w w w . L a w y e r S e r v i c e s . i n



Ramnarayan Nathuprasad Pande & Others v/s The Municipal Corporation of Greater Mumbai & Others

    Writ Petition (L) No. 2217 of 2017 with Chamber Summons (ST) No. 120 of 2019 & Notice of Motion No. 282 of 2018 & Chamber Order (L) No. 596 of 2019

    Decided On, 13 August 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE G.S. PATEL

    For the Petitioners: Karan Bhosale, Rohit Jadhav, i/b NDB Law., Advocates. For the Respondents: Rupali Adhate, Himanshu Takke, AGP.



Judgment Text

Oral Judgment:

1. The Petitioners are challenging the notices issued under Section 354 of the Mumbai Municipal Corporation Act 1888 (“MMC Act”).

2. Since a number of Petitions were pending in this Court involving similar challenge but finding that pendency of these Petitions and the interim orders passed therein would not be conducive to the protection/safety of the inhabitants, as also the larger public interest being seriously affected by the pendency of these petitions, the Municipal Advocates were called upon to furnish list of all pending matters including interim orders therein.

3. The present petition is one such petition.

4. The challenge is to the 354 notice but we must reproduce the copy of the notice annexed as Exhibit “A” to the Petition. That reads as under:

“BRIHANMUMBAI MAHANAGARPALIKA

ACP/S/B-46/SR-335/A.E.(B&F) – I, Dtd.: 08/08/2017

To,

The Owner/Landlord,

1) Shri. Ramnarayan Nathuprasad Pande,

2) Shri. Umashankar Nathuprasad Pande,

3) Shri Shivprakash Nathuprasad Pande,

4) Shri. Keshav Durgaprasad Pande,

5) Smt. Kusumlata Suryakant Pande, Sukh Sadan Building, Gogatewadi, Opp. Sanmitra Mandal Vidya Mandir School, Of. Aarey Road, Goregaon (E), Mumbai – 400 063.

Sub.: Technical Advisory Committee (TAC) Meeting was held in the chamber of Directo (E.S. & P.) on 13/07/2017 @ 5:15 p.m. regarding dangerous and dilapidated condition of the building known as ‘Sukh Sadan Building’, Gogatewadi, Opp. Sanmitra Mandal Vidya Mandir School, Of. Aarey Road, Goregaon (E), Mumbai – 400 063.

Ref.:1) Notice under section 354 of MMC Act, 1888 under No. ACPS/BF-46/354/453/AE (B&F) of 2014-15, dtd. 13/05/2014.

2) W.P. No. 1375 of 2015 order dated 30/06/2016.

3) No. DIR/ES&P/153/Conf. dt.29/07/2017.

Gentleman /Madam,

You are aware that your building “Sukh Sadan Building”, Gogatewadi, Opp. Sanmitra Mandal Vidya Mandir School, Of. Aarey Road, Goregaon (E), Mumbai – 400 063 is declared dilapidated and dangerous (C-1 Category) by M.C.G.M. Notice under Section 354 of MMC Act, 1888 under No. ACPS/BF-46/354/453/AE(B&F) of 2014-15, dtd. 13/05/2014 is already issued and you were directed to evacuate the building immediately. As per Hon’ble Court order dated 30/06/2016, the said matter was referred to T.A.C. As per T.A.C. opinion the said building known as ‘Sukh Sadan’ is in severely dilapidated condition may collapse without giving any warning, thereby endangering the life and property of the residents and the people residing in the adjoining property and passerby. Hence, the structure under reference is not habitable and need to be vacated and demolished immediately under the supervision of Structural Consultant.

You are therefore directed to vacate and pull down the above mentioned building within 48 Hours from receipt of this letter, failing which this offi

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ce will demolished the said building on 11/08/2017 or thereafter at your risk and cost and evacuating tenants/ occupants/ owners forcefully with help of Police force, which may please be noted.

