Jamshed Noshir Sukhadwalla And 4 Ors vs Union Of India And 11 Ors

5. Berjis Desai of Mumbai Indian Inhabitant 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, 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,

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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:-

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"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

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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

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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

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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."

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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

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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;

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(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

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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."

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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)

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(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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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."

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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.

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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

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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.

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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.

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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,

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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(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.

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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,

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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;

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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

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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

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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:-

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"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

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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

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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:-

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"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

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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

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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.

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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

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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

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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

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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:-

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"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

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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

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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

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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."

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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

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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

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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

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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

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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

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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

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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".

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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".

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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.

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(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

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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

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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

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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

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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

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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,

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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

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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

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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.

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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.

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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

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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).

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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."

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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) 1 2 3 4 5 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

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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.

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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.

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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

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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

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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

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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--

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(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,

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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

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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,

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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

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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

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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

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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:

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"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.".

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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)".

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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."

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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;

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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".

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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

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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:

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"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

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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

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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

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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.,

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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

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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).

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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 may malfunction. The Respondent Nos. 5 - 12 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

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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

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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

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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

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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

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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.

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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

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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

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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

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(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').

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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

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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

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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

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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.

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(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)

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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)

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(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.

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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.

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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 :

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"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

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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

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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

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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.

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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.

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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

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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

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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 Jagadishwarananda Avadhuta 9 (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

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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

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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

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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

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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

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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

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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

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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

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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,

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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,

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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

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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

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"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

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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.

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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

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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

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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.

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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

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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 :

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(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

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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.

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b) Durgah Committee's5 case and in particular paragraph-33 thereof.

c) Sardar Syedna's3 case and in particular paragraph-33 thereof.

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

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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

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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

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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, 20

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

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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 25 LPAOW No.56/2013 26 (2016) 7 SCC 221 27 (2016) 7 SCC 353

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(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

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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)

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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.

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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).

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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.

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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.

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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

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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

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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

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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.

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(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

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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

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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

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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

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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

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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

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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

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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..

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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

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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.

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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

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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,

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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

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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

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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

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(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

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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

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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

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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