HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 3
A.F. R.
Case :- WRIT - C No. - 5959 of 2002
Petitioner :- Hans Kumar
Respondent :- State Of U.P. Meerut & Others
Counsel for Petitioner :- P.K. Mishra,Ashutosh Srivastava
Counsel for Respondent :- C.S.C., B.Malik,Bhupesh Dayal,M. Malik
Hon'ble Krishna Murari,J.
Hon'ble Amar Singh Chauhan,J.
Heard Sri Ashutosh Srivastava, learned counsel for the petitioner, Sri B. Dayal appearing for Meerut Development Authority and Sri Vishnu Pratap, learned Standing Counsel representing the State-respondents.
The dispute relates to land owned by petitioner, which was declared surplus under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (herein after referred to as Act 1976). A writ of mandamus is being claimed by petitioner to command and direct the respondents not to interfere in his peaceful possession over the land in question and not forcibly dispossess him therefrom in the garb of the order dated 31.10.1985 passed by the respondent no. 2, Competent Authority (City), Urban Ceiling, Meerut against the deceased Parmanand, his father after the commencement of The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (herein after referred to Repeal Act, 1999 as the proceedings stand abated..
Facts as set out in the pleadings of the parties, relevant for the purposes of the case, in brief, are as under :
The land in dispute was recorded in the name of the father of petitioner Sri Pamanand. On the basis of statement filed by him under Section 6 of Act, 1976, a draft statement was prepared by the competent authority and a notice under Section 8 (3) dated 08.06.1978 was issued to him proposing to declare an area of 1819.68 Sq. Meter as surplus land. An objection was filed by Parmanand stating that he only had 1/4th share in the said land as such there was no excess land available with him. Parmanand died on 10.01.1984. Petitioner who is his legal heirs and representative appeared in the proceedings and also filed his objection that there was only 1/4th share in the disputed land and the case may be decided along with return filed by the co-sharers. Competent authority vide order dated 31.10.1985 confirmed the draft statement proposing to declare 1819.68 Sq. meter land as surplus and directed to issue notice under Section 9 to the legal heirs of the deceased i.e. the present petitioner. Though the petitioner appeared in the proceedings, filed objection and notice under Section 9 was directed to be issued in the name of the petitioner but the notice dated 08.08.1986 was issued in the name of Parmanand who was already dead. The document is on record as Annexure '6' to the writ petition. Notification under Section 10 (1) of the Act was published on 04.11.1986 and under Section 10 (3) on 28.05.1988. Again publication was made in the name of Parmanand who was already dead. Thereafter, a notice under Section 10 (5) of Act 1976 was issued again in the name of deceased Parmanand. A copy of the notice under section 10 (5) of the Act 1976 is on record as Annexure '7' to the writ petition. A counter affidavit duly sworn by Sri Chaman Singh Nautiyal, Assistant Engineer, Urban Land Ceiling, Meerut dated 12.07.2004 has been filed on behalf of respondents, wherein the aforesaid facts have not been denied. It has further been stated in the counter affidavit that possession of the land declared surplus was taken in pursuance to the notice under Section 10 (5) of Act, 1976 on 31.03.1997 and thereafter transferred to Meerut Development Authority on 29.08.1997. Rejoinder affidavit has been filed by the petitioner specifically denying the allegations made in this regard in the counter affidavit. Respondents along with the counter affidavit filed a report submitted by Revenue Inspector to the Tehsildar, Meerut, wherein it is stated that since the land is not recorded in the name of Parmanand, therefore, it is not possible to take possession. Dakhalnama has also been filed as Annexure CA '2' though it does not specify from whom the possession was taken.
