M.K. RANJITSINH & ORS.versusUNION OF INDIA & ORS.

                          [2021] 4 S.C.R. 81                             81


                    M.K. RANJITSINH & ORS.                               A
                                  v.
                    UNION OF INDIA & ORS.
                      (I.A. No. 85618 of 2020)
                                 In                                      B
                (Writ Petition (Civil) No.838 of 2019)
                           APRIL 19, 2021
             [S. A. BOBDE, CJI, A.S. BOPANNA AND
                   V. RAMASUBRAMANIAN, JJ.]                              C
       Environmental laws: Wild life – Protection and conservation
of endangered species – Writ petition seeking protection of birds-
Great Indian bustard (GIB) and Lesser Florican, on verge of
extinction since they are getting killed on their collision with the
overhead power lines – Directions sought to the State of Rajasthan
                                                                         D
and Gujarat to ensure predator proof fencing, controlled grazing
in the enclosure development – Direction sought that not to permit
installation of overhead power lines, further construction of
windmills and installation of solar infrastructure in priority and
potential habitat – Direction also sought for undergrounding all
future overhead power lines; selected power lines in priority GIB        E
habitat and installation of divertors in potential habitat – Held: In
view of the sustainable development concept and on striking a
balance, the protection of the rare species of birds is essentially to
be made, while at the same time allowing transmission of power in
an appropriate manner – It would not be feasible to lay underground
                                                                         F
power cables in certain areas and the conversion of the already
existing cables also cannot be made in certain locations – In such
locations, it is recommended that ‘bird divertors’ be installed on the
existing power lines and the undergrounding of the new power line
wherever technically feasible in the vicinity of the habitats be
undertaken – Furthermore, eggs of the said species of birds to be        G
protected, by transferring the same to the breeding centres – Laying
of the underground power line more particularly of high- voltage,
would require technical evaluation on case- to- case basis –
Committee is constituted to assess the feasibility of laying of high-
voltage underground power line – In view thereof, all low voltage
                                                                         H
                                 81
82            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A    powerlines to be laid in the priority and potential habitats of GIB,
     to be laid underground in future, and the existing low voltage
     overhead powerlines to be converted into underground powerlines
     – High- voltage powerlines in the priority and potential habitats of
     GIB, as referred herein, to be converted into underground power
     line.
B
           T.N. Godavarman Thirumulpad vs. Union of India &
           Ors. (2012) 3 SCC 277 : [2012] 3 SCR 460; Centre
           for Environmental Law, World Wide Fund – India vs.
           Union of India & Ors. (2013) 8 SCC 234 : [ 2013] 6
           SCR 757 – referred to.
C
                            Case Law Reference
     [2012] 3 SCR 460                 referred to               Para 4
     [2013] 6 SCR 757                 referred to               Para 5

D          CIVIL ORIGINAL JURISDICTION : I.A. No. 85618 of 2020 in
           Writ Petition (Civil) No. 838 off 2019.
           (Under Article 32 of The Constitution Of India)
           Shyam Divan, Prashanto Chandra Sen, Sr. Advs., Ms. Sonia Dube,
     Ms. Sugandha Yadav, Shatadru Chakraborty, Ms. Ria Sawhney, Ms.
E    Surbhi Anand, M/s. Legal Options, Advs. for the Petitioners.
            Ms. Aishwarya Bhati, ASG., Saurabh Mishra, AAG., Dr. Manish
     Singhvi, Dr. Abhishek Manu Singhvi, S.B. Upadhyay, M.G.
     Ramachandran, Ranji Thomas, Sr. Advs., Gurmeet Singh Makkar, D.L.
     Chidananda, Ankur Talwaar, Shyam Gopal, Milind Kumar, Vikas Bansal,
F    Sunny Choudhary, Arjun Garg, Varun K. Chopra, Gurtejpal Singh for
     M/s. Vkc Law Offices, Mahfooz A. Nazki, Polanki Gowtham, Shaik
     Mohamad Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, Shrey
     Sharma, Sandeep Jha, Aaditya A. Pande, Rahul Chitnis, Sachin Patil,
     Geo Joseph, Mahesh Agarwal, Arshit Anand, Yojit Mehra, Ms. Kamakshi
G    Sehgal, Amit Bhandari, Ms. Ashima Chauhan, E.C. Agrawala, Somesh
     Chandra Jha, Rahul Narang, Ms. Aastha Mehta, Ms. Deepanwita
     Priyanka, Aniruddha P. Mayee, Ms. Hemantika Wahi, Ms. Ranjitha
     Ramachandran, Ms. Jesal Wahi, V.N. Raghupathy, Shivi Sanyam, Ms.
     Pratishtha Vij, Jappanpreet Hora, A. Karthik, Devendra Singh, Anant
     Kumar Vatsya, Vatsya Krishnaiya, Ms. Arti Singh, Aakashdeep Singh
H    Roda, Basant Pal Singh, Ms. Pooja Singh, Advs. for the Respondents.
    M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS.                              83


