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Kasturbhai Lalbhai and ors. Vs. Gujarat University, Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 338 of 1960
Judge
Reported inAIR1960Guj14; (1960)GLR67
ActsConstitution of India - Article 226; Gujarat University Act, 1949 - Sections 4(27), 18 and 58
AppellantKasturbhai Lalbhai and ors.
RespondentGujarat University, Ahmedabad and anr.
Appellant Advocate M.P. Amin,; P.M. Amin,; A.H. Mehta,;
Respondent Advocate J.C. Bhatt,; J.D. Pandhya and; R.C. Bhatt, Advs.
Excerpt:
constitution - jurisdiction - article 226 of constitution of india and sections 4 and 18 of gujarat university act, 1949 - petitioners-members of senate brought resolution - rejected by vice-chancellor (vc) - petition against such refusal - it is within competence and power of senate to entertain and discuss any matter connected with university so long as it is in accordance with act - respondent exercised his power which is impermissible - it was incumbent upon vc to allow senate to entertain and discuss proposal - ruling of respondent afford foundation for application by petitioner for writ of mandamus - no cogent reason for withholding same - petition allowed. - - it is also their case that inasmuch as the second respondent prevented that by his ruling, he failed to perform the.....desai, c.j.(1) this is a rule taken out at the instance of the petitioners, members of the senate of the gujarat university, against the university, the first respondent before us, and the vice chancellor of the university, who is the second respondent before us. the petition arises out of a resolution sought to be brought before the senate by a number of requisitionists and which resolution was not allowed to be debated in wake of a point of order raised by one of the members of the senate. the relief which the petitioners seek from this court in this petition is as under:'......... will be pleased to issue a writ of or in the nature of mandamus or any other appropriate writ, direction or order requiring the respondents to treat the ruling of the second respondent as void and ineffective.....
Judgment:

Desai, C.J.

(1) This is a rule taken out at the instance of the petitioners, members of the Senate of the Gujarat University, against the University, the first respondent before us, and the Vice Chancellor of the University, who is the second respondent before us. The petition arises out of a resolution sought to be brought before the Senate by a number of requisitionists and which resolution was not allowed to be debated in wake of a point of order raised by one of the members of the Senate. The relief which the petitioners seek from this Court in this petition is as under:

'......... will be pleased to issue a writ of or in the nature of mandamus or any other appropriate writ, direction or order requiring the respondents to treat the ruling of the Second Respondent as void and ineffective and direction the Respondents to continue his requisitioned meeting of the Senate held on 28-6-1960 and further directing them to put the resolution contained in item No. 2 of the agenda of the said meeting for consideration treating the said resolution as in order and/or directing the Respondents to reconvene the meeting of the Senate immediately for the purpose of considering the said resolution.'

(2) The facts which are not in dispute or disputable require to be stated in some detail, though there is nothing complex about the questions that have been raised on this petition. They are simple and easy of solution. The petitioners and a number of members of the Senate who claim to be deeply interested in the cause of education in Gujarat and in the welfare of the students studying in the various colleges affiliated to the University, felt that in view of the non-availability of standard text books in Gujarati, particularly for higher studies in colleges and the difficulties experienced by the teachers and students particularly for higher studies in colleges and the difficulties experienced by the teachers and students particularly in the Faculties of Law, Medicines, and Technology including Engineering and all post-graduates stadiums it was necessary to extend the period of change-over to Gujarathi University, which period has been limited to ten years by the proviso to C. 27 of S. 4 of the Gujarat University Act, tone referred to by us hereafter as the Act. In view of the situation aforesaid, the petitioners and a member of members of the Senate decided to recommend to the State Government and the State Legislature to suitably amend the proviso to C. 27 so as to achieve the change-over to Gujarati medium within a period of twenty years instead of ten years as laid down in that proviso. The proposed resolution was as under:

'Resolution.

The Senate requests the State Government and the State Legislature to take early steps to amend C. 27 of S. 4 of the Gujarat University Act so as to read as under:

`to promote the development of the study of Gujarati and Hindi in Devnagari script and the use of Gujarati or Hindi in Devnagari script or both as a medium of instruction and examination: Provided that English may continue to be the medium of instruction and examination in such subjects an for such period not exceeding twenty years from the date on which section 3 comes into force as may from time to time be prescribed by the Statures.'

