Bombay High Court
Dr. Rajeev Digambar Joshi vs The Chief Secretary, State Govt. ... on 6 May, 2021
Author: G. S. Kulkarni
Bench: Dipankar Datta, G. S. Kulkarni
3.PIL(L)10276_2021 & Connected Matters
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L) NO. 10276 OF 2021
Sneha Nirav Marjadi ... Petitioner
vs.
The State of Maharashtra &Ors. ... Respondents
....
Mr. Simil Purohit a/w Mr. Arshil Shah, Mr. Nirav Marjadi, Mr.
Dharmapal Dave, Ms.Parisha Shah, Mr. Pariket Shah, Mr.
Vishal Raman, Ms. Smita Durve, Ms. Drasti Janifor Petitioner
Mr. A. A. Kumbhakoni, A. G. a/w Ms. Geeta Shastri, Addl. G. P.
with Mr. Akshay Shinde, B Panel Council for State.
Mr. A. Y. Sakhare, Sr. Adv. with Mr. Rohan Mirpury and Ms. K.
H. Mastakar for MCGM.
Mr. Anil C. Singh, ASG a/w Mr. Aditya Thakkar with Mr. D. P.
Singh, Mr. Yash Momaya i/b Mr. Gul Asnani for R. No. 2.
Mr. Abhijit Kulkarni for Pune Municipal Corporation.
Mr. Nitin P. Deshpande for Intervenor.
.....
WITH
PUBLIC INTEREST LITIGATION (L) NO. 9500 OF 2021
Armin Wanorewala ... Petitioner
vs.
The State of Maharashtra &Ors. ... Respondents
Ms. Armin Wandrewala, Petitioner-in-person.
Smt. Purnima Kantharia, Govt. Pleader with Ms. Geeta
Shashtri, Addl. Govt. Pleader for State.
Ms. K. H. Mastakar for MCGM.
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3.PIL(L)10276_2021 & Connected Matters
WITH
PUBLIC INTEREST LITIGATION (L) NO. 9228 OF 2021
Dhruti Kapadia &Anr. ... Petitioners
vs.
The Union of India &Ors. ... Respondents
.....
Ms. Dhruti Kapadia, Petitioner in Person a/w Mr. Kunal Tiwari
Ms. K. H. Mastakar for MCGM.
Smt. Purnima Kantharia, G. P. with Ms. Geeta Shastri Addl.
G.P. for State.
.....
WITH
WRIT PETITION (L.) NO. 10921 OF 2021
Wilson K. Jaiswal ... Petitioner
vs.
The State of Maharashtra &Anr. ... Respondents
.....
Mr. Raj J. Saraf a/w Satyaram Gaud, Rohan Khandelwal &
Shikhani Shah for Petitioner.
Mr. A. A. Kumbhakoni, A. G. a/w Ms. Geeta Shastri, Addl. G. P.
For State.
.....
WITH
PUBLIC INTEREST LITIGATION NO. 80 OF 2019
Abha Singh ... Petitioner
vs.
The State of Maharashtra,
Through the Secretary, Urban
Development Department ... Respondent
.....
Ms. Isha Singh for Petitioner.
Mr. H. S. Venegaonkar, Addl. G. P. for State.
2
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3.PIL(L)10276_2021 & Connected Matters
.....
WITH
PUBLIC INTEREST LITIGATION (L.) NO. 10883 OF 2021
Anjali Navle ... Petitioner
vs.
The State of Maharashtra &Ors. ... Respondents
.....
Ms. Anjali Navle Petitioner in Person.
Mr. A. A. Kumbhakoni, A. G. a/w Ms. Geeta Shastri, Addl. G. P.
For State.
Mr. A. Y. Sakhare, Sr. Adv. with Mr. Rohan Mirpury and Ms. K.
H. Mastakar for MCGM.
.....
WITH
PUBLIC INTEREST LITIGATION (L.) NO. 10930 OF 2021
Nishant Subhash Vyas ... Petitioner
vs.
State of Maharashtra & Ors. ... Respondents
.....
