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INDIAN COUNCILS ACT, 1861
67 of 1861
1st August, 1861
An Act to make better Provision for the Constitution of the Council of the. Governor General of India, and for the Local Government of the several Presidencies and Provinces of India, and for the temporary Government of India in the Event of a Vacancy in the Office of Governor General. Preamble and enacting words: Rep. 55 & 56 Vict., c. 19 (S. L. R.).
SECTION 01: SHORT TITLE
-This Act may be cited for all purposes as "The Indian Councils Act, 1861."
SECTION 02: ENACTMENTS CONTINUED IN FORCE
2[all other enactments whatsoever now in force with relation to the Council of the Governor General of India or to the Councils of the Governors of the respective Presidencies of Fort Saint George and Bombay shall, save so far as the same are altered by or are repugnant to this Act, continue in force and be applicable to the Council of the Governor General of India and the Council of the respective Presidencies under this Act.
SECTION 03: COMPOSITION OF THE COUNCIL OF THE GOVERNOR GENERAL OF INDIA
- There shall be five ordinary members of the said Council of the Governor General, three of whom shall from time to time be appointed3from among such persons as shall have been, at the time of such appointment in the service in India of the Crown, or of the Company and the Crown, for at least ten years; . and if the person so appointed shall be in the military service of the Crown, he shall not during his continuance in office as a member of Council, hold any military command, or be employed in actual military duties; and the remaining two, one of 'whom shall be a barrister or a member of; the Faculty of Advocates in Scotland of not less than five years' standing, shall be appointed from time to time by Her Majesty by warrant under Her 'Royal Sign Manual; . and it shall be lawful for the Secretary of State in Council to appoint the Commander-in-Chief of Her 'Majesty's Forces in India to be an extraordinary member of the said Council, and such extraordinary member of Council shall have rank and precedence at the Council Board next after the Governor General.
SECTION 04: PRESENT MEMBERS OF COUNCIL TO CONTINUE
-The present ordinary members of the Council of the Governor General of India shall continue to be ordinary members under and for the purposes of this Act; Appointment of fifth member, and salaries of members, etc.-and itshall be lawful for Her Majesty, * * *5to appoint by warrant as aforesaid an ordinary member of Council, to complete the number of five hereby established; and there shall be paid to such ordinary member, and to all other ordinary members who. may be hereafter appointed, such amount of salary as may from time to time be fixed for members of the Council of the Governor General
by the Secretary of State in Council, with the concurrence of a majority of members of Council present at a meeting; and all enactments of any Act of Parliament or law of India respecting the Council of the Governor General of India and the members thereof shall be held to apply to the said Council as constituted by this Act, except so far as they are repealed by or are repugnant to any provisions of this Act.
SECTION 05: PROVISIONAL APPOINTMENTS OF MEMBERS OF COUNCIL
-It shall be lawful for the Secretary of State in Council, with the concurrence of a majority of members present at a meeting, and for Her Majesty, by warrant, as aforesaid, respectively to appoint any person provisionally to succeed to the office of ordinary member of the Council of the Governor General, when the same shall become vacant by the death or resignation of the person holding the said office, or on his departure from India with intent to return to Europe, or on any event and contigency expressed in any such provisional appointment and such appointment again to revoke; but no person so appointed to succeed provisionally to such office shall be entitled to any authority, salary, or emolument appertaining thereto until he shall be in the actual possession of such office.
SECTION 06: PROVISIONS DURING ABSENCE OF GOVERNOR GENERAL IN OTHER PARTS OF INDIA
-Whenever the said Governor General in Council shall declare that it is expedient that the said Governor General should visit any part of India unaccompanied by his Council, it shall be lawful for the said Governor General in Council, previously to the departure of the said Governor General, to nominate some member of the said Council to be president of the said Council, in whom, during the time of such visit, the powers of the said Governor General in assemblies of the said Council shall be reposed, except that of assenting to or withholding his assent from, or reserving for the signification of Her Majesty's pleasure any law or regulation, as hereinafter provided; and it shall be lawful in every such case for the said Governor General in Council, by an order for that purpose to be made, to authorize the Governor General alone to exercise all or any of the powers which might be exercised by the said Governor General in Council in every case in which the said Governor General may think it expedient to exercise the same, except the power of making laws or regulations.
