Municipal Council Palai Vs. T.J.
Joseph & Ors [1963] INSC 37 (14 February 1963)
14/02/1963 MUDHOLKAR, J.R.
MUDHOLKAR, J.R.
SUBBARAO, K.
DAYAL, RAGHUBAR
CITATION: 1963 AIR 1561 1964 SCR (2) 87
CITATOR INFO:
R 1979 SC 984 (11) R 1990 SC 104 (11) RF 1990
SC2072 (31) E 1992 SC 81 (15)
ACT:
Motor Vehicles--Public Bus Stand constructed
by Municipality--Demand of charges from operators using the stand-Validity--Statutory
provisions, if repealed by implicationTravancore District Municipalities Act, (XXIII
of 1116 M.
E.), (Corresponding to A. D. 1914), ss. 286,
287--Travancore-Cochin Motor Vehicles Act, 1125, 8. 72.
HEADNOTE:
The appellant passed a resolution providing
for the use of a public bus stand constructed by it for stage carriage buses
starting from and returning to the Municipal limits of Palai or passing through
its limits. It also prohibited the use of any other public place or public
street within the Municipal limits as a bus stand or a halting place. The
respondents who were using that bus stand, were served with notices demanding
the payment of the charges due from them.
They preferred writ petitions before the High
Court challenging the validity of the action taken by the appellant and praying
for quashing the notices issued against them. The High Court accepted the
contention of the respondents that the provisions of ss. 286 and 287 of the
Municipalities Act stood repealed by implication by virtue of the provisions of
s. 72 of the Travancore-Cochin Motor Vehicles Action appeal by special leave
this court held :Held, that at the basis of the doctrine of implied repeal is
the presumption that the legislature which must be deemed to know the existing
law did not intend to create any confusion in the law by retaining conflicting
provisions on the statute book and, therefore, when the court applies this
doctrine it does no more than give effect to the intention of the legislature
ascertained by it in the usual way.
Daw v. The Metropolitan Board of Works (1862)
142 E. R 1104, Great Central Gas Consumers Co. v. Clarke, (1863) 143 E. R.
331, and Goodwin v. Phillips (1908) 7 C. L.
R. 16, distinguished.
88 In the present case, the proper
construction of the two sets of provisions would be to regard s. 72 of the
Travancore Cochin Motor Vehicles Act as a provision in continuity with ss. 286
and 287 of the Travancore District Municipalities Act so that it could be
availed of by the appropriate authority as and when it chose. The intention of
the legislature was to allow the two sets of provisions to coexist, because
both are enabling ones and in such a position, it could not imply repeal.
Deep Chand v. State of Uttar Pradesh, [1959]
Supp. 2 S. C. R. 8, Shyamkant Lal v. Rambhajan Singh, [1939] F. C. R. 193, and
Attorney-General for Ontario v. Attorney General for the Dominion [1896] A. C.
348, referred to.
As no action under s. 72 had so far been
taken by the Government, it could not be said that a conflict would arise and,
therefore, the resolutions of the Municipal Council still hold good and the
appeals must be allowed.
CIVIL APPELLATE JURISDICTION Civil Appeals
Nos. 79 to 81 of 1961.
Appeals by special leave from the judgment
and order dated November 18, 1959, of the Kerala High Court in 0. P. No. 579,
580 and 647 of 1959.
M. U. Isaac, Girish Chandra and Sardar
Bahadur, for the appellant.
The respondent did not appear.
1963. February 14. The judgment of the, Court
was delivered by MUDHOLKAR. J. The Municipal Council, Palai, the appellant
before us, passed a resolution on September 12, 1958 providing for the use from
October 1, 1958 of a public bus stand constructed by it -for stage carriage
buses starting from and returning to the municipal limits of Palai or passing
through its limits. A fee of Re. 1 per day was to be, Charged 89 on every such
bus and 50 nP. per day on buses which merely pass through the municipal limits.
The resolution also prohibited the use after that date of any other public
place or the sides of any public street within Palai municipal limits as a bus
stand or a halting place. At the request of the bus operators the Municipal
Council, by a resolution dated September 24, 1958 reduced the rates from Re. 1
to 80 np. per day and from 50 nP. to 40 nP. per day. By a further resolution
dated November 22, 1959 the Municipal Council modified the resolution of
September 12, 1958 and instead imposed a prohibition on using as a bus stand or
halting place a public place or side of a public road within a radius of six
furlongs from the Municipal bus stand. Some of the operators who were using
that bus stand did not pay the charges due from them for the use of the bus
stand.
