SUNIL B. SHARMA & ORS. vs SOUTH DELHI MUNICIPAL CORPORATION & ORS.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment pronounced on : 04.12.2023
+ LPA 328/2020 and CM APPL. 27959/2020
SUNIL B. SHARMA & ORS. … Appellants
versus
SOUTH DELHI MUNICIPAL
CORPORATION & ORS. …. Respondents
Advocates who appeared in this case:
For the Appellants : Mr Vikas Singh, Sr. Advocate with Mr Gaurav Sharma, Mr Prateek Bhatia and Mr Dhawal Mohan, Advocates.
For the Respondents : Ms Puja Kalra, Standing Counsel with Mr Virendra Singh and Ms Ankita Sharma, Advocates for Respondent No.1/MCD.
Mr R.K. Dhawan, Standing Counsel with Mr Vinod Teny and Ms Vanshika Agarwal, Advocates for Respondent No.2/DDA.
Mr Sanjiv Sen, Sr. Advocate with Mr Rohit Khurana, Advocate for Respondent No.3.
Ms Pragya Barsaiyan, Advocate for Mr Gautam Narayan, ASC for Respondent No.4/GNCTD.
CORAM:
HON’BLE MR JUSTICE RAJIV SHAKDHER
HON’BLE MS JUSTICE TARA VITASTA GANJU
[Physical Court Hearing/ Hybrid Hearing]
JUDGMENT
TARA VITASTA GANJU, J.:
1. The present Appeal has been filed assailing the validity of the Judgment dated 31.08.2020 passed by the learned Single Judge [hereinafter referred to as Impugned Judgment] whereby the learned Single Judge disposed of the Writ Petition filed by the Appellants.
2. The challenge briefly arises in respect of the Right of Way [hereinafter referred to as ROW] and its measurement in respect of a portion of the Outer Ring Road which forms part of Kalkaji Colony in the vicinity of Nehru Place, New Delhi.
3. The Appellants are residents of Kalkaji and owners of plot no. CC-23, Kalkaji, New Delhi-110019, who made various representations with respect to illegal constructions made by their neighbour, i.e., Respondent No. 3 who resides at Plot No. CC-24, Kalkaji, New Delhi-110019 [hereinafter referred to as said property].
4. The Appellant’s had initially filed a Petition before the learned Single Judge seeking quashing of the building plan as sanctioned by the Respondent No. 2/MCD as well as in respect of other approvals granted to Respondent No. 3 with respect to said property. By the impugned judgment, this challenge was repelled by the learned Single Judge. Aggrieved by the order of the learned Single Judge, the Appellants have filed this Appeal.
5. It is the contention of the Appellants that the construction of a hotel/guest house on the said property has been carried out by Respondent No. 3 in violation of the Master Plan for Delhi, 2021 [hereinafter referred to as Master Plan], Zonal Development Plans as appearing in the Master Plan as well as the Unified Building Bye Laws for Delhi, 2016 [hereinafter referred to as Building Bye Laws] and the sanctioned building plan.
5.1 The Respondent No. 1 had granted permission to Respondent No. 3 for running of a guest house by its letter dated 07.01.2008 subject to the terms and conditions set forth therein and upon payment of mixed use charges which, admittedly, have been paid.
6. Mr Vikas Singh, Senior Advocate who appears on behalf of the Appellants has made the following submissions:
(i) The road abutting the property of the Appellants is a 9 meter wide service road which is separated from the Outer Ring Road by a wall of about 7 feet in height and that the Outer Ring Road is at a much higher level than the service road. Photographic evidence of the same was handed over during submissions.
(ii) In terms of Master Plan and the guidelines for Mixed Land Use thereunder, certain activities are permitted which can be exercised in a residential colony, based on Mixed Use Regulations which forms part of Para 15.0 of Master Plan. Since the said property is in a colony named Kalkaji, which falls into category C as per the Master Plan, the mixed use [residential and commercial use], guest houses and Banks are permitted to operate subject to certain conditions, which include a minimum ROW.
