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Rikhi Ram Kaundal Vs. Shri Ganu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtHimachal Pradesh High Court
Decided On
Case NumberElection Petn. No. 6 of 1982
Judge
ActsRepresentation of the People Act, 1951 - Sections 33(2), 36 and 100(1); ;Election Rules, 1961 - Rule 4; ;Constitution (Scheduled Castes) (Union Territories) Order, 1951 - Section 33
AppellantRikhi Ram Kaundal
RespondentShri Ganu Ram and ors.
Appellant Advocate P.N. Nag,; Sarvshri Rajinder Kishore Sharma and; Naresh
Respondent Advocate Chhabil Das and; Yoginder Pal, Advs.
Cases Referred and Samant N. Balakrishna v. George Fernandez
Excerpt:
- ordert.r. handa, j.1. during the last generalelections to the himachal pradesh vidhan sabha held in may 1982, the petitioner shri rikhi ram kaundal and all the four respondents, sarvshri ganu ram, banta ram, ram parkash and niku ram were in the field to contest the seat from 23-gehrwin assembly constituency. this seat is reserved for scheduled caste candidates only. shri ganu ram respondent no. 1 polled 7477 votes which being the highest number of votes polled by any candidate, he was declared elected. the petitioner who trailed immediately behind secured 6901 votes. there is nothing on the record to show the number of votes secured by the other three candidates.2. the petitioner who had contested the election as an independent candidate has brought the present election petition under.....
Judgment:
ORDER

T.R. Handa, J.

1. During the last generalelections to the Himachal Pradesh Vidhan Sabha held in May 1982, the petitioner Shri Rikhi Ram Kaundal and all the four respondents, Sarvshri Ganu Ram, Banta Ram, Ram Parkash and Niku Ram were in the field to contest the seat from 23-Gehrwin Assembly Constituency. This seat is reserved for scheduled caste candidates only. Shri Ganu Ram respondent No. 1 polled 7477 votes which being the highest number of votes polled by any candidate, he was declared elected. The petitioner who trailed immediately behind secured 6901 votes. There is nothing on the record to show the number of votes secured by the other three candidates.

2. The petitioner who had contested the election as an independent candidate has brought the present election petition under Sections 81, 100 and, 101 of the Representation of the People Act, 1951 (hereinafter called 'the Act'), praying that the election of respondent No. 1 be declared void. A further prayer initially made in the election petition was that after the election of respondent No. 1 is declared void, the petitioner be declared elected from the aforesaid constituency in place of respondent No. 1. This second prayer was, however, later dropped at the time of settlement of issues.

3. The election of respondent No. 1 has been challenged on three grounds. The first ground is that the nomination papers filed by respondent No. 1 were not in order and had been improperly accepted, by, the Returning Officer. It is alleged that in the nomination paper filed by him respondent No. 1 had made no declaration specifying the particular caste of which he is a member and the area in relation to which his caste is a scheduled caste of the State. The nomination paper of this respondent in these circumstances was improperly accepted.

4. The second ground, is that inasmuch as respondent No. 1 had made no declaration of the kind referred to above in his nomination paper, he was not qualified for being chosen from the 23-Gehrwin reserved constituency in terms of the mandatory provisions of section 33(2) of the Act.

5. The third ground is that respondent No. 1 was not qualified for being chosen from the aforesaid, reserved constituency inasmuch as he does not belong to any of the castes which have been declared as scheduled castes. According to the petitioner, respondent No. 1 is a 'Dhiman' by caste which is apparent from the fact that at the time when he got admission of his son, Shri Dalip Singh in Government High School Bilaspur, respondent No. 1 had described himself as 'Dhiman'. According to the further contention of the petitioner, the caste 'Dhiman' has never been declared as scheduled caste in the State of Himachal Pradesh.

