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1990 (4) TMI 311
Issues Involved:
1. Delay in the Central Government's disposal of the representation violating Article 22(5) of the Constitution of India.
2. Delay in passing the detention order and its impact on the nexus between the incident and the detention.
3. Delay in executing the detention order and its effect on the genuineness of the detention order.
Detailed Analysis:
1. Delay in the Central Government's Disposal of the Representation:
The appellant argued that the delay by the Central Government in rejecting the representation amounted to a violation of Article 22(5) of the Constitution of India. Article 22(5) mandates that the detaining authority must communicate the grounds of detention to the detained individual at the earliest opportunity and allow them to make a representation against the order. The appellant's representation was made on 27-9-88 and rejected by the Central Government on 2-11-88, indicating a delay of one month and five days. The Court examined whether this delay constituted a violation of Article 22(5). It was noted that the Central Government, although not the detaining authority, is legally obliged to consider the representation expeditiously. The Court referred to precedents such as *Khudiram Das v. The State of West Bengal* and *Tara Chand v. The State of Rajasthan*, which emphasized the necessity of prompt consideration of representations to avoid rendering the detention unconstitutional. However, in this case, the Court found that the representation was processed expeditiously, with no negligence or callous inaction, thus rejecting the appellant's contention of delay.
2. Delay in Passing the Detention Order:
The appellant contested the delay between the alleged smuggling incident on 17-9-87 and the passing of the detention order on 21-5-88, arguing that this delay rendered the grounds for detention stale and disconnected. The Court considered whether the delay severed the nexus between the incident and the detention order. Citing cases like *Lakshman Khatik v. State of West Bengal* and *Rajendrakumar Natvarlal Shah v. State of Gujarat*, the Court noted that mere delay does not automatically invalidate a detention order unless the grounds are found to be stale or illusory. The Court examined the explanation provided in the counter-affidavit, which detailed the procedural steps taken before issuing the detention order, including the processing of case records and consultations with the Screening Committee. The Court found the delay reasonably explained and emphasized the necessity of considering the potentiality of the detenu repeating the prejudicial activities. Thus, the Court concluded that the delay did not invalidate the detention order.
3. Delay in Executing the Detention Order:
The appellant also argued that the delay in executing the detention order, which was passed on 21-5-88 but executed only on 6-8-88, indicated a lack of genuineness in the detention order. The Court assessed whether this delay undermined the subjective satisfaction of the detaining authority. The counter-affidavit explained that efforts to apprehend the appellant were made immediately after the order was passed, but the appellant's deliberate attempts to evade arrest caused the delay. The Court referred to precedents like *Sk. Serajul v. State of West Bengal*, which highlighted that delay in arresting the detenu must be satisfactorily explained to maintain the genuineness of the detention order. In this case, the Court found the explanation reasonable and rejected the contention that the delay in execution affected the genuineness of the detention order.
In conclusion, the Court dismissed the appeal, finding no merit in the contentions regarding delays in the representation's disposal, the passing of the detention order, or its execution.
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1990 (4) TMI 310
The High Court of Jammu and Kashmir disposed of writ petitions raising common legal questions. The Court considered laches but allowed the petitions as delay should not prevent relief if the claim is just. The petitions were allowed based on a previous decision regarding the Income-tax Act, 1961. No costs were awarded.
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1990 (4) TMI 309
Issues Involved:
1. Legality of the appellant's compulsory retirement.
2. Whether the compulsory retirement was in public interest or for punitive reasons.
3. Compliance with Rule 74(b)(ii) of the Bihar Service Code.
4. Violation of principles of natural justice and Article 311 of the Constitution.
Detailed Analysis:
1. Legality of the appellant's compulsory retirement:
The appellant was compulsorily retired by a notification dated October 26, 1988, issued under Rule 74(b)(ii) of the Bihar Service Code. The appellant argued that the order was punitive and not in public interest, as it was based on a memorandum dated October 6, 1988, which cited grave financial irregularities. The High Court dismissed the appellant's writ petition without considering these contentions, leading to the present appeal.
2. Whether the compulsory retirement was in public interest or for punitive reasons:
The appellant contended that the order of compulsory retirement was a disguised punishment based on allegations of misconduct, which were not communicated to him, thus violating the principles of natural justice. The respondent-State argued that the order was made in public interest under Rule 74(b)(ii) and did not cast any stigma on the appellant's service career. The Court noted that the basis of the order was the memorandum and the report of the Deputy Development Commissioner, which indicated serious financial irregularities. This demonstrated that the order was punitive and not genuinely in public interest.
3. Compliance with Rule 74(b)(ii) of the Bihar Service Code:
Rule 74(b)(ii) allows the appointing authority to retire a government servant in public interest after giving three months' notice or equivalent pay. The Court found that the order, although couched in innocuous terms, was based on allegations of misconduct and was therefore punitive. The respondent-State's reliance on the report and memorandum without providing the appellant an opportunity to defend himself contravened the procedural requirements and principles of natural justice.
4. Violation of principles of natural justice and Article 311 of the Constitution:
The Court emphasized that even if an order is framed in innocuous language, it can be challenged if it is based on misconduct and intended as punishment. The appellant was not given an opportunity to respond to the allegations, violating Article 311(2) of the Constitution. The Court held that the order was not made bona fide and was for collateral purposes, making it arbitrary and illegal.
Conclusion:
The Supreme Court quashed the impugned order of compulsory retirement, holding it as punitive and not in public interest. The Court directed the reinstatement of the appellant with full back wages and costs, emphasizing that the order violated principles of natural justice and Article 311 of the Constitution.
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1990 (4) TMI 308
Issues:
1. Interpretation of s. 254(2) of the IT Act regarding rectification of mistakes apparent from the record.
2. Application of s. 80AB and s. 80T in computing deductions for income tax purposes.
3. Tribunal's authority to rectify orders under s. 254(2) based on subsequent applications.
Analysis:
The judgment by the High Court of Calcutta involved the interpretation of s. 254(2) of the IT Act, specifically concerning the rectification of mistakes apparent from the record. The Tribunal had forwarded a question regarding the applicability of s. 80AB and s. 80T in determining deductions for income tax purposes for the assessment year 1977-78. Initially, the Tribunal allowed the Revenue's appeal based on the retrospective effect of s. 80AB introduced by the Finance Act. However, a subsequent application was filed requesting rectification under s. 254(2), which led to a change in the Tribunal's original order. The Tribunal, in the revised order, relied on a decision by the Madras High Court to support the application of s. 80T in calculating the deduction from capital gains.
