Citation : 2021 Latest Caselaw 8477 Ker
Judgement Date : 15 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 15TH DAY OF MARCH 2021/24TH PHALGUNA, 1942
WP(C).No.20367 OF 2019(U)
PETITIONER:
HARI MOHAN, AGED 20 YEARS, S/O.J.MOHANANAN,
VISHNU BHAVAN, YEROOR P.O., YEROOR VILLAGE,
PUNALUR TALUK, KOLLAM DISTRICT.
BY ADVS.
SRI.SUBHASH CYRIAC
SMTSHEEBA JOSEPH
SRI.S.SREEJITH
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
CHIEF SECRETARY, THIRUVANANTHAPURAM,
KERALA- 695 001.
2 THE SCRUTINY COMMITTEE FOR VERIFICATION OF
COMMUNITY CERTIFICATES, SC/ST(G) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM- 695001,
REPRESENTED BY ITS CHAIRMAN.
3 THE COMMISSIONER OF ENTRANCE EXAMINATIONS
KERALA, 5TH FLOOR, HOUSING BOARD,
SHANTHI NAGAR, THIRUVANANTHAPURAM- 695 001.
4 KERALA INSTITUTE FOR RESEARCH,
TRAINING AND DEVELOPMENT STUDIES FOR
SCHEDULED CASTE AND SCHEDULED TRIBE,
REPRESENTED BY ITS DIRECTOR, DIRECTORATE OF
KIRTADS, CHEVAYUR, KOZHIKODE- 673 017.
BY SPECIAL GOVERNMENT PLEADER SRI.K.V.PRAKASH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 15-03-2021, ALONG WITH WP(C).20787/2019(W), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.20367 & 20787 of 2019
:2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 15TH DAY OF MARCH 2021/24TH PHALGUNA, 1942
WP(C).No.20787 OF 2019(W)
PETITIONER:
VISHNU MOHAN, AGED 22 YEARS,
S/O. J.MOHANANAN, VISHNU BHAVAN,
YEROOR P.O., YEROOR VILLAGE,
PUNALUR TALUK, KOLLAM DISTRICT.
BY ADVS.
SRI.SUBHASH CYRIAC
SMT.SHEEBA JOSEPH
SRI.S.SREEJITH
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
CHIEF SECRETARY, THIRUVANANTHAPURAM,
KERALA-695 001.
2 THE SCHEDULED CASTE SCHEDULED TRIBE
DEVELOPMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 KERALA INSTITUTE FOR RESEARCH,
TRAINING AND DEVELOPMENT STUDIES FOR
SCHEDULED CASTE AND SCHEDULED TRIBE,
REPRESENTED BY ITS DIRECTOR,
DIRECTORATE OF KIRTADS, CHEVAYUR,
KOZHIKODE-673 017.
BY SPECIAL GOVERNMENT PLEADER SRI.K.V.PRAKASH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 15-03-2021, ALONG WITH WP(C).20367/2019(U), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.20367 & 20787 of 2019
:3:
N. NAGARESH, J.
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W.P.(C) Nos.20367 & 20787 of 2019
`````````````````````````````````````````````````````````````
Dated this the 15th day of March, 2021
JUDGMENT
~~~~~~~~~
These writ petitions have been filed by siblings
and relate to their Scheduled Caste status. The facts
involved are common and interconnected and hence the writ
petitions are heard together and disposed of by a common
judgment.
2. W.P.(C) No.20367/2019 has been filed by the
petitioner who has cleared the Kerala Engineering
Architecture Medical Examination-2018 (KEAM-2018),
seeking to quash Exts.P10 and P12 and to direct the 4 th
respondent to declare that the petitioner belongs to
Scheduled Caste Velan Community and that he is eligible to W.P.(C) Nos.20367 & 20787 of 2019
all benefits available to the Scheduled Caste Velan
Community. W.P.(C) No.20787/2019 is filed by the
petitioner, who is the brother of the petitioner in W.P.(C)
No.20367/2019, seeking to set aside Exts.P9 and P10 and to
direct the 2nd respondent to declare that the petitioner
belongs to Schedule Caste Velan Community.