6. Respondent No. 1 alone appeared to contest this petition. In his reply, this respondent did not dispute that the nomination paper which he filed before the Returning Officer did not contain the declaration on the prescribed form specifying the caste of which he is a memberand the area in relation to which this caste has been declared as scheduled caste in the State. He, however, alleged that along with his nomination paper he had attached a certificate from the Sub-Divisional Magistrate Ghumarwin in which this respondent had been described as a member of the scheduled caste, being of 'Lohar' caste. The nomination paper filed by him when read as a whole along with its enclosures, according to respondent No. 1, clearly reflected, that this respondent was a member of a scheduled caste as notified by the President of India in the Scheduled Castes Order and as such the nomination papers filed by him were in order and had been rightly accepted by the Returning Officer, In other words the filing of the certificate from the Sub-Divisional Magistrate showing the respondent as a member of the scheduled caste, was, according to the respondent, a sufficient compliance of the provisions of Section 33 (2) of the Act and he was not, therefore, disqualified for being chosen. The respondent further pleaded that his caste was 'Lohar' which had been declared as scheduled caste in the Presidential Order. He admitted that he had been suffixing the word 'Dhiman' after his name but denied that 'Dhiman' was his caste. According to the contesting respondent the suffix 'Dhiman' was used after his name by every member of the artisan class, namely, Tirkhan (carpenter), Lohar (blacksmith) etc. The simple use of this word would not mean that this respondent ceased to belong to his caste which was Lohar.

7. On the aforesaid pleas of the parties the following issues were struck:

1. Whether respondent No. 1 was qualified to be chosen to fill the seat against which he has been returned?

2. Whether the nomination paper of the respondent was improperly accepted? If so to what effect?

3. Whether the respondent belongs to scheduled caste? If so, to what effect? Issue No. 1.

8. The plea of the election petitioner that respondent No. 1 was not qualified to be chosen to fill the seat against which he has been declared, is founded on two grounds each of which is independent of the other. The first of these grounds is that respondent No. 1 having failed to make a declaration in his nomination paper, specifying the particular caste of which he is a member and the area inrelation to which that caste is a scheduled caste of the State, he, by virtue of the deeming provisions of Section 33 (2) of the Act, was not qualified to be chosen to fill the seat in question which was admittedly a reserved seat. The second ground pleaded is that respondent No. 1 is not a member of any scheduled caste of the State and, therefore, was not qualified to be chosen to fill this reserved seat which was reserved for scheduled castes only. The present issue relates to the first of these two grounds. The second ground, would be covered under issue No. 3.

8A. It is common case of the parties that the seat for which the parties contested and against which respondent No. 1 has been declared elected, is a reserved seat. It is reserved for Scheduled Castes only. It may be observed that Article 332 of the Constitution provides for reservation of seats for the Scheduled, Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in Nagaland and in Meghalaya, in the Legislative Assembly of every State. The actual reservation of such seats for scheduled castes and scheduled tribes in the Legislative Assemblies of the various States is made under Section 7 of the Representation of the People Act, 1950. The seat in question is thus reserved for scheduled castes under a valid law. It is, therefore, undeniable that one of the essential qualifications for a candidate to contest this reserved seat was that he must be a member of a scheduled, caste of the State.

9. It is again not in dispute that as pleaded in the election petition, the nomination paper filed by respondent No. 1 in respect of his nomination, contains no declaration of this respondent, specifying the particular caste of which he is a member and the area in relation to which that caste has been declared a scheduled caste of the State. Otherwise also a bare look at the nomination paper Ex. PW. 1/1 which is admittedly the only nomination paper filed by respondent No. 1 in respect of his nomination, would show that the declaration of the kind referred to above is not contained in it Of course along with this nomination paper Ex. PW.1/1, respondent No. 1 had filed a certificate issued by the Sub-Divisional Magistrate Ghumarwin certifying that this respondent 'belongs to scheduled caste (Lohar)'. This certificate is found at Ex. PW1/3.

10. It is in the light of the aforesaid short but undisputed facts that I am called upon to return my verdict on the point whether respondent No. 1 was or was not qualified to be chosen to fill the seat against which he has been declared elected. Sub-section (2) of Section 33 of the Act which has been invoked by the election petitioner in support of his plea covering this issue, is in the following terms:--

'33. PRESENTATION OF NOMINATION PAPER AND REQUIREMENTS FOR A VALID NOMINATION.

