Jamshed Noshir Sukhadwalla and 4 ... Vs Union of India and 11 Ors On 30 November, 2018

Jamshed Noshir Sukhadwalla And 4 ...
vs Union Of India And 11 Ors on 30 November, 2018
Bombay High Court

Jamshed Noshir Sukhadwalla And 4 ... vs Union Of India And 11 Ors on 30 November, 2018
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2890 OF 2018
1. Jamshed Noshir Sukhadwalla

of Mumbai Indian Inhabitant
residing at 512 Jagannath Shankar
Sheth Road, Varaya House, 1st Floor,
Mumbai - 400 002.
2. Behruz Nariman Irani
3. Ratan Dorab Patel

Petitioner Nos.2 and 3, Trustees and
authorized signatories of the Shah
Varzaavand Trust having its office at
¼ Mehta Bldg., Khan Estate
MMC Rd. Mahim - 400 016.
4. Ervad Dr.Rooyintan Peshotan Peer

residing at 23, Police Court Lane, Fort,
Mumbai 400 001
5. Berjis Desai
residing at 12th Floor, 9A Residences,
Bomanji Petit Road, Behind Parsi
General Hospital, Mumbai 400 026 .. Petitioners
Vs.
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1. Union of India
Room No. 46, North Block,
New Delhi 110 001.
2. State of Maharashtra
through the Government Pleader
High Court, Bombay,
Indian Kanoon - http://indiankanoon.org/doc/143840945/ 1

Mumbai 400 032.
3. Mumbai Metropolitan Regional

Development Authority having its
office at M.M.R.D.A. Office
Building, Bandra-Kurla Complex,
C-14 & 15, E Block, Bandra (East)
Mumbai 400 051.
4. Mumbai Metro Rail Corporation

being a company incorporated under the
Companies Act, 1956 and having its
office at Plot No.R-13, E Block,
1st Block, NaMTTRI Building,
Bandra Kurla Complex, Mumbai 400 051
5. Vada Dasturji Jamasp Asa
6. Burjor H. Antia
7. Phiroze Katrak
8. Sharookh Sethna
9. Noshir Katrak
Respondent Nos.5 to 9
Trustees of the Zarthoshti Anjuman

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Atash Behram Trust having its

office at Jagannath Shankar Sheth Road,
Navajeevan Wadi, Sonapur,
Marine Lines, Mumbai 400 002.
10. Nadir Modi
11. Farrokh Kavarana
12. Hosi Dastur

Respondent Nos.10 to 12 Trustees
of the Hormasji Bomanji Wadia
Fire Temple Charity Fund having
its office at 604, Jagannath Shankar
Sheth Road, Dhobi Talao,
Mumbai 400 002. ..Respondents

Mr. Navroz Seervai, Senior Advocate a/w Mr. Shyam Mehta,

Sr. Advocate a/w Mr. Zerick Dastur, Ms. Smriti Singh, Mr.
Kunal Kothary, Ms. Tanvi Gaitonde i/by Zerick Dastur and
ANB Legal for petitioners.
Mr. Anil C. Singh, ASG a/w Mr.Sandesh Patil, Mr. Aditya

Thakkar, Ms.Indrayani Deshmukh, H.V.Tamanna and Ms.
Geetika Gandhi for respondent no.1 - UOI.
Mr. Ashutosh Kumbhakoni, AG a/w Mr. L. T. Satelkar, AGP

for respondent no.2 - State.
Ms. Kavita N. Solunke for respondent no.3 - MMRDA.
Mr.Shrihari Aney, Sr. Adv., Mr. A.V. Anturkar, Senior

Advocate a/w Mr. Prathamesh Bhargude, Mr.Ranjit Shinde,

4 wp_2890.18.j.doc
Mr. Yatin Malvankar, Mr. Ajinkya Udane, Mr.Roopadaksha

Basu, Ms. Nehal Mahuli i/by The Law Point for respondent
no.4.
Mr.F.E.Devitre, Senior Advocate,Mr.D.D.Madan, Senior

Advocate a/w Mr. Hormaz Daruwalla, Mr. Somasekhar, Mr.
H. N. Vakil, Ms. Suzan Vakil and Miss. M. Mehta i/by Mulla
and Mulla and Craige Blunt and Caroe for respondent nos.5
to 12.
CORAM : NARESH H. PATIL, CJ AND

R.G. KETKAR, J.
RESERVED ON : 8th October, 2018.
PRONOUNCED ON : 30th November, 2018.
JUDGMENT [Per Naresh H. Patil, CJ.] :
The petitioners pray for following substantive reliefs:-
"a) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ in the
nature of mandamus or any other appropriate writ, order, or direction restraining the
Respondent Nos.1 to 4 from commencing and/or carrying out construction of any
tunnel or underground construction which passes under the premises of the H.B.
Wadia Atash Behram or Zarthosti Anjuman Atash Behram and at such a distance 5

wp_2890.18.j.doc from the said Atash Behrams as may cause damage to the
structure of the Atash Behrams and/or cause the water in the wells situated in the
Atash Behrams to be affected in any manner;
a-1) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ in the
nature of mandamus or any other appropriate writ, order or direction directing the
Respondent Nos.1 to 4 to construct the proposed Kalbadevi Station at such a distance
from the H.B. Wadia Atash Behram that it does not cause any damage to the
structure of the H.B.Wadia Atash Behram and/or cause the water in the wells
situated in the H.B. Wadia Atash Behram to be affected in any manner;
b) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ in the
nature of mandamus or any other appropriate writ, order, or direction directing the
Respondent Nos.1 to 4 to realign the Metro Rail 3 construction in such a manner that
the metro tunnel and/or any other construction does not pass underneath the 6
wp_2890.18.j.doc H.B.Wadia or Zarthosti Anjuman Atash Behrams and at such a
distance from the said Atash Behrams as may cause damage to the structure of the
Atash Behrams and/or cause the water in the wells situated in the Atash Behrams to
be affected in any manner;
c) This Hon'ble Court be pleased to direct the Respondent Nos.1 to 4 to disclose on

oath all the plans, diagrams, layouts, reports, blueprints, structural engineer reports,
Environmental Impact Assessment report and/or any other information with respect
to the proposed metro construction beneath the two Atash Behrams on Jagannath
Shankar Sheth Road, i.e. H.B. Wadia Atash Behram and Zarthosti Anjuman Atash
Behram;"
2. This petition was filed on 21st May, 2017. It is contended that Petitioner No.1 is an individual
practicing the Zoroastrian faith and is a civil and structural engineer by profession. Petitioner No.1
is an alumnus of Veermata Jijabai Technological 7 wp_2890.18.j.doc Institute (hereinafter referred
to as 'VJTI' for short) and the Jamnalal Bajaj Institute of Management, Bombay. Petitioner Nos. 2
and 3 are trustees of the Shah Varzaavand Trust, which is a public charitable trust registered under
the Maharashtra Public Trusts Act, 1950 with inter alia the object of protecting the interests of the
Zarthushtis. Petitioners Nos. 2 and 3 crave leave to refer to and rely upon a copy of the Trust Deed
as and when produced. Petitioner No.4 is a renowned religious scholar of the Zoroastrian faith and a
qualified priest. Petitioner No.4 has derived the knowledge in connection with the spiritual aspects
mentioned hereinafter from accepted practices, long standing traditions, scriptures, customs and
teachings. Petitioner No.5 is an individual practicing the Zoroastrian faith and is a renowned legal
practitioner and solicitor. Respondent No.3 Mumbai Metropolitan Regional Development Authority
(MMRDA) has been entrusted with the responsibility of executing and maintaining various
infrastructure projects.
8 wp_2890.18.j.doc Respondent No.4, Mumbai Metro Rail Corporation Limited (MMRCL) is a

company incorporated under the Companies Act and is a joint venture between the Government of

India and the Government of Maharashtra. Respondent No.4 proposes to construct a metro rail
which is known as the Mumbai Metro Rail Project. Respondent Nos.5 to 9 are the trustees of
Zarthoshti Anjuman Atash Behram Trust which is the trust looking into the administration of
Zarthoshti Anjuman Atash Behram. Respondent Nos.10 to 12 are the trustees of the Hormasji
Bomanji Wadia Fire Temple Charity Fund which is the trust looking into the administration of
H.B.Wadia Atash Behram. Respondent Nos.1 to 4 have decided to execute a project in various
phases for running a metro rail underground as per the plan. The project includes Mumbai Metro
Line 3 which is a long corridor running along Colaba-Bandra-SEEPZ. A part of this Mumbai Metro
Line 3 has been proposed to run under Jagannath Shankar Sheth Road.
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3. The petitioners state that Jagannath Shankar Sheth Road is a very congested road and some of
the structures are heritage structures, including two of the most holy Zoroastrian Fire Temples of
the Highest Degree (Atash Behrams), Viz. H.B. Wadia Atash Behram and Zarthosti Anjuman Atash
Behram.
4. According to petitioner the construction of H.B. Wadia Atash Behram was completed in the year
1830 around 188 years ago. The Zarthosti Anjuman Atash Behram has been constructed in the year
1897 around 122 years ago. This Atash Behram's foundation stone was laid by Dasturji Dr.Jamaspji
Minocherji JamaspAsa on 17th October, 1897. It is the petitioner's case that these Atash Behrams
have been consecrated over a century ago after performing complex and elaborate rituals by highly
trained priests and have a special spiritual and religious significance for individuals practicing and
professing the Zoroastrian faith. Both 10 wp_2890.18.j.doc these structures have been classified as
heritage buildings under Regulation 67 of the Development Control Regulations 1991.
5. The petitioners further submit that Mumbai Metro Line3 is proposed to go directly under these
two Atash Behrams. If the proposed Metro Line 3 is allowed to go through according to plan then it
will lead to desecration of holy consecrated Atash Behrams. The project would endanger structural
safety of these Atash Behrams which are heritage structures. The project would also cause the wells
in the Atash Behrams to run dry. It is stated that in the Zoroastrian religion, the fire is considered as
the son of the Supreme Creator Ahura Mazda since it is the living symbol on earth representing
Ahura Mazda. The fire is, therefore, the central focus of all Zoroastrian ceremonies and rituals as a
divine source of spiritual energy. The fire temples were built in honour of the divinity presiding over
the fire and consecrated physical forms of ever-burning fires were installed in 11 wp_2890.18.j.doc
the sanctum sanctorum of the respective fire temples. There are 3 grades or categories of sacred
fires: 1) The sacred fire of the Atash Behram, which is of the highest grade. 2) The sacred fire of the
Atash Adaran. (3) the sacred fire of Atash Dadgah. The first 2 grades are necessarily consecrated
fires and are installed in separate chambers. They are served five times daily during the day and
night through ceremonies known as boe and care is taken that the fires are continuously burning.
These fires are attended to by qualified priests. Both these above Atash Behrams house all three
grades of Holy fire within the premises of the respective Atash Behrams installed at separate places
within the said premises.

6. It is the petitioner's case that the entire structure of the Atash Behram is a composite integrated
whole and includes the sacred fire of the Atash Behram. The entire Atash Behram premises is
consecrated. According to petitioner during the 12 wp_2890.18.j.doc process of consecration and
enthronement, the holy fire, is connected spiritually to the Mother Earth from which it draws
sustenance. The petitioner refers to a book namely The Religious Ceremonies and Customs of the
Parsees by Ervad Shams-UI- Ulama Dr. Sir Jivanji Jamshedji Modi, a renowned author on
Zoroastrian religion. A relevant page from Dr. J.J.Mody's book is annexed to the petition (Exhibit
'C')
7. The petitioners state that the process of consecration of an Atash Behram is an elaborate and
intricate procedure involving highly-trained priests performing various complex rituals. In modern
times it is virtually impossible to consecrate a fire temple of the Highest Degree viz. an Atash
Behram. Therefore, its rarity has to be preserved. There are only 8 such Atash Behrams in India. In
fact, the last Atash Behram being Zarthosti Anjuman Atash Behram was consecrated over 122 years
ago. Thereafter, there has never been consecration of any Atash 13 wp_2890.18.j.doc Behrams in
India. It is virtually impossible today to consecrate an Atash Behram due to a variety of reasons
including non- availability of the trained priests and the complex rituals that go into the process of
consecrating Atash Behrams. Reference was made to the book written by Dr.J.J.Mody. The
petitioners had in detail described the ceremonies performed in the temple. The inner liturgical
services are described in Paragraph-11 as under:
"11. In the Zoroastrian faith, ceremonies can be broadly divided into 1) inner
liturgical services 2) outer liturgical services. The inner liturgical services are those
religious services which can be performed in a separate place specially allotted for the
purpose. Such a place is known as Urvisgah and is generally connected with the fire
temple. These types of ceremonies are intricate in nature and demand a very high
degree of purity and rigorous workout. Only highly-trained priests known as
Yaozeathregars could perform such ceremonies. These priests are first required to
undergo the highest form of purificatory ritual known as Barashnum (9 days and 9
nights of 14 wp_2890.18.j.doc retreat) and then could perform such ceremonies.
They also have to observe and maintain some very stringent laws of purification.
These ceremonies are therefore generally spoken of as pav-mahal ceremonies,
i.e.ceremonies of the holy or consecrated house. The secluded places required for the
purpose of performing inner liturgical services are marked by formation of boundary
lines which are the karsha. The karsha is also intended to preserve the efficacy of the
consecrated fire and the consecrated articles of the sacred ceremonies within them.
Further as stated above, inner liturgical services are performed in special places
known as the Urvisgah which is within the premises of the Atash Behram. The
Karshas extend to and cover the entire premises of the Atash Behram. If a tunnel is
allowed to pass under the Atash Behram premises it will amount to a breach of the
Karshas which are the protective circuits protecting the sacred fires consecrated and
enthroned within the Atash Behram premises."
In Paragraph-13 the petitioners state as under:-

"13. It is stated that if a tunnel for the metro is 15 wp_2890.18.j.doc allowed to be

bored under the premises of the above Atash Behrams, the spiritual circuits will be
breached and negative forces of physical and spiritual will attack the holy fire, thus
diminishing its spiritual prowess. It is believed that there is a constant requirement
for the Atash Behrams to be connected with Mother Earth. The connection has to be
an uninterrupted connection with the core and the centre of the earth from which the
vibrations and waves emanate. All higher ceremonies are enjoined to be performed
with connection to Mother Earth so as to impact and give force to the culmination of
their spiritual effect. The electromagnetic field of the earth known as geomagnetic
field is generated in the core of the earth and the magnetic field so generated is
required to be constantly connected with the Atash. Construction of tunnel under the
Atash Behram premises will severely affect these vibrations and the connection with
the fire."
The petitioners state that besides spiritual damage there is a distinct possibility that there is physical
damage to the structure 16 wp_2890.18.j.doc of the two Atash Behrams. They have referred to
damage caused to nearby building Jer Mahal Annexe, situated where Kalbadevi Road meets
Jagannath Shankar Sheth Road which suffers significant damage. In a similar case pertaining to
metro construction in the city of Chennai, it is stated that 121 years old Arcot Lutheran Church
developed cracks as a result of tunnel boring machines operating underneath the building as part of
the metro rail tunneling work. The petitioner referred to Preconstruction Building Condition Survey
Report for Mumbai Metro Project Line 3 (Colaba-Bandra-Seepz) dated 14 th March, 2017.
8. The petitioners, therefore, submitted that in case the metro tunnels are permitted to pass under
the Atash Behram premises, the same would violate the petitioners' fundamental rights under
Articles 14,21, 25 and 29 of the Constitution of India. In case Metro tunnel is allowed to be bored
under the premises of the 17 wp_2890.18.j.doc Atash Behrams, the spiritual circuits will be
breached and negative forces of physical and spiritual will attack the holy fire, thus diminishing its
spiritual prowess. It is believed that there is a constant requirement for the Atash Behrams to be
connected with Mother Earth. The connection has to be an uninterrupted connection with the core
and the center of the earth from which the vibrations and waves emanate. All higher ceremonies in
the Atash Behram are enjoined to be performed with connection to Mother Earth so as to impact
and give force to the culmination of their spiritual effect. The electromagnetic field of the earth
known as geomagnetic field is generated in the core of the earth and the magnetic field so generated
is required to be constantly connected with the 'Atash' (fire). Construction of tunnel under the Atash
Behram premises will severely affect these vibrations and connection with the fire. Ground I and
Ground L-1 of the Petition read as under:-
18 wp_2890.18.j.doc "I- Because the Respondent Nos.1 to 4 have failed to appreciate that certain
rituals are conducted at the time of enthronement of the holy fire in the Atash Behram which enable
the holy fire to draw sustenance from Mother Earth. During the process of consecration, great care
was taken along with a number of ritual precautions to maintain this connection and sanctity.
According to tradition, pav mahal ceremonies cannot be performed on an elevated place, that is to
say, on the upper floor of a house or a building. They are to be necessarily performed on the ground

floor, that too, with direct connection to Mother Earth. The belief is that there should be no motion
or movement beneath it (Baaj dharnane Lagti Pav Mahalni Kriyao by Hormuzd Pavri pages 56 - 57).
If a tunnel were to be bored under the Atash Behram premises, that would result in the premises
being considered to be on an elevated level and the connection with the ground would be deemed to
be breached.
Accordingly, it will result in the spiritual violation of the sanctity of the Atash Behram. Further, any
motion or movement under the Atash Behram premises would directly interfere with the 19
wp_2890.18.j.doc spiritual sanctity of the Atash Behram, hence resulting in its desecration. The
connection between mother earth and the Atash Behram cannot be broken."
"L-1. Because Respondent No.4 has failed to appreciate the possible effects of the proposed
construction of Kalbadevi station on the structural stability of the H.B. Wadia Atash Behram which
is just a few metres away from the Wadiaji Atash Behram. The station construction method to be
adopted by Respondent No.4 includes an element which involves a process of conducting controlled
blasting to create caverns at the location of the proposed station which will more severely and
directly impact the structural stability of the structures in the vicinity including the Wadiaji Atash
Behram. The entire area comprising weak buildings categorized by Respondent No.4 itself as
"severe" and "very severe" could be damaged in the process. The Petitioners understand that there
will be a further effect on structures due to more severe vibrations anticipated from controlled
blasting and secant piling as compared to tunnel boring by 20 wp_2890.18.j.doc giant tunnel boring
machines (TBM)."
9. The petitioners submit that pursuant to the order of the High Court dated 23rd May, 2018 the
petitioners' advocate addressed a letter dated 28th May, 2018 to Advocate for respondent no.4 inter
alia requesting them to furnish detailed plans relating to the project so as to participate effectively in
the hearing to be held by the Committee of respondent no.4. The documents provided were not
complete for effective participation. It is submitted that plan shows that distance between H.B.
Wadia Atash Behram and the proposed Kalbadevi metro station is approximately 5 meters which is
likely to cause structural damage to the Atash Behram. It is submitted that the station construction
method to be adopted by Respondent No.4 includes an element which involves a process of
conducting controlled blasting to create caverns at the location of the proposed station which will
more severely and directly impact the structural 21 wp_2890.18.j.doc stability of the structures in
the vicinity including the Wadiaji Atash Behram. The petitioners' state that the conduct of
respondents 1 to 4 is arbitrary and violates petitioners' rights under Article 14 of the Constitution of
India. Respondents 1 to 4 are providing vague and unsatisfactory response to the communications
made and issues raised from time to time. The petitioners have placed relevant correspondence on
record. On 23rd May, 2018 the Division Bench (Vacation Court) passed an order. Clause-5 of the
ad-interim order reads as under:-
"v. The statement made by the learned Advocate appearing for Respondent No.4 that
until next date of hearing, Respondent No.4 shall not carry out any drilling work
beyond the boundaries of Atash Behrams, is accepted. It is also clarified that
Respondent No. 1 to 4 shall not claim any equities in response to the submissions

made by the Petitioners seeking directions against Respondent Nos. 1 to 4 to realign

the metro rail construction."
22 wp_2890.18.j.doc
10. By an order dated 25th July, 2018 the Division Bench granted Rule on
interim-relief making it returnable on 6 th August, 2018. The operative portion of the
order passed by Division Bench Paragraph-17 reads as under:-
"(i) We appoint Veermata Jijabai Technological Institute, Mumbai as an expert

agency to perform following task:-
(A) Veermata Jijabai Technological Institute to examine the impact of the proposed
Metro work (including tunnelling and construction of the proposed Kalbadevi
station) both during its construction as well as operation of the Metro Rail:-
(a) On the structural safety of the Wadiaji and Anjuman Atash Behram;
(b) On the water levels (including any contamination) in the wells situated within
both the above Atash Behrams;
(ii) We direct Veermata Jijabai Technological
23 wp_2890.18.j.doc
Institute to submit its report to this Court within a period of 10 days from the date on
which the operative part of this order is served in the office of the Veermata Jijabai
Technological Institute;
(iii) If it is necessary to enter the premises of the subject Atash Behrams, Veermata
Jijabai Technological Institute will do so after giving advance notice in writing to the
Trustees;
(iv) Veermata Jijabai Technological Institute will ensure that the experts who enter
the premises of Atash Behrams and their colleagues/assistants are the persons
practicing Zoroastrian faith as only such persons are allowed to enter the premises;

(v) Veermata Jijabai Technological Institute will submit two copies of the report to
the Prothonotory & Senior Master of this Court within a time fixed as aforesaid and
also provide copies thereof to the advocates for the Petitioners and the 4th
Respondent;
24 wp_2890.18.j.doc
(vi) The learned Senior Counsel appearing for
the Petitioners states on instructions that initially the Petitioners will bear the costs
and charges payable to the Veermata Jijabai Technological Institute subject to further
orders which may be passed in the Writ Petition. We accept the statement;
(vii) The Veermata Jijabai Technological Institute is, therefore, free to raise a bill and
submit it to the Petitioners and that the Petitioners shall make immediate
arrangement for payment of necessary amount;
(viii) There will be ad-interim relief in terms of the statement of the 4th Respondent
recorded in clause (v) of paragraph 6 of the order dated 23rd May 2018;
(ix) Ad-interim relief will operate for the time being till 8th August 2018;
(x) We direct both the Central Government and
25 wp_2890.18.j.doc
the State Government to file a Reply making its stand very clear on the challenge
involved in the Petition;
(xi) The Reply shall be filed on or before 4th August 2018. In any event, even if such
Affidavit in Reply is not filed by both the Governments, they will make their stand
very clear on 6th August 2018, when the matter is taken up for hearing as to interim
relief;
(xii) Place the Petition at 3.00 p.m. on 6th August 2018 for hearing as to interim
relief;
(xiii) If the parties are desirous of filing additional Affidavits, the same shall be done
latest by 4th August 2018;
(xiv) We direct Veermata Jijabai Technological Institute and all concerned parties to
act upon an authenticated copy of the operative part of the order."
26 wp_2890.18.j.doc The aforesaid ad-interim relief granted still continues.
11. The petitioners filed affidavit of Scholar Priest in support of the contentions raised
in the petition. Affidavits of Petitioner No.1 and respondent No.5 are placed
separately on record.
Respondent No.5 states that Atash Behram is a composite whole comprising not just the
consecrated fire enthroned in the sanctum sanctorum but also includes, within its definition, the
entire premises of Atash Behram. It is stated that in case the tunnel were to be made beneath the
Atash Behram, the sanctum sanctorum would be considered to be on an elevated level and its
paivand or connection deemed to be lost. The spiritual circuits will be breached if the Metro tunnel
goes underneath. The proposed construction is in violation of customs, traditions, accepted
practices, beliefs, teachings and also the tenets prescribed by the religious scriptures of
Zoroastrians. The correspondence made to the Principal Secretary by Mr.Vada Dasturji,
Dr.Kaikhusroo M. Jamasp Asa is also placed on record.
27 wp_2890.18.j.doc
12. The petitioners have separately placed on record affidavits of Vada Dasturjis in support of its
submissions as stated above. The affidavit of Yazdi H.Desai, Chairman of the Board of Trustees of
the Bombay Parsi Panchayet is also on record. Affidavits of respondents 10, 11 and 12 in support of
the petition are also placed on record. Affidavit of respondent no.6 Burjor Hormusji Antia,
Secretary/Trustee of the Board of Trustees of the Zarthoshti Anjuman Atash Behram Trust on behalf
of respondents 5 to 9 in support of petitioners' case is on record. It states that tunnel below the
Atash Behram should be realigned by atleast 11 meters. The religious priest from different places in
the country/proposed Scholars have also placed their views on record supporting the petitioners'
case.
13. Respondent No.4 filed affidavit-in-reply dated 26 th June, 2018 through Shantaram Dalvi, DGM
(Civil). The deponent 28 wp_2890.18.j.doc states that construction of the MML-3 is being carried
out by respondent no.4 after exercising the extensive due diligence. Paragraph-7 of the
affidavit-in-reply reads as under:
" 7. That the construction of the MML-3 is being carried out by the Respondent No.4
after exercising extensive due diligence. A detailed protocol has been laid down for
the protection of heritage buildings such as the Atash Behrams and other buildings
from the impacts of tunneling and excavation works. The subject buildings are
assessed and categorized based on the structural health of the building. In cases
where the health of the structure is precarious, protection and mitigation measures
are undertaken and continuous monitoring is undertaken during construction. A
copy of the report titled "Approach to Protection of Heritage (and other) Buildings 29

wp_2890.18.j.doc from Impacts of Tunneling and Excavation Works"
is attached hereto and marked as Annexure-2.
That as per the Building Condition Survey Report (hereinafter referred to as "BCS
report"), the Anjuman Atash Behram is classified as 'Slight', (i.e. Building with
Moderate non-structural cracks, severe non-structural cracks and presence of water
seepage.) Further the BCS report for Wadiaji Atash Behram classifies it as 'Moderate'
building category, (i.e. Building with minor, sporadic spalled concrete and presence
of water seepage). It is stated that although 280 meters of tunneling work has been
undertaken in the Kalbadevi area by Respondent No.4 underneath buildings
categorized as "Severe", (i.e. Building with Major extensive spalled concrete, bulging
of structural and load bearing elements, exposure of reinforcement bars of columns
and beams and 30 wp_2890.18.j.doc presence of water seepage), and "Very Severe"
(i.e.
Building with Deteriorated structural/load bearing elements, heavily exposed

reinforcement in columns and beams of framed structures, deflected/tilted and
propped structural elements and water leakages) as per the BCS report, no data
recording settlements, tilt or change in the crack width with respect to such buildings
have been recorded. Further, the same construction techniques have been employed
in various areas of Mumbai city without any adverse incidents. It is also pertinent to
note that in spite of repeated requests, Respondent No. 10 to 12, being Trustees of the
Hormasji Bomanji Wadia Fire Temple Charity Fund, have restrained Respondent No.
4 from undertaking Building Condition Survey through a Parsi contractor or
installing monitoring instruments within the premises. It is in the 31
wp_2890.18.j.doc interest of all concerned the such surveys, assessments and
scientific monitoring be carried out. Such exercises would present the likelihood of
any prospective damage. In light of the facts stated hereinabove, it is apparent that
the Petitioners have relied on mere speculations and not actual facts to state that the
construction of MML-3 threatens the structural integrity of the Atash Behrams. This
contention has been dealt with more elaborately below.
14. As regards the contentions raised in Paragraphs 9 to 13 of the petition, the respondent in
Paragraph-17 of the affidavit-in- reply contends as under:-
"17. With regards to Paragraph 9 to 13 of the said Petition, the Petitioners must be
put to strict proof regarding the contents of the said paragraph.
32 wp_2890.18.j.doc It is humbly submitted that the Petitioners have failed to

establish the fact that if the tunnel is allowed to pass beneath the premises of the
Atash Behrams, an essential and integral part of the Zoroastrian faith would be
defeated. It is submitted that although the authority cited by the Petitioners, being
"The Religious Ceremonies and Customs of the Parsees by Dr. Jivanji Jamshedji

Modi" prescribes the rituals of consecrating the holy fire at an Atash Behram in
exhaustive detail (Exhibit-D of the Petition), including the final enthronement of the
holy fire, no reference has been made by the author which would mandate that the
passage of a tunnel beneath the premises of an Atash Behram would defile the
sanctity of the holy fire.
b. It is humbly submitted that the 'Karshas' referred to in paragraph 11 of the Petition

are explained in the "The Religious Ceremonies and Customs of the Parsees by Dr.
Jivanji Jamshedji Modi" (2nd Ed.; Jehangir B. Karani's Sons; Bombay). The author
defines 'Karshas' as "trench or a furrow". It is further stated by the author that, "At
times, sacred or consecrated things or 33 wp_2890.18.j.doc materials are to be kept,
for the time being, within a limited space or enclosure, so that persons other than the
officiating priests may not come into contact with them. The person in charge of the
things, placing the things on the ground, draws round it a temporary circle, trench or
furrow. Suppose it is the consecrated urine or water that he carries and in travelling,
he has to place these things aside for a time. Then, he places them on the ground and
immediately draws, with a nail, a circle or a furrow or trench round it. It need not be
very deep. This process, viz., placing the things within the circle so formed, indicates,
that it is free from the contact of other undesirable persons or things." Thus, it is clear
from the portion cited from the aforementioned book that 'Karshas' are in fact
trenches drawn on the ground surrounding a consecrated object so as to indicate that
the article placed within the 'Karsha' is free from contact from other undesirable
persons/objects. c. Considering the aforementioned definition and function of a
'Karsha', it cannot be said that a tunnel passing 60-65 ft. below the ground level will
breach a 'Karsha' and therefore defile the sanctity 34 wp_2890.18.j.doc of all that is
placed within the same. Copies of the relevant pages from 'The Religious Ceremonies
and Customs of the Parsees by Dr. Jivanji Jamshedji Modi" are annexed hereto and
marked as Annexures-3. It thus appears that the 'Karshas' mark the boundary of the
objects or areas they try to protect. These boundaries do not preclude the High
Priests from entering the area enclosed. There is no reference that seems to suggest
that the 'Karshas' extend indefinitely under the surface of the earth, nor is there any
reference to suggest that they are intended to so extend beneath the marked area in
order to protect any 'link' according to the Petitioners which exist in the ceremonial
fire in the Fire Temple and the fires that burn inside the earth. The Petitioners have
also not shown any basis which supports the contention that the fire which is ignited
after following the required rituals is connected to subterranean fires beneath the
surface or that the Atash Behram is required to be in constant connection with any
electromagnetic field for receiving vibrations. In any case, assuming, though not
admitting, that there exits 35 wp_2890.18.j.doc some basis in the religious texts,
such belief or any practice related thereto cannot be understood to constitute the
essence of Zoroastrian faith, as it will at best be understood to be a belief or practice.
The Right to Religion contained in Articles 5 and 26 is held to extend its protection of
only those religious practices without which a given religion would lose its specific
identifiable character. This respondent submits that the questions to be asked are:

i. would a tunnel passing below the Fire Temples destroy the character of fire that is
kept in the temple rendering it to be no longer a sacred object; and ii. Will the
underground tunnel alter or destroy the character of Zoroastrian religion that it will
no longer be recognizable as the religion that is in practice since its inception.
d. It is respectfully submitted that the Petitioners have failed to prove that the
passage of the metro tunnel underneath the premises of the Atash Behrams would
lead to destruction of an essential practice of the Zoroastrian faith which destroys the
very religions itself and therefore, the 36 wp_2890.18.j.doc submissions of the
Petitioners in the aforementioned paragraph lack any merit."
The deponent submits that there is no reason to conclude that the minuscule physical vibrations
emanate from metro line would interfere with the spiritual vibrant emanating from the holy fire
housed in the two Atash Behrams. The deponent states that water levels of the Atash Behrams have
been fluctuating inspite of the fact that no metro construction had been undertaken in the area. The
petitioner failed to bring on record any material to suggest that tunnel at 60-65 ft. depth passing
basalt rock layer could affect wells which are nearly 42 to 46 feet away in top soil layer. It is
contended that as directed by High Court vide order dated 23rd May, 2018 a Committee of 5
Directors of respondent no.4 accordingly heard the parties including the petitioners, their Advocate,
Architects nominated by the petitioners, High Priests of various Atash Behrams and Trustees of the
Atash Behrams. During the hearing the 37 wp_2890.18.j.doc Attendees put forth their concern from
various standpoints with regards to MML-3. They also submitted an alternate plan for alignment of
the upline of the MML-3. After considering the entire record it was concluded that the shift in
tunnel proposed by the Architects nominated by the petitioners was not feasible. However, the
Committee took note that upper track could be shifted from 3.5 meters towards the JSS road from
its presently proposed location due to reduction in size of the central NATM tunnel of station
structure. According to respondents the concern of the petitioners and the interested parties would
get addressed accordingly. It is submitted by the respondents that they had issued notification dated
12th December, 2011 calling for suggestions and objections as a part of the Social and
Environmental Impact Assessment Study regarding MML-3. Further, a Public Consultation notice
on 5th April, 2012 inviting suggestions and objections related to MML-3 project was issued by the
Respondent No.4. A public hearing was scheduled on 11 th 38 wp_2890.18.j.doc April, 2012. It is
submitted that no representations were made as per the notifications or at the public meeting by the
petitioners or the Trustees.
15. The Respondents have annexed relevant communications and correspondence as referred in the
affidavit.
16. The conclusion drawn by the Committee of five Directors of the MMRCL as directed by the High
Court vide order dated 23 rd May, 2018 is also placed on record. The conclusions drawn by the
Committee are as under:-
"The Committee in the deliberation above has dealt with all the issues that were
brought before it in the hearing dated 8 th June, 2018 in the petition and also in the

written submission dated 11th June, 2018. Committee has left out any deliberation on
the legal aspects as a matter pending before the Hon'ble High Court.
39 wp_2890.18.j.doc The Committee considers that, while the concept plans given by
the Petitioners are not feasible, the alternative plan of the MMRC for the Kalbadevi
station would allow shifting of upper track by 3.5 m towards JSS road from its
present location. This will reduce the extent of tunnel alignment within Wadiaji Atash
Behram and the Anjuman Atash Behram by similar margins. The Report of the
Committee is submitted in pursuant to directions of the High Court and vide order
dated 23rd May, 2018."
17. The petitioners have further placed an affidavit of Ervad, Dr. Parvez Minocher Bajan in support
of their contentions and translation from Gujarati to English of Article dated 27 th February, 1955
from 'Parsi Avaz'. Petitioners also placed written material from Ervad Phiroze S. Masani, religious
alumnus and opinion report of Architect Hafeez Contractor and other 40 wp_2890.18.j.doc
Consultants, photographs, drawings, plans in support of their contentions.
18. The arguments of Mr. Seervai, the learned Senior Counsel for the petitioners on structural aspect
are as under: The learned Senior Counsel submitted that the Pre construction building condition
survey Report of respondent no.4 dated 14 th March, 2017 records that structural health of
H.B.Wadiaji Atash Behram is generally unsatisfactory. The distance between H.B.Wadia Atash
Behram and proposed Kalbadevi metro station is approximately 5 meters. The controlled blasting
method will more severely and directly impact the structural stability of the Wadiaji Atash Behram.
Some of the controlled blasting operations will actually be carried out underneath the Wadiaji Atash
Behram. This significantly increases the risk of serious damage to the structure of Wadiaji Atash
Behram. Respondent no.4 has shared with the petitioners diagrams/plans, depicting 41
wp_2890.18.j.doc the NATM technique which involves "controlled blasting". The Counsel submitted
that even when an explosion is planned in a controlled manner, serious accidents can happen.
Alternate plan of respondent no.4 shows that solution is still possible for shifting the Kalbadevi
station. The Counsel has referred to Articles showing damaged building, photographs and other
material on record.
The Wadia building which is situated right next to the H.B.Wadiaji Atash Behram and which is also
188 years old, developed huge cracks on 11th July, 2018. It is significant to note that lower tunnel
crossed the concerned structure around 14 th July, 2018 and cracks developed on 11 th July, 2018.
The respondents were informed of this and the Municipal and MHADA authorities also through
their Engineers on 11 th and 12th July, 2018 inspected the damage to the said building and reported
the matter to their seniors to take further action. Respondent No.4 also conducted a
pre-construction Building 42 wp_2890.18.j.doc Condition survey and prepared a report.
19. The learned Senior Counsel has referred to VJTI report which was submitted consequent to
order passed by this Court on 25th July, 2018. The learned Senior Counsel submitted that no
independent analysis has been done by VJTI which defeats the entire purpose for which it was
appointed. The report is merely a compilation of data provided and analysis done by respondent

no.4 Consultant/Contractors. The submissions made by the petitioners were completely ignored.
The conclusions arrived at by the VJTI are based on visual inspection without carrying out any
standard test. As per the AASHTO guidelines, the permitted limits of PPV for Wadiaji Atash Behram
which is a heritage structure is 2.54 mm/sec. The VJTI concluded that analysis performed by
respondent no.4 shows that the maximum Peak Particle Velocity ("PPV"), which the Wadiaji Atash
Behram would experience is 1.956 mm/sec. According to learned Counsel 43 wp_2890.18.j.doc the
entire PPV analysis of VJTI is flawed.
20. The learned Senior Counsel submitted that the proposed location of Kalbadevi Station at such a
closed proximity to a heritage structure and in particular controlled blasting, secant piling activities
would result in the Wadiaji Atash Behram being subjected to a real and serious threat of the
structural damage. In the submissions of the Counsel due to tunneling work cracks developed in Jer
Mahal buildings and other old buildings in the surrounding area is an indication that tunneling
work under the heritage structure under Atash Behram shall not be carried out at any cost.
21. As regards the VJTI Report, the Counsel further submitted that report is based on material
supplied by respondent no.4. There is no independent assessment made by VJTI. The data relied
upon by the VJTI has also been questioned by the Counsel.
44 wp_2890.18.j.doc The Counsel has further submitted that there are realignment options open
but the respondent no.4 and other authorities are not interested into other options. The
Respondents have adopted an adamant stand which is not in the interest of a minority community,
its sentiments, religious feelings and established practices and beliefs. The learned Counsel made it
clear that the Parsee community is a minority minuscule community in the country is not against
the the public interest of running a metro project in the City of Mumbai. The only concern as shown
by the community is that project shall not be implemented by causing loss and damage to the
structure and defiling the faith and sentiments of the Parsee community.
22. The learned Counsel vehemently raised issues based on Article 25 of the Constitution of India.
The Counsel submitted that Atash Behrams are fundamental to Zoroastrian religion and core beliefs
associated with consecration and preservation of 45 wp_2890.18.j.doc spiritual sanctity of Atash
Behrams which are integral of Zoroastrianism. The petitioners have put forth certain core beliefs by
Zoroastrian religion in their pleadings as part of fundamental rights under Article 25 of the
Constitution. The learned Counsel submitted that fire is central focus of the Zoroastrian religion. It
has been documented that having arrived in India the Iranian migrants knew well that without the
existence of Atash Behrams in India, the devotional life of Zoroastrians cannot be maintained over a
long period of time. The process of consecration of Atash Behram is a complicated one. The belief of
laying down spiritual circuits while consecrating an Atash Behram is also fundamental to the
Zoroastrian religion. The Karshas extend to cover the entire premises of Atash Behram and also
extend below the ground. The Counsel submitted that Pav mahal ceremonies cannot be performed
on elevated place. Water from a well plays a significant role in the ceremonies performed by the
community 46 wp_2890.18.j.doc priests in Atash Behram. Pure, clean water from wells within the
Atash Behram premises are used for various ceremonies. Water drawn from pipe is not permitted. If
tunnel is allowed to be bored, it would result in desecration of Atash Behrams and wells are likely to

dry. The spiritual aspects and beliefs form an essential and integral part of the Zoroastrian religion.
The same form an inextricable part of the belief system of the religion. The Counsel submits that
petitioners are placing reliance on provisions of Article 25 of the Constitution of India.
23. The learned Counsel placed reliance on affidavits filed by respondent no.5 Vada Dastruji
Dr.Kaikhusroo M.Jamasp, Scholar Priests, relevant extracts outline of Parsi History by Hormazdyar
Kayoji Mirza, writings of "Religious Ceremonies and Customs of the Parsees" by J.J. Modi on
Karshas.
24. The learned Senior Counsel Seervai submitted that the 47 wp_2890.18.j.doc right to have a
metro line cannot be termed as fundamental right under Article 21 of the Constitution of India. The
Counsel submitted that even if it is held that right to Metro is fundamental right then said right is to
be balanced with a fundamental right under Article 25. Total extinguishing of a right is not
balancing. If the metro tunnel is allowed to run only along the proposed alignment directly under
the Atash Behrams it will lead to trampling upon the fundamental rights. The petitioners have not
remotely suggested that Mumbai Metro project should not be proceeded with. They have simply
contended that a small shift merely by four meters more would result in shifting of tunnel outside
the Atash Behram and would resolve the spiritual concerns under Article 25 raised in the petition.
The Counsel, therefore, urged that a balance has to be drawn between these rights with a solution
which protects and preserves the fundamental rights and does not further one right at the cost of
another. The petitioners have at all times been 48 wp_2890.18.j.doc proactive; and made
innumerable proposals to resolve the matter but the respondent no.4 has rejected their proposals in
an arbitrary and unreasonable manner. The Counsel, therefore, submitted that the realignment is
technically possible and feasible option which the Metro authorities ought to have considered and
they can consider even now as the petitioners have proposed multiple options for carrying out
realignment.
Learned Senior Counsel Seervai relied upon following decisions :
1. Sri Venkatamana Devaru Vs. The State of Mysore and others, AIR 1958 SC 255. Paragraphs 24,25
and 29 read as under:-
"24. Construing Art. 25(2)(b) in the light of Art. 17, it is arguable that its object was
only to permit entry of the excluded classes into temples which were open to all other
classes of Hindus, and that that would exclude its application to denominational
temples. Now, denominational 49 wp_2890.18.j.doc temples are founded, ex
hypothesis for the benefit of particular sections of Hindus, and so long as the law
recognizes them as valid-and Art. 26 clearly does that-what reason can there be for
permitting entry into them of persons other than those for whose benefit they were
founded? If a trustee diverts trust funds for the benefit of persons who are not
beneficiaries under the endowment, he would be committing a breach of trust, and
though a provision of the Constitution is not open to attack on the ground that it
authorizes such an act, is it to be lightly inferred that Art. 25(2)(b) validates what
would, but for it, be a breach of trust and for no obvious reasons of policy, as in the

case of Art. 17? There is, it should be noted, a fundamental distinction between
excluding persons from temples open for purposes of worship to the Hindu public in
general on the ground that they belong to the excluded communities and excluding
persons from denominational temples on the ground that they are not objects within
the benefit of the foundation. The former will be hit by Art. 17 and the latter protected
by Art. 26, and it is the contention of the appellants that Art. 25(2) 50
wp_2890.18.j.doc
(b) should not be interpreted as applicable to both these categories and that it should
be limited to the former. The argument was also advanced as further supporting this
view, that while Art. 26 protects denominational institutions of not merely Hindus
but of all communities such as Muslims and Christians, Art. 25(2)(b) is limited in its
operation to Hindu temples, and that it could not have been intended that there
should be imported into Art. 26(b) a limitation which would apply to institutions of
one community and not of others. Article 26, it was contended, should therefore be
construed as falling wholly outside Art. 25(2)(b), which should be limited to
institutions other than denominational ones.
25. The answer to this contention is that it is impossible to read any such limitation
into the language of Art. 25 (2)(b). It applies in terms to all religious institutions of a
public character without qualification or reserve. As already stated, public
institutions would mean not merely temples dedicated to the public as a whole but
also those founded for the benefit of sections thereof, and 51 wp_2890.18.j.doc
denominational temples would be comprised therein. The language of the Article
being plain and unambiguous, it is not open to us to read into it limitations which are
not there, based on a priori reasoning as to the probable intention of the Legislature.
Such intention can be gathered only from the words actually used in the statute; and
in a Court of law, what is unexpressed has the same value as what is unintended. We
must therefore hold that denominational. institutions are within Art. 25 (2) (b).
29. The result then is that there are two provisions of equal authority, neither of them
being subject to the other. The question is how the apparent conflict between them is
to be resolved. The rule of construction is well settled that when there are in an
enactment two provisions which cannot be reconciled with each other, they should be
so interpreted that, if possible, effect could be given to both. This is what is known as
the rule of harmonious construction. Applying this rule, if the contention of the
appellants is to be accepted, then Art. 25(2)(b) will become wholly nugatory in its 52
wp_2890.18.j.doc application to denominational temples, though, as stated above,
the language of that Article includes them. On the other hand, if the contention of the
respondents is accepted, then full effect can be given to Art. 26(b) in all matters of
religion, subject only to this that as regards one aspect of them, entry into a temple
for worship, the rights declared under Art. 25(2)(b) will prevail. While, in the former
case, Art. 25(2)(b) will be put wholly out of operation, in the latter, effect can be given
to both that provision and Art. 26(b). We must accordingly hold that Art. 26(b) must

be read subject to Art. 25(2)(b)."
2. The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt, AIR 1954 SC 282. Paragraphs-17 to 19 read as under:-
"17. It will be seen that besides the right to manage its own affairs in matters of
religion which is given by cl. (b), the next two clauses of Art. 26 guarantee to a
religious denomination the 53 wp_2890.18.j.doc right to acquire and own property
and to administer such property in accordance with law. The administration of its
property by a religious denomination has thus been placed on a different footing
from the right to manage its own affairs in matters of religion. The latter is a
fundamental right which no Legislature can take away, where as the former can be
regulated by laws which the legislature can validly impose. It is clear, therefore, that
questions merely relating to administration of properties belonging to a religious
group or institution are not matters of religion to which cl. (b) of the Article applies.
What then are matters of religion? The word "religion" has not been defined in the
Constitution and it is a term which is hardly susceptible of any rigid definition. In an
American case it has been said : "that the term 'religion' has reference to one's views
of his relation to his Creator and to the obligations they impose of reverence for His
Being and character and of obedience to His will. It is often confounded with 'cultus'
of form or worship of a particular sect, but is distinguishable from the latter." We do
not think that the above 54 wp_2890.18.j.doc definition can be regarded as either
precise or adequate. Articles 25 and 26 of our Constitution are based for the most
part upon Art 44(2) of the Constitution of Eire and we have great doubt whether a
definition of 'religion' as given above could have been in the minds of our
Constitution- makers when they framed the Constitution. Religion is certainly a
matter of faith with individuals or communities and it is not necessarily theistic.
There are well known religions in India like Buddhism and Jainism which do not
believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis
in a system of belief or doctrines which are regarded by those who profess that
religion as conductive to their spiritual well being, but it would not be correct to say
that religion is nothing else but a doctrine or belief. A religion may not only lay down
a code of ethical rules for its followers to accept, it might prescribe rituals and
observances, ceremonies and modes of worship which are regarded as integral parts
of religion, and these forms and observances might extend even to matters of food
and dress.
55 wp_2890.18.j.doc
18. The guarantee under our Constitution not only protects the freedom of religious
opinion but it protects also acts done in pursuance of a religion and this is made clear
by the use of the expression "practice of religion' in Art. 25. Latham, C. J. of the High
Court of Australia while dealing with the provision of S.116 of the Australian
Constitution which 'inter alia' forbids the Commonwealth to prohibit the 'free

exercise of any religion' made the following weighty observations :
"It is sometimes suggested in discussions on the subject of freedom of religion that,

though the civil government should not, interfere with religious 'opinions', it
nevertheless may deal as it pleases with any 'acts' which are done in pursuance of
religious belief without infringing the principle of freedom of religion. It appears to
me to be difficult to maintain this distinction as relevant to the interpretation of S.
116. The Section refers in express terms to the 'exercise' of religion, and 56
wp_2890.18.j.doc therefore it is intended to protect from the operation of any
Commonwealth laws acts which are done in the exercise of religion. Thus the Section
goes far beyond protecting liberty of opinion. It protects also acts done in pursuance
of religious belief as part of religion".
19. These observations apply fully to the protection of religion as guaranteed by the
Indian Constitution. Restrictions by the State upon free exercise of religion are
permitted both under Arts. 25 and 26 on grounds of public order, morality and
health. Clause (2) (a) of Art. 25 reserves the right of the State to regulate or restrict
any economic, financial, political and other secular activities which may be associated
with religious practice and there is a further right given to the State by sub-cl.
(b).under which the State can legislate for social welfare and reform even though by
so doing it might interfere with religious practices. The learned Attorney-General lays
stress upon cl (2) (a) of the Article and his contention is that all secular activities,
which may 57 wp_2890.18.j.doc be associated with religion but do not really
constitute an essential part of it, are amenable to State regulation."
3. Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853. Paragraph- 33
read as under:-
"33. The content of Arts. 25 and 26 of the Constitution came up for consideration
before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Matt (1); Mahant Jagannath Ramanuj
Das v. The State of Orissa (2); Sri Venkatamana Devaru v. The State of Mysore (3);
Durgah Committee, Ajmer v. Syed Hussain Ali (4) and several other cases and the
main principles underlying these provisions have by these decisions been placed
beyond controversy. The first is that the protection of these articles is not limited to
matters of doctrine or belief, they extend also to acts done in pursuance of religion
and therefore contain a guarantee for rituals and observances, ceremonies and modes
of worship 58 wp_2890.18.j.doc which are integral parts of religion. The second is
that what constitutes an essential part of a religious or religious practice has to be
decided by the courts with reference to the doctrine of a particular religion and
include practices which are regarded by the community as a part of its religion."
4.Tilkayat Shri Govindlalji Maharaj etc. Vs. State of Rajasthan and Ors. AIR 1963 SC 1638.
Paragraphs-55 to 57 read as under:-