Demand notices were, therefore, issued
against them. The respondent in this appeal, Joseph, as well as the respondents
in the other two appeals, Anthony and Eapen, who were recipients of such
notices preferred writ petitions before the High Court of Kerala challenging
the validity of the action taken by the Municipal Council and praying for
quashing of the demand notices issued against them.
it may be mentioned that the various
resolutions of the Municipal Council to which we have adverted were passed by
it in exercise of the powers conferred upon it by ss. 286 and 287 of the
Travancore District Municipalities Act, XXIII of 1116 M. E. (which corresponds
to A. D. 1941). Those provisions read thus :
"286 (1) The Municipal Council may
construct or provide public landing places, halting places and cart-stands and
may levy fees for the use of the same.
(2) A statement in English and a language of
the district of the fees fixed by the Council for 90 the use of such place
shall be put up in a conspicuous part thereof.
Explanation : A cart-stand shall, for the
purposes of this Act include a stand for carriages and animals.
287 : Where a Municipal Council has provided
a public landing place, halting place or cartstand, the executive authority may
prohibit the use for the same purpose by any person within such distance
thereof, as may be determined by the Municipal Council, of any public place or
the sides of any public street." The reason given by the Municipal Council
for taking action tinder these provisions is that about 80 stage carriage buses
start, halt in, or pass through the municipal limits of Palai and the members
of the public using them were being put to serious inconveniences for want of a
proper waiting room and other necessary conveniences. Further, the unsystematic
manner in which the buses were parked and plied affected the sanitation of the
town. In order to improve matters the Municipal Council claims to have utilised
a plot of land worth Rs. 50,000 located almost at the centre of the town and
constructed a bus stand at a cost Rs. 80,000 wherein, among other things, it
has provided separate waiting rooms for men and women, sitting accommodation,
electric fans, sanitary conveniences, drinking water etc., as also garages and
booking offices free of cost for bus operators using the bus stand. It is
claimed on behalf of the Municipal Council that by establishing the bus stand
it has not only acted within the scope of the powers conferred by the Act but
also in public interest and for preserving the health and sanitation of the
town.
On behalf of the respondents it was contended
that the provisions of ss. 2$6 and 287 of the 91 Travancore District
Municipalities Act stood repealed by implication by virtue of the provisions of
s. 72 of the Travancore-Cochin Motor Vehicles Act, 1125 M. E.
(corresponding to A. D. 1950) which came into
force on January 5, 1950. That section reads as follows "Government or any
authority authorised in this behalf by Government may, in consultation with the
local authority having jurisdiction in the area concerned, determine places at
which motor vehicles may stand either indefinitely or for a specified period of
time, and may determine the places at which public service vehicles may stop
for a longer time than is necessary for the taking tip and setting down of
passengers." Incidentally we may mention that this section continued in
force until the Travancore-Cochin Motor Vehicles Act was replaced partially by
the Motor Vehicles Act, 1939 (Central Act 4 of 1939) on its extension to
Travancore Cochin by Part B States (Laws) Act, 1951 (Central Act 3 of 1951).
The Central Act, of course, has no bearing upon the argument advanced before us
because if in fact ss. 286 and 287 were repealed by implication by s. 72 of the
Travancore Cochin Motor Vehicles Act the effect of the partial replacement of
the Travancore Cochin Motor Vehicles Act by the Central Motor Vehicles Act does
not fall to be considered.
The High Court accepted the contention urged
by the respondents in these three appeals and observed :
"The T.C. Motor Vehicles Act, 1125 was
enacted, as the preamble shows, in order to provide 'a uniform law relating to
motor vehicles' and we see no reason why sections 92 like 286 and 287 to the
extent they militate against such uniformity should not be considered as having
been repealed by implication" In support of their conclusion they have
placed reliance upon certain decisions. The first of these decisions -is Daw v.
