Allowed

Alberto Caetano Gomes and Anr., v. Carmen De Miranda, and 4 Ors.

Bombay HC24 Mar 2021WP/191/2014

Case brief

AI extract

What is this about?

The High Court disposed of two joined writ petitions challenging orders granting water connections to certain respondents. The Court dismissed the petition questioning the water connection orders, finding no case for interference. It allowed the other petition, setting aside a Lokayukta order that had unjustifiably restrained the release of the connection.

What did the court decide?

The order dated 8/7/2013 made by the Lokayukta in Complaint No.10/2013 was set aside. No order as to cost.

Alberto Caetano Gomes and Anr., Vs Carmen De… — Public Procurement and Tenders | Bombay HC (2021)

¶1

¶2

 Santosh

¶3

IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 572 OF 2014

¶4

Carmen De Miranda,
d/o late Antonino de Miranda,
major of age, resident of
House No. 561, Loutolim,
Salcete, Goa.

¶5

... Petitioner

¶6

Versus

¶7

(1) The State Of Goa,
represented herein by the
Chief Secretary,
Government of Goa,
Secretariat, Porvorim,
Bardez, Goa.

¶8

(2) Director of Health Services
Government of Goa,
18th June Road, Panaji, Goa.

¶9

(3) The Medical Officer,
Primary Health Centre,
Loutolim, Salcete, Goa.

¶10

(4) The Sanitary Inspector,
Primary Health Centre,
Loutolim, Salcete, Goa.

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(5) The Assistant Engineer,
Works Division IX (PHE),
Sub Division IV, P.W.D.
Government of Goa,
Monte Hill, Margao,
Salcete, Goa.

¶12

(6) Alberto Caetano Gomes,

¶13

¶14

s/o late Militao Gomes,
major of age, service,
r/o House No. 527/A,
Caracol, Devotte, Loutolim,
Salcete, Goa.

¶15

(7) Rosa Maria Pires e Gomes,
w/o Alberto C. Gomes,
major of age, housewife,
r/o House No. 527/A, Caracol,
Devotte, Loutolim, Salcete, Goa. ….. Respondents

¶16

Mr. Ryan Menezs, with Mr. Nigel Fernandes, and Ms. Gina Almeida,
Advocates for the Petitioners.

¶17

Mr. Pravin Faldessai, Addl. Govt. Advocate for Respondents No.1 to
5.

¶18

Mr. Nigel De Costa Frias, with Ms. Andrade Barbare, Advocates for
Respondents No.6 and 7.

¶19

 WITH

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WRIT PETITION NO. 191/2014 WITH
MISC. CIVIL APPLICATION NO. 781/2014

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1. Mr. Alberto Caetano Gomes,
 Major in age, Son of
 Late Shri Militao Gomes,
 In service,

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2. Mrs. Rosa Maria Pires e Gomes,

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 Major in age, wife of Mr. Alberto C. Gomes,
 Housewife,

¶24

 Both permanent residents of H.No. 439-A,
 Devotte, Loutolim, Salcete, Goa,
 currently residing at House No. 527/A,
 Caracol, Devotte, Loutolim, Salcete, Goa.

¶25

... Petitioners

¶26

 Versus

¶27

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1. Mrs. Carmen De Miranda,
 Major in age, Resident of
 561, Loutolim, Salcete, Goa.

¶29

2. The Medical Officer,
 Primary Health Centre, Loutolim,
 Salcete, Goa.

¶30

3. The Sanitary Inspector,
 Primary Health Centre, Loutolim,
 Salcete, Goa.

¶31

4. The Assistant Engineer,
 S.D. IV, W.D.IX (PHE),
 Public Works Department,
 Monte Hill, Margao, Salcete, Goa.

¶32

5. The State of Goa
 Through its Chief Secretary
 Secretariat, Porvorim
 Bardez, Goa. ... Respondents.

¶33

Mr. Nigel De Costa Frias, with Ms. Andrade Barbare, Advocates for
the Petitioners.

¶34

Mr. Ryan Menezs, with Mr. Nigel Fernandes, and Ms. Gina Almeida,
Advocates for Respondent No.1.

¶35

Mr. Pravin Faldessai, Addl. Govt. Advocate for Respondents No.2 to
5.

¶36

 Coram:- DIPANKAR DATTA,CJ &
 M. S. SONAK, J

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Date:- 24th March 2021

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ORAL JUDGMENT: (Per M.S. SONAK, J.)

