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The Curse of NGT Judgment – Undoing of Urban Planning

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Impact of NGT Orders on Shimla City's Development

Shimla– An old ‘common law’ proverb from the British era says “A man’s house is his castle, et Domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge]”. This principle, which needs to be strengthened in a free country, is sadly in shambles and perhaps held more truth in the colonial times than it holds now. The level of insecurity a man has with respect to the ownership or for making improvements in his living space/house or building is increasing day by day because of unreasoned judgments of Courts or illogical executive dictates.

In these series of articles (1,2 & 3), the impact of various laws and judgments which have essentially worked for depriving the common citizens in the State of H.P, of their ‘Right to Property” will be critically examined.

This article is aimed at academically discussing and pointing out the perversity and manifest errors in the ‘NGT Judgement’ which was passed on November 16, 2017. The judgment banned all construction activities in the green and core areas and also within 3 meters from national highways. It also restricted the number of stories to two-and-a-half in other areas where construction was permitted to up to 4 to 5 stories.

THE UNHEARD VICTIMS

The Order adversely affects many different categories of people. For instance, a person who has a sanctioned plan in accordance with TCP Law/By-Laws/Rules, who had saved his ‘life savings’ for the construction of his house, is now stuck in limbo, having done nothing wrong. If a man had the approval and sanctioned plan of  ‘four and a half story’ building, which was permitted under TCP law, he is now told that he cannot construct the house in accordance with that initial sanction.

Another man who has his sole plot/property in the core area is prevented from doing anything with it, though he may have buildings on either side of his plot. The significance of the initial sanction and the mandate of the Town and Country Planning Act is bypassed by the Hon’ble Tribunal which is not even competent to decide the matter under such Laws (TCP Act/ MC Act). To add insult to injury, such persons are not even heard or paid compensation before they are so monumentally impacted by the decision.

The Constitution makers bestowed right on every citizen of the country to acquire, hold and dispose of property and also provided ample safeguards against deprivation of the property by confining such deprivation only on payment of compensation to the expropriated owner. As such, the judgment is against the spirit of Article 300-A of the Indian Constitution.

IMPACTING DEVELOPMENT BY ABSURD AND BLANKET DIRECTION

1. Around 52 ‘Shimla Smart City Projects’, which aim at improving the infrastructural base of the city, are directly impacted by this judgment and are stalled. Such a wide impact of this blanket direction neither can be conceived nor can be expected to be implemented if the city has to grow. Further, such powers were never envisaged under the NGT Act which creates the Hon’ble Tribunal.

2. Another blanket and absurd direction is where the judgment prohibits new construction of any kind, i.e. residential, institutional and commercial in any part of the core area as defined under the various notifications issued under the Interim Development Plan as well by the State Government.

According to the standing laws of the State, the reconstruction in the green areas is permissible on old lines and construction in the core area with the permission of the State Government is also permissible, as per the existing laws (Notification/Statutes). If someone’s house is falling or has become structurally unsafe he should obviously be allowed to reconstruct on old lines, but this is also prevented as a consequence of these directions.    The tribunal has not quashed the relevant notifications which deal with this issue and has said something completely contrary to the existing laws. Now the situation is that we have two sets of laws, which are completely opposite to each other. The Tribunal doesn’t have the power to quash these laws nor interpret them.

3. The most Absurd direction is where the judgment says that beyond core, green and the areas falling within the authorities of the Shimla Planning Area, the constructions may be permitted strictly but not beyond two stories plus attic floor.

According to the law of the land, the construction in the core areas is being regulated by the provisions of the Interim Development Plan for Shimla as amended vide notification dated  28th June’ 2016, which clearly provides that the construction in the core area of Shimla is not story-based but is based upon the maximum floor area ratio and the maximum height of the building which is 1.50 to 1.75 & 21 meters respectively. Similarly, in the non-core areas of Shimla, the maximum floor area ratio is 1.75 & the maximum height of the building is 21 meters. Since the provisions of the Interim Development Plan for Shimla are still in operation, the same are now in conflict with the directions imparted by the Hon’ble Tribunal.