The Metropolitan Board of Works (1). The High Court quoted the following
observations of Erle C. J., as supporting its conclusion :
"I think that where the same power is
given in two different bodies to number houses, the exercise of these powers
concurrently by both bodies would be entirely destructive of the object for
which they were conferred; they cannot, therefore, exist together, and in
accordance with general principles, the power more recently conferred overrides
that which was conferred by the prior Act." That was a case where action
had been brought by a Clerk of the Commissioners of Sewers of the City of
London against the Metropolitan Board of Works for recovery of damages
resulting from the defacement of numbers of houses by the Metropolitan Board of
Works from houses in Farm Street, Aldersgate. Those numbers had been inscribed
by the Commissioners of Sewers by virtue of the powers conferred Upon them by
the City of London Sewers Act, 1848, with regard to the sanitation and
management of the City of London. The Metropolis Local Management Act, (18
& 19 Viet.
c. 12O) which was passed in the year 1855 was
intended to provide for the better sewerage, drainage etc., of' the whole of
the metropolis and s. 141 thereof made a general provision as to naming streets
and numbering houses. It is in exercise of this power that the Board effaced
the numbers which had been inscribed by the (1) (1862) 142 L.R . 1104.
93 Commissioners of Sewers on certain houses
and put different numbers on them. The court found that the powers conferred by
the two statutes were substantially though not strictly, the same. It also
found that in respect of certain matters the powers conferred by the
Commissioners of Sewers of the City of London Act were preserved. But in
respect of certain general matters the whole work in the Metropolis was
expressly brought within the jurisdiction of the Metropolitan Board of Works
and s. 141 gave the Board a general authority over the whole of the Metropolis
including the City of London. After stating the general principles of
construction, the court said that as soon as the legislature is found dealing
with the same subject matter in two acts, so far as the later statute derogates
from and is inconsistent with the earlier one, the legislature must be held to have
intended to deal in the later statute with the same subject matter which was
within the ambit of the earlier one. Upon this view they held that the
Metropolitan Board of Works had authority to name streets and number houses in
the City of London and that the orders of '%.lie Board as to numbering of
houses in the City of London override the order of the Commissioners in the
same matter. A question was posed before the court as to whether the
Commissioners of Sewers of the City of London had authority to number the
houses and buildings in the streets in the City of London tinder s. 145 of the
City of London Sewers Act even after the passing of the Metropolitan Local
Management Act. The learned judges declined to answer that question and Erle C.
J. said :
"When the metropolitan board of works
choose to interfere in a matter which is entrusted to them by the general act,
the city commissioners are subject to the metropolitan board.
But. whether a concurrent jurisdiction is
given to the city commissioners, where the metropolitan 94 board have not
chosen to exercise their powers, is a question upon which it will be our duty
to pronounce an opinion when the point is properly presented to us." What
has to be noted in this case is that the laws with which the court was
concerned covered more or less the same subject matter and had the same object
to serve. Further, this decision has kept at large the question whether powers
conferred upon one authority by an earlier Act could continue to be exercised
by that authority after the enactment of a provision in a subsequent law
conferring wide powers on another authority which would include some of the
powers conferred by the earlier statute till the new authority chose to
exercise the powers conferred upon it.
The second decision relied upon is The Great
Central Gas Consumers Co. v. Clarke (1). That was a case in which a company
incorporated under a private Act was restricted to charge 4 shillings per 1,000
cft. of gas supplied by it. By a subsequent public Act for the supply of gas to
the metropolis an increased standard of purity and illuminating power was
required of the companies electing to adopt the provisions of that Act as to
price, purity and illuminating power and an increased charge was allowed to be
made by them. The question was whether the company was restricted to charge
only 4 shillings per 1000 cft. of gas supplied by it. It was urged on behalf of
the company that the later Act repealed the earlier one and, that therefore,
the company was not restricted to the charge of 4 shillings.
After quoting the provision in the private
Act containing the restriction the court observed :
"Although that section is not in terms
repealed, yet it becomes a clause in a private act of parliament quite
inconsistent with a clause in (1) (1863) 143 B. R. 331.
95 a subsequent public act-. That is
sufficient to get rid of the clause in the private act. Looking at the 19th
section of the general act, we think it is impossible to read it otherwise than
as repealing the 24th section of the private act. We are bound as well by the
plain words of the act as by the general scope and object of it, and also by
the justice of the case."' It will thus be seen that the foundation of the
decision was that the later statute was a general one whereas the previous one
was a special one and, therefore, the special statute had to give way, to the
later general statute.