(3) A notice of the proposed resolution was duly given by the required number of requisitionists and a special meeting of the Senate of the University was convened on 28th June 1960. The second respondent included in the agenda of that requisitioned meeting other business including proposed resolutions by Shri Thakorebhai M. Desai and Shri Chandravadan C. Shah. It is not necessary to set out here the substance of those resolutions and it will suffice to observe that in effect they went counter to the proposed resolution of the Petitioners.

(4) All resolutions proposed to be moved at a meeting of the Senate have to be submitted for the opinion of the Syndicate, and accordingly, the resolution sought to be moved by the petitioners was placed before the Syndicate at its meeting held on 18th June 1960. The Syndicate expressed its opinion in favour of the proposed resolution by what is mentioned as a 'big majority'. There was some discussion at the meeting of the Senate held on 28th June 1960 about determination of priority of the resolution proposed to be brought by the requisitionists and other two resolutions proposed by Shri Thakorebhai M. Desai and Shri Chandravadan C. Shah. A motion to the effect that priority should be accorded to the resolution proposed by Shri Thakorebhai Desai was declined by the second respondent and he ruled that priority should be given to the resolution proposed by the requisitionists since it was a proposal recommending amendment in the Act. There is a special provision in Stature 31 relating to such priority and we shall advert to the same a little later. Then, when the proposed resolution of the requisitionists was moved and seconded as required by the Statutes, Shri. G. C. Oza, one of the members of the Senate, raised a point of order, contending that the resolution was vague and indefinite in character and not in conformity with Statute 22. Some discussion took place on the point of order, and the second respondent upheld the point of order, stating that the proposed resolution was not in accordance with Statute 22, and directed the meeting to proceed with other business on the agenda. A number of members of the Senate present at the meeting requested the second respondent to give his ruling in writing and supply a copy of the same but the second respondent refused to do so. Nothing turns on this petition either on that request or that reply and it will not be necessary for us to go into that matter. We mention this here because in the petition the petitioners have also made a grievance in that behalf. It is the case of the petitioners that they and the other members of the Senate had a statutory right not only to requisition the meeting of the Senate but to move and to vote on the proposed resolution at that meeting and the second respondent had a statutory duty cast upon him to convene the requisitioned meeting of the Senate and to permit the proposed resolution to be moved and voted upon at that meeting. It is also their case that inasmuch as the second respondent prevented that by his ruling, he failed to perform the statutory duty case upon him by the provisions of the Act and the Statutes made thereunder. In their petition, they draw attention to some of those provisions to which we shall presently refer. It is also the case of the petitioners that the second respondent had not bona fide exercised the powers vested in him as Chairman of the meeting. There is an averment in the petition that the proposed resolution, if put to vote was bound to have been carried with substantial majority, and the second respondent, with the ulterior object of defeating the successful carrying out of the proposed resolution, took shelter under Statute 22 and disallowed the resolution from being considered by the Senate. They point out that after the consideration of the proposed resolution was disallowed, the meeting refused even to consider the subject matter of item No. 3 on the agenda, viz., the proposed resolution of Shri Thakorebhai Desai, by an overwhelming majority of 65 to 19 votes. The petitioners have also stated in their petition that the second respondent acted, in the performance of his duties, arbitrarily and arrived at a conclusion of his duties, arbitrarily and arrived at a conclusion which no reasonable man would he come to and that his decision is erroneous on the face of it. On all these averments, the petitioners submit that this Court should quash the ruling given by the second respondent and give the directions asks for in prayer (a) of the petition which prayer we have set out above.

(5) The University, the first respondent before us, has not put in any contentions affidavit and stated in the affidavit of the Registrar that it adopts a non-contentions attitude and submits to the orders of this Court.