Sd/- 8/8/17

Assttt. Commissioner, P/South”

5. The subject of the notice is that the Technical Advisory Committee (“TAC”) met and discussed the issue of the dangerous and dilapidated condition of the building known as ‘Sukh Sadan’, Gogatewadi, Opposite Sanmitra Mandal Vidya Mandir School, Of Aarey Road, Goregaon (East), Mumbai 400 063. It is common ground that the occupants of this building were in receipt of a prior notice under identical provision and that is dated 13th May 2014. Thereafter, there is an order of this Court of 30th June 2016 in Writ Petition No. 1375 of 2015. Pursuant to the same there was a communication dated 29th July 2017.

6. After the above material was considered, the Assistant Commissioner, P/South Ward, who has been delegated the power by the Municipal Commissioner, opined that this building is not capable of being repaired and that, despite this, it continued to be occupied for number of years thereafter. This is a building which is in a highly dilapidated condition. It may collapse without giving any warning, thereby endangering the life and property of the residents and the people residing in the adjoining property and passers-by. His opinion was that the structure in reference is not habitable and needs to be vacated and demolished immediately under the supervision of Structural Consultant.

7. It is this later notice of 2017 which is subject matter of challenge in this writ petition.

8. On 14th August 2017, this writ petition was placed before a Division Bench of this Court. The petitioners who are 31 in number claim to be either occupants, owners or tenants. Their claim is that the building is not in dilapidated condition. That is why this Court was persuaded to pass an ad-interim order in terms of prayer clauses (c) and (d) of the petition. Thus, this notice issued way back on 13th May 2014 has not been enforced and implemented till date. Apart from the fact that the building has deteriorated further, we find that none of the arguments canvassed before us in support of this petition can be accepted.

9. The first submission of Mr Bhosale appearing in support of this petition is that the Technical Advisory Committee carried out an incomplete and haphazard job. In fact, it is duty-bound to consider the conflicting reports, namely, that of the occupants and the owners and some third party reports relied upon by the Municipal Corporation. There has to be an objective. Consideration of these materials in order to arrive at a definite conclusion that the structure under notice is in such state as the law envisages, namely, Section 354 and, therefore, must be pulled down. If there is no conclusion which can be arrived at of this nature, then the notice must be quashed and set aside. According to Mr Bhosale, the first report was brought by the occupants of one M/s. Creative Consultant. The owner engaged M/s. BJ Mehta Architectural and Structural Consultants Pvt Ltd. A third report of M/s. Sterling Consultants was also placed before the Committee.

10. The Committee discarded the report of M/s. Sterling Consultants by holding that there is a difference between a chartered engineer and a structural engineer/consultant empanelled with the MCGM. Apart from being not empanelled, the report of M/s. Sterling Consultants was discarded by opining that it is registered as a Chartered Engineer and was not empowered to comment on the structural stability of the structure. Thus the competence of M/s. Sterling Consultants was doubted. Mr Bhosale would submit that for anybody to be termed as an expert in structural engineering, he has to be first a civil engineer. Whether he is a chartered engineer or a structural engineer, basically both are civil engineers. Therefore, there was no material before the MCGM’s Technical Advisory Committee to hold that M/s. Sterling Consultants are incompetent.

11. At the outset, we must indicate that we are not equipped to decide this issue. The opinion of the said Technical Advisory Committee apart, whether the qualifications of the person appearing before a Committee and representing M/s. Sterling Consultants fulfl that requirement of a structural consultant or structural engineer are matters for experts to decide and not us. These are highly technical matters and it is not as if the structural engineers in the present case, M/s. Sterling Consultant are aggrieved in any way by such findings and stated to be adverse. They have not challenged the finding on their competence and rendered by the Technical Advisory Committee.

12. We are only required to go into the second submission of Mr Bhosale, that is that this building could not have been categorised as C-1 category, being the category that has been assigned by M/s. Creative Consultants. These consultants said that the repairs could be carried out to the structure and though in the frst report it was said that they would require evacuation of the occupants, on the second occasion this expert did not say that an evacuation is required. The owner’s report has been considered and that found favour. Mr Bhosale would submit that we should not forget the circumstances in which the occupants were required to rush to this Court. It is only on a telephone call from the police station that the notice had been issued and that telephone call was made by the owner. Thus, everything is at his behest is apparent and hence we must now interfere in writ jurisdiction.