"55. . Articles 25 and 26 constitute the
fundamenta1 rights to freedom of religion
guaranteed to the citizens of this country. Article 25(1) protects the citizen's fundamental right to
freedom of conscience and his right freely to profess, practice and propagate religion. The protection
given to this right is, however, not absolute. It is subject to public order, morality and health as Art.
25(1) itself denotes. It is also subject to the laws existing or future which are specified in Art. 25(2).
Article 26 guarantees freedom of the 59 wp_2890.18.j.doc denominations or sections thereof to
manage their religious affairs and their properties. Article 26(b) provides that subject to public
order, morality and health, every religious denomination or any section thereof shall have the right
to manage its own affairs in matters of religion; and Art. 26(d) lays down a similar right to
administer the property of the denomination in accordance with law. Article 26(c) refers to the right
of the denomination to own and acquire movable and immovable property and it is in respect of
such property that clause (d) makes the provision which we have just quoted. The scope and effect of
these articles has been considered by this Court on several occasions. The word "religion" used in
Art. 25(1), observed Mukherjea, J." speaking for the Court in the case of the Commissioner, Hindu
Religious Endowments, Madras", is a matter of faith with individuals and communities and it is not
necessarily theistic. It undoubtedly has its basis in a system of beliefs or doctrines which are
regarded by those who profess that religion as conducive to their spiritual well being, but it is not
correct to say that religion is nothing else but a 60 wp_2890.18.j.doc doctrine or belief. A religion
may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals
and observances, ceremonies and modes of worship which are regarded as integral parts of religion
and these forms and observances might extend even to matters of food and dress."
56. In Shri Venkataramana Devaru Vs. State of Mysore, Venkatarama Aiyar J. observed "that the
matters of religion in Art. 26(b) include even practices which are regarded by the community as part
of its religion."
It would thus be clear that religious practice to which Art. 25(1) refers and affairs in matters of
religion to which Art. 26(b) refers, include practices which are an integral part of the religion itself
and the protection guaranteed by Article 25(1) and Art. 26 (b) extends to such practices.
57. In deciding the question as to whether a given religious practice is an integral part of the religion
or not, the test always would be whether it is regarded as such by the community following the 61
wp_2890.18.j.doc religion or not. This formula may in some cases present difficulties in its
operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one
section of the community claims that while performing certain rites white dress is an integral part of
the religion itself, whereas another section contends that yellow dress and not the white dress is the
essential part of the religion, how is the Court going to decide the question ? Similar disputes may
arise in regard to food. In cases where conflicting evidence is produced in respect of rival
contentions as to competing religious practices the Court may not be able to resolve the dispute by a
blind application of the formula that the community decides which practice is an integral part of its
religion, because the community may speak with more than one voice and the formula would,
therefore, break down. This question will always have to be decided by the Court and in doing so,

the Court may have to enquire whether the practice in question is religious in character and if it is,
whether it can be regarded as an integral or essential part of the religion, and the finding of the
Court on such an 62 wp_2890.18.j.doc issue will always depend upon the evidence adduced before it
as to the conscience of the community and the tenets of its religion. It is in the light of this possible
complication which may arise in some cases that this Court struck a note of caution in the case of the
Durgah Committee, Ajmer v. Syed Hussain Ali, and observed that in order that the practices in
question should be treated as a part of religion they 'must be
-regarded by the said religion as its essential and integral part ; otherwise even purely secular
practices which are not an essential or an integral part of religion are apt to be clothed with a
religious form and may make a claim for being treated as religious practices within the meaning of
Art. 26."
5.The Durgah Committee, Ajmer and another Vs. Syed Hussain Ali and others, AIR 1961 SC 1402.
Relevant portion of Paragraph-11 read as under:-
"11. Thus considered the High Court came to the conclusion that the several sections
challenged by the respondents in their writ petition are ultra 63 wp_2890.18.j.doc
vires. It has held that S. 2(b)(v) violates Art. 19(1)
(f), S. 5 violates Art. 26, S. 11(f) Arts. 19(1)(g) and 25(1), Ss. 11 (h) and 13(1) Art. 25, S.
14 Art. 19(1)
(f) and Ss. 16 and 18 Art. 14 read with Art. 32. Having found that these sections are
ultra vires the High Court has issued an order restraining the appellants from
enforcing the said sections. In regard to Section 5 in particular the High Court has
found that the said section is ultra vires inasmuch as it lays down that the the
Committee shall consist of Hanafi Muslims without further restricting that they shall
be of the Chishtia Order believing in the religious practices and ritual in vogue at the
shrine. It may be added that since Section 5 which contains the key provision of the
Act has thus been struck down, though in a limited way, the whole of the Act has in
substance been rendered inoperative."
6.A.S. Narayana Deekshitulu Vs. State of A.P. and others, (1996) 9 SCC 548. Paragraphs-75, 85 & 86
read as under:-
"75. The Preamble of the Constitution sets out secularism, equality, fraternity, liberty
of worship and faith and dignity of persons as integral scheme 64 wp_2890.18.j.doc
of the Constitution in its march to establish an egalitarian social order. Fundamental
Rights and Directive Principles seek to resuscitate them. In S.R. Bommai v. Union of
India a larger Bench of none Judges has held that secularism is basic structure of the
Constitution. Religious tolerance and equal treatment of all religious groups and
protection of life, property and place of worship are essential parts of secularism.
Profession, action and conduct of persons should be consistent with secularism and

they need to be measured in that perspective.
85. Articles 25 and 26 deal with and protect religious freedom. Religion as used in
these articles must be construed in its strict and etymological sense. Religion is that
which binds a man with his Cosmos, his Creator or super force. It is difficult and
rather impossible to define or delimit the expressions 'religion' or "matters of
religion" used in Articles 25 and 26. Essentially, religion is a matter of personal faith
and belief of personal relations of an individual with what he regards as Cosmos, his
Maker or his Creator which, he believes, regulates the existence of 65
wp_2890.18.j.doc insentient beings and the forces of the universe. Religion is not
necessarily theistic and in fact th ere are well-known religions in India itself like
Buddhism and Jainism which do not believe in the existence of God. In India,
Muslims believe in Allah and have faith in Islam; Christians in Christ and
Christianity; Parsis in Zoroastrianism; Sikhs in Guru Granth Sahib and teachings of
Guru Nanak Devji, its found, which is a facet of Hinduism like Brahmo Samaj, Arya
Samaj etc.
86. A religion undoubtedly has its basis in a system of beliefs and doctrine which are
regarded by those who profess religion to be conducive to their spiritual well-being. A
religion is not merely an opinion, doctrine or belief. It has outward expression in acts
as well. It is not every aspect of religion that has been safeguarded by Articles 25 and
26 nor has the Constitution provided that every religious activity cannot be interfered
with Religion, therefore, cannot be construed in the context of Articles 25 and 26 in
its strict and etymological sense. Every religion must believed in a conscience and
ethical and moral precepts. Therefore, whatever binds a man to his own 66
wp_2890.18.j.doc conscience and whatever moral or ethical principles regulate the
lives of men believing in that theistic, conscience or religious belief that alone can
constitute religion as understood in the Constitution which fosters feeling of
brotherhood, amity, fraternity and equality of all persons which find their foothold in
secular aspect of the Constitution. Secular activities and aspects do not constitute
religion which brings under its own cloak every human activity. There is nothing
which a man can do, whether in the way of wearing clothes or food or drink, which is
not considered a religious activity. Every mundane or human activity was not
intended to be protected by the Constitution under the guise of religion. The
approach to construe the protection of religion or matters of religion or religious
practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by
the very nature of things, it would be extremely difficult, if not impossible, to define
the expression religion or matters or religion or religious belief or practice."
7.Commissioner of Police and others Vs. Acharya Jagadishwarananda Avadhuta and another,
(2004) 12 SCC 67 wp_2890.18.j.doc
770. Paragraph-9 reads as under:-

"9.The protection guaranteed under Articles 25 and 26 of the Constitution is not

confined to matters of doctrine or belief but extends to acts done in pursuance of
religion and, therefore, contains a guarantee for rituals, observances, ceremonies and
modes of worship which are essential or integral part of religion. What constitutes an
integral or essential part of religion has to be determined with reference to its
doctrines, practices, tenets, historical background, etc. of the given religion. (See
generally the Constitution Bench decisions in Commr., H.R.E.v.Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt, Sardar Syedna Taher Saifuddin Saheb v.State of
Bombay and Seshammalv.State of T.N. regarding those aspects that are to be looked
into so as to determine whether a part or practice is essential or not.) What is meant
by "an essential part or practices of a religion" is now the matter for elucidation.
Essential part of a religion means the core beliefs upon which a religion is founded.
Essential practice means those practices that are fundamental to follow a religious
belief. It is upon 68 wp_2890.18.j.doc the cornerstone of essential parts or practices
that the superstructure of a religion is built, without which a religion will be no
religion. Test to determine whether a part or practice is essential to a religion is to
find out whether the nature of the religion will be changed without that part or
practice. If the taking away of that part or practice could result in a fundamental
change in the character of that religion or in its belief, then such part could be treated
as an essential or integral part. There cannot be additions or subtractions to such part
because it is the very essence of that religion and alterations will change its
fundamental character. It is such permanent essential parts which are protected by
the Constitution. Nobody can say that an essential part or practice of one's religion
has changed from a particular date or by an event. Such alterable parts or practices
are definitely not the "core" of religion whereupon the belief is based and religion is
founded upon. They could only be treated as mere embellishments to the
non-essential (sic essential) part or practices."
8. Ratilal Panachand Gandhi Vs. State of Bombay and 69 wp_2890.18.j.doc others, AIR 1954 SC
388. Paragraph- 13 read as under:-
"13. Religious practices or performances of acts in pursuance of religious belief are as

much a part of religion as faith or belief in particular doctrines. Thus if the tenets of
the Jain or the Parsi religion lay down that certain rites and ceremonies are to be
performed at certain times and in a particular manner, it cannot be said that these
are secular activities partaking or commercial or economic, character simply because
they involve expenditure of money or employment of priests or the use of marketable
commodities. No outside authority has any right to say that these are not essential
parts of religion and it is not open to the secular authority of the State to restrict or
prohibit them in any manner they like under the guise of administering the trust
estate. Of course, the scale of expenses to be incurred in connection with these
religious observances may be and is a matter of administration of property belonging
to religious institutions; and if the expenses on these heads are likely to deplete the
endowed properties or 70 wp_2890.18.j.doc affect the stability of the institution,

proper control can certainly be exercised by State agencies as the law provides. We
may refer in this connection to the observation of Davar, J. in the case of - 'Jamshed
Ji. V. Soonabai', and although they were made in a case where the question was
whether the bequest of property by a Parsi testator for the purpose of perpetual
celebration of ceremonies like Muktad baj, Vyezashni, etc. which are sanctioned by
the Zoroastrian religion were valid charitable gifts, the observations, we think are
quite appropriate for our present purpose. "If this is the belief of the community",
thus observed the learned Judge, "and it is proved undoubtedly to be the belief of the
Zoroastrian community, - a secular Judge is bound to accept that belief - it is not for
him to sit in judgment on that belief, he has no right to interfere with the conscience
of a donor who makes a gift in favour of what he believes to be the advancement of
his religion and the welfare of his community or mankind".
These observations do, in our opinion, afford an indication of the measure of

protection that is given by Art. 26(b) of our Constitution."
71 wp_2890.18.j.doc
9. K. Guruprasad Rao Vs. State of Karnataka & ors.
(2013) 8 SCC 418.
10. Bijoe Emmanuel & ors. vs. State of Kerala & ors. (1986) 3 Supreme Court Cases 615.
11. Janab Salehbhai Saheb Safiyuddin vs. The Municipal Corporation of Gr. Bom. & ors. (1993 (3)
Bom. C.R. 282).
12. Sarla Mudgal (Smt.) President, Kalyani & ors. Vs. Union of India & ors. (1995) 3 Supreme Court
Cases 635.
13. Tata Cellular Vs. Union of India (1994) 6 Supreme Court Cases 651.
25. The learned Senior Counsel appearing for Mumbai Metro Rail Corporation, respondent no.4
submitted that the petitioners have based their arguments on two limbs;(i) Breach of their
fundamental rights under Article 25, and (ii) the issue concerning the structure. The arguments
relating to structure is subdivided into two parts; (i) the likelihood of damage to the existing
structure, and (ii) The petitioners' alternative proposals.
72 wp_2890.18.j.doc The Counsel submitted that consideration only of the breach of the petitioners'
right under Article 25 would not lead to a proper or correct solution. It must be borne in mind that
there are several rights that need to be balanced against each other. The proper approach to the case
would require the balancing of the rights of the petitioners against the rights of the rest of the
citizens. The other relevant aspect is the limitation of courts in passing judgment on technical
matters. This would be relevant while the Court would consider petitioners' submissions on

structural and technical aspects of the project and the alignment. The Counsel has further submitted
that arguments concerning fundamental rights could be considered in two parts (a) Fundamental
Rights versus Other Rights, and (2) The basis for assumption of the existence of Fundamental
Rights.
26. The learned Senior Counsel submitted that petitioners have been at pains to assert that they do
not complain of a 73 wp_2890.18.j.doc violation of Article 26 viz. The Fundamental Right to
manage their religious affairs. This attempt is no doubt to avoid several Supreme Court judgments
which, while dealing with the right under Article 26, spell out the limitations and requirements of
the larger right to Freedom of Religion. Even if Article 25 is considered in isolation, it must be
remembered that it forms a part of the scheme under the sub-chapter headed 'Right to Freedom of
Religion' which includes Articles 25,26,27 and 28. Reading Article 25 in its proper context would
indicate that not all religious rights can claim a constitutional protection which is extended only to
essential religious practices. The wide proposition that all religious practices were protected by
Article 25 as laid down in Shirur Math judgment has been significantly qualified to extend to
essential religious practices and laid down tests to identify them. The Petitioners' submission that its
right under Article 25 must prevail under all situations is, therefore, incorrect.
74 wp_2890.18.j.doc
27. The language of Article 25(1) indicates that it is subject to other provisions of this part. This
would naturally include Article 26 as well. Article 26 does not contain any such injunction. Article 25
will have to be read subject to other provisions of Part III of the Constitution which would include
not only Article 26, but such other Articles as Articles 14,15(2) to(4),16(2),17,21,21A,23 and 26. The
Counsel submitted that doctrine of harmonious construction has to be kept in mind to appreciate
that all rights under the Constitution have to be given their proper function. It is necessary to avoid
any interpretation that may cause conflict between two sets of Fundamental Rights.
28. The State has constitutional obligation to ensure that the citizen is not deprived of these benefits
and conveniences. Any right of the petitioners to practice of their religion cannot be to the negation
of the aforementioned rights of citizens.
75 wp_2890.18.j.doc
29. The Counsel submitted that the exercise of balancing seemingly conflicting rights also calls for
the application of the doctrine of Proportionality. The doctrine recognizes that no rights are
absolute, and ends of justice require attribution of proper proportion to different rights so as to give
them balanced existence.
30. The respondent does not accept the sweeping statements of the petitioners that their
Fundamental right under Article 25 is affected by the construction of the Metro Tunnel underneath
the Atash Behrams. According to respondents the petitioners must first establish that their
fundamental rights under Article 25 are affected by the building and operation of the Metro Rail.
The respondents contend that in order to bring their case within the ambit of right guaranteed by

Article 25, the petitioners would have to show that members of Zoroastrian faith in fact 'profess, 76
wp_2890.18.j.doc practice, propagate' these beliefs. Unless the propositions by the petitioners in
respect of practice and beliefs are established, the petitioners would not be entitled to seek
protection under Article
25. The Counsel submitted that petitioners have failed to place before this Court necessary material
in the shape of tenets, scriptures, documents to establish their rights. The petitioners submitted
affidavits, Articles, Writings of Scholar Priests from the community. But the petitioners have failed
to prove before the Court that such practices and beliefs are established one and essential feature of
the Zoroastrians. The burden was on the petitioners and they failed to discharge their burden. It is
submitted that except for evidence in the form of the statements in the affidavit, the petitioners have
not produced any evidence (scriptures, religious texts etc.) in support of the assertions. Although the
petitioners have brought on record a letter dated 8 th June, 2018, (pg 211 of the Petitioners' affidavit
dated 13 th June, 2018) addressed by Vada Dasturji Khurshed Dastoor (High 77 wp_2890.18.j.doc
Priest), the said High Priest has not filed any affidavit on oath to support the contentions of the
petitioners. The Counsel appearing has submitted in respect of material placed on record by the
petitioners as under:
"(a) As to the Affidavits of four High Priests of the Zoroastrian Parsi/Irani

Community (pg. 148-161)
(i) Except for evidence in the form of their own statements in the aforementioned
Affidavits that as per religious injunctions and customs, any construction underneath
the Atash Behrams would disrupt the uninterrupted connection of the sacred Fire
and the structure with Earth, and would breach the Karshas surrounding the
structures causing desecration of the Atash Behrams, the four High Priests have not
produced any evidence (scriptures, religious texts etc.) in support of these assertions.
(ii) Although the Petitioner has brought on record a letter dated 8th June, 2018 (Pg.
211 of the Petitioners' Affidavit dated 13 th June, 2018) addressed by Vada Dasturji
Khurshed 78 wp_2890.18.j.doc Dastoor (High Priest), the said High Priest has not
filed any Affidavit on oath to support the contentions of the Petitioners. Thus, it is not
correct that all High Priests have unanimously stated on Affidavit that construction of
tunnel underneath the Atash Behram would lead to desecration / defilement of the
structures. In any case the said letter does not prove the fact or their belief, or even
that it was widespread. The Affidavit of Mr. Ervad Dr. Parvez Monocher Bajan dated
11th July, 2018 (Pg. 497 in Rejoinder).
(i) The concerned Affidavit deals with the spiritual significance of a Karsha but does
not state anywhere that these Karshas extend below the surface of the Earth.
(ii) Further no basis in terms of religious texts, etc. is shown to support the statement
that if a tunnel passes underneath the Atash Behrams, it would lead to desecration of
the structure.

(iii) this Respondent is not disputing that the Karsha have spiritual significance but
contend that the Petitioners have not shown any proof in sacred texts that these
Karshas extend beneath 79 wp_2890.18.j.doc the earth's surface to the centre of the
earth. This Respondent also denies that any such connection would be breached if the
Metro Tunnel is constructed.
(b) An Article dated 27.02.1955 in "Parsi Avaz"
(i) This Article also deals with the spiritual significance of a Karsha but does not state
anywhere that these Karshas extend underneath the structure or that such Karshas
would be breached if the any construction activity is carried out underneath the
structure.
(ii) In any case the document is an article written in a journal / paper for readership
within the Zoroastrian community. It is at best an expression of the author's ideas or
beliefs. Without reference to some source in basic religious scriptures, it cannot be
given any weight as evidence.
(c) Writings about Zoroastrian Religion and Ceremonies (pg. 512-514)
(i) The document is the opinion of a High Priest and cannot be considered as an
essential religious practice as it does not derive its basis from any 80
wp_2890.18.j.doc religious texts or scriptures and no reference is made to any such
text or scripture.
(d) Zoroastrianism - Ancient and Modern
(page 517-518)
(i) The document is relied upon by the
Petitioners to contend that the concept of vibration was in existence in Ancient

Zoroastrian culture. However, even this document does not show that any
construction underneath would lead to breach of any spiritual circuit or disrupt the
connection of the fire with the centre of the Earth. Affidavit in Rejoinder of the
Petitioners (pg. 413- pg ..533)
(i) Para 21 to 28 of the Rejoinder deals with spiritual sanctity of the holy fire in
Zoroastrian religion. This Respondent is not disputing the sanctity or the importance
of fire to Zoroastrian religion. This Respondent is submitting that the Petitioners
have failed to adduce evidence in the form of any religious texts or scriptures which
demonstrate that such fire is connected to the centre of the Earth; and that such
connection shall be breached if any construction work is carried underneath the
Atash Behrams.

(ii) Para 29 to 34 of the Rejoinder deal with the
81 wp_2890.18.j.doc
spiritual significance of the Karsha. This
Respondent submits that the averments made therein and the documents relied in
such paragrahps fail to demonstrate that these Karshas extend beneath the surface of
Earth or that any construction underneath the surface of the Earth would breach
such Karsha.
(iii) Paras 34 to 41 deal with the composite nature of the entire structure. This
Respondent submits that the only documents produced by the Petitioners in support
of such contention are an Affidavit of a Parsi Scholar (Pg. 497) and an Article of the
year 1955. These documents cannot be the basis of proving that the entire structure
was consecrated.
(e) Khordeh Avesta (Pg...492-496) The verses relied by the Petitioners in Khordeh
Avesta show the spiritual significance of a Karsha which is not disputed by this
Respondent. However, this text also does not demonstrate that these Karshah extend
beyond the surface of the Earth. On the contrary, this document shows that Karshas
are furrows drawn on the surface of the Earth to ensure that no pollution, impurity or
filth 82 wp_2890.18.j.doc enter the place where a ceremony is performed."
31. The learned Senior Counsel submitted that Mumbai Metro Master Plan was first prepared in
2004 and has been amended at network level from time to time. The project alignment and details
were published in all prominent newspapers calling for suggestions and objections but MMRC has
not received any written submissions or objections in response to the notice. Public
Consultation/Hearing was conducted on 11 th April, 2012. A proposal for project approval and
Funding was submitted to Government of India through Government of Maharashtra. The project is
to be implemented by MMRCL a Joint Venture Special Purpose Vehicle (JVSVP) with 50:50 equity
participation by Government of India and Government of Maharashtra. A delegation of Technical
and Finance professionals and officers visited Mumbai during 2011-2013. Government of
Maharashtra concurred with the approval by GOI through a Cabinet Resolution to facilitate the
Project implementation with all the 83 wp_2890.18.j.doc enabling and complementing provisions.
The Interim Consultants (IC) also prepared detailed engineering plans for the tunnel and stations
for the entire corridor. The Interim Consultants were group of AECOM Asia (Hong Kong), PADECO
(Japan), LBG Inc.(USA) and EGIS Rail (France) international engineering consulting companies of
repute.
32. Keeping in line with the international project implementation practices followed by JICA,
MMRC appointed General Consultants (GC) following the due process stipulated under JICA

procurement Guidelines. The Civil Works contracts were awarded in July 2016.
33. The Counsel submits that MMRC is responsible for project implementation through the
instruments of GC and the contractor put in place. MMRC is responsible for the co- ordination with
all stakeholders be it Government of India, 84 wp_2890.18.j.doc Government of Maharashtra,
Regulatory Authorities, Local Authorities or public etc.
34. The learned Senior Counsel Shri Aney further submitted that petitioners must establish the
following claims:-
(a) All three grades of sacred fires i.e. Atash Behram, Atash Adaran: Atash Dadgah
are housed in the concerned Atash Behram.
(b) The entire structure of the two Atash Behram is a composite whole, and is
consecrated.
(c) The Karshas which extend into the very core of the earth establish a protective
consecrated area not only around the sacred fire, but also around the entire premises
of the two Atash Behram.
(d) It is a belief of the community that the Karshas descending down into the core of
the earth cause the sacred fire of the Atash Behram to be connected with the core of
the earth, and 85 wp_2890.18.j.doc
(e) An electromagnetic or geomagnetic field is generated in the core of the earth and
is connected with the sacred fire in the Atash Behram through waves and vibrations.
Therefore, if a tunnel is dug or Metro 3 is operated under the premises of the two
Atash Behrams, these spiritual circuits will be breached and negative forces will
attack holy fire, thus diminishing its spiritual powers.
35. The Counsel submits that evidence sought to be relied on by the petitioners does not remotely
prove either the existence of such wide spread beliefs or existence of any such connection between
the holy fire, the Karshas and the earth's core. In absence of any scriptural and textual evidence, the
Court cannot accord the practice status of an essential practice of a religion. The Court cannot rely
merely on testimony (affidavits) without an enquiry into its basis in religious texts. Merely
establishing usage will not accord a practice status of being essential. Essential would mean
inextricably connected with its fundamental character.
86 wp_2890.18.j.doc
36. The learned Senior Counsel Aney relied on following case laws in support of his submissions:-
1. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra

Thirtha Swamiar of Shirur Mutt (supra). Paragraph-23 of the judgment reads as

under:-
"23. It is to be noted that both in the American as well as in the Australian

Constitutions the right to freedom of religion has been declared in unrestricted terms
without any limitation whatsoever. Limitations, therefore, have been introduced by
courts of law in these countries on grounds of morality, order and social protection.
An adjustment of the competing demands of the interests of Government and
constitutional liberties is always a delicate and a difficult task and that is why we find
difference of judicial opinion to such an extent in cases decided by the American
courts where questions of religious freedom were involved. Our Constitution-makers,
87 wp_2890.18.j.doc however, have embodied the limitations which have been
evolved by judicial pronouncements in America or Australia in the Constitution itself
and the language of articles 25 and 26 is sufficiently clear to enable us to determine
without the aid of foreign authorities as to what matters come within the purview of
religion and what do not. As we have already indicated, freedom of religion in our
Constitution is not confined to religious beliefs only; it extends to religious practices
as well subject to the restrictions which the Constitution itself has laid down. Under
article 26(b), therefore, a religious denomination or organization enjoys complete
autonomy in the matter of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside authority has any
jurisdiction to (1) interfere with their decision in such matters. Of course, the scale of
expenses to be incurred in connection with these religious observances would be a
matter of administration of property belonging to the religious denomination and can
be controlled by secular authorities in accordance with any law laid down by a
competent legislature;
88 wp_2890.18.j.doc for it could not be the injunction, of any religion to destroy the
institution and its endowments by incurring wasteful expenditure on rites and
ceremonies. It should be noticed, however, that under article 26(d), it is the
fundamental right of a religious denomination or its representative to administer its
properties in accordance with law; and the law, therefore, must leave the right of
administration to the religious denomination itself subject to such restrictions and
regulations as it might choose to impose. A law which takes away the right of
administration from the hands of a religious denomination altogether and vests it in
any other authority would amount to a violation of the right guaranteed under clause
(d) of article
26."
2. The Durgah Committee, Ajmer & anr. vs. Syd Hussain Ali and Ors. (supra).
Relevant portion of Paragraph-33 reads as under:
"33. .......Whilst we are dealing with this point it may not be out of place incidentally
to strike a note of caution and observe that in order that the practices in question

should be treated as a part of 89 wp_2890.18.j.doc religion they must be regarded by

the said religion as its essential and integral part; otherwise even purely secular
practices which are not an essential or an integral part of religion are apt to be
clothed with a religious form and may make a claim for being treated as religious
practices within the meaning of Art. 26. Similarly even practices though religious
may have sprung from merely superstitious beliefs and may in that sense be
extraneous and unessential accretions to religion itself. Unless such practices are
found to constitute an essential and integral part of a religion their claim for the
protection under Art. 26 may have to be carefully scrutinized; in other words, the
protection must be confined to such religious practices as are an essential and an
integral part of it and no other."
3. Sardar Syedna Taher Saifuddin vs. State of Bombay AIR 1962 SC 853.
Paragraph-33 reads as under:-
"33. The content of Arts. 25 and 26 of the Constitution came up for consideration
before this Court in the Commissioner, Hindu Religious 90 wp_2890.18.j.doc
Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt (1);
Mahant Jagannath Ramanuj Das v. The State of Orissa (2); Sri Venkatamana Devaru
v. The State of Mysore (3); Durgah Committee, Ajmer v. Syed Hussain Ali (4) and
several other cases and the main principles underlying these provisions have by these
decisions been placed beyond controversy. The first is that the protection of these
articles is not limited to matters of doctrine or belief they extend also to acts done in
pursuance of religion and therefore contain a guarantee for rituals and observances,
ceremonies and modes of worship which are integral parts of religion. The second is
that what constitutes an essential part of a religious or religious practice has to be
decided by the courts with reference to the doctrine of a particular religion and
include practices which are regarded by the community as a part of its religion."
4. Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan & ors. AIR 1963 SC 1638.
Paragraphs 56 and 59 read as under:-
91 wp_2890.18.j.doc "56. In Shri Venkataramana Devaru Vs. State of Mysore

Venkatarama Aiyar J. observed "that the matters of religion in Art. 26(b) include
even practices which are regarded by the community as part of its religion." It would
thus be clear that religious practice to which Art. 25(1) refers and affairs in matters of
religion to which Art. 26(b) refers, include practices which are an integral part of the
religion itself and the protection guaranteed by Article 25(1) and Art. 26 (b) extends
to such practices."
5. Mohammad Ali Khan vs. Special Land Acquisition Officer (1978 SCC OnLine All 948). Paragraphs
8, 9 and 10 of the judgment read as under:-

"8. The contention of the learned counsel is that the petitioner has a right to practice
religion in the mosque and hence the same cannot be the subject- matter of
acquisition. We are unable to accept the contention as the guarantee under Cl. (1) of
Article 25 itself makes the freedom subject to other provisions of part three. Article 31
which provides 92 wp_2890.18.j.doc for acquisition of land itself exists in part three.
Article 25 will, therefore, be subject to Article 31 and the freedom guaranteed in
Article 25 will not be sufficient to take away the right of the State to acquire property
if the acquisition is lawfully made.
9. Further, the profession, practice and propagation of religion guaranteed in Article

25 is a personal right which has to be exercised by the individual. It has no nexus with
the place or territory where it has to be exercised. A person may go to a particular
mosque to offer prayers if it exists, he may go to another mosque if the one in which
he offered prayer earlier ceased to exist or he may offer prayers even in his house or
elsewhere. Hence, the acquisition of land on which a mosque may exist cannot be
held to deprive him of his right to freely practise the religion. A free practice of
religion has the idea of practicing it anywhere and not its practice in any particular
place. After the acquisition of the property the right to use that property for the
purpose of offering prayers may be lost, but that does not 93 wp_2890.18.j.doc
militate against the guarantee contained in Article 25 of the Constitution.
10.To test the argument about Article 25, we may consider the right of the person to
practice his religion in his house or elsewhere. As the prayers can be offered
anywhere on earth and a man may be offering prayers in his own house or at some
remote place, the right cannot be deemed reasonably to mean that no such place can
be acquired. The only reasonable interpretation of Article 25 can be that no law can
prohibit the profession, practice or propagation of religion. The law of acquisition
cannot be held to be invalid as that relates to land and not the individual's right to
profess, practice or propagate religion. As the right to practice religion has no nexus
with any particular place that right cannot be deemed infringed by acquisition of any
particular piece of land which is used as a mosque."
6. A.S.Narayana Deekshitulu vs. State of Andhra Pradesh {(1996) 9 SCC 548)}. Relevant portion of
Paras 88 and 90 read as under:-
94 wp_2890.18.j.doc
"88.The court, therefore, while interpreting
Articles 25 and 26 strikes a careful balance between the freedom of the individual or the group in
regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom
which are essential and integral part and those which are not essential and integral and the need for
the State to regulate or control in the interest of the community."

"90. ..................All secular activities which may be associated with religion but which do not relate
or constitute an essential part of it may be amenable to State regulations but what constitutes the
essential part of religion may be ascertained primarily from the doctrines of that religion itself
according to its tenets, historical background and change in evolved process etc. The concept of
essentiality is not itself a determinative factor. It is one of the circumstances to be considered in
adjudging whether the particular matters of religion or religious practices or belief are an integral
part of the religion. It must be decided whether the practices or matters are considered 95
wp_2890.18.j.doc integral by the community itself. ............"
7. Javed vs. State of Haryana {(2003) 8 SCC 369}. Paragraphs 44 and 45 read as under:-
"44. The Muslim law permits marrying four women. The personal law nowhere
mandates or dictates it as a duty to perform four marriages. No religious scripture or
authority has been brought to our notice which provides that marrying less than four
women or abstaining from procreating a child from each and every wife in case of
permitted bigamy or polygamy would be irreligious or offensive to the dictates of the
religion. In our view, the question of the impugned provision of the Haryana Act
being violative of Article 25 does not arise. We may have a reference to a few decided
cases."
"45. The meaning of religion -- the term as employed in Article 25 and the nature of
protection conferred by Article 25 stands settled by the pronouncement of the
Constitution Bench decision in M. Ismail Faruqui (Dr) v. Union of India. The 96
wp_2890.18.j.doc protection under Articles 25 and 26 of the Constitution is with
respect to religious practice which forms an essential and integral part of the religion.
A practice may be a religious practice but not an essential and integral part of
practice of that religion. The latter is not protected by Article
25."
8. Commissioner of Police vs. Acharya Jagadishwarananda (supra). Paragraph -9 of

the judgment reads as under:-
"9.The protection guaranteed under Articles 25 and 26 of the Constitution is not

confined to matters of doctrine or belief but extends to acts done in pursuance of
religion and, therefore, contains a guarantee for rituals, observances, ceremonies and
modes of worship which are essential or integral part of religion. What constitutes an
integral or essential part of religion has to be determined with reference to its
doctrines, practices, tenets, historical background, etc. of the given religion. (See
generally the Constitution Bench decisions in Commr., H.R.E. v.
97 wp_2890.18.j.doc Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Sardar

Syedna Taher Saifuddin Saheb v. State of Bombay and Seshammal v.State of T.N.
regarding those aspects that are to be looked into so as to determine whether a part

or practice is essential or not.) What is meant by "an essential part or practices of a

religion" is now the matter for elucidation. Essential part of a religion means the core
beliefs upon which a religion is founded. Essential practice means those practices
that are fundamental to follow a religious belief. It is upon the cornerstone of
essential parts or practices that the superstructure of a religion is built, without which
a religion will be no religion. Test to determine whether a part or practice is essential
to a religion is to find out whether the nature of the religion will be changed without
that part or practice. If the taking away of that part or practice could result in a
fundamental change in the character of that religion or in its belief, then such part
could be treated as an essential or integral part. There cannot be additions or
subtractions to such part because it is the very essence of that religion and alterations
will change its 98 wp_2890.18.j.doc fundamental character. It is such permanent
essential parts which are protected by the Constitution. Nobody can say that an
essential part or practice of one's religion has changed from a particular date or by an
event. Such alterable parts or practices are definitely not the "core" of religion
whereupon the belief is based and religion is founded upon. They could only be
treated as mere embellishments to the non-essential (sic essential) part or practices."
9. Khursheed Ahmad Khan vs. State of U.P. {(2015) 8 SCC 439}. Relevant portion of
Paragraph 13 reads as under:-
"13. ........The right of the State to legislate on questions relating to marriage cannot
be disputed. Marriage is undoubtedly a social institution, an institution in which the
State is vitally interested. Although there may not be universal recognition of the fact,
still a very large volume of opinion in the world today admits that monogamy is a
very desirable and praiseworthy institution. If, therefore, the State of Bombay
compels Hindus to become monogamists, it is a measure of social 99
wp_2890.18.j.doc reform, and if it is a measure of social reform then the State is
empowered to legislate with regard to social reform under Article 25(2)(b)
notwithstanding the fact that it may interfere with the right of a citizen freely to
profess, practise and propagate religion. ........"
10. Haresh M.Jagtiani vs. Union of India {2016 SCC OnLine Bom 2600}. Paragraph
139 of the judgment reads as under:-
"139. This issue was dealt with by the Constitution Bench of the Apex Court in the
case of Quareshi-I. In the said case, the challenge was to the total ban on slaughter of
cows on BakrI'd day under the Bihar Preservation and Improvement of Animals Act,
1955. The challenge was specifically on the ground of violation of fundamental rights
guaranteed under Article 25(1) of the Constitution of India. The Constitution Bench
held that the slaughter of cows on BakrI'd was not an essential religious practice for
Muslims and, therefore, a total ban on cow's slaughter on the BakrI'd day 100
wp_2890.18.j.doc could not be violative of Article 25(1). It was held that there is an
option given to sacrifice a goat or bull or a bullock or a camel. The said decision in the

case of Quareshi-I has been relied upon in the decision of the Apex Court in the case
of Ashutosh Lahiri. It is well settled that what is protected by Articles 25 and 26 is
only such religious practice which forms an essential and integral part of the religion.
A practice followed may be a religious practice. But, if it is not an essential or integral
part of the religion, the same is not protected by Article 25 of the Constitution of
India. The alleged economic compulsion will not make the alleged practice an
essential part of the religion. It is held in the cases of Ashutosh Lahiri and Quareshi- I
that the sacrifice of a cow or its progeny is not an essential part of the muslim
religion. Hence, violation of Article 25(1) of the Constitution of India is not at all
attracted."
11. Dr. Noorjehan Safia Niaz and anr. vs. State of Maharashtra & Ors. {(2016) SCC
OnLine Bom 5394}.
Paragraphs 38 and 39 read as under:-
101 wp_2890.18.j.doc "38. What can be culled out from the aforesaid decisions is that, what
constitutes 'an integral or essential part of the religion' is to be determined with reference to is
doctrines, practices, tenets, historical background, etc. The religious practice has to constitute the
very essence of that religion, and should be such, that if permitted, it will change its fundamental
character. It is such permanent essential practices which are protected by the Constitution. It is also
evident that immunity under Article 26(b) is provided not only to matters of doctrines or belief, but
extends to acts done in furtherance of religion such as rituals, observances, ceremonies, modes of
worship, which are considered to be fundamental parts of the religious practices. What is required
is, that the such religious practices should be an essential and integral part of it and no other.
39. In the present case, reference must be made to the Qur'an, the fundamental Islamic text, to
determine whether a practice is essential to Islam. Essential part of a religion means the core beliefs
upon which a religion is founded and essential 102 wp_2890.18.j.doc practice means those practices
that are fundamental to follow a religious belief. According to the 'essential functions test', the test
to determine whether a part or a practice is essential to the religion, in this case, Islam, to find out
whether the nature of religion will change, without that part or practice; and whether the alteration,
will change the very essence of Islam and its fundamental character. As is noted in the judgments
referred herein above, what is protected by the Constitution are only such permanent essential
parts, where the very essence of the religion is altered."
12. Shayara Bano vs. Union of India & ors. {(2017) 9 SCC 1}. Paragraph-26 reads as under:-
"26. When issues of such nature come to the forefront, the discourse often takes the
form of pitting religion against other constitutional rights. I believe that a
reconciliation between the same is possible, but the process of harmonising different
interests is within the powers of the legislature. Of 103 wp_2890.18.j.doc course, this
power has to be exercised within the constitutional parameters without curbing the
religious freedom guaranteed under the Constitution of India. However, it is not for

the courts to direct for any legislation."
13. Goa Foundation vs. Konkan Railway Corporation {1994 Mh.L.J.21}.
14. Church of God (Full Gospel) in India vs. K.K.R. Majestic Colony Welfare Association {(2000) 7
SCC 282}. Paragraph-13 reads as under:
"13. In the present case, the contention with regard to the rights under Article 25 or
Article 26 of the Constitution which are subject to "public order, morality and health"
are not required to be dealt with in detail mainly because as stated earlier no religion
prescribes or preaches that prayers are required to be performed through voice
amplifiers or by beating of drums. In any case, if there is such practice, it should not
adversely affect the rights of others including that of being not disturbed in their
activities. We would only 104 wp_2890.18.j.doc refer to some observations made by
the Constitution Bench of this Court qua rights under Articles 25 and 26 of the
Constitution in Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v.
State of Gujarat. After considering the various contentions, the Court observed that:
(SCC p. 20, para 30) "No rights in an organized society can be absolute. Enjoyment of
one's rights must be consistent with the enjoyment of rights also by others. Where in
a free play of social forces it is not possible to bring about a voluntary harmony, the
State has to step in to set right the imbalance between competing interests...."
The Court also observed that: (SCC p. 20, para
31)"A particular fundamental right cannot exist in isolation in a watertight

compartment. One fundamental right of a person may have to coexist in harmony
with the exercise of another fundamental right by others and also with reasonable
and valid exercise of power by the State in the light of the Directive Principles in the
interests of social welfare as a whole."
105 wp_2890.18.j.doc
15. N.D. Jayal vs. Union of India {(2004) 9 SCC 362}.
Paragraph- 18 of the judgment reads as under:-
18. This Court dealt with the safety concerns and held that: (SCC p. 50, para 14) "In
our opinion the Court can only investigate and adjudicate the question as to whether
the Government was conscious to the inherent danger as pointed out by the
petitioners and applied its mind to the safety of the dam. We have already given facts
in detail which show that the Government has considered the question on several
occasions in the light of the opinions expressed by the experts. The Government was
satisfied with the report of the experts and only thereafter clearance has been given to
the project."

2. Asha Ranjan V/s. State of Bihar & ors.;
Chandrakeshwar Prasad V/s. Union of India. (2017) 4 SCC
397. Paragraph 54 and relevant portion of paragraph 56 read as under:-
"54. Having noted thus, as presently advised, we shall first advert to certain
authorities that 106 wp_2890.18.j.doc pertain to balancing of rights. In Sakal Papers
(P) Ltd.v.Union of India, the Court in the context of freedom of speech and
expression, has held that freedom of speech can be restricted only in the interests of
the security of the State, friendly relations with foreign State, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence.
It cannot, like the freedom to carry on business, be curtailed in the interest of the
general public. Analysing further, the Court held: (AIR pp. 313-14, para 37) "37. ... It
follows from this that the State cannot make a law which directly restricts one
freedom even for securing the better enjoyment of another freedom. All the greater
reason, therefore for holding that the State cannot directly restrict one freedom by
placing an otherwise permissible restriction on another freedom."
56. ................The Court further held that where there is a clash of two fundamental
rights, namely, the appellant's right to privacy as part of right to life and Ms Y's right
to lead a healthy life which is her fundamental right under Article 21, the right which
would advance the public morality or public interest, would alone be enforced
through the 107 wp_2890.18.j.doc process of court, for the reason that moral
considerations cannot be kept at bay and the Judges are not expected to sit as mute
structures of clay in the hall known as the courtroom, but have to be sensitive."
37. The Petitioners have objected to the plan of laying down underground tunnel for implementing
Mumbai Metro Line -3 (MML-3), 33.5 kms long Metro Rail Project between Colaba - Bandra -
SEEPZ. The Petitioners have specifically objected to the plan of boring underground tunnel which
passes through 11 Mtrs. Within the premises of H.B. Wadia Atash Behram and Zarthoshti Anjuman
Atash Behram (affidavit of Respondent No.4 page 212 Set-I page 146 to 568). The Petitioners seek
re-alignment of the said Metro tunnel to that extent. It is the Petitioners' case that ingress process
for MML-3 passes through underneath aforesaid two Atash Behram, which violates Petitioners'
fundamental rights under Article 14, 21, 25 and 29 of 108 wp_2890.18.j.doc the Constitution of
India. During the course of arguments, the learned Senior Counsel Mr. Seervai submitted that
protection is granted to a minority community for preserving its rights as enshrined under Article 25
of the Constitution of India. During the course of arguments, the learned Counsel appearing for the
parties have also referred to Articles 25 & 26 of the Constitution of India. It was further submitted
on behalf of the Petitioners that there has been non-application of mind while considering the issues
raised by the petitioners.
38. It has come on record that the project is estimated to costs approximately Rs. 23,136 crores.
Japan International Co- Operation Agency (JICA) would provide Rs. 13,235 crores and the balance

funds would be raised by the Central Government of India and Government of Maharashtra.
Respondent No.4 claims that MML-3 is designed as more energy cost efficient. According 109
wp_2890.18.j.doc to Respondent No.4, some of the benefits of MML-3 project are mentioned below
(Ref. Pg. 213 affidavit-in-reply dated 26.6.2018 of Shantaram G. Dalvi):
"3. That the MML-3 is a fully underground, 33.5 kilometers long, rail based mass
public rapid transport system running between Colaba-Bandra-SEEPZ. The MML-3
project is being implemented by the Respondent No.4, which is a joint venture
between the Central Government and the Government of Maharashtra on a 50:50
sharing basis. The primary object of the Respondent No.4 company is to set up,
operate and manage a rail based mass rapid transport system in Mumbai in order to
provide the general public with a fast, reliable, convenient, efficient, modern and
economical mode of public transport. The project is estimated to cost approximately
Rs.23,136 crore with Japan International Co-Operation Agency (JICA) providing a
loan assistance of Rs.13,235 crore and the balance funding being raised by the
Central Government and the Government of Maharashtra. Being a modern public
rapid transport system, the MML-3 is designed to be more energy and cost efficient.
It is expected that once the MML-3 project is 110 wp_2890.18.j.doc completed and
open to public, the congestion on roads will be reduced. Some of the benefits of the
MML-3 project are:
a. Whereas the design capacity of suburban transit trains is 1750 passengers, the
trains are overcrowded at peak hours carrying 5000 passengers, MML-3 project is
expected to reduce the burden of suburban trains by nearly 15% and provide
air-conditioned coaches for commutation.
b. MML-3 running along Colaba-Bandra-SEEPZ corridor, will have 27 stations

connecting six financial hubs of the city such as Nariman Point, Bandra-Kurla
Complex, Fort, Worli, Lower Parel and Goregaon, 30 educational institutes and 30
recreational facilities in addition to the domestic and international airport terminals.
c. MML-3 is projected to reduce emission of greenhouses gases viz. 6800 tons of

Carbon Dioxide in 2021 and 9907 tons by 2041; and 4327 tons of Carbon Monoxide
in 2021 and 6304 tons in 2041. Further, the trains operating on MML-3 are
engineered to use the energy regenerated during braking for captive use. On 111
wp_2890.18.j.doc account of the expected reduction in approximately 4.5 lakhs
vehicles on road per day, nearly 2.5 lakhs of fuel will be saved per day. Following is a
comprehensive table of estimated reduction in pollution and cost in the city of
Mumbai.
Description Year 2021 Year 2031 Year 2041 Vehicles Reduction in 4,56,771 5,54,556
6,65,468 Vehicle trips per day Fuel Reduction in fuel 2,43,390 2,95,495 3,54,593
Consumptions Petrol and Diesel in litres per day Cost Avg. savings on a 158.14 191.99
230.39 daily basis due to reduction in number of vehicle trips (in lakhs) Carbon

Reduction in 6800 8256 9907 Dioxide pollution emission due to reduction in

number of vehicle trips (Tonnes / Year) Thus, it is clear that the MML-3 project is the
need of the hour for the city of Mumbai".
112 wp_2890.18.j.doc
39. On financial implication of delay in MML-3 project, the case of Respondent No.4
is stated in paragraph 4 which reads as under (Ref. affidavit-in-reply of dated
26.6.2018 of Mr. Shantaram G. Dalvi):
"Financial implications of delay in the MML-3 Project:
4. Further, there are serious financial implications to the public exchequer if the
project gets delayed. It is calculated that even a days delay in the execution of
Colaba-Bandra-SEEPZ Metro corridor would cost public exchequer Rs.4.20 Crores.
This is in addition to other cost to the economy. The Economic Internal rate of
Return (EIRR) for the project has been calculated as 17.93% . Further, the Financial
Internal Rate of Return (FIRR) of the project is 2.17%. These returns do not accrue to
the Respondent No.4, but accrue to the society and public exchequer. MML-3 project
is implemented with a loan from Japan International Co-Operation Agency (JICA)
which to be repaid by the MMRCL out of the revenue earnings from the project.
Thus, it is clear that there is a huge financial stake to the public exchequer if the
project gets delayed".
113 wp_2890.18.j.doc
40. The thrust of the submissions advanced on behalf of the petitioners is based on
(a) protection of rights conferred under Article 25 of the Constitution of India i.e. (b)
Structural Safety of Atash Behram and (c) desecration of Atash Behram in case
tunnel passes through the premises as according to the Petitioners, the entire
premises of the two Atash Behram is consecrated. It was further submitted on behalf
of the Petitioners that there has been non-application of mind while considering the
issues raised by the petitioners.
41. We may reproduce articles 25 and 26 of the Constitution of India as under:
"25. Freedom of conscience and free profession, practice and propagation of

religion.-- (1) subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion.
114 wp_2890.18.j.doc
(2) Nothing in this article shall affect the operation of

any existing law or prevent the State from making any law -
(a) regulating or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Explanation I.-- The wearing and carrying of kirpans shall be deemed to be included
in the profession of the Sikh religion.
Explanation II.-- In sub-clause (b) of clause (2), the reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed
accordingly.
26. Freedom to manage religious affairs. - Subject to public order, morality and
health, every religious denomination or any section thereof shall have the right---
(a) to establish and maintain institutions for 115 wp_2890.18.j.doc religious and
charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law;".
42. Article 25 of the Constitution of India guarantees protection of freedom of

conscience and right to freely profess or practise and propagate religion. Clause 2(a)
of Article 25 reserves rights of the State to regulate and restrict an economical,
financial, political and other secular activities which may be associated with religious
practice. In the case of The Commissioner, Hindu Religious Endowments, Madras Vs.
Sri. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra) , it was observed that
"what Article 25(2)(a) contemplates is not regulation by the State of religious
practices as such, the freedom of which is guaranteed by the Constitution of India
except when they run counter to public order, health and morality, but 116
wp_2890.18.j.doc regulation of activities which are economic, commercial or
political in their character though they are associated with religious practices". It was
further observed that it extends to these rights to religious practices as a whole
subject to the restriction which the Constitution itself has laid down. The
Constitution of India has given complete freedom of religion in the matter of deciding
the rites and ceremonies which are essential according to the tenets of religion they
follow. This right is guaranteed under Article 25(b) of the Constitution of India.

