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Petitioner: ALI GOHAR VS Respondent: PROVINCE OF SINDH and others
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Aziz-ur-Rehman Title: ALI GOHAR vs PROVINCE OF SINDH and others Case No.: Constitution Petition No,D-4613 of 2016 Date of Judgment:2017-12-20 Reported As: 2018 CLC 1999 Result: Petition dismissed
JUDGMENT
JUDGMENT AZIZ-UR-REHMAN, J.---By this order we propose to dispose of CP No,D-4613 of 2016, filed by Ali Gohar son of Muhammad Umar against Respondent No, 1-Province of Sindh through Secretary Land Utilization Department and 2 others on 26.08.2016 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 [Ali Gohar son of Muhammad Umar v. Province of Sindh and 2 others] whereby, the Petitioner has approached this Court with the following prayers:- a]. Hold that the Respondent No,3 was allotted only 14-30 acres of land in Sector 22, KDA Scheme- 33, Karachi, and no extra/additional land was allotted to Respondent No,3 by the Respondent No,1 in Sector 22, KDA Scheme-33, Karachi. b]. Set-aside the Layout Plan No, URP-33.216/ MP&EC/88/208/UD-181, dated 07.05.2008 and creation of commercial Plot No,18, directing the Respondent No,1 to restore the Petitioner his 10- Ghuntas land/plot situated in Sector 22, KDA Scheme-33, Karachi. c]. Restrain the Respondent No,3, their servants, subordinates, agents, assigns, and/or any other person(s), claiming through or under them from alienating, mortgaging, selling, disposing-off and/or creating any third party interest in respect of the Plot/Land of the Petitioner, measuring 10 Ghuntas, situated in Sector 22, KDS Scheme-33, Karachi, in any manner whatsoever. d]. Any other relief(s) as this Honourable Court may deem it and appropriate under the circumstances of the case may also be granted. 2. Succinctly stated the facts of the case are as follows: 3. The Petitioner claims to be lawful and bonafide owner of 03-00 acres of land in different pieces, situated in Sector 22, Scheme-33, Karachi, as per Allotment Order No,PS/MBR/LU/(1353)96 N.C.1 [hereinafter referred to as 'suit property'], issued by Respondent No,1 through , Secretary, Land
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Utilization Department. 4. The Allotment Order No,PS/MBR/LU/(1353)96 dated 25.08.1996 [Annexure 'A' to MoP], it is significant to note, besides, being not in favour of the Petitioner exclusively refers to Judgment and Decree dated 26.04.1993 and 03.05.1993 respectively, passed in Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. Deputy Commissioner, Karachi East]. The said Suit No,131 of 1992, it appears, was filed by the petitioner in his capacity as a President of Allah Dino Khaskhelee Village, Sector 22, Scheme No,33, Main University Road, Karachi, before the Court of IInd Senior Civil Judge, Karachi [East], for Permanent Injunction. 5. From the record, it transpires that the Petitioner herein [Plaintiff in Suit No,131 of 1992], somehow, succeeded in getting an ex-parte 'Judgment' and 'Decree' in his favour as prayed, however, with no order as to costs. The prayer sought in the aforesaid Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. The Deputy Commissioner, Karachi East], reads as follows:- "a). Permanent Injunction by restraining the defendant, his staff his men, agents or any person working under him from dispossessing the Plaintiff along with the residents of Allah Dino Khaskhalee Village, situated at Sector No,22 Scheme No,33, Main University Road, Karachi without due process of law and not to allot the land of the Allah Dino Khas Khalee Village in the name of any other person who are not the resdients of the Allah Dino Khas Khalee Village. [Underlining is ours] b). Cost of the suit. c). Any other relief which the Hon'ble Court may deem fit and proper." 