Full Judgment Text
2022:DHC:1622
$~2(SB), 4(SB), 5(SB), 6(SB), 1(SB) & 20 to 45
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Date of Decision: 25 April, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 36/2021 & CM APPLs.2914/2021, 10442/2021, 10444/2021,
20904/2021, 23819/2021, 25868/2021, 25869/2021, 25870/2021,
25884/2021, 25885/2021, 26495/2021, 29121/2021, 38063/2021,
38289/2021, 39643/2021, 43944-46/2021, 3172/2022, 3455/2022,
5641/2022, 5642/2022, 5803/2022, 5865/2022, 7745/2022,
13472/2022, 16153/2022
NEETA BHARDWAJ & ORS. ..... Appellants
versus
KAMLESH SHARMA ..... Respondent
With
+ CM (M) 323/2021 & CM APPL. 14178/2021, 20945/2021,
20949/2021, 40269/2021
+ CM (M) 575/2021 & CM APPL.43796/2021
+ CONT.CAS(C) 614/2021
+ RSA 109/2018 & CM APPLs.30168/2018, 70/2019
+ CS (OS) 55/2022
+ CS (OS) 56/2022
+ CS (OS) 57/2022
+ CS (OS) 511/2021
+ CS (OS) 512/2021
+ CS (OS) 518/2021
+ CS (OS) 520/2021
+ CS (OS) 521/2021
+ CS (OS) 526/2021
+ CS (OS) 527/2021 & I.As.1717-18/2022
+ CS (OS) 533/2021 & I.As.1721-22/2022
+ CS (OS) 535/2021
+ CS (OS) 538/2021 & I.As.1725-26/2022
+ CS (OS) 539/2021
+ CS (OS) 540/2021
+ CS (OS) 541/2021 & I.As.1723-24/2022
FAO 36/2021 & connected matters Page 1 of 14
2022:DHC:1622
+ CS (OS) 542/2021
+ CS (OS) 544/2021 & I.As.1719-20/2022
+ CS (OS) 545/2021
+ CS (OS) 546/2021
+ CS (OS) 547/2021 & I.As.1715-16/2022
+ CS (OS) 552/2021 & I.As. 16148-49/2021
+ CS (OS) 554/2021
+ CS (OS) 579/2021
+ CS (OS) 648/2021
+ CS (OS) 2499/2010
Appearances:-
Mr. R. K. Bhardwaj, Advocate for Appellant in FAO 36/2021.
(M:9312710547)
Mr. Kush Bhardwaj, Advocate. (M:9891074686)
Mr. Vishal Bhardwaj, Advocate.
Mr. Neeraj Bhardwaj, Advocate for Mr. Vipul Gaur. (M:9350271061)
Mr. Sarvesh Bhardwaj, Advocate for Plaintiffs/LRs/Defendants
(M:9350301058).
Mr. Sanjeev Kumar Dubey, Sr. Advocate with Mr. Rajmangal Kumar, Mr.
Rahul Trivedi and Mr. Rishabh Kumar Thakur, Advocates for Applicants in
CM Nos.18207/2022 & 17247/2022. (M:9871211544)
Mr. S. Sasibhushan, Advocate for Applicant in I.A. 17039/2022.
(M:9818203373)
Mr. Kaoliangpoli Kamei, Advocate for Applicants in CM 5803/2022.
(M:9899754667)
Mr. Arun Birbal, Mr. Sanjay Singh, Mr. Sonia Singhani and Ms. Vidhi
Gupta Advocates for DDA. (M:9958118327)
Mr. Siddharth Panda, Standing Counsel along with Mr. Ritank Kumar
Advocate for SDMC. (M:9891488088)
Ms. Sangeeta Bharti, Standing Counsel for DJB with Mr. Malhi Balyan,
Advocate. (M:9811112863)
Ms. Shambhavi and Mr. Kartikeya Sharma, Advocates for Ld. Administrator
(M-9731424935)
Ms. Mini Pushkarna, Standing Counsel, DUSIB with Ms. Latika Malhotra,
Ms. Shikha Baisoya & Ms. Khushboo Nahar, Advocates (M-9810674872)
Mr. Nitin Jain, Ms. Kavita Singh & Mr. Vishal Chauhan Advocates for
Shopkeepers.