       The following Order of the Court was passed:                              A
                                 ORDER
       1. The writ petition is filed in the nature of public interest seeking
to protect two species of birds namely the Great Indian Bustard (‘GIB’
for short) and the Lesser Florican, which is on the verge of extinction.
The existence of overhead power lines is stated to have become a hazard          B
due to which the said species of birds on collision are getting killed. In
the pending writ petition, the application in I.A. No.85618/2020 is filed
seeking interim directions to direct the State of Rajasthan (respondents
No.5 and 6) and State of Gujarat (respondents No.9 to 11) to ensure
predator proof fencing, controlled grazing in the enclosure development          C
and to direct the said respondents not to permit installation of overhead
power lines and also not permit further construction of windmills and
installation of solar infrastructure in priority and potential habitat as
identified by the Wildlife Institute of India. The petitioner is also seeking
a direction to the respondents to install divertors for the powerlines which
has been listed in the application.                                              D

       2. The very subject matter indicates that though such directions
are sought against the respondents, the litigation is not adversarial in
nature as it is community interest. In fact, the petitioners being
environmentalists, are seeking to protect the rare birds which are
dwindling in number. It is contended that GIB is one of the heaviest             E
flying birds in the world, about a meter in height and wing span of around
seven feet. It has disappeared from 90 per cent of habitat except parts
of Rajasthan and Gujarat which is to be protected. According to the
petitioners, overhead power lines are the biggest threat to the survival of
the GIBs. The Wildlife Institute of India (WII) in its Report “Power Line        F
Mitigation, 2018” has stated that every year 1 lakh birds die due to collision
with power lines. The Report concluded that unless power line mortality
is mitigated urgently, extinction of GIBs is certain. Surveys conducted
by Wildlife Institute of India (WII) in Thar covering 80 km of power
lines repeated 7 times over a year found 289 carcasses of around 30
species, including the Great Indian Bustard (GIB). The study estimated           G
3 bird mortalities/km/month for low-tension lines, 6 bird mortalities/km/
month for high-tension lines, and about 1 lakh birds/per year within a
4200 sq.km area in/around Desert National Park, Rajasthan. In terms of
GIB, 6 mortalities have been recorded in Thar during 2017-20, all due to
high-tension transmission lines – some of them connected to wind turbine.        H
84            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A    Therefore, petitioner seeks undergrounding all future overhead power
     lines; selected power lines in priority GIB habitat and installation of
     divertors in potential habitat.
            3. In fact, it is admitted by the Ministry of Power, Union of India
     in their affidavit dated 15.03.2021 as follows: -
B          “The Great Indian Bustard (“GIB”) lacks frontal vision. Due to
           this, they cannot detect powerlines ahead of them, from far. As
           they are heavy birds, they are unable to manoeuvre across power
           lines within close distances. Thus, they are vulnerable to collision
           with power lines. In case of low voltage lines, electrocution is
C          often the cause of death due to smaller phase to phase separation
           distance. High voltage lines do not cause death due to electrocution
           but cause death due to collision.”
           4. But, this Court while considering IA Nos.1433 and 1477 of
     2005 in the case of T.N. Godavarman Thirumulpad Vs. Union of
D    India & Ors. (2012) 3 SCC 277 has observed as hereunder:
           “17. Environmental justice could be achieved only if we drift away
           from the principle of anthropocentric to ecocentric. Many of our
           principles like sustainable development, polluter-pays principle,
           intergenerational equity have their roots in anthropocentric
E          principles. Anthropocentrism is always human interest focussed
           and that non-human has only instrumental value to humans. In
           other words, humans take precedence and human responsibilities
           to non-human based benefits to humans. Ecocentrism is nature-
           centred where humans are part of nature and non-humans have
           intrinsic value. In other words, human interest does not take
F          automatic precedence and humans have obligations to non-humans
           independently of human interest. Ecocentrism is therefore life-
           centred, nature-centred where nature includes both humans and
           non-humans. The National Wildlife Action Plan 2002-2012 and
           the Centrally Sponsored Integrated Development of Wildlife
G          Habitats Scheme, 2009 are centred on the principle of
           ecocentrism.”
            In that context while taking note of the contention of the State
     relating to lack of funds, reference was made to the Centrally Sponsored
     Integrated Development of Wildlife Habitats Scheme, 2009 which
     provides for financial sharing between Centre and State. Though taken
H
    M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS.                          85