6. The aforesaid Judgment and Decree, upon having been challenged through an application under section 12(2), C.P.C., by one Ahmed Ali son of Haji Shakeel Akilado, in his capacity as an INTERVENOR/APPLICANT were set aside and later-on, the said Civil Suit No,131 of 1992, was also dismissed as withdrawn on 15.02.1994. Order dated 15.02.1994, passed by IInd Senior Civil Judge, Karachi, East, reads as follow:- "IN THE COURT OF SR. CIVIL JUDGE, KARACHI (EAST) Civil Suit No,131 /92 Ali Gohar S/o Muhammad Umar, President of Allah Dino Khaskhalee Village, Sector No,22, Scheme No,33, T appo Gujro, Main University Rd., Karachi Plaintiff V/S The Deputy Commissioner, Karachi East Defendent ORDER Plaintiff and counsel for the defendant present, the L/AGP has no objection if the suit is dismissed as withdrawn. In view of the above the application is allowed as prayed and the suit is dismissed as withdrawn with no order as to cost. [Underlining is ours.] Sd/-15.02.1994 HND'SR. CIVIL JUDGE KARACHI EAST" 7. The Judgment and Decree of 26.04.1993 and 03.05.1993 respectively were not only irrelevant but also the same were not in field at the time of issuing the allotment order No,PS/MBR/LU/(1353)96
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dated 25.08.1996 in favour of the Petitioner herein and one Noor Hussain, as upon setting aside of the aforesaid Judgment and Decree, even the said Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. The Deputy Commissioner, Karachi East] was dismissed as withdrawn on 15.02.2014. 8. Per para 2 of the Memo of Petition [In short MoP], upon full payment of cost of land and fulfilling all other necessary codal formalities/ requirements of ownership, at the office of Deputy Commissioner, Karachi East/Mukhtiarkar, Gulshan Iqbal, Karachi, the 'POSSESSION' of the 03-00 acres land, as claimed was HANDED OVER to the Petitioner in different pieces. 9. According to Petitioner's stand one so-called 'Plot' [unknown/ un-specified] measuring '10 Guntas' equivalent to 1210 sq.yds. out of the 03-00 acres land of Petitioner, has now been encroached upon by Respondent No, 3, under the garb of Lay out Plan No,URP- 33.216/MP&EC/88/208/UD-181 dated 07.05.2008, passed by Respondent No,2-Director Master Plan Department, in favour of Respondent No,3-Honourary Secretary/Managing Committee Divisional Commissioner's Employees Cooperative Housing Society. 10. Per Petitioner's version, Karachi Divisional Commissioner's Employees Co-operative Housing Society [In short KDCECHS], is only owner of 14-30 acres land in Sector 22, KDA Scheme No,33, Karachi, but Respondent No,2, as alleged, has illegally approved Lay out Plan No,URP-33.216/ MP&EC/88/208 /UD-181 dated 07.05.2008, for an area of 15 acres instead of 14-30 acres land whereby, the plot of 10 Guntas equivalent to 1210 sq.yds, as averred by the Petitioner, was thus got encroached by Respondent No,3, as alleged, illegally, unauthorizedly and without any lawful justification. Hence the instant petition. 11. On 07.09.2016, when the above 'Writ Petition' came-up before the Court then, the following order was passed:- "07.09.2016 M. Ghulam Akbar Khan Jatoi Advocate the Petitioner. 1) Urgency application is granted. 2) Exemption is allowed subject to all just exceptions. 2, 4 and 5) Office has raised objection that the impugned layout plan has not been filed by the Petitioner. The objection appears to be valid. Counsel for the Petitioner states that copy of the impugned lay out plan has not been provided to the petitioner by respondent No,2 despite repeated requests. He is put on notice to satisfy the Court on the next date about the maintainability of this petition in the absence of the impugned layout plan and also with regard to prayer clause 'a', wherein a declaration has been sought, which can be granted only by a Civil Court. Subject to the question of maintainability, let notice be issued to the respondents as well as Advocate General Sindh, Respondent No,2 is directed to produce the impugned lay out plan before this court on the next date. To come up on 28.09.2016 at 11:00 a.m." [Underlining is ours]. 12. Upon service, Mr. Raja Basantani, besides, filing `Vakalatnama' on behalf of Respondent No,3, filed a detailed 'counter-affidavit' of one Nasir Wasiullah son of Wasiullah in his capacity as being authorized person of Respondent No,3-Housing Society, wherein, Respondent No,3 has vehemently denied the assertions/stand taken by the Petitioner in the Memo of Petition. In response to 'counter-affidavit', the Petitioner did not file any 'affidavit-in-rejoinder, as such, the contents of the 'counter-affidavit', filed by Respondent No,3, have gone un-rebutted/unchallenged. 