3. In W.P.(C)No.20367/2019, the petitioner stated
that his mother O. Sasikumari belongs to Scheduled Caste
Velan Community and his father J. Mohanan belongs to Nair
Community. The petitioner was brought up in a Scheduled
Caste background. The petitioner and the family have been
residing in the house of his mother O.Sasikumari. The
petitioner was admitted in School as a Scheduled Caste
student. The petitioner follows the cultural background of
Scheduled Caste Velan Community. The petitioner was
subjected to social disabilities of a Scheduled Caste. The
Tahsildar, Punalur Taluk has issued a Caste Certificate to
the petitioner entitling him for all reservation benefits due to
Scheduled Caste.
W.P.(C) Nos.20367 & 20787 of 2019
4. The petitioner further contended that the Kerala
Velan Service Society, Yeroor has issued Ext.P7 Community
Certificate which would show that the Velan Community has
accepted the petitioner as one among them. The petitioner
was admitted for B.VSc. Course under Scheduled Caste
Category. The petitioner appeared in KEAM-2017 as a
member of Scheduled Caste Community. However, when
the petitioner submitted an application seeking Scheduled
Caste reservation for allotment in KEAM-2018, the 3 rd
respondent-Commissioner of Entrance Examination directed
the Kerala Institute for Research, Training and Development
Studies for Scheduled Caste and Scheduled Tribe
(KIRTADS) to conduct an enquiry regarding the community
of the petitioner.
5. The KIRTADS submitted Ext.P10 Anthropological
Report stating that the claim of Scheduled Caste status of
the petitioner is not tenable. The Scrutiny Committee for
Verification of Community Certificates, confirmed the report
of the KIRTADS and directed to cancel all Scheduled Caste W.P.(C) Nos.20367 & 20787 of 2019
Certificates of the petitioner and the petitioner filed objections
to the report of the KIRTADS. The Scrutiny Committee for
Verification of Community Certificates, without properly
appreciating the objections of the petitioner, rejected the
Scheduled Caste (Velan) claim of the petitioner as per
Ext.P10 and decided to cancel all the Scheduled Caste
Certificates of the petitioner issued by Competent Authorities.
It is aggrieved by Exts.P10 and P12 that the petitioner has
approached this Court.
6. On the basis of the order rejecting the Scheduled
Caste (Velan) claim of the petitioner's brother, the 1 st
respondent issued to the petitioner in W.P.(C)
No.20787/2019, Ext.P10 order holding that since his brother
is found to be not belonging to Scheduled Caste (Velan)
Community, the petitioner who is his sibling, will also not be
eligible for any of the benefits intended for Scheduled Caste
and hence all the Scheduled Caste Certificates issued to the
petitioner are treated as cancelled. The petitioner challenges
Ext.P10 proceedings.
W.P.(C) Nos.20367 & 20787 of 2019
7. The learned counsel for the petitioners argued that
the Competent Authority has issued Ext.P3 Community
Certificate evidencing that the mother of the petitioner
belongs to Hindu Velan Community, which is a Scheduled
Caste. Ext.P4 extract of Admission Register would show that
the petitioner in W.P.(C) No.20367/2019 was admitted in
School, as one belonging to Hindu/Velan SC community.
The Competent Authority under the Kerala (Scheduled Caste
and Scheduled Tribes) Regulation of Issue of Community
Certificate Rules, 2002 has issued Ext.P5 certifying that the
petitioner belongs to Hindu Velan caste which is recognised
as a Scheduled Caste.
