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Additional Documents of Appellant in Appeal No. 18-2020

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Additional Documents of Appellant in Appeal No. 18-2020 79 BEFORE THE HON’BLE NATIONAL GREEN TRIBUNAL WESTERN ZONE BENCH AT PUNE APPEAL NO. 18 OF 2020 IN THE MATTER OF: ABHIJIT PRABHUDESAI …APPLICANT VERSUS THE GOA STATE POLLUTION CONTROL BOARD & ORS. …RESPONDENTS INDEX S.No. PARTICULARS Page 1. Additional documents to be placed on record on behalf of the 1-7 Appellant 2. ANNEXURE A-1 Memorandum of Pollution Appeal No.4/2018/WATER under Section 28 of the of the Water (Prevention and Control of 8 - 18 Pollution) Act, 1974, before the President of the Ld. Administrative Tribunal, Goa. 3. ANNEXURE A-2 Amendment No. 5/2556/6-PCB/Tech/8700 granted by GSPCB 19 - 20 to the Consent to Operate dated 18.07.2018 4. ANNEXURE A-3 Application for amendment of Consent submitted by the MPT 21- 22 to the GSPCB dated 10.04.2018 5. ANNEXURE A-4 Appellant letter to GSPCB on 24.07.2018 requesting copies of 23 documents 6. ANNEXURE A-5 Minutes of 133rd Meeting of the GPSCB dated 29/06/2018 24-27 7. ANNEXURE A-6(colly.) Records of past pollution by MPT 28 - 40 8. ANNEXURE A-7 Relevant extracts of The Report of Expert Group on Ports for 41 - 46 12th 5 Year Plan (2012-2017) dated October 2011 80 9. ANNEXURE A-8 Minutes of Public Hearing held on 28/04/2017 for Re- 47 - 50 development of Berth Nos 8, 9 and Barge Berths 10. ANNEXURE A- 9 A copy of the Affidavit filed by Respondent No. 1 in November, 51 - 58 2018 11. ANNEXURE A-10 A copy of the Replies filed by Respondent No. 2 59 - 67 12. ANNEXURE A-11 A copy of the additional affidavit filed by the Appellant dated 68 - 70 18.09.2018 13. ANNEXURE A-12 A copy of the Written Submissions filed by the Appellant in 71 - 81 January, 2019 THROUGH RITWICK DUTTA RAHUL CHOUDHARY MAITREYA GHORPADE COUNSEL FOR THE APPELLANT N-71, LOWER GROUND FLOOR, GREATER KAILASH-I NEW DELHI-110048 Email:[email protected] PLACE: NEW DELHI 81 1 BEFORE THE HON’BLE NATIONAL GREEN TRIBUNAL WESTERN ZONE BENCH AT PUNE APPEAL NO. 18 OF 2020 IN THE MATTER OF: ABHIJIT PRABHUDESAI …APPLICANT VERSUS THE GOA STATE POLLUTION CONTROL BOARD & ORS. …RESPONDENTS Additional documents to be placed on record on behalf of the Appellant 1. This interlocutory application is being filed in instant statutory Appeal 18 of 2020(WZ) which was filed under Section 16 of the National Green Tribunal Act, 2010 against the judgment and final order dated 15.10.2019, communicated on 24.10.2019 by the President of the Ld. Administrative Tribunal, Goa in Appeal 4/2018/WATER titled, Abhijit Prabhudesai v. Goa State Pollution Control Board & Anr, whereby the Ld. Administrative Tribunal, has disposed of the said appeal without giving any consideration to the various grounds raised by the Appellant. That owing to certain difficulties with regards to logistics of transport of files from the Appellant to the Counsel, certain documents relevant to deliberation of the instant Appeal were not annexed. Therefore, the Appellant seeks to bring the same on record. 2. That the Appellant filed Pollution Appeal No.4/2018/WATER under Section 28 of the of the Water (Prevention and Control of Pollution) Act, 1974, before the President of the Ld. Administrative Tribunal, Goa challenging the legality of the amendment to the Consent to Operate dated 18.07.2018 granted by the Goa State Pollution Control Board (‘GSPCB’) to M/s Mormugao Port Trust, the Respondent No. 2. A copy of the said Appeal No.4/2018/WATER is annexed herewith as ANNEXURE A-1. 82 2 3. That the Pollution Appeal No.4/2018/WATER was filed especially to highlight the fact that the impugned amendment No. 5/2556/6-PCB/Tech/8700 to the Consent to Operate dated 18.07.2018 has been granted by the Respondent No.1 in absence of a prior Environment Clearance under the EIA Notification, 2006 for such expansion. This exacerbates an existing illegality in so far as the project has neither undergone assessment nor has it received Environment Clearance for cargo handling of any quantum whatsoever. A copy of the impugned Consent to Operate dated 18.07.2018 is annexed herewith as ANNEXURE A-2. 