(iii) Reliance was placed upon the following extract of Master Plan in this regard to submit that since Kalkaji is a Rehabilitation colony, 13.5 meter ROW is requisite:
15.7 OTHER ACTIVITY
15.7.1
Subject to the general conditions given in para 15.4 and additional conditions given in para 15.7.3, the following public and semi public activities shall also be permitted in the residential plots abutting roads of minimum ROW prescribed in 15.7.2, whether or not the road is notified as mixed use street:
c. Guest house (including lodging houses) irrespective of number of rooms.
15.7.2 The minimum ROW of a street or stretch of road on which the above-mentioned other activities are permissible is as follows:
.
In C & D colonies: 18 m ROW in regular residential plotted development, 13.5m ROW in rehabilitation colonies and 9m ROW in regularized unauthorized colonies, resettlement colonies, Walled City, special area and urban villages; and in pedestrian shopping streets (of less than 6m ROW).
(iv) It is the submission of the Appellants that as per Respondent No.1 the road abutting the Appellants property is Outer Ring Road which has a ROW of more than 64 meters. However, a service road of 9 meters abuts the Appellants property and not the Outer Ring Road. This service road has a 7 feet high boundary wall and hence Respondent No. 1 has wrongly added this measurement to the ROW.
7. The Respondents were represented by their respective Counsel during the hearing. It was submitted on behalf of the Respondent No.1/MCD and Respondent No.2/DDA that there is no infirmity in the Impugned Judgment and that the Respondent No. 3 is operating a guest house as per the Mixed Use Regulations under Master Plan after obtaining requisite permissions and sanctions.
7.1 Mr Sanjiv Sen, Senior Advocate who appears on behalf of Respondent No. 3 has contended that:
(i) Respondent No. 3 has been in possession and occupation of the said property since year 2002 and has been running a guest house in the said property since the year 2008. The Appellants have only approached the Court in the year 2020, thus, the Petition is barred by delay and latches.
(ii) It was further submitted that the Petition appears to be personal vendetta on the part of the Appellants against the Respondent No. 3. Most of the properties on the said lane from Houses No. CC-21 to CC-31, Kalkaji, New Delhi are properties being used for commercial activity as guest houses/hotels or Banks. Yet, only the said property has been singled out by the Appellants.
(iii) The road abutting the property appears in the Mixed Use Streets – Central Zone which forms part of the Master Plan at item number 12 which has a ROW of 64 meters and reads as follows:
Item
Heading
ROW
(Mtrs)
12
Outer Ring Road from EPDP Road to Petrol Pump
64
(iv) As per Para 15.3.2 read with Para 15.7 of Master Plan, the colony named Kalkaji in which the said property is situated, falls in the category C and is a Rehabilitation colony, mixed use activities (other than retail shops) in this colony are permissible in plots abutting roads of a minimum 13.5 ROW subject to conditions in Para 15.7 of the Master Plan. Since, Kalkaji is a rehabilitation colony the requirement is met as the Mixed Use Streets in the Master Plan itself state that the Outer Ring Road in front of this property has a ROW of 64 meters. There is thus no infirmity in the permission granted to Respondent No. 3 to operate the guest house.
7.2 Ms Puja Kalra, who appeared on behalf of Respondent No.1/MCD, relies on a status report dated 14.01.2021 and has submitted that the said property is a residential building which has constructed basement and floors upto the 3rd floor which has been built after obtaining a sanctioned building plan dated 12.03.2005. It is further contended that:
(i) The said property falls in category C of colonies and abuts the Outer Ring Road which has been declared as a Mixed Land Use issued by Urban Development Department by Notification bearing No. F.13/46/2006 UD/16071 dated 15.09.2006.
(ii) The permission for operating a guest house was also obtained by Respondent No. 3 on 07.01.2008 after payment of the mixed use charges and the Guest House has been running in the said property since 2008 with requisite permissions.
(iii) The permissible FAR for this area as per Master Plan is 225 sq. mts. and the FAR of said property was 224.22 sq. mts. hence within the limit prescribed by law.
(iv) The Respondent No. 3 had obtained a Completion Certificate/NOC to operate a guest house from the said property.
7.3 Mr R.K. Dhawan, who appeared on behalf of the Respondent No.2/DDA has submitted that so far as ROW is concerned the Respondent No. 2/DDA in its reply dated 08.10.2020 to the RTI application made by the Appellants on 09.09.2020 [hereinafter referred to as RTI Reply], has stated that the ROW of Outer Ring Road is 45 meters as per the Zonal Development Plan of Planning Zone-F under MPD, 2001 and Master Plan [hereinafter referred to as Zone-F Plan].
