Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 198

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR
Sunil B. Shukre, Anil L. Pansare, JJ.
Viveka Super Specialty Hospital & Research Centre Private Limited, through one of its Directors, Dr. Prashant Jagtap – Appellant
Versus
The State of Maharashtra, Urban Development Department, through its Secretary Mantralaya Annex, Mumbai and Others – Respondents
Writ Petition No. 2384 of 2021
Date of Decision : 21-02-2022

Advocates:
Advocate Appeared:
For the Appellant : Shri S.P. Dharmadhikari, Sr.Adv. a/b. Shri Kartik.N.Shukul, Adv.
For the Respondent:Smt.K.S.Joshi, G.P., Shri J.B. Kasat, Advocate, Shri C.S.Kaptan, Sr.Adv. a/b. Shri Girish Kunte, Adv.

The judgment emphasized the discretion of the State and its agencies to use their powers in the public interest and for public good, ensuring equitable treatment and non-discriminatory methods in granting benefits.

Headnote:
Oxygen Shortage - Land Allocation - Maharashtra Regional and Town Planning Act, 1966, Nagpur Improvement Trust Act, 1936 - The court addressed the shortage of oxygen supply during the Covid-19 pandemic by directing the State and local authorities to grant permissions for private hospitals to set up Oxygen Generation Plants/Units and allocate adjoining land. The court emphasized the need for a long-term solution to enhance oxygen production capacity and encouraged private hospitals to contribute to strengthening the infrastructure. The judgment discussed the allocation of land, the discretion of the State and its agencies, and the need for equitable treatment in public interest.
Fact of the Case:

The petitioner, a private hospital, sought allocation of land for setting up an oxygen plant in response to the court's order addressing the shortage of oxygen supply during the Covid-19 pandemic. The respondent, Nagpur Improvement Trust, rejected the petitioner's proposal, leading to a legal dispute.
Finding of the Court:

The court found that the respondents failed to process the petitioner's proposals in accordance with the court's order and directed them to reconsider the proposals and take necessary steps to grant approvals. The disputed construction was not to be demolished until a final decision was made by the respondent No.1, subject to the petitioner's undertaking to demolish the structure if the proposals were rejected.
Issues: The main issue was the rejection of the petitioner's proposal for land allocation to set up an oxygen plant, leading to a legal dispute between the petitioner and the respondent.
Ratio Decidendi: The court emphasized the need for a long-term solution to enhance oxygen production capacity and encouraged private hospitals to contribute to strengthening the infrastructure. It highlighted the discretion of the State and its agencies to use their powers in the public interest and for public good, ensuring equitable treatment and non-discriminatory methods in granting benefits.
Final Decision: The court partly allowed the writ petition, directing the respondents to reconsider the petitioner's proposals and take necessary steps to grant approvals. The disputed construction was not to be demolished until a final decision was made by the respondent No.1, subject to the petitioner's undertaking to demolish the structure if the proposals were rejected.

JUDGMENT :

(Per Court)

1. Hearing was conducted through Video Conferencing and the learned Counsel agreed that the audio and visual quality was proper.

2. Heard.

3. RULE. Rule made returnable forthwith. Heard finally by consent of the parties.

4. The traces of petition find place in order dated 19th April 2021 passed by this Court in Suo Motu PIL No. 4 of 2020. The suo motu cognizance of the Covid Pandemic was taken. Various orders were passed from time to time. We all are conscious of the fact that during second wave of the Pandemic the entire country suffered a setback because of lack of health care infrastructure in the hospitals. Nagpur city was no exception. Many casualties occurred for want of oxygen.

Various High Courts in their respective jurisdictions had taken cognizance of the then prevailing situation and had passed various orders. One of such orders was passed by this Court. The relevant portion of the said order dated 19th April 2021 in Suo Motu PIL No. 4 of 2020, that led to filing the present petition is as under:

“9. There is another issue of major concern which relates to shortage of oxygen supply. Presently, it appears that the production capacity itself is falling short to meet the demand and, therefore, the long term solution would only lie in increasing the production capacity. That can be done through various ways. For the time being, we direct the State as well as Collector, Nagpur and Commissioner, Municipal Corporation, Nagpur and also Central Government, if required, to grant all necessary permissions to all the private covid Hospitals which are interested in setting up their own oxygen generation plants/units. Some of these Hospitals may also require additional space for setting up these units and, therefore, if these Hospitals apply for allocation of any adjoining land which belongs to the state government or the corporation, same shall be made available by completing all formalities including grant of exemptions or de-reservations, if necessary, by State/Collector, Nagpur / Commissioner, NMC and on payment of the appropriate market value of the land or premium determined as per market value of the land without any delay. If these Hospitals are interested in setting up smaller plants utilizing air separation technology and any special permissions are required for that purpose, same shall be given by these authorities without any delay. If any of the Hospitals are interested in procurement of smaller oxygen generation units which are called concentrators based upon air separation technology, necessary permissions shall be granted by the state and all the concerned authorities for their import/delivery to these Hospitals, without any delay.”

5. Thus, the Court has taken the cognizance of shortage of oxygen supply and to meet the demand the Court thought it proper to have a long term solution by increasing the production capacity of oxygen. Accordingly, directions have been issued to the State as well as Collector, Nagpur, Municipal Commissioner, Nagpur and also Central Government to grant all necessary permissions to all the private Covid Hospitals which are interested in setting up their Oxygen Generation Plants/ Units. The Court has then observed that some of these Hospitals may also require additional space for setting up these units and therefore, directions have been given that if these hospitals apply for allocation of any adjoining land which belongs to the State Government or the Corporation, the same shall be made available by completing all the formalities including grant of exemptions or de- reservations if necessary by State/Collector, Nagpur, Commissioner, Nagpur Municipal Corporation on payment of appropriate market value of the land or premium determined as per the market value of the land without any delay.

6. If one reads this order in its proper perspective, which requires plain reading, it would immediately come in the mind that a long term solution is to be found out to enhance the produc

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2022 Supreme(Bom) 198

The judgment emphasized the discretion of the State and its agencies to use their powers in the public interest and for public good, ensuring equitable treatment and non-discriminatory methods in granting benefits.

Cases Referred (2)