SECTION 07: PROVISIONS IN CASE OF ABSENCE OF GOVERNOR GENERAL, ETC., FROM MEETING OF COUNCIL
-Whenever the Governor General, or such president so nominated as aforesaid, shall be obliged to absent himself from any meeting of Council other than meetings for the purpose of making laws and regulations, (as hereinafter provided), owing to indisposition or any other cause whatsoever, and shall signify his intended absence to the Council, then and in every such case the senior member6for the time being who shall be presentat such meeting shall preside thereat, in such manner, and with such full powers and authorities during the time of such meeting, as such Governor General of president would have had in case he had been present at such meeting: Provided always that no act of Council made at any such meeting shall be valid to any effect whatsoever unless the same shall be signed by such Governor General or president respectively if such Governor General or president shall at the time be resident at the place at which such meeting shall be assembled and shall not be prevented by such indisposition from signing the same: Provided always, that in case such Governor General or president, not being so prevented as aforesaid, shall decline or refuse to sign such act of council, he and the several members of Council who shall have signed the same, shall mutually exchange with and communicate in writing to each other the grounds and reasons of their respective opinions, in like manner and subject to such regulations and ultimate responsibility as are by the East India Company Act, 1795,sections 47,sections 48,sections 49,sections 50andsections 51provided and described in cases where such Governor General shall, when present, dissent from any measure proposed or agitated in the Council.
SECTION 08: POWER OF GOVERNOR GENERAL TO MAKE RULES FOR CONDUCT OF BUSINESS
-It shall be lawful for the Governor General from time to time to make rules and orders for the more convenient transaction of business in the said Council; and any order made or act done in accordance with such rules and orders (except as hereafter provided respecting laws and regulations) shall be deemed to be the order or act of the Governor General in Council.
SECTION 09: COUNCIL WHERE TO ASSEMBLE
-The said Council shall from time to time assemble at such place or places as shall be appointed by the Governor General in Council within the territories of India; and as often as the said Council shall assemble within either of the Presidencies of Fort Saint George or Bombay, the Governor of such Presidency shall act as an extraordinary member of Council; and as often as the said Council shall assemble within any other division, province, or territory having a Lieutenant Governor, such Lieutenant Governor shall act as an additional councillor at meetings of the Council, for the purpose of making laws and regulations only, in manner hereinafter provided.
SECTION 10: ADDITIONAL MEMBERS TO BE SUMMONED FOR THE PURPOSE OF MAKING LAWS AND REGULATIONS
-For the better exercise of the power of making laws and regulations vested in the Governor General in Council, the Governor General shall nominate, in addition to the ordinary and extraordinary members above mentioned, and to such Lieutenant Governor in the case aforesaid, such persons, * * *7as to him may seem expedient to be members of Council for the purpose of making laws and regulations only; and such persons shall not be entitled to sit or vote at any meeting of Council, except at meetings held for such purpose: Provided that not less that one half Of the persons so nominated shall be non-official persons, that is persons who, at the date of such nomination, shall not be in the civil or military service of the Crown in India, and that the seal in Council of any non-official member accepting office under the Crown in India shall be vacated on such acceptance.
SECTION 11: SUCH MEMBERS TO BE APPOINTED FOR TWO YEARS
-Every additional member of Council so nominated shall be summoned to all meetings held for the purpose of making laws and regulations8* * *
SECTION 12: RESIGNATION OF ADDITIONAL MEMBERS
-It shall be lawful for any such additional member of Council to resign his office to the Governor General; and on acceptance of such resignation by the Governor General such office shall become vacant.
SECTION 14: NO LAW TO BE INVALID BY REASON OF NUMBER OF NON OFFICIAL MEMBERS BEING INCOMPLETE
-No law or regulation made by the Governor General in Council in accordance with the provisions of this Act shall be deemed invalid by reason only that the proportion of non-official additional members hereby provided was not complete at the date of its introduction to the Council or its enactment.