(6) In opposition to the rule, the second respondent has put in an affidavit and therein raised various contentions. Some of those contentions are not relevant to the points which arise for determination and it is not necessary to burden this judgment with a recital of the same. In his affidavit the 2nd respondent has drawn attention to some of the provisions contained in the Act and the Statutes to which we shall presently by referring. He has denied the allegations of lack of bona fides and arbitrariness in the matter of the ruling challenged in this petition. The petitioners have stated in their petition that standard text books are not available in Gujarathi, particularly for higher studies in Faculties of Law, Medicine, Technology including Engineering and post-graduate studies, In his affidavit in reply, the second respondent has stated that reference to non-availability of text books for higher studies is a principle which is incorrect in theory and found utterly untenable in practice. We confess we find it difficult to appreciate this answer. We do not however intend to express any opinion on this controversial subject and are only concerned with the rival contentions.

(7) Section 3(1) of the Gujarat University Act, 1949, relates to incorporation of the University and is as under:-

'The Chancellor, the Vice-Chancellor of the University and the members of the Senate, the Syndicate and the Academic Council of the University and all persons who may hereafter become such officers or members, so long as they continue to hold such office or membership, are hereby constituted a body corporate by the name of 'The Gujarat University'.

Section 4 relaters to the powers of the University and is dividend into 28 clauses. The relevant and material clauses are as under:-

'(1) to provide for instructions, teaching and training in such branches of learning and courses of study as it may think fir to make provisions for research and dissemination of knowledge;

(2) to make such provision as would enable affiliated colleges and recognised institutions to under take specialization of studies;

(3) to organise common laboratories, libraries, museums, and other equipment for teaching and research;

(4) to establish, maintain and manage departments and institutes of research of specialised studies;

(23) to co-ordinate, supervise and control the conduct of post-graduate research work and teaching in the affiliated colleges and institutions recognised by the University:

(27) to promote the development of the study of Gujarathi and Hindi in Devangari script and the use of Gujarati or Hindi in Devnagari script or both as a medium of instructions and examination; Provided that English may continue to be the medium of instruction and examination in such subjects and for such period not exceeding ten years from the date on which S. 3 comes into force as may from time to time be prescribed by the Statutes'.

Section 10 rules that the Vice Chancellor shall be nominated by the Chancellor from amongst four persons recommended by the Senate. Section 11 relates to the powers of the Vice Chancellor, Mention need only be made here of sub-ss. (1) and (3) to which our attention was particularly drawn by counsel:

'(1) The Vice Chancellor shall be the principal executive and academic officer of the University and shall, in the absence of the Chancellor, preside at meetings of the Senate and any convocation of the University. He shall be an ex-officio member and the Chairman of the Syndicate and of the Academic Council. He shall be entitled to be present with the right to speak, at any meeting of any other authority or body of the University, but shall not be entitled to vote thereat unless he is a member of that authority or body.

(3) It shall be the duty of the Vice-Chancellor to ensure that this Act, the Statutes, Ordinances and Regulations are faithfully observed and he shall have all powers necessary for this purpose.'

Section 28 relates to the powers and duties of the Senate. The relevant and material parts of that section may be stated:

'18 (1) Subject to such conditions as may be prescribed by or under the provisions of this Act, the Senate shall exercise the following powers and perform the following duties, namely:-

(i) to make provision for instruction, teaching prescribed by or under the provisions of this Act, the Senate shall exercise the following powers and perform the following duties, namely:-

(ii) to make such provision as will enable affiliated colleges and recognised institutions to undertake specialization of studies;

(iii) to organize and make provision for common laboratories, libraries, museums and other equipment for teaching and research;

(iv) to establish and maintain departments and institutes of research and specialised studies;

(ix) to make, amend or repeal the Statures;

(xiv) to make provision relating to the use of Gujarati or Hindi in Devnagari script or both as a medium of instruction and examination'.

Section 28 rules that subject to such conditions as may be prescribed by or under the provisions of the Act, the Statutes may provide for all or any of the matters there enumerated. Section 58 which relates to disputes as to constitution of the University authority or body, is as under:-

'If any question arises regarding the interpretation of any provision of this Act, or of any Statute, Ordinance, Regulation or Rules, or as to whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University, the matter may be referred to the Chancellor and shall be so referred to him if twenty members of the Senate so require. The Chancellor shall, after taking such advice as he deems necessary, decide the question and his decision shall be final'.

