Bombay High Court High Court

Mukesh vs State Of Maharashtra on 16 June, 2010

Bombay High Court
Mukesh vs State Of Maharashtra on 16 June, 2010
Bench: B. P. Dharmadhikari
                                       1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                     
                WRIT PETITION NO.  795  OF  2010




                                             
     Mukesh s/o Zanaka Paserkar,




                                            
     aged 45 years, occupation -
     Private, resident of 12 Signal
     Borkar Nagar, Ghat Road,
     Nagpur.                                   ...   PETITIONER




                                 
                     ig  Versus

     1. State of Maharashtra
        through the District Deputy
                   
        Registrar, Cooperative 
        Societies, Hindustan Colony,
        Amravati Road, Nagpur.
      


     2. The Election Returning Officer,
        Nagpur Mehtar Vividh Udhesia 
   



        Sahakari Sanstha Maryadit,
        having office c/o District
        Deputy Registrar, Cooperative





        Societies, Hindustan Colony,
        Amravati Road, Nagpur.

     3. Nagpur Mehtar Vividh Udhesia
        Sahakari Sanstha Maryadit,





        Nagpur, through its President/
        Secretary, having office at 
        Budhwar Bazar Complex, in 
        front of Raj Vilas Talkies, Mahal,
        Nagpur 440 002.




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     4. Sanju s/o Murli Khare,
        aged about 41 years,




                                                                      
        occupation - Service,
        r/o 83, Durga Nagar,




                                              
        Koradi Road, Nagpur.                     ...   RESPONDENTS


     Shri N.A. Vyawahare, Advocate for the petitioner.




                                             
     Shri A.S. Sonare, AGP for respondent No. 1.
     Shri V.N. Morande, Advocate for respondent No. 2.
     Shri K.V. & S.V. Deshmukh, Advocate for respondents No. 3 & 4.
                         .....




                                  
                     ig     CORAM :  B.P. DHARMADHIKARI, J.

JUNE 16, 2010.

ORAL JUDGMENT :

Heard Shri Vyawahare, learned counsel for the

petitioner, Shri Sonare, learned AGP for respondent No.1, Shri

Morande, learned counsel for respondent No.2 and Shri

Deshmukh, learned counsel for respondents No. 3 & 4.

2. By this writ petition filed under Articles 226 and 227

of Constitution of India, the petitioner has challenged the order

of Respondent No. 2 dated 03.02.2010 rejecting his objection to

Election programme of Respondent No. 3 Society as published

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on 02.01.2010. The contention of the petitioner is that until and

unless all contesting candidates deposited the necessary amount

as per the circular dated 01.09.2007 issued by Commissioner &

Registrar for Co-operation and for that purpose the Bye-laws of

Respondent No. 3 society are amended, the elections cannot be

permitted to take place. This Court has on 16.02.2010 issued

notice and vide order dated 04.03.2010 the elections are

permitted to proceed further but the same have been subject to

further orders in the matter. Accordingly, after hearing parties,

writ petition came to be admitted on 23.03.2010 and it has been

thereafter listed for final hearing.

3. The Circular dated 01.09.2007 is not in dispute.

According to Shri Vyawahare, learned counsel, by the impugned

order, Respondent No. 2 – Election/Returning Officer has held

that that circular is not applicable to Respondent No. 3 – Society

and hence there was no need to either amend the bye-laws or to

hold elections after compliance with that circular. He points out

that Respondent No. 3 – society is a Urban Credit Cooperative

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Society and hence the circular is applicable to it fully. According

to him, defence that the society is not Urban Credit Cooperative

Society, but a Salary Earners’ Society and, therefore, circular is

not applicable to it, is artificial and unsustainable. He has

invited attention to relevant provisions of Maharashtra

Cooperative Societies Act, 1960 (hereinafter referred to as the

Act) particularly to Rule 10 of 1961 Rules framed under the said

Act with contention that classification or categorization of

societies as per said rule is only illustrative and not exhaustive.