43. The protection guaranteed under Articles 25 and 26 of the Constitution is granted to the acts
done in pursuance of the religious ritual and ceremonies, modes of worship, beliefs, practices which
are integral or essential part. For determining as to whether such beliefs and practices are integral
or essential part of the religion has to be determined with reference to its 117 wp_2890.18.j.doc
doctrines, practices, tenets, historical background etc. of the given religion. It has been, therefore,
observed that what is meant by an essential part or practices of religion is a matter of elucidation.
(Ref. Commissioner of Police & Others Vs. Acharya Jagdishwarnanda Avadhuta and another
(supra). The essential part of religion means the core beliefs upon which the religion is founded. The
essential practices mean those practices that are fundamental to follow a religious belief. One of the
tests which has been applied is to see if the taking away of that part or practice could result in a
fundamental change in the character of religion or its belief and if it does change, then such a part
be treated as an essential and integral part. Belief must be of an essence of that religion. Keeping in
view, the aforesaid proposition enunciated by the Courts in the judgments cited (supra), we would
consider as to whether the Petitioners have established by leading evidence or placing on record
cogent and convincing material based on which, the assertion of the 118 wp_2890.18.j.doc
Petitioners' right and protection under Article 25 of the Constitution could sustain.
44. The petitioners have relied upon the affidavits filed in support of their plea that entire Atash
Behram premises is consecrated one. It is further contended that Atash Behram is the highest grade
of fire i.e. consecrated in a Zoroastrian fire temple. The establishment and consecration of this fire is
most elaborate of grades of fire. Atash Behram is composite holo comprising not just consecrated
fire and thrown in the sanctum sanctorum but also includes within its definition the entire premises
of Atash Behram.
45. In the affidavit filed in support of the petition, it is contended by Vada Dasturji Dr. Kaikhusroo
M. Jamasp Asa (ref. Affidavit of Priest) that it is believed that there is a constant requirement of holy
fire to be connected with Mother Earth. The 119 wp_2890.18.j.doc connection has to be an
uninterrupted one with the core and the centre of the earth from which the vibrations and waves
emanate. There should be no dynamic motion or movement beneath precincts of the Atash Behram.
Therefore, it is said that if a tunnel is bored beneath Atash Behram, the premises would get
desecrated.
46. It is also the case of the petitioners that to protect the holy fire from physical and spiritual
pollution, the fire is surrounded by spiritual circuits. These circuits act as a barrier and protective
ring which are known as karshas. Karshas are formed around consecrated matters and places. It is
important to note and which is a matter of great debate, as according to the Priest of the Petitioners,
the effect of the karshas extends throughout the entire premises of Atash Behram. The karshas also
extend below the ground. Any interference underground would directly breach the effect of the
karshas and consequently, 120 wp_2890.18.j.doc adversely impact the spiritual piety of the holy fire
housed in the Atash Behram premises. It is therefore, submitted that the moment the Metro tunnel
encroaches underneath the Atash Behram premises, circuits will be breached. This would result in
the desecration of the Atash Behram and inturn, would lead to disaster for the entire Zoroastrian
community in the world. These two Atash Behram are highly respected all over the world. The
proposed construction would be in violation of age old customs, long standing traditions, accepted

practices, beliefs, teachings and the tenets prescribed by the religious scriptures of Zoroastrians. The
other Priests and Scholars, according to the Petitioners, have also echoed the same views and
sentiments in support of the petitioners case and contentions. We have already referred to the
affidavits filed by the petitioners in support of their contentions.
47. On behalf of the Respondents, a reference has been 121 wp_2890.18.j.doc made to a meeting
convened on 9.11.2017 in the presence of Hon'ble the Chief Minister of Maharashtra along with two
Priests Vada Dasturji Dr. Firoze M. Kotwal and Vada Dasturji Khurshed Dastoor in a
communication dated 16.5.2018 addressed to Dr. Nitin Kareer, Principal Secretary-I, Urban
Development Department, Mumbai, wherein it is stated that they do not agree with the contents of
the letter dated 10.5.2018 and the so called no objection of the other two Vada Dasturjis in
proceeding with the boring of the underground tunnels passing through the Atash Behram
premises. It was contended that three of the four high Priests are against the underground tunnels
of the MML-3 passing anywhere under the sacred fire temples. The Priest has further stated that
since Vada Dasturji Khurshed Dastoor is a Member of the National Minority Commission,
Government of India, one could easily assume that the stand taken by him could be
pro-Government and thus, be disregarded. In a communication made by Ashiwni Bhide the 122
wp_2890.18.j.doc Managing Director of MMRCL dated 10.6.2018 mentions that Metro tunnels are
at 61 feet deep below the road and the distance between the tunnel of sanctum sanctorum upto
Anjuman Atash Behram and H.B.Wadia Atash Behram is 56 and 22 feet respectively. As regards the
well water, in the affidavit filed by Vada Dasturji Dr. Firoze M. Kotwal dated 28.5.2018, it is
contended that the tunnel process could affect the water tables adversely and there is a distinct
possibility of the Atash Behram wells going dry, in which case, none of high rituals of the
Zoroastrians faith can be performed in these Atash Behrams. This would be a great religious loss to
the community. Yazdi H. Desai, Chairman of the Board of Trustees of the Bombay Parsi Panchayet
in the affidavit dated 3.6.2018 states that if the tunnels of the MML-3 are constructed beneath Atash
Behram, then it would result in complete desecration of the Atash Behram and would cause grievous
hurt to the sentiments of the entire Zoroastrian community not just in India but around the world.
123 wp_2890.18.j.doc Similar view is expressed by Burjor H. Antia, Secretary / Trustee of Board of
Trustees of the Zarthoshti Anjuman Atash Behram Trust. It is stated that in case, the tunnels are
allowed to be constructed underneath Atash Behrams, then it would result into irreparable loss,
damage to religious beliefs and sentiments of the members of the Zoroastrian community. It was
suggested that the tunnels could be re-aligned by 11 metres away so that the sanctity of the fire
temple is not damaged in any way. The petitioners have also placed on record Resolution passed by
the Parsi Panchayets at different places of country in support of the Petitioners' proposals.
48. During the course of submission, the counsel submits that the original texts, tenets were
destroyed in the fire and therefore, reliance is placed on the affidavits filed by learned high Priests of
the community and the other documents placed on record of this Court.
124 wp_2890.18.j.doc

49. Respondents denied the contention in the affidavit filed as not admitted. It was further
submitted on behalf of the Respondents that the petitioners have failed to prove their assertions and
statements made in the affidavits. The burden was on the petitioners to prove and establish the fact
of their belief, which according to the petitioners, is widespread amongst Zoroastrians. On the
affidavits filed by high Priests of Zoroastrian community, it was submitted on behalf of Respondent
No.4 that except for evidence in the form of their own statements in the affidavits, the four high
Priests did not produce any evidence of scriptures, religious texts, etc. in support of their assertion.
An affidavit was filed by Ervad Dr. Parvez Minocher Bajan. The Petitioners have also referred to an
Article dated 27.5.1955 in "Parsi Avaz". The counsel appearing for Respondent No.4 submitted that
the article does not state anywhere that karshas extend underneath the structure or such 125
wp_2890.18.j.doc karshas would be breached if any construction activities are carried out
underneath the structure. Document being an article written in a Journal for readership within the
Zoroastrian community, it is at best expression of the author's ideas and beliefs. Without reference
to some basic source, it cannot be given any weight and relevance according to the counsel. On the
petitioners reliance on the documents in the opinion of the high Priests, it was submitted that same
cannot be considered as essential religious practice as it does not derive its basis from its religious
texts or scriptures. A document was further relied upon by the petitioners to contend that all their
concept of vibrations was in existence in Zoroastrian culture. This document, according to the
Respondents, does not show that any construction underneath would lead to breach of any spiritual
circuit or disrupt connection of fire. ( Affidavit in rejoinder of the petitioners page 413 to 533).
126 wp_2890.18.j.doc
50. Respondent No.4 does not dispute the sanctity and importance of sacred fire of Zoroastrian
religion. It is further submitted that the averments made and the documents relied failed to
demonstrate that karshas extend beneath the surface of earth or that any construction underneath
the surface of earth would reach such karshas. According to Respondent No.4, only documents
produced by the petitioners in support of such contention are the affidavits of Parsi scholars (page
497) and article of the year 1955, which documents cannot be a basis for proving that the entire
structure is consecrated.
51. On the "KHORDEH AVESTA" (page 492), the learned Senior Counsel for the Respondent No.4
submits that the verses relied on by the petitioners in "KHORDEH AVESTA" show that spiritual
significance of karshas, are not disputed by the Respondents. But its text does not demonstrate that
karshas extend beyond the surface of the earth. On the contrary, the 127 wp_2890.18.j.doc
document shows that karshas are furrows drawn at the surface of the earth to ensure that no
pollution impurity or filth enter the place where a ceremony is performed.
52. The learned Senior Counsel Mr. Seervai appearing for the petitioners submitted that there is no
need for producing the scriptures, tenets and texts in support of the petitioners' contention that (a)
the entire Atash Behram premises are consecrated one, (b) the fire in the karshas extend to
vibrations and circuits beneath the surface of earth and that constant connectivity of fire is required
to be maintained all throughout,

(c) the well water which is natural source of water, spring water would get diluted or dried up in case
the tunnel is constructed underneath the premises.
Articles 14 and 21 of the Constitution read as under : "14. Equality before law. - The State shall not
deny to any person equality before the law or the equal protection of the 128 wp_2890.18.j.doc laws
within the territory of India.
21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty
except according to procedure established by law."
53. The petitioners have to establish that by constructing Metro tunnel underneath the Atash
Behram premises, their right to practice religion is curtailed to profess, practise and propagate
religion or in any way hampered or curtailed or gets damaged. The contesting Respondents have not
raised any objection to Petitioners' ceremonies carried out in the Atash Behram premises. The
Respondents have reservations and objections to the assertion of the petitioners that the entire
Atash Behram premises is consecrated one.
54. Taking into consideration the material placed on record, documents the petitioners' assertion
made in the petition, affidavits, rejoinders, affidavits filed by the high 129 wp_2890.18.j.doc Priests,
article published in the Journals, Books, we are not fully convinced to hold that the entire subject
Atash Behram premises are consecrated one.
55. Assuming that Atash Behram premises are consecrated one, the petitioners could not establish
that by constructing underneath tunnel down below 60 feet of the Atash Behram premises, would
desecrate the Atash Behram, and due to which existence of religion itself would get endangered.
56. It was submitted that Respondent No.4 has already agreed to move 3.5 metres away from the
original alignment.
57. We have carefully gone through the various charts, plans, photographs to appreciate the case of
the Petitioners. We are not persuaded by the Petitioners to hold that in constructing the tunnel
underneath the Atash Behram premises, protection 130 wp_2890.18.j.doc guaranteed under
Articles 25 and 26 of the Constitution of India would get breached.
58. After the arguments were concluded, at the request of Counsel appearing for the parties, the
matter was adjourned as the Counsel for the petitioners submitted that the Apex Court has delivered
judgment in the case of Indian Young Lawyers Association Vs. State of Kerala Vs. State of Kerala
and others in W.P. (C ) No. 373 of 2006 ( Sabarimala Temple Judgment) and the Petitioners would
like to refer this judgment of Apex Court. In fairness, we permitted the petitioners to place the
judgment and accordingly the case was adjourned for only purpose of hearing parties for citing this
judgment and for offering their views. We have perused the judgment delivered by the 5-Judge
Bench of the Apex Court in W.P. No. ( C) 373 of 2006 by the Apex Court. We may refer to some of
the observations of the Apex Court below.

131 wp_2890.18.j.doc
59. Paragraphs 101, 104 and 144(i) of the judgment delivered by the then Hon'ble the Chief Justice
of India Shri. Dipak Misra (For himself and A.M. Khanwilkar, J.) read as under:
"101. We have no hesitation to say that such an exclusionary practice violates the
right of women to visit and enter a temple to freely practise Hindu religion and to
exhibit her devotion towards Lord Ayyappa. The denial of this right to women
significantly denudes them of their right to worship. We concur with the view of the
Amicus Curiae, learned senior counsel, Mr. Raju Ramchandran, that the right
guaranteed under Article 25(1) is not only about inter-faith parity but it is also about
intra-faith parity. Therefore, the right to practise religion under Article 25(1), in its
broad contour, encompasses a non- discriminatory right which is equally available to
both men and women of all age groups professing the same religion.
104. Therefore, it can be said without any hesitation or reservation that the impugned
Rule 3(b) of the 1965 132 wp_2890.18.j.doc Rules, framed in pursuance of the 1965
Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, is a
clear violation of the right of such women to practise their religious belief which, in
consequence, makes their fundamental right under Article 25(1) a dead letter. It is
clear as crystal that as long as the devotees, irrespective of their gender and / or age
group, seeking entry to a temple of any caste are Hindus, it is their legal right to enter
into a temple and offer prayers. The women, in the case at hand, are also Hindus and
so, there is neither any viable nor any legal limitation on their right to enter into the
Sabarimala Temple as devotees of Lord Ayyappa and offer their prayers to the deity.
144. In view of our aforesaid analysis, we record our considerations in seriatim:
(i) In view of the law laid down by this Court in Shirur Mutt (supra) and S.P. Mittal
(supra), the devotees of Lord Ayyappa do not constitute a separate religious
denomination. They do not have common religious tenets peculiar to themselves,
which they regard as conducive to their spiritual well-being, other than those which
are common to the Hindu religion. Therefore, the 133 wp_2890.18.j.doc devotees of
Lord Ayyappa are exclusively Hindus and do not constitute a separate religious
denomination."
Paragraph 20, 21.6 of the Judgment delivered by Hon'ble Mr. Justice R.F. Nariman (concurring)
reads under:
"20. In Adi Saiva Sivachariyargal Nala Sangam and Ors. Vs. Government of Tamil
Nadu and Anr., (2016) 2 SCC 725, ("Adi Saiva Sivachariyargal Nala Sangam"), this
Court was concerned with a Government Order issued by the Government of Tamil
Nadu, which stated that any person who is a Hindu and possesses the requisite
qualification and training, can be appointed as an Archaka in Hindu temples. The

Court referred to Article 16(5) of the Constitution, stating that the exception carved
out of the equality principle would cover an office of the temple, which also requires
performance of religious functions. Therefore, an Archaka may, by law, be a person
professing a particular religion or belonging to a particular denomination. The Court
went on to hold that although what constitutes essential religious practice must be
decided with reference to what the religious community itself says, yet, the ultimate
constitutional arbiter of what constitutes essential 134 wp_2890.18.j.doc religious
practice must be the Court, which is a matter of constitutional necessity. The Court
went on to state that constitutional legitimacy, as decided by the Courts, must
supersede all religious beliefs and practices, and clarified that "complete autonomy",
as contemplated by Shirur Mutt (supra), of a denomination to decide what
constitutes essential religious practice must be viewed in the context of the limited
role of the State in matters relating to religious freedom as envisaged by Articles 25
and 26 of the Constitution, and not of Courts as the arbiter of constitutional rights
and principles.
[EMPHASIS SUPPLIED] 21.6 It is only the essential part of religion, as distinguished

from secular activities, that is the subject matter of the fundamental right.
Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot
be considered as essential parts of religion.
Matters that are essential to religious faith and/or belief are to be judged on evidence
before a Court of law by what the community professing the religion itself has to say
as to the essentiality of such belief. One test that has been evolved would be to
remove the particular belief stated to be an essential 135 wp_2890.18.j.doc belief
from the religion - would the religion remain the same or would it be altered?
Equally, if different groups of a religious community speak with different voices on
the essentiality aspect before the Court, the Court is then to decide as to whether such
matter is or is not essential. Religious activities may also be mixed up with secular
activities, in which case the dominant nature of the activity test is to be applied. The
Court should take a common sense view and be actuated by considerations of
practical necessity.
[EMPHASIS SUPPLIED] 21.11. Contrasted with the fundamental right in Article

25(1) is the fundamental right granted by Article 26. This fundamental right is not
granted to individuals but to religious denominations or sections thereof. A religious
denomination or section thereof is to be determined on the basis of persons having a
common faith, a common organization, and designated by a distinct name as a
denomination or section thereof. Believers of a particular religion are to be
distinguished from denominational worshipers. Thus, Hindu believers of the Shaivite
and Vaishnavite form of worship are not denominational worshipers but part of the
general Hindu religious form of worship."

136 wp_2890.18.j.doc Paragraphs 44, 46, 47, 48 and 49 of the judgment delivered by
Hon'ble Dr. Justice D.Y. Chandrachud read as under:
"44. ............ The essentiality test came to be linked to the "fundamental character" of
the religion. If the abrogation of a practice does not change the fundamental nature of
the religion, the practice itself is not essential.
46. ........ While the majority based its conclusion on an examination of the
substantive doctrines of Islam and the theological sanctity of triple talaq, the
minority relied on the widespread practice of triple talaq to determine its essentiality.
The majority and minority concurred, however, that the belief of a religious
denomination claiming a particular practice to be essential must be taken into
consideration in the determination of the essentiality of that practice.
47. .......... While the views of a religious denomination are to be taken into
consideration in determining whether a practice is essential, those views are not
determinative of its essentiality. The Court has assumed a central role 137
wp_2890.18.j.doc in determining what is or is not essential to religious belief.
Intrinsic to the role which the Court has carved out, it has sought to distinguish
between what is religious and what is a secular practice, even if it is associated with a
religious activity. Going further, the Court has enquired into whether a practice is
essential to religion. Essentiality of the practice would, as the Court as held depend
on whether the fundamental character of a religion would be altered, if it were not
observed. Above all, there is an emphasis on constitutional legitimacy, which
underscores need to preserve the basic constitutional values associated with the
dignity of the individual. The ephemeral distinction between religion and superstition
becomes more coherent in terms of the need to preserve fundamental constitutional
values associated with human liberty.
48. ..... That a practice claimed to be essential has been carried out on since time
immemorial or is grounded in religious texts, does not lend to it constitutional
protection unless it passes the test of essentiality.
49. ..... It is the duty of the courts to ensure that what is protected is in conformity
with fundamental 138 wp_2890.18.j.doc constitutional values and guarantees and
accords with constitutional morality. While the Constitution is solicitous in its
protection of religious freedom as well as denominational rights, it must be
understood that dignity, liberty and equality constitute the trinity which defines the
faith of the Constitution. Together, these three values combine to define a
constitutional order of priorities. Practices or beliefs which detract from these
foundational values cannot claim legitimacy. In Government of NCT of Delhi Vs.
Union of India, (2018) 8 SCALE 72, one of us (Chandrachud, J.) observed the
importance of constitutional morality as a governing ideal:

"Constitutional morality highlights the need to preserve the trust of the people in
institutions of democracy. It encompasses not just the forms and procedures of the
Constitution, but provides an "enabling framework that allows a society the
possibilities of self- renewal". It is the governing ideal of institutions of democracy
which allows people to cooperate and coordinate to pursue constitutional aspirations
that cannot be achieved single-handedly." Our Constitution places the individual at
the heart of the discourse on rights. In a constitutional order characterized by the
Rule of Law, the constitutional 139 wp_2890.18.j.doc commitment to egalitarianism
and the dignity of every individual enjoins upon the Court a duty to resolve the
inherent tensions between the constitutional guarantee of religious freedom afforded
to religious denominations and constitutional guarantees of dignity and equality
afforded to individuals. There are a multiplicity of intersecting constitutional values
and interests involved in determining the essentiality of religious practices. In order
to achieve a balance between competing rights and interests, the test of essentiality is
infused with these necessary limitations.
108. In Sastri Yagnapurushadji, Chief Justice Gajendragadkar propounded a view of

Hinduism which in doctrinal terms segregates it from practices which could be
isolated from a rational view of religion. The result which followed was that while at a
formal level, the Court continued to adopt a view which placed credence on the role
of the community in deciding what constitutes a part of its religion, there is a super
imposed adjudicatory role of the Court which would determine as to whether
something is essential or inessential to religion. In the case of the Avadhuta II, the
assumption of this role by the Court came to the forefront in allowing it to reject a
140 wp_2890.18.j.doc practice as not being essential though it had been prescribed
in a religious text by the founder of the sect.
....... Protecting that autonomy enhances the liberal values of the Constitution. By
entering upon doctrinal issues of what does or does not constitute an essential part of
religion, the Court has, as a necessary consequence, been required to adopt a
religious mantle. The Court would determine as to whether a practice is or is not an
essential part of religion. This has enabled the Court to adopt a reformist vision of
religion even though it may conflict with the views held by the religion and by those
who practice and profess the faith. The competence of the Court to do so and the
legitimacy of the assumption of that role may be questionable. The Court discharges a
constitutional (as distinct from an ecclesiastical) role in adjudication. Adjudicating on
what does or does not form an essential part of religion blurs the distinction between
the religious- secular divide and the essential / inessential approach. The former has
a textual origin in Article 25(2)
(a). The latter is a judicial creation".
60. The learned Senior Counsel Mr. Seervai submitted that the structural safety of the
Atash Behrams would be 141 wp_2890.18.j.doc endangered in case the tunnels are

constructed underneath. The learned Counsel referred to other structures in the

vicinity which developed cracks due to on going Metro work. Similarly, other
examples are given in respect of old structures around which the MML-3 work is
going on. According to the the learned counsel, vibrations emanating due to boring of
tunnel by the Tunnel Boring Machine (TBM) would severely cause damage to the 188
year old Atash Behram structure. On this ground, the counsel for the petitioners
submitted that it is not technically feasible to allow the boring of underground
tunnel. In case of damage to the structure, the community nationally and
internationally would be severely prejudiced and pained. It is submitted that the
Metro Line is required to be realigned. In respect of the VJTI Report, it is submitted
that the said Report is not based on essential and required data based on spot
inspection and technical assessment. The VJTI Report, according to the Counsel, is
based on Visual inspection and some documentary 142 wp_2890.18.j.doc data
collected. The Counsel therefore submitted that the Report is not convincing one in
deciding as to whether there is technical feasibility to construct underground tunnel.
61. Learned Senior Counsel for Respondent No.4 placed reliance on the conclusions drawn by
5-Member Team appointed by the High Court pursuant to the orders dated 25.7.2018 and 6.8.2018
and the VJTI Report dated 9.8.2018, which, according to the Counsel, is in favour of Respondent
No.4. The Court may not be in a position to assess the technical feasibility in the light of the Report
of 5-Member Team of VJTI and the conclusions drawn by 5-Member Team of VJTI which are placed
on record by Respondent No.4. The learned Senior Counsel submitted that the project is managed
by Experts in the field of national and international repute and they have already mentioned the
precautions which the Experts would be taking in operating TBM.
143 wp_2890.18.j.doc
62. We have perused the Experts' Reports submitted from both sides and the Report filed by 5
Directors of MMRC i.e. Respondent No. 4 and VJTI Report and the other material placed on record.
The VJTI Report shows that external inspection of other buildings and roads in the vicinity of Atash
Behrams was also done. The VJTI Experts under the order of this Court, carried out and examined
the impact of proposed Metro Rail work including tunneling and constructing of proposed
Kalbadevi Station, both constructions as well as operating of Metro Rail (a) on structural safety of
Atash Behrams (b) on the water levels (including contamination) in the wells situated within both
the Atash Behrams.
63. Anjuman Atash Behram structure, according to VJTI Experts, is primarily a G+1 load bearing
structure. It is Grade III Heritage Structure as per the Mumbai Heritage Conservation 144
wp_2890.18.j.doc Committee list. Upline tunneling passes under the structure (the Centre Line of
the tunnel - 6.68 in diameter running along the boundary wall). The VJTI Team along with
Representatives of the Trustees of Anjuman Atash Behram carried out external visual inspection on
28.7.2018 and 4.8.2018. Dr. R.D. Daruwala, Professor and Head, Electrical Engineering
Department, VJTI, practising Zoroastrian faith, took photographs of the internal surfaces of
Anjuman Atash Behram. The Report described general impression of building including visual

architectural construction on the condition of the structure. MMRCL carried out geotechnical
investigations to identify the different layers of strata, quality / grade of soil / rock in each layer,
depth of water table and other geotechnical parameters. Layer I, Layer II and Layer III of below
ground level were also described in the Report.
64. On Vibration Analysis, the VJTI Report states that tunneling operation is being carried out using
TBM. In addition 145 wp_2890.18.j.doc to this, MMRCL proposed to use controlled blasting as one
of the alternate method for Kalbadevi station construction. Controlled blasting causes vibrations
that propagates through the soil / rock medium to the structures on ground. They recommended the
Peak Particle Velocity at ground surface shall not exceed 2.54 mm / sec (As per AASHTO
Guidelines) at both Behrams, due to tunneling underneath or any other construction activity. The
Station consists of three tunnels, two platform tunnels plus one central NATM tunnel and two cut
and cover boxes on either side of the Station.
65. The Report states that MMRCL proposed to use controlled blasting as one of the alternative
methods for Kalbadevi station construction. The maximum Peak Particle Velocity, the Wadiaji Atash
Behram structure is going to experience 1.956 mm / sec. Analysis is also performed to establish safe
peak particle velocity for Wadiaji Atash Behram 146 wp_2890.18.j.doc structure. In addition to this,
based on vibration level during construction of CST Metro station and during controlled blasting for
construction of Shaft-Pali ground Metro project at Marol, Mumbai, it is predicted that the vibrations
induced due to Kalbadevi Station construction on Wadiaji Behram Structure shall be within the
permissible limits i.e. (PPV) will not exceed 2.54 mm / sec. Geological investigation shows that the
geological strata at Kalbadevi metro station is similar to that of CST metro station.
66. On monitoring water levels in the wells and Piezometers, the Report states that total four wells
are present in the premises of each of Atash Behram structure and they are monitored on regular
basis by MMRCL for water level. The water level data from 17.5.2018 till 30.7.2018 shows no
significant variation in water level during and after metro tunneling work.
147 wp_2890.18.j.doc
67. Construction activity on the plot situated at west side and abutting to the boundary of Wadiaji
Atash Behram is observed. On the day of visit i.e. 28.7.2018, installation of shoring system and
excavation approximately upto depth 6 to 7 mtrs. has been carried out from the foundation. This
activity has not affected water level in the well location in the premises of Wadiaji Atash Behram
structure. VJTI Report concluded as under (Ref. Pg. 602 of VJTI Report dated 9.8.18) :
"13.0 CONCLUSION:
After going through the inferences from test reports, scrutiny and review of design
calculations and drawings, Monitoring Data, methodology of the work and site
inspection, following conclusions are drawn: Effect of Tunneling work on safety of
both Atash Behram buildings

1. The proposed tunneling work (using TBM) for Metro line -3 passing under Wadiaji
and Anjuman Atash Behram buildings shall not have adverse effect on the 148
wp_2890.18.j.doc structures.
2. The proposed tunneling work (using TBM) for Metro line 3, passing under Wadiaji
and Anjuman Atash Behram buildings, shall not have adverse effect on level and
quality of water in the wells within the premises of both Atash Behrams.
Effect of Operation of Metro Rail (Line 3) on safety of both Atash Behram buildings.
1. Operation of the Metro Rail, through the proposed tunnels passing under Wadiaji
and Anjuman Atash Behram buildings shall not have adverse effect on the structures.
Effect of Proposed Construction of Kalbadevi Station on safety of Wadiji Atash

Behram building
1. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atash Behram

building shall not have adverse effect on this structure.
2. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atash Behram

building shall not have averse effect on level and quality of water in the wells within
the premises of Wadiaji Atash Behram.
Recommendations
149 wp_2890.18.j.doc
In order to achieve additional safety, following measures are recommended:
1. Excavation for cut and over at Kalbadevi station near the corner of Wadiaji Atash
Behram shall be carried out by drilling line holes upto bottom for the plan area of 3
x3 mtrs. The further excavation in remaining area shall be carried out by mechanical
means or control blasting. The perforation (drilling holes) by line drilling will further
reduce to vibration on Atash Behram buildings.
2. Both the Atash Behram structures should be closely monitored for settlement,
vibration, tilt and change in crack width before, during and after tunneling and
construction of proposed Kalbadevi Station. Vibration monitoring shall be carried on
24/7 basis during construction works.

3. Wells in the premises of both the Atash Behrams should be closely monitored for
water level and water quality".
[EMPHASIS SUPPLIED]
68. The VJTI therefore, recommended that excavation for cut and cover shall be carried out by
drilling line, holes up to bottom for the planned areas 3 x 3 mtrs. and other excavation in 150
wp_2890.18.j.doc remaining areas shall be carried out by mechanical means or controlled blasting.
The perforation (drilling holes) by line drilling will further reduce vibration and monitoring shall be
carried out by 24x7 by controlled blasting.
69. There are total 17 Annexures on various aspects including the technical ones. The Report has
recommended that controlled blasting technique needs to be adopted and vibration monitoring
shall be carried out on 24 x 7 basis.
70. We are are not persuaded to hold that the use of TBM underneath the premises would damage
the structure. Certainly Contractors, Technicians and Experts shall have to take abundant
precaution while using TBM and the work shall be monitored 24 x 7. In case of any crack damages
noticed, then Technicians need to resort to corrective measures as per the Expert's advice at the
relevant time.
151 wp_2890.18.j.doc
71. During the course of hearing, learned Senior Counsel Mr. Seervai appearing for the petitioners
submitted that alternative proposals have been submitted to the contesting Respondents for
realignment of the tunnel. Views of Experts like Architect Mr. Hafiz Contractor are also placed on
record. It was submitted by the learned Counsel that Expert in the field of national and international
repute states that still the Metro line could be realigned and the premises of Atash Behram is saved
by shifting Metro line outside the boundary walls of the Atash Behrams. The issue was pending
consideration of the Respondents but ultimately, learned Senior Counsel Mr. Aney informed that
the authority is not in favour of accepting any of the proposals as their Technical Experts' Team is
not in agreement with the alternative proposals.
72. One of the important factors which is brought to the 152 wp_2890.18.j.doc notice of the Court is
that the subject Metro line is referred to as upline. The metro tunnel on the other side has already
been constructed and the subject metro tunnel passing through Atash Behram is going upwards,
therefore, it was submitted that now the realignment is not possible as the same will disturb
construction of Kalbadevi station and it will further disturb the alignment between the two Metro
lines going upward and downwards. We find substance in the submissions advanced by learned
Senior Counsel appearing for Respondent No.4.
73. It has also been brought to our notice that petitioners did not raise any objection when the
contesting Respondent No.4 called for suggestions and objections and fixed date for public hearing.
The petitioners had an opportunity to place their case before the authorities concerned at the

relevant time but they failed to do so.
153 wp_2890.18.j.doc
74. It was also submitted by the contesting Respondents that the petition is filed by individuals
raising issue concerning the community as a whole when no leave of the Court has been taken under
Order I Rule 8 of Civil Procedure Code, therefore, the views expressed by the petitioners and some
of the Priests in the affidavits shall not be taken to be the views of the community and it could not be
appropriate to allow the petition on the basis of pleadings and material placed on record by the
petitioners.
75. No doubt, it is true that Mumbai is one of the congested cities of the Country. It is submitted that
during the course of arguments of learned Addl. Solicitor General Mr. Anil Singh submitted that
Mumbai local trains are catering to more than 75 lakhs of people daily. There are about 2500 to
3000 deaths reported every year in the running of local trains in Mumbai. It is a matter of serious
concern. Mumbai is a commercial hub nationally and internationally. Looking to the 154
wp_2890.18.j.doc growing needs of the city and considering the safety of its people, it has been
decided to implement the construction of Metro in Mumbai.
76. Mumbai is a megacity and a commercial hub known nationally and internationally. Due to rapid
growing up organizations, cities in the Country have become more populous. Mumbai is no
exception. In fact, it has attracted a huge investments in infrastructure, trade and commerce. People
from all walks of life in the Country, settled down in Mumbai either in search of employment or to
pursue their profession, trade or business. Mumbai is a city of Islands. Mumbai has its own
limitations in catering to the every growing pressure and one of the biggest challenge is transport.
77. The residents of Mumbai city deserve a safe and convenient transport system. In fact, such
system ought to have 155 wp_2890.18.j.doc been placed long back.
78. The realignment of project brought before us shows that it is passing through many congested
areas of Mumbai and its suburbs. It is a challenging job for the experts to execute this project. It
becomes from sensitive when it comes to protect monuments, heritage buildings and old structures.
With the expertise in the field, this task too needs to be achieved by the experts. In the process, some
inconvenience is very likely to be caused.
79. On the other hand, the Respondents have shown concern with delaying execution of the project
which affects the public interest. It adversely affects the contractual rights of the parties and even
the financial agencies. It causes escalation of cost too which generates further litigations.
80. The learned Senior Counsel Mr. Seervai appearing for 156 wp_2890.18.j.doc the petitioners
vehemently submitted that the technical reports submitted so far, need to be discarded and the
reports which the learned Senior Counsel Mr. Seervai was relying upon, needs to be accepted. In
view of the material placed on record, we are not persuaded to accept the said proposition and / or
substitute our opinion in the matters which are of extremely technical nature and relate to execution

of a project based on contracts arrived at between the parties.
81. The learned Senior Counsel Mr. Devitre appearing for the Trust submitted that the down
tunneling by drilling is going on since 11.7.2018 and on 14.7.2018 cracks were noticed to the
surrounding buildings. A reference was made to affidavit of Mr. Jamshed Noshir Sukhadwalla filed
on 4.8.2018. In para 2 of the affidavit, Mr. Jamshed Sukhadwalla states that "Wadia building which
is situated right next to the H.B. Wadiaji Atash Behram and which is also 188 years old like the H.B.
Wadia Atash 157 wp_2890.18.j.doc Behram, developed huge cracks on 11.7.2018. The Mumbai
Building Repair and Reconstruction Board which is a MHADA Unit has by its letter dated 21.7.2018
observed that rear portion kitchen area of the building is in a dilapidated condition, the I- Section
beam supporting the rear portion kitchen area of the structure is distressed and may break at any
moment. Further, the wall portion joining the front portion and the rear portion kitchen area has
developed a separation crack making it more dangerous. The petitioners state that to avoid any
untoward incident and loss of property / life, permission was granted for demolition of rear portion
kitchen area of the said structure. The Report of Grace Consultants dated 23.7.2018 records that the
Wadia building is still in precarious state after propping up and covering of the separation crack. It
further states that Trust needs to secure an area statement and a re-erection report from the
MHADA authorities. A copy of the Report together with the photographs of the cracks is also
annexed to the affidavit.
158 wp_2890.18.j.doc
82. It is further submitted that it appears that from Respondent No.4's own Report on Kalbadevi
station which is annexed at Annexure-X to the Report of the Respondent No.4 dated 15.6.2018, that
NATM techniques will involve controlled blasting not only for the Central NATM tunnel and the
lower tunnel but also the upper tunnel proposed to run under the Wadiaji Atash Behram. The
Respondent No.4 has shared with the petitioners diagrams / plans depicting the NATM technique
which involves "controlled blasting". It is further stated that Respondent No.4 annexed newsletter
dated November 2017, wherein Respondent No.4 has clearly stated that controlled blasting methods
are preferred. As a result of the construction of the proposed station at such close proximity to
Wadiaji Atash Behram, some of the controlled blasting operations will actually be carried out
underneath the Wadiaji Atash Behram. This significantly increases risk of serious damage to the
structure of 159 wp_2890.18.j.doc Wadiaji Atash Behram. Reference is also made to a
communication made by Minu J. Modi addressed to the Trust of H.D. Wadia fire temple Trust dated
25.7.2018 which is report of Architect - Grace Consultants. The learned counsel Mr. Divetre further
referred to the affidavit filed on behalf of Respondent Nos. 10 to 12. In the affidavit, Mr. Hosi Daly
Dastur- Respondent No.12 states in paragraphs 3 and 4 as under:
"3. On 11th July, 2018, one of the tenants informed the secretary of the Trust that the
first Wadia building in the Wadia Compound along J.S.S. road had developed a big
crack. Thereafter, the secretary of the Trust telephonically informed me of the
developments and also vide his email dated 11th July, 2018 placed the events of the
day before the Trustees. A copy of the said email dated 11th July, 2018 is annexed
hereto as Exhibit-1. On the said date, M/s. Grace Consultants, Architects were also

requested to survey the damage, determine the potential threat and suggest remedial
measures, if any. I say that both the municipal authorities and MHADA authorities
were informed of the developments and sent 160 wp_2890.18.j.doc their engineers
on 11th and 12th July, 2018 to inspect the damage to the said building and report the
matter to their seniors to take further action. In fact, a complaint was registered with
the Municipal Corporation of Greater Mumbai ("MCGM") on 11th July, 2018 by the
Trust in connection with the crack which had appeared on the building and a
complaint no. 201805701 was provided by MCGM in this regard. I say that the crack
appeared on 11th July, 2018 and there was no such crack prior to 11 th July, 2018.
4. I say that on 11th July, 2018 when the municipal authorities and MHADA
authorities visited the Wadia Compound, they discussed with M/s. Grace Consultants
the method of propping up the building and agreed to M/s. Grace Consultant's
proposal of erecting a portal frame using heavy steels I sections. I say that the work of
propping up continued the entire night and the tilt in the building was stabilized.
Other remedial measures were also taken, all of which are enumerated in the report
of M/s. Grace Consultants dated 25 th July, 2018. The material inter alia required for
propping up the said building was supplied by Master Home Makers. Copy of the bill
Master Home Makers dated 17 th July, 2018 is annexed hereto as Exhibit-2. The
report of M/s. Grace 161 wp_2890.18.j.doc Consultants dated 25th July, 2018 in this
regard has been placed on record by the Petitioners in their Affidavit dated 4th
August, 2018 which was served on my Advocates on the same date".
83. The Counsel further referred to VJTI Report which is at page 584 of the paper book. Paragraph
5.0 of the Report states as under:
"5.0 External inspection of other buildings and roads in the vicinity of Atash Behram
structures Road surface in and around the alignment between CST Metro station to
proposed Kalbadevi Metro station has been inspected for settlement, undulations
and caving. No adverse effect of tunneling activity has been observed. Metro tunnel
(Down line) has also crossed the buildings which are classified (BCS conducted by
MMRCL) under severe and including few heritage structures. Building structures
within the zone of influence of Metro construction work are being monitored by
MMRCL for change in crack-width, settlement, tilt and vibration. The data provided
from 07.05.2018 to 30.07.2018 indicates that these parameters are within the
permissible design 162 wp_2890.18.j.doc limits prescribed by MMRCL (Annexure
IV). VJTI Team also carried out inspection of few structures externally and has not
observed any adverse effect of underneath tunneling activity.
Wadia trust building situated on the North side of Wadiaji Atish Behram and
abutting JSS Road shows separation between two parts of the building. Prima facie, it
appears that these two portions has been constructed on different period of time and
apparently there is no structural connectivity between these two parts. Since this gap
is not being monitored, the widening of gap cannot be commented whether it is due

to tunneling or any other activities."
84. Further reference was made to affidavit filed by Respondent No.4 by the learned counsel with
specific paragraphs 19, 21, 22 and 23 which read as under: (Ref. Additional Affidavit dated 16.8.18
pg.877-878):
"19. With reference to the contention regarding the cracks developed on Wadia
Building, I submit that such damage has no relation to the construction of the 163
wp_2890.18.j.doc Down Line Tunnel. The alleged separation crack referred to in the
Affidavit is located at a distance of 55.54 metres (182 feet) from the centre line of the
down line tunnel. Respondent No.4 has installed various instruments like Building
Settlement Markers, Pavement Settlement Markers, Bi-Reflex Targets, Crack Metres
and Tilt Plates in adjacent buildings such as Khan House, Dharmashee Building,
Singapuri Building, Chugmal Building, Pokhraj Building, Rajshilla Building, Kapadia
Chambers, Maheshwari Bhawan and Karim Manzil on the Down Line side and
Wadiaji Atash Behram and Wadia Building (Residential), Subodh Darshan A and
Wing and Gurudev Complex on the Up line side to observe any settlement or
deflection. However, the installation of instruments in Wadiaji Atash Behram and
Wadia Building (Residential) was limited to the outer boundaries of the structures as
permissions were not granted for installation of instruments inside the structures.
The data recorded by Respondent No.4, four times a day, did not show any deflection
or settlement. Furthermore, there are several structures between the Down Line
Tunnel and the Wadia 164 wp_2890.18.j.doc Building which are closer to the down
line tunnel than the subject building and none of these structures showed any sign of
distress during the construction. Furthermore, the alleged crack is shown to be on
Western Side of the structure whereas the Down Line Tunnel passes through the
Eastern Side of the structure.
21. I further submit that the Wadia Building has been in dilapidated condition for a
long time and several notices were earlier issued by the Mumbai Building Repair and
Reconstruction Board of MHADA ("MBRR") calling upon the occupants of the said
building to vacate the premises as the building is in a dilapidated condition and is
likely to collapse at any point of time. The same is evident from the letter dated 21st
July, 2015 addressed by MBRR to the occupants / tenants of Wadia Building.
Furthermore, the letter dated 12th July, 2018 addressed by MBRR to the Secretary of
Wadia Fire Temple records that the steel structure of Wadia Building is "totally
corroded". Hereto annexed and marked as Annexure "4" is a copy of the letter dated
21st July, 2015 addressed by 165 wp_2890.18.j.doc MBRR to the tenants / occupants
of Wadia Building. Hereto annexed and marked as Annexure "5" is a copy of the
letter dated 12th July, 2015 addressed by MBRR to the Secretary of Wadia Fire
Temple. It appears that in spite of such notices, the occupants have not vacated, nor
the Trustees of the Concerned Agyari has taken steps to rectify the damages.

22. I further state that undertaking repair work by the MBRR is a detailed process
which involves several stages, including:
a. Identification of repairs
b. Inspection of the buildings
c. Issue notice to landlord
d. Intimation to Occupants
e. Propping the building and issuance of vacation
notice.
Considering that MBRR had issued notices on 2015, it can be stated that the Wadia
Building was in a dilapidated condition since a long time.
23. I say that the aforementioned facts show that Wadia Building was in dilapidated
condition since 166 wp_2890.18.j.doc long and any alleged crack developed on such
structure on 11th July, 2018 cannot be attributed to the construction work carried out
for the Down Line Tunnel which is at a 55.54 meter (182 feet). Furthermore, the
structural condition of H.B. Wadiaji Atash Behram is far better than Wadia Building.
Thus, the damage to Wadia Building is not relevant for the purpose of assessing the
impact of metro work on the structural health of H.B. Wadiaji Atash Behram".
(Ref.pg 877 to 879)
85. The technical aspects highlighted by learned counsel Mr. Divetre has been considered by the
Experts and under Report of VJTI. The contesting respondents have already disclosed their stand
that they would adopt method of controlled blasting with restricted vibrations so that it would not
endanger structure and would take all steps expected of it. This monitoring will be done 24 x 7
according to the Respondents. Though both sides have conflicting claims on the measures to be
adopted for protecting the age old structures of two Atash 167 wp_2890.18.j.doc Behrams, we have
carefully examined the precautionary measures which the contesting Respondents have decided to
observe while TBM is put into operation during the boring of the underground tunnel passing
through the premises. We are therefore, not persuaded to adopt a contrary view other than the one
expressed by the Experts and Technicians which is placed on record by the Respondents.
86. The learned Senior Counsel for Respondent No.4 has referred to the views expressed by the
Apex Court in the case of N. D. Jayal and another Vs. Union of India reported in (2004) 9 SCC 362.
Paragraphs 22 and 23 in the said judgment read as under:
"22. Before adverting to other issues, certain aspects pertaining to the preservation of
ecology and development have to be noticed. In Vellore Citizens' Welfare Forum V.
Union of India, (1996) 5 SCC 647 and in M.C.
Mehta Vs. Union of India, (2002) 4 SCC 356, it was observed that the balance
between environmental 168 wp_2890.18.j.doc protection and developmental
activities could only be maintained by strictly following the principle of "sustainable
development". This is a development strategy that caters to the needs of the present

without negotiating the ability of upcoming generations to satisfy their needs. The
strict observance of sustainable development will put us on a path that ensures
development while protecting the environment, a path that works for all peoples and
for all generations. It is a guarantee to the present and a bequeath to the future. All
environment related developmental activities should benefit more people while
maintaining the environmental balance. This could be ensured only by strict
adherence to sustainable development without which life of the coming generations
will be in jeopardy.
23. In a catena of cases we have reiterated that right to clean environment is a

guaranteed fundamental right. Maybe, in a different context, the right to
development is also declared as a component of Article 21 in cases like Somatha Vs.
State of A.P., (1997) 8 SCC 191 and in Madhu Kishwar Vs. State of Bihar, (1996) 5
SCC 125.
87. The learned Senior Counsel for Respondent No.4 has 169 wp_2890.18.j.doc referred to the
affidavit-in-rejoinder filed by Shantaram Ganpat Dalvi dated 26.6.2018 on behalf of Respondent
No.4. Paragraphs 6 and 7 of the said affidavit-in-rejoinder reads as under (Ref. Pg.215 & 216):
"Compromise to the Structural Integrity of the Atash Behrams:
6. That the petitioners have contended that there is "a distinct possibility that there
will be physical damage to the structure and edifice" of the Atash Behrams. It has
been averred by the petitioners that a certain building named Jer Mahal Annexe
suffered significant damage including collapsing of ceiling walls as a result of the
construction of tunnels. It is stated that at the time of incident referred to by the
petitioner, the construction was being undertaken nearly 116 meters away from the
location of the said building. Further, the construction work of the tunnel was on
hold for three days prior to the said incident for routine maintenance work.
Considering the fact that the vibrations from the operation of the Tunnel Boring
Machine (hereinafter referred to as "TBM") has had no effect upon other buildings of
the area, it 170 wp_2890.18.j.doc cannot be said that the damage caused to the Jer
Mahal annexe building has been caused by the construction undertaken by
Respondent No.4. It is submitted that the petitioners have relied upon premature
reporting of the incident in certain newspapers to conclude that the operations of
Respondent No.4 are alone responsible for the incident. It is submitted that the
petitioners have failed to establish any casualty between the damage to the Jer Mahal
annex building and the construction of MML-3. Copy of the incident Report of Jer
Mahal Annex Building submitted by the Project Management Consultants to
Respondent no.4 is annexed hereto and marked as Annexure-1.
7. That the construction of the MML-3 is being carried out by the Respondent No.4
after exercising extensive due diligence. A detailed protocol has been laid down for
the protection of heritage buildings such as the Atash Behrams and other buildings

from the impacts of tunneling and excavation works. The subject buildings are
assessed and categorized based on the structural health of the building. In cases
where the health of the structure is precarious, protection and mitigation measures
are undertaken and continuous monitoring is 171 wp_2890.18.j.doc undertaken
during construction. A copy of the report titled "Approach of Protection of Heritage
(and other) Buildings from Impacts of Tunneling and Excavation Works" is attached
hereto and marked as Annexure-2. That as per the Building condition Survey Report
(hereinafter referred to as "BCS report"), the Anjuman Atash Behram is classified as
"slight" (i.e. Building with Moderate non-structural cracks, severe non-structural
cracks and presence of water seepage.) Further the BCS report for Wadiaji Atash
Behram classifies it as 'Moderate' building category, (i.e. Building with minor,
sporadic spalled concrete and presence of water seepage). It is stated that although
280 meters of tunneling work has been undertaken in the Kalbadevi area by
Respondent No.4 underneath buildings categorized as "Severe", (i.e. Buildings with
Major extensive spalled concrete, bulging of structural & load bearing elements,
exposure of reinforcement bars of columns and beams and presence of water
seepage), and "Very Severe" (i.e. Building with Deteriorated structural / load bearing
elements, heavily exposed reinforcement in columns & beams of framed structures,
deflected / tilted and propped structural elements and water leakages) as per the BCS
report, no data recording settlements, tilt or change in the crack 172
wp_2890.18.j.doc width with respect to such buildings have been recorded. Further,
the same construction techniques have been employed in various areas of Mumbai
city without any adverse incidents. It is also pertinent to note that in spite of repeated
requests, Respondent No. 10 to 12, being Trustees of the Hormasji Bomanji Wadia
Fire Temple Charity Fund, have restrained Respondent No.4 from undertaking
Building condition Survey through a Parsi contractor or installing monitoring
instruments within the premises. It is in the interest of all concerned the such
surveys, assessments and scientific monitoring be carried out. Such exercises would
present the likelihood of any prospective damage. In light of the facts stated
hereinabove, it is apparent that the petitioners have relied on mere speculations and
not actual facts to state that the construction of MML-3 threatens the structural
integrity of the Atash Behrams. This contention has been dealt with more elaborately
below".
88. Incident Report of Jer Mahal annex building brings out the facts under caption "occurrence of
incident and tunneling works" in the said affidavit. According to the learned Counsel, the TBM was
stopped on 19.4.2018 and Jer Mahal annex incident 173 wp_2890.18.j.doc has taken place on
21.4.2018 at 6.00 a.m. At that time, TBM-1 was stopped for the down time maintenance. At that
point of time, it was 116 mtrs. from Jer Mahal annex building. It is further submitted that TBM-2
was stopped on 2.4.2018 and at the time of Jer Mahal annex incident, TBM-2 was stopped for the
down time maintenance. It was 385 mtrs. away from Jer Mahal annex and submission of the
learned counsel for the petitioners is making confusion in the affidavit dated 11.7.2018. The
confusion created by the petitioners in projecting as if it was upto Jer Mahal annex building. Jer
Mahal annex building was categorized as "severe", whereas the nearby Atash Behram is classified as

"moderate" by Respondent No.4 and "slight" by VJTI Team. Reliance was placed on building
condition report prepared by MMRC's general consultants. The survey report papers refer to set out
approach proposed to be adopted in MML- 3 to ensure that the building within the influence zone of
MML-3 and tunnel works are not adversely affected by the works, the 174 wp_2890.18.j.doc
relevant contract condition within the 7 awarded underground tunnel and station contracts ensuring
that the process is followed and review of the status of the process is made. (pg. 234 Part-II). Para 2,
2.1 and 2.3 of the Report read as under:
"2. The process 2.1. Assessment: Existing Building Surveys are to be undertaken to
determine the foundation type, structural form and condition of each building which
are used in conjunction with the buildings use and importance to determine the
Building Damage Classification which in turn sets the limits on impacts that can be
imposed. Typically the influence zone is being taken as 50 mtr. Each side of the
MML-3 centreline Heritage buildings would be placed in the most severe Building
Damage Classification with Risk Category Zero and damage Description of
Negligible. For such a category the building damage is limited to hairline cracks and
tensile strains less than 0.05%.
2.3 Design of Mitigation Measures.-
Where it becomes apparent that the impacts cannot be constrained to limits that will
prevent building damage mitigation measures will be developed to prevent excessive
building damage.
175 wp_2890.18.j.doc
Examples are:
a. Noise and vibrations barriers.
b. Water recharge
c. Propping of structures in poor condition.
d. Temporary removal of loose architectural fittings.
Where the existing building condition is very poor temporary vacation of buildings
may also be considered and in extreme circumstances controlled demolition of
buildings may be required.
2.4 Monitoring-
Monitoring will be used to ensure that actual impacts of excavation do not exceed the
set limits and if necessary used as alerts for the need to implement more reactive
mitigation measures or revised excavation measures. Monitoring devices to be
installed include;
a. Ground settlement markers.

b. Ground inclinometers.
c. Ground water measurement - static and piezo

metric
d. Building settlement markers.
e. Building tilt meters.
f. Building vibration monitors.
The monitoring devices will be installed at least one month before works commence
and should be monitored 176 wp_2890.18.j.doc daily until at last 6 months after
works are complete. During the period when works are immediately adjacent to a
building the monitoring should be done more frequently and consideration given to
real time monitoring".
In table 3-1 (Ref. Pg.238), the building damage classification is described, which reads as under:
Table 3-1 : Building Damage Classification Building Damage Classification (after

Burland et al, 1977 and Boscardin and Cording, 1989) Risk Description of Description
of Typical Approx. Max Tensile Category Degree of Damage and Likely Crack Width
Strain % Damage Form of Repair for (mm) Typical Masonry Building 0 Negligible
Hairline cracks Less than Fine cracks easily treated during normal redecorations.
1 Very Slight Perhaps isolated slight 0.1 to 1 0.05 to 0.075 fracture in building.
Cracks in exterior brickwork visible upon close inspection Cracks easily filled,
Redecoration probably required. Several slight fractures inside building. Exterior 177
wp_2890.18.j.doc cracks visible. Some 2 Slight repointing may be 1 to 5 0.075 to 0.15
required for weather tightness. Doors and windows may stick slightly.
Cracks may require

cutting out and
patching. Recurrent
cracks can be masked
by suitable linings.
Tack-pointing and 5 to 15 a 0.15 to 0.3
possibly replacement number of
3 Moderate of a small amount of cracks greater
exterior brickwork than 3
may be required.
Doors and windows
sticking. Utility
services may be
interrupted. Water
tightness often
impaired.
Extensive repair
involving removal and
replacement of
sections of walls,
4 Severe especially over doors 15 to 25 but Greater than
and windows required. also depends 0.3
Windows and door on number of

frames distorted. cracks

Floor slopes
noticeably. Walls lean
or bulge
Major repair required
involving partial or
complete
5 Very Severe reconstruction. Usually greater
Beams, loadbearing, than 25 but
walls lean badly and depends on
require shoring. number of
Windows broken by cracks
distinction. Danger of
instability.
178 wp_2890.18.j.doc
Notes:
1. The table is based on the work of Burland et al (1977) and includes typical
maximum tensile
2. strain for the various damage categories (column 5) used in the stage 2 settlement
analyses
3. 2. Crack width is only one aspect of damage and should not be used on its own as
its direct measure. Movement and distortion shall be limited such that any individual
EBS shall not suffer damage greater than "Slight". For any EBS with assessed damage
greater than "Slight" and the structures falling into type a. b or c stage 3 assessments
shall be undertaken.
The stage 3 assessment shall include an in depth structural survey to determine the
structural form of the EBS to allow an assessment of the individual members
performance under the induced movements and distortions. Where necessary, that is
when the damage is greater than slight, protection and / or strengthening works shall
be designed so that the EBS is able to withstand the induced movements and
distortions with only slight damage.
Where damage cannot be limited to slight the EBS should be temporarily vacated
during construction in the adjacent areas.

