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SC directs Centre to place its plan to supply 700MT oxygen per day to Delhi by 10:30 am tomorrow, stays contempt notice issued by Delhi HC

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New Delhi, May 5 (ILNS): The Supreme Court today directed the Central Government to place the affidavit in a tabulated form before it by 10:30 am tomorrow, regarding the supply of 700Mt oxygen to Delhi everyday.

The Special Bench, led by Justice DY Chandrachud, also dismissed the Delhi High Court’s notice on contempt proceedings against Central government officers, saying that putting officers behind bars for contempt will not get oxygen to the hospitals of Delhi.

The Delhi High Court on Tuesday had asked the Central government officials to remain present in court. It had issued a show-cause notice as to why contempt may not be initiated against them. The Centre moved the Supreme Court against the order of the High Court.
The Supreme Court today directed the Union of India (UOI) to submit a plan to ensure that 700 MT requirement shall be made daily pending further directions of this Court.
Justice Chandrachud has directed the Centre to place the affidavit by tomorrow morning 10.30AM, in a tabulated form regarding the supply of 700Mt to Delhi.
The plan should be as follows:

  1. Plan to indicate source of supply
  2. provisions of transportation and
  3. Logistical arrangement to ensure the supply.

Justice Chandrachud further said: “We stay the issue of contempt notice of the Delhi High Court. However, we clarify that the stay on the contempt shall not operate as a restrain on the High Court. It shall continue to hear the matter.”
The Supreme Court also considered the Mumbai Model for Oxygen Supply/Stock. It directed the Delhi Govt Official and Central Govt Official to engage with the BMC Officials to augment the supply of oxygen for Delhi. On May 10, the court would at that stage will look at the issue whether scientific audit can be done by the GNCTD or Health Sector or other Stakeholders, it said.
During the hearing today the Supreme Court bench of Justices DY Chandrachud and MR Shah said: “Calling officers for contempt and putting them in jail is not going to get oxygen for the citizens of Delhi. You have to do some joint effort. Mr Mehta, how much was allocated to Delhi?”
SG: “I must give the background. Officers of the state are working shoulder to shoulder with Central government employees. This issue cropped up in two to three high courts. Give me 10 minutes. We are in a situation of a pandemic. The questions is how we divide our oxygen between the States.
SG: “Kindly give me 10 minutes of time to speak as I am slow. Please hear me with patience, I am slightly unwell. We apply a formula for the oxygen supply for the whole country. As per that the Delhi government falls in the 450MT category. The allocation is based on this formula for the whole country.”
Thereafter the SG shared the Central government’s state-wise oxygen distribution formula with the court.
Justice Chandrachud: “We have seen it. We are not debunking the formula. Your entire formula is based on an assumption. The stage of the pandemic is different in every state. Our order was of May 2, for supply of oxygen to Delhi. Tell us how much you have supplied. Now we are on May 5. Tell us how much you allocated on 3rd, 4th, and 5th.
SG: “For 3rd it was 430MT, on 4th it was 585MT.”
Rahul Mehra, the Delhi government counsel, interjected: “The correct figure for 4th is 555MT.”
Justice Chandrachud: “There is tremendous anxiety among the public. They are running from pillar to post to get oxygen. Therefore, you must make it public in a transparent manner that how much oxygen is provided to the state. We may consider it on May 10 and we will hear the states on how to rationalise demand per bed. There must be a committee to ascertain how much oxygen should be allocated to the states. Maharashtra has industries, Delhi does not. Tell us which modalities you have followed to reach this 700MT to Delhi, keeping in view that Delhi is going to increase its bed capacity.”
The SG said: “The city of Mumbai has 92,000 active cases. This figure is the same as Delhi. They have the same number of beds as in NCT of Delhi. It is the case of Delhi that they need 700MT. Then they will say the need 900MT.”
Justice Chandrachud: “We have already noted in our order to keep the buffer stock. If it can be done in Mumbai, it can be done in Delhi. We will save some lives. Procure the storage tanks in Delhi by Monday. We will get a plan for Delhi on a Mumbai model. It is fairly successful in Mumbai. Both the Health Secretary & Chief Secretary-of Delhi and Centre can convene a meeting with Mumbai Municipal Commissioner and draw a plan to create storage tanks and install in Delhi. You consult your officers and tell us the plan to install a storage of oxygen in Delhi.”
ASG Aishwarya Bhati: “351 MT of oxygen has been provided to Delhi till 12 noon today.”
Justice Chandrachud: “If 351 MT is provided till noon then it means that you can provide 700 MT of oxygen till night.”
SG: “We have done the mapping in such a way that every state can receive a reasonable (amount of) oxygen.”
Justice Chandrachud to Additional Secretary Piyush Goyal: “We have passed an order for 700MT. SG said demand is less. We will look into it. Looking at the BMC model what best can be achieved for Delhi it has to be seen, because we are answerable to the citizens of Delhi. Which is the best way you can ensure 700 MT can be achieved?”
Piyush Goyal: “One of the major production plants was shut down to augment the supply of medical oxygen plant. Shortage of container is the major problem. Yesterday we were able to get 555MT or 585MT for Delhi. I am not sure of the exact figure. We are exclusively doing it for Delhi.”
Justice Chandrachud: “How is the supply coming from the state of Gujarat?”
Goyal: “By train. First it reaches reach to Mundhra port and then reaches Delhi.”