Traumatizing & Patent Illegality of the Judgement

There are numerous errors in the said judgment of the Hon’ble Tribunal, some are legal errors and others are factual errors. The judgment not only enters into a field which is outside its purview, but it also gives a shortsighted vision of its own in the matters of planning and development without comprehending the complexity of the factual problems which exists on the ground.

Though there are many flaws in the judgment, in this first article of the series, some of them have been enumerated as follows:

Firstly, the judgment dated 16.11.2017 has been passed in violation of the principles of natural justice and without giving an opportunity of being heard to those persons who stand adversely affected. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision-maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. Right of being heard is a right given to those parties who will be adversely affected by the decision. This right is a backbone for a ‘Fair Trial’. Such an important aspect of the judicial proceeding is missing in this case. Numerous persons whose property rights have been taken away have not been heard until now. The judgment should fall on this ground alone.

Secondly, the Tribunal is not even competent, or in other words, has the necessary jurisdiction to hear or decide matters relating to TCP Act or Municipal Corporation Act. The Tribunal is specifically established for matters which relate to ‘Environment’ and laws/Acts which deal with the protection of the same for e.g Environment Protection Act, Water Act, Air Act, etc. The tribunal certainly cannot be expected to interpret TCP Act and MC Act or bypass the mandate of Article 300 A and deprive persons of their houses or stop future government projects which are necessary for effectively implementing State policies.

Thirdly A peculiar problem which has arisen right now is that ‘Town and Country Planning Act’ provisions are not struck down and NGT judgment, which is saying something completely opposite, also stands. It is a rule of thumb that when the Courts have to disagree with a statuary provision for being unconstitutional etc., they will either quash it or read it down. NGT has done none of it, nor it could have done anything in this respect since these two acts are outside its jurisdiction. These acts fall within the jurisdiction of the Hon’ble High Court or the Hon’ble Apex Court.

When the law of the land has not been quashed or struck down, it obviously means that it is still the law of the land and has to be implemented. The judgment seems to be more on the lines of guidelines rather being a dictate or laying down an authoritative pronouncement.

Another fundamental flaw in the judgment is that the Tribunal has travelled way beyond the petition/application and what was prayed by the Applicant who approached it. The Courts, as a rule of practice, are limited to the pleadings which are filed before it, in this case, the Hon’ble Tribunal has gone far beyond the petition which it was deciding. The phrase ‘knight roaming in a shining armour’ is apt for this judgment. Here, the Court has set out to make right all the problems and evils of the State and has done future planning both for urban and rural areas and for the lakhs of inhabitants of such areas.

An important principle which has been forgotten in these blanket directions is ‘Actus curiae neminem gravabit’. The act of the Court shall prejudice no man. (Cumber v. Wane, i Sm. L. C. i ith ed. p. 338.)’.  The number of people who have been condemned unheard is astoundingly large. The livelihood of thousands is at stake, the development of the urban and rural areas of the State is at stake. These people are not criminals, these development plans are not out of the ordinary rather are a necessity for a growing city. The development plans have rightly been drawn by the competent authority under a well-established law. If the law is ‘common sense’ then this sense demands that these directions need a relook. If a law makes lakhs of people in the State as lawbreakers than there is something wrong with the law itself.

Right to Shelter, Challenges of Providing Housing to the Growing Population

It must be remembered that if everyone is compelled to make two and a half stories or not construct on vacant plots, it would lead to scarcity of housing or it would lead to cutting down of more trees as more land/surface area would be required to construct such houses. To sustain the growing population 4 to 5 storied buildings which if found structurally safe and not impacting the environment were perfectly reasonable and rightly allowed by the TCP/MC laws.

Right to shelter is a fundamental right and right of people to move from rural to urban areas is also a basic right. Both these rights stand defeated if these directions are not quashed. Housing will just become more and more expensive and out of the reach of poor and middle-class families. Old structures won’t be reconstructed, no new constructions will be raised, and no new Government projects can come up. The view of main Shimla town apart from Mall Road, which looks like a ghetto, will always remain like a ghetto.