Mr. Vishal Kanade a/w Mr. Parth Coudhary & Mr. Mr. Prathmesh
A. Ayare for Petitioner.
Mr. Anil C. Singh, ASG a/w Mr. Aditya Thakkar with Mr. D. P.
Singh, Mr. Yash Momaya i/b Mr. Gul Asnani for R. No. 2.
Ms. Geeta Shastri, Addl. G. P. For State.
Ms. K. H. Mastakar for MCGM.
.....
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3.PIL(L)10276_2021 & Connected Matters
WITH
PUBLIC INTEREST LITIGATION (L) NO. 5843 OF 2020
Chirag Rajiv Chanani & Ors. ... Petitioners
vs.
Union of India & Ors. ... Respondents
WITH
IA/1029/2021 in PIL (L)/5843/2020 with
IA/1028/2021 in PIL (L)/5843/2020 with
IA/128/2021 in PIL (L)/5843/2020 with
IAL/5851/2020 in PIL (L)/5843/2020 with
IAL/5845/2020 in PIL (L)/5843/2020 with
IAL/5849/2020 in PIL (L)/5843/2020 with
WITH
PUBLIC INTEREST LITIGATION (L) NO. 3784 OF 2020
Bar Council of Maharashtra & Goa ... Petitioner
vs.
Union of India
Through the Secretary Ministry of
Home Affairs and & Ors. ... Respondents
WITH
WRIT PETITION (L) NO. 5331 OF 2020
Rajesh Ashish Naik ... Petitioner
vs.
State of Maharashtra & Ors. ... Respondents
.....
Mr. Shyam Dewani a/w Heena Kapoor, Bhoomi Katira, Kandarp
Trivedi i/b Dewani Associates for Petitioner in PIL (L)
5843/2021.
Dr. Milind Sathe, Sr. Adv. a/w Mr. Prasad Dhakephalkar, Sr.
Adv. with Dr. Uday Warunjikar i/b Sumit S. Kate for Petitioner
in PIL (L) 3784/2020.
Mr. Parth Zaveri for Applicant in IA/1029/2021.
Mr. Ajinkya Udane for Applicant in IA/128/2021.
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3.PIL(L)10276_2021 & Connected Matters
Ms. K. H. Mastakar for MCGM.
Mr. A. A. Kumbhakoni, A. G. with Smt. Purnima Kantharia, G.
P. with Ms. Geeta Shastri Addl. G.P. with Smt. Jyoti Chavan
AGP for State.
Mr. Anil Singh, ASG a/w Mr. D. P. Singh, Mr. T. J. Pandian, Mr.
T. C. Subramanian, Mr. Dheer Sampat & Ms. Prachi Shah for
Res. UOI/Railways.
.....
WITH
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION (St.) NO. 9885 OF 2021
WITH
IA/1113/2021 in PIL (L)/9885/2021 with
IAST/10386/2021 in PIL (L)/9885/2021 with
Nilesh Navalakha ... Petitioner
vs.
Union of India & Ors. ... Respondents
.....
Mr. Mr. Rajesh Inamdar a/w. Shashwat Anand, Mr. Pankaj
Kandhari, Mr,. Amit Pai. Mr. Mohd. Kumail Haider, Mr. Saif
Alam, Mr. Ankur Azad, Siddhi R. Mundada, Mr. Moinuddin
Chowdhari, Mr. Wasim Lalsa Shaikh and Mr. Riyaz Awati for
the petitioner.
Mr. Anil C. Singh, ASG a/w. Mr. Aditya Thakkar, Mr. D.P. Singh
and Mr. Yash Momaya i/b. Mr. A.A. Ansari for respondent no.
1-UOI.
Mr. P.P. Kakade, GP with Mr. Akshay Shinde, 'B' panel and Mr.
M.M. Pable, AGP for the State.
Mr. Shrinivas Bhave i/b. Bhave & Co. for respondent no. 6-
IRDAI.
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3.PIL(L)10276_2021 & Connected Matters
Mr.Abhijeet P. Kulkarni for Pune Municipal Corporation.