179 wp_2890.18.j.doc In extreme circumstance where it is not possible to limit

damage to within acceptable levels demolition of the EBS can be considered.
89. Thus, the Survey Report shows that Heritage Building should be placed in most severe
classification with risk "zero" and damage description is negligible. For such a category, building
damage is limited to hairline cracks and tensile strain is less than 0.05%. The process of design of
mitigating measures and monitoring is also prescribed. This Report needs to be considered in view
of the classification as "moderate" by Respondent No.4 and "slight" by VJTI. This further lends
credibility to the views expressed by the learned Senior Counsel appearing for Respondent No.4
MMRC in respect of the technical feasibility aspect of the matter. We have also perused affidavit-
in-rejoinder filed on behalf of the petitioner to the affidavit-in- reply of Respondent No.4 dated
26.6.2018 filed by Mr. Jamshed Noshir Sukhadwalla and the annexures tendered along with the 180
wp_2890.18.j.doc same. We have also perused the communication made by Executive Engineer
dated 21.7.2015 addressed to all the tenants of building No. 598-A, J.S.S. Road, Mumbai calling
upon them to vacate the building on which the repair cess is levied and the process for repairs and
reconstruction as the case would be under process of law. (Chapter 8 of MHADA Act), to avoid
danger in order to save life and property.
90. The learned Senior Counsel has further referred to the provisions of Article 49 and 51-A of the
Constitution of India which read as under:
"49. Protection of monuments and places and objects of national importance. - It

shall be the obligation of the State to protect every monument or place or object of
artistic or historic interest declared by or under law made by Parliament to be of
national importance, from spoilation, disfigurement, destruction, removal, disposal
or export, as the case may be.
51A. Fundamental duties.-- It shall be the duty
181 wp_2890.18.j.doc
of every citizen of India -

(a) to abide by the Constitution and respect its ideals
and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for
freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;

(e) to protect harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers
and wild life and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so
that the nation 182 wp_2890.18.j.doc constantly rises to higher levels of endeavour
and achievement.] [(k) who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the age of six and
fourteen years.]".
91. The Counsel referred to the provision of Art. 51A(f) which itself states that it shall be the duty of
every citizen to value and preserve the rich heritage of our composite culture. A reference was also
made to the National Highways Act, 2005 (Law enacted by Parliament of Malaysia by the learned
Counsel which is placed on record. The learned Counsel for Respondent No.4 has further referred to
Ancient Monuments Preservation Act, 1904. The definition of ancient monument in Section 2(1)
thereof reads as under:
"2(1) "ancient monument" means any structure, erection or monument, or any

tumulus or place of interment, or any cave, rock sculpture, inscription or monolith,
which is of historical, archaeological or artistic interest, or any remains thereof, and
includes--
183 wp_2890.18.j.doc
(a) the site of an ancient monument,

(b) such portion of land adjoining the site of an ancient
monument as may be required for fencing or covering in or otherwise preserving

such monument, and
(c) the means of access to and convenient inspection of an ancient monument;".
Section 3 refers to definition of "protected monuments" which reads as under:
"3. Protected monuments.-- The Central Government may, by notification in the

Official Gazette, declare an ancient monument to be a protected monument within

the meaning of this Act.
(2) A copy of every notification published under sub- section (1) shall be fixed up in a
conspicuous place on or near the monument, together with an intimation that any
objections to the issue of the notification received by the Central Government within
one month from the date when it is so fixed up will be taken into consideration. (3)
On the expiry of the said period of one month, Central Government after considering
the objections, if any, shall confirm or withdraw the notification.
(4) A notification published under this Section shall,
184 wp_2890.18.j.doc
unless and until it is withdrawn, be conclusive evidence of the fact that the
monument to which it relates is an ancient monument within the meaning of this
Act".
92. A reference was made to the provisions of The Ancient and Historical Monuments and
Archaeological, Sites and Remains (Declaration of National Importance) Act, 1951. The preamble of
the said Act reads as under:
"An Act to declare certain ancient and historical monuments and archaeological sites
and remains in Part A States and Part B States to be of national importance and to
provide for certain matters connected therewith. Be it enacted by Parliament as
follows:--
1. Short title - This Act may be called the Ancient and Historical Monuments and
Archaeological Sites and Remains (Declaration of National Importance) Act, 1951.
2. Declaration of certain monuments and archaeological sites and remains to be of

national importance - The ancient and historical monuments referred to or specified
in Part I of the Schedule, and the archaeological sites and remains referred to or
specified in Part II thereof are hereby declared, respectively to be ancient and
historical monuments and archaeological sites 185 wp_2890.18.j.doc and remains of
national importance.
Application of Act VII of 1904 to ancient monuments, etc. declared to be of national

importance - All ancient and historical monuments and all archaeological sites and
remains declared by this Act to be of national importance shall be deemed to be a
protocol monuments and protected areas, respectively, within the meaning of the
Ancient Monuments Preservation Act, 1904, and the provisions of that Act shall
apply accordingly to the ancient and historical monuments or archaeological sites

and remains as the case may be, and shall be deemed to have so applied at all
relevant times".
93. A reference was further made to the provisions of Ancient Monuments and Archaeological Sites
and Remains Act, 1958. Section 2(a) defines "ancient monument" and 2(j) defines "protected
monument" thereof read as under:
"2(a) "ancient monument" means any structure, erection or monument, or any

tumulus or place of interment, or any cave, rock sculpture, inscription or monolith,
which is of historical, archaeological or artistic interest, and which has been in
existence for not less than one hundred years, 186 wp_2890.18.j.doc and includes --
(i) the remains of an ancient monument,

(ii) the site of an ancient monument,
(iii) such portion of land adjoining the site of an ancient monument as may be
required for fencing or covering in or otherwise preserving such monument, and
(iv) the means of access to, and convenient inspection of an ancient monument;".
"2(j) "protected monument" means any ancient monument which is declared to be of

national importance by or under this Act."
94. Placing reliance on the above provisions, the learned Counsel submits that neither of two Atash
Behrams is "ancient" or "protected monuments" as prescribed under the Act. They have not been
notified accordingly and the petitioners are not entitled to take benefits of these provisions.
95. The learned Senior Counsel for Respondent No.4 while replying to the contentions submitted
that speed for safe 187 wp_2890.18.j.doc operation of TBM is 10 mtrs. per day. TBM for the upline
is 100 mtrs. away from Anjuman Atash Behram and 200 mtrs. away from Wadiaji Atash Behram. It
would take approximately 10 days for the machines to reach boundary of Atash Behram and 20 days
to reach Wadiaji Atash Behram from its current location. Counsel submitted that it is possible to
reduce the speed of TBM to the extent possible. However, such reduction of speed increases the
likelihood of squeezing of the ground, which may result in settlement of the ground at surface level.
The Respondent has set-up a detailed protocol for monitoring various structures involving
installation of various monitoring devices such as Ground Settlement Markers, Building Settlement
Markers, cracks meters, Building Tilt Meters, Building Vibrations Monitors, Bi-reflex targets,
Optical targets.
96. The following monitoring process are being implemented and shall be implemented for the
concerned Atash 188 wp_2890.18.j.doc Behrams:
a. Currently the Atash Behrams are being monitored for settlement markers installed
on the outer walls and pavements in front of the Atash Behrams; b. Vibrations will be
monitored using vibration sensors on a 24 x 7 basis;
c. Tilt monitoring will be done by tilt plates which are installed on the external wall of
Wadiaji Atash Behram; d. Any existing cracks on the outer wall can be monitored by
installing crack meters and any existing cracks inside the structure can be monitored
by installation of crack meters inside the structure, if such permission is granted.
A detailed system for monitoring is in place with respect to monitoring of structures:
a. A team of 4 engineers comprising of Instrumentation and Monitoring Engineer is

designated for monitoring the structures b. There are defined trigger levels for the
Structures within the influence zone of metro construction works viz.
(i) Alter Level : Set as 0.5 times the serviceability limit value defined for the
monitored structure
(ii) Action Level : Set as 0.8 times the serviceability 189 wp_2890.18.j.doc limit value
defined for the monitored structure
(iii) Aler Level : Set as the serviceability limit value defined for the monitored
structure c. Daily instrumentation and monitoring report is sent to the officials of the
Answering Respondent, the supervision team of Contractors, the officials of the
Detailed Deign Consultant and the General Consultant d. The officials of the
Contractors and General Consultants are highly qualified in their respective technical
fields and include Doctorates in Geology, Post Graduates in Civil Engineering and
Mechanical Engineering etc.
97. The Respondent No. 4 further submits that the Down Line Tunnel has reached till Girgaum and
has crossed 92 structures. Out of these structures 4 structures are classified as "Very Severe", 30
structures are classified as "Severe" and 37 structures are classified as "Moderate".
98. On the point of "controlled blasting", the Respondent No.4 has to submit as under:
190 wp_2890.18.j.doc "1. 'Controlled Blasting" as the terminology indicates is a method of

controlled usage of explosives and blasting accessories in appropriately aligned and spaced drill
hole.
2. The energy and consequently the vibrations generated from such blasting method depend on the
quantity of charge / detonator used for such blasting. If lesser quantity of charge is used, the amount
of energy and consequently vibration generated from such charge can be limited to prefixed limits.
3. As per the British Standards, the permissible Pek Particle Velocity at EBS (Existing Building
Structure) for Heritage Structure is 5 mm / sec. As per the AASHTO (American Association of
Highway and Transportation Officials) Guidelines, the permissible Peak Particle Velocity at EBS for

Heritage Structure is 2.54 mm / sec.
4. If the energy generated for controlled blasting at a depth of 12 metres, is taken as 2800 Joules, the
Peak Particle Velocity at the Wadiaji structure would be 1.965 mm / sec. As stated earlier, the energy
generated from controlled blasting can be limited by using lesser charge. Thus, Respondent will
ensure that the Peak Particle Velocity generated from controlled blasting at the Wadiaji Atash
Behram will not exceed 2.54 mm / sec.".
191 wp_2890.18.j.doc
99. On Recommendation of VJTI, Respondent No.4 has to say as under:
"Excavation for cut and cover at Kalbadevi station near the corner of Wadiaji Atash
Behram shall be carried out by drilling line holes upto bottom for the plan area of 3 x
3 m. Further excavation in remaining area shall be carried out by mechanical means
or control blasting. The perforation (drilling holes) by line drilling will further reduce
the vibration on Atash Behram buildings; b. Both the Atash Behrams should be
closely monitored for settlement, vibrations, tilt and change in crack width, before,
during and after tunneling and construction of the Kalbadevi Station Vibration
monitoring shall be carried on 24/7 basis during construction works;
c. Wells in the premises should be closely monitored for water level and water
quality.
Respondent no. 4 on affidavit of Shantaram Ganpat Dalvi dated 16th August, 2018
has stated on oath that they would implement the recommendations and has also set-
out the detailed process of implementation (pg. 870 -
876)".
192 wp_2890.18.j.doc
100. On drying up of well water, the Respondent No.4 has to say as under:
"1. The petitioners have contended that the proposed metro work would lead to
drying up of the wells located within the precinct of the Atash Behrams;
2. This Respondent submits that the wells are situated at the top layer of soil at a
depth of nearly 20 ft. while the tunnel is being constructed within the basalt rock
layer at a depth of 60 - 65 ft. Thus, there is considerable space and difference of
layers between the wells and tunnel;
3. This Respondent further submits that even if some temporary fluctuations are
observed during tunneling work, the same would be normalised once the TBMs pass

through the areas;
4. Additionally as a precautionary measure, 14 groundwater charging wells are

installed in the area to maintain water levels in the wells;
5. Further, the water levels in the wells are monitored twice a day by using water level
indicator. Quality check can also be carried out on monthly basis during the
construction period, if permission is granted for collecting water samples."
193 wp_2890.18.j.doc The Respondent also placed on record photographs of

instruments installed in Anjuman Fire Temple.
101. After going through the aforesaid details of precautionary measures, we find that
the Respondent No.4 has prepared a standard protocol to follow the process for
boring tunnel under Atash Behrams.
102. The learned Senior Counsel for Respondent no. 4 has referred to the following decisions:
(1) Mass Holdings (P) Ltd. Vs. Municipal Corporation of Greater Mumbai and Another, reported in
(2006) 10 SCC 503;
(2) V.R. Advertisers Vs. Municipal Corporation of Brihan Mumbai reported in (2006) 10 SCC 508;
(3) Dekay Realtors Pvt. Ltd. and another Vs. Municipal Corporation of Greater Mumbai, reported in
2012(2) Mh.L.J. 887;
(4) Sangita Balasaheb Kokare and others Vs. Alka
194 wp_2890.18.j.doc
Vijayrao More and others, reported in 2012 (2) Mh.L.J. 891;
(5) Jorge Alexandre Cruz Lourenco Vs. Lucas Fernandes (Since deceased) and others, reported in
2016(5) Mh.L.J. 95;
(6) Housing Development Finance Corporation Ltd. (HDFC Ltd.) Nagpur, reported in 2016(5)
Mh.L.J. 100.
(7) Amit Vishnupant Khot Vs. Union of India and others, reported in 2008(3) Mh.L.J. 257;

(8) VFS Global Services Pvt. Ltd. VS. Suprit Roy
reported in 2008(3) Mh.L.J. 266
(9) Arun Chitale (Dr.) & Ors. Vs. State of
Maharashtra reported (2014) 5 Bom. CR 139.
103. The learned ASG submitted that the petitioners have failed to establish that petitioners deserve
the protection under Article 25 of the Constitution of India. The rights guaranteed under Article 25
are subject to other fundamental rights under Part III of the Constitution of India. On merits, the
learned counsel submitted that the petitioners belief in respect of 195 wp_2890.18.j.doc
connectivity of fire underneath the earth in a circuits manner, is not supported by any evidence in
the shape of scriptures, tenets. The theory of "karshas" extends the belief under the surface of earth
and any construction underneath the surface of the earth would breach such karshas, is also not
supported by any cogent and reliable evidence. The excerpts from the Book and affidavits filed
cannot be the basis for placing reliance on these beliefs and practices. Assuming the beliefs and
practices are established, the same cannot be termed as essential and integral part of Zoroastrian
religion according to the learned Counsel.
104. The Metro tunnel is to be bored 60 to 65 mtrs. underneath. It goes to one corner of the Atash
Behram premises at a safe distance from karshas, therefore, the theory that drilling of tunnel would
desecrate the Atash Behram is not convincing and logical much less the tenets of Zoroastrian
religion.
196 wp_2890.18.j.doc
105. The learned A.S.G. was right in his submission in respect of need to have a safe transport in
Mumbai city and there is pressure on the local trains which cater to more than 75 lakhs of people /
commuters, one of the larger service being provided by local trains of Mumbai compared to the
world at large. The A.S.G. submitted that the local trains are lifelines of Mumbai and it is high time
that safe transport system is created and placed into service for the benefit of lakhs of people and
residents of Mumbai city considering the importance of the City nationally and internationally. The
Central Government is contributing the project financially. It is submitted that while we consider
the rights of the petitioners, it is necessary to protect rights of the common citizens and the residents
of Mumbai expects safe transport and clean environment which too, is their right. The Government
is duty bound to provide basic human rights to the citizens and residents of Mumbai.
197 wp_2890.18.j.doc
106. The learned A.S.G. placed reliance on the following decisions in:
(1) Mohammad Ali Khan Vs. The Special Land Acquisition Officer, Lucknow Nagar
Mahapalika, Lucknow and others reported AIR 1978 All 280;

(2) Gramsabha of village Battis Shirala Vs. Union of India & Ors. in Civil W.P. No.
8645 of 2013 a/w PIL No. 75 of 2011 dated 15/7/2014.
107. We find that the submissions made by the A.S.G. on behalf of Union of India require
consideration while appreciating the conflicting claims of the contesting parties.
108. The learned Advocate General Mr. A.A. Kumbhakoni has referred to the provisions of Article 25
of the Constitution of India and placed reliance on the decision of the Supreme Court in
Commissioner of Police and others Vs. Acharya 198 wp_2890.18.j.doc Jagadishwarananda
Avadhuta and Another (supra).
109. The learned Advocate General submitted that there is no evidence on record supporting the
submissions of the petitioners that the entire premises of Atash Behrams is consecrated one as even
drilling of tunnel is below 60 to 65 mtrs. beneath the surface of the earth. The petitioners have failed
to establish that the beliefs of the community and the practices followed are essential and integral
part of religion and in case such beliefs and practices are breached, the religion itself will be under
threat or would collapse. The learned Advocate General submits that Article 25 of the Constitution
of India is subject to other provisions of the Part-III of the Constitution of India which cannot be
read de horse the other provisions including the provisions of Article 21 of the Constitution of India.
110. The learned Advocate General further submitted that 199 wp_2890.18.j.doc a balance has to be
struck while the Court appreciates the material on record for applying principles governing the
provisions of Articles 21 an 25 of the Constitution of India. As regards the underground circuits of
the fire below, in absence of any scriptural and textual articles placed on record, the Court even need
not answer this issue as it is clearly a matter of belief of the petitioners. The affidavits filed by the
high Priests and Scholars and the learned persons do not satisfy the test laid down in this behalf.
The Court need to balance rights which the petitioners have claimed before the Court.
111. The learned Advocate General has placed reliance on the decision of the Supreme Court in
Alaknanda Hydropower Company Ltd. Vs. Anuj Joshi and others reported in (2014) 1 SCC 769.
Paragraphs 25 and 26 of the said decision, read as under:
"25. Dr. B.Jhunjhunwala, party in person submitted that 200 wp_2890.18.j.doc the
High Court was right in directing a public hearing following the 1994 Notification, the
necessity of the same, according to him, has been highlighted by this Court in G.
Sundarrajan v. Union of India; (2013) 6 SCC 620, Dr. Jhunjhunwala has also
highlighted the necessity of keeping Dhari Devi Temple on the spot at its present
location. Dr. Jhunjhunwala further submitted that the right to worship stands at a
higher pedestal than right to life under Article 21 and any disturbance of the temple
would violate the right to worship at Dhari Devi Temple without any hindrance as
guaranteed under Article 25 of the Constitution of India. Dr. Jhunjhunwala also
suggested that the Temple could be saved by making a canal instead of reservoir at
the impugned Project and the sacred rock in situ by constructing a dry well of
sufficient height and diameter around it and providing pilgrim access to it by building

an approach road.
26. We have gone through the affidavits filed by the State of Uttarakhand and we find
they have wholeheartedly accepted the B.P. Das Committee Report and the report
dated 3.5.2013 submitted by the joint team and also the B.K. Chaturvedi interim
report dated September 2012. When this Court constituted the 201 wp_2890.18.j.doc
Committee on 25.4.2013, this Court directed the inclusion of the State Government
representative as well, so that the State Government can express its views on various
issues including the issue relating to Dhari Devi Temple. The State Government in
their affidavit, it may be noted, have not questioned the suggestions made by the
Committee in its report dated 3-5-2013. Consequently, we have to take it that the
State Government has no objection whatsoever with regard to the suggestion made
by the Joint Committee in its report dated 3-5-2013 i.e. raising the temple above the
highest flood level at its current location and to install the idol at higher elevation at
the same spot with access to the Temple through a pedestrian bridge from the left
bank. The Committee specifically stated in the report that they had visited Dhari Devi
Temple site and met the trustees, priests of the Temple and a few residents of Village
Dhari and no objection was raised either by the trustees or priests of the Temple on
the suggestion made by the joint team in the report dated 3-5-2013".
112. The learned Advocate General has further relied upon the decision of this Court dated 5.5.2017
in Mrs Pervin 202 wp_2890.18.j.doc Jehangir and others Vs. Union of India and others in W.P.No.
814 of 2017 along with W.P. (L) No. 365 of 2017 (2017 SCC OnLine Bom 2510). Paragraph 16 of the
said judgment reads as under:
"16. The petitioners do not dispute that the project in question is a project of
considerable public importance for a metropolitan city like Mumbai. The Metro 3
project is stated to be a fully underground, rail based mass public rapid transport
system, of the total length of about 33.5 kilometers. There can be no dispute that
present public transport facilities in Mumbai city are grossly over-crowded,
over-strained and inadequate. It is a matter of common knowledge that citizens are
required to travel with immense pain and hardship and in conditions endangering
their lives in the overcrowded existing suburban trains and buses. Desire for a
smooth and comfortable travel in Mumbai had remained a distant dream. To
decongest this pressure on the existing transport system and to increase mobility
across the region, the State 203 wp_2890.18.j.doc authorities had decided to
undertake diverse Metro rail projects. The Metro Rail line 3 project is stated to
provide a high quality public transport system to the vast population, particularly,
beneficial to Wards A, C, D, E, G/S, G/N, A/E and K/E. It is projected that about
13.87 lakhs passengers per day can be benefited by Metro Rail Line 3. It is stated to
connect 30 educational institution, 6 central business district, 30 recreational centers
and the domestic and international air terminals. It is expected to save about 60
minutes of the passengers average traveling time per day, resulting in reduction of
road traffic, fuel consumption and air pollution. There is a projection of estimated

reduction of 6800 tons of Carbon Dioxide (CO2) in 2021 and 9907 tons by 2041.
Further it is estimated that there would be reduction of Carbon Monoxide (CO) to the
tune of 4327 tons in 2021 and increasing to 6304 tons to 2041. If these are the
benefits of the Metro Rail 3, there can be no doubt that it would be of enormous
benefit to the public on all counts".
204 wp_2890.18.j.doc
113. The learned Advocate General then placed reliance on a decision of this Court
dated 18, 19 and 20/7/2018 in O.S.
W.P.(L) No. 2107 of 2017 with Notice of Motion (L) No. 507 of 2017, Notice of Motion (L) NO. 387
of 2018 and Notice of Motion No. 273 of 2018 Mr. Robin Jaisinghani Vs. Mumbai Metro Rail
Corporation Ltd. and others. Paragraph 12 of the said decision, reads as under:
"12. We must note here that both the learned Advocate General and the learned
senior counsel appearing for the added respondent pointed out several advantages of
having the Metro Railway -3 Project which will cater need of millions of citizens of
Mumbai who are adversely affected by non-availability of adequate and convenient
public transport. They submitted that the petitioner is claiming protection of his right
to live under Art. 21 and on the other hand, there are millions of citizens whose rights
under Art. 21 are also affected and therefore, this is a case where there are two
competing fundamental rights of two different class of citizens. Our attention was to
the decision of the Apex Court in the case of G. Sundarrajan 205 wp_2890.18.j.doc V.
Union of India and others; (2013) 6 SCC 620 and it was urged that the larger public
interest of the community should give a way to individual apprehensions of violation
of human rights and the rights guaranteed by Art. 21 of the Constitution of India. The
learned senior counsel for the added respondent also relied upon the finding
recorded by the first Court in respect of the same Metro Railway Project in the order
dated 5th November, 2017 in W.P.No. 814 of 2017 (Ms. Parvin Jehangir and others v.
Union of India and others). The learned senior counsel for the added respondent
relied upon another decision of the Apex Court in the case of Asha Ranjan v. State of
Bihar and others; (2017) 4 SCC 397 which again deals with the conflict of
fundamental rights between two different classes of citizen. He submitted that the
fundamental rights are also subject to reasonable restrictions.
114. The learned Advocate General has lastly placed reliance on the decision of the Supreme Court in
Asha Ranjan Vs. State of Bihar and others & Chandrakeshwar Prasad Vs. Union of India and others
(supra). Paragraphs 55 and 56 of the said decision read as under:
206 wp_2890.18.j.doc "55. In Subramanian Swamy Vs. Union of India (2016) 7 SCC 221 : (2016) 3
SC (Cri.) 1 the Court after referring to the said authority ruled that: (SCC p.319, para 137) "137. ....
the issue herein is sustenance and balancing of the separate rights, one under Article 19(1)(a) and
the other, under Art. 21. Hence, the concept of equipoise and counterweighing fundamental rights of

one with other person. It is not a case of mere better enjoyment of another freedom. In Acharya
Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat; (1975) 1 SCC 11, it has
been observed that a particular fundamental right cannot exist in isolation in a watertight
compartment. One fundamental right of a person may have to coexist in harmony with the exercise
of another fundamental right by others and also with reasonable and valid exercise of power by the
State in the light of the directive principles in the interests of social welfare as a whole. The Court's
duty is to strike a balance between competing claims of different interests. In DTC v. Mazdoor
Congress; 1991 Supp (1) SCC 600: 1991 SCC (L&S) 1213 the Court has ruled that articles relating to
fundamental rights are all parts of an integrated scheme in the Constitution and their waters must
mix to constitute that ground flow of unimpeded and impartial 207 wp_2890.18.j.doc justice; social,
economic and political, and of equality of status and opportunity which imply absence of
unreasonable or unfair discrimination between individuals or groups or classes".
56. In this context, it is also appropriate to refer to certain other decisions where the Court has dealt
with the concept of competing rights. We are disposed to think that dictum laid therein has to be
appositely appreciated. In 'X' v. Hospital 'Z' (1998) 8 SCC 296, the issue arose with regard to right to
privacy as implicit in the right to life and liberty as guaranteed to the citizens under Art. 21 of the
Constitution and the right of another to lead a healthy life. Dealing with the said controversy, the
Court held that as a human being, Ms. 'Y' must also enjoy as she obviously is entitled to all the
human rights available to any other human being. This is apart from, and in addition to, the
fundamental right available to her under Art. 21, which guarantees "right to life" to every citizen of
this country. This Court further held that where there is a clash of two fundamental rights namely,
the appellant's right to privacy as part of right to life and Ms. Y's right to lead a healthy life which is
her fundamental right under Art. 21, the right which would advance the public morality 208
wp_2890.18.j.doc or public interest, would alone be enforced through the process of court, for the
reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as
mute structures of clay in the hall known as the courtroom, but have to be sensitive".
115. The learned Advocate General submits that circumstances may emerge which may necessitate
to maintain balance between intra fundamental rights. Test has to be applied while balancing two
rights i.e. fundamental rights or inter fundamental rights. The learned Advocate General therefore,
submits that the citizens too have rights to move freely and safely. While placing reliance on Art. 21
the learned Advocate General submits that Art. 25 is subject to Art. 21 and therefore, the Court
needs to strike a balance between these two provisions.
116. We have carefully perused the judgments cited (supra) relied upon by learned Additional
Solicitor General and 209 wp_2890.18.j.doc the learned Advocate General and we find that their
submissions on merits need to be addressed.
117. We have perused the extracts annexed to the petition from Book named "THE RELIGIOUS
CEREMONIES AND CUSTOMS OF THE PARSEES" written by Jivanji Majmshedji Modi wherein in
Chapter IX (Ref. Pg. 46 i.e. annexure to petition), "Consecration Ceremonies" are described as
under:

"Consecration is "the act or ceremony of separating from a common to a sacred use,

or of devoting and dedicating a person or thing to the service and worship of God" by
certain rites or solemnities. Consecration does not make a person or thing sacred but
declares him or it to be sacred, that is devoted to God or to divine service; as the
consecration of priests among the Israelites; the consecration of the vessels used in
the temple; the consecration of a bishop. The Parsees have no consecration of
persons, in the sense in which the word is used among the Christians, e.g., 210
wp_2890.18.j.doc the consecration of a bishop. If, by consecration is meant
conferring of a certain qualification upon a person to enable him or to entitle him to
do a certain religious function or rite, they have such a consecration. But the
principal idea is, that the person seeks consecration by his own willing acts rather
than any other person conferring the consecration. So, in the case of a person, the
more proper word, from a Parsee point of view, is "initiation" than "consecration".
118. Consecration of the sacred fire of the First Grade, the Atash Behram is also mentioned by the
Writer (Ref. Pg. 47 of annexure to petition). We may reproduce the following passage:
"The process of collecting the different fires and of purifying and consecrating them is
so long and intricate, that, naturally, authorities differ in the matter of the details,
though they agree on broad general principles. While writing on the subject of his
process, the late Dastur Minocheherji Jamaspji 211 wp_2890.18.j.doc Jamaspasanal
said, that in the case of all the six Atash Behrams founded and consecrated in
Bombay and elsewhere, there has not been any similarity in the matter of the process.
The process has differed in details. In the following account, I principally follow the
description given by the late Dastur Erachji Sorabji Meherji Rana. The Ithoter
Revayet also referred to this subject".
119. Further writing titled as "ZOROASTRIANISM ANCIENT AND MODERN" by ERVAD

PHIROZE SHAPURJI MASANI, is placed on record and relied upon by the learned Counsel for the
Petitioners. We have perused the said material. The petitioners have placed certain photographs and
sketch maps and two such maps are annexed herewith for the sake of convenience for appreciating
the petitioners' case (Ref. In Paper Book (5) of petitioner written submission).
212 wp_2890.18.j.doc
213 wp_2890.18.j.doc
214 wp_2890.18.j.doc

120. We have also perused the affidavits of Respondent Nos. 10 to 12 in response to the Report of
the VJTI dated 9.8.2018 (Pg. 869 of PB-3). Paragraph 8 of the said affidavit reads as under:
"8. It is a well known fact that machinery and equipments are not always 100% fault
proof. There is a possibility that the TBM machines are apprehensive that in case of
an emergency or if during the tunneling of the metro line as well as construction of
the Kalbadevi Metro station, if the TBM machine breaks down whilst it is boring
below the premises of the Wadiaji Atash Behram, then the only way to remove, the
TBM machine from beneath the ground, would have to be vertically extracted it
through the surface of the earth. This action may / would heavily damage and / or
destroy the Wadiaji Atash Behram. Such a possibility would prove to be an
irreparable, invaluable and devastating blow to persons professing the Zoroastrian
faith 215 wp_2890.18.j.doc all around the globe. I say that, the said Report is also
silent on this issue which was brought to the notice of VJTI on 2nd August, 2018 in
the Written Submissions filed on behalf of Respondent Nos. 5 to 12".
121. We have perused scriptures, the material, writings of Priests and the knowledgeable persons of
the community in the field. Mr. J.J. Modi has clearly distinguished between the place of "sacred fire"
i.e. "sanctum sanctorum" vis-a-vis the attached apartments i.e. Der-i-Meher. We have also
considered the sketch plans and the photographs of the premises.
122. The history of Zoroastrian religion begins from the ancient Iranian homelands of the Steppes of
Central Asia with the advent of the Prophet Zarathushtra (or Zoroaster, as he was called in the
Greek literature). Scholars place Zarathushtra at 1768 BCE. The faith flourished through the rise
and fall of many 216 wp_2890.18.j.doc civilizations. For thousand years (558 BCE to 652 CE) it was
the court religion of three Iranian Empires, those of the Achaemenians, the Parthians and the
Sasanians and stretched across Asia from Greece in the west to the Hindu Kush in the east, up into
Southern Russia, and down into Egypt.
123. One of the Zarathushtra's first disciples was Iranian King Vistashpa. The scriptures of
Zarathushtra are contained in the ancient texts. The Avesta, written in the Avesta language. Of
these, the divine system, the Gathas, are the words of Prophet Zarathushtra himself. According to
Scholars and Researchers, Zoroastrianism is considered to be one of the oldest surviving religion in
the world.
124. It has come on record that there are four wells in the Wadiaji Atash Behram and three wells in
Anjuman Atash Behram. Nearest well in the Wadiaji Atash Behram is 42 feet 217 wp_2890.18.j.doc
away from the nearest point of the tunnel while the Atash Behram 15 feet away. These wells are in
the top soil layer of about 20 feet deep while the tunnel is in the rock and is at 60 to 65 feet deep
from the ground level. Thus, there is a clear vertical space of 42 to 46 feet of rock mass between
bottom of wells to the top of the tunnel. It was noticed that in the absence of any metro related
construction activity, there is a daily fluctuation in water level in the wells. The planners have taken

into consideration the passenger movement during the normal operation as well as during the fire
emergency. Station amenities and service are also taken into consideration.
125. Our Research has shown that the London developed its first Metro system in 1843. About 150
cities of various sizes all over the world had rapid transit rail for decades specially in Asia, Africa and
Latin America. The citizens of Mumbai do deserve efficient, suitable and environment friendly mass
218 wp_2890.18.j.doc transport system. There is an acute need to serve millions of masses. The
State is duty bound to provide an efficient transport system to its people.
126. Our Research further shows that tunneling techniques are available from 18th Century onwards
first it was in the United Kingdom's network of canals and railways which made extensive use of
tunnels to cross natural features (e.g. the River Thames and Severn). In the early 20 th Century,
underground railways expanded rapidly, using technical advances such as pre-cast concrete linings
and supports. After the War, road and rail networks across Europe expanded further, but it was not
until the early 1960s that tunneling technology made a major advance in the form of the Tunnel
Boring Machine (TBM). The study shows that in the field of tunneling and underground space
technology by 2050, 70% people will live in cities and the world urban population will have more
than 219 wp_2890.18.j.doc doubled compared to the turn of the century. Underground and metro
systems, according to the Experts, Researchers are less prone to earthquake danger and have
suffered little or no damage in major earthquakes.
127. We have also noticed that all over the world, where heritage sites are located within the cities,
the development of cities is planned in a manner so as to maintain balance between infrastructural
development while retaining and maintaining heritage and important sites and structures. This is
often a difficult balance to maintain. London, Rome, Istanbul, Beijing, Delhi and Jaipur are such
examples where balancing exercise has been done effectively with the aid and assistance of the
experts in the field and financial backing of Central and State Governments. The citizens of Mumbai
would reasonably expect and deserve such a system to be introduced in the larger public interest.
220 wp_2890.18.j.doc
128. The learned Senior Counsel Mr. Seervai appearing for the petitioners fairly submitted during
the course of arguments that the petitioners or the community is not against implementing the
Metro project in Mumbai. The project is required for the benefits of the citizens. The main concern
of the learned Senior Counsel for the petitioners is that the same should not be implemented by
hurting feelings of the community and by desecrating the very temple structures and the premises.
According to the learned Senior Counsel a slight realignment would satisfy the petitioners' concern
and the community would be ever grateful.
129. We appreciate the concern shown by the learned Senior Counsel appearing on behalf of the
petitioners. We do appreciate and record that the Parsee community following Zoroastrian faith and
religion though a minuscule one, has been 221 wp_2890.18.j.doc contributing immensely in all
spheres of social, human and cultural lives of the citizens. The persons from the community have
made indelible mark in whichever field they entered into and created a distinct and distinguished

position for themselves. This fact has also been equally and fairly recognized by the learned Senior
Counsel appearing for Respondent No.4 and while appreciating the contribution of the community
in the over all development of the country, the counsel urged that the petitioners be little
accommodative to allow the project to be implemented.
PER R.G.KETKAR, J.
130. I have perused the draft judgment prepared by the Hon'ble the Chief Justice and I entirely
agree with the conclusions drawn by him, but since the approach in arriving at a conclusion is as
important as the conclusion itself, and particularly in matters involving vital constitutional issues
222 wp_2890.18.j.doc having a far-reaching impact on fundamental freedoms of people and on the
social objectives which the State is enjoined to achieve under the Directive Principles of State Policy,
I consider it my duty to express my views in my own way for arriving at those conclusions.
131. The petitioners are practicing the Zoroastrian faith. The petitioners have come with the case
that respondents No.1 to 4 are in the process of implementing the Metro Project in various phases in
the City of Mumbai. The proposed Metro Project involves phases where the project will be
implemented underground. The project includes Mumbai Metro Line 3 (for short, MML-3) which is
a long corridor running along Colaba- Bandra-SEEPZ. A part of this MML-3 has been proposed to
run under Jagannath Shankar Sheth Road (for short, 'JSS Road') which includes a number of
heritage structures including two of the holiest Zoroastrian Fire Temples of the Highest Degree 223
wp_2890.18.j.doc (Atash Behrams), namely, Hormasji Bomanji Wadia Atash Behram and Zarthosti
Anjuman Atash Behram. These Atash Behrams are of tremendous spiritual significance for
Zoroastrians. The petitioners are the devotees who regularly visit both the aforesaid Atash Behrams.
The petitioners contend that the construction of Hormasji Bomanji Wadia Atash Behram was
completed in the year 1830 around 188 years ago. The Zarthosti Anjuman Atash Behram has been
constructed in the year 1897 around 122 years ago. These Atash Behrams have been consecrated
over a century ago after performing complex and elaborate rituals by highly trained priests and have
a special spiritual and religious significance for individuals practicing and professing the
Zoroastrian faith. Both these structures have been classified as heritage buildings under Regulation
67 of the Development Control Regulations for Greater Bombay, 1991 (for short, 'D.C. Regulations').
224 wp_2890.18.j.doc
132. It is the case of the petitioners that the proposed route of MML-3 goes directly under these two
Atash Behrams which are heritage structures having a special religious and spiritual significance for
Zoroastrians. It violates their fundamental rights under Articles 14, 21, 25 and 29 of the Constitution
of India. It is contended that if the proposed project is allowed to continue in the current form, then
it will lead to desecration of the holy consecrated Atash Behrams and the defiling of the same. In
addition, the proposed project also threatens the structural safety of these Atash Behrams which are
heritage structures and is likely to cause the wells in the Atash Behrams to run dry.
133. The petitioners contend that in the Zoroastrian religion, the fire is considered as the son of the
Supreme Creator Ahura Mazda since it is the living symbol on earth representing Ahura Mazda. The

fire is, therefore, the central focus of all Zoroastrian ceremonies and rituals as a divine source of
spiritual 225 wp_2890.18.j.doc energy in the universe. Subsequently, fire temples were built in
honour of the divinity presiding over the fire and consecrated physical forms of ever-burning fires
were installed in the sanctum sanctorum of the respective fire temples. There are three grades or
categories of sacred fires : (1) the sacred fire of the Atash Behram, which is of the highest grade, (2)
the sacred fire of the Atash Adaran and (3) the sacred fire of Atash Dadgah. The first two grades are
necessarily consecrated fires and are installed in separate chambers. They are served five times daily
during the day and night through ceremonies known as 'boe' and care is taken that the fires are
continuously burning. These fires are attended to by qualified priests. Both these Atash Behrams
house all three grades of Holy fire within the premises of the respective Atash Behrams installed at
separate places within the said premises.
134. The petitioners contend that there are eight such 226 wp_2890.18.j.doc Atash Behrams in
India. The entire structure of the Atash Behram is a composite integrated whole and includes the
sacred fire of the Atash Behram, the sacred fire of the Atash Adaran, the sacred fire of the Atash
Dadgah, the chambers which house the respective fires above, various other places where
ceremonies and rituals are performed, wells and the entire premise on which the Atash Behram is
situate. The entire Atash Behram premises is consecrated. The petitioners contend that to believe
that only the sanctum sanctorum comprises the Atash Behram is a fallacy. During the process of
consecration and enthronement, the holy fire, is connected spiritually to the Mother Earth from
which it draws sustenance. Prior to entering into the sanctum sanctorum of the above Atash
Behrams for conducting the religious ceremonies therein concerning the sacred Atash Behram fire,
the priests who perform these ceremonies have to undergo preparatory rituals in these consecrated
places in the Atash Behram premises. The 227 wp_2890.18.j.doc entire premises of the Atash
Behram is treated as one composite sacred whole and not just the sanctum sanctorum where the
holy Atash Behram fire is enthroned. The petitioners rely upon the book "The Religious Ceremonies
and Customs of the Parsees" by Ervad Shams-Ul-Ulama Dr. Sir Jivanji Jamshedji Modi at page
247.
135. The petitioners contend that the process of consecration of an Atash Behram is an elaborate
and intricate procedure involving highly-trained priests performing various complex rituals. In
modern times, it is virtually impossible to consecrate a fire temple of the Highest Degree, namely, an
Atash Behram. Its rarity has, therefore, to be preserved. In fact the last Atash Behram being
Zarthosti Anjuman Atash Behram was consecrated over 122 years ago. Thereafter there has never
been consecration of any Atash Behrams in India. It is virtually impossible today to consecrate an
Atash Behram due to a variety 228 wp_2890.18.j.doc of reasons including the non-availability of
trained priests and the complex rituals that go into the process of consecrating Atash Behrams. The
petitioners have annexed pages-199 to 266 from Dr. J.J. Modi's book at Exhibit-D to the Petition.
136. The petitioners contend that in the Zoroastrian faith, ceremonies can be broadly divided into
(1) inner liturgical services, and (2) outer liturgical services. The inner liturgical services are those
religious services which can be performed in a separate place specially allotted for the purpose. Such
a place is known as Urvisgah and is generally connected with the fire temple. These types of

ceremonies are intricate in nature and demand a very high degree of purity and rigorous workout.
Only highly trained priests known as Yaozeathregars could perform such ceremonies. These priests
are first required to undergo the highest form of purificatory ritual known as Barashnum (nine days
and nine nights of retreat) and then could perform such 229 wp_2890.18.j.doc ceremonies. They
also have to observe and maintain some very stringent laws of purification. These ceremonies are
therefore generally spoken of as pav-mahal ceremonies i.e. ceremonies of the holy or consecrated
house. The secluded places required for the purpose of performing inner liturgical services are
marked by formation of boundary lines which are the karsha. The karsha is also intended to
preserve the efficacy of the consecrated fire and the consecrated articles of the sacred ceremonies
within them. The Karshas extend to and cover the entire premises of the Atash Behram. If a tunnel
is allowed to pass under the Atash Behram premises it will amount to a breach of the Karshas which
are the protective circuits protecting the sacred fires consecrated and enthroned within the Atash
Behram premises.
137. The petitioners contend that certain rituals are conducted at the time of enthronement of the
holy fire in the Atash Behram which enable the holy fire to draw sustenance 230 wp_2890.18.j.doc
from Mother Earth. During the process of consecration, great care was taken along with a number of
ritual precautions to maintain this connection and sanctity. According to tradition pav mahal
ceremonies cannot be performed on an elevated place, that is to say, on the upper floor of a house or
a building. They are to be necessarily performed on the ground floor, that too, with direct
connection to Mother Earth. The belief is that there should be no motion or movement beneath it.
The petitioners contend that if a tunnel were to be bored under the Atash Behram premises, that
would result in the premises being considered to be on an elevated level and the connection with the
ground would be deemed to be breached. It would result in the spiritual violation of the sanctity of
the Atash Behram. Any motion or movement under the Atash Behram premises would directly
interfere with the spiritual sanctity of the Atash Behram resulting in its desecration.
231 wp_2890.18.j.doc
138. The petitioners contend that if a tunnel for the metro is allowed to be bored under the premises
of the above Atash Behrams, the spiritual circuits will be breached and negative forces of physical
and spiritual will attack the holy fire, thus diminishing its spiritual prowess. It is believed that there
is a constant requirement for the Atash Behram to be connected with Mother Earth. The connection
has to be an uninterrupted connection with the core and the centre of the earth from which the
vibrations and waves emanate. All higher ceremonies are enjoined to be performed with connection
to Mother Earth so as to impact and give force to the culmination of their spiritual effect. The
electromagnetic field of the earth known as geomagnetic field is generated in the core of the earth
and the magnetic field so generated is required to be constantly connected with the Atash.
Construction of tunnel under the Atash Behram premises will severely affect these vibrations and
the connection with the fire.
232 wp_2890.18.j.doc

139. The petitioners contend that there is a distinct possibility that the tunneling process will affect
the water tables of the Atash Behram wells adversely and there is a huge possibility that the wells
would run dry. The water from a well plays a significant role in the ceremonies performed by
Zoroastrian priests in Atash Behrams. Pure and clean water from wells within the Atash Behram
premises are used for various ceremonies. Water drawn from pipes is not permitted. As per the
religious texts, it is only pure water wells or springs that are used in all Zoroastrian rituals. Water is
considered to have five hydro-electrical magnetic forces, namely, Adu-fradho, Vanthwo fradho,
Gaetho-fradho, Khshaeto-fradho, Danghu- fradho. These forces have the best natural efficiency if
the water is natural, i.e. derived from running streams. The premises of Atash Behrams have wells
within their premises from which water is drawn for the purpose of performing rituals. This 233
wp_2890.18.j.doc further goes on to show that the entire premises of the Atash Behram are a
composite whole comprising of various aspects which are all intricately connected and
interdependent. The prospect of a metro tunnel running under an Atash Behram premises is likely
to severely affect the wells in the premises of the Atash Behrams and any such consequence would
result in performance of the rituals and ceremonies within the Atash Behram premises being
rendered impossible. Such a situation would result in irreparable damage to the petitioners and the
spiritual sentiment and belief of the members of the Zoroastrian community.
140. The petitioners contend that besides the spiritual damage which is irreversible, there is a
distinct possibility that there will be physical damage to the structure and the edifice of these two
Atash Behrams, which are heritage structures. This damage can happen either during the
construction phase or even 234 wp_2890.18.j.doc during the running of the metro trains directly
under these heritage buildings over a period of time. Further, damage to the sanctum sanctorum
itself, the holy consecrated Atash Behram fire, the consecrated Adaran fire and the rest of the Atash
Behram premises cannot be ruled out. Any damage or destruction of the Holy Atash Behrams will
devastate religious sentiments of Zoroastrians worldwide. The petitioners rely upon the incident in
respect of a building named Jer Mahal Annexe, where Kalbadevi Road meets JSS Road, suffered
significant damage which included collapsing of ceiling walls as a result of construction of the
tunnels. In fact the third floor of a room had caved in, through the second floor, plunging down a
resident who landed on the first floor but survived with injuries. It has been recorded that heavy
vibrations were being felt since days prior to the incident and also just before the collapse. The
contractors of respondent No.4 Mumbai Metro Rail Corporation (for short, 'MMRC') were seen
propping the Jer Mahal building 235 wp_2890.18.j.doc few days before the incident. The petitioners
also rely upon a case pertaining to Metro construction in the city of Chennai. It was observed that
the 121-year old Arcot Lutheran Church developed cracks as a result of tunnel boring machines
operating underneath the building as part of the metro rail tunneling work. The area in which the
church is located, like the area where the H.B. Wadia Atash Behram and the Zarthosti Anjuman
Atash Behram are located, is highly congested. The petitioners furher contend that the
Preconstruction Building Condition Survey Report for MML-3 (Colaba-Bandra-Seepz) dated
14.3.2017 records that the structural health of H.B. Wadia Atash Behram is "generally
unsatisfactory". The petitioners have referred to the correspondence made by them with various
authorities.

