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Jaipal Singh and anr. Vs. Board of Revenue U.P. Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberMisc. Writ No. 235 of 1953
Judge
Reported inAIR1956All698
ActsTenancy Law; Uttar Pradesh Tenancy Act, 1939 - Sections 273 and 293; Uttar Pradesh Tenancy Rules, 1939 - Rule 170; Uttar Pradesh Land Revenue Act, 1901 - Sections 7; Code of Civil Procedure (CPC) , 1908
AppellantJaipal Singh and anr.
RespondentBoard of Revenue U.P. Allahabad and ors.
Appellant AdvocateHarish Chandra Sharma, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
(i) tenancy - power of revenue board - section 273 of u. p. tenancy act, 1939 and section 79 of u. p. land revenue act, 1901 - petitioner's appeal before board heard by two members - respondents review application heard by same two members - petition and review application to be heard by all the members of board - held, board power to be discovered by reading u. p. tenancy act, 1939 and u. p. revenue act, 1901. - - , 1861 the term 'appellate' is applied to a court of revision as well as to a court of appeal. but no decree passed judicially by it or by any of its members shall be so reviewed except on the application of a party to the cause within ninety days from the passing of the decree, or, if good cause be shown, within any longer period. the board are authorised to review,.....mootham, c.j.1. this petition, which has been referred to a bench by mr. justice chaturvedi raises a question or law of some difficulty. the relevant facts can be stated very shortly.2. the petitioners filed a suit against respondents 2 to 16 under section 59, u. p. tenancy act, 1939. the suit was dismissed by the trial court and the decree of that court was affirmed by the additional commissioner, agra division, on appeal. the petitioners then filed a second appeal before the first respondent, the board of revenue. the board allowed the appeal, the judgment of sri s.s. hasan, before whom the appeal was argued, being dated 1-8-1952, and a second judicial member, sri r.n. singh, concurring therein on 4-8-1952.3. the respondents then filed an application before the board under section 273,.....
Judgment:

Mootham, C.J.

1. This petition, which has been referred to a Bench by Mr. Justice Chaturvedi raises a question or law of some difficulty. The relevant facts can be stated very shortly.

2. The petitioners filed a suit against respondents 2 to 16 under Section 59, U. P. Tenancy Act, 1939. The suit was dismissed by the trial court and the decree of that court was affirmed by the Additional Commissioner, Agra Division, on appeal. The petitioners then filed a second appeal before the first respondent, the Board of Revenue. The Board allowed the appeal, the Judgment of Sri S.S. Hasan, before whom the appeal was argued, being dated 1-8-1952, and a second Judicial Member, Sri R.N. Singh, concurring therein on 4-8-1952.

3. The respondents then filed an application before the Board under Section 273, U. P. Tenancy Act, for review. The review application was decided by the two Judicial Members who had earlier decided the appeal and was allowed, the judgment of Sri S.S. Hasan, which was dated 16-10-1952, receiving the concurrence of Sri R.N. Singh on 28th October following. Thereafter the appeal was again heard on its merits and was dismissed by Sri S.S. Hasan on 6-2-1953.

4. The petitioners thereupon filed this petition, their contention being that under Section 273, U. P. Tenancy Act, the review application ought to have been decided by all the Members of the Board. They pray for the issue of a writ of 'certiorari' quashing the order of the Board dated 16/18-10-1952 16/18-10-1952 , and the subsequent proceedings consequent upon that order.

5. Now Section 273, U. P. Tenancy Act, 1939, reads as follows :

'The Board on its own motion or on the application of a party to the case, may review and may rescind, alter or confirm any decree or order made by itself, or by a single member.' 'Board' is defined in Section 3(3) of the Tenancy Act, 1939, as having the same meaning as in the United Provinces Land Revenue Act, 1901, Section 4(1) of which merely defines 'Board' as meaning the 'Board of Revenue'.

6. It cannot, I think, be doubted that the judicial functions of the Board must be exercised by all the Members of the Board collectively, unless it has power to delegate its functions to one or more of its Members and does so delegate them. The first question therefore is, whether the Board has such power of delegation in respect of the exercise of its powers of review.