SECTION 15: SENIOR ORDINARY MEMBER OF COUNCIL TO PRESIDE AT MEETINGS FOR MAKING HEWS AND REGULATIONS IN ABSENCE OF GOVERNOR GENERAL, ETC
:-In the absence of the Governor General and of the president, nominated as afore- said, the senior ordinary member of the Council present shall preside at meetings of the Council for making laws and regulations; and in every case of difference of opinion at meetings-of the said Council for making laws and regulations, where there shall be an equality of voices, the Governor General, or in his absence the president, and in the absence of the Governor General and president such senior ordinary member of Council there presiding, shall have two votes or the casting vote.
SECTION 16:
- Rep. 55 & 56 Vict., c. 19 (S. L. R.).
SECTION 17: POWER TO APPOINT AND ADJOURN MEETINGS FOR MAKING LAWS AND REGULATIONS
-It shall be lawful for the Governor General in Council from time to time to appoint all * * *9times and places of meeting of the Council for the purpose of making laws and regulations under the provisions of this Act, and to adjourn, or from time to time authorise such president, or, senior ordinary member of Council in his absence, to adjourn any meeting for the purpose of making laws and regulations from time to time and from place to place.
SECTION 18: RULES FOR CONDUCT OF BUSINESS AT SUCH MEETINGS
-It shall be lawful for the Governor General in Council to make rules for the conduct of business at meetings of the Council for the purpose of making laws or regulations under the provisions of this Act, prior to the first of such meetings; But such rules may be subsequently amended at meetings for the purpose of making laws or regulations, subject to the assent of the Governor General; and such rules shall prescribe the mode of promulgation and authentication of such laws and regulations: Provided always, that it shall be lawful for the Secretary of State in Council to disallow any such rule, and to render it of no effect.
SECTION 19: BUSINESS TO BE TRANSACTED AT SUCH MEETINGS
-No business shall be transacted at any meeting for the purpose of making laws and regulations, except as last hereinbefore provided, other than the consideration and enactment of measures introduced into the Council for the purpose of such enactment; and it shall not be lawful for any member or additional member to make or for the Council to entertain any motion, unless such motion be for leave to introduce some measure as aforesaid into Council or have reference to some measure actually introduced thereinto: Provided always, that it shall not be lawful for any member or additional member to introduce, without the previous sanction of the Governor General, any measure affecting,- 1st the public debt or public revenues of India, or by which any charge would be imposed on such revenues: 2nd the religion or religious rights and usages of any class of Her Majesty's subjects in India: 3rd the discipline or maintenance of any part of Her Majesty's Military or Naval forces: 4th the relations of the Government with foreign princes or states.
SECTION 20: ASSENT OF GOVERNOR GENERAL TO LAWS AND REGULATIONS MADE AT SUCH MEETINGS
-When any law or regulation has been made by the Council at a meeting for the purpose of making laws and regulations as aforesaid, it shall be lawful for the Governor General, whether lie shall or shall not have been present in Council at the making thereof, to declare that he assents to the same, or that he withholds his assent from the same, or that be reserves the same for the signification of the pleasure of Her Majesty thereon; and no such law or regulation shall have validity until the Governor General shall have declared his assent to the same, or until (in the case of a law or regulation so reserved as aforesaid) Her Majesty shall have signified her assent to the same to the Governor General, through the Secretary of State for India in Council, and such assent shall have been duly proclaimed by the said Governor General.
SECTION 21: POWER OF THE CROWN TO DISALLOW LAWS AND REGULATIONS MADE AT SUCH MEETINGS
-Whenever any such law or regulation has been assented to by the Governor General, he shall transmit to the Secretary of State for India an authentic Copy thereof; and it shall be lawful for Her Majesty to signify, through the Secretary of State for India in Council, her disallowance of such law; and such disallowance shall make void and annul such law from or after the day on which the Governor General shall make known, by proclamation or by signification to his Council, that he has received the notification of such disallowance by Her Majesty.