note in the context of conservation of wild buffalo the pattern of funding   A
was taken note in para-23 which provides for 100% central assistance
in respect of GIB, for both recurring and non-recurring items of
expenditure.
      5. Further this Court in the case of Centre for Environmental
Law, World Wide Fund – India Vs. Union of India & Ors., (2013) 8             B
SCC 234 while considering the protection and conservation of endangered
species has observed as hereunder:
      “45. We may point out that there has been wide-ranging
      discussions and deliberations on the international platforms and
      conferences for re-building of certain principles laid down in the     C
      earlier conventions on the Principles of Sustainable Development.
      The United Nations Commission on Environment and Development
      defined the “sustainable development” as follows:
      “Sustainable development is the development that meets the needs
      of the present without compromising the ability of future              D
      generations to meet their own needs.” (World Commission on
      Economic Development [WCED], 1987 : 43)
      46. Sustainable development, it has been argued by various eminent
      environmentalists, clearly postulates an anthropocentric bias, least
      concerned with the rights of other species which live on this earth.   E
      Anthropocentrism is always human interest focussed thinking that
      non-human has only instrumental value to humans, in other words,
      humans take precedence and human responsibilities to non-human
      are based on benefits to humans. Ecocentrism is nature-centred,
      where humans are part of nature and non-humans have intrinsic
      value. In other words, human interest does not take automatic          F
      precedence and humans have obligations to non-humans
      independently of human interest. Ecocentrism is, therefore, life-
      centred, nature-centred where nature includes both humans and
      non-humans.”
      “48. Article 21 of the Constitution of India protects not only the     G
      human rights but also casts an obligation on human beings to
      protect and preserve a species becoming extinct, conservation
      and protection of environment is an inseparable part of right to
      life. In M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] , this Court
      enunciated the doctrine of “public trust”, the thrust of that theory   H
86            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A          is that certain common properties such as rivers, seashores, forests
           and the air are held by the Government in trusteeship for the free
           and unimpeded use of the general public. The resources like air,
           sea, waters and the forests have such a great importance to the
           people as a whole, that it would be totally unjustified to make
           them a subject of private ownership. The State, as a custodian of
B
           the natural resources, has a duty to maintain them not merely for
           the benefit of the public, but for the best interest of flora and
           fauna, wildlife and so on. The doctrine of “public trust” has to be
           addressed in that perspective.
           49. We, as human beings, have a duty to prevent the species from
C          going extinct and have to advocate for an effective species
           protection regimes. NWAP 2002-2016 and the Centrally-sponsored
           scheme, 2009 indicate that there are many animal species which
           are close enough to extinction and some of the other species have
           already disappeared from this earth. No species can survive on
D          the brink of extinction indefinitely and that the continued existence
           of any species depends upon various factors like human-animal
           conflict, epidemics, forest fire and other natural calamities, etc.”
            The State as well as the Central Government therefore, have a
     duty cast to preserve the endangered species and as such the expenses
E    incurred will have to be provided by them either under the schemes
     available or by earmarking the same in such manner. Needless to mention
     that in the instant case the preservation is by undergrounding the
     powerlines and in that context if cost is incurred, it would also be
     permissible to pass on a portion of such expenses to the ultimate consumer
     subject to approval of the Competent Regulatory Authority.
F
              6. The respondents though are sensitive to the issue, have
     contended that the high-voltage lines do not cause GIB deaths due to
     electrocution but cause death due to collision. It is contended that the
     underground high-voltage line is not technically feasible due to several
     factors such as (i) high cost (ii) high downtime to repair any failed cable
G    (iii) non-availability of cables at 765 Kv level and (iv) increase in the
     number of joints with length of run. The petitioners/applicants in order to
     controvert the same and contend that the undergrounding of high-voltage
     line is not a novel move but has been undertaken in other cases, have
     referred to the tender notification issued by Power Transmission
H    Corporation of Uttarakhand Limited for 220 KV transmission line and
    M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS.                               87