XX XX XX XX XX XX (2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the Stale.' The language employed in the sub-section extracted above is plain and admits of no ambiguity. Looking at this provision it is imperative that a candidate contesting a seat reserved for scheduled castes, as in the case in hand, must make a declaration in his nomination paper specifying the particular caste of which he is a member and the area in relation to which that caste is a scheduled caste of the State. The sub-section further provides that unless the nomination paper of a candidate contesting a reserved seat contains the declaration of the kind referred to above, he shall no' be deemed to be qualified to be chosen to fill that seat. Admittedly in the instant case the nomination paper filed by respondent no. 1 contains no such declaration. By the very force of the language used in Section 33 (2), the conclusion, therefore, is irresistible that respondent No. 1 was not qualified to be chosen to fill the seat against which he has been declared elected,.

11. The counter argument advanced on behalf of respondent No. 1 is like this: The object of Sub-section (2) of Section 33 is only to give a notice to the Returning Officer and the other candidates at the election, of the particular caste of which a candidate contesting a reserved seat, is a member so as to able them to verify that his caste is a scheduled caste of the State. True the argument proceeds, that respondent No. 1 had in his nomination paper made no declaration of the type required by Sub-section (2) of Section 33, but he had then attached with his nomination paper, the certificate Ex. P. W. 1/3. This certificate had been issued by a competent authority, namely, the Sub Divisional Magistrate Ghumarwin and it certified in clear terms that respondent No. 1 was a member of scheduled caste (Lohar). The nomination paper of respondent No. 1 read with this certificate of the Sub Divisional Magistrate should be taken as substantially meeting the requirements of Subsection (2) of Section 33. Respondent No. 1, therefore, in the presence of this certificate which formed part of his nomination paper, would not be deemed to be not qualified to be chosen to full the reserved seat in question.

12. This argument, however attractive it may look, is devoid of all force. The certificate of the Sub Divisional Magistrate attached by respondent No. 1 with his nomination paper, can neither be treated as a part of the nomination paper nor as a substitute for the declaration within the contemplation of Sub-section (2) of Section 33. The nomination paper has to be filed on a prescribed form duly completed and signed by the candidate and his proposer. This is a statutory mandate contained in Sub-section (1) of Section 33 of the Act. The form of nomination paper has been prescribed under the Conduct of Election Rules 1961 (See Rule 4). This form is called Form 2-B. This is a self-contained form and does not contemplate the filing of any enclosures or certificate along with it. The relevant parts of this prescribed form read thus:

FORM 2B

(See Rule 4)

NOMINATION PAPER

Election to the Legislative Assembly of .....(State) I nominate as a candidatefor election to the Legislative Assembly from the ............assembly constituency.Candidate's name .....His postal address .....

His name is entered at S. No.......... inPart No.......of the electoral roll for the............assembly constituency.

My name is .........and it is entered atS. No.......... in Part No. .....Of theelectoral roll for the ...............assemblyconstituency.

Date .......... (Signature of proposer)

I, the above-mentioned candidate, assent to this nomination and hereby declare -

(a) that I have completed .........Yearsof age,

*(b) that I am set up at this election by the ............... party;

(c) that the symbols I have chosen are, in order of preference (i).........(ii).........and (iii) ............ .'.,.,....'..

*I further declare that I am a member of the .........**caste/tribe which is ascheduled **caste/tribe of the State of .....in relation to .....(area) inthat State.

Date ......... (Signature of candidate).

*Score out this paragraph, if not applicable.

**Score out the word not applicable.

XXX XXX XXX XXX XXX

This form has been prescribed for candidates of both categories, those who are contesting a general seat as well as those who are contesting a reserved seat. It is ligitimate to presume that while prescribing this form, the relevant provisions of the Act were kept in view and the main object of this form was to ensure the compliance of such provisions. This form consists of five parts. The first part is required to be filled in and signed by the proposer of the candidate. The second part is required to be filled in and signed by the candidate himself. Both these parts are to be completed and signed, before the nomination paper is filed before the Returning Officer. The remaining three parts are to be filled in and signed by the Returning Officer after the nomination paper is filed. These last three parts are not, therefore, relevant for our purpose and hence I have not considered it necessary to extract them out. We are here concerned only with the second part extracted above.