8. The learned counsel for the petitioner further
urged that the Tahsildar, Pathanapuram has also issued
Ext.P6 Certificate after due enquiry, certifying that the
petitioner belongs to Hindu Velan (Scheduled Caste)
Community. Ext.P8 allotment memo is in proof of the fact
that the brother of the petitioner Vishnu Mohan has been
granted an allotment by the Commissioner for Entrance W.P.(C) Nos.20367 & 20787 of 2019
Examinations to the College of Veterinary and Animal
Sciences, Wayanad for B.VSc. Course, under the category
Scheduled Castes.
9. The petitioners contended that all the afore
documents would show that the petitioners belong to a
Scheduled Caste Community. Ex.P7 certificate issued by the
Kerala Velan Service Society, Kayamkulam would show that
the petitioner has been accepted as one belonging to
Scheduled Caste, by the Velan Community. The learned
counsel for the petitioner further pointed out that the
KIRTADS, as per Ext.P7 in W.P.(C) No.20787/2019, has
given an Anthropological Report on the basis of a detailed
anthropological investigation, to the effect that the petitioner's
brother (the writ petitioner in W.P.(C) No.20787/2019)
belongs to Scheduled Caste Velan Community. The
respondents committed a grave error in concluding that the
petitioner does not belong to Scheduled Caste Community,
on the face of overwhelming factual and documentary
evidence.
W.P.(C) Nos.20367 & 20787 of 2019
10. The learned counsel for the petitioners relied on a
Division Bench judgment of this Court in Vijayan P.S. and
Others v. State of Kerala and Others [2013 (2) KLT 488],
to contend that the Community Certificates issued to the
petitioners cannot be cancelled on a mere finding that the
person in whose favour the certificate was issued does not
belong to Scheduled Caste and before cancelling the
certificate, the Scrutiny Committee has to form an opinion
that it was obtained fraudulently.
11. The learned Special Government Pleader (SC/ST)
opposed the writ petitions. The learned Special Government
Pleader stated that the paternal grandfather and
grandmother of the petitioners admittedly belonged to 'Nair'
Community which is not a SC or ST. The couple had five
children, namely Rajan Pillai, Ramachandran Pillai, Ajayan
Pillai, Radhamani and Madhavan Pillai. Madhavan Pillai is
the father of the petitioners. In the School Admission
Register of the said Madhavan Pillai, his Community was
shown as Nair. Madhavan Pillai married Sasikumari, the W.P.(C) Nos.20367 & 20787 of 2019
mother of the petitioners, who belonged to SC Velan
Community. After the birth of the petitioners, the father of
the petitioners changed his name Madhavan Pillai, as
Mohanan by publishing a Gazette notification. The Gazette
notification was intended to make it appear that he is not a
Pillai and is a Scheduled Caste.
12. The maternal forefathers of the petitioners
belonged to SC community. The G.O. No.109/2008 of the
Government of Kerala, which dealt with the caste status of
children belonging to inter caste couples mandated that in
order to decide the caste status of children born out of such
wedlock, each case should be examined individually. It
should be determined whether the claimant suffered the
social disability normally faced by persons belonging to
Scheduled Caste. It is also to be found out whether the
Scheduled Caste society to which father or mother belongs,
has accepted the claimant as belonging to their community.
13. The learned Government Pleader pointed out that
the KIRTADS, which is an expert body in the matter of W.P.(C) Nos.20367 & 20787 of 2019
anthropological studies, has conducted an investigation in
the matter and on the basis of various fact-finding enquiries,
the KIRTADS found that the petitioner in W.P.(C)
No.20367/2019 does not belong to Scheduled Caste
Community. The Scrutiny Committee which considered the
Anthropological Report concurred with the findings of
KIRTADS and declared that the petitioner does not belong to
Scheduled Caste and the order of the Scrutiny Committee is
therefore perfectly legal and is not liable to be interfered with
under Article 226 of the Constitution of India.
14. I have heard the learned counsel for the
petitioners and learned Special Government Pleader
representing the respondents.
