Delhi District Court
Sanjeev Kumar Dhandoriya vs South Delhi Municipal Corporation on 9 May, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT &
SESSIONS JUDGE (SOUTH), SAKET: NEW DELHI
PPA No. : 01/2012
ID No.: 02406C0014292012
Sanjeev Kumar Dhandoriya
Stall No. 7, Lodhi Road ComplexII,
New Delhi. ... Appellant
Versus
1. South Delhi Municipal Corporation
through its Commissioner,
Civic Centre, Minto Road,
New Delhi 110002
2. Estate Officer,
South Delhi Municipal Corporation,
Civic Centre, Minto Road,
New Delhi 110002 ... Respondents
Instituted on: 21.01.2012
Judgment reserved on: 09.05.2013
Judgment pronounced on: 09.05.2013.
J U D G M E N T
1. This appeal under Section 9 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the Public Premises Act") was preferred on 19.01.2012, challenging the PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 1 of 22 legality, correctness and propriety of order dated 04.11.2011, passed by Mr. P.K. Rastogi, Estate Officer of erstwhile Municipal Corporation of Delhi (MCD). The appeal, as originally presented, impleaded MCD as respondent no.1. On account of trifurcation of MCD during the pendency of the appeal, the array of parties has undergone change and South Delhi Municipal Corporation (SDMC) has since been substituted as respondent no.1 in place of MCD.
2. The proceedings relate to shop/stall no. 7, Lodhi Road Complex, CentreII Market, New Delhi (hereinafter referred to as "the public premises"). Vide the impugned order, the respondent no.2 Estate Officer had disposed of two matters registered as PPA No. 1273 of 2009 and 1278 of 2009, with the result of an eviction order being passed against the appellant in respect of the public premises.
3. It has been shown from record that the appellant had initially filed a review application on 08.11.2011 before the same authority but claims to have been informed on 16.01.2012 that the review application would not be considered. The appeal having been preferred beyond the period of limitation is accompanied by an application for condonation of delay on the said account.
4. On notice, respondents appeared and sought to contest the appeal and the application for condonation of delay.
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5. I have heard Sh. Shiv Kumar Goyal, advocate for the appellant and Sh. Rajeev Bhardwaj, advocate for respondents. I have gone through the record.
6. Having heard both sides at length and having regard to the facts and circumstances of the case, wherein the controversy had its genesis some time in 1997, with the appellant having been constrained to take the matter to Hon'ble High Court in writ jurisdiction and admittedly having paid over the period, an amount of Rs.2,84,279/, (last amount paid on 18.03.2004), the delay is condoned and the appeal is entertained on merits.
7. It is necessary at this stage to take note, briefly, of the background facts.
8. The market of which the public premises is a part was developed by Directorate of Estates in the Government of India. It appears the stalls developed in the said market were put up for auction and, amongst others, the bid submitted by the appellant was accepted. This resulted in allotment of the public premises in his favour by way of letter dated 15.05.1997, issued by Directorate of Estates in Government of India on licence fee basis, payable monthly, initially at Rs. 4100/, besides other deposits including on account of security etc. PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 3 of 22
9. It is admitted by the counsel for the appellant that in terms of the licence deed that was executed eventually, the licence fee was subject to enhancement by 15% after the elapse of each set of three years. It is further admitted on both sides that the liability to pay licence fee began with effect from 01.06.1997 and, thus, the first enhancements in the licence fee was due with effect from 01.06.2000,which would be followed by similar enhancements with effect from 01.06.2003, 01.06.2006, 01.06.2009 and lastly on 01.06.2012.