He has also urged that the last column i.e. column No. 3 of table

mentioned in Rule 10 clearly reveals the intention to govern all

societies of type stipulated therein by same law and the

description of societies therein cannot be treated as

determinative for the purposes of application of said circular. He

has relied upon the judgment of Division Bench of this Court in

the case of Baburao vs. Brihmadeo, reported at 1980 Mh. L.J. 75,

for this purpose.

4. He has invited attention to provisions of Section 14 of

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the Act to show that said Act empowers the Registrar to direct

amendment to the bye-laws of a society. In addition, he has also

pointed out the provisions of Section 79-A to urge that in the

interest of members and depositors, powers thereunder can also

be exercised and such direction is sustainable thereunder. He

has invited attention to said circular to point out that it has been

issued with the object of forcing personal interest in the Directors

while advancing loans to members of Society by pointing out

that deposits mandated thereby of such Directors with the

society are also jeopardized if bad loans are sanctioned. Looking

to this object of circular, the same is applicable to all Urban

Credit Cooperative Societies i.e. to all societies which sanction

loans to its members. He has placed heavy reliance upon the last

para of said circular pointing out that it expects various officers

like Assistant Registrars, District Deputy Registrar to point out

the obligations imposed by it to respective societies in their

jurisdiction and to insist for amendment to its bye-laws on these

lines before approving any Election Programme. He states that

the circular emphasizes that the election programme can be

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approved only after bye-laws are amended in consonance with

said circular. As the efforts made by the petitioner to secure

compliance with that circular failed and as Respondents No. 1 &

2 have failed to discharge their statutory obligations, according

to him, the petition deserves to be allowed and after the bye-

laws are properly amended, an Election Programme needs to be

published. He further states that the order of this Court dated

04.03.2010 and 23.03.2010 are within the knowledge of

Respondent No. 3 – Society and as the elections are already

subjected to further orders of this Court in the present matter,

the elected candidates are also aware that their tenure is subject

to further orders in the matter.

5. Lastly, he has invited attention to the fact that though

added Respondent No. 4 has filed return separately, Respondent

No. 3 has not placed any separate affidavit on record after the

matter came to be admitted. He has stated that before

admission, the stand of Respondent No. 3 – Society was in

consonance with the circular dated 01.09.2007 and that stand

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has still not been changed in accordance with law. Affidavit

allegedly filed by newly elected secretary on its behalf taking a

different stand therefore can not be looked into.

5A. Shri Sonare, learned AGP for respondent No. 1 and

Shri Morande, learned counsel for respondent No. 2 – Election

Officer have opposed the petition. They contend that Circular

dated 01.09.2007 is not relevant in the present matter because

Respondent No. 3 – Society is not a Urban Credit Cooperative

Society at all and it is only a salary earner’s society. According to

them, the circular specifically restricts itself to Urban Credit

Cooperative Societies and as salary earner society is not covered

thereunder, compliance therewith is not warranted. The

publication and further prosecution of Election Programme and

rejection of objection raised by the petitioner is, therefore,

sought to be justified by them.

6. Shri Deshmukh, learned counsel for respondents No. 3

& 4 has at the outset stated that Respondent No. 4 is the

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President elected in elections conducted pursuant to impugned

election programme. He further states that earlier, Respondent

No. 4 was not party and stand of Respondent No. 3 – Society

taken at that time (before election) is not relevant. His

contention is, Respondent No. 3 – Society has after issuance of

“Rule”, filed separate affidavit through one Gyaneshwar Badhel

and the said person is the Secretary newly elected in place of the

petitioner. He points out that the said affidavit filed on behalf of

Respondent No. 3 Society is in accordance with the affidavit filed

by Respondent No. 4 – President and it cannot be argued that

there is no final stand of Respondent No. 3 – Society on record.