the one issued by Delhi Transport Limited for 220 KV underground                  A
cable.
        7. In addition, the petitioners have also referred to the invitation of
public comments for laying underground cable transmission line of 220
KV by the Government of India, Ministry of Road Transport and
Highways. The report published by the Power Grid Corporation is referred          B
to indicate that the undergrounding of 220 KV power line is possible and
is being done in India. It is specifically contended that the 10 km long
power lines were made underground by GETCO for the safety of Greater
Flamingos in the Khadir Region of Kutch. Similar such instances of
underground power lines being laid is also referred by Mr. Shyam Divan,
learned senior counsel for the petitioner. Ms. Aishwarya Bhati, learned           C
ASG and Dr. Manish Singhvi, learned senior counsel appearing on behalf
of the respondents however sought to indicate that the instances referred,
wherein the tender notifications were issued for underground power
lines cannot be made comparable in all cases inasmuch as the same
would be possible depending on the area, terrain and the distance for             D
which such cable line is to be laid which cannot be of universal application.
        8. In that background, keeping in view, the sustainable development
concept and on striking a balance the protection of the rare species of
birds is essentially to be made, the effort being to save every bird while
at the same time allowing transmission of power in an appropriate manner.         E
Even as per the study/survey conducted by the Wildlife Institute of India,
it would not be feasible to lay underground power cables in certain areas
and the conversion of the already existing cables also cannot be made in
certain locations. In such of the locations, it is recommended that ‘bird
divertors’ be installed on the existing power lines and the undergrounding
of the new power line wherever technically feasible in the vicinity of the        F
habitats of the rare species of birds be undertaken.
       9. The report dated 11.07.2019 was submitted by the Wildlife
Institute before the National Green Tribunal to that effect and para 4.2
of the report reads as hereunder:
                                                                                  G
       “4.2. Mitigate all power transmission lines passing through priority
       bustard habitats identified by WII (Please refer Annexure 10) by
       undergrounding cables (where technically/technologically feasible)
       or installing bird divertors to make them prominent to birds. The
       priority areas where this intervention is required has been mapped
       by the Wildlife Institute of India and a technical-cum-financial           H
88             SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A            proposal has been submitted to RVPNL for necessary approvals
             from Rajasthan Energy Department for mitigation. This action
             must be expeditiously implemented in the short-term (1-3 years),
             as power-line mortality is currently the biggest threat to the
             species.”
B            10. In addition to the death of the birds due to collision and
     electrocution, the conservation strategy also requires protecting the eggs
     of the said species of birds and the same being transferred to breeding
     centres for the purpose of hatching. In that regard, for conservation, the
     habitat restoration and for making it predator proof, appropriate fencing
     is to be provided to the breeding grounds. In that regard, pictorial
C    representation of the priority and potential area is indicated in Annexure
     A-7 (page 74) of I.A. No.85618/2020 which is also depicted here below.
             11. In the above background, there cannot be disagreement
     whatsoever that appropriate steps are required to be taken to protect
     the said species of birds. In that view, insofar as the existing overhead
D    powerlines are concerned the respondents shall take steps forthwith to
     install divertors and in respect of existing overhead powerlines all future
     cases of installing the transmission lines a study shall be conducted with
     regard to the feasibility for the lines to be laid underground. In all such
     cases where it is feasible, steps shall be taken to lay the transmission
     line underground. For the lines to be laid in future if as per the technical
E    report the overhead line alone is feasible and the same is ratified by the
     Committee, in such event the installation of the divertors shall also be a
     condition attached in the contract to be entered with generating companies.
     Insofar as, the cost incurred in the said process, the concerned
     respondents No. 5 to 8 and 9 to 11 shall work out and provide for the
F    same and the respondents No.1 to 4 aid in this regard. It would be open
     to them to muster the resources in accordance with law. In cases where
     the power generators are required to bear the additional amount adding
     to the cost of production, it would be open to regulate the manner in
     which the cost would be mitigated in accordance with contractual terms.
     Irrespective of the cost factor the priority shall be to save the near extinct
G    birds.
             12. In fact, a few suggestions were made in the course of
     arguments, as to how financial resources can be mobilised. One of the
     options that could be explored, is to invite the attention of each electricity
     utility engaged in the generation of power, to Section 135 of the Companies
H    Act, 2013, which imposes corporate social responsibility upon companies
    M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS.                             89