13. In so far as these contentions are concerned, the parameters of writ jurisdiction, particularly in matters involving challenge to notice under Section 354 of the MMC Act 1888 have been reiterated in at least six judgments and orders of this Court. These decisions are:

(a) Mahendra Bhalchandra Shah & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition (L) No. 1755 of 2019, decided on 24th June 2019;

(b) Inderjit Singh Sethi & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 880 of 2018, decided on 9th July 2019;

(c) Ramesh Nathubhai Patel & Ors v State of Maharashtra & Ors, Writ Petition No. 1500 of 2016, decided on 9th July 2019;

(d) Kutbi Manzil Tenants Welfare Association v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 2451 of 2018, decided on 16th July 2019;

(e) Sundar R. Gavaskar & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 602 of 2019, decided on 29th July 2019;

(f) Richard Gasper Mathias & Ors v Municipal Commissioner, Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 2108 of 2018 decided on 1st August 2019.

14. In these decisions, this Court examined the scope of Section 354, the settled law on the subject in the context of writ jurisdiction, the provisions of Section 353B of the MMC Act, and its statement of objects and reasons, and dealt, too, with the argument that demolition of a tenanted structure adversely affects tenancy or occupancy rights. The principles of law culled from these decisions are these:

(i) It is never for a Court in exercise of its limited writ jurisdiction under Article 226 of the Constitution of India to decide whether a particular structure is or is not actually in a ruinous or dilapidated condition: see: Diwanchand Gupta v NM Shah & Ors. (AIR 1972 Bom 316, per KK Desai and GN Vaidya JJ); Nathubhai Dhulaji v Municipal Corporation; (AIR 1959 Bom 332, YV Dixit & VM Tarkunde, JJ).

(ii) The rights of tenants/occupants are not harmed by demolition ordered and carried out. These rights are adequately safeguarded by Section 354(5) of the MMC Act and by the provisions of the governing Maharashtra Rent Control Act 1999 which fully occupies the feld regarding tenancies of built premises in Maharashtra. The Supreme Court decision in Shaha Ratansi Khimji & Sons v Kumbhar Sons Hotel Pvt Ltd & Ors. (2014) 14 SCC 1)now makes it clear that the rights of tenants and occupants are unaffected by the required demolition.

(iii) Tenants have rights but also remedies to keep their structure in tenantable repair. We have referred extensively to Section 14 of the Maharashtra Rent Control Act, 1999. So far, we have not seen a single case where any tenant or group of tenants has invoked his or their rights under this Section.

(iv) Section 353B casts an obligation not only on owners but also on occupiers of structures that are more than 30 years old to furnish a structural stability certificate. We have yet to see one so furnished unbidden, or, when demanded, one with anything meaningful in it.

(v) A Writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. Equally, the Writ Court will not prefer the view of one expert over another.

(vi) In order to succeed a Petitioner before the Court must be able to show that the impugned action sufers from Wednesbury unreasonableness, (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223 : 1947 (2) All ER 680)i.e. it is so unreasonable that no rational person could, having regard to the fact of the case, ever have reached it. There is no scope in such cases for any larger judicial review or invoking the doctrine of proportionality (State of Madhya Pradesh & Ors v Hazarilal, (2008) 3 SCC 273; Coimbatore District Central Cooperative Bank v Coimbatore District Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669).In other words the decision must be shown to be utterly perverse, or in excess of authority or manifestly illegal.

(vii) It is never sufficient merely to allege mala fides without particulars. While direct evidence may not always be available as proof of mala fides, they must nonetheless be established. In the words of the Supreme Court, allegations of mala fdes are more easily made than proved, and the very seriousness of such allegations demands proof of high order of credibility (Union of India v Ashok Kumar, (2005) 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, (2009) 13 SCC 272).Courts are slow to draw dubious inferences from incomplete facts, especially when the imputations are grave and m and they are made against one who holds an office of responsibility in the administration (EP Royappa v State of Tamil Nadu, (1974) 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, (2003) 4 SCC 579).Mala fdes are the last refuge of a losing litigant (Gulam Mustafa v State of Maharashtra, (1976) 1 SCC 800).Hence, whenever mala fides are alleged, we will demand proof. In case after case we are told that the provisions of the MCGM Act are being abused by rapacious landlords in connivance with venal officers of the MCGM to order the demolition of the buildings that are otherwise structurally sound. We have yet to come across any such case. The argument is in generalities. Though it is an argument of mala fides, it is always made without any particulars whatsoever and we are asked simply to conjecture that this must be so. The law in regard to allegations of mala fides is well settled and we will draw no such general conclusion.

