of re-appointment of Mr. Rao Usman Ali and Mr. Mohan Lal Tailor in the past, who were President and were re-appointed as they had not completed 65 years of age at the time of re-appointment.
Submissions have also been made that the stand of the State Government regarding ineligibility based on the fact that the Certificate of Practice ('Sanad') of the petitioners remained suspended for the period of five years, when they were functioning as President of the District Forum and, therefore, they were not eligible under Section 10(1) (a) of the Act, 1986 is also baseless and the said submission cannot be supported on any ground.
It was prayed that the writ petitions be allowed and the action of the respondents in denying the petitioners to participate in the selection process be quashed and set aside and as the petitioners have already been ordered by way of interim order to be interviewed, their results may be ordered to be declared.
(5 of 16) [CW-13226/2018] Reliance was placed on the judgment of Bombay High Court in Shri Pandharpatte Chandrakant Bandu vs. State of Maharashtra & Ors. : Writ Petition No. 11716/2012 decided on 8/6/2015, M/s. Krishna Traders vs. R.G.Khedkar & Ors. : AIR 1996 Bombay 83 and Atulya Kumar Pujari vs. State of Orissa & Ors. : AIR 2009 Orissa 171.
Learned counsel appearing for the State vehemently opposed the submissions made by learned counsel for the petitioners. It is submitted that proviso to Section 10(2) of the Act, 1986 only pertains to re-appointment of 'member' and the same has no application to re-appointment of President of the District Forum. It is submitted that as the proviso specifically seeks fulfillment of 'qualification and other conditions for appointment mentioned in clause (b) of sub-section (1)' which pertains to a member only, the same cannot be applied to a President and, therefore, the entire argument sought to be advanced cannot be countenanced.
Further submissions have been made that as the petitioners are not Advocate as per Rule 33 of the Rajasthan Judicial Service Rules, 2010, they are ineligible for the post of District Judge and, therefore, also they are not eligible for appointment on the post of President of the District Forum. Submissions have also been made based on the language of the advertisement itself so as to contend that the advertisement did not envisages application for re- appointment and as such the petitioners are not entitled to seek appointment.
Reliance has been placed on judgment of Punjab & Haryana High court in Gurpal Singh Rampura vs. State of Punjab & Ors. :
Civil Writ Petition No. 5478/2006 decided on 1/5/2006, Karnataka High Court in Asha Shetty vs. State of Karnataka : Writ Petition (6 of 16) [CW-13226/2018] No. 6720/2017 decided on 27/8/2017 and Shive Kumar Sharma vs. State of Rajasthan & Ors. : SB Civil Writ Petition No.8682/2017 decided on 29/11/2017 at Jaipur Bench.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The facts are not in dispute that both the petitioners were appointed as President of respective District Consumer Forums in the year 2013 and their tenure of five years is due to expire in 2018 and the respondents, therefore, have issued advertisement calling for applications from the eligible candidates for appointment to the said posts.
The petitioners applied pursuant to the said advertisement seeking re-appointment on the post of President of the District Consumer Forum and in the list published of the eligible candidates for interview, their names did not find place leading to the assumption that their applications have been rejected, the said fact is now established on account of the stand taken by the State.
The principal stand taken by the respondent State pertains to ineligibility of the petitioners for re-appointment on account of absence of any specific provision in the Act in this regard and/or the Act does not envisage such re-appointment and as such the petitioners are ineligible.
The provisions of Section 10 of the Act, 1986 reads as under:
"10. Composition of the District Forum. -- (1) Each District Forum shall consist of,-
(a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President;
(b) two other members, one of whom shall be a woman, who shall have the following qualifications, namely:--
(i) be not less than thirty-five years of age,
(7 of 16) [CW-13226/2018]
(ii) possess a bachelor's degree from a recognised university,
(iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:
Provided that a person shall be disqualified for appointment as a member if he--
(a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the state Government, involves moral turpitude; or
(b) is an undischarged insolvent; or
(c) is of unsound mind and stands so declared by a competent court; or
(d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or
(e) has, in the opinion of the state Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or
(f) has such other disqualifications as may be prescribed by the State Government;
(1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:--
(i) President of the State Commission - Chairman.
(ii) Secretary, Law Department of the State - Member.
(iii) Secretary, incharge of the Department dealing with consumer affairs in the State - Member.
Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.
(2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier:
Provided that a member shall be eligible for re- appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee:
Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned:
Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such (8 of 16) [CW-13226/2018] office as President or member, as the case may be, till the completion of his term.