13. Apart from the above, a statement dated 10.11.2011, in compliance with Court's orders earlier passed on 28.09.2016 and 20.10.2016, has also been filed. Being relevant Order dated 10.11.2016, is reproduced herein-below:- "10.11.2016 Mr. Ghulam Akbar Khan Jatoi, Advocate for the Petitioner Mr. Shahzad Qureshi, Advocate for Respondent No,3/SBCA along with Syed Nishat Ali, Deputy Director, Master Plan Department, SBCA
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Mr. Raja Basantani Advocate files power on behalf of respondent No,3, which is taken on record. He requests for time to file counter affidavit. Let the needful be done before the next date with advance copies to other side. In pursuance of the orders passed earlier, a statement dated 10.11.2016 has been filed by Master Plan Department SBCA along with several documents including lay out plan of the land in question. The above are taken on record, copies whereof have been received by the counsel for the Petitioner, who requests for time to examine the same and' to seek instructions in respect thereof. In the aforesaid statement, it has been pointed out by SBCA that the present Petitioner has filed Civil Suits Nos,494 and 579 of 2014 involving the same controversy, which is the subject matter of the present petition. Counsel for the petitioner states that the cause of action and subject matter of the said Suits is entirely different. Be that as it may, let copies of plaint of both the above mentioned Suits be filed by the Petitioner along with a statement before the next date with advance copies to all concerned. [Underlining is ours] By consent, adjourned to 30.11.2016." 14. Lastly, on 14.12.2017, when the above writ petition came-up before us then, we heard Mr. Waleed Khanzada, learned counsel for the Petitioner, Mr. Miran Muhammad Shah, learned Addl. A.G. Sindh and Raja Basantani, learned counsel for Respondent No,3 and also gone through the available record with their valuable assistance. 15. Mr. Waleed Khanzada, learned counsel for the Petitioner, forcefully contended that the Respondent No,3, is the owner of only 14-30 acres land in Sector 22, KDA Scheme No,33, Karachi, however, Respondent No,3 Society, as alleged, has illegally encroached upon, a piece of land of 10 Guntas equivalent to 1210 sq.yds., which piece of land [Commercial Plot No,18], in fact, is belonging to the Petitioner. In this regard, Mr. Waleed Khanzada, made reference to the Amended/Revised 'Layout Plan' for an area of 15-00 acres, instead of 14-30 acres already approved on 07.05.2008, by Respondent No,2, in favour of Respondent No,3. Besides, learned counsel for the Petitioner focused our attention towards' Allotment. Order No, LU-II/2-781-G(K)/6496 dated 25.10.1982, as well as Form- II and urged that the Respondent No,3, in actual fact, is the owner of 14-30 acres of land only and not beyond that area. Being relevant, Allotment Letter dated 25.10.1982 [Annexure 'B' to Mon is reproduced herein-below:- "PHONE NO: 27052 NO: L. U-11/2:7-81-G(K)I/6496 Government of Sindh, Land Utilization Department, Hyderabad Dated. 25.10.1982 To, The Commissioner, Karachi Division, KARACHI SUBJECT: ALLOTMENT OF LAND TO KARACHI DIVISIONAL COMMISSIONER'S EMPLOYEES C. H. S KARACHI Reference: Your letter No,PA/2509/81, dated 11.7.1981. The Government of Sindh in Land Utilization Department with the approval of Governor/Martial Law Administrator Zone-'C' has been pleased to grant an area of 14-30 acres from U.A.No,24 of deh Gujro Taluka Karachi (EAST) at the rate of Rs. 35/- per sq.yard in favour of Divisional Commissioner's Employees Cooperative Housing Society on usual terms and conditions applicable to Housing Societies in the Zonal Schemes in relaxation of Condition No,7(1) of Statement of Conditions 1971. You are therefore, requested to take further action in the matter and inform the applicant Society."