13. This second part which is in the form of a declaration can be further split into two sub-parts. In the first sub-part which is applicable to candidates of both the categories, a candidate is required to declare his age, name of his party and the symbols in order of preference which he has chosen. In the next sub-part which is relevant and important for our purpose, a candidate is required to further declare the caste or tribe of which he is a member and also the area in relation to which that caste or tribe has been declared to be a scheduled caste or tribe, as the case may be, of the State. In the case of a candidate who is contesting a general seat he is not enjoined under any law or statute to specify in his declarationthe particular caste or tribe of which he is a member. This second sub-part of declaration required to be made by a candidate is, therefore, wholly irrelevant in the case of a candidate contesting a general seat.

14. It, therefore, follows that the seconds sub-part of the declaration which requires a candidate to specify the particular caste or tribe of which he is a member and the area in respect of which that caste or tribe has been declared as scheduled caste or tribe, as the case may be, of the State, is required to be made only by a candidate who is contesting a reserved seat. This declaration has been incorporated in the prescribed, form obviously with the object of ensuring compliance with the mandatory provisions of Sub-section (2) of Section 33, in 'the case of candidates contesting reserved seats. The prescribed nomination form, therefore, as already observed is a self contained form which if duly completed and signed would answer all these statutory requirements. This prescribed form does not contemplate the filling of any enclosures along with it. The certificate Ex. P. W. 1/3 filed by respondent No. 1 along with his nomination form cannot, therefore, be treated as a part of the nomination paper.

15. Assuming, though not conceding,that certificates Ex. P. W. 1/3 can be treated as a part of the nomination paper Ex. P. W. 1/1 and that these two documents taken together form a complete nomination paper of respondent No. 1, I fail to appreciate how this would improve the matters so far as respondent No. 1 is concerned. Even these two documents read together would not meet the statutory requirements of Sub-section (2) of Section 33 of the Act. The statute requires a candidate to make his own declaration specifying the caste of which he is a member and the area in relation to which that caste is a scheduled caste of the State. This declaration of the candidate is then required to be signed by the candidate himself. Certificate Ex. P. W. 1/3 is neither a declaration in the prescribed language nor does it bear the signatures of respondent No. 1. This certificate is thus no substitute for the declaration within the contemplation of Sub-section (2) of Section 33. It may be observed that when Sub-section (2) of Section 33 requires that the declaration of the kindmentioned therein should be contained in the nomination form of the candidate, it talks of the prescribed nomination form. A reference to the prescribed nomination form would make it clear that such a declaration must be signed by the candidate.

16. It is by now a well established, rule of law, having been repeatedly recognised by the Supreme Court, that whenever a statute requires a particular act to be done in a particular manner and also provides that failure to comply with the said requirement leads to a specific consequence, the requirement is mandatory and in the event of its non-compliance, the consequences as specified in the statute must necessarily follow. This rule should apply with all the more force in election matters in view of the following observations of the Supreme Court made in the case of Jagan Nath v. Jaswant Singh reported in AIR 1954 SC 210 (at p. 212):--

'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power.'

The aforesaid observations of the Supreme Court have later been approved in Baru Ram v. Smt. Parsanni, AIR 1959 SC 93 and Samant N. Balakrishna v. George Fernandez (AIR 1969 SC 1201).

17. On the facts of the case in hand which are undisputed, there is, therefore, no escape from the conclusion that respondent No. 1 having failed to make a declaration in his nomination form specifying the particular caste of which he is a member and the area in relation to which that caste is a scheduled, caste of the State, the consequences provided for such non-compliance in Sub-section (2) of Section 33 must follow and it must be held that respondent No. 1 was not qualified to be chosen to fill the seat against which he stands elected. This first issue is, therefore, found in favour of the petitioner and against respondent No. 1. Issue No. 2.

18. Under this issue the plea of the petitioner is that the nomination paper of respondent No. 1 should have been rejected at the time of scrutiny and its acceptance being improper, the election of this respondent must be declaredvoid. Section 36 of the Act deals with scrutiny of nomination papers. It is under this provision that the nomination papers are accepted or rejected by the Returning Officer, Sub-section (2) of this section enjoins upon the Returning Officer to reject a nomination paper where;

(a) the candidate is either not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:--

(i) Articles 84, 102, 173 and 191 of the Constitution, and,

(ii) Part II of the Act.