(viii) Further, it is no answer at all, as we have held in Mahendra Bhalchandra Shah, to seek an order of status quo. We have discussed this aspect quite elaborately and have held that no such order can be passed by any Court without specific reference to the actual state of affairs at that moment (In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC 312, the Supreme Court said it was not proper to order a status quo (there, in respect of premises) without indicating what the status quo was).There can be no order of status quo against natural elements. It is one in one thing to direct to parties to a contract to maintain the status quo. This may be an order against one person seeking another’s eviction. This has no application whatsoever to a situation where the complaint is about the deterioration day by day of the physical condition of a built structure exposed to the elements.

(ix) We have also demonstrated in Mahendra Bhalchandra Shah that the entire trend in this Court in the recent past of obtaining undertakings from occupants allowing them to continue in occupation at their own risk is without any basis in law. The MCGM cannot contract out of a statute. An undertaking by a Petitioner to a Court does not absolve the MCGM from its statutory responsibilities or liabilities under that statute. If the undertaking is intended to function as some sort of an indemnity then we have expressed the gravest doubts about any such undertaking ever being enforceable, let alone when the person who gives the undertaking himself or herself sufers an unfortunate mishap.

15. Now it is impermissible for us to apply any different standards or parameters unknown to law. That such buildings which are now in this case 40 years and more of age cannot be given a certificate of stability and safety by this Court in its writ jurisdiction. We have raised a pertinent issue in all the above orders rendered by us. These judgments and orders referred to Section 353-B of the MMC Act 1888 inserted by an amendment of 2009. That Amendment Act of 2009 includes an amendment to this law simply because the Statement of Objects and Reasons leading to that amendment itself says that there were instances of collapse of buildings, and particularly a building known as Laxmi Niwas in Borivali. In that collapse, precious human lives were lost. That these structures are very often neglected by both the occupants as also the owners is a well-known fact of which notice was taken by the legislature. As indicated by us, those occupying as tenants have a right to approach the competent Court or forum created by the then Bombay Rent Act 1947 or in successor legislation, the Maharashtra Rent Control Act 1999 is not disputed. Tenantable repairs and regular maintenance can be done if the landlord or owner neglects the building or the structure and this can be done by the tenants and after such repairs are carried out the costs can be recovered from the landlord/owner in accordance with law. If the repairs required are styled as major structural repairs, then as well preserving and protecting all rights in the property, the occupants can approach competent authorities seeking their permission/approval for such repairs. When nothing has been done, then, the legislature steps in to benchmark the buildings in the city and its suburbs. The 30-year benchmark is advisedly inserted, so that the legislature takes note of the climatic and weather conditions in the city and suburbs. The typical weather and climatic conditions led the legislature to lay down a norm and that is that every building which is more than 30 years old must comply with the standards set out in the provision. These buildings have to be subjected to orders and known as Structural and Safety Orders. That has to be done by a duly qualified and competent person and his report has to be placed before the Commissioner. That is an obligation and now none can say that because he is a tenant or that there are tenancy rights in his favour, his rights do not carry with them a corresponding obligation and duty. This is that corresponding duty and obligation and should he desire to continue and occupy old buildings then he must satisfy the Municipal Commissioner that they are indeed safe, sound and stable for occupation. There is no question of rushing to the structural auditors after the occupants are in receipt of notices under Section 354 for the primary reason for their issuance is that the neglect of the structures which are old have made them dilapidated and dangerous for not only the occupation by the occupants but by those who reside in their neighbourhood and those who pass by the same. It is that larger consideration and duty to the public which enables the Municipal Commissioner to step in.