The Court emphasized that the power under s. 254(2) is limited to rectifying mistakes apparent from the record and does not extend to re-evaluating the merits of the case or considering new interpretations of the law. In this case, the Tribunal had delved into the merits of the case rather than rectifying a mistake on the face of the record. Therefore, the Court held that the Tribunal erred in invoking s. 254(2) to change its original decision. Consequently, the question of law was answered in the negative and in favor of the Revenue, with no order as to costs.
The judgment highlights the importance of distinguishing between rectifiable mistakes and substantive legal interpretations in the context of s. 254(2) of the IT Act. It underscores that the power to rectify orders is not a tool for re-arguing cases or introducing new legal theories but is limited to correcting clear errors evident from the record. The decision also underscores the significance of precedent in interpreting tax laws, as demonstrated by the reliance on the Madras High Court's ruling to support the application of s. 80T in this case. Overall, the judgment provides clarity on the scope and limitations of rectification under s. 254(2) while reinforcing the importance of adhering to established legal principles and precedents in tax matters.
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1990 (4) TMI 307
Issues Involved:
1. Authority of High Court/Administrative Tribunal to direct the State Government to frame or amend statutory rules.
2. Restriction of promotions from feeder cadre to higher cadre based on specialty irrespective of seniority.
3. Validity and constitutionality of Rule 6 of the 1961 Rules.
4. Implementation of High Court observations by the State Government.
5. Arbitrary nature of the Special Rules and their compliance with Articles 14 and 16 of the Constitution.
Issue-wise Detailed Analysis:
1. Authority of High Court/Administrative Tribunal to Direct the State Government to Frame or Amend Statutory Rules:
The judgment clarified that it is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of areas exclusively within the domain of the executive under the Constitution. The High Court's observations in Civil Writ Petition No. 4532 of 1971 were advisory in nature and not binding on the State Government. The Tribunal erred in treating these observations as binding directions. The Court emphasized that the judiciary cannot usurp the functions assigned to the executive under the Constitution, nor can it indirectly require the executive to exercise its rule-making power in any specific manner.
2. Restriction of Promotions from Feeder Cadre to Higher Cadre Based on Specialty Irrespective of Seniority:
The Special Rules, framed under Article 309 of the Constitution, categorized posts in Class IV and Class V and restricted promotions from Class V to Class IV within their respective categories. Despite a common seniority list for Class V officers, promotions were category-wise, rendering seniority irrelevant outside the specific category. The Court noted that while this system might cause dissatisfaction, it was within the State Government's discretion to frame such rules.
3. Validity and Constitutionality of Rule 6 of the 1961 Rules:
Rule 6 of the 1961 Rules prescribed special eligibility qualifications for promotions to Class IV posts, which some Veterinary Assistant Surgeons challenged as ultra vires and unconstitutional. The High Court, in its earlier judgment, upheld Rule 6, stating that prescribing qualifications for promotions is permissible. However, the Court acknowledged that the discretionary power to select individuals for specialized training could lead to favoritism, but this did not render the rule itself ultra vires. The aggrieved officers had the option to challenge specific instances of favoritism or denial of training opportunities.
4. Implementation of High Court Observations by the State Government:
The Administrative Tribunal directed the State Government to amend the Special Rules in line with the High Court's observations, merging all categories in Class IV and Class V and making promotions based on seniority alone. The Supreme Court found that the Tribunal overstepped its authority by issuing such directions, as the High Court's observations were merely advisory and not binding. The judgment emphasized the separation of powers, reiterating that the judiciary should not interfere with the executive's rule-making powers.
5. Arbitrary Nature of the Special Rules and Their Compliance with Articles 14 and 16 of the Constitution:
The respondents contended that the Special Rules were arbitrary and violated Articles 14 and 16 of the Constitution, arguing that the initial recruitment to Class V was at the Government's discretion without statutory rules or executive instructions. They also claimed that posts in the seven categories of Class V were inter-transferable. The State of Andhra Pradesh countered these arguments, asserting that options were provided at the time of recruitment and subsequently, and that the posts were not interchangeable. The Supreme Court noted that the Tribunal did not address these points, focusing instead on the High Court's observations. The case was remitted to the Andhra Pradesh Administrative Tribunal for a detailed examination of these issues, with directions to decide the matter expeditiously.
Conclusion:
The Supreme Court set aside the judgment of the Administrative Tribunal, dismissing the Representation Petition No. 578/78 filed by M. Srinivasan and others. The case was remitted to the Andhra Pradesh Administrative Tribunal for further consideration of the points raised regarding the arbitrariness of the Special Rules and their compliance with constitutional provisions. The Tribunal was instructed to provide an opportunity for additional affidavits and documents and to decide the matter within three months. The appeals were disposed of with no order as to costs.
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1990 (4) TMI 306
Issues Involved:
1. Interpretation of Section 138 of the Negotiable Instruments Act.
2. Validity and presentation period of post-dated cheques.
3. Application of inherent powers under Section 482 of the Criminal Procedure Code.
Issue-wise Detailed Analysis:
1. Interpretation of Section 138 of the Negotiable Instruments Act:
The primary issue revolves around the interpretation of Section 138 of the Negotiable Instruments Act, particularly the proviso (a) which requires that a cheque must be presented to the bank within six months from the date on which it is drawn or within its validity period, whichever is earlier. The court examined whether the cheques in question, which were post-dated, complied with this provision. The petitioner argued that since all cheques were drawn on May 2, 1986, and presented beyond six months, they did not meet the requirement of Section 138. Conversely, the respondent contended that the date on the cheque should be considered the date it was drawn, and since the cheques were presented within six months from these dates, the requirement was met.