141. The matter was moved before the Vacation Bench on 23.5.2018. This Court directed five
members of the Board of Directors of respondent No.4 to hear the petitioners, the 236
wp_2890.18.j.doc Architect nominated by them, the Trustees of Atash Behrams, the High Priests,
their Advocates if any and submit report. This Court accepted the statement made by the learned
Advocate appearing for respondent No.4 that until next date of hearing, respondent No.4 shall not
carry out any drilling work beyond the boundaries of Atash Behrams. It was also clarified that
respondents No.1 to 4 shall not claim any equities in response to the submissions made by the
petitioners seeking directions against respondents No.1 to 4 to realign the metro rail construction.
142. Petitioner No.1 Jamshed Noshir Sukhadwalla has made affidavit dated 7.6.2018 (pages
146-147) enclosing therewith following affidavits at Exhibits-A to E and the correspondence:
(i) affidavit dated 24.5.2018 (pages 148-150) made by 237 wp_2890.18.j.doc

respondent No.5 - Vada Dasturji Dr. Kaikhusroo M. Jamasp Asa. He has filed
affidavit in the capacity as one of the High Priests of the Zoroastrian Parsi/Irani
community of India. He reiterated what is stated in his letters dated 21.10.2017,
6.4.2018 and 7.5.2018. He reiterated that Atash Behram is a composite whole
comprising not just the consecrated fire enthroned in the sanctum sanctorum but
also includes, within this definition, the entire premises of the Atash Behram. He has
supported the case made out by the petitioners.
(ii) affidavit dated 26.5.2018 (pages 156-158) made by Vada Dasturji Kaikhushroo N.
Dastoor Meherjirana substantially reiterating what the petitioners and Vada Dasturji
Dr. Kaikhusroo M. Jamasp Asa have stated.
(iii) affidavit dated 28.5.2018 (pages 159-161) made by Vada Dasturji Dr. Firoze M.
Kotwal. He referred to his attending a meeting in or around 9.11.2017 with the
Government outlining his concerns with respect to the proposed MML-3
(Colaba-Bandra-Seepz) tunnel being bored under the H.B. Wadia Atash Behram and
Rarthosti Anjuman Atash Behram. He has reiterated what the petitioners, Vada
Dasturji Dr. Kaikhusroo M. Jamasp Asa and Vada Dasturji Dr. Firoze M. Kotwal have
stated in the petition and the affidavits.
238 wp_2890.18.j.doc
(iv) affidavit dated 26.5.2018, similar to that effect, made by
Vada Dasturji Cyrus Noshirwan Dastur. (pages 160-163)
(v) affidavit dated 3.6.2018 (pages 164-165) made by Yazdi H.
Desai, Chairman and Authorized Signatory of the Board of Trustees of the Bombay
Parsi Punchayet stating therein that the Trustees agree with what stated in the letters
dated 21.10.2017, 29.10.2017, 1.11.2017, 4.11.2017 and 6.4.2018. It is reiterated that
the two Atash Behrams have been consecrated over a century ago after performing

complex and elaborate rituals by highly trained priests. These fire temples have a
special spiritual and religious significance for individuals practicing and professing
the Zoroastrian faith.
If the tunnels of the proposed MML-3 are allowed to be constructed beneath the
Atash Behrams, it would result in the complete desecration of the Atash Behrams and
grievous hurt to the sentiments of the entire Zoroastrian community not just in India
but around the world;
143. Respondents No.10 to 12 have made affidavit dated 8.6.2018 in support of the petition. (pages
166-168) 239 wp_2890.18.j.doc
144. Respondent No.6 has made affidavit on behalf of respondents No.5 to 9 on 11.6.2018
supporting the petitioners. (pages 169-171).
145. Petitioner No.1 Jamshed Sukhadwalla has made affidavit dated 13.6.2018 (pages-181-186)
enclosing therewith :
(i) letter dated 4.6.2018 addressed by the Bangalore Parsee Zoroastrian Anjuman,
Bangalore (page-187)
(ii) letter dated 4.6.2018 addressed by Bardoli Jarthosti Anjuman, Bardoli (pages
188-189)
(iii) letter dated 4.6.2018 addressed by the Broach Parsi Panchayet Office, Bharuch
(page-190)
(iv) letter dated 4.6.2018 addressed by Bulsar Parsi Anjuman Trust Funds, Valsad
(page-191)
(v) letter dated 4.6.2018 addressed by Nargol Parsi Jarthosti Anjuman, Sanjan
Nargol (page-192)
(vi) letter dated 4.6.2018 addressed by Navsari Samast Parsi Zoroastrian General
Fund, Navsari (page-193)
(vii) letter dated 4.6.2018 addressed by Parsi Zoroastrian Anjuman of Secunderabad

and Hyderabad, Secunderabad (page-194) 240 wp_2890.18.j.doc
(viii) letter dated 6.6.2018 addressed by Belgaum Parsi Zarthosti Anjuman, Belgaum
(page-195)
(ix) letter dated 7.6.2018 addressed by the Parsi Zoroastrian Anjuman, Mhow
(page-196)

(x) letter dated 8.6.2018 addressed by the Thana Parsi Zoroastrian Anjuman, Thane
(page-197)
(xi) letter dated 8.6.2018 addressed by Vansda Parsi Zarthosti Anjuman, Vansda
(page-198)
(xii) letter dated 9.6.2018 addressed by Navsari Atashbehram & Vadi Daremeher
Trust Fund, Navsari (page-199)
(xiii) letter dated 11.6.2018 addressed by Ahmedabad Parsi Panchayat, Ahmedabad

(page-200)
(xiv) letter dated 12.6.2018 addressed by Davier Parsee Zarthosti Anjuman Fund
Davier, Andheri (East), Mumbai (page-201)
(xv) letter dated 12.6.2018 addressed by Surat Nanpura Parsi Jarthosti Anjuman,
Surat (page-202) (xvi) letter dated nil addressed by Solapur Parsi Anjuman, Solapur
(pages 203-204) all addressed to the petitioners Advocates and Solicitors.
146. The Committee of five Directors of respondent No.4 submitted report dated 15.6.2018 in this
Court.
241 wp_2890.18.j.doc
147. On behalf of respondent No.4 MMRC, affidavit-in- reply dated 26.6.2018 is made by Shantaram
Ganpat Dalvi working as DGM (Civil). In the affidavit, significance of MML-3 project is highlighted.
The project is being implemented by the fourth respondent which is a joint venture between the
Central Government and the Government of Maharashtra on a 50:50 sharing basis. The primary
object of respondent No.4 company is to set up, operate and manage a rail based mass rapid
transport system in Mumbai in order to provide the general public with a fast, reliable, convenient,
efficient, modern and economical mode of public transport. The project is estimated to cost
approximately Rs.23,136/- Crore with Japan International Co- Operation Agency (JICA) providing a
loan assistance of Rs.13,235/- Crore and the balance funding being raised by the Central
Government and the State Government.
242 wp_2890.18.j.doc
148. It is further contended that the petitioners have come with the case that if a tunnel is allowed to
pass underneath the premises of the Atash Behrams, it will breach the Karshas, and break the
connection between the sacred fire and the Mother Earth. Breaking of the spiritual circuits will lead
to an attack on the holy fire by the negative forces. Said contention have to be considered in the light
of the fact that the High Priest of Wadiaji Atash Behram, Respected Vada Dasturji Firoz M. Kotwal
has been quoted by a newspaper with mass global readership to state that the contentions regarding
magnetic circuits are not a part of the Zoroastrian faith but a mere impression of the Kshnum cult

from the 19th century. There cannot be any additions or subtractions to essential or integral parts or
practices of a religion as they are the very essence of that religion and alteration will change the
fundamental character of the religion concerned. It is such permanent essential parts which are
protected by the Constitution.
243 wp_2890.18.j.doc
149. In paragraph-6, the affiant has dealt with the contention of the petitioners as regards
compromise to the structural integrity of the Atash Behrams and the incident in respect of
collapsing of ceiling walls of the building Jer Mahal Annexe as a result of construction of tunnels. It
is contended that at the time of the incident referred to by the petitioners, the construction was
being undertaken nearly 116 meters away from the location of the said building. Three days prior to
the incident, the construction work of the tunnel was on hold for routine maintenance work.
Considering the fact that the vibrations from the operation of the Tunnel Boring Machine (for short,
"TBM") has had no effect upon other buildings of the area, it cannot be said that the damage caused
to the Jer Mahal Annexe building has been caused by the construction undertaken by respondent
No.4. The petitioners have failed to establish any causality between the damage to the Jer Mahal
Annex building 244 wp_2890.18.j.doc and the construction of MML-3.
150. In paragraph-7, it is reiterated that the construction of MML-3 is being carried out by
respondent No.4 after exercising extensive due diligence. A detailed protocol has been laid down for
the protection of heritage buildings such as the Atash Behrams and other buildings from the impact
of tunneling and excavation works. The subject buildings are assessed and categorized based on the
structural health of the building. In cases where the health of the structure is precarious, protection
and mitigation measures are undertaken and continuous monitoring is undertaken during
construction. Along with the affidavit, the report titled "Approach to Protection of Heritage (and
other) Buildings from Impacts of Tunneling and Excavation Works" is enclosed [pages 232-261]. As
per the Building Condition Survey Report (for short, "BCS report"), the Anjuman 245
wp_2890.18.j.doc Atash Behram is classified as "Slight" building category (i.e. building with
moderate non-structural cracks, severe non- structural cracks and presence of water seepage). The
BCS report for Wadia Atash Behram classifies it as "Moderate" building category (i.e. building with
minor, sporadic spalled concrete and presence of water seepage). It is stated that although 280
meters of tunneling work has been undertaken in the Kalbadevi area by respondent No.4
underneath buildings categorized as "Severe" building category (i.e. building with major extensive
spalled concrete, bulging of structural and load bearing elements, exposure of reinforcement bars of
columns and beams and presence of water seepage), and "Very Severe" building category (i.e.
building with deteriorated structural/load bearing elements, heavily exposed reinforcement in
columns & beams of framed structures, deflected/titled and propped structural elements and water
leakages) as per the BCS report, no data recording settlements, tilt or change in the crack width 246
wp_2890.18.j.doc with respect to such buildings were recorded. The same construction techniques
have been employed in various areas of Mumbai City without any adverse incidents Respondents
No.10 to 12, being Trustees of Hormasji Bomanji Wadia Fire Temple Charity Fund have restrained
respondent No.4 from undertaking BCS through a Parsi contractor or installing monitoring
instruments within the premises, inspite of repeated requests. It is further contended that the

petitioners have relied upon mere speculations and not actual facts to state that the construction of
MML-3 threatens the structural integrity of Atash Behrams.
151. In paragraph-8 the affiant has dealt with the contention of the petitioners as regards likelihood
of the wells getting dried up. It is submitted that the nearest well within the Anjuman Atash
Behrams is 15 ft. away from the nearest point of the tunnel and that of Wadiaji Atash Behram is 42
ft.. The wells 247 wp_2890.18.j.doc are situate in the top soil layer within a depth of nearly 20 ft.
while the tunnel is being bored within the basalt rock layer at 60 to 65 ft. depth from the ground
level. There is considerable space and difference of layers between the wells and the tunnel. The
monitoring of water levels at Atash Behrams reflects fluctuations inspite of the fact that no metro
related activity is being undertaken in the vicinity. The fluctuation in water level is dependent on the
climate and the drawal of water by any person or agency in the vicinity of the well. It is submitted
that even if certain temporary fluctuations are observed when the tunneling work reaches the
vicinity of Atash Behrams, it is expected that the same will be normalized once the TBMs pass
through the areas. As a matter of precaution, 14 groundwater charging wells are being installed in
the area whereby water from the construction site and ground water from Kalbadevi area will be
used to recharge and maintain the ground-water levels in the area.
248 wp_2890.18.j.doc
152. In paragraph-9, the contention of the petitioners of spiritual desecration and defilement of
Atash Behrams is dealt with. It is contended that the imaginary grievances raised by the petitioners
as regards the construction of MML-3 are negligible in light of the benefits that arise out of such a
public project which has the potential to improve the living standards of millions of inhabitants of
the city of Mumbai on a daily basis. It is contended that the project with such high magnitude of
public importance cannot be frustrated due to imagined violations of the interest of the petitioners.
The comparative hardships faced by the daily commuters forced to travel through congested traffic
and overcrowded suburban trains if the MML-3 project is stalled must be taken into consideration
while considering the alleged hardships faced by the petitioners. If the pleas set up by the petitioners
are accepted, it would set a dangerous precedent where all future public project, irrespective of the
mass benefits 249 wp_2890.18.j.doc accruing from such project to the society at large, might be
frustrated owing to it being challenged by a section of the society for reasons of private or individual
grievances. Respondent No.4 has undertaken the project by exercising due diligence and employing
procedures adhering to the industry standards is clear from the material placed on record.
153. The Engineers and other experts employed by respondent No.4 have taken the mitigating
factors arising out of individual cases into consideration while planning and designing and it is only
after taking the requisite measures to safeguard the structures that the construction of each package
of MML-3 is being undertaken.
154. In paragraph-16 the affiant has dealt with paragraph-
8 of the Petition. It is contended that in any case, the

250 wp_2890.18.j.doc
significance of the fire or the fire temple has to be considered in the context of the fundamental right
to practice of religion. The affiant has put the petitioners to strict proof regarding the contents of
paragraphs-9 to 13. It is contended that the petitioners have failed to establish that if the tunnel is
allowed to pass beneath the premises of the Atash Behrams, an essential and integral part of the
Zoroastrian faith would be defeated. Commenting on Exhibit-D to the petition, it is contended that
no reference was made by the author which would mandate that the passage of a tunnel beneath the
premises of an Atash Behram would defile the sanctity of the holy fire.
155. In sub-paragraph-b of paragraph-17, the affiant has dealt with "Karshas" referred to in
paragraph-11 of the Petition which is explained in Exhibit-D. In sub-paragraph-c of paragraph-17, it
is contended that a tunnel passing 60 to 65 ft. below the ground level cannot breach a "Karsha" and
thus cannot 251 wp_2890.18.j.doc defile the sanctity of all that is placed within the same. There is
no reference that seems to suggest that the "Karshas" extend indefinitely under the surface of the
earth, nor is there any reference to suggest that they are intended to so extend beneath the marked
area in order to protect any 'link' according to the petitioners which exist in the ceremonial fire in
the Fire Temple and the fires that burn inside the earth. The petitioners have also not shown any
basis which supports the contention that the fire which is ignited after following the required rituals
is connected to subterranean fires beneath the surface or that the Atash Behram is required to be in
constant connection with any electromagnetic field for receiving vibrations. In any case, assuming,
though not admitting, that there exists some basis in the religious texts, such belief or any practice
related thereto cannot be understood to constitute the essence of Zoroastrian faith, as it will at best
be understood to be a belief or practice. The Right to Religion contained in Article 25 is held to
extend its 252 wp_2890.18.j.doc protection of only those religious practices without which a given
religion would lose its specific identifiable character. In sub- paragraph-d of paragraph-17, it is
contended that the petitioners have failed to prove that the passage of the metro tunnel underneath
the premises of Atash Behrams would lead to destruction of an essential practice of the Zoroastrian
faith which destroys the very religion itself.
156. In paragraph-20 the affiant has dealt with the contents of paragraph-18 of the Petition.
Reference is made to Article reported in English Newspaper "The Guardian" titled "Dark forces will
be unleashed: the fire temple v. the Mumbai metro" dated 14th December, 2017, quotes High Priest
of the Wadia Atash Behram, respected Vada Dasturji Firoz M. Kotwal saying that "Neither
Zoroastrianism nor its rituals are in any danger from the metro tunnel". The Article further quotes
the High Priest in the following manner :
253 wp_2890.18.j.doc "The MMRC team convinced us with concrete proof that there was no danger
at all to the fire temple, and the chief minister gave us a personal assurance of safety. So the hue and

cry is baseless. Kotwal says. "Neither Zoroastrianism nor its rituals are in any danger from the metro
tunnel." "Kotwal also says that the "mystic circuits" cited in the petition are not a part of the ancient
texts of Zoroastrianism in its 6th Century incarnation, but were introduced by the 19th Century
Kshnum cult..."
Again the Article quoted disagreement expressed by the respected Vada Dasturji Khurshed Dastur,
the High Priest of the Iranshah Atash Behram, Udvada, Gujarat as under :
"The high priest of Zoroastrianism's holiest shrine (at Udvada in neighbouring

Gujarat) and the community's representative in the secular National Commission for
Minorities is similarly concerned that the petition is fear run amok. "It is the work of
a minuscule group with nothing better to do," says Dastur Khurshed Dastur. "How to
deal with eccentric people with closed minds out to whip up a fear psychosis?"
157. Relying upon this Article dated 14.12.2017, it is 254 wp_2890.18.j.doc contended that two of the
High Priests belonging to the community have had different opinions from that of the petitioners
about the basic tenets of the Zoroastrian religion. The Article is annexed at Annexure-4. Reference is
made to the meeting of the High Priests with the officials of respondent No.4 and the Hon'ble Chief
Minister of Maharashtra and the letter dated 10.11.2017 addressed by the Managing Director the
fourth respondent to two High Priests at Exhibit-J-1 to the Petition.
158. In paragraph-27 it is contended that the petitioners have failed to place on record the material
to prove that a connection between the holy fire and Mother Earth is an integral and essential part
of Zoroastrianism, without which the very characteristics of the faith will be lost. It is submitted that
there is no reason to conclude that the miniscule physical vibrations emanating from the metro line
would interfere with the spiritual vibrations emanating from the holy fires housed in two Atash 255
wp_2890.18.j.doc Behrams. Certain practices even though regarded as religious, may have sprung
from merely superstitious beliefs and in that sense can be only extraneous and unessential accretion
to religion itself. Such practices can be abrogated and are not protected under Article 25 of the
Constitution.
159. On behalf of the petitioners, affidavit-in-rejoinder dated 11.7.2018 is made by petitioner No.1.
Reference is made to paragraph-8 of the Report submitted by the Committee of five Directors of the
fourth respondent to this Court in pursuance of the order dated 23.5.2018. It is reported that the
collapse of Jer Mahal Annexe building (very near the Atash Behrams) has a direct consequence of
the underground construction. The workers of M/s. HCC-MMS JV (contractor employed by the
fourth respondent) were seen propping up the Jer Mahal building few days before the collapse of Jer
Mahal Annexe building, as respondent No.4 was anticipating the damage to Jer Mahal 256
wp_2890.18.j.doc building as a result of the underground tunnel boring.
160. On 21.4.2018 at about 3:15 a.m., a portion of the third floor flooring of Jer Mahal Annexe
collapsed onto the second floor flooring and further came crashing down to the first floor flooring. It
is reitereated that fire plays a central part in the Zoroastrian rituals and no Zoroastrian ritual can be
complete without the presence of fire. Reliance is placed on a book titled "Outlines of Parsi History"

by Hormazdyar Dastur Kayoji Mirza at pages-232 to 233. The rejoinder also reiterates the
contentions advanced by the High Priests in their affidavits.
161. Respondents No.10 to 12 have filed affidavit-in- rejoinder dated 11.7.2018 in reply to the
affidavit by respondent No.4 Respondents No.10 to 12 have reiterated their contentions stated in the
writ petition and their affidavits.
257 wp_2890.18.j.doc
162. Shantaram Ganpat Dalvi, DGM (Civil) has made additional affidavit dated 16.7.2018 on behalf
of respondent No.4 dealing with the allegations, contentions and averments made against the fourth
respondent in various pleadings filed by the petitioners and respondents No.5 to 12.
163. On 20.7.2018, the petitioners have filed affidavit-in- rejoinder of petitioner No.1 to the
affidavit-in-reply of respondent No.4 dated 16.7.2018.
164. On 23.7.2018, additional affidavit is made by Shantaram Ganpat Dalvi, DGM (Civil) of
respondent No.4 in response to the rejoinder of the petitioner dated 20.7.2018.
258 wp_2890.18.j.doc
165. The petition was heard for admission on 25.7.2018. After hearing both sides this Court
admitted the Petition by issuing rule and appointed Veermata Jijabai Technological Institute,
Mumbai (for short, 'VJTI') as an expert agency to perform the tasks set out in paragraph-17(i)(A)(a),
(b) and (ii) to
(v). The order to that effect was passed based upon the draft terms of reference marked as
Exhibit-R1. On the same day, this Court also permitted the petitioners to amend the Writ Petition.
166. In pursuance of order dated 25.7.2018, the petition was amended. The petitioners contend that
the proposed construction of Kalbadevi Metro Station is just a few meters away from H.B. Wadia
Atash Behram. The station construction method to be adopted by respondent No.4 includes an
element which involves a process of conducting controlled blasting to create caverns at the location
of the proposed station which will 259 wp_2890.18.j.doc more severely and directly impact the
structural stability of the structures in the vicinity including the H.B. Wadia Atash Behram.
167. The petitioners have filed affidavit of petitioner No.1 dated 4.8.2018 enclosing therewith
Exhibits-A to D.
168. Hosi Daly Dastur, respondent No.12 made affidavit dated 8.8.2018 on behalf of respondents
No.10 to 12.
169. On 9.8.2018, VJTI submitted its report in this Court. The petitioners filed affidavit of petitioner
No.1 dated 13.8.2018 in response to the said report along with compilation of documents.

170. Hosi Daly Dastur, respondent No.12 made affidavit 260 wp_2890.18.j.doc dated 16.8.2018 on
behalf of respondents No.10 to 12. On the same day, additional affidavit was filed by Shantaram
Ganpat Dalvi, DGM (Civil) on behalf of respondent No.4. Reference is made to email dated
30.7.2018 by VJTI demanding specific data and relevant details for their study from respondent
No.4. Respondent No.4 provided all the information demanded from it. VJTI conducted site
inspections of Atash Behrams on 28.7.2018 and 4.8.2018. Inspection of the under-construction both
up-line and down-line and also under-construction CST Metro Station was carried out. VJTI also
conducted inspection of other buildings in the vicinity of Atash Behrams.
SUBMISSIONS OF THE PETITIONERS
171. In support of this Petition, Mr. Seervai submitted that METRO up tunnel, South-North,
Mumbai passes under the two holiest Parsi fire temples. There are eight holiest fire temples all over
the world. Out of eight holiest fire temples, six holiest fire temples are in India. Out of six holiest fire
temples, four holiest 261 wp_2890.18.j.doc fire temples are in Mumbai. The Petition raises two-fold
challenge. These two challenges are separate and distinct. The first challenge is primarily based on
Article 25 of the Constitution of India, namely, Right to Freedom of Religion. The second challenge
is as regards danger to the structural safety and integrity of two holiest fire temples in allowing the
tunnel as also construction of Kalbadevi Metro Station. The activity of boring of the tunnel with
controlled blasting has to be considered having regard to the fact that Hormasji Bomanji Wadia
Atash Behram was constructed around 188 years ago and Zarthosti Anjuman Atash Behram was
constructed around 122 years ago. Mr. Seervai submitted that respondent No.4 has agreed to shift
the up tunnel alignment by 3.5. meters. If respondent No.4 is agreeable to shift 3.5 to 4 meters in
addition to the agreed shifting of 3.5 meters alignment under the structure and the compound, the
grievances raised by the petitioners will no longer survive.
262 wp_2890.18.j.doc
172. Mr. Seervai has invited our attention to paragraphs- 3.4 to 3.13 and 5 of the order of the
Vacation Bench dated 23.5.2018 (Coram: S.J. Kathawalla and A.S. Gadkari, JJ.) as also
paragraphs-5 to 13 and 17 of the order dated 25.7.2018 of the Division Bench (Coram: Abhay S. Oka
& Riyaz I. Chagla, JJ.). Mr. Seervai submitted that fundamental right guaranteed by Article 25
protects the religious faith, thoughts, beliefs and practices. The religious practices include rituals,
ceremonies, wearing of dress and also consumption of particular food. It is for the religious
community to decide what are the religious practices, belief and faith. Article 25 protects the
essential beliefs, faith, practices and conscience. Mr. Seervai has invited our attention to :
(i) Affidavit dated 24.5.2018 made by Vada Dasturji Dr. Kaikhusroo M. Jamasp Asa in his capacity
as one of the High Priests of the Zorastrian / Parsi Community of India; (pages 263
wp_2890.18.j.doc 148-150)
(ii) Letter dated 16.5.2018 addressed by Dr. Asa to the Principal Secretary-I, Urban Development
Department, State of Maharashtra, Mantarlaya, Mumbai; (pages 151-153)

(iii) Affidavit dated 26.5.2018 made by Vada Dasturji Kaikhushroo N. Dastoor Meherjirana, in the
capacity as one of the High Priests of Zoroastrian Parsi/Irani Community of India; (pages 156-158)
(iv) Affidavit dated 28.5.2018 made by Vada Dasturji Dr. Firoze M.
Kotwal, one of the High Priests of Zoroastrian Parsi/Irani Community of India; (pages 159-161)
(v) Affidavit dated 26.5.2018 made by Vada Dasturji Cyrus Noshirwan Dastur, in the capacity as one
of the High Priests of Zoroastrian Parsi/Irani Community of India; (pages 162-
163)
(vi) Affidavit dated 3.6.2018 made by Yazdi H. Desai, Chairman and Authorized Signatory of the
Board of Trustees of the Bombay Parsi Punchayet stating therein that the Trustees agree with what
stated in the letters dated 21.10.2017, 29.10.2017, 1.11.2017, 4.11.2017 and 6.4.2018. It is reiterated
that the two Atash Behrams have been consecrated over a century ago after performing complex and
elaborate rituals by 264 wp_2890.18.j.doc highly trained priests. These fire temples have a special
spiritual and religious significance for individuals practicing and professing the Zoroastrian faith. If
the tunnels of the proposed MML-3 are allowed to be constructed beneath the Atash Behrams, it
would result in the complete desecration of the Atash Behrams and grievous hurt to the sentiments
of the entire Zoroastrian community not just in India but around the world; (pages 164-165)
(vii) Affidavit dated 11.7.2018 made by Ervad (i.e. Priest) Dr. Parvez Minocher Bajan. In this
affidavit, he has stated about the concept of Karsha (Yantra in Sanskrit), importance of Mother
Earth, and that consecration of Atash Behram are an integral part of the Zoroastrian religion.
(viii) Article dated 27.2.1955 from "Parsi Avaz";
(ix) Writings about the Zoroastrian Religion and Ceremonies;
(x) Affidavit-in-rejoinder dated 11.7.2018 made by the petitioners.
(xi) Article "Zoroastrianism Ancient and Modern", written and published by Ervad Phiroze Shapurji
Masani, Vakil, High Court, Late Fellow, Elphinstone College and Mulla Feeroze Avesta and Pahlavi
Madressa, in 1917.
(xii) "Khordeh Avesta" (page-492) translated into English with Copious Explanatory Notes.
265 wp_2890.18.j.doc
173. Mr. Seervai invited our attention to the paragraph-11 of the Petition wherein it is contended
that in the Zoroastrian faith, ceremonies are broadly divided into (1) inner liturgical services, and
(2) outer liturgical services. The inner liturgical services are those religious services which can be
performed in a separate place which is known as Urvisgah specially allotted for that purposes. Said

place is generally connected with the fire temple. These types of ceremonies are intricate in nature
and demand a very high degree of purity and rigorous workout. Only highly trained priests known as
Yaozeathregars could perform these ceremonies. These priests are first required to undergo the
highest form of purificatory ritual known as Barashnum (nine days and nine nights of retreat) and
then could perform such ceremonies. They also have to observe and maintain some very stringent
laws of purification. These ceremonies are therefore generally spoken of as pav-mahal ceremonies
i.e. 266 wp_2890.18.j.doc ceremonies of the holy or consecrated house. The secluded places
required for the purpose of performing inner liturgical services are marked by formation of
boundary lines which are the karsha. The karsha is also intended to preserve the efficacy of the
consecrated fire. The Karshas extend to and cover the entire premises of the Atash Behram. If a
tunnel is allowed to pass under the Atash Behram premises it will amount to a breach of the Karshas
which are the protective circuits protecting the sacred fires consecrated and enthroned within the
Atash Behram premises.
174. Mr. Seervai invited our attention to the Article "The Religious Ceremonies and Customs of the
Parsees", by Jivanji Jamshedji Modi, which deals with karsha or kasha. A karsha (Sanskrit karsha)
from the root, "karesh" (Per. Kashidan, to draw) means "a trench or a furrow." The word has a
technical meaning in Zoroastrian rituals. At times, sacred or consecrated 267 wp_2890.18.j.doc
things or materials are to be kept, for the time being, within a limited space or enclosure, so that
persons other than the officiating priests may not come into contact with them. The karshas are
meant to limit the circle of pollution. A person who is considered to have been polluted or, to speak
correctly, supposed to have been infected with an infectious disease, goes through his washings and
baths, and the circles were originally intended to keep the infection confined within the limit, so that
it may not spread. The furrows are supposed to be trenches which would prevent the polluted water
from his infected body to run beyond that certain limit. The karsha that a corpse-bearer draws
round about the corpse in the house before removing the body to the Towers is of a similar kind.
175. In the Article of "The Religious Ceremonies and Customs of the Parsees", by Jivanji Jamshedji
Modi, it is stated that mose of these karshas are of a temporary kind, but, in the 268
wp_2890.18.j.doc fire-temples, they are of a permanent kind. A karsha is generally known as a
"pavi". Pav means sacred. So a pavi means a furrow which preserves the sacredness of the
consecrated things or of the sacred ceremonies.
176. Even in "Khordeh Avesta" Kash" or "Furrows" is referred in the following terms :
"(4) In what way do the paths of the righteous and wicked (people) part as under
(differ) (from each other) ?
Explanation :- Its significance is, what is the difference between the paths of the
virtuous, religious people and the sinful people?) The (the Creator) Ahura Mazda
spoke. If (any person) recites aloud My holy spell (and becomes) the memonzer or
the reciter (of that Holy Spell), or whilst reciting draws Kash (or furrows), (that
person) projects his own body from the attacks of the demons and drujas and from
the path of wickedness)."

(6) (The Creator Ahura Mazda speaks) : I accept (the man who) draws three 'Kash'
(or furrows) as the righteous man. I accept (the man who) draws six furrows as the
righteous man. I accept (the man who) draws nine furrows as the perfectly righteous
man.
Explanation :- In this paragraph there occurs a subject regarding the drawing of

`Kash' (the furrows). One should understand that he should not remain at ease 269
wp_2890.18.j.doc after drawing the furrows only, but after this, certain ceremonies
are enjoined to be performed, the details of which are not given here i.e. the act of
operating the ceremony by drawing these furrows. Prior to performing the "Pav
Mahel" ceremonies of the Zoroastrian Religion, a 'Kash' or a circle is drawn round the
place where that ceremony is performed; its significance is that during the
performance of the ceremony no pollution, impurity or filth can exercise its evil over
the place."
177. Referring to the affidavit and Articles, Mr. Seervai submitted that what is stated in the Petition
is not mere ipse dexit of the petitioners. It is supported by affidavits made by High Priests, Priests,
old and new Articles written by the scholars. He reiterated that the case is not based under Article
26 of the Constitution of India.
178. Mr. Seervai has invited our attention to the affidavit- in-reply dated 26.6.2018 of Shantaram
Ganpat Dalvi, DGM (Civil) of respondent No.4. Mr. Seervai commented upon paragraph-9 of the
said affidavit. In paragraph-9, it is submitted that imaginary grievances are raised by the petitioners
as also 270 wp_2890.18.j.doc the Petition raises imagined violations of the interests of the
petitioners. He submitted that on a very important and serious aspect of religious matters, the
affiant has used the language which is not befitting status of the 4 th respondent. In support of his
submissions in respect of Article 25, Mr. Seervai relied upon following decisions :
[i] The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt1 and in particular paragraphs-17 to 20.
[ii] Sri Venkatamana Devaru Vs. The State of Mysore 2 and in particular
paragraphs-16, 17 and 29.
[iii] Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay3 and in
particular paragraphs-26 to 28, 33 and 48 of the majority view handed-down by K.C.
Das Gupta, J.
[iv] Tilkayat Shri Govindlalji Maharaj Vs. State of Rajasthan4 and in particular
paragraphs-55 to 58 thereof.
[v] The Durgah Committee, Ajmer Vs. Syed Hussain Ali 5 and in particular
paragraphs-5 to 7, 20, 22, 24, 33 and 37 thereof.

[vi] Seshammal Vs. State of Tamil Nadu6 and in particular
1 AIR 1954 SC 282

2 AIR 1958 SC 255
3 AIR 1962 SC 853
4 AIR 1963 SC 1638
5 AIR 1961 SC 1402
6 (1972) 2 SCC 11
271 wp_2890.18.j.doc
paragraph-11 thereof.
[vii] Gulam Abbas Vs. State of Uttar Pradesh 7 and in
particular paragraphs-8, 33 and 35 thereof.
[viii] A.S. Narayana Deekshitulu Vs. State of A.P. 8 and in particular paragraphs-75, 85 to 88 and 90
thereof.
[ix] Commissioner of Police Vs. Acharya
(Second Anand
Marg's case), and in particular paragraph-9 thereof. [x] Ratilal Panachand Gandhi Vs. State of
Bombay 10 and in particular paragraphs-2, 12 and 13 thereof.
179. Insofar as the second challenge raised by the petitioners, namely, damages to the structural
safety and integrity of two holiest fire temples in allowing the tunnel as also construction of
Kalbadevi Metro Station is concerned, Mr. Seervai relied upon following decision :
[i] K. Guruprasad Rao Vs. State of Karnataka 11 and in particular the

recommendations in Part-V made by the Committee appointed by the Apex Court
(page-461 of citation), where the Apex Court held that the Court has last word even if
the Judges are not experts.
7 (1982) 1 SCC 71 8 (1996) 9 SCC 548 9 (2004) 12 SCC 770 10 AIR 1954 SC 388 11 (2013) 8 SCC 418
272 wp_2890.18.j.doc
180. Mr. Seervai submitted that the Preconstruction Building Condition Survey Report made by the
contractor of respondent No.4 has classified H.B. Wadia Fire Temple as "Moderate (3)". The
classification of the damage inspection is based on Table-1. Table deals with (1) "Damage Category"
from "0" to "5", (2) "Degree of Damage", namely, "Negligible", "Very Slight", "Slight", "Moderate",
"Severe" and "Very Severe" and (3) "Description of typical damage and likely form of repair for

typical masonry buildings". In so far as the Damage Category-3 i.e. "Moderate", the description of
typical damage and likely form of repair for typical masonry buildings is to the following effect :
"Building with Minor, sporadic spalled concrete.
Water seepage present."
181. Mr. Seervai has also invited our attention to the amended Petition and in particular
paragraphs-23A and 23B 273 wp_2890.18.j.doc read with Exhibit-R at page-142L, which shows that
the location of the proposed Kalbadevi Metro Station. He also invited our attention to Exhibit-B
(page-555) to the affidavit of the petitioners dated 4.8.2018 in reply to the additional affidavit of
respondent No.4 dated 23.7.2018. A perusal of Exhibit-B at Page-555, shows that "(A) SECTION"
dealing with Up-Tunnel, Item No.8 of STAGE-2 thereof shows that "excavate rounds "101, 111 & 121
(top heading)" will be done by controlled blasting/rock breaker with immediate application of
shotcrete. He submitted that this has to be connected with paragraphs-5 and 6 of the affidavit dated
16.7.2018 made by Shantaram Dalvi, DGM (Civil) of respondent No.4. The boring of tunnel by
controlled blasting that run directly below the structure of 188 years old Atash Behrams. Mr. Seervai
submitted that the damage that would be caused to the old fire temple buildings would be
irreversible and there is a distinct possibility that there will be physical damage to the structure and
the edifice of 274 wp_2890.18.j.doc these two Atash Behrams which are heritage structures. The
danger can happen either during the construction phase or even during the running of the metro
trains directly under these heritage buildings over a period of time. Recently, a building named Jer
Mahal Annexe, situate where Kalbadevi Road meets JSS Road, suffered significant damage which
included collapsing of ceiling walls as a result of construction of the tunnels. He invited our
attention to the newspaper report that appeared in "The Times of India" dated 23.4.2018 and the
newspaper report that appeared in "The Indian Express" dated 23.4.2018. He also invited our
attention to paragraph-3(e) of the affidavit-in- rejoinder dated 11.7.2018 filed on behalf of the
petitioners in reply to the affidavit dated 26.6.2018 filed by the fourth respondent. In
paragraph-3(e), it is contended that the collapse of Jer Mahal Annexe building (very near the Atash
Behrams), was as a direct consequence of the underground construction. Employees of respondent
No.4 were clearly seen propping up the 275 wp_2890.18.j.doc Jer Mahal building few days before
the collapse of Jer Mahal Annexe building as respondent No.4 was anticipating the damage to Jer
Mahal as a result of the underground tunnel boring.
182. Mr. Seervai invited our attention to the order dated 25.7.2018. In paragraph-10 of that order,
the Division Bench noted that admittedly the 4 th respondent did not have the benefit of an opinion
of an independent agency of some repute on the question of the Metro Railway work causing
damage as apprehended by the petitioners. In paragraph-12, after noting that if the apprehension
expressed by the petitioners as regards the damage likely to be caused to the subject Atash Behrams
turns out to be true, it will create an irreversible situation and this aspect is very crucial and relevant
in the face of the challenge based on violation of the rights under Article 25 of the Constitution of
India. Therefore, it is in the interest of both the 276 wp_2890.18.j.doc petitioners and the
respondents that an independent agency like VJTI after making a study submits a report to this
Court. The report will be very relevant for considering the prayer for interim relief. The draft terms

of reference agreed by and between the petitioners and the 4th respondent were taken on record and
marked as Exhibit-R1 for identification. As per the draft terms of reference, this Court directed VJTI
to examine the impact of the proposed Metro work (including tunnelling and construction of the
proposed Kalbadevi station) both during its construction as well as operation of the Metro Rail:-
(a) On the structural safety of the Wadiaji and Anjuman Atash Behram;
(b) On the water levels (including any contamination) in the wells situated within the
Atash Behrams.
The petitioners / High Priests / Trustees of the Atash Behrams jointly and the fourth respondent
were permitted to make submissions in this regard before the VJTI. VJTI was to 277
wp_2890.18.j.doc submit its report in sealed envelope within 10 days from the date thereof.
183. Mr. Seervai submitted that in pursuance of the order dated 25.7.2018, VJTI submitted the
report dated 9.8.2018. VJTI solely relied upon the data prepared and supplied by respondent No.4.
Thus the Court does not have an independent report. The report submitted by VJTI is not an
independent report. He has invited our attention to the affidavit dated 13.8.2018 made on behalf of
the petitioners in response to the report of VJTI dated 9.8.2018 and in particular paragraph-3
Exhibit-2 (list of annexures to VJTI's report dated 9.8.2018). He submitted that VJTI ignored the
written submission of the petitioners as also the report of Hafeez Contractor, an expert engaged by
the petitioners. He also invited our attention to paragraphs-5 to 7, 9 to 11, paragraph-8.2 dealing
with "Vibration 278 wp_2890.18.j.doc Analysis" as also paragraphs-8.2.2 to to 8.2.4 of the VJTI's
report dated 9.8.2018. He submitted that VJTI ignored the fact of controlled blasting which is to
take place just 5 meters away from Atash Behram. Annexure-VII of the VJTI's report deals with
"vibration analysis due to controlled blasting". The analysis made by VJTI is not independent
analysis. The analysis is based on the data furnished by respondent No.4.
184. Mr. Seervai invited our attention to paragraph-5 of the report dealing with "external inspection
of other buildings and roads in the vicinity of Atash Behram structures". It sets out that the building
structures within the zone of influence of Metro construction work are being monitored by
respondent No.4 for change in crack-width, settlement, tilt and vibration. The data provided by
respondent No.4 from 7.5.2018 to 30.7.2018 indicated that these parameters were within the
permissible design limits 279 wp_2890.18.j.doc prescribed by respondent No.4 (Annexure-IV). He
invited our attention to the table in Annexure-VII dealing with "Vibration at ground surface above
Station Box (Excavation Edge)" and the column of depth of controlled blast location from ground
surface (meters 12 to 25), "Energy generated at source (Joules)" and "Peak Particle Velocity (PPV)
transmitted (mm/sec). Below the said table, the note is to the following effect :
"Note : At a depth of 12 to 15 m from ground level, weathered rock of Grade III is

expected based on the Geological conditions and hence less charge is
required/adopted for breaking the rock."

185. Mr. Seervai submitted that in the first place, the data was supplied by respondent No.4.
Secondly, according to VJTI, PPV is below 2.54 mm/sec which is a false and mischievous report. The
table has to be read along with Item-7 of VJTI's report. Item-7 deals with "General Geology of the
Strata". It sets out that respondent No.4 has carried out geotechnical investigations to identify the
different layers of strata, 280 wp_2890.18.j.doc quality/grade of soil/rock in each layer, depth of
water table and other geotechnical parameters. With reference to Bore Hole SDH-07 (Annexure-V)
which was drilled in front of Wadiaji Atash Behram referred from geotechnical report submitted by
respondent No.4 the strata below ground consists of following layers :
1) Layer I - It is dark grey to Sandy Gravel extended up to 7 m from ground surface. It

comprises of layers of similar deposits. The soil consists of Gravel (7%), Sand (87%),
Fines (6%).
2) Layer II - Highly weathered to moderately weathered rock classified as Grade IV

and II (as per IS 4464) below sandy layer from 7 to 11 m.
3) Layer III - This layer extends from11 m to 30 m (bore hold is terminated at 3) m).
In the top portion of this layer slightly weathered to fresh basalt is encountered and
classified as Grade II to I as per IS 4464.
186. As against this, the note appended below the table, 281 wp_2890.18.j.doc shows that at a depth
of 12 to 15 meters from ground level, weathered rock of Grade III is expected. This is clearly contrary
to clause-3 of Item-7 of the report made by VJTI itself. In other words, the hardest rock is found in
Grade-II/Grade-I as against Grade-III as reflected in the note below the table. This has to be
compared with Annexure-V to the report. In particular, the column of "Description" and the column
of "Weathering Grade (WG)" shows that from 9.5 meters to 11 meters, the weathering Grade is "II"
and thereafter from 11 meter to 17 meters Grade "I" rock is found. Thus, the PPV gradings in the
Table (page-824) given by VJTI below 2.54 is falsified by their own report Item-7 clause (iii) read
with page-829 of Annexure-V.
187. Mr. Seervai has invited our attention to paragraph-11 of the affidavit of the petitioners dated
13.8.2018 in response to the report of VJTI dated 9.8.2018 where this aspect is dealt 282
wp_2890.18.j.doc with. The very foundation of PPV is destroyed by the report prepared by VJTI.
The report of VJTI is doctored by respondent No.4 and amounts to misleading the Court. In
particular he invited our attention to paragraphs-11(a), (c), (d) and (e) of that affidavit. Mr. Seervai
invited our attention to the additional affidavit dated 16.8.2018 made by Shantaram Dalvi, DGM
(Civil) of respondent No.4 and in particular paragraphs-6(c) and (d) thereof. Respondent No.4 has
not dealt with the contentions raised by the petitioners in their affidavit dated 13.8.2018. The
contention raised in paragraph-6(d) of the additional affidavit dated 16.8.2018 to the effect "I say
that energy generated during controlled blasting depends on the quantity of detonator used and the
quantity will be limited so as to not exceed 2800 Joules", to say the least is outrageous.
188. Mr. Seervai has invited our attention to Article 283 wp_2890.18.j.doc "Zoroastrianism Ancient
and Modern", written and published by Ervad Phiroze Shapurji Masani, Vakil, High Court, in 1917,

where it is set out that water of springs or wells, etc. taken in the Jashan ceremony are employed so
as to receive best magno- electric currents issuing from them. Water has those five hydro-electrical
magnetic forces, namely, Adu-fradho, Vanthwo- fradho, Gaetho-fradho, Khshaeto-fradho,
Danghu-fradho and all these Fradho or hydro-electric forces have the best natural efficiency, if the
water is natural i.e. derived from running streams. Mr. Seervai submitted that in the Zoroastrian
religion, only pure water of wells or springs is strictly recommended for use in all Zoroastrian
rituals, and the pure running water of wells or springs which is exposed to the visible and dark rays
of the sun all the day has its Fradho naturally in a very high order of efficiency and activity.
Hydro-electrical magnetic forces have the best natural efficiency if the water is natural i.e. derived
from running streams. The water from pipes is not used in the 284 wp_2890.18.j.doc ritual
ceremonies performed in Zoroastrian religion. He has invited our attention to the orders dated
23.5.2018 and 25.7.2018 passed by the Division Bench of this Court.
189. Mr. Seervai has invited our attention to item-10.1 of VJTI report dated 9.8.2018 dealing with
"Monitoring of water levels in the wells and piezometers" and in particular item-10.3. He submitted
that respondent No.4 has already agreed to shift the alignment of up-tunnel by 3.5. meters. If they
agree to further shift the alignment by 4 meters i.e. in all 7.5 meters of up tunnel track that will take
the tunnel and railway track outside both Atash Behrams then the grievances of the petitioners will
not survive and will be redressed. He, therefore, submitted that the reliefs claimed by and on behalf
of the petitioners may be granted.
285 wp_2890.18.j.doc
SUPPORTING PETITIONERS
190. Appearing on behalf of supporting respondents No.5 to 12 trustees, Mr. Devtire submitted that
the Petition raises two aspects, namely, the religious aspect and physical damage to the structural
stability of two Atash Behrams. The stand taken by the petitioners and the supporting respondents
is not paranoid. They have reasonable apprehension as regards likelihood of the impact of tunneling
up-tunnel below the Atash Behrams and construction of Kalbadevi Metro Station on the structural
stability of Atash Behrams. Respondents No.5 to 12 are acting in a reasonable manner. The
consecration ceremonies are not possible. He submitted that the residential block viz Wadia
building on the Northern side of Atash Behram developed crack while the work was going on
down-line. On 11.7.2018, while the work was in progress one of the residents found separation crack.
On 14.7.2018, the down-line crossed this area. He submitted that the Repair Board had already
declared the rear portion in a 286 wp_2890.18.j.doc dilapidated condition in the year 2015.
Ultimately because of the work of the down-tunnel, the rear portion was actually demolished. The
conclusions in VJTI's report dated 9.8.2018 did not deal with this aspect. There is no monitoring
about the huge crack. He invited our attention to the affidavit dated 4.8.2018 made by petitioner
No.1 and in particular paragraphs-2 to 4 thereof which has highlighted this aspect. These
paragraphs are to be read with paragraph-9 of the affidavit dated 16.7.2018 made by respondent
No.4 (page-536C). He also invited our attention to the report dated 25.7.2018 made by Grace
Consultants (page-548F) and in particular item-3 thereof. He invited our attention to the affidavit of

Hosi Daly Dastur (respondent No.12) dated 8.8.2018 (page-565) and in particular paragraphs-3 and
4 thereof.
191. In paragraph-5 of the report of VJTI it is specifically stated that Wadia Trust building situate on
the North side of 287 wp_2890.18.j.doc Wadiaji Atash Behram and abutting JSS Road shows
separation between two parts of the building. Prima facie it appears that these two portions have
been constructed on different period of time and apparently there is no structural connectivity
between these two parts. Since this gap is not being monitored, the widening of gap cannot be
commented upon whether it is due to tunnelling or any other activities. This is nothing but total
non-application of mind on the part of VJTI.
192. Mr. Devtire invited our attention to paragraph-18 of the affidavit dated 13.8.2018 made by the
petitioners as also paragraphs-19, 21 to 23 of the additional affidavit dated 16.8.2018 of Shantaram
Dalvi, DGM (Civil) on behalf of respondent No.4. He submitted that Karsha is to be maintained and
is essential part of religion.
288 wp_2890.18.j.doc
193. Mr. Devitre invited our attention to the Article
"Outlines of Parsi History", published in 1974 dealing with
"Kusti". In this Article it is set out that Kusti is made of 72 filaments of wool, woven into a belt. It
passes round the waist thrice - with four knots, two in the front and two at the back. The kusti is
'boundary'; and it is the boundary of keeping ourself within the boundary of religious duty. The
circles represent three kasha, 'boundary lines' around the body. Kusti is a belt around the body - a
belt of duty to God, duty to ourself, and duty to others. The Sadro (a protection against evil vices and
evil forces) and Kusti form a magnetic circuit around physical body, which if properly kept, protects
one from evil forces, and leads one on the path of piety and duty. It deals with the rituals relating to
Kusti. He also invited our attention to the Article "Select Ritual Aspects of the Gathas and their
Continuity in the Later Tradition" by Vada Dastur Firoze M. Kotwal. While answering to a question
"Why does one perform the Kusti 289 wp_2890.18.j.doc ritual ?, it was set out that a part of the
answer lies in the fact that the tying of the kusti brings about a fulfilment of that which is "most
furthering", through the rejection of all that is evil in the world. In other words, every time the kusti
ritual is performed by a Zoroastrian, there is an unswerving commitment to promote the Will of
Ahura Mazda. He submitted that the reliefs claimed by the petitioners may be granted.
SUBMISSIONS OF RESPONDENT NO.4
194. Mr. Aney submitted that the petitioners have basically challenged the MML-3 project on two
grounds :
(i) Breach of Fundamental Right under Article 25; &

(ii) The issue concerning structural safety.
195. Mr. Aney submitted that the argument concerning the Fundamental Rights under Article 25
can be considered in three parts :
290 wp_2890.18.j.doc (1) The basis for assumption of the existence of Fundamental Rights.
(2) The practices which are essential and integral part of the religion, & (3) Fundamental Rights
versus other Rights.
196. Mr. Aney submitted that the petitioners contend that the building and operation of the Metro
Rail is in violation of their Fundamental Right to freely profess, practice and propagate their religion
under Article 25. The petitioners did not complain violation of Article 26, namely, the Fundamental
Right to manage their religious affairs. This is an attempt on the part of the petitioners to avoid
several decisions of the Apex Court, which while dealing with the Right under Article 26 spell out the
limitations and requirements of the larger right to Freedom of Religion.
197. Mr. Aney submitted that even if Article 25 is 291 wp_2890.18.j.doc considered in isolation, it
must be remembered that it forms a part of the scheme under sub-chapter headed "Right to
Freedom of Religion", which includes Articles 25, 26, 27 and 28. Reading Article 25 in its proper
context would indicate that according to the Apex Court, not all religious rights can claim a
constitutional protection, which is extended only to essential religious practices. The wide
proposition that all religious practices were protected by Article 25 as laid down in Shirur Matt's1
case has been significantly qualified to extend to essential religious practices and laid down tests to
identify them. The petitioners submission that its right under Article 25 must prevail under all
situations is, therefore, incorrect.
198. In support of this proposition, he relied upon following decisions :
a) Shirur Mutt's1 case and in particular paragraphs-
18, 19, 20 and 23 thereof.
292 wp_2890.18.j.doc
b) Durgah Committee's5 case and in particular

c) Sardar Syedna's3 case and in particular

d) Tilkayat's4 case and in particular paragraphs-56, 57

and 58 thereof.
e) Acharya Maharajshri Narendra Prasadji

Anandprasadji Maharaj Vs. The State of
Gujarat12 and in particular paragraphs-25 & 32 thereof.
f) Mohammed Ali Khan Vs. Special Land

Acquisition Officer13 and in particular
paragraphs-8, 9 and 10 thereof.
g) Narayana's8 case and in particular paragraphs-86,

87, 88 and 90 thereof.
h) Javed Vs. State of Haryana14 and in particular

paragraphs-44, 45 and 65 thereof.
i) Second Anand Marg's9 case and in particular

paragraphs-9 and 10 thereof.
j) Khursheed Ahmad Khan Vs. State of UP15 and

in particular paragraph-13 thereof.
k) Church of North Trust Association Vs. Union of
12 (1975) 1 SCC 11
13 AIR 1978 All 280
14 (2003) 8 SCC 369
15 (2015) 8 SCC 439
293 wp_2890.18.j.doc
India16 and in particular paragraph-21 onwards. He submitted that the petitioners

have not challenged the decision making process followed by respondent No.4.
l) Haresh M. Jagtiani Vs. Union of India 17 and in particular paragraph-139 thereof.
m) Dr. Noorjehan Safia Niaz Vs. State of Maharashtra18 and in particular

paragraphs-35, 37, 39 and 40 thereof.
n) Shayara Bano Vs. Union of India19 and in particular paragraphs-25, 26, 53 and 54
thereof. He submitted that in the facts and circumstances of the present case, Article
25 is not attracted. At the highest the petitioners have asserted the Right to Property.
199. Mr. Aney submitted that the language of Article 25(1) indicates that it is subject to "other
provisions of this Part". This would naturally include Article 26 as well. Article 26 does not contain
any such injunction. It follows that while interpreting the extent of the freedom contained in Article

25, the meaning has to be given as indicated by the Apex Court decisions. Thus, 16 AIR 2017
ALLAHABAD 143 17 2016 SCC OnLine Bom 2600 18 (2016) SCC OnLine Bom 5394 19 (2017) 9 SCC
1 294 wp_2890.18.j.doc Article 25 will have to be read subject to other provisions of Part III of the
Constitution, which would include not only Article 26, but such other Articles viz Articles 14, 15(2) to
(4), 16(2), 17, 21, 21A, 23 and 26. Thus, in order to interpret Article 25, and even otherwise, it would
be necessary to employ the doctrine of Harmonious Construction keeping in mind that all rights
under the Constitution have to be given their proper function. In order to avoid any interpretation
that may cause conflict between two sets of Fundamental Rights, the petitioners' right under Article
25 would have to be juxtaposed to the rights of all other citizens found in Articles 14, 15(2) to (4), 16
(2), 17, 21, 21A, 23 and 26. The petitioners right under Article 25 also needs to be considered in the
light of Directive Principles in Articles 37, 42, 47, 48A and Fundamental Duties 51A(h). A proper
interpretation of all these provisions indicates that any demand of the petitioners for enforcement of
their Fundamental Right under Article 25 must be balanced against the rights of the citizens at
large. The 295 wp_2890.18.j.doc citizens have access to the benefits and conveniences of the city, as
also to live a life of dignity, work in comfortable environment, and partake in the wealth of the city.
The State has a constitutional obligation to ensure that the citizen is not deprived of these benefits
and conveniences. Any right of the petitioners to practice of their religion cannot be to the negation
of the aforementioned rights of citizens. In support of this proposition, he relied upon following
decisions:
(a) Acharya's12 case and in particular paragraphs-25, 30 & 31 thereof;
(b) Goa Foundation Vs. Konkan Railway Corporation and in particular paragraphs-1,
2, 6, 7 and 9 thereof;
(c) Mr. X Vs. Hospital Z21 and in particular paragraph-44 thereof;
(d) Church of God (Full Gospel) in India Vs. K.K.R.
Majestic Colony Welfare Association22 and in particular paragraph-13 thereof;
(e) N. Adithayam Vs. Travancore Devaswom Board23 and in particular paragraph-17

thereof;
(f) Javed's14 case and in particular paragraphs-44, 45

20 1994 Mh.L.J. 21
21 (1998) 8 SCC 296
22 (2000) 7 SCC 282
23 (2002) 8 SCC 106
296 wp_2890.18.j.doc
and 65 thereof;
(g) G. Sundarrajan Vs. Union of India24 and in
particular paragraphs-88, 89, 124, 198 to 206, 207 to 2011 and 240 thereof;
(h) Chenab Textile Mills Kathua Vs. Sat Paul 25 and in particular paragraphs-25 and
26 thereof.
(i) Khursheed's15 case and in particular paragraph-13 thereof;
(j) Subramaniam Swamy Vs. Union of India26 and in particular paragraphs-136 to

144 thereof;
200. Mr. Aney submitted that the exercise of balancing seemingly conflicting rights also calls for the
application of the doctrine of proportionality. The doctrine recognizes that no rights are absolute,
and ends of justice require attribution of proper proportion to different rights so as to give them
balanced existence. In support of this proposition, he relied upon following decisions :
(a) Modern Dental College and Research Centre Vs. State of M.P.27 and in particular
paragraphs-59 to 70 thereof;
24 (2013) 6 SCC 620 26 (2016) 7 SCC 221 27 (2016) 7 SCC 353 297 wp_2890.18.j.doc
(b) Advocates' Forum for Social Justice Vs. State of Tamil Nadu28 and in particular paragraphs-18.2
to 18.7 thereof;
(c) Binoy Vishwam29 and in particular paragraphs-
122 to 135 thereof;
201. Mr. Aney submitted that the fourth respondent does not accept the sweeping statements of the
petitioners that their Fundamental Right under Article 25 is affected by the construction of the
Metro Tunnel underneath the Atash Behrams. He submitted that it is for the petitioners to first
establish that their Fundamental Rights under Article 25 are affected by the building and operation
of the Metro Rail. The petitioners justify their conclusion based on the following arguments :
(a) There are three grades of sacred fires: (i) the sacred fire of Atash Behram, which is of the highest
grade; (ii) the sacred fire of the Atash Adaran; and (iii) the sacred fire of Atash Dadgah. The
concerned Atash Behrams house all three forms of fire. (see 28 2016-5-L.W. 97 29 (2017) 7 SCC 59
298 wp_2890.18.j.doc page-6, para-7)
(b) The entire structure of the two Atash Behram which house the sacred fire is a composite whole
and is consecrated. (see page-6, para-9). The sacred precinct of Atash Behram is divided into three
main parts. Innermost part is the sanctum sanctorum. Second part is the inner and outer sanctorum
where prayers are offered. Third part extends till the compound wall. (see page-