Shri. A. A. Kumbhkoni, AG, with Shri. P. P. Kakade, G.P. with
Shri. Akshay Shinde, B PNL with Shri.M.M. Pable, AGP with
Shri. G. P. Sonawane, AAGP for the State of Maharashtra.
.....
WITH
PUBLIC INTEREST LITIGATION (St.) NO.10296 OF 2021
Ratan Soli Luth ... Petitioner
vs.
Government of Maharashtra
Through Principal Secretary Public
Health Department & Ors. ... Respondents
.....
Mr.P.P.Kakade, G.P. with Shri .B. V. Samant, AGP for the State
of Maharashtra.
.....
WITH
PUBLIC INTEREST LITIGATION (St.) NO.10344 OF 2021
Lahu Suresh Mane ... Petitioner
vs.
The State of Maharashtra & Ors. ... Respondents
.....
Mr. Shantaram Anant Tarale for Petitioner.
Mr .P. P. Kakade, G.P. with Ms. Nisha Mehra, AGP for the State
of Maharashtra.
.....
WITH
PUBLIC INTEREST LITIGATION (St.) NO. 5887 OF 2021
Lokshahiwadi Balasaheb Sarode
Smriti Prabodhan Upakram ... Petitioner
vs.
State of Maharashtra & Ors. ... Respondents
6
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3.PIL(L)10276_2021 & Connected Matters
.....
Mr. Asim Sarode i/b. Mr.Ajinkya Udane for the petitioner.
Mr. P. P. Kakade - Government Pleader with Mr. B. V. Samant -
AGP for State.
Ms. K. H. Mastakar for the MCGM (Added Respondent).
.....
WITH
CRIMINAL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION (St.) NO. 2332 OF 2020
WITH
INTERIM APPLICATION NO.1328 OF 2021
WITH
INTERIM APPLIATION (ST) NO.666O OF 2021
Dr. Rajeev Digamber Joshi ... Petitioner
vs.
The Additional Chief Secretary to the
State Govt. (Home) & Ors. ...Respondents
.....
Mr.Nitin Deshpande for petitioner.
Mr. Deepak Thakare, P.P and Smt. P.P.Shinde, APP for the
State of Maharashtra.
Mr. S.R. Nargolkar with Mr. Arjun Kadam for Applicant in IA
No.1328/21 (Added Respondent).
Mr. Rui Rodrigues i/b. Singh Yogita Singh for Applicant in
IA No.6660/21 (Added Respondent).
.....
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3.PIL(L)10276_2021 & Connected Matters
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- MAY 6, 2021 PC :
1. Hearing of these PIL petitions was adjourned on April 27, 2021 till today in view of bereavement suffered by Mr. Kumbhakoni, learned Advocate General for the State of Maharashtra. Upon resumption of hearing today, we have heard Mr. Kumbhakoni at substantial length. He has submitted a brief note, the second in the series, on the status of management of the second wave of the pandemic in the State and has referred to its contents while addressing us.
2. We have also heard Mr. Sakhare, learned senior counsel for the Municipal Corporation of Greater Mumbai (MCGM), Mr. Anil Singh, learned Additional Solicitor General for the Union of India, Mr. Abhijit Kulkarni, learned advocate for the Pune Municipal Corporation (PMC), Mr. Purohit, learned advocate for the petitioner in PIL (L) No. 10276 of 2021 and Mr. Inamdar, learned advocate for the petitioner in PIL(ST) No. 9885 of 2021.
3. For want of time, hearing could not be concluded today and we apprised the parties of resumption of hearing on 8 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters Wednesday next (May 12, 2021). However, considering the submissions advanced on behalf of the various parties, we consider it appropriate to make certain interim directions.
4. PIL (L) No. 10276 of 2021 and PIL(ST) No. 9885 of 2021 have raised concerns of substance. We are called upon to deal with supply of Remdesivir, supply of oxygen, bed management, RT-PCR tests, fire audit and arrangements in crematoriums.
