Hotel
Sea Gull Vs. State of West
Bengal & Ors
[2002] Insc 147 (19
March 2002)
V.N.
Khare, Ashok Bhan & D.M. Dharmadhikari Bhan, J.
The
appellant (writ petitioner before the High Court) being aggrieved by the
Division Bench judgment of the High Court of Calcutta where under the Division
Bench overturning the decision of the Single Judge has dismissed the writ
petition has come up in this appeal.
On 19th January, 1990 Padima (II) Gram Panchayat
sanctioned a plan to construct five stories (Ground floor + 4 floors) for the
construction of Hotel Sea Gull through its owner Malay Kumar Guha under the
West Bengal Panchayat Act, 1973. The Hotel comprising of ground floor and first
floor constructed in pursuance of the said sanction is situated in Mouza Gobindabasan,
District Midnapore, West
Bengal. On 28th November, 1990 Government of West Bengal
constituted Digha Planning Authority-respondent No. 2 for the planned
development of Digha Township, District Midnapore, West Bengal. By a Notification of the even date Government of West Bengal brought Mouza
Gobindabasan under Respondent No. 2. In February, 1991 Respondent No. 2
notified guidelines for the development in Digha Planning Area interim
provisions under Section 56 of the West
Bengal Town and Country (Planning and Development) Act, 1979
(hereinafter referred to as 'the 1979 Act') pending preparation of development
plan for securing proper planning and development of Digha Planning Area.
On 7th June, 1991 Sushil Pal Chowdhuary and Dulal Pal
Chowdhuary purchased the appellant Hotel (ground floor + 1st floor) from Malay
Kumar Guha. In the first week of July, 1992 the appellant started construction
of the second floor on the existing hotel building. Respondent No. 2 on 24th
July, 1992 issued notice under Section 54 of the 1979 Act to the appellant
requiring it to discontinue unauthorised construction of the building. In spite
of service of the said notice the appellant did not stop further construction;
so on 31st August, 1992, respondent No. 2, issued notice under Section 53 (1)
of the 1979 Act to the appellant to demolish the construction of the second
floor of the said building and to remove the same within one month from the
date of receipt of the said notice. The appellant did not submit the report to
the said notice to Respondent No. 2. On 4th September, 1992 the appellant filed writ petition
challenging the said notices before the Calcutta High Court. A Single Judge on 24th September, 1992 passed interim order permitting the
appellant to complete construction of second floor on the condition that it
will not claim any equity what so ever. On 22nd December, 1992 the Single Judge allowed the writ
petition and set aside both the notices and permitted the appellant to
construct as per sanctioned plan of Gram Panchayat. Respondent No. 2 filed the
appeal challenging the judgment of the Single Judge.
On 20th March, 2002 the Governor of West Bengal
accorded approval under Section 37 (1) of the 1979 Act to the Land Use and
Development Control Plan (Development Plan) for Digha Planning Area.
By
notice (Annexure A) under Section 54 the appellant was directed to discontinue
further construction of the building forthwith and report compliance and if the
construction was not suspended forthwith and compliance reported within 24 hours,
it was stated that the competent authority would be compelled to remove the unauthorised
constructions as per provisions of the 1979 Act. And, by the subsequent notice
under Section 53 (1) the competent authority required the appellant to demolish
the construction undertaken by it.
It was
stated in the said notice that it was mandatory to obtain permission in writing
under Section 46 for undertaking development by way of construction on the
existing Hotel building, and that the appellant did not desist from carrying on
the work of construction despite notice to stop from doing so under section 54,
necessitating the issuance of the subsequent notice under Section 53 (1). A
combined reading of the two impugned notices under sections 54 and 53 (1) makes
it amply clear that the said notices have been issued only on the ground that
permission for development under Section 46, as required, had not been obtained
by the appellant; and on no other ground.
On the
pleadings of the parties, the perusal of the impugned notices under Sections 54
and 53 (1) and the arguments addressed at the Bar the Division Bench concluded
that two points emerged for consideration. Firstly, whether the permission
under Section 46 of the Act is required for development of the existing building
or for development of vacant land only; and secondly, whether permission for
development under Section 46 of the Act was required even in the absence of the
development plan.