¶40

 Heard the learned Counsel for the parties.

¶41

2.The learned Counsel for the parties agree that both these
Petitions can be disposed of by a common Judgment and Order.

¶42

3.In Writ Petition No.572/2014, the Petitioner who is a
Portuguese National, seeks an appropriate writ, order, or direction to
quash and set aside the orders/communications dated 12/2/2011,
5/4/2014, 3/11/2014, and 14/1/2015 made by the Medical Officer,
Primary Health Centre, Loutolim, Salcete, Goa under the provisions
of the Goa Public Health Act, 1985 (said Act).

¶43

4.In Writ Petition No.191/2014, the challenge is to the order
dated 8/7/2013, made by Lokayukta in complaint No.10/2013,
made by the Petitioner in Writ Petition No.572/2014, who has been
impleaded as Respondent No.1 in Writ Petition No.191/2014. In
terms of the Lokayukta's order dated 8/7/2013, the Medical Officer
acting under the said Act was injuncted from implementing his order
dated 12/2/2011 providing a water connection to Respondents No.6
and 7 in Writ Petition No.572/2014 and the Petitioner in Writ
Petition No.191/2014. This order dated 8/7/2013 was stayed by the
learned Single Judge of this Court on 21/8/2014 and the water
connection was directed to be released, subject to the final relief in
the writ petition.

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5.Having regard to the aforesaid, it is only appropriate that
both these petitions are taken up for consideration together and
disposed of by a common judgment and order.

¶46

6.Since the orders impugned in Writ Petition No.572/2014
were made by the Medical Officer purporting to exercise the powers
conferred under Section 94A of the said Act, it is only appropriate
that Sections 94A, 94B, 94C, and 94D, which comprise Chapter XA,
are transcribed below for the convenience of reference:

¶47

“94A. Power of Government to issue directions. - (1)
Notwithstanding anything contained in any provisions of
this Act, or in any rules, regulations, notifications, orders
or in any decree or judgement of any Court, or in any law
for the time being in force, the Government may, in
appropriate cases, by order, direct any authorities, local
bodies, statutory functionaries, or any other functionaries
discharging public functions,-

¶48

(a) to grant, supply, provide and ensure supply of potable
water, electricity, sanitary convenience or such other
essential services, so declared by the Government under
the Goa Essential Services Maintenance Act, 1988 (Act 20
of 1989) or under any other law for the time being in
force, to any person, house, structure, hut, factory, area,
locality;

¶49

(b) to remove forthwith or within such period as the
Government may specify in the order, any filth nuisance,
offensive trade or matter, sewage, or any object causing or
likely to cause any disturbance to human senses or to
public health, from any land or portion thereof, house,
hut, structure, locality, river front, riverine land, port area,
seabed, sea , river or nullah, anywhere in the State.

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(2) The Government may empower any of the following
authorities, by a special or general order, to perform its
functions under sub-section (1), namely:-

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(a) Health Officer of the concerned area;

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(b) Chief Officer of a Municipal Council or the
Commissioner of a Corporation, as the case may be;

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 (c) Director of Health Services;

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(d) Collector of the District;

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(e) Secretary to the Government, dealing with Public
Health Department.

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(f) Director of Panchayats;

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(g) Project Director of Rural Development Agency.

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(h) Mission Director of Swachi Bharat Mission;

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(i) Any other authority as deemed fit by the
Government.

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(3) Upon the issuance of an order under sub-section
(1) or sub-section (2) by the Government, every authority,
local body, statutory functionary or other functionaries
and every person thereof referred to in sub-section (1) or
sub-section (2), shall be bound to comply with the same
and provide and facilitate the provision of potable water,
electricity or any other essential services, as the case may
be, and for this purpose, every authority, local body,
statutory functionaries or other functionaries and every
person thereof, referred to in sub-section (1) or sub-
section (2), shall have all powers to lay necessary lines,
cables, pipes, poles, pipelines and to provide necessary
infrastructure, subject to the provisions of sub-section (4)
hereof:

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Provided that if any order issued by an authority
empowered under sub-section (2) in respect of the

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nuisance referred to in clause (b) of sub-section (1) has
not been complied with within the stipulated period,
then, the authority empowered under sub-section (2) may
order any statutory person or body to comply with such
order within such further time as may be specified in the
order and recover the cost incurred in removing such
nuisance from the person responsible for such nuisance as
an arrears of land revenue under the law for the time
being in force.