7. He has also invited attention to provisions of Section

79-A and Section 14 of Maharashtra Cooperative Societies Act to

urge that these provisions are not at all attracted in present

matter. According to him, the circular dated 01.09.2007 cannot

be connected with any of these provisions. He has invited

attention to provisions of Rule 13 of 1961 Rules framed under

Maharashtra Cooperative Societies Act to show the procedure to

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be followed for amendment of Bye-laws by a society or then by

Cooperative department, when the society refuses to abide by

directions issued by the department in this respect. He has

placed reliance upon the judgment in the case of Eknath Hinge

vs. State of Maharashtra, reported at 1985 Mh. L.J. 727, to urge

that the amendment to bye-laws is possible only in the mode and

manner prescribed under Section 14 read with Rule 13.

According to him, the instructions issued on 01.09.2007 are at

the most executive instructions and the same do not have force

of law. He has relied upon the judgment in the case of Chief

Commercial Manager, South Central Railway vs. G. Ratnam,

reported at (2007) 8 SCC 212, for the said purpose. He has

further pointed out that under Section 79A of the Act, the power

to issue directions has been given to State Government and the

State Government cannot delegate that power either to Registrar

or any other subordinate authority. He points out that party

aggrieved by action of Registrar under Section 14 or Rule 13 has

a remedy of filing appeal under Section 152 of the Act and then

a revision before the State Government under Section 154 of

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Maharashtra Cooperative Societies Act. Inviting attention to

Circular dated 01.09.2007, the learned counsel contends that by

said circular, directions are given to its subordinate by the

issuing authority and those directions are not to Respondent No.

3 or any other society. In this background, he contends that

when Registrar exercises powers under Section 14 or Rule 13,

that authority is discharging quasi judicial functions and in

discharge of those functions, it cannot be guided by its superiors.

The reliance is being placed upon the judgment of this Court in

the case of Karvenagar S.G.R.S.M. vs. State of Maharashtra,

reported at 1989 Mh.L.J. 320. He further points out that the

circular, therefore, is in conflict with the provisions of Section 14

and in any case it at the most directs amendment to Model Bye

Laws and not to the Bye-laws of Respondent No. 3 – Society. He

further relies upon the judgment of this Court in the case of

Kartarsingh vs. State of Maharashtra, reported at 1993 Mh. L.J.

1206, to urge that bye-laws come into force only after its

registration. He has further contended that this Court has not

made election subject to result of writ petition and the elected

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Managing Committee members, therefore, ought to have been

joined as party respondents. According to him, newly elected

Managing Committee members are also entitled to an

opportunity of hearing before this Court. He further states that

the orders of this Court subjecting the elections to its further

orders at the most can stop the respondents from taking plea of

availability of alternate remedy to the petitioner and it does not

mean that newly elected members can be unseated behind their

back. He has cited the judgment of this Court in the case of

Ramkishan vs. State of Maharashtra, reported at 1994 Mh. L.J.

369, in support of his submission. Lastly, the learned counsel

argues that the present petitioner never sought any amendment

to bye-laws but he is party to a resolution by which the Election

Officer came to be appointed. According to him, even if circular

dated 01.09.2007 is held to be applicable, at the most the

contesting candidates have to maintain a compulsory security

deposit of Rs.5,000/- with Respondent No. 3 – Society and their

actual compulsory deposits with it are much more than that. He

invites attention to the provisions of Bye-laws particularly clause

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18 to show that amount in deposit towards saving schemes like

Shakti and Anivarya Bachat cannot be refunded. He, therefore,

states that even on merits, the election of newly elected members

is in accordance with law and circular dated 01.09.2007.

8. In his reply, Shri Vyawahare, learned counsel has

stated that Respondent No. 3 – Society is very much party before

this Court and the elections have been conducted by Respondent

No. 2 who is/was also aware of the orders passed by this Court.