REMDISIVIR
5. Regarding supply of Remdesivir, it has been contended by Mr. Kumbhakoni that the State of Maharashtra requires 51,000 vials per day whereas in terms of the allocation made by the Government of India (GoI), the State is receiving only 35,000 vials per day and, therefore, the demand for Remdesivir exceeds the supply. It is further contended by Mr. Kumbhakoni that efforts are on to persuade the GoI for allotting more quantity of Remdesivir to Maharashtra. Mr. Kumbhakoni submits that although there has been judicious use of Remdesivir by the Government hospitals, he complains of indiscriminate use of such drug by the private medical sector, leading to glaring and alarming shortfall. In course of 9 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters hearing, Mr. Kumbhakoni placed before us a letter dated May 6, 2021 issued by the Commissioner, Food and Drugs Administration (FDA), Maharashtra State, Mumbai addressed to the Joint Secretary, Department of Pharmaceuticals, Ministry of Chemicals & Fertilizers, GoI and the Director, Ministry of Health & Family Welfare, GoI, New Delhi, urging their intervention in regard to deficit supply of Remdesivir to the State of Maharashtra by the seven manufacturers who have the requisite license to manufacture it and to direct all such manufacturers to supply the pending allocated quotas of Remdesivir to Maharashtra as per the allocation made by the GoI within the stipulated period.
6. Our attention was invited by Mr. Inamdar to the Interim Application filed in PIL (St.) No. 9885 of 2021, more particularly to paragraphs 11 to 13 thereof to contend that there is an alternative available to Remdesivir which is comparatively cheaper. He has also shown that as per the report of World Health Organization (WHO), 'Dexamethasone' is a corticosteroid which is used in a wide range of conditions for its anti-inflammatory and immunosuppressant effects. It was tested on hospitalized patients with COVID-19 in the 10 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters United Kingdom's national clinical trial RECOVERY and was found to have benefits for critically ill patients. According to preliminary findings shared with WHO, for patients on ventilators, the treatment was shown to reduce mortality by about 1/3rd and for patients requiring only oxygen, mortality was cut by about 1/5th. On September 2, 2020, WHO issued an interim guideline on the use of dexamethasone and other corticosteroids for the treatment of COVID-19. Of a couple of recommendations made by WHO, the first strongly recommended corticosteroids (i.e. dexamethasone, hydrocortisone or prednisone) for oral or intravenous administration to treat patients with severe and critical Covid- 19 symptoms. It is, thus, the contention of Mr. Inamdar that when an alternative for Remdesivir has been recommended by WHO and has been successfully tried and tested in the United Kingdom, it is rather mysterious as to why such drug has not been used or prescribed in India when possibly the alternative drug dexamethasone is likely to cost not more than Rs.10/-.
7. By our order dated April 22, 2021, we had directed the State to ensure that no COVID-19 affected patient or his relative is made to run from pillar to post to find out/locate 11 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters Remdesivir and that such drug should be made available for the concerned patient at the hospital/covid centre where he is being treated. This was followed by a direction that a Nodal Agent be appointed with a helpline number and adequate staff to ensure availability of the drug and that it would be an absolute obligation on the part of the State to keep such helpline number in operation all over the State for 24 hours.
8. Compliance of this order has been pleaded by the State in its reply-affidavit of Dr. Sadhana M. Tayde, Director in the office of the Commissioner of Health Service, Mumbai. Paragraph 12 of such reply-affidavit reveals that at the State level, the Commissioner, FDA; at the Divisional level, the respective Joint Commissioner, FDA and at the District level, respective Assistant Commissioner, FDA have been functioning as Nodal Officers, who look after and supervise the distribution of Remdesivir. Besides the same, the State Government has appointed a senior IAS Officer as Nodal Officer to supervise Remdesivir distribution and ensure supplies from various companies. Also, at every hospital and/or covid care centre, a person is appointed as Nodal Officer of the concerned establishment and in case of 12 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters requirement of Remdesivir, the Nodal Officer of the hospital and/or covid care centre coordinates with the aforementioned FDA officers for getting the supply of medicine, which is thereafter administered to the patient.