15. It is not of serious dispute that the father of the
petitioners belong to Nair Community and the mother of the
petitioners belonged to Hindu Velan SC Community. In
respect of the children born out of such inter caste wedlock
in which one of the spouses belongs to Scheduled
Caste/Scheduled Tribe, the crucial question to decide the W.P.(C) Nos.20367 & 20787 of 2019
caste status of the children, would be whether the children
were brought up in the social milieu of Scheduled Caste. As
a corollary, questions would arise whether the Scheduled
Caste Community to which one of the spouses belongs to,
has accepted the children as part of their community and
whether the children did suffer the social backwardness
normally faced by persons belonging to Scheduled
Caste/Scheduled Tribe Community.
16. The State of Kerala has enacted the Kerala
Scheduled Castes and Scheduled Tribes (Regulation of
Issue of Community Certificates) Act, 1996 providing for
determination of caste status of persons claiming to be
Scheduled Caste/Scheduled Tribe. As there is a statutory
mechanism to decide the caste status, whenever there is a
dispute as to the caste status, a claimant will have to
establish before the Scrutiny Committee constituted under
the Act 1996, that he/she belongs to Scheduled
Caste/Scheduled Tribe. The Scrutiny Committee can avail
the opinion of an expert agency to determine caste status. W.P.(C) Nos.20367 & 20787 of 2019
17. When a genuine dispute arises as to the caste
status of an individual, the Caste Certificates issued by
Government Officials earlier to him, cannot be the sole
material to decide the issue. Though such certificates may
be materials available to the Screening Committee to decide
the issue, the issue itself will have to be decided on the basis
of other reliable materials also. As far as the petitioners are
concerned, apart from the Community Certificates issued to
them by Authorities, School Admission Register and
allotment memo issued by the Commissioner for Entrance
Examinations based on the afore certificates, reliance is
placed on Ext.P7 Certificate issued by the Kerala Velan
Service Society and the fact that the petitioners were residing
at the place of their mother, who is a Scheduled Caste.
18. Ext.P7 Certificate is seen issued by Kerala Velan
Service Society having its Head Office at Kayamkulam. A
Certificate issued by a Society by itself cannot be a
conclusive proof of the fact that the Velan community has
accepted the petitioners as belonging to Velan Community. W.P.(C) Nos.20367 & 20787 of 2019
To ascertain as to the sustainability of the report of the expert
agency, this Court required the Special Government Pleader
to make available the files of Scrutiny Committee, relating to
the petitioners. The Special Government Pleader
accordingly made available the records.
19. The records produced by the Special Government
Pleader would show that the expert agency has elaborately
considered the genealogy of the petitioners. The expert
agency also considered the brief anthropological report in
respect of the petitioner in W.P.(C) No.20787/2019,
submitted by the Vigilance Officer. The records would show
that the petitioner in W.P.(C) No.20367/2019 has undergone
primary and high school studies in Sabari Giri Central
School, Anchal. The father of the petitioners is a
businessman. The mother of the petitioners worked as
Agriculture Officer in Pangode Agriculture College and has
worked as a Doctor in Government Medical College,
Trivandrum. These facts would show that the petitioners
have not faced the social backwardness as normally faced W.P.(C) Nos.20367 & 20787 of 2019
by members belonging to the Scheduled Caste community.
20. In the course of enquiries made by KIRTADS, the
paternal grandfather of the petitioners gave a statement
(document No.5) in which the grandfather has stated that the
family of the petitioners are residing about 1 Km. far from his
house. The family of the petitioners are residing in
cooperation with the paternal grandfather. It has been
further stated that they regularly take part in the rituals of the
family temple of the paternal grandfather who is a Nair.
Document No.10 relied on by the KIRTADS is a marriage
certificate issued by the Assistant Devaswom Commissioner,
Punalur Group which would show that the marriage of the
petitioners' father and mother took place in Puthiyidam Sree
Krishna Swamy Temple under Punalur Group. In view of the
aforesaid facts, this Court is of the considered opinion that
there are sufficient materials on record to establish that the
petitioners followed the custom of their father's community.