(3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government:
Provided that the appointment of a member on whole- time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum."
The provisions of Section have undergone major revamp w.e.f. 18/6/1993 on account of amendments made in 1993 and w.e.f. 15/3/2003 on account of amendments made in the year 2003.
Prior to 2003, sub-section (2) of the Act provided that every member of the District Consumer Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier and shall not be eligible for re-appointment.
In the amendment made in the year 2003 in sub-section (2), instead of barring provision for re-appointment of members, provided for eligibility for re-appointment of member for another term of five years or up to the age of 65 years. The proviso further specifically qualified the said provision for re-appointment with the words "subject to the condition that he fulfils the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1)..."
A perusal of clause (b) of sub-section (1) would reveal that the same pertains to the qualifications and other conditions for appointment of members other than the President regarding whom the qualifications are indicated in clause (a) of sub-section (1). As the proviso provides for re-appointment of member fulfilling the qualifications and other conditions for appointment as mentioned in clause (b) of sub-section (1) which pertains to (9 of 16) [CW-13226/2018] member other than President of the District Consumer Forum, apparently, the said proviso providing for re-appointment has no application to the post of President of the District Forum and as the Act does not envisage such re-appointment, the claim as made by the petitioners seeking consideration for the post of President apparently has no substance.
So far as the submissions made by learned counsel for the parties with reference to the definition of 'member' is concerned, the definition reads as under:
"(jj) "member" includes the President and a member of the National or a State Commission or a District Forum, as the case may;"
It is true that the definition of member as indicated in Section 2(jj) applies to sub-section (2), second proviso to sub- section (2), sub-section (3) and proviso thereto and would govern the case of a President of the Forum too.
However, it is well settled that where the context makes the definition given in the interpretation clause non-applicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause as all definitions given in interpretation clause are normally enacted subject to the qualifications "unless there is anything repugnant in the subject or context" or "unless the context otherwise requires" (see Principles of Statutory Interpretation by Justice G.P.Singh, 14th Edn. Page 211).
As already noticed hereinbefore, once the first proviso to sub-section (2) of Section 10 requires fulfillment of qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1), which indicates the qualifications for appointment (10 of 16) [CW-13226/2018] as members other than President, the application of definition as given in Section 2 (jj) of the Act i.e. member includes the President would make it inapplicable and otiose and, therefore, it can safely be said that the definition is not applicable to the said provision because of the contrary context as reflected from the plain language of the first proviso to sub-section (2).
In view thereof, the submissions made based on the definition of 'member' cannot be sustained.
The provisions of Sections 16 and 20 of the Act, 1986 which deal with composition of State Commission and National Commission specifically provides for re-appointment of the President of the State Commission and the National Commission subject to fulfillment of the age criteria and, therefore, the exclusion of similar provision in Section 10 of the Act, 1986 is not without significance.
Submission made by learned counsel for the petitioners that specific provision was required to be incorporated in Sections 16 and 20 of the Act, 1986 on account of different modes of selection to the post of 'member' and 'President' of the State Commission and National Commission, also does not help the cause of the petitioners inasmuch as the same alone cannot be assumed as a reason inasmuch as both the provisions indicate that "President shall also be eligible for re-appointment", which clearly indicates that besides member, a President of the State Commission and National Commission would be entitled for re-appointment.
The additional submission made by learned counsel for the respondents based on Consumer Protection (Amendment) Bill, 2011, which was introduced in the Lok Sabha but lapsed, though (11 of 16) [CW-13226/2018] not conclusive but is a strong indication regarding obvious absence of a provision and necessity of its inclusion in the Act for re-appointment of a President of the District Forum, as in the said Bill of 2011 in the proposed amendment the insertion providing for eligibility of President for re-appointment was also indicated and as such in absence of a specific provision providing for re- appointment of the President of the District Forum it cannot be said that the petitioners are eligible.
When a similar aspect came up for consideration before the Punjab & Haryana High Court in the case of Gurpal Singh Rampura (supra), the Division Bench headed by Hon'ble Justice J.S.Khehar (as His Lordship then was), laid down that Section 10(2) of the Act, 1986 does not envisage re-appointment against the office/post of President of the District Consumer Forum. It was inter alia observed as under:
"10. (a) We shall first of all attempt to interpret Section 10 of the Consumer Act, on the issue raised in the instant case. What needs to be examined is, whether clause (a) of sub section (1) of Section 10 of the Consumer Act, lays down the qualifications for the office/post of President of each District Consumer Forum. And whether, clause (b) of sub section (1) of Section 10 of the Consumer Act, lays down the qualifications of two other members (besides the President) of each District Consumer Forum.