4. That the Environment Impact Assessment Notification, 2006 requires all Port related activities to obtain prior Environment Clearance (‘EC’). The Respondent No. 2 had earlier applied for an EC, but such has not been granted for the construction and use of the berth 9, nor for the handling of polluting and dirty minerals, ores and cargoes such as coking coal/coke, wood chips, etc (which have been permitted under the impugned Consent). That such is evident from the Application for amendment of Consent submitted by the Respondent No. 2 to the Respondent No. 1 dated 10.04.2018. the said letter states: “In this regard, it may be noted that due to the prevailing ban in the mining of iron ore and the cancellation of existing mining leases, there is very limited scope of iron ore exports, at least during the current financial year. As such, the berth No. 9 will remain idle or used sparsely if the CTO is restricted for handling of iron ore alone. In view of these circumstances, the Port is left with no other option but to handle all types of dry bulk, break bulk, liquid bulk, contained and general cargo at berth No. 9. You will kindly agree that no Port can predict with certainty the types of cargo that is likely to handle in view of the dynamics of the very volatile maritime trade and demands of the hinterland market that the Port serves. .... In view of the above, it is requested that the CTO may kindly be modified to enable the Port to handle all types of dry bulk, break bulk, liquid bulk, container and general cargo at berth No.9. it is also submitted that a restrictive CTO such as the one that has been now issued by the GSPCB can dent the commercial standing of the port and the port may lose out in the competition to the other private ports which would be detrimental not only for MPT but also for the maritime trade from the state of Goa. Mormugao Port assures that we shall abide by and comply with all the statutory directives and compliances under the respective environmental act as specified by the GSPCB from time to time while handling these cargoes.” A copy of the impugned Application for amendment dated 10.04.2018 is annexed 83 3 herewith as ANNEXURE A-3. 5. That on 19.07.2018, the Appellant sent a letter to GSPCB requesting copies of documents related to MPT activities. After perusing the documents provided, the Appellant found that some of the documents had not been given. The Appellant thereafter wrote another letter to GSPCB on 24.07.2018 requesting copies of such documents. A copy of said letter dated 24.07.2018 is annexed herewith as ANNEXURE A-4. 6. The Respondent No. 1 GSPCB has considered the application of the Respondent No. 2 under Agenda item no 9 of the 133rd Meeting of the GPSCB dated 29/06/2018. The relevant minutes of the said meeting read: “Application for amendment in Consent to Operate granted under Water and Air Acts of M/s Mormugao Port Trust - Berth no. 9 for handling all types of dry bulk, break bulk, liquid bulk, container and general cargo. The members deliberated and decided to in principle grant Consent. However, the Board may seek clarification as regards to type of cargo and the quantum to be handled based on which the Chairman may grant consent.” A copy of the relevant extracts of Minutes of 133rd Meeting of the GSPCB are annexed herewith as ANNEXURE A-5. 7. It is submitted that Respondent No. 2 has a history of pollution in the past and inefficient application of measures to reduce it. That on 10.01.2011 GSPCB had issued directions to the MPT under Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 and on 24.09.2012, under Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 and under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974. Furthermore, the Minutes of the 110th Meeting of the GSPCB dated 23.10.2013 observed that the ‘Consent to Operate granted to MPT for berth No. 10 and 11 were withdrawn by the GSPCB owing to large scale air pollution’. That thereafter, the GSPCB directed the MPT to carry out detailed EIA Study on the effects of handling coal/coke at Berth Nos. 5A, 6A and 7 vide letter dated 7.02.2014. That all such Records of past pollution by Respondent No. 2 are annexed herewith as ANNEXURE A-6 84 4 (Colly.) 8. That furthermore, The Report of Expert Group on Ports for 12th 5 Year Plan (2012-2017) dated October 2011, instructed various port trusts to identify and prepare a time bound action plan to shift their hazardous cargos according to severity of hazards to saver havens or shift/rehabilitate the population around the port to distant places by using MCLA (Maximum Credible Loss Assessment). The Mormugao Port was herein found to be highly hazardous in terms of severity of hazard. A copy of relevant extracts of such Report of Expert Group on Ports dated October 2011 is annexed as ANNEXURE A-7. 9. That furthermore, MPT has entered into an agreement with M/s Vedanta for leasing the berth No.
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