The
Division Bench accepted the appeal and set aside the judgment of the Single
Judge. Both the points were decided against the appellant. While setting aside
the order of the Single Judge the Division Bench directed that the appellant be
given an opportunity to apply for permission under Section 46 of the 1979 Act
for making further construction upon the existing building in terms of the plan
sanctioned/approved by the then Competent Authority, Pudima II Gram Panchayat,
if the same is still in force. If such an application is made the concerned
Authority would dispose of the same in accordance with law by passing a
reasoned order after giving the appellant reasonable opportunity of being
heard. The appellant would be at liberty to take all points pleaded in the writ
petition and any other relevant points before the concerned authority. That
respondent No. 2 would not give effect to notice under Section 53 (1) of the
1979 Act for a period of eight weeks from the date and the appellant would
preserve status quo in respect of existing Hotel building during the aforesaid
period. On failure of the appellant to apply for permission under Section 46 of
the 1979 Act within the said period, the concerned authority was permitted to
proceed with the matter in accordance with law. The appellant thereafter filed
the special leave petition. While issuing notice on 3rd December, 1993 this Court forbade the appellant to construct over and
above the second floor of the building in question. Later on leave to file the
appeal was granted, and the interim order directed to continue.
Before
adverting to the arguments addressed before us it would be useful to refer to
the relevant provisions of the 1979 Act. Section 46 (1) provides as under:
"S.46.
Permission for development. (1) any person or body (excluding a department of
the Central or the State Government or any local authority) intending to carry
out any development on any land shall make an application in writing to the
Planning Authority or Development Authority for permission in such form and
containing such particulars and accompanied by such documents and plans as may
be prescribed." Sub-section (2) provides that on the filing of such
application and on payment of the development charge as may be assessed under
Chapter IX of the Act the Planning Authority or the Development Authority may pass
an order granting permission unconditionally or granting permission subject to
such conditions as it may think fit or refusing to grant the permission.
Sub-section (3)(i) provides that the concerned authority in dealing with the
application for permission shall have regard to:
"(a)
the provisions of the development plan, if it has come into operation; and (b)
the regulations, if any, made under Section 139 and applicable to the land on
which the development is intended to be carried out, the building rules, if
any, of a Panchayat or a Municipality in so far as they are not inconsistent
with the regulations as aforesaid and are applicable to such land, the
provisions of Land Use and Development Control Plan as forwarded to the State
Government under Section 31 or as modified thereafter, and any other material
consideration. " Section 2 (7) of the 1979 Act the word
"Development" has been defined to mean:
"'development'
with its grammatical variations means the carrying out of building,
engineering, mining or other operations, in, on, over or under land or the
making of any material change in any building or land or in the use of any
building or land and includes division of any land." Section 2 (3) of the
1979 Act provides that "building operations" includes amongst other
things:
"(a)
erection or re-erection of a building or any part of it,
(b) roofing
or re-roofing a building of any part of a building or an open space,
(c) any
material alteration or enlargement of any building,
(d) xxx
(e) xxx"
Section 2 (12) of the 1979 Act provides that "land" shall have the
same meaning as in the Land Acquisition Act, 1894 and shall include land
covered by water. Section 3(a) of the Land Acquisition Act, 1894 expresses that
land includes benefits to arise out of the land, and things attached to the
earth or permanently fastened to anything attached to the earth.
Section
51 gives the power to the planning authority of revocation and modification of
permission to development in terms thereof. Sub-sections (1) and (2) of Section
51 which are the relevant provisions thereof read as under:
"S.51.
Power of revocation and modification of permission to development. - (1) If it
appears to the Planning Authority or the Development Authority that it is
expedient, having regard to the development plan prepared or under preparation
or to be prepared and to any other material consideration, that any permission
to develop land granted under this Act or any other law, should be revoked or
modified, the Planning Authority or the Development Authority may, by order,
revoke or modify the permission to such extent as appears to it to be
necessary:
Provided
that-
(a) where
the permission relates to the carrying out of building or other operations, no
such order shall,-
(i)
affect such of the operations as have been previously carried out;
(ii) be
passed after these operations have been completed;
(b) where
permission relates to a change of use of land, no such order shall be passed at
any time after the change has taken place.
