Case after case we see there is big mafia link between developers, planning authorities and law enforcement authorities, the Supreme Court said on Friday as it put in abeyance a Gujarat government notification which extended the deadline by three months for hospitals to rectify the violations of building by-laws. The top court told Gujarat government counsel that due to this notification no building control regulations are in place in the state during the said period.
“It is Windfall for developers and builders which have no nexus to the pandemic,” it said. “Violations all that we are doing is that we are allowing the dangerous establishments to continue. exemptions and stays we will be conniving to it. We cannot cure all ills in society but we must do what we can as judges to uphold the rule of law.” Taking a stern view, a bench of Justices D Y Chandrachud and M R Shah, while hearing a petition of Ahmedabad Medical Association seeking time to get building use permissions, said: “In effort of saving people from pandemic we are killing people by fire. Even with Building Use permission, if a two-room place is converted to a hospital, the permission is must. We cannot risk the lives of the people who need protection.”
The bench in its order said that as a consequence of the July 8 notification, the state government has directed that buildings which do not have valid building use permission, or are in its breach, or have violated regulations such as change of use, margin, height restrictions, "shall be exempt from obligation to comply with the GDCR for a period of three months from the last date of applicability of Gujarat Epidemic Diseases COVID-19 regulations, 2020. The bench said though the notification states that the buildings shall immediately take corrective measures to comply with the regulations within three months, directions have been issued to all the local bodies of the state to take no coercive measures.
“At this stage it does appear that notification which has been issued on July 8 is ultra vires the provision of section 12. Exemptions from complying with development control regulations have no nexus to the need to ensure the availability of services during the pandemic. As a matter of fact granting exemptions from complying with development control regulations which are made in public interest to promote the health, safety and welfare of citizens is not contemplated and less so in exercise of power conferred by section 122,” the bench said.
Consequently pending further orders the notification dated July 8, 2021 shall be held in abeyance by the state of Gujarat, the bench said, adding that there can be no justification that somebody is running a hospital or a nursing home for 38 years without building use permission. It told counsel appearing for Gujarat, “Please bring about compliance now. When the government is factoring in medical health facilities, you see you should not have beds in buildings, which do have building use permissions. You should adjust your affairs accordingly. Plan accordingly.”
The top court said that condoning gross irregularities in establishments which do not have building use permissions or the case may be fire permissions has resulted in egregious violation of the law, causing a great deterrent to public health as is evidenced from the incidents of fire, which have taken place both in Ahmedabad and Bharuch. We expect the state of Gujarat to take pro-active steps to ensure the compliance of rule of law, it said. During the hearing, the bench said it is the burden and obligation of the state that people who need protection are looked after. “You have a hospital, which for 38 years did not have building use permission. Now you have applied. It speaks a lot. You have committed illegality for 38 years,” the bench pointed out to senior advocate Huzefa Ahmadi, appearing for the Association. It asked the senior counsel whether he has seen the conditions of Intensive Care Units in these hospitals.
Justice Shah said, “Around 7/8 people are admitted in one small ICU room. We have not passed the order, keeping in mind the emergency situation during the second wave. If we had applied ICMR guidelines on ICU, 80 percent of Gujarat hospitals would be shut.” The bench said, “We have seen in Surat fire incident, we have seen in Ahmedabad, Bharuch, Nasik and other places what has happened in fire incidents. We cannot risk the lives of people anymore. People who suffer are citizens of this country and we cannot tolerate this.”
Justice Shah said that the government has now come out with a notification suspending the statutory provisions of General Development Control Regulations (GDCR) and the Gujarat Town Planning and Urban Development Act. “You have been operating the hospital for 38 years without permission. Hospitals have become investments. Don't worry this time also nothing will happen,” Justice Shah said. The top court dismissed the plea of the medical association saying it is not inclined to interfere with the well-reasoned order of the high court. The top court order came while hearing a suo motu matter on the proper treatment of COVID-19 patients and dignified handling of dead bodies in the hospitals in which it had taken cognizance last year about fire incidents in hospitals.
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