507)
(c) Additionally, the Karshas also indicate a protective consecrated area not only around the sacred
fire, but also around the entire premises of two Atash Behrams. (see page-8, para-11)
(d) It is a belief of the community that there is a constant requirement for the sacred fire of the
Atash Behrams to be connected with mother earth. (see page-6, para-9)
(e) An electromagnetic or geomagnetic field is generated in the core of the earth and is connected
with the sacred fire in the Atash through waves and vibrations. If a tunnel is dug or MML-3 is
operated under the premises of Atash Behrams, the spiritual circuits will be breached and negative
forces will attack holy fire, thus diminishing its spiritual powers. (see pages-8 & 9, paras-12 & 13)
202. Mr. Aney submitted that except for proposition (a) 299 wp_2890.18.j.doc above, the fourth
respondent, in its reply affidavit has disputed the propositions (b) and (c) above as not being
supported by facts on record. Respondent No.4 has also disputed the propositions
(d) and (e) above as being matters of belief which do not have anything to do with Zoroastrian
religion or faith. He submitted that in order to bring their case within the ambit of the right
guaranteed by Article 25, the petitioners will have to show that the members of Zoroastrian faith in
fact 'profess, practice, propagate' these beliefs. Even if they believe in propositions (b),
(c), (d) and (e) above, they would not only have to establish the fact of their belief and that it was
widespread amongst the Zoroastrians, but, also show through cogent evidence that this belief was
integral to Zoroastrianism. Unless each of these propositions is established, mere faith or belief of
the Parsi community would not render these beliefs for protection under Article 25.
300 wp_2890.18.j.doc
203. Mr. Aney submitted that in order to discharge their burden, the petitioners have relied upon
following : A. The affidavits of four High Priests of the Zoroastrian Parsi / Irani Community
(pages-148 to 161). He referred to the following points in the affidavits:
(i) The entire Atash Behram is a composite whole and include within its definition, the entire
premises of the Atash Behram. (see para-4, page-149).
(ii) As per the religious injunctions, long standing customs and traditions of the Community,
religious services are to be performed on the ground floor with uninterrupted connection to the
mother Earth. Thus, if a tunnel is constructed beneath the structures, the sanctum sanctorum would
be considered on an elevated level and the connection would be deemed to be lost. (see para-4,
page-149)
(iii) The fire is surrounded by spiritual circuits which act as protective barriers. The moment the
Metro Tunnel encroaches underneath the premises, the spiritual circuits will be breached. (para-5,

page-149)
(iv) Thus, if the tunnel is allowed to be constructed underneath the structure, it would lead to
complete desecration of the Atash Behrams in turn leading to a spiritual disaster for the entire
community. (para-5, page-150).
301 wp_2890.18.j.doc
B. The affidavit of Mr. Ervad Dr. Parvez Minocher Bajan dated
11.7.2018 (page-497 in rejoinder), a qualified priest and scholar. He referred to the following points
in the affidavit:
(i) Concept of Karshas, importance of mother Earth, consecration of Atash Behram are integral part
of Zoroastrianism. (see para-3)
(ii) The land where Atash Behram is situated is to be dug up and the rays of the sun should
continuously fall upon such area. (see para-4)
(iii) The land of Atash Behram is demarcated from surrounding environment by karsha. A Karsha is
a demarcation drawn on the physical ground in order to alienate a piece of land from its immediate
surroundings and wherever such Karsha are drawn on physical ground, it created an invisible wall
of self-protection for the objects enclosed within the karsha. (see para-5)
(iv) There are nine Karshas drawn, that provide the invisible talismanic vigil within the precincts of
Atash Behram. Outermost Karsha provide the invisible vigil within the precincts of Atash Behram.
(see para-6)
(v) The construction of the Metro tunnel underneath the structures will defile or desecrate the
structures. C. An Article dated 27.2.1955 in "Parsi Avaz" (page-503)
(i) The land where Atash Behram is built should be hallowed.
302 wp_2890.18.j.doc It should be naturally sanctified for years together. Such ground needs to be
dug-up and the purifying rays of sun should fall upon the area to cleanse the earth. Mr. Aney
submitted that the petitioners did not disclose source. It is not clear from where the petitioners have
got this material. The petitioners have not shown that these beliefs are integral part of religion. He
submitted that the proposed up- tunnel is not causing any obstruction. No material is produced by
the petitioners to substantiate that the spiritual force etc. prohibits under-ground tunnel. At the
highest, the petitioners' case that the land of Atash Behram is sanctified is merely an idea, thought
or belief. (see page-503)
(ii) The land that is not pure, or is contaminated with any form of putridity that has not yet been
cleansed out, is not conducive for divine functioning. (see page-504)

(iii) The sacred precinct of Atash Behram is divided into three main parts. Innermost part is the
sanctum sanctorum. Second part is the inner and outer sanctorum where prayers are offered. Third
part extends till the compound wall. (see page-507) D. Writings about Zoroastrian Religion and
Ceremonies (pages-512 to
514): The said Karsha could not be drawn on hollow surfaces, because if any movement were to take
place below the karsha, then it would vitiate the religious performance and sanctity of ceremony.
303 wp_2890.18.j.doc Hence, no basement can be made in a religious structure used for religious
ceremonies. (pages-512 to 514) E. Zoroastrianism - Ancient and Modern (pages-517 to 518) : The
fundamental laws of nature taught by Zoroaster and Avesta include (i) Staota i.e. law of vibrations or
subtle colours produced by Vibrations of Motion and Sound; (ii) Khastra i.e. the law of the
Thermo-Electro-Magnetic Forces and currents working throughout the visible and unseen realms,
in indefinitely various forms of electricity or magnetism.
F. Affidavit in rejoinder of the petitioners (pages-413 to 533) : The petitioners relied upon the
following submissions in their rejoinder.
(i) Paragraphs-21 to 28 : These paragraphs concern the significance of fire in Zoroastrian religion
and that the holy fire is installed in a separated and isolated piece of land which is required to be
secluded from outside intervention and external influence.
(ii) Paragraphs-29 to 34 : These paragraphs concern the significance of karshas or spiritual circuits
which surround the fire and act as protective barrier. Hence, the place where the Atash Behram is
consecrated, is isolated and ritualistically purified and therefore cannot be interrupted or violated by
passing of tunnel underneath the structures.
(iii) Paragraphs-41 and 43 : In these paragraphs, the 304 wp_2890.18.j.doc petitioners contend that
as per the long-standing customs and traditions of the Zoroastrian Community, there is a
requirement that the holy fire to be connected with mother Earth, and such connection be
uninterrupted. One can never perform inner liturgical ceremonies on an elevated place. However, if
a tunnel is made beneath the structure it would be considered to be on an elevated level and the
connection with the earth would be lost. G. Khordeh Avesta (pages-492 to 496) : Verse 4, 5 and 6
show the importance of Karshas in Zoroastrian culture.
204. Mr. Aney submitted that the respondents deny the above contentions. They do not admit that
the petitioners have proved these facts. He submitted that the burden is on the petitioners to not
only prove and establish the fact of their belief and that it was widespread amongst the Zoroastrians,
but also show through cogent evidence that this belief was integral to Zoroastrianism. The
petitioners have failed to do so as is clear from the following facts and reasons :
(a) As to affidavits of four High Priests of the Zoraostrian Parsi / Irani Community (pages-148 to
161)

(i) Except for evidence in the form of their own statements in the aforementioned affidavits that as
per religious 305 wp_2890.18.j.doc injunctions and customs, any construction underneath the
Atash Behrams would disrupt the uninterrupted connection of the sacred fire and the structure with
the Earth, and would breach the karshas surrounding the structures causing desecration of the
Atash Behrams, the four High Priests have not produced any evidence (scriptures, religious texts
etc.) in support of these assertions.
(ii) Although the petitioners have brought on record a letter dated 8.6.2018 (page-211 of the
petitioners affidavit dated 13.6.2018) addressed by Vada Dasturji Khurshed Dastoor (High Priest),
the said High Priest has not filed any affidavit on oath to support the contentions of the petitioners.
Thus, it is not correct that all High Priests have unanimously stated on affidavit that construction of
tunnel underneath the Atash Behram would lead to desecration / defilement of the structures. In
any case the said letter does not prove the fact or their belief, or even that it was widespread.
(b) The affidavit of Mr. Ervad Dr. Parvez Minocher Bajan dated 11.7.2018 (page-497 in rejoinder):
(i) The concerned affidavit deals with the spiritual significance of a karsha but does not state
anywhere that these karshas extend below the surface of the Earth.
(ii) Further no basis in terms of religious texts, etc. is shown to support the statement that if a tunnel
passes underneath the 306 wp_2890.18.j.doc Atash Behrams, it would lead to desecration of the
structure.
(iii) The fourth respondent is not disputing that karsha have spiritual significance but contend that
the petitioners have not shown any proof in sacred texts that these karshas extend beneath the
earth's surface to the centre of the earth. The fourth respondent also denies that any such
connection would be breached if the Metro Tunnel is constructed.
(c) An Article dated 27.2.1955 in "Parsi Avaz" :
(i) This Article also deals with the spiritual significance of a Karsha but does not state
anywhere that these karshas extend underneath the structure or that such karshas
would be breached if any construction activity is carried out underneath the
structure.
(ii) In any case the document is an article written in a journal / paper for readership
within the Zoroastrian community. It is at best an expression of the author's ideas or
beliefs. Without reference to some source in basic religious scriptures, it cannot be
given any weight as evidence.
(d) Writings about Zoroastrian Religion and Ceremonies (page-512 to
514) :

(i) The document is the opinion of a High Priest and cannot be considered as an essential religious
practice as it does not derive its basis from any religious texts or scriptures and no reference is made
to any such text or scripture.
307 wp_2890.18.j.doc
(e) Zoroastrianism - Ancient and Modern (pages-517 to 518)
(i) The document is relied upon by the petitioners to contend that the concept of vibration was in
existence in Ancient Zoroastrian culture. However, even this document does not show that any
construction underneath would lead to breach of any spiritual circuit or disrupt the connection of
the fire with the centre of the Earth.
(f) Affidavit in rejoinder of the petitioners (pages-413 to 533).
(i) Para 21 to 28 of the rejoinder dealt with spiritual sanctity of the holy fire in Zoroastrian religion.
The fourth respondent is not disputing the sanctity or the importance of fire to Zoroastrian religion.
The fourth respondent is submitting that the petitioners have failed to adduce evidence in the form
of any religious texts or scriptures which demonstrate that such fire is connected to the centre of the
Earth; and that such connection shall be breached if any construction work is carried underneath
the Atash Behrams.
(ii) Paragraph-29 to 34 of the rejoinder deal with the spiritual significance of the Karsha. The fourth
respondent submitted that the averments made therein and the documents relied in such
paragraphs fail to demonstrate that these karshas extend beneath the surface of Earth or 308
wp_2890.18.j.doc that any construction underneath the surface of the Earth would breach such
karsha.
(iii) Paragraphs-34 to 41 deal with the composite nature of the entire structure. The fourth
respondent submitted that the only documents produced by the petitioners in support of such
contention are an affidavit of a Parsi scholar (page-497) and an Article of the year 1955. These
documents cannot be the basis of proving that the entire structure was consecrated.
(g) Khordeh Avesta (pages-492 to 496) :
The verses relied by the petitioners in Khordeh Avesta show the spiritual significance
of a karsha which is not disputed by the fourth respondent. However, this text also
does not demonstrate that these karshas extend beyond the surface of the Earth. On
the contrary, this document shows that karshas are furrows drawn on the surface of
the Earth to ensure that no pollution, impurity or filth enter the place where a
ceremony is performed.
205. Mr. Aney submitted that the petitioners have failed to prove from the evidence adduced on
record that the beliefs of the petitioners are integral to the very existence of Zoroastrian faith 309

wp_2890.18.j.doc and are protected under Article 25 of the Constitution of India.
206. Mr. Aney has invited our attention to the affidavit dated 26.6.2018 made by Shantaram Ganpat
Dalvi, DGM (Civil) with respondent No.4. He has taken us through the implementation process of
MML-3. He submitted that Mumbai Metro Master Plan was first prepared in the year 2004 and has
been amended at network level from time to time based on the revised and updated implementation
plans. The present project of MML-3: Colaba-Bandra-SEEPZ was formed by amalgamation of two
lines of the original Masterplan; Line-3 (Colaba- Mahalaxmi-Bandra) and southern section
(BKC-SEEPZ) of line-6 BKC-Airport-SEEPZ-Kanjur Marg. The Project Implementation of Metro
Line-3; Colaba-Bandra-SEEPZ has been taken by the fourth respondent in the year 2010.
Accordingly, the Detailed Project Report (DPR) was prepared by Rites in November, 2011.
Notification dated 12.12.2011 was issued by the Managing 310 wp_2890.18.j.doc Director of
respondent No.4 detailing therein that a Social and Environmental Impact Assessment Study as per
JICA guidelines. In this regard the alignment and station locations were notified and
suggestions/objections for the same were invited from concerned stakeholders in writing by
respondent No.4. Important station locations as also details of the alignment were uploaded at
www.mmrdamumbai.org. The project alignment plan was also displayed at following offices :
i. Transport & Communications Division, MMRDA Building, Bandra-Kurla Complex,

Bandra (E), Mumbai - 400 051. ii. Deputy Director (Town Planning), Greater
Mumbai, ENSA Hutment, E. Block, Azad Maidan, Mahapalika Marg, Mumbai-400
001.
iii. Chief Engineer (Development Plan), 4th floor, Annexe building, MCGM head
office, Mahapalika Marg, Mumbai - 400 001.
iv. Collector (City), Mumbai City Collectorate, Old Custom House, Fort, Mumbai -
400 001.
v. Collector (Suburbs), New Administrative Building, Bandra Colony, Bandra (East),

Mumbai - 400 051.
207. The project alignment and details were published in all prominent newspapers (in two
languages) calling 311 wp_2890.18.j.doc for suggestions and objections from the public with one
month notice. To ensure wide publicity and information, the plan was also published at various
Government Offices (Deputy Director of Town Planning, Government of Maharashtra; Chief
Engineer, Development Plan; MCGM; Collector Mumbai City; Collector Mumbai Suburbs; and
MMRDA). Respondent No.4 has not received any written suggestions or objections in response to
the notice. A public notice for that purpose was published on 5.4.2012 in prominent newspapers in
two languages. Public consultation/hearing was conducted on 11.4.2012. A detailed presentation
was made to the audience who attended the public hearing on 11.4.2012. He submitted that a
proposal for project approval and funding was submitted to the Government of India through
Government of Maharashtra. Proposal for implementing the project with JICA funding was
submitted to the Government of Maharashtra in December, 2011. After approval, the State

forwarded the proposal for implementing 312 wp_2890.18.j.doc with JICA funding to Government
of India on 27.12.2011. The Government of India included the project in JICA rolling plan on
13.3.2012 whereby it is confirmed that JICA would consider financing the Project Funding. After
following the due process, the Government of India, Ministry of Housing & Urban Affairs (erstwhile
Ministry of Urban Development) issued approval on 18.7.2013 which stipulates that the project shall
be implemented by respondent No.4 a Joint Venture Special Purpose Vehicle (JVSPV) with 50:50
equity participation by Government of India and Government of Maharashtra. Several JICA
Missions (a delegation of Technical and Finance professionals and officers) visited Mumbai during
2011-2013. JICA followed the due process and confirmed to fund about 58% of project cost by
Exchange of Notes between Prime Minister of India and Prime Minister of Japan on 29.5.2013. This
was followed by loan negotiations and Signed Loan Agreement for Tranche-1 on 17.9.2013.
Government of Maharashtra concurred the approval 313 wp_2890.18.j.doc by Government of India
through a Cabinet Resolution to facilitate the project implementation with all the enabling and
complementing provisions. The State Government's approval dated 3.3.2014 included all the
enabling process, finance, works and lands.
208. Mr. Aney submitted that awaiting the approvals from Government of India and JICA,
respondent No.4 appointed Interim Consultants (IC) to finalize the project alignment, preliminary
designs, prepare Bid Documents (as per JICA procurement Guidelines) for Civil Works in seven
packages. IC conducted various Engineering investigations including detailed topographic surveys,
Geotechnical investigations, Building Condition Surveys etc., and finalized the Project Alignment
(Vertical and Horizontal Alignment) construction methodology and packages including TBM
launching shafts. The IC also 314 wp_2890.18.j.doc prepared detailed engineering plans for the
tunnel and stations for the entire corridor. These structural plans were specific to the respective
station locations. IC were group of AECOM Asia (Hong Kong), PADECO (Japan) and LBG Inc.
(USA) International Engineering Consulting Companies of repute. Keeping in line with the
international project implementation practices followed by JICA, respondent No.4 appointed
General Consultants (GC) following the due process stipulated under JICA procurement Guidelines.
The GC are group of AECOM Asia (Hong Kong), PADECO (Japan), LBG Inc. (USA) and EGIS Rail
(France) International Engineering Consulting Companies of repute. The General Consultants is
responsible to perform the functions of Engineer and responsible for the project completion and
delivery as an operating Metro. The scope includes, due diligence, design approvals, quality
assessment-quality control (QA-QC), project monitoring supervision etc..
315 wp_2890.18.j.doc
209. Mr. Aney submitted that as per the JICA Loan agreements the Design and Build Civil Works
procurement was conducted following International Competitive Bidding (ICB) process. Under this
contracts, the successful contractor shall be responsible for specific section/package including
station works and tunnels complete design, construction methodology and construct the works
confirming to the project scope, functional requirements, specifications and all other compliances
that are mandatory for Underground Metro projects. The civil work contracts were awarded in July,
2016.

210. Mr. Aney submitted that as the project contract package requires that the contractor is
responsible for design and build; and shall appoint a Detailed Design Consultants (DDC) M/s. Ayesa
(Spain), a Lead Design Checker (LDC) M/s. Amberg Engineering (Switzerland), an agency for
Building 316 wp_2890.18.j.doc Monitoring system etc. to ensure safe and sound implementation of
the project The DDC of the contractors shall be responsible for complete design of all structures. A
plan or design prepared by the DDC is required to be checked and vetted by the LDC before it is
submitted for a clearance of the GC. Finally, a design or a plan duly cleared by LDC shall be
reviewed and approved by the GC. GC is also responsible for all project implementation process and
reports to respondent No.4 as per the pre-decided reporting system. Respondent No.4 is responsible
for the project implementation through the instruments of GC and the contractor put in place.
Respondent No.4 is responsible for the co-ordination with all stakeholders, be it, Government of
India, Government of Maharashtra, Regulatory Authorities, Local Authorities or public etc..
Respondent No.4 is also responsible for awarding contracts arranging lands, rehabilitate project
affected peoples and also to arrange finance for the project. Respondent No.4 would be operating
the system after it is commissioned.
317 wp_2890.18.j.doc
211. Mr. Aney submitted that the argument concerning to the issue of structure is subdivided in two
parts, namely, (1) the likelihood of damage to the existing structure, and (2) the alternative
proposals submitted by the petitioners. He submitted that the consideration only of the petitioners
right under Article 25 would not lead to a proper or correct solution. It must be borne in mind that
there are several rights that need to be balanced against each other. The proper approach to the case
would require the balancing of the rights of the petitioners against the rights of the rest of the
citizens. The other relevant aspect is the limitation of the Courts in passing judgment on technical
matters. This aspect is relevant while considering the petitioners submissions on 'structure'.
212. Mr. Anturkar appearing on behalf of respondent No.4 318 wp_2890.18.j.doc dealt with the
issue concerning the structural safety. He submitted that the petitioners came with the case that
Atash Behrams are endangered on account of the proposed up-tunnel below both Atash Behrams,
on following grounds/contentions : [A] That the incident of Jer Mahal Annexe clearly shows that the
Atash Behram is in danger.
[B] That huge cracks developed in Wadia Building, right next to H.B.
Wadiaji Atash Behram. It is also 188 years old construction and to which cracks are developed on
11.7.2018. This confirms, the apprehension of the petitioners.
[C] That similar incident at Chennai in respect of CSJ Wesley Tamil Aalayam (Arcot Lutheran
Church) which was also 152 years old, confirms the apprehension of the petitioners. [D] That the
directions given by the Hon'ble Supreme Court in Jambhunath Temple Case (K. Guru Prasad Rao
Vs. Karnataka, (2013) 8 SCC 418), have been grossly violated. [E] That the report of VJTI, is not an
independent investigation at all and is based upon the material supplied by respondent No.4 only
and therefore is required to be discarded.

[F] That the "decision making process", adopted by respondent No.4,
319 wp_2890.18.j.doc
has been vitiated on account of not taking into consideration glaring relevant facts.
213. Insofar as contention [A], Mr. Anturkar submitted that there are two different buildings,
namely, "Jer Mahal Building" and "Jer Mahal Annexe Building". This is evident from the assertions
made in paragraph-14 of the Petition. The petitioners are creating confusion and are trying mislead
Court by giving impression that the same building was damaged which was propped up and
supported by the staff of the 4 th respondent. He submitted that the entire incident is explained in
the affidavit-in-reply dated 26.7.2018 made by Shantaram Ganpat Dalvi, DGM (Civil). He submitted
that the report submitted by Project Management Consultant (PMC) (page-229 of the petition) on
3.5.2018 completely brings out the facts. (see page-
230) under the captions "occurrence of incident" and "Tunneling Works". TBM-1 machine was
stopped on 19.4.2018. Jer Mahal 320 wp_2890.18.j.doc Annexe incident took place on 21.4.2018 at
6:00 a.m. when TBM- 1 machine was not operating for the downtime maintenance. At that time
TBM-1 machine was 116 meters away from Jer Mahal Annexe building. TBM-2 machine was
stopped on 2.4.2018. Jer Mahal Annexe incident took place on 21.4.2018 at 6:00 a.m. At that time,
TBM-2 machine was stopped for the downtime maintenance and was 385 meters away from Jer
Mahal Annexe building. He reiterated that the petitioners are trying to confuse said issue as is
evident from the affidavit of petitioner No1 Jamshed dated 11.7.2018 [pages-413/416(e)]. By
creating this confusion, the petitioners are projecting as if the building which was supported 'Jer
Mahal Building" was the same as "Jer Mahal Annexe Building". Lastly, he submitted that Jer Mahal
Annexe building was categorized as "Severe" (see page-238), whereas the nearby Atash Behram is
classified as "Moderate" by respondent No.4 and "Slight" by VJTI. He, therefore, submitted that
there is no substance in contention (A) raised by the petitioners dealing 321 wp_2890.18.j.doc with
the incident of Jer Mahal Annexe Building.
214. Insofar as contention [B] is concerned, Mr. Anturkar submitted that the number of old
buildings were standing on the down tunnel and in between Wadia building and the town tunnel.
Though those buildings are old still no sign of distress was observed. It is inconceivable that the so
called vibration will affect only one building. As far back as on 21.7.2015 the warning was given by
MBRRB that said building is in dilapidated condition (page-894).
215. Insofar as the contention [C] is concerned, Mr. Anturkar submitted that a news item is not an
evidence. He relied upon following decisions:

(i) Samant N. Balakrishna Vs. George Fernandez30 and in particular paragraph-47

thereof.
30 AIR 1969 SC 1201
322 wp_2890.18.j.doc
(ii) Ketan K. Tirodkar Vs. Central Bureau of

Investigations and another31.
216. Mr. Anturkar submitted that the news report published in "The Hindu" is a
printed hear-say evidence. He further submitted that in respect of the soil
composition of Chennai mentioned in the news item, which was shown as "Rocky &
Sandy", whereas the very said item indicates that at New Delhi the soil was "quite
rocky". Insofar as Mumbai soil composition is concerned, he invited our attention to
the soil composition as per Annexure-V at pages-830-831 of the Petition, which
shows that the compensation of soil in the area where the nearby Atash Behram is
situate is "Moderately Strong slightly weathered Gray Basalt" (9.5 meters to 11.00
meters) and "Strong fresh Gray Basalt" (11.00 meters to 12.50 meters)
217. Insofar as the contention [D] based upon the decision 31 2016 SCC OnLine Bom 5954 323
wp_2890.18.j.doc of Apex Court in K. Guru Prasad Rao's 11 case is concerned, Mr. Anturkar
submitted that the case is concerning protection of Jambhunath Temple. Jambhunath Temple is
"protected monument" and was under the protection of Karanataka Ancient and Historical
Monuments and Archaeological Sites and Remains Act, 1961. As against this Atash Behrams are not
"protected monuments" within the meaning of the Maharashtra Ancient Monuments and
Archaeological Sites and Remains Act, 1960. He has invited our attention to the definition of the
expressions "ancient monument" [Section 2(1)], "Power of the Government to declare Ancient
Monuments to be Protected Monuments [Section 4], "Prohibited Area and Regulated Area" [Section
2(j)], "Prohibition for Mining" [Rule 13] and submitted that these expressions clearly show that
Jambhunath Temple being "Protected Monument" under the State Act, the ratio of said decision is
not applicable to the present case. Jambhunath Temple's case was a case of "Wagon Blasting
Method", whereas 324 wp_2890.18.j.doc the present case is of "Controlled Blasting". Atash
Behrams are "Heritage Buildings" as per Regulation 67 and are not "Protected Monuments". The
case of Jambhunath Temple was the case of private mining leases and not project of public utility.
He, therefore, submitted that the said decision is not applicable in the present case.
218. Insofar as the contention [E] based upon the report of VJTI is concerned, he submitted that by
order dated 25.7.2018, the Division Bench of this Court directed that VJTI should "examine". The
order no where says that VJTI should "investigate". The distinction between "investigate" and
"examine" is absolutely clear and still the petitioners are trying to mislead the Court by contending
that this Court had given directions to VJTI to investigate as is evident from the affidavit dated
13.8.2018 made by petitioner No.1 Jamshed (pages- 569/579). The petitioners never sought any
directions from this 325 wp_2890.18.j.doc Court either on 25.7.2018 or on 6.8.2018 to VJTI to
collect its own data and not to use the data of respondent No.4. The petitioners never raised
objection nor made suggestion before VJTI that it should collect its own data and not to use the data
supplied by respondent No.4. Even during the course of hearing, the petitioners did not raise any
objection about the validity or genuineness of the data collected by respondent No.4. In the absence
of any directions from this Court and in the absence of any request from the petitioners, at the most
it was entirely in the discretion of VJTI as an Expert Commissioners, either (a) to rely upon the data
collected by respondent No.4 when the genuineness of the data was not challenged by the
petitioners before it, or (b) to collect data by itself conducting tests, or (c) to adopt both the methods
mentioned (a) and (b) above. He submitted that no fault can be found with the expert, because the
expert has opted for one of the permissible courses. That apart there are no allegations of malafides
or bias against VJTI. In any 326 wp_2890.18.j.doc case, the decision of respondent No.4 is not
based upon VJTI report. The decision making process of the 4th respondent was independent of
VJTI report. The report of VJTI was required by the Court and not by the 4th respondent. Even if
the report is discarded, the discarding will not affect the decision making process of respondent
No.4 which will stand on its own footing. At the most the report of VJTI is for the purpose of Order
XXVI of Code of Civil Procedure, 1908 (for short, 'C.P.C.').
219. Insofar as the contention [F] dealing with the decision making process adopted by respondent
No.4 is concerned, Mr. Anturkar submitted that basically the petitioners have not at all challenged
the decision making process of the 4 th respondent. He invited our attention to ground (w) of the
Petition, which is to the following effect :
"W. Because as far as the Petitioners are aware, the Respondent Nos.1 to 4 have failed
to conduct any study 327 wp_2890.18.j.doc in relation of the structural safety of the
Atash Behrams in connection with the proposed construction or any study on the
impact of the proposed construction on the wells in the Atash Behram premises."
220. As against this, respondent No.4 relied upon:
(a) The report of Maple General Consultant, namely, BCS report. (pages-232 to 261)
(b) The report of the Committee of five Directors of respondent No.4 formed as per the directions of
this Court dated 23.5.2018. (page-272)
(c) Annexure-V indicating sampling soil and rocks and the detonator, which may be required to
break such soil and rock.
(d) The notification dated 12.12.2011 inviting objections/suggestions from the public at large.
(page-411)

(e) The further affidavit-in-reply dated 16.7.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) on
behalf of respondent No.4 and in particular paragraphs-4 to 7 thereof, by which realignment to
some extent is made. (page-535B)
(f) The reasons given as to why complete realignment as required by the petitioners cannot be made.
[page-536C, paragraph-10(a) to (d)] 328 wp_2890.18.j.doc
(g) Assurance of respondent No.4 to the effect that they are ready to abide by the recommendations
made by VJTI. (page-602)
(h) Assurance of respondent No.4 that in order to keep the energy generated within the limits of
2800 Joules, respondent No.4 will restrict the quantity of detonator irrespective of the quality of the
soil and rock as per Annexure-V, mentioned more particularly in respect of the area adjacent to the
concerned Atash Behram.
221. Mr. Anturkar submitted that every step has been taken by respondent No.4 and even during
pendency of this Petition respondent No.4 has agreed for the limited realignment which shows
fairness on the part of respondent No.4. Even during pendency of the Petition, respondent No.4 has
always shown readiness and willingness to consider the proposal(s) of the petitioners. He, however,
hastened to add that it is necessary to clarify that this will be subject to only two things
(a) the ultimate decision about the realignment will be that of respondent No.4 and not of the expert
consulted by the 329 wp_2890.18.j.doc petitioners and (b) respondent No.4 under, no
circumstance, can compromise with the safety of the passengers, who will be using Kalbadevi Metro
Station, which will be one of the most busiest Metro Stations in future.
222. Mr. Anturkar submitted that on 12.12.2011 notification was issued inviting suggestions /
objections in regard to the alignment and station locations from concerned stakeholders in writing
by respondent No.4. The details of the alignment and station locations including Kalbadevi Metro
Station were uploaded at www.mmrdamumbai.org. The project alignment plan was also displayed at
following offices:

001.
iv. Collector (City), Mumbai City Collectorate, Old Custom 330 wp_2890.18.j.doc
House, Fort, Mumbai - 400 001.


Mumbai - 400 051.
223. Respondent No.4 had undertaken a Social and Environmental Impact Assessment Study as per
JICA guidelines. In this regard the alignment and station locations were notified and
suggestions/objections for the same were invited from concerned stakeholders in writing by
respondent No.4. He submitted that the petitioners did not even file any suggestion/objection in
pursuance of the notification. He invited our attention to paragraphs-4 to 7 of the affidavit dated
16.7.2018 as also paragraph-6(f) of the additional affidavit dated 16.8.2018 made by Shantaram
Ganpat Dalvi, DGM (Civil) on behalf of respondent No.4. He invited our attention to the conclusions
drawn and recommendations made by VJTI.
331 wp_2890.18.j.doc
224. Mr. Anturkar submitted that the petitioners have to establish the case under Article 25 of the
Constitution of India. Article 25 is subject to Part III of the Constitution, namely, other
Fundamental Rights, such as, Articles 19, 21 etc.. He submitted that the phrase "subject to other
provisions of this Part" also appears in Article 301. In Article 312 the expression that appears is
"subject to the other provisions of this Chapter". He invited our attention to Articles 15, 16 and 19 of
the Constitution vis-a- vis Article 25.
225. Mr. Anturkar relied upon following decisions :
[i] N.D. Jayal vs. Union of India (UOI) 32 and in particular paragraph-23, 24 and 26
thereof;
[ii] Jindal Stainless Ltd. Vs. State of Haryana 33 and in particular paragraphs-198
and 199 thereof, to contend that the provisions of Article 25 are subservient to other
provisions of Part III of the Constitution.
32 (2004) 9 SCC 362 33 (2017) 12 SCC 1 332 wp_2890.18.j.doc [iii] Amit Vishnupant Khot Vs.
Union of India34 and in particular paragraph-13 to contend that the Court should find out as to how
the greater interest should be subserved and for that purpose a balance should be struck and
harmony should be maintained between several interests.
226. Insofar as the proposal submitted by the petitioners for realignment of up-tunnel on 22.9.2018
is concerned, Mr. Anturkar submitted that various technical, architectural and designing elements
are required to be taken into account while considering the alternate proposals of the petitioners.
The proposed Kalbadevi Metro Station has been designed after careful and detailed planning. It is to
serve 2,19,744 (station load including boarding and alighting) per day by 2031. The station has to be
compliant with all safety protocols considering that it is to serve a huge volume of people.

34 2008 (3) Mh.L.J. 257
333 wp_2890.18.j.doc
227. Insofar as the speed of tunneling work and monitoring process of 4th respondent is concerned,
he submitted that appropriate speed for the safe operation of a TBM machine is 10 meters per day.
Considering that TBM machine for the Up-Line is 100 meters away from the Anjuman Atash
Behram and 200 meters away from the Wadiaji Atash Behram, it would take approximately 10 days
for TBM machine to reach boundary of Anjuman Atash Behram and approximately 20 days for TBM
machine to reach boundary of Wadiaji Atash Behram from its current location. He submitted that it
is possible to reduce the speed of TBM machine to the extent possible as per encountered geological
strata. However, such reduction of speed increases the likelihood of squeezing of the ground, which
may result in settlement of the ground at surface level. Respondent No.4 has set up a detailed
protocol for monitoring various structures involving installation of various monitoring devices, such
as, Ground Settlement Markers, Building Settlement Markers, 334 wp_2890.18.j.doc Crack Meters,
Building Tilt Meters, Building Vibration Monitors, Bi-reflex Targets, Optical Targets etc. He
submitted that following monitoring process are being implemented and shall be implemented for
the concerned Atash Behrams:
a. Currently the Atash Behrams are being monitored for settlement markers installed
on the outer walls and pavements in front of the Atash Behrams.
b. Vibrations will be monitored using vibration sensors on a 24x7 basis.
c. Tilt monitoring will be done by tilt plates which are installed on the external wall of
Wadiaji Atash Behram.
d. Any existing cracks on the outer wall can be monitored by installing crack meters
and any existing cracks inside the structure can be monitored by installation of crack
meters inside the structure, if such permission is granted.
228. Mr. Anturkar submitted that a detailed system for monitoring is in place with respect to
monitoring of structures as under :
a. A team of four engineers comprising of Instrumentation and Monitoring Engineer is designated

for monitoring the 335 wp_2890.18.j.doc structures.
b. There are defined trigger levels for the structures within the influence zone of metro construction
works viz. i. Alert Level : Set as 0.5 times the serviceability limit value defined for the monitored

structure. ii. Action Level : Set as 0.8 times the serviceability limit value defined for the monitored
structure. iii. Alert Level : Set at the serviceability limit value defined for the monitored structure.
c. Daily instrumentation and monitoring report is sent to the officials of the Answering Respondent,
the supervision team of Contractors, the officials of the Detailed Design Consultant and the General
Consultant.
d. The officials of the Contractors and General Consultants are highly qualified in their respective
technical fields and include Doctorates in Geology, Post Graduates in Civil Engineering and
Mechanical Engineering etc.
229. Mr. Anturkar submitted that the Down Line Tunnel has reached till Girgaum and has cross 92
structures. Out of these structures, 04 structures are classified as "Very Severe", 30 structures are
classified as "Severe" and 37 structures are 336 wp_2890.18.j.doc classified as "Moderate" and no
damage is caused to any of these structures.
230. Mr. Anturkar submitted that "Controlled Blasting" is a method of controlled usage of
explosives and blasting accessories in appropriately aligned and spaced drill hole. The energy and
consequent vibrations generated from such blasting method depend on the quantity of
charge/detonator used for such blasting. If lesser quantity of charge is used, the amount of energy
and consequent vibration generated from such charge can be limited to prefixed limits. As per the
British Standards, the permissible PPV at Existing Building Structure (EBS) for Heritage Structure
is 5 mm/second. As per the American Association of Highway and Transportation Officials
(AASHTO) Guidelines, the permissible PPV at EBS for Heritage Structure is 2.54 mm/second. He
submitted that if the energy generated for 337 wp_2890.18.j.doc controlled blasting at a depth of 12
meters, is taken as 2800 Joules, the PPV at the Wadiaji structure would be 1.965 mm/second. The
energy generated from controlled blasting can be limited by using lesser charge. Respondent No.4
will ensure that the PPV generated from controlled blasting at the Wadiaji Atash Behram will not
exceed 2.54 mm/second.
231. Mr. Anturkar submitted that VJTI has recommended additional safety measures, namely, a.
Excavation for cut and cover at Kalbadevi station near the corner of Wadiaji Atash Behram shall be
carried out by drilling line holes upto bottom for the plan area of 3 x 3 meters. Further excavation in
remaining area shall be carried out by mechanical means or control blasting. The perforation
(drilling holes) by line drilling will further reduce the vibration on Atash Behram buildings. b. Both
the Atash Behrams should be closely monitored for settlement, vibrations, tilt and change in crack
width, before, during and after tunneling and construction of the 338 wp_2890.18.j.doc Kalbadevi
Station vibration monitoring shall be carried on 24/7 basis during construction works.
c. Wells in the premises should be closely monitored for water level and water quality.
232. In the affidavit dated 16.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) on behalf of
respondent, it is stated that respondent No.4 would implement the recommendations.

233. Insofar as the submission as regards drying up of well water is concerned, Mr. Anturkar
submitted that the wells are situate at the top layer of soil at a depth of nearly 20 ft. while the tunnel
is being constructed within the basalt rock layer at a depth of 60-65 ft. Thus, there is considerable
space and difference of layers between the wells and tunnel. He submitted that even if some
temporary fluctuations are observed during tunneling work, the same would be normalised once the
TBM machines pass through the areas. Apart from this, as a 339 wp_2890.18.j.doc precautionary
measure, 14 groundwater charging wells are installed in the area to maintain water levels in the
wells. In addition, the water levels in the wells are monitored twice a day by using water level
indicator. The quality check can also be carried out on monthly basis during the construction period,
if permission is gratned for collecting water samples.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.2 -
STATE OF MAHARASHTRA
234. Mr. Kumbhakoni, learned Advocate General submitted that in the facts and circumstances of
the present case it is necessary to find out whether the petitioners have made out a case claiming
protection under Article 25 of the Constitution of India and whether enforcement of Article 25 can
stop the proposed alignment by the 4th respondent. He heavily relied upon paragraph-9 of the
decision in Second Anand Marg's9 case. He submitted that the petitioners have not produced any
evidence to substantiate their case that the religious practices etc. are 340 wp_2890.18.j.doc
essential and integral part of Zoroastrian religion. He submitted that Article 25 is subject to Part III
of the Constitution, namely, other Fundamental Rights. The fundamental right under Article 21 of
the general citizenry will prevail over the fundamental rights claimed by the petitioners under
Article 25 of the Constitution. He invited our attention to the following :
(i) Paragraph-12 of the order dated 18 th, 19th and 20th July, 2018 passed by the
Division Bench of this Court (Coram: A.S. Oka & Riyaz I. Chagla, JJ.)35
(ii) Paragraph-16 of Mrs. Pervin Jehangir Vs. Union of India36;
(iii) Order dated 24.8.2018 passed by the Division Bench of this Court [Coram:
Naresh H. Patil, J. as the learned Chief Justice then was and G.S. Kulkarni, J.)37;
(iv) Asha Ranjan Vs. State of Bihar38 and in particular paragraphs-55 to 58, 60 and 6 thereof to
contend that when there is conflict between the fundamental right/s claimed by 35 Notice of Motion
(L) No.507/2017 in Writ Petition (L) No.2107/2017.
36 2017 SCC OnLine Bom 2510

37 in Notice of Motion (L) No.507/2017 in Writ Petition (L)
No.2107/2017
38 (2017) 4 SCC 397

341 wp_2890.18.j.doc
a group of persons vis-a-vis the fundamental right/s claimed by other group of persons, the Court
has to balance the fundamental rights claimed by both sides;
(v) Modern Dental College's27 case.
(vi) Second Anand Marg's9 case and in particular paragraph-9 thereof to contend that no activity is
carried out by respondent No.4 below fire or well of Atash Behrams.
(vii) Alaknanda Hydropower Company Ltd. Vs. Anuj Joshi 39 and in particular paragraphs-25 and
33 thereof. SUBMISSIONS ON BEHALF OF RESPONDENT NO.1 -
UNION OF INDIA
235. Mr. Anil Singh, learned Additional Solicitor General submitted that the material produced by
the petitioners is not sufficient to show that the claim made by the petitioners is essential and
integral part of Zoroastrian religion. He submitted that no scriptures are placed on record by the
petitioners to substantiate their claim nor there is any reference made to the scriptures by the
affidavits filed by the Priests and High Priests.
39 (2014) 1 SCC 769
342 wp_2890.18.j.doc
He has taken us through the material produced by the petitioners. He relied upon following
decisions:
(i) Unreported decision of the Division Bench of this Court (Coram: A.S. Oka & A.S.
Chandurkar, JJ.) in Gramsabha of village Battis Shirala Vs. Union of India 40 and in
particular paragraphs-10 to 12 thereof;
(ii) Mohammad Ali Khan's13 case and in particular paragraph-9 thereof.
(iii) Dr.Noorjehan Safia Niaz's18 case.
REJOINDER BY THE PETITIONERS

236. In rejoinder, Mr. Seervai submitted that the respondents have contended that the scriptures
are necessary for determining the religious practices which are essential and integral part of a
religion. The respondents have contended that only essential and integral religious practices are
protected by Article 25 of the Constitution. He submitted that the scriptures are not the only
requirement for determining the right under 40 dated 15.7.2014 in W.P. No.8645/2013 along with
PIL No.75/2011 343 wp_2890.18.j.doc Article 25. He relied upon the following :
(i) Paragraphs-17 and 20 of Shirur Mutt's1 case;
(ii) Paragraphs-33 and 54 of Sardar Syedna's3 case;
(iii) Paragraph-57 of Tilkayat's4 case;
(iv) Paragraphs-85, 90 and 118 of Narayana's8 case;
(v) Paragraph-9 and 81 of the Second Anand Marg's9 case;
(vi) Paragraph-13 of Ratilal Panachand Gandhi's10;
(vii) Paragraph-33 of Gulam Abbas's7 case;
(viii) Paragraphs-8 and 18 of Bijoe Emmanuel Vs. State of Kerala41.
(ix) Paragraphs-39 and 41 of Janab Salehbai Saheb Saffiyudin Vs. The Municipal
Corporation of Greater Mumbai42;
237. Mr. Seervai further submitted that in deciding as to whether a given religious practice is an
integral part of the religion or not, the test always would be whether it is regarded as such by the
community. There is a complete unanimity of all 41 1986 SCR (3) 518 42 (1993) 3 Bom CR 282 344
wp_2890.18.j.doc religious heads and Zoroastrian scholars on this aspect. By order dated
23.5.2018, this Court directed all the High Priests of the Zoroastrian community to place their stand
with respect to the issues raised in the Petition on record. All the five High Priests of the Zoroastrian
religion have declared that the above beliefs are the core beliefs of the Zoroastrian faith. The
affidavits of four High Priests and the letter of one of one High Priest unequivocally bear out the
integral religious beliefs. [pages-148- 150]. Even prior to filing of these affidavits, the High Priests
had issued various letters to various Government authorities and had raised issues concerning the
spiritual sanctity of the Atash Behrams. (pages 111, 113, 114, 124 and 141 of Petition). The affidavit
dated 3.6.2018 filed by Bombay Parsi Panchayat being the Apex Body of the entire community,
which is enclosed with the affidavit of petitioner No.1 dated 7.6.2018 at page-164. Support letters of
numerous Parsi Institutions and Anjumans, across India. (pages-187-204 of the affidavit dated
13.6.2018).
345 wp_2890.18.j.doc

238. Petitioner No.4 is himself a renowned religious
scholar of Zoroastrian faith and a qualified priest and who has derived the knowledge in connection
with the spiritual aspects mentioned from accepted practices, long standing traditions, scriptures,
customs and teachings. Zoroastrian religious scholars like Ervad Parvez Bajan have filed affidavits
in support of the contentions raised in the petition. (page-497 of the affidavit dated 11.7.2018).
239. Mr. Seervai submitted that reference have been made to scriptures and other material
pertaining to various beliefs of Zoroastrians including religious books and articles published by
various Zoroastrian scholars as well as High Priests dealing with various aspects in the Petition. He
has also referred to the books and articles of Zoroastrian scholars and High Priests, namely, i. J.J.
Modi, ii. Mr. Jehangir Chiniwalla, 346 wp_2890.18.j.doc iii. Feroze Kotwal, iv. Ervad Hormazdyar
Dastur Kayoji Mirza, v. Ervad Phiroze S. Masani, vi. Parvez Bajan, vii. Ervad Rohinton Peer.
240. Mr. Seervai invited our attention to the letters issued by High Priests as also the historical
background pertaining to Atash Behrams and their importance including books on the subject. Mr.
Seervai further submitted that the law grants protection to beliefs, tenets, doctrines, customs,
usages and practices and this may not necessarily be scriptural. A large majority of Zoroastrian
scriptures have been destroyed and a judicial notice may be taken in that regard. He further
submitted that the contention of the respondents that no scriptures are produced are incorrect. The
original scripture of the holy Khordeh Avesta which clearly refers to the spiritual concept of karsha
is on record. [page-495-496/Exhibit- H/rejoinder]. He has also invited our attention to the Article
27.2.1955 of Jehangir Chiniwala on "Consecration of an Atash 347 wp_2890.18.j.doc Behram" are
also the documents about nine karshas drawn within the precincts of the Atash Behram, which
extends throughout the premises of the Atash Behram. (page-507- 508/rejoinder).
241. Mr. Seervai submitted that reference to scriptures have been made in the article 'The Divine
and Exalted Status of Consecrated Fire in Zoroastrianism' by Vada Dasturji Kotwal.
(pages-456-464/Exhibit-D/rejoinder). He submitted that even the book "Outline of Parsi History"
by Hormazdyar Dastur Kayoji Mirza refers to Zoroastrian scriptures which talk about connection
between the fire and Mother Earth (Armaiti). (pages- 465-482/ pages-470-473/rejoinder)
242. He submitted that similarly reference to scriptures can also be found in the Article of Vada
Dasturji Kotwal 348 wp_2890.18.j.doc 'Spiritual Aspects of the Gathas and Their Community in the
Later Stages'. (pages-488-488/Exhibit-F/rejoinder).
243. Mr. Seervai submitted that the Court is concerned with the decision making process and not
the decision itself. He submitted that if the decision violates the fundamental right, then the
decision can also be challenged. In support of this proposition he relied upon paragraphs-74, 75 and
95 of the Apex Court in TATA Cellular Vs. Union of India 43. He submitted that the decision making
process concerning the tunnel passing under the Atash Behram have serious flaws. It was only on
9.11.2017, the Hon'ble Chief Minister convened the meeting of High Priests to discuss the issue. The

manner in which the meeting was convened was clearly questionable as is evident from the order
dated 23.5.2018 passed by this Court. In that order, this Court recorded that a question was put to
the learned 43 (1994) 6 SCC 651 349 wp_2890.18.j.doc Counsel appearing for the parties as to why
the meeting was convened only with two of the five head Priests. This clearly shows that respondent
No.4 accepted that initial decision making process have flaws. He submitted that when the meeting
was convened the Trustees of Atash Behrams and three High Priests were kept out of the loop. This
Court, therefore, directed five members of the Board of Directors of respondent No.4 to hear the
petitioners, the Architect nominated by them, the Trustees of Atash Behrams, the High Priests, their
Advocates if any. He submitted that the notification dated 12.12.2011 (at page-411 of the
affidavit-in-reply dated 26.6.2018) does not have any material details. Kalbadevi Metro Station is
not even mentioned in the said notification. This glaring fact came to light only in June, 2018 when
respondent No.4 provided certain documents upon request of the petitioners in order to attend the
meeting with respondent No.4 in pursuance of the directions dated 23.5.2018 issued by this Court.
This clearly establishes the 350 wp_2890.18.j.doc glaring flaws in the decision making process and
lack of transparency on the part of respondent No.4.
244. Mr. Seervai further submitted that though the petitioners' Architect have provided various
options, respondent No.4 has agreed only to partial realignment. The very fact that respondent No.4
has agreed to move it 3.5 meters only after the order of the Court dated 23.5.2018 itself
demonstrates that the decision making process is seriously flawed. The International Expert has
clearly shown that even today the realignment so as to shift the tunnel outside the premises of both
the Atash Behrams is easily feasible and achievable and can be undertaken. He submitted that the
conduct of the 4 th respondent should also be kept in mind as they want to present the Court with a
fait accompli. Despite this, the international consultant has worked out various options of
realignment so as to shift the tunnels outside the Atash Behram, which is still easily 351
wp_2890.18.j.doc feasible and achievable. He submitted that the petitioners have taken every
possible steps including involving an international tunneling expert for the purpose of working out a
solution for realignment. However, the conduct of respondent No.4 has been far from transparent or
fair in the present proceedings. The petitioners have demonstrated by way of a detailed reports of
international tunneling experts that conceptually and otherwise the shift in the alignment is
possible. There is no question of compromising the safety of the passengers using the Kalbadevi
Metro station. All the parameters as required by respondent No.4 have been addressed while
suggesting not one but eight conceptual options of realignment based on global metro experience of
the international tunneling expert.
245. Insofar as the submissions of respondent No.4 on the structural safety and integrity is
concerned, Mr. Seervai submitted that the construction of the proposed Kalbadevi 352
wp_2890.18.j.doc Station will involve controlled blasting. The proposed Kalbadevi station is located
merely 5 meters away from the Wadiaji Atash Behram. This glaring fact came to light only in June,
2018 when respondent No.4 provided certain documents on the request of the petitioners in order
to attend the hearing before the five members of Board of Directors of respondent No.4. He
submitted that respondent No.4 in its report dated 15.6.2018 has enclosed at Appendix-X a Kalbdevi
Station report which shows that controlled blasting will in fact directly occur under the Wadiaji
Atash Behram in order to expand the tunnel to give access to the station platforms of the proposed