10.It appears that the allottees of the shops in the said market felt aggrieved on account of absence of basic necessities like electricity, water etc. This, according to them, resulted in they not being able to enjoy the accommodation which they had taken on licence. It appears that some of the said allottees led by one Vishnu Dev Bhagat preferred Writ Petition (Civil) No. 2175/99, (hereinafter referred to as "the Writ Petition of Vishnu Dev Bhagat"). This was followed by some other writ petitions by certain other allottees. In the said writ petitions, particularly, the writ petition of Vishnu Dev Bhagat (supra), some interim protection was granted vide order dated 01.11.2000, in terms of which they PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 4 of 22 were required to pay 50% of arrears of licence fee for the initial period during which basic facilities had remained absent.
11.The appellant herein was also similarly aggrieved by lack of basic amenities and failed to pay the licence fee for the initial period. This resulted in a show cause notice being issued by the Estate Officer of the Government of India on 31.07.2001 calling him upon as to why an order requiring him to pay arrears for the period 01.08.1997 to 31.05.2000 calculated at Rs.2,18,001/ be not passed against him. It may be mentioned here that this show cause notice under Section 7(3) of Public Premises Act would eventually be treated as case no. 1273 of 2009, also disposed of through the impugned order.
12.Since the appellant did not make the payments, the Directorate of Estate issued a communication of 08.07.2002 determining the licence in respect of the public premises with effect from 01.11.2002, requiring the possession to be handed over to the representative of the Government.
13.Feeling aggrieved with the above mentioned order determining the licence deed, the appellant preferred Writ Petition (Civil) No. 6779/2002 (hereinafter referred to as "the Writ Petition of the appellant") before Hon'ble High Court. In the course of hearing on the said writ petition of the appellant, he placed reliance on the PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 5 of 22 interim protection granted in favour of Vishnu Dev Bhagat and others (supra). Hon'ble High Court vide interim order dated 25.10.2002 directed the appellant to pay 50% of the arrears of licence fee from May, 1997 to June, 2000 and arrears for the period July, 2000 onwards at the admitted rate (admittedly, the same rate as applicable in terms of licence deed) within 12 weeks of the said order and upon compliance with the said conditions, directed the Government of India not to cancel/determine the licence deed pursuant to the notice dated 08.07.2002 and to maintain statusquo with regard to the possession. It may be mentioned here that the appellant was also directed to continue to pay the licence fee in future at the prevailing rate on or before 10th of each month.
14.The writ petition of Vishnu Dev Bhagat (supra) came to be decided by Hon'ble High Court vide judgment dated 20.12.2001. It appears from the copy of the said order that except for petitioners no. 2, 5 and 20 of the said case, all other petitioners had failed to comply with the conditions of the interim order and, therefore, were held not entitled to any relief or avail the benefit thereunder. Thus, the said writ petition was allowed in favour of the petitioners no. 2, 5 and 20 of the said case with directions that since they had complied with the directions about payment of 50% of the licence PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 6 of 22 fee upto the end of February, 2000 with 12 % per annum, licence in their respective favour were to be restored within 4 weeks, without payment of any restoration fee, subject to verification of payment of licence fee.
15.The appellant has himself filed (at Page73 of the paper book) the calculation sheet authenticated by the Accountant of Market Account's section indicating, interalia, that he had paid amounts to the tune of Rs. 2,84,279/ upto 18.03.2001. But then, the copy of final order dated 29.07.2004 in the writ petition filed by the appellant (at pages 6668) indicates that it was conceded before Hon'ble High Court that the appellant had already paid 50% of the "past amount" in terms of the interim directions and that it was submitted before the Hon'ble Court that the appellant was in arrears of a part of the current licence fee charges. The Hon'ble High Court took note of the judgment rendered on 20.12.2002 in the case of Vishnu Dev Bhagat (supra) and observed that the case of the appellant was fully covered by the view taken in that case. Thus, the writ petition of the appellant was disposed of with directions that the licence of the appellant would be liable to be restored on the same terms subject to the appellant paying arrears of the current charges within a period of one month from the date of PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 7 of 22 the order, along with simple interest at the rate of 12 % per annum from the due date till the date of payment.
