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Altamas Kabir

This tag is associated with 19 posts

whether reservation was inapplicable to specialty and super-specialty faculty posts in the All India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.= While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.” the Nine-Judge Bench while discussing the provisions of Article 335 also observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts. 19. We cannot take a different view, even though it has been suggested that such an observation was not binding, being obiter in nature. We cannot ascribe to such a view since the very concept of reservation implies mediocrity and we will have to take note of the caution indicated in Indra Sawhney’s case. While reiterating the views expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of the two Civil Appeals in the light of the said views, which were also expressed in Dr. Jagadish Saran’s case, Dr. Pradeep Jain’s case, Dr. Preeti Srivastava’s case. We impress upon the Central and State Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney’s case and in this case, as also the other decisions referred to above, keeping in mind the provisions of Article 335 of the Constitution. 20. There will be no order as to costs.

Reported in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40578 REPORTABLE IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4500 of 2002   1 2 FACULTY ASSOCIATION OF AIIMS … APPELLANT   VS.   2 UNION OF INDIA & ORS. … RESPONDENTS   WITH CIVIL APPEAL NO. 5119 OF 2002       J U D G … Continue reading

Preventive detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as “the COFEPOSA Act, 1974″= whether a detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as “the COFEPOSA Act, 1974”, could be challenged at the pre-execution stage only on any of the five exceptions carved out by this Court in Addl. Secretary, Govt. of India vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496], or whether such challenge could be maintained on other grounds as well. = (i) That, the detention orders passed in respect of the several proposed detenues were challenged at the pre-detention stage, on grounds other than those indicated in Alka Subhash Gadia’s case (supra), and that the five exceptions carved out in Alka Subhash Gadia’s case were illustrative and not exhaustive. (ii) Whether any live link could be said to exist between the order of detention and the object sought to be achieved by treating the detention order as valid after the passage of several years ranging from three to sixteen years, during which period there is no record of the proposed detenue having undertaken any activities similar to the ones indicated in the detention order? In the absence of any live link, can the detention order survive? (iii) Whether having absconded or evaded the execution of the detention order, the proposed detenue could take advantage of such fact and challenge the detention order, which remains unexecuted? (iv) Once the Settlement Commission under the Customs Act accepts a settlement and provides complete immunity from prosecution under Section 127H of the Customs Act, could the detention order be passed or proceeded with? (v) Whether, when the ordinary law of the land is available, orders of preventive detention can be passed? (vi) Whether the provisions of Section 7 of the COFEPOSA Act, 1974, and Section 7 of the National Security Act, 1980, can be made the basis for making an order of preventive detention? = whether the order of preventive detention should at all be executed in the absence of any information that the proposed detenue had continued with unlawful activities. When the object of a preventive detention order is to prevent the proposed detenue from committing any offence, which is either against the national interest or the interest of society in the future and there is nothing on record to indicate that the proposed detenue had indulged in any such activity after the order of preventive detention was passed, it would, in my view, be illogical to pursue the execution of the detention order as the arrest and detention of the proposed detenue would become irrelevant and would not achieve the object for which it had been passed. The concept of a person being prevented from taking advantage of his own wrong cannot, in my view, be applied in the case of a detention order where the object of passing such an order is quite different from proceeding against a person charged with having committed a criminal offence. In my view, the continued validity of a detention order would depend on whether the proposed detenue was in the record books of the authorities as a person habitually indulging in activities which were against the national interest and society in general and that it was, therefore, necessary in the public interest to detain him for a period of one year to prevent him from continuing with such activities and not to punish him as such. = I am inclined to hold that not only is a proposed detenue entitled to challenge the detention order at the pre-execution stage, but he is also entitled to do so after several years had elapsed after the passing of the detention order on grounds other than the five grounds enumerated in Alka Subhash Gadia’s case(supra). I am also inclined to hold that orders of detention must not, as a matter of course, be read as an alternative to the ordinary laws of the land to avoid the rigours of investigation in order to make out a case for prosecution against the proposed detenue. I also hold that if a dispute leading to the issuance of the detention order is settled on the basis of a statutory provision such as Chapter XIVA of the Customs Act, 1962 and in terms of the Statute immunity from prosecution under Section 127H of the Act is given, the continuance of the order of detention would be completely illogical and even redundant. Accordingly, in such cases, the orders of preventive detention are liable to be quashed along with the Warrants of Arrest and Proclamation and Attachment issued under Sections 82 and 83 of the Code of Criminal Procedure.- In the light of the views expressed by me hereinbefore, the matters indicated hereinbelow are allowed and the orders of detention challenged therein are quashed on the ground that the said orders had become stale and the live link between the orders of detention and the object sought to be achieved by the said orders, stood snapped. Some of the orders had been made thirteen years ago and the very purpose of such detention orders had been rendered meaningless in the absence of any material that the proposed detenues had continued to indulge in activities which form the basis of the preventive detention orders. = The question whether the five circumstances specified in Alka Subhash Gadia case (supra) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive.[4] But that does not persuade me to hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law. 28. For all the above mentioned reasons, I regret my inability to agree with the opinion delivered by Hon’ble the Chief Justice of India. I dismiss all the matters.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40586  ALTAMAS KABIR, GYAN SUDHA MISRA, J. CHELAMESWAR |REPORTABLE | IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL) NO.137 OF 2011 1 2 SUBHASH POPATLAL DAVE … PETITIONER VS.   2 UNION OF INDIA & ANR. … RESPONDENTS WITH W.P. (CRL) NOS.35, 138, 220 & 249 OF 2011 AND W.P. … Continue reading