SECTION 22: EXTENT OF THE POWERS OF THE GOVERNOR GENERAL IN COUNCIL TO MAKE LAWS AND REGULATIONS AT SUCH MEETINGS
-The Governor General in Council shall have power at meetings for the purpose of making laws and regulations as aforesaid, and subject to the provisions herein contained, to make laws and regulations for repealing, amending, or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territory now [or hereafter]10under the dominion of Her Majesty, and to make laws and regulations for all .persons, whether British or native, foreigners or others, and lor all courts of justice whatever, and for all places and things whatever within the said territories, and for all servants of the Government of India within the dominions of princes and states in alliance with Her Majesty;11and the laws and regulations so to be made by the Governor General in Council shall control and supersede any laws and regulations in anywise repugnant thereto which shall have been made prior thereto by the Governors- of the Presidencies of Fort St. George and Bombay respectively in Council, of the Governor or Lieutenant Governor in Council of any presidency or other territory for which a Council may be appointed, with power to make taws and regulations under and by virtue of this Act: Provided always, that the said Governor General in Council shall not have the power of making any laws or regulations which shall repeal or in any way affect any of the provisions of this Act: or any of the provisions of the12Government of India Act, 1833, and of the government of India Act, 1853, and of the Government of India Act, 1854, which after the passing of this Act shall remains in force: or any provisions for the government of India Act, 1858, or of the government of India Act, 1859: or of Act enabling the Secretary of State in Council to raise money in the United Kingdom for the Government of India: or of the Acts for punishing mutiny and desertion in Her Majesty's Army or in Her Majesty's Indian Forces respectively; but subject to the provision contained in the government of India Act, 1833,section 73, respecting the Indian articles of war: or any provisions of any Act, passed in this present session of Parliament, or hereafter to be passed, in any-wise affecting Her Majesty's Indian territories, or the inhabitants thereof: or which may affect the authority of Parliament, or the constitution and rights of the East India Company,13or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of the said territories.
SECTION 23: GOVERNOR GENERAL MAY MAKE ORDINANCES HAVING FORCE OF LAW IN CASES OF URGENT NECESSITY
-Notwithstanding anything in this Act contained, it shall be lawful for the Governor General, in cases of emergency, to make and promulgate from time to time ordinances for the peace and good government of the said territories or of any part thereof, subject however to the restrictions contained in the last preceding section; and every such ordinance shall have like force of law with a law or regulation made by the Governor General in Council as by this Act provided, for the space of not more than six months from its promulgation, unless the disallowance of such ordinance by Her Majesty shall be earlier signified to the Governor General by the Secretary of State for India in Council, or unless such ordinance shall be controlled or superseded by some law or regulation made by the Governor General in Council at a meeting for the purpose of making laws and regulations as by this Act provided.
SECTION 24: NO LAW, ETC., INVALID BY REASON OF ITS AFFECTING THE PREROGATIVE OF THE CROWN
-No law or regulation made by the Governor General in Council (subject to the power of disallowance by the Crown, as hereinbefore provided), shall bedeemed invalid by reason only that it affects the prerogative of the Crown.
SECTION 25:
- Whereas doubts have been entertained whether the Governor General of India, or the Governor General of India in Council, had the power of making rules, laws and regulations for the territories known from time to time as "Non-Regulation Provinces," except at meetings for making laws and regulations in conformity with the provisions of the government of India Act, 1833, and of the government of India Act, 1853, and whether the Governor, or Governor in Council, or Lieutenant Governor of any presidency or part of India, had such power in respect of any such territories: Laws made for the non-regulation provinces declared valid.-Be it enacted, that no rule, law or regulation, which prior to the passing of this Act shall have been made by the Governor General, or Governor General in Council, or by any other of the authorities aforesaid, for and in respect of any such non-regulations province, shall be deemed invalid only by reason of the same not having been made in conformity with the provisions of the said Acts, or of any other Act of Parliament respecting the constitution and powers of the Council of India or of the Governor General, or respecting the powers of such Governors, or Governors in Council, or Lieutenant Governor as aforesaid.
SECTION 26: PROVISION FOR, LEAVE OF ABSENCE TO AN ORDINARY MEMBER OF COUNCIL
-It shall be lawful for the Governor General in Council, or Governor in Council of either of the Presidencies, as the case may be, to grant to an ordinary member of Council leave of absence, under medical certificate, for a period not exceeding six months; and such member, during his absence, shall retain his office and shall on his return and resumption of his duties, receive half his salary for the period of such absence; but if his absence shall exceed six months, his office shall be vacated.