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[Provided that before making order for grant or
supply of potable water, electricity or other essential
services, the authority making such order shall ensure that
the occupier of the premises has complied with the safety
and sanitary measures to the satisfaction of such
authority.]

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(4) (a) In the event of any private right being affected
or dispute having arisen, or any person, owner or occupier
being entitled to any compensation, either under the
Electricity Act, 2003 (Central Act 36 of 2003), the Land
Acquisition Act, 1894 (Central Act 1 of 1894) or any other
law for the time being in force, rights of such person to
determine, claim and receive such compensation shall
remain unaffected.

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(b) In the event of any dispute as regards land,
building, apportionment, encroachment, including legality
or illegality of structure or occupation of any structure by
any person or any question related or incidental thereto,
such dispute, this, proceedings, right, privilege shall remain
unaffected and shall not prejudice any person in any way
whatsoever.

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(c) Providing water supply connection, electricity
supply connection or any other essential service, shall not in
any way be taken to have regularized, validated or legalised
any such structure, premises, house, hut, area or occupation
of or by any such person, as an order under sub-section (1)

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is relatable to all matters of health only.

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94B. Bar of Courts' jurisdiction to entertain suits. - Any
order passed by or on behalf of the Government under
section 94A shall not be called in question in any Court of
law and no Court shall have jurisdiction to entertain, try or
dispose of any proceedings, suit or application challenging,
questioning or prohibiting, directly or indirectly, the order
under section 94A:

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Provided however that, the right of any person, body,
authority, owner or occupier of any land or structure, to
receive any compensation subsequent to such supply, under
any law, shall not be affected.

¶73

94C. Punishment for non-compliance with order
under section 94A. - Any person or statutory functionary
or other functionaries or the principal officer of any
authority or local body, responsible for complying with the
order under section 94A, disobeying or not complying
forthwith, or abetting violation of any orders under section
94A shall, on a trial by a Magistrate, be liable to
punishment with imprisonment for a term which may
extend to six months or a fine which may extend to Rs.
50,000/- or both.

¶74

94D. Provisions of this Chapter to be in addition to
and not in derogation of other provisions or laws. - The
provisions of this Chapter shall be in addition to and not in
derogation of any other power under any provisions of this
Act or any other law for the time being in force.]”

¶75

7.The records indicate that vide Deed of Sale dated
18/6/1985, the parents of the Petitioner sold to Respondents No.6
and 7, two plots of land in Loutolim, Salcete, Goa along with the
house situated therein. It is the case of Respondents No.6 and 7 that
the parents of the Petitioner had specifically permitted Respondent

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No.6 to use a strip of land as means of access to the house.
Respondents No.6 and 7 applied under the provisions of the said Act
for direction to release a water connection to their house and the
Medical Officer, vide order dated 12/2/2011, issued such directions
for release of the water connection to House No. 439/A, situated in
Survey No.107/2A at Loutolim, Salcete, Goa. The Medical Officer
made this order under Section 94A of the said Act. This is one of the
orders challenged in Writ Petition No.572/2014.

¶78

8.Based on the order dated 12/2/2011, a letter dated
5/4/2013 was addressed by the Medical Officer to the Assistant
Engineer, PWD, requiring him to take indicated alignment for laying
of pipeline and providing water connection to Respondents No.6 and
7. This is the second communication challenged by the Petitioner,
Carmen de Miranda in Writ Petition No.572/2014.

¶79

9.Based on a complaint of Carmen de Miranda, the Medical
Officer issued a show-cause notice dated 23/9/2014 to Respondents
No.6 and 7 to clarify the allegations made by Carmen de Miranda
on the issue of release of water connection vide order dated
12/2/2011. After hearing both, Carmen de Miranda and
Respondents No.6 and 7, this show cause notice dated 23/9/2014
was discharged by the Medical Officer vide order dated 3/11/2014.
This is the third order which is challenged by Carmen de Miranda.

¶80

10. The Petitioner, Carmen de Miranda, filed an application

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dated 10/10/2014, seeking for modification/review of the order dated
12/2/2011 made by the Medical Officer. This application was
disposed of by the communication dated 14/1/2015 by the Medical
Officer holding that no case was made out for the review of the order
dated 12/2/2011 for release of water connection. This is the fourth-
order that is challenged in Writ Petition No.572/2014.