We have not been able to trace the third case
upon which the learned judges have relied because the reference which they have
given of that case in the judgment is incomplete. They have merely stated
"103 LJKB" without stating the page of the report or the names of the
parties. Unfortunately all the citations of the High Court suffer from the
latter defect. They have, however, given the following quotations from the
judgment of Scrutton, L. J., and Maugham, L. J. The quotation from the former
is :
"I repeal the previous Act also in
another way'. ,namely, by enacting a provision clearly inconsistent with the
previous Act." The quotation from the judgment of Maugham, L. J. is :
"It is quite plain that the Legislature
is unable, according to our constitution, to bind itself as to the form of
subsequent legislation; and it is impossible for Parliament to say that in no
subsequent Act of Parliament dealing with this same subject-matter shall there
be an implied repeal." 96 The latter observations make it clear that the
doctrine of implied repeal was invoked while considering two statutesone
earlier and the other later -the subject-matter of both of which was the same.
The High Court then quoted certain
observations of Issacs J., in an Australian case Goodwin v. Phillips (1), which
are much to the same effect as those of Maugham, L. J. Finally,.
they have relied upon the statement of law
made in Sutherland on Statutory Construction, Vol. 1, p. 460. The substance of
what they have quoted is that the doctrine of implied repeal is well
recognised, that repeal by implication is a convenient form of legislation and
that by using this device the legislature must be presumed to intend to achieve
a consistent body of law.
It is undoubtedly true that the legislature
can exercise the power of repeal by implication. But it is an equally wellsettled
principle of law that there is a presumption against an implied repeal. Upon
the assumption that the legislature enacts laws with a complete knowledge of
all existing. laws pertaining to the same subject and the failure to add a
repealing clause indicates that the intent was not to repeal existing legislation.
Of course, this presumption will be rebutted if the provisions of the new act
are so inconsistent with the old ones that the two cannot stand together. As
has been observed by Crawford on Statutory Construction, p. 631, para 311 :
"There must be what is often called
"such a positive repugnancy between the two provisions of the old and the
new statutes that they cannot be reconciled and made to stand together'. In
other words they must be absolutely repugnant or irreconcilable. Otherwise,
there can be no implied repeal........................ for the intent of the
legislature to repeal the old enactment is utterly lacking." The reason
for the rule, that an implied repeal will (1) (1908) 7 C. L. R. 16.
97 take place in the event of clear inconsistency
or repugnancy, is pointed out in Crosby v. Patch and is as follows "As
laws are presumed to be passed with deliberation, and with full knowledge of
all existing ones on the same subject, it is but reasonable to conclude that
the Legislature, in passing a statute, did not intend to interfere with or
abrogate any former law relating to the same matter, unless the repugnancy
between the two is, irreconcilable. Bowen. v. Lease (5 Hill 226). It is a rule,
says Sedgwick, that a general statute without negative words will not repeal
the particular provisions of a former one, unless the two acts are
irreconcilably inconsistent. 'The reason and philosophy of the rule,' says the
author, 'is, that when the mind of the legislator has been turned to the details
of a subject, and he has acted upon it, a subsequent statute in general terms,
or treating the subject in a general manner, and not expressly contradicting
the original act, shall not be considered as intended to affect the more
particular or positive previous provisions, unless it is absolutely necessary
to give the latter act such a construction, in order. that its words shall have
any meaning at all." " For implying a repeal the next thing to be
considered is whether the two statutes relate to the same subject matter and
have the same purpose. Crawford has stated at p. 634 :
"And, as we have already suggested, it
is essential that the new statute covers the entire subject matter of the old;
otherwise there is no indication of the
intent of the legislature to abrogate the old law. Consequently, the (1) 18
Calif. 438 quoted by Crawford "Statatory Construction" p. 633, 98
later enactment will be construed as a continuation of the old one".
The third question to be considered is
whether the new statute purports to replace the old one in its entirety or only
partially. Where replacement of an earlier statute is partial, a question like
the one which the court did not choose to answer in Daw's case (1), would arise
for decision.
It must be remembered that at the basis of
the doctrine of implied repeal is the presumption that the legislature which
must be deemed to know the existing law did not intend to create any confusion
in the law by retaining conflicting provisions on the statute book and,
therefore, when the court applies this doctrine it does no more than give
effect to the intention of the legislature ascertained by it in the usual way
i. e., by examining the scope and the object of the two enactments, the earlier
and the later.