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SD/- SECTION OFFICER-I FOR SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT No,L.U-11/2-7-91-G(K)I/ DATED. .10.1982 Copy forwarded to the Deputy Commissioner Karachi (EAST) for information and necessary action. Copy forwarded to the Section Officer (EXP:7X) Finance Department, Karachi for information. SD/- SECTION OFFICER-I FOR SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT" 16. Mr. Waleed Khanzada, in view of the above, contended that the approval of the layout plan for an area of 15-00 acres in favour of Respondent No,3, which is beyond an area of 14-30 acres, is fraudulent and illegal, as such, the Lay out Plan No,URP-33.216/MP&EC/ 88/208/UD-181 dated 07.05.2008, is liable to be set aside. Mr. Waleed Khanzada, while, concluding his arguments, prayed for allowing the above petition, as prayed, otherwise, the Petitioner as being owner of the said area shall be seriously prejudice. 17. Conversely, learned Addl. AG Sindh contended that above petition as 'framed' and 'filed' is not maintainable as the dispute involved, manifestly pertains to the 'ownership' of land claimed by parties which dispute, in any event, cannot be looked into and/or adjudicated upon by this Court without recording of evidence. Per learned Add. A.G. Sindh, the exercise of recording evidence cannot be undertaken under the Constitutional jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. According to learned Addl. A.G. Sindh, the alleged encroachment over the so-called 10 Guntas of land, if any, is a private dispute between the Petitioner and Respondent No,3, as such, otherwise as well, the same does not fall within the scope of Article 199. Lastly, learned Addl. A.G. Sindh urged that the instant petition is not only without any substance but also merits no consideration and as such, the same is liable to be dismissed with cost. 18. Raja Basantani, learned counsel for Respondent No,3, in contra, contended that the Petitioner is not the owner of 03-00 acres, as claimed. Per learned counsel, the Petitioner in the year, 1992, got a fictitious power of attorney of the villagers of Allandino Khaskhelee Goth, merely to act and fight the Civil Suit No,131 of 1992, filed by the Petitioner in his capacity as plaintiff against Deputy Commissioner Karachi (East) for permanent injunction, as at the relevant time the villagers of the said village, were under the threat of dis-possession. The Petitioner herein, ultimately succeeded in getting an 'ex parte judgment' and 'decree' dated 26.04.1993 for permanent injunction and restraining the Deputy Commissioner, Karachi (East), from [i] dis-possessing the Petitioner and other villagers without adopting due process of law and [ii] not to allot the land of village in name of any other person who are not the residents of Allandino Khashkeli Village. 19. The aforesaid 'ex parte judgment' and 'decree' dated 26.04.1993, later-on was challenged by one Ahmed Ali son of Haji Shakeel by way of filing an application under section 12(2) read with section 151, C.P.C., on the grounds that 'ex parte judgment' and 'decree' dated 26.04.1993, passed by IInd Senior Civil Judge, Karachi, East, in Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. The Deputy Commissioner, Karachi East] have been obtained by way of playing fraud upon the Court. The petitioner herein, ultimately admitted the claim of 04 acres of land of the said Ahmed Ali son of Haji Shakeel and thereafter, vide order dated 15.02.1992, passed by IInd Senior Civil Judge, Karachi East, the section 12(2), C.P.C. read with section 151, C.P.C. was allowed and the said judgment and decree were set-aside. 20. Raja Basantani, learned counsel for Respondent No,3, in view of the above, submitted that the