16.The appellant admittedly did not make any payment immediately not at least within the period of one month granted by Hon'ble High Court vide judgment dated 29.07.2004. His version is that he had been running from pillar to post, making rounds of the offices of the Directorate of Estate but no one was willing to inform him as to the exact amount which he was liable to pay/deposit.
17.During the hearing, it has been submitted on behalf of the respondents that no licence fee was paid, that there was no bill as such required to be issued, and that having obtained the order to above effect from Hon'ble High Court, it was the responsibility of the appellant himself to calculate the liability and pay the same, at least to the extent he was admitting the amount to be due. In reply, the counsel for the appellant has drawn my attention to the communication dated 09.12.2002, (at page 50 of the paper book), wherein the Deputy Director of Estate had informed the appellant the calculation of the amount due on his behalf in terms of the interim order dated 25.10.2012. I agree with the submission of the counsel for the appellant that this communication would at least show that there was a practice of the amount due to be PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 8 of 22 communicated. After all, the department concerned also had a responsibility to keep the accounts and realise the government dues well in time.
18.Be that as it may, the appellant has shown on record further requests in writing submitted by him, they bearing dates 27.08.2004, 15.12.2004 and 09.02.2005, requesting for communication about the amount due in terms of the order dated 29.07.2004 of Hon'ble High Court. It is clear from the material on record that the response came in answer to the letter dated 15.12.2004 by way of communication dated 11.02.2005 (copy at page no. 72 of paper book) indicating the liability calculated for and upto 31.12.2004 to be Rs. 2,93,902/, computed at Rs. 7073/ per month with effect from 01.11.2002.
19.From the submissions on both sides, it appears that the Directorate of Estate was treating the nonpayment of the licence fee within one month of the order dated 29.07.2004 as breach of the terms on which licence had been allowed to be restored. This is the reason apparently why that instead of liability being calculated in terms of the licence fee chargeable (as enhanced periodically) under the licence, "damages" had been demanded with effect from 01.11.2002 at Rs. 7073/ per month. Apparently, the appellant was not ready to PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 9 of 22 pay dues at such calculations and kept on making representations but with no relief coming his way.
20.Against the above backdrop, treating the appellant to be in unauthorised occupation on account of cancellation of the licence deed vide communication dated 08.07.2002, proceedings for his eviction were initiated and, for this, the matter was referred to the Estate Officer. The Estate Officer in the Directorate of Estates issued a show cause notice under Section 4(1)(2) of Public Premises Act on 23.02.2006 calling upon the appellant to submit a reply and produce documents in its support on 20.03.2006. A copy of the said show cause notice under Section 4 has been submitted (at page 78 of the paper book) and indicates that the licence cancellation was described as relatable to communication dated 15.05.1997. Apparently this was erroneous as 15.05.1997 is the date of allotment letter whereas the communication of the cancellation of the licence deed was issued on 08.07.2002, to which there was no reference in the show cause notice.
21.Be that as it may, the show cause notice under Section 4 of Public Premises Act for eviction was eventually treated as PPA No. 1278 of 2009, also decided vide order dated 04.11.2011, impugned through the appeal at hand.
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22.Pursuant to the directions of this court, the copies of the record of the Estate Officer have been submitted for perusal . It consists of three files which include one each of PPA case no. 1273/2009 and PPA case no. 1278/2009, the third folder being of the review application submitted on 01.12.2011.
23.The files of the two cases under the Public Premises Act, one arising out of the show cause notice under Section 7(1), and the other under Section 4(1) of Public Premises Act, together show that they were initiated originally in the Directorate of Estates in the Government of India. The proceedings on the matter arising out of notice under Section 7(3) of Public Premises Act were adjourned sine die by the Estate Officer vide order dated 25.05.2004 with liberty for the same to be reopened after decision on the writ petition by Hon'ble High Court, presumably in the case preferred by the appellant. In the other file pertaining to eviction matter under Section 4/5 of Public Premises Act, the Estate Officer noted on 21.08.2006 that by way of notification dated 24.07.2006, copy of which had been submitted before him by the official representing the Directorate of Estates all cases of market (except INA) had been transferred to Municipal Corporation of Delhi (MCD) or NDMC (New Delhi Municipal Council). On this basis, the proceedings in PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 11 of 22 the said other matter were also adjourned sine die for next date of hearing to be fixed by Estate Officer of MCD/NDMC, as the case may be.