having a specified net worth or turnover or net profit. Section 166(2) of       A
the Companies Act, 2013 ordains the Director of a Company to act in
good faith, not only in the best interest of the Company, its employees,
the shareholders and the community, but also for the protection of
environment. The word “environment”, though not defined in the
Companies Act, has to be given the meaning assigned to it under the
                                                                                B
Environment (Protection) Act, 1986. Section 2(a) of the Environment
(Protection) Act, 1986, defines the word “environment” to include the
“inter- relationship which exists among and between water, air and
land, and human beings, other living creatures, plants, micro-
organisms and property”
       Moreover, with the implementation of the Compensatory                    C
Afforestation Fund Act, 2016 (CAF, 2016), substantial funds are available
with the National and State Authorities. Sections 4, 5 and 6 of the Act,
provide for the utilisation of the fund for measures to mitigate threats to
wildlife. The State of Rajasthan has already set up a Compensatory
Afforestation Fund Management and Planning Authority (CAMPA) on                 D
12.11.2009. Rule 5(2)(i) of these Rules permit the use of the State Fund
for the improvement of wildlife habitat. It appears, according to the
petitioners that a sum of Rs.47,436 crores, out of a total of Rs.54,685
crores CAMPA Fund have been transferred by the Union Environment
Ministry to the States for afforestation projects.
       13. With regard to the conservation of the habitat to secure the         E
safety of the eggs laid by the birds, the area earmarked and indicated as
islands and shown in Annexure-A-7 and in light colour in sketch here
below shall be fenced and protected from invasion by predators so that
the eggs laid in these areas are protected. The power supply line regarding
which underground passage is to be made should also avoid these areas.          F
       14. In the light of the contentions urged on this aspect of the
matter, we are conscious that the laying of the underground power line
more particularly of high-voltage though not impossible, would require
technical evaluation on case-to-case basis and an omnibus conclusion
cannot be reached laying down a uniform method and directions cannot
                                                                                G
be issued unmindful of the fact situation. Though that be the position the
consensus shall be that all low voltage powerlines to be laid in the priority
and potential habitats of GIB shall in all cases be laid underground in
future. In respect of low voltage overhead powerlines existing presently
in the priority and potential habitats of GIB, the same shall be converted
into underground powerlines. In respect of high-voltage powerlines in           H
90             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A    the priority and potential habitats of GIB, more particularly the powerlines
     referred in the prayer column of I.A. No.85618/2020 and indicated in
     the operative portion of this order shall be converted into underground
     power line. The potential and priority area in Kutch and Thar respectively
     are as per the sketch shown below:
B          While considering the laying of underground power line the said
     habitats shall be kept in perspective and steps be taken for the safety of
     the GIB in the said habitat.