9. In course of hearing this day, there was no complaint from any quarter that the system as introduced by the State is either non-existent or even though in existence, has not really been beneficial for the patients. None of the appearing parties has expressed any grievance citing lack of Remdesivir. We, thus, express satisfaction with regard to the measures taken by the State to appoint Nodal Officers in terms of our earlier directions.
10. The lack of adequate quantity of Remdesivir, as alleged by the State, is primarily because of two reasons. Firstly, the allocation of Remdesivir by the GoI falls short of the State's requisition; and secondly, except for Hetero, the other six manufacturers have not been prompt in delivering the requisite quantity of Remdesivir in terms of the truncated allocation made by the GoI.
11. However, though the State has been complaining before us of deficient supply of Remdesivir by the six manufacturers 13 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters despite allocation of specified quantity in its favour by the GoI to be supplied by each manufacturer, what has surprised us is the State's casual approach to deal with the problem. That supply of Remdesivir by the six manufacturers is irregular leading to deficiency has been communicated to the Joint Secretary, Department of Pharmaceuticals and the Director, Ministry of Health & Welfare by the Commissioner, FDA only today. We wish to record that such communication dated May 6, 2021 was placed before us in the second session after the State was faced with a barrage of questions from us on the aspect of deficient supply of Remdesivir, and the possibility of such communication having been issued as a 'damage control' measure cannot be totally ruled out.
12. Be that as it may, without being too critical of the lack of alacrity of the State, we hope and trust that the Joint Secretary, Department of Pharmaceuticals and the Director, Ministry of Health & Welfare would intervene in the matter of deficient supply of Remdesivir to the State of Maharashtra pursuant to the complaint lodged by the Commissioner, FDA and the GoI shall place adequate materials before us on the returnable date to satisfy us that appropriate measures have 14 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters indeed been taken to ensure supply of the required quantity of Remdesivir in terms of the allocation made by the GoI by its letter dated May 1, 2021.
13. While concluding our discussion on the point, we wish to advert to another aspect sight of which cannot be lost. Remdesivir and Tocilizumab in today's circumstances are considered life-saving drugs manufactured by foreign firms/companies. Incidentally, seven Indian manufacturers have obtained licenses from such foreign firm/company to produce Remdesivir. No Indian drug manufacturer has the license to manufacture Tocilizumab, which is manufactured abroad and imported by Cipla. These drugs are quite highly priced. A large cross-section of the population of India may not be in a position to afford the same. It is in such circumstances, we consider it imperative to record that country-made medicines like dexamethasone, Itolizumab and methylprednisolone ought to be given the importance they deserve in the Indian context. If alternative local medicines capable of being administered to critically ill COVID-19 patients are available at cheaper rates then the use of such drugs needs to be encouraged in preference to foreign drugs, 15 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters of which, as it is there is scarcity and which are beyond the reach of the common man. We hope and trust that the GoI and the State would take note of the caution that we have sounded above and encourage the medical sector to prescribe Itolizumab, dexamethasone and methylprednisolone for being administered to the critically ill COVID-19 patients.
14. We wish also to place on record having noted from paragraph 48 of the order passed by the Supreme Court on April 30, 2021 in Suo Motu Writ Petition (C) No. 3 of 2021 the submissions made on behalf of the GoI. We consider it appropriate to reproduce below sub-paragraphs (i) and (ii) of paragraph 48:-
"48. The UOI made the following submissions on the availability of Tociluzumab injections:
(i) Tociluzumab is manufactured by a Swiss Company, M/s. Roche, which does not have any manufacturing facility in India or any agreements with domestic pharma companies to manufacture the drug. It is imported in the country by Cipla. India is completely dependent on imports.