When the matter was heard on 11.03.2008, a Division Bench of this Court passed the following Order :
"Sri A. N. Shukla, learned Standing Counsel prays for and is allowed one month time to file supplementary counter affidavit explaining that when notice under Section 10 (5) of Urban Land Ceiling Act was issued to a dead person Parmanand and how State has taken possession from him. Learned Standing Counsel shall further explain that on 22.12.1993, a report has been submitted by Bhulekh Nirikshak (Annexure '8' to the writ petition = CA '1') that name of Parmanant is not recorded, therefore, it is not possible to take possession. He shall further explain that on the basis of which report, the possession has been taken by the State and same shall be filed before this Court. Learned Standing Counsel shall further explain that from whom the possession has been taken. In the Dakhalnama filed as CA '2' to the counter affidavit, it has not been mentioned that as to from whom possession was taken by the State and the property has been shown to be recorded in the name of Parmanand whereas earlier report filed as Annexure CA '1' states that Parmanand's name is not recorded. The necessary documents shall be filed by the Standing Counsel. In case, the supplementary counter affidavit is not filed within the time allowed aforesaid, the Collector, Meerut and the competent authority under Urban Ceiling Act shall be personally present before this Court on 15.04.2008.
List on 15.04.2008.
Office is directed to hand over a copy of this order to Sri A. N. Shukla, learned Standing Counsel for information and compliance of the order."
Vide aforesaid order, the Court specifically required the State to explain as to when notice under Section 10(5) was issued in the name of a dead person and report was submitted that it is not possible to take possession then how and from whom possession was taken by the State. In compliance of the aforesaid order, a supplementary counter affidavit was filed on behalf of the State. It may be relevant to quote the averments made in paragraphs 5, 6, 7 and 8 the supplementary counter affidavit filed in response to the explanation sought by the Court vide order dated 11.03.2008.
"5. That the proceedings under Section 10 (1) and 10 (3) of the Act were taken in the name of Sri Parmanand himself and the notice of possession under Section 10 (5) of the Act was also issued on 10.12.1993 in the name of Sri Parmanand deceased by mistake."
"6. That in pursuance of the notice under Section 10 (5) of the Act the Tehsildar, Meerut on 22.12.1993 submitted his report to the effect that the name of Parmanand is not recorded in the revenue record in regard to Plot no. 1241/5 and land of Plot no. 1275/1 as the constructions up to foundation level. The plot no. 1241/5 was reported to be recorded in the name of other tenure holders and as such the possession in both the aforesaid members could not be obtained. The copy of the report dated 22.12.1993 submitted by the Tehsildar, Meerut is being filed herewith and marked as Annexure SCA '1' to this affidavit.
"7. That on the basis of the aforesaid report dated 22.12.1993 submitted by Tehsildar, Meerut the then competent authority vide order dated 27.12.1993 directed that the land which has already been vested in the State Government be taken into possession forthwith. The copy of the order dated 27.12.1993 is being filed herewith and marked as Annexure SCA '2' to this affidavit."
"8. That a report dated 11.03.1997/15.03.1997 was issued from the ceiling office referring therein to the report of Tehsildar, Meerut dated 22.12.1993 on which the then competent authority vide order dated 18.03.1997 ordered for issuing Parvana Kabza in pursuance whereof the Tehsildar, Meerut submitted his Dakhalnama which shows the taking over the possession from the tenure holders late Parmanand on 31.03.1997. The copy of the report dated 11.03.1997/15.03.1997 issued by the ceiling office, copy of the order dated 18.03.1997 and copy of the Dakhalnama are being filed herewith and marked as Annexure SCA '3', SCA '4' and SCA '5' to this affidavit."
A perusal of the aforesaid averments go to show that it has been accepted on behalf of State that notice under Section 10 (5) was issued in the name of deceased Parmanand but despite specifically required by the Court, it has not been explained as to how and from whom possession has been taken. What has been simply stated in the supplementary counter affidavit is that on the basis of the report dated 22.12.1993 submitted by Tehsildar to the competent authority, which categorically mentions that name of Parmanand is not recorded in the revenue record and there are constructions of two foundation level as such the possession could not be obtained. Vide order dated 27.12.1993 the competent authority directed that the possession of the land which has already vested in the State be taken forthwith and thereafter a report dated 11.03.1997/15.03.1997 was issued from the Ceiling Office on which referring to the report dated 22.12.1993 the competent authority vide order dated 18.03.1997 ordered for issuing PARVANA KABZA DAKHALNAMA in pursuance whereof the Tehsildar, Meerut submitted DAKHALANA which shows the taking over the possession from the tenure holders late Parmanand on 31.03.1997. Supplementary counter affidavit even fails to demonstrate that in what manner actual physical possession was taken. Rather, it has been admitted therein that possession was taken from late Parmanand on 31.03.1997. How possession was taken from a dead person has not been explained nor as a matter of fact possession could be taken from a dead person.
