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SC stays Gujarat order allowing private hospitals to run without clearance
On July 8, the Gujarat government ordered that no action would be initiated against private hospitals and nursing homes without ‘building use certificate’ till next year
Noting that “in an effort to save people from the pandemic, we are killing them by fire”, the Supreme Court on Friday stayed a Gujarat government order allowing private hospitals and nursing homes in the state to comply with the ‘building use certificate’ requirement by March2022.
Refusing to tolerate violations of such nature in view of several cases of hospital fires in the state, a bench of justices Dhananjaya Y Chandrachud and MR Shah said: “The building use permission is meant to ensure that a structure meets the norms under the law for the desired purpose. You cannot have a nursing home operating from the fifth floor of a building without any lift.”
At least 16 Covid patients and two nurses were killed in a hospital fire in Bharuch in May this year. A fire in the ICU of a hospital in Surat also took place in the same month wherein no casualties were reported.
Prior to that, eight persons were killed in a fire at a Covid hospital in Ahmedabad while another five were killed at another Covid hospital in Rajkot last year. Taking into account the cases, the top court had ordered for mandatory fire safety audits of all hospitals across the country and the appointment of a nodal officer for every Covid hospital. This issue is still pending consideration of the court.
Despite the cases, on July 8, the state government ordered that no action would be initiated against private hospitals and nursing homes without ‘building use certificate’ till next year.
The bench had found the order “prima facie in breach of the Supreme Court direction”.
Sensing an attempt by the state government to protect the illegalities committed by developers and hospital owners, the bench said: “There is a mafia link between developers, planning authority and law enforcement agencies and in the process, common citizens suffer. We have seen the consequence of fire at Bharuch, Ahmedabad and Surat and we see the government is constantly exempting the developers from complying with law. We are not conniving in it by passing orders. As judges, we cannot cure all ills in society but we need to ensure compliance with law.”
In Gujarat, it is mandatory for all commercial establishments to obtain building use (BU) permission under Regulation No. 3.9 of the Comprehensive General Development Control Regulations, framed under the Gujarat Town Planning and Urban Development Act, 1976. Fire safety certificate is a necessary prerequisite for obtaining BU permission.
The court ordered the July 8 notification to be put in abeyance as it was found to be contrary to section 122 of the 1976 Act that provides for BU permission.
The state government argued the order was passed keeping in view an expected third wave of the pandemic.
Appearing for the Gujarat government, advocate Manisha Luvkumar said the state was strictly enforcing requirement of fire no objection certificate from hospitals and that 4,569 out of 5,850 hospitals had already acquired one. However, on the compliance of BU permission, a short breather was provided to the hospitals.
“The power vested in the state is to facilitate efficient administration of the Town Planning legislation.. An exemption from complying with development control regulations under the 1976 Act has no nexus with availability of facilities during pandemic. Is this in furtherance of the law?” the bench said.
While factoring the medical care facilities ahead of a possible third wave, the judges told the state to adjust their affairs in such a manner that premises having no BU permission are not put to use.
The bench also said that for the past two decades, the Gujarat high court had passed several orders, asking building establishments in the state to comply with the BU permission.
Several hospital owners had approached the top court, claiming that sealing action had been initiated against those without BU permission. Senior advocate Huzefa Ahmadi, representing Ahmedabad Hospitals Association, said at least 30,000 beds were at stake as the state had never insisted upon BU permission for close to four decades.
The bench said, “At present what this notification does is to suspend any development control regulations for eight months. If a building comes up in total violation of the rules in the name of pandemic, can any action be taken against it. There has to be some nexus with the pandemic. This notification offers a windfall to the developers.”
Meanwhile, the court received a report on the fire incidents at the Ahmedabad and Rajkot hospitals from the Commission of Inquiry headed by retired Gujarat high court judge, justice DA Mehta. The judges, however, were wary of sharing the content before it was tabled in the Gujarat assembly.
Appearing for the Centre and Gujarat government, solicitor general (SG) Tushar Mehta said the report will be tabled in the next session, expected to begin on September 28.
The court directed the SG to prepare a compilation of reports received from all states on the fire safety audit compliance ordered by the court in December last year.