Justice Chandrachud to Goyal: “You said supply came from Dubai. How much is the shipping time from Dubai To Mundhra?”
At that point the SG admitted that there maybe has been a systematic failure at both our ends (Centre and Delhi)and asked for an audit.
SG: “To assess what is lacking in the system, some experts can only do that. We are not able to do that.”
Justice Shah: “Requirement may be fluctuating and depend upon the number of patients, because ultimately we are not concerned with arithmetical calculation. It must be reached to the hospital. People are dying due to non availability of oxygen. The need for oxygen cannot be static. Therefore tell us when will this problem be solved?
Justice DY Chandrachud- There are three things; first is the methodology for computing the need of a particular state. Second is the planning to organise this. Third is the actual availability of the oxygen. There is a problem on first, where you have calculated “oxygen per bed formula” which is not correct, looking at the position of Delhi.
“We want you to ensure that 700MT should be available to Delhi by Monday. Take your time. How much are you going to go up by tonight? How are you going to achieve this 700MT? You have four days,” Justice Chandrachud added.
Senior Advocate Meenakshi Arora: “If we have a buffer stock then only we can be available to control the situation.”
Justice Chandrachud: “We will give you time, Mr Mehta. We will dictate small order. We also don’t want contempt proceedings to go on. We will be sitting tomorrow.

ORDER
“These proceedings have arisen from two orders of the Delhi High Court dated May 1 & May 4. First of these orders the HC directed to Centre to ensure 490MT oxygen supply to Delhi. The HC directed that if the order is not implemented the Officers of the Central Govt shall be remain present before the HC. By the 2nd order the Central Govt was directed to show cause as to why contempt proceedings will not be initiated against it as per the HC order and as well as the order of the SC. By the order of this Court of May 2, certain directions were issued with regard to the supply of oxygen to Delhi. Para 27,28,29 extracted below for convenience.

“When Delhi HC seized of the proceedings it was argued on behalf of the Central Govt that a compliance affidavit will be filed before the SC with regard to directions in proceedings dated April 30,” the order read. “At the outset the SG has submitted that the Central Govt accepts its obligations to be abide by the order of this Court. However, it has been submitted that contempt proceedings shall not be warranted. According to the Expert Committee the demand of Oxygen to Delhi would be 415MT. This court notes that it is contradictory to what is the actual requirement. In the second submission by the SG an effort has been made by the Central Govt, a stock has been created by it which is now 9000MT available to be supply to the whole country. The supply of oxygen has been increased due to this to Delhi.”

Justice Chandrachud noted: Sr Adv Rahul Mehra for GNCTD has also submitted data with regard to supply of Oxygen which shows that requirement of Oxygen has been increased in Delhi.
Justice Chandrachud said: At the outset it has need to be clarified that taking recourse to the contempt proceedings will not provide anything. The approach of court should be problem solving with the involvement of the Stakeholders.
“At the same time we cannot be oblivious of the urgent need of the oxygen to Delhi. It is by this view this court has directed the 700MT supply of Oxygen to Delhi. It appears that the problem has four dimensions,” he added.
Justice Chandrachud said this is the formula for procurement. The formula which is made by the expert group is on certain basis. On this formula allocation has been made to All States. However we are of the view that Central Govt should look at the formula afresh looking at the current scenario. Apart from the Hospital the oxygen is needed by the individuals so the present formula is not on that aspect.
“So this formula dosen’t work in computing the actual need of oxygen,” said the Court.
Justice Chandrachud further noted that the second aspect is the requirement of managing the resources of oxygen so as to optimise the availability of the NCT of Delhi. This should be in the efficiency in the supply chain right upto hospitals. There is a requirement of creating a buffer stock.
The Court noted that this is to look at the actual availability of the Oxygen. It is the argument of SG, that some modalities may be put in place to compute what is the actual requirement of Delhi.
The SupremeCourt considered the Mumbai Model for Oxygen Supply/Stock. It directed the Delhi Govt Official and Central Govt Official to engage with the BMC Officials to augment the supply of oxygen for Delhi. On May 10, the court would at that stage will look at the issue whether scientific audit can be done by the GNCTD or Health Sector or other Stakeholders, it said.
The Supreme Court directed the Union of India (UOI) to submit a plan to ensure that 700 MT requirement shall be made pending further directions of this Court. INLS\KR\SJ\RJ

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