(ii) It is listed as an investigational therapy drug (off-label) under the National Clinical Management Protocol for COVID-19 for severe cases. There are domestically produced alternatives which are equivalent to or better than Tociluzumab such as itulizumab, dexamethasone and methylprednisolone. However, an incorrect public 16 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters perception has been created that only Tociluzumab can treat the inflammatory burst condition in COVID-19 patients since it is an imported drug. This has led to the acute shortage in the availability of the drug and has created public panic; and ...."
The GoI having placed on record its stand that Itolizumab, dexamethasone and methylprednisolone are equivalent and/or better than Tocilizumab, it is high time all-out efforts are made by the GoI as well as the State to remove the incorrect public perception that has since been created that only Tocilizumab can treat the inflammatory burst conditions in COVID-19 patients. Over-reliance on imported drugs have to be avoided and all concerned ought to be made aware that now it is the time to treat and heal, and not make profit out of sale of essential life-saving drugs.
15. Towards the end, we heard a grievance that private hospitals are not being provided adequate quantity of Remdisivir. Exhibit 'A' to the brief note placed by Mr. Kumbhakoni, however, discredits this submission. Supply to private hospitals stands at 2,51,387 whereas supply to Government/Semi-Government/etc. hospitals stands at 99, 484 up to April 30, 2021. We have no doubt that insofar as the remaining quantity of 4,58,629 is concerned, distribution 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters between private and public hospitals would be need based. It is ordered accordingly.
OXYGEN
16. Regarding the supply of oxygen, we find from the brief note handed over to us by Mr. Kumbhakoni that the State of Maharashtra has been allocated 1804 MT by order dated April 30, 2021 of the GoI. According to the State, such an allocation is just enough to meet the present requirements and the race between the demand and supply is almost neck and neck.
17. The said note is eloquent on the measures taken by the State Government to combat the crisis arising out of deficit supply of oxygen. It is revealed that the State Government has received 10 Pressure Swing Adsorption (PSA) plants from the GoI, the last one having reached on April 28, 2021. Of these, nine PSA plants have been operationalized and that 50 MT per day of oxygen is being generated therefrom. There is a plan to operationalize further 28 PSA plants and the target set for production is up to 268 MT per day. A proposal sent by the State Government to the GoI for another 118 PSA plants is pending, while the State has floated its own tender for getting 18 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters additional 132 such PSA plants.
18. We had been informed in course of a previous hearing by Mr. Kumbhakoni that the requirement for oxygen as on April 20, April 25 and April 30, 2021 would roughly be in the estimate of 1500 MT, 1750 MT and 2000 MT, respectively. It has been reported to us by Mr. Kumbhakoni that the situation created by the pandemic as on April 30, 2021 though alarming, the number of COVID-19 patients in the State have been slowly but steadily on the decrease but even then, there is no justification for the GoI to curtail the allocated quantity by 50 MT per day in terms of an order of very recent origin issued by it. He has, accordingly, prayed for direction on the GoI to restore the earlier allocation.
19. It is gathered from the note that the number of active cases in the State has decreased from 6,99,000 to 6,41,910, thereby resulting in load reduction by about 50,000 cases. If indeed that be so, there would be lesser requirement of oxygen. Having regard to the current situation where High Courts of other States have been pro-active and issuing directions to the GoI for restoring supply noticing serious 19 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters deficit of oxygen therein, we also have a moral obligation to ensure that oxygen reaches those States too where it is in high demand. It would, therefore, not be wise to give any positive direction to the GoI at this stage but we keep the option open to so direct, if there is any deterioration. At the same time, we make it absolutely clear that there is no room for being complacent and the guard should not be lowered, lest a single patient suffering from COVID-19 or from other ailments faces any inconvenience while under treatment in a hospital on account of lack of oxygen. Should there be any such incident and the same is brought to our notice, we may call upon the Principal Secretary, Department of Health, State of Maharashtra to explain the reason therefor.