Mr. Dipanshu Gaba, Advocate for R-1to 4 &6. (M:9873730191)
FAO 36/2021 & connected matters Page 2 of 14
2022:DHC:1622
Mr. Vivek Kumar Singh, Advocate for Defendants. (M:8860456420)
Mr. Prabhas Chandra, Advocate for D-2. (M:9871254033)
Mr. R.R. Singh and Ms. Preeti Chaudhary, Advocates for Defendant
(M:9910003491)
Mr. Rahul, Advocate for Mr. Satyam Thareja, Advocate. (M:9711097019)
Ms. K. Kiran, Advocate. (M:9818893995)
Mr. Deepak Dewan, Advocate for 12 shopkeepers. (M:9810127778)
Mr. Karan Jeet Rai Sharma, Advocate for Mr. Sanjay Lao, Standing Counsel
(Criminal) with Inspector Balbir Singh, SHO PS Kalkaji and SI Manu Dev
PS Kalkaji. (M:8800131100)
Mr. Kamal Mehta, Advocate.
Mr. Prashant Manchanda, ASC, GNCTD. (M:9971879203)
Mr. U.M. Tripathi, Advocate. (M:7011071370)
Mr. Arun Panwar, Advocate for Mr. Santosh Kumar Tripathi, Standing
Counsel (Civil)GNCTD. (M:78275458811)
Mr. Jameel Ahemad & Mr. Deepak Kr., Advocates. (M:9810961212)
Mr. Anuroop P.S., Advocate for R-1.
Mr. D.K. Singhal, Advocate.
Mr. Paul Kumar Kalai and Mr. Atul Kumar Srivastav, Advocates.
(M:8376813694)
Mr. K.G. Chhokar, Advocate. (M:9896030124)
Mr. Rajesh Kumar Gupta, Advocate.
Mr. Avinash Chamaria and Mr. P. Roy Chaudhauri, Advocates.
Mr. Goonmeet Singh Chauhan, Architect.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. These matters pertain to the Kalkaji Mandir , which this Court has
been hearing from time to time. These are part-heard matters.
3. Today the ld. Administrator’s Fifth Report dated 23rd April, 2022
( hereinafter “Report No.5”) , has been received. Report No.5 raises various
concerns and provides recommendations in respect of the same.
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Erection of Boundary Wall to Prevent Encroachments
4. Before proceeding further, this Court notices that there are concerns
expressed about continuous encroachment into the Kalkaji Mandir premises,
as also into the land which is adjacent to the Mandir area, some of which
may also be Government land.
5. The entire process of redevelopment of the Kalkaji Mandir would be
severely jeopardized if encroachments happen on a daily basis either by
vendors or any other unauthorized occupants. Accordingly, it is deemed
appropriate to secure the entire land surrounding the Kalkaji Mandir
premises, being used for the activities of the Mandir , by erection of a
barricade or a boundary wall for safeguarding the entire land.
6. Mr. Chauhan, ld. Architect is present virtually and submits that in
some areas there was barbed wire fencing, however the same has been
removed by encroachers. Mr. Chauhan recommends that metal sheet fencing
can be done of the entire land so as to avoid continuous encroachments.
Accordingly, in order to ensure that such occurrences of encroachments do
not happen on a daily basis, it is directed as under:
(i) Ld. Architect along with his team shall take immediate steps for
erection of metal sheet barricade or any other type of
barricades/boundary that he deems appropriate, which is not
easily removable, for fencing the entire land around the Kalkaji
Mandir, which is being used for activities of the Mandir .
(ii) For the said purpose, the concerned Tehsildar and/or revenue
authorities as also the PWD officials and DDA officials shall
render all necessary cooperation.
(iii) Once the entire land is barricaded, the revenue authorities and
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other DDA/SDMC/concerned officials may commence the
demarcation process to separate the Government land and
other Kalkaji Mandir premises land / the land claimed to be
belonging to the Thok Jogians and Thok Brahamins .
7. A sum of Rs.10 lakhs is directed to be released to the ld. Architect
from the “Registrar General, Delhi High Court, A/c Kalkaji Mandir
Fund” vide A/c No.15530110155950 IFSC Code UCBA0001553]
( hereinafter “Kalkaji Mandir Fund”), for the purposes of erecting the
boundary wall/barricades in terms of the above order.
8. The Delhi Police through SHO Kalkaji – Sh. Balbir Singh who is
present in Court, has assured the Court that the boundary wall erected either
through metal sheets or any other form of barricading shall be regularly
monitored, so as to ensure that no unauthorized occupation or encroachment
takes place into the Kalkaji Mandir premises.
9. During the process of erection of barricading and boundary wall, the
SHO, Kalkaji shall also provide requisite police assistance to the ld.
Architect and the ld. Administrator, to ensure smooth erection of the same.