Service matter – voluntary retirement application pending – terminated service due to unauthorized absent from service by joining in other’s company = Before accepting the voluntary retirement No employee remain absent from his duties with out permission, pending his application for voluntary retirement, the employer can initiate departmental proceedings on founding guilty, his services may be terminated and in such case, the petitioner can not press for disposal his application for voluntary retirement application first by dropping the disciplinary proceedings = Voluntary Retirement Scheme was introduced and the Petitioner also applied on 7.4.1998 to avail the benefits of the Scheme. However, without waiting for acceptance of his application seeking voluntary retirement, the Petitioner proceeded to the United States and applied for further leave from 1.6.1998 to 30.6.1998. Such prayer was rejected and the Petitioner was asked by letter dated 26.6.1998 to join his duties from 1.7.1998. – the Petitioner moved the Kerala High Court in its writ jurisdiction for a direction upon the authorities to accept his prayer for voluntary retirement and to drop the disciplinary action initiated against him. – before the Division Bench in which Petitioner’s counsel strongly urged that his application for voluntary retirement be accepted. He also added a new dimension to his submissions that since there was no response from the side of the Respondent, his application for voluntary retirement must be deemed to have been accepted. Accordingly, the subsequent proceedings taken by way of disciplinary proceedings and the order of termination of services passed therein, must be held to be entirely invalid.= whether the order of dismissal passed against the Petitioner could be converted into an order of compulsory retirement. = It is well-established that a Voluntary Retirement Scheme introduced by a company, does not entitle an employee as a matter of right to the benefits of the Scheme. Whether an employee should be allowed to retire in terms of the Scheme is a decision which can only be taken by the employer company, except in cases where the Scheme itself provides for retirement to take effect when the notice period comes to an end. A Voluntary Retirement Scheme introduced by a company is essentially a part of the company’s desire to weed out the deadwood. 14. The Petitioner’s contention that his application for voluntary retirement came into effect on the expiry of the period of notice given by him must fail, since there was no such stipulation in the scheme that even without acceptance of his application it would be deemed that the Petitioner’s voluntary retirement application had been accepted. Once that is not accepted, the entire case of the Petitioner falls to the ground. The decision in Tek Chand’s case (supra) will not, therefore, have any application to the facts of this case, particularly when the Petitioner’s application for voluntary retirement had not been accepted and he had been asked to rejoin his services. The Petitioner was fully aware of this position as he continued to apply for leave after the notice period was over. 15. We are not, therefore, inclined to interfere with the orders impugned in the Special Leave Petition which is, accordingly, dismissed.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40508 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 31250 OF 2011 C.V. Francis …Petitioner Vs. Union of India & Ors. …Respondents J U D G M E N T ALTAMAS KABIR, CJI. 1. The Petitioner, who has appeared in person, was employed as a … Continue reading