2. Validity and Presentation Period of Post-dated Cheques:
The court delved into the legal standing of post-dated cheques, referencing both Indian and English law. It was noted that while the English Bills of Exchange Act explicitly recognizes the validity of post-dated cheques, the Indian Negotiable Instruments Act does not have a parallel provision but does recognize their validity. Section 118(b) of the Act presumes that a cheque is drawn on the date it bears unless proven otherwise. The court concluded that a cheque is considered drawn on the date it is signed in its completed form, not the date it bears. Therefore, post-dated cheques drawn beyond six months from the signing date fall outside the purview of Section 138.
3. Application of Inherent Powers under Section 482 of the Criminal Procedure Code:
The petitioner invoked the inherent powers of the High Court under Section 482 of the Criminal Procedure Code to quash the proceedings. The court emphasized that such powers should be exercised cautiously and only when the allegations in the complaint, taken at face value, do not constitute an offense. Citing the Supreme Court's caution in Municipal Corporation of Delhi v. R. K. Rohtagi, the court reiterated that proceedings should be quashed if allowing them to continue would be an abuse of the process of the criminal court.
Conclusion:
The court concluded that the cheques in question were drawn on May 2, 1986, and since they were presented beyond the six-month period stipulated in proviso (a) to Section 138, the requirements of Section 138 were not met. Consequently, the prosecutions were deemed misconceived and an abuse of the process of the criminal court. The proceedings in both cases were quashed.
Summary:
The judgment addressed the interpretation of Section 138 of the Negotiable Instruments Act concerning post-dated cheques and their presentation period. It determined that a cheque is considered drawn on the date it is signed in its completed form, not the date it bears. Since the cheques in question were presented beyond six months from the signing date, they did not meet the requirement of Section 138. The court exercised its inherent powers under Section 482 of the Criminal Procedure Code to quash the proceedings, deeming them an abuse of the process of the criminal court.
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1990 (4) TMI 305
The Supreme Court upheld the Punjab & Haryana High Court decision, holding the insurer liable for compensation under the Motor Vehicles Act of 1939. The insurance policy taken on the date of the accident was deemed effective from the beginning of that day. The appeals were dismissed with no order for costs.
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1990 (4) TMI 304
Issues Involved:
1. Validity and enforceability of the agreement dated 16.9.1971.
2. Admissibility of Ext. PW-11/A as evidence.
3. Specific performance of the contract.
4. Alternative relief of refund of earnest money.
Summary of Judgment:
1. Validity and Enforceability of the Agreement:
The plaintiff filed a suit for specific performance of an agreement dated 16.9.1971 for the sale of property, including machinery, for Rs. 50,000, with an earnest money payment of Rs. 5,000. The defendant contested the suit, claiming the agreement was not properly stamped, was a paper transaction, and pertained only to movable property. The trial court and the first appellate court found in favor of the plaintiff, but the High Court set aside the decree for specific performance, ruling that no valid contract could be inferred from Ext. PW-11/A.
2. Admissibility of Ext. PW-11/A as Evidence:
The trial court initially disallowed Ext. PW-11/A, an entry in the Petition Writer's Register, as it was a duplicate of the original document. The High Court later allowed it to be impounded and admitted as evidence. The Supreme Court upheld this, stating the entry would be eligible for admission but should be evaluated properly. The High Court eventually held that Ext. PW-11/A did not constitute a valid contract, as it lacked the defendant's signature and was merely an extract of the original document.
3. Specific Performance of the Contract:
The Supreme Court emphasized that specific performance requires a valid and enforceable contract. The High Court found that the terms of the agreement were uncertain, particularly regarding the inclusion of the building and the alternative promise involving Lajwanti's share. The correspondence between the parties indicated a lack of consensus ad idem, and the court concluded that the agreement was not sufficiently certain to warrant specific performance.
4. Alternative Relief of Refund of Earnest Money:
The High Court decreed a refund of the Rs. 5,000 earnest money to the plaintiff. The Supreme Court upheld this decision, agreeing that there was no valid and enforceable contract for specific performance. The appeal was dismissed, and the plaintiff was entitled only to the refund of the earnest money.
Conclusion:
The Supreme Court upheld the High Court's finding that there was no valid and enforceable contract between the parties as evidenced by Ext. PW-11/A. The appeal was dismissed, and the plaintiff was awarded a refund of the Rs. 5,000 earnest money without any order as to costs.
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1990 (4) TMI 303
Issues:
1. Grant of benefits under amended Sections 23(1-A), 23(2), and 28 of the Land Acquisition Act, 1894.
2. Interpretation of Section 23(1-A) in relation to pending acquisition proceedings.
3. Application of transitional provisions under Section 30 of the Land Acquisition (Amendment) Act, 1984.
Detailed Analysis:
1. The judgment deals with the controversy surrounding the grant of benefits under amended Sections 23(1-A), 23(2), and 28 of the Land Acquisition Act, 1894, as amended by the Land Acquisition (Amendment) Act, 1984. The issue arose when the Land Acquisition Tribunal modified the award to increase solatium from 15% to 30% and interest rates based on the amended Act. The claimants sought modification based on the Amending Act, leading to challenges in Special Leave Petitions against the Tribunal's order.
2. The interpretation of Section 23(1-A) in relation to pending acquisition proceedings was a crucial aspect of the judgment. The Improvement Trust argued that the additional amount under Section 23(1-A) could only be allowed if no award had been made by the Collector before the specified date. Citing precedent cases, the court analyzed the timeline of awards in each case to determine the applicability of Section 23(1-A) benefits based on the transitional provisions outlined in the Amending Act.
3. The application of transitional provisions under Section 30 of the Land Acquisition (Amendment) Act, 1984, was pivotal in resolving the dispute. The court examined the specific language of Section 30(1)(a) and (b) to ascertain the eligibility of claimants for additional benefits under Section 23(1-A). By considering the dates of awards and the provisions of the transitional clauses, the court differentiated between cases where claimants were entitled to the benefits and where they were not, based on the timing of the Collector's awards.
In conclusion, the judgment clarified the entitlement to benefits under the amended sections of the Land Acquisition Act, emphasizing the significance of timelines and transitional provisions in determining claimants' rights. The court's detailed analysis of the statutory provisions and precedent cases provided a comprehensive framework for adjudicating similar disputes in the context of land acquisition proceedings.