16. We have found in matter after matter that after receipt of this notice under Section 354, tenants/occupants rush to these structural engineers and demand from them a certificate of stability or rush to this Court or a Civil Court to challenge the notice, but without establishing that the same is vitiated by perversity or mala fides. By a blind assertion that the owners who are rich and powerful and so influential that they can prevail upon the Municipal Corporation to routinely issue such notices, there is absolutely no pleading. There are no particulars at all. There is no material of the nature demanded by this Court which enables it to interfere in its writ jurisdiction.

17. In the present case as well there is no such material.

18. In the compilation handed over by Mr Bhosale, the photographs at page 228 show the existing condition of internal staircase area, existing condition of terrace areas, existing condition of external surface of the building and existing condition of external surface of the building. These are not photographs taken by a commissioner appointed by this Court or an ofcer designated for that purpose by an order of a competent Court. These are photographs taken by the experts themselves and fnd extensive reference in their report. Nobody who is placed in the position of an expert would certify straightaway such constructions to be entirely safe. He would necessarily caution those seeking his opinion and view that looking at the age of the structure, looking at the weather and climatic conditions typical to Mumbai and Mumbai Suburban District, looking at the mass development nearby, the increasing population, the pollution and damage being caused due to the environment, such buildings may collapse on their own at any time for they can safely be termed as dangerous. They would not be categorised as such if those occupying them take the necessary steps.

19. What we fnd is that there is one letter written to the Assistant Commissioner by the Advocates of the present Petitioners. They claim that they are tenants and after the demise of the original landlord the legal heirs are looking after the management and affairs of the building. The allegation is that the landlords have ignored their building. They have failed to maintain it. The result is that the notice under Section 354 has been issued. This notice has been issued way back on 13th May 2014. There is a reminder on 10th June 2014 and second reminder of 18th June 2014. The Municipal Corporation has clearly performed its duty and it went on cautioning the occupants that they must not occupy such a structure for which notice has been given after it has been identified as dangerous for their occupation. It is not only old and dilapidated but dangerous. The allegations that are made in this letter against the landlords serve no purpose at all.

20. We would only make a reference to paragraphs 4 and 5 of this reply to the notice through the Petitioners’ Advocate. In paragraph 4 there is a reference made to the disconnection of water and the officers of the electricity supply company were also informed to disconnect the electricity. Due to sudden shock of disconnection of water and electricity, one of the occupant’s/tenant’s mother suffered a paralytic stroke and others are stated to be under constant fear and apprehension that they will not only lose their shelter but tenancy rights of the respective premises for the fault and negligence of the landlords. Here we must interject and point out that this understanding and which was legally fawed has led many of the occupants to move this Court or to rush to Civil Court to obtain a stay or interim order restraining the Corporation from demolishing the old and dilapidated so also dangerous building in the city.

21. We must clarify that the issuance of notice as also it being carried to its logical conclusion does not extinguish the tenancy rights in the property. Sub-section (5) of Section 354 save the rights expressly. Thereafter, this Advocate’s letter says that there is a tenant welfare association and it refers to the case, not of the building in question, but some other building. The Petitioners rely upon that case and say that the Municipal Corporation should not take drastic action but restore the water and electric supply to the premises and ask and direct the landlord to carry out urgent and immediate repairs of the building to save their life and property. It is a strange way of asserting ones’ rights in a private property. A public body is approached and through it the landlord is to be prevailed upon to carry out the repairs and preserve and maintain the structure. How could the Municipal Corporation have assisted the Petitioners in such an endeavour has not been clarified to us at all.

22. We have brought this to the notice of the present Petitioners simply because the same apprehension as is voiced in these letters is canvassed before us by Mr Bhosale. By clarifying the legal position in the above orders and judgments and orders of this Court and in addition by sub-section (5) of Section 354, we do not think that this submission as canvassed before us deserves acceptance. It is rejected.