¶83

11.Mr. Menezes, the learned Counsel for the Petitioner,
Carmen de Miranda, submits that House No.439/1 does not exist at
the site or, in any case, is not at all habitable. He submits that
Respondents No.6 and 7 do not reside in the said house, but they
reside in some other house in the neighborhood. He submits that
powers under Section 94A can never be exercised for release of a
water connection in favor of Respondents No.6 and 7 since they do
not reside in the suit house and the powers under Section 94A of the
said Act are only to take care of health issues which might arise for
want of regular water connection to any dwelling house. He submits
that fraud was played by Respondents No.6 and 7 as if to indicate
that they were staying in house No.439/1 only to obtain a water
connection by resort to the provisions of Section 94A of the said Act.
He submits that otherwise, Respondents No.6 and 7 would have to
seek water connection in terms of the Goa Provision of Water Supply
Act, 2003 and, for several reasons, Respondents No.6 and 7 were not
even eligible to obtain water supply connection in terms of the Goa
Provision of Water Supply Act, 2003. He, therefore, submits that the
orders impugned in Writ Petition No.572/2014 warrant interference.

¶84

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12.Mr. Nigel Costa Frias, the learned Counsel for Respondents
No.6 and 7 pointed out that there is no case of fraud involved in this
matter. He points out that the parents of the Petitioner had
themselves sold the property along with the house therein to
Respondents No.6 and 7. At a later point in time, the son of
Respondent No.6 may have constructed some other house in the
neighborhood, but that does not mean that Respondent No.6 and 7
stopped living in the earlier house. He submits that the Petitioner is
not even an Indian citizen and the Petition involves disputed
questions of fact. He submitted that the Medical Officer had no
powers of review and even the allegations of fraud were never made
against Respondents No.6 and 7. He submits that the pipeline has
been laid through the access specifically granted by the Petitioner's
parents while selling the property to Respondents No.6 and 7 vide
Deed of Sale dated 18/6/1985. He submits that the pipeline is laid
and in any case, aligned to the public road and the Petitioner has no
cause for complaint. He submits that this is a civil dispute between
the parties and it would be open to the Petitioner, Carmen de
Miranda to approach a Civil Court, inter alia, to seek compensation
or any other relief as is permissible under law.For all the aforesaid
reasons Mr. Costa Frias submits that Writ Petition No.572/2014 may
be dismissed.

¶86

13.Mr. Nigel Costa Frias has also relied on the decision of the
Division Bench of this Court in the case of Dr. Winston Dias vs.

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State of Goa and ors. in Writ Petition No. 192/2008 which was
disposed of vide Judgment and Order dated 18th December 2014. He
points out that in this decision, the constitutional validity of Section
94 of the said Act was upheld by this Court.

¶89

14.Upon due consideration of the rival contentions and
perusal of the material on record, we are quite satisfied that the
Petitioner, Carmen de Miranda has not made out any case for exercise
of our extraordinary jurisdiction under Articles 226 and 2267 of the
Constitution of India and quashing the impugned orders/
communications.

¶90

15.In the first place, it is evident that the Petitioner seeks to
resolve her private and civil disputes with Respondents No.6 and 7 by
invoking the extraordinary jurisdiction of this Court. Resolution of
such disputes involves disputed questions of fact which cannot be
adjudicated in the present proceedings.

¶91

16.Secondly, if the scheme of Chapter XA of the said Act is
perused, then, it is not as if the Petitioner is left without any remedy,
in case the Petitioner, Carmen de Miranda can make out a case that
her private rights have been affected by the release of water
connection in favor of Respondents No.6 and 7, or by alignment of
the water pipeline for release of such water connection. The
provisions of Section 94A are quite clear and afford redressal in such a
situation. Besides, since it is the case of the Petitioner that there is

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some fraud involved, it is possible for the Petitioner to perhaps
contend that the jurisdiction of the Civil Court is not entirely barred.
However, even if it is assumed that Section 94B of the said Act will
disable the Petitioner from questioning the impugned orders by
instituting a suit, the Petitioner can always agitate the issue
concerning her private rights, including the issues relating to the
existence or non-existence of the house or the legality or illegality of
the structure and other such matters, having regard to the provisions
of Section 94A(4) of the said Act. If, ultimately, the Petitioner can
make good her allegations, then, the issue of water connection will be
almost irrelevant or inconsequential. This is yet another reason as to
why we are not inclined to exercise our extraordinary jurisdiction in a
matter of this nature.