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1990 (4) TMI 302
Issues Involved:
1. Legislative competency of the Andhra Pradesh Legislature in passing the Andhra Pradesh (Mineral Rights) Tax Act, 1975.
2. Ultra vires nature of the levy and collection of mineral rights tax under the State Act.
3. Interpretation of relevant constitutional entries and provisions of the Mines and Minerals (Regulation & Development) Act, 1957.
4. Applicability of the Supreme Court decision in India Cement Ltd. v. State of Tamil Nadu.
5. Refund of tax already collected.
Detailed Analysis:
1. Legislative Competency of the Andhra Pradesh Legislature:
The primary issue in this batch of writ petitions is the legislative competency of the Andhra Pradesh Legislature in passing the Andhra Pradesh (Mineral Rights) Tax Act, 1975. The petitioners argue that the entire field of legislation regarding the regulation and development of mines and minerals, including the right to collect royalty and tax on minerals, is vested in Parliament by virtue of the Mines and Minerals (Regulation & Development) Act, 1957. They contend that the State legislatures are denuded of their power to levy tax on all mineral rights held by holders of mining leases.
2. Ultra Vires Nature of the Levy and Collection of Mineral Rights Tax:
The petitioners seek a declaration that the levy and collection of mineral rights tax under the State Act is ultra vires of the powers of the State Legislature. They argue that the State should be restrained from levying and collecting the said tax in the future and that the tax already collected should be refunded. The State Act aims to levy a tax on mineral rights of holders of mining leases in respect of certain minerals in Andhra Pradesh, at a rate not exceeding one-fourth of the amount of royalty payable.
3. Interpretation of Relevant Constitutional Entries and Provisions:
The judgment delves into the interpretation of Entry 54 of List I and Entries 23, 49, and 50 of List II of the 7th Schedule of the Constitution. Entry 54 of List I pertains to the regulation of mines and mineral development under the control of the Union. Entries 23 and 50 of List II deal with the regulation of mines and mineral development and taxes on mineral rights, respectively, subject to any limitations imposed by Parliament.
The relevant provisions of the Mines and Minerals (Regulation & Development) Act, 1957, particularly Sections 9 and 9-A, which deal with royalties and dead rent, respectively, are examined. Section 9 of the Central Act provides for the levy of royalties on mining leases, and Section 9(3) imposes a limitation on enhancing royalty rates more than once during any period of three years.
4. Applicability of the Supreme Court Decision in India Cement Ltd. v. State of Tamil Nadu:
The petitioners rely on the Supreme Court's decision in India Cement Ltd. v. State of Tamil Nadu, where it was held that royalty is a tax. The Supreme Court in India Cement's case concluded that the entire field of regulation of mines and mineral development is occupied by the Central Act, 1957, leaving no room for the State Legislature to legislate under Entry 23 of List II. The judgment in India Cement's case also held that a cess on royalty being a tax on royalty is beyond the competence of the State Legislature because Section 9 of the Central Act covers the field.
5. Refund of Tax Already Collected:
The judgment concludes that Section 3 of the State Act, 1975, is ultra vires of the powers of the State Legislature, and as all other provisions are dependent on Section 3, the entire State Act, 1975, is declared ultra vires. However, the amounts already collected need not be refunded by the State due to the justification for the levy and collection in view of the earlier decision in H.R.S. Murthy's case. The State is restrained from levying and collecting any mineral rights tax in the future under the provisions of the State Act, 1975.
Conclusion:
The Andhra Pradesh (Mineral Rights) Tax Act, 1975, is declared ultra vires of the powers of the State Legislature, and the State is restrained from levying and collecting the said tax in the future. The amounts already collected need not be refunded. The judgment relies heavily on the Supreme Court's decision in India Cement Ltd. v. State of Tamil Nadu, which held that royalty is a tax and that the entire field of regulation and development of mines and minerals is occupied by the Central Act, 1957.
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1990 (4) TMI 301
Issues:
1. Plaintiff's registration under the Indian Partnership Act
2. Transactions between plaintiff and defendants from 1966 onwards
3. Repayments made by defendants for goods supplied
4. Outstanding balance due from defendants
5. Mutual accounting and acknowledgment of liability in June 1972
6. Acknowledgment of liability in defendants' balance sheet dated 13-11-1974
7. Entitlement to interest, relief, and costs
Analysis:
1. The court found that the plaintiff firm was registered under the Partnership Act based on the evidence presented by the plaintiff's Accountant, establishing Issue 1 in favor of the plaintiff.
2. The court examined the transactions between the plaintiff and defendants dating back to 1966, where the defendants became indebted to the plaintiff. Despite the defendants' denial and lack of examination of key witnesses, the court found in favor of the plaintiff on Issues 2, 3, and 4 due to the acknowledgment of liability in the defendants' balance sheet.
3. The court addressed the mutual accounting and acknowledgment of liability issue, concluding that it did not survive as a separate issue, given the acknowledgment in the balance sheet.
4. Regarding the acknowledgment of liability in the defendants' balance sheet dated 13-11-1974, the court analyzed the validity and timing of the acknowledgment. The court held that the acknowledgment was made within the period of limitation, ensuring the plaintiff's claim was timely and valid.
5. The court discussed the entitlement to interest, determining that the plaintiff was entitled to interest at a reduced rate of 6 1/4% per annum instead of the claimed 21%. The court awarded past interest to the plaintiff and calculated the total amount owed by the defendants.
6. In the final decree, the court ordered the defendants to pay the principal sum and costs to the plaintiff while dismissing the remaining balance of the plaintiff's claim. The court specified the interest rate applicable to the principal sum until realization, concluding the judgment in favor of the plaintiff on the specified terms.