21. The counsel for the petitioners argued that since
the petitioners and their father are residing in the place of W.P.(C) Nos.20367 & 20787 of 2019
their mother who is a Schedule Caste, they should be treated
as belonging to the community of their mother. Such a
proposition cannot be accepted. Place of residence alone
will not be sufficient to presume that the family followed the
custom of the community of the mother.
22. The learned counsel for the petitioners argued that
the Vigilance Officer had given an Anthropological Report
finding that the petitioner in W.P.(C) No.20787/2019 belongs
to Scheduled Caste. Therefore, subsequently, the Vigilance
Officer cannot come to a contrary conclusion and submit
another report stating that the petitioners do not belong to
Scheduled Caste.
23. It may be noted in this regard that Ext.P7 report
was given by the Vigilance Officer on the basis of a reference
made by the Screening Committee for the purpose of
admission to Degree courses. The learned Government
Pleader submitted that such enquiries are made for the
purpose of a prima facie finding as to the caste status. Such
enquiries are made within the time constraints as a report W.P.(C) Nos.20367 & 20787 of 2019
has to be submitted before the commencement of the
admission process to educational institutions. That will not
preclude KIRTADS from undertaking a detailed enquiry, at
the instance of the Scrutiny Committee.
24. Going by the provisions of the Act, 1994, the
Scrutiny Committee is the competent authority to
conclusively determine the caste status of persons claiming
to be SC/ST. The Scrutiny Committee has passed the
impugned orders taking into consideration the reports of the
KIRTADS and other materials available on record. The
conclusion arrived at by the Scrutiny Committee cannot be
found fault with for the mere reason that the KIRTADS had
earlier given a contrary report. A caste certificate attains
finality only when the claim of the individual who belong to a
Scheduled Caste is verified by the Scrutiny Committee.
25. The reliance placed by the counsel for the
petitioners on the judgment in Vijayan P.S. and others
(supra) would not be of any help to the petitioners. In the
said judgment, a Division Bench of this Court held that a W.P.(C) Nos.20367 & 20787 of 2019
community certificate cannot be cancelled on mere finding
that the person in whose favour the certificate was issued,
does not belong to Scheduled Caste or Scheduled Tribe
community. To cancel a certificate, the Scrutiny Committee
has to form an opinion that the community certificate was
obtained fraudulently. The learned Government Pleader
would contend that in the judgment in Chairman and
Managing Director, Food Corporation of India and others
v. Jagdish Balaram Bahira and others [(2017) 8 SCC 670],
the Hon'ble Apex Court has held that even in the absence of
fraud, a community certificate can be cancelled, if it is found
that the certificate was erroneous.
In view of the facts and reasons stated above, this
Court does not find any reason to interfere with the orders
impugned in the writ petitions. The writ petitions are
therefore dismissed.
Sd/-
N. NAGARESH, JUDGE aks/12.03.2021 W.P.(C) Nos.20367 & 20787 of 2019
APPENDIX OF WP(C) 20367/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF SENIOR
SCHOOL EXAMINATION, CBSE DATED
28.05.2017.
EXHIBIT P2 TRUE COPY OF THE RESULT DATED 04.06.2018
PUBLISHED BY CBSE-NATIONAL ELIGIBILITY CUM ENTRANCE TEST (UG)-2018.
EXHIBIT P3 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 20.08.2014 ISSUED BY TAHSILDAR, PUNALUR TALUK IN FAVOUR OF O.SASIKUMARI.
EXHIBIT P4 TRUE COPY OF THE EXTRACT OF THE ADMISSION REGISTER OF SABARIGIRI SCHOOL, ANCHAL DATED 27.06.2017.
