Facts of the Case
In the present case, the Court was hearing certain petitions filed by the Petitioners, Balaji Medical and Research Center; Ganesh Das Chawla Charitable trust (REGD); M/S Bram Health Care Private Limited; Batra Hospital and Medical Research Center; Maharaja Agrasen Hospital Charitable Trust; M/S Bhagat Chandra Hospital; M/S Q Jaipur Golden Hospital, among others over the issue of shortage of oxygen for treating seriously-ill COVID patients. Further, the Court was also detecting a petition filed by Advocate Rakesh Malhotra related to COVID-19 testings and infrastructure. Further, during the hearing, the Court was notified by INOX, a major supplier of oxygen to Delhi, that four of its cryogenic tankers on their way to the national capital had been restrained by the Rajasthan government and were still to be released. Besides this, the issue of the non-availability and consequent black marketing of Oxygen cylinders, that was taking place rampantly in the NCT of Delhi was also brought up.
Petitioner’s Arguments
Firstly, Mr Rajiv Nayar, Senior Advocate along with Mr Siddharth Jain, Director, M/s. INOX took up the issue of the detention of the four cryogenic trucks. Further, Mr Alok Aggrawal, Counsel of Maharaja Agrasen Hospital submitted that he had made repeated efforts to contact officers of the GNCTD to offer one cryogenic tanker, but his endeavour had borne no fruit. No one has responded to his offer.
Another aspect pointed out by Mr Jain was the difficulty faced by the suppliers, including M/s. INOX, in the matter of making supplies in terms of the orders passed by the GNCTD. Mr. Jain submitted that the whole system was under tremendous stress. Even the employees assisting in the Oxygen production and supply industry were affected with COVID, and an increase of paperwork is bound to impede the efficiency of the suppliers. Further, He suggested that a meeting should be held between all the suppliers; the Officers of the GNCTD; the representatives of the hospitals and nursing homes in Delhi, and; the refilling units, so that the modalities could be worked out for the smooth supply of Oxygen in an orderly manner. Because there is uncertainty prevailing concerning the supply, that is leading to hospitals/ nursing homes raising panic alarms. He submitted that before issuance of such orders by the GNCTD, M/s. INOX was supplying to about 45 hospitals in Delhi without any complaint from any quarter. However, the orders passed by the GNCTD, according to him, do not take into account the practical situations which arose on the ground.
Respondent’s Arguments
Firstly, on the major issue of the stoppage of cryogenic trucks, The learned Solicitor General read out a communication addressed by the GNCTD on 25.04.2021 to Mr Sajjan Jindal, Chairman, JSW Group, which was issued, to augment the production, distribution, and supply of medical oxygen throughout the country, as also in respect of NCT of Delhi. While reading the aforesaid communication, Mr Mehta stated that apart from requesting the said industry to provide the cryogenic tankers, the GNCTD has also called for a supply of Oxygen from the said industry. He submitted that so far as distribution of medical oxygen is concerned, the same is being undertaken by the Central Government, and the States/Union Territories should not be asking for the same directly from any producer.
Responding to the contention of Mr Alok Agarwal, Mr Mehra stated that this request was not answered due to the pre-occupation of the Officers of the GNCTD with the issues concerning the COVID 19 pandemic, especially the requirement of medical oxygen.
Further, Mr Chetan Sharma notified the Court about the directions issued by the Central Government to all customs offices regarding the RT-PCR testing. Also, a report will be called upon for the same issue.
Court’s Observations
A division bench comprising Justice Vipin Sanghi and Justice Rekha Palli firstly observed that “It serves no purpose for anyone to cause any obstruction in the smooth flow of much-needed Medical Oxygen. Stoppage of tankers by one State would have a snowballing effect, and would eventually adversely impact the concerned State as well.” Further, this observation was subsequently directed on the submission made by INOX asserting that their four cryogenic tankers were detained by the State of Rajasthan. Further, this was notified to the Solicitor General, Tushar Mehta who was representing the Centre. Responding to this he gave an assurance to the Bench that strict action will be initiated on such incidents and that it shall be ensured that the tankers are freed so that they can proceed to their destination to sell and supply liquid medical oxygen. Accordingly, the Court observed that: “We hope and expect that the State of Rajasthan will honour the orders passed by the Central Government, as well as orders passed by this Court. Any intervention by anyone in the plan put in place by the Central Government for the supply of medical oxygen in the country, at this stage, would tantamount to endangering hundreds of human life, if not more.” Furthermore, perceiving that since the distribution plan had been served by the Central Government after taking into consideration the needs of all the States and UTs, the Court observed that any concerns arising before any State should be addressed to the Virtual Central Control Room, already created by the Central Government, that consisted of Nodal Officers representing the States. Besides this, the Court considered the Additional Solicitor General Chetan Sharma’s appraisal about the directions issued by the Central Government to all customs offices to initiate steps for prioritizing clearance of imported equipment for setting up and operating RTPCT testing centres. The Solicitor General also submitted before the Court that the Central Government would call for a report in this regard.
Court’s Decision
Firstly the Court, responding to the request of Mr Agarwal said that Mr Aggrawal or his client should interact with Chief Secretary, Delhi Mr Vijay Kumar Dev, who is present – and who has offered to look into any such offer that may be made, so that the tankers may be procured to secure supplies of Medical Oxygen to Delhi. Then the Court directed the State of Rajasthan to respect the Central Governments’ plan and the order of this Court by not obstructing the supply of oxygen. Further, the Court directed that to submit a report concerning the steps for prioritizing clearance of imported equipment for setting up and operating RTPCT testing centres. Furthermore, the Court opinionated on the Non-Availability and Black Marketing of Oxygen Cylinders. Opining the issue of non-availability and consequent black marketing of Oxygen cylinders taking place rampantly in the national capital, the Bench directed all the refillers to provide a report about the supplies made by them and to present the same in the hearing scheduled for Tuesday.
Additionally, the Court directed the 3 major stakeholders, the hospitals; the Delhi government; and the suppliers of oxygen, that they must get together and conduct a meeting on a priority basis at 5 PM on Monday to discuss modalities of, and issues in oxygen supply to hospitals across Delhi. Moreover, the Chief Secretary, GNCTD was present and thereby agreed to call a meeting today itself with the suppliers – who are allocated to supply liquid Medical Oxygen to Delhi, representatives of the hospitals and nursing homes, as well as the refillers, to work out the modality and smoothen the entire method of distribution of medical Oxygen in the NCT of Delhi. The meeting was conducted at 05:00 P.M. without waiting for the copy of this order. Besides, an intimation was also to be made to all the concerned, and they would be provided with the link to the video conference meeting. The Court directed at the outset that whatever resolution is arrived shall be placed before this Court by tomorrow.
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