SECTION 27: POWER OF MAKING TEMPORARY APPOINTMENTS OF MEMBERS OF COUNCIL, ETC
-If any vacancy shall happen in the office of an ordinary member of the Council of the Governor General, or of the Council of either of the Presidencies, when no person provisionally appointed to succeed thereto shall be then present on the spot, then, and on every such occasion, such vacancy shall be supplied by the appointment of the Governor General in Council, or the Governor in Council, as the case may be; and until a successor shall arrive the person so nominated shall execute the office to which he shall have been appointed, and shall have all the powers thereof, and shall have and be entitled to the salary and other emoluments and advantages appertaining to the said office during his continuance therein, every such temporary member of Council foregoing all salaries and allowances by him held and enjoyed at the time of his being appointed to such office; and if any ordinary member of the Council of the Governor General, or of the Council of either of the Presidencies shall, by any infirmity or otherwise, be rendered incapable of acting or of attending to act as .such, or if any such member shall be abseat on leave, and if any person shall have been provisionally appointed as aforesaid, then the place of such member absent or unable to attend shall be supplied by such person; and if no person provisionally appointed to succeed to the office shall be then on the spot, the Governor General in Council, or Governor in Council, as the case may be, shall appoint some person to be a temporary member of Council; and, until the return of the member so absent or unable to attend, the person so provisionally appointed by the Secretary of State in Council, or so appointed by the Governor General in Council, or Governor in Council, as the case may be, shall execute the office .to which he shall have been appointed and shall have all the powers thereof, and shall receive half the salary of the member of Council whose place he supplies and also half the salary of his office under the Government of India, or the Government of either of the Presidencies, as the case may be, if he hold any such office, the remaining half of such last named salary being at the disposal of the Government of India or other Government as aforesaid: Provided always, that no person shall be appointed a temporary member of the said Council who might not have been appointed as herein-before provided to fill the vacancy supplied by such temporary appointment.
SECTION 28: GOVERNORS OF FORT SAINT GEORGE AND BOMBAY MAY MAKE RULES FOR THE CONDUCT OF BUSINESS IN THEIR COUNCILS
-It shall be lawful for the Governors of the Presidencies of Fort Saint George and Bombay respectively from time to time to make rules and orders for the conduct of business in their Councils, and any order made or act done in accordance with such directions (except as herein-after provided respecting laws and regulations) shall be deemed to be the order or act of the Governor in Council.
SECTION 29: POWER TO SUMMON ADDITIONAL MEMBERS TO THE COUNCILS OF FORT SAINT GEORGE AND BOMBAY FOR THE PURPOSE OF MAKING LAWS AND REGULATIONS
- For the better exercise of the power of making laws and regulations hereinafter vested in the Governors of the said Presidencies in Council respectively, each of the said Governors shall, in addition to the members whereof his Council now by law consists, or may consist, termed herein ordinary members, nominate to be additional members the Advocate General of the Presidency, or officer acting in that capacity, and such other persons,14* * as to him may seem expedient, to be members of Council, for the purpose of making laws and regulations only; and such members shall not be entitled to sit or vote at any meeting of Council, except at meetings held for such purpose: Provided, that not less than half of the persons so nominated shall be non-official persons, as herein-before described; and that the seat in Council of any non-official member accepting office under the Crown in India shall be vacated on such acceptance.
SECTION 30: SUCH MEMBERS TO BE APPOINTED FOR TWO YEARS
-Every additional member of Council so nominated shall be summoned to all meetings held for the purpose of making laws and regulations15* * *
SECTION 31: RESIGNATION OF ADDITIONAL MEMBERS
-It shall be lawful for any such additional member of Council to resign his office to the Governor of the presidency; and on acceptance of such resignation by the Governor of the Presidency such office shall become vacant.
SECTION 32:
-[Rep. 55 & 56 Vict.c. 14, s.4.]
SECTION 33: NO LAW TO BE INVALID BY REASON OF INCOMPLETENESS OF NUMBER OF NON OFFICIAL MEMBERS
-No law or regulation made by any such Governor in Council in accordance with the provisions of this Act shall, be deemed invalid by reason only that the proportion of non-official additional members hereby established was not complete at the date of its introduction to the Council or its enactment.