Maharashtra Housing and Area Development Act,=Chapter VIII-A, which was introduced into the the Maharashtra Housing and Area Development Act, 1976, hereinafter referred to as “the 1976 Act”, in 1986, pertains to the acquisition of “cessed properties” for co-operative societies of occupiers. In view of the questions raised in the writ petitions, the matter was initially referred to a Bench of 7-Judges, but, thereafter, by order dated 20.02.2002, the matters have been referred to a Bench of Nine-Judges and are still pending decision. Since no final decision seems to be in the offing, the writ petitioners have filed IA No. 3 of 2012, for interim reliefs.= Whether MHADA has any obligation to provide similar accommodation to others in respect of the 30% surplus land, is a controversy which we need not go into and will surely be decided, whenever the Nine-Judge Bench sits to take up these matters. But for the purposes of this case, we regret that in spite of the inordinate delay in the working of the provisions of Chapter VIII-A of the 1976 Act, which was intended for the benefit of a certain section of tenants and occupants of cessed buildings, we are unable to grant the relief prayed for, as the same goes against the very grain of the provisions of Chapter VIII-A of the 1976 Act.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40501 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION I.A. NO. 3 OF 2012 IN WRIT PETITION (C) NO. 342 OF 1999 KAMLESH C. SHAH & ORS. …PETITIONERS Vs. STATE OF MAHARASHTRA AND ORS. …RESPONDENTS J U D G M E N T ALTAMAS KABIR, CJI. 1. Chapter VIII-A, which … Continue reading

Suit: Suit for declaration of title – Suit property sold by DW-4 by registered sale deed in 1968 – Petitioner claiming title over property on the basis of registered sale deed executed by DW-4 in 1974 – Held: DW-4 was not competent to execute the subsequent sale deed in 1974 in respect of same property – Petitioner therefore did not acquire any title to the suit property – Deeds and documents. The petitioner filed a suit for declaration of title to the suit property. The basis of petitioner’s claim was that suit property was sold by DW-4 to `SG’ by a registered deed dated 10.5.1974 (Ext.A-1) from whom the petitioner purchased the suit property in 1984. The defence of defendant was that DW-4 sold the suit property by a registered deed dated 22.5.1968 (Ext.B-1) to one `TH’ who then sold it on 17.5.1982 to `PP’. The defendant then purchased the suit property from `PP’ by registered deed in 1985. The trial court dismissed the suit and held that in view of registered deed dated 22.5.1968 by DW-4, she was no longer competent to execute the subsequent sale deed in respect of same property in favour of `SG’ through whom the petitioner claimed title. The First Appellate Court decreed the suit holding that the evidence of DW-4 was not reliable as she neither knew `TH’ nor the scribe of the sale deed. However, the High Court accepted the evidence of DW-4 and held that since Ext.B-1 was prior in point of time in relation to the subsequent document executed in favour of `SG’, the petitioner, who had acquired his title through `SG’, did not acquire any title to the suit properties. On such finding, the High Court reversed the decision of the first Appellate Court. Aggrieved petitioner filed special leave petition.=Dismissing the special leave petition, the Court Held: Ext.B2 was a crucial document and was admittedly anterior in point of time to Ext.A1 subsequently executed by DW-4 when she had already divested herself of title to the suit properties. The petitioner did not, therefore, acquire any title to the suit property and the suit was rightly dismissed. [Para 11] [629 -A-B] CIVIL APPELLATE JURISDICTIO : SLP (Civil) No. 4549 of 2008. From the Judgment & Order dated 18.4.2007 of the High Court of Andhra Pradesh at Hyderabad in Second Appeal No. 656 of 1997. A. Subba Rao for the Petitioner.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) No.4549 of 2008 Atla Sidda Reddy .. Petitioner Vs. Busi Subba Reddy & Ors. .. Respondent J U D G M E N T ALTAMAS KABIR, J. 1. Despite service of notice, the respondents have not appeared to contest the Special … Continue reading

the Parliament (Prevention of Disqualification) Act, 1959 as amended by the Amendment Act No.31 of 2006 has no application insofar as election to the office of the President is concerned. The disqualification incurred by a Presidential candidate on account of holding of an office of profit is not removed by the provisions of the said Act which deals with removal of disqualification for being chosen as, or for being a Member of Parliament. If, therefore, it is assumed that the office of Chairman, ISI is an office of profit and the Respondent had held the said office on the material date(s) consequences adverse to the Respondent, in so far as the result of the election is concerned, are likely to follow. The said facts, will therefore, be required to be proved by the election Petitioner. No conclusion that a regular hearing in the present case will be a redundant exercise or an empty formality can be reached so as to dispense with the same and terminate the Election Petition at the stage of its preliminary hearing under Order XXXIX Rule 13. The Election Petition, therefore, deserves a regular hearing under Order XXXIX Rule 20 in accordance with what is contained in the different provisions of Part III of the Supreme Court Rules, 1966. = Election Petition does not deserve a regular hearing.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ELECTION PETITION NO.1 OF 2012 PURNO AGITOK SANGMA … PETITIONER VERSUS PRANAB MUKHERJEE … RESPONDENT J U D G M E N T ALTAMAS KABIR, CJI. 1 1. The Petitioner herein was a candidate in the Presidential elections held on 19th July, 2012, the results … Continue reading