According to him, the Secretary and President both elected

because of permission granted by this Court to proceed further

with the election, are aware of the interim orders and hence they

represent the interest of Society as also of new committee, and

hence it is not necessary for the petitioner to join each newly

elected member as respondent. He further points out that the

circular dated 01.09.2007 has not been challenged by

Respondents No. 3 & 4 and hence said circular needs to be

implemented. According to him, Respondent No. 2 ought to

have obtained clarification from his superiors before rejecting the

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objection of the petitioner on technical grounds.

9. With the assistance of learned counsel, I have perused

the records. It is to be noted that there is no challenge to

circular dated 01.09.2007 before me though Respondents No. 3

& 4 have attempted to show that said circular has no legal

sanction and, therefore, can at the most constitute an executive

instruction. More over the State Government is joined as party

through District Deputy Registrar of Co-operative Societies at

Nagpur. The authority issuing the circular is also not party

respondent.

10. The perusal of said circular reveals that it is issued by

the Commissioner for Cooperation and Registrar of Cooperative

Societies at Pune. It does not expressly point out any statutory

provision under which the same has been issued and it also does

not disclose any direction by any superior authority/ State

Government to the issuing authority for that purpose. The

Commissioner for cooperation has noted that a review of

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working of various Credit Cooperative Societies in State was

undertaken as the amounts received as deposits were not being

returned. The faulty procedure for distribution of loan was

found to be the reason thereof. The authority also states that the

Directors of such societies do not have their amounts as deposits

with the societies and in many cases such directors have

themselves taken the loan indiscriminately without considering

the interest of society or depositors. To avoid such working and

tendency, the authority found it necessary to impose a condition

that such Directors must always maintain particular amount as

deposit with the society. The authority has found that

imposition of such condition will constrain such directors to

function more seriously and with responsibility. Thereafter the

authority has stated that to secure this purpose, the provisions of

model bye-laws laying down qualification for contesting

elections to the post of Director are being amended and a

condition of maintaining deposit of stipulated amount always

with such society is being imposed. The types of societies

depending upon the area of their operation has been then

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mentioned with amount of deposit against each such type of

society. It is not in dispute that if this requirement is held

applicable to society like the Respondent No. 3 – Society, the

person desirous of contesting election to the post of Director of

such society will be required to have & maintain deposit of

Rs.50,000/-. The circular further states that if said Director

withdraws this amount of deposit before expiry of his term as

Director, he will be disqualified to continue as Director

thereafter. It is also mentioned that no loan can be borrowed or

disbursed against security of such deposit. In the penultimate

para, the said authority has stated that all Urban Credit

Maharashtra Societies in State Government should accordingly

get their model bye-laws modified. In last para, obligation has

been cast upon subordinate authorities to bring this decision to

the knowledge of respective cooperative societies functioning in

their jurisdiction with further direction to ascertain whether such

societies got their bye-laws modified before sanctioning their

Election Programmes. The circular at its ends lays down that if

the bye-laws are found to be not so amended, the Election

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programme be approved only after the amendment is carried

out. For the purposes of Credit Cooperative Societies of Other

Backward Classes and Women, the said security deposit is stated

to be 10% of what is laid down in its earlier para. Thus for

Directors of such a Society, the said security deposit works out

to Rs.5,000/-. It is, therefore, apparent that the circular

nowhere directly calls upon any society to amend its Bye-laws.

The model bye-laws are mentioned only in penultimate para of

said circular but then again it is qualified by all Urban Credit

Cooperative Societies in the State. It is, therefore, apparent that

the word “model” appearing in that para cannot be construed to

mean that there was direction to amend model bye-laws. After

each society gets registered, it has its own bye-law and when

this position is read with said last para, it clearly indicates an

intention that all societies must amend their bye-laws in order to

bring it in conformity with Circular dated 01.09.2007.