(b) Clause (a) of sub section (1) of Section 16 of the Consumer Act, lays down the qualifications of the office/post of the President of each State Consumer Commission, whereas, clause (b) of sub section (1) of Section 16 of the Consumer Act, lays down qualifications of two other members of each State Consumer Commission. This is clear from a reading of the first two provisos under sub section (3) of Section 16 of the Consumer Act, whereby Parliament has expressly and separately provided for re-appointment to the office/post of "members" and President" of the State Consumer Commission. The first proviso under sub-section (3) of Section 16 of the Consumer Act, entails, that a person earlier appointed as a "member" of the State Consumer Commission, would be eligible for re- appointment, subject to the condition, that he fulfills the qualifications and the other conditions mentioned in clause (b) of sub section (1) (12 of 16) [CW-13226/2018] of Section 16 of the Consumer Act. Whereas, the second proviso under sub section (3) of Section 16 of the Consumer Act, entails, that a person, who has earlier been "President" of a State Consumer Commission, shall be eligible for re-appointment subject to the condition, that he fulfills the qualifications and the other conditions of eligibility stipulated under clause (a) of sub section (1) of Section 16 of the Consumer Act.
(c) A similar conclusion emerges from the examination of clause (a) of sub section (1) of Section 20 of the Consumer Act, which lays down the qualifications for appointment to the office/post of the President of the National Consumer Commission, and clause (b) of sub section (1) of Section 20 of the Consumer Act, lays down the qualifications of the other members (being not less than four) of the National Consumer Commission.
This clearly emerges from the first two provisos under sub section (3) of Section 20 of the Consumer Act, whereby Parliament has expressly and separately provided for re- appointment to the office/post of "members" and "President" of the National Consumer Commission. The first proviso under sub section (3) of Section 20 of the Consumer Act, entails, that a person earlier appointed as a "member" of the National Consumer Commission, would be eligible for re-appointment, subject to the condition, that he fulfills the qualifications and the other conditions mentioned in clause (b) of sub section (1) of Section 20 of the Consumer Act. Whereas, for re-appointment as "President" of the National Consumer Commission, the second proviso under sub section (3) of Section 20, entails, that a person, who has earlier been "President" of the National Consumer Commission, shall be eligible for re-appointment, subject to the condition, that he fulfills the qualifications and the other conditions of eligibility stipulated under clause (a) of sub section (1) of Section 20 of the Consumer Act.
(d) Following the same sequence, which the law framers followed while enacting Sections 16 and 20 of the Consumer Act, it is natural, rather inevitable, to conclude, that clause (a) of sub section (1) of Section 10 of the Consumer Act, lays down the qualifications and eligibility for appointment to the office/post of the President of the District Consumer Forum, and clause (b) of sub section (1) of Section 10 of the Consumer Act, lays down the qualifications for appointment against the office/post of the "member" of the District Consumer Forum.
(e) It is in the background of the aforesaid conclusions, that one must examine the exact purport and interpretation of the proviso under sub section (2) of Section 10 of the Consumer Act. Since the instant proviso refers to re-appointment only for those who fulfill the qualifications mentioned under clause (b) of sub section (1) of Section 10 of the Consumer Act, it is necessary to conclude, that the instant appointment pertains to only the "members" of the District Consumer Forums, because clause (b) of section (1) of Section 10 of the Consumer Act, lays down the qualifications and other conditions of (13 of 16) [CW-13226/2018] eligibility only for "members" of the District Consumer Forums.
(f) In the aforesaid view of the matter, it must be held, that re-appointment is permissible only against the office/post of the "members" of the District Consumer Forums, and not, for the office/post of "Presidents" of the District Consumer Forums.
11. (a) The amendments to Sections 10, 16 and 20 of the Consumer Act, on the issue of re-appointment, were made at one and the same time i.e. by the Consumer Protection (Amendment) Act, 2002 (hereinafter referred to as the Amendment Act), which came into force w.e.f. 15.3.2003 (vide GSR 270(E) dated 10.3.2003). The Amendment Act only added one proviso on the issue of re-appointment under Section 10(2) of the Consumer Act, whereas, the Amendment Act added two provisos on the issue of re- appointment under Section 16(3) of the Consumer Act i.e. a separate proviso for re-appointment of "members" of the State Consumer Commissions, and a separate proviso for re-appointment of "President" of the State Consumer Commissions. Likewise, two separate provisos have been added under Section 20 (3) of the Consumer Act, on the issue of re-appointment i.e. a separate proviso for re- appointment of "members" of the National Consumer Commission, and a separate proviso for re-appointment of "President" of the National Consumer Commission.