arbitration and conciliation act = In our view, this is not a case where money can be an adequate compensation, since the Appellant has apparently acquired a 50% interest in the Trade Mark in question, together with the goodwill of the business in relation to the products in which the Trade Mark is used. 39. We are, therefore, of the view that the High Court erred in reversing the order passed by the District Judge in ARBP No.576 of 2007 filed by the Appellant, under which the status-quo would have been maintained till the dispute was settled in arbitration. 40. We, accordingly, allow the Appeals, set aside the impugned judgment and order of the learned Single Judge

1     REPORTABLE   IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NOS.10434-10435 OF 2011 (Arising out of SLP(C)Nos.3391-3392 of 2011)     SURESH DHANUKA … APPELLANT     Vs.     SUNITA MOHAPATRA … RESPONDENT     J U D G M E N T     ALTAMAS … Continue reading

whether the Award of the learned Arbitrator tantamounts to a decree or not, the language used in Section 36 of the Arbitration and Conciliation Act, 1996, makes it very clear that such an Award has to be enforced under the Code of Civil Procedure in the same manner as it were a decree of the Court. The said language leaves no room for doubt as to the manner in which the Award of the learned Arbitrator was to be accepted.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9763 OF 2011 (Arising out of SLP(C) No.18509 of 2009) Leela Hotels Ltd. … Appellant Vs. Housing & Urban Development Corporation Ltd. … Respondent J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. This Appeal has been … Continue reading

Protection of Human Rights Act, 1993 – s. 12(a) – Complaint against police officials – Alleging physical torture of complainant’s son in police custody – State Human Rights Commission held that police personnel were responsible for violation of human rights and recommended compensation – State Government implementing order of the Commission – Writ petition against order of the Commission dismissed – On appeal, held: finding by the Commission and High Court regarding the torture of the complainant’s son in police custody, is justified – There is no material to refute the complaint of torture. Respondent No. 1 filed a complaint before State Human Rights Commission against the petitioner and respondent Nos. 3 to 5 (the police officials). She alleged that when her son had gone to the stall of `A’ a merchant, he was assaulted and injured by him. When he took her son to the police station, she was asked to wait. In the meantime `A’ and his family came to the police station. Police entertained the complaint of `A’ first. Thereafter police personnel assaulted the son of the complainant and also detained him. Complainant was threatened by the police officials not to reveal the incident to the court and not to make any complaint before court. Her son was released on bail. But once again he was taken to police station and assaulted. The allegations of the complainant were fully supported by her son, who was detained. The police officials, in reply, denied the allegations. In the report submitted by DCP it was mentioned that the son of the complainant demanded `hafta’ from `A’ and on refusal assaulted him; that he inflicted injuries with razor on himself; that he was a habitual offender and proceedings under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 were also commenced against him. The Commission disbelieved the defence of the police personnel and relying on the medical evidence opined that there was violation of human rights of the son of complainant at the hands of the petitioner and respondent Nos. 3, 4 and 5. The Commission recommended compensation of Rs. 45,000/- to complainant for police atrocity which was to be later recovered from the respondents and the petitioner. The petitioner filed writ petition before High Court, which was withdrawn on account of the understanding given to him by the State Government that it had decided not to implement the order passed by the Commission. The petitioner further filed subsequent writ petition, which was dismissed on the ground that there was no necessity to entertain the writ petition in view of the fact that the earlier writ petition was withdrawn; and that the State had not challenged the order and had also complied with the same. Therefore, the instant special leave petition was filed by the petitioner. =Dismissing the petition, the Court HELD: There is no reason to differ with the order of the State Human Rights Commission which was upheld by the High Court. There is sufficient material, which has been duly looked into by the Commission and the High Court, that the son of the respondent-complainant had been physically tortured while in custody in violation of the norms relating to custody of persons arrested or detained in connection with any offence. It is not for this Court to appraise the evidence further, since two forums have had a chance to look into the same. Except for a bare denial, there is no material on record to refute the complaint of torture of the son of the complainant by the petitioner and the respondent Nos. 3 to 5. It is clear that for whatever reasons, which could also include his antecedents, he was treated differently from `A’ against whom he had come to make a complaint and ended up being the accused. [Para 14] [110-G-H; 111-A-B] CRIMINAL APPELLATE JURISDICTION : SLP (Criminal) No. 6408 of 2006. From the Judgment & Order dated 30.8.2006 of the High Court of Judicature at Bombay in CRLWP No. 1839 of 2005. K.N. Rani for the Petitioner. Sushil Karanjakar, Sanjay Kharde and Asha Gopalan Nair for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(CRL) No.6408 of 2006 Jaywant P. Sankpal … Petitioner Vs. Suman Gholap & Ors. … Respondents J U D G M E N T ALTAMAS KABIR, J. 1. The Petitioner herein has challenged the order of the Bombay High Court dismissing the Criminal … Continue reading