Statute 22, which is one of the group of Statute head 'procedure at Meetings of the Senate', is as under;-

'(31) At every meeting the business to be entertained shall, unless the meeting by special vote otherwise determine, be taken in the following order: (8) The consideration of Ordinance, motions for making, amending and repealing Statutes, and proposal recommending amendments in the Act'.

(8) The contentions gave rise to interesting arguments before us, some of which were rather elaborate. The question that arise for our determination, however, lie in a narrow compass, and we have to determine whether it is within or without the ambit and scope of the powers of the Senate to discuss, and if the majority of the members so decide, to pass a resolution requesting the State Government and the State Legislature to amend S. 4 of the Act in the manner suggested. The other question that arises for our determination is whether it was the duty of the second respondent to allow discussion on the resolution, and if so, whether this Court in exercise of its discretion, should direct a mandamus in that behalf as prayed for by the petitioners.

(9) It has been argued before us by Mr. M. P. Amin, ;earned counsel for the petitioners, that the relevant provisions of the Act and the Statutes make it abundantly clear, if not in express words, certainly by necessary implication, that the Senate of the upon a resolution requesting the State Government and the State Legislature to make suitable amendments in the Act as may be found necessary from on S. 18, sub-sections (i), (ix) and (xiv). Reliance is also placed on Statute 31(8). The argument sufficiently stated is that the Senate exercises very wide powers under the Act. It is said that it is unnecessary in any enactment of this nature to state that the Senate should have the liberty of making recommendations to the State Government or the State Legislature and suggest amendments in the Act. Such power would be implicit in any such enactment. it is also said that if any intrinsic support was necessary for this proposition, that is to be the provisions relating to 'order of business' and in terms states that the Senate would consider ordinances motions for making, amending and repealing Statutes and proposals recommending amendments in the Act.

(10) On the other hand, it has been argued by Mr. J, C. Bhatt, learned counsel for the second respondent, that the Senate is a creature of the Act and it cannot make any recommendation to the Legislature to amend the Act, unless there is any specific authority to do so conferred on it by the Act itself. It is said that the second respondent acted in a bone fide manner and was merely trying to throw up the shackles of English. Our attention has been drawn by Mr. Bhatt to some provisions in addition to those we have already set out but we do not think they, advance the argument urged on behalf of the second respondent, and his case preliminary rests upon an insistence that every proposal and amendment that is brought before the Senate must be connected with the Gujarat University and in accordance with the Act. Otherwise it cannot be entertained and debated in the Senate. Learned counsel has also rested the case for the second respondent on S. 4(27) which relates to promotion of the study of Gujarati and Hindi and the use of Gujarathi or Hindi or both as a medium of instruction and examination, the proviso to which, as we have already stated, rules that English may continue to be the medium of instruction and examination for a period not exceeding ten years from the date on which S. 3 came into operation, It is said that this proviso to clause (27) of S. 4 read with Statute 22 in express terms forbids the Senate from discussing any request to the Legislature which is not in agreement with and which does not conform with the period of ten years prescribed by the proviso for the continuation of English as the medium of instruction.

(11) We are unable to see in S. 4(27) any express prohibition not any implied prohibition of the nature emphasised by learned counsel. Indubitably, the clause rules that English was to continue as medium of instruction for a period not exceeding ten years. But that is a limit of time and there can be nothing sacrosanct or absolutely unalterable about any such limit. It would be always competent to the Legislature to shorten or extend this period of time, and the way we read the relevant provisions it remains always open to the Senate to make any request to the law-maker in the matter of the alternation of the time-limit, if occasion arises for doing so. Mr. Bhatt has drawn our attention to a passage from Halsbury's Law of England, Third Edition, Volume 9, page 62, which is as under:-

'The posers of a corporation created by statute are limited and circumscribed by the statutes which regulate it and extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited.'

The statement of law quoted above, in out opinion accurately summarises the legal position. Applying the principles there summarised, we are of the opinion that the powers to make a recommendation or request to the State Government or the State Legislature of the nature under consideration, must be regarded as something incidental to and consequential upon the things which the Senate is empowered to do under the Act. Indeed, such power emerge from those provisions as a necessary implication. It seems to us that it would be very strange and incongruous if such poser did not exist in the Senate. Of course, we are not concerned with the propriety of these matters. We are only concerned with an enquiry into the question whether such power does or does not exist, and as we have just mentioned, the power to make a request to the State Government and the State Legislature does exist in the Senate. It is necessary corollary to its express powers. In our judgment, it is within the statutory machinery and the Act and the coverage of the wide powers of the Senate to initiate and discuss a resolution requesting the State Government and the State Legislature to extend the deadline of ten years to that of twenty years.