8. Affidavits/Counter-Affidavits were filed by Respondent No.1/SDMC [now MCD] and by Respondent No.3 and an Additional/Rejoinder Affidavit dated 10.02.2021 [hereinafter referred to as Rejoinder Affidavit] was filed by the Appellants in response to Respondent No.1s Affidavit.
8.1 In the Rejoinder Affidavit filed by the Appellants, the Appellants have relied on the RTI Reply provided by Respondent No.2/DDA which shows that ROW of Outer Ring Road is 45 meters, to submit that the ROW of service road/approach road abutting the Appellants’ property is 9 meters only and Outer Ring Road does not abut the said property. On the issue of delay, the Appellants contended that they had made various complaints/representations from time to time, to Respondent No.1/MCD, however, there was no action taken by the Respondents on these representations. Aggrieved by the inaction on the part of the Respondents, the Appellants then approached this Court in the year 2020. It was further submitted in the Rejoinder Affidavit that the side set-backs which are appearing in the said property are beyond what has been sanctioned as per Master/Zonal Plan(s).
9. The learned Single Judge has in the Impugned Judgment held that the said property will be entitled to benefits provided to colonies falling under Categories ‘C’ and ‘D’ and that a minimum ROW required is 18 meters/13.5 meters. Since, the Outer Ring Road has a ROW of 64 meters, it has been held that there is no defect in the sanction of the building.
10. The Appellants have challenged the interpretation as given by the learned Single Judge to the definition of ROW. The Appellants have contended that the road abutting the said property is 9 meters. approach road/service road and does not form part of the mixed land use roads as notified in the Master Plan or the Zonal Development Plan. Relying on the definition of the term boundary as defined in the Black’s Law dictionary and other dictionaries, it is contended that the main Outer Ring Road is separated from the road abutting the said property by a 7 ft. high boundary wall and that the learned Single Judge has wrongly relied on the judgment of a Single Judge of this Court in Arvind Singhal & Ors. V. Max Therapiya Limited & Ors1 to dismiss the Petition filed by the Appellant.
11. The issue before this Court, as noted above, is whether the ROW of 64 meters is applicable to the Outer Ring Road from EPDP Road to petrol pump [which forms part of the mixed use streets in the Central Zone], can be said to include the ROW of the service road/approach road abutting the said property.
12. Para 15 of the Master Plan provides for areas which are although residential in nature, can be used for commercial activities. Para 15.2.2 of the Master Plan sets forth the types of mixed use as commercial i.e., retail shops; Other Activity [Public and Semi-Public facilities] listed in Para 15.7.1 of the Master Plan where a minimum ROW is prescribed; and Professional Activity. Para 15.2.2 of the Master Plan reads as follows:
15.2.2 TYPES OF MIXED USE
Subject to the provisions of this chapter, the following three broad types of mixed use shall be permissible, in residential premises:
i) Commercial activity in the form of retail shops as per conditions given in para 15.6 in plots abutting notified mixed use streets.
ii) “Other activity” broadly in the nature of ‘Public and Semi-Public’ facilities listed in para 15.7.1 and as per conditions specified in para 15.7, in plots abutting roads of minimum ROW prescribed in para 15.3.2.
iii) Professional activity as per conditions specified in para 15.8. The above mentioned types of mixed use shall be subject to the general terms and conditions specified in the succeeding paragraphs.
12.1 Para 15.7.1 of the Master Plan defines Other Activity to include guest house (including lodging houses) irrespective of their number use as follows:
15.7 OTHER ACTIVITY
15.7.1 Subject to the general conditions given in para 15.4 and additional conditions given in para 15.7.3, the following public and semi-public activities shall also be permitted in the residential plots abutting roads of minimum ROW prescribed in 15.7.2, whether or not the road is notified as mixed use street:
c. Guest house (including lodging houses) irrespective of number of rooms.