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1990 (4) TMI 300
Issues Involved:1. Conviction of the accused under Sections 148, 302 read with Section 149, and 307 IPC. 2. Discrepancies in the evidence and non-explanation of injuries on the accused. 3. Right of private defence and the burden of proof under Section 105 of the Evidence Act. 4. Determination of whether the accused exceeded the right of private defence. Summary:1. Conviction of the accused under Sections 148, 302 read with Section 149, and 307 IPC:On 29.5.1981, a grave rioting took place in Tirro village, resulting in the deaths of Mahendra Singh and Virendra Singh and injuries to Vijay Narain Singh, Uma Shankar Singh, and Kailash Singh. Fourteen accused were tried under Sections 148 and 302 read with Section 149 IPC. The trial court convicted all 14 accused based on the evidence of P.Ws. 1 and 2, awarding life imprisonment u/s 302 read with Section 149 IPC. The High Court was divided in its opinion, leading to a third Judge, Seth, J., acquitting ten accused and confirming the conviction of Accused Nos. 1, 3, 4, and 6. 2. Discrepancies in the evidence and non-explanation of injuries on the accused:The prosecution failed to explain the injuries on accused Nos. 13 and 14. The evidence showed that accused No. 13 had gun-shot injuries and accused No. 14 had a lacerated wound, both received during the occurrence. The trial court and High Court Judges had differing views on the credibility of the prosecution witnesses and the explanation of these injuries. 3. Right of private defence and the burden of proof under Section 105 of the Evidence Act:The Supreme Court discussed the burden of proof under Section 105 of the Evidence Act, stating that the accused must prove the existence of circumstances bringing the case within any exception. The Court referred to several precedents, emphasizing that the burden on the accused is to establish a preponderance of probability and that the prosecution must still prove the guilt beyond reasonable doubt. The Court noted that the non-explanation of injuries on the accused could create a reasonable doubt about the prosecution's case. 4. Determination of whether the accused exceeded the right of private defence:The Court held that the accused had a right of private defence but exceeded it by intentionally shooting the deceased. The evidence suggested that the deceased were not armed with deadly weapons, and the accused's response was disproportionate. Consequently, the Court modified the conviction from Section 302/149 IPC to Section 304 Part I read with Section 34 IPC, sentencing the accused to 10 years imprisonment. Conclusion:The Supreme Court set aside the conviction of the appellants under Section 302/149 IPC and instead convicted them under Section 304 Part I read with Section 34 IPC, sentencing each to 10 years imprisonment. The other sentences/convictions were confirmed, and the appeals were allowed to this extent.
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1990 (4) TMI 299
Issues Involved:
1. Reasonable and bona fide requirement for eviction.
2. Default in payment of rent.
3. Lawful sub-tenancy claim.
4. Contempt of court by respondents.
Issue-wise Detailed Analysis:
1. Reasonable and bona fide requirement for eviction:
The appellant, the owner of the bungalow "Villa Hormazd," leased two floors to Mayer Mills Ltd. in 1948. Following the appellant's father's death in 1949, the appellant became the landlady. Respondent No. 1, B.R. Cotton Mills Ltd., succeeded Mayer Mills Ltd. and was in possession as a tenant. The appellant filed R.A.E. No. 763/6563 of 1966 in the Small Causes Court at Bombay for eviction on the grounds of reasonable and bona fide requirement. The Trial Court decreed this eviction suit on September 13, 1975. Respondents Nos. 1 and 2 appealed, but their appeal was dismissed.
2. Default in payment of rent:
During the pendency of the reasonable and bona fide requirement suit, the appellant filed another suit for eviction based on default in rent payment for over six months. This suit was initially dismissed due to the decree in the first suit but was later allowed on appeal, leading to a decree for eviction against respondent No. 1. Respondent No. 1 challenged these decrees in a writ petition, which was dismissed by the Bombay High Court on March 5, 1983.
3. Lawful sub-tenancy claim:
Respondent No. 2, Chairman of respondent No. 1, filed a suit in the Court of Small Causes on February 27, 1987, claiming lawful sub-tenancy and seeking a declaration that he was not bound by the eviction decrees. This suit was dismissed, but an appeal led to an interim injunction restraining the appellant from interfering with respondent No. 2's possession, thus preventing the execution of the eviction decree.
4. Contempt of court by respondents:
The appellant filed Contempt Petition No. 106 of 1987 in the Bombay High Court, alleging that respondents violated the undertaking given to the court. The undertaking was that respondent No. 1 would not part with possession or create third-party interests in the suit premises. The learned Judge of the High Court dismissed the contempt petition, stating that the undertaking did not imply actual possession and that respondent No. 1 was not guilty of contempt. The appellant appealed this decision.
Analysis and Judgment:
Contempt of Court:
The Supreme Court examined the facts and submissions. It was argued by the appellant's counsel that respondent No. 1's undertaking implied possession and the ability to hand over vacant possession after eight weeks if no interim relief was obtained. The respondents' counsel contended that no contempt was made out as there was no mandatory order to vacate and no wilful breach of an undertaking. The Supreme Court found that respondent No. 1 misled the court by applying for time to vacate while suppressing the claim of sub-tenancy by respondent No. 2, who was the Chairman of respondent No. 1. The court concluded that respondents Nos. 1 and 2 acted in collusion to defeat the decree for possession.
Final Order:
The Supreme Court allowed the appeal, set aside the High Court's order, and directed the Court Receiver, High Court of Bombay, to take possession of the suit premises and appoint the appellant as the agent. The possession was to be handed over to the appellant within eight weeks. The court also clarified that this order supersedes any interim orders from other courts and allowed respondent No. 2 to apply for vacation or variation of the order if he could establish his sub-tenancy claim. Respondents Nos. 1 and 2 were ordered to pay the appellant's costs of Rs. 20,000 jointly and severally. No action was taken against respondent No. 3.
This comprehensive analysis covers all relevant issues, preserving significant phrases and legal terminology from the original text.
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1990 (4) TMI 298
Issues Involved:
1. Amendment of plaint to seek decree for specific performance.
2. Legal principles governing amendment of plaint.
3. Jurisdiction of the High Court in revisional proceedings.
Issue-wise Detailed Analysis:
1. Amendment of plaint to seek decree for specific performance:
The primary legal issue was whether a suit initially filed for the refund of advance, damages, and interest could be amended to seek a decree for specific performance of the contract, with the original relief claimed as an alternative. The court concluded that such an amendment cannot be allowed. The plaintiff had initially sought the recovery of Rs. 8,30,510/- for double the amount of earnest money/advance plus interest. Upon receiving notice of the suit, the defendant applied for leave to defend, after which the plaintiff sought to amend the plaint to include a decree for specific performance. The trial court allowed the amendment, but the High Court found this to be incorrect, emphasizing that once a plaintiff elects to claim damages, they cannot subsequently seek specific performance.