(2)
When permission is revoked or modified by an order made under sub- section (1),
if the owner claims from the Planning Authority or the Development Authority
within thirty days from the date of revocation or modification, an amount for
the expenditure incurred in carrying out the works after the grant of
permission and in accordance with such permission, which has been rendered
abortive by the revocation or modification, the Planning Authority or the
Development Authority shall, after giving the owner a reasonable opportunity of
hearing by an officer appointed by it in this behalf, and after considering the
officer's report, assess and offer such amount to the owner as it thinks
fit." Section 56 provides for interim provision pending preparation of
development plan, the same reads as under:
"S.56.
Interim provision pending preparation of development plan.- Where the Planning
Authority or the Development Authority, in the exercise of its functions and
powers with respect to any area under it, is required to have regard to the provisions
of development plan before such development plan has become operative, the
concerned authority shall have regard to the provisions which, in its opinion,
will be required to be included for securing the proper planning of the
concerned area." Section 52 of the 1979 Act provides for penalty for unauthorised
development or for use otherwise than in conformity with the development plan.
In terms of the said provision any person commencing, undertaking or carrying
out development, amongst other circumstances, without permission as required
under the Act is liable for punishment in terms thereof. Section 53 of the Act
provides for notice regarding unauthorised development or use otherwise than in
conformity with the development plan, requiring, amongst other things,
"demolition or alteration of any building or works" in terms of
sub-section (2)(a) therof. Section 54 of the Act empowers the concerned
authority to stop unauthorised development in terms thereof. Section 55 as well
empowers the concerned authority to require removal of unauthorised development
or use having regard to the development plan prepared, or under preparation or
to be prepared and to any other material consideration in terms thereof.
It
would be pertinent to refer to Section 137 of the Act which provides for
overriding effect in terms thereof. Sub-sections (1) and (2) thereof read as
follows:
"S.137.
Overriding effect.- (1) The provisions of this Act and the rules and
regulations made thereunder shall have effect notwithstanding anything
inconsistent therewith contained in any other law.
(2)
Notwithstanding anything contained in any other law- (a) when permission for
development in respect any land has been obtained under this Act, such
development shall not be deemed to be unlawfully undertaken or carried out by
reason only of the fact that permission, approval or sanction required under
any other law for such development has not been obtained; this shall not,
however, be construed as exemption to application for permission and of payments
of such fees and charges as required by such other law.
(b)
When permission for such development has not been obtained under this Act, such
development shall not be deemed to be lawfully undertaken or carried out by
reason only of the fact that permission, approval or sanction required under
such other law for such development has been obtained. " Shri Venugopal,
learned senior advocate appearing for the appellant contended that when a new
law regarding the regulation of building operations is brought into force, the
question arises as to what is the fate of planning permissions granted prior to
the new law being made applicable. According to him Section 46 provides for
planning permission being obtained only to new constructions to be made on
vacant plots or additions or alterations to be made to the existing buildings
where no planning permission has already been obtained. It has no application
whatsoever to cases where planning permissions have already been obtained prior
to the new law coming into force. That the continuance of building operations
pursuant to planning permission already obtained is governed by Section 51. If
a development plan has come into operation or an interim plan is in existence,
it is open to the planning authority to revoke or modify the existing planning
permission granted under the 1979 Act or under the planning permission granted
under any other law. If it revokes or modifies, it will have to pay
compensation to the extent that the owner has suffered loss on account of the expenditure
incurred in carrying out the works after the permission was granted. That it is
the duty of the planning authority to ascertain and take steps by issuing a
notice to the owner before revoking or modifying the planning permission
already in existence, no duty is cast upon the owner to intimate the planning
authority about the existence of his planning permission and then leave it to
the planning authority to decide whether to initiate steps to revoke or modify
or not to revoke or modify the planning permission. That principles of natural
justice have to be read in Section 51 and the authority was required to provide
an opportunity to the appellant before issuing notices under sections 53 and
54. That section 56 of the interim measures would have no application as
Section 51 is self-contained in regard to a planning permission which has
already been obtained under any other law. Section 137 would also have no
application as the main provision itself provides for the provisions of the Act
overriding where the provisions of any other law are inconsistent with the
provisions of 1979 Act. Section 137(2)(b) has nothing to do with planning
permission obtained under any other law prior to 28th November, 1990 (i.e.
before the Digha was declared as planning area) as otherwise the entirety of
Section 51 which requires a modification or revocation to render the planning
permission already obtained under any other law to be ineffective would be
rendered otioise and nugatory.