20. We have noticed from a report published in the Times of India today that a private hospital in Sangli has with proper planning installed its own oxygen generation plant, which has allowed the patients admitted therein to breathe and at the same time taken care of deficient supply of medical oxygen, which has created a crisis situation in the State. We require the State Government in the appropriate department to consider the desirability of making it obligatory for the 20 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters management of each of the private hospitals in the State to install oxygen generation plants for consumption by patients admitted therein. If any amendment in the statutory provisions is required to be made, we desire that the State Government moves in that direction expeditiously, bearing in mind that experts in the medical circle have been predicting a third wave very soon which could be encountered successfully if each of the private hospitals have their own oxygen plants.
21. To obtain a clear picture about feasibility of installing in- house oxygen generation plants in private hospitals, we require the State to let us know what would be the approximate area required for such plant in a hospital having 50/75/100 beds, what would be the estimated cost for such installation, and the nature of equipment needed therefor. Let such information be given by the next date of hearing. BED MANAGEMENT
22. In regard to bed management, the note prepared by Mr.Kumbhakoni reveals that the State is in the process of preparation of a Dashboard which will provide online information regarding availability of beds, drugs, etc. throughout the entire State, including private hospitals as 21 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters well. It is also proposed to have oxygen supply linkage to this Dashboard. We have been informed that the work is at an advanced stage.
23. It has further been submitted by Mr. Kumbhakoni that three Jumbo Covid Centres having total capacity of about 2000 beds are being set up. These would be make-shift hospitals with all types of beds and are being set up near oxygen generating centres/industries from where oxygen could be directly transferred and not transported for the benefit of the patients.
24. Mr. Sakhare invited our attention to the War Room Dashboard prepared by the MCGM in response to COVID-19, particularly to page 2 of such Dashboard to buttress the contention that adequate number of beds are available in the covid care centres maintained by the MCGM with ICU and ventilator facilities. It is also contended by him that the situation currently is well under the control of the MCGM.
25. In course of hearing, Mr. Purohit referred to a Dashboard which is available on the official website of the District Magistrate, Nandurbar. According to Mr. Purohit, up-to-date information with regard to availability of beds in Government 22 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters hospitals as well as private hospitals is made known to people in need of admitting patients and it shows that data was last fed a couple of hours back, meaning thereby that there has been constant updating of the information that is made available in the public domain. By such measures, the District Magistrate, Nandurbar, has ensured that real-time information is made available to the general public, which is not quite the case with the War Room Dashboard prepared by the MCGM. He makes a grievance that the MCGM updates the information on the War Room Dashboard every 24 hours and every single minute being crucial for a patient suffering from COVID-19 or other ailments, the MCGM may be directed to update the War Room Dashboard with facts and figures as is being done by the District Magistrate, Nandurbar.
26. Having seen the Dashboard that is available on the website of the District Magistrate, Nandurbar, we record our appreciation for the same. Real-time information on different aspects is being made available to the residents of the said district, which is available on the click of a mouse. Indeed, such facility is not available in the MCGM War Room Dashboard. Since the District Magistrate, Nandurbar has 23 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters devised a Dashboard which is patient friendly, we hope and trust that other district magistrates would draw inspiration and endeavour to emulate him by providing similar such Dashboards in each of the districts for being accessed by those in need of COVID-19 or other care.
27. Submission has been advanced by Mr. Kumbhakoni that similar such Dashboards have been made available in other districts of the State including Nashik but we did not have the benefit of considering its worth in the absence of access to such websites.
28. Nonetheless, the State having initiated the process of preparation of a pan-Maharashtra Dashboard, although late in the day, we would expect the State to make such Dashboard fully operational with full facts and figures regarding availability of beds and other information on the facilities on offer, including private hospitals, as early as possible and update in this behalf shall be reported to us on the next date. RT-PCR tests
29. On the aspect of RT-PCR tests to detect COVID-19 in patients, Mr. Kumbhakoni has drawn our attention to a new policy formulated by the Indian Council of Medical and 24 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters Research (ICMR) dated May 4, 2021. It is his contention that the recommendations made by the ICMR shall henceforth be followed in letter and spirit.