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Allotment Order dated 25.08.1996 [Annexure 'A' to MoP], thus erroneously carries a reference to `Judgment' decree' dated 26.04.1993 and 03.05.1993, passed in Suit No,131 of 1992, which judgment and decree at the time of Allotment Order of 25.08.1996 was not in existence. Per learned counsel, the allotment order dated 25.08.1996 [Annexure 'A' to the MoP], has thus been obtained by way of 'fraud' and 'mis-representation', as such, all the subsequent orders, actions, being based upon the aforesaid allotment order of 25.08.1996, is not only illegal but also void ab initio, as such, of no legal effect. While, concluding his arguments, Raja Basantani, learned counsel for Respondent No,3, urged for dismissal of the Petitioner in hand. 21. Not only the above legal proceedings, on the issue involved, another Suit No,196 of 1997 has also been filed before the Court of IInd Senior Civil Judge, Karachi (East) i,e, on the same cause of action by concealing the material facts about withdrawal of the earlier Suit No,131 of 1992. 22. From the record, it appears that the Petitioner herein and one Noor Hussain have also filed another Civil Suit No,494 of 2014 before the Court of With Senior Civil Judge, Karachi East [Ali Gohar and Noor Hussain v. Province of Sindh and others], for declaration and permanent injunction. Being relevant 'para 1' of the plaint and 'prayer clause' therefrom, are reproduced respectively herein- below:-- Para I That the plaintiffs' are seized and possessed owner of 3-00 acres which is situated in sector 22 KDA scheme-33 Karachi, duly allotted by the Land utilization department Government of Sindh (i,e, defendant No, 1), vide allotment order No, 2353/96 dated August 25th 1996 against the payment of Rs.1452,000/- only (Annexure A&B) Prayer Clause It is, therefore, very respectfully prayed on behalf of the plaintiffs abovenamed that his Honourable Court may be pleased to pass decree and judgment in favour of the plaintiff under: a. To declare that the defendants Nos, 2 to 4 with collaboration to each other approved lay out plan and passed construction structure of Al-Wahid Towers and defendants Nos, 3 and 4 create illegal commercial Plot No,18 and increase size of any SB of commissioner CHS on plaintiffs plot i,e, out of sector-22 KDA scheme 33 Karachi, is illegal void-ab-initio. To restrain the defendants their attorneys, Assigns, legal heirs and anybody else working on their behalf and/or under their control restraining them all from interfering with the possession of plaintiffs in respect of the suit land, demolishing the construction of the plaintiffs, creating hindrance and difficulties of raising the construction by the plaintiffs. c. To declare and direct to Defendants Nos, 3 and 7 to hand over two plots in compensation of plot No,18 and the plot on which Margalla Heights building is constructed, in equal area out of ST-8 Block-7 Gulshan-e-lqbal Karachi. d. Any other relief(s) which this Honourable Court deems fit and proper in the circumstances of the case be also awarded to the plaintiffs. e. Cost of the suit and fees paid to learned counsel appearing on behalf of the plaintiffs amounting Rs.100,000/- be also awarded to the plaintiffs. f. This prayer is made in the larger interest of justice. 23. Apart from the above Suit No,494 of 2014 [Ali Gohar and Another v. Province of Sindh though Secretary Land Utilization Department and 6 others], the Petitioner herein viz. Ali Gohar and Noor Hussain [who are brothers], and one Asad son of Iqbal have also filed another suit bearing No,579 of 2014, before the Court of VIIth Senior Civil Judge, Karachi, East for Declaration and Permanent Injunction. Also being relevant, therefrom 'para 1' of the plaint and 'prayer clause' therefore, are reproduced respectively hereinbelow:- Para 1 That the plaintiffs are seized and possessed owner of 3-00 acrs which is situated in sector 22 KDA
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scheme-33 Karachi, duly allotted by the Land utilization department Government of Sindh (i,e, defendant No,5), vide allotement order No, 2353/96 dated August 25th 1996 in different pieces because of no piece of 3-00 acrs land was available in compact against the payment of Rs.1452,000/- only (photocopy of allotment order herewith enclosed as Annexure A) Praye r Clause It is, therefore, very respectfully prayed on behalf of the plaintiffs abovenamed that this Honourable Court may be pleased to pass decree and judgment in favour of the plaintiff as under: a). To declare that the defendants Nos, 1 to 3 with collaboration of each other approved lay out plan and passed construction structure of project SILVER LEAF HEIGHTS is illegal, unlawful and void- ab-initio. b). To declare that the actions of the defendant No,3 to construction of project of SILVER LEAF HEIGHTS on the land of plaintiff are illegal/unlawful and void-ab.