24.It is admitted case on both sides that the market, of which the public premises allotted to the appellant herein is a part, was one of the markets control over which was transferred by the Directorate of Estates, Government of India to MCD vide notification dated 24.07.2006. The said market, thus, now falls under the jurisdiction of SDMC (respondent no.1).
25.The proceedings in the two matters remained in deep freezer since 25.05.2004/21.08.2006, till revived by the Estate Officer of MCD on 06.10.2009 by two identical order sheets. The Estate Officer vide the said separate proceedings in the two connected matters relating to the same public premises decided to issue fresh notices to the appellant for 06.11.2009 for further hearing.
26.The impugned order indicates that in the subsequent proceedings drawn on the two files, the Estate Officer decided eventually on 13.07.2011 that both required to be clubbed together, though he wrongly noted (at page 10 of the impugned order) that both the matters (erroneously referred to as "appeal") were "for the same prayer". No grievance about the effect of the order has been raised, PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 12 of 22 and rightly so, in as much as each matter had a bearing on the other. While the proceedings arising out of the show cause notice under Section 7(3) Public Premises Act gave rise to the need for determining the liability of the appellant towards payment of licence fee ("or damages"), the other matter relating to Section 4/5 of Public Premises Act had its genesis in the cancellation of the licence deed on account of nonpayment of the said dues.
27.The Estate Officer in the impugned order has noted at length as to what transpired on the various effective dates fixed for proceedings before him, mainly summarising the submissions of both sides wherein the department would insist on the dues to be paid or seek adjournment for responding to the stand of the appellant (as noted with reference to proceedings dated 29.10.2009) but no clarity made at any stage as to the amount which was actually due.
28.The Estate Officer has mentioned the clubbing of the proceedings in the two matters in terms of order dated 13.07.2011. He proceeded to pass eviction order on the ground the appellant had been "procrastinating" the case by failing to make the payment of outstanding dues. He, however, did not reach any definite findings in the context of notice under Section 7(3) of Public Premises Act.
29.In the course of hearing, it has been submitted by Sh. Rajeev PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 13 of 22 Bhardwaj, advocate for the respondents, that the appellant had failed to comply with the directions given vide order dated 25.10.2002 passed in Writ Petition (Civil) no. 6679/2002 (of the appellant) and also that the order dated 29.07.2004 whereby the said petition was finally disposed of. He submitted that, in this view, the appellant does not deserve any relief.
30.In my considered view, the submission about the noncompliance with the interim order dated 25.10.2002 cannot be entertained in the teeth of what came to be recorded in the presence of the counsel for the respondent at the time of final disposal of the writ petition (of the appellant) on 29.07.2004 confirming that the dues payable earlier at the reduced rate of 50% had already been "paid". The submissions about noncompliance strictly in terms of the final order dated 29.07.2004 cannot be accepted for the simple reason the Directorate of Estates, Government of India (then licencer) was also guilty of having become incommunicado, not responding to repeated requests of the appellant for the exact amount to be intimated. The fact that the Directorate of Estate vide order dated 11.02.2005 demanded payment of outstanding dues calculating it at Rs. 7031/ with effect from 01.11.2002 adds to the reason why even the calculation of the allotting authority was improper and, PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 14 of 22 therefore, unjust and unfair.
31.In the above facts and circumstances, while the appellant has indeed not been regular in payment of dues, the conduct of the respondents (or their predecessorininterest) is also something not to be very proud of.