In case of an earthquake, the chances of survival of the ‘High Court building’ (7 stories) and the ‘Cecil Hotel’ building (9 stories) are way more than the two-storied buildings of  Shimla’s lower bazaar /middle bazaar.  The point is that Morden technology and latest techniques of construction allow us to provide structurally safer buildings than what we had in the past. Further, they can also sustain more population in less surface area of land and fulfil a huge public purpose by doing so. The height of buildings as provided in municipal and TCP laws in accordance with floor to height ratio were reasonably arrived at by the competent authority. The Courts certainly are not equipped nor are expected to venture into this area which is outside their powers and tell us ‘how many stories can be built’, it is certainly the domain of the executive as they have experts with them and also have a better grasp of the ground reality (At least in theory).

The cost of such broad-ranging directions and ideas is very high – particularly on Shimla Town and its housing, making the cost of living and doing business costly and hurting the local enterprises, and thereby, shifting the planned outcomes into a different direction concerning economic opportunities. The focus of the planning approach has to shift from ‘development restricting’ approach toward ‘development enabling’ approach and it requires finalization of the Developmental plan for the city. It is extremely surprising that Shimla City does not have a final development plan in place to date (this will be discussed elaborately in future articles).

There are numerous other directions and issues relating to the final development plan and some arbitrary TCP Rules such a “non-inhabitable attics, no single-window clearances and the power of the babus to extort money in the passing of plans etc which will be critically examined in the next article.

(The post was first published in https://lawumbrella.wordpress.com/ )

Disclaimer: The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher.

Deven Khanna is a Lawyer, practicing at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles, he can be contacted at 7018469792 or at [email protected] The personal blog is at https://lawumbrella.wordpress.com/

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Himachal Pradesh: A Report on ‘Plight of Migrant Workers’ during the Lockdown & Need for Protection of their Rights

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Himachal pradesh - a report on migrant labourers during lockdown

Shimla-Poor people like migrant labourers and workers are nothing more than insects for the governments in India. The attitude of the government and its treatment of the poor workers, who had migrated to other states in search of livelihood, during the lockdown is a very clear evidence of it. What is more pathetic is the fact that that their plight remained invisible to the remaining public as mainstreamed media was being paid more by their political masters for diverting public attention from real issues to rubbish, spicy news. Our society is rotten to such an extent that public also preferred the rubbish served by the media over the bitter truth. Except for a small section of people including social activists, volunteers and non-profit-organizations actually worked to provide some relief like ration to the poor. Spare some time to go through a report on the plight of the migrant workers prepared by the Himachal Pradesh Workers Solidarity (HPWS) – a voluntary solidarity platform.

The first day of Lok Sabha’s monsoon session earlier this week saw MPs raising questions about the condition of Migrant Workers during the lockdown. The response of the Labour Minister that no data on migrant deaths for the period was available has drawn much flak. Additionally, no data on return of migrant workers was available for many states including Himachal Pradesh.

The issue of invisibilisation of migrant workers in a state like Himachal Pradesh has now been raised in a report, highlighting the impacts of the ongoing crisis on this community which contributes significantly to the state economy. Himachal Pradesh Workers Solidarity (HPWS) – a voluntary solidarity platform formed in April 2020, in its report, describes the havoc that a sudden, un- facilitated and unplanned national lockdown announced in response to the COVID19 pandemic six months ago had on the interstate migrant workers stranded in Himachal. HPWS ran a helpline during the period, provided assistance in accessing ration and other relief, travel to home states, through administrative coordination, registrations, and information dissemination etc.

Himachal, in the context of migration, is different from neighbouring Uttarakhand, where the rate of migration out of state is higher, whereas in Himachal the rate of in-migration is slightly higher than out-migration.

Gagandeep, a journalist based in Karsog and part of HPWS, elaborates,

“Post the decade of 1980 -90, expansion of industrial activities in the Shivalik hill region, multi-level infrastructure and development projects, growing local interests in horticulture, and cash crop farming alongside tourism-dependent economy made Himachal an emerging centre for in-migration.”