We have also perused the original record which has been produced by the learned Standing Counsel in pursuance of the order dated 07.05.2008. From a perusal of original record, we find that entire proceedings under Section 8 has been drawn and undertaken against Parmanand who was dead. Notice under Section 10 (5) dated 10.12.1993 was issued in the name of Parmanand though he died on 10.01.1984. There is no endorsement of service of the said notice on any body including the petitioner, who was legal heir and representative of deceased Parmanand. Dakhalnama dated 31.03.1997 records that possession of the surplus land has been taken from Parmanand who was dead by that time. There is no endorsement either of the petitioner or any body in the column meant for endorsement by the who gave possession. Dakhalnama only bears the signature of the person who took over possession.
Specific case of the petitioner is that since actual physical possession of the land declared surplus has not been taken by the State as such the entire proceedings are liable to be abated after enforcement of Repeal Act, 1999. For better appreciation of controversy, the relevant provisions 2, 3 and 4 of the Act 1999 are reproduced herein below :
"2. Repeal of Act 33 of 1976. - The Urban Land (Ceiling and Regulation) Act, 1976 (herein after referred to as the Principal Act) is hereby repealed.
3.Saving. - (1) The repeal of the principal Act shall not affect -
(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorized by the State Government in this behalf or by the competent authority;
(b). the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.
(2) Where -
(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
4.Abatement of legal proceedings. - All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:
Provided that this section shall not apply to the proceedings relating to sections 1, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."
A bare reading of the aforesaid provisions makes it clear that Act 1999 have been affected the vesting of any vacant land under sub-section (3) of Section 10, possession whereof has been taken by the State Government or any person duly authorized by the State Government in that behalf or by the competent authority. The expression 'possession' has been interpreted to mean actual physical possession of the surplus land and not just possession contemplated with the vesting of excess land in terms of section 10(3) of the Act 1999, i. e. dejure possession.
In the case of Babu Chand Vs. State of U. P. and others (2009) 75 ALR - 873, a Division Bench of this Court has held that possession on paper is symbolic possession and word "possession" used in clause 8 of sub-section (2) of Section 3 of the Act means actual possession and not symbolic possession.
The issue was considered by another Division Bench of this Court in the case of Ram Chandra Pandey Vs. State of U. P. and others 2010 (82) ALR 136 wherein it was held that mere symbolic possession does not amount to taking over actual physical possession. It was further held that unless actual physical possession has been taken by the State, the party would be entitled to the benefit of the Repeal Act, 1999.
The same view has been taken by the Apex Court in the case of State of U.P. Vs. Hari Ram [JT 2013 (4) SC 275: 2013 (4) SCC 280]. The question for consideration before the Apex Court in the said case was whether deemed vesting of surplus land under section 10(3) of the Act would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under sub-section (3) of the Repeal Act 1999. The issue was answered by the Apex Court as under:-
"17.Sub-section (2) of Section 10 states that after considering the claims of persons interested in the vacant land, the Competent Authority has to determine the nature and extent of such claims and pass such orders as it might deem fit. Sub-section (3) of Section 10 states that after the publication of the notification under sub-section (1), the Competent Authority has to declare that the excess land referred to in the Notification published under sub-section (1) of Section 10 shall, with effect from such date, as might be prescribed in the declaration, be deemed to have been acquired by the State Government. On publication of a declaration to that effect such land shall be deemed to have been vested absolutely in the State Government, free from all encumbrances, with effect from the date so specified.
Legal fiction
18. The Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as "deemed to have been acquired" and "deemed to have been vested absolutely". Let us first examine the legal consequences of a 'deeming provision'. In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Company Limited v. State of Rajasthan, (1996) 2 SCC 449, held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.
