Madhya Pradesh High Court
Maharaja Yeshwant Rao Hospital (M.Y. ... vs Union Of India Thr. Ministry Of Public ... on 8 April, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
High Court of Madhya Pradhesh, Bench At Indore
W.P. No.13812/2020
(Maharaja Yeshwant Rao Hospital Vs. Union of India and Others ) 1
INDORE; DATED - 08/04/2021
Shri Pushyamitra Bhargav, learned Additional Advocate General
for the petitioner.
Smt. Bhagyashree Sugandhi, learned counsel for the respondent
no.1.
None for the respondent no.2.
Shri Akshay Sapre, learned counsel for the respondent no.3. Shri Shreyraj Saxena, learned counsel for the respondent nos.4 and 5.
Parties are heard on IA No.3421/2021 seeking amendment in the writ petition and IA No.3397/2021, an application for grant of ad- interim stay.
Learned counsel for the petitioner submits that this court on 16.09.2020 passed a detailed order and issued necessary directions. This ad-interim order is still in force. In the main writ petition, the petitioner has called in question the legality, validity and propriety of clause 2 of circular of respondent no.2 dated 07.09.2020 Annexure P/1. By putting the aforesaid clause, it was directed that "80% of production of oxygen to be used only for medical oxygen and to be supplied to the Hospitals in Maharashtra". He placed reliance on the Government of India circular dated 10.09.2020, whereby the Union Government directed all the Chief Secretaries and Administrators of Union Territories to ensure that oxygen supply is free and it is not restricted on the basis of territories of the State.
Learned counsel for the petitioner submits that till date respondent no.2, Government of Maharashtra has not filed its response. During the pendency of this case, they have issued yet another notification dated 30.03.2021 Annexure P/8, which is also pregnant with the similar clause mentioned hereinabove. Putting it differently, learned counsel for the petitioner submits that by way of notification dated 30.03.2021, High Court of Madhya Pradhesh, Bench At Indore W.P. No.13812/2020 (Maharaja Yeshwant Rao Hospital Vs. Union of India and Others ) 2 respondent no.2 has again issued similar direction, which was subject matter of challenge in the main case. Thus, in the fitness of things, the petitioner may be permitted to challenge the fresh notification by way of amendment. This will not change the nature of case and will strengthen the pleadings.
On the basis of aforesaid submission, it is urged that ad-interim order passed by this order on 16.09.2020 is already there and necessary directions in furtherance thereof may be passed in IA No.3397/2021.
Learned counsel for the petitioner has taken pains to contend that the situation of pandemic in Madhya Pradesh is very grave. There is serious scarcity of oxygen in the State. As per calculation of authority, as on 05.04.2021, 102 metric tone oxygen was required. Considering the increase in number of patients, it is expected that on 15.04.2021, the requirement of oxygen would be 240 metric tone, whereas by the end of this month, it may be enhanced upto 413 metric tone. In this backdrop, the ad-interim stay/direction may be issued.
Shri Akshay Sapre, learned counsel for the respondent no.3 submits that the impugned notifications/circulars were issued by respondent no.2. The respondent no.3 is neither author of those circulars nor entitled to defend the said circular/notification. There is a contractual obligation between the petitioner and the respondent no.3. In the event of any breach of those terms of contract, the appropriate remedy for the petitioner is to invoke Dispute Redressal Mechanism and not the present petition. Oxygen plants of respondent no.3 are situated in Gujarat, Uttar Pradesh and Maharashtra. Supply to Madhya Pradesh is from a plant from Gujarat. In this backdrop, respondent no.3 is not necessary/proper party.
We have heard learned counsel for the parties on this aspect. So far amendment application is concerned, indisputably the new notification dated 30.03.2021 contains similar offending clause, which High Court of Madhya Pradhesh, Bench At Indore W.P. No.13812/2020 (Maharaja Yeshwant Rao Hospital Vs. Union of India and Others ) 3 was subject matter of challenge in the main case. Accordingly, amendment application deserves to be and is hereby allowed (IA No.3421/2021). This will not change the nature of case in any manner.
The order of Government of India dated 10.09.2020 reads as under :-
"Dear Colleague, As you are aware, availability of adequate and uninterrupted supply of medical oxygen is an important pre-requisite for managing moderate and severe cases of COVID-19. With increasing number o active cases COVID-19, the consumption of oxygen is also increasing.
2. It is learnt that few States are trying to curb the free inter-state movement of oxygen supplied by exercising provisions under various Acts and also by mandating the manufacturers/suppliers located in the States to restrict their oxygen supplied only to the hospital of the State.
3. It is important to emphasis that Medical Oxygen is an essential public health commodity and any impediment in the supplies of Medical Oxygen in the country may critically impact the management of patients suffering from COVID-19 disease in other parts of the country. Hence, it is every State's responsibility to ensure that every hospitalized COVID patient receives oxygen. In addition, some of the major oxygen manufacturers/suppliers already have existing supply agreements with hospitals in various States with a legal obligation to fulfill such agreement.
4. Hence, you are requested to ensure that no restriction is imposed on the movement of medical Oxygen between States."
(Emphasis Supplied) So far as ad-interim prayer is concerned, it is noteworthy that this Court passed a detailed order on 16.09.2020. The relevant portion of the order reads as under:-
"This Court keeping in view the totality of the facts and circumstances of the case is of the opinion that the learned counsel for the petitioner Maharaj Yeshwant Rao High Court of Madhya Pradhesh, Bench At Indore W.P. No.13812/2020 (Maharaja Yeshwant Rao Hospital Vs. Union of India and Others ) 4 Hospital has been able to make out a prima facie case for grant of interim relief. By way of interim relief, the respondent no.3 M/s Inox Air Products Pvt. Ltd is directed to continue uninterpreted supply of liquid medical oxygen to the State of Madhya Pradesh including the petitioner Hospital, without being influenced by the circular dated 07.09.2020 specially the Condition no.2 issued by the State of Maharashtra. Meaning thereby, the supply of liquid medical oxygen to the State of Madhya Pradesh be done by the respondent no.3 uninterruptedly, until further orders.
Issue notice to the respondents, on payment of PF within three days.
Mr. Pushyamitra Bhargav, who is appearing alongwith the Advocate General shall also serve the respondents by e-mails, fax as well as by other alternative modes. List the matter on 19.10.2020.
Certified Copy as per rules."
(Emphasis Supplied) The response of respondent no.2 is necessary. Since nobody represented respondent no.2, we deem it proper to issue fresh notice to the respondent no.2 on payment of PF within a week.
In view of the previous order of this court and considering the facts situation prevailing at present, we deem it proper to continue the interim order dated 16.09.2020 and further direct that respondent no.3 shall continue to supply liquid medical oxygen to the petitioner in accordance with the contract. The circular dated 07.09.2020 and notification dated 30.03.2021 shall not be impediment for respondent no.3 to supply required oxygen to State of Madhya Pradhesh. The objection of Shri Sapre will be decided after receiving the reply of respondent no.2.
IAs are allowed.
(Sujoy Paul) (Shailendra Shukla)
Judge Judge
sourabh
Digitally signed by SOURABH
YADAV
Date: 2021.04.08 17:56:35 +05'30'