(b) that there has been a failure to comply with the provisions of Section 33 or Section 34 of the Act, or

(c) the signature of the candidate or the proposer on the nomination paper is not genuine.Sub-section (4) of Section 36 next provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

19. It follows, therefore, that a defect of substantial character in a nomination paper must entail its rejection. If, therefore, once it is found that the nomination paper filed by respondent No. 1 suffered from a material defect, the same had to be rejected and its acceptance must be declared improper. I have already held under issue No. 1 that the nomination paper filed by respondent No. 1 whether taken by itself or read along with its enclosure Ex. P. W. 1/3, is neither complete nor does it comply with The mandatory requirements of Section 33 (2) of the Act. Non-compliance of Section 33 (2) of the Act from which defect the nomination paper of respondent No. 1 suffers, entails penal consequences as provided in the statute itself. Such a defect, therefore, cannot but toe treated as a defect of substantial character. To sum up, there had been in the case of respondent No. 1 a failure to comply with the provisions of Section 33 (2) of the Act and since this non-compliance amounted to a defect of a substantial character, the nomination paper of respondent No. 1 deserved to be rejected under Section 36 (2) of the Act. The acceptance of the nomination paper of respondent No. 1 in the circumstances was, therefore, improper. This issue is also foundin favour of the petitioner and againstrespondent No. 1. Issue No: 3

20. The case for respondent No. 1 is that he is a Hindu and being 'Lohar' by caste he belongs to a scheduled caste within the meaning of paragraph 2 read with Part VI of the Constitution (Scheduled Castes) Order, 1950 issued under Article 341 of the Constitution. The caste 'Lohar' is covered by item No. 36 in Part VI (Himachal Pradesh) of the Schedule to the Order,

21. It is not disputed, on behalf of the petitioner either that 'Lohar' is a scheduled caste for the State of Himachal Pradesh within the meaning of the Constitution (Scheduled Castes) Order 1950. The contention of the petitioner is that respondent No. 1 is not a 'Lohar' but 'Dhiman' by caste and hence ha cannot be treated as a member of the scheduled caste for the State of Himachal Pradesh. So the controversy between the parties boils down to the point whether for the purposes of the Constitution (Scheduled Castes) Order, 1950 respondent No. 1 is a member of a caste, tribe or race known as 'Lohar' in the State of Himachal Pradesh.

22. Both sides have adduced oral as well as documentary evidence in support of their respective contentions giving rise to the controversy referred to above. Shri Ganu Ram respondent No. 1 put himself into the witness box to state on oath that he was a 'Lohar' by caste and has all along been treated as a member of the scheduled caste in the State. Previously he was employed, in the Himachal Government Transport Department as a clerk. In 1974 he was promoted to the rank of Junior Auditor in the same Department against the quota reserved for scheduled castes. Ex. R. W. 4/2 is a copy of the letter dated 25-8-1973 addressed by the Regional Manager, Himachal Government Transport Bilaspur to the Commissioner Transport, Himachal Pradesh Simla. Enclosed with this letter is a list of the employees belonging to scheduled caste which is Ex. R. W. 4/3. The name of respondent No. 1 figures at S. No. 1 of this list suggesting thereby that he was treated as a member of scheduled caste by his employer Shri Dalip Singh son of respondent No. 1 also secured his admission in the M. B. B. S. course of the H. P. Medical College against the quota reserved for scheduled castes.