Kalbadevi station. In the same report, the 4th respondent also indicated that it will use NATM
techniques for enlargement of the tunnels. (pages- 272-411/ 394-403/ affidavit-in-reply dt.
26.6.2018)
246. Mr. Seervai submitted that the controlled blasting, secant piling activities in respect of the
proposed location of 353 wp_2890.18.j.doc Kalbadevi station at such close proximity to a heritage
structure would result in the Wadiaji Atash Behram being subjected to a very real and serious threat
of structural damage. The Wadiaji Atash Behram is irreplaceable and, therefore, the Court should
not rely on the self-serving and convenient assurances given by respondent No.4. There is no
independent expert report on record. The report of VJTI is not an independent expert's report. He
submitted that the incident of Sao Paulo subway yellow line- 4, which episode is recorded in a
technical paper presented during the Proceedings of 2008 AACJ-IJME International Conference,
shows that when an explosion is planned in a controlled manner (controlled blasting), serious
accidents involving loss of lives as well as collateral damage to nearby structures, can happen. In any
case, in its report dated 15.7.2018, respondent No.4 has stated that the construction of the proposed
Kalbadevi station has not yet commenced and that even the land acquisition process for the purpose
of the station is 354 wp_2890.18.j.doc not yet completed. Respondent No.4 has not dealt with the
submissions of the petitioners which were made by amending the petition.
247. Mr. Seervai submitted that in the case of K. Guruprasad Rao11, the Apex Court has prohibited
any kind of blasting activities whether wagon blasting method, controlled blasting or even
mechanical operations as a distance of 1 km from the temple.
248. Mr. Seervai submitted that respondent No.4 has contended that metro construction has
nothing to do with Jer Mahal building collapse. He denied that the petitioners are creating any
confusion. In fact the petitioners have clearly mentioned in the rejoinder that the pictures annexed
by respondent No.4 contractors pertain to Jer Mahal building which 355 wp_2890.18.j.doc is right
next to Jer Mahal Annexe building. The petitioners have also clearly mentioned that respondent
No.4 was anticipating damage to the Jer Mahal building. The incident report relied upon by
respondent No.4 is an internal report of the general consultant of respondent No.4 and does not
contain any detailed study. Even assuming the construction work was on hold three days prior to the
incident does not eliminate the possibility of collapse of structure weakened from vibration of tunnel
construction in the vicinity. He submitted that the VJTI failed to annex any data in connection with
vibrations which would have shed light on the intensity of vibrations when the building fell.
Respondent No.4 has actively suppressed from the Court this all important and crucial parameter
for considering the structural safety and stability of the Atash Behrams.
249. Mr. Seervai further submitted that respondent No.4 contended that metro station has nothing
to do with the 356 wp_2890.18.j.doc development of cracks in the Wadia building and that already a
warning had been given by MBRRB. Even assuming this is to be true, it does not mean that the
building cannot be adversely affected by the metro construction activities. He submitted that the
cracks appearing in the Wadia building have a direct nexus with the tunneling activity of the 4 th
respondent. It is significant to note that the lower tunnel crossed the concerned structures around
14.7.2018 and cracks developed on 11.7.2018. The VJTI report states that it could not comment as to

whether the separation cracks appeared due to the tunneling activity or any other reason, despite
the fact that the Wadia building episode was specifically brought to the attention of VJTI.
250. Mr. Seervai submitted that though VJTI was appointed as an independent expert to conduct an
independent study and give its report, the VJTI was not permitted to blindly 357 wp_2890.18.j.doc
rely on only the data supplied by respondent No.4 and its contractors. VJTI has not placed the
crucial data on vibrations. Respondent No.4 has not dealt with any of the major submissions
concerning the VJTI report made by the petitioners. In any case, the VJTI has not done an
independent investigation, or for that matter any examination or study. The report of VJTI is exfacie
riddled with glaring inconsistencies, inaccuracy and suffers with non-application of mind, lack
independent analysis and is, therefore, unreliable. The glaring inconsistencies relating to
contradictions between Annexure5 & 7 of the same report remain uncontroverted.
CONSIDERATION OF SUBMISSIONS
251. We have heard Mr. Seervai for the petitioners from 7.9.2018 to 17.9.2018, Mr. Devitre for
supporting respondents No.5 to 12 on 17.9.2018, Mr. Aney for respondent No.4 from 17.9.2018 to
21.9.2018, Mr. Anturkar for respondent No.4 on the question of structural safety and integrity of the
Atash Behrams 358 wp_2890.18.j.doc in question and partly on Article 25 on 24.9.2018, 25.9.2018
and 26.9.2018, Mr. Kumbhakoni and Mr. Singh on 25.9.2018 and 26.9.2018. Mr. Seervai advanced
arguments in rejoinder from 26.9.2018 to 28.9.2018. On 28.9.2018, we passed order recording that
the learned Senior Counsel for the respective parties have concluded their arguments. At the end,
Mr. Seervai submitted a copy of the recent judgment of the Apex Court in the case of Indian Young
Lawyers Association and ors. vs. The State of Kerala and ors.44, (Sabarimala Temple's Case). Mr.
Aney submitted that as the parties have concluded their arguments on merits, the next date may be
restricted only to the extent of citing of the judgments. In view thereof, at the request of learned
Counsel for the parties, the matter was adjourned to 8.10.2018 for arguments on the decision of
Apex Court in Indian Young Lawyers Association (Sabarimala's case) 44. Accordingly on 8.10.2018
the learned Counsel have advanced 44 Writ Petition (Civil) No. 373/2006, decided on 28.9.2018 359
wp_2890.18.j.doc their arguments on that decisions. The petitioners have tendered Notice of
Motion No.395/2018 during the course of hearing. On 8.10.2018, we have closed the matter for
judgment and continued the ad-interim order granted earlier until further orders. On the same day,
we have passed order on the Motion that we would deal with the Notice of Motion along with the
main Petition which is closed for judgment. For the reasons separately recorded, we have dismissed
the Motion.
252. I have considered the rival submissions advanced by the learned Counsel appearing for the
parties. I have also perused the material on record as also the written submissions filed on record. In
my opinion following issues are raised in the present Petition:
[1] Right to Freedom of Religion;
[2] Structural safety and integrity of two Atash Behrams in question;

360 wp_2890.18.j.doc
253. The issue of Right to Freedom of Religion can be divided in three parts :
(i) the basis for assumption of existence of fundamental right under Article 25 of the
Constitution of India;
(ii) the practices which are essential and integral part of the religion;
(iii) balancing of fundamental right of the petitioners under Article 25 vis-a-vis other
rights in Part-III of the Constitution of India.
254. The issue of structural safety can be divided in two parts, namely;
(i) likelihood of damage to the existing structure;
(ii) alternative proposals submitted by the petitioners.
RIGHT TO FREEDOM OF RELIGION UNDER ARTICLE 25 OF CONSTITUTION OF

INDIA
255. In order to deal with this issue, it is necessary to refer 361 wp_2890.18.j.doc to the decision of
Apex Court in the case of Indian Young Lawyers Association (Sabarimala's case) 44. Said decision
has considered all the judgments dealing with Articles 25 and 26 right from Nar Hari Sastri and Ors.
Vs. Shri Badrinath Temple Committee45 to Shayara Bano's19 case.
256. In that case, Writ Petition was instituted under Article 32 of the Constitution of India seeking
directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of
Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees
between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which
has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of the
powers conferred by 45 AIR 1952 SC 245 362 wp_2890.18.j.doc Section 4 of the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Act, 1965 as unconstitutional being violative of
Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to pass directions for the safety
of women pilgrims. The Apex Court considered the question, namely, whether exclusion of women
of the age group of 10 to 50 years is an essential practice under the Hindu religion in the backdrop of
the peculiar attending circumstances attributable to the Sabarimala temple.
257. Deepak Misra, C.J.I. rendered judgment for himself and A.M. Khanwilkar, J. In paragraph-112,
reference was made to the decisions of John Vallamattom Vs. Union of India 46 and Free Church of
Scotland Vs. Overtoun47. Reference was also made to :
46 (2003) 6 SCC 611

47 (1904) AC 515

363 wp_2890.18.j.doc
(i) Shirur Mutt's1 case;
(ii) Mohd. Hanif Quareshi Vs. State of Bihar48;
(iii) State of West Bengal Vs. Ashutosh Lahiri49
(iv) Durgah Committee's5 case;
(v) Acharya Jagadishwarananda Avadhuta Vs. Commissioner of Police, Calcutta50 (First Ananda
Marg Case)
(vi) N. Adithayan's23 case;
(vii) Second Anand Marg's9 case.
258. In Shirur Mutt's1 case, the Apex Court opined that in the first place what constitutes the
essential part of religion is primarily to be ascertained with reference to the doctrines of that religion
itself. (para-114)
259. In Durgah Committee's5 case, although the Apex Court speaking in the context of Article 26,
warned that some practices, though religious, may have sprung from merely superstitious beliefs
and may, in that sense, be extraneous and 48 AIR 1958 SC 731 49 AIR 1995 SC 464 50 (1983) 4 SCC
522 364 wp_2890.18.j.doc unessential accretions to religion itself and unless such practices are
found to constitute an essential and integral part of a religion, their claim for protection as essential
practices may have to be carefully scrutinized. In other words, the protection must be confined to
such religious practices as are an essential and an integral part of the religion and no other.
(para-117)
260. In N. Adithayan's23 case, the Apex Court observed that the legal position that the protection
under Articles 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of
worship which are integral parts of religion and as to what really constitutes an essential part of
religion or religious practice has to be decided by the Courts with reference to the doctrine of a
particular religion or practices regarded as parts of religion. (para-120) [Emphasis supplied] 365
wp_2890.18.j.doc
261. In the case of Second Anand Marg9, the Apex Court opined that the protection guaranteed
under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but

extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals,
observances, ceremonies and modes of worship which are essential or integral part of religion. What
constitutes an integral or essential part of religion has to be determined with reference to its
doctrines, practices, tenets, historical background etc. of the given religion. (See the decisions in
Srirur Mutt's1 case, Sardar Syedna's3 case and Seshammal's6 case] regarding those aspects that are
to be looked into so as to determine whether a part or practice is essential or not). What is meant by
'an essential part or practices of a religion' is now the matter for elucidation. Essential part of a
religion means the core beliefs upon which a religion is founded. Essential practice means those
practices that are fundamental to follow a religious belief. It is upon the 366 wp_2890.18.j.doc
cornerstone of essential parts or practices the superstructure of religion is built. Without which, a
religion will be no religion. Test to determine whether a part or practice is essential to the religion is
- to find out whether the nature of religion will be changed without that part or practice. If the
taking away of that part or practice could result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an essential or integral part. There cannot
be additions or subtractions to such part. Because it is the very essence of that religion and
alterations will change its fundamental character. It is such permanent essential parts is what is
protected by the Constitution. Nobody can say that essential part or practice of one's religion has
changed from a particular date or by an event. Such alterable parts or practices are definitely not the
'core' of religion where the belief is based and religion is founded upon. It could only be treated as
mere embellishments to the nonessential part or practices. (para-121) 367 wp_2890.18.j.doc
[Emphasis supplied]
262. It is the duty of the Court to determine (1) whether the practice of exclusion of women of the
age group of 10 to 50 years is equivalent to a doctrine of Hindu religion, or (2) whether that practice
could be regarded as an essential part of the Hindu religion and (3) whether without the said
practice that religion could be altered. In the absence of any scriptural or textual evidence, the Court
cannot accord the practice the status of an essential practice of a religion. (page-122) [Emphasis
supplied]
263. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be
imagined that the nature of Hindu religion would be fundamentally altered or changed in any
manner. The exclusionary practice which has been given the backing of a subordinate legislation in
the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither 368
wp_2890.18.j.doc an essential nor an integral part of the Hindu religion without which Hindu
religion, of which the devotees of Lord Ayyappa are followers, will not survive. (page-123)
264. The practices which emerge or change with the efflux of time cannot be regarded as the core of
the religion. There has to be unhindered continuity of practice to attain the status of essential
practice. Alterable practices are definitely not the core of religion. (page-125) [Emphasis supplied]
265. In a concurring judgment, R.F. Nariman, J., also referred to several decisions. In paragraph-5,
reference was made to Ratilal Panachand Gandhi's10 case. The relevant portion of that decision is to
the following effect :

"xxxxxxxxxxxxxx Religious practices or performances of acts in pursuance of

religious 369 wp_2890.18.j.doc belief are as much a part of religion as faith or belief
in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down
that certain rites and ceremonies are to be performed at certain times and in a
particular manner, it cannot be said that these are secular activities partaking of
commercial or economic character simply because they involve expenditure of money
or employment of priests or the use of marketable commodities. No outside authority
has any right to say that these are not essential parts of religion and it is not open to
the secular authority of the State to restrict or prohibit them in any manner they like
under the guise of administering the trust estate. Of course, the scale of expenses to
be incurred in connection with these religious observances may be and is a matter of
administration of property belonging to religious institutions; and if the expenses on
these heads are likely to deplete the endowed properties or affect the stability of the
institution, proper control can certainly be exercised by State agencies as the law
provides. We may refer in this connection to the observation of Davar, J. in the case
of Jamshed ji v. Soonabai [33 Bom. 122], and although they were made in a case
where the question was whether the bequest of property by a Parsi testator for the
purpose of perpetual celebration of ceremonies like Muktad baj, Vyezashni, etc.,
which are sanctioned by the Zoroastrian religion were valid charitable gifts, 370
wp_2890.18.j.doc the observations, we think, are quite appropriate for our present
purpose. If this is the belief of the community thus observed the learned Judge, and it
is proved undoubtedly to be the belief of the Zoroastrian community,--a secular
Judge is bound to accept that belief--it is not for him to sit in judgment on that belief,
he has no right to interfere with the conscience of a donor who makes a gift in favour
of what he believes to be the advancement of his religion and the welfare of his
community or mankind.
These observations do, in our opinion, afford an indication of the measure of

protection that is given by Article 26(b) of our Constitution. xxxxxxxxxxxxxxx
xxxxxxxxxxxx"
[Emphasis supplied]
266. In paragraph-11, reference was made to Tilkayat's4 case and the instructive
passage, laying down certain tests as to what could be said to be an essential or
integral part of religion as opposed to purely secular practice and laid down what is to
be done to separate what may not always be oil from water, was extracted. The
relevant portion reads thus :
"In deciding the question as to whether a given 371 wp_2890.18.j.doc religious

practice is an integral part of the religion or not, the test always would be whether it
is regarded as such by the community following the religion or not. This formula may
in some cases present difficulties in its operation. xxxxxxxx xxxxxxxxxxxx"

267. In paragraph-20, reference was made to Adi Saiva Sivachariyargal Nala Sangam
Vs. Government of Tamil Nadu51. In that case it was held that although what
constitutes essential religious practice must be decided with reference to what the
religious community itself says, yet, the ultimate constitutional arbiter of what
constitutes essential religious practice must be the Court, which is a matter of
constitutional necessity.
[Emphasis supplied]
268. In paragraph-21.6, it was observed thus:
"21.6. It is only the essential part of religion, as distinguished from secular activities,
that is the subject matter of the fundamental right.
51 (2016) 2 SCC 725
372 wp_2890.18.j.doc
Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot

be considered as essential parts of religion. Matters that are essential to religious
faith and/or belief are to be judged on evidence before a court of law by what the
community professing the religion itself has to say as to the essentiality of such belief.
One test that has been evolved would be to remove the particular belief stated to be
an essential belief from the religion - would the religion remain the same or would it
be altered? Equally, if different groups of a religious community speak with different
voices on the essentiality aspect presented before the Court, the Court is then to
decide as to whether such matter is or is not essential. Religious activities may also be
mixed up with secular activities, in which case the dominant natureof the activity test
is to be applied. The Court should take a commonsense view and be actuated by
considerations of practical necessity."
[Emphasis supplied]
269. In a concurring judgment, Dr. D.Y. Chandrachud, J., observed in paragraph-6

that the chapter on Fundamental Rights encompasses the rights to (i) Equality
(Articles 14 to 18);
(ii) Freedom (Articles 19 to 24); (iii) Freedom of Religion (Articles 25 to 28); (iv) Cultural and
educational rights (Articles 29 and 373 wp_2890.18.j.doc
30); and (v) Constitutional remedies (Article 32).

270. In paragraph-13, the learned Judge referred to the expression "subject to" appearing in Article
25(1) and observed thus :
"13. The expression "subject to" is in the nature of a condition or proviso. Making a
provision subject to another may indicate that the former is controlled by or is
subordinate to the other. In making clause 1 of Article 25 subject to the other
provisions of Part III without introducing a similar limitation in Article 26, the
Constitution should not readily be assumed to have intended the same result.
Evidently the individual right under Article 25(1) is not only subject to public order,
morality and health, but it is also subordinate to the other freedoms that are
guaranteed by Part III. xxxxxxxx xxxxxxx xxxxxxxx"
[Emphasis supplied]
271. Reference was made to the decisions in Shirur Mutt's1 case and Devaru's2 case.
In Devaru's2 case, the Court laid down a crucial precedent in carving out its role in
examining the essentiality of such practices. While the Court 374 wp_2890.18.j.doc
would take into consideration the views of a religious community in determining
whether a practice qualified as essential, this would not be determinative. Prior to
Devaru2, the Court used the word 'essential' to distinguish between religious and
secular practices in order to circumscribe the extent of state intervention in religious
matters. The shift in judicial approach took place when 'essentially religious' (as
distinct from the secular) became conflated with 'essential to religion.' The Court's
enquiry into the essentiality of the practice in question represented a shift in the test,
which now enjoined upon the Court the duty to decide which religious practices
would be afforded constitutional protection, based on the determination of what
constitutes an essential religious practice. (para-32)
272. In paragraph-33, reference was made to Mohd. Hanif Quareshi's48 case and it was observed
that the Court placed 375 wp_2890.18.j.doc reliance upon Islamic religious texts to determine that
the sacrificing of cows at Bakr-Id was not an essential practice for Muslims. The Court the looked to
the texts and scriptures of the religious community to conclude that the practice claimed to be
essential was not supported by religious tenets.
273. In paragraph-34, reference was made to Durgah Committee's5 case. Paragraph-33 of that
decision was extracted which issued an important caution in following words :
"33. xxxxxxxx in order that the practices in question should be treated as a part of
religion they must be regarded by the said religion as its essential and integral part;
otherwise even purely secular practices which are not an essential or an integral part
of religion are apt to be clothed with a religious form and may make a claim for being
treated as religious practices within the meaning of Article 26. Similarly, even
practices though religious may have sprung from merely superstitious beliefs and
may in that sense be extraneous and unessential accretions to religion itself. Unless

such practices are found to constitute an essential and integral part of a religion their
claim for the protection under Article 26 may have 376 wp_2890.18.j.doc to be
carefully scrutinised; in other words, the protection must be confined to such
religious practices as are an essential and an integral part of it and no other."
274. After extracting paragraph-33 from Durgah Committee's5 case, it was observed in
paragraph-35 thus:
"35. This statement pushed the essential religious practices doctrine in a new
direction. The Court distinguished, for the first time, between 'superstitious beliefs'
and religious practice. Apart from engaging in a judicial enquiry to determine
whether a practice claimed to be essential was in fact grounded in religious
scriptures, beliefs, and tenets, the Court would 'carefully scrutinize' that the practice
claiming constitutional protection does not claim superstition as its base. This was
considered a necessary safeguard to ensure that superstitious beliefs would not be
afforded constitutional protection in the garb of an essential religious practice. The
Court also emphasized that purely secular matters clothed with a religious form do
not enjoy protection as an essential part of religion."
275. In paragraph-38, it was observed that Durgah Committee's5 case and Sardar Syedna's3 case
established the role of the Court in scrutinizing claims of practices essential to 377
wp_2890.18.j.doc religion in order to deny constitutional protection to those practices that were not
strictly based in religion. Ascertaining what was "essential" to a religious denomination "according
to its own tenets" required a scrutiny of its religious texts. Durgah Committee's5 case laid down that
the court would 'carefully scrutinize' claims to deny constitutional protection to those claims which
are religious but spring from superstitious beliefs and are not essential to religion.
276. In paragraphs-51 and 52, reference was made to S. Mahendran Vs. The Secretary, Travancore
Devaswom Board, Thiruvananthpuram52. In paragraph-52, it was observed thus :
"52. The High Court proceeded on the basis of the 'complete autonomy' of the
followers in determining the essentiality of the practice. This followed the dictum in
Shirur Mutt, without taking note of evolution of precedent thereafter, which 52 AIR
1993 Kerala 42 378 wp_2890.18.j.doc strengthened the role of the Court in the
determination and put in place essential safeguards to ensure to every individual, the
constitutional protection afforded by the trinity of dignity, liberty and equality. The
approach of the High Court is incorrect. The High Court relied completely on the
testimonies of the Thanthris without an enquiry into its basis in religious text or
whether the practice claiming constitutional protection fulfilled the other guidelines
laid down by this Court. Such an approach militates against the fundamental role of
the constitutional Court as a guardian of fundamental rights. Merely establishing a
usage will not afford it constitutional protection as an essential religious practice. It
must be proved that the practice is 'essential' to religion and inextricably connected
with its fundamental character. This has not been proved."

(emphasis supplied)
277. In paragraph-109, it was observed that it is well to remind ourselves that the
right to freedom of religion which is comprehended in Articles 25, 26, 27 and 28 is
not a stand alone right. These Articles of the Constitution are an integral element of
the entire chapter on fundamental rights. Constitutional articles which recognise
fundamental rights have to be 379 wp_2890.18.j.doc understood as a seamless web.
Together, they build the edifice of constitutional liberty. Fundamental human
freedoms in Part III are not disjunctive or isolated. They exist together. It is only in
cohesion that they bring a realistic sense to the life of the individual as the focus of
human freedoms.
278. Bearing in mind the principles laid down in the aforesaid decision, let me deal with the issues
raised in this petition.
[1] RIGHT TO FREEDOM OF RELIGION :
(i) The basis for assumption of existence of fundamental right under Article 25 of the
Constitution of India:
(ii) The practices which are essential and integral part of the religion:
These issues are overlapping and, therefore, are discussed together. In support of their case, the
petitioners have relied upon following material :
380 wp_2890.18.j.doc
[i] (pg. 37-41 of the Petition) :: The book "The Religious
Ceremonies and Customs of the Parsees" by Jivanji Jamshedji Modi, 1st Edition 1922, 2nd Edition
1937, Reprint 1986, Reprint 1995. The learned Author has described the place where inner liturgical
ceremonies can be performed, namely, Dar-i-Meher. A fire-temple is, as the word signifies, a temple
or a sacred place for the preservation of the sacred fire. These temples have generally a place or a set
of apartments attached to them where the inner liturgical ceremonies are performed. Though,
strictly speaking, these places or portions attached to the temples for the performance of these
ceremonies form the Dar-i-Meher proper, generally the whole religious building, including the
chamber of the sacred fire, is called the Dar-i-Meher. All the fire-temples need not necessarily have
these Dar-i-Mehers or the apartments for the performance of the inner liturgical services attached to
them.
(a) (pg. 42-73 of the Petition) :: The petitioners have annexed Chapter-IX dealing with (i)
Consecration Ceremonies and (ii) the BUI ceremony.

(b) (pg.46 of the Petition) :: Part-I thereof deals with "Consecration of the Sacred Fires and the
Fire-Temples". It is stated therein that Consecration is "the act or ceremony of separating from a
common to a sacred use, or of devoting and dedicating a person or thing to the service and worship
of God" by certain rites or solemnities.
381 wp_2890.18.j.doc Consecration does not make a person or thing sacred but declares him or it to
be sacred, that is devoted to God or to divine service; as the consecration of priests among the
Israelites; the consecration of the vessels used in the temple; the consecration of a bishop. The
Parsees have no consecration of persons, in the sense in which the word is used among the
Christians, e.g., the consecration of a bishop. If, by consecration is meant conferring of a certain
qualification upon a person to enable him or to entitle him to do a certain religious function or rite,
they have such a consecration. But the principle idea is, that the person seeks consecration by his
own willing acts rather than any other person conferring the consecration. So, in the case of a
person, the more proper word, from a Parsee point of view, is "initiation" than "consecration".
Among things, there is the consecration of the following :
I. The Sacred Fires and the Fire-Temples.
II. The Towers of Silence.
III. The Âlât (implements, apparatus), i.e. religious requisites.
There are three grades of the Sacred Fire-- (A) The Sacred Fire of the Âtash Behrâm, (B) that of the
Âtash Âdarân, and (C) that of the Âtash Dâdgâh. These three have their different rituals of
consecration and also different rituals for the daily prayers at the five time (gahs) of the day, when
they are fed with fresh fuel. The learned Author thereafter deals with the process of consecration of
the Sacred 382 wp_2890.18.j.doc Fire.
(pg.199-200 of the book)
(c) (pg. 47 of the Petition ) :: (A) Consecration of the Sacred Fire of the First Grade, the Âtash
Behrâm ::-
The ritual formulated for the consecration of the sacred fire seems to have been developed from
certain passages of the eighth chapter of the Vendi-dâd (VIII. 73-96), where, it is enjoined, that the
fires used for different purposes and by different tradesmen may be carried from their places of use
and business and enshrined in a Dâd-gâh (Av. Dâityô-gâtu), i.e., in a proper place. The list of fires
enumerated is as follows: Fires used (1) in burning a corpse, (2) in burning filth, (3) in burning dirt,
(4) the fire used by a potter, (5) a glass-blower, (6) a coppersmith, (7) a goldsmith, (8) a silversmith,
(9) an ironsmith, (10) a steelsmith, (11) a baker, (12) a furnace-worker, (13) a tinsmith, (14) a
shepherd, (15) a military man or soldier, (16) a neighbour.
(pg.200 of the book)

(d) (pg. 48 of the Petition) :: Each of the above fires is at first collected, purified, and consecrated in
a certain manner. All these fires, thus collected, purified and consecrated, are united into one fire,
which is then consecrated as one united fire. This consecrated fire is 383 wp_2890.18.j.doc then
enthroned in a Temple which itself is previously consecrated. These processes is under the following
heads :
1. Collection of the 16 fires.
2. Purification of the 16 fires.
3. Consecration of the 16 fires.
4. Unition of the 16 consecrated fires.
5. Consecration of the united Sacred Fire.
6. Consecration of the Temple itself.
7. Enthroning the united fire.
(e) (pg.48 to 61 of the Petition) :: The Author thereafter has described :
1. The process of the collection of the 16 fires.
2. The process of purification.
3. The process of consecrating the 16 fires.
4. The final unition of all the 16 fires.
5. The final consecration of the United Fire.
6. The Consecration of the chamber of the Fire (the Sanctum Sanctorum).
7. The Final Enthronement.
384 wp_2890.18.j.doc

(f) (pg.63-64 of the Petition) :: The Author describes the signification of the purifying
and consecrating processes of the Sacred Fire as also the ceremony of removing the
ash of the Sacred Fire for the ritual of Purification. The Author thereafter describes
the Bui ceremony, i.e., the ceremony of keeping the fire always burning, by feeding it
with fragrant wood. The word "bui" is the Persian form of the Avesta word "baodha".
It is "bui" in Pahlavi. Ordinarly, this word means "odour" or "smell". In the Parsee
ceremonial phraseology, it means perfume, or good odour. Fire plays a prominent
part in all Zoroastrian rituals. No ritual can be complete without the presence of fire.
So, sandalwood, frankincense, and such other articles of fuel that emit good odour on
burning are necessary requisites in all ceremonies.
In the temples, where the Sacred Fire is kept perpetually burning, the feeding of the fire is an
important ceremony. It is called "bûi dâdan" in Persian, and "bui devi" (i.e. to give the perfume) in
Gujarati.
(g) (pg.66-67 of the Petition) :: The Author has described the ceremony varying for the three grades
of the sacred fire and the five period for the performance of the ceremony.
385 wp_2890.18.j.doc
(h) (pg.67-68 of the Petition) :: The Author has described the
difference in the way of feeding the fire according to its grades.
(i) (pg. 490 to 491 of the Petition) :: Most of the Karshas are of a temporary kind, but in the
Fire-temples, they are of a permanent kind. In the Yazashnagah, where the Yacna, Vendidad, and
Baj ceremonies are performed, such karshas are necessary. So, there, they are of a permanent kind.
There, the stone slabs, which form the pavement, have furrows, about two inches deep and two

inches wide, cut in the stones. In the chamber of the Sacred Fire also, there are such permanent
furrows cut in the stones of the pavement. These furrows are of the first kine, i.e., they are intended
to preserve the efficacy of the consecrated fire or articles and of the sacred ceremonies within them.
A karsha of this kind is generally known as a 'pavi'. Pav means sacred. So a Pavi means a furrow
which preserves the sacredness of the consecrated things or of the sacred ceremonies. When the
efficacy of the consecrated things is encroached upon by somebody else going within the circle of
within the limit pointed out by the pavi, then the thing is said to be avadu, (apav) i.e. desecrated. In
the phraseology of the ritual, the words "pavi karvi" are at times 386 wp_2890.18.j.doc used to
signify the preparations of temporary furrows or the performances of religious ceremonies.
(pg. 109-110 of the book) [ii] (pg. 99 to 104 of the petition) : Book "Zoroastrianism Ancient and
Modern", written and published in the year 1917 by Ervad Phiroze S. Masani, Vakil, High Court,
Late Fellow, Elphinstone College and Mulla Feeroze Avesta and Pahlavi Madressa.
(a) The learned Author has highlighted the part played by living water in ceremonies. The learned
Author has discussed 'Jashan Ceremony' and explained how it benefits the living for whom it is
performed. 'Khastra' or magnetic and electric forces and currents play an important part in all
Zoroastrian rituals. Even modern science admits that invisible subtle magnetic forces emanate from
every mineral, vegetable, and animal and human creation, and it is on account of this reason that
only certain kinds of things having best and pure magnetic currents are taken in the rituals. Water of
springs or wells, etc., taken in the Jashan ceremony are employed so as to receive best
magno-electric currents issuing from them. Water has those five hydro-electrical magnetic forces
(Adu-fradho, Vanthwo fradho, Gaetho-fradho, Khshaeto-fradho, Danghu-fradho) so often
remembered in the Aban Yasht, and all these Fradho or hydro-electric forces have the best natural
efficiency, if the water is natural i.e. 387 wp_2890.18.j.doc derived from running streams. That is
why only pure water of wells or springs is strictly recommended for use in all Zoroastrian rituals,
and the pure running water of wells or springs which is exposed to the visible and dark rays of the
sun all the day has its Fradho naturally in a very high order of efficiency and activity.
(pg 129 of book)
(b) (pg. 517-518 of the Petition) The learned Author referred to Bareshnoom or nine days ceremony
for the purification of the aura or personal magnetism of oneself. These ceremonies meant for the
dead e.g., the three days' Srosh ceremony for giving the departed soul into the charge of the angel
Srosh, on the dawn of the Fourth Day; the Pad-roj or the ceremony performed during the last hour
of the Third Night of a soul's sojourn here in this world after death, the hour when the soul has his
full consciousness awakened as to the Pad- dehashn or reward for its goodness and Pad-fras or
punishment for its vice, from which two words we have the 'Pad-dehashn-Pad-fras-roj' i.e. the Day
of Judgment or Dooms-day or Pad-roj; the Afringan or periodic blessing ceremony for helping the
dead on to their progress in the unseen world; the Yzashne and the Vendidad, and the Nirangdin
and the Hama-yasht, which are special ceremonies far more efficient than others lasting for several
days or months together for the help of the dear departed ones, etc., etc. - all these rituals and
ceremonies and liturgies are all but spirito-scientific processes producing grand, practical results in

the unseen world, and are based 388 wp_2890.18.j.doc on an entirely scientific understanding of
the subtle and unseen laws of nature. Some of such grand fundamental laws of nature taught by
Zoroaster in the Avesta are -
1. Zravan, - the laws of Eternal First motion or Energy prevading every force and
object, visible or unseen, thus creating the Idea of Time thereby;
2. Uru, - the law of ever widening and ever proceeding, the never-ceasing evolution,
or Unfoldment or Spiritual Progress towards the Goal of "One Far-off Divine Event to
which the whole creation moves"; - that inherent tendency to advance or go onward
which is the essential characteristic of "Urvan" the soul;
3. Staota, - the law of vibrations or subtle colours produced by Vibrations of Motion

and Sound, which is at the root of all creation;
4. Khastra, - the law of the Thermo-Electro-Magnetic Forces and currents working

throughout the visible and unseen realms, in indefinitely various forms of electricity
or magnetism;
5. Kharenangh, --- the law of Halo or Emanation of Subtle Magnetic Aura pertaining
to all the Kingdoms - human, animal, vegetable and mineral;
389 wp_2890.18.j.doc
6. Barej, --- the law of Thermal Energy of Fires of different rates of intensity;
7. Manthra, --- the law of the efficacy of the Mystic Words of Charms composed by
the Prophet in unison or attunement with the Original Universal Musical Note - the
creative Word - Ahuna Var - the law whereby the Urvan or soul can be en rapport
with the Music celestial;
8. Mithra, - the law of Thought-Energy or Thought Power, its transmission and its
effect on persons and things by creating unseen forms in the subtlest states of ultra-
physical matter;
9. Paitioget, - the law of Retributive Compensation and Universal Adjustment and

Obligation with reference to every visible and invisible object and force in the
Universe, thus implying the Law of Divine Dispensation of Justice and Equality;
10. Asha, - the law of order, Administration and Holiness Divine, implying the
Highest degree of Purity, - physical, mental, moral and spiritual.
(pg. 126-127 of book) [iii] (pg.413 to of the petition) : Affidavit-in-rejoinder dated 390
wp_2890.18.j.doc 11.7.2018 of petitioner No.1 Jamshed to the affidavit-in-reply dated 26.6.2018 of

respondent No.4.
(a) Paragraphs-23 and 24 of this affidavit refers to the Article "The Divine and Exalted Status of
Consecrated Fire in Zoroastrianism' by Vada Dasturji Kotwal.
(pg. 456 of the Petition) :: The learned Author has stated that according to the Zoroastrian view of
the world, fire is seen as the originating source of the sky (ether), water, the earth, men and animals.
xxxxx xxxxx xxxxxx xxxxx xxxxxx The followers of Zarathushtra view fire as a sacred creation to be
worshipped, propitiated and venerated. The sacred fires found in fire temples are installed with
great solemnity after arduous consecration rituals which are done to ensure the purity of the sacred
fire.
(b) (pg. 462 of the Petition) :: Having arrived in India the Iranian migrants knew well that without
the existence of an Atash Bahram in India, the devotional life of the Zoroastrians could not be
maintained over a long period of time.
(pg. 171 of the book)
(c) (pg. 463 of the Petition) :: With the enthronement of the sacred Atash Bahram Fire, the Divine
Glory of the thee spiritual fires, viz., 391 wp_2890.18.j.doc Adur Farrobag, Adur Gusnasp and Adur
Burzenmihr, descends to dwell in the Atash Bahram.
(pg. 172 of the book) [iv] (pg.465 of the Petition) :: Book "Outlines of Parsi History" by Hormazdyar
Dastur Kayoji Mirza.
(a) (pg. 428-429 of the Petition) :: Dr. Hormazdyar Dastur Kayoji Mirza was ordained High Priest of
Iranshah Atash Behram. He is the 15th generation of the Sanjana Iranshah lineage of Dasturs from
the famous Dastur Bahman Dastur Kaikobad. The book brings out the fundamental place of fire and
the Atash Behram for Zoroastrians. The book inter alia gives a historic perspective where, the Parsis
who had migrated from Persia requested the Hindu king, known in Parsi tradition as Jadi Rana
(perhaps a corrupt form of 'Yadav Rana' - most probably a local ruler, to allot a separate piece of
land where the Parsis could install their holy fire. Request was also made to Kisse Sanjan where a
request for separate piece of land to install sacred fire was made. The Author has observed that, "All
Zoroastrian Fire- temples and the places of worship are ritually purified and consecrated places.
(b) (pg. 472-473 of the Petition) :: The Author referred to the original scriptures relating to the
connection between the fire and "Armaiti" (Mother Earth) (pg. 392-393 of the book) 392
wp_2890.18.j.doc
(c) (pg. 474 of the Petition) :: The concept of the Fire in the form of molten metal or shining metal
being a divine judge is underlying the later belief that at the renovation all souls will be made to pass
through a stream of molten metal. The souls of the holy would not thereby experience any pain, but

those of the wicked shall have to bear afflictions and punishment of the ordeal.
(d) (pg. 476 of the Petition) :: The Author has referred to the Kusti which is made of 72 filaments of
wool, woven into a belt. It passes round the waist thrice - with four knots, two in the front and two at
the back. The kusti is 'boundary'; and it is the boundary of keeping ourself within the boundary of
religious duty. The circles represent three kasa, 'boundary lines' around the body.
(e) (pg. 476 of the Petition) :: Sadro - a protection against evil vices and evil forces. The Sadro and
Kusti form a magnetic circuit around physical body, which if properly kept, protects one from evil
forces, and leads one on the path of piety and duty.
(f) (pg. 477 of the Petition) :: All Zoroastrian Fire-temples and the places of worship are ritually
purified and consecrated places, and hence they are meant only for the Zoroastrians. Even the 393
wp_2890.18.j.doc Zoroastrians - both males and females, priests and laymen - have to observe
certain rules of ritual purification, particularly when a Zoroastrian wishes to enter a Fire-temple or
to attend a ceremony. Before entering a Fire temple, a Zoroastrian must have taken bath, must have
put on proper dress, and must have performed the Kusti ceremony.
(g) (pg.477 of the Petition) :: The zoroastrian fire-temples and places of worship are specially built
with various boundary lines, known in the Avesta as karsha 'a furrow, a channel' Phl. kash. Kish.
These boundary lines are furrows or channels, drawn on the ground or constructed on the floor,
which mark and enclose ritually purified and sanctified place for consecrated Holy Fire or for
ritually purified ceremonial utensils, and for performing the ceremonies of high order. These
furrows are also known in Parsi Gujarati as pavi (boundary lines) for ritually pure things (pav, Skt.
Pavaka) also the boundary lines enclosing the sanctified place for ritually pure ceremonial utensils'.
(h) (pg. 478 of the Petition) :: The consecrated Holy Fire is kept in a sanctum, which is a specially
constructed chamber, bounded by walls, and set apart by the boundary lines. Only the priests having
physical, mental, spiritual, moral, and academic qualifications are 394 wp_2890.18.j.doc authorized
to enter the sanctum. But even a priest thus authorized must possess additional special ritual
qualifications at the time of entering the sanctum: (1) he must have undergone Barshnum ceremony,
(2) he must be observing the rules of purificatory rites, (3) he must have put on proper dress
including Av. Paitidana 'a mouthveil', later padam, and (4) he must have offered daily prayers and
performed dedicatory rites. These rules are observed to preserve ritual purity in accordance with the

principles of Asha, Khvarnah and Yaozda.
(pg. 413 of the book) [v] (pg.435-436 of the Petition) :: The High Priests have in their affidavit stated
that "It is believed that there is a constant requirement for the holy fire to be connected with Mother
Earth. The connection has to be an uninterrupted connection with the core and the centre of the
earth from which the vibrations and waves emanate". The High Priests have further stated that
"During the process of consecration and enthronement, the holy fire is linked spiritually, to the
earth, from which it draws sustenance." The High Priests in their affidavits have stated that
according to religious injunctions, long standing customs and traditions, one can never perform the
inner liturgical ceremonies (Pav Mahal ceremonies) on an elevated place (e.g. on the upper floor of a
house or building). These ceremonies are to be necessarily performed on the ground floor, that too
with absolute uninterrupted connection to the Mother Earth. The idea is that there should be no 395
wp_2890.18.j.doc dynamic motion or movement beneath the precincts of the Atash Behram.
Therefore, if a tunnel were to be made beneath the Atash Behram, it would be considered to be on
an elevated level, and its paivand or connection will be irretrievably lost. [vi] (pg. 483 to 488 of the
Petition) :: Article "Select Ritual Aspects of the Gathas and their Continuity in the Later Tradition"
by Vada Dastur Firoze M. Kotwal.
(a) (pg. 484 of the Petition) :: The learned Author has observed that "The reverence for fire is central
to the faith. Fire is not a mere symbol as some people suggest, but, I affirm that it is recognized to be
strongly allied to the Truth and therefore, to Ahura Mazda. xxxxx xxxxx xxxxx xxxxx xxxxx The
sacred fire is an important vehicle of religious experience for the modern Zoroastrian, as well.
(b) (pg. 488 of the Petition) :: Kusti ritual is performed to bring about a fulfillment of that which is
"most furthering". In other words, everytime the kusti ritual is performed by a Zoroastrian, there is
an unswerving commitment to promote the Will of Ahura Mazda.
(pg.136 of the book) [vii] (pg. 492-496 of the petition) Article "Khordeh Avesta" (page-
492) translated into English with Copious Explanatory Notes. In this, the significance of kash has
been discussed. (The Creator Ahura Mazda speaks) : I accept (the man who) draws three 'Kash' (or
396 wp_2890.18.j.doc furrows) as the righteous man; I accept (the man who) draws six furrows as
the righteous man : I accept (the man who) draws nine furrows as "the perfectly righteous man.
Explanation :- In this paragraph there occurs a subject regarding the drawing of 'Kash' (the
furrows). One should understand that he should not remain at ease after drawing the furrows only,
but after this, certain ceremonies are enjoined to be performed, the details of which are not given
here i.e. the act of operating the ceremony by drawing these furrows. Prior to performing the "Pav
Mehel" ceremonies of the Zoroastrian Religion, a 'Kash' or a circle is drawn round the place where
that ceremony is performed; its significance is that during the performance of the ceremony no
pollution, impurity or filth can exercise its evil influence over the place.

(pg. 207-208 of the book) [viii] (pg.497-500 of the Petition) Affidavit dated 11.7.2018 made by
Ervad Dr. Parvez Minocher Bajan, a student and scholar of Zoroastrianism. He has been confirmed
a doctorate by the University of Bombay in Avesta Pahlavi, the language in which religious
scriptures of Parsi Zoroastrians are written. His thesis concerning the spiritual significance of tying
the kusti (Yagnopavit Janoi) which is the sacred thread tied by every Zoroastrian around his waist
with the intent of creating a protective circuit around it. (pg.503 to 508 of the Petition) :: Along with
the affidavit, article 397 wp_2890.18.j.doc dated 27.2.1955 from "Parsi Avaz" was annexed. Said
Article refers to (1) sanctified land of Atash Behram, (2) divine edifice and precinct of Atash Behram,
(3) sacred Kash of Atash Behram. The conclusions drawn are that Atash Behram Saheb is a living,
throbbing entity that dutifully performs the tasks that have been entrusted upon Him by His Divine
Father.
[ix] (pg.512-514 of the Petition) :: Writings about the Zoroastrian Religion and Ceremonies (A
collection of Articles written by Vada Dasturji Feroze M. Kotwal written at different times published
in the form of a book)- 1994 - Mumbai, which states that if any movement takes place below Karshas
then it vitiates the religious observations. The Author also stated that in case beneath the flooring of
the upper floors, the invisible spiritual connection ('paywand') with Spenta Armaiti, the divinity
presiding over the earth cannot be maintained.
279. The petitioners contend that
(a) There are three grades of sacred fires: (i) the sacred fire of Atash Behram, which is of the highest
grade; (ii) the sacred fire of the Atash Adaran; and (iii) the sacred fire of Atash Dadgah. The
concerned Atash Behrams house all three forms of fire. (see page-6, para-7)
(b) The entire structure of the two Atash Behram which house the 398 wp_2890.18.j.doc sacred fire
is a composite whole and is consecrated. (see page-6, para-9)
(c) The sacred precinct of Atash Behram is divided into three main parts. Innermost part is the
sanctum sanctorum. Second part is the inner and outer sanctorum where prayers are offered. Third
part extends till the compound wall. (see page-507)
(d) Additionally, the Karshas also indicate a protective consecrated area not only around the sacred
fire, but also around the entire premises of two Atash Behrams. (see page-8, para-11)
(e) It is a belief of the community that there is a constant requirement for the sacred fire of the Atash
Behrams to be connected with mother earth. (see page-6, para-9)
(f) An electromagnetic or geomagnetic field is generated in the core of the earth and is connected
with the sacred fire in the Atash through waves and vibrations. If a tunnel is dug or Metro 3 is
forces will attack holy fire, thus diminishing its spiritual powers. (see pages-8 & 9, 399
wp_2890.18.j.doc paras-12 & 13).

280. The petitioners further contend that as per the religious injunctions, long standing customs
and traditions of the Community, religious services are to be performed on the ground floor with
uninterrupted connection to the mother Earth. If a tunnel is constructed beneath the structures, the
sanctum sanctorum would be considered on an elevated level and the connection would be deemed
to be lost. The fire is surrounded by spiritual circuits which act as protective barriers. The moment
the Metro Tunnel encroaches underneath the premises, the spiritual circuits will be breached. If the
tunnel is allowed to be constructed underneath the structure, it would lead to complete desecration
of the Atash Behrams in turn leading to a spiritual disaster for the entire community. The sacred
precinct of Atash Behram is divided into three main parts. Innermost part is the sanctum
sanctorum. Second part is the inner and outer sanctorum where prayers are offered. Third part
extends till the 400 wp_2890.18.j.doc compound wall.
281. The land of Atash Behram is demarcated from surrounding environment by karsha. Said karsha
cannot be drawn on hollow surfaces because if any movement were to take place below the karsha,
then it would vitiate the religious performance and sanctity of ceremony. Karshas surround the fire
and act as protective barrier. The place where the Atash Behram is consecrated, isolated and
ritualistically purified and same cannot be interrupted or violated by passing of tunnel underneath
the structures.
282. I have carefully perused the entire material on record. After perusing the material on record, I
do not find that the petitioners have adduced cogent evidence in the form of any scriptural or textual
evidence to substantiate their contentions. The materials produced by the petitioners do not
substantiate the petitioners claim that :
401 wp_2890.18.j.doc
(a) the entire structure of the two Atash Behrams which house the
sacred fire is a composite whole and is consecrated. The sacred precinct of Atash Behram is divided
into three main parts. Innermost part is the sanctum sanctorum. Second part is the inner and outer
sanctorum where prayers are offered. Third part extends till the compound wall. In the Book
"Outlines of Parsi History" by Hormazdyar Dastur Kayoji Mirza published in the year 1974, it is
stated at page-412 (page-477 of the petition) that "...........All Zoroastrian fire-temples and the places
of worship are ritually purified and consecrated places and hence they are meant only for the
Zoroastrians. ........" However this is not supported by any material in the form of scriptures,
religious texts etc. At the highest that is the opinion of the learned Author. Even if for the sake of
argument we accept that the petitioners have established that all fire temples are consecrated places,
still they have not established that the entire structure of two Atash Behrams, which house the
sacred fire is a composite whole. It is undisputed position that the uptunnel does not pass beneath
the sanctum sanctorum of both the Atash Behrams. The petitioners have not established that if
uptunnel passes beneath the boundary of Atash Behrams 60 ft. to 65 ft. deep below the ground, it
will descecrate / defile the Atash Behrams. The petitioners and the persons belonging to Zoroastrian
religion can perform the ceremonies and rituals in the two Atash Behrams without any 402
wp_2890.18.j.doc obstruction, hindrance and interference notwithstanding passing of uptunnel
beneath the boundary of Atash Behrams 60 ft. to 65 ft. deep below the ground. The persons

belonging to the Zoroastrian religion can freely profess, practice and propagate their religion as
provided under Article 25 of the Constitution of India.
(emphasis supplied)
(b) the Karshas indicate a protective consecrated area not only around the sacred fire, but also
around the entire premises of two Atash Behrams. The land of Atash Behram is demarcated from
surrounding environment by karsha. A Karsha is a demarcation drawn on the physical ground in
order to alienate a piece of land from its immediate surroundings and wherever such Karsha are
drawn on physical ground, it created an invisible wall of self- protection for the objects enclosed
within the karsha. There are nine Karshas drawn that provide the invisible talismanic vigil within
the precincts of Atash Behram. Outermost Karsha provide the invisible vigil within the precincts of
Atash Behram. The significance of karshas or spiritual circuits which surround the fire and they act
as protective barrier. Hence, the place where the Atash Behram is consecrated, is isolated and
ritualistically purified and therefore cannot be interrupted or violated by passing of tunnel
underneath the structures. The affidavits of priests, High Priests and Articles written by the scholars
do not 403 wp_2890.18.j.doc state anywhere that these karshas extend below the surface of the
earth to the centre of the earth. The karsha would be breached if any construction activity is carried
out underneath the structure. In fact it is material to note that the tunnel is being constructed within
the basalt rock layer at the depth of 60 to 65 ft. below the surface.
(c) an electromagnetic or geomagnetic field is generated in the core of the earth and is connected
with the sacred fire in the Atash through waves and vibrations. If a tunnel is dug or MML-3 is
forces will attack holy fire, thus diminishing its spiritual powers. As per the religious injunctions,
long standing customs and traditions of the Community, religious services are to be performed on
the ground floor with uninterrupted connection to the mother Earth. If a tunnel is constructed
beneath the structures, the sanctum sanctorum would be considered on an elevated level and the
connection would be deemed to be lost. The fire is surrounded by spiritual circuits which act as
protective barriers. The moment the Metro Tunnel encroaches underneath the premises, the
spiritual circuits will be breached.
(d) if the tunnel is allowed to be constructed underneath the structure, it would lead to complete
desecration and defilement of the Atash Behrams in turn leading to a spiritual disaster for the 404
wp_2890.18.j.doc entire community.
283. In my opinion, it is mere belief of the community that there is a constant requirement for the
sacred fire of Atash Behrams to be connected with mother Earth and that the fire is surrounded by
spiritual circuits which act as protective barriers. The moment the Metro Tunnel encroaches
underneath the premises, the spiritual circuits will be breached.
284. I, therefore, conclude that the petitioners have utterly failed to establish basis for assumption
of existence of fundamental right under Article 25 of the Constitution of India.