7. Section 273 is a reproduction of Section 250 Agra Tenancy Act, 1926, and differs only from the provisions of Section 183, North-western Provinces Tenancy Act, 1901, by the insertion of the words on its own motion or'.

The North-Western Tenancy Act, 1901, and the United Provinces Land Revenue Act. 1901, originally entitled the North-Western Provinces and Oudh Land Revenue Act, came into force on the same day (the 1st of January, 1902), and dealing as they do with cognate matters, the former is to some extent a supplement to the latter. Neither the Tenancy Act of 1901 nor the subsequent Acts of 1926 and 1939 contain any reference to the appointment of the Members of the Board of Revenue or the manner in which it is to conduct its business. These matters are dealt with in the Land Revenue Act, 1901. Section 6 of the latter Act provides that the State Government shall appoint the Members of the Board, and Section 7 provides that :

'(1) Subject to such rules or orders as the Provincial Government may prescribe or issue, the Board may distribute its business and make such territorial division of its jurisdiction amongst its members as to the Board may seem fit.

(2) All orders made or decrees passed by a member of the Board in accordance with such distribution or division shall be held to be the orders or decrees (as the case may be) of the Board.' In my opinion the business of the Board, referred, to in this section, is not restricted to the powers and duties conferred and imposed on the Board under that Act, but is general in character and includes the powers and duties conferred and imposed on the Board under the North-Western Provinces Tenancy Act, 1901, and the later Tenancy Acts of 1926 and 1939. Subject, therefore, to such rules or orders as the State Government may prescribe, the Board has power under Section 7 of the Land Revenue Act of 1901 to distribute its business under the Tenancy Act. 1939, and any order or decree made by a member in, accordance with such distribution shall be the order or decree of the Board.

The provisions of Sub-section (2) of Section 7 are, in the case of business of the Board under the Land Revenue Act, subject to two restrictions to be found in Sections 8 and 220. No similar restrictions find a place in the Tenancy Act, 1939, and consequently the power of a member of the Board to make an order or decree in business arising out of that Act will depend solely on the manner in which the Board has distributed its business under that Act, for it is common ground that the Tenancy Act, 1939. itself contains no provision which enables the judicial functions of the Board to be performed by one or more members on behalf of the Board.

8. Rules have been made by the Board under Section 293 of the Tenancy Act, 1939, and provision is made in Rules 170 and 190 respectively for the distribution of its appellate or revisional business among its members. Rule 170 reads as follows :

'When the Board has distributed its appellate business among the members, the order of a single member is the order of the Board, but no decree or order coming under the consideration of the Board in appeal shall be modified or reversed without the concurrent judgment of two members of the Board'

Rule 190 is in similar terms. No specific provision is made for the disposal of review applications, and the question is whether the expression 'appellate business' in Rule 170 includes the exercise of the power possessed by the Board to review its own appellate orders. On this question there has been some divergence of opinion.

In 'Maktool v. Board of Revenue, Allahabad'. 1954 All LJ 430 (A), I had occasion to consider whether the word 'appeal' in Sections 3 and 4 of the U. P. Board of Revenue (Declaration of Procedure and Validation) Act, 1953, included the review of an order passed on appeal, and I came to the conclusion that the power of review possessed by the Board was exercised by it as part of its appellate jurisdiction. On the other hand in 'Sri Duli Chand V. Judicial Members, Board of Revenue, U. P.', 1954 All LJ 628 (B), Bhargava J. was of opinion that the Board of Revenue in reviewing its own judgment in an appellate matter was not engaged in its 'appellate business' within the meaning of Rule 170.

9. Whether a court which has power to review its own order made on an appeal does so in the exercise of its appellate or of some other jurisdiction, must in my opinion depend on the statutory provisions under which it exercises such powers. The term 'appellate' in Clauses 11 and 27 of the Letters Patent of this Court appears to be employed in contradistinction to the term original, & hence it has been held in 'The Queen v. Nvn Singh', 2 NWP HCR 117 (FB) (C) that this Court's power to delegate the exercise of its appellate jurisdiction to a judge or Division Court included the power to delegate its revisional jurisdiction; and by parity of reasoning its powers of review. So also in Sections 425 and 426, Criminal P. C., 1861 the term 'appellate' is applied to a court of revision as well as to a court of appeal.