30. We have read the advisory issued by the ICMR for COVID-19 testing during the second wave of the pandemic. We have also perused paragraphs 15 to 19 of the affidavit-in- reply of Dr. Sadhana Tayde, referred to above. Our previous order dated April 22, 2021 required the State to consider grant of permission to more laboratories to undertake the RT- PCR Tests and Rapid Antigen Tests as per protocol prescribed by the ICMR and the National Accredited Board for Laboratory (NABL). A decision in that regard was directed to be taken within one week and permissions could be granted to undertake the RT-PCR and Rapid Antigen Tests to such laboratories, which are duly authorized. The reply affidavit of the State reveals that there are presently 500 functional laboratories in the State, of which 232 molecular testing laboratories are authorized to conduct RT-PCR tests and the remaining are authorized to conduct Rapid Antigen Tests. It is the contention of the State that no laboratory can be made operational without the permission from the ICMR. Only such 25 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters laboratory which satisfies the requisite standards and are certified to have so satisfied by the NABL could obtain the permission. The samples which are tested in the laboratories being biohazardous, extreme caution and care are required to be undertaken in handling such samples. Having regard to the degree of care and caution that is required to be exercised, any and every pathological laboratory cannot be permitted to conduct RT-PCR Tests. The State is emphatic in its contention that presently not a single proposal is pending with the State Government from any laboratory which claims to have satisfied the requisite standards and deserves such permission to be granted.
31. In so far as Rapid Antigen Tests are concerned, it is stated in the reply affidavit that approval is granted by the State Government and while granting such approval, verification of records, inspection of premises, availability of trained staff, etc. are examined thoroughly. Paragraph 19 concludes with the assurance of the State Government that it has been encouraging establishment of new laboratories where such tests can be conducted.
32. The advisory of the ICMR dated May 4, 2021 is binding 26 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters on all concerned. We do not propose to pass any further order with regard to testing of samples, except observing that the State shall give wide publicity of the advisory so that all laboratories as well as other stake holders can take note of the same and proceed to implement the recommendations contained therein in the right earnest. We make it clear that if any new proposal is received by the State from any laboratory, no time shall be wasted in processing such application and if the requisite permissions are obtained, such laboratory may be made operational.
FIRE AUDIT AND CREMATORIUMS
33. On the aspect of fire audit and facilities available at the functional crematoriums all over the State, the parties could not conclude their submissions. We wish to resume hearing the parties on such aspects on the returnable date.
34. Further, from the Media Bulletin released by the Public Health Department, Maharashtra dated May 5, 2021 containing facts and figures in respect of COVID-19 active cases, we find that Pune district and the area within the PMC is most affected. The number of active cases in Pune/PMC is more than double the number of active cases in Mumbai. Mr. 27 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters Kulkarni has submitted that migration of people from other districts for treatment has led to increase in the numbers.
35. We call upon the Municipal Commissioner, PMC to file an affidavit disclosing therein the reasons for the surge, the measures taken to arrest the spread of the pandemic, the condition and capacity of the hospitals, both Government and private, the plans and programmes for combating the likely third wave and all ancillary matters, within Tuesday next. We make it clear that if the available capacity of the hospitals is unable to bear the load, we may pass orders for transfer of patients to the vacant beds in the MCGM run hospitals/covid care centres.
36. Before parting, we consider it necessary to refer to control of COVID-19 in the MMR region by the MCGM. The effort of the Municipal Commissioner to tackle COVID-19 has been appreciated even by the Supreme Court. Without demeaning the efforts of any of the municipal commissioners or district magistrates other than the Municipal Commissioner, MCGM and the District Magistrate, Nandurbar, we wish that the Mumbai model be replicated by all other districts to the extent the same is possible. It would be desirable if all 28 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::
3.PIL(L)10276_2021 & Connected Matters municipal commissioners and district magistrates could sit together and discuss ways and means to control the pandemic through video conferencing. It requires no reminder that it is through discussions and deliberations that a way forward has to be found to make the country safe and free of COVID-19.
37. These PIL petitions shall be listed on next Wednesday, i.e., May 12, 2021.
(G. S. KULKARNI, J.) (CHIEF JUSTICE) 29 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:55:02 :::