The Madhya Pradesh High Court (Indore Bench) on Wednesday (16th September) passed an interim direction wherein, a Maharashtra based dealer was directed to continue supplying Liquid Medical oxygen to the Hospitals situated in the State of Madhya Pradesh.
This direction from the Court came on a plea against the Maharashtra government's notification, wherein the Government of Maharashtra has directed that 80% of the production of Oxygen by the Manufacturing units in the State of Maharashtra has to be supplied to the hospitals in the State of Maharashtra.
The Bench of Justice S. C. Sharma and Justice Shailendra Shukla was hearing the plea of the Petitioner-Hospital (Maharaja Yeshwant Rao Hospital) through its Superintendent Dr. P.S. Thakur.
It was argued by the Petitioner-Hospital that the aforesaid notification issued by the Maharashtra Government is contrary to Article 14, Article 21 of the Constitution of India and the Judgments of the Hon'ble Supreme declaring the right to health and medical services as the fundamental right of the citizen to live life with dignity.
It was alleged that the notification dated 07.09.2020 (issued by the Govt. of Maharashtra) is discriminatory in nature as it tends to discriminate between the patients based on their region or-domicile or on the basis of the State where they live or getting the treatment.
Significantly, the State of Maharastra in the aforesaid Circular has observed that liquid medical oxygen supply is very crucial to the management of patients infected with Covid-19 and, therefore, 80% of the production is to be used only for Hospitals in Maharashtra
Facts in Brief, as alleged by the Petitioner
The Petitioner herein, (M.Y. Hospital) is a super-specialty government hospital in the district Indore, Madhya Pradesh and catering to the medical needs of the COVID infected as well as the other patients.
That, the Petitioner/M.Y. Hospital, Indore/Buyer had entered into an agreement for the supply of liquid gases with M/s. INOX Air. Products Private Ltd./Supplier, Mumbai, Maharashtra on 21.05.2018 wherein it was agreed that M/s. INOXAP shall supply Liquid Oxygen/Nitrogen/Argon/Medical Oxygen manufactured by them at the Buyer's site. This agreement is for three/3 years and valid till 20.05.2021.
The District Hospital Vidisha, M.P. on 20.03.2020 entered into an agreement with M/s. Capital Medicare, Bhopal for the supply of medical oxygen to the hospital.
M/s. Capital Medicare, Bhopal purchases medical oxygen from M/s. INOXAP, Mumbai. The notification dated 07.09.2020 regularizing and mandating 80% of the supply of the medical oxygen to the hospitals in the State of Maharashtra will adversely affect the supply of medical oxygen to the District Hospital Vidisha, M.P. wherein the Covid-19 patients are also treated.
The petitioner categorically stated in the writ petition that they have been informed by the respondent No.3 about the discontinuance in the supply of liquid medical oxygen and the sole reason is a circular issued by the State of Maharasthra dated 07-09-2020
The Arguments put forth
Learned Advocate General argued before the court that large numbers of patients are dying because of COVID-19 and State cannot close its eyes towards the dying persons who are dying on account of non-supply of liquid medical oxygen.
The Advocate General drew the attention of the court towards an Agreement executed by the petitioner Hospital with respondent No.3 M/s Inox Air Products Pvt. Ltd. and twenty tonnes of liquid medical oxygen is being supplied to the State of Madhya Pradesh by M/s Inox Air Products Pvt. Ltd. The agreement between the petitioner and the respondent No.3 is very much in force.
He also drew the attention of the court towards the letter dated 10-09-2020 which is addressed by the Secretary Health to all Chief Secretaries all over the country.
The Government of India has categorically written to all the State Governments to continue with the existing supply under the various agreements with Hospitals and various States with a legal obligation to fulfill such agreements.
[NOTE: The Union Health Ministry on Thursday asked states not to place restrictions on transport or supplies of medical oxygen after the Madhya Pradesh Government claimed Maharashtra was doing this and at least three other states Punjab, Karnataka, and Telangana -- reported problems in getting regular supplies.]
The Advocate General argued before the court that it is very unfortunate that even after the intervention of the Government of India the oxygen supply is being discontinued.
It was prayed before the Court to direct the State of Maharashtra and the respondent No.3 to continue the supply of liquid medical oxygen as per the Agreement executed from time to time.
The Court remarked,
"(The Petitioner-Hospital) is catering to the need of downtrodden and persons as far from Alirajpur District, Jhabu Districts which are Districts dominated by tribals are totally dependent upon Maharaja Yeshwant Rao Hospital. It is the only Hospital in the entire region of Malwa under the control of the State Government which is providing all kind of advance treatments including treatment to the COVID patients."
It may be noted that the Advocate General had placed reliance upon a judgment delivered by the Hon'ble Supreme Court in the case of Nawal Kishore Sharma Vs. Union of India and others 2014 (9) SCC 329 and stated that the substantial cause of action is also under the territorial jurisdiction of this court as the agreement between the petitioner and respondent No.3 has been signed at Indore only.
To this, the Court observed
"In the peculiar facts and circumstances of the case was that the issue of jurisdiction is certainly an arguable point and is left open." (emphasis supplied)
The Court, keeping in view the totality of the facts and circumstances of the case was of the opinion that the Counsel for the Petitioner 'Maharaja Yeshwant Rao Hospital' was 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 was directed by the Court to continue the uninterrupted 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 especially the Condition No.2 issued by the State of Maharashtra."
Meaning thereby, the supply of liquid medical oxygen to the State of Madhya Pradesh has to be done by the respondent No.3 uninterruptedly, until further orders.
(With inputs from Advocate Mudit Maheshwari)
Case Title: Maharaja Yeshwant Rao Hospital (M.Y. Hospital), Indore v. Union of India and Ors.
Case No.: WP No.13812/2020
Quorum: Justice S. C. Sharma and Justice Shailendra Shukla
Appearance: Purusheaindra Kaurav, Advocate General along with Pushyamitra Bhargav, Additional Advocate General for the petitioner.