Today, workers from Uttar Pradesh, Bihar, Nepal, Uttarakhand, Jharkhand, Chhattisgarh, Rajasthan, and Kashmir constitute a large chunk of the migrant population in Himachal. Most of them are from Scheduled Caste, OBC, STs and minority communities. Difficult work areas and geography, insecure and unsafe living conditions, along with payment and other labour law violations, makes the situation even more difficult for them in mountain state like Himachal.

While the 2011 Census suggests that Himachal had approximately 3.10 lakhs migrant workers, this figure seems to be severely under-estimated due to lack of registration (under the Inter-State Workmen Act 1979), non-maintenance of data by State Labour Department and non-publication of all statistics of Census. The lack of data further worsened the pandemic crisis and impacted relief facilitation.

In response to the issues, the focus of the State was limited to distributing ration but ration alone was not enough for survival and sustenance. Ritika Thakur, another member of HPWS elaborates,

“Having some cash in hand was an urgent need to access gas cylinders, milk, medicines and other essential things like phone recharge, so that workers can at least call for support. Most of the people who contacted HPWS”, she adds, “had not been paid their wages and their savings had died out in payment of room rents and ration as loans and debts kept on piling up.”

Many migrant labourers complained about the interrogatory, apathetic and discriminatory attitude of the officials when they were called for ration support. Seeing no transport facility forthcoming, many workers were forced to walk back home on foot. When caught at borders they were put into quarantine centres forced to return or were left with no choice but to escape on foot.

“The online registration mechanism was completely inaccessible for workers and for weeks there was no response to registrations”,

according to Sukhdev Vishwapremi, a social activist and member of HPWS.

The first ‘shramik train’ ran as late as May 22, 2020.

“The government, meanwhile, allowed private bus operators to run on exorbitant prices,”

he adds.

Many workers were pushed to take loans or sell property/artefacts to be able to return home through these buses while 5000 HRTC buses remained standing in bus stands.

“The fact that the Central government shifted the burden of facilitating transport on the states without any significant co-ordination and clarity made matters worse, aided by lack of coordination and communication between nodal officers, both between Himachal and other states and within Himachal”,

Vishwapremi emphasized further.

According to the information shared by an officer from Himachal Pradesh Government (SDMA), 94,819 migrants had gone out from Himachal to various states of the country by June 23, 2020. As per the information received from SDMA under RTI, 14 shramik trains ferried around 13,183 people out of the state.

Himshi Singh from HPWS reminds, “more than 80% of the migrants took the road on their own expense in which the government merely provided e-passes for private transportation, and the number of people who walked on foot is not yet known.”

Adding further she remarks,

“It’s tragic that in the midst of this crisis, FIRs were registered against reporters who did stories on migrant worker’s condition and on the other hand no action was taken against fake news or media who communalised the issue leading to violence on minority communities like the migrant workers from Kashmir”.

The report highlights how Himachal was one of the 12 states who made major dilutions in labour laws in favour of companies and ‘ease of doing business’.

Almost five months have passed living with this epidemic and even as the success and failure of the lockdown are debated- the economy is falling in doldrums and our governments seem inconsistent and directionless. As per the estimate by ILO, 400 million informal workers in India will fall to critical levels of poverty than ever before- a situation that demands urgent cognizance, state accountability and a responsible approach.

In this regard, HPWS in this report has made the following recommendations for the State:

  1. Release in the public domain all the information about relief/support provided to migrant workers
  2. A joint task force be set to bring out a comprehensive report on the conditions and needs of migrant labourers in the state within 6 months
  3. Provide universal Access to Ration, Economic and other Relief Facilities
  4. Housing facilities for Migrant workers who have been living in Himachal and hostel facilities for seasonal labour
  5. Housing facilities for Migrant workers who have been living in Himachal and hostel facilities for  seasonal labour
  6. Compliance of SC/HC orders-setting up helpdesk/grievance redressal centres at Panchayat, Block, Tehsil  and District levels and conducting employment and skill-based survey of the migrant workers who have returned from other states
  7. Dilution in labour laws be withdrawn and all changes scrapped and strengthening the time-bound  ‘Grievance Redressal’ system and Labour Courts Mandate the registration of all migrant labourers working in the state under ISWMA 1979

HPWS will be submitting the report to various state and central agencies for further advocacy and hopes that the HP Government will take adequate measures to protect the interests of the migrant worker communities in the state.