10. Specific provision is made in the Rules only for the distribution of the appellate and revisional business of The Board of Revenue. The Board exercises powers of appeal, revision and review and there is an apparent omission to provide for the delegation of the Board's authority in respect of the third of these matters.

The Board exercises its powers of appeal and revision in respect of the orders and decrees of subordinate revenue courts; it exercises its powers of review in respect of its own decrees or orders made in the exercise of its appellate, revisional or review jurisdiction, and in my judgment it is reasonable to assume, in the absence of any clear indication to the contrary, that the power to review its own orders was regarded as supplementary to the exercise by it of its powers as a court of appeal or revision.

11. Emphasis has been laid by counsel for the petitioners on a note appended to Rule 163 as evidence that the term 'appellate' in Rule 170 was not intended to include powers of review, and this view commended itself to my brother in the judgment to which I have already referred. Rule 163 makes provision for the presentation of appeals to the Board and a note at the foot of the Rule, which appears to be part of the Rule itself, states that.

'The above procedure shall be observed 'mutatis mutandis' in dealing with applications for review under both United Provinces Tenancy Act, 1939, and United Provinces Land Revenue Act, 1901.'

A review application is not a memorandum of appeal and some provision had, therefore, to be made to regulate the manner in which it should be presented. But it does not, in my opinion, follow that because no similar note has been added to Rule 170 that the expression 'appellate business' in the Rule must necessarily exclude the exercise of a power to review an appellate order made by the Board. The consequences of such a view would be highly inconvenient;

'and although in construing an Act the argument as to the results is entitled to little weight, yet, in order to determine the intention of the framers, we may consider the results of suggested constructions of the language employed by them, in order that we may give effect to their intentions, if we can do so without putting a forced interpretation on their language': 'Nyn Singh's case', (C) at p. 120.' In my judgment the Board's power to review a decree or order made by it on appeal is part of its appellate jurisdiction, and its power to review a decree or order made by it in revision is part of its revisional jurisdiction, and that it is for this reason that no specific provision is made in the Revenue Court Manual, for the distribution of what might perhaps be described as the Board's 'review business'.

12. As against this view it is contended that in Section 273 of the Tenancy Act, 1939, a distinction is drawn between a decree or order made by the Board & one made by a single member, & that if the expression 'appellate business' includes the Board's review jurisdiction, then by virtue of Rule 170 a single member of the Board would have the power to dismiss an application for review, and that that is a power the exercise of which would be contrary to the provisions of Section 273 which by drawing a distinction between an order of the Board and of a single member make it clear that the reviewing authority cannot in the circumstances be a single member. I was impressed by this argument during the hearing, but on further consideration I have come to the conclusion that it is not sound.

13. I have already pointed out that Section 273 is a reproduction of Section 250, Agra Tenancy Act, 1926, and it corresponds to Section 183, North-Western Provinces Tenancy Act, 1901. The Tenancy Act of 1901 must to some extent be regarded as supplementary to the Land Revenue Act of that year and in my judgment the Court in construing the former cannot disregard the provisions of the latter. And it appears to me that the origin of the present Section 273 can be traced back through Section 220 of the Land Revenue Act, 1901, to Bengal Regulation III of 1822.

14. The purpose of that Regulation was to modify the constitution and alter the jurisdiction of the several Boards entrusted with the management of land revenue, and the sixth paragraph of Section V provided that:

'The Boards are authorised to review, rescind, alter, or confirm any order and decision passed by them collectively or by any member exercising ....separate authority if any application to that effect be made to them by any party interested in the case ...... But no order or decision passed by a singlemember exercising separate authority shall be reversed, altered or stayed excepting on the concurrent judgment of two or more members.'

The concluding words of this paragraph make it clear that it was not necessary for the Board in all cases to act collectively in exercising its powers of review and that an order or decision passed by a single member could be dismissed by a single member, but could not be varied except on the concurrent judgment of two or more members. The provision for review was subsequently replaced by Section 9 of the North-Western Provinces Land Revenue Act, 1873, which reads as follows :

'The Board may review, and may rescind, alter or confirm, any order made by itself, or by any of its Members, in the course of its non-judicial business.

But no decree passed judicially by it or by any of its members shall be so reviewed except on the application of a party to the cause within ninety days from the passing of the decree, or, if good cause be shown, within any longer period.