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    M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS.                                91


       15. As already taken note above, the laying of high-voltage                 A
underground power line would require expertise to assess the feasibility
of the same. For this specific purpose of assessing the feasibility after
taking into consideration all technical details, we deem it proper to
constitute a committee consisting of the following members:
       (i)   Dr. Rahul Rawat,                                                      B
             Scientist,
             Room No.021, Block-14,
             Ministry of New and Renewable Energy,
             CGO Complex, Lodi Road,
             New Delhi.                                                            C
       (ii) Dr. Sutirtha Dutta,
             Scientist,
             Wildlife Institute of India,
             Dehradun.
       (iii) Dr. Devesh Gadhavi,                                                   D
             Deputy Director,
             The Corbett Foundation.
       The above committee may also obtain technical reports if need
be, from experts in the field of electricity supply to arrive at their decision.
The Government of India shall provide all assistance to the Committee.             E
       16. The details of the powerlines from Kutch for installation of
bird divertors is as follows:


                                                                                   F




                                                                                   G




                                                                                   H
92            SUPREME COURT REPORTS                             [2021] 4 S.C.R.


A          The details of the powerlines for installation of divertors from
     Rajasthan are as follows:
          a) List of powerlines for installation of divertors       Capacity
              from Rajasthan
          1) Jaisalmer – Ramgarh -1 (40 Km)                      132 kv
          2) Jaisalmer – Ramgarh -2 (40 Km)                      132 kv
B         3) Askandra (Pokran to Askandra ) (30 Km)              132 kv
          4) Askandra (Pokran to Askandra ) (20 Km)              132 kv
          5) Amarsagar – Ramgarh (40 Km)                         220 kv
          6) Amarsagar – Lilo (8 Km)                             220 kv
          7) Amarsagar – Phalodi (54 Km)                         220 kv
          8) Amarsagar – Phalodi (71 Km)                         220 kv
C         9) Ramgarh Dechu (49 Km)                               220 kv
         10) Ramgarh Dechu (43 Km)                               220 kv
         11) Ramgarh Dechu (50 Km)                               220 kv
          12) Akai – Ramgarh (55 Km)                             400 kv
        13) Tejuva – Kuchadi (138 km)                            33 kv
         14) Kaladongar (70 Km)                                  33 kv
D        15) Mokla – Habur – Sanu (301 km)                       33 kv
        16) Tejuva – Kuchadi (25 km)                             132 kv
        17) Kaladongar (47 km)                                   132/220 kv
        18) Mokla – Habur – Sanu (43 km)                         132/220 kv
        19) Chandan Via Bhagu ka Gaon to Mohangarh (70 km)       33 kv
       20) Amarsagar – Ramgarh (40 km)                           220 kv
       21) Amarsagar – Ludarva (4 km)                            33 kv
E
           The details of the powerlines to be converted to underground
     subject to feasibility, if not, to immediately install divertors;
           Lines from Kutch

F




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    M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS.                            93


                                                                               A




                                                                               B




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                                                                               D


      Lines from Rajasthan

                                                                               E


       17. The respondents No.5, 6 and 9 to 11 while arranging to lay the
powerlines underground in respect of the powerlines, the feasibility of
which is not in doubt shall proceed with the work right away. However,         F
in cases where the respondents find that there are issues relating to
feasibility, the matter shall be referred to the committee with all relevant
material and particulars. The committee shall assess the matter and arrive
at a conclusion as to whether the underground powerline is feasible or
not. Based on the report to be rendered by the committee the further
action shall be taken by the respondent.                                       G
         18. In all cases where the overhead powerlines exist as on today
in the priority and potential GIB area the respondents shall take steps
forthwith to install divertors pending consideration of the conversion of
the overhead cables into underground powerlines. In all such cases where
                                                                               H
94                SUPREME COURT REPORTS                        [2021] 4 S.C.R.


A    it is found feasible to convert the overhead cables into underground
     powerlines the same shall be undertaken and completed within a period
     of one year and till such time the divertors shall be hung from the existing
     powerlines.
             19. Ordered accordingly.
B
     Nidhi Jain                                                   Directions issued.




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