Ensure 700 MT O2 per day to Delhi until further orders: SC directs Centre

New Delhi: The Supreme Court on Saturday made it clear to the Centre that there shall be no reduction in the allocation and availability of medical oxygen to Delhi and its direction with regard to the provisioning of 700 MT oxygen per day to the national capital shall continue pending further orders.

A bench comprising Justices D.Y. Chandrachud and M.R. Shah said: “We direct the Union of India to remedy the situation forthwith and to ensure that the direction issued by this court for the availability of 700 MT is strictly observed on a daily basis, pending further orders.”

The Delhi government had informed the top court that it has computed the requirement of oxygen on the basis of the formula which has been adopted by the Union government.

The top court noted that the Centre has not disputed the correctness of the computation on the basis of the formula. The bench said that at this stage, no contrary material has been placed on record by the Union government.

“The attention of the court has not been drawn to any error in the methodology of computation, which has been adopted by GNCTD (Government of National Capital Territory of Delhi). GNCTD has drawn the attention of the court to the serious deficiency in the availability of oxygen.

“This indicates that on 6 May 2021, the total quantity of oxygen delivered to NCTD was 577 MT, resulting in a shortfall of 123 MT. As of 9 am on 7 May 2021, the total quantity which has been received at NCTD border is 87.97 MT, while 9.64 MT is under transit,” the bench noted.

The bench observed that except for a bare assertion that an increase of 210 MT to Delhi would result in a corresponding reduction to other states, no material has been produced on the record by the Centre.

The bench said the Centre has also on record stated that, as on 21 April 2021, a quantity of 16,000 MT of LMO was available in the country.

“On 30 April 2021, the order of this court recorded the submission of the Union government that there is ‘no dearth of oxygen’. The shortage of oxygen in the states/UTs was attributed to deficiencies in distribution and the inability to lift the entire quantity of oxygen supplied,” observed the bench.

The top court said the directions passed by it on April 30 leave no manner of doubt that the Centre is under an obligation to ensure a daily supply of 700 MT to meet the existing requirements of Delhi.

The top court said this direction has been based on the assurance of the Centre to the court.

The Delhi High Court, finding that there was a breach of this direction, invoked the contempt jurisdiction.

“While the invocation of the coercive process has been stayed, this court in its order dated 5 May 2021 has reiterated the direction for maintaining the supplies to NCTD at 700 MT per day. The Union government was required to place on the record a plan to achieve the fulfilment of this direction. The plan which has been placed before this court is subject to caveats and conditions which cannot be accepted,” the bench noted.

The top court said that what is sought to be assured in the first part of the plan is diluted with the next segment.

“700 MT was not intended to be a requirement to be fulfilled for one day or sporadically, but on a daily basis. Daily basis means for every day. We accordingly direct that there shall be no reduction in the allocation and availability of medical oxygen to NCTD and the direction in regard to the provision of 700 MT per day shall continue to be observed,” the apex court noted.

The counsel for Delhi government submitted that daily requirement of 700 MT has been computed on the basis of the formula adopted by the Centre, without factoring in an additional requirement of 256 MT consequent upon setting up of new facilities.

“The additional requirement of NCTD (from 490 MT to 700 MT) is only 210 MT, which is a small fraction of the pan-India availability of oxygen, estimated at 8,410 MT by the Union government. Further, the actual oxygen lifted by the respective states/UTs (as on 28 April 2021), out of their allocated quantity, was only 7,334.53 MT,” the Delhi government counsel submitted.

The Centre’s counsel submitted that problem of oxygen shortage in Delhi is due to a systemic failure to ensure proper distribution of oxygen.

“In order to resolve the issue, it would be necessary to conduct an audit with regard to the manner in which the available supplies are distributed through the networks and are ultimately utilised,” said the Centre’s counsel.


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