Shops/Vendors on the periphery of the Kalkaji Mandir premises
10. The ld. Administrator has also mentioned in Report No.5 that several
temporary stalls/vendors are operating on the periphery of the Kalkaji
Mandir premises. The SDMC to clarify if any vendors have been licensed in
this area and if so, what are the numbers and details of such vendors, by
filing an affidavit by the next date of hearing.
11. The issue of removal of vendors from the periphery of the Mandir
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shall be considered once the barricading is completed. In the meantime, it is
directed that SDMC and the GNCTD shall not give any further permission
to the street vendors for hawking in the periphery of the Kalkaji Mandir .
12. At this stage, ld. counsel for the GNCTD, submits that GNCTD does
not give any hawking rights or any tehbazari for hawking to vendors.
Allotment of temporary shops
13. Insofar as allotment of temporary shops is concerned, as per the list
submitted by the ld. Administrator, in terms of the status report submitted by
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the ld. Administrator on 13 April, 2022, the credentials of 105 shopkeepers
were verified. However, out of this 105, a total of 98 shopkeepers are stated
to have made the deposit of Rs.30,000/-. The said 98 shopkeepers would be
entitled to allotment of temporary shops on the terms and conditions as
would be fixed by this Court.
14. Insofar as the pujaris are concerned, the ld. Administrator has
recommended that the pujaris who were operating shops/stalls at the Mandir
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premises at the time of passing of the order dated 27 September, 2021, may
be treated similarly as the other shopkeepers whose request for allotment of
temporary shops was accepted by the Court. The said pujaris who made
applications for allotment of temporary shops were 24 in number. However,
the ld. Administrator has verified and has confirmed that out of the 24
pujaris, only 13 pujaris were those who had shops at the time when the
order was passed by this Court. Accordingly, all the said 13 pujaris may also
be added to the list for allotment of temporary shops, subject to deposit of
Rs.30,000/- and the tehbazari amounts and other terms and conditions as
may be fixed by this Court. Insofar as the other pujaris whose applications
for temporary shops are being rejected are concerned, they are permitted to
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move an application before this Court, if they wish to avail of temporary
allotment.
Construction of temporary shops for all the shopkeepers and pujaris
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15. As directed above, pursuant to the previous orders dated 31 March,
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2022 and 13 April, 2022, the ld. Architect has submitted that the
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construction activity for the temporary shops would commence on 1 May,
2022. The ld. Architect submits that a time period of 8 to 12 weeks would be
required for completing the construction of the temporary shops.
Accordingly, it is directed that the said erection of the temporary shops and
facilities as per the Brief Project Report which was presented to the Court on
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31 March, 2022, shall commence on 1 May, 2022.
16. In this regard, all authorities shall render their cooperation to the ld.
Administrator and to the Architect. The Architect shall be in continuous
consultation with the ld. Administrator and his team, so that the construction
takes place and is completed in a timely manner. The Delhi Police shall also
render assistance for the said erection of temporary shops.
17. Insofar as the larger shops are concerned, the ld. Administrator has
informed the Court that there are only 16 larger shops in number. As
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recorded in the previous order dated 31 March, 2022, the cost of
constructing the shops was estimated to be around Rs. 1 lakh. Today, the
cost of construction of these shops is stated to be at the higher side and Rs.1
lakh may not be sufficient, as per Mr. Chauhan.
18. Accordingly, all the applicants who wish to bid for the larger shops
are permitted to submit their best bids/offers for the cost of construction as
also for the monthly tehbazari amounts. The ld. Administrator shall consider
all the applications for the larger shops and shall place the list before this
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Court as to the bids which are submitted and his recommendations in respect
of which of the persons would be entitled for the allotment of the larger
shops and on what terms, in his next report. Accordingly, all the applicants
who intend to seek allotment of the 16 larger shops are permitted to submit
their bids along with their credentials and documents to the ld.
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Administrator on or before 6 May, 2022.
19. For the allotment of the temporary large shops, the offers of pujaris as
also any dharamshala occupants and all the shopkeepers who earlier had
shops in the Kalkaji Mandir premises, as on the date of the order of this
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Court dated 27 September, 2021, would be permitted to submit their offers.
20. Let the recommendations of the ld. Administrator in respect of the
above mentioned offers and the highest bid submitted be placed in the next
report by the ld. Administrator. On the basis of the bids received for the
large shops the ld. Administrator may also recommend the Teh Bazari and
terms to be fixed for the small shops as well.