32.Be that as it may, given the above facts and circumstances, the proceedings arising out of firstly the show cause notice under Section 7(3) of Public Premises Act and secondly show cause notice under Section 4(1) of Public Premises Act required a proper inquiry to settle as to how much amount was actually due from and on behalf of the appellant in terms of the interim order dated 25.10.2002 followed by the final order dated 28.07.2004, in which former stood merged, both passed in the writ petition. I find that the Estate Officer has failed to make any inquiry on this score and has mishandled the process while disposing of the said two matters clubbed together through the impugned order.
33. The provisions of Public Premises (Eviction of Unauthorised) Act, 1971 are to be read along with the Public Premises (Eviction of Unauthorised) Rules, 1971 framed thereunder. Though Section 7 of the Act and Rule 8 of the subordinate legislation use the expressions "rent" or "damages", the such proceedings may also relate to PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 15 of 22 "licence fee" payable in respect of public premises given on licence, as is the case at hand. Rule 8 give the guidelines to the Estate Officer as to how such damages (or licence fee) is to be calculated in case the premises has been in unauthorised use. Though given the effect of the final order in the writ petition of the appellant, the status of the appellant cannot be described as that of a person whose licence had been cancelled, the proceedings still could be maintained against him under the Public Premises Act for recovery of licence fee of the public premises. For such purposes, the Estate Officer was required to conduct his proceedings being guided, interalia, by rules framed under the law.
34. It may further be added here that it is the requirement of rules of natural justice, as indeed of the law under the Public Premises Act, that both sides are called upon to adduce evidence and on the basis thereof proper conclusions on question arising are reached. The Estate Officer in the course of proceedings on both the matters did not embark upon any such inquiry. This, by itself, should vitiate the impugned order.
35.Though the impugned order deserves to be set aside in the facts and circumstances and for reasons noted above, it is necessary to put an end to one of the two case (namely the case for eviction under PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 16 of 22 Section 4/5 of Public Premises Act), for reasons set out hereinafter and to regulate the proceedings in the other matter (arising out of notice under Section 7 of Public premises Act) so that this controversy comes to an end without further/unnecessary delay.
36.As noted earlier, the show cause notice under Section 4(1) of Public Premises Act was defective. It referred to the cancellation of the allotment by way of communication dated 15.05.1997. There was no reference to the communication dated 08.07.2002. Even otherwise, in view of the result of the writ petition of the appellant, the communication dated 08.07.2002 had been rendered nugatory and any proceedings taken out on that basis cannot survive.
37.The matter arising out of the show cause notice dated 23.02.2006 for eviction of the appellant from the public premises, therefore, must fail. In the consequence, the impugned order directing the eviction of the appellant from the public premises must be set aside. Ordered accordingly.
38.The Estate Officer having failed to pass any effective order on the basis of proper conclusions/findings on the show cause notice dated 31.07.2001 under Section 7(3) of Public Premises Act, the impugned order directing disposal of the said case in the manner stated therein cannot be upheld and deserves to be set aside. Ordered PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 17 of 22 accordingly.
39.The proceedings arising out of the show cause notice dated 31.07.2001 under Section 7(3) of Public Premises Act have to be taken further to the logical end. As mentioned earlier, for such purposes, the responsibility of the Estate Officer is to give clear findings as to the exact amount payable by the appellant in terms of licence fee for the public premises in question. Given the prolonged period over which this litigation has been pending, it is desirable, as also fairly conceded by both sides through their counsel, that the liability be determined by the Estate Officer till the date on which the Estate Officer passes the final order in the case. This is also essential because the appellant has admittedly not paid any money on this account after 18.03.2004 till date.