285. Whether the petitioners have established that :-
(i) the entire Atash Behram is a composite whole and include within its definition, the
entire premises of the Atash Behram;
405 wp_2890.18.j.doc
(ii) if the tunnel is constructed beneath the structure the

sanctum sanctorum could be considered on an
elevated level and the connection would be deemed to be lost.
(iii) the fire is surrounded by spiritual circuits which act as protective barriers and the
moment the Metro Tunnel encroaches underneath the premises, the spiritual circuits
will be breached.
(iv) if the tunnel is allowed to be constructed underneath the structure, it would lead
to complete desecration of the Atash Behrams in turn leading to a spiritual disaster
for the entire community.
(v) any construction underneath the Atash Behrams would disrupt the uninterrupted
connection of the sacred fire and the structure with the Earth, and would breach the
karshas surrounding the structures causing desecration and defilement of the Atash
Behram.
(vi) Karshas could not be drawn on hollow surfaces of the earth and that such
Karshas would be breached if any construction activity is carried out underneath the
structure, are an essential and integral part of the Zoroastrian religion.
406 wp_2890.18.j.doc
286. In the decision of Sabarimala44, the Apex Court has held that essential part of a
religion means the core beliefs upon which a religion is founded. Essential practice
means those practices that are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices the superstructure of religion is built.
Without which, a religion will be no religion. Test to determine whether a part or
practice is essential to the religion is - to find out whether the nature of religion will
be changed without that part or practice. If the taking away of that part or practice
could result in a fundamental change in the character of that religion or in its belief,
then such part could be treated as an essential or integral part. There cannot be
additions or subtractions to such part.
Because it is the very essence of that religion and alterations will change its fundamental character.
It is such permanent essential parts is what is protected by the Constitution. Nobody can say 407
wp_2890.18.j.doc that essential part or practice of one's religion has changed from a particular date

or by an event. Such alterable parts or practices are definitely not the 'core' of religion where the
belief is based and religion is founded upon. It could only be treated as mere embellishments to the
nonessential part or practices.
287. The Apex Court referred to the decision of Durgah Committee's5 case, where Apex Court has
distinguished for the first time, between 'superstitious beliefs' and 'religious practice'. It was held
that apart from engaging in a judicial enquiry to determine whether a practice claimed to be
essential was in fact grounded in religious scriptures, beliefs, and tenets, the Court would 'carefully
scrutinize' that the practice claiming constitutional protection does not claim superstition as its
base. This was considered a necessary safeguard to ensure that superstitious beliefs would not be
afforded constitutional 408 wp_2890.18.j.doc protection in the garb of an essential religious
practice.
288. In Sabarimala's44 case it was also held that although what constitutes essential religious
practice must be decided with reference to what the religious community itself says, yet, the ultimate
constitutional arbiter of what constitutes essential religious practice must be the Court, which is a
matter of constitutional necessity.
289. In paragraph-32 of the concurring judgment by Dr. D.Y. Chandrachud, J. in Sabarimala's44

case, it was held that while the Court would take into consideration the views of a religious
community in determining whether a practice qualified as essential, this would not be
determinative.
290. In paragraph-120 of the judgment by Deepak Misra, C.J.I. and A.M. Khanwilkar, J., reference
was made to N. Adithayan's23 case. In that case, it was held that as to what really constitutes an
essential part of religion or religious 409 wp_2890.18.j.doc practice has to be decided by the Courts
with reference to the doctrine of a particular religion or practices regarded as parts of religion.
291. In paragraph-121 of that decision, reference was made to the decision of Second Anand Marg's9
case, where it was held that what constitutes an essential or integral part of religion has to be
determined with reference to its doctrines, practices, tenets, historical background etc. of the given
religion. (See the decisions in Srirur Mutt's1 case, Sardar Syedna's3 case and Seshammal's6 case).
292. In paragraph-21.6 of the concurring judgment of R.F. Nariman, J. in Sabarimala's44 case, it

was held that it is only the essential part of religion, as distinguished from secular activities, that is
the subject matter of the fundamental right. Superstitious beliefs which are extraneous, unnecessary
accretions to religion cannot be considered as essential parts of 410 wp_2890.18.j.doc religion.
Matters that are essential to religious faith and/or belief are to be judged on evidence before a court
of law by what the community professing the religion itself has to say as to the essentiality of such
belief. One test that has been evolved would be to remove the particular belief stated to be an
essential belief from the religion - would the religion remain the same or would it be altered.
293. Applying the tests laid down in Sabarimala's44 case, I do not find that the petitioners have
established that items No.(i) to (vi), as enumerated hereinabove, are essential and integral part of

the Zoroastrian religion. I find merit in the submission of Mr. Aney that it is belief of the Parsee
community that there is a constant requirement for the sacred fire of the Atash Behrams to be
connected with mother earth and that an electromagnetic or geomagnetic field is generated in the
core of the earth and is connected with the sacred fire in the Atash through waves and vibrations. If
a tunnel is dug or MML-3 is 411 wp_2890.18.j.doc operated under the premises of Atash Behrams,
the spiritual circuits will be breached and negative forces will attack holy fire, thus diminishing its
spiritual powers. These beliefs have nothing to do with the Zoroastrian religion or faith. The
petitioners have failed to establish that these beliefs are integral to Zoroastrianism. Mere faith or
belief of the Parsi community would not render these beliefs for protection under Article 25 of the
Constitution of India. Except in the form of affidavits of High Priests, Priests of Parsi community,
the petitioners have not adduced any evidence in the form of scriptures, religious texts etc. in
support of their belief. It is the belief of the petitioners that karshas extend beneath the earth's
surface to the centre of the earth. The material produced by the petitioners, however, no where state
that these karshas extend underneath the structure or that such karshas would be breached if any
construction activity is carried out underneath the structure. The opinions expressed by the High
Priests cannot be considered as an 412 wp_2890.18.j.doc essential religious practice as it does not
derive its basis from any religious texts or scriptures. No reference is made to any such text or
scripture. It is belief of the petitioners that the fire connected to the centre of the earth and such
connection will be breached if any construction work is carried out under the Atash Behrams. The
petitioners have failed to adduce any evidence in the form of any religious texts or scriptures to
demonstrate this fact.
294. Mr. Seervai submitted that the Articles written by the scholars and the affidavits of the High
Priests and Priests relied by the petitioners clearly establish that what is stated in the Petition is not
mere ipse dexit of the petitioners. There is unanimity among the High Priests, Priests, old and new
Articles written by the scholars. Since the High Priests have made affidavits substantiating the case
of the petitioners, the Court has to accept the case of the petitioners that what is stated therein is an
essential and integral part of Zoroastrian religion.
413 wp_2890.18.j.doc He heavily relied upon paragraph-31 of the concurring judgment of R.F.
Nariman, J. in Sabarimala's44 case.
295. I do not find any merit in this submission for more than one reason. In the first place, factually
it is incorrect to say that there is unanimity among the High Priests. In paragraph- 20 of the
affidavit dated 26.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil), the affiant has made
reference to Article reported in English Newspaper "The Guardian" titled "Dark forces will be
unleashed: the fire temple v. the Mumbai metro" dated 14th December, 2017, which quotes High
Priest of the Wadia Atash Behram, respected Vada Dasturji Firoz M. Kotwal saying that "Neither
Zoroastrianism nor its rituals are in any danger from the metro tunnel". The Article further quotes
the High Priest in the following manner :
"The MMRC team convinced us with concrete proof that there was no danger at all to
the fire temple, and the chief minister gave us a personal assurance of safety. So the
hue 414 wp_2890.18.j.doc and cry is baseless. Kotwal says. "Neither Zoroastrianism

nor its rituals are in any danger from the metro tunnel."
"Kotwal also says that the "mystic circuits" cited in the petition are not a part of the
ancient texts of Zoroastrianism in its 6th Century incarnation, but were introduced
by the 19th Century Kshnum cult..."
Again the Article quoted disagreement expressed by the respected Vada Dasturji Khurshed Dastur,
the High Priest of the Iranshah Atash Behram, Udvada, Gujarat as under :
"The high priest of Zoroastrianism's holiest shrine (at Udvada in neighbouring

Gujarat) and the community's representative in the secular National Commission for
Minorities is similarly concerned that the petition is fear run amok. "It is the work of
a minuscule group with nothing better to do," says Dastur Khurshed Dastur. "How to
deal with eccentric people with closed minds out to whip up a fear psychosis?"
296. It is interesting to note that Dr. Firoze M. Kotwal has made affidavit dated 28.5.2018. (pages
159-161). In paragraph-3 of this affidavit he stated that he had attended a meeting in or around
9.11.2017 with the Government outlining his concerns 415 wp_2890.18.j.doc with respect to the
proposed MML-3 tunnel being bored under the H.B. Wadiaji Atash Behram and Zarthosti Anjuman
Atash Behram. He stated further thus :
"In the said meeting, I was made to understand that the metro tunnel would simply
touch the periphery of the Atash Behrams. Infact, I now understand that the
proposed metro tunnel would pass right under the aforesaid two Atash Behrams
which is not permissible as per the Zoroastrian religious beliefs. I say that as a result I
am opposed to the metro tunnel passing under the Atash Behrams."
[Emphasis supplied]
297. It is, however, material to note that though the affidavit is made on 28.5.2018,
the affiant has not made reference to the Article reported in English Newspaper "The
Guardian"
titled "Dark forces will be unleashed: the fire temple v. the Mumbai metro" dated 14.12.2017. Said
Article infact quoted what Dr. Firoz M. Kotwal had stated about MML-3. It is further interesting to
note that no rejoinder is filed by Dr. Firoz M. Kotwal contradicting what is stated in paragraph-20 of
the 416 wp_2890.18.j.doc affidavit-in-reply dated 26.6.2018 made by Shantaram Ganpat Dalvi,
DGM (Civil) of respondent No.4. Respected Vada Dasturji Khurshed Dastur, the High Priest of the
Iranshah Atash Behram, Udvada, Gujarat has also expressed his disagreement and had quoted that
the petition is fear run amok and it is the work of a minuscule group with nothing better to do. How
to deal with eccentric people with closed minds out to whip up a fear psychosis ?. The petitioners
have not filed affidavit of respected Vada Dasturji Khurshed Dastur. Thus, at least two High Priests
have expressed their disagreement with what the petitioners have contended in the present petition.
Secondly, in the Article dated 14.12.2017 respected Vada Dasturji Dr. Firoz M. Kotwal stated that the

"mystic circuits" cited in the petition are not a part of the ancient texts of Zoroastrianism in its 6 th
Century incarnation, but were introduced by the 19 th Century Kshnum cult.. In paragraph-121 of
judgment of Dipak Misra, C.J.I. and A.M. Khanwilkar, J. in Sabarimala's case it is observed that 417
wp_2890.18.j.doc there cannot be additions or subtractions to essential and integral part. Alterable
parts or practices are definitely not the "core" of religion where the belief is based and religion is
founded upon. It could only be treated as mere embellishment to the nonessential part or
practices. It is permanent essential parts that is protected by the Constitution. Thirdly, the
petitioners have not instituted the present petition in a representative capacity by following the
procedure laid down under Order I Rule 8 of C.P.C. If the petitioners were to institute Petition in a
representative capacity, perhaps the Court would have had benefit of large response of the Parsi
Community from all over India. It is, therefore, not possible to accept the contentions of the
petitioners that there is unanimity among the High Priests, Priests as also scholars who have written
Articles.
298. In view thereof, I conclude that the petitioners have failed to establish that items (i) to (vi),
noted as above, are integral and essential part of the Zoroastrian religion.
418 wp_2890.18.j.doc
(iii) Balancing the fundamental rights of the petitioners under Article 25 vis-a-vis other rights in
Part-III of the Constitution of India :
299. Article 25(1) reads thus :
"25. Freedom of conscience and free profession, practice and propagation of religion.--
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practise and propagate
religion."
(Emphasis supplied)
300. A perusal of Article 25(1), extracted hereinabove, shows that said right is subject to public
order, morality and health and to the other provisions of this Part. Part III consists of Fundamental
Rights under Articles 14 to 32. The Chapter on Fundamental Rights encompasses the rights to (i)
Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii) Freedom of Religion (Articles 25 to
28); (iv) Cultural and educational rights (Articles 29 and 30); and (v) Constitutional remedies
(Article 32).
419 wp_2890.18.j.doc
(Emphasis supplied)

301. In paragraph-13 of the concurring judgment, Dr. D.Y. Chandrachud, J. in Sabarimala's44 case,
referred to the expression "subject to" appearing in Article 25(1) and has observed thus:
"13. The expression "subject to" is in the nature of a condition or proviso. Making a provision subject
to another may indicate that the former is controlled by or is subordinate to the other. In making
clause 1 of Article 25 subject to the other provisions of Part III without introducing a similar
limitation in Article 26, the Constitution should not readily be assumed to have intended the same
result.
Evidently the individual right under Article 25(1) is not only subject to public order, morality and
health, but it is also subordinate to the other freedoms that are guaranteed by Part III. xxxxxxxx
xxxxxxx xxxxxxxx"
(emphasis supplied)
302. Thus Article 25 will have to be read subject to other provisions of Part III of the Constitution.
In order to interpret Article 25 on one hand and other fundamental rights in Part-III on the other, it
would be necessary to interpret these provisions 420 wp_2890.18.j.doc harmoniously keeping in
mind that all rights under the Constitution have to be given their proper meaning and function. The
harmonious construction of these provisions would indicate that any demand of the petitioners for
enforcement of their fundamental rights under Article 25 must be balanced against the rights of the
citizens at large. The citizens have access to the benefits and conveniences of the city, as also to live a
life of dignity, work in comfortable environment, and partake in the wealth of the city. The State is
under constitutional obligation to ensure that the citizen is not deprived of these benefits and
conveniences. Any right of the petitioners to practice of their religion cannot be to the negation of
the fundamental rights of the citizens. I accordingly hold that the fundamental rights claimed by the
petitioners under Article 25 of the Constitution of India is subservient to other fundamental rights in
Part-III of the Constitution of India.
421 wp_2890.18.j.doc
[2] STRUCTURAL SAFETY AND INTEGRITY OF TWO

ATASH BEHRAMS IN QUESTION;
(i) Likelihood of damage to the existing structure :
303. Before I deal with this issue, it is necessary to refer to the provisions of the Metro Railways
(Operation and Maintenance) Act, 2002 (for short 'Metro Act'). Chapter V deals with "opening of
metro railway". Section 14 thereof lays down that the metro railway in the National Capital Region,
metropolitan city and metropolitan area shall not be opened for the public carriage of passengers
except with the previous sanction of the Central Government. The expression 'metropolitan area' is
defined in Section 2(h) and lays down that it shall have the meaning assigned in Clause (c) of Article
243P of the Constitution. The expression 'metropolitan city' is defined in Section 2(ha) to mean the
metropolitan city of Bombay, Calcutta, Delhi or Madras. Section 15 lays down the formalities to be
complied with before giving sanction to the opening of metro railway by the Central Government.
422 wp_2890.18.j.doc
304. As mentioned earlier, Mumbai Metro Master Plan was first prepared in the year 2004 and has
been amended at network level from time to time based on the revised and updated implementation
plans. The present project of MML-3: Colaba-Bandra-SEEPZ was formed by amalgamation of two
lines of the original Masterplan; Line-3 (Colaba-Mahalaxmi-Bandra) and southern section
(BKC-SEEPZ) of line-6 BKC-Airport- SEEPZ-Kanjur Marg. The Project Implementation of Metro
Line-3; Colaba-Bandra-SEEPZ has been taken by the fourth respondent in the year 2010.
Accordingly, the Detailed Project Report (DPR) was prepared by Rites in November, 2011.
Notification dated 12.12.2011 was issued by the Managing Director of respondent No.4 detailing
therein that a Social and Environmental Impact Assessment Study as per JICA guidelines. In this
regard the alignment and station locations were notified and suggestions/objections for the same
were 423 wp_2890.18.j.doc invited from concerned stakeholders in writing by respondent No.4.
Important station locations as also details of the alignment were uploaded at
www.mmrdamumbai.org. The project alignment plan was also displayed at following offices :

001.
iv. Collector (City), Mumbai City Collectorate, Old Custom House, Fort, Mumbai -
400 001.

Mumbai - 400 051.
305. As mentioned earlier, the project alignment and details were published in all prominent
newspapers (in two languages) calling for suggestions and objections from the public with one
month notice. To ensure wide publicity and information, the plan was also published at various
Government Offices (Deputy Director of Town Planning, Government of Maharashtra; Chief
Engineer, Development Plan; MCGM;
424 wp_2890.18.j.doc
Collector Mumbai City; Collector Mumbai Suburbs; and

MMRDA). Respondent No.4 has not received any written suggestions or objections in response to
the notice. A public notice for that purpose was published on 5.4.2012 in prominent newspapers in
two languages. Public consultation/hearing was conducted on 11.4.2012. A detailed presentation
was made to the audience who attended the public hearing on 11.4.2012.
306. It is not in dispute that the petitioners did not submit any objections and suggestions in
pursuance of the notification dated 12.12.2011. Mr. Seervai submitted that the Website did not show
the location of Kalbadevi Metro Railway Station. He submitted that only important station locations
on the alignment, namely, Churchgate, Chattrapati Shivaji Terminus (CST), Girgaon, Mahalaxmi,
Worli, Mahim, Bandra (BKC), Domestic & International Airport, MIDC and SEEPZ were shown. I
do not find any merit in this submission. A perusal 425 wp_2890.18.j.doc of the plan of MML-3 line
produced by the petitioners at Exhibit- B along with the affidavit-in-rejoinder of the petitioners
dated 11.7.2018 shows the location of metro railway stations. Assuming in favour of the petitioners
that the location of Kalbadevi Metro Station is not shown, nonetheless it is not disputed that the
details of alignment were uploaded at said Website. Thus, it is abundantly clear that the alignment
of MML-3 is passing beneath JSS Road. It was, therefore, incumbent upon the petitioners to have
lodged objections / suggestions as also participate at the time of a detailed presentation made to the
Public who attended public hearing on 11.4.2012.
307. A perusal of the entire Petition does not indicate that the petitioners have submitted any
concrete material for changing the alignment of the proposed MML-3.
308. In support of the contentions, the petitioners have 426 wp_2890.18.j.doc relied upon following
material :
i. Pre-construction Building Condition Survey Report for MML-3 (Colaba-Bandra-Seepz)

(Exhibit-G, pages 84 to 98) ii. Copy of the MML-3 plan referred in paragraph-3(f) and annexed as
Exhibit-B to the affidavit-in-rejoinder of the petitioners dated 11.7.2018 to the reply dated 26.6.2018
of respondent No.4.
iii. A copy of the report of the Architect Hafeez Contractor of the petitioners which proposes possible
conceptual alternatives for realignment referred in affidavit-in-rejoinder of the petitioners dated
20.7.2018 to the affidavit-in-reply of respondent No.4 dated 16.7.2018 suggesting three alternatives
/ options for realignment. (pages 537-H to 537-J).
iv. The report dated 25.7.2018 made by Grace Consultants, marked as Exhibit-A to the affidavit
dated 4.8.2018 made by petitioner No.1 Jamshed N. Sukhadwalla. (page 548F) v. Technical paper
presented during the proceedings of the 2008 IACJ - IJME International Conference referring to the
episode involving 'The Sao Paulo yellow line-4" referred in the petition at Exhibit-D in the affidavit
dated 4.8.2018 made by petitioner No.1 Jamshed N. Sukhadwalla. (pages 558 to 564) vi. VJTI's
report dated 9.8.2018. (pages 584 to 867) vii. Written submissions submitted by the petitioner after
hearing was given by the Board of Directors of the 4 th respondent in 427 wp_2890.18.j.doc
pursuance of the order dated 23.5.2018 passed by this Court and in particular paragraph-V
proposing alternatives on the basis of the Power-Point Presentation of the Architects appointed by

the petitioners during the hearing with respect to possible preliminary options/solutions which
available for realignment of the tunnel so that it would not pass under the Atash Behrams. These
included detailed technical drawings and hard copies of the said power-point presentation.
309. As against this, respondent No.4 relied upon following material:
i. BCS report
ii. Copy of the plan showing distance of tunnel from Wadiaji fire
temple and proposed Kalbadevi Metro-Station. (Exhibit-R, page- 142L) iii. The Buildings from
Impacts of Tunneling and Excavation Works Report annexed along with the affidavit dated
26.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) of the 4 th respondent. (pages 232-261)
iv. Report of Five Directors dated 15.6.2018. (pages 272-410) v. Notification dated 12.12.2011 issued
by the Managing Director of the 4th respondent. (page-411) vi. Feasibility Report of General
Consultant of respondent No.4 dated 23.7.2018 submitting remarks to the proposal of the 428
wp_2890.18.j.doc petitioner forwarded to them. (pages 544-548 ) vii. VJTI's report dated 9.8.2018
(pages 584-602)
310. The present petition was instituted on 21.5.2018. At that time the petitioners have produced the
Pre-construction Building Condition Survey Report for MML-3 (Colaba-Bandra- Seepz) at
Exhibit-G, pages-84 to 98. The petition was moved before the Vacation Court on 23.5.2018. After
extracting the prayers in the petition, the Court referred to the case pleaded by the petitioners in the
Petition. In paragraph-5, the Court prima facie found force in the concerns expressed by the
petitioners in the petition. In paragraph-6, the Court recorded acceptance of the suggestion made by
the Court by the 4 th respondent that five members of the Board of respondent No.4 (for short,
'Committee') will give hearing to all concerned and submit its report along with its affidavit-in-reply
to the Court on the adjourned date. The Advocate for respondent No.4, on instructions, also agreed
that until the next date of hearing, respondent No.4 will not 429 wp_2890.18.j.doc carry out any
drilling work beyond the boundaries of Atash Behrams. The Court, therefore, directed respondent
No.4 that until the next date of hearing, respondent No.4 shall not carry out any drilling work
beyond the boundaries of Atash Behrams. It was also clarified that respondents No.1 to 4 will not
claim any equities in response to the submissions made by the petitioners seeking directions against
respondents No.1 to 4 to realign the metro rail construction.
311. In pursuance thereof, the hearing was conducted by the Committee on 8.6.2018. The hearing
was attended by the petitioners, their Advocates, representatives of M/s. Hafeez Contractors, the
Architects nominated by the petitioners, High Priests & Priests as also the representatives and
Trustees of both Atash Behrams and their Advocates.
312. In paragraph-7 the Commitee framed the questions 430 wp_2890.18.j.doc for deliberation to
examine important points brought before it. Question No.2(a) was to the following effect :
2.(a) Whether the whole premises of both the Atash Behram are to be treated as 'one composite
whole' or there is a distinction between the sanctum sanctorum, where the holy fire is enthroned,
and the remaining parts of temple buildings.
313. The Committee observed that it would refrain from deliberating on religious beliefs and
referred to the submissions made by the petitioners in the petition before this Court. The petitioners
produced a page from a book of Dr. Sir J.J. Modi. That page was attached as Annexure III to the
report. After considering the book of Dr. Sir J.J. Modi, it was observed that said book clearly spells
out the difference between the place of sacred fire i.e. sanctum sanctorum vis-a-vis the attached
apartments i.e. Der-i-Meher. The apartments have also provisions of civic services such as sewer
line, storm water drain, water line and electricity lines etc. They also provide amenities 431
wp_2890.18.j.doc like toilets within their premises. The Committee, therefore, considered that
within the Atash Behram premises the attached apartments, where liturgical ceremonies are held or
areas where civic amenities and utilities are laid, cannot be considered at equal footing in religious
importance as of the place of sacred fire i.e. the sanctum sanctorum. Similar is the situation in
religious premises of other faiths where sanctity of core worship area is much higher than the
sanctity of other areas around the sanctum sanctorum.
314. The Committee thereafter dealt with question No.2(b) in the following manner:
2.(b) Whether the constructing tunnel beneath ground is tantamount to make Atash Behram area
elevated ? On the issue of the Petitioners feeling that boring of tunnel in the premises would result
in the premises being considered to be on an 'elevated' level and the connection with the ground
would be deemed to be breached; the Committee, barring religious connotations, did not find any
scientific or technical 432 wp_2890.18.j.doc merit in this argument. An underground tunnel doesn't
change the R.L. of the surrounding ground. A plain dictionary meaning of 'elevated' as an 'adjective'
is 'situated or placed higher than the surrounding area' and 'raised up, especially above the ground
or above the normal level: an elevated platform; an elevated pulse.'
315. The Committee considered the collapse of a part of the Jer Mehal Annex building. The
Committee thereafter proceeded to consider question No.4, namely, are the building structure of
Wadiaji Atash Behram and Anjuman Atash Behram are at risk of damage due to construction of
metro tunnel and station, either on its present location or at a shifted location. The Committee
observed thus:
"To analyse this aspect, the Committee has gone into details of bidding process in
selection of competent contractors, competent consultants, conditions in the contract
and the professionalism adopted in the execution process. All these factors have a
bearing on the subject concern as any outcome is subject to 433 wp_2890.18.j.doc
processes involved. This is also a fact that world over, including heritage parts of
cities like Rome, Barcelona, Istanbul, Madrid etc., Metro tunnels and stations have
been successfully constructed.
The entire metro line 3 project, comprising of twin tunnels of 5.8 m finished diameter
to be constructed by Tunnel Boring Machines (TBM) and 26 underground stations,
apart from other associated works, is a prestigious urban railway project funded by
the International funding agency Japan International Cooperation Agency (JICA),
Government of India and Government of Maharashtra. The work of tunneling and

underground stations is divided into 7 packages for which a very rigorous

international prequalification process was carried out for short listing of contractors.
Through this international process in which not only their financial and technical
capability of executing similar works were analyzed, technical competence of their
design consultant company was also assessed. 9 firms were shortlisted for bidding.
These firms were then allowed to participate in the further bidding process. After a
very detailed and rigorous bidding process, which was scrutinized by international
consultants, all the seven packages were awarded to 434 wp_2890.18.j.doc different
construction majors. Every stage of this bidding process was scrutinized and vetted
by the international funding agency, JICA. Selected contractors are joint ventures of
major Indian contractors with major international construction companies. The
company that has been selected for the work in the subject area is HCC-MMS JV.
M/s. Hindustan Construction Company (HCC) are a major Indian construction
company while M/s. Mosmetrostroy (MMS) are a major Russian company, both with
vast experience of tunneling and station construction works in urban condition. Even
the selection of the General Consultants for the project was on 'Quality and Cost
Based Selection' process where the past relevant experience of consulting companies
and; qualification and relevant experience of key experts were important
consideration.
Designing of tunnels and underground stations are specialized field for an important
and critical infrastructure like an urban commuter metro rail where large number of
commuter travel every day. Therefore, only professional agencies, that meet
prespecified criteria, carry out planning and design of 435 wp_2890.18.j.doc works,
be it temporary or permanent in nature. The agency is called Detailed Design
Consultant (DDC) in contract terms. The contract also requires deployment of
another expert agency of equal or higher capabilities to independently check the
plans and designs prepared by the DDC. This independent expert agency is called the
Lead Design Checker (LDC). Further, after a design is prepared and checked by DDC
and LDC respectively and all their observations are addressed and incorporated, it is
submitted by the Contractor for check and clearance from the General Consultant
(GC) deployed by Mumbai Metro Rail Corporation Limited (MMRCL). A professional
team of the General Consultants (GC) again checks these plans and designs before
giving their 'No Objection'. The GC for this project are a group of four major
international engineering consulting firms.
Another crucial aspect in safe construction is selection of technology and equipment

for tunneling operations. Tunneling work between any two stations will be carried
out by Tunnel Boring Machines (TBM). The Tunnel Boring Machines, the most
crucial resource, are designed and customized specifically to meet local geological
and contractual conditions. Both the tunnel 436 wp_2890.18.j.doc boring machines
(TBM's) procured for this work are manufactured by M/s. Terratec, a major
Australian TBM manufacturer, in their China facilities. Further during execution,
each component of the work is carried out as per approved designs and detailed

Method Statement; and supervised by the professional team of engineers.

Accordingly, detailed design and method statement for tunneling has also been
checked and cleared for the execution by the DDC, LDC and GC. Detailed design of
Kalbadevi Station is presently under review and no work has been undertaken at site.
It is also seen that there is a very detailed laid down protocol for protection of the
heritage buildings as well as of other buildings from the impacts of tunneling and
excavation works on this project. This is a 4-stage process that consists of:
Assessment of existing building condition and assigning allowable impact limit

categories.
Design the station and tunneling excavation method impacts to be within limits of
the adjacent buildings categories Design and installation of protection and mitigation
measures where necessary.
437 wp_2890.18.j.doc
Close and continuous monitoring during
construction and revising design as per steps 2 and 3.
xxxx xxxxxx xxxxxx xxxx xxxxxx xxxxxx As per the Building condition survey (BCS)
report, the Anjuman Atash Behram is classified as 'Slight' and Wadiaji Atash Behram
as 'Moderate' building category. Both these buildings are heritage structures but in
much more healthier condition than many other buildings in this area which are
categorized as 'Severe' and 'Very Severe' category. The construction protocols for this
work are designed to carry out construction work in the close vicinity of 'severe' and
'very severe' buildings, including tunneling beneath them. As per the present status
170 meter of tunneling has already been carried out in the lower track tunnel below
several buildings (some of these buildings are in category of 'Severe' and 'Very
Severe'), in the Kalbadevi area without settlements, tilt or change in the crack width."
438 wp_2890.18.j.doc
316. The Committee reproduced details of the buildings etc. in a tabular form and
thereafter observed thus :
"In addition to the above statistics of 170 m of tunneling work in Kalbadevi area, on
overall, more than 3.5 km of tunneling has already been carried in the Mumbai city
without any complications. Further, deep excavations up to 30 m has been achieved
at many locations, including CST Metro station, without any adverse impact on
surrounding area, buildings or structures. 75% of the secant piling work on the
project has been completed. One of the Metro tunnels has already crossed the
Versova-Andheri-Ghatkopar 'Metro Line 1' at Marol Naka without any impact on the
line. Metro tunnel has also passed below an under-construction high rise building,

and below many other sensitive structures. Monitoring records do not show any
adverse impact in any of these locations.
Apart from supervision by contractor's professional team, from MMRC side the work
is supervised by the General Consultants (GC) which area a group of four major
international 439 wp_2890.18.j.doc engineering consulting firms. GC has deployed
15 odd international key experts in the fields of supervision of tunneling and stations,
designing, Architecture, Safety and Quality Assurance etc. This is in addition to a
large number of other local professionals and support staff comprising engineers,
architects, designers, technicians with varied national and international experience
deployed by the GC; and also, international and local experts deployed by contractors
and their designers to carry out this work.
Therefore, a very detailed and elaborate institutional framework and protocol, where
emphasis of construction philosophy is to professionally handle each and every
component of the work and to limit impacts on the surrounding buildings and
structures within permissible limits has already been put in place. Moreover, the
buildings and structures are also monitored with sensitive instruments for any early
signs of distress. Heritage buildings, weak and dilapidated buildings and sensitive
structures are monitored 24/7 online with sensitive instruments.
440 wp_2890.18.j.doc The Committee can, therefore, state that there is no likelihood
of any damage happening to any of the Atash Behrams."
317. The Committee thereafter proceeded to consider question No.5 dealing with
drying up of the wells in the premises of both the Atash Behrams due to ongoing
tunnel or station construction works. It was noted that as a part of construction
protocol, the contractors for the work have already started monitoring water level in
the wells of both the Atash Behrams. There are four wells in the Wadiaji Atash
Behram and three wells in the Anjuman Atash Behram. Nearest well in the Wadiaji
Atash Behram is 42 ft. (12.84 meters) away from the nearest point of the tunnel,
while the same in the Anjuman Atash Behram is 15 ft. (4.6 meters). These wells are in
the top soil layer of about 20 ft. deep, while the tunnel is in the rock; and is at 60-65
ft. deep from ground level. Thus, there is a clear vertical space of 42-46 ft. of rock
mass between bottom of wells to 441 wp_2890.18.j.doc the top of the tunnel.
Respondent No.4 had already given undertaking dated 10.11.2017 to the Vada
Dasturji Dr. Firoze M Kotwal and Vada Dasturji Khurshed Dastoor that there is no
possibility of drying up of these wells due to metro construction and to keep a check
on water level in the wells, respondent No.4 will monitor the water levels in the
vicinity by installing instruments.
318. The Committee thereafter in question No.6 considered the feasibility of shifting the tunnel
alignment by nine meters as per the concept proposal given by the Architects of the petitioners. It
was observed that the alternate concept plan presented by the petitioners' Architects was forwarded

to the GC who have the technical competency to analyse these plans on relevant technical
parameters. The GC vide their report dated 13.6.2018 have carried out a detailed analysis. They have
brought out that the petitioners and their architects 442 wp_2890.18.j.doc actually could not read
the plans correctly. They misunderstood that the lower track of metro line was below the Atash
Behrams, while it was the upper track which is beneath the premises of Atash Behrams. The extent
of the possibility that the petitioners and their architects were visualizing does not exist. The GC
however analyzed the concept plans given to them with due correction.
319. The GC in their report found that the proposed plan does not provide for essential planning
requirements for passenger movement on platforms and queue length before a staircase or an
escalator. It does not meet the requirements of egress capacity in accordance with the NEPA 130 for
fire safety either. The plan also does not meet the requirements of barrier free accessibility of
differently abled persons. Conforming to these planning requirements is essential for proper
passenger movement during normal operations as well as during a fire 443 wp_2890.18.j.doc
emergency. Not only on planning requirements, GC further brought out that the proposed plans
infringe on the technical requirements of housing essential station amenities and services. It
compromises on the need of minimum rock column required for geological stability of the
surrounding ground during construction. It is important to note that in the urban city of Kalbadevi,
old and dilapidated buildings exist near the construction site and geological stability of ground is of
utmost importance for safe construction. The fact that even an established architect of the repute
engaged by the petitioners could miss these functional, technical and operative requirements of the
Kalbadevi station, which is to be designed for a metro system of design capacity of 72,000 PHPDT
and related station load, reinforces the need for a competent domain expert Detailed Design
Consultants (DDC) to handle work of such magnitude and complexities.
444 wp_2890.18.j.doc
320. The Committee noted that the petitioners architect do not possess any similar expertise or past
experience of planning and designing of a underground metro station. The Committee considered
that shifting of tunnel alignment by 9 meters as per concept plan given by the petitioners is neither
technically feasible nor workable.
321. Along with the affidavit-in-rejoinder of the petitioners to the affidavit-in-reply of respondent
No.4 dated 16.7.2018, the petitioners annexed Architect Hafeez Contractor's report (pages- 537H to
537J). Shantaram Ganpat Dalvi, DGM (Civil) of respondent No.4 filed affidavit dated 23.7.2018 in
response to that affidavit. Along with that affidavit, feasibility report of General Consultant dated
23.7.2018 was enclosed. The GC analyzed the proposals / options submitted by the petitioners. After
analyzing the proposals in respect of station design, it was concluded that the station design
proposals in all three options 445 wp_2890.18.j.doc made by the architect of the petitioners is not
found feasible.
322. The petition was thereafter heard on 25.7.2018. The Court issued Rule. In paragraph-8, a query
was made by the Court as to whether respondent No.4 has taken an opinion of an independent
expert agency regarding the possibility of any damage being caused to the structures of the subject

Atash Behrams and the wells therein and the response of the learned Senior Counsel of respondent
No.4 that though there are many experts available with the 4th respondent as well as the contractor
appointed to carry out the job, the opinion of an independent agency has not been taken, was noted.
323. In paragraph-10, the Division Bench observed that admittedly, the 4th respondent does not
have the benefit of an opinion of an independent agency of some repute on the question of the Metro
Railway work causing damage as apprehended by 446 wp_2890.18.j.doc the petitioners.
324. In paragraph-12, it was observed that in the interest of both the petitioners and the
respondents an independent agency like VJTI after making a study submits a report to this Court.
The report will be very relevant for considering the prayer for interim relief. The draft terms of
reference agreed by and between the petitioners and the 4 th respondent have been tendered on
record and marked as 'R-1' for identification.
325. In paragraph-14, the Division Bench noted that in terms of ad-interim order passed on
23.5.2018, the Committee has submitted a report. The Court accordingly appointed VJTI as an
expert agency to examine the impact of the proposed metro work including the tunnelling and
construction of the proposed Kalbadevi station, both during its construction as well as operation of
the metro rail (a) on the structural safety of the 447 wp_2890.18.j.doc Wadiaji and Anjuman Atash
Behram, and (b) on the water levels including any contamination in the wells situate within both the
above Atash Behrams. The Court issued other directions as well.
326. Mr. Seervai heavily relied upon the observations made by Division Bench in the orders dated
23.5.2018 and 25.7.2018. On the other hand, Mr. Aney submitted that these observations are prima
facie. Insofar as the order dated 23.5.2018 is concerned, at that time response of respondent No.4
was not on record. Insofar as the order dated 25.7.2018 is concerned, he submitted that in
pursuance of the order the VJTI has submitted report dated 9.8.2018.
327. I do not find that the orders dated 23.5.2018 and 25.7.2018 conclusively determine the rights of
the parties. These orders express prima facie opinions. In fact in pursuance of the order dated
23.5.2018 the Committee submitted its report dated 448 wp_2890.18.j.doc 15.6.2018, which I have
extensively referred earlier. The Committee carefully analyzed the material on record and insofar as
the fundamental rights under Article 25 of the Constitution is concerned, the Committee
substantially followed the dictum laid down by the Apex Court that the ultimate constitutional
arbiter of what constitutes essential religious practice must be the Court, which is a matter of
constitutional necessity.
328. In paragraph-14 of the order dated 25.7.2018, the Division Bench made a passing reference to
the Committee's report. A perusal of that order, however, does not indicate that the Court
considered in detail the report submitted by the Committee. Said order also recorded that
respondent No.4 did not obtain an opinion of an independent expert committee. I have already
referred to the provisions of Sections 14 and 15 of the Metro Act. I have extensively dealt with the
449 wp_2890.18.j.doc implementation process of MML-3. In the implementation process, several
experts are involved. After following due process of law, respondent No.4 has undertaken the

implementation of the project. International Competitive Bidding (ICB) process was followed for
implementation of the project. Mr. Seervai is not in a position to substantiate his contention that
respondent No.4 has to take opinion of an independent expert regarding the possibility of any
damage being caused to the structures of Atash Behrams. The building construction survey report is
placed on record which deals with this aspect. The petitioners have not placed any report
contradicting the BCS report. It is only in the event of conflicting reports produced by the parties the
question of appointing independent expert agency arises. That apart, the Committee's report dated
15.6.2018 rules out even remote chances of causing damage to the two Atash Behrams. Still in order
to satisfy itself that no damage will be caused to the structures of Atash Behrams, this Court thought
it appropriate 450 wp_2890.18.j.doc to appoint an independent agency, namely, VJTI. As
mentioned earlier, this Court also recorded in paragraph-12 of the order dated 25.7.2018 that it is in
the interest of both the petitioners and the respondents that an independent agency like VJTI after
making a study submits a report to this Court. The report will be very relevant for considering the
prayer for interim relief.
329. In pursuance thereof, VJTI had submitted the report dated 9.8.2018. Mr. Seervai has attacked
that report heavily. I do not find any merit in this submission as at the cost of repetition the
petitioners have not placed any concrete material on record contradicting the reports of respondent
No.4. A perusal of VJTI's report dated 9.8.2018 shows that the report considered the test reports,
scrutiny and review of design calculations and drawings, monitoring data, methodology of the work
and the site inspection and recorded the conclusions to the following effect :
451 wp_2890.18.j.doc
"13.0 CONCLUSION :
After going through the inferences from test reports, scrutiny and review of design calculations and
drawings, Monitoring Data, methodology of the work and site inspection, following conclusions are
drawn; Effect of Tunneling work on safety of both Atash Behram buildings
1. The proposed tunnelling work (using TBM) for Metro line 3, passing under Wadiaji and Anjuman
Atash Behram buildings shall not have adverse effect on the structures.
2. The proposed tunnelling work (using TBM) for Metro Line 3, passing under Wadiaji and
Anjuman Atash Behram buildings, shall not have adverse effect on level and quality of water in the
wells within the premises of both Atash Behrams.
Effect of Operation of Metro Rail (Line 3) on safety of both Atash Behram buildings
1. Operation of the Metro Rail, through the proposed tunnels passing under Wadiaji and Anjuman
Atash Behram buildings shall not have adverse effect on the structures.
Effect of Proposed Construction of Kalbadevi 452 wp_2890.18.j.doc Station on safety of Wadiaji

Atash Behram building

1. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atash Behram building shall
not have adverse effect on this structure.
2. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atah Behram building shall
not have adverse effect on level and quality of water in the wells within the premises of Wadiaji
Atash Behram."
330. Apart from that, the report also recommended the measures for achieving additional safety.
331. Mr. Seervai submitted that VJTI solely relied upon the data prepared and supplied by
respondent No.4. The report submitted by VJTI is not an independent report. He submitted that
respondent No.4 and even VJTI ignored the fact of controlled blasting which is to take place just 5
meters away from 453 wp_2890.18.j.doc Atash Behram. According to the report of VJTI, PPV is
below 2.54 mm/sec which is a false and mischievous report. Mr. Seervai invited our attention to
paragraph-11 of the affidavit of the petitioners dated 13.8.2018 in response to the report of VJTI
dated 9.8.2018. He submitted that the very foundation of PPV is destroyed by the report prepared
by VJTI.
332. As against this, Mr. Anturkar submitted that the order dated 25.7.2018 passed by the Division
Bench of this Court directed VJTI to examine. The petitioners never sought any directions from this
Court for collection of its own data by VJTI and not to use the data of respondent No.4. During the
course of hearing the petitioners did not raise any objection about the validity or genuineness of the
data collected by the 4 th respondent. In the absence of any direction from this Court and also any
request from the petitioners, it was entirely within the discretion of VJTI either (a) to rely upon the
data collected by 454 wp_2890.18.j.doc respondent No.4 or (b) to collect data by itself by
conducting tests, or (c) to adopt both the methods mentioned (a) and (b) above. He submitted that
no fault can be found with the expert if the expert had opted for one of the permissible courses. That
apart, the decision of the 4th respondent is not based on VJTI report. The decision making process
of the 4 th respondent is independent of VJTI report. The petitioners did not collect data by
conducting tests. He, therefore, submitted that no fault can be found with the report of VJTI.
333. I do not find any merit in the submissions of Mr. Seervai. Insofar as the contention that the
controlled blasting is to take place just 5 meters away from Atash Behram is concerned, from the
material on record it is clear that the blasting will take place below 60 to 65 ft. deep from the ground
level. The apprehension expressed by the petitioners is, therefore, without any merit. As far as the
contention that the 455 wp_2890.18.j.doc report submitted by VJTI is not an independent report is
concerned, equally we do not find any merit in this submission. The entire burden of song in the
petition as also during the course of hearing of this petition is that the material and reports relied by
the 4th respondent do not convincingly establish that no damage will be caused to two Atash
Behrams in question. The petitioners on their own did not collect any data. In other words, the
petitioners have criticized the reports prepared by the experts without producing any concrete and
authentic material / report.

334. It is material to note that in its report dated 15.6.2018, the Committee forwarded alternate
concept plan prepared by the petitioners' Architect to the GC who have the technical competency to
analyze these plans on relevant technical parameters. The GC vide their report dated 13.6.2018 have
carried out a detailed analysis. They have brought out that the petitioners and their architects
actually could not read the 456 wp_2890.18.j.doc plans correctly. They misunderstood that the
lower track of metro line was below the Atash Behrams, while it was the upper track which is
beneath the premises of Atash Behrams. The GC however analyzed the concept plans given to them
with due correction. The GC found that the proposed plan does not provide for essential planning
requirements for passenger movement on platforms and queue length before a staircase or an
escalator. It does not meet the requirements of egress capacity in accordance with the NEPA 130 for
fire safety either. The plan also does not meet the requirements of barrier free accessibility of
differently abled persons. The GC further brought out that the proposed plans infringe on the
technical requirements of housing essential station amenities and services. The fact that even an
established architect of the repute engaged by the petitioners could miss these functional, technical
and operative requirements of the Kalbadevi station, which is to be designed for a metro system of
design capacity of 72,000 PHPDT and 457 wp_2890.18.j.doc related station load, reinforces the
need for a competent domain expert Detailed Design Consultants (DDC) to handle work of such
magnitude and complexities. The Committee further noted that the petitioners' Architect do not
possess any similar expertise or past experience of planning and designing of a underground metro
station.
335. From the material on record, I am more than satisfied that the project undertaken by
respondent No.4 is of high magnitude of public importance and complexity. The experts in the field
have opined that the proposed project will not cause any damage to two Atash Behrams. It is evident
from the material on record that respondent No.4 has undertaken the project by exercising due
diligence and employing procedures adhering to the industrial standards.
336. Mr. Seervai submitted that the law grants protection 458 wp_2890.18.j.doc to beliefs, tenets,
doctrines, customs, usages and practices and this may not necessarily be scriptural. A large majority
of Zoroastrian scriptures have been destroyed and a judicial notice may be taken in that regard. We
do not find any merit in this submission. Section 57 of the Indian Evidence Act, 1872 lays down that
the Court has to take judicial notice of the following facts, namely, items (1) to (13) enumerated
therein. It further lays down thus:
"In all these cases, and also on all matters of public history, literature, science or art,
the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may
refuse to do so, unless and until such person produces any such book or document as
it may consider necessary to enable it to do so."
337. The petitioners' case is not covered by items (1) to (13). A perusal of the above extracted portion
of Section 57 shows that the Court may refuse to take judicial notice of any fact 459
wp_2890.18.j.doc unless and until such person produces any such book or document as it may

consider necessary to enable it to do so. I have already held that in the present case the petitioners
have utterly failed to produce any scriptural or textual evidence for substantiating their case. In view
thereof, it is not possible for me to take judicial notice as claimed by the petitioners.
338. Mr. Seervai submitted that the very fact that respondent No.4 has agreed to move it 3.5 meters
only after the order of the Court dated 23.5.2018 itself demonstrates that the decision making
process is seriously flawed. In the first place, a perusal of the petition shows that the petitioners
have not challenged the decision making process at all. I have already extracted ground (w) of the
Petition. Secondly, the Committee after due deliberations in its report dated 15.6.2018 dealt with the
conclusion in paragraph-9. The Committee observed thus :
"The Committee considers that, while the concept 460 wp_2890.18.j.doc plans given
by the Petitioners are not feasible, the alternative plan of MMRC for the Kalbadevi
Station would allow shifting of upper track tunnel by 3.5 m towards JSS road from its
present location. This will reduce the extent of tunnel alignment within Wadiaji Atash
Behram and the Anjuman Atash Behram by similar margins."
Thus, the concession given by respondent No.4 cannot be construed as a flaw in the decision making
process.
339. Thus, I find that the project undertaken by respondent No.4 does not suffer from any error as
regards decision making process as also that it will adversely affect two Atash Behrams in question. I
accordingly conclude that there is no danger to the structural safety and integrity of two Atash
Behrams in question in allowing the tunnel as also construction of Kalbadevi Metro Station.
(ii) Alternative proposals submitted by the petitioners:
340. Insofar as this contention is concerned, the
461 wp_2890.18.j.doc
Committee in its report dated 15.6.2018 has extensively dealt with this aspect. After analyzing the
entire material on record, the Committee concluded in paragraph-9 that the concept plan given by
the petitioners are not feasible.
341. That apart in the affidavit dated 23.7.2018 respondent No.4 has enclosed the response to the
three options given by the petitioners in respect of Kalbadevi metro station and the report of GC
concluded that the station design proposals in all three options made by the Architects of the

petitioners are not found feasible.
342. It is required to be noted that the project undertaken by respondent No.4 is of high magnitude
of public importance and complexity. The experts in the field have opined that the proposed project
will not cause any damage to two Atash 462 wp_2890.18.j.doc Behrams. It is evident from the
material on record that respondent No.4 has undertaken the project by exercising due diligence and
employing procedures adhering to the industrial standards. The Court does not have expertise in
this regard. This Court while exercising powers under Article 226 of the Constitution of India cannot
lightly interfere with the opinions expressed by the experts in the field. This is more so when the
petitioners have not produced any concrete material so as to contradict the reports placed on record
by the 4th respondent. PER COURT
343. In view of the aforesaid discussion, we pass following order:
(1) The Respondent Nos. 3 and 4 are permitted to continue boring of tunnels under the Atash
Behrams i.e. H.B. Wadiaji Atash Behram and Anjuman Atash Behram on the following conditions:
(a) The Authorities, Technicians / Officers responsible for carrying out subject
tunneling work under the project, shall ensure that no 463 wp_2890.18.j.doc damage
is caused to the two Atash Behrams i.e. H.B. Wadiaji Atash Behram and Anjuman
Atash Behram during the execution of tunneling work.
(b) While tunneling work is in operation, there shall be strict monitoring of vibration
levels 24 x 7 using necessary devices and equipments;
(c) During boring of tunnel passing beneath the two Atash Behrams, specially
constituted Team of Experts shall be present on the spot 24 x 7;
(d) If necessary the Tunnel Boring Machines

(TBMs) shall be slowed down while the
tunneling work is in operation beneath the premises of two Atash Behrams;
(e) Controlled blasting method shall be adopted for boring tunnels underneath the
two Atash Behrams;
(f) Necessary equipments shall be installed permanently in different places in or

around the two Atash Behram structures to monitor levels of vibrations, by the
Respondent Nos. 3 and 4;
(g) Respondent Nos. 3 and 4 are directed to continuously monitor water levels of the
wells 464 wp_2890.18.j.doc situated in the premises of two Atash Behrams. They
shall take necessary precautions in that regard by installing requisite number of
ground water charging wells;

(2) Ad-interim relief granted earlier, stands vacated forthwith.
(3) Petition is disposed of in the above terms; (4) Rule is accordingly discharged with no order as to
costs.
R.G.KETKAR, J. CHIEF JUSTICE
344. After pronouncement of the judgment, the learned Senior Counsel Mr. Seervai made an oral
request and prayed for continuation of ad-interim for a further period of two weeks as the same was
in operation since May, 2018. The learned Counsel further submits that the petitioners may be
resorting to appropriate remedies in the Apex Court. It is submitted that no prejudice would be
caused if the ad-interim relief is extended for a period of two weeks.
465 wp_2890.18.j.doc
345. We have heard the learned Senior Counsel Mr. Divetre. He has supported the submission of
learned Senior Counsel Mr. Seervai.
346. Learned Senior Counsel Mr. Aney for Respondent No.4 on instructions opposed the prayer for
continuing ad- interim relief. It is submitted that loss of around more than Rs. 4 crores per day is
suffered due to delay in execution of the project. It is a public project of vital importance for the City
of Mumbai. Various agencies are involved who are participating in execution of the project. The
State and the Central Government and other financial agencies are contributing towards the cost of
the project. In view of the final outcome of the matter, now there is no necessity to continue
ad-interim relief. If aggrieved, the Petitioners can very well resort to appropriate remedies.
466 wp_2890.18.j.doc
347. We have considered the submissions advanced by the learned Counsel for the parties. We are
conscious of the fact that it is an infrastructure project being executed in the larger interest of
public. The project involves huge costs. Delay in project may further escalate cost.
348. We may make a useful reference to the provision of Section 41(ha) of the Specific Relief Act,
1963, which reads as under:
"41. Injunction when refused.--- An injunction cannot be granted --
(ha) if it would impede or delay the progress or completion of any infrastructure

project or interfere with the continued provision of relevant facility related thereto or
services being the subject matter of such project."
349. In our considered view, we do not find it appropriate to withhold the infrastructure project of
this magnitude any further. In this view of the matter, we are not inclined to accede 467
wp_2890.18.j.doc to the request made by learned Senior Counsel Mr. Seervai appearing for the

petitioners. Oral request for stay is therefore, rejected.
R.G.KETKAR, J. CHIEF JUSTICE
kandarkar /
L.S. Panjwani, P.S .

Jamshed Noshir Sukhadwalla and 4 ... Vs Union of India and 11 Ors On 30 November, 2018

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Jamshed Noshir Sukhadwalla And 4 ...

vs Union Of India And 11 Ors on 30 November, 2018

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

WRIT PETITION NO. 2890 OF 2018

1. Jamshed Noshir Sukhadwalla

2. Behruz Nariman Irani

3. Ratan Dorab Patel

4. Ervad Dr.Rooyintan Peshotan Peer

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Indian Kanoon - http://indiankanoon.org/doc/143840945/ 1

Mumbai 400 032.

3. Mumbai Metropolitan Regional

4. Mumbai Metro Rail Corporation

5. Vada Dasturji Jamasp Asa

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Atash Behram Trust having its

10. Nadir Modi

11. Farrokh Kavarana

12. Hosi Dastur

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Mr. Navroz Seervai, Senior Advocate a/w Mr. Shyam Mehta,

Mr. Anil C. Singh, ASG a/w Mr.Sandesh Patil, Mr. Aditya

Mr. Ashutosh Kumbhakoni, AG a/w Mr. L. T. Satelkar, AGP

Ms. Kavita N. Solunke for respondent no.3 - MMRDA.

Mr.Shrihari Aney, Sr. Adv., Mr. A.V. Anturkar, Senior

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Mr. Yatin Malvankar, Mr. Ajinkya Udane, Mr.Roopadaksha

Mr.F.E.Devitre, Senior Advocate,Mr.D.D.Madan, Senior

CORAM : NARESH H. PATIL, CJ AND

RESERVED ON : 8th October, 2018.

PRONOUNCED ON : 30th November, 2018.

JUDGMENT [Per Naresh H. Patil, CJ.] :

The petitioners pray for following substantive reliefs:-

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c) This Hon'ble Court be pleased to direct the Respondent Nos.1 to 4 to disclose on

8 wp_2890.18.j.doc Respondent No.4, Mumbai Metro Rail Corporation Limited (MMRCL) is a

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In Paragraph-13 the petitioners state as under:-

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"13. It is stated that if a tunnel for the metro is 15 wp_2890.18.j.doc allowed to be

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made by the Petitioners seeking directions against Respondent Nos. 1 to 4 to realign

"(i) We appoint Veermata Jijabai Technological Institute, Mumbai as an expert

(ii) We direct Veermata Jijabai Technological

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(vi) The learned Senior Counsel appearing for

(x) We direct both the Central Government and

26 wp_2890.18.j.doc The aforesaid ad-interim relief granted still continues.

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wp_2890.18.j.doc from Impacts of Tunneling and Excavation Works"

is attached hereto and marked as Annexure-2.

Building with Deteriorated structural/load bearing elements, heavily exposed

32 wp_2890.18.j.doc It is humbly submitted that the Petitioners have failed to

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b. It is humbly submitted that the 'Karshas' referred to in paragraph 11 of the Petition

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Learned Senior Counsel Seervai relied upon following decisions :