21. Insofar as the small shops are concerned, some of the ld. counsels
submit that a similar process ought to be undertaken as to the smaller shops
as well. Mr. Jain, ld. counsel representing certain shopkeepers, submits that
those allottees who may not be willing to comply with the terms and
conditions, as may be fixed by the Court for allotment of the shops, should
also be permitted to seek refund of their already paid amounts of Rs.30,000/.
These submissions shall be considered at the time when the final list of
allottees is finalized by this Court.
Shops set up during Navratras
22. The Court has been informed that the temporary stalls which were
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erected during Navaratras , pursuant to previous orders dated 22 March,
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2022 and 31 March, 2022, have since been removed.
23. It is made clear that if any temporary stalls are being permitted by the
ld. Administrator, the same shall be on the basis of payment of at least
Rs.5,000/- per day from each of the said shopkeepers, and the entire account
of the said temporary stalls shall be submitted to the Court and the deposits
shall be made directly into the Kalkaji Mandir Fund , on or before the 10th
of every month, by the ld. Administrator.
Concerns relating to baridaars
24. Insofar as the aspect of the report relating to misconduct of baridaars
is concerned, copy of this Report No.5 of the ld. Adminsitrator be supplied
to Mr. R.K. Bhardwaj, ld. Counsel, who shall share it with all the baridaars .
Counsels for the baridaars shall make submissions on the next date of
hearing.
Representations received from the Pujaris occupying Dharamshalas in the
Kalkaji Mandir premises
25. Insofar as the representations received from Pujaris occupying the
Dharamshalas in the Kalkaji Mandir premises is concerned, pursuant to the
orders of the Supreme Court in SLP No.9073/2022 titled Nathi Ram
Bhardwaj & Ors. v. Neeta Bhardwaj & Ors. and the Division Bench in
LPA No.172/2022 titled Vinayak Bhardwaj v. Neeta Bhardwaj , it is
informed that the hearings are going on and upon the same being concluded,
the Administrator would put up his report thereof. Let the final report in this
respect be filed by the ld. Administrator before this Court, by the next date
of hearing.
26. Insofar as any other illegal occupants and encroachments are
concerned, ld. Administrator to take steps with cooperation of the authorities
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including the Delhi Police through SHO, Kalkaji, SDMC, DDA, etc. for
removal of all other illegal occupants and encroachments in the area.
Redevelopment of the Kalkaji Mandir
27. Ld. Administrator has stated in Report No.5 that one M/s Foundtek
Consultants (P) Ltd., was engaged by the Architect for demarcation of the
Mandir land. It is requested by the ld. Administrator that the SDM, Kalkaji
may verify the said Report.
28. Accordingly, the report prepared by M/s Foundtek Consultants may
be supplied to Mr. Tripathi, ld. Standing Counsel (Civil), GNCTD, for
giving the same to the SDM, Kalkaji, to verify the report and to submit their
response in respect thereof. For the said purpose the SDM, Kalkaji may also
visit the Mandir premises and also coordinate with the ld. Administrator,
Architect and his team.
29. The ld. Administrator has also informed the Court that a Manager and
a Part-time Assistant-cum-Stenographer has been appointed, for assisting the
Secretary-cum-Treasurer in the administration and management of the
Mandir . The said information is taken on record.
30. A total of Rs.25 lakhs is permitted to be released by the worthy
Registrar General from the Kalkaji Mandir Fund , to the Architect, under
directions from ld. Administrator. For the said purpose, the ld. Administrator
may write an email communication to the worthy Registrar General of the
Court, after obtaining the requirements for the same, from the ld. Architect.
Upon receiving such email, the requisite amounts shall be released – upto a
maximum of Rs.25 lakhs – to the ld. Architect.
Deposit of Amounts by Baridaars
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31. Vide previous order dated 27 September, 2021, this Court had
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directed the baridaars to make monthly deposits in the main account opened
by the ld. Administrator titled ‘ Administrator of Sh. Kalkaji Mandir
appointed by Court’ maintained in State Bank of India [Current account
no.:40774972794, IFSC:SBIN0001711] ( hereinafter “Administrator’s
Account” ). The relevant portion of the said order reads as under:
“(x) Almost all ld. Counsel representing the baridaars
have submitted that they are willing to contribute for
the maintenance and cleanliness of the Mandir
premises. However, the amounts that have been
suggested vary from Rs.5 lakhs to Rs. 20 lakhs. The
monthly collections at the Mandir, are, on an average,
between Rs.l crore to Rs.2.5 crores, depending on the
month. During Navratras, the amounts collected are on
the higher side.