The further question which is to be
considered is whether there is any repugnancy between the old and the new law.
In order to ascertain whether there is repugnancy or not this court has laid
down the following principles in Deep Chand v. The State of Uttar Pradesh (2):
1. Whether there is direct conflict between
the two provisions ;
2. whether the legislature intended to lay
down an exhaustive code in respect of the subject matter replacing the earlier
law ;
3. whether the two laws occupy the same
field.
Another principle of law which has to be
borne (1) (1862) E.R. 1104. (2) [1959] 2 S.C.R. 8, 43, 99 in mind is stated
thus by Sutherland on Statutory Construction (1) :
"Repeal of special and local statutes by
general statutes :
The enactment of a general law broad enough in
its scope and application to cover the field of operation of a special or local
statute will generally not repeal a statute which limits its operation to a
particular phase of the subject covered by the general law, or to a particular
locality within the jurisdictional scope of the general statute. An implied
repeal of prior statutes will be restricted to statutes of the same general
nature since the legislature is presumed to have known of the existence of
prior special or particular legislation, and to have contemplated only a
general treatment of the subject-matter by the general enactment. Therefore,
where the later general statute does not propose an irreconcilable conflict,
the prior special statute will be construed as remaining in effect as a qualification
of or exception to the general law." Of course, there is no rule of law to
prevent repeal of a special by a later general statute and, therefore, where
the provisions of the special statute are wholly repugnant to the general
statute, it would be possible to infer that the special statute was repealed by
the general enactment. A general statute applies to all persons and localities
within its jurisdiction and scope as distinguished from a special one which in
its operation is confined to a particular locality and, therefore, where it is
doubtful whether the special statute was intended to be repealed by the general
statute the court should try to give effect to both the enactments as far as
possible. For, as has been pointed out at p. 470 of Sutherland on Statutory
Construction, Vol. R I where the repealing effect of a statute is doubtful,
"the statute is to be strictly (1) Vol. 1, 3rd Edn, p. 486 100 construed
to effectuate its consistent operation with previous legislation." In the
case before us the contention is not that the whole of the District
Municipalities Act has been abrogated by the Motor Vehicles Act but that s. 72
of the latter Act is the complete law on the subject of determining parking
places for motor vehicles and that in so far as ss. 286 and 287 of the
Travancore District Municipalities Act are in conflict with that law, they must
give way to it or in other words they must be deemed to have been repealed by
implication.
The general principles which apply to a
consideration of the question whether the later enactment repeals an earlier
one by implication will also have to be applied to the kind of case which is
before US.
We have already quoted s. 72 of the
Travancore Cochin Motor Vehicles Act. It empowers the Government or an authority
authorised by it to determine in consultation with a local authority places at
which motor vehicles may stand or halt.
Section 286 of the Travancore District
Municipalities Act empowers the Municipal Council to construct or provide
public halting places and cart stands and levy fees for their use. On the face
of it, we do not see any inconsistency between the two provisions because it is
open to the Municipal Council to exercise its powers under s. 286 and charge
fees from bus owners making use of the conveniences provided by it.
Simultaneously with the exercise of the power under that section by the
Municipal Council the Government or other appropriate authority may exercise
the power under s. 72 and there will be 'no conflict in the exercise by them of
their respective powers.
Since the powers under this provision are to
be exercised in consultation with a local authority, in practice actual
conflict may be obviated by the Government not exercising its powers under s.
72 of 101 the Travancore-Cochin Motor Vehicles Act where the Municipality has
taken action tinder ss. 286 and 287 of the Travancore District Municipalities
Act. Even assuming that it does, it will have to do so in consultation with the
Municipality and it may be legitimate to expect that the ultimate action would
be such as not to bring about any conflict.
It has also to be borne in mind that s. 72 of
the Travancore-Cochin Motor Vehicles Act was enacted for the purpose of
enabling the Government and the appropriate authority to make provisions for
parking places not only in municipal areas but in non municipal areas as well
as also in municipal areas where the municipality has taken no action under s.