Voluntary Surrender
31. The 'vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering refused possession. The Court in Maharaj Singh v. State of U.P. and others, (1977) 1 SCC 155, while interpreting Section 117 (1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that 'vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The Court in Rajendra Kumar v. Kalyan, held as follows:
28. We do find some contentious substance in the contextual facts, since vesting shall have to be a 'vesting' certain. "To vest", generally means to give a property in. (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To 'vest', cannot be termed to be an executory devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest' as well.
The Supreme Court further went on to hold that the it is mandatory for the State to issue a notice under sub-clause 5 of Section 10 directing the petitioner/land holder to deliver peaceful possession to the State, failing which it was mandatory for the Respondents to take forceful possession under Section 10 (6) of the Act. The Supreme Court in paragraphs 36 and 37 held as under:
36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub-section (5), the Competent Authority may take possession of the vacant land to be given to the State Government and for that purpose, force as may be necessary can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the Competent Authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10 (5), then "forceful dispossession" under sub-section (6) of Section 10.
37. The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the sub-sections has to be understood as "shall" because a Court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'.
The Supreme Court after dealing with the effect of the Repeal Act held that mere vesting of the land under sub clause (3) of Section 10 would not confer a right on the State Government to have de facto possession of vacant land unless there has been a voluntarily surrender of the vacant land before 18.3.1999 or forceful possession of the land under Section 10 (6) of the Act. The relevant paragraph No. 42 is extracted here under:
42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.
The same issue has been reaffirmed by the Apex Court in the case of Gajanan Kamlya Patil Vs. Addl. Collector & Comp. Auth. & Ors. reported in JT 2014 (3) SC 211.
Specific case of the petitioner is that actual physical possession has not been taken by the State and he continues to retain possession of the land in dispute.
In the light of the settled legal position by the pronouncement of the Hon'ble Apex Court, it is to be tested from the rival case set up by the parties in their pleadings whether actual possession has been taken by the State or not either under Section 10 (5) or 10 (6) of the Act 1976. Act 1976 does not contain any provision for taking over possession of the surplus land. However, in exercise of powers conferred by Section 35 of the Act 1976, the State Government has issued directions known as "Uttar Pradesh Urban Ceiling (Taking of Possession, Payment of amount and Allied Matters) Directions 1983, which are reproduced herein below :
Directions issued by the State Government under Section 35 of the Act,1976.
In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 32 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the Competent Authorities in respect of the matters connected with the mode of payment of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:
1.Short title, application and commencement.- These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983;
(2) The provisions contained in this direction shall be subject to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.
(3) They shall come into force with effect from the date of publication in the Gazette.
2.Definition.-- ..............
3.Procedure for taking possession of vacant land in excess of Ceiling Limit.- (1)The Competent Authority will maintain a register in Form No. ULC-1 for each case regarding which a notification under sub-section (3) of Section 10 of the Act is published in the Gazette.
(2) An order in Form No.ULC-II will be sent to each landholder as prescribed under sub-section (5) of Section 10 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-1.
(3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No. ULC-I. The Competent Authority shall, in token of verification of the entries, put his signature in Column II of Form No. ULC/1 and Column 10 of Form No. ULC-III.
FORM NO. U.L.C I Register of Notice under Sections 10 (3) and 10(5) Serial No. Serial No. of Register of Receipt.
Sl. No. of Register of taking possession Case number Date of Notification under Section 10 (3) Land to be acquired Village/ Mohalla 1 2 3 4 5 Area Date of publication of notification under Section 10(3) in Gazette Date of notice under Section 10(5) Date of service of notice Date of notice/Date of notice 6 7 8 Date of taking over possession Remarks Signature of competent authority 9 10 11 FORM NO. U.L.C - II Notice Order under Section 10(5) (See Clause (2) of Direction (3) In the Court of Competent Authority U.L.C...........................................No..................Date................Sri/Smt..........................T/o....................................