12.2 Para 15.3 of Master Plan identifies the mixed use areas in existing urban areas of Delhi and their extent and states in Para 15.3.1 (v) of the Master Plan that plotted developments in certain colonies listed at Annexure-I shall be treated as Rehabilitation colonies, Kalkaji being one such colony. Para 15.3 of the Master Plan in this regard states:
15.3 IDENTIFICATION OF MIXED USE AREAS IN EXISTING URBAN AREAS AND URBANIZABLE AREAS
The identification of mixed use areas / streets in both the urbanized/urban as well as urbanizable areas of Delhi would be as follows:
15.3.1 In already urbanized/urban areas, mixed use shall be permissible in the following areas:
i) On all streets/stretches already notified by the competent authority.
ii) Residential areas and streets/stretches earlier declared as commercial areas/streets or where commercial use was allowed in MPD-1962 shall continue such use at least to the extent as permissible in MPD-1962.
iii) Commercial activity existing from prior to 1962 in residential areas, subject to documentary proof thereof.
iv) Identification and notification of mixed use streets in future shall be based on the criteria given in para 15.3.2 and as per procedure prescribed in para 15.3.3, and given wide publicity by the local bodies concerned.
v) Plotted development in pre-1962 colonies listed in Annexure I shall be treated as rehabilitation colonies in their respective categories (A to G) for the purpose of this Chapter.
[Emphasis is ours]
12.3 The extent of mixed use permissible in colonies falling in categories C and D is further clarified in Para 15.3.2 of the Master Plan to state that other activity in terms of Para 15.7 of the Master Plan shall be permissible in roads abutting a minimum of 13.5 meters ROW in rehabilitation colonies as follows:
15.3.2 The extent of mixed use permissible in various categories of colonies is further clarified as follows:
..
2. In colonies falling in categories C & D
Mixed use in the form of Retail shops
Other activity” in terms of para 15.7 shall be permissible in plots abutting roads of minimum 18m ROW in regular plotted development, 13.5m ROW in rehabilitation colonies, Special Areas, and urban villages, subject to conditions in para 15.7.
[Emphasis is ours]
12.4 The Outer Ring Road from EPDP Road to the petrol pump was notified as a mixed use street in the central zone as per notification bearing number F.13/46/2006 UD/16071 dated 15.09.2006. It is not disputed that the said property is in a colony which falls in the C category of colonies and is a rehabilitation colony. Thus, the required ROW for use as Other Activities such as guest house is 13.5 meters as per the Master Plan.
12.5 For guest houses, the following additional conditions as set forth in Para 15.7.3 of the Master Plan are also applicable:
15.7.3 The above mentioned public and semi-public activities shall be subject to the following overriding conditions on the general conditions prescribed in preceding paras
..
v) Guest Houses operating in plots abutting streets of prescribed minimum ROW in Special Area and in plots abutting Master Plan roads and zonal plan roads shall be permissible up to 100% of built up area and the limits on the size of the plot shall not apply. Provided that except in LBZ and Civil Line Bungalow Zone, Guest houses that were operating validly under provisions of MPD, prior to 7.9.2006 would continue to the extent as was permissible at that time.
13. Para 12.3 of the Master Plan titled as ROADS defines the different types of roads in Delhi. Apart from National Highways, roads are classified into Arterial Roads, Collector Roads and Local Streets. The ROW for Arterial Roads is greater than 30 meters while for Collector Roads is 12 to 30 meters and for the Local Streets the ROW is between 9 to 12 meters.
13.1 ROW forms part of the definitions of Local Streets under this Para of the Master Plan. It is stated that for all categories of Roads, the full cross-section should be developed and that the development of roads ought to start from the extreme ends of the designated ROW. Sub Para 4 of Para 12.3 of the Master Plan under the heading Local Streets defines ROW for planning purposes as:
i) Right of way (ROW) is a reserved space for movement of all modes of traffic which includes pedestrian, cycles, cycle rikshaws, buses, cars, scooter, taxis, autorickshaws, etc. ROWs are shown on the Zonal and Master Plan of Delhi with designated widths. Space for services, underground / overground utilities, public conveniences and amenities, vendors drinking water kiosks, etc, must be planned and reserved within the ROW, without encroaching on walking spaces or motor vehicle movement space, as per street design regulations.
[Emphasis is ours]
13.2 Thus, ROW as defined in Para 12.3(4) of the Master Plan is space which is reserved for movement of all modes of traffic from pedestrian to vehicular.