SECTION 34: SENIOR CIVIL ORDINARY MEMBER OF COUNCIL TO PRESIDE IN ABSENCE OF GOVERNOR OF PRESIDENCY
-At any .meeting of the Council of either of the said Presidencies from which the Governor shall be absent, the16senior civil ordinary member of Council present shall preside;17* * and in any case of difference of opinion at meetings of any such Council for making laws and regulations where there shall be an equality of voices, the Governor, or in his absence the senior member then presiding, shall have two votes or the casting vote.
SECTION 35:
[Rep. 55 & 56 Vict., c. 19 (S. L. R.)]
SECTION 36: GOVERNORS OF PRESIDENCIES TO APPOINT SUBSEQUENT MEETINGS, AND ADJOOURN THEM
-It shall be lawful for every such Governor to appoint all * *18times and places of meeting of his Council for the purpose of making laws and regulations under the provisions of this Act, and to adjourn or from time to time to authorize such senior ordinary member of Council in his absence to adjourn any meeting for making laws and regulations from time to time and from place to place.
SECTION 37: RULES FOR CONDUCT OF BUSINESS AT SUCH MEETINGS
-Previously to the first of such meetings of their Councils for the purpose of making laws and regulations under the provisions of this Act, the Governors of the said .Presidencies in Council respectively shall make rules for the conduct of business at such meetings, subject to the sanction of the Governor General in Council; but such rules may be subsequently amended at meetings for the purpose of making laws and regulations, subject to the assent of the Governor: 14.Provided always, that it shall be lawful for the Governor General in Council to disallow any such rule and render the same of no effect.
SECTION 38: BUSINESS TO BE TRANSACTED AT SUCH MEETINGS
-No business shall be transacted any meeting of the Council of either of the said Presidencies far the purpose of making laws and regulations (except as last herein-before provided) other than the consideration and enactment of measures introduced into such Council for the purpose of such enactment; . and it shall not be lawful for any member or additional member to make, or for the Council to entertain, any motion, unless such motion shall be for leave to introduce some measure as aforesaid into Council, or have reference to some measure actually introduced thereinto: Provided always, that it shall not be lawful for any member or additional member to introduce, without the previous sanction of the Governor, any measure affecting the public revenues of the Presidency, or by which any charge shall be imposed on such revenues.
SECTION 39: GOVERNORS TO ASSENT TO LAWS AND REGULATIONS OF PRESIDENCIES
- When any law or regulation has been made by any such Council at a meeting for the purpose of making laws and regulations as aforesaid, it shall be lawful for the Governor, whether he shall or shall not have been present in Council at such meeting, to declare that he assents to, or withholds his assent from, the same.
SECTION 40: GOVERNOR GENERAL TO ASSENT TO LAWS AND REGULATIONS OF PRESIDENCIES
-The Governor shall transmit forthwith an authentic copy of every law or regulation to which he shall have so declared his assent to the Governor General; and no such law or regulation shall have validity until the Governor General shall have assented thereto, and such assent shall have been signified by him to and published by the Governor: Provided always, that in every case where the Governor General shall withold his assent from any such law or regulation, he shall signify to the Governor in writing his reason for so withholding his assent.
SECTION 41: POWER OF THE CROWN TO DISALLOW LAWS AND REGULATIONS OF PRESIDENCIES
-Whenever any such law or regulation shall have been assented to by the Governor General, he shall transmit to the Secretary of State for India an authentic copy thereof; and it shall be lawful for Her Majesty to signify, through the Secretary of State for India in Council, her disallowance of such law or regulation; and such disallowance shall make void and annul such law or regulation from or after the day on which such Governor shall make known by proclamation or by signification to the Council, that he has received the notification of such disallowance by Her Majesty.
SECTION 42: EXTENT OF POWER OF GOVERNOR OF PRESIDENCY IN COUNCIL TO MAKE LAWS AND REGULATIONS
-The Governor of each of the said Presidencies in Council shall have power, at meeting for the purpose of making laws and regulations as aforesaid, and subject to the provisions herein contained, to make laws and regulations for the peace and good government of such Presidency, and for that purpose to repeal and amend any laws and regulations made prior19to the coming into operation of this Act by any authority in India, so far as they affect such Presidency: Provided always, that such Governor in Council shall not have the power of making any laws or regulations which shall in any way affect any of the provisions of this Act, or of any other Act of Parliament in force or hereafter to be in force in such Presidency.
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