2. Legal principles governing amendment of plaint:
The court referred to several precedents to elucidate the principles governing amendments. In *Ardeshir v. Flora Sassoon* (AIR 1928 PC 208), it was held that a suit for specific performance could not be amended to claim damages based on the facts of that case. In *Sundaramayyar v. Jagadeesan* (AIR 1965 Mad 85), the court ruled that once a party elects to treat a contract as breached and seeks damages, they cannot later claim specific performance. The Supreme Court in *Prem Raj v. D.L.F. H. & C. Ltd.* (AIR 1968 SC 1355) clarified that while a plaintiff suing for specific performance can alternatively seek rescission, the converse is not true. This principle was reiterated in *Jawahar Lal Wadhwa v. Haripada Chatroberty* (AIR 1989 SC 606), stating that a party cannot claim specific performance after electing to treat the contract as breached and suing for damages.
3. Jurisdiction of the High Court in revisional proceedings:
The court addressed the argument that it should not interfere in revisional jurisdiction. It was noted that if a subordinate court exceeds its jurisdiction or commits illegality, the High Court can correct the error in revisional jurisdiction to prevent manifest injustice. The court cited instances where interference in revision was deemed appropriate, such as in *Tarsem Singh v. Daljit Kaur* (1985 PLJ 534) and *Jai Bhagwan v. Raja Ram* (1989 (2) RLR 214).
Conclusion:
The court overruled the decision in *Tarsem Singh v. Daljit Kaur* and upheld the principles laid down in *Sundaramayyar v. Jagadeesan*, *Hari Krishna v. K. C. Gupta* (AIR 1949 All 440), and *Ayissabi v. Gopala Konar* (AIR 1989 Ker 134). It concluded that a plaintiff who initially seeks damages and the return of earnest money cannot later amend the plaint to seek specific performance as the primary relief. The revision was allowed, the order of the trial court permitting the amendment was set aside, and the application for amendment was dismissed. The court also directed the refund of any additional court fee paid by the plaintiff.
Judgment:
The revision was allowed, and the trial court's order permitting the amendment was set aside. The application for amendment of the plaint was dismissed, and the plaintiff was entitled to a refund of any additional court fee paid.
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1990 (4) TMI 297
Issues Involved:
1. Whether respondents Nos. 1 to 4 are managing the affairs of the company oppressively against the other shareholders of the company.
2. Whether the resolutions dated May 19, 1981, of the general body of the company are fabricated.
3. Whether the minutes book of the meetings of the general body and of the board of directors of the company were being regularly and properly maintained.
4. Whether respondents Nos. 3 and 4 are directors of the company and whether petitioner No. 2 and respondent No. 2 are validly appointed as directors.
5. Whether respondent No. 1 abused his powers as managing director and misappropriated or secreted the funds of the company.
6. Whether respondent No. 1 mismanaged the affairs and business of the company.
7. Whether there are disputes between the groups of shareholders and directors disrupting the business of the company.
8. Whether the company petition is maintainable.
Issue-wise Detailed Analysis:
Issue No. 1: Oppressive Management
The petitioners alleged that respondents Nos. 1 to 4 managed the company oppressively, excluding other shareholders from management. The court found that petitioners Nos. 1 to 3 and the fifth respondent were actively involved in the company's business activities, contradicting their claims of exclusion. The court concluded that there was no material to support the allegation that respondents Nos. 1 to 4 managed the company oppressively.
Issue No. 2: Fabrication of Resolutions
The petitioners claimed that the resolutions dated May 19, 1981, were fabricated. The court examined the evidence, including the notarized documents and the testimonies of witnesses. It found that the resolutions were not fabricated and were validly passed. The court held that the resolutions dated May 19, 1981, amending the articles of association of the company, were genuine and valid.
Issue No. 3: Maintenance of Minutes Book
The petitioners contended that the minutes book was not regularly and properly maintained. The court reviewed the evidence, including the minutes of the general body meeting held on February 15, 1983, and the complaint in S.T.C. No. 414 of 1984. The court found that the minutes book was regularly and properly maintained, and the meeting on February 15, 1983, was valid.
Issue No. 4: Validity of Directors' Appointments
The court examined the validity of the appointments of respondents Nos. 3 and 4 as directors and the removal of petitioner No. 2 and respondent No. 2 as directors. The court found that respondents Nos. 3 and 4 were validly appointed as directors and that petitioner No. 2 and respondent No. 2 were removed as directors by a resolution passed on February 15, 1983.
Issue No. 5: Abuse of Powers and Misappropriation
The court did not provide findings on this issue due to the demise of the first respondent during the pendency of the petition. Consequently, the reliefs sought against the first respondent personally became infructuous.
Issue No. 6: Mismanagement of Affairs
Similar to Issue No. 5, the court did not provide findings on this issue due to the demise of the first respondent, rendering the reliefs sought against him personally infructuous.
Issue No. 7: Disputes Between Shareholder Groups
The court found that there were disputes between two groups of shareholders and directors, one led by the first respondent and the other by the fifth respondent, which disrupted the business of the company and led to an impasse. The court noted that the business of the company came to a standstill due to these disputes.
Issue No. 8: Maintainability of the Company Petition
The court addressed the objections regarding the maintainability of the company petition. It held that the petition was maintainable despite the death of the first respondent, as respondents Nos. 2 to 4, who were already on record, adequately represented his interests. The court also rejected the objection that the petitioners had availed of an alternate remedy by filing a civil suit, noting that respondents Nos. 1 to 4 had challenged the jurisdiction of the civil court in that suit.
