Delhi HC Asks Kejriwal Govt to Respond in Centre's Plea to Recall Oxygen Allocation Order

The bench had, on May 1, ordered the Centre to supply the entire oxygen allocated to the national capital by "whatever means" to treat COVID-19 patients or face contempt.

New Delhi: The Delhi high court on Sunday asked the Delhi government to file a reply to a Centre’s plea seeking recall of a court order to supply the entire oxygen allocated to the national capital by “whatever means” to treat COVID-19 patients or face contempt.

A bench of Justices Vipin Sanghi and Rekha Palli, which held two-and-a half hour long special hearing on a holiday, issued a notice to the Delhi government on the Centre’s application and asked it to file its response by Wednesday.

While hearing the arguments of counsel for the Centre and the Delhi government, the bench observed, “This is not about allegations or counter-allegations. We are not on that. We are dealing with much larger issue and situation. We are concerned with lives of 100s of people.”

The bench added that recently the Centre has issued a notification saying GNCTD is the LG and that Delhi stands on a different footing as compared to other states.

“Look at the constitutional scheme. Delhi is on a different footing. Even constitutionally they are on a different footing. Liquid medical oxygen (LMO) requires special cryogenic tankers and Delhi is not an industrial state so from where will they requisition tankers .so this stands on a different footing,” it said.

The bench was hearing an application by the central government seeking recall of its May 1 order directing the supply of the entire 490 metric tonnes (MT) of oxygen allocated to Delhi and warning of contempt action for failure to do so.

On May 1, anguished by the deaths of eight COVID-19 patients, including a doctor, at the Batra Hospital here due to a shortage of oxygen, the court had directed the Centre to ensure that the national capital receives its allocated share of 490 MT of the life-saving gas during the day and said “enough is enough”, “much water has gone above the head”.

The bench had said the Centre has to ensure that Delhi receives its allocated amount of oxygen “by whatever means” and warned that failure to do so could lead to contempt action.

Senior advocate Rahul Mehra, appearing for the Delhi government, opposed the contentions in the application, saying the allocated amount of oxygen was never made available to the national capital.

Terming the application as “uncalled for”, Mehra said Delhi government officers were working very hard and were “stretched beyond their limits” and if allegations of incompetence are made against them, they will have a nervous breakdown.

Solicitor General Tushar Mehta said the Centre’s officials are working hard and such orders would have a demoralising effect on them and urged the court to consider modifying its Saturday’s order.

To this, the bench said it has not initiated contempt and that was the last thing in its mind.

“We are concerned with the situation in Delhi. The situation in Delhi may be different,” it said.

Mehta responded, “Other states are not facing this problem, why?”

The bench shot back, “because they are getting their oxygen”.

When the bench said as of today, the production of medical oxygen is in excess of the current demand, the SG said, “if used judiciously.”

The bench also said the Delhi government has written to the Centre for providing tankers and the submission that they have not made efforts does not seems to be right.

Mehta said, “It is not that oxygen is not sufficient. I am just pointing out to show that if oxygen supply is properly channelised and used judiciously and if the state has real-time efforts, these last-minute alarms can be avoided.”

Mehra submitted that oxygen supplier Linde refused to use around 15 tankers that the Delhi government was trying to procure from industrialist Adani as they were used for transporting hydrocarbons.

He said Linde was told that the tankers would be cleaned properly, however, they “refused point blank’ and added that let the Centre take over all tankers, like they took over oxygen plants, and distribute it equally among all the states.

The SG said there is a systemic failure as hospitals are approaching court at the last moment regarding running out of their oxygen and this does not mean failure of the state.

He said there should be a system where the hospitals inform the Delhi government hours in advance when they will run out of oxygen so that no one has to come to the court at the last moment.

If there is a system, then lawyers would not have to burn the midnight oil attending SOS calls of hospitals, he said.

The SG said that tankers cannot be nationalised, and states have to work towards getting tankers as even Lakshadweep has managed to get tankers.

“The intention is good but there is something lacking and something needs to be done at the administrative end. Allocation has to be done keeping in mind the size of the state and the impact of pandemic in a particular state,” he submitted.

On Mehra’s claim that he was criticised by the Centre in its plea, Mehta said if he has found any of the statements to be offensive, he straightaway withdraws them.

The Centre, in its application filed through central government standing counsel Amit Mahajan and Monika Arora, said, “It was categorically and unequivocally understood by all state governments, including the Government of National Capital Territory of Delhi (GNCTD), that it will be the responsibility of each state government to provide for transport and thereby ensure that the said state receives the allocated supply for being distributed within the state.”