Accordingly, for the purpose of maintaining
cleanliness, hygiene, and for providing facilities in the
Mandir, funds shall be contributed by the baridaars on
a monthly basis, to enable the ld. Administrator to take
steps. The baridaars shall, at this stage, contribute a
sum of Rs. 15 lakhs every month, generally, and Rs.20
lakhs during the bi-annual Shashmahi bari (Navratra
period). The said deposits shall be made prior to the
distribution or division of offerings/donations amongst
the various baridaars.”
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32. Vide subsequent order dated 15 November, 2021, this was clarified
as under:
“36. It is also made clear that the monthly payments to
be deposited to the ld. Administrator by the baridaars,
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as per the order dated 27 September, 2021, of Rs. 15
lakhs or Rs. 20 lakhs as may be applicable, shall be
deposited in the ld. Administrator's account, before the
distribution of monies amongst the various baridaars.”
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33. Vide further order dated 1 February, 2022, the said order was
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modified as under:
“32. The ld. Administrator has recommended that an
additional sum of Rs.5 lakhs per month ought to be
contributed by the baridars for the redevelopment of
the Kalkaji Mandir. For the time being, however,
considering the details of various amounts which have
been received from the various proceedings in the
District Courts and the accounts submitted today, it is
directed that the baridars shall deposit a sum of Rs.2
lakhs per month in the Kalkaji Mandir Fund, subject to
further orders of this Court.”
34. Today, the ld. Administrator has informed the Court that the
Baridaars are not depositing the amounts fixed by the Court, within time
and specifically, not prior to the distribution of the money among the
Baridaars. Considering this position, it is made clear that insofar as the
Baridaars are concerned, as per the order dated 15th November, 2021, the
distribution among the Baridaars is to take place only after the amount of
Rs.17 lakhs or 22 lakhs, as applicable, is deposited with the ld.
Administrator. Since the same is not being adhered to scrupulously by the
Baridaars, the following directions are issued:
(i) On the commencement of each Baari from Shud Ekadashi , the
Baridaars shall deposit a sum of Rs. 17 lakhs for normal
months and Rs. 22 lakhs for Navratras period, in the respective
bank accounts of the Ld. Administrator and the Kalkaji Mandir
Fund, by the 14th day of each month.
(ii) If the said deposit is not made by the 14th day, from the 15th
day, the Baridaars shall not be permitted to perform the Puja
Seva and the ld. Administrator shall take over the conduct of
Puja Seva for that bari .
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(iii) If there are any previous dues, of any Baridaars for any month,
as on the date of this order, the same shall be deposited with the
ld. Administrator as directed earlier within a period of one week
from now, failing which the baaris of those Baridaars shall for
the future, be liable to be cancelled.
35. It is also noticed that the records of CS(OS) 57/2022 (Old M. No.
54/09) titled Prithi Nath & Ors. v. Tula Ram, are not complete. Vide
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previous order dated 1 February, 2022, the deposits were requisitioned by
this Court from Account No. CCD843 PAO VI, SBI, Tis Hazari Courts.
However, Mr. R.K. Bhardwaj, ld. Counsel, submits that in this case, where
the deposits have been made since 1978, the same have still not been
received. The worthy Registrar General is requested to direct the concerned
Court to positively give a report in this case, along with the entire record by
the next date of hearing, as to the amount deposited and the amount lying in
the account in respect of this suit. The Branch Manager, SBI, Tis Hazari
Courts Complex, where this amount is stated to have been deposited, shall
remain present in the Court on the next date of hearing.
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36. List all these matters on 13 May, 2022 at 2:30 P.M .
37. On the next date, ld. Administrator and Architect be present in Court
along with the SHO, Kalkaji.
38. By the next date of hearing, the Registry to provide an updated report
as to the amounts received to date, into the account in the name of
“Registrar General, Delhi High Court, A/c Kalkaji Mandir Fund” vide A/c
No.15530110155950 IFSC Code UCBA0001553] .
39. Copy of today’s order be supplied to Mr. Santosh Kumar Tripathi, Ld.
Standing Counsel (Civil), GNCTD, Mr. Arun Birbal, ld. Counsel for DDA
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& SDMC, with a direction to further communicate the same to the
concerned officials of the Delhi Police, DDA, and SDMC, who are to
comply with the directions given above.
40. The digitally signed copy of this order, duly uploaded on the official
website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated
as the certified copy of the order for the purpose of ensuring compliance. No
physical copy of orders shall be insisted by any authority/entity or litigant.
PRATHIBA M. SINGH
JUDGE
APRIL 25, 2022
Aman/Rahul/Ms
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(Corrected & released on 28 April, 2022)
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