In exercise of the powers vested u/s 10(5) of the Urban Land Ceiling and Regulation Act ,1976 (Act No. 33 of 1976), you are hereby informed that vide Notification No. .................. dated ............... under Section 10(1) published in Uttar Pradesh Gazette dated.............following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s 10(3) published in Uttar Pradesh Gazette, dated.......... Notification No................ dated........................ with effect from.................. You are hereby ordered to surrender or deliver the possession of the land to the Collector of the District authorized in this behalf under Notification No. 324/II/27-U.c. 77 dated February 7,1977, published in the Gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.
Description of vacant land Location Khasra number identification Area Remarks 1 2 3 4 Competent Authority .............................................
............................................
No. Dated..............................................
Copy forwarded to the Collector......................with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken and intimation be given to the undersigned along with copy of certificate to verify.
Competent Authority.
........................................
.......................................
FORM NO. U.L.C. III Register for Land of which possession has been taken under Section 10 (5) or 10(6) ( See Clause (3) of Direction 3) Serial No. Case No. Name of land holder & address Date of service of notice under Section 10 (5) Date of taking over possession under Section 10 (5) or under Section 10 (6) 1 2 3 4 5 Khasra no. of the land acquired Area Zone/Category Rate Signature of Competent Authority 6 7 8 9 10 NOTE(1) These directions are being issued with the concurrence of Vitta Vibhag vide their G.O. No. FA-1-2012/X-1983, dated December 13, 1983."
A perusal of the aforesaid directions go to show that competent authority is required to maintain a register under ULC-I which requires to indicate date of notice under Section 10 (5) of the Act 1976, date of service of notice as well as the date of taking possession and the signature of the competent authority. Form No. ULC-II is with respect to format of notice to be issued under Section 10 (5) of the Act 1976. The same indicates that it has to be issued under the signature of the competent authority. In addition to the notice which is required to be sent to the tenure holder under the signature of the competent authority and intimation is also required to be sent to the Collector. Form No. ULC -III is a register maintained for record of land of which possession has been taken under Section 10 (5) or 10 (6). The competent authority is required to place the signature in column 10 of the Form in token of verification of entries.
From a perusal of counter affidavit and supplementary counter affidavit as well as the original record, the stand taken by the State-respondents is that pursuant to notice under Section 10 (5) of Act 1976, possession was taken. It is not the case of the State-respondents that forceful possession was taken under Section 10 (6) of Act 1976. Once forceful possession has not been taken, only other means possible is voluntary surrender of possession by tenure holder. The respondents have miserably failed to demonstrate that there was a voluntary surrender of possession by tenure holder, the same clearly does not reflect from the perusal of the original record produced before us. There is no proof of voluntary surrender by the petitioner on record. Admittedly, notice under Section 10(5) was issued in the name of father of petitioner, Parmanand, who was dead. Possession of memo also does not bear the signature of the petitioner, rather column meant for the purpose is blank.
The aforesaid facts which cull out from the perusal of original record by us also belies the stand taken by Meerut Development Authority in their counter affidavit that possession was taken over by them on 29.08.1997 from Kshetra Nirikshak, Meerut through Lekhpal as representative of the Secretary from one Sri V. D. Sharma, Kshetra Nirikshak. In support of the averments, alleged possession memo which goes to show that possession has been handed over to Sri Sada Vriksha as representative of the Secretary of the authority of surplus land of Parmanand.
From the aforesaid discussions of the facts and circumstances of the case and from perusal of the original record, we are satisfied that actual physical possession of the land was never taken by the State Government. There is no material to demonstrate that possession was handed over by the petitioner voluntary or was taken over by use of force. The facts clearly indicate that memo of possession is nothing but a document prepared by sitting in their office by the officials of the State Government. Once the State Government never came in possession over the land in dispute then there does not arise any question of transferring the possession of the said land in favour of Meerut Development Authority. Again, the alleged possession memo filed along with the counter affidavit of Meerut Development Authority is also a mere paper transaction and no actual physical possession was ever transferred. Thus, the petitioner is entitled to get the benefit of Repeat Act, 1999 and the writ petition deserves to be allowed.
Accordingly, writ petition succeeds and stands allowed. A writ of mandamus is issued commanding the respondents not to interfere in the possession of the petitioner over the land in dispute and they are further directed to restore the entry of name of petitioner in the revenue record. However, there shall be no order as to costs.
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