¶94

17.Thirdly, Respondents No.6 and 7 have stated on an
affidavit that they reside in the house in question. Mr. Costa Frias has
submitted that on some occasions, Respondents No. 6 and 7 may be
residing with their son, but that does not mean that the house for
which the water connection has been released, was not being used for
residence by Respondents No.6 and 7. The authorities under the said
Act have accepted the version put forth by Respondents No. 6 and 7
and there is no unimpeachable material produced by the Petitioner in
support of her allegations. Besides, the learned Counsel for the
Petitioner was unable to indicate any provisions in the said Act which
require continuous residence in the house as a precondition for an
order for the release of water connection under Section 94A of the

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said Act.

¶97

18.The aforesaid means that the Petitioner, Carmen de
Miranda has neither made out any case of statutory infraction nor is
any case of breach of the principles of natural justice made out. In
such circumstances, it will not be proper to exercise our extraordinary
jurisdiction and interfere with the impugned orders. Mr. Menezes
was even unable to point out any provisions under the said Act which
confer any powers of review upon the Medical Officer. He was also
unable to make out any case of ex facie fraud on the part of
Respondents No.6 and 7. Therefore, no case is made out for
interference with the impugned orders dated 3/11/2014 and
14/1/2015.

¶98

19.For all the aforesaid reasons, we see no merit in Writ
Petition No.572/2014, which is hereby dismissed.

¶99

20.As noted earlier, the challenge in Writ Petition
No.191/2014 is to the order dated 8/7/2013, made by the Lokayukta
injuncting the Authorities under the said Act from giving effect to
their order dated 12/2/2011 and releasing the water connection in
favor of Respondents No.6 and 7 in Writ Petition No.572/2014.

¶100

21.The learned Single Judge of this Court in his order dated
21/8/2014, by giving detailed reasons had stayed the Lokayukta's
impugned order dated 8/7/2013, and further directed the
Respondents to proceed to release the water connection to the

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¶102

residential house of Respondents No.6 and 7 though, subject to the
result of the Petition. There is no dispute that in pursuance of the
interim order dated 21/8/2014, the water connection has since been
released.

¶103

22.Mr. Menezes was unable to point out any provisions under
the Lokayukta Act, in terms of which the learned Lokayukta could
have made the impugned order dated 8/7/2013, injuncting the
authorities under the said Act from implementing their order.
Besides, we note that Carmen de Miranda, in her complaint made to
Lokayukta did not even implead Respondents No.6 and 7, who were
the beneficiaries of the order dated 12/2/2011, which the learned
Lokayukta stayed, pending disposal of the complaint. From the
perusal of the complaint, which is to be found at Exhibit U, pages 99
to 104 of the paper book in Writ Petition No.191/2014, it is quite
doubtful as to whether the complaint was maintainable before the
learned Lokayukta or not.

¶104

23.In any case, the impugned order dated 8/7/2013 made by
the Lokayukta was in excess of jurisdiction, apart from the same
being in violation of the principles of natural justice. Even, the aspect
of the balance of convenience was not at all considered whilst making
this order, particularly since the order dated 12/2/2011 had only
directed the authorities to provide a water connection. Such an order
was without prejudice to the rights and remedies available to
Carmen de Miranda to protect her private rights concerning her

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property. Accordingly, we have no hesitation in setting aside the
impugned order dated 8/7/2013 made by the learned Lokayukta.

¶107

24.For all the aforesaid reasons, we dispose of both these
Petitions by making the following order :

¶108

(A) Writ Petition No.572/2014 is, hereby, dismissed. Misc.
Applications in Writ Petition No.572/2014, if pending,
will no longer survive on the dismissal of the main Petition
and, therefore, even the same are hereby disposed of.

¶109

(B) Writ Petition No. 191/2014 is, hereby, allowed and
the order dated 8/7/2013, made by the learned Lokayukta
in Complaint No.10/2013 is, hereby, set aside.

¶110

(C) There shall be no order as to cost.

¶111

M.S. SONAK, J. CHIEF JUSTICE

¶112

SANTOSH S MHAMAL Digitally signed by SANTOSH S MHAMAL Date: 2021.03.30 11:34:39 +05'30'

Alberto Caetano Gomes and Anr., v. Carmen De Miranda, and 4 Ors.

Case brief

What is this about?

What did the court decide?

Alberto Caetano Gomes and Anr., v. Carmen De Miranda, and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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