Indian Partnership Act, Section 69(2)-bar under-scope of-explained. The question involved in the instant appeal was whether a suit by an unregistered firm to enforce a right not arising from a contract to which it was a party or arising from a contract entered into by it in connection with its business, but for the enforcement of a right arising out of a contract entered into by its partner when the firm was his proprietary concern which he continued to the partnership when constituted was maintainable against third party and not barred under the provisions of section 69(2) of the Indian Partnership Act. =Allowing the appeals, the court HELD. 1.1 Once registration is granted, even though after the filing of the suit, the suit should be held to be maintainable as from the date on which registration is granted subject to the law of limitation. Subsequent registration of the firm would not cure the initial defect in the filing of the suit. [527-F-G; 528-D] M/s.Shreeram Finance Corporation v. Yasin Khan and Ors, [1989] 3 SCC 476; D.D.A. v. Kochhar construction Work and Anr., [1998] 8 SCC 559 and U.P. State Sugar corporation Ltd. v. Jain Construction Co. and Anr., [2004] 7 SCC 332, relied upon. 1.2. After coming into the existence of the partnership and having transferred to the said partnership all his assets and liabilities of his proprietary concern, the erstwhile proprietor has no subsisting exclusive right to enforce the liability against others since such rights as he had as the proprietor vested in the partnership, Such a partner in his personal capacity could not sue the respondent firm for the amount in question, if the firm of which he was a partner was for reason of non-registration unable maintain a suit. He can not, therefore, either file a suit for claim any relief in the suit filed by the partnership asserting his right as the erstwhile proprietor. [529-F-G] Addanki Narayanappa and Anr. v. Bhaskara Krishnappa (D) & Ors., [1966] 3 SCR 400, relied upon. 1.3. The bar under Section 69(2) would apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the firm with a third party, the bar of Section 69(2) will not apply. [533-E-F] Haldiram Bhujiawala and Anr. v. Anand Kumar Deepak Kumar and Anr., [2000] 3 SCC 25, relied upon. Raptakos Brett & Co. Ltd. v. Ganesh Property, [1998] 7 SCC 184, referred to. 2.1. Observations made and principles laid down in a judgment if obiter do not have the force of a binding precedent. However, that does not preclude the Court from appreciating the reasons given for the principles laid down, and if the reasoning appears to the Court to be cogent, and merits acceptance, the same may be accepted by the Court and applied to the case before it. V.A. Mohta, B.J. Aggarwal, S.G. Hartalkar, J.S. Wad, Ashishwad, Neeraj Kumar, Arvind Gupta and Simanti Chakrabarti for the Appellant. S.V. Deshpande, Prashant Kumar, V. Sheshagiri and Rahul Prasanna Dave for the Respondents.=, 2006(8 )Suppl.SCR524 , , 2006(12 )SCALE232 , 2007(4 )JT564

CASE NO.: Appeal (civil) 4092 of 1998 PETITIONER: Purushottam & Anr RESPONDENT: Shivraj Fine Art Litho Works & Ors DATE OF JUDGMENT: 07/11/2006 BENCH: B.P. Singh & Altamas Kabir JUDGMENT: J U D G M E N T B.P. Singh, J In this appeal by special leave the plaintiffs are the appellants. Their suit against … Continue reading

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