13.3 Respondent No.1/MCD in its affidavit/status report has also relied on the definition of ROW as per the Building Bye Laws to submit that the entire passage-way is included from one building line to the opposite building line and that the ROW in front of the said property is 64 meters.
14. A Coordinate Bench of this Court in the Nyaya Bhoomi Vs. GNCT of Delhi and Anr.2 has in a matter pertaining to the BRT corridor in Delhi interpreted and defined ROW in the following terms:
7. Since a controversy on facts has been raised for the first time we would highlight that as per the Master Plan for Delhi – 2021 apart from National Highways, arterial roads of two kinds (i) Primary and (ii) Other Primary are conceived of, and lastly sub-arterial roads and local streets. The plan contemplates BRT Corridors on primary roads having ROW, meaning Right of Way, 30 metres and above and BRT Corridors on Other Primary Roads having ROW 45 – 60 metres.
8. Thus, issues pertaining to BRT Corridors have not to be decided with reference to the width of a road but have to be decided with reference to the span of a Right of Way.
9. What is a Right of Way? It is the distance between the straight line of houses on either side of a road. Thus, one must not confuse the Right of Way and a road. The former is wider and the latter narrower.
[Emphasis is ours]
14.1 A Single Judge of this Court, in Arvind Singhal case has for calculating Right of Way/ROW, directed that the total width of the road starting from the service road to the main (Ring) road has to be taken into account. Additionally, it was held that the Department of Town Planning has clarified that the service road has to be taken into account for calculating the ROW. Paragraph 71 of the judgment is extracted below:
71. It is also the case of the defendant Nos.1 and 2 that the suit premises are situated on the Aurbindo Marg which is 100 feet wide road in addition to 40 feet service lane. As per the Department of Town Planning and stand taken by the MCD in various litigations, for calculating the ROW, the total width of the road starting from the service lane till the ring road has to be taken into account. Defendant No. 1 in support of the same, during the course of the arguments, has filed the counter affidavit filed by the MCD in another matter being W.P.(C) No. 553 of 2013 titled “Samudayik Kalindi Kalyan Samiti & Anr. Vs. SDMC & Ors”. The relevant paras 6 to 11 are reproduced hereunder:
“6. That the present writ could not have been filed in this Hon’ble High Court seeking quashing of NOC granted to respondent No.6 in view of Section 347 B and 347 E of the DMC Act, 1957.
7. That the answering respondent had granted the No Objection Certificate only after all the defects and discrepancies in the premises were fixed and no longer in violation of any building laws or the Master Plan of Delhi 2021 (hereinafter referred to as MPD 2021).
8. That the premises is abutting the ring road which is 210 feet wide and therefore as permissible activity under the MPD 2021.
9. That the answering respondent sought a clarification from the Department of Town Planning whereby it was clarified that the Ring Road abuts the premises in question. Therefore, a nursing home can be permitted to operate as per the MPD 2021.
10. The Department of Town Planning has clarified that for calculation of distance from the premises, the total width of the road starting from the service lane till the ring road has to be taken into account.
11. That it is not the first time when the answering respondent has calculated the width of the road in the manner stated above. Such method has been followed by the answering respondent for a long time and it has been uniformly implemented in all the areas which come under the jurisdiction of the answering respondent.”
[Emphasis is ours]
14.2 Arvind Singhal case thus clearly sets forth that the Ministry of Housing and Urban Affairs/Department of Town Planning has a formula for calculating the ROW and the total width of the road starting from the service lane till the Master Plan road has to be taken into account.
15. The Appellants have contended that the learned Single Judge has wrongly relied on the Arvind Singhal case and has erred in not taking into consideration that the road may end at the boundary wall instead of a building. Contending that the road abutting the said property is separated by a boundary wall which is 7 feet high and not considering this aspect, is an error on the part not only the learned Single Judge, but also the authorities.
16. We are unable to agree with these contentions of the Appellants. The definition of ROW in the Master Plan does not provide for any break in the ROW by a boundary wall or otherwise. It clearly sets forth that ROW is wider than the road as it is reserved for all modes of traffic which includes pedestrians, cycles and for public convenience and amenities underground as well as overground without encroaching on the spaces for vehicular movement.