A single Member vested with all or any of the powers of the Board shall not have power to alter or reverse a decree or order passed by the Board or by any Member other than himself.'

The powers conferred on the Board by this section are substantially the same as under Section V of Regulation III of 1822, save that a single Member now has been vested with power to alter in review a decree or order passed by himself. This section was reproduced in almost the same terms in Section 220, Land Revenue Act, 1901.

15. If the provisions of Section 220 of the Land Revenue Act of 1901 are now contrasted with those of Section 183 of the N. W. P. Tenancy Act of the same year it will, I think, be apparent that it was the intention of the legislature to confer upon the Board, with one qualification the same power to review its decisions under the latter Act as it had under the former. The qualification is this, that under the Land Revenue Act a single member was, by implication, given the power to alter or reverse his own decree or order.

No such provision is to be found in Section 183 of the N. W. P. Tenancy Act, 1901 or in Section 273 of the Tenancy Act of 1939 and therefore it would appear (although the point is not one upon which it is necessary in this case to express a concluded opinion) that under the Tenancy Act a single member cannot, when exercising the Board's delegated power of review, rescind or alter his own order or decree: under Rule 170 the concurrence of a second member is necessary.

16. For these reasons, and after giving the most careful consideration to the opinion expressed in 'Sri Duli Chand's case', (B), I am of the view that this petition fails and should be dismissed with costs.

Mukerji, J.

17. I have had the advantage of reading the opinion of my Lord and Chief Justice, and 1 may at the outset, say that I am in agreement with the order which has been proposed by him.

18. The question that called for decision in this case was not only one of some importance but also one that presented some difficulty in deciding it.

19. Since I am in agreement with the opinion of my Lord the Chief Justice, I do not consider it necessary to enter into a detailed discussion of the matter and I wish just briefly to indicate some of the reasons which have impelled me to come to the conclusion that I have.

20. The question that arose for our decision was whether a review could be granted in respect of any matter, whether that matter had been decided by a single member or by the Board, by the Board alone, or whether it was open to a lesser number of members to review such a decision in accordance with the rules of business, provided for in Rule 170 of the Rules framed under Section 293 of the Tenancy Act of 1939.

21. In accordance with Section 3(3) of the Tenancy Act, 'Board' has the same meaning as given to it in the United Provinces Land Revenue Act, 1910. Section 4(1) of the Land Revenue Act merely defines 'Board' as meaning the Board of Revenue. Neither of these two Acts, namely the U. P. Tenancy Act, 1939, and the United Provinces Land Revenue Act, 1901. really tells us anything about either the composition of the Board or the powers as such of the Board of Revenue.

22. The existence of the Board of Revenue in this State dates back to 1822. By Regulation III of 1822. three Boards of Revenue were established for '(D Lower, (2) Central, and (3) Western Provinces respectively. Each of these Boards was to consist of such number of members as the Governor General in Council, from time to time, chose to appoint clause V of the said Regulation conferred on the Governor-General in Council, by order in Council power to authorise a single member of any of the said Boards to exercise, either generally or locally all the duties, powers, and authority, which are vested in the Board collectively, whenever circumstances may render such an arrangement des.rable.

It further provided that the Governor General in Council could similarly authorise 'the several members of the said Board separately to exercise at the same time and 'within the same limits', such part of the said duties, powers and authority, as it may from time to time be judged proper to assign to each respectively, whenever for the greater dispatch of business or other cause, it may appear advisable to divide the business of the Board, or to assign any special duty to any member separately.'

There was, however, a proviso to this, and the proviso was that a single member could not revise or alter the decision or order of a Collector without the concurrence of one or more of the other members unless otherwise specifically directed and authorised by Government. The same clause provided further that a single member will not be competent to revise or alter a decree or order passed by any other member of the Board. The Sixth-sub-clause of Clause V of this Regulation was in these words:

'The Board are authorised to review, rescind, alter or confirm any order and decision parsed by them collectively, or by any member exercising, as above, separate authority, if an application to that effect be made to them by any party interested in the case, within the period of three months from the date on which the order or decision may have been parsed, or good and sufficient cause shown for a further delay, and if, from the documents exhibited, the case shall appear to merit luither investigation. But no order or decision passed by a single member exercising separate authority shall be reversed, altered, or stayed, excepting on the concurrent judgment of two or more members'.