As
against this, counsel for the respondents Shri Raj Kumar Gupta argued that
raising a further construction over the existing first floor of Hotel Building
amounts to building operations and thus development in, on, over the land in
question, more particularly, when the same amounts to material alteration and
enlargement of the existing building and roofing of the same within the meaning
of Section 2 (3), (7), (12) and Section 46(1) of the Act. That being so,
permission under section 46 would clearly be required for development of
existing Hotel Building. That Respondent No.2 had notified in February, 1991
the Guidelines for Development in Digha Planning Area Interim Provisions under
Section 56 of the Act pending preparation of development plan for securing
proper planning and development of Digha Planning Area. Para 2 of Part II of
the said interim provision speaks that no person or body shall commence to
carry out any development and change of use of land including sub division or
lay out of plots without obtaining the permission of the authority in writing
in terms of section 46 of the Act. Para 8(1) of the said interim provision
provides:
"Para
8(1): No development shall be permitted within five hundred meters from the
high tide line of sea and all along the boundary line of the Planning Area provided
that the existing building including buildings under construction with the
approval of the Authority may be allowed to continue." That the building
in question falls within five hundred meters from the high tide line of sea and
thus violative of interim provisions.
Interim
provision under Section 56 of the Act was made to check sporadic, haphazard and
unplanned development in the Digha as the development plan was under
preparation. According to him Section 46 would apply even in the absence of
development plan, when the same is under preparation or to be prepared and the
appellant was legally bound to seek permission under section 46 of the Act from
respondent No.2 before raising further construction of second floor on the
existing Hotel Building. That there is no conflict between Section 51 and
Section 137(2)(b) of the Act. Both are applicable in two separate areas without
interfering with each other. That Section 137(2)(b) has a overriding effect.
Even if it is presumed that there is a conflict between section 51 and section
137(2)(b) then the latter would prevail.
In
terms of Section 46(1) any person or body intending to carry out any
development on any land is required to make an application in writing to the
planning authority or development authority for permission in such form
containing such particulars and accompanied by such documents and plans, as may
be prescribed. Under Section 2(7), the word "development" with its
grammatical variations means the carrying out of building, engineering, mining
or other operations in, on, over, or under land or the making of any material
changes in any building or land or in the use of any building or land and
includes division of any land. Building operations includes erection or re-
erection of a building or any part of it, roofing or re-roofing a building of
any part of a building of an open space. It also includes any material
alteration or enlargement of any building. The definition of the word
"land" in the Land Acquisition Act which has been made applicable to
the 1979 Act as well expresses that land includes benefits to arise out of land
and things attached to the earth or permanently fastened to anything attached
to the earth.
A
combined reading of the above provisions leaves no manner of doubt that the
raising of further construction over the existing first floor of the hotel
building clearly amounts to "building operations", and is thus
"development" in, on, over, the land in question. More particularly,
when the same amounts to material alteration and enlargement of the existing
building and roofing of the same within the meaning of sub-sections (3), (7)
and (12) of Section 2 and Section 46 of the Act. That being so, permission
under section 46 is clearly required for development of the existing hotel building.
In the
instant case, admittedly, development plan had not been notified when the
impugned notices were issued. The development plan has now been notified on
20th March, 2002. No notification for levy of development charges under section
102 of the Act had also been issued. But undeniably, the Act came into force in
the area in question, being Mouza Gobinda Basun, J.L. No.89, P.S.Digha, District
Midnapore with effect from 20th November, 1990 under a notification issued therefor.
The development plan in respect of the said area was under preparation which
has been admitted by the appellant in paragraph 9 of its affidavit in reply
before the High Court.
Respondents
as well in their Supplementary affidavit supported by annexures filed before
the High Court as well as before this Court have asserted that steps were being
taken to complete the outline development plan on or before 19th October, 1993,
and all necessary statutory steps had been taken for preparation of the plan
and imposition of development charges in the manners stated therein. In section
46(1) of the Act, it has clearly been provided that any person or body
intending to carry out any development of any land shall make an application
for permission in terms thereof. There is no indication in the said section
that the section would not apply in the absence of a development plan.
Sub-section 3(i) of section 46 provides that the concerned authority in dealing
with an application for permission would have regard to the provisions of the
development plan, if it has come into operation and any other material
consideration. [Clause (b) of section 46(3)(i) has now been substituted by Act
No.26/94].