Conclusion:
The court concluded that the petitioners failed to establish that respondents Nos. 1 to 4 conducted themselves in a manner oppressive to the fifth respondent and his group of shareholders. Consequently, the petition filed under section 397 of the Companies Act was not maintainable. However, the court acknowledged the deadlock and stalemate in the company's business due to disputes among the directors and shareholders. The court directed respondents Nos. 2 to 4 to exercise their first choice to purchase the shares of the petitioners and the fifth respondent within two months. If they failed, the petitioners and the fifth respondent would have the choice to purchase the shares of respondents Nos. 1 to 4. If both groups failed to exercise these options, the company would be wound up. The company petition was dismissed without costs.
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1990 (4) TMI 296
Issues Involved:
1. Deceptive similarity of trade marks.
2. Likelihood of confusion among consumers.
3. Honest concurrent use of the trade mark.
4. Exercise of discretion by the Registrar of Trade Marks.
Detailed Analysis:
1. Deceptive Similarity of Trade Marks:
The primary issue revolves around whether the trade mark proposed by the appellants, featuring two birds on a twig with the words "Bul Bul," is deceptively similar to the respondents' registered trade mark, which features a single bird on a twig with the words "Robin Ultra Marine Blue." The court emphasized that trade marks should not be compared side by side to identify differences but should be assessed based on the overall impression they leave on the public. The court cited Kerly's Law of Trade Marks and Trade Names, stating that "Two marks, when placed side by side, may exhibit many and various differences, yet the main idea left on the mind by both may be the same." The court concluded that both trade marks give a similar overall impression due to the bird-on-twig imagery, despite the different words "Robin" and "Bul Bul."
2. Likelihood of Confusion Among Consumers:
Under Section 11(a) of the Trade and Merchandise Marks Act, 1958, a mark that is likely to deceive or cause confusion cannot be registered. The court found that the appellants' trade mark could create an impression that their goods are manufactured by the respondents, leading to confusion among consumers. The court referenced several cases, including the Danish Bacon Co. Ltd. case and the James Chadwick & Bros. Ltd. case, to illustrate how similar imagery in trade marks can lead to consumer confusion. The court determined that the appellants' trade mark is likely to cause confusion due to its similarity to the respondents' trade mark.
3. Honest Concurrent Use of the Trade Mark:
The appellants claimed honest concurrent use of their trade mark since 1969, which could allow registration under Section 12(3) of the Trade and Merchandise Marks Act, 1958. However, the court found that the appellants were aware of similar registered trade marks when they first applied for registration in 1971. The appellants initially dropped the device of two birds on a twig and only registered the word "Bul Bul." They later reapplied for the picture mark in 1973. The court concluded that this does not constitute honest concurrent use, as the appellants knowingly used a similar device despite being aware of existing trade marks. The court also noted that there was no evidence of the picture mark being used on the appellants' goods since 1969, as the invoices only referred to the "Bul Bul" brand without the picture mark.
4. Exercise of Discretion by the Registrar of Trade Marks:
The appellants argued that the Registrar had exercised discretion in granting registration and that the court should not lightly interfere with this discretion. However, the court clarified that the Registrar's decision was an adjudication, not an exercise of discretion. The Registrar had to determine whether the proposed trade mark was deceptively similar to the respondents' registered trade mark and whether there was honest concurrent use. The court referenced the case of Hiralal Prabhudas v. M/s. Ganesh Trading Company, which distinguished between adjudication and the exercise of discretion. The court concluded that the Registrar's decision was clearly wrong and that it was necessary to set it aside on appeal.
Conclusion:
The court upheld the decision of the learned single Judge, agreeing that the appellants' trade mark is deceptively similar to the respondents' trade mark and is likely to cause confusion among consumers. The court also agreed that there was no honest concurrent use of the trade mark by the appellants. Consequently, the appeal was dismissed with costs.
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1990 (4) TMI 295
Issues:
- Whether a pawnee can charge interest on pledged articles when unable to release them due to supervening circumstances.
- The legal position regarding the rights and liabilities of a pawnee in a pledge agreement.
Analysis:
1. The case involves a dispute where the petitioner pledged gold ornaments with the State Bank of India and sought to release them, but the Bank refused due to police seizure under a criminal case against the petitioner's husband. The petitioner argued that the Bank should not charge interest during the period it couldn't release the pledged articles.
2. The legal framework of pledge under Sections 172 to 176 of the Indian Contract Act was examined. The pawnee, as the Bank in this case, has the right to retain possession of pledged goods until the debt is repaid. The pawnee can sell the goods if the pawnor defaults, but until then, the pawnor can redeem the goods upon repayment of the debt.
3. The petitioner's counsel relied on two Supreme Court decisions, Lallan Prasad v. Rahmat Ali and The Bank of Bihar v. The State of Bihar, to argue that a pawnee cannot charge interest if unable to deliver the pledged goods. However, the court found these cases did not support the petitioner's contention.
4. The court noted that the Bank's obligation to return the pledged goods was hindered by the police seizure, but once the attachment order was vacated, the Bank could have returned the goods. The petitioner failed to inform the Bank of the order's vacation, and thus, the Bank was justified in claiming interest post that date.
5. The court held that for the period when the Bank could not deliver the goods due to the seizure, it could not charge interest. However, once the attachment order was lifted, the Bank was entitled to interest until the debt was repaid and the goods redeemed.
6. Ultimately, the court allowed the writ application in part, ruling that the Bank could not charge interest for the period when it couldn't deliver the goods, but could do so post the vacation of the attachment order. No costs were awarded in the judgment.
7. Justice Mahapatra concurred with the decision, and the writ application was allowed as per the court's findings.
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1990 (4) TMI 294
Issues Involved:
1. Validity of the cut-off date for receipt of applications.
2. Alleged arbitrariness and violation of Article 14 of the Constitution.
3. High Court's assumption of past practices.
4. Introduction of new facts at the Supreme Court level.
5. Exercise of extraordinary jurisdiction under Article 136 of the Constitution.
6. Undertaking given by the State Government to the High Court.
Summary:
1. Validity of the cut-off date for receipt of applications:
The State of Bihar published an advertisement inviting applications for various junior teaching posts in medical colleges with a cut-off date for receipt of applications fixed as 31st January, 1988. The respondents challenged this cut-off date, arguing it deprived them of the opportunity to compete as they did not meet the requisite experience criterion by that date.