40.It is clear from the earlier discussion in this order that the calculation on the basis of which the respaondent department has been demanding the payment is also erroneous. For removal of doubts, therefore, it must be added that the Estate Officer will be obliged to call upon the department to give upto date calculation of the dues payable from inception upto date, strictly in terms of licence deed issued as per allotment letter dated 15.05.1997, of course, adding the effect of enhancement at the interval of each set PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 18 of 22 of three years with such increases computed at the rate of 15% and giving adjustment for the amounts already paid. The Estate Officer will also take into account the effect of the interim order dated 25.10.2002 and the final order dated 29.07.2004 passed by Hon'ble High Court in Writ Petition (Civil) no. 6679/2002 of the appellant respecting his entitlement to the benefit of the reduced rate to the extent of 50% for the period May, 1997 to June, 2002, as indeed to the entitlement of the department to the levy of simple interest at the rate of 12% per annum from the due date, so as to reach a proper figure of the liability of the appellant towards licence fee.
41.On being asked, Sh. Shiv Kumar Goyal submitted a calculation sheet described as "details of tentative arrears due against the appellant" for the period ending with May, 2013 stating that the appellant admits liability to pay Rs. 9,79,808.50ps (Nine lacs, Seventy Nine Thousand, Eight Hundred and Eight and paise fifty only). The said calculation sheet submitted by the counsel has been taken on record and copy supplied to the counsel for the respondents. After hearing both sides, I do agree with the submissions of the counsel for the respondent that the calculations in this sheet submitted by the counsel for the appellant today may not be wholly correct in as much as the liability has been computed PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 19 of 22 with effect from April, 2004, with no reference whatsoever to the responsibility for the earlier period (also with no indication of the amounts actually paid) and additionally for the reasons that interest has not been properly calculated, this demonstrated by the fact that the interest has been calculated as liability arising only at the end of each segment (of three years).
42.In response to the above criticism of his calculations, the counsel for the appellant fairly conceded that the said calculations made by him are only "tentative" and would need to be revisited and finally settled by the accounts department of the respondent. Given the allowance for the errors in his tentative calculation, the counsel for the appellant, after taking telephonic instructions from the appellant, has submitted at bar that the appellant, in order to show his bonafide, is ready and willing to deposit in the office of respondent an amount of Rs. 10,00,000/ (Rs. Ten lacs) "on account" for which, however, he seeks time of two months and liberty of two instalments.
43.In the above facts and circumstances, while the appeal is being allowed and the matter remanded to the Estate Officer, it is directed that the appellant shall deposit, against proper receipt with the respondent, an amount of Rs. 5,00,000/ (Rs. Five lacs) on or before PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 20 of 22 31.05.2013 followed by another similar deposit of Rs. 5,00,000/ (Rs. Five lacs) on or before 28.06.2013. The proof of said deposits shall be submitted before the Estate Officer on the date of hearing now being fixed.
44.After securing compliance with the above directions, the Estate Officer shall embark upon further inquiry into the matter arising out of the notice under Section 7(3) of Public Premises Act and take a decision thereupon expeditiously, not later than three months from the date of hearing now being fixed by this court. After the Estate Officer reaches his final conclusion in the matter, adjustment for the amounts paid, interalia, in terms of the above directions, by the appellant shall be given and in case the appellant is found responsible for any further payment, he shall be given time, not more than one month, for such further payment of the amount due towards licence fee. On the other hand, if the amount already paid by the appellant is found to be in excess, the same shall be adjusted against the future liability towards licence fee. In case of breach of any of these conditions, the respondent shall be entitled to treat the appellant as an unauthorised occupant and take all such action as is permissible in accordance with law.
45.Both parties are directed to appear before the Estate Officer at PPA No. 01/2012 Sanjeev Kumar Dhandoriya Vs S. D. M. C. & anr. Page 21 of 22 02.30 PM on 08.07.2013.
46.The appeal stands disposed of with above observations/directions.
47.A copy each of the judgment be given dasti free of costs to both sides and another copy be sent to Estate Officer through official channel.
48.File of the appeal be consigned to record room.
Announced in open Court today (R.K. GAUBA)
on this 09th day of May, 2013 District & Sessions Judge
(South) Saket/New Delhi
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