It is
clear from the aforesaid section that the concerned authority while dealing
with an application for permission is to have regard to the provisions of the
development plan, if it has come into force, if not, then any other material
consideration, obviously implying that Section 46(1) would be applicable even
when development plan has not come into operation.
Apart
from this, Section 56 of the Act provides for interim provisions pending
preparation of development plan. In terms of the aforesaid provisions the
authority concerned while exercising the powers under the Act is required to
have regard to the provisions of development plan before such development plan
has become operative or which in its opinion would be required to be included
for securing the proper planning of the concerned area implying thereby that
the powers and functions therein are to be exercised by the concerned authority
under the Act pending preparation of development plan in terms of the aforesaid
provisions. Section 51(1) also indicates that power of revocation and
modification of permission is with regard to "development plan" already
prepared or "under preparation" or to be prepared and to any other
material consideration implying thereby that the permission to develop under
the Act would be required even when the development plan is under preparation
or to be prepared. It does not indicate that the permission under section 46
would not be required in the absence of a development plan in a particular
area.
Para
8(1) of the interim provisions says that no development shall be permitted
within five hundred meters from the high tide line of sea and all along the
boundary line of the planning area provided that the existing buildings
including buildings under construction with the approval of the authority may
be allowed to continue.
Construction
of the second floor over the existing first floor of the hotel building clearly
amounts to building operations and is thus development in, on, and over the
land in question. Section 46 makes it clear that the authority while dealing
with an application for permission is required to have regard to the
development plan if it has come into operation or any other material
consideration. Section 56 provides for interim provisions. If that be so, then
if any building operation is to be carried out which is against the interim
provisions of the development plan and then the building operations or
development is being carried out which falls within five hundred meters from
the high tide line could be permitted only with the approval of the authority
and not otherwise. For this reason the appellant was required to take
permission before carrying out building operations/development of the second
floor over the existing first floor of the hotel building.
Under
Section 51 the planning or the development authority has been clothed with the
power to revoke or modify a development plan prepared or under preparation, to
the extent it is necessary, if it appears and is expedient to do so. The
circumstances and the reasons under which the plan can be revoked or modified
have not been spelt out. It is left to the discretion of the authority. The
expression 'Expedient' employed is the key word in this Section. The word
'expedient' has not been defined under the Act. According to Webster's
Encyclopedic Unabridged Dictionary of the English Language 'expedient' means
'tending to promote some proposed or desired object'; 'fit' or 'suitable for
the purpose'; 'proper under the circumstances'. In the Words and Phrases
(Permanent Edition) Volume 15A Evidence-Eyewitness, the word 'expedient' has
been described as when used as an adjective as 'apt' and 'suitable to the end
in view'; 'furthering, or adapted to further, what is purposed';
practical
and efficient; as, an expedient change of policy; an expedient solution of a
difficulty; hence, advantageous. The word 'expedient' occurring in the statute authorising
modification, revocation under the circumstances would comprehend whatever is
suitable and appropriate for any reason for the accomplishment of the specified
object.
Mr. Venugopal
is right in his submission that under Section 51 no duty is cast upon the owner
to intimate the planning authority about the existence of his planning
permission and then leave it to the planning authority to decide whether to
initiate steps to revoke or modify or not to revoke or modify the planning
permission. It is the duty of the planning authority to ascertain to take steps
by issuing a notice to the owner before revoking or modifying the planning
permission already in existence. But present is not the case where the planning
authority in exercise of its power under Section 51 seeks to revoke or modify
the permission already granted because of expediency in achieving the objects
of the Act. It is being done because the construction being put up was against
the interim provisions of the development plan under preparation.