Read Complete Report

Feature Photo: Sumit Mahar, Volunteer HPWS

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Amid Surge in COVID-19 Cases in Himachal, Speculation of Complete Lockdown Gains Momentum

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Himachal Pradesh Lockdown from August 1st speculations

Shimla-The number of COVID-19 cases is rising at an alarming rate in Himachal Pradesh as for the past five consecutive days, the state had been reporting nearly 100 cases per day. With Monday’s 95 new cases, the tally  for the state jumped to 2270. The number of active cases has crossed the 1000 mark to reach 1025 on Monday. So far, 1216 patients have recovered while 12 of them succumbed to COVID-19 infection.

Among Monday’s cases, Sirmaur district reported the highest 31 cases from Govindgarh (mohalla) locality in Nahan. Complete lockdown of two days was imposed in this area but the spurt in cases continues. Fifteen new cases were reported from Baddi and Parwanoo in Solan district while remaining cases were reported from Bilaspur (11), Mandi (10), Kangra (16), Shimla (5), Una (2), Hamirpur (1), and Chamba (3).

In Shimla, five family members of a policeman, who had tested positive a couple of days ago, also tested positive.

HP Health Department’s COVID-19 Bulletin July 27, 2020 (9PM)

himachal pradesh demand of lockdown amid surge in covid-19

Some leaders of the ruling party (BJP) continue to invite criticism for behaving irresponsibly. The government itself is not learning any lesson from the situation in Govindgarh- a hot spot where the outbreak was triggered due to a marriage ceremony.

On Monday, the opposition Congress filed a police complaint against three persons including a BJP leader for violating rules by roaming around and meeting a large number of people instead of placing themselves under home-quarantine. The opposition said that samples of these persons were taken after they showed symptoms of the COVID-19 infection. Still, these persons kept roaming around after giving samples. The opposition has also alleged a discrimination was seen in initiating legal action for violations of social distancing norms. In Spiti, hundreds of tribal women were booked for staging protest against Minister Ram Lal Markanda for not adhering to the resolution passed by the locals regarding mandatory quarantine for all including the residents of the district. Cases have been filed against the opposition Congress too for violating these norms during recent protests. 

Earlier, a leader from Mandi had introduced the coronavirus in Chief Minister’s office and the State secretariat and infected about two dozen of his contacts including the Advocate General and his family. The leader reportedly visited the IGMC, Shimla, State High Court and other offices.

Now, another ex-MLA from Nadaun and the Vice-Chairman, HRTC, was reported to have met several party workers and even attending an event as the chief guest. Vijay Agnihotri reportedly continued shopping, roaming around, and meeting people after giving a sample. Reportedly, he also attended a marriage ceremony. The district administration would now have a task to trace all his contacts.

At the sametime, the Congress was also seen disregarding the social distancing norms during their recent protests against the hike in bus fare.

Laxity in Organization of and Checking Gathering in Govt Events

While the state government has issued guidelines for attending funerals and marriages, there is hardly any seriousness when it comes to organizing government or the party events. The ‘havan’ organized in Shimla where hundreds of people had gathered and several party leaders including Chief Minister Jairam Thakur had visited it. The event had invited criticism as the Chief Minister and workers of BJP Mahila Morcha were seen disregarding every social distancing norm. 

An employee of HP University also tested positive recently. A few days prior to the confirmation of this case, an event was organized at the varsity on the occasion of the Foundation Day a large number of people including media persons were present.  

Amid such a sharp increase in cases, instead of being so lax, the government is supposed to prohibit any such gathering or at least issue guidelines regarding the maximum number of persons allowed to attend such events/functions.

Solan district where the total COVID-19 cases have reached 553 has begun to witness a shortage of health staff.  The BBN area is the worst hit and has reported about 80 percent of the total cases in Solan. According to a media report, there are only 10 doctors at the CHC at Nalagarh and six at the Civil hospital, Baddi. There are only 28 nurses.