(b) Since separate provisos have been incorporated for re- appointment of the "Presidents" and "members" of the State Consumer Commissions, and the National Consumer Commission, whereas only one proviso has been incorporated under Section 10(2) of the Consumer Act, in so far as the District Consumer Forums are concerned, it seems clear, that the legislative intent, while amending Sections 10, 16 and 20 of the Consumer Act, was separate and distinct, namely, the Parliament desire to provide for re-appointment of both, "members" and the "Presidents" of the State Consumer Commissions and the National Consumer Commission, by making separate provisions for their re-appointment through two separate provisos under Sections 16(3) and 20(3) of the Consumer Act, respectively, whereas, provision was only made through one proviso under Section 10(2) of the Consumer Act, for re-appointment of "members" of the District Consumer Forum. Therefore, on a cumulative interpretation and analysis of Sections 10, 16 and 20 of the Consumer Act, we are of the view, that Section 10(2) of the Consumer Act, does not envisage re-appointment against the office/post of "President" of the District Consumer Forums."
The above judgment has been followed by Madras High Court in P.Subburaj vs. The Chief Secretary : Writ Petition (14 of 16) [CW-13226/2018] No.3503/2015 decided on 2/2/2016 and by Karnataka High Court in the case of Asha Shetty (supra).
So far as the judgment in the case of Shri Pandharpatte Chandrakant Bandu (supra) is concerned, the Bombay High Court though noticed the contention of the respondents pertaining to the qualification and condition as required by proviso to sub-section (2) of Section 10, inter alia observed as under:
"The first proviso added by Act No.62 of 2002 makes it clear that a member shall be eligible for re-appointment for another term of five years or up to the date of sixty- five years, whichever is earlier, subject to the condition that he fulfills the qualifications and conditions for appointment mentioned in Clause (b) of Sub-section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee. The object of Amendment as quoted above is to provide that the members and the President should be eligible for re- appointment for an another term. As stated earlier, Sub- Section (2) is applicable not only to members but also to the President of a District Forum. Therefore, the said proviso is applicable to every member including the President."
After making the above observations, the Court reached to the following conclusion:
"There is no ambiguity about the proviso to Sub- Section (2) of Section 10. A President of a District Forum being a member of the District Forum is eligible to seek re-appointment for another term of five years."
A perusal of the reasons indicated by the Bombay High Court would reveal that though the express language of the proviso to Section 10(2) of the Act requiring the condition and qualification of a member under Section 10 (1) (b) of the Act has been noticed, workability of the said proviso based on the said requirement for a President has nowhere been discussed and merely based on the definition of 'member', which includes President, a conclusion has (15 of 16) [CW-13226/2018] been arrived at that a President would also be eligible for re- appointment.
The judgments in the case of M/s. Krishna Traders (supra), Atulya Kumar Pujari (supra) cited by learned counsel for the petitioners have no application to the facts of the present cases.
For the conclusions arrived at by this Court hereinbefore, pertaining to the interpretation of proviso to sub-section (2) of Section 10, this Court is in respectful agreement with the interpretation placed by Punjab & Haryana High Court as followed by Madras and Karnataka High Courts and is not persuaded to follow the judgment of Bombay High Court on the issue.
The fact that the Govt. of National Capital Territory of Delhi has asked for applications for re-appointment of President by itself cannot be sufficient to accept the submissions of the petitioners. Further, even if in the distant past on two occasions the respondent State had granted re-appointment to two Presidents as claimed by the petitioners in the rejoinder, the same cannot create estopple against the State, as such, the said submission also has no substance.
So far as the submissions made by learned counsel for the respondents pertaining to ineligibility of the petitioners on account of suspension of 'Sanad' during the period they remained President of the District Forum, in view of what has been laid down hereinbefore regarding the ineligibility of the petitioners for seeking re-appointment on the post of President of the District Forum, the said issue does not require any determination by this Court.
(16 of 16) [CW-13226/2018] In view of the above discussion, it is apparent that on a plain reading of proviso to sub-section (2) of Section 10 of the Act, 1986, a President of the District Forum is not eligible for re- appointment and, therefore, the writ petitions filed by the petitioners have no substance. Consequently, the same are dismissed.
No order as to costs.
(ARUN BHANSALI),J baweja/-
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