Section
51(1) talks of revocation or modification of the permission which is in
accordance with the provisions of the 1979 Act or any other law and not to the
cases where the development is being carried out in contravention of a development
plan or a development plan under preparation. Para 8(1) of the interim
provisions specifically says that no development can be permitted or allowed
from the high tide line of sea and in the case of existing building any further
development could be permitted to continue only after taking approval from the
authority. Section 51 does not talk of the building operation or development
which is contrary to the development plan or to interim provisions of
development plan under preparation. In this case the notice was issued as soon
as the construction of second floor commenced. Notices have not been issued for
the demolition of the ground and first floor. Proviso to Section 51 (1) would
therefore not apply. Sub-clause (2) of Section 51 would also not apply because
in terms of the such provision when any such permission is revoked or modified,
the expenditure incurred in carrying out the works has to be assessed and
offered to the owner from the public exchequer only if the owner suffers any
loss due to any expenditure incurred in carrying out the works after the grant
of permission which had been rendered abortive by reason of modification or
revocation. If the planning authority had asked the appellant to demolish the
ground and the first floor then it was liable to pay compensation to compensate
the owner under Section 51 (2), if at all, and not where the notice has been
issued asking the owner to stop the unauthorised construction which was being
put up.
Under
the circumstances, either of the sub-clauses (1) or (2) of Section 51 would not
be applicable and come into operation in the present case. Section 51 operates
in a totally different field.
Section
137 has an overriding effect. It provides that the provisions of the Act and
the rules and regulations made thereunder would have effect notwithstanding
anything inconsistent therewith contained in any other law. Sub-section (2)
also starts with a non- obstante clause "notwithstanding anything
contained in any other law". Clause (b) of sub-Section (2) of Section 137
provides that when permission for such development has not been obtained under
the Act, such development shall not be deemed to be lawfully undertaken or
carried out by reason only of the fact that permission, approval or sanction
required under any other law for such development has been obtained. The case
of the appellant is that they have obtained permission from the Panchayat under
the Panchayat Act and therefore permission continues to be valid even after the
coming into force of the 1979 Act. We do not agree with this submission. After
the applicability of the Act to Mouza Gobinda Basan with effect from 20th
November, 1990, any sanction obtained from the Panchayat which ran contrary to
the interim provisions of the development plan under preparation could not
continue by reason only of the fact that permission, approval or sanction under
any other law for the development had been obtained. Fresh approval was
required to be taken. Otherwise it would be negation of provisions of clause
(b) of sub-section (2) of Section 137.
There
is no conflict between Section 51 and section 137(2) as has been contended by
the counsel for the appellant. They operate in two separate fields without
interfering with each other.
The
High Court had also examined the case in the context of certain other
provisions of the 1979 Act, but since no arguments have been addressed on those
provisions and findings recorded by the High Court thereon, we are not dwelling
on the same. For the reasons stated above we do not find any merit in this
appeal and dismiss the same in terms of the order passed by the High Court,
which is quoted below. Wherever the words 'writ petitioner' occurs in the
quoted order the same may be read as the appellant.
".
. .in the interest of justice, should be given an opportunity to apply for
permission under Section 46 of the Act for making further construction upon the
existing hotel building in terms of the plan sanctioned/approved by the then
competent authority, Pudima II Gram Panchayat, if the same is still in force.
If any
such application is duly and properly filed by it before the concerned
authority, the latter shall dispose of the same according to law by passing
reasoned order after giving the writ petitioner all reasonable opportunity of
being heard. The writ petitioner shall be at liberty to take all the points
pleaded in the writ petition and any other relevant points it likes before the
concerned authority, would deal with the same according to law. We, however,
make it clear that we have not expressed any opinion about the merits of the
writ petitioner's contentions in the writ application.
In
order to enable the writ petitioner to avail itself of the opportunity granted
hereunder, the concerned authority shall not give effect to the impugned notice
under Section 53 (1) of the Act for a period of eight weeks from date. The writ
petitioner shall also preserve status quo in respect of the existing Hotel
building during the aforesaid period. On the failure of the writ petitioner to
apply for permission under Section 46 of the Act in terms of the opportunity
granted hereunder within the aforesaid period, the concerned authority shall be
at liberty to proceed with the matter according to law. If any such application
for permission is filed by the writ petitioner within the aforesaid specified
period in terms of this order, the authority concerned must ensure that the
writ petitioners might be in a position to make payment of development charge
as may be assessed under Chapter IX, if not already assessed if payable for the
purpose for consideration of the same under Section 46 (2) and for carrying on
development by way of further construction on the existing Hotel building in
terms of Section 45 of the Act, in case permission is granted therefore under
Section 46 (1) of the Act." The above directions would become applicable w.e.f.
1st April, 2002.
..J.
( V.
N. Khare ) ..J.
( Ashok
Bhan ) ..J.
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