286. Would it then be proper to say that there is a conflict between s. 286 of
the Travancore District Municipalities Act and s. 72 of the Travancore Cochin
Motor Vehicles Act ? The latter provision has a wider territorial application
than the former and can in that sense be said to be a general one, while the
former being applicable only to municipal areas is a special one. Being a
special provision s. 286 cannot readily be considered as having been repealed
by the more general provision of s. 72 of the Travancore Cochin Motor Vehicles
Act. But we must bear in mind that s. 286 does not stand by itself and in order
to effectuate the purpose underlying it the legislature has enacted s. 287,
apparently intending that when action is taken by a municipality under s. 286
it may also take consequential action under s. 287.
Could it, therefore, be said that there is
conflict between ss. 286 and 287 on the one hand and s. 72 of the Travancore Cochin
Motor Vehicles Act on the other because while under s. 287 a municipality can
prohibit the use as a halting place of any place within a specified distance of
the bus stand constructed by it, the Government or other appropriate authority
can by order permit places within the prohibited 102 area to be used as halting
places ? It is urged before us on behalf of the Municipal Council that until
action is taken under s. 72 of the Travancore Cochin Motor Vehicles Act which
will have such result, it cannot be said that a conflict will arise and that
until such conflict actually takes place, the old provision must stand. In
support of this contention learned counsel refers us to the decision of
Sulaiman J., in Shyamakant Lal v. Rambhajan Singh (1).
There, the learned judge in his judgment has
stated the principles of construction to be applied when the question arises as
to whether provincial legislation is repugnant to an existing Indian law. In
the course of judgment the learned judge has observed "Further, repugnancy
must exist in fact, and not depend merely on a possibility." He relied
upon the decision in Attorney-General for Ontario v. Attorney-General for the
Dominion (2) in support of his view. In that case there was a prior provincial
law enabling local authorities to adopt certain provisions of a provincial law
for enforcing prohibition. Then a later Dominion law was enacted called the
Canada Temperance Act, 1886 which provided that part II of that law could be
brought into operation in a province by an order of the Governor General of
Canada in Council. It may be mentioned that there were certain provisions in
the Dominion Act which purported to repeal the prohibitory provisions of the
provincial Act. The Privy Council held that those provisions were ultra vires.
It was contended before the Privy Council alternatively that the provisions of
the Provincial Act being repugnant to the Dominion Act stood repealed by
implication by the provisions of part II of the Dominion Act by resorting to
which local authorities could introduce prohibition in their areas. The Privy
Council pointed out that those provisions were inapplicable until an order was
made by the Governor General of Canada in Council (1) [1939] F.C.R. 193, 212.
(2) [1896] A.C. 348, 369-370.
103 applying Part II of the Act to a province
and in fact no such order was made. That case is clearly distinguishable
because Part 11, of the Act had not come into force at all and since it was not
in force in a province the question of its being in conflict with the
provincial law did not arise.
It seems to us however, clear that bearing in
mind the fact that the provisions of s. 72 of the Travancore Cochin Motor Vehicles
Act were intended to apply to a much wider area than those of ss. 286 and 287
of the Travancore District Municipalities Act it cannot be said that s. 72 was
intended to replace those provisions of the Travancore District Municipalities
Act. The proper way of construing the two sets of provisions would be to regard
s. 72 of the Travancore-Cochin Motor Vehicles Act as a provision in continuity
with ss. 286 and 287 of the Travancore District Municipalities Act so that it
could be availed of by the appropriate authority as and when it chose. In other
words the intention of the legislature appears to be to allow the two sets of
provisions to co-exist because, both are enabling ones. Where such is the
position, we cannot imply repeal. The result of this undoubtedly would be that
a provision which is added subsequently, that is, which represents the latest
will of the legislature will have an overriding effect on the earlier provision
in the sense that despite the fact that some action has been taken by the
Municipal Council by resorting to the earlier provision the appropriate
authority may nevertheless take action under s.
72 of the Travancore Cochin Motor Vehicles
Act, the result of which would be to override the action taken by the Municipal
Council under s. 287 of the District Municipalities Act. No action under
section 72 has so far been taken by the Government and, therefore, the
resolutions of the municipal Council still hold good. Upon this view it is not
necessary to consider certain other points raised by learned counsel, 104 For
these reasons we allow the appeals and set aside the orders of the High Court
and quash the writs issued by it. There will, however, be no order as to costs
as the respondents have not appeared.
Appeals allowed.
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