(12) It is axiomatic that the foundation for an application for a writ of mandamus is the failure to do some public duty. The duty of the Vice Chancellor, to allow introduction of and discussion by the Senate of matters within the powers of the Senate is an absolute duty. It is not a matter of discretion. A feeble attempt was made by Mr. Bhatt to show that there was no duty on the Vice Chancellor to entertain and permit discussion of any such request even if the proposal was otherwise in order. The suggestion was that he had a discretion in the matter and he relied upon Statute 67 which is one of the Statutes under the head 'points of Order'. It reads as under:-

'S. 67. The chairman shall be the sole judge on every point of order and may call any member to over, and if the member so called to order shall, in speaking, disregard such call the Chairman may direct him to sit down, and thereupon another member may speak'.

We are unable to see even a vestige of any discretionary power of the nature suggested by counsel and said to vest in the Vice Chancellor who, as Chairman, normally presides over meeting of the Senate. We have no doubt that the duty to permit the introduction of and debate on any such proposal which is otherwise in order is an absolute duty case upon the Vice Chancellor under the Act and the Statutes. Therefore, where a proposed resolution relates to a matter 'connected with the Guajrat University' it becomes the bounded duty of the person who presides over the meeting of the Senate to permit and regulate discussion of the same, unless there is some legal impediment to that being done. Now the impediment felt by the second respondent was that the proposed amendment was not in accordance with the Act. It has not been urged before us that the resolution did not relate to a matter connected with the University. Indeed, Mr. Bhatt accepts that position. Obviously, the resolution related to a vital factor and a matter of grave importance connected with the University. The sole contention here is that a proposal for an amendment in any provision of the Act cannot be regarded as something 'in accordance with the Act'.

(13) The contention is fallacious. It would be a totally incorrect view of the matter to say that by discussing a resolution of the nature under consideration, the Senate would be arrogating to itself a power it did not possess. We have already considered this question. It is obvious from the language of the relevant provisions of the Act and the Statutes already set out above, including Statute 22 on which the second respondent so heavily leans, that it is within the competence and powers of the Senate to entertain and discuss any matter connected with the University so long as it is in accordance with the Act. In our judgment, all matters, however diverse they may be, logically or naturally connected with and germane to the subject and object of the Act, must properly be regarded as being in accordance with the Act. Of course, the subject matter of the proposal or any amendment to it must be connected with the Gujarat University and the transaction of the business of the Senate and within the ambit and powers of the Senate. Of course again, the proposal or any amendment to it must embrace a matter really connected with the University and not be a cover or disguise for something de hors the Act. It must not be incongruous with the provisions of the Act and must be such that by fair intendment, can be considered as having unnecessary or proper connection with the University education in the State. The connection or nexus must be real and the proposal must be pertinent to a subject or a matter which is within the matrix of the Act. Considered in the light of these observations, it is extremely difficult to see how a resolution by the Senate embodying a request of the nature under consideration to the State Government and the State Legislature is not in accordance with the Act. It does not violate or go counter to any provision of the Act. The whole fallacy of the contention sought to be founded on Statute 22 lies in equating a request and a right to make a request to the law-maker to amend the relevant section of that enactment with the act itself or carrying out such amendment and the power to do so. We fail to see how in the context of the powers of the Senate it can be said that a proposal by way of a request to so amend the Act is not in conformity with the Act. That, if we may so describe it, was the burden of what the Senate by a resolution sought to voice. It must be concluded, therefore, that the second respondent failed to perform his duty and actually exercised his power in a manner which was wholly impermissible. It was clearly incumbent upon him to allow the Senate to entertain and discuss the proposal. He however ruled otherwise. It must follow that his ruling afford the foundation for the application by the petitioner for a writ of mandamus and the writ must go unless there is some cogent reason for withholding the same.