EXHIBIT P5 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 03.02.2018 ISSUED BY TAHASILDAR, PUNALUR TALUK IN FAVOUR OF THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 15.03.2002 ISSUED BY TAHASILDAR, TALUK OFFICE PATHANAPURAM IN FAVOUR OF THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 19.02.2017 ISSUED BY KERALA VELAN SERVICE SOCIETY, YEROOR.
EXHIBIT P8 TRUE COPY OF THE ALLOTMENT MEMO DATED 09.09.2015 ISSUED BY 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 25.07.2018 ISSUED BY CONTROLLER OF ENTRANCE EXAMINATIONS.
EXHIBIT P10 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 30.05.2017 ISSUED BY THE 4TH RESPONDENT.
W.P.(C) Nos.20367 & 20787 of 2019
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 10.08.2019 IN W.P.(C)NO.22148/2018 BEFORE THE HONOURABLE HIGH COURT OF KERALA.
EXHIBIT P12 TRUE COPY OF THE ORDER
NO.3235670/G2/2019/SCSTDD DATED
03.06.2019 ISSUED BY THE 2ND RESPONDENT SCRUTINY COMMITTEE, TO THE PETITIONER.
EXHIBIT P13 TRUE COPY OF THE ENVELOPE.
EXHIBIT P14 TRUE COPY OF THE NO.51/2019/SCSTDD ISSUED
BY SC/ST DEPARTMENT DATED 15.7.2019
EXHIBIT P15 TRUE COPY OF THE COMMUNITY CERTIFICATE
DATED 04.08.1977 ISSUED BY TAHASILDAR, PATHANAPURAM IN FAVOUR OF C.OMANA
EXHIBIT P16 TRUE COPY OF THE EXTRACT OF THE ADMISSION REGISTER ISSUED FROM GOVERNMENT HIGHER SECONDARY SCHOOL, YEROOR IN FAVOUR OF C.OMANA
EXHIBIT P17 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 23.04.2014 ISSUED BY KIRTADS W.P.(C) Nos.20367 & 20787 of 2019
APPENDIX OF WP(C) 20787/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COY OF THE ADMISSION REGISTER DATED 19.3.2014 OF SABARIGIRI SCHOOL ANCHAL.
EXHIBIT P2 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 20.8.2014 ISSUED BY TAHSILDAR, PUNALUR TALUK IN FAVOUR OF O.SASIKUMARI.
EXHIBIT P3 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 6.6.2014 ISSUED BY TAHASILDAR, PUNALUR TALUK IN FAVOUR OF THE PETITIONER.
EXHIBIT P4 TRUE COPY OF COMMUNITY CERTIFICATE DATED
15.3.2002 ISSUED BY TAHASILDAR, TALUK
OFFICE PATHANAPURAM (NOW PUNALUR TALUK).
EXHIBIT P5 TRUE COPY OF THE ALLOTMENT MEMO DATED
9.9.2015 ISSUED BY CONTROLLER OF
EXAMINATION.
EXHIBIT P6 TRUE COPY OF THE IDENTITY CARD ISSUED TO
THE PETITIONER FROM COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, THRISSUR.
EXHIBIT P7 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 23.4.2014 BY KIRTADS.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 10.8.2018 IN WPC NO.22148/2018 BEFORE THE HONOURABLE HIGH COURT OF KERALA.
EXHIBIT P9 TRUE COPY OF THE ORDER NO.3235670/G2/2013/ SCSTDD DATED 3.6.2019 ISSUED BY THE SCRUTINY COMMITTEE.
W.P.(C) Nos.20367 & 20787 of 2019
EXHIBIT P10 TRUE COPY OF THE ORDER NO.51/2019/SCSTDD OF THE 2ND RESPONDENT DATED 15.7.2019.
RESPONDENTS' EXHIBITS:
EXHIBIT R3 (a) TRUE COPY OF THE ANTHROPOLOGICAL ENUIRY REPORT NO.V.558/2017 DATED 30.05.2017 ncd
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