11. The provisions of Section 79-A of the Act show that it

deals with powers of Government to give direction in public

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interest. The said section enables State Government to issue

instructions in public interest or for the purposes of securing

proper implementation of co-operative production and other

development programmes approved or undertaken by

Government, or to secure the proper management of the

business of the society generally, or for preventing the affairs of

the society being conducted in a manner detrimental to the

interests of the members or of the depositors or the creditors

thereof. The directions can be issued on receipt of report from

the Registrar or otherwise. It is to be noted that the circular

dated 01.09.2007 nowhere states that the obligation sought to

be imposed therein are in view of any direction issued by the

State Government. The said circular is issued by the

Commissioner for Cooperation and Registrar of Cooperative

societies and that authority is not made a party. It is, therefore,

prima facie apparent that this circular cannot be viewed as

direction falling under Section 79-A of the Act.

12. Section 13 of the Act deals with amendment of Bye-

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laws of the society. As per its sub-section (1), no amendment to

Bye-law to society is valid until registered under the Act and the

procedure prescribed for securing such registration and

amendment is also laid down therein. Section 14 gives power to

Registrar to direct amendment of Bye-laws. Sub-section (1)

requires Registrar to form an opinion that it is necessary or

desirable in the interest of such society to have amendment and

thereafter the Registrar can call upon the society to make the

amendment. If the society thereafter fails to make amendment

within time stipulated, the Registrar can after giving society an

opportunity of being heard and after consulting such State

Federal Society as may be notified by State Government, register

the amendment and issue to the society such amendment

certified by him. After the date of registration of amendment in

this manner, bye-laws of society are deemed to have been

amended. However, even such amendment is made subject to

appeal. It is, therefore, apparent that even when the power is

sought to be exercised, amendment cannot be brought into force

unilaterally and steps as contemplated by Section 13 or Section

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14 are required to be undertaken. In this matter, even if it is

presuming that steps under Section 13 are not initiated, as

Respondent No. 3 is opposing such amendment, still under

Section 14(2) before registering such amendment, the Registrar

has to grant an opportunity of hearing to Respondent No. 3,

consult federal society and thereafter only the amendment can

be registered. These steps are not taken in the present matter.

The circular does not contemplate an amendment to Bye-laws

automatically but only directs that societies should get their own

Bye-laws amended accordingly. The circular is dated 01.09.2007

and neither the petitioner – Society nor the department has

taken any steps thereafter till date to have its bye-laws amended

accordingly.

13. It has been pointed out to this Court that on

03.08.2009, the Managing Committee of Respondent No. 3

society has passed a resolution appointing Election Officer for

the purposes of elections in dispute before this Court. The

petitioner before this Court was the Secretary and was party to

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this resolution dated 03.08.2009. Even after 03.08.2009, he has

not taken any steps to secure compliance with said circular dated

01.09.2007, The Election programme has been published by

Respondent No. 3 on 02.01.2010 and present writ petition has

been filed thereafter by him on 11.02.2010.

14. The petitioner has made a grievance for the first time

before Respondent No. 2 vide his representation dated

03.02.2010. In this representation, he has made reference to the

fact that for elections due for the year 2010-2015, 118 members

have filed their nominations and has requested Election Officer

to verify whether every nomination form is with deposit slip of

Rs.10,000/- and then he has invited attention to requirement of

Government circular dated 01.09.2007. He has requested the

Returning Officer to reject all nomination papers if they are not

fulfilling such security deposits. On 03.02.2008, the Returning

Officer has rejected this representation by pointing out that

Circular dated 01.09.2007 does not apply to Respondent No. 3 –

Society and there is no provision in sanctioned Bye-laws of the

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society for such deposit . There is no dispute that sanctioned

bye-laws do not contain a provision requiring the aspirant to

deposit the amount of Rs.10,000/- with the society. In the light

of provisions of Section 14(2) discussed above, it is apparent that

the elections already scheduled could not have been made to

wait till the Bye-laws are changed in consonance with the

circular dated 01.09.2007.