(14) It has been argued before us by learned counsel for the second respondent that no such writ should issue and the submission is really two-fold. It is urged that S. 58 of the Act affords an equally effective and sufficient remedy to the petitioners and the petitioners should have gone to the Chancellor before rushing to this Court with this petition. We have already set out S. 58. That section confers on the Chancellor a special power of giving certain decisions and it renders those decisions final It does not confer on every aggrieved person a right to have a matter referred to the Chancellor. It is only when such reference is requested to be made at the instance of 20 members of the Senate that the reference is to be granted as a matter of right. Mr. Bhatt has relied on two decisions. It is not necessary to burden this judgment with an examination of those decisions for they do not lend any support to the present contention.

(15) It is familiar law that mandamus will not be granted where there is another sufficient and effective remedy, such as for example, a right of appeal or revision. But it is abundantly clear from the language of S. 58 that it does not confer any alternative remedy which would debar a petitioner from coming to this Court. Therefore, the contention that the petitioners not having availed of a remedy under S. 58 the petition is liable to be dismissed, must be negatived.

(16) It is next urged that in any view of the matter, mandamus should not issue in the case before us and that we should exercise our discretion in favour of withholding the same rather than in favour of granting the same. It is said that at the highest, the matter before us raises questions, the solutions of which is doubtful. At the very outset of our judgment, we have observed that the questions raised on this petition are simple and easy of solution. Of course, if any of those questions left any pertinent matter in dubio we would lean in favour of the respondent against the petitioners. It is not necessary to refer to a decision of the Bombay High Court to which our attention has been drawn by Mr. Bhatt. Agreeing with Chainani C. J., I there stated that no mandamus would issue in respect of an act on which two views are possible for it cannot then be stated that the authority is transgressing the limits of his power.

(17) There is another petition on out list which we directed to be placed before us immediately after the present petition. The questions that arise for determination in that petition are the same. Mr. C. N. Shah, learned counsel for the Vice-Chancellor who is the first respondent in that petition, has advanced before us certain arguments. His principal argument is that Statute 31(8) speaks of a proposal recommending amendment in the Act. Such proposal must be in accordance with the Act and we have been asked to compare the language of Statute 22 and Statute 31(80. We do not think that the effect of Stature 31(8) on any such comparison is to prevent any recommendation of the nature before us being made by the Senate to the State Legislature or the State Government. It is then said that the result of the proposed amendment requested by the versity to promote Gujarati and indeed negative and undo that object. We are unable to share Mr. Shah's pessimism. A period of ten years in a matter of this type cannot be regarded as resulting in undoing of the effect in of the effect of the enactment, Besides, it is a matter solely for the determination of the Legislature and all that the resolution seeks to do is to request, the lawmaker to consider the request, and if satisfied after a due consideration, to make an amendment as proposed in the proviso to S. 4(27).

(18) All these considerations inevitably lead us to the conclusion that this is a fit case for the exercise of our powers in the matter of issuance of a suit of mandamus. Moreover, it seems to us that in upholding the point of order the second respondent acted in a manner which must be characterised as arbitrary. It is not necessary to rehearse the facts which we have already stated. They are not in dispute and not disputable. The point of order seems to have been decided by the second respondent, no doubt after some discussion, but substantially the discussion (sic-discussion) rest on his mere is plausible has been established in support of that decision. It was in course of the arguments, as we have already mentioned, that it was urged before us that there was some discretion vested in the point of respondent in the matter of deciding the point of order. Even if we had taken the vies that there was some such discretion vested in him, we should have on the facts of this case held, not withhold some reluctance, that he acted in ruling out that resolution in an impermissible manner and a manner which was arbitrary.

(19) In the result, the petition succeeds and the rule will be made absolute. A mandamus will issue against the respondents requiring them to treat the ruling of the second respondent as void and ineffective and direction them to continue the requisitioned meeting of the Senate held on 28th June 1960 and another directing them to put the resolution contained an item No. 2 on the agenda of the said meeting for consideration and treating the said resolution as in order. Mr. Nanavathy for the petitioners states that he does not press for the costs of this petition. There will be no order for costs.

(20) Petition allowed.


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