This provision was fuller in its scope than the present Section 273 of the Tenancy Act. It indicates that there could be a review of any matter by the Board collectively; there could also be a review of a single members' decision, when such membar exercised separate authority, on the concurrence of two or more members.

A single member apparently was not competent, on the wordings of this Clause to review even his own decision. The North Western Provinces Land Revenue Act of 1873 receievd the assent of the Governor-General on 22-12-1873, and irom that date onwards it became the law in regard to matters relating to land revenue and the jurisdiction of Land Revenue Officers in the North Western Provinces of the Presidency of Fort William in Beagal (Which included practically all the territories that are now included in Uttar-Pradesh). Section 3(11) of the Act of 1873 said 'Board' means the Board of Revenue of the North Western Provinces. Section 4 of the said Act said :

'The chief controlling authority in all matters connected with the land revenue of the said territories is vested in the Board, subject to the Local Government, Subject to the orders of the Local Government the Board shall sit in any place in the North-Western Provinces that it thinks fit, and it shall have the powers conferred by chapter VII of this Act on Commissioners of Divisions.'

23. Section 5 related to the appointment and removal of members of the Board. Section 6 gave powers of distribution amongst members of the Boards' work. Section 9 gave power to the Board to review and alter its orders and decrees. This section was in these words :

'The Board may review, and may rescind, alter or confirm any order made by itself, or by any of Its Members in the course of its 'non-judicial business' '.

'But no decree passed judicially by it or by any of its Members shall be so reviewed except on the application of a party to the cause within ninety days from the passing of the decree, or, if good cause be shown, within any longer period. A single Member vested with all or any of the powers of the Board 'shall not have power' to alter or reverse a decree or order passed by the Board or by any Member other than himself.'

24. Prom this section it is clear that the Board collectively could review decisions either made by Itself or by any of its members. It is further, clear, that a single member was not competent to review any decision, save one made by himself.

There were two other Acts, (1) Act 8 of 1879 and (2) Act 20 of 1890 which made provision for revenue matters more or less similar to those made by the Act of 1873, but it is not necessary to notice any of the provisions of those two Acts for our present purposes. The Act that followed thereafter was the Land Revenue Act, Act 3 of 1901. 1 have already noticed the relevant provision of this Act, namely the definition of the 'Board' or the meaning as given by the Act to the word 'Board.' Section 5 of this Act is in these words :

'The control of all non-judicial matters connected with the land revenue in the United Provinces other than matters connected with settlement is vested in the Provincial Government and the control of all judicial matters and of all matters connected with settlement is vested in the Board'.

Section 6 provides for the appointment of members of the Board, and Section 7 confers the power on the Board to distribute business and that section is in these words :

'7(1) Subject to such rules or orders as the Provincial Government may prescribe or issue, the Board may distribute its business and make such territorial division of its jurisdiction amongst its members as to the Board may seem fit.

(2) All orders made or decrees passed by a member of the Board in accordance with such distribution or division shall be held to be the orders or decrees (as the case may be) of the Board.'

Section 8 is in these words :

'No decree or order in a judicial proceeding coming under the consideration of the Board on appeal, on a reference under Section 218, or in revision under Section 219, shall be altered or reversed without the concurrent judgment of two members of the Board'.

Section 10 is in these words :

'Notwithstanding anything contained in this Act the Provincial Government may authorize any member of the Board to perform or exercise either generally or in respect of any particular locality, all or any of the duties and powers imposed and conferred on the Board.'

So that it was open to the Provincial Government to authorise any member of the Board to exercise the powers conferred on the Board. This would mean that a single member, if authorised by the Provincial Government could exercise the Board's power of review. Section 220 of the Act is in these words :

'220(1) The Board may review and may rescind, alter or confirm any order made by itself or by any of its members in the course of business connected With settlement.

(2) No decree or order passed judicially by it or by any of its members shall be so reviewed except on the application of a party to the case made Within a period of ninety days from the passing of the decree or order, or made after such period if the applicant satisfies the Board that he had sufficient cause for not making the application within such period.