These concessions availed by the respondent and his son Shri Dalip Singh were admittedly never challenged. The respondent also summoned the record, of the Government High School Bilaspur pertaining to his own admission in that school. Ex. R. W. 3/1 is a true copy of the Admission Register of the said school concerning this respondent. This entry is dated 17-4-1935. In this entry under the column Tribe or Caste' the father of the respondent has been described as 'Blacksmith' which term when translated into Hindi means 'Lohar'. The respondent also produced two copies of Pedigree tables which are Ex. R. W. 2/1 and Ex. R. W. 2/2. In the Pedigree table Ex. R. W. 2/1 the family of respondent No. 1 has been described as of 'Lohar' caste, while in the other Pedigree table Ex. R. W. 2/2, the caste of the family of the respondent is mentioned as 'Lohar Attar'. It is not disputed that 'Attar' is only a Gotar and does not form part of any caste. Two oral witness, namely, Shri Sant Ram (R.W. 8) and Shri Pala Ram (R.W. 9) were also examined on behalf of respondent No. 1 and both of them deposed that the caste of respondent No. 1 was 'Lohar' and he had been treated as belonging to that caste in the area. A suggestion was put to respondent No. 1 in his cross-examination that he was Brahmin by caste but he denied the same. Respondent Wo. 1 did not deny having used, the suffix 'Dhiman' after his name but then explained that 'Dhiman' was no caste.

23. The petitioner on his part made an endeavour though a futile one to prove that respondent No. 1 was 'Lohar' only by profession and not by caste and that the caste of respondent No. 1 was 'Dhiman'. He further tried to prove that 'Dhimans' were Brahmins and could not, therefore, be treated as members of the scheduled caste. The evidence of the petitioner, however, in my view, supports the case of respondent No. 1 rather than his own case. The petitioner himself impliedly admitted in his cross-examination that 'Dhiman' was not a caste but a suffix used after their names by all the artisan classes. To quote his own words the petitioner stated. It is correct that all the Tirkhans, Lohars and masons in this area call themselves as 'Dhimans'. P. W. 4 Shri Rattan Lal Sharma is another witness examined by the petitioner on this point. According to this witness 'Dhimans' have only five professions. They are either 'Lohar' or'Tirkhan' or 'Mason', or 'Utensil makers' or 'Goldsmiths'. If it is so, it is ridiculous to say that 'Dhimans' are Brahmins since none of the aforesaid professions was meant for the members of the high caste of Brahmins. The only safe conclusion is that 'Dhiman' is no caste but a common suffix used after their names by artisans like 'Lohar' Tirkhan.s' 'Utensil makers', 'Goldsmith' and masons. Both P. W. 4 Shri Rattan Lal Sharma P. W. 5 Shri Bansi Lal next admit that 'Lohars' who called themselves 'Dhimans' have been treated as scheduled caste in the State and they had been availing of various concessions permissible to the members of the scheduled castes in the State. They could have availed of these concessions only if they had been accepted as members of the caste or tribe or race known as 'Lohar' in the State and which has been declared as scheduled caste under the Constitution (Scheduled Castes) Order, 1950. This also shows that 'Dhiman' was never treated as a caste or else these persons who called themselves as 'Dhimans' could not have been allowed to avail of the concessions permissible to scheduled castes only. So the logical conclusion is that 'Dhiman' is no separate caste or tribe. It is only a common suffix used after their names by the members of certain classes like 'Lohar', 'Tirkhans', 'Goldsmiths', 'Utensil makers' and 'Masons' and, this suffix they use as a matter of course or custom.

24. In passing, it may be observed that according to the learned counsel for the petitioner, respondent No. 1 had himself made an admission of his belonging to Brahmin caste and in view of that admission it was not now open, for him to plead that he belonged to any other caste. This admission relied upon by the learned counsel for the petitioner is alleged, to be contained in Ex. P. W. 3/1 which is an Admission Form which was filled by respondent No. 1 when he got his son admitted in the Government High School Bilaspur. In this form respondent No. 1 gave his name as 'Ganu Ram Dhiman'. I have already explained the use of this suffix 'Dhiman' against the name of respondent No. 1 and in view of that explanation this Admission Form Ex. P. W. 3/1 cannot be treated as an admission on the part of respondent No. 1 that he is Brahmin by caste.

25. In view of the evidence of either party as discussed above, my conclusionsare that 'Dhiman' is no caste and that respondent No. 1 belongs to the caste or tribe called 'Lohar' in the State. He, therefore, in terms of the Constitution (Scheduled Castes) Order, 1950 is a member of the scheduled caste of the State.This issue is accordingly found in favour of respondent No. 1.


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