23. Now coming to the so-called conflicting opinions, we have not found the opinions to be conflicting at all. In fact, if Sterling Consultant’s opinion was not to be discarded, still, the observations of this agency are telling. They show that the external wall has been severely weather affected and exhibits major cracks. The RCC members show damage throughout at various places. Seepage through walls is observed at various areas due to major crazing and cracking pattern observed on external walls. Now, the opinion of this agency on the members on the columns and load bearing capacity need to be reproduced for their gravity to be understood. We reproduce it below for ready reference:

“The columns, load bearing structure and beams on external sides are damaged due to the leakage and seepage of water. At various locations hollow sounding is observed in the columns and beams due to the excessive corrosion of the reinforcement. Especially internal passage areas are showing major deterioration which needs urgent attention.

2. INTERNAL AREAS

Vertical and horizontal cracks have been observed in internal R.C.C. members of the building viz. Columns and beams. These cracks occur due to seepage of water inside the RCC members, affect of weather and corrosion of reinforcement (As shown in drawings).

At various places spots of seepages / leakages were observed from external wall (As shown in drawings).

3. EXTERNAL PLASTER

It is observed that the external plaster of the building is in deteriorated condition. The external walls are major source of leakages and waterproofing of that area needs urgent attention. Water is seeping through this in several units. All these are contributing to seepage inside many units as shown in drawings.

At several places the separation cracks are formed between RCC members and masonry due to different material having diferent expansion co-efficient. This is the major area through which water seeps inside. Therefore these areas need urgent attention.

4. TERRACE LEVEL

The existing terrace top is not in good condition and there are signs of leakages were observed in ceiling of fats below terrace. This existing terrace top have no proper slope and rough / cracking top surface resulting in stagnation of water / no free flow of water (The entire top area is covered with plastic sheets (Tadpatri) as shown in photographs). Thus causing leakages at various places in several fats.

The RCC parapet wall is showing deboning of plaster, moss and cracking pattern at various places from externally as well as internally.

5. PLUMBING WORK OF THE BUILDING

The entire drainage plumbing system of the building is of PVC pipes but during repairs due to entire plastering work it may get damaged and needs removing and refixing work of PVC pipes. At many places in drainage plumbing system vegetation growths are observed.

The G.I. water lines at many places are embedded in plaster and leaking also observed in those lines.

THE ENTIRE G.I. PLUMBING SYSTEM NEEDS

REPLACEMENT WITH NEW UPVC PLUMBING SYSTEM.”

24. Now such extensive repairs as are recommended by this agency are impossible to be carried out unless people vacate. Bringing matters to this Court and sitting on ad-interim or interim orders for few years does not show the promptitude and sense of urgency on the part of the occupants or litigants before this Court. They have to suffer if such recommendations of these agencies hired by them are not implemented. The municipal officials cannot be silent spectators and allow the structures to deteriorate further. They cannot be expected to allow occupants to reside in such structures risking a later collapse either on innocent passers by or on those residing in the neighbourhood together with the occupants themselves. They have to take measures which would force the occupants to move out of the structures. One such permissible measure is disconnection of water supply and electricity. That is admittedly resorted to in this case. If M/s. Sterling Consultants’ recommendation had been accepted, the position would not have been any different as in the conclusion of the Technical Advisory Committee. That Committee has taken a holistic view of the matter. It has considered the reports of two Consultants, M/s. Creative Consultants and M/s. BJ Mehta. It has independently inspected the building and after that visual inspection it has also referred to a report of an agency nominated by the Municipal Corporation. All these say that for the safety of the occupants, those residing in the neighbourhood and innocent passers-by, the subject building must be demolished.

25. We do not think that there is any perversity in such opinion and conclusion of the Technical Advisory Committee. If at all, it has erred on the safe side. If safety has been the prime motivating factor for the TAC to uphold the notice and to a number of the occupants, then, we do not think that the Municipal Corporation should be prevented from enforcing these notices and in accordance with law.

26. In the result of the above discussion, neither submissions canvassed before have any merit.

27. The writ petition deserves to be dismissed. It is accordingly dismissed.

28. The ad-interim order is vacated forthwith.

29. All pending Notices of Motion and Chamber Summonses are also disposed of accordingly
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