15. The Returning Officer has found that the circular

dated 01.09.2007 is not applicable to respondent No. 3 –

Society. The Bye-laws of respondent No. 3 – Society show that it

is classified as Resource society with its sub classification as

Credit Resource Society. This is in consonance with Rule 10,

Entry 8(a) of the 1961 Rules. The registration certificate dated

02.11.2007 produced by Shri Vyawahare, learned counsel also

reveals a similar classification and sub-classification. The

column 3 of Rule 10 gives examples of society falling in said

clause or sub-clause and those illustrations are “agricultural

credit, thereafter urban credit and salary earners societies”. It is,

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therefore, clear from bare examples given therein that Urban

Credit Societies as also salary earners societies are covered by

this classification and sub-classification. The perusal of

judgment in the case of Baburao vs. Brihmadeo, (supra) shows

consideration of this aspect in paras 7 & 8. The Division Bench

has concluded that the definition in Section 2 of Maharashtra

Cooperative Societies Act, is though in relation to objects of

those societies or the nature of their business or their

composition but not in relation to territorial limits of their

operation. The contention that the Act does not contemplate any

society known as “Urban Society” was found to be misconceived.

The Division Bench has further found that the classification of

societies is illustrative and not exhaustive. In para 8, provisions

of Rule 10 are looked into and again Division Bench has found

that classification and sub-classification of various societies

under Rule 10 are the natural concomitant to section 2 and

pertain to the societies defined in that section. The classification

and sub-classifications under rule 10 is found also merely

illustrative and not exhaustive. Here, as already observed above,

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the examples appearing in column 3 against entry 8 of rule 10

include Urban Credit society and salary earner society. Thus, the

contention raised before the Division Bench there can not have

be raised now in the light of entry as it stands after 04.01.1985.

16. Though the respondents have come up with a case that

it is salary earners society, the perusal of bye-laws of the society

also show that it extends credit/ loan to its members. It,

therefore, cannot be accepted that it is only salary earners

society and the circular dated 01.09.2007 is not meant for it.

The said circular and its objects are already stated by me in brief

above and it is apparent that contingencies which laid to its

issuance can also arise in working of Respondent No. 3 – Society.

The reason that said circular is not applicable to Respondent No.

3 – Society as given by Respondent No. 2, therefore, is

unsustainable.

17. Shri Deshmukh, learned counsel for respondents No. 3

& 4 has already pointed out that the elected members always

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have and had compulsory deposit of more amount than what is

contemplated by circular dated 01.09.2007. The Bye-laws of the

society show that only person belonging to Sweeper Caste can

become its member. Thus, the society is of members belonging

to Backward Class. Hence, the amount of deposit to be

maintained by its Directors has to be 10% of Rs.50,000/- i.e.

Rs.5,000/- each. The perusal of return of Respondent No. 4

particularly document R-IV (2) with it shows that the elected

members maintain deposit in excess of the said sum. Bye-law

No. 18 also shows that the amount in deposit by them under

schemes by name “Shakti Bachat and Anivarya Bachat” cannot

be refunded or allowed to be withdrawn till the member

continues to be a Member. It is, therefore, apparent that even in

absence of express stipulation in the Bye-laws of Respondent No.

3 society, the purpose of Circular dated 01.09.2007 has been

achieved in present matter. Thus the policy envisaged therein

already stands implemented and, in any case, is not being

defeated.

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18. In this situation, it is apparent that no interference is

warranted in writ jurisdiction in the matter. Various contentions

about said circular or scheme therein advanced by rival parties

can not be considered effectively as neither State Government

nor Authority issuing the same are parties before me. The

contention that elected members ought to have been made party

respondents in writ petition, therefore, has not been examined

by me and the issue is left open for consideration in appropriate

case. Writ Petition is thus dismissed. Rule discharged. However,

there shall be no order as to costs.

JUDGE

*******

*GS.

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