(3) A single member vested with all or any of the powers of the Board shall not have power to alter or reverse a decree or order passed by the Board or by any member other than himself.'

So that although on the wprds of Section 10, the Provincial Government could authorise a single member to exercise any of the powers of the Board, Section 220(3) makes it impossible for a single member to review an order passed by the Board collectively or by any other member save himself. To me there appears to be a slight inconsistency between Section 10 and Section 220(3).

On the wordings of Section 10 it appears that the Provincial Government could give a single member the power of review not only of his own decision but of the decisions of the Board, while Sub-section (3) of Section 220 specifically prohibits the exercise of such power by a single member, except in respect of a decision given by himself. Section 273 of the U. P. Tenancy Act, 1939, which also provides for review is however, in these words :

'The Board on its own motion or on the application of a party to the case, may review and may rescind, alter or confirm any decree or order made by itself or by a single member.'

The words of Section 250 of the Tenancy Act of 1926, the precursor of the present Act, are not of much help as Section 273 of the Tenancy Act of 1939 is really a reproduction of Section 250 of the Tenancy Act of 1926. This section, namely Section 273 differs from Section 183 of the North Western Provinces Tenancy Act of 1901 only to this extent that in the present Act the words 'on its own motion or' have been added which did not exist in the earlier Act.

25. The provisions of Order 47, Civil P. C. do not apply to a review made by the Board of Revenue,' this appears to be clear on a juxtaposition of Sections 273 and 274 of the Tenancy Act.

26. As has been pointed out by my Lord the Chief Justice, we have to read the two Acts, the Land Revenue Act, and the Tenancy Act, 1939 together in order to discover the entire scope of the powers of the Board of Revenue. These two Acts, as has been said by my Lord the Chief Justice, are cognate legislation and to a large extent supplement each other. As I have already noticed Section 7 of the Land Revenue Act provides for the distribution of the business of the Board which also includes judicial business.

Under the Tenancy Act no restrictions have been placed on that power, as has been done by Sections 8 and 220 of the Land Revenue Act. So that under the Tenancy Act the power of a Member of the Board to make orders or decrees in regard to business arising out of that Act will depend solely on the manner in which the Board has distributed its business.

27. Rules have been made by the Board under Section 293 of the Tenancy Act for the distribution of its 'appellate' and 'revisional' business. Rule 170 reads:

'When the Board has distributed its appellate business among the Members, the order of a single member is the order of the Board, but no decree or order coming under the consideration of the Board in appeal shall be modified or reversed without the concurrent judgment of two members of the Board.'

Rule 190 is in similar terms and provides for the distribution of 'revisional business' among the members of the Board. There is no specific rule dealing with distribution of work in regard to review matters. So that matters of review if they relate to appellate business, namely review of judgments in appeal or orders made in appeal would be dealt with under Rule 170, and those that arise out of revisional business would be dealt with under Rule 190.

28. In this Court there has been a difference of opinion in regard to the meaning of the words 'appellate business' in R, 170. In '1954 All L. J. 430 (A)', Mootham J. (as he then was) expressed a view that the power of review that the Board exercised was part of its appellate business, while in the case of '1954 All LJ 628 (B)', Bhargava, J. held that the power of review did not fall within the ambit of the words 'appellate business'. I am with great respect, unable to agree with the view of Bhargava, J, for I am of the opinion that 'appellate business' must include a review if the review is sought in respect of a decision made on appeal.

29. As has been pointed out by my Lord the Chief Justice the consequences of taking a view to the contrary would not only be highly inconvenient but would unsettle a long course of practice obtaining in entertaining and disposing of review applications by the Board of Revenue. Although the argument of convenience is of little weight in determining the intention of the framers of an Act, yet, if the results of a suggested construction lead to not only inconvenience but to the unsettling of a long course of practice, then it is open to a Court to interpret the language in such a manner as to obviate such difficulties. Such a view was approved of in the case of '2 NWP HCR 117 (FB)', at p. 120 (C).

30. For the reasons given above, I agree with my Lord the Chief Justice that it is open to the Board of Revenue to delegate the power of review in the exercise of its appellate business under Rule 170 except that the Board's delegated power of review cannot be exercised by a single member, the concurrence of the second member being necessary. I would, therefore, dismiss the petition with costs.


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