Amid this panic, the public, especially from Shimla district has been suggesting the imposition of a lockdown and questioning the government over still keeping the border open for tourists. To make thing even worse, there are instances where people violated quarantine rules after their samples were taken or were not monitored properly. In Mandi district’s Bagsaid market, a person had opened his meat shop giving a sample. It was after the arrival of his report that the shop was closed. 

Further, the online opinion poll of the State Government inviting public opinion over the imposition of a complete lockdown in the state has led to speculations of a possible lockdown from August 1st.  The matter regarding a lockdown is expected to be taken up in the Cabinet meeting to be held on July 30. The public is confused and preparing to stock up ration/essentials or planning to leave for villages. Several readers have also been writing to Himachal Watcher to inquire about the possibility of imposition of a complete lockdown.  

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First Open for Tourism, Then Train Staff, HP Govt Goes Topsy Turvy

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Himachal pradesh CM jairam thakur on hotel staff training

Shimla- In the last week, the Himachal state government has taken decisions that could have a long-lasting impact on citizens without consulting or even informing all stakeholders.

First, it came out with guidelines for tourism that did not have any inputs from the tourism industry. Second, it decided to open the state for tourism without consulting hotel and travel industry or keeping village pradhans in the loop.Six days after the decision to allow tourist activity and opening State borders for tourists, the state government of HP has decided to train people employed with the industry.

“Online training for the Hospitality sector would also be held in wake of COVID-19. About 10,000 candidates would be provided one-day training on hygiene and sanitation procedures. Three weeks training on basic essential of a tourist guide communication skill etc. would be provided to about four hundred candidates,”

said Chief Minister Jairam Thakur in a review meeting with Tourism Industry officials on 8th July. It’s surprising that the Government did not find the time to either have this ‘1 day training’ program ready or train the staff of hotels and restaurants before throwing open state borders for tourists. The government gave no time to the hotel industry to understand, prepare and implement directions given in the issued SOPs.

Major Hotel Associations have already decided to keep hotels closed at least till September and  Village Pradhans have also refused to allow tourists into their jurisdiction. The Chief Minister said that the State Government is following the lead of states such as Uttarakhand, Rajasthan, Goa, Kerala etc. where the Governments have decided to open the State for tourists.

To enter Himachal Pradesh, tourists have to meet three conditions, a valid booking for at least five days, a COVID-19 test report from an Indian Council of Medical Research (ICMR) certified laboratory not older than 72 hours and their vehicle should have a sanitisation certificate.

About 600 tourists have already entered Kangra district. Police arrested a couple in Kangra district who managed to enter the State by furnishing a fake COVID-19 negative report.

“A case was registered at Damtal police station against a couple who entered HP from Bhadroya barrier based on fake COVID Negative test report. Legal action is being initiated against them for cheating, fraud & forgery. They are currently lodged in an institutional quarantine facility at Parour,”

SP, Kangra, Vimukt Ranjan, said confirming the report. In another case in Kullu, five tourists, who managed to enter the State and reach Bajaura barrier in Kullu, were detained for not carrying required documents. A total of 12 tourists have been allowed in to Kullu district after they met the three conditions needed for tourists.

According to Kullu district police, about 70 tourists from Punjab, Haryana, Chandigarh, Rajasthan, Telangana, Uttar Pradesh etc. were sent back for not fulfilling conditions prescribed by the State Government. Tourists who should be sent back for a lack of required documents and fulfilling conditions given in the SOPs issued by the State Government are able to cross barriers at borders, like Parwanoo and Swarghat.

Police manning barricades are also frontline staff who are at risk.

We have provided police who are manning the barricades with N95 masks, raincoats that will serve a double purpose for rain and COVID protection and long gloves, policemen over the age of 50 years and those with existing conditions are not deployed at barricades,

said DSP, Kullu, Priyank Gupta.

While the majority of the hospitality industry players, (which is worst hit by the loss of business), is against opening the State for tourism, there are some, especially those who have leased hotels and taken loans who want to open for tourism. However, until the state government takes steps to add healthcare facilities and make more dedicated COVID hospital wards especially in rural areas, large scale tourism could endanger locals.

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