2. Alleged arbitrariness and violation of Article 14 of the Constitution:
The respondents contended that the cut-off date was arbitrarily fixed and violative of Article 14 of the Constitution. The High Court upheld this contention, stating that the State Government had deviated from its usual practice of fixing the cut-off date as 30th June of the relevant year.
3. High Court's assumption of past practices:
The High Court assumed that the cut-off date was always fixed as 30th June based on past advertisements. However, the Supreme Court found this assumption erroneous, as documentary evidence showed that different cut-off dates were fixed in the past, and it was not a uniform practice to fix 30th June as the cut-off date.
4. Introduction of new facts at the Supreme Court level:
The State Government introduced advertisements from 1974 to 1980 to dispel the High Court's assumption. The Supreme Court permitted this, noting that the High Court's assumption was not supported by any material evidence.
5. Exercise of extraordinary jurisdiction under Article 136 of the Constitution:
The respondents argued that the Supreme Court should not interfere under Article 136. However, the Supreme Court found that the High Court's decision was based on an erroneous assumption of fact and thus warranted correction.
6. Undertaking given by the State Government to the High Court:
The respondents contended that the State Government had given an undertaking to the High Court regarding the preparation of a new panel. The Supreme Court held that this undertaking did not preclude the State from challenging the High Court's decision.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's decision, and dismissed the writ petition with no order as to costs throughout. The Supreme Court held that the High Court was in error in striking down the Government's action of fixing the last date for receipt of applications as 31st January, 1988, as arbitrary.
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1990 (4) TMI 293
Issues:
1. Jurisdiction of the ITO in invoking provision of s. 154 of the IT Act for computing relief under s. 90M of the IT Act.
Analysis:
The case involved the assessment years 1977-78 and 1978-79 where deduction under s. 80M was allowed initially. However, the provision of s. 80M was amended retrospectively by Finance (No. 2) Act, 1980. The ITO then rectified the assessment orders under s. 154 of the IT Act, treating the deduction under s. 80M as a mistake apparent from the record. The assessee objected, leading to an appeal before the CIT(A) who accepted the contention that the deduction under s. 80M was debatable. The Tribunal, on appeal by the Revenue, upheld the CIT(A)'s decision, stating that the estimate of expenses for earning dividends was a deductible matter outside the purview of s. 154. The Tribunal emphasized that there was no mistake apparent from the record that could be rectified under s. 154, as the exact amount of expenses was not available in the original assessment order.
The High Court emphasized that for a mistake to be rectified under s. 154, it must be apparent from the record, explicitly present in the order itself. In this case, the ITO had to estimate expenses for earning dividends, which was not based on available records but on the ITO's own estimate. The Court referred to a previous judgment where it was held that the law amended retrospectively could be applied to correct an error apparent on the face of the record under s. 154. However, in the absence of a clear mistake in the original order, s. 154 could not be invoked. The Court agreed with the Tribunal's decision that there was no mistake apparent from the record in this case, and hence, the Tribunal's view was correct. The question of law was answered in favor of the assessee, and no costs were awarded.
In conclusion, the judgment dealt with the jurisdiction of the ITO in rectifying assessments under s. 154 of the IT Act, specifically in the context of an amendment to the tax provision. It clarified that for a mistake to be rectified under s. 154, it must be apparent from the record itself, and estimates or deductions based on factors outside the existing records do not fall within the purview of rectification. The decision emphasized the importance of clear errors in the original order for rectification under s. 154, ensuring that the provision is applied within its intended scope.
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1990 (4) TMI 292
Issues Involved:
1. Suppression of material facts by the petitioners.
2. Abuse of the process of the court.
3. Non-joinder of necessary parties.
4. Maintainability of the writ petitions.
Issue-wise Detailed Analysis:
1. Suppression of Material Facts by the Petitioners:
The respondents raised a preliminary objection that the petitioners suppressed material facts from the Court. Specifically, the Federation, through its President, filed Writ Petition No. 507 of 1989, supported by an affidavit stating no similar writ petition had been filed in any other court. However, the Bank's counter affidavit revealed that the Federation had already filed a writ petition in the Andhra Pradesh High Court, which was admitted but the interim stay was rejected. The petitioners failed to disclose this fact, which was considered a deliberate suppression of material information.
2. Abuse of the Process of the Court:
The Court found that the petitioners abused the judicial process by filing multiple writ petitions in different High Courts on the same issue. The Federation filed a writ petition in the Andhra Pradesh High Court and, after failing to obtain a stay, filed another writ petition in the Supreme Court. Additionally, an affiliated association filed a petition in the Karnataka High Court seeking similar relief. The Court emphasized that such tactics are indicative of a chronic and compulsive litigant and not befitting an association representing high-ranking officers.
3. Non-joinder of Necessary Parties:
The Bank objected to the maintainability of the petition on the grounds that the promoted officers, who would be directly affected by the writ petition, were not made parties. The petitioners argued that they did not know the names of the 58 promoted officers. However, the Court found this claim to be false, as the names were published in a bulletin and the officers were impleaded in the Karnataka High Court petition. The Court noted that the petitioners deliberately avoided impleading the promoted officers.
4. Maintainability of the Writ Petitions:
Despite the preliminary objections, the Court decided not to dismiss the writ petitions outright. The Court acknowledged the technical arguments presented by the petitioners' counsel and the potential impact on various officers who might suffer due to the new promotion policy. The Court appreciated the stance of the Bank's counsel, who was prepared to contest the writ petitions on their merits. Consequently, the Court overruled the preliminary objections and adjourned the writ petitions for further hearing on their merits.
Conclusion:
The Court expressed strong disapproval of the petitioners' conduct, emphasizing the importance of truthfulness and responsibility in legal proceedings. The Court highlighted the need for litigants to avoid reckless and dishonest statements in petitions and affidavits. Despite the petitioners' misconduct, the Court chose to proceed with the writ petitions on their merits to ensure that the grievances related to the new promotion policy could be addressed. The writ petitions were adjourned for further hearing on 17.7.90.
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