-initio. c). To declare that no any plot No, COMMERCIAL ST NC-34 in sector 22 KDA scheme 33 Karachi exist in sector 22 as well as in KDA scheme 33 Karachi. d). To restrain defendants from raising constructions on the plot of plaintiffs situated in Sector 22, Scheme No,33 measuring 800 Sq. yards. d)(sic). Any other relief(s) which this Honourable Court deems fit and proper in the circumstances of the case be also awarded to the plaintiffs. e). Cost of the suit and fees of the learned counsel appearing on behalf of the plaintiff amounting to Rs. 100,000/- be also awarded to the Plaintiff. f). This prayer is made in the larger interest of justice. 24. Besides, one another Suit No,196 of 1997 [Ali Gohar son of Muhammad Umar v. Deputy Commissioner/Collector Karachi and another] has been filed/pending before IInd Senior Civil Judge, Karachi, East. Being relevant 'para 12' of the plaint in Suit No,196 of 1997 and 'prayer clause' therefrom, are reproduced herein-below: Para 12 That the cause of action has accrued to the plaintiff on 25.08.1996 when the Allotment Order No,PS/MBR (LU)/1353/1996, Government of Pakistan, Land Utilization Department, Camp at Karachi, dated 25.08.1996, in question was issued and has not been implemented and till now all efforts failed to get the same implementation. The cause of action is continue from day to day till now. Whenever the plaintiff served legal notice to the deponent on 06.01.1997 and 08.08.97. Praye r Clause . It is, therefore, prayed for judgment and decree as under:- a. That the Allotment Order No, No, PS/MBR(LU)/1353/1996, Government of Pakistan, Land Utilization Department, Camp at Karachi, dated 25.08.1996 in question, is legally issued by the competent authority and the defendants are bound to act upon the same and to provide the land in question as hand over the land provided in the Allotment Order. b. The defendants be directed to provide the land and possession in question forthwith without any further delay. c. The defendant be directed to charge reasonable rate per sq.yards which is Rs. 100/- as charges occupancy value per sq.yards and issue challan, Lease Form-II, NOC along with all documents which required by the plaintiff. d. Cost of the Suit be awarded to the plaintiff. e. Any other relief which this Hon 'ble Court may deem fit in the circumstances of the Case. 25. Moreover, the matter in dispute was thoroughly probed by the Deputy Commissioner (East) who thereafter, vide order dated 14.09.1999 cancelled entry No,26 in Deh Record of Gujro kept in the name of Petitioner herein and his brother as the same was made in connivance with the Revenue
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Staff. The operative part of order dated 14.09.1999 passed by the then Deputy Commissioner and Collector District East Karachi reads as follows:- "Considering the points mentioned above and going through the record produced by the Tapedar of the beat and Revenue Branch. I am convinced that judgment and decree obtained on 31.5.97 was based on misrepresentation, fraud and concealment of facts. Therefore I order that entry at Sr. No, 26 of Deh Gujro may be cancelled and a criminal case may also be lodged against the would be beneficiary who tried to defraud and cheat the government. It also appears that this fraud has been committed and executed with the active connivance of functionaries of Revenue Branch of Deputy Commissioner East office. Specially the Tapedar of the beat Mr. Khuda Bux Khaskhelly who remained incharge of the Tappa during the pendency of this case when the entry No, 26 was made on 121.9.97 till day. He should be suspended forthwith and necessary legal action to be taken against him. The connivance of some functionaries of L. U. Branch can also not be ruled out and matter will be brought to the knowledge of Honourable Member L. U. for necessary action at this end. SD/- DEPUTY COMMISSIONER AND COLLECTOR DISTRICT EAST KARACHI 26. The Petitioner herein, it appears, is not member of the Respondent No,5, as such, he has no right to put forward his claim over the society's land.…
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