17. A Coordinate Bench in the Nyaya Bhoomi case has defined the ROW as the distance between a straight line of houses on either side of the road and that it is wider than the road. The judgment in the Arvind Singhal case is based on the clarification by the Department of Town Planning and the MCwD for calculating the ROW, the total width of the road starting from the service lane till the ring road is to be taken into account. Since the said property is abutting the ring road, which is admittedly between 45 and 60 meters wide, the requisite ROW of 13.5 meters is clearly available. The road ahead of the property concerned is thus more than 13.5 meters leaving no cause to challenge the sanctions granted by the Respondent authorities.
18. In any event, the exercise of judicial review by this Court is not an unrestricted discretion. Unless the Court finds that the exercise is arbitrary, irrational or an abuse of a power, it is not subject to judicial review.
19. On matters of policy and requiring technical expertise, the Court would leave the matter for decision of those qualified to address the issues [See Federation of Rly. Officers Assn. vs. Union of India3 and State of T. N. vs. National South Indian River Interlinking Agriculturist Assn.4].
20. A Coordinate Bench of this Court while adjudicating upon a matter concerning ROW in respect of mixed used permission has similarly held that the scope of interference of this Court should be limited in nature if it involves administrative decisions founded upon technical expertise and multi-facet factors. See extract from P.V. Kapur Vs. Union of India5 which is reproduced below:
97. While on the scope of interference by the Court this Court in DLF Universal Ltd. v. Greater Kailash-II Welfare Association, 127 (2006) DLT 131 (DB) disapproved of the Single Judge directing DDA to consider afresh parking requirements for Savitri Cinema on criteria which would be applicable only to a new cinema hall, the DB was of the view that:
“the criteria such as location and size of plot, proximity to residential structures, educational and religious institutions etc cannot be made applicable to the renovation/modification of a cinema hall which has been in existence for 30 years in a commercial area and in a site earmarked for a cinema under Master Plan for Delhi, 2001.”
98. A general note of caution was administered in the following terms:
“93. The judiciary must therefore exercise self-restraint and eschew the temptation to act as a super legislature or a Court of Appeal sitting over the decisions of the administrative authorities. By exercising self-restraint it will enhance its own respect and prestige. Of course, if a decision clearly violates some provision of the law or Constitution or is shockingly arbitrary in the Wednesbury sense, it can be struck down, but otherwise it is not for this Court to sit in appeal over the wisdom of the legislature or the executive.”
99. In the same vein in MIG Cricket Club v. Abhinav Sahakar Education Society, (2011) 9 SCC 97 the Supreme Court observed as under:
“It is well settled that the user of the land is to be decided by the authority empowered to take such a decision and this Court in exercise of its power of judicial review would not interfere with the same unless the change in the user is found to be arbitrary. The process involves consideration of competing claims and requirements of the inhabitants in present and future so as to make their lives happy, healthy and comfortable. We are of the opinion that town planning requires high degree of expertise and that is best left to the decision of the State Government to which the advice of the expert body is available. In the facts of the present case, we find that the power has been exercised in accordance with law and there is no arbitrariness in the same.
[Emphasis is Ours]
21. The interpretation thus, as given to ROW both in terms of the Master Plan and by the Department of Town Planning as well as the MCD is that the ROW includes the complete area between two buildings lying opposite from each other. We find no reason to interfere with this interpretation as given to the definition of ROW, keeping in mind where technical expertise is required, the Court would leave the matter to those qualified in this field.
22. So far as concerns the issue raised by the Appellants that the sanctioned building plan is more than the prescribed permissible limit, Para 15.7.3 of the Master Plan reproduced in paragraph 12.5 above provides that guest houses abutting Master Plan road [such as Outer Ring Road], 100% of the built-up area is permitted to be used and the limits on the size of the plot do not apply.
23. In view of what has been discussed above, we find no reason to interfere with the Impugned Judgment. The Appeal and all pending Application(s) are, therefore, dismissed.
(TARA VITASTA GANJU)
JUDGE
(RAJIV SHAKDHER)
JUDGE
DECEMBER 04, 2023/r
1 2014 SCC OnLine Del 2050 [Taken up in appeal but not interfered with See: Order dated 18.07.2018 in FAO(OS) 467/2014]
2 2012 SCC OnLine Del 5841
3 (2003) 4 SCC 289
4 (2021) 15 SCC 